           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0170P (6th Cir.)
                    File Name: 00a0170p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


 NATIONAL LABOR RELATIONS ;
                                 
  Petitioner/Cross-Respondent, 
 BOARD,
                                 
                                 
                                     Nos. 98-6297/6401

                                 
             v.                   >
                                 
                                 
                                 
 ST. FRANCIS HEALTHCARE

  Respondent/Cross-Petitioner. 
 CENTRE,
                                 
                                1
  On Application for Enforcement and Cross-Petition for
Review of an Order of the National Labor Relations Board.
              Nos. 8-RC-15410; 8-CA-29739.
                   Argued: October 26, 1999
               Decided and Filed: May 19, 2000
  Before: RYAN and COLE, Circuit* Judges; WILHOIT,
                  District Judge.




    *
    The Honorable Henry R. Wilhoit, Jr., Chief United States District
Judge for the Eastern District of Kentucky, sitting by designation.


                                 1
2    NLRB v. St. Francis                  Nos. 98-6297/6401      Nos. 98-6297/6401                    NLRB v. St. Francis      39
     Healthcare Centre                                                                                 Healthcare Centre

                    _________________                            possible that the Board’s determination that the Biddle letter
                                                                 does not constitute a violation of the Act is correct. See, e.g.,
                        COUNSEL                                  Dayton Hudson, 79 F.3d 546 (upholding the Board’s decision
                                                                 after an earlier remand for an evidentiary hearing in Dayton
ARGUED: G. Roger King, JONES, DAY, REAVIS &                      Hudson Department Store Co. v. NLRB, 987 F.2d 359 (6th
POGUE, Columbus, Ohio, for Respondent. Robert J.                 Cir. 1993)); Van Dorn Plastic Mach. Co. v. NLRB, 881 F.2d
Englehart, NATIONAL LABOR RELATIONS BOARD,                       302 (6th Cir. 1989) (upholding, on second review, the same
APPELLATE COURT BRANCH, Washington, D.C., for                    result after a remand and evidentiary hearing by the Board);
Petitioner. ON BRIEF: G. Roger King, Brian G. Selden,            Van Leer Containers, Inc. v. NLRB, 943 F.2d 786 (7th Cir.
JONES, DAY, REAVIS & POGUE, Columbus, Ohio, for                  1991) (same); NLRB v. Monark Boat Co., 800 F.2d 191 (8th
Respondent. Robert J. Englehart, Frederick C. Havard, John       Cir. 1986) (same); Bauer Welding & Metal Fabricators, Inc.
D. Burgoyne, NATIONAL LABOR RELATIONS BOARD,                     v. NLRB, 758 F.2d 308 (8th Cir. 1985) (same).
APPELLATE COURT BRANCH, Washington, D.C., for
Petitioner.                                                         In sum, I respectfully concur in the court’s decision to
                                                                 uphold the first election and to remand the second election for
  RYAN, J., delivered the opinion of the court, in which         an evidentiary hearing on St. Francis’s objection to the Biddle
WILHOIT, D. J., joined. COLE, J. (pp. 35-39), delivered a        letter.
separate concurring opinion.
                    _________________
                        OPINION
                    _________________
  RYAN, Circuit Judge. These consolidated appeals arise out
of the efforts of the Health Care and Social Services Union,
SEIU, AFL-CIO (Union), to become the certified bargaining
representative for certain employees of St. Francis Healthcare
Centre. Following two elections, the National Labor
Relations Board certified the Union as the bargaining
representative. The Board now seeks enforcement of the
bargaining order it issued following the second election,
which the Union won. St. Francis cross-petitions for review
of the Board’s decision to set aside the first election, which
the Union lost, as well as the Board’s refusal to review St.
Francis’s objections to the second election.
  We will deny enforcement of the Board’s bargaining order
and remand the case to the Board to conduct an evidentiary
hearing on St. Francis’s objection to the second election.
38   NLRB v. St. Francis                   Nos. 98-6297/6401       Nos. 98-6297/6401                  NLRB v. St. Francis       3
     Healthcare Centre                                                                                 Healthcare Centre

Francis has established its success on four of the factors                           I. Standard of Review
articulated by Mitchellace. For example, although the
majority states that St. Francis is favored on the question of       A party who seeks to overturn the results of a representation
timing, the timing of the letter and some of the other             election bears the burden of demonstrating that the election
circumstances of this case are not unlike those in Dayton          was conducted unfairly. To meet this burden, “the objecting
Hudson Department Store Co. v. NLRB, 79 F.3d 546, 551              party must demonstrate that ‘unlawful conduct occurred
(6th Cir. 1996), in which the court upheld the Board’s             which interfered with employees’ exercise of free choice to
determination. In Dayton Hudson, a letter with substantial         such an extent that it materially affected the result of the
misrepresentations was mailed to employees three days before       election.’” Contech Div., SPX Corp. v. NLRB, 164 F.3d 297,
the election, the writers of the letter were known to be allied    305 (6th Cir. 1998) (quoting NLRB v. Shrader’s, Inc., 928
with the union, but, unlike here, the union won by a               F.2d 194, 196 (6th Cir. 1991)), cert. denied, 120 S. Ct. 64
significant margin. See id. at 548, 551. In this case, in          (1999). While the Board strives to achieve “laboratory
addition, St. Francis became aware of the letter one or two        conditions” during representation elections, we have
days before the election, and although it did not respond, it      recognized that this can be an elusive goal, and so “elections
may have had a sufficient opportunity to do so. See                are not automatically voided whenever they fall short of
Mitchellace, 90 F.3d at 1156 (stating that the employer, who       perfection.” NLRB v. Duriron Co., 978 F.2d 254, 256 (6th
learned of a flyer distributed the day before the election, was    Cir. 1992).
able to effectively respond). As to the third factor, although
the centrality of the issues in the alleged misrepresentation to      We review for abuse of discretion the Board’s
the representation campaign may be considered, this factor         determination whether a representation election has allowed
primarily assesses the extent and “artfulness” of the alleged      employees to exercise free choice. Colquest Energy, Inc. v.
deception. Cf. Midland Nat’l Life Ins. Co., 263 N.L.R.B. 127,      NLRB, 965 F.2d 116, 119 (6th Cir. 1992). The Board’s
133 (1982) (prohibiting the use of forged documents); Van          findings of fact are conclusive if supported by substantial
Dorn Plastic Machinery Co. v. NLRB, 736 F.2d 343, 348 (6th         evidence. Evidence is substantial when it is “‘adequate, in a
Cir. 1984). The extent of the misrepresentation in this case is    reasonable mind, to uphold the [Board’s] decision.’” DTR
disputed; St. Francis alleges it was significant. Fourth, St.      Indus., Inc. v. NLRB, 39 F.3d 106, 110 (6th Cir. 1994)
Francis raises a material issue of fact on the source of the       (quoting Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292,
letter and whether employees could determine the source.           295 (6th Cir. 1985)). We must consider the record as a
Fifth, whether employees were affected by the alleged              whole, including evidence that runs contrary to the Board’s
misrepresentation is unclear; St. Francis has provided scant       findings. Id. Deference to the Board’s factual findings is
evidence that employees were affected by the letter. Finally,      particularly appropriate where conflicting testimony requires
the election’s closeness militates toward holding an               the Board to make credibility determinations. Tony Scott
evidentiary hearing.                                               Trucking, Inc. v. NLRB, 821 F.2d 312, 315 (6th Cir. 1987);
                                                                   see also V&S ProGalv, Inc. v. NLRB, 168 F.3d 270, 275 (6th
  Mindful that no set of factors governs whether or not an         Cir. 1999). The Board’s application of law to facts is also
evidentiary hearing is necessary, the material issues raised by    reviewed under the substantial evidence standard, and “‘the
St. Francis direct us to remand for an evidentiary hearing at      Board’s reasonable inferences may not be displaced on review
which the Board can resolve these factual questions and            even though the court might justifiably have reached a
determine the appropriate result. After this hearing, it is
4    NLRB v. St. Francis                  Nos. 98-6297/6401       Nos. 98-6297/6401                    NLRB v. St. Francis       37
     Healthcare Centre                                                                                  Healthcare Centre

