National Labor Relations Board v. S T . Francis Healthcare Centre

*The Honorable Henry R. Wilhoit, Jr., Chief United States District
Judge for the Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0170P (6th Cir.)
File Name: 00a0170p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
NATIONAL LABOR R ELATIONS
BOARD ,
Petitioner/Cross-Respondent,
v.
S T . FRANCIS HEALTHCARE
C ENTRE ,
Respondent/Cross-Petitioner.
;>

1
Nos. 98-6297/6401
On Application for Enforcement and Cross-Petition for
Review of an Order of the National Labor Relations Board.
Nos. 8-RC-15410; 8-CA-29739.
Argued: October 26, 1999
Decided and Filed: May 19, 2000
Before: RYAN and COLE, Circuit Judges; WILHOIT,
District Judge.*

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

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

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4 NLRB v. St. Francis
Healthcare Centre
Nos. 98-6297/6401
different conclusion had the matter been before it de novo.’”
V&S ProGalv, 168 F.3d at 275 (citation omitted).
II. The First Election
A.
St. Francis is an Ohio not-for-profit corporation operating
a rehabilitation hospital and skilled nursing facility in Green
Springs, Ohio. In July 1996, District 1199 of the Union filed
a petition with the Board seeking to represent approximately
150 full- and part-time service and maintenance employees at
St. Francis’s facility. An election was held on October 3 and
4, 1996; 71 employees voted against the Union, 60 voted for
the Union, and there were 10 challenged ballots.
The Union filed objections to the election with the NLRB
Regional Director. Following a hearing, a hearing officer
recommended that the election be set aside and a new election
be conducted, based upon three of the Union’s objections.
Specifically, the hearing officer found that St. Francis had:
(1) threatened that unionization would prevent St. Francis
from affiliating with a partner, forcing the facility to close
within 18 months; (2) threatened to reduce or eliminate
current employee benefits during the bargaining process; and
(3) prohibited employees from wearing pro-Union insignia on
their uniforms and enforced its no-solicitation policy in a
discriminatory manner. St. Francis appealed this decision to
the Board, which adopted the hearing officer’s findings and
recommendations and ordered a new election.
We proceed to address the Board’s three grounds for
ordering a second election.
Nos. 98-6297/6401 NLRB v. St. Francis
Healthcare Centre
37
II.
I also write separately on our decision to remand to the
Board for an evidentiary hearing on St. Francis’s objection to
the Biddle letter.
Although St. Francis bears the burden in its quest to
overturn the election, see NLRB v. Gormac Custom Mfg., Inc.,
190 F.3d 742, 746 (6th Cir. 1999), we must take the evidence
presented by St. Francis in the light most favorable to the
company, see NLRB v. Valley Bakery, Inc., 1 F.3d 769, 772
(9th Cir. 1993); Prestolite Wire Div. v. NLRB, 592 F.2d 302,
306-307 (6th Cir. 1979). Here, St. Francis makes a showing
of “substantial and material factual issues” which, if proven,
would warrant setting aside the election. See 29 C.F.R.
102.69(d) (stating that a “hearing shall be conducted with
respect to those objections or challenges which the regional
director concludes raise substantial and material factual
issues”); NLRB v. Tennessee Packers, Frosty Morn Div., 379
F.2d 172, 177-78 (6th Cir. 1967).
As stated by the majority, in addition to the timing of the
statement, “this court has considered other factors, including
whether the employer was aware of the communication and
had an opportunity to respond, the extent of the
misrepresentation, whether the source of the
misrepresentation was identified, and whether there is
evidence that employees actually were affected by the
misrepresentation.” Mitchellace v. NLRB, 90 F.3d 1150,
1155 (6th Cir. 1996). We also note the closeness of the
election. See Gormac Custom Mfg., 190 F.3d at 747; see also
Valley Bakery, 1 F.3d at 773 (“The need for a hearing is
particularly great when the election is close.”); NLRB v.
Bristol Spring Mfg. Co., 579 F.2d 704, 707 (2d Cir. 1978).
The majority finds that St. Francis raises material issues of
fact on at least four of these five points. While I agree that St.
Francis raises sufficient issues of material fact to support
holding an evidentiary hearing, I do not believe that St.

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36 NLRB v. St. Francis
Healthcare Centre
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testified that Storer stated, for example, that they would “have
to start from zero and work up to regain the benefits” they
had. These statements do not merely indicate that, as the
majority states, the employees “would need to negotiate to
achieve their current benefits once bargaining began,” but that
St. Francis would begin from zero if the workers unionized.
See NLRB v. Construction & Gen. Laborers’ Union, Local
No. 534, 778 F.2d 284, 291 (6th Cir. 1985) (noting that “the
speaker’s intent must be inferred from the circumstances as
they appear to the reasonable person,” and that “assertions
that the employer will ‘bargain from scratch’ are unfair labor
practices”). Second, the unsigned pro-management leaflet,
which stated that the company would begin bargaining at “0”,
provides additional evidence supporting the Board’s
conclusion that the company violated Section 8(a)(1) of the
Act. Further, St. Francis’s oral and written statements were
made in the context of a campaign in which other violations
of the Act occurred, including the hallmark violation of
threatened plant closure.
We may not reverse the Board’s reasonable inferences
“even though [we] might justifiably have reached a different
conclusion had the matter been before [us] de novo.” Tony
Scott Trucking, Inc. v. NLRB, 821 F.2d 312, 313 (6th Cir.
1987). In light of the above evidence presented to the ALJ, I
believe that substantial evidence exists to support the Board’s
determination. This evidence is such that “‘a reasonable mind
might accept as adequate to support’” the Board’s conclusion.
Contech Div., SPX Corp. v. NLRB, 164 F.3d 297, 305 (6th
Cir. 1998), cert. denied, 120 S.Ct. 64 (1999) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)).
Because we find independent violations of the Act, the
majority’s determination of this issue does not require
overturning the Board’s decision on the first election.
Accordingly, I concur in the majority’s resolution of the
challenge to the first election.
Nos. 98-6297/6401 NLRB v. St. Francis
Healthcare Centre
5
B.
St. Francis’s Statements Concerning Facility’s Long-
Term Viability
1.
St. Francis’s management decided in 1995 to seek potential
partners in the health care industry in order to compete more
effectively. The company conducted monthly “open forum”
meetings at which senior management shared, with all
employees who chose to attend, strategic information about
the company and its financial situation and explored the
possibility of affiliation. At a September 18, 1996, open
forum conducted during the Union’s organizing campaign, an
employee asked St. Francis’s CEO, Gregory Storer, whether
a vote for Union representation would affect the ability to find
a partner. Storer testified before the hearing officer that he
responded by explaining that the most likely partner did not
have any organized labor contracts and had expressed
“concerns” about labor organization at St. Francis. According
to Storer, he told employees that the potential partner “wanted
to know how it was going and the progress and when the vote
was going to take place.” Another employee attending the
open forum then asked Storer how long St. Francis could
survive without a partner. According to Storer, he responded
that the organization’s current cash reserves would probably
allow it to operate for about 18 months.
Employees recalled Storer’s statements during the
September 18 open forum somewhat differently, testifying as
follows:
1. According to Colleen Kimmet, a nurse, Storer stated that
St. Francis needed to affiliate with another institution,
and that “no hospital or institution would want to affiliate
with St. Francis if it was unionized, and without
affiliation St. Francis would close in a year and a half.”

