                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-1878



SUNRISE SENIOR LIVING, INCORPORATED,

                                                         Petitioner,

           versus


NATIONAL LABOR RELATIONS BOARD,

                                                         Respondent.



                             No. 05-1933



NATIONAL LABOR RELATIONS BOARD,

                                                         Petitioner,

           versus


SUNRISE SENIOR LIVING, INCORPORATED,

                                                         Respondent.



On Petition for Review and Cross-petition for Enforcement of an
Order of the National Labor Relations Board. (8-CA-34969; 8-CA-
35060)


Argued:   March 16, 2006                     Decided:   May 31, 2006
Before LUTTIG,* WILLIAMS, and MICHAEL, Circuit Judges.


Petition for review denied; cross-petition for enforcement granted
by unpublished per curiam opinion.


ARGUED: Frederic Freilicher, HUNTON & WILLIAMS, L.L.P., McLean,
Virginia, for Petitioner/Cross-Respondent.      Christopher Warren
Young, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Respondent/Cross-Petitioner. ON BRIEF: Thomas P. Murphy, HUNTON &
WILLIAMS,   L.L.P.,   McLean,   Virginia,   for   Petitioner/Cross-
Respondent. Arthur F. Rosenfeld, Acting General Counsel, John E.
Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate
General Counsel, Aileen A. Armstrong, Deputy Associate General
Counsel, Meredith L. Jason, Supervisory Attorney, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




     *
      Judge Luttig heard oral argument in this case but resigned
from the court prior to the time the decision was filed.     The
decision is filed by a quorum of the panel pursuant to 28 U.S.C.
§ 46(d).

                                2
PER CURIAM:

           Lead care aides at a Sunrise Senior Living, Inc. assisted

living facility circulated a petition criticizing work conditions

and   planned    (but    failed   to   execute)   a   day-long   strike.     In

response, managers persistently interviewed all of the aides to

identify who spearheaded these efforts, then fired one of the lead

aides and demoted another one.         The National Labor Relations Board

determined      that    Sunrise   committed   unfair    labor    practices   in

violation of section 8(a)(1) of the National Labor Relations Act

(the Act), 29 U.S.C. § 158(a)(1), by coercively interrogating the

aides and by improperly taking action against the lead aides for

engaging in activity protected under section 7 of the Act, 29

U.S.C. § 157.      The Board’s remedial order required Sunrise, among

other things, to reinstate the fired aide with full back pay.

Sunrise petitions this court for review, seeking to overturn the

Board’s decision and order, and the Board cross-petitions for

enforcement.      Concluding that substantial evidence supports the

Board’s decision and order and that its remedy was not arbitrary

and capricious, we deny Sunrise’s petition and grant the Board’s

cross-petition.



                                        I.

           Sunrise is a Delaware corporation with principal offices

in McLean, Virginia. The company operates nearly 370 senior living


                                        3
facilities in the United States, including the 68-resident assisted

living facility in Parma, Ohio, where this case arose.            The Parma

facility’s residents depend in varying degrees on the care aides

for help with the basic routines of life (for example, dressing,

bathing,   and   use   of   the   toilet).    The   aides,   including   the

designated lead care aides, are not professional nurses.           They are

not represented by a union.



                                      A.

           Susan Johnson became executive director of the Parma

facility on March 1, 2004.        At a meeting that week she informed the

care aides that a former resident who was scheduled to return to

the facility would need assistance with handling her colostomy bag.

Rosie Howard, a supervisor of the care aides, expressed concern

that the aides would object to being assigned to the colostomy bag

emptying routine.      On March 9 three lead care aides -- Samantha

Reyes, Coty Smith, and another employee -- met with Johnson to

present her with a petition.          Signed by 24 aides, the petition

declared, “[W]e have talked among each other and have all agreed

that we are unwilling to accept responsibility for any colostomy

care.   We do more than our share of work here.”             J.A. 936.   The

petition asserted that the care aides faced a long list of regular

responsibilities and that the aides “are subjected to verbal abuse

by angered family members, and were disrespected by the management


                                       4
team.”    Id.    The petition concluded:   “We as a group have all

reached our limit in additional job assignments and hope this

situation is addressed without further action needed.”    J.A. 936-

37.   After receiving the petition, Johnson asked the lead aides to

identify the author of the document, but received no response. She

later discussed the petition with higher Sunrise executives.   They

decided that Johnson would meet with the care aides in small groups

to further investigate the petition.