different conclusion had the matter been before it de novo.’”                                    II.
V&S ProGalv, 168 F.3d at 275 (citation omitted).
                                                                    I also write separately on our decision to remand to the
                   II. The First Election                         Board for an evidentiary hearing on St. Francis’s objection to
                                                                  the Biddle letter.
                              A.
                                                                      Although St. Francis bears the burden in its quest to
   St. Francis is an Ohio not-for-profit corporation operating    overturn the election, see NLRB v. Gormac Custom Mfg., Inc.,
a rehabilitation hospital and skilled nursing facility in Green   190 F.3d 742, 746 (6th Cir. 1999), we must take the evidence
Springs, Ohio. In July 1996, District 1199 of the Union filed     presented by St. Francis in the light most favorable to the
a petition with the Board seeking to represent approximately      company, see NLRB v. Valley Bakery, Inc., 1 F.3d 769, 772
150 full- and part-time service and maintenance employees at      (9th Cir. 1993); Prestolite Wire Div. v. NLRB, 592 F.2d 302,
St. Francis’s facility. An election was held on October 3 and     306-307 (6th Cir. 1979). Here, St. Francis makes a showing
4, 1996; 71 employees voted against the Union, 60 voted for       of “substantial and material factual issues” which, if proven,
the Union, and there were 10 challenged ballots.                  would warrant setting aside the election. See 29 C.F.R.
                                                                  102.69(d) (stating that a “hearing shall be conducted with
  The Union filed objections to the election with the NLRB        respect to those objections or challenges which the regional
Regional Director. Following a hearing, a hearing officer         director concludes raise substantial and material factual
recommended that the election be set aside and a new election     issues”); NLRB v. Tennessee Packers, Frosty Morn Div., 379
be conducted, based upon three of the Union’s objections.         F.2d 172, 177-78 (6th Cir. 1967).
Specifically, the hearing officer found that St. Francis had:
(1) threatened that unionization would prevent St. Francis           As stated by the majority, in addition to the timing of the
from affiliating with a partner, forcing the facility to close    statement, “this court has considered other factors, including
within 18 months; (2) threatened to reduce or eliminate           whether the employer was aware of the communication and
current employee benefits during the bargaining process; and      had an opportunity to respond, the extent of the
(3) prohibited employees from wearing pro-Union insignia on       misrepresentation, whether the source of the
their uniforms and enforced its no-solicitation policy in a       misrepresentation was identified, and whether there is
discriminatory manner. St. Francis appealed this decision to      evidence that employees actually were affected by the
the Board, which adopted the hearing officer’s findings and       misrepresentation.” Mitchellace v. NLRB, 90 F.3d 1150,
recommendations and ordered a new election.                       1155 (6th Cir. 1996). We also note the closeness of the
                                                                  election. See Gormac Custom Mfg., 190 F.3d at 747; see also
  We proceed to address the Board’s three grounds for             Valley Bakery, 1 F.3d at 773 (“The need for a hearing is
ordering a second election.                                       particularly great when the election is close.”); NLRB v.
                                                                  Bristol Spring Mfg. Co., 579 F.2d 704, 707 (2d Cir. 1978).
                                                                    The majority finds that St. Francis raises material issues of
                                                                  fact on at least four of these five points. While I agree that St.
                                                                  Francis raises sufficient issues of material fact to support
                                                                  holding an evidentiary hearing, I do not believe that St.
36   NLRB v. St. Francis                   Nos. 98-6297/6401       Nos. 98-6297/6401                    NLRB v. St. Francis       5
     Healthcare Centre                                                                                   Healthcare Centre

testified that Storer stated, for example, that they would “have                                  B.
to start from zero and work up to regain the benefits” they
had. These statements do not merely indicate that, as the           St. Francis’s Statements Concerning Facility’s Long-
majority states, the employees “would need to negotiate to                             Term Viability
achieve their current benefits once bargaining began,” but that
St. Francis would begin from zero if the workers unionized.                                       1.
See NLRB v. Construction & Gen. Laborers’ Union, Local
No. 534, 778 F.2d 284, 291 (6th Cir. 1985) (noting that “the          St. Francis’s management decided in 1995 to seek potential
speaker’s intent must be inferred from the circumstances as        partners in the health care industry in order to compete more
they appear to the reasonable person,” and that “assertions        effectively. The company conducted monthly “open forum”
that the employer will ‘bargain from scratch’ are unfair labor     meetings at which senior management shared, with all
practices”). Second, the unsigned pro-management leaflet,          employees who chose to attend, strategic information about
which stated that the company would begin bargaining at “0”,       the company and its financial situation and explored the
provides additional evidence supporting the Board’s                possibility of affiliation. At a September 18, 1996, open
conclusion that the company violated Section 8(a)(1) of the        forum conducted during the Union’s organizing campaign, an
Act. Further, St. Francis’s oral and written statements were       employee asked St. Francis’s CEO, Gregory Storer, whether
made in the context of a campaign in which other violations        a vote for Union representation would affect the ability to find
of the Act occurred, including the hallmark violation of           a partner. Storer testified before the hearing officer that he
threatened plant closure.                                          responded by explaining that the most likely partner did not
                                                                   have any organized labor contracts and had expressed
  We may not reverse the Board’s reasonable inferences             “concerns” about labor organization at St. Francis. According
“even though [we] might justifiably have reached a different       to Storer, he told employees that the potential partner “wanted
conclusion had the matter been before [us] de novo.” Tony          to know how it was going and the progress and when the vote
Scott Trucking, Inc. v. NLRB, 821 F.2d 312, 313 (6th Cir.          was going to take place.” Another employee attending the
1987). In light of the above evidence presented to the ALJ, I      open forum then asked Storer how long St. Francis could
believe that substantial evidence exists to support the Board’s    survive without a partner. According to Storer, he responded
determination. This evidence is such that “‘a reasonable mind      that the organization’s current cash reserves would probably
might accept as adequate to support’” the Board’s conclusion.      allow it to operate for about 18 months.
Contech Div., SPX Corp. v. NLRB, 164 F.3d 297, 305 (6th
Cir. 1998), cert. denied, 120 S.Ct. 64 (1999) (quoting               Employees recalled Storer’s statements during the
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229                 September 18 open forum somewhat differently, testifying as
(1938)).                                                           follows:

  Because we find independent violations of the Act, the           1.   According to Colleen Kimmet, a nurse, Storer stated that
majority’s determination of this issue does not require                 St. Francis needed to affiliate with another institution,
overturning the Board’s decision on the first election.                 and that “no hospital or institution would want to affiliate
Accordingly, I concur in the majority’s resolution of the               with St. Francis if it was unionized, and without
challenge to the first election.                                        affiliation St. Francis would close in a year and a half.”
6     NLRB v. St. Francis                  Nos. 98-6297/6401      Nos. 98-6297/6401                 NLRB v. St. Francis     35
      Healthcare Centre                                                                              Healthcare Centre

2.   Karen Slagle, a housekeeper, testified that “[Storer] said                       _________________
     that if the union got in that other hospitals would not
     want to affiliate with us and that financially our doors                          CONCURRENCE
     would close in a year and a half.” Slagle then responded                         _________________
     to a question from the Union representative:
                                                                    R. GUY COLE, JR., Circuit Judge, concurring.                I
      Q: . . . And so [Storer] told people that hospitals         respectfully write separately to address two points.
     wouldn’t take you if you voted for the union, is that
     what you–                                                                                 I.