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6 NLRB v. St. Francis
Healthcare Centre
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2. Karen Slagle, a housekeeper, testified that “[Storer] said
that if the union got in that other hospitals would not
want to affiliate with us and that financially our doors
would close in a year and a half.” Slagle then responded
to a question from the Union representative:
Q: . . . And so [Storer] told people that hospitals
wouldn’t take you if you voted for the union, is that
what you–
A: It wouldn’t be attractive to other hospital
groups.
3. Melanie Ott, a nurse’s assistant, recalled that Storer
stated that “if the union got in that nobody would be
affiliated with us because they wouldn’t work with a
unionized facility. And if it got through that the doors
would close within a year, year and a half, because we
couldn’t stand alone.”
4. According to Naomi Rose, a patient care technician,
Storer stated “that the alliance would not join with us if
we was union, and that if we became union St. Francis
would have to close in a year and a half, because nobody
would affiliate with us.” On cross-examination, the
following colloquy took place:
Q: . . . [Y]ou understood that his remarks were
based upon the inability of the hospital to affiliate in
the event the union were voted in?
A: Yes, sir.
Q: . . . And he expressed his belief that the facility
would not be an attractive candidate for affiliation if
the union were voted in?
A: Yes, sir.
Nos. 98-6297/6401 NLRB v. St. Francis
Healthcare Centre
35
_________________
CONCURRENCE
_________________
R. GUY COLE, JR., Circuit Judge, concurring. I
respectfully write separately to address two points.
I.
First, although I agree with the majority’s conclusion that
the Board’s decision to set aside the first election was
supported by substantial evidence, I disagree with the
majority’s rejection, in Part II.C., of the Board’s
determination that St. Francis threatened to bargain “from
scratch,” thereby violating Section 8(a)(1) of the Act.
I agree with the majority that the record contains evidence
to support St. Francis’s position that its statements were
intended to inform employees about the bargaining
consequences of union representation. For example, the two
memorandum issued by St. Francis present a relatively
balanced and permissible presentation of the impact of
unionization.
However, the record also contains evidence that St. Francis
made impermissible threats regarding bargaining with the
union.
It is well established that “bargaining from ground
zero” or “bargaining from scratch” statements by
employer representatives violate Section 8(a)(1) of the
Act if, in context, they reasonably could be understood
by employees as a threat of loss of existing benefits and
leave employees with the impression that what they may
ultimately receive depends upon what the union can
induce the employer to restore.
Taylor-Dunn Mfg. Co., 252 N.L.R.B. 799, 800 (1980). The
ALJ heard testimony from employees at the open forum who

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34 NLRB v. St. Francis
Healthcare Centre
Nos. 98-6297/6401
enforcement of its bargaining order. We REMAND to the
Board to conduct a Van Dorn hearing on St. Francis’s Biddle
letter objection to the second election.
Nos. 98-6297/6401 NLRB v. St. Francis
Healthcare Centre
7
Q: And for that reason, without affiliation, . . . the
facility would close?
A: Yes, sir.
Pro-management literature also addressed affiliation. For
example, Sue Fretz, an RN manager who supervised
approximately 80 employees, admitted that she obtained from
management a “doctored” Union leaflet which stated, in part:
HOW WILL THE UNION HELP US WHEN THE
FACILITY CLOSES IT’S [SIC] DOORS BECAUSE
THE UNION KEEPS US OUT OF LARGER
HEALTHCARE SYSTEMS AND THE FINANCIAL
SUPPORT THAT COMES FROM THESE
AFFILIATIONS????
EVERYONE WILL BE LOOKING FOR JOBS!!!!!
Fretz circulated this leaflet to her subordinates at meetings,
highlighting the language concerning affiliation and warning
that unionization could jeopardize the facility’s affiliation
prospects.
The hearing officer credited the employees’ testimony over
Storer’s testimony and concluded that Storer’s predictions
about the impact of unionization on affiliation were
exaggerated. Taken in conjunction with the prediction that
the facility would close within 18 months without a partner,
the hearing officer found that Storer effectively threatened to
close the facility in violation of NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969). The Board adopted the hearing officer’s
findings and ordered a new election based, in part, on these
findings.
2.
St. Francis contends that the record does not support a
threat. It maintains that Storer merely represented that
unionization had the potential to disrupt affiliation, and that

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8 NLRB v. St. Francis
Healthcare Centre
Nos. 98-6297/6401
this prediction was supported with objective evidence,
specifically, the “concerns” raised by one potential affiliate.
Section 8(a)(1) of the National Labor Relations Act
(NLRA) prohibits interference, restraint, or coercion of
employees in the exercise of the right to self-organization.
29 U.S.C. § 158(a)(1).
“The test for determining whether an employer has
violated section 8(a)(1) is whether the employer’s
conduct tends to be coercive or tends to interfere with the
employees’ exercise of their rights. In making this
determination, the Board considers the total context in
which the challenged conduct occurs and is justified in
viewing the issue from the standpoint of its impact upon
the employees.”
United Parcel Serv. v. NLRB, 41 F.3d 1068, 1071-72 (6th Cir.
1994) (citations omitted).
Like the Board, we must consider the effect of statements
made during a union election campaign from the employees’
perspective, taking into account “the economic dependence of
the employees on their employers, and the necessary tendency
of the former, because of that relationship, to pick up intended
implications of the latter that might be more readily dismissed
by a more disinterested ear.” Indiana Cal-Pro, Inc. v. NLRB,
863 F.2d 1292, 1299 (6th Cir. 1988) (internal quotation marks
and citations omitted).
Management’s expression of views or opinion is
permissible if the expression contains “no threat of reprisal or
force or promise of benefit.” 29 U.S.C. § 158(c). Thus, the
Supreme Court has held that an employer may
make a prediction as to the precise effects he believes
unionization will have on his company. In such a case,
however, the prediction must be carefully phrased on the
basis of objective fact to convey an employer’s belief as
to demonstrably probable consequences beyond his
Nos. 98-6297/6401 NLRB v. St. Francis
Healthcare Centre
33
St. Francis contends that the six-month statute of
limitations period under 29 U.S.C. § 160(b) began to run
with its July 1997 refusal to bargain and did not start anew
with its March 1998 refusal. The Board maintains that the
March 3, 1998, refusal constituted an independent unfair
labor practice, and the unfair labor practice charge was filed
within six months of that refusal. The Board reasons that the
March 1998 refusal was independent of the earlier refusal
because it fell within one year of the Union certification,
during which time St. Francis was under a continuing
obligation to bargain. See Brooks v. NLRB, 348 U.S. 96, 104
(1954).
We reject St. Francis’s argument. First, we note that the
six-month limitations period is procedural, not jurisdictional,
and is therefore “subject to recognized equitable doctrines.”
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 395 n.11
(1982); see also NLRB v. Babcock & Wilcox Co., 697 F.2d
724, 727 (6th Cir. 1983). In NLRB v. Basic Wire Products,
Inc., 516 F.2d 261, 268 (6th Cir. 1975), we held that
successive refusals to bargain within one year of union
certification constitute independent unfair labor practices for
purposes of applying the six-month limitations period. See
also Bentson Contracting Co. v. NLRB, 941 F.2d 1262, 1264
n.2 (D.C. Cir. 1991). Moreover, even if we were inclined to
revisit our holding in Basic Wire Products, we need not
address the timeliness of the unfair labor practice charge
given our other holdings. The Board erroneously denied St.
Francis’s request for review of the second election on June
16, 1997—almost one month before the Union’s first
bargaining request. This renders moot the timeliness of the
unfair labor practice charge emanating from St. Francis’s
refusal to bargain.
V.
We DENY St. Francis’s petition for review on the first
election, GRANT St. Francis’s petition for review on the
second election, and DENY the Board’s application for