           That same day (March 9), in Howard’s office and within

her earshot, Reyes suggested that the care aides plan a work

stoppage on March 11.    Smith discussed the work stoppage with care

aide Cynthia Boldan, who said she would not participate. Also that

day, Johnson asked Howard what she knew about the petition and its

authorship; Johnson raised her voice in disbelief when Howard

professed no knowledge.    On March 10 Reyes told care aides Tania

Kaufman, Lisa Dousa, and Olexandra Chepak that there would be a

work stoppage the next day and that if they did not participate,

they would be on duty by themselves.   They said they would not take

part.    (Later, at the unfair labor practice hearing before the

administrative law judge, Reyes repeatedly denied under oath that

she discussed a work stoppage, but after Sunrise presented numerous

contradicting witnesses, the ALJ found that Reyes’s denials were

not credible.)




                                  5
           Also    on    March   10   Johnson,    accompanied    by   Sunrise

executives Linda Olsavsky and Natalie Antosh, conducted interviews

with the care aides in groups of three to five aimed at determining

the petition’s authors.      One of the aides, Lisa Dousa, named Reyes

and Smith as the authors.        After the interviews Johnson learned of

the work stoppage being discussed for the next day, so she called

her supervisors and arranged for employees from other Cleveland-

area Sunrise facilities to cover for the absent workers.                Every

care aide showed up for work on March 11.               There was no strike.

That morning, after Johnson called Smith to tell her to come in

early, Smith called Dousa and asked her why Dousa had identified

the petition authors.       Dousa later told management about Smith’s

call.

           On March 11 Johnson (joined at times by Antosh and

Olsavsky) interviewed many of the care aides individually in her

office, asking about the petition and the work stoppage.              Several

of the aides told Johnson that Reyes had discussed the strike with

them.   In her interview with Boldan, Johnson expressed disapproval

of the petition, saying that the aides could have brought their

grievances    to   her   informally    rather    than   committing    them   to

writing.     During the    interviews at least two of the aides felt

afraid of losing their jobs, while another came to regret signing

the petition.




                                       6
             Johnson later placed Reyes, Smith, and Howard on paid

administrative leave pending an investigation. On March 16 Sunrise

demoted Smith to care aide, although it continued to pay her as a

lead care aide.       Sunrise fired Reyes.       (On March 19 the company

also fired Howard, but the ALJ determined that Howard’s discharge

was not an unfair labor practice, and her claim is not presented in

this appeal.)



                                         B.

             Howard and the United Food & Commercial Workers Union

Local 880 filed charges with the Board over Sunrise’s conduct. The

Board’s General Counsel issued an administrative complaint alleging

that Sunrise engaged in unfair labor practices violating the Act.

See 29 U.S.C. § 158(a).       The ALJ heard testimony during the unfair

labor practice hearing in September and October 2004.                   The ALJ

ruled for the General Counsel in March 2005, and Sunrise filed

exceptions to the ALJ’s decision and order.

             In July 2005 the Board affirmed the ALJ’s findings that

Sunrise engaged in three unfair labor practices under section

8(a)(1) of the Act (1) when it fired Reyes and (2) demoted Smith

(both   of   whom    the   Board   concluded   were    engaged   in    protected

activity     under   the    Act    in   organizing    the   petition    and   the

threatened strike), and (3) when Sunrise coercively interrogated

the care aides in the interviews on March 10 and 11, 2004.                    To


                                         7
remedy these unfair labor practices, the Board entered a cease-and-

desist order.    It declined to require Sunrise to restore Smith to

her earlier position because she voluntarily resigned two months

after her demotion. The Board concluded that the proper remedy for

Sunrise’s violation as to Reyes was to reinstate her and award her

full back pay, even though the ALJ discredited Reyes’s testimony

that she never advocated a strike.     344 N.L.R.B. No. 151 (July 29,

2005), slip op. at 1.