       A: It wouldn’t be attractive to other hospital               First, although I agree with the majority’s conclusion that
     groups.                                                      the Board’s decision to set aside the first election was
                                                                  supported by substantial evidence, I disagree with the
3.   Melanie Ott, a nurse’s assistant, recalled that Storer       majority’s rejection, in Part II.C., of the Board’s
     stated that “if the union got in that nobody would be        determination that St. Francis threatened to bargain “from
     affiliated with us because they wouldn’t work with a         scratch,” thereby violating Section 8(a)(1) of the Act.
     unionized facility. And if it got through that the doors
     would close within a year, year and a half, because we         I agree with the majority that the record contains evidence
     couldn’t stand alone.”                                       to support St. Francis’s position that its statements were
                                                                  intended to inform employees about the bargaining
4.   According to Naomi Rose, a patient care technician,          consequences of union representation. For example, the two
     Storer stated “that the alliance would not join with us if   memorandum issued by St. Francis present a relatively
     we was union, and that if we became union St. Francis        balanced and permissible presentation of the impact of
     would have to close in a year and a half, because nobody     unionization.
     would affiliate with us.” On cross-examination, the
     following colloquy took place:                                 However, the record also contains evidence that St. Francis
                                                                  made impermissible threats regarding bargaining with the
       Q: . . . [Y]ou understood that his remarks were            union.
     based upon the inability of the hospital to affiliate in
     the event the union were voted in?                               It is well established that “bargaining from ground
                                                                    zero” or “bargaining from scratch” statements by
       A: Yes, sir.                                                 employer representatives violate Section 8(a)(1) of the
                                                                    Act if, in context, they reasonably could be understood
       Q: . . . And he expressed his belief that the facility       by employees as a threat of loss of existing benefits and
     would not be an attractive candidate for affiliation if        leave employees with the impression that what they may
     the union were voted in?                                       ultimately receive depends upon what the union can
                                                                    induce the employer to restore.
       A: Yes, sir.
                                                                  Taylor-Dunn Mfg. Co., 252 N.L.R.B. 799, 800 (1980). The
                                                                  ALJ heard testimony from employees at the open forum who
34   NLRB v. St. Francis                Nos. 98-6297/6401     Nos. 98-6297/6401                   NLRB v. St. Francis        7
     Healthcare Centre                                                                             Healthcare Centre

enforcement of its bargaining order. We REMAND to the               Q: And for that reason, without affiliation, . . . the
Board to conduct a Van Dorn hearing on St. Francis’s Biddle       facility would close?
letter objection to the second election.
                                                                     A: Yes, sir.
                                                                Pro-management literature also addressed affiliation. For
                                                              example, Sue Fretz, an RN manager who supervised
                                                              approximately 80 employees, admitted that she obtained from
                                                              management a “doctored” Union leaflet which stated, in part:
                                                                HOW WILL THE UNION HELP US WHEN THE
                                                                FACILITY CLOSES IT’S [SIC] DOORS BECAUSE
                                                                THE UNION KEEPS US OUT OF LARGER
                                                                HEALTHCARE SYSTEMS AND THE FINANCIAL
                                                                SUPPORT THAT COMES FROM THESE
                                                                AFFILIATIONS????
                                                                EVERYONE WILL BE LOOKING FOR JOBS!!!!!
                                                              Fretz circulated this leaflet to her subordinates at meetings,
                                                              highlighting the language concerning affiliation and warning
                                                              that unionization could jeopardize the facility’s affiliation
                                                              prospects.
                                                                 The hearing officer credited the employees’ testimony over
                                                              Storer’s testimony and concluded that Storer’s predictions
                                                              about the impact of unionization on affiliation were
                                                              exaggerated. Taken in conjunction with the prediction that
                                                              the facility would close within 18 months without a partner,
                                                              the hearing officer found that Storer effectively threatened to
                                                              close the facility in violation of NLRB v. Gissel Packing Co.,
                                                              395 U.S. 575 (1969). The Board adopted the hearing officer’s
                                                              findings and ordered a new election based, in part, on these
                                                              findings.
                                                                                            2.
                                                                St. Francis contends that the record does not support a
                                                              threat. It maintains that Storer merely represented that
                                                              unionization had the potential to disrupt affiliation, and that
8      NLRB v. St. Francis                  Nos. 98-6297/6401      Nos. 98-6297/6401                   NLRB v. St. Francis     33
       Healthcare Centre                                                                                Healthcare Centre

this prediction was supported with objective evidence,               St. Francis contends that the six-month statute of
specifically, the “concerns” raised by one potential affiliate.    limitations period under 29 U.S.C. § 160(b) began to run
                                                                   with its July 1997 refusal to bargain and did not start anew
  Section 8(a)(1) of the National Labor Relations Act              with its March 1998 refusal. The Board maintains that the
(NLRA) prohibits interference, restraint, or coercion of           March 3, 1998, refusal constituted an independent unfair
employees in the exercise of the right to self-organization.       labor practice, and the unfair labor practice charge was filed
29 U.S.C. § 158(a)(1).                                             within six months of that refusal. The Board reasons that the
                                                                   March 1998 refusal was independent of the earlier refusal
    “The test for determining whether an employer has              because it fell within one year of the Union certification,
    violated section 8(a)(1) is whether the employer’s             during which time St. Francis was under a continuing
    conduct tends to be coercive or tends to interfere with the    obligation to bargain. See Brooks v. NLRB, 348 U.S. 96, 104
    employees’ exercise of their rights. In making this            (1954).
    determination, the Board considers the total context in
    which the challenged conduct occurs and is justified in          We reject St. Francis’s argument. First, we note that the
    viewing the issue from the standpoint of its impact upon       six-month limitations period is procedural, not jurisdictional,
    the employees.”                                                and is therefore “subject to recognized equitable doctrines.”
                                                                   Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 395 n.11
United Parcel Serv. v. NLRB, 41 F.3d 1068, 1071-72 (6th Cir.       (1982); see also NLRB v. Babcock & Wilcox Co., 697 F.2d
1994) (citations omitted).                                         724, 727 (6th Cir. 1983). In NLRB v. Basic Wire Products,
                                                                   Inc., 516 F.2d 261, 268 (6th Cir. 1975), we held that
  Like the Board, we must consider the effect of statements        successive refusals to bargain within one year of union
made during a union election campaign from the employees’          certification constitute independent unfair labor practices for
perspective, taking into account “the economic dependence of       purposes of applying the six-month limitations period. See
the employees on their employers, and the necessary tendency       also Bentson Contracting Co. v. NLRB, 941 F.2d 1262, 1264
of the former, because of that relationship, to pick up intended   n.2 (D.C. Cir. 1991). Moreover, even if we were inclined to
implications of the latter that might be more readily dismissed    revisit our holding in Basic Wire Products, we need not
by a more disinterested ear.” Indiana Cal-Pro, Inc. v. NLRB,       address the timeliness of the unfair labor practice charge
863 F.2d 1292, 1299 (6th Cir. 1988) (internal quotation marks      given our other holdings. The Board erroneously denied St.
and citations omitted).                                            Francis’s request for review of the second election on June
                                                                   16, 1997—almost one month before the Union’s first
  Management’s expression of views or opinion is                   bargaining request. This renders moot the timeliness of the
permissible if the expression contains “no threat of reprisal or   unfair labor practice charge emanating from St. Francis’s
force or promise of benefit.” 29 U.S.C. § 158(c). Thus, the        refusal to bargain.
Supreme Court has held that an employer may
                                                                                                V.
    make a prediction as to the precise effects he believes
    unionization will have on his company. In such a case,           We DENY St. Francis’s petition for review on the first
    however, the prediction must be carefully phrased on the       election, GRANT St. Francis’s petition for review on the
    basis of objective fact to convey an employer’s belief as      second election, and DENY the Board’s application for
    to demonstrably probable consequences beyond his
32   NLRB v. St. Francis                  Nos. 98-6297/6401       Nos. 98-6297/6401                   NLRB v. St. Francis          9
     Healthcare Centre                                                                                 Healthcare Centre