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The Board argues as a last resort that St. Francis cannot
challenge the failure to conduct an evidentiary hearing on the
Biddle letter objection because St. Francis never asked the
Board for an evidentiary hearing. This argument is both
factually and legally incorrect. In asking the Board to review
the Regional Director’s certification of the second election,
St. Francis addressed the Biddle letter, among other
objections. At the conclusion of its request, St. Francis asked
the Board to either order a rerun election or “hold a hearing
and further develop the evidence in this matter.” Moreover,
the Board was required to hold a hearing once St. Francis
succeeded in raising substantial and material factual issues
surrounding the Biddle letter. “‘[I]n the course of
determining whether the Board has abused the discretion
entrusted to it by Congress to adjudicate representation
disputes fairly, we must satisfy ourselves that the Board’s
order is the product of procedures which are fundamentally
fair.’” Gormac, 190 F.3d at 746 (quoting Shrader’s, 928 F.2d
at 198).
We conclude, therefore, that the Board abused its discretion
in refusing to grant an evidentiary hearing to evaluate the
Biddle letter under Van Dorn and its progeny.
IV. Statute of Limitations
Finally, St. Francis maintains that the Board, and therefore
this court, lacked jurisdiction over the Union’s unfair labor
practice charge because the charge was untimely. On July 14,
1997, following the Regional Director’s certification of the
second election, the Union sent a letter to St. Francis
requesting dates for collective bargaining. In its July 28,
1997, response letter, St. Francis refused to bargain and
advised the Union that it intended to seek judicial review of
the certification. On February 20, 1998, the Union again
requested bargaining. In a March 3, 1998, response letter, St.
Francis directed the Union to its earlier refusal. The Union
filed its unfair labor practice charge with the NLRB on
March 11, 1998.
Nos. 98-6297/6401 NLRB v. St. Francis
Healthcare Centre
9
control . . . . If there is any implication that an employer
may or may not take action solely on his own initiative
for reasons unrelated to economic necessities and known
only to him, the statement is no longer a reasonable
prediction based on available facts but a threat of
retaliation based on misrepresentation and coercion [and
in violation of the NLRA].
Gissel Packing Co., 395 U.S. at 618 (citations omitted); see
also Indiana Cal-Pro, 863 F.2d at 1298. If an employer
succeeds in articulating an objective basis for its prediction,
the Board bears the burden of demonstrating that the
prediction was not objective or was untruthful. DTR Indus.,
39 F.3d at 114.
Although the matter is not entirely free from doubt, we
conclude that we must agree with the Board’s determination
that Storer threatened facility closure in violation of section
8(a)(1). This threat was comprised of two predictions: (1)
that no entity would affiliate with St. Francis if the Union
won the election; and (2) that St. Francis could not operate
longer than 18 months if it failed to affiliate with a partner.
The parties do not dispute the content or objective basis for
the second prediction.
Rather, the dispute centers on the first prediction and,
specifically, what Storer said and his objective basis for such
statement. We defer to the Board’s finding that Storer
predicted that no partner would want to affiliate with St.
Francis if the facility elected the Union. We see no reason to
disturb this credibility determination, which the hearing
officer based upon the cumulative testimony of employee
witnesses and his observations of witness demeanor. St.
Francis has failed to articulate an objective basis for this
prediction. St. Francis insists that the most likely partner had
expressed “concerns” about possible unionization at St.
Francis. However, this evidence hardly supports the
prediction that no company would want to affiliate with St.
Francis if the employees elected a union. Viewing Storer’s

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statements from the perspective of employees, his
exaggeration of the objective evidence was material. Thus,
substantial evidence supports the Board’s finding that Storer’s
exaggerated prediction violated section 8(a)(1)’s prohibition
on coercing employees in the exercise of their organization
rights.
St. Francis argues, in the alternative, that Storer’s
statements occurred too far before the election to interfere
with employees’ free and fair choice. Timing is one of the
objective factors that the Board considers in determining
whether forbidden statements were reasonably likely to
interfere with employees’ free choice. See NLRB v. Dickinson
Press, Inc., 153 F.3d 282, 286 (6th Cir. 1998). However, it is
not dispositive. Thus, in Peabody Coal Co. v. NLRB, 725
F.2d 357 (6th Cir. 1984), we upheld the Board’s
determination that the employer engaged in misconduct
during a representation election by making unsupported
predictions of plant closure where those predictions occurred
three and four weeks before the election. In this case, the
threat occurred approximately two weeks before the election.
Given that threats of facility closure are among the most
flagrant variety of unfair labor practices, DTR Indus., 39 F.3d
at 113, and are likely to be difficult to dispel when viewed
from the employees’ perspective, we see no reason to disturb
the Board’s finding based on the timing of the threat.
C.
St. Francis’s Representations Concerning Bargaining
Posture
1.
During an August 6, 1996, open forum, an employee asked
what benefits would be available if the employees voted for
Union representation. According to Storer, he responded that
bargaining in contract negotiations involves a give and take,
that employees may keep something and may lose something,
and that “everything is negotiable.” He recalled using the
Nos. 98-6297/6401 NLRB v. St. Francis
Healthcare Centre
31
the election decisively. The closeness of the results of the
second election, standing alone, may be insufficient to support
a finding that the Biddle letter actually affected employees.
But we view this evidence in the context of the overall Union
election campaign. St. Francis established a material issue of
fact as to the impact of the Biddle letter because: (1) the
Union lost the first election by an even greater margin than
that by which it won the second election; (2) employees did
not see the Biddle letter during the first election campaign;
and (3) the Biddle letter touched on a significant and
contested issue in the campaign.
The Board insists that it was unnecessary to conduct the
foregoing analysis in this case because the employees were
capable of recognizing the Biddle letter as campaign
propaganda and accord it the proper weight. The Board cites
Contech, 164 F.3d 297, in support of its contention. The
Board’s approach is clearly at odds with Van Dorn and its
progeny. First, Contech is distinguishable from this case, as
the alleged misrepresentations in Contech appeared in Union
letters and there was no evidence of “pervasive
misrepresentation or artful deception.” Id. at 307. In contrast,
the Biddle letter was not readily identifiable as campaign
propaganda because it appeared to be a personal message
from a former co-worker, was handwritten in letter rather than
leaflet form, and used language such as “we” and “fellow co-
workers.” See Dayton Hudson, 987 F.2d at 365. Most
importantly, labeling material as “propaganda” does not
insulate the material from consideration under Van Dorn.
Such an approach would effectively eviscerate Van Dorn
because virtually any representation made in the context of a
union campaign could be characterized as propaganda. Thus,
even if employees are capable of recognizing literature as
campaign propaganda—based on its source or content—a
misrepresentation in the propaganda may be so artful or
deceptive that it overcomes the employees’ natural
skepticism, “resulting in employees believing that the
campaign propaganda must absolutely be true.” Hub Plastics,
52 F.3d at 613.

