Beverly Hlth Rehab, et al v. NLRB, No. 01-1405 (D.C. Cir. 2003)
Annotate this Case
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 19, 2002 Decided January 31, 2003
No. 01-1405
Beverly Health & Rehabilitation Services, Inc. and
Beverly Enterprises--Pennsylvania, Inc.,
Petitioners
v.
National Labor Relations Board,
Respondent
District 1199P, Service Employees International Union,
AFL-CIO,
Intervenor
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Thomas P. Dowd argued the cause for the petitioners.
Usha Dheenan, Attorney, National Labor Relations Board,
argued the cause for the respondent. Arthur F. Rosenfeld,
General Counsel, John H. Ferguson, Associate General Coun-
sel, Aileen A. Armstrong, Deputy Associate General Counsel,
and Meredith Jason, Attorney, were on brief.
Craig Becker argued the cause for the intervenor. Judith
Scott was on brief.
Before: Sentelle, Henderson and Tatel, Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: Beverly Health
& Rehabilitation Services, Inc., which operates approximately
950 nursing homes nationwide, and its subsidiary Beverly
Enterprises--Pennsylvania (collectively Beverly) seek review
of a decision of the National Labor Relations Board (NLRB
or Board). The Board concluded that Beverly committed
various unfair labor practices (ULPs) at 20 nursing homes
Beverly operates in Pennsylvania in violation of the National
Labor Relations Act (Act), 29 U.S.C. ss 151 et seq. See
Beverly Health & Rehab. Servs., Inc., 335 N.L.R.B. No. 54
(Aug. 27, 2001) (NLRB Dec.). In its decision, the Board
directed Beverly to post two separate remedial notices: one
at all of the Pennsylvania nursing homes involved in this
proceeding and a second at all of Beverly's nursing homes
nationwide. Beverly challenges seven of the Board's ULP
findings as well as the nationwide scope of the remedy. For
the reasons set forth below, we conclude the petition should
be granted as to two ULPs-those based on Beverly's refusal
to rehire striking employees and its videotaping of picketing
employees. In all other respects, the petition for review
should be denied.1
__________
1 With respect to the ULP findings that Beverly does not contest,
the Board is entitled to summary enforcement. International
Union of Petroleum & Indus. Workers v. NLRB, 980 F.2d 774, 778
(D.C. Cir. 1992) (citing Retail Clerks Union, Local 1401 v. NLRB,
463 F.2d 316, 320 (D.C. Cir. 1972)).
I.
In the fall of 1994 Beverly and District 1199P of the Service
Employees International Union, AFL-CIO (Union) were ne-
gotiating new collective bargaining agreements for employees
at the 20 Pennsylvania nursing homes in this case. At the
time, bargaining units at all but three of the facilities were
covered by agreements set to expire on November 30, 1994,
units at two other homes were covered by agreements set to
expire on December 31, 1994 and the remaining unit was
newly certified and not yet covered by an agreement. Nego-
tiations continued until Spring 1996.
Beginning on February 13, 1996 the Union's locals filed a
series of ULP charges, all of which were ultimately consoli-
dated into one complaint. On November 26, 1997 the ALJ
issued a decision finding Beverly committed numerous ULPs
and ordering Beverly to cease and desist and to post notices
at all of the nursing homes involved. NLRB Dec. at 41. The
ALJ specifically reserved for a supplemental proceeding the
determination "whether remedies should extend to any or all
of the interrelated Beverly Companies." Id. He issued a
supplemental decision on November 30, 1999 which recom-
mended a single cease-and-desist order to be posted at all of
Beverly's facilities nationwide. NLRB Dec. at 43-59. Bever-
ly filed exceptions to the ALJ's decisions on December 28,
1999.
The Board issued a decision dated August 27, 2001 in which
it "affirm[ed] the judge's rulings, findings, and conclusions."
NLRB Dec. at 1. The Board revised the remedy to require
two separate notices, one addressing the particular ULPs in
this case to be posted only at the 20 subject Pennsylvania
facilities (and corporate offices overseeing them), id. at 14-17
(App. A), and a broader one to be posted company-wide, id. at
17-18 (App. B).
Beverly filed a petition for review on September 9, 2001.
The Board filed a cross-application for enforcement on No-
vember 8, 2001.
II.
Beverly challenges seven of the ULP findings as well as the
company-wide scope of the remedy. "We will affirm the
judgment of the Board unless, 'upon reviewing the record as
a whole, [this Court] conclude[s] that the Board's findings are
not supported by substantial evidence, or that the Board
acted arbitrarily or otherwise erred in applying established
law to the facts of the case.' " Tradesman Int'l, Inc. v.
NLRB, 275 F.3d 1137, 1141 (D.C. Cir. 2002) (quoting Inter-
national Union of Electronic, Elec., Salaried, Mach. & Fur-
niture Workers v. NLRB, 41 F.3d 1532, 1536 (D.C. Cir.
1994)). We apply this standard to each of Beverly's conten-
tions seriatim.
A. Refusal to Reinstate Striking Employees
First, Beverly contests the ALJ's finding, summarily af-
firmed by the Board, that Beverly violated the Act by failing
to promptly reinstate 450 employees after a three-day strike
the Union began on April 1, 1996. Beverly contends the
strike was unlawful because the Union failed to comply with
the statutory notice requirement in section 8(g) of the Act, 29
U.S.C. s 158(g). We agree and, accordingly, conclude that
Beverly was under no duty to rehire the workers who partici-
pated in the unlawful strike.
Section 8(g) provides:
(g) Notification of intention to strike or picket at any
health care institution
A labor organization before engaging in any strike,
picketing, or other concerted refusal to work at any
health care institution shall, not less than ten days prior
to such action, notify the institution in writing and the
Federal Mediation and Conciliation Service of that inten-
tion, except that in the case of bargaining for an initial
agreement following certification or recognition the no-
tice required by this subsection shall not be given until
the expiration of the period specified in clause (B) of the
last sentence of subsection (d) of this section. The notice
shall state the date and time that such action will com-
mence. The notice, once given, may be extended by the
written agreement of both parties.
29 U.S.C. s 158(g). On March 14 and 15, 1996 Union locals
sent notices to fifteen facilities that they intended to strike at
7:00 a.m. on March 29. On March 27, however, the Union
sent a second notice purporting to extend the strike deadline
71 hours to 6:00 a.m. on Monday April 1. NLRB Dec. at 37.
In a letter dated March 28, 1996 Beverly responded that it
considered the March 27 notification a new notice requiring
an additional 10 days before the Union workers could lawfully
strike under section 8(g).
Before the ALJ Beverly again asserted the strike was
unlawful under section 8(g). The ALJ rejected Beverly's
defense because the Board's "clear and consistent precedent,"
tracing to its pre-Chevron decision in Greater New Orleans
Artificial Kidney Center, 240 N.L.R.B. 432 (1979), construed
section 8(g) to permit a union to unilaterally extend a strike
deadline for up to 72 hours. We review the board's construc-
tion of section 8(g) under the familiar Chevron analysis:
If ... " 'Congress has directly spoken to the precise
question at issue,' " we "must give effect to Congress's
'unambiguously expressed intent.' " Secretary of Labor
v. [Fed. Mine Safety & Health Review Comm'n], 111 F.3d 913, 917 (D.C. Cir.1997) (quoting Chevron USA, Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 2781, 81 L. Ed. 2d 694 (1984)).
