Manor Care of Easton , Pa., LLC, Doing Business As Manorcare Health Services - Easton v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 7, 2011 Decided November 22, 2011
No. 10-1411
M ANOR CARE OF EASTON , PA., LLC, DOING BUSINESS AS
M ANORCARE HEALTH SERVICES - EASTON ,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD ,
RESPONDENT
SERVICE EMPLOYEES I NTERNATIONAL UNION HEALTHCARE
PENNSYLVANIA (SEIU HEALTHCARE PA),
I NTERVENOR
Consolidated with 11-1011
On Petition for Review and Cross-Application for
Enforcement of An Order of the National Labor Relations
Board
Charles P. Roberts, III argued the cause for petitioner.
With him on the briefs was Clifford H. Nelson Jr.
Kellie Isbell, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the brief were
John H. Ferguson, Associate General Counsel, Linda Dreeben,

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Deputy Associate General Counsel, and Julie B. Broido,
Supervisory Attorney. MacKenzie Fillow, Attorney, and Robert
J. Englehart, Supervisory Attorney, entered appearances.
Nicole G. Berner argued the cause for intervenor in support
of respondent. With her on the brief were Judith A. Scott and
Lela M. Klein.
Before: ROGERS , Circuit Judge, and WILLIAMS and
RANDOLPH , Senior Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: Manor Care of Easton, PA, LLC, filed this
petition for review of an order of the National Labor Relations
Board. The Board held that Manor Care violated § 8(a)(1) and
(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1)
& (3), when it threatened and disciplined Trisha Miechur, a
certified nursing assistant and outspoken union supporter. Manor
Care contests both findings.* The Board has filed a cross-
application for enforcement of its order.
Section 8(a)(1) makes it unlawful for employers to
“interfere with, restrain, or coerce employees” in the exercise of
rights guaranteed by the Act. 29 U.S.C. § 158(a)(1). Shortly
after Manor Care supervisor Debra Kushnerick unlawfully
confiscated union literature from Miechur, she told Miechur to
* Manor Care concedes a number of other violations, including
(1) unlawfully interrogating Miechur; (2) soliciting employee
grievances to discourage unionization; (3) granting wage increases and
lump sum bonuses to discourage unionization; and (4) confiscating
union literature. The Board is entitled to summary enforcement of
these uncontested findings. Flying Food Grp., Inc. v. NLRB, 471 F.3d
178, 181 (D.C. Cir. 2006).

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“stop worrying about the Union and worry about your job.” The
statement came during a confrontation over the literature and
soon after Miechur was unlawfully interrogated. Given these
circumstances, substantial evidence supports the Board’s finding
that Kushnerick’s statement was an unlawful threat of job loss.
See, e.g., Fieldcrest Cannon, Inc., 318 N.L.R.B. 470, 488
(1995), enforced in relevant part, 97 F.3d 65 (4th Cir. 1996).
Section 8(a)(3) makes it an unfair labor practice for an
employer to “discourage membership in any labor organization”
by “discriminat[ing] in regard to hire or tenure of employment.”
29 U.S.C. § 158(a)(3). The Board assumed, as shall we, that
Miechur urged Manor Care patients to support the union’s
cause. For this, she received a final written warning – the last
step before termination. To establish that the punishment was
unlawful, the Board must demonstrate that protected activity
was a motivating factor for the discipline. If the Board
succeeds, Manor Care may mount an affirmative defense by
showing that it would have taken the same action in the absence
of any anti-union considerations. Wright Line, 251 N.L.R.B.
1083, 1089 (1980); see also NLRB v. Transp. Mgmt. Corp., 462
U.S. 393, 401-03 (1983) (approving the Wright Line test).
Manor Care admits that Miechur’s union activity was a
motivating factor for her discipline. It defends on the ground
that it would have punished Miechur anyway. The Board’s
conclusion to the contrary has ample support. Although other
employees engaged in conduct similar to Miechur’s, Manor
Care neither investigated nor punished any one of them.
Miechur was disciplined without an inquiry into her actions, as
company policy required. And Manor Care premised its
discipline, at least in part, on Miechur’s expired disciplinary
history, an impermissible consideration under company rules.
We therefore conclude that substantial evidence supports the

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Board’s Wright Line determination. See, e.g., Tasty Baking Co.
v. NLRB, 254 F.3d 114, 126-27 (D.C. Cir. 2001).
In light of these conclusions, we need not consider the
Board’s alternative ground for its § 8(a)(3) ruling – that the
direct solicitation of health care patients here was a protected
activity under § 7 of the Act, 29 U.S.C. § 157. See 356 N.L.R.B.
No. 39, 2010 WL 4929679, at *4 n.13 (2010). For the reasons
discussed above, we deny the petition for review and grant the
Board’s cross application for enforcement.
So ordered.

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