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30 NLRB v. St. Francis
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The third, and most important, factor favors St. Francis.
See Gormac, 190 F.3d at 748. First, it is undisputed that the
management raise issue was hotly contested in the days
leading up to the second election. The Union’s campaign
literature suggested that management’s greed was detrimental
to the employees’ work environment and to St. Francis’s
overall patient care mission. The management raise issue was
closely related to one of the central issues in both
campaigns—St. Francis’s long-term financial viability.
Second, the Biddle letter insinuates that St. Francis
intentionally lied to its employees by denying that it gave
raises and engaged in deceptive practices by backdating the
raises. Thus, the letter challenges St. Francis’s overall
credibility, even apart from the management raise issue. See
NLRB v. Hub Plastics, Inc., 52 F.3d 608, 612 (6th Cir. 1995).
Fourth, we find that St. Francis has established an issue of
material fact as to the source of the Biddle letter. There
appears to be no dispute, at least at this juncture, that Biddle
wrote and signed the letter. However, St. Francis offered
evidence that the Union was responsible for mailing the letter
to the employees. Contrary to the Board, we do not believe
that most employees would assume that the letter was Union-
sponsored propaganda simply because it addressed an issue
that the Union had raised in earlier campaign literature.
Likewise, although the Biddle letter states that the Union had
helped Biddle fight for “[her] rights,” the letter does not
suggest that the Union had any involvement in drafting,
sponsoring, or circulating her letter. Cf. Gormac, 190 F.3d at
749. No Union insignia appeared on the letter or the
envelope, the letter was handwritten, and only Biddle’s return
address appeared on the envelope.
The fifth factor also weighs in favor of St. Francis, albeit
somewhat less strongly than the third or fourth factors. The
second election was relatively close, with 68 employees
voting for the Union, 61 voting against the Union, and six
challenged votes. Even ignoring the challenged ballots, if the
Biddle letter affected the vote of four employees, it impacted
Nos. 98-6297/6401 NLRB v. St. Francis
Healthcare Centre
11
words “start[ing] from scratch” in describing the bargaining
process. Storer denied stating that employees would lose their
benefits before bargaining began, or that minimum wage with
no benefits was the starting point for bargaining.
The Union presented testimony from two employees who
attended the August 6 open forum. Employee Rose recalled
Storer stating that bargaining starts “from zero” and that if
employees wanted the level of benefits they currently enjoyed,
they would need to negotiate it and it was “not guaranteed
that [they would] get them.” According to employee Kimmet,
Storer stated that everything was up for negotiation, nothing
was guaranteed, and employees would start from zero and
“negotiate back up” or “work up to regain the benefits.”
On August 21, 1996, St. Francis distributed campaign
literature to its employees stating, in relevant part:
While bargaining goes on, wages, benefits and working
conditions typically remain as they have been until an
agreement has been reached.
. . . .
Collective bargaining is a gamble — with your wages,
benefits and working conditions on the table . . . .
Collective bargaining means that you could possibly end
up with more, the same, or less than you have now.
(Emphasis in original.)
In a September 4, 1996, memorandum to employees, Storer
noted that employees had inquired about the bargaining
process following the August 21 memorandum. The
September 4 memorandum, in question-and-answer format,
included the following description of bargaining:
QUESTION: The union said negotiations mean we
keep what we have and change what we
do not like. Is this true?

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12 NLRB v. St. Francis
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[ANSWER:] Negotiations are a process of give and
take. If you have a union, it would mean
you are willing to give them your wages,
benefits, and other things you have now.
The union will bring these things to the
Facility and negotiate. In the end you
could end up with more, the same, or
less than what you have now.
The union may say you will get more,
but there are no guarantees. Again,
negotiations involve a process of give
and take and YOU COULD LOSE.
St. Francis distributed a similar memorandum on September
24, 1996, stating that employees “must negotiate your wages,
benefits, and working conditions through the bargaining
process where you could gain, stay the same or lose.”
Another pro-management leaflet of uncertain origin warned
employees not to:
FORGET that everything will start at “0” when the
contract negotiations begin!! We could be GIVING UP
what we take for granted . . . ACCUMULATIVE PTO,
DRESS DOWN DAYS, ETC. . . . Things could get a lot
WORSE instead of better!
Based on this evidence, the hearing officer found that
Storer had stated that bargaining would start “from zero” and
employees would need to “bargain up” to regain the benefits
they already had. While some literature used more balanced
language, the pro-management leaflet from an unidentified
source used the “start at ‘0’” phrase. The officer held that
these oral and written statements constituted an unlawful
threat to reduce employee benefits and begin bargaining at
zero if the employees voted for Union representation. The
Board adopted these findings.
Nos. 98-6297/6401 NLRB v. St. Francis
Healthcare Centre
29
that employees did not actually receive the letter until two
days before the election, at most, and perhaps one day. We
explicitly disapproved of such conduct in an analogous case
where a letter overstating the company’s profits was mailed
to employees three days before an election. Dayton Hudson
Dep’t Store Co. v. NLRB, 79 F.3d 546, 551 (6th Cir. 1996).
The second factor is St. Francis’s opportunity to respond to
the alleged misrepresentations. We reject the Board’s
contention that St. Francis had an adequate opportunity to
address the management raise issue because St. Francis
circulated a letter to all employees one week before the
election. The Biddle letter appeared after St. Francis’s letter
and raised a serious question as to the veracity of St. Francis’s
earlier representations. Thus, our analysis focuses on St.
Francis’s opportunity to respond to the Biddle letter, in
particular, rather than its opportunity to address the general
management raise issue.
We first note that the nature of the alleged
misrepresentations, which directly challenged St. Francis’s
overall credibility, may well have undermined St. Francis’s
ability to develop an effective response. While St. Francis
could have undermined Biddle’s credibility by publicizing the
true reason for her discharge, it chose not to do so out of
concern for Biddle’s privacy. St. Francis presented to the
Regional Director an affidavit from its Human Resources
Director, Joan Schmidt, stating that she learned of the Biddle
letter one day before the election. In a separate letter to the
Regional Director, St. Francis explained that “Storer and
other managers were able to respond to some questions from
employees in the day or two preceding the election about the
statements made in Biddle’s letter . . . .” (Emphasis added.)
This evidence suggests that St. Francis may have had at least
some opportunity to address the Biddle letter before the
election. The direction in which this second factor points is,
therefore, unclear.