           Sunrise, which “transacts business” within this circuit

pursuant to the Act’s venue rule, 29 U.S.C. § 160(f), petitions for

review of the Board’s decision and order.        Sunrise contends that

the Board erred in concluding that Sunrise committed an unfair

labor practice (1) by firing Reyes and ordering her reinstated with

full back pay, even though the ALJ discredited her in part; (2) by

demoting Smith, despite Sunrise’s articulation of valid reasons

unrelated to protected activity; and (3) by interviewing the aides

in groups and individually, which Sunrise contends did not amount

to   coercive   interrogation.   The   Board’s   cross-petition   seeks

enforcement of its decision and order.

           Section 7 of the Act provides that employees “have the

right to self-organization . . . and to engage in other concerted

activities for the purpose of . . . mutual aid or protection.”       29

U.S.C. § 157.    These rights are secured by section 8(a)(1), which

makes it an unfair labor practice for an employer “to interfere


                                  8
with, restrain, or coerce employees in the exercise of the rights

guaranteed in” section 7.       29 U.S.C. § 158(a)(1).        “The scope of

our inquiry in reviewing the Board is limited.” Medeco Sec. Locks,

Inc., v. NLRB, 142 F.3d 733, 742 (4th Cir. 1998).             We uphold the

Board’s factual findings if, considering the whole record, they are

supported    by   substantial   evidence.   29   U.S.C.   §    160(e);   TNT

Logistics of N. Am., Inc. v. NLRB, 413 F.3d 402, 405 (4th Cir.

2005).      In reviewing questions of law, we defer to the Board’s

interpretation of the Act “so long as its reading is a reasonable

one.”    RGC (USA) Mineral Sands Inc., v. NLRB, 281 F.3d 442, 448

(4th Cir. 2002) (quoting Holly Farms Corp. v. NLRB, 517 U.S. 392,

409 (1996)).



                                    II.

            Sunrise first claims (a) that the Board erroneously

determined that Sunrise’s conduct toward Reyes was an unfair labor

practice, and (b) that even if this conduct was an unfair labor

practice, the Board’s remedy was improper in that it failed to

sanction Reyes in any way for her discredited testimony.



                                    A.

            An employer violates section 8(a)(1) when “(1) [its]

. . . action can be reasonably viewed as tending to interfere with,

coerce, or deter (2) the exercise of protected activity, and (3)


                                     9
the employer fails to justify the action with a substantial and

legitimate business reason that outweighs the employee’s [section]

7 rights.”   Medeco Sec. Locks, 142 F.3d at 745.          Sunrise advances

two arguments in contending that it did not violate section 8(a)(1)

in firing Reyes:     (1) she improperly pressured the aides in

organizing the work stoppage and thereby lost the section 7 shield,

and (2) Sunrise had a valid business justification for its action

because if it had not responded decisively to the threatened

strike, it would have risked violating a state statute safeguarding

the health of the facility’s residents.

                                  1.

          Reyes and Smith drafted a petition concerning their

conditions of employment and advocated (but did not bring about) a

day-long strike at the Parma facility.             These activities are

ordinarily   concerted   activities    under    section    7     because   they

constitute   exercises    of   statutory       rights     such     as   “self-

organization” and “mutual protection.”         In contrast, an employee’s

circulation of a petition to remove a supervisor for personal

reasons is not concerted activity protected by the statute. Joanna

Cotton Mills Co. v. NLRB, 176 F.2d 749, 753 (4th Cir. 1949).

Sunrise contends that Reyes’s motivation was to prevent her mother

(one of the facility’s aides) from having to take responsibility

for the returning resident’s colostomy care. The bare existence of

such a motive, however, does not affect the analysis because the


                                  10
petition and the threatened stoppage were predominantly directed at

challenging collective work conditions.            What matters is the

activity’s purpose, not a participating employee’s motive.                  TNT

Logistics, 413 F.3d at 407 (quoting id.); see also FiveCAP, Inc. v.

NLRB, 294 F.3d 768, 783 (6th Cir. 2002) (circulation of a petition

“seek[ing]    the   amelioration     of   work-related       conditions”    is

protected activity).

            How the activity is carried out also matters. In NLRB v.

