In the
United States Court of Appeals
For the Seventh Circuit

Nos. 98-3177, 98-3683, 98-3721,
99-1097, 99-1124, 99-1382

Beverly California Corp.,
f/k/a Beverly Enterprises,

Petitioners/Cross-Respondents,

v.

National Labor Relations Board,

Respondent/Cross-Petitioner.




Service Employees International Union,
AFL-CIO, and Districts 1199P and 1199II,
SEIU, AFL-CIO,

Petitioners,

v.

National Labor Relations Board,

Respondent.



On Petitions for Review and Cross-Applications
for Enforcement of Orders of the National Labor Relations Board.
Nos. 6-CA-20188-46, et al.


Argued October 26, 1999--Decided September 13, 2000


 Before Harlington Wood, Jr., Kanne, and Diane P. Wood,
Circuit Judges.

  Diane P. Wood, Circuit Judge. Beverly California
Corporation operates nursing homes all over the
United States--approximately 900 at the time the
labor practices at issue in this appeal occurred.
It is avowedly anti-union, and its practices have
drawn the attention of the National Labor
Relations Board ("the Board") on no less than
five occasions over the last decade or so. Before
us in the present appeals are the Board’s orders
in Beverly California Corporation, 326 NLRB No.
29 (1998) (Beverly II), and Beverly California
Corporation, 326 NLRB No. 30 (1998) (Beverly
III), in which the Board largely adopted the
findings of two different administrative law
judges (ALJ) that numerous violations of the
National Labor Relations Act ("the Act") had
occurred at various facilities Beverly operates,
and in which the Board ordered various forms of
corporate-wide relief. In its petition for
review, Beverly contests many of these findings,
as well as the Board’s chosen remedy. The Board
has cross-petitioned for enforcement of its
orders. Finally, the Service Employees
International Union (SEIU) has petitioned to
contest the Board’s exoneration of Beverly in
certain instances and its failure to issue a
bargaining order at one facility.

  As we explain in slightly greater detail below,
the pertinent question for this court is whether
the Board’s decisions are supported by
substantial evidence. See Universal Camera Corp.
v. NLRB, 340 U.S. 474, 487-88 (1951). With
respect to the remedy that the Board chose, our
review is also quite deferential. See Fibreboard
Paper Products Corp. v. NLRB, 379 U.S. 203, 216
(1964). In that light, we conclude that all but
a few parts of the Board’s orders are entitled to
enforcement. We further conclude that the Board
did not abuse its discretion in principle in
imposing a corporate-wide remedy, but that it
needs to refine the corporate-wide aspects of the
remedial order and distinguish those from the
parts more suitable to application at the
facility level.

I

  Beverly’s corporate headquarters are now in
Arkansas. At the time of Beverly II and Beverly
III it operated 895 nursing homes throughout the
United States. It used (and as far as we know
still uses) a typical three-tier organizational
structure, moving from the corporate level
through the regional, and then down to the
individual facilities. Beverly formulates its
labor relations policy at the corporate level;
personnel at the regional level bargain with
unions over contracts and high level grievances.
Each facility’s own managers are responsible for
day-to-day activity at the facility, and they
handle front-line labor relations. Facility
managers report to regional "area managers," who
in turn report to the operations officials at
headquarters.

  In 1993, the Board found that Beverly had
committed various unfair labor practices at 33 of
its nursing homes, between 1986 and 1988. It
issued a corporate-wide cease and desist order,
which provided that Beverly should not violate
the Act, which specified the ways in which
Beverly had committed violations in its various
facilities, and which imposed a requirement that
the cease-and-desist order should be posted at
every one of its facilities. Beverly California
Corporation, 310 NLRB 222 (1992) (Beverly I). On
appeal, the Second Circuit concluded that the
order was too broad, given the nature of the
violations the Board had found, and that it did
not reflect the reality of the company’s central
control (or lack thereof) over the facilities.
Torrington Extend-A-Care Employee Ass’n v. NLRB,
17 F.3d 580 (2d Cir. 1994).

  Before Beverly I was finished, the General
Counsel of the Board issued a new consolidated
complaint on August 20, 1991, charging Beverly
with violations at another group of nursing homes
(eventually, 17 facilities). ALJ Peter E.
Donnelly held hearings on those matters on
various dates between November 12, 1991, and
March 26, 1993. In an opinion issued on June 29,
1994, he found that (1) Beverly and its nursing
home operating divisions, regions, wholly-owned
subsidiaries, and individual facilities
constituted a single integrated business
operation and a single employer, (2) Beverly had
committed many unfair labor practices as charged,
although in a nontrivial number of instances the
General Counsel had failed to prove the alleged
violations, and (3) a corporate-wide cease and
desist order and a requirement of posting notices
in every facility that detailed forbidden
practices was called for. See 326 NLRB No. 29,
attachment at 22-85. On appeal to the Board, most
of ALJ Donnelly’s decision was upheld, although
the Board found that some of the charges he had
rejected should have been sustained. With respect
to remedy, it coordinated its decision with the
resolution of Beverly III.

  This was possible because, while Beverly II was
working its way through the system, proceedings
in Beverly III had begun. On June 30, 1993, the
General Counsel issued a complaint in that
matter, and ALJ Lawrence W. Cullen held hearings
between November 30, 1993, and April 27, 1994, on
charges pertaining to 11 more nursing homes in
several different states. In a decision of June
12, 1995, ALJ Cullen also concluded (upon
independent consideration) that Beverly was a
single employer, and he upheld many (though not
all) of the charges. He too recommended a
corporate-wide cease-and-desist order, a posting
requirement, and detailed individual relief. 326
NLRB No. 30, attachment at 51-53. On appeal, the
Board also upheld the bulk of ALJ Cullen’s
decisions, again with a few disagreements. It
also approved the system-wide orders that both
ALJ Donnelly and Cullen thought were necessary:
it did this through the vehicle of a single order
entered in Beverly III, to which the decision in
Beverly II referred. (Although orders later than
Beverly III are not before us, we note that two
more proceedings have taken place in which ALJs
have found that Beverly committed similar
violations: Beverly Health and Rehabilitation
Services, Inc., et al., JD-204-97 (Nov. 26, 1997)
(Beverly IV); and Beverly Health and
Rehabilitation Services, Inc., JD-40-00 (March
23, 2000) (Beverly V).)

  On August 28, 1998, Beverly petitioned for
review of both Beverly II and Beverly III in the
Fourth Circuit; SEIU petitioned for review in the
Third Circuit and in this court. The Judicial
Panel on Multidistrict Litigation ("the Panel")
consolidated the petitions in Beverly II before
the Third Circuit, and in Beverly III before this
court. See 28 U.S.C. sec. 2112(a)(3) (conferring
this responsibility on the Panel). The Third
Circuit then granted Beverly’s motion to transfer
Beverly II to this court. The Board filed cross-
applications for enforcement.

II
  A.   Breadth of the Case

  Before turning to the specifics of the appeals
before us, a word about the scope of this case is
necessary. At every step of the way, Beverly has
in one way or another argued that this case is
just too big to manage: the Board should not have
consolidated the General Counsel’s charges with
respect to the various nursing homes for
disposition; the geographic scope is too broad;
and there are too many specific alleged problems
at individual facilities to make consolidation
efficient. Before this court, Beverly has
complained bitterly about the page limits that
were imposed upon its briefing, despite the fact
that we allowed it to file a brief 40% longer
than the rules normally permit. Finally, a
central part of Beverly’s argument on appeal is
its attack on the corporate-wide order that the
Board approved in Beverly III to address both
cases.

  These complaints are related to one another. We
explain here why we find them to be without
merit. A key point underlying the Board’s
approach to these cases is its finding--
uncontested in Beverly I, but made over Beverly’s
opposition in Beverly II and Beverly III--that
Beverly is a single employer, a single integrated
enterprise with a unified labor relations policy.
ALJ Cullen found the evidence on this point to be
overwhelming, and we agree. (Indeed, Beverly has
not challenged this finding on appeal; we mention
the point for purposes of giving perspective to
the broader issues it has raised, not because we
are reconsidering the correctness of the
finding.) ALJ Cullen relied on Beverly’s
hierarchical management structure, its decision
to limit the authority of area and individual
facility managers by overall corporate standards,
its central oversight of labor relations
functions in particular, the fact that labor
grievances bump up to the regional level at step
three, the fact that Beverly dispatches regional
human resources personnel to individual
facilities the minute a union organizational
effort begins, and other evidence to the same
effect.