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deceptive manner in which it was made, a manner which
renders employees unable to evaluate the forgery for
what it is.
Id. at 133 (footnotes omitted), quoted in Dayton Hudson
Dep’t Store Co. v. NLRB, 987 F.2d 359, 364-65 (6th Cir.
1993). We carved out a narrow exception to Midland
National in Van Dorn, holding:
There may be cases where no forgery can be proved, but
where the misrepresentation is so pervasive and the
deception so artful that employees will be unable to
separate truth from untruth and where their right to a free
and fair choice will be affected. We agree with the
Board that it should not set aside an election on the basis
of the substance of representations alone, but only on the
deceptive manner in which representations are made.
736 F.2d at 348.
We apply this standard by assessing a number of factors,
including: (1) the timing of the misrepresentation; (2)
whether the employer had an opportunity to respond; (3) the
nature and extent of the misrepresentation; (4) whether the
source of the misrepresentation was identified; and (5)
whether there is evidence that employees were affected by the
misrepresentation. Gormac, 190 F.3d at 747 (citing
Mitchellace, Inc. v. NLRB, 90 F.3d 1150, 1155 (6th Cir.
1996)). The closeness of the election is an important
consideration in evaluating the fifth factor. See id. None of
the factors, standing alone, is dispositive.
We are satisfied that St. Francis presented evidence raising,
at a minimum, material factual disputes as to at least four of
these five factors. If proven, this evidence would justify
setting aside the second election. First, the timing of the
Biddle letter cuts in favor of St. Francis. St. Francis presented
evidence that the Biddle letter was mailed three days before
the election directly to the employees’ homes, rather than
being distributed at the workplace. It is reasonable to infer
Nos. 98-6297/6401 NLRB v. St. Francis
Healthcare Centre
13
2.
St. Francis contends that it properly advised employees
about the potential consequences of choosing Union
representation, asserting that there was no evidence to support
the Board’s conclusion that Storer threatened to reduce
benefits. The Board insists that this issue is one of witness
credibility, and that the employees’ testimony demonstrated
St. Francis’s intent to adopt a regressive bargaining posture.
It is not unlawful for an employer to adopt a hard
bargaining posture in labor negotiations. To the contrary,
hard bargaining is “countenanced by the NLRA as an
inevitable aspect of labor-management relations.” NLRB v.
Gibraltar Indus., Inc., 653 F.2d 1091, 1096 (6th Cir. 1981).
Thus, an employer may represent during an election campaign
that it will adopt a hard bargaining posture if a union is
elected. Such a prediction, taken alone, does not interfere
with the employees’ free and fair choice.
On the other hand, where an employer “convey[s] the
message that a consequence of the selection of the union
would be the discontinuance of existing benefits and a ‘start
from scratch,’” such a statement may have a coercive effect
that violates the NLRA. Surprenant Mfg. Co. v. NLRB, 341
F.2d 756, 761 (6th Cir. 1965). In assessing such a
representation, the Board must consider the timing of the
statement, the opportunity of the union to respond, and the
content of the union’s responses. Automation and
Measurement Div., Bendix Corp. v. NLRB, 400 F.2d 141, 146
(6th Cir. 1968).
The Board’s finding that St. Francis threatened to decrease
or eliminate existing benefits before bargaining began is not
supported by substantial evidence on the record as a whole.
First, Storer’s admitted statement that negotiations would start
“from zero” or “from scratch” was—taken alone—a
permissible prediction of a hard bargaining posture. The
hearing officer nevertheless couched his conclusion of an

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14 NLRB v. St. Francis
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unlawful threat in terms of “credibility,” explaining that he
found the testimony of Rose and Kimmet more believable
than Storer’s testimony. We see no reason to disturb this
credibility determination. However, the testimony of Rose
and Kimmet does not support a finding that Storer threatened
to reduce or eliminate benefits before bargaining began. We
recognize that our review of the Board’s inferences from the
factual evidence “‘is limited to the determination of
reasonableness—not rightness.’” NLRB v. Kentucky May
Coal Co., 89 F.3d 1235, 1242 (6th Cir. 1996) (quoting NLRB
v. Paschall Truck Lines, Inc., 469 F.2d 74, 76 (6th Cir.1972)).
We find, however, that the Board’s inference from the
employees’ testimony was unreasonable. Rose’s and
Kimmet’s testimony—that employees would need to
negotiate to achieve their current benefits once bargaining
began—merely explained the permissible bargaining “from
zero” statement in more concrete terms.
Even assuming arguendo that Storer did threaten during the
August 6 open forum that employee benefits would be
reduced or eliminated before negotiations began, the timing
of this statement and later events remedied any possible
coercive effect. The statement was made to a limited number
of employees who chose to attend the open forum almost two
months before the election, giving the Union ample
opportunity to respond. As it happened, no response was
necessary because St. Francis’s own campaign literature
distributed after August 6 obviated any threat to reduce or
eliminate benefits before bargaining began. That literature,
which was addressed to all employees, explicitly stated that
employees could expect to remain at their current levels of
pay and benefits during negotiations but could ultimately lose
or gain benefits as a result of the bargaining process.
Contrary to the hearing officer’s suggestion, the reference in
one piece of literature to bargaining “from zero” was entirely
permissible and was not coercive.
Our rejection of the Board’s finding that St. Francis
threatened to reduce or eliminate benefits does not require us
Nos. 98-6297/6401 NLRB v. St. Francis
Healthcare Centre
27
to conduct a review consistent with our decision in Van Dorn
and its progeny.
The Board argues that the Regional Director correctly held
that Van Dorn did not require an evidentiary hearing in this
case because the Biddle letter was not forged or deceptive. It
is the Board’s position that the employees could recognize the
Biddle letter as Union propaganda given the letter’s content
and the fact that the Union had previously publicized the pay
raise issue in its campaign.
We review a Board’s decision to uphold or set aside an
election in light of campaign misrepresentations for abuse of
discretion. Van Dorn, 736 F.2d at 347. The Board abuses its
discretion if it refuses to grant an evidentiary hearing when
material issues of fact exist as to whether a fair election was
held. However, we will remand a case for an evidentiary
hearing only where “an employer’s objections and supporting
proofs indicate that there exist material, factual disputes with
the Regional Director’s report which, if proved, demonstrate
that the election should be overturned.” Colquest Energy,
965 F.2d at 119; see also NLRB v. Gormac Custom Mfg., Inc.,
190 F.3d 742, 746 (6th Cir. 1999).
We adhere to the standards articulated under Midland
National Life Insurance Co., 263 N.L.R.B. 127 (1982), and
Van Dorn, 736 F.2d 343, in evaluating whether campaign
literature unlawfully interfered with the employees’ free
choice in a representation election. In Midland National, the
Board adopted the following rule:
[W]e will no longer probe into the truth or falsity of the
parties’ campaign statements, and . . . we will not set
elections aside on the basis of misleading campaign
statements. We will, however, intervene in cases where
a party has used forged documents which render the
voters unable to recognize propaganda for what it is.
Thus, we will set an election aside not because of the
substance of the representation, but because of the