Washington Aluminum Co., 370 U.S. 9 (1962), the Supreme Court

identified “normal categories of unprotected concerted activities

such   as   those   that   are   unlawful,   violent,   or    in   breach   of

contract.” Id. at 17. The Court also characterized as unprotected

those concerted activities that are “indefensible because they

. . . show a disloyalty to the workers’ employer” to a degree

beyond that needed to pursue valid section 7 objectives.             Id.     We

have understood this language to mean that section 7 does not

shield employees whose “conduct is so egregious as to take it

outside the protection of the Act, or of such a character as to

render [employees] . . . unfit for further service.”               Anheuser-

Busch, Inc. v. NLRB, 338 F.3d 267, 280 (4th Cir. 2003) (punctuation

omitted).    Such “egregious” conduct would include, for example,

“threatening to kill a supervisor” or “stealing from an employer.”

Cf. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 146

(2002) (giving these as examples of “serious [employee] misconduct”


                                     11
that courts have held to preclude those employees from being

reinstated under the Board’s remedial orders).

              Sunrise argues that when Reyes told the care aides about

the planned March 11 work stoppage, she abused her authority and

impermissibly pressured them to participate, thereby surrendering

section   7    protection    under     Washington      Aluminum.       Substantial

evidence, however, supports the Board’s contrary determination.

Chepak recalled that Reyes said to her on March 10, 2004, “[Y]ou

can’t come in tomorrow morning” and that Chepak should telephone

other aides to tell them not to come in either.                 J.A. 509H.       Yet

neither   Chepak’s    account       nor    anyone    else’s   shows    that     Reyes

threatened to punish any aide who did not participate in the work

stoppage.       Kaufman,     another      aide,   described    Reyes    as    “like,

basically, kind of pressuring us into calling . . . off along with

others,” J.A. 480, but Kaufman hedged her characterization with

qualifiers (“like . . . kind of”).                  Her description of Reyes’s

“pressuring” was not tantamount to evidence that Reyes engaged in

an act that was so egregious as to remove the section 7 shield.

              We therefore affirm the Board’s conclusion that section

7 protected the actions of Reyes and Smith.

                                          2.

              When an employer disciplines an employee by changing

employment conditions and terms in response to the employee’s

protected      activities,    the    employer       “necessarily      coerces    the


                                          12
employee from engaging in protected activities.”                  NLRB v. Air

Contact Transport Inc., 403 F.3d 206, 213 (4th Cir. 2005).                     Such

coercion    violates    section     8(a)(1)     if   the   employer     does    not

demonstrate it had a “substantial and legitimate business reason”

for its conduct that outweighs the employee’s rights.              Medeco Sec.

Locks, 142 F.3d at 745.

            Sunrise’s challenge draws on language from the Supreme

Court’s opinion in Hoffman Plastic, where the Court refused to

allow the Board to award back pay to illegal alien employees to

remedy    the   employer’s     unfair   labor    practices     because    federal

immigration law expressly prohibited employing aliens not lawfully

in (or authorized to work in) the United States.              Hoffman Plastic,

535 U.S. at 147-49.       The Court concluded that the Board’s “remedy

may be required to yield” when that remedy “trenches upon a federal

statute or policy outside the Board’s competence to administer.”

Id. at 147.     From this starting point Sunrise argues that the Board

erred in failing to acquiesce to Sunrise’s need to comply with

state health care law. In essence, Sunrise characterizes the state

legal    requirements     as   a   “substantial      and   legitimate    business

reason” for its conduct toward Reyes and the other aides.                       The

Board’s    failure   to    validate     the   state    law   requirements,       in

Sunrise’s view, “trenches upon” the state regulatory scheme, as

Hoffman Plastic used that phrase.