   The Board argues as a last resort that St. Francis cannot        control . . . . If there is any implication that an employer
challenge the failure to conduct an evidentiary hearing on the      may or may not take action solely on his own initiative
Biddle letter objection because St. Francis never asked the         for reasons unrelated to economic necessities and known
Board for an evidentiary hearing. This argument is both             only to him, the statement is no longer a reasonable
factually and legally incorrect. In asking the Board to review      prediction based on available facts but a threat of
the Regional Director’s certification of the second election,       retaliation based on misrepresentation and coercion [and
St. Francis addressed the Biddle letter, among other                in violation of the NLRA].
objections. At the conclusion of its request, St. Francis asked
the Board to either order a rerun election or “hold a hearing     Gissel Packing Co., 395 U.S. at 618 (citations omitted); see
and further develop the evidence in this matter.” Moreover,       also Indiana Cal-Pro, 863 F.2d at 1298. If an employer
the Board was required to hold a hearing once St. Francis         succeeds in articulating an objective basis for its prediction,
succeeded in raising substantial and material factual issues      the Board bears the burden of demonstrating that the
surrounding the Biddle letter.         “‘[I]n the course of       prediction was not objective or was untruthful. DTR Indus.,
determining whether the Board has abused the discretion           39 F.3d at 114.
entrusted to it by Congress to adjudicate representation
disputes fairly, we must satisfy ourselves that the Board’s         Although the matter is not entirely free from doubt, we
order is the product of procedures which are fundamentally        conclude that we must agree with the Board’s determination
fair.’” Gormac, 190 F.3d at 746 (quoting Shrader’s, 928 F.2d      that Storer threatened facility closure in violation of section
at 198).                                                          8(a)(1). This threat was comprised of two predictions: (1)
                                                                  that no entity would affiliate with St. Francis if the Union
  We conclude, therefore, that the Board abused its discretion    won the election; and (2) that St. Francis could not operate
in refusing to grant an evidentiary hearing to evaluate the       longer than 18 months if it failed to affiliate with a partner.
Biddle letter under Van Dorn and its progeny.                     The parties do not dispute the content or objective basis for
                                                                  the second prediction.
                IV. Statute of Limitations
                                                                     Rather, the dispute centers on the first prediction and,
   Finally, St. Francis maintains that the Board, and therefore   specifically, what Storer said and his objective basis for such
this court, lacked jurisdiction over the Union’s unfair labor     statement. We defer to the Board’s finding that Storer
practice charge because the charge was untimely. On July 14,      predicted that no partner would want to affiliate with St.
1997, following the Regional Director’s certification of the      Francis if the facility elected the Union. We see no reason to
second election, the Union sent a letter to St. Francis           disturb this credibility determination, which the hearing
requesting dates for collective bargaining. In its July 28,       officer based upon the cumulative testimony of employee
1997, response letter, St. Francis refused to bargain and         witnesses and his observations of witness demeanor. St.
advised the Union that it intended to seek judicial review of     Francis has failed to articulate an objective basis for this
the certification. On February 20, 1998, the Union again          prediction. St. Francis insists that the most likely partner had
requested bargaining. In a March 3, 1998, response letter, St.    expressed “concerns” about possible unionization at St.
Francis directed the Union to its earlier refusal. The Union      Francis. However, this evidence hardly supports the
filed its unfair labor practice charge with the NLRB on           prediction that no company would want to affiliate with St.
March 11, 1998.                                                   Francis if the employees elected a union. Viewing Storer’s
10   NLRB v. St. Francis                  Nos. 98-6297/6401       Nos. 98-6297/6401                   NLRB v. St. Francis      31
     Healthcare Centre                                                                                 Healthcare Centre