  Viewed in this light, and also taking into
account the mounting evidence that Beverly
facilities continue to violate the law with
regularity, it is hardly surprising that the
Board would have considered corporate-wide relief
to be appropriate. When an employer has many
different facilities, all of which are affected
by the same general policies, the Board is not
required to proceed facility-by-facility, waiting
for the next shoe, and the next shoe, to drop. It
can instead require the company as a whole to
eliminate the policies that lead to the
commission of unfair labor practices by managers
lower down on the corporate ladder. That is not
to say, of course, that any particular corporate-
wide order is justified or not, and we consider
the one that the Board imposed here later in this
opinion. But in principle, this is a tool that
the Board is entitled to use. See J.P. Stevens &
Co., 245 NLRB 198, 199 (1979), enforced, 638 F.2d
676 (4th Cir. 1980); Florida Steel Corp., 222
NLRB 955, 956 (1976), enforced mem., 536 F.2d
1385 (5th Cir. 1976). Nothing in Torrington
Extend-A-Care, supra, is to the contrary; in that
case the Second Circuit merely found that the
record as of the time of Beverly I did not
support corporate-wide relief.

  There is no doubt that when corporate behavior
as a whole is challenged the record will often
contain myriad individual facts that add up to
create the case as a whole. This phenomenon is
not limited to labor law: mass tort claims,
consumer fraud claims, and environmental claims
can also involve many particularized injuries,
forms of fraud, or polluted sites. But the fact
of evidentiary detail is not something that
prevents consolidation of proceedings, either
before administrative agencies or before courts.
The Panel regularly sends complex cases to a
single district court for pretrial processing.
The transferee court manages the litigation by
creating committees of counsel, by imposing
strict discovery limits, by establishing
deadlines, and by using the other tools of the
trade. Here too, that is what happened both
before the Board and before this court. The
pressure of a large complex proceeding puts a
premium on good organization and efficient use of
time and space, but that is a good thing, not a
bad thing. Consolidation allows for consistency
in decisionmaking; it allows both the agency and
the reviewing court to see the big picture and
not to be misled by fragmentation; and it saves
resources for all concerned.

  Here, both the Board and Beverly had to present
their appeals under the same rules: the same page
limits and the same standard of review. Even when
it filed its brief, Beverly was apparently under
the misapprehension that more is always better
when it comes to briefing. It complained, for
example, that the page limits imposed by this
court precluded it from listing every issue
pertaining to each of 42 nursing homes in its
statement of the issues, and instead "forced" it
to offer what it gave us: the concise and helpful
statement that it was challenging whether
substantial evidence supported the Board’s
findings in numerous respects. A listing of all
those issues would only have made the brief
tedious to read, because everything would have
been repeated later in the brief in the
discussion on the merits. Furthermore, the
substantial evidence standard of review should
guide appellate counsel in the selection of
issues that deserve presentation to the court of
appeal. Arguments to the effect that the ALJ
should not have found certain witnesses to be
credible are, to put it bluntly, almost never
worth making. In short, given the scope of this
case and the kinds of arguments this court is
entitled to consider, the case was manageable
within the limitations we imposed.


 B.   Questions Presented

  Having disposed of Beverly’s complaints related
to the general scope of the case, we turn to the
substantive questions each of the parties has
presented on appeal. Beverly raises three basic
points: first, as noted, that there are 42
findings of unfair labor practices contained
within Beverly II and Beverly III that are not
supported by substantial evidence; second, that
the Board erred in Beverly III by imposing a
cease-and-desist order on all 895 of its
facilities rather than just the 27 facilities
where violations occurred; and third, that the
Board erred in Beverly III by ordering Beverly to
post remedial notices at all 895 of its nursing
homes, rather than simply posting notices at
individual homes that addressed the individual
violations that occurred there. SEIU’s appeal
concerns three particular nursing homes and the
remedial order in Beverly II: it claims that the
Board should have issued a bargaining order
against Beverly to remedy the unfair labor
practices it found at the East Moline Care
Center; that the Board should have found that
employee Dorothy Theunick was discharged by East
Moline based on her union activities; that it
should have found that Beverly withheld a
scheduled wage increase at Richland Manor based
on the employees’ refusal to withdraw an unfair
labor practice charge; and that there should have
been a separate nationwide remedial order entered
in Beverly II. The Board defends its orders in
all respects and seeks enforcement of them.


 C.   Standard and Scope of Review

  We have already alluded to the fact that our
review of the Board’s decisions is deferential.
The Act itself makes the point clearly by
specifying that "[t]he findings of the Board with
respect to questions of fact if supported by
substantial evidence on the record considered as
a whole shall be conclusive." NLRA sec. 10(e), 29
U.S.C. sec. 160(e). "Substantial evidence," the
Supreme Court has explained, is "such relevant
evidence as a reasonable mind might accept as
adequate to support a conclusion." Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). See
also American Grain Trimmers v. Office of
Workers’ Compensation Programs, 181 F.3d 810, 817
(7th Cir. 1999) (en banc). Thus, as long as there
is "substantial" evidence in the record
supporting the Board’s opinion, it does not
matter that there is also evidence in the record
that might support Beverly’s or SEIU’s view of
the case. Furthermore, as we pointed out in NLRB
v. Grancare, Inc., 170 F.3d 662 (7th Cir. 1999)
(en banc), we defer to the Board’s interpretation
of the statutes it is charged with administering
unless its view is arbitrary or capricious. Id.
at 666. Adding into the balance the fact that we
will virtually never second-guess a basic
credibility determination, it is clear that those
who challenge the Board’s determinations have a
difficult task in front of them.

  Before turning to a more detailed discussion of
the facilities at issue in the Board’s two
proceedings, we wish to make two points. First,
a review of the two ALJ opinions on which the
Board relied demonstrates clearly that each ALJ
carefully reviewed the evidence before him before
finding the violations that he did. On numerous
occasions, each ALJ concluded that the General
Counsel had supported some of the charges and had
failed to support others. A few examples suffice
to illustrate this point. One charge made in
Beverly II pertained to the discharge of Gladys
Hahn, who worked for a period of time at the Mark
Twain Hospital Facility in San Andreas,
California. Hahn was unhappy about the way that
the managers of Mark Twain handled the supply
system, and the managers instructed her not to
involve other employees in her complaints about
that system. The General Counsel alleged that
this violated sec.sec. 8(a)(1) and (3) of the
Act, but the ALJ found the charge
unsubstantiated, largely because he found that
Hahn was a supervisor not entitled to protection
under the Act. 326 NLRB No. 29, attachment at 37-
40. Also in Beverly II, the ALJ considered a
variety of charges relating to the Slayton Manor
Nursing Home, in Slayton, Minnesota, including
allegations that management posted an unlawful
no-solicitation rule, solicited and adjusted
employee grievances, created the impression of
surveillance, and threatened some employees with
discipline for speaking about the union or
failing to support Beverly’s position against the
union’s organizational efforts. The ALJ found
that the threats of discipline did not violate
the Act, because the threatened nurses were
supervisors; that the no-solicitation rule did
violate the Act; that the facts did not show that
an impression of surveillance was created; and
that a manager had improperly solicited and
adjusted employee grievances during an election
campaign. 326 NLRB No. 29, attachment at 46-47.
The discussions ALJ Cullen gave with respect to
the William Penn facility in Lewiston,
Pennsylvania, 326 NLRB No. 30, attachment at 13-
15, and with respect to the Deltona Health Care
Center, Deltona, Florida, id. at 18-24, are
similarly balanced. And these are just examples.
No one was receiving rubber-stamp treatment in
these cases.

  The second point is that, as the Board has
pointed out in its brief, Beverly has not
challenged a significant number of the Board’s
findings of particular violations at particular
facilities. We summarize them here:

Slayton Manor Nursing Home: violation of sec.
8(a)(1), overbroad no-solicitation rule.

Sanger Hospital: violation of sec. 8(a)(1),
coercion and threats to employee Garza.

Duke Convalescent Facility: (a) violation of
sec. 8(a)(1), threats of discharge to prounion
employee Johnson; (b) violation of sec.sec.
8(a)(1) and (3), from warning, suspending, and
then discharging Johnson; (c) violation of sec.
8(a)(1), removal of union materials from
facility.

William Penn Nursing Center: violation of sec.
8(a)(1), oral harassment of prounion employee
Black.

Deltona Health Care Center: various violations
of sec. 8(a)(1), including threats of loss of
licenses and jobs for engaging in union activity,
interrogations, and impression of surveillance.
East Moline Care Center: several violations of
sec. 8(a)(1), including threats to sell rather
than face unionization, threats to call police
for lawful handbilling, and interrogation.

Garden Terrace Nursing Center: violations of
sec. 8(a)(1) by interrogation, impression of
surveillance, threats of layoff, and permitting
only antiunion campaigning on election day.

Gulf Coast Convalescent Center: violations of
sec. 8(a)(1) by interrogation of employee Rogers,
and by prohibiting employees from wearing union
insignia while allowing other kinds of pins.

Mount Lebanon Manor Convalescent Care Center:
violation of sec. 8(a)(5) by failing to furnish
relevant bargaining unit information to union.

Danbury Pavilion Health Care Facility: violation
of sec. 8(a)(5) by unilaterally ceasing to pay
"short pay" to nurses.