"If 'the statute is silent or ambiguous with respect to the
specific issue,' we ask whether the agency's position rests
on a 'permissible construction of the statute.' " Id. (quot-
ing Chevron, 467 U.S. at 843, 104 S. Ct. 2778, 2782, 81
L.Ed.2d 694).
National Multi Housing Council v. EPA, 292 F.3d 232, 234
(D.C. Cir. 2002) (quoting Cyprus Emerald Resources Corp. v.
Fed. Mine Safety & Health Review Comm'n, 195 F.3d 42, 45
(D.C. Cir. 1999)). We conclude section 8(g) manifests an
"unambiguously expressed intent" that precludes the Board's
interpretation.
Section 8(g) expressly states that before commencing a
strike at a health care institution a union "shall, not less than
ten days prior to such action, notify the institution in writing"
and that the "notice shall state the date and time that such
action will commence." The meaning of this mandatory
language could not be plainer or the Congress's intent in
enacting it clearer. The notice must provide ten days notice
of a strike specifying the day and time it is to occur. Neither
the initial notices the locals sent on March 14-15, 1996 nor
the "extension" sent on March 27 satisfy this requirement.
Although the former provided adequate notice of a strike to
commence on April 29, as it turned out the strike did not
begin until three days after that date; the extension, on the
other hand, accurately identified the date of the strike but did
not afford the requisite ten days' notice. Nor do either fall
within the single statutory exception to the otherwise rigid
notice requirement: that "[t]he notice, once given, may be
extended by the written agreement of both parties."
Despite the plain meaning of the statute, the Board con-
tends that it is somehow ambiguous because it does not
expressly state that agreement of the parties is the only
means to obtain an extension. No such express provision is
necessary. If the Congress had intended to allow either
party to extend the notice unilaterally, it could easily have
said so--but it did not. Instead the Congress carved out but
a single express exception--when both parties consent in
writing--an exception that would be unnecessary if either
party could unilaterally extend the notice at will. This is a
case where "the cannons [sic] of avoiding surplusage and
expressio unius are at their zenith" because "they apply in
tandem." Independent Ins. Agents, Inc. v. Hawke, 211 F.3d 638, 645 (D.C. Cir. 2000) (citing Halverson v. Slater, 129 F.3d 180, 184-86 (D.C. Cir. 1997)). The Board's ambiguity argu-
ment therefore fails.
B. Denial of Access to Workplace
Second, Beverly challenges the Board's finding that it
committed a ULP when Wayne Chapman, Beverly's Senior
Regional Director of Associate Relations, directed that the
Union be denied access to Beverly's facilities, including bulle-
tin boards, in a December 1, 1994 memorandum, although
such access had been a term of the expired contracts. We
conclude this finding should be upheld.
In Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (1991),
the United States Supreme Court stated: "The Board has
determined, with our acceptance, that an employer commits
an unfair labor practice if, without bargaining to impasse, it
effects a unilateral change of an existing term or condition of
employment." 501 U.S. at 198 (citing NLRB v. Katz, 369 U.S. 736 (1962)). This is precisely what Beverly did in this
case. Nor does the denial of access fall into any of the four
established exceptions to the unilateral change rule enumerat-
ed in Litton: arbitration clauses, no-strike clauses, union
security clauses and dues check-off provisions. Id. at 199-
200.
Beverly suggests that the Court in Litton excluded con-
tract terms from the rule because they affect the relationship
between the employer and the union, as opposed to the
relationship between the employer and the employees, and
and that we should therefore except the present term as well.
The Litton Court, however, drew no such distinction. Equal-
ly misplaced is Beverly's reliance on cases holding that unions
do not ordinarily have a right to trespass. See, e.g., NLRB v.
Babcock & Wilcox Co., 351 U.S. 105 (1956); Lechmere, Inc. v.
NLRB, 502 U.S. 527, 538-39 (1992); United Food and Com-
mercial Workers v. N.L.R.B., 74 F.3d 292, 300 (D.C. Cir.
1996). None of those cases involved a contractual right to
access. In sum, it was not arbitrary, capricious or otherwise
contrary to law for the Board not to exempt union access
provisions from the unilateral change doctrine.
C. Management Rights Clause
Third, Beverly challenges the Board's finding that it com-
mitted a ULP by implementing various changes that it claims
were authorized by the expired management rights clause.
The Board asserts, inter alia, that Beverly is barred from
challenging the ULP here because the issue was already
conclusively decided by the Sixth Circuit Court of Appeals in
Beverly Health & Rehab. Servs. v. NLRB, 297 F.3d 468 (6th
Cir. 2002). We agree.
As we have previously stated:
[T]he standards for establishing the preclusive effect of an
earlier holding are:
First, the same issue now being raised must have been
contested by the parties and submitted for judicial deter-
mination in the prior case. Second, the issue must have
been actually and necessarily determined by a court of
competent jurisdiction in that prior case.... Third,
preclusion in the second case must not work a basic
unfairness to the party bound by the first determination.
An example of such unfairness would be when the losing
party clearly lacked any incentive to litigate the point in
the first trial, but the stakes of the second trial are of a
vastly greater magnitude.
Hall v. Clinton, 285 F.3d 74, 82 n. 9 (D.C. Cir. 2002) (quoting
Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254
(D.C. Cir. 1992) (alteration original), cert. denied, 506 U.S. 108 (1993)). This case satisfies all three requirements.
First, the Sixth Circuit had before it the same management
rights clause at issue here at two of the same facilities--
Grandview and Caledonia. Second, the Sixth Circuit decided
to "affirm the Board's conclusion that the management-rights
clause [there] did not continue after the termination of the
contract." 297 F.3d at 483. Third, Beverly had every incen-
tive to--and did--litigate the issue before the Sixth Circuit so
that there is no unfairness in holding Beverly to the result
reached there.2
__________
2 It is true, as Beverly observes, that the Supreme Court has
recognized "an exception to the applicability of the principles of
collateral estoppel for 'unmixed questions of law' arising in 'succes-
sive actions involving unrelated subject matter.' " United States v.
Stauffer Chem. Co., 464 U.S. 165, 171 (1984) (quoting Montana v.
United States, 440 U.S. 147, 162 (1979); citing Allen v. McCurry,
D. Supervisory Status of Licensed Practical
Nurses at Haida Manor
Fourth, Beverly challenges the Board's determination that
the licensed practical nurses (LPNs) at Beverly's Haida Man-
or facility are not supervisors under the Act and, specifically,
that they did not supervise the work of "certified nurse
assistants" (CNAs). The Board determined Beverly "ha[d]
not met its burden of establishing that the LPNs are supervi-
sors" because "the judge's extended fact-findings ... confirm
that, contrary to the Respondent's contentions, the LPNs
exercised only 'routine' authority that did not require the use
of independent judgment in directing the work of other
employees within the meaning of Sec. 2(11)." NLRB Dec. at
1 n.3. We uphold the Board's determination.