statements from the perspective of employees, his                 the election decisively. The closeness of the results of the
exaggeration of the objective evidence was material. Thus,        second election, standing alone, may be insufficient to support
substantial evidence supports the Board’s finding that Storer’s   a finding that the Biddle letter actually affected employees.
exaggerated prediction violated section 8(a)(1)’s prohibition     But we view this evidence in the context of the overall Union
on coercing employees in the exercise of their organization       election campaign. St. Francis established a material issue of
rights.                                                           fact as to the impact of the Biddle letter because: (1) the
                                                                  Union lost the first election by an even greater margin than
   St. Francis argues, in the alternative, that Storer’s          that by which it won the second election; (2) employees did
statements occurred too far before the election to interfere      not see the Biddle letter during the first election campaign;
with employees’ free and fair choice. Timing is one of the        and (3) the Biddle letter touched on a significant and
objective factors that the Board considers in determining         contested issue in the campaign.
whether forbidden statements were reasonably likely to
interfere with employees’ free choice. See NLRB v. Dickinson         The Board insists that it was unnecessary to conduct the
Press, Inc., 153 F.3d 282, 286 (6th Cir. 1998). However, it is    foregoing analysis in this case because the employees were
not dispositive. Thus, in Peabody Coal Co. v. NLRB, 725           capable of recognizing the Biddle letter as campaign
F.2d 357 (6th Cir. 1984), we upheld the Board’s                   propaganda and accord it the proper weight. The Board cites
determination that the employer engaged in misconduct             Contech, 164 F.3d 297, in support of its contention. The
during a representation election by making unsupported            Board’s approach is clearly at odds with Van Dorn and its
predictions of plant closure where those predictions occurred     progeny. First, Contech is distinguishable from this case, as
three and four weeks before the election. In this case, the       the alleged misrepresentations in Contech appeared in Union
threat occurred approximately two weeks before the election.      letters and there was no evidence of “pervasive
Given that threats of facility closure are among the most         misrepresentation or artful deception.” Id. at 307. In contrast,
flagrant variety of unfair labor practices, DTR Indus., 39 F.3d   the Biddle letter was not readily identifiable as campaign
at 113, and are likely to be difficult to dispel when viewed      propaganda because it appeared to be a personal message
from the employees’ perspective, we see no reason to disturb      from a former co-worker, was handwritten in letter rather than
the Board’s finding based on the timing of the threat.            leaflet form, and used language such as “we” and “fellow co-
                                                                  workers.” See Dayton Hudson, 987 F.2d at 365. Most
                             C.                                   importantly, labeling material as “propaganda” does not
                                                                  insulate the material from consideration under Van Dorn.
 St. Francis’s Representations Concerning Bargaining              Such an approach would effectively eviscerate Van Dorn
                        Posture                                   because virtually any representation made in the context of a
                                                                  union campaign could be characterized as propaganda. Thus,
                              1.                                  even if employees are capable of recognizing literature as
                                                                  campaign propaganda—based on its source or content—a
  During an August 6, 1996, open forum, an employee asked         misrepresentation in the propaganda may be so artful or
what benefits would be available if the employees voted for       deceptive that it overcomes the employees’ natural
Union representation. According to Storer, he responded that      skepticism, “resulting in employees believing that the
bargaining in contract negotiations involves a give and take,     campaign propaganda must absolutely be true.” Hub Plastics,
that employees may keep something and may lose something,         52 F.3d at 613.
and that “everything is negotiable.” He recalled using the
30   NLRB v. St. Francis                   Nos. 98-6297/6401       Nos. 98-6297/6401                  NLRB v. St. Francis     11
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   The third, and most important, factor favors St. Francis.       words “start[ing] from scratch” in describing the bargaining
See Gormac, 190 F.3d at 748. First, it is undisputed that the      process. Storer denied stating that employees would lose their
management raise issue was hotly contested in the days             benefits before bargaining began, or that minimum wage with
leading up to the second election. The Union’s campaign            no benefits was the starting point for bargaining.
literature suggested that management’s greed was detrimental
to the employees’ work environment and to St. Francis’s               The Union presented testimony from two employees who
overall patient care mission. The management raise issue was       attended the August 6 open forum. Employee Rose recalled
closely related to one of the central issues in both               Storer stating that bargaining starts “from zero” and that if
campaigns—St. Francis’s long-term financial viability.             employees wanted the level of benefits they currently enjoyed,
Second, the Biddle letter insinuates that St. Francis              they would need to negotiate it and it was “not guaranteed
intentionally lied to its employees by denying that it gave        that [they would] get them.” According to employee Kimmet,
raises and engaged in deceptive practices by backdating the        Storer stated that everything was up for negotiation, nothing
raises. Thus, the letter challenges St. Francis’s overall          was guaranteed, and employees would start from zero and
credibility, even apart from the management raise issue. See       “negotiate back up” or “work up to regain the benefits.”
NLRB v. Hub Plastics, Inc., 52 F.3d 608, 612 (6th Cir. 1995).
                                                                      On August 21, 1996, St. Francis distributed campaign
  Fourth, we find that St. Francis has established an issue of     literature to its employees stating, in relevant part:
material fact as to the source of the Biddle letter. There
appears to be no dispute, at least at this juncture, that Biddle     While bargaining goes on, wages, benefits and working
wrote and signed the letter. However, St. Francis offered            conditions typically remain as they have been until an
evidence that the Union was responsible for mailing the letter       agreement has been reached.
to the employees. Contrary to the Board, we do not believe
that most employees would assume that the letter was Union-          ....
sponsored propaganda simply because it addressed an issue
that the Union had raised in earlier campaign literature.            Collective bargaining is a gamble — with your wages,
Likewise, although the Biddle letter states that the Union had       benefits and working conditions on the table . . . .
helped Biddle fight for “[her] rights,” the letter does not          Collective bargaining means that you could possibly end
suggest that the Union had any involvement in drafting,              up with more, the same, or less than you have now.
sponsoring, or circulating her letter. Cf. Gormac, 190 F.3d at     (Emphasis in original.)
749. No Union insignia appeared on the letter or the
envelope, the letter was handwritten, and only Biddle’s return       In a September 4, 1996, memorandum to employees, Storer
address appeared on the envelope.                                  noted that employees had inquired about the bargaining
                                                                   process following the August 21 memorandum. The
  The fifth factor also weighs in favor of St. Francis, albeit     September 4 memorandum, in question-and-answer format,
somewhat less strongly than the third or fourth factors. The       included the following description of bargaining:
second election was relatively close, with 68 employees
voting for the Union, 61 voting against the Union, and six           QUESTION: The union said negotiations mean we
challenged votes. Even ignoring the challenged ballots, if the                 keep what we have and change what we
Biddle letter affected the vote of four employees, it impacted                 do not like. Is this true?
12   NLRB v. St. Francis                 Nos. 98-6297/6401      Nos. 98-6297/6401                    NLRB v. St. Francis      29
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  [ANSWER:] Negotiations are a process of give and              that employees did not actually receive the letter until two
            take. If you have a union, it would mean            days before the election, at most, and perhaps one day. We
            you are willing to give them your wages,            explicitly disapproved of such conduct in an analogous case
            benefits, and other things you have now.            where a letter overstating the company’s profits was mailed
            The union will bring these things to the            to employees three days before an election. Dayton Hudson
            Facility and negotiate. In the end you              Dep’t Store Co. v. NLRB, 79 F.3d 546, 551 (6th Cir. 1996).
            could end up with more, the same, or
            less than what you have now.                           The second factor is St. Francis’s opportunity to respond to
                                                                the alleged misrepresentations. We reject the Board’s
                  The union may say you will get more,          contention that St. Francis had an adequate opportunity to
                  but there are no guarantees. Again,           address the management raise issue because St. Francis
                  negotiations involve a process of give        circulated a letter to all employees one week before the
                  and take and YOU COULD LOSE.                  election. The Biddle letter appeared after St. Francis’s letter
                                                                and raised a serious question as to the veracity of St. Francis’s
St. Francis distributed a similar memorandum on September       earlier representations. Thus, our analysis focuses on St.
24, 1996, stating that employees “must negotiate your wages,    Francis’s opportunity to respond to the Biddle letter, in
benefits, and working conditions through the bargaining         particular, rather than its opportunity to address the general
process where you could gain, stay the same or lose.”           management raise issue.
Another pro-management leaflet of uncertain origin warned
employees not to:                                                  We first note that the nature of the alleged
                                                                misrepresentations, which directly challenged St. Francis’s
  FORGET that everything will start at “0” when the             overall credibility, may well have undermined St. Francis’s
  contract negotiations begin!! We could be GIVING UP           ability to develop an effective response. While St. Francis
  what we take for granted . . . ACCUMULATIVE PTO,              could have undermined Biddle’s credibility by publicizing the
  DRESS DOWN DAYS, ETC. . . . Things could get a lot            true reason for her discharge, it chose not to do so out of
  WORSE instead of better!                                      concern for Biddle’s privacy. St. Francis presented to the
                                                                Regional Director an affidavit from its Human Resources
  Based on this evidence, the hearing officer found that        Director, Joan Schmidt, stating that she learned of the Biddle
Storer had stated that bargaining would start “from zero” and   letter one day before the election. In a separate letter to the
employees would need to “bargain up” to regain the benefits     Regional Director, St. Francis explained that “Storer and
they already had. While some literature used more balanced      other managers were able to respond to some questions from
language, the pro-management leaflet from an unidentified       employees in the day or two preceding the election about the
source used the “start at ‘0’” phrase. The officer held that    statements made in Biddle’s letter . . . .” (Emphasis added.)
these oral and written statements constituted an unlawful       This evidence suggests that St. Francis may have had at least
threat to reduce employee benefits and begin bargaining at      some opportunity to address the Biddle letter before the
zero if the employees voted for Union representation. The       election. The direction in which this second factor points is,
Board adopted these findings.                                   therefore, unclear.
28    NLRB v. St. Francis                   Nos. 98-6297/6401       Nos. 98-6297/6401                   NLRB v. St. Francis      13
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  deceptive manner in which it was made, a manner which                                            2.
  renders employees unable to evaluate the forgery for
  what it is.                                                         St. Francis contends that it properly advised employees
                                                                    about the potential consequences of choosing Union
Id. at 133 (footnotes omitted), quoted in Dayton Hudson             representation, asserting that there was no evidence to support
Dep’t Store Co. v. NLRB, 987 F.2d 359, 364-65 (6th Cir.             the Board’s conclusion that Storer threatened to reduce
1993). We carved out a narrow exception to Midland                  benefits. The Board insists that this issue is one of witness
National in Van Dorn, holding:                                      credibility, and that the employees’ testimony demonstrated
                                                                    St. Francis’s intent to adopt a regressive bargaining posture.
  There may be cases where no forgery can be proved, but
  where the misrepresentation is so pervasive and the                 It is not unlawful for an employer to adopt a hard
  deception so artful that employees will be unable to              bargaining posture in labor negotiations. To the contrary,
  separate truth from untruth and where their right to a free       hard bargaining is “countenanced by the NLRA as an
  and fair choice will be affected. We agree with the               inevitable aspect of labor-management relations.” NLRB v.
  Board that it should not set aside an election on the basis       Gibraltar Indus., Inc., 653 F.2d 1091, 1096 (6th Cir. 1981).
  of the substance of representations alone, but only on the        Thus, an employer may represent during an election campaign
  deceptive manner in which representations are made.               that it will adopt a hard bargaining posture if a union is
                                                                    elected. Such a prediction, taken alone, does not interfere
736 F.2d at 348.                                                    with the employees’ free and fair choice.
  We apply this standard by assessing a number of factors,             On the other hand, where an employer “convey[s] the
including: (1) the timing of the misrepresentation; (2)             message that a consequence of the selection of the union
whether the employer had an opportunity to respond; (3) the         would be the discontinuance of existing benefits and a ‘start
nature and extent of the misrepresentation; (4) whether the         from scratch,’” such a statement may have a coercive effect
source of the misrepresentation was identified; and (5)             that violates the NLRA. Surprenant Mfg. Co. v. NLRB, 341
whether there is evidence that employees were affected by the       F.2d 756, 761 (6th Cir. 1965). In assessing such a
misrepresentation. Gormac, 190 F.3d at 747 (citing                  representation, the Board must consider the timing of the
Mitchellace, Inc. v. NLRB, 90 F.3d 1150, 1155 (6th Cir.             statement, the opportunity of the union to respond, and the
1996)). The closeness of the election is an important               content of the union’s responses.         Automation and
consideration in evaluating the fifth factor. See id. None of       Measurement Div., Bendix Corp. v. NLRB, 400 F.2d 141, 146
the factors, standing alone, is dispositive.                        (6th Cir. 1968).
   We are satisfied that St. Francis presented evidence raising,      The Board’s finding that St. Francis threatened to decrease
at a minimum, material factual disputes as to at least four of      or eliminate existing benefits before bargaining began is not
these five factors. If proven, this evidence would justify          supported by substantial evidence on the record as a whole.
setting aside the second election. First, the timing of the         First, Storer’s admitted statement that negotiations would start
Biddle letter cuts in favor of St. Francis. St. Francis presented   “from zero” or “from scratch” was—taken alone—a
evidence that the Biddle letter was mailed three days before        permissible prediction of a hard bargaining posture. The
the election directly to the employees’ homes, rather than          hearing officer nevertheless couched his conclusion of an
being distributed at the workplace. It is reasonable to infer
14   NLRB v. St. Francis                  Nos. 98-6297/6401       Nos. 98-6297/6401                   NLRB v. St. Francis      27
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unlawful threat in terms of “credibility,” explaining that he     to conduct a review consistent with our decision in Van Dorn
found the testimony of Rose and Kimmet more believable            and its progeny.
than Storer’s testimony. We see no reason to disturb this
credibility determination. However, the testimony of Rose            The Board argues that the Regional Director correctly held
and Kimmet does not support a finding that Storer threatened      that Van Dorn did not require an evidentiary hearing in this
to reduce or eliminate benefits before bargaining began. We       case because the Biddle letter was not forged or deceptive. It
recognize that our review of the Board’s inferences from the      is the Board’s position that the employees could recognize the
factual evidence “‘is limited to the determination of             Biddle letter as Union propaganda given the letter’s content
reasonableness—not rightness.’” NLRB v. Kentucky May              and the fact that the Union had previously publicized the pay
Coal Co., 89 F.3d 1235, 1242 (6th Cir. 1996) (quoting NLRB        raise issue in its campaign.
v. Paschall Truck Lines, Inc., 469 F.2d 74, 76 (6th Cir.1972)).
We find, however, that the Board’s inference from the               We review a Board’s decision to uphold or set aside an
employees’ testimony was unreasonable. Rose’s and                 election in light of campaign misrepresentations for abuse of
Kimmet’s testimony—that employees would need to                   discretion. Van Dorn, 736 F.2d at 347. The Board abuses its
negotiate to achieve their current benefits once bargaining       discretion if it refuses to grant an evidentiary hearing when
began—merely explained the permissible bargaining “from           material issues of fact exist as to whether a fair election was
zero” statement in more concrete terms.                           held. However, we will remand a case for an evidentiary
                                                                  hearing only where “an employer’s objections and supporting
   Even assuming arguendo that Storer did threaten during the     proofs indicate that there exist material, factual disputes with
August 6 open forum that employee benefits would be               the Regional Director’s report which, if proved, demonstrate
reduced or eliminated before negotiations began, the timing       that the election should be overturned.” Colquest Energy,