Beverly Health Care Center: violation of sec.
8(a)(1) by telling two employees they would be
discharged if they refused to cross a picket line
and joined a strike; violation of sec. 8(a)(3) by
promising one employee that disciplinary warnings
would be rescinded if she stopped participating
in the strike, and then discharging her when she
refused.

Carpenter Care Center: violations of sec.sec.
8(a)(5) and (1) by unilaterally changing a
medication reimbursement procedure and by
refusing to furnish information to the union.

Valley Care and Guidance Center: violations of
sec. 8(a)(1) in various ways, including
soliciting an employee to sign a decertification
petition, interrogation, and demanding loan
repayment.

The Board argues, and we agree, that Beverly has
waived its defenses to these findings and that it
is entitled to summary enforcement with respect
to them. As established findings, furthermore,
these form part of the background against which
we will assess the remedy.

III

  We now turn to a brief discussion of the unfair
labor practices the Board found at each facility.
The background legal principles are well
established. Section 7 of the Act gives employees
the rights of "self-organization, to form, join,
or assist labor organizations, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted
activities for the purpose of collective
bargaining." 29 U.S.C. sec. 157. Section 8(a), to
which we have already referred a number of times,
defines certain practices that are forbidden to
an employer because they would interfere with the
employees’ sec. 7 rights. Thus, sec. 8(a)(1)
makes it an unfair labor practice for an employer
"to interfere with, restrain, or coerce employees
in the exercise of" their sec. 7 rights. 29
U.S.C. sec. 158(a)(1). Section 8(a)(3) makes it
illegal for an employer to discriminate "in
regard to hire or tenure of employment or any
term or condition of employment to encourage or
discourage membership in any labor organization."
29 U.S.C. sec. 158(a)(3). Section 8(a)(4) makes
it an unfair labor practice for an employer "to
discharge or otherwise discriminate against an
employee because he has filed charges or given
testimony" in proceedings related to the Act. 29
U.S.C. sec. 158(a)(4). Finally, sec. 8(a)(5)
makes it illegal for an employer "to refuse to
bargain collectively with the representatives of
his employees." 29 U.S.C. sec. 158(a)(5).


 A.   Instances Where Evidence Is Lacking

  We have carefully reviewed the administrative
record and have found, for the most part, that
the Board’s findings in both cases are supported
by substantial evidence. In three instances,
however, we have concluded that particular
findings must be reversed. We review these first,
before turning to our consideration of the
facilities and findings that we believe do not
require revisions.


 1.   Stroud Manor (Beverly II)

  With respect to Stroud Manor, the General
Counsel’s complaint alleged that Beverly had
violated sec. 8(a)(1) as follows:
. . . by soliciting employee complaints,
threatening employees, and promising benefits and
improved terms and conditions of employment to
Respondent’s employees if they rejected [the
Union] as their collective-bargaining
representative; promising to redress an
employee’s grievance concerning tuition
reimbursement; threatening employees with less
favorable working conditions if they selected the
Union as their bargaining representative;
threatening employees that Respondent would no
longer grant favors if the employees selected the
Union as their bargaining representative; and
threaten[ing] employees with less favorable
working conditions if they selected union
representation by telling the employees that an
entire day must be requested if the employee has
a medical appointment during the workday.
326 NLRB No. 29, attachment at 73.

   The ALJ upheld some of these allegations and
rejected others. He found, and the Board agreed,
that Jay Begley and Greg Thomas, regional human
resources representative for Beverly, promised to
fix a tuition reimbursement problem for employee
Jeanette Drake, and did so with the assistance of
facility administrator Mary Lou Shannon. He
further found that under the circumstances, "when
Drake was approached by Shannon during the
election campaign with a promise to expedite this
payment, such remarks violate[d] Section 8(a)(1)
of the Act." Id. at 74. The ALJ also found other
forbidden promises of benefits during the
campaign that violated section 8(a)(1). On the
other hand, he rejected the charge that a letter
dated July 23 that Shannon distributed that urged
employees to vote against the Union constituted
an unlawful threat of less favorable working
conditions if the union won. He rejected the
claim that the director of nursing, McGonnigle,
unlawfully threatened employee Jimenez with less
favorable working conditions by telling her she
would need a full day off for medical
appointments. He found a violation of sec.
8(a)(5) established in the facility’s withholding
of all wage increases for the year 1992 without
notice to the Union, in contravention of its
practice in years past.

  While most of these findings, both pro and con,
are supported by the evidence, we agree with
Beverly that Begley (as opposed to Thomas and
Shannon) did not make an improper promise or take
improper action with respect to Drake’s tuition
reimbursement problem. All Begley did was to hold
a meeting with the licensed practical nurses
(LPN) to explain Beverly’s position against the
Union. He compared the salaries the LPNs were
making with those that LPNs working at unionized
facilities earned. He then asked for questions,
and Drake responded with her inquiry about why
Stroud Manor was taking so long to reimburse
employee tuition bills. Begley replied that the
time lags were because of the company’s financial
problems, but that its situation was stabilizing
and he thought the speed of reimbursements should
improve.

  The ALJ saw this as the solicitation of
grievances, which raised a rebuttable presumption
of a violation of sec. 8(a)(1). But employers are
allowed to conduct anti-union campaigns if they
wish. See NLRA sec. 8(c), 29 U.S.C. sec. 158(c);
NLRB v. Gissel Packing Co., 395 U.S. 575, 617
(1969); BE & K Const. Co. v. NLRB, 133 F.3d 1372,
1376-77 (11th Cir. 1997). The only thing that is
forbidden is an unlawful coercive promise or
threat. Employers are also permitted to offer
opinions about matters that are not within their
control, because those statements are unlikely to
be perceived as threats or promises. See Gissel,
395 U.S. at 618. Here, both sides agree that
Begley merely made a general statement about the
condition of the company. We do not see in his
response the kind of "promise" of help with
Drake’s own tuition problem that is forbidden.
Shannon, of course, is another matter. The ALJ
found as a fact that Shannon affirmatively sought
out Drake, told her she would look into the
delay, did so, and promised Drake she would have
a check within two weeks. But Begley did no such
thing, and we find that the Board had no other
substantial evidence on which to base a
conclusion that Begley’s actions constituted a
separate violation of sec. 8(a)(1).

  Beverly also challenges the finding of a
violation of sec. 8(a)(1) with respect to
Thomas’s conversation with Drake. Unlike Begley,
however, Thomas was conducting one-on-one
meetings with the LPNs. In these meetings, he
introduced himself, explained the company’s
position, encouraged them to vote, and asked if
they had any questions. When he gave Drake this
invitation to speak, she raised the tuition
problem with him. Thomas testified that "he may
have told Drake he would look into it for her,
but has no recollection of doing so except to the
extent that he may have mentioned it to Mary Lou
Shannon, the administrator at the facility." 326
NLRB No. 29, attachment at 73. That is, however,
a rather large exception, given the fact that it
was the very next day that Shannon approached
Drake about the problem. In our view, this is
enough to distinguish Thomas’s case from
Begley’s, and enough to support the ALJ’s
conclusion that Thomas was promising a specific
benefit.

  Last (for Stroud Manor), Beverly argues that
the Board erred in finding a violation of sec.
8(a)(5) in the failure to give the employees a
wage increase while negotiations were taking
place. It attempts to refute the finding that
Stroud Manor/Beverly had established a pattern of
annual wage increases by showing that in 1989 it
gave 3%, in 1990 it gave 40 cents across-the-
board in March and another 30 cents across-the
board in September, and in 1991 it gave a 4%
anniversary raise. This evidence tends more to
support the ALJ’s conclusions than to undercut
them, in our view, even though the 1990 figures
are not expressed in percentage terms. We reject
its challenge to this finding.


  2.   Wyoming Valley (Beverly II)

  The charges with respect to the Wyoming Valley
facility pertained only to its treatment of
Christopher Tausch, an employee who was an
acknowledged "colonizer," or union activist who
had taken the job solely for the purpose of
helping to organize the workforce. See NLRB v.
Town & Country Electric, Inc., 516 U.S. 85
(1995); Starcon, Inc. v. NLRB, 176 F.3d 948 (7th
Cir. 1999). At the time he was hired as a nurse’s
aide, Tausch did not disclose his union identity
to Beverly and he lied about his level of
education on his application (he was in fact a
1990 graduate of Rutgers University with a
scholastic concentration in labor studies). It
was his intention to obtain the names, addresses,
and telephone numbers of the Wyoming Valley
employees in order to solicit them in the Union’s
organizing effort.

  On the evening of March 27, 1991, during a work
break, Tausch went into the kitchen area of the
dietary department. While there, he first spoke
with employee Charles Weitz about the Union and
asked Weitz for the names and addresses of two
other dietary employees. Weitz told him that the
information was on a list located in the office
of the department manager, Richard Rutkowski, who
was absent at that time. Tausch went into
Rutkowski’s office, sat down at his desk, and
copied from a list taped to the wall the names
and telephone numbers of the people he wanted to
solicit. Later that night Rutkowski returned, and
Weitz reported to him that "a nurse" had been in
his office writing down telephone numbers. The
next day, Tausch and another person visited Weitz
at his home and asked for his personal support
for the Union and his help in soliciting others.
Weitz was not interested; at that point, Weitz
revealed to Rutkowski that "the nurse" was Tausch
and he complained about being bothered.