Section 2(11) of the Act defines "supervisor" as follows:
The term 'supervisor' means any individual having au-
thority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, re-
ward, or discipline other employees, or responsibly to
__________
449 U.S. 90, 95 n.7 (1980); United States v. Moser, 266 U.S. 236, 242
(1924)). The Court has also narrowly limited the exception:
"[W]hen the claims in two separate actions between the same
parties are the same or are closely related ... it is not
ordinarily necessary to characterize an issue as one of fact or of
law for purposes of issue preclusion.... In such a case, it is
unfair to the winning party and an unnecessary burden on the
courts to allow repeated litigation of the same issue in what is
essentially the same controversy, even if the issue is regarded
as one of 'law'."
Id. (quoting Restatement (Second) of Judgments s 28 comment b
(1982); ellipsis original; footnote omitted). Here, where the legal
issue is identical and the factual settings so closely related, the
exception simply does not apply. Cf. id at 172 ("Any factual
differences between the two cases, such as the difference in the
location of the plants and the difference in the private contracting
firms involved, are of no legal significance whatever in resolving the
issue presented in both cases.").
direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment.
29 U.S.C. s 152(11). The ALJ expressly found that "LPNs
have no involvement in many decisions typically reserved to
supervisors," citing specific testimony in the record to show
that LPNS neither trained individuals to become CNAs nor
oriented new CNAs, that they exercised no authority over the
CNAs' work, overtime or shift assignments, time off, griev-
ances, lay-offs and recalls, discipline or hiring (at least not
"before the spring of 1996" and "[e]ven then, ... the LPNs
did not hire CNAs or make effective recommendations as to
the hiring of CNAs"). NLRB Dec. at 33-34. The ALJ
further found, again citing detailed evidentiary support, that
LPNs "provide only routine direction to the CNAs and do not
responsibly direct the work of the CNAs." Id. at 35. Given
these findings and the record evidence supporting them, the
ALJ reasonably determined, and the Board reasonably af-
firmed the determination, that what authority the LPNs
exercised was "of a merely routine or clerical nature" and did
not "require[ ] the use of independent judgment" so as to
make them statutory supervisors.3
__________
3 At the time of the ALJ's decision the Board endorsed an
"independent judgment" test that excluded "ordinary professional
or technical judgment in directing less-skilled employees to deliver
services in accordance with employer-specified standards." See
NLRB v. Kentucky River Cmty. Care, 532 U.S. 706, 724 (2001). In
Kentucky River the United States Supreme Court expressly reject-
ed the Board's test, concluding it "insert[ed] a startling categorical
exclusion into statutory text that does not suggest its existence."
Id. at 714. In affirming the ALJ's determination below, the Board
properly considered Kentucky River and concluded that, under the
Supreme Court's interpretation of the statutory terms, the ALJ's
"extended fact-findings" supported his conclusion that the LPNs
"exercised only 'routine' authority that did not require the use of
independent judgment." NLRB Dec. at 1-2 n. 3.
E. HMO Coverage
Fifth, Beverly challenges the Board's finding that it com-
mitted a ULP when it unilaterally implemented HMO cover-
age in place of the Union Health and Welfare Fund (Union
plan) previously offered at five facilities. We again uphold
the Board's finding.
The collective bargaining agreements required Beverly to
provide employees with alternative health plans: Beverly's
own and an HMO. Because no satisfactory HMO was avail-
able at five sites, the parties reached a grievance settlement
agreement requiring that the Union plan be available for one
year, until November 30, 1995, as an alternative at the five
sites. On November 28, 1995 the Union received a letter
from Beverly announcing that as of January 1, 1996 specific
HMOs would replace the Union plan at the five sites. The
Union responded in a letter dated December 5, 1996 with a
"demand" that Beverly "bargain in good faith over these
issues." JA 295. In a December 8, 1996 letter, which
Beverly describes as a response to the December 5 letter,
Pet'r's Br. at 45-46 (although the letter purports to be in
response to a December 6 letter and does not mention health
plans), Senior Regional Director Chapman complained that
the Union was continuing to "bypass the facilities' negoti-
ators, and the facility administrators." JA 158. In a letter
dated December 11 (expressly "in response to [the Union's]
letter of December 5"), Beverly asserted the change in cover-
age did not "violate[ ] any contractual obligation or labor law."
JA 296. Beverly subsequently implemented the change.
The ALJ found that Beverly "promptly rejected the re-
quest and proceeded to implement the replacement HMO
plan on January [sic]." NLRB Dec. at 22. The ALJ further
found this was a ULP because, although Beverly "had a right
to terminate the [Union] plan on November 30, 1995," pursu-
ant to the settlement agreement, it was "not free thereafter
unilaterally to implement a replacement plan in the face of a
timely union request for bargaining on the matter." Id. at 21
(citing Carpenter Sprinkler Corp., 238 N.L.R.B. 974 (1978),
enforced in relevant part, 605 F.2d 60 (2d Cir. 1979)). Bever-
ly challenges the ALJ's ULP finding on the sole ground that
the evidence does not support the ALJ's finding that Beverly
rejected the Union's December 5 bargaining demand. The
ALJ's finding to the contrary, however, is a fair inference
from Chapman's December 11 letter, which maintained Bev-
erly was free to unilaterally implement the coverage change
despite the Union's bargaining demand, and from Beverly's
subsequent implementation of the change.
F. Videotaping
Sixth, Beverly challenges the Board's determination that it
committed a ULP when it videotaped leafleting picketers
outside Beverly's Fayette facility. The ALJ provided the
following account of the episode:
Early in the afternoon of Sunday, March 31, and just
prior to the strike, about 18 employees participated in
leafleting on a road leading up to the Fayette facility.
While doing so, two security guards approached the
group. One of them told Union Organizer Tammy Miller
that Administrator Jim Filippone wanted the group to
move down the road because they were on facility prop-
erty. As he did this, the other guard stood nearby busily
engaged in videotaping the group. When Miller replied
that they had a right to be there according to township
records, the guards left to report back to Filippone.
Later that day, Filippone, after obtaining clarification
from township officials, told the employees that they
need not move.
NLRB Dec. at 26. The ALJ concluded the videotaping was a
ULP because:
Photographing employees engaged in lawful picketing
tends to intimidate by implanting fear of future reprisals
and is deemed surveillance violative of Section 8(a)(1),
absent some legitimate justification. Athens Disposal
Co., 315 NLRB 87 (1994); Waco, Inc., 273 NLRB 746,
747 (1984). None is shown here. Accordingly, I find a
violation.
Id. Beverly acknowledges that such videotaping is generally
unlawful but argues it offered a legitimate justification which
the ALJ arbitrarily ignored. We agree.