of this statement and later events remedied any possible          965 F.2d at 119; see also NLRB v. Gormac Custom Mfg., Inc.,
coercive effect. The statement was made to a limited number       190 F.3d 742, 746 (6th Cir. 1999).
of employees who chose to attend the open forum almost two
months before the election, giving the Union ample                   We adhere to the standards articulated under Midland
opportunity to respond. As it happened, no response was           National Life Insurance Co., 263 N.L.R.B. 127 (1982), and
necessary because St. Francis’s own campaign literature           Van Dorn, 736 F.2d 343, in evaluating whether campaign
distributed after August 6 obviated any threat to reduce or       literature unlawfully interfered with the employees’ free
eliminate benefits before bargaining began. That literature,      choice in a representation election. In Midland National, the
which was addressed to all employees, explicitly stated that      Board adopted the following rule:
employees could expect to remain at their current levels of
pay and benefits during negotiations but could ultimately lose      [W]e will no longer probe into the truth or falsity of the
or gain benefits as a result of the bargaining process.             parties’ campaign statements, and . . . we will not set
Contrary to the hearing officer’s suggestion, the reference in      elections aside on the basis of misleading campaign
one piece of literature to bargaining “from zero” was entirely      statements. We will, however, intervene in cases where
permissible and was not coercive.                                   a party has used forged documents which render the
                                                                    voters unable to recognize propaganda for what it is.
  Our rejection of the Board’s finding that St. Francis             Thus, we will set an election aside not because of the
threatened to reduce or eliminate benefits does not require us      substance of the representation, but because of the
26    NLRB v. St. Francis                   Nos. 98-6297/6401        Nos. 98-6297/6401                   NLRB v. St. Francis      15
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   In objecting to the results of the second election, St. Francis   to reverse the Board’s decision to set aside the first election,
argued to the Regional Director that the Biddle letter included      however. That decision properly was based on the totality of
misrepresentations that interfered with the employees’ ability       circumstances, rather than a single incident. See Contech,
to decipher the truth. St. Francis stated that it could offer        164 F.3d at 306. Therefore, we consider all of those
evidence that: (1) Biddle’s claim about the raises was untrue;       circumstances in reviewing the Board’s decision.
(2) that the Union owned the postage meter used to mail the
Biddle letter to employees; and (3) that Biddle had been                                           D.
discharged for falsifying paid-time-off records. St. Francis
argued that Biddle’s misrepresentations were severely                     St. Francis’s Enforcement of its Uniform Policy
damaging to the employer’s credibility on this key campaign
issue given Biddle’s former position as a St. Francis human                                         1.
resources secretary, which gave her access to payroll
information and thereby bolstered her credibility. The                 St. Francis’s established guidelines for employee
Regional Director, citing our decision in Van Dorn Plastic           appearance provided that “[o]ther than name tags and school
Machinery Co. v. NLRB, 736 F.2d 343 (6th Cir. 1984),                 or service pins, absolutely no other badges or buttons shall be
rejected the employer’s argument without a hearing,                  affixed to any employee’s uniform or clothing.” Two
concluding that the letter was                                       employees testified that their supervisors instructed them to
                                                                     remove a Union button bearing a written message during the
  typical campaign propaganda that surfaces almost                   campaign. Several employees testified that they were also
  invariably in strongly contested union campaigns. I do             instructed to remove purple “smiley face” buttons that were
  not believe the fact that Biddle had recently been                 known to express Union support but contained no written
  discharged from a position as a human resources                    message. The Union presented evidence that employees
  secretary made it impossible for employees to ascertain            regularly wore other types of buttons, such as sports logos and
  the value of this particular piece of literature.                  other symbols, which they were not asked to remove. Both
                                                                     Storer and a St. Francis supervisor testified that St. Francis
                               2.                                    changed its position shortly after employees started wearing
                                                                     the “smiley face” pins to allow Union supporters to wear
  St. Francis contends that the Biddle letter had a devastating      these pins. St. Francis continued to prohibit the Union pin
impact on the outcome of the second election because Biddle          bearing a written message.
did not acknowledge that she was writing with the Union’s
cooperation and because she falsely alleged that management             The hearing officer credited the testimony of several
had received a raise within the past year. The Biddle letter         employees who stated that they were ordered to remove
“compounded” her falsehood by discrediting any                       Union pins from their uniforms and that other types of pins
documentary evidence that St. Francis might offer in                 were permitted in the facility. He also found that
response, falsely alleging that check amounts were backdated         management had made a conscious decision to permit
and the difference was given in a separate check. St. Francis        employees to wear the “smiley face” pin a few days after
insists that the results of the second election should be set        those pins appeared. The hearing officer concluded that St.
aside and a new election ordered. In the alternative, St.            Francis’s restriction on wearing Union insignia was unlawful
Francis argues that the issue should be remanded to the Board        because St. Francis failed to demonstrate any special
                                                                     circumstances to justify the restriction. He discounted St.
16    NLRB v. St. Francis                   Nos. 98-6297/6401        Nos. 98-6297/6401                    NLRB v. St. Francis      25
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Francis’s decision to permit the smiley face pin as “nothing         had received a raise since March 1996 and that Storer had not
more than an attempt by the Employer to impress employees            received a raise since October 1995. Subsequently, a letter
with the control it exercises over their right to support a          purportedly authored by a former employee of St. Francis’s
union.” The Board adopted these findings.                            human resources department, Shelly Biddle, was mailed to all
                                                                     bargaining unit members at their homes. The letter was
                               2.                                    postmarked March 17—just three days before the
                                                                     election—and stated as follows:
   St. Francis argues that it was justified in enforcing its
appearance guideline to prohibit employees with patient                . . . I was not an eligible voter but I had access to
contact from wearing Union pins on their uniforms. It                  administrative procedures and I know that administration
discounts the evidence that employees were permitted to wear           did not follow their own policies. Workers were unjustly
other kinds of pins on their uniforms, arguing that these pins         fired, written up, and threatened for managements [sic]
were smaller than the Union pins. Given its decision to                own selfish reasons. According to a letter from [St.
permit the purple “smiley face” pins shortly after they                Francis], no raises were given to management. I can tell
appeared, St. Francis contends that its prohibition on pins had        you this is not true. Raises were given to certain
a de minimis impact, at most. On the other hand, the Board             members of management. Not only did they receive a
argues that St. Francis failed to demonstrate any special              raise, but the amount was back dated and the difference
circumstances to justify its prohibition on Union pins. We             was given in a separate check. Their inconsistencies not
find that substantial evidence supports the Board’s                    only cost myself and fellow co-workers their jobs, but
conclusion. We note that this type of misconduct would                 created intimidation and fear for our co-workers.
likely be insufficient, in and of itself, to justify setting aside
an election. However, we consider it as part of the totality of        Even the federal government has said that management
circumstances surrounding the first election.                          is not credible. If I could vote I would vote YES and I
                                                                       hope and pray that all employees eligible to vote will do
   The NLRA protects employees’ “right to self-organization,           the same. You now have a second chance to make
to form, join, or assist labor organizations, to bargain               changes inside St. Francis. Vote yes . . . to start the
collectively through representatives of their own choosing,            process of change.
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection.”              I’m in full support of all St. Francis employees that are
29 U.S.C. § 157. An employer who interferes with these                 scared, but it’s time we all stand up and stick together.
rights engages in an unfair labor practice. Id. § 158(a)(1).           If we join together and fight we can win! I am currently
                                                                       fighting for my rights as well as yours and if not for the
  Wearing union buttons and pins falls within the definition           union I could not do it.
of “other concerted activities” under section 157 and,
therefore, is protected under the NLRA. See Republic                   I am keeping you in my prayers.
Aviation Corp. v. NLRB, 324 U.S. 793, 802-03 (1945).
“[W]earing union insignia furthers ‘the right [of employees]         St. Francis presented evidence that it learned of this letter one
to communicate effectively with one another regarding self-          day before the election.
organization at the jobsite.’” NLRB v. Autodie Int’l, Inc., 169
24   NLRB v. St. Francis                  Nos. 98-6297/6401      Nos. 98-6297/6401                   NLRB v. St. Francis     17
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                       F. Conclusion                             F.3d 378, 383 (6th Cir. 1999) (quoting Beth Israel Hosp. v.
                                                                 NLRB, 437 U.S. 483, 491 (1978)). However, this right is not
  In sum, we conclude that substantial evidence supports the     absolute. Id. An employer may restrict employees from
Board’s determination that St. Francis interfered with the       wearing union insignia if it can demonstrate special
employees’ free choice during the first election campaign by     circumstances that require the restriction to maintain
threatening to close the facility if the Union were elected,     production and discipline. Republic Aviation, 324 U.S. at
prohibiting employees from wearing certain Union support         803-04; Meijer, Inc. v. NLRB, 130 F.3d 1209, 1214 (6th Cir.
pins, and enforcing its no-solicitation policy in a              1997).
discriminatory manner. Therefore, we will not disturb the
Board’s decision to set aside the first election.                   We have struggled in this circuit in applying Republic
                                                                 Aviation to employer policies that generally prohibit
                 III. The Second Election                        employees from wearing buttons or pins on their uniforms.
                                                                 Our approach to this issue is somewhat in flux. While it is
                             A.                                  unnecessary to definitively resolve this issue given the facts
                                                                 in this case, a summary of the relevant authority is warranted.
   The second election was held on March 20 and 21, 1997,
more than five months after the first election. Sixty-eight        In 1984, a divided panel adopted a per se rule, holding that
employees voted in favor of the Union, 61 opposed, and there     “where an employer enforces a policy that its employees may
were six challenged ballots. On March 28, 1997, St. Francis      only wear authorized uniforms in a consistent and
filed objections to the second election, and the Regional        nondiscriminatory fashion and where those employees have
Director overruled the objections without a hearing. The         contact with the public, a ‘special circumstance’ exists as a
Regional Director certified the Union as the collective          matter of law which justifies the banning of union buttons.”
bargaining representative of the designated bargaining unit on   Burger King Corp. v. NLRB, 725 F.2d 1053, 1055 (6th Cir.
April 24, 1997. St. Francis requested NLRB review of the         1984), disagreement recognized by Meijer, 130 F.3d 1209.
certification, but the NLRB denied the request on June 16,
1997. On appeal, St. Francis raises only one objection to the      We applied Burger King in United Parcel Service, 41 F.3d
certification of the second election results.                    1068, where we reviewed the Board’s finding that UPS
                                                                 unlawfully disciplined a UPS driver for wearing a union lapel
                             B.                                  pin on his uniform. UPS maintained uniform and personal
                                                                 appearance standards that required drivers to wear “[o]nly
The Board’s Failure to Hold a Van Dorn Hearing on the            designated uniform items approved by UPS.” Id. at 1069.
                     Biddle Letter                               The relevant collective bargaining agreement (CBA)
                                                                 authorized UPS to establish “reasonable standards concerning
                              1.                                 personal grooming and appearance and the wearing of
  Shortly before the second election, Union literature accused   uniforms and accessories.” Id. We first noted that the rule in
management of awarding the CEO, Storer, a 14% raise, while       Burger King was applicable because the UPS uniformed
other employees had received no raises. On March 13,             drivers had substantial contact with the public. Id. at 1073.
1997—one week before the second election—St. Francis             Proceeding with the Burger King analysis, we concluded that
responded with a letter to employees representing that no one    UPS did not enforce its uniform policy in a discriminatory
18   NLRB v. St. Francis                 Nos. 98-6297/6401      Nos. 98-6297/6401                    NLRB v. St. Francis       23
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manner. We noted that UPS had issued “Desert Storm” pins,         It appears that St. Francis’s written policy prohibits
safe driving pins, United Way pins, and Mack Truck pins, but    distribution of literature at any time in areas beyond
held that such conduct did not evidence discriminatory          immediate patient areas, such as the dining room and other
enforcement because the CBA did not restrict UPS’s right to     “work area[s].” More importantly, based on Storer’s
issue standards for uniforms. Id. Thus, we held that the        testimony, St. Francis adopted a policy during the Union
employer did not violate the NLRA. See also NLRB v. Mead        campaign that was broader than its written policy, prohibiting
Corp., 73 F.3d 74, 79 (6th Cir. 1996) (citing United Parcel     the posting of literature anywhere in the facility. St. Francis
Serv., 41 F.3d 1068).                                           has offered no evidence that these broad prohibitions were
                                                                necessary to protect patient care or the hospital’s operations,
  More recently, another divided panel declined to apply the    as required under Beth Israel Hospital/Baptist Hospital.
Burger King per se rule. In Meijer, 130 F.3d 1209, the Board    Nevertheless, the hearing officer assumed that St. Francis’s
sought to prohibit Meijer from disciplining employees who       no-solicitation policy was valid, and the Board has not argued
wore union pins. Id. at 1210. The company permitted its         to the contrary.
uniformed employees to wear only those pins approved by the
company, including buttons promoting certain products or           Rather, the Board contends that St. Francis applied a valid
services, customer relation program buttons, or buttons         no-solicitation policy in a discriminatory manner. An
designating union affiliation. Id. at 1210-11. A new store      employer that adopts a valid no-solicitation policy may
manager at one location prohibited employees from wearing       violate the NLRA by discriminating against union solicitation
any pins other than name badges, company approved buttons,      in enforcing the policy. See Meijer, 130 F.3d at 1212-14;
United Way pins, or service recognition pins during a union     NLRB v. St. Vincent’s Hosp., 729 F.2d 730, 735 (11th Cir.
organizing campaign. Id. at 1211. The manager enforced his      1984); Reno Hilton Resorts, 320 N.L.R.B. 197, 208 (1995).
policy and disciplined employees who wore “Union Yes” pins      Here, there was ample evidence in the record to support the
during the election campaign. Id.                               Board’s conclusion that anti-Union literature was posted
                                                                throughout the facility in violation of Storer’s prohibition. St.
  Meijer argued that the discipline was appropriate under       Francis’s argument that the posting of anti-Union literature
Burger King. Id. at 1214. The Meijer majority expressed         complied with the terms of its written no-solicitation policy
skepticism of the per se rule in Burger King. The majority      is misplaced. The posting clearly violated Storer’s expansion
observed that the Burger King panel did not attempt to          of that policy during the Union campaign. Moreover, that
reconcile its holding with the Republic Aviation requirement    Storer directed managers to remove anti-Union literature once
that employers demonstrate special circumstances to justify     he learned of its existence is insufficient to undermine the
restricting employees’ presumptive right to wear union          evidence that such literature was pervasive and at least one
insignia. Id. at 1215. The Meijer court distinguished United    manager was seen walking by the literature without removing
Parcel Service, reasoning that the court based its holding in   it. In short, substantial evidence supports the Board’s
that case on UPS’s right under the CBA to promulgate            determination that St. Francis tolerated the posting of anti-
appearance standards. Id. The Meijer majority ultimately        Union literature in violation of its stated no-solicitation policy
rejected Burger King’s per se rule in favor of the following:   and thereby unlawfully discriminated in enforcing its policy.
  [The right to wear union insignia] can be curtailed if an
  employer makes an affirmative showing that a special
22    NLRB v. St. Francis                    Nos. 98-6297/6401        Nos. 98-6297/6401                    NLRB v. St. Francis      19
      Healthcare Centre                                                                                     Healthcare Centre