  Rutkowski consulted with his supervisor, Nancy
Wilson, about what to do. Wilson kicked the
problem up to the facility administrators, and
the head administrator, Donna Connery, decided
that Tausch should be terminated for unauthorized
entry into the restricted dietary department area
and for removing confidential employee
information (i.e., the telephone numbers and
addresses) from the premises. As a precaution,
Connery also notified Wayne Chapman, Beverly’s
regional director for human resources, of what
she planned to do; Chapman concurred in her
decision.

  The ALJ found (correctly anticipating the
Supreme Court’s decision in Town & Country
Electric) that Tausch was an "employee" under the
Act notwithstanding his status as a paid union
organizer. 326 NLRB No. 29, attachment at 56. He
concluded, however, that Tausch’s activity was
not protected and thus that his discharge did not
violate sec.sec. 8(a)(1) and (3). The Board
reversed the ALJ on this point, finding that the
telephone numbers were not "confidential"
(because they were available out in the open by
the nurses’ station), that the confidentiality
rationale for firing Tausch was thus pretextual,
and that he was really fired because he was
engaging in union activities. 326 NLRB No. 29, at
3-4.

  We agree with Beverly that the ALJ got this one
right. It is of course true that an employer
violates sec. 8(a)(3) by retaliating against
employees for engaging in union activities. See,
e.g., NLRB v. Louis A. Weiss Memorial Hosp., 172
F.3d 432, 442 (7th Cir. 1999). But an employer
does not violate the statute if it can show that
it would have taken whatever action it took for
legitimate reasons, whether or not the employee
in question had engaged in union activities. Id.
Here, it is undisputed that Tausch did not obtain
the telephone numbers and addresses in an open
and unobjectionable way, such as by copying them
from an employee directory available to everyone,
or even by sitting down at the quasi-public
nurses’ station and writing them down. Instead,
he sneaked into Rutkowski’s office when Rutkowski
was away, jotted them down, and slipped away
again. Beverly was entitled to take into account
the totality of the circumstances surrounding
Tausch’s behavior. There is no evidence at all to
suggest that it would have tolerated this
behavior from committed union opponents. In our
view, therefore, the Board had no evidence upon
which to rest its reversal of the ALJ’s
conclusion here, which was based on the ALJ’s own
opportunity to observe the witnesses and to make
credibility assessments. The conclusion that
Beverly committed violations at Wyoming Valley
must therefore be reversed, as there was nothing
other than the Tausch incident at stake.


  3.   Duke Convalescent Facility (Beverly II)

  This was another facility for which the General
Counsel brought a substantial number of charges.
Some of the Board’s findings of violations, as
noted above, are not challenged on appeal: (1)
administrator Eigen violated sec. 8(a)(1) when he
threatened prounion employee Amy Johnson with
discharge; (2) Eigen and regional human resources
representative Martinez violated sec.sec. 8(a)(3)
and (1) by warning, suspending, and ultimately
discharging Johnson; and (3) food service manager
Pereira violated sec. 8(a)(1) by removing Union
paraphernalia from the facility.

  Beverly does, however, challenge other aspects
of the Board’s findings with respect to Duke
Convalescent. First, it contests the Board’s
finding (reversing the ALJ) that Steve Marek, a
labor consultant Beverly had hired to assist
management at the facility, violated sec. 8(a)(1)
when he spoke to Valerie Faulkner and Harry
Brooks, two known Union sympathizers, about what
they thought a union would do and (in Brooks’s
case) how he was going to vote in the election.
The ALJ had concluded that these conversations
were protected, on the ground that there was
nothing coercive or improper in asking these
questions to open Union sympathizers. See Hotel
Employees & Restaurant Employees Union, Local 11
v. NLRB, 760 F.2d 1006, 1009 (9th Cir. 1985)
(affirming Rossmore House, 269 NLRB 1176 (1984)).
The Board explained its reversal of that finding
by the fact that even open union adherents can be
subjected to invalid coercive interrogation (a
proposition that Rossmore House, on which Beverly
principally relies, also acknowledges). An
employer is not free to probe "directly or
indirectly into [an employee’s] reason for
supporting the union." TRW-United Greenfield
Division v. NLRB, 637 F.2d 410, 418 (5th Cir.
1981). If an interrogation is "coercive in
nature" it makes no difference that the attempt
at coercion was not successful. Id.; accord NLRB
v. Brookwood Furniture, 701 F.2d 452, 463 n.35
(5th Cir. 1983). While we agree with Beverly that
this is a close point, we think the Board--which
was able to consider the actual remarks made to
these employees--had evidentiary support for its
conclusion and thus we have no basis on which to
reverse it.

  Beverly’s second challenge relating to Duke
Convalescent relates to the section 8(a)(1)
finding based on administrator Eigen’s statement
to Faulkner that she had missed a meeting in
which employees were reminded that speaking about
Union activity was prohibited in front of
residents or on the nursing floor and that it had
to be restricted to the break area. He also told
her in the same conversation that he would not
tell her how to vote, even though he knew where
she stood. Eigen denied making these statements,
but the ALJ chose to believe Faulkner’s account
and it is on that basis that we evaluate the
charge. The ALJ found, and the Board agreed, that
this was enough to create the impression of
surveillance in Faulkner. He also found that the
restriction of organizing to the breakroom was
unlawful because it limited such activity to a
greater extent than was permissible under the
law.

  As Beverly did in its brief, we take the two
points separately: surveillance, and undue
restriction of areas for organizing. We agree
with Beverly that the conclusion that Faulkner
would have thought she was under surveillance
finds no support in the evidence. The ALJ
wondered how Eigen would have known she was pro-
union if surveillance had not been underway, but
he provided the answer to his own question later
on in his opinion: "In reviewing the record, it
is clear that Faulkner was among the most active
and vocal of the union supporters and that her
union sentiments were well known to management,
including Eigen and Leonard." 326 NLRB No. 29,
attachment at 63. The Board’s only response to
this problem in its brief is to suggest that
Eigen did not know Faulkner was an active Union
supporter at the time he approached her, and thus
she could only have concluded that she was under
surveillance. But there is no serious evidence to
support that hypothesis, and speculation does not
amount to substantial evidence. The ALJ found
that Faulkner was an active Union supporter "from
the beginning of the Union’s organizational
effort in early January 1991," id. at 62, which
would mean that her Union identification would
have been known by January 26, 1991, when the
conversation with Eigen took place. Id. at 61. We
therefore agree with Beverly that the evidence
does not support a finding that the company
violated sec. 8(a)(1) by creating the impression
of surveillance in Faulkner.

  Evidence does support the other part of the
Board’s finding, however, which was that Eigen’s
advice on where organization activities could
take place was too restrictive. Indeed, Beverly
itself seems to concede this in its brief, when
it dismissively states that Eigen cannot be
criticized for "[h]is failure to meticulously
identify each and every non patient-care area."
Beverly Brief at 32 n.11. But it is clearly one
thing to tell the employees that they must keep
their organizational activities away from the
patients, and another to tell them that only the
breakroom is available. Patients did not have
access to locker rooms, the kitchen, or "med
rooms," and the employees therefore had the right
to engage in organizational activities there as
well. See Beth Israel Hosp. v. NLRB, 437 U.S.
483, 506-07 (1978).

  Of the other violations the Board found at Duke
Convalescent, the only one Beverly challenges is
the finding that it violated sec. 8(a)(3) by
requiring Faulkner to obtain a doctor’s note
before she returned to work, when she had
experienced one bout of nausea early in her
pregnancy. Despite the fact that her doctor gave
her a note saying that she could work until her
first prenatal visit, assistant director of
nursing Leonard refused to put her on the
schedule until she obtained a formal medical
certificate. His ostensible reason was concern
for her baby, but the evidence showed that other
employees were able to work during pregnancy
without being required to furnish certifications.
Furthermore, Faulkner left only once because of
nausea. The Board was entitled to treat this
action as discriminatory and the explanation as
pretextual.


  B.   Other Facilities

  Our discussion of the Board’s findings at the
remaining facilities will be briefer. We find
that substantial evidence supports its
conclusions with respect to these locations, and
we refer those who would benefit from a more
complete discussion of the evidence to the
opinions of the Board and the attached opinions
of the two ALJs.