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26 NLRB v. St. Francis
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In objecting to the results of the second election, St. Francis
argued to the Regional Director that the Biddle letter included
misrepresentations that interfered with the employees’ ability
to decipher the truth. St. Francis stated that it could offer
evidence that: (1) Biddle’s claim about the raises was untrue;
(2) that the Union owned the postage meter used to mail the
Biddle letter to employees; and (3) that Biddle had been
discharged for falsifying paid-time-off records. St. Francis
argued that Biddle’s misrepresentations were severely
damaging to the employer’s credibility on this key campaign
issue given Biddle’s former position as a St. Francis human
resources secretary, which gave her access to payroll
information and thereby bolstered her credibility. The
Regional Director, citing our decision in Van Dorn Plastic
Machinery Co. v. NLRB, 736 F.2d 343 (6th Cir. 1984),
rejected the employer’s argument without a hearing,
concluding that the letter was
typical campaign propaganda that surfaces almost
invariably in strongly contested union campaigns. I do
not believe the fact that Biddle had recently been
discharged from a position as a human resources
secretary made it impossible for employees to ascertain
the value of this particular piece of literature.
2.
St. Francis contends that the Biddle letter had a devastating
impact on the outcome of the second election because Biddle
did not acknowledge that she was writing with the Union’s
cooperation and because she falsely alleged that management
had received a raise within the past year. The Biddle letter
“compounded” her falsehood by discrediting any
documentary evidence that St. Francis might offer in
response, falsely alleging that check amounts were backdated
and the difference was given in a separate check. St. Francis
insists that the results of the second election should be set
aside and a new election ordered. In the alternative, St.
Francis argues that the issue should be remanded to the Board
Nos. 98-6297/6401 NLRB v. St. Francis
Healthcare Centre
15
to reverse the Board’s decision to set aside the first election,
however. That decision properly was based on the totality of
circumstances, rather than a single incident. See Contech,
164 F.3d at 306. Therefore, we consider all of those
circumstances in reviewing the Board’s decision.
D.
St. Francis’s Enforcement of its Uniform Policy
1.
St. Francis’s established guidelines for employee
appearance provided that “[o]ther than name tags and school
or service pins, absolutely no other badges or buttons shall be
affixed to any employee’s uniform or clothing.” Two
employees testified that their supervisors instructed them to
remove a Union button bearing a written message during the
campaign. Several employees testified that they were also
instructed to remove purple “smiley face” buttons that were
known to express Union support but contained no written
message. The Union presented evidence that employees
regularly wore other types of buttons, such as sports logos and
other symbols, which they were not asked to remove. Both
Storer and a St. Francis supervisor testified that St. Francis
changed its position shortly after employees started wearing
the “smiley face” pins to allow Union supporters to wear
these pins. St. Francis continued to prohibit the Union pin
bearing a written message.
The hearing officer credited the testimony of several
employees who stated that they were ordered to remove
Union pins from their uniforms and that other types of pins
were permitted in the facility. He also found that
management had made a conscious decision to permit
employees to wear the “smiley face” pin a few days after
those pins appeared. The hearing officer concluded that St.
Francis’s restriction on wearing Union insignia was unlawful
because St. Francis failed to demonstrate any special
circumstances to justify the restriction. He discounted St.

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16 NLRB v. St. Francis
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Francis’s decision to permit the smiley face pin as “nothing
more than an attempt by the Employer to impress employees
with the control it exercises over their right to support a
union.” The Board adopted these findings.
2.
St. Francis argues that it was justified in enforcing its
appearance guideline to prohibit employees with patient
contact from wearing Union pins on their uniforms. It
discounts the evidence that employees were permitted to wear
other kinds of pins on their uniforms, arguing that these pins
were smaller than the Union pins. Given its decision to
permit the purple “smiley face” pins shortly after they
appeared, St. Francis contends that its prohibition on pins had
a de minimis impact, at most. On the other hand, the Board
argues that St. Francis failed to demonstrate any special
circumstances to justify its prohibition on Union pins. We
find that substantial evidence supports the Board’s
conclusion. We note that this type of misconduct would
likely be insufficient, in and of itself, to justify setting aside
an election. However, we consider it as part of the totality of
circumstances surrounding the first election.
The NLRA protects employees’ “right to 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 or other mutual aid or protection.”
29 U.S.C. § 157. An employer who interferes with these
rights engages in an unfair labor practice. Id. § 158(a)(1).
Wearing union buttons and pins falls within the definition
of “other concerted activities” under section 157 and,
therefore, is protected under the NLRA. See Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 802-03 (1945).
“[W]earing union insignia furthers ‘the right [of employees]
to communicate effectively with one another regarding self-
organization at the jobsite.’” NLRB v. Autodie Int’l, Inc., 169
Nos. 98-6297/6401 NLRB v. St. Francis
Healthcare Centre
25
had received a raise since March 1996 and that Storer had not
received a raise since October 1995. Subsequently, a letter
purportedly authored by a former employee of St. Francis’s
human resources department, Shelly Biddle, was mailed to all
bargaining unit members at their homes. The letter was
postmarked March 17—just three days before the
election—and stated as follows:
. . . I was not an eligible voter but I had access to
administrative procedures and I know that administration
did not follow their own policies. Workers were unjustly
fired, written up, and threatened for managements [sic]
own selfish reasons. According to a letter from [St.
Francis], no raises were given to management. I can tell
you this is not true. Raises were given to certain
members of management. Not only did they receive a
raise, but the amount was back dated and the difference
was given in a separate check. Their inconsistencies not
only cost myself and fellow co-workers their jobs, but
created intimidation and fear for our co-workers.
Even the federal government has said that management
is not credible. If I could vote I would vote YES and I
hope and pray that all employees eligible to vote will do
the same. You now have a second chance to make
changes inside St. Francis. Vote yes . . . to start the
process of change.
I’m in full support of all St. Francis employees that are
scared, but it’s time we all stand up and stick together.
If we join together and fight we can win! I am currently
fighting for my rights as well as yours and if not for the
union I could not do it.
I am keeping you in my prayers.
St. Francis presented evidence that it learned of this letter one
day before the election.