know who was responsible for the postings and did                       circumstance exists which requires restrictions of this
everything in its power to remove the anti-Union literature.            right in order to maintain production, reduce employee
The Board argues that there was no noticeable effort to                 dissension or distractions from work, or maintain
remove the literature, that St. Francis tolerated other types of        employee safety and discipline. This right may also be
solicitation, and that any effort that St. Francis may have             curtailed if the employer makes an affirmative showing
made to remove the literature was ineffective.                          that the union insignia that the employee seeks to wear
                                                                        will negatively impact a certain public image that the
  “Employer rules prohibiting organizational solicitation are           employer seeks to project.
not in and of themselves violative of the [NLRA] . . . .”
NLRB v. United Steelworkers of Am., CIO, 357 U.S. 357, 361            Id. at 1217. The court enforced the Board’s order because
(1958). As a general matter, an employer may adopt a rule             Meijer failed to satisfy this burden. Id.
prohibiting employee solicitation during working hours. An
employer may also prohibit employee solicitation on company              However, we recently suggested an arguably more relaxed
property after working hours if the employer demonstrates             standard than that articulated in Meijer. In Autodie, 169 F.3d
that the rule is necessary to maintain production and                 378, the NLRB sought to prohibit the employer from
discipline; absent such a showing, the solicitation rule is           requiring employees to remove union steward pins. The
invalid even if it is enforced neutrally against all solicitors.      employer had not implemented a general dress code or
See Republic Aviation, 324 U.S. at 803 & n.10, 805.                   uniform requirement and permitted employees to wear
                                                                      informal clothing bearing product and business
   Patient care concerns partially trump this general rule in the     advertisements and logos from other companies. Id. at 384.
nonprofit hospital setting. A hospital may ban all solicitation       Citing the employer’s burden to demonstrate “special
and distribution in immediate patient care areas such as              circumstances” to justify its restriction, we noted that this
patient rooms, operating rooms, and other locations where             burden “is particularly difficult to meet when the employer
patients receive treatment. Beth Israel Hosp., 437 U.S. at            cannot show that its restrictions . . . comport with an
495. However, to restrict employee solicitation in non-work           announced policy of general applicability.” Id. In enforcing
areas or distribution of union literature during non-work times       the Board’s order, we noted that the employer failed to
in non-work areas such as lounges and cafeterias, the hospital        demonstrate “either ‘special circumstances’ requiring the
must demonstrate that such solicitation would disrupt patient         restriction to maintain production and discipline or an
care or health care operations. Id. at 495, 507; NLRB v.              announced policy of general applicability justifying its
Harper-Grace Hosps., Inc., 737 F.2d 576, 578 (6th Cir.                restrictions of protected . . . activity.” Id. Thus, we suggested
1984). Thus, if a hospital’s no-solicitation policy applies to        that a general uniform policy may justify independently a
areas beyond immediate patient care areas, the hospital bears         restriction on union pins. We did not address the possible
the burden of presenting affirmative evidence to justify the          inconsistency between this approach and the Meijer approach.
policy in such areas. NLRB v. Baptist Hosp., Inc., 442 U.S.
773, 784-86 (1979). “If the record is somehow incomplete on             Nevertheless, it is unnecessary for us to resolve any
this point, it is the hospital’s fault for not producing sufficient   possible discrepancy between Meijer and Autodie because
evidence.” Harper-Grace Hosps., 737 F.2d at 579.                      neither approach supports St. Francis’s position. There is no
                                                                      dispute that St. Francis consistently prohibited Union pins
                                                                      bearing a written message, as distinguished from the “smiley
20   NLRB v. St. Francis                   Nos. 98-6297/6401      Nos. 98-6297/6401                    NLRB v. St. Francis      21
     Healthcare Centre                                                                                  Healthcare Centre