  1.   Pioneer Place (Beverly II)

  At Pioneer Place, management decided to create
an employee council that was to be composed of
employees and managers. Section 8(a)(2) of the
Act declares that it is an unfair labor practice
for an employer to dominate or interfere with the
formation or administration of any labor
organization or contribute financial or other
support to it. 29 U.S.C. sec. 158(a)(2). Section
2(5) of the Act defines a labor organization as
"any organization of any kind, or any agency or
employee representation committee or plan, in
which employees participate and which exists for
the purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or
conditions of work." 29 U.S.C. sec. 152(5).
  Under this definition, the Board could
reasonably have concluded that the council would
constitute a labor organization. There was
evidence that (1) the unit employees were going
to participate in the council, (2) the council
was to have existed at least in part for the
purpose of dealing with the employer, and (3)
those dealings would have concerned "grievances,
labor disputes, wages, rates of pay, hours of
employment, or conditions of work."
Electromation, Inc. v. NLRB, 35 F.3d 1148, 1158
(7th Cir. 1994). Furthermore, the Board could
have concluded that the council would be under
Beverly’s domination, because it was the creature
of the facility’s management.


  2. Fountainview Place (Beverly II)
  On the day before a representation election,
Beverly’s human resources representative
contacted the union organizer, Kidwell, to find
out which employees would be the designated Union
observers for the election. Kidwell did not
identify them by name, but he did say that there
would be one aide on each of the two shifts. In
fact, it was Nurse’s Aides (NA) Lillie Davis and
Kastle Gannon who acted as Union observers. As a
result, they were tardy in reporting to their
workstations on the day of the election. Nothing
was said to them at the time, but facility
management disciplined them four days later. The
Board found that the discipline was based on
anti-union animus and thus violated sec. 8(a)(3).
The record also showed that Beverly knew why
these two were late.

  Beverly makes much of the fact that Kidwell
only stated two "aides" would act as observers;
he did not specify that the observers would be
NAs. However, as the ALJ correctly noted,
Fountainview’s Director of Nursing testified that
she knew the day prior to the election that two
NAs would be used as observers. 326 NLRB No. 29,
attachment at 27; Beverly Supp. App. at 32.
Therefore, Kidwell’s precise wording is
irrelevant. Beverly also argues that it needed to
know the aides’ precise identities before their
absence, so that it could prepare adequately. But
it did not say this to Kidwell when he responded
to the inquiry, nor did it explain why it was not
enough to know that a couple of NAs were going to
be a little late reporting for duty. Substantial
evidence supported the Board’s finding of a
violation.

  Beverly also challenges the Board’s finding that
Joyce Williams, a member of Beverly’s labor
relations staff, made a threat against Lillie
Davis on the day of the Union election. The ALJ
credited Davis’s unrebutted testimony as to the
content of Williams’s remarks, and found that,
taken in context, the remarks amounted to
"unspecified threats of reprisal." 326 NLRB No.
29, attachment at 28. The ALJ was entitled to
make these credibility determinations, and we
will not disturb them.


  3.   Liberty House Nursing Home (Beverly II)

  Peggy Urban, a long-time employee and active
Union participant, was discharged after a new
employee claimed that she saw Urban hit a
patient. Urban had cared for the patient for some
time, and there was substantial evidence before
the Board tending to show that the patient held
Urban in high regard. Upon investigation, there
was no evidence of physical abuse on the patient,
and the patient herself could not confirm that
she had been hit (though she was not in full
command of her faculties). Urban denied any
abuse, and another aide (Nicely) backed up her
account to the extent of confirming that there
was no slapping.

  The ALJ found that Beverly’s investigation of
the incident had been cursory and that Urban had
been discharged solely on the basis of the
unsupported, uncorroborated observations of one
individual. He concluded, and the Board agreed,
that Liberty House "simply embraced the
opportunity to rid itself of an active union
adherent." 326 NLRB No. 29, attachment at 30.
Beverly responds only that other employees were
sometimes discharged for patient abuse (which we
do not doubt is true), but that does not respond
to the specific evidence on which the Board
relied. Its inference that the real reason for
Urban’s discharge was anti-union animus must
therefore stand.


  4.   Mount Lebanon Convalescent Center (Beverly
II)

  Problems arose at Mount Lebanon when facility
administrators decided to implement a new master
schedule without consulting with the Union. The
collective bargaining agreement (CBA) contained
general language giving the company the right to
"direct, control, and schedule its operations
work force." The Board agreed with the ALJ’s
finding that Mount Lebanon’s action violated
sec.sec. 8(a)(5) and (1), because it changed the
schedule without bargaining in a way that reduced
the hours and thus the wages of unit employees.
In such circumstances, unless there is a clear
waiver of the Union’s right to bargain over such
matters in the CBA, unilateral action is
precluded.

  The Board was correct to conclude that waivers
of statutorily protected rights must be clearly
and unmistakably articulated. See Metropolitan
Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
Even though this contract says that the company
may "schedule its operations," it does not say
anything about schedule changes that affect hours
and wages (as opposed to simply scheduling
employee A for one shift and employee B for
another one). A clause this general is not enough
to support a finding of waiver of the Union’s
sec. 8(a)(5) rights. Cf. Bonnell/Tedegar Indus.
v. NLRB, 46 F.3d 339, 346-47 (4th Cir. 1995)
(Union did not unequivocally waive right to
bargain over Christmas bonus); NLRB v. New York
Tel. Co., 930 F.2d 1009, 1012 (2d Cir. 1991)
(provision in CBA authorizing Union access to
personnel records with employee’s permission did
not unequivocally waive Union’s right to access
records without permission if necessary to
process grievances).


  5.   West Haven Facility (Beverly II and III)

  This case also involved a change in hours and a
violation of sec. 8(a)(5). Facility administrator
Robert Haswell notified the Union that West Haven
was going to change the break times of the
dietary employees, and it did so. The Board found
that the company had unilaterally implemented
this change, without giving the Union a chance to
bargain. In this instance, rather than relying on
a "management rights" clause, Beverly argues that
it was willing to bargain with the Union but the
Union never attempted to do so. The evidence to
which it points, however, does not support that
interpretation; it shows only that the employees
were told their break times were going to change,
and that they later filed grievances about it.
Beverly Brief at 40; Beverly Supp. App. at 293-
309. The record shows that the break schedule was
changed "several days" after the announcement,
and the Board was entitled to conclude that this
was not enough time for bargaining to take place.
Evidence also supports the finding, uncontested
by Beverly, that the company violated sec.
8(a)(5) by refusing to give the Union a list of
the names, addresses, and rates of pay for all
current, regularly scheduled Registered Nurses
(RNs) and Licensed Practical Nurses (LPNs). The
Union needed this information to evaluate the
company’s claim that many of these nurses were
independent contractors rather than employees.


  6.Beverly Manor Convalescent Hospital, Monterey
(Beverly II)

  Beverly Manor (Monterey) issued a warning to
Nelia Aldape, a Certified Nurse’s Assistant (CNA)
regarding a complaint that she had mistreated a
patient (essentially by being rude to her).
Aldape was an active participant in a Union
organizing campaign. When the administrator of
the facility, Susan Chavis, alerted Beverly’s
area manager, Ronald McKaigg, to Aldape’s
conduct, he determined that the infraction was
actually a dischargeable offense; the matter was
reopened and Aldape was discharged. In addition,
when Chavis learned that a petition was being
circulated on behalf of the Union, she summoned
help from McKaigg, who addressed a meeting of the
employees at the facility and asked them why they
were starting problems. He also told them that he
did not like unions and he recounted an incident
when he crossed a picket line and was later
beaten up and had his car vandalized. The
employees responded by airing some grievances.

  The Board (overruling the ALJ on this point)
found that McKaigg’s comments violated sec.
8(a)(1), because the meeting involved coercive
interrogation and appeared to be illegal
surveillance of the employees’ Union activities.
Beverly notes that there must be something
coercive about the interrogation, see NLRB v.
Champion Laboratories, 99 F.3d 223, 227-28 (7th
Cir. 1996), and it claims that there was nothing
wrong in McKaigg’s "rhetorical" questions and
statements of opinion. The Board, disagreeing,
construed McKaigg’s remarks as coercive. This
strikes us as the kind of question of judgment on
which deference is required; merely to say that
there was another way of looking at the evidence
cannot carry the day for Beverly.

   As for Aldape, Beverly argues that it met its
burden of showing that she would have been
discharged even if she had never engaged in Union
activities. Although it argues that the finding
of the California Department of Health Services
that Aldape was indeed guilty of patient abuse is
helpful to it, the Board correctly responds that
this cannot be the case, because the findings of
the state licensing agency issued after Beverly
discharged her. At most, that fact would affect
the proper remedy. The ALJ found that there was
"clear and convincing evidence"--not just
substantial evidence--that Aldape’s discharge was
motivated by her Union activity. The company’s
own behavior showed that it did not regard her
rudeness to the patient as grounds for discharge,
until after McKaigg intervened; it gave her only
a warning and then re-opened the matter.
Furthermore, director of nursing Asfoor directly
told Aldape that her suspension was related to
her union activity (a fact not only established
by Aldape’s testimony, but also corroborated by
that of another employee). That is plenty to
support the Board’s conclusions.