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24 NLRB v. St. Francis
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F. Conclusion
In sum, we conclude that substantial evidence supports the
Board’s determination that St. Francis interfered with the
employees’ free choice during the first election campaign by
threatening to close the facility if the Union were elected,
prohibiting employees from wearing certain Union support
pins, and enforcing its no-solicitation policy in a
discriminatory manner. Therefore, we will not disturb the
Board’s decision to set aside the first election.
III. The Second Election
A.
The second election was held on March 20 and 21, 1997,
more than five months after the first election. Sixty-eight
employees voted in favor of the Union, 61 opposed, and there
were six challenged ballots. On March 28, 1997, St. Francis
filed objections to the second election, and the Regional
Director overruled the objections without a hearing. The
Regional Director certified the Union as the collective
bargaining representative of the designated bargaining unit on
April 24, 1997. St. Francis requested NLRB review of the
certification, but the NLRB denied the request on June 16,
1997. On appeal, St. Francis raises only one objection to the
certification of the second election results.
B.
The Board’s Failure to Hold a Van Dorn Hearing on the
Biddle Letter
1.
Shortly before the second election, Union literature accused
management of awarding the CEO, Storer, a 14% raise, while
other employees had received no raises. On March 13,
1997—one week before the second election—St. Francis
responded with a letter to employees representing that no one
Nos. 98-6297/6401 NLRB v. St. Francis
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17
F.3d 378, 383 (6th Cir. 1999) (quoting Beth Israel Hosp. v.
NLRB, 437 U.S. 483, 491 (1978)). However, this right is not
absolute. Id. An employer may restrict employees from
wearing union insignia if it can demonstrate special
circumstances that require the restriction to maintain
production and discipline. Republic Aviation, 324 U.S. at
803-04; Meijer, Inc. v. NLRB, 130 F.3d 1209, 1214 (6th Cir.
1997).
We have struggled in this circuit in applying Republic
Aviation to employer policies that generally prohibit
employees from wearing buttons or pins on their uniforms.
Our approach to this issue is somewhat in flux. While it is
unnecessary to definitively resolve this issue given the facts
in this case, a summary of the relevant authority is warranted.
In 1984, a divided panel adopted a per se rule, holding that
“where an employer enforces a policy that its employees may
only wear authorized uniforms in a consistent and
nondiscriminatory fashion and where those employees have
contact with the public, a ‘special circumstance’ exists as a
matter of law which justifies the banning of union buttons.”
Burger King Corp. v. NLRB, 725 F.2d 1053, 1055 (6th Cir.
1984), disagreement recognized by Meijer, 130 F.3d 1209.
We applied Burger King in United Parcel Service, 41 F.3d
1068, where we reviewed the Board’s finding that UPS
unlawfully disciplined a UPS driver for wearing a union lapel
pin on his uniform. UPS maintained uniform and personal
appearance standards that required drivers to wear “[o]nly
designated uniform items approved by UPS.” Id. at 1069.
The relevant collective bargaining agreement (CBA)
authorized UPS to establish “reasonable standards concerning
personal grooming and appearance and the wearing of
uniforms and accessories.” Id. We first noted that the rule in
Burger King was applicable because the UPS uniformed
drivers had substantial contact with the public. Id. at 1073.
Proceeding with the Burger King analysis, we concluded that
UPS did not enforce its uniform policy in a discriminatory

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18 NLRB v. St. Francis
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manner. We noted that UPS had issued “Desert Storm” pins,
safe driving pins, United Way pins, and Mack Truck pins, but
held that such conduct did not evidence discriminatory
enforcement because the CBA did not restrict UPS’s right to
issue standards for uniforms. Id. Thus, we held that the
employer did not violate the NLRA. See also NLRB v. Mead
Corp., 73 F.3d 74, 79 (6th Cir. 1996) (citing United Parcel
Serv., 41 F.3d 1068).
More recently, another divided panel declined to apply the
Burger King per se rule. In Meijer, 130 F.3d 1209, the Board
sought to prohibit Meijer from disciplining employees who
wore union pins. Id. at 1210. The company permitted its
uniformed employees to wear only those pins approved by the
company, including buttons promoting certain products or
services, customer relation program buttons, or buttons
designating union affiliation. Id. at 1210-11. A new store
manager at one location prohibited employees from wearing
any pins other than name badges, company approved buttons,
United Way pins, or service recognition pins during a union
organizing campaign. Id. at 1211. The manager enforced his
policy and disciplined employees who wore “Union Yes” pins
during the election campaign. Id.
Meijer argued that the discipline was appropriate under
Burger King. Id. at 1214. The Meijer majority expressed
skepticism of the per se rule in Burger King. The majority
observed that the Burger King panel did not attempt to
reconcile its holding with the Republic Aviation requirement
that employers demonstrate special circumstances to justify
restricting employees’ presumptive right to wear union
insignia. Id. at 1215. The Meijer court distinguished United
Parcel Service, reasoning that the court based its holding in
that case on UPS’s right under the CBA to promulgate
appearance standards. Id. The Meijer majority ultimately
rejected Burger King’s per se rule in favor of the following:
[The right to wear union insignia] can be curtailed if an
employer makes an affirmative showing that a special
Nos. 98-6297/6401 NLRB v. St. Francis
Healthcare Centre
23
It appears that St. Francis’s written policy prohibits
distribution of literature at any time in areas beyond
immediate patient areas, such as the dining room and other
“work area[s].” More importantly, based on Storer’s
testimony, St. Francis adopted a policy during the Union
campaign that was broader than its written policy, prohibiting
the posting of literature anywhere in the facility. St. Francis
has offered no evidence that these broad prohibitions were
necessary to protect patient care or the hospital’s operations,
as required under Beth Israel Hospital/Baptist Hospital.
Nevertheless, the hearing officer assumed that St. Francis’s
no-solicitation policy was valid, and the Board has not argued
to the contrary.
Rather, the Board contends that St. Francis applied a valid
no-solicitation policy in a discriminatory manner. An
employer that adopts a valid no-solicitation policy may
violate the NLRA by discriminating against union solicitation
in enforcing the policy. See Meijer, 130 F.3d at 1212-14;
NLRB v. St. Vincent’s Hosp., 729 F.2d 730, 735 (11th Cir.
1984); Reno Hilton Resorts, 320 N.L.R.B. 197, 208 (1995).
Here, there was ample evidence in the record to support the
Board’s conclusion that anti-Union literature was posted
throughout the facility in violation of Storer’s prohibition. St.
Francis’s argument that the posting of anti-Union literature
complied with the terms of its written no-solicitation policy
is misplaced. The posting clearly violated Storer’s expansion
of that policy during the Union campaign. Moreover, that
Storer directed managers to remove anti-Union literature once
he learned of its existence is insufficient to undermine the
evidence that such literature was pervasive and at least one
manager was seen walking by the literature without removing
it. In short, substantial evidence supports the Board’s
determination that St. Francis tolerated the posting of anti-
Union literature in violation of its stated no-solicitation policy
and thereby unlawfully discriminated in enforcing its policy.