The ALJ's own description of the events contradicts his
assertion that Beverly offered no justification. His account,
as well as Fillipone's hearing testimony, manifests that Filli-
pone first ordered the picketers to depart because he believed
they were trespassing on Beverly's property, a justification
that has been recognized by the Board. See Ordman's Park
& Shop, 292 N.L.R.B. 953, 956 (1989) ("It is undisputed that
during the course of the picketing Respondents took photo-
graphs of nonemployee [sic], paid pickets in order to preserve
evidence of alleged trespass. The Board has held that where
photographs are taken for the purpose of gathering evidence,
and there is no showing of coercion of the employees, such
photographing is not unlawful. Roadway Express, 271
NLRB 1238 (1984)). When Filipone got a "clarification from
the township" that the leafleting site was subject to township
control under an easement, he testified at the hearing, he
immediately dropped his opposition to the picketers' pres-
ence. JA 1247. Faced with Beverly's explanation, the ALJ
should have made a determination, supported by factual
findings, whether it was a "legitimate justification" under
Board precedent. See Timken Co., 331 N.L.R.B. No. 86
(Jul. 13, 2000); 2000 WL 981649, *21 ("The test of validity of
such conduct is whether there was proper justification and
whether it reasonably tends to coerce employees.") (citing F.
W. Woolworth Co., 310 N.L.R.B. 1197, 1204 (1993); Athens
Disposal Co., 315 N.L.R.B. 87, 98 (1994); Dayton Hudson
Co., 316 N.L.R.B. 477 (1995); Parsippany Hotel Manage-
ment Co., 319 N.L.R.B. 114 (1995)). Instead he ignored it.
G. Advertising for Replacement Workers
Seventh, Beverly challenges the Board's finding that it
committed a ULP when, after receiving the strike notice, it
advertised for replacements to work at its Grandview facility
at higher rates of pay than it had been paying its union
employees. We uphold the Board's finding.
Beverly argues that under Board precedent it is free to set
the terms and conditions of employment for striker replace-
ments. The Board acknowledged this general right but
observed in its decision that an employer "may not exercise
that right in a manner designed to undermine the Union" and
concluded that here, "in the context of" Beverly's other
"unfair labor practices before and shortly after it placed the
ads, including unilateral actions that disparaged the Local
Union's representative role and discriminatory treatment of
two Grandview Manor union activists," and "given the Re-
spondent's corporatewide and centralized policy of hostility to
its employees' rights under the Act,"4 "the unexplained and
publicized offer of higher wages to strike replacements can
only be seen as designed further to undermine the Local
Union in the eyes of the employees it represented." NLRB
Dec. at 4. The Board's determination that advertising higher
pay rates for replacement workers can constitute an unfair
labor practice under certain circumstances is supported by its
precedent. See Service Elec. Co., 281 N.L.R.B. 633, 639 n.11
(1986) (acknowledging that "the ability to set employment
terms for replacements is a necessary incident of the underly-
ing right to hire replacements" but noting that "if the struck
employer is exercising that right in a manner designed to
accomplish an illegal objective, i.e., to undermine the bargain-
ing representative, then there would be a basis for finding a
violation"); Workroom for Designers, 274 N.L.R.B. 840, 856
(1985) ("[T]o advertise a willingness to pay nonstriking em-
ployees more than the employer had paid the strikers clearly
has a tendency to interfere with, restrain, and coerce employ-
ees in the exercise of their statutory rights, in violation of
Section 8(a)(1) of the Act."). In light of the circumstances
cited by the Board and Beverly's failure below to offer a
lawful justification for the higher wages, the Board's finding
of unlawful motive was not arbitrary or capricious.
H. Corporate-Wide Remedy
Finally, Beverly challenges the corporate-wide scope of the
remedial order, asserting that, at most, it should apply only to
__________
4 See infra Part II(H).
Beverly's facilities in Pennsylvania, where all of the ULPs
here occurred. We conclude that the broad, company-wide
remedy is adequately supported and is therefore entitled to
enforcement.
"To offset companywide effects caused by extensive unlaw-
ful conduct, courts and the Board have expanded remedial
measures beyond the actual locations at which unfair labor
practices were found. In certain cases, remedies designed to
facilitate union communication and dissipate harmful effects
have been applied companywide." United Steelworkers of
Am. v. NLRB, 646 F.2d 616, 635-36 (D.C. Cir. 1981). "Fac-
tors 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." Beverly Cal. Corp. v.
NLRB, 227 F.3d 817, 846 (7th Cir. 2000) (citing Torrington
Extend-A-Care Employee Ass'n v. NLRB, 17 F.3d 580, 586
(2d Cir. 1994); Blount Brothers Corp. v. NLRB, 571 F.2d 4,
4-5 (7th Cir. 1978)). The Board below ordered a corporate-
wide remedy based on (1) Beverly's geographically-broad
history of widespread ULPs, see Beverly Cal. Corp., 326
N.L.R.B. 232 (1998), enforced in part, vacated in part and
remanded, 227 F.3d 817 (7th Cir. 2000); Beverly Cal. Corp.,
326 N.L.R.B. 153 (1998), enforced, 227 F.3d 817 (7th Cir.
2000); Beverly Enters., 310 N.L.R.B. 222 (1993), enforced in
part and denied in part, Torrington Extend-A-Care Em-
ployees Ass'n v. NLRB, 17 F.3d 580 (2d Cir. 1994); (2) the
direct involvement here of both corporate and regional man-
agement;5 and (3) Beverly's centralized structure for dealing
__________
5 The Board asserted: "High-ranking corporate and regional
officials who played prominent roles in directing, approving, or
knowingly failing to prevent unlawful actions included Beverly
President Bill Mathies; Vice President for Labor and Employment
Donald Dotson; Region 1 (Northeast) Vice President of Operations
Claude Lee; Region 1 Director for Associate Relations Wayne
Chapman; and Region 1 Labor Relations Manager Ron St. Cyr."
NLRB Dec. at 5.
with labor issues. These factors are supported by the evi-
dence which reveals that Beverly's Labor and Employment
Vice President Donald Dotson kept close oversight of all
regional labor developments (and in fact made the decision to
deny the Union access to Beverly's facilities) and that region-
al officers, in particular Chapman, were extensively involved
in the ULPs at issue. The Seventh Circuit found that "the
fact that most strongly supports the Board's chosen remedy"
is "the ubiquitous nature of the area personnel at local
facilities whenever labor problems arose"--"[i]n case after
case, at facility after facility, the Board saw regional manag-
ers coming in to ensure that Beverly's overall corporate
policy was implemented." Beverly Cal. Corp. v. NLRB, 227 F.3d at 847.6 The same holds true here.
For the reasons set forth above, the petition for review is
granted and the cross-application for enforcement is denied
as to the ULP findings based on the refusal to rehire striking
employees--given that the strike notice was inadequate--and
on the videotaping of picketing employees. In all other
respects the petition is denied and the cross-application is
granted.
So ordered.