                                        13
          In particular, Sunrise points to its obligations to the

Parma   facility’s    residents   under        Ohio’s    “residents’        rights”

statute, section 3721.13 of the Ohio Revised Code.                   That statute

secures a nursing home resident’s rights, among others, “to a safe

and clean living environment,” Ohio Rev. Code Ann. § 3721.13(A)(1),

and “to have all reasonable requests and inquiries responded to

promptly,” id. § 3721.13(A)(4).            Supporting this argument was

Sunrise’s expert witness, Kurt Haas, who testified that state

regulators   hold    facilities   such    as    the     one   at    Parma   to    the

statutory standard for nursing homes.           Haas further testified that

regulators would expect a facility whose workers threatened a

strike to take “corrective action, preventative measures that were

commensurate with the infraction” against the strike, to prevent

“abuse and neglect” of the facility’s residents.                   J.A. 532.     Haas

also surmised that a facility that tolerated an employee strike

would be “in harm[’]s way” regarding its state certification,

without which it could not continue to operate.                     J.A. 550.      On

cross-examination, however, Haas could not point to any state law

or regulation that would compel a facility to fire employees who

planned a one-day work stoppage.         He also knew of no case in which

a facility actually lost its state license because workers “talked

about” such a strike.

          We do not dispute Sunrise’s claim that as an operator of

a   state-licensed    assisted    living       facility       the    company     has


                                    14
significant duties to its residents under Ohio’s health care

statute.   Sunrise simply failed, however, to prove that its duties

under the Ohio statute directly collided with its section 8(a)(1)

obligation     to   refrain   from   unfair    labor    practices.     The   Act

protected Reyes in preparing the petition and planning the work

stoppage, and as Haas’s answers on cross-examination revealed, no

Ohio law compelled Sunrise to fire Reyes for these actions. Haas’s

mere speculation that the Parma facility could have lost its state

license if it did not fire Reyes and take other measures to respond

to the threatened strike is inadequate to support Sunrise’s claim.

The Board’s determination to this effect was correct.

              Hoffman Plastic moreover does not extend as far as

Sunrise would take it.        The Supreme Court held in that case that

the Board’s remedial order could not be permitted to undermine the

express terms of a federal immigration statute.                Here, there is

simply   no     federal   statute    upon     which    the   Board’s   decision

“trenched,” and nothing in Hoffman Plastic subordinated the Board’s

determinations under the Act to the sort of vague generalizations

about the principles of state law that Sunrise presents.

              Sunrise’s arguments thus fall short of establishing that

the Board erred. Striking “the proper balance between the asserted

business justifications and the invasion of employee rights in

light of the Act and its policy” is a task that is “the primary

responsibility of the Board and not the courts.”                  Medeco Sec.


                                      15
Locks, 142 F.3d at 745 (punctuation omitted).               Accordingly, we

cannot set aside the Board’s conclusion that Sunrise lacked a

“substantial and legitimate business reason” for firing Reyes that

trumped her rights under the Act and that her discharge contravened

section 8(a)(1).



                                    B.

             The ALJ stated that he “found Reyes a less than fully

credible witness based on her demeanor and testimony,” which was

“contradicted by multiple witnesses, including Smith who, like

Reyes, testified on behalf of the General Counsel.”             J.A. 937 n.6.

If   Reyes   had   testified   honestly    about   the    discussions,   the

proceeding would have been somewhat shorter because Sunrise would

not have called as many care aides to rebut Reyes’s testimony.           The

Board recognized that the ALJ “discredited portions of [Reyes’s]

testimony,” but stated that “there is no evidence that [Reyes]

engaged in deliberate and malicious misconduct that abused and

undermined the integrity of the Board’s processes.” J.A. 933. The

Board   ordered    Reyes   reinstated     with   full    back   pay.   Reyes

benefitted from this remedy even though -- having taken an oath to

testify truthfully before the ALJ -- she violated that oath when

she denied discussing a strike with care aides.

             Sunrise acknowledges that under ABF Freight System, Inc.

v. NLRB, 510 U.S. 317 (1994), the Board has “broad discretion” in


                                    16
selecting   remedies,     even   those     that    benefit     employees   whose

inexcusable false testimony risks compromising the integrity of

administrative proceedings.        Id. at 325.         Sunrise nevertheless

attacks the Board’s remedy here based on a recent case, Toll

Manufacturing Co., 341 N.L.R.B. No. 115 (May 4, 2004).                There, the

Board cut off an employee’s backpay as of the date he first lied

under oath before an ALJ.        The Board ruled that the employee had

“abused   the   Board’s   processes      for   his   own   benefit,     that   his

transgressions were repeated, and that his testimony was generally

untrustworthy.”    Id., slip. op. at 5.           Sunrise contends, however,

that Toll Manufacturing and the Board’s remedial order are so

inconsistent that the Board has exceeded its “broad [remedial]

discretion.”