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22 NLRB v. St. Francis
Healthcare Centre
Nos. 98-6297/6401
know who was responsible for the postings and did
everything in its power to remove the anti-Union literature.
The Board argues that there was no noticeable effort to
remove the literature, that St. Francis tolerated other types of
solicitation, and that any effort that St. Francis may have
made to remove the literature was ineffective.
“Employer rules prohibiting organizational solicitation are
not in and of themselves violative of the [NLRA] . . . .”
NLRB v. United Steelworkers of Am., CIO, 357 U.S. 357, 361
(1958). As a general matter, an employer may adopt a rule
prohibiting employee solicitation during working hours. An
employer may also prohibit employee solicitation on company
property after working hours if the employer demonstrates
that the rule is necessary to maintain production and
discipline; absent such a showing, the solicitation rule is
invalid even if it is enforced neutrally against all solicitors.
See Republic Aviation, 324 U.S. at 803 & n.10, 805.
Patient care concerns partially trump this general rule in the
nonprofit hospital setting. A hospital may ban all solicitation
and distribution in immediate patient care areas such as
patient rooms, operating rooms, and other locations where
patients receive treatment. Beth Israel Hosp., 437 U.S. at
495. However, to restrict employee solicitation in non-work
areas or distribution of union literature during non-work times
in non-work areas such as lounges and cafeterias, the hospital
must demonstrate that such solicitation would disrupt patient
care or health care operations. Id. at 495, 507; NLRB v.
Harper-Grace Hosps., Inc., 737 F.2d 576, 578 (6th Cir.
1984). Thus, if a hospital’s no-solicitation policy applies to
areas beyond immediate patient care areas, the hospital bears
the burden of presenting affirmative evidence to justify the
policy in such areas. NLRB v. Baptist Hosp., Inc., 442 U.S.
773, 784-86 (1979). “If the record is somehow incomplete on
this point, it is the hospital’s fault for not producing sufficient
evidence.” Harper-Grace Hosps., 737 F.2d at 579.
Nos. 98-6297/6401 NLRB v. St. Francis
Healthcare Centre
19
circumstance exists which requires restrictions of this
right in order to maintain production, reduce employee
dissension or distractions from work, or maintain
employee safety and discipline. This right may also be
curtailed if the employer makes an affirmative showing
that the union insignia that the employee seeks to wear
will negatively impact a certain public image that the
employer seeks to project.
Id. at 1217. The court enforced the Board’s order because
Meijer failed to satisfy this burden. Id.
However, we recently suggested an arguably more relaxed
standard than that articulated in Meijer. In Autodie, 169 F.3d
378, the NLRB sought to prohibit the employer from
requiring employees to remove union steward pins. The
employer had not implemented a general dress code or
uniform requirement and permitted employees to wear
informal clothing bearing product and business
advertisements and logos from other companies. Id. at 384.
Citing the employer’s burden to demonstrate “special
circumstances” to justify its restriction, we noted that this
burden “is particularly difficult to meet when the employer
cannot show that its restrictions . . . comport with an
announced policy of general applicability.” Id. In enforcing
the Board’s order, we noted that the employer failed to
demonstrate “either ‘special circumstances’ requiring the
restriction to maintain production and discipline or an
announced policy of general applicability justifying its
restrictions of protected . . . activity.” Id. Thus, we suggested
that a general uniform policy may justify independently a
restriction on union pins. We did not address the possible
inconsistency between this approach and the Meijer approach.
Nevertheless, it is unnecessary for us to resolve any
possible discrepancy between Meijer and Autodie because
neither approach supports St. Francis’s position. There is no
dispute that St. Francis consistently prohibited Union pins
bearing a written message, as distinguished from the “smiley

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20 NLRB v. St. Francis
Healthcare Centre
Nos. 98-6297/6401
face” pins that it decided to allow. St. Francis has not
articulated, much less demonstrated, any special circumstance
to justify this restriction under Meijer. There is no evidence
that the restriction was necessary to maintain production,
reduce employee dissension, or maintain employee safety or
discipline. Likewise, despite the existence of a uniform
policy, St. Francis has not made an affirmative showing that
the Union pins would harm St. Francis’s public image.
Finally, St. Francis is unable to satisfy even the more relaxed
Autodie standard because it did not consistently enforce its
uniform policy. To the contrary, substantial evidence
supports the Board’s finding that St. Francis regularly
tolerated non-Union pins and buttons on employee uniforms
although those pins violated St. Francis’s uniform policy.
Unlike the employer in United Parcel Service, St. Francis had
not reserved its discretion to authorize certain pins on
employee uniforms.
While substantial evidence supports the Board’s decision
that St. Francis engaged in misconduct by prohibiting certain
Union pins, this finding alone would be insufficient to set
aside the first election. Again, however, we consider this
misconduct as part of the totality of circumstances
surrounding the first election.
E.
St. Francis’s Enforcement of its No-Solicitation Policy
1.
St. Francis had a no-solicitation policy prohibiting
employees from:
sell[ing] or distribut[ing] material of any kind, including,
but not limited to: leaflets, advertising material, tickets,
subscriptions, and cards, to any other employee when
either employee is on work time. Nor shall any
employee sell or distribute material of any kind at any
time in any work area of the facility.
Nos. 98-6297/6401 NLRB v. St. Francis
Healthcare Centre
21
The policy also prohibited all solicitation, distribution, and
sales in “patient care areas,” defined as:
patient/resident rooms, physical therapy, occupational
therapy, therapeutic recreation and other treatment
rooms, and hallways and corridors adjacent to any of
those rooms; sitting or waiting rooms and lounges on
patients/residents floors that are accessible to and used by
patients/residents; the dining room and elevators.
Storer testified that St. Francis prohibited the posting of any
pro-Union or anti-Union literature “throughout the building”
during the campaign. He also testified that after he learned
about the anti-Union postings from his secretary, he instructed
managers and directors to remove such materials if they saw
them. Nevertheless, several employees testified that they
regularly observed anti-Union fliers and posters throughout
the facility. One employee testified that she saw the
personnel manager walk past several pieces of anti-Union
literature without removing them. The Union also presented
evidence that St. Francis tolerated solicitations for other
products and causes, such as Avon products, school benefits,
and raffle ticket sales for outside organizations.
The hearing officer found that although St. Francis’s no-
solicitation policy was otherwise valid, St. Francis enforced
the policy in a discriminatory manner by regularly permitting
other types of solicitation in the facility and tolerating the
posting of anti-Union literature.
2.
St. Francis maintains that it enforced its neutral no-
solicitation policy consistently in prohibiting the posting of
both Union and anti-Union literature at its facility. St. Francis
also contends that because the anti-Union literature
introduced during the hearing was not posted in patient care
areas, and there was no evidence that the literature was posted
during “work time,” the postings did not violate the no-
solicitation policy. In any event, St. Francis insists it did not

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