__________
6 We note that, by fashioning separate Pennsylvania and corpo-
rate postings, the Board adequately addressed the Seventh Circuit's
concern, regarding the order that circuit confronted, "that much of
it is nothing more than a laundry list of the particular violations
committed at individual facilities" and its direction to the Board on
remand "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." 227 F.3d at 847.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 19, 2002 Decided January 31, 2003
No. 01-1405
Beverly Health & Rehabilitation Services, Inc. and
Beverly Enterprises--Pennsylvania, Inc.,
Petitioners
v.
National Labor Relations Board,
Respondent
District 1199P, Service Employees International Union,
AFL-CIO,
Intervenor
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Thomas P. Dowd argued the cause for the petitioners.
Usha Dheenan, Attorney, National Labor Relations Board,
argued the cause for the respondent. Arthur F. Rosenfeld,
General Counsel, John H. Ferguson, Associate General Coun-
sel, Aileen A. Armstrong, Deputy Associate General Counsel,
and Meredith Jason, Attorney, were on brief.
Craig Becker argued the cause for the intervenor. Judith
Scott was on brief.
Before: Sentelle, Henderson and Tatel, Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: Beverly Health
& Rehabilitation Services, Inc., which operates approximately
950 nursing homes nationwide, and its subsidiary Beverly
Enterprises--Pennsylvania (collectively Beverly) seek review
of a decision of the National Labor Relations Board (NLRB
or Board). The Board concluded that Beverly committed
various unfair labor practices (ULPs) at 20 nursing homes
Beverly operates in Pennsylvania in violation of the National
Labor Relations Act (Act), 29 U.S.C. ss 151 et seq. See
Beverly Health & Rehab. Servs., Inc., 335 N.L.R.B. No. 54
(Aug. 27, 2001) (NLRB Dec.). In its decision, the Board
directed Beverly to post two separate remedial notices: one
at all of the Pennsylvania nursing homes involved in this
proceeding and a second at all of Beverly's nursing homes
nationwide. Beverly challenges seven of the Board's ULP
findings as well as the nationwide scope of the remedy. For
the reasons set forth below, we conclude the petition should
be granted as to two ULPs-those based on Beverly's refusal
to rehire striking employees and its videotaping of picketing
employees. In all other respects, the petition for review
should be denied.1
__________
1 With respect to the ULP findings that Beverly does not contest,
the Board is entitled to summary enforcement. International
Union of Petroleum & Indus. Workers v. NLRB, 980 F.2d 774, 778
(D.C. Cir. 1992) (citing Retail Clerks Union, Local 1401 v. NLRB,
463 F.2d 316, 320 (D.C. Cir. 1972)).
I.
In the fall of 1994 Beverly and District 1199P of the Service
Employees International Union, AFL-CIO (Union) were ne-
gotiating new collective bargaining agreements for employees
at the 20 Pennsylvania nursing homes in this case. At the
time, bargaining units at all but three of the facilities were
covered by agreements set to expire on November 30, 1994,
units at two other homes were covered by agreements set to
expire on December 31, 1994 and the remaining unit was
newly certified and not yet covered by an agreement. Nego-
tiations continued until Spring 1996.
Beginning on February 13, 1996 the Union's locals filed a
series of ULP charges, all of which were ultimately consoli-
dated into one complaint. On November 26, 1997 the ALJ
issued a decision finding Beverly committed numerous ULPs
and ordering Beverly to cease and desist and to post notices
at all of the nursing homes involved. NLRB Dec. at 41. The
ALJ specifically reserved for a supplemental proceeding the
determination "whether remedies should extend to any or all
of the interrelated Beverly Companies." Id. He issued a
supplemental decision on November 30, 1999 which recom-
mended a single cease-and-desist order to be posted at all of
Beverly's facilities nationwide. NLRB Dec. at 43-59. Bever-
ly filed exceptions to the ALJ's decisions on December 28,
1999.
The Board issued a decision dated August 27, 2001 in which
it "affirm[ed] the judge's rulings, findings, and conclusions."
NLRB Dec. at 1. The Board revised the remedy to require
two separate notices, one addressing the particular ULPs in
this case to be posted only at the 20 subject Pennsylvania
facilities (and corporate offices overseeing them), id. at 14-17
(App. A), and a broader one to be posted company-wide, id. at
17-18 (App. B).
Beverly filed a petition for review on September 9, 2001.
The Board filed a cross-application for enforcement on No-
vember 8, 2001.
II.
Beverly challenges seven of the ULP findings as well as the
company-wide scope of the remedy. "We will affirm the
judgment of the Board unless, 'upon reviewing the record as
a whole, [this Court] conclude[s] that the Board's findings are
not supported by substantial evidence, or that the Board
acted arbitrarily or otherwise erred in applying established
law to the facts of the case.' " Tradesman Int'l, Inc. v.
NLRB, 275 F.3d 1137, 1141 (D.C. Cir. 2002) (quoting Inter-
national Union of Electronic, Elec., Salaried, Mach. & Fur-
niture Workers v. NLRB, 41 F.3d 1532, 1536 (D.C. Cir.
1994)). We apply this standard to each of Beverly's conten-
tions seriatim.
A. Refusal to Reinstate Striking Employees
First, Beverly contests the ALJ's finding, summarily af-
firmed by the Board, that Beverly violated the Act by failing
to promptly reinstate 450 employees after a three-day strike
the Union began on April 1, 1996. Beverly contends the
strike was unlawful because the Union failed to comply with
the statutory notice requirement in section 8(g) of the Act, 29
U.S.C. s 158(g). We agree and, accordingly, conclude that
Beverly was under no duty to rehire the workers who partici-
pated in the unlawful strike.
Section 8(g) provides:
(g) Notification of intention to strike or picket at any
health care institution
A labor organization before engaging in any strike,
picketing, or other concerted refusal to work at any
health care institution shall, not less than ten days prior
to such action, notify the institution in writing and the
Federal Mediation and Conciliation Service of that inten-
tion, except that in the case of bargaining for an initial
agreement following certification or recognition the no-
tice required by this subsection shall not be given until
the expiration of the period specified in clause (B) of the
last sentence of subsection (d) of this section. The notice
shall state the date and time that such action will com-
mence. The notice, once given, may be extended by the
written agreement of both parties.
29 U.S.C. s 158(g). On March 14 and 15, 1996 Union locals
sent notices to fifteen facilities that they intended to strike at
7:00 a.m. on March 29. On March 27, however, the Union
sent a second notice purporting to extend the strike deadline
71 hours to 6:00 a.m. on Monday April 1. NLRB Dec. at 37.
In a letter dated March 28, 1996 Beverly responded that it
considered the March 27 notification a new notice requiring
an additional 10 days before the Union workers could lawfully
strike under section 8(g).
Before the ALJ Beverly again asserted the strike was
unlawful under section 8(g). The ALJ rejected Beverly's
defense because the Board's "clear and consistent precedent,"
tracing to its pre-Chevron decision in Greater New Orleans
Artificial Kidney Center, 240 N.L.R.B. 432 (1979), construed
section 8(g) to permit a union to unilaterally extend a strike
deadline for up to 72 hours. We review the board's construc-
tion of section 8(g) under the familiar Chevron analysis:
If ... " 'Congress has directly spoken to the precise
question at issue,' " we "must give effect to Congress's
'unambiguously expressed intent.' " Secretary of Labor
v. [Fed. Mine Safety & Health Review Comm'n], 111 F.3d 913, 917 (D.C. Cir.1997) (quoting Chevron USA, Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 2781, 81 L. Ed. 2d 694 (1984)).