 7.   Slayton Manor (Beverly II)

  In this facility, regional human resources
manager Barbara Katella invited the employees to
contact her about work-related problems. Even
though she did not in the final analysis give the
employees any benefits they did not already
enjoy, the Board found that she would not have
acted as a facilitator if there had been no
pending union petition at the facility. On that
basis, it found a violation of sec. 8(a)(1). (It
also made the uncontested finding that Beverly
posted an unlawfully broad no-solicitation rule
at the facility, as noted above.)
  During a union organizing campaign, the employer
must conduct "business as usual" with respect to
existing personnel policies and practices. NLRB
v. Exchange Parts Co., 375 U.S. 405, 408-09
(1964). The Board was entitled to find that
intervention on behalf of the facility’s
employees by a mid-tier corporate manager was a
benefit beyond "business as usual." Beverly has
not offered any evidence to show that employees
who received help from Katella would have gotten
the same benefits in the same time frame. We are
thus not persuaded that the finding must be
overturned.


  8.   Kewaunee Health Care (Beverly II)

  No one disputes that the initial step taken
here by the facility administrator, Steven
Bavers, was unlawful. In the midst of contract
negotiations that were going on at the facility,
Bavers issued a memorandum telling the employees
that they were forbidden from distributing
informational pamphlets. A day later, after
lawyers were contacted, the facility (through the
director of nursing, Kathy Zuege) issued a second
memorandum stating that leafletting was
permissible if there was no patrolling or
blockage of access. The new memo made no
reference to the earlier memorandum, but instead
purported only to be a general statement of the
company’s views on leafletting.

  The Board found that the second memo did not
cure the first, which standing alone amounted to
an unfair labor practice. Some employees still
did not leaflet, even after the second memo,
because they were afraid that they might violate
the company’s rules. Beverly tries to portray
this as a case of quick correction and no harm,
but the record showed otherwise, and the Board’s
conclusion that a violation had occurred did not
go beyond the boundaries of that evidence.


  9.   Richland Manor (Beverly II)

  At Richland Manor, the General Counsel’s
complaint alleged that Beverly had violated
sec.sec. 8(a)(1) and (4) by refusing to pay RN
employees a scheduled wage increase, denying RN
employees the use of established internal
complaint procedures to file a grievance, and
conditioning payment of their wage increase on a
withdrawal of unfair labor practice charges filed
by the Union. The ALJ found that the evidence did
not support a finding that the wage increase was
withheld because charges were filed and testimony
given to the Board. The ALJ also found that
Beverly did not violate section 8(a)(1) through
administrator Poltarack’s statement at a May 1,
1991, meeting asking the nurses to seek
withdrawal of the unfair labor practice charges
in order to receive the wage increase. On this
point, the Board disagreed and found a violation.
Even though the nurses themselves were not
bargaining unit employees, such an act could
chill Union activism of covered employees.

  The wrinkle in the case was this: everyone
agreed that the company did not put the wage
increase into effect in January, and that it
later did so in June, retroactive to January 1
without requiring the charges to be withdrawn.
But, as the Board found, during the six-month
interim, employees might well have felt deterred
from supporting the Union while they did not know
what the company ultimately would do. In
addition, there is no precedent that requires a
company to follow through with its threats in
order to violate sec. 8(a)(1)--that is completely
inconsistent with the well established fact that
threats themselves can be an unfair labor
practice. See, e.g., Central Transport, Inc. v.
NLRB, 997 F.2d 1180, 1190-91 (7th Cir. 1993)
(supervisor’s threats to close down plant were
unfair labor practice despite supervisor’s lack
of authority to effect plant closure).

  We also find without merit SEIU’s argument that
the Board should have found that the wage
increase was illegally withheld from the nurses
at Richmond. The company did finally grant the
increase, and it made the grant retroactive. As
a matter separate from the chilling effect
argument we have just addressed and with respect
to which the Board found a violation, there is
nothing to the wage increase point.


 10.   Beverly Manor, San Francisco (Beverly II)

  At Beverly Manor, San Francisco, Enid Begay was
the facility administrator and Rubin Logan was
the director of nursing. On May 7, 1991, Johnny
Scott was hired as a certified nurse’s aide.
Shortly thereafter, Logan questioned Scott about
his feelings toward the Union at the facility.
Scott replied somewhat negatively, saying that it
was necessary to be in the Union to work there
and that he had some prior negative experiences
with unions. Logan then asked Scott if he would
support a decertification petition. Scott
repeatedly refused to do so, and Logan criticized
him continuously. (It appears that Logan was
generally unpleasant; he treated some other
employees poorly as well and even spit at one.)
Logan finally fired Scott for refusing to
participate in a decertification effort--an
action that the Board found to be a violation of
sec.sec. 8(a)(3) and (1).

  Beverly argued that it should not be
responsible for a character like Logan, because
Logan was behaving in a way that was detrimental
to its interests in maintaining harmonious
relationships with its employees. But, for better
or worse, Logan was Beverly’s managerial
employee, and the Board was not holding Beverly
responsible for Logan’s manners. Instead, it held
Beverly responsible for Logan’s act of firing
Scott, which was within his authority as director
of nursing. This finding was well supported by
the evidence, and no principle of agency law
exonerates Beverly here.


  11. Carpenter Care Center (Beverly II)
  The Board found two violations at Carpenter
Care. The first was based on disciplinary
warnings. Timecard violations had been going on
at the facility from at least January of 1991,
with only one warning issued. When July of 1991
arrived, however, the Union informed management
that informational picketing was scheduled to
take place on July 18. On the latter date, along
with the employee paychecks, the supervisor gave
disciplinary warnings to 26 employees for
timecard violations. Beverly claims that the
warnings just happened to be meted out on July 18
because it was payday, and that the reason they
came out of the blue then was because a new
supervisor had just come on the scene. But
neither the ALJ nor the Board was compelled to
accept that explanation, and neither one did.
Instead, they found that the warnings were
motivated by a desire to interfere with union
organizing. This was a permissible inference from
the evidence.

  The second violation the Board found at
Carpenter Care was based on a discharge. The
Union filed a complaint to initiate an
Occupational Safety and Health Administration
(OSHA) safety investigation at the facility. OSHA
responded and made plans to come and videotape
the way in which residents were lifted and
transferred by employees. A team that included
the director of nursing asked Olive Wells, a
patient, if she would sign a release consenting
to be videotaped. Wells seemed to be worried
about a government agency coming into the
facility and indicated an interest in speaking to
her daughter before signing the form. Employee
Allison Reaves learned that Wells was upset about
the exchange, and she told Wells that it would be
"fine" if she signed the release. Carpenter
Care’s management then suspended Reaves, claiming
that she yelled at Wells. Reaves denied the
allegation.

  The Board found that Reaves’ comment to Wells
fell within the scope of Union activity, because
the union had initiated the OSHA investigation.
(This is another instance in which the Board
disagreed with the ALJ, which is naturally within
its prerogative to do.) It then decided that her
suspension (which was later downgraded to a
written warning and instruction on residents’
rights, after she filed a grievance) was a
violation of sec. 8. Beverly offers no serious
argument against this, except to say that Reaves
was not furthering any Union objective when she
spoke with Wells. This is yet another instance
where the inferences drawn from specific facts
can go either way, and thus where we must defer
to the Board.


  12.   Valley Care and Guidance Center (Beverly
II)

  This part of the story began with employee
Helen Williams going to Carolyn Hankinson, the
facility administrator, to ask how she could go
about getting rid of the Union. Hankinson passed
the inquiry along to Rod Panyik, the director of
human resources, who responded to Hankinson in a
letter that laid out the options (a
decertification election and a withdrawal of
representation based on "objective
considerations"). Hankinson explained this to
Williams and gave Williams model language to be
used in a decertification petition that might be
circulated among the employees. Hankinson also
told Williams that she would "stand by her," and
was as good as her word. Hankinson understood
that Williams wanted moral support, and she
warned Williams that company property could not
be used for the effort. But Hankinson personally
drove Williams to the home of another employee,
where both Williams and Hankinson urged the
employee to sign the petition. Williams collected
a substantial number of signatures, and after she
delivered them to Hankinson, Hankinson wrote to
the Union representative and announced that they
were withdrawing recognition.

  The Board found that the decertification
petition was unlawful because of the active role
Hankinson played in its drafting and circulation.
Beverly argues in response that several other
employees had also collected enough signatures to
show that the decertification desire was a
genuine one and was objectively supportable even
before Hankinson drove Williams around. But this
is a credibility question, and the ALJ decided
that there were not enough signatures before that
time. No reversible error occurred here.