            Sunrise   expresses    legitimate        concern    about    Reyes’s

discredited testimony.      Untruthful testimony in any form, whether

at an unfair labor practice hearing or a trial in any court, is of

grave concern.     We neither “reward nor condone . . . a flagrant

affront to the truth-seeking function of adversary proceedings.”

ABF Freight, 510 U.S. at 323 (punctuation omitted).               Yet when the

Board has concluded that the objectives of the National Labor

Relations Act are best served by awarding relief to an employee who

did not testify truthfully in all respects, the Supreme Court has

cautioned generalist judges not to casually second guess that

expert determination.      “[C]ourts must give the agency’s decision


                                      17
controlling       weight   unless      it    is     ‘arbitrary,    capricious,       or

manifestly contrary to the statute.’”                Id. at 324 (quoting Chevron

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844

(1984)).    The source of this rule is Congress’s express delegation

to the Board, not the courts, of the power to ascertain remedies

for unfair labor practices.            29 U.S.C. § 160(c); ABF, 510 U.S. at

324.    Put another way, to set aside the Board’s remedial order we

would have to conclude that “the order is a patent attempt to

achieve    ends    other   than     those        which   can   fairly    be   said   to

effectuate the policies of the Act.”               Virginia Elec. & Power Co. v.

NLRB, 319 U.S. 533, 540 (1943); ABF, 510 U.S. at 324 n.10 (quoting

id.).

            Sunrise    fails      to   show       that   the   Board’s   remedy      was

arbitrary and capricious.           The Board’s remedial order was not an

unexplained    deviation     from      the       Board’s   determination      in   Toll

Manufacturing.       Rather, the Board reasonably distinguished that

case.      Toll Manufacturing involved an employee who after his

discharge claimed he should not have been fired for failing to

notify his employer on two days that he would not be at work.                        The

employee testified at an initial unfair labor practice hearing that

he gave proper notice by calling his employer from home on those

days, and the ALJ specifically credited that testimony.                       In fact,

the employee went to work for another employer on those days, but

he repeated his lies in an affidavit, in a subsequent deposition,


                                            18
and finally at a second hearing that the Board ordered to examine

the discrepancies in the record created by the employee’s previous

lies.   Toll Mfg. Co., slip. op. at 1, 5.         Here, by contrast, the

ALJ   determined   at   the   hearing    that   Reyes’s   testimony   about

discussing the work stoppage was not credible; the discredited

testimony (unlike the credited testimony in Toll Manufacturing) did

not go on to contaminate the ALJ’s decision or subsequent Board

proceedings.    Thus the Board’s conclusion that Reyes’s discredited

testimony did not amount to a malicious abuse of the Board’s

processes was not arbitrary and capricious.

           Reyes’s discredited testimony is troubling and must be

condemned.    ABF counsels us, however, to conclude that the Board’s

chosen remedy fell within its “broad discretion.”          The remedy must

therefore be enforced.



                                   III.

             Sunrise next claims that its demotion of Smith was not an

unfair labor practice.        The company contends that it would have

disciplined Smith even if she had not engaged in activity protected

under section 7 and that the Board’s contrary determination was

erroneous.     The Board applied the burden-shifting framework of

Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st

Cir. 1981), to determine whether Sunrise’s action constituted

discrimination against Smith based on her protected activity.


                                    19
          Under this familiar framework, the General Counsel must

first present a prima facie case that the employer’s disciplinary

decision was motivated by the protected activity.     “To make out a

prima facie case, the General Counsel must show (1) that the

employee was engaged in protected activity, (2) that the employer

was aware of the activity, and (3) that the activity was a

substantial or motivating reason for the employer’s action.”    FPC

Holdings, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995).    If the

General Counsel makes such a showing, “the employer may still

escape liability by presenting the affirmative defense that the

discriminatory motivation, though illicit, was harmless.”    Medeco

Sec. Locks, 142 F.3d at 742.     To demonstrate harmlessness, the

employer must establish that it would have taken the same action

against the employee for legitimate reasons.    Id.   “If the Board

believes the employer’s stated lawful reasons are non-existent or

pretextual, the employer’s defense fails.”   Air Contact, 403 F.3d

at 215 (punctuation omitted).   The Board’s determination regarding

an employer’s motive is a factual one, NLRB v. Hale Container Line,

Inc., 943 F.2d 394, 398 (4th Cir. 1991), so we must uphold such a

determination if it is supported by substantial evidence, 29 U.S.C.