"If 'the statute is silent or ambiguous with respect to the
specific issue,' we ask whether the agency's position rests
on a 'permissible construction of the statute.' " Id. (quot-
ing Chevron, 467 U.S. at 843, 104 S. Ct. 2778, 2782, 81
L.Ed.2d 694).
National Multi Housing Council v. EPA, 292 F.3d 232, 234
(D.C. Cir. 2002) (quoting Cyprus Emerald Resources Corp. v.
Fed. Mine Safety & Health Review Comm'n, 195 F.3d 42, 45
(D.C. Cir. 1999)). We conclude section 8(g) manifests an
"unambiguously expressed intent" that precludes the Board's
interpretation.
Section 8(g) expressly states that before commencing a
strike at a health care institution a union "shall, not less than
ten days prior to such action, notify the institution in writing"
and that the "notice shall state the date and time that such
action will commence." The meaning of this mandatory
language could not be plainer or the Congress's intent in
enacting it clearer. The notice must provide ten days notice
of a strike specifying the day and time it is to occur. Neither
the initial notices the locals sent on March 14-15, 1996 nor
the "extension" sent on March 27 satisfy this requirement.
Although the former provided adequate notice of a strike to
commence on April 29, as it turned out the strike did not
begin until three days after that date; the extension, on the
other hand, accurately identified the date of the strike but did
not afford the requisite ten days' notice. Nor do either fall
within the single statutory exception to the otherwise rigid
notice requirement: that "[t]he notice, once given, may be
extended by the written agreement of both parties."
Despite the plain meaning of the statute, the Board con-
tends that it is somehow ambiguous because it does not
expressly state that agreement of the parties is the only
means to obtain an extension. No such express provision is
necessary. If the Congress had intended to allow either
party to extend the notice unilaterally, it could easily have
said so--but it did not. Instead the Congress carved out but
a single express exception--when both parties consent in
writing--an exception that would be unnecessary if either
party could unilaterally extend the notice at will. This is a
case where "the cannons [sic] of avoiding surplusage and
expressio unius are at their zenith" because "they apply in
tandem." Independent Ins. Agents, Inc. v. Hawke, 211 F.3d 638, 645 (D.C. Cir. 2000) (citing Halverson v. Slater, 129 F.3d 180, 184-86 (D.C. Cir. 1997)). The Board's ambiguity argu-
ment therefore fails.
B. Denial of Access to Workplace
Second, Beverly challenges the Board's finding that it
committed a ULP when Wayne Chapman, Beverly's Senior
Regional Director of Associate Relations, directed that the
Union be denied access to Beverly's facilities, including bulle-
tin boards, in a December 1, 1994 memorandum, although
such access had been a term of the expired contracts. We
conclude this finding should be upheld.
In Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (1991),
the United States Supreme Court stated: "The Board has
determined, with our acceptance, that an employer commits
an unfair labor practice if, without bargaining to impasse, it
effects a unilateral change of an existing term or condition of
employment." 501 U.S. at 198 (citing NLRB v. Katz, 369 U.S. 736 (1962)). This is precisely what Beverly did in this
case. Nor does the denial of access fall into any of the four
established exceptions to the unilateral change rule enumerat-
ed in Litton: arbitration clauses, no-strike clauses, union
security clauses and dues check-off provisions. Id. at 199-
200.
Beverly suggests that the Court in Litton excluded con-
tract terms from the rule because they affect the relationship
between the employer and the union, as opposed to the
relationship between the employer and the employees, and
and that we should therefore except the present term as well.
The Litton Court, however, drew no such distinction. Equal-
ly misplaced is Beverly's reliance on cases holding that unions
do not ordinarily have a right to trespass. See, e.g., NLRB v.
Babcock & Wilcox Co., 351 U.S. 105 (1956); Lechmere, Inc. v.
NLRB, 502 U.S. 527, 538-39 (1992); United Food and Com-
mercial Workers v. N.L.R.B., 74 F.3d 292, 300 (D.C. Cir.
1996). None of those cases involved a contractual right to
access. In sum, it was not arbitrary, capricious or otherwise
contrary to law for the Board not to exempt union access
provisions from the unilateral change doctrine.
C. Management Rights Clause
Third, Beverly challenges the Board's finding that it com-
mitted a ULP by implementing various changes that it claims
were authorized by the expired management rights clause.
The Board asserts, inter alia, that Beverly is barred from
challenging the ULP here because the issue was already
conclusively decided by the Sixth Circuit Court of Appeals in
Beverly Health & Rehab. Servs. v. NLRB, 297 F.3d 468 (6th
Cir. 2002). We agree.
As we have previously stated:
[T]he standards for establishing the preclusive effect of an
earlier holding are:
First, the same issue now being raised must have been
contested by the parties and submitted for judicial deter-
mination in the prior case. Second, the issue must have
been actually and necessarily determined by a court of
competent jurisdiction in that prior case.... Third,
preclusion in the second case must not work a basic
unfairness to the party bound by the first determination.
An example of such unfairness would be when the losing
party clearly lacked any incentive to litigate the point in
the first trial, but the stakes of the second trial are of a
vastly greater magnitude.
Hall v. Clinton, 285 F.3d 74, 82 n. 9 (D.C. Cir. 2002) (quoting
Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254
(D.C. Cir. 1992) (alteration original), cert. denied, 506 U.S. 108 (1993)). This case satisfies all three requirements.
First, the Sixth Circuit had before it the same management
rights clause at issue here at two of the same facilities--
Grandview and Caledonia. Second, the Sixth Circuit decided
to "affirm the Board's conclusion that the management-rights
clause [there] did not continue after the termination of the
contract." 297 F.3d at 483. Third, Beverly had every incen-
tive to--and did--litigate the issue before the Sixth Circuit so
that there is no unfairness in holding Beverly to the result
reached there.2
__________
2 It is true, as Beverly observes, that the Supreme Court has
recognized "an exception to the applicability of the principles of
collateral estoppel for 'unmixed questions of law' arising in 'succes-
sive actions involving unrelated subject matter.' " United States v.
Stauffer Chem. Co., 464 U.S. 165, 171 (1984) (quoting Montana v.
United States, 440 U.S. 147, 162 (1979); citing Allen v. McCurry,
D. Supervisory Status of Licensed Practical
Nurses at Haida Manor
Fourth, Beverly challenges the Board's determination that
the licensed practical nurses (LPNs) at Beverly's Haida Man-
or facility are not supervisors under the Act and, specifically,
that they did not supervise the work of "certified nurse
assistants" (CNAs). The Board determined Beverly "ha[d]
not met its burden of establishing that the LPNs are supervi-
sors" because "the judge's extended fact-findings ... confirm
that, contrary to the Respondent's contentions, the LPNs
exercised only 'routine' authority that did not require the use
of independent judgment in directing the work of other
employees within the meaning of Sec. 2(11)." NLRB Dec. at
1 n.3. We uphold the Board's determination.