  13.   William Penn Nursing Center (Beverly III)

  William Penn management found out that a union
campaign was underway, and it reacted quickly
with a wage increase. The Board found that this
violated sec. 8(a)(1), as a benefit offered to
sway the voters. Beverly retorts that the wage
increase was approved by human resources
representative Ray Martinez before Martinez knew
about the union campaign. But Martinez offered
this explanation to the ALJ, who did not believe
him. It is worth noting, incidentally, that the
ALJ and Board did not find the wage increase
itself to be a violation; the violation was in
making the announcement on a date timed to
bolster the employer’s effort to undercut the
Union’s organizational efforts.

  Beverly also raises a second challenge related
to William Penn, to the Board’s finding that it
violated sec. 8(a)(1) there by creating the
impression of surveillance. An employee, Polly
Black, visited a co-worker’s home one evening to
discuss the Union. The next morning, facility
administrator Kenneth Horvath greeted her with
"Good morning, Mrs. Black, I understand you had
a busy night last night," and asked her to meet
with him later. The Board, overruling the ALJ,
found that this incident created an unlawful
impression of surveillance. Black had also
testified that Horvath’s use of the more formal
"Mrs. Black" instead of "Polly" created a cold
impression. The Board was within its rights to
conclude that a statement implying that the
administrator was keeping an eye on Black’s off-
hours, off-premises conduct created an impression
of surveillance that was impermissible. Once
again, the fact that this incident can be seen in
a more innocuous light is not enough to win the
day for Beverly.


  14.   Greenwood Health Center (Beverly III)

  At Greenwood, employee Louis Saez, in his
capacity as Union delegate, filed a grievance
with the facility director of environmental
services, Robert Flynn, complaining about
disrespectful treatment of employees by
supervisors. Instead of meeting with Saez as
requested, Flynn questioned other employees about
the grievance and held a meeting at which he
discussed it. He gave Saez no advance notice of
the meeting, and refused to address Saez in his
capacity as Union delegate. The ALJ, and then the
Board, found that Flynn violated sec.sec. 8(a)(5)
and (1), first by interrogating the employees
directly about the grievance rather than by going
through or including Union delegate Saez, and
then by having a grievance meeting without proper
notice to the Union representative.

  Beverly argues that there was no refusal to
bargain because Flynn was just "speaking" to the
employees, not negotiating a settlement of the
grievance. And, even though Saez did not know
about the meeting in advance, there was a
meeting--a sort of no harm, no foul argument.
These points do not persuade us to overturn the
Board’s findings. There was a specific procedure
to follow with grievances, and Beverly did not
follow it. Instead, it tried to cut the Union out
of the process in an impermissible way that
violated sec. 8.


 15.   Deltona Health Care Center (Beverly III)

  Here, facility administrator Kantarze put up a
poster supporting management just outside her
office. The poster proclaimed, "We want to give
new management a chance. We don’t need a union
now." Kantarze had all the department heads sign
the poster; below their signatures was some blank
space. Dozens of employees signed the poster in
that space. The Board found that the poster
amounted to a violation of sec. 8(a)(1) because
it pressured the employees to indicate their
Union sentiments. Beverly responds that there was
no coercion or interference involved either in
the posting or in the implicit invitation to
"sign on" to the anti-union sentiments.

  An employer may hand out anti-union
paraphernalia, like coffee mugs with "vote no" on
them, without violating the Act. Circuit City
Stores and Limited Food & Commercial Workers, 324
NLRB 147, 147 (1997). Even so, an employer may
not pressure the employees into making an
observable choice about the Union that indicates
rejection or support. Id. The Board found that
the act of hanging the poster was coercive and
pressured the employees into revealing their
preferences. This is a question of judgment and
workplace dynamics, and we cannot say that the
Board’s inferences were unreasonable. The Board
could have inferred from the public nature of the
display that employees who did not wish to sign
or who had not signed yet were subtly coerced.


 16.   East Moline Care Center (Beverly III)
  Both SEIU and Beverly challenge aspects of the
Board’s decision with respect to the East Moline
facility, but we find on both sides of the aisle
that the Board acted within its discretion and
its findings were supported by substantial
evidence.

  East Moline’s employee manual states that the
facility bulletin boards are solely for use by
management to post official communications.
During the Union campaign, an employee posted an
anti-union poster on a facility bulletin board.
A pro-union employee complained to the director
of nursing, Jordan, who dismissed his complaint
with the comment that he was entitled to his own
opinion. The Board found that Beverly violated
sec. 8(a)(1) by the discriminatory enforcement of
the rules regarding access to the bulletin
boards.

  Beverly argued that it never enforced the
bulletin board rule against pro-union employees,
and thus there was no disparate enforcement. But
the Board could have concluded that the fear of
Beverly’s enforcing the rule against them was
enough to chill pro-union employees from putting
(unauthorized) things on the boards. There was no
evidence offered to show that anyone else had
been allowed to post notices on the bulletin
boards before the anti-union message appeared,
and so the pro-union employees had no reason to
hope that they would be exempted from enforcement
of the rule.


   The day before the election, the company held a
mandatory employee meeting to discuss the Union.
It posted guards at the facility entrances during
the meeting. Also, during the election itself the
company posted guards at the facility entrances
closest to the voting areas and required
employees to show identification to use those
entrances. The Board found no justification for
this show of force and concluded that it served
only to disparage the Union and its supporters.
Beverly tried to suggest that during all-staff
meetings and during the election, when much of
the staff is away from patients, greater security
is necessary for the sake of the patients. But it
introduced no evidence indicating that it had
such concerns for the patients in analogous
situations when the Union element was missing.
There was enough evidence here from which the
Board could infer a violation.
  The Board also rejected some charges with
respect to East Moline, and it is these that SEIU
attacks. First, the Board found that the
discharge of employee Dorothy Theunick two days
before the election was not an unfair labor
practice. It found that the discharge was
inspired in part by anti-union animus, but that
Theunick would have been fired no matter what.
She had been absent for four days, and upon her
return, she falsified the date on an old doctor’s
note to explain her absence. After her discharge,
she attempted to give the facility administrators
another note, but they refused to take it. The
Board was entitled to conclude that falsifying a
doctor’s note was serious enough to warrant
firing.

  The Union also argues that the remedy in East
Moline should have been a Gissel bargaining
order--that is, an order requiring immediate
bargaining rather than a new election. The ALJ
had ordered Beverly to bargain with the Union
based on its earlier showing of majority support
through signed authorization cards. He did so
because he believed that the posting of the
guards, the disparately enforced no-solicitation
rule, and an administrator’s statement that he
would see the place sold before it got a union so
tainted the workforce that a new fair election
would not be possible. The Board reversed,
finding that the company’s conduct was not so
egregious or longstanding to warrant this
admittedly extreme remedy.

  As noted, a bargaining order is an appropriate
remedy only if the challenged practices are of
"such a nature that their coercive effects cannot
be eliminated by the application of traditional
remedies, with the result that a fair and
reliable election cannot be had." Gissel Packing,
395 U.S. at 614. The Union offers no good reason
why a new election would not suffice here. The
fact that one administrator made ominous remarks
is not necessarily enough, especially since he
was not a regional official and the record does
not indicate that his views carried special
weight with the employees. The Board reasonably
decided to allow traditional remedies to do their
job, rather than to impose the Gissel order.


  17.   Park Haven Center (Beverly III)

  At Park Haven, facility administrators refused
to furnish the attendance and disciplinary
records of the non-Union employees to the Union.
The Union wanted these records because it was
concerned that unit employees were being treated
differently from their non-unit counterparts. The
Board found that the Union had a valid reason to
request the records and that Beverly’s refusal to
turn them over violated sec.sec. 8(a)(5) and (1).

  Although Beverly argues that the information
could not have been relevant to the Union,
because non-union employees were subject to a
different tardiness policy, its very defense
shows why the Union needed the records. What
exactly was the non-union tardiness policy? Were
the differences material to the way in which each
group was treated? The Union had the right to
explore these issues for itself, rather than
taking Beverly’s word for it, and for that
reason, the Board’s decision is supported by
substantial evidence.


  18.   Garden Terrace Nursing Center (Beverly
III)

  During a union campaign, employee Toni Oman was
on a break in the shower room discussing the
Union with employee Tommie London. Facility
personnel supervisor Karen Goodson Henry came in,
heard the conversation, and told them that
"somebody could get in trouble" for such a
discussion. Beverly reads this as a simple
reference to Garden Terrace’s policy that
employees could not solicit Union support in
customer care areas, but the ALJ and Board
thought that it had more ominous overtones, such
as the insinuation that one could get into
trouble for discussing the Union at all. If that
is what it was--and the Board was entitled to
construe it that way--then it was a coercive
attempt to get the employees not to join the
Union and it thus violated the Act.