§ 160(e), which is tantamount to asking “whether on this record it

would have been possible for a reasonable jury to reach the Board’s

conclusion.”   Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S.

359, 366-67 (1998).


                                 20
            Sunrise concedes that the General Counsel proved by a

preponderance that a discriminatory motive was a substantial or

motivating factor for Smith’s demotion and thus established a prima

facie case. Sunrise proceeds to challenge the Board’s rejection of

its defense.    The company asserts two lawful reasons for demoting

Smith.     First, it alleges that Smith improperly harassed Dousa

when, after learning from other aides that Dousa had revealed to

management that Smith and Reyes had drafted the petition, Smith

called her to complain. Second, the company alleges that Smith had

a prior history of breaking work rules that warranted discipline.

Several times she left the facility while “on the clock,” and she

was once accused of not helping all the residents shower.                J.A.

781-83, 839-43.       The ALJ concluded that the company’s asserted

reasons were pretextual, and the Board adopted all of the ALJ’s

findings with one narrow exception:        the Board did not endorse the

ALJ’s conclusion that Smith’s telephone call to Dousa could be

considered as part and parcel of Smith’s protected activity.

            The Board’s conclusion was the same that a reasonable

jury could have reached from the evidence presented.                 First,

although Dousa testified that Smith used harsh language in the

telephone call and that Dousa was intimidated as a result, there

was   no   evidence   that   Dousa   suffered   anything   more   than   hurt

feelings.    For example, Smith never used profanities or made any

threats during the telephone call.         Also, if the harassment had


                                      21
been a valid reason for the company’s action, Sunrise would have

reasonably been expected to follow its own standard procedures

before disciplining Smith.        Instead the company disciplined Smith

without obtaining her “version of events,” Rep. Br. at 10, which

was inconsistent with Sunrise’s established internal investigations

policy.      According    to    that   policy,     the     final   step    in   an

investigation is to record the target’s account of the events at

issue.

            Second, Sunrise, which bore the burden of proof on its

defense, did not present substantial evidence that it demoted Smith

for her prior violations of Sunrise rules.              The company never told

her that previous misconduct drove the demotion.                   In addition,

more than a year elapsed between the last prior transgression and

Smith’s    demotion,   reducing    the       likelihood    that    the    previous

misconduct had any causal relationship to the action.

            Thus, we affirm the Board’s conclusion that Sunrise’s

demotion of Smith was an unfair labor practice contravening section

8(a)(1).



                                       IV.

            Sunrise’s final claim is that its group and individual

interviews of the aides did not amount to an unfair labor practice

because the company did not coercively interrogate the employees.

Ordinary    questioning    of    employees      about     protected      concerted


                                       22
activity is not an unfair labor practice, but coercive questioning

is,     and     like   the     Board        we    consider     the       totality    of     the

circumstances to tell the difference.                       NLRB v. Nueva Eng’g, Inc.,

761 F.2d 961, 965-66, 966 n.5 (4th Cir. 1985).                                 The relevant

circumstances may include “the nature of information sought, the

identity of the questioner, and the place and method of the

questioning.” Id. at 966.                 The Board assesses the circumstances in

the     first    instance,          and     we    affirm     the   Board’s       finding     on

coerciveness if it is supported by substantial evidence.                            When the

finding       rests    on    credibility         determinations,         we    accept     those

determinations         where        there        is   no    showing       of   “exceptional

circumstances” (namely that the determinations contradict other

findings, or are unreasonable, or are supported by little to no

reasoning).       NLRB v. CWI of Maryland, Inc., 127 F.3d 319, 326 (4th

Cir. 1997).