Section 2(11) of the Act defines "supervisor" as follows:
The term 'supervisor' means any individual having au-
thority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, re-
ward, or discipline other employees, or responsibly to
__________
449 U.S. 90, 95 n.7 (1980); United States v. Moser, 266 U.S. 236, 242
(1924)). The Court has also narrowly limited the exception:
"[W]hen the claims in two separate actions between the same
parties are the same or are closely related ... it is not
ordinarily necessary to characterize an issue as one of fact or of
law for purposes of issue preclusion.... In such a case, it is
unfair to the winning party and an unnecessary burden on the
courts to allow repeated litigation of the same issue in what is
essentially the same controversy, even if the issue is regarded
as one of 'law'."
Id. (quoting Restatement (Second) of Judgments s 28 comment b
(1982); ellipsis original; footnote omitted). Here, where the legal
issue is identical and the factual settings so closely related, the
exception simply does not apply. Cf. id at 172 ("Any factual
differences between the two cases, such as the difference in the
location of the plants and the difference in the private contracting
firms involved, are of no legal significance whatever in resolving the
issue presented in both cases.").
direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment.
29 U.S.C. s 152(11). The ALJ expressly found that "LPNs
have no involvement in many decisions typically reserved to
supervisors," citing specific testimony in the record to show
that LPNS neither trained individuals to become CNAs nor
oriented new CNAs, that they exercised no authority over the
CNAs' work, overtime or shift assignments, time off, griev-
ances, lay-offs and recalls, discipline or hiring (at least not
"before the spring of 1996" and "[e]ven then, ... the LPNs
did not hire CNAs or make effective recommendations as to
the hiring of CNAs"). NLRB Dec. at 33-34. The ALJ
further found, again citing detailed evidentiary support, that
LPNs "provide only routine direction to the CNAs and do not
responsibly direct the work of the CNAs." Id. at 35. Given
these findings and the record evidence supporting them, the
ALJ reasonably determined, and the Board reasonably af-
firmed the determination, that what authority the LPNs
exercised was "of a merely routine or clerical nature" and did
not "require[ ] the use of independent judgment" so as to
make them statutory supervisors.3
__________
3 At the time of the ALJ's decision the Board endorsed an
"independent judgment" test that excluded "ordinary professional
or technical judgment in directing less-skilled employees to deliver
services in accordance with employer-specified standards." See
NLRB v. Kentucky River Cmty. Care, 532 U.S. 706, 724 (2001). In
Kentucky River the United States Supreme Court expressly reject-
ed the Board's test, concluding it "insert[ed] a startling categorical
exclusion into statutory text that does not suggest its existence."
Id. at 714. In affirming the ALJ's determination below, the Board
properly considered Kentucky River and concluded that, under the
Supreme Court's interpretation of the statutory terms, the ALJ's
"extended fact-findings" supported his conclusion that the LPNs
"exercised only 'routine' authority that did not require the use of
independent judgment." NLRB Dec. at 1-2 n. 3.
E. HMO Coverage
Fifth, Beverly challenges the Board's finding that it com-
mitted a ULP when it unilaterally implemented HMO cover-
age in place of the Union Health and Welfare Fund (Union
plan) previously offered at five facilities. We again uphold
the Board's finding.
The collective bargaining agreements required Beverly to
provide employees with alternative health plans: Beverly's
own and an HMO. Because no satisfactory HMO was avail-
able at five sites, the parties reached a grievance settlement
agreement requiring that the Union plan be available for one
year, until November 30, 1995, as an alternative at the five
sites. On November 28, 1995 the Union received a letter
from Beverly announcing that as of January 1, 1996 specific
HMOs would replace the Union plan at the five sites. The
Union responded in a letter dated December 5, 1996 with a
"demand" that Beverly "bargain in good faith over these
issues." JA 295. In a December 8, 1996 letter, which
Beverly describes as a response to the December 5 letter,
Pet'r's Br. at 45-46 (although the letter purports to be in
response to a December 6 letter and does not mention health
plans), Senior Regional Director Chapman complained that
the Union was continuing to "bypass the facilities' negoti-
ators, and the facility administrators." JA 158. In a letter
dated December 11 (expressly "in response to [the Union's]
letter of December 5"), Beverly asserted the change in cover-
age did not "violate[ ] any contractual obligation or labor law."
JA 296. Beverly subsequently implemented the change.
The ALJ found that Beverly "promptly rejected the re-
quest and proceeded to implement the replacement HMO
plan on January [sic]." NLRB Dec. at 22. The ALJ further
found this was a ULP because, although Beverly "had a right
to terminate the [Union] plan on November 30, 1995," pursu-
ant to the settlement agreement, it was "not free thereafter
unilaterally to implement a replacement plan in the face of a
timely union request for bargaining on the matter." Id. at 21
(citing Carpenter Sprinkler Corp., 238 N.L.R.B. 974 (1978),
enforced in relevant part, 605 F.2d 60 (2d Cir. 1979)). Bever-
ly challenges the ALJ's ULP finding on the sole ground that
the evidence does not support the ALJ's finding that Beverly
rejected the Union's December 5 bargaining demand. The
ALJ's finding to the contrary, however, is a fair inference
from Chapman's December 11 letter, which maintained Bev-
erly was free to unilaterally implement the coverage change
despite the Union's bargaining demand, and from Beverly's
subsequent implementation of the change.
F. Videotaping
Sixth, Beverly challenges the Board's determination that it
committed a ULP when it videotaped leafleting picketers
outside Beverly's Fayette facility. The ALJ provided the
following account of the episode:
Early in the afternoon of Sunday, March 31, and just
prior to the strike, about 18 employees participated in
leafleting on a road leading up to the Fayette facility.
While doing so, two security guards approached the
group. One of them told Union Organizer Tammy Miller
that Administrator Jim Filippone wanted the group to
move down the road because they were on facility prop-
erty. As he did this, the other guard stood nearby busily
engaged in videotaping the group. When Miller replied
that they had a right to be there according to township
records, the guards left to report back to Filippone.
Later that day, Filippone, after obtaining clarification
from township officials, told the employees that they
need not move.
NLRB Dec. at 26. The ALJ concluded the videotaping was a
ULP because:
Photographing employees engaged in lawful picketing
tends to intimidate by implanting fear of future reprisals
and is deemed surveillance violative of Section 8(a)(1),
absent some legitimate justification. Athens Disposal
Co., 315 NLRB 87 (1994); Waco, Inc., 273 NLRB 746,
747 (1984). None is shown here. Accordingly, I find a
violation.
Id. Beverly acknowledges that such videotaping is generally
unlawful but argues it offered a legitimate justification which
the ALJ arbitrarily ignored. We agree.