face” pins that it decided to allow. St. Francis has not          The policy also prohibited all solicitation, distribution, and
articulated, much less demonstrated, any special circumstance     sales in “patient care areas,” defined as:
to justify this restriction under Meijer. There is no evidence
that the restriction was necessary to maintain production,          patient/resident rooms, physical therapy, occupational
reduce employee dissension, or maintain employee safety or          therapy, therapeutic recreation and other treatment
discipline. Likewise, despite the existence of a uniform            rooms, and hallways and corridors adjacent to any of
policy, St. Francis has not made an affirmative showing that        those rooms; sitting or waiting rooms and lounges on
the Union pins would harm St. Francis’s public image.               patients/residents floors that are accessible to and used by
Finally, St. Francis is unable to satisfy even the more relaxed     patients/residents; the dining room and elevators.
Autodie standard because it did not consistently enforce its
uniform policy. To the contrary, substantial evidence             Storer testified that St. Francis prohibited the posting of any
supports the Board’s finding that St. Francis regularly           pro-Union or anti-Union literature “throughout the building”
tolerated non-Union pins and buttons on employee uniforms         during the campaign. He also testified that after he learned
although those pins violated St. Francis’s uniform policy.        about the anti-Union postings from his secretary, he instructed
Unlike the employer in United Parcel Service, St. Francis had     managers and directors to remove such materials if they saw
not reserved its discretion to authorize certain pins on          them. Nevertheless, several employees testified that they
employee uniforms.                                                regularly observed anti-Union fliers and posters throughout
                                                                  the facility. One employee testified that she saw the
  While substantial evidence supports the Board’s decision        personnel manager walk past several pieces of anti-Union
that St. Francis engaged in misconduct by prohibiting certain     literature without removing them. The Union also presented
Union pins, this finding alone would be insufficient to set       evidence that St. Francis tolerated solicitations for other
aside the first election. Again, however, we consider this        products and causes, such as Avon products, school benefits,
misconduct as part of the totality of circumstances               and raffle ticket sales for outside organizations.
surrounding the first election.
                                                                    The hearing officer found that although St. Francis’s no-
                              E.                                  solicitation policy was otherwise valid, St. Francis enforced
                                                                  the policy in a discriminatory manner by regularly permitting
 St. Francis’s Enforcement of its No-Solicitation Policy          other types of solicitation in the facility and tolerating the
                                                                  posting of anti-Union literature.
                              1.
                                                                                                 2.
  St. Francis had a no-solicitation policy prohibiting
employees from:                                                     St. Francis maintains that it enforced its neutral no-
                                                                  solicitation policy consistently in prohibiting the posting of
  sell[ing] or distribut[ing] material of any kind, including,    both Union and anti-Union literature at its facility. St. Francis
  but not limited to: leaflets, advertising material, tickets,    also contends that because the anti-Union literature
  subscriptions, and cards, to any other employee when            introduced during the hearing was not posted in patient care
  either employee is on work time. Nor shall any                  areas, and there was no evidence that the literature was posted
  employee sell or distribute material of any kind at any         during “work time,” the postings did not violate the no-
  time in any work area of the facility.                          solicitation policy. In any event, St. Francis insists it did not