  At three captive audience meetings held by
Garden Terrace facility personnel, facility
management explained their anti-union views. They
then called on three CNAs, including London, to
speak, and each of them also expressed anti-union
views. London also talked about the possibility
of the employees’ forming their own group or
union to deal with management. The Board found
that London was at that time acting as an agent
of Garden Terrace.
  If Garden Terrace managers had encouraged an
independent union (as London seemed to be doing),
they would have violated sec. 8(a)(1), because
employers must remain neutral. See NLRB v. Wagner
Iron Works, 220 F.2d 126, 138 (7th Cir. 1955).
The key issue is therefore whether the Board’s
conclusion that London had actual or apparent
authority to speak as Garden Terrace’s agent is
supportable. While we see this as a close call,
close calls go to the Board under the applicable
standard of review. The managers called on
London; London was known to be anti-union; and
the Board could have concluded that the managers
were trying to use her for a job that they knew
they could not do themselves.


  19.   Gulf Coast Convalescent Center (Beverly
III)

  At Gulf Coast, management approved an across-
the-board wage increase for the employees in
1992. Regional director of human resources Alvin
Taylor decided to delay the increases to certain
personnel when he found out that there was a
campaign underway to organize them. For other
employees, he approved the wage increases right
away. Taylor testified that he was afraid that
giving a raise during the organizational campaign
would open Beverly up to charges of unfair labor
practices. Instead, the Board found that Taylor’s
delay of the raise was an unfair labor practice.
Several factors persuaded it to discredit
Taylor’s alleged dilemma. First, it found that
the wage increase had already been approved prior
to the start of the campaign and was sorely
needed. Second, it found anti-union animus
because the company told the employees that the
delay was the fault of the Union. Third,
immediately after the Union was defeated, the
facility implemented the wage increase--a step
that the Board saw as reinforcing the message
that the Union was to blame for the delay.

  Particularly the first of those factors
persuades us that the Board’s decision passes
muster. If the increase was already approved,
then implementing it after the start of the
campaign should not have resulted in an unfair
labor practice charge. Or, as happened with
another facility, Beverly could have tried to
work out an arrangement under which it could give
the raise in exchange for the Union’s agreement
not to complain. Harping on the Union’s
responsibility for the "delay" in the midst of
the campaign was also out of line, and also
supports the Board’s conclusion.


  20.   Northcrest Nursing Home (Beverly III)

  Last are the problems the Board found at
Northcrest. The day prior to the election there,
as had happened in some other places, the
facility managers held a mandatory union meeting.
At this meeting, unlike earlier ones that had
been held, the managers did not intend to answer
questions; apparently they wanted only to lecture
on their views to the employees. Instead,
however, after Chambers (regional director of
human resources) began to speak, employee Julie
Schriner spoke up in a loud voice, asking if she
would get a chance to ask a question. Her
intervention disrupted the meeting. Rodger Brown,
Beverly’s corporate director of associate
relations, told her to sit down and that
questions were not permitted. He did not mention
to Schriner or the assembled group that he also
wanted to finish the meeting quickly so that
everyone could return to their work stations.

  Schriner continued to interrupt until she was
threatened with suspension and asked to leave.
Northcrest made good on the threats and suspended
her for three days without pay. The Board found
that Brown overreacted in a way that was designed
to chill both Schriner and the other employees in
the upcoming election, and that this was a
violation of the Act.

  An employer has the right to deliver a non-
coercive anti-union speech. Livingston Shirt
Corp., 107 NLRB 400, 406 (1953). Unions are not
entitled to use a medium of communication simply
because the employer is using it. NLRB v. United
Steelworkers, 357 U.S. 357, 363-65 (1958).
Finally, as Beverly points out, employers are
certainly entitled to maintain order and respect
in the workplace. NLRB v. Thor Power Tool Co.,
351 F.2d 584, 587 (7th Cir. 1965).

  Beverly says that Brown was doing nothing more
than he was entitled to do under those
principles, and furthermore that he was just
trying to move the meeting along. But he never
said a word about the latter goal. And as for the
former, it would have been easy to have told
Schriner that the time for asking questions would
be right after the meeting, which turns out to be
when everyone else asked questions. Instead, he
decided to tell Schriner to shut up and sit down.
While this may have been motivated solely by a
"law and order" rationale, the Board was entitled
to conclude that it was designed to silence a
vocal Union advocate (as Schriner was known to
be). Once again, given the deferential nature of
substantial evidence review, we see no reason to
reverse this finding.

IV

  We turn finally to the Board’s remedy in this
case: a company-wide cease-and-desist order,
coupled with a posting requirement and a laundry
list of forbidden activities. We give special
deference to the Board’s choice of a remedy,
because of its expertise. Gissel Packing, 395
U.S. at 612 n.32. Nevertheless, the Board must
restrict itself to orders that "effectuate the
policies" of the Act. 29 U.S.C. sec. 160(c); see
also Virginia Elec. & Power Co. v. NLRB, 319 U.S.
533, 540 (1943). The scope of an order is not
overly broad where the Board might reasonably
have concluded from the evidence that such an
order was necessary to prevent the employer from
continuing to engage in unfair labor practices.
May Dept. Stores Co. v. NLRB, 326 U.S. 376, 390
(1945).
  Factors that are helpful in deciding whether an
order is too broad include (1) the number of
violations as compared to the number of
unaffected parties and facilities, (2) the types
of violations, (3) the corporate control over, or
causation of, the unfair labor practices, and (4)
the publicity of the unfair labor practices among
the employees. See Torrington, 17 F.3d at 586;
Blount Brothers Corp. v. NLRB, 571 F.2d 4, 4-5
(7th Cir. 1978). As is true for most multi-
factored laundry lists, this one does not tell us
which factor counts for more than the others, or
how to break the tie when some tend one way and
others the opposite way. But they help to
structure analysis, even if they do not produce
mathematical results, and in the end the choice
of a proper remedy is a highly contextual one
that does not lend itself to easy formulae.

  In Blount Brothers, this court found that an
isolated incident involving one out of 1,000
employees did not support a sweeping order
prohibiting the employer from violating the Act
"in any other manner." 571 F.2d at 4. Beverly
argues that this might as well be that case: it
runs 895 nursing homes, and from 1986 to 1993,
the Board found that it had committed
approximately 220 unfair labor practices in 54 of
those homes. That works out to 6%--not nearly as
low as 0.1%, of course, but still a small
proportion (yet 60 times greater than the number
we dismissed in Blount Brothers). But, as is
often the case, there are quite a few ways to
crunch those numbers, which leaves us feeling
that they are not ultimately too helpful. For
example, the Board points out that only about 10%
of Beverly’s facilities (between 90 and 100) have
unionized employees. In Beverly II and Beverly
III combined, it committed unfair labor practices
at approximately 15% of those facilities. Or,
looked at another way, it committed unfair labor
practices during the course of two out of the
five representation elections that took place in
1990, or 40% that year. Or perhaps the best
numbers take a more global view: in Beverly III,
a total of eight corporate or regional officials
committed 14 violations, at five facilities,
during organizational campaigns.

  As of the time the Second Circuit decided
Torrington, it concluded that the record did not
support a corporate-wide order because the
violations were not serious enough and the record
did not provide enough evidence of a corporate-
wide policy that was leading to the commission of
unfair labor practices. But, as both the Board
and the two ALJs here pointed out, the record now
before us is a far richer one. The Board was
entitled to conclude, especially after specific
remedies in Torrington did not appear to stop the
efforts from the company’s central management to
stop unions in any way possible, that the time
was past for piecemeal relief. Some of the unfair
labor practices here were extremely serious, such
as the threat to sell the facility in East
Moline; others struck at the heart of the
collective bargaining relationship, such as those
in which facility managers refused to give unions
necessary information; some looked more like
isolated incidents, serious enough to punish but
not likely to poison the workplace for the long
term. As a whole, however, it was not a good
record.

  Perhaps the fact that most strongly supports
the Board’s chosen remedy, however, is the
ubiquitous nature of the area personnel at local
facilities whenever labor problems arose. In case
after case, at facility after facility, the Board
saw regional managers coming in to ensure that
Beverly’s overall corporate policy was
implemented. In itself, there is nothing wrong
with central organization, but in this instance
the Board was entitled to conclude that nothing
less than a corporate-wide order would do the job
of correcting the proclivity this company has
shown for committing or tolerating unfair labor
practices at a significant number of its
facilities. The specific order it entered,
however, is problematic. We are concerned that
much of it is nothing more than a laundry list of
the particular violations committed at individual
facilities. There is no reason, for example, for
the corporate-wide order to devote two paragraphs
to Julie Schriner’s situation (and she is there
in the order by name). We do not consider it
appropriate to go through the order in the first
instance and decide which parts are properly
directed to the corporation as a whole and which
to particular facilities. We leave this task to
the Board on remand. Given Beverly’s recidivism
and the corporate direction the Board has found
pervading its handling of union complaints, the
Board is entitled to impose corporate-wide
relief. But this should be supplemented with
relief directed to the individual facilities, for
instances in which the violation does not have
significance beyond them.

  For the reasons stated, the order of the Board
is Enforced in part and Vacated in part, and the
cases are remanded to the Board for further
proceedings consistent with this opinion. Costs
on appeal shall be taxed against Beverly.