The ALJ's own description of the events contradicts his
assertion that Beverly offered no justification. His account,
as well as Fillipone's hearing testimony, manifests that Filli-
pone first ordered the picketers to depart because he believed
they were trespassing on Beverly's property, a justification
that has been recognized by the Board. See Ordman's Park
& Shop, 292 N.L.R.B. 953, 956 (1989) ("It is undisputed that
during the course of the picketing Respondents took photo-
graphs of nonemployee [sic], paid pickets in order to preserve
evidence of alleged trespass. The Board has held that where
photographs are taken for the purpose of gathering evidence,
and there is no showing of coercion of the employees, such
photographing is not unlawful. Roadway Express, 271
NLRB 1238 (1984)). When Filipone got a "clarification from
the township" that the leafleting site was subject to township
control under an easement, he testified at the hearing, he
immediately dropped his opposition to the picketers' pres-
ence. JA 1247. Faced with Beverly's explanation, the ALJ
should have made a determination, supported by factual
findings, whether it was a "legitimate justification" under
Board precedent. See Timken Co., 331 N.L.R.B. No. 86
(Jul. 13, 2000); 2000 WL 981649, *21 ("The test of validity of
such conduct is whether there was proper justification and
whether it reasonably tends to coerce employees.") (citing F.
W. Woolworth Co., 310 N.L.R.B. 1197, 1204 (1993); Athens
Disposal Co., 315 N.L.R.B. 87, 98 (1994); Dayton Hudson
Co., 316 N.L.R.B. 477 (1995); Parsippany Hotel Manage-
ment Co., 319 N.L.R.B. 114 (1995)). Instead he ignored it.
G. Advertising for Replacement Workers
Seventh, Beverly challenges the Board's finding that it
committed a ULP when, after receiving the strike notice, it
advertised for replacements to work at its Grandview facility
at higher rates of pay than it had been paying its union
employees. We uphold the Board's finding.
Beverly argues that under Board precedent it is free to set
the terms and conditions of employment for striker replace-
ments. The Board acknowledged this general right but
observed in its decision that an employer "may not exercise
that right in a manner designed to undermine the Union" and
concluded that here, "in the context of" Beverly's other
"unfair labor practices before and shortly after it placed the
ads, including unilateral actions that disparaged the Local
Union's representative role and discriminatory treatment of
two Grandview Manor union activists," and "given the Re-
spondent's corporatewide and centralized policy of hostility to
its employees' rights under the Act,"4 "the unexplained and
publicized offer of higher wages to strike replacements can
only be seen as designed further to undermine the Local
Union in the eyes of the employees it represented." NLRB
Dec. at 4. The Board's determination that advertising higher
pay rates for replacement workers can constitute an unfair
labor practice under certain circumstances is supported by its
precedent. See Service Elec. Co., 281 N.L.R.B. 633, 639 n.11
(1986) (acknowledging that "the ability to set employment
terms for replacements is a necessary incident of the underly-
ing right to hire replacements" but noting that "if the struck
employer is exercising that right in a manner designed to
accomplish an illegal objective, i.e., to undermine the bargain-
ing representative, then there would be a basis for finding a
violation"); Workroom for Designers, 274 N.L.R.B. 840, 856
(1985) ("[T]o advertise a willingness to pay nonstriking em-
ployees more than the employer had paid the strikers clearly
has a tendency to interfere with, restrain, and coerce employ-
ees in the exercise of their statutory rights, in violation of
Section 8(a)(1) of the Act."). In light of the circumstances
cited by the Board and Beverly's failure below to offer a
lawful justification for the higher wages, the Board's finding
of unlawful motive was not arbitrary or capricious.
H. Corporate-Wide Remedy
Finally, Beverly challenges the corporate-wide scope of the
remedial order, asserting that, at most, it should apply only to
__________
4 See infra Part II(H).
Beverly's facilities in Pennsylvania, where all of the ULPs
here occurred. We conclude that the broad, company-wide
remedy is adequately supported and is therefore entitled to
enforcement.
"To offset companywide effects caused by extensive unlaw-
ful conduct, courts and the Board have expanded remedial
measures beyond the actual locations at which unfair labor
practices were found. In certain cases, remedies designed to
facilitate union communication and dissipate harmful effects
have been applied companywide." United Steelworkers of
Am. v. NLRB, 646 F.2d 616, 635-36 (D.C. Cir. 1981). "Fac-
tors 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." Beverly Cal. Corp. v.
NLRB, 227 F.3d 817, 846 (7th Cir. 2000) (citing Torrington
Extend-A-Care Employee Ass'n v. NLRB, 17 F.3d 580, 586
(2d Cir. 1994); Blount Brothers Corp. v. NLRB, 571 F.2d 4,
4-5 (7th Cir. 1978)). The Board below ordered a corporate-
wide remedy based on (1) Beverly's geographically-broad
history of widespread ULPs, see Beverly Cal. Corp., 326
N.L.R.B. 232 (1998), enforced in part, vacated in part and
remanded, 227 F.3d 817 (7th Cir. 2000); Beverly Cal. Corp.,
326 N.L.R.B. 153 (1998), enforced, 227 F.3d 817 (7th Cir.
2000); Beverly Enters., 310 N.L.R.B. 222 (1993), enforced in
part and denied in part, Torrington Extend-A-Care Em-
ployees Ass'n v. NLRB, 17 F.3d 580 (2d Cir. 1994); (2) the
direct involvement here of both corporate and regional man-
agement;5 and (3) Beverly's centralized structure for dealing
__________
5 The Board asserted: "High-ranking corporate and regional
officials who played prominent roles in directing, approving, or
knowingly failing to prevent unlawful actions included Beverly
President Bill Mathies; Vice President for Labor and Employment
Donald Dotson; Region 1 (Northeast) Vice President of Operations
Claude Lee; Region 1 Director for Associate Relations Wayne
Chapman; and Region 1 Labor Relations Manager Ron St. Cyr."
NLRB Dec. at 5.
with labor issues. These factors are supported by the evi-
dence which reveals that Beverly's Labor and Employment
Vice President Donald Dotson kept close oversight of all
regional labor developments (and in fact made the decision to
deny the Union access to Beverly's facilities) and that region-
al officers, in particular Chapman, were extensively involved
in the ULPs at issue. The Seventh Circuit found that "the
fact that most strongly supports the Board's chosen remedy"
is "the ubiquitous nature of the area personnel at local
facilities whenever labor problems arose"--"[i]n case after
case, at facility after facility, the Board saw regional manag-
ers coming in to ensure that Beverly's overall corporate
policy was implemented." Beverly Cal. Corp. v. NLRB, 227 F.3d at 847.6 The same holds true here.
For the reasons set forth above, the petition for review is
granted and the cross-application for enforcement is denied
as to the ULP findings based on the refusal to rehire striking
employees--given that the strike notice was inadequate--and
on the videotaping of picketing employees. In all other
respects the petition is denied and the cross-application is
granted.
So ordered.
__________
6 We note that, by fashioning separate Pennsylvania and corpo-
rate postings, the Board adequately addressed the Seventh Circuit's
concern, regarding the order that circuit confronted, "that much of
it is nothing more than a laundry list of the particular violations
committed at individual facilities" and its direction to the Board on
remand "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." 227 F.3d at 847.
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