               Sunrise       strives       to    distinguish       the    March     10    group

interviews from the March 11 individual interviews.                             The company

contends      that     the    ALJ    should       have     credited      the   testimony     of

managers Johnson and Olsavsky that they began the group interviews

with introductory remarks assuring the aides there would be no

reprisals against them for participating in the petition.                                   The

ALJ’s    decision      contains        no    specific       credibility        determination

regarding Olsavsky, and Sunrise emphasizes that Amber Hines, the

one care aide who testified to the specifics of the group meeting


                                                 23
she attended, could not remember how the meeting began.                           The

company acknowledges Hines’s testimony that the interviewers at no

time promised there would be “no retaliation . . . taken against

anyone for sitting in the room” and answering questions. J.A. 330.

Nevertheless, Sunrise maintains that the ALJ erred in concluding

that    Johnson     and   the   others   never    assured    the     aides   against

reprisal.       Specifically, Sunrise argues that Hines was biased by

other conflicts with Sunrise personnel, her recollection was not

complete, and Olsavsky provided evidence to the contrary.

               Sunrise’s claim faces several insurmountable obstacles.

First, Hines’s partial recollection was enough to permit the ALJ to

infer that the interviewers did not assure the aides that there

would    be    no   reprisal.      Sunrise       has   not   shown    any    of   the

“exceptional circumstances” that would warrant our overturning the

ALJ’s decision to credit Hines instead of Johnson, and while a

ruling    on    Olsavsky’s      credibility      might   have   made    the   ALJ’s

reasoning complete, the absence of such a ruling is not grounds for

reversal. Second, Sunrise places more weight on assurances against

reprisal than they can bear.             Such assurances, even if given, do

not by themselves remove the sting of unfairness from otherwise

coercive interrogation.         Standard-Coosa-Thatcher Carpet Yarn Div.,

Inc. v. NLRB, 691 F.2d 1133, 1141 n.8 (4th Cir. 1982) (quoting

Johnnie’s Poultry Co., 146 N.L.R.B. 770, 775 (1964)).                  Third, even

if Johnson and her colleagues believed they were not coercing the


                                         24
aides during the group interviews, the Board would not be precluded

from finding that the interviews contravened section 8(a)(1).

“[N]o proof of coercive intent or effect is necessary[,] the test

being whether the employer engaged in conduct, which, it may

reasonably be said, tends to interfere with the free exercise of

employee rights under the Act.”            Brandeis Mach. & Supply Co. v.

NLRB, 412 F.3d 822, 830 (7th Cir. 2005) (punctuation omitted).

Also, we note that the General Counsel’s complaint focused on the

March 11 individual interviews, and nothing in the Board’s remedial

order   differentiated     between    the        group    interviews    and   the

individual ones.

           From    the   totality    of    the    circumstances      surrounding

Sunrise’s interviews of the aides on March 10 and 11, we conclude

that substantial evidence supports the Board’s finding of an unfair

labor practice. In the interviews Johnson and the other executives

sought information concerning the petition and the planned work

stoppage, two protected activities under the Act. Johnson made her

disapproval   of   the   activities       clear   in     the   interviews.    The

identity of the questioners also weighed in favor of the coercion

finding.   Johnson was the Parma facility’s new executive director,

Olsavsky was Sunrise’s regional registered nurse, and Antosh was

the executive director of the company’s facility in Rocky River,

Ohio.   All three had oversight responsibility, while the interview

subjects were all low-level care aides.                Finally, the method of


                                      25
questioning was insistent. Johnson asked about the identity of the

petition’s   authors   not   just   once,   but   several   times.   The

questioning also exacerbated rather than alleviated the aides’ fear

of being fired for signing the petition.

            There was, in sum, substantial evidence before the ALJ

and the Board that both the group and individual interviews were

coercive.    We therefore leave undisturbed the Board’s conclusion

that Sunrise violated section 8(a)(1) by coercively interrogating

its employees.



                                    V.

            The Board’s determinations that Sunrise committed unfair

labor practices by coercively interrogating the aides, firing

Reyes, and demoting Smith are supported by substantial evidence.

In addition, the Board’s choice of remedy was not arbitrary and

capricious. Accordingly, we deny Sunrise’s petition for review and

grant the Board’s cross-petition for enforcement of its decision

and order.



                                         PETITION FOR REVIEW DENIED;
                              CROSS-PETITION FOR ENFORCEMENT GRANTED




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