                                            Filed:   January 21, 1999

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                            Nos. 97-2719(L)
                       (9-CA-33304, 9-CA-33478)



Americare Pine Lodge Nursing and Rehabilita-
tion Center,

                                                          Petitioner,

           versus


National Labor Relations Board,
                                                          Respondent.



                              O R D E R



    The court amends its opinion filed January 7, 1999, as
follows:

    On page 13, footnote 3, line 5 -- the wording is corrected to
read "to take any action it deemed appropriate ...."

    On page 18, first full paragraph, line 13 -- the word "Futher"

is corrected to read "Further."
    On page 18, footnote 7, lines 7 and 8 -- the wording is

corrected to read "the 24¢ or the 50¢ increase."


                                       For the Court - By Direction


                                          /s/ Patricia S. Connor
                                                   Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AMERICARE PINE LODGE NURSING AND
REHABILITATION CENTER,
Petitioner,
                                                                         No. 97-2719
v.

NATIONAL LABOR RELATIONS BOARD,
Respondent.

NATIONAL LABOR RELATIONS BOARD,
Petitioner,

v.
                                                                         No. 98-1120
AMERICARE PINE LODGE NURSING AND
REHABILITATION CENTER,
Respondent.

On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board.
(9-CA-33304, 9-CA-33478)

Argued: September 23, 1998

Decided: January 7, 1999

Before MURNAGHAN and WILLIAMS, Circuit Judges, and
BULLOCK, Chief United States District Judge from the
Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Petition for review granted in part and denied in part, and cross-
application for enforcement granted in part and denied in part by pub-
lished opinion. Judge Williams wrote the opinion, in which Chief
Judge Bullock joined. Judge Murnaghan wrote a separate opinion
concurring in part and dissenting in part.

_________________________________________________________________

COUNSEL

ARGUED: Thomas Patrick Dowd, LITTLER, MENDELSON, P.C.,
Baltimore, Maryland, for Center. Julie Brock Broido, Senior Attor-
ney, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Board. ON BRIEF: Frederick L. Feinstein, General Coun-
sel, Linda Sher, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, Peter Winkler, Supervisory Attor-
ney, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Board.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

Americare Pine Lodge Nursing and Rehabilitation Center (Pine
Lodge) petitions for review, and the National Labor Relations Board
(the Board) cross-petitions for enforcement, of the Board's order
determining that Pine Lodge violated § 8(a)(1) and (a)(5) of the
National Labor Relations Act (NLRA or the Act) by engaging in
direct dealing with its employees, unlawfully withdrawing recognition
from the employees' union as the exclusive bargaining representative,
and unilaterally imposing wage increases. See 29 U.S.C.A.
§ 158(a)(1) & (a)(5) (West 1998). For the reasons stated herein, we
grant Pine Lodge's petition for review in part and deny it in part; and
we grant the Board's cross-petition for enforcement in part and deny
it in part.

I.

This case arises from events surrounding Pine Lodge's July 1995
attempt to secure an extended labor agreement approximately five

                    2
months before the expiration of the agreement then in effect.1 The
employees were represented by The Healthcare and Social Union,
SEIU, AFL-CIO (the Union) and successfully had negotiated a labor
agreement covering the period from December 9, 1993, to December
7, 1995 (the 1993 agreement). That agreement did not have a reop-
ener clause, but did allow for written amendments with the consent
of both parties.

Because Pine Lodge was planning to open a new subacute care unit
in December 1995, it wished to avoid labor negotiations during that
period. It therefore forwarded a letter to the Union on July 5, 1995,
offering to extend the 1993 agreement for one year. In return for the
extension, Pine Lodge offered a $.25 or $.50 per hour wage increase,
dependent upon job classification, to the represented employees. The
offer was set to expire by its own terms on July 17, 1995. Pine Lodge
faxed the July 5, 1995, offer letter to the Union. Soon afterwards, that
same offer letter was posted near the Pine Lodge employee time clock
so that the employees could read it.

The Union representative charged with responsibility for Pine
Lodge's bargaining unit, Jennifer Jordan, was away on vacation when
the offer was received at the Union offices. Upon her return on July
11, she received the offer letter and several messages from Pine
Lodge employees concerning the outstanding offer. She visited with
employees about the offer on July 14, three days before it was set to
expire. Based on her discussions, Ms. Jordan decided that the employ-
ees did not favor the offer and instead preferred to negotiate other
matters such as grievance procedures and fringe benefits at a date
closer to the expiration of the 1993 agreement. A few employees also
asked Jordan about anniversary wage increases, a provision that was
included in the 1993 agreement. The Union chose not to make a
counter-proposal and simply allowed the offer to expire.

While the offer was outstanding, however, two conversations con-
cerning the proposal occurred between Pine Lodge supervisors and
_________________________________________________________________

1 Pine Lodge disputes several of the Board's specific findings and we
address those contentions in Part III. The facts as set forth in Part I are
taken largely from the administrative law judge's (ALJ) decision as
adopted by the Board.

                     3
employees. The first occurred between Dietary Manager Dreama
Thomas and four employees. Thomas held a meeting at which Brenda
Elliott, one of her employees, raised a question concerning the status
of anniversary wage increases under the new proposal. Because
Thomas was not familiar with the details of the proposal, she
requested Office Manager Jackie Clark to join the meeting and
respond to the question. Clark also was unable to explain how the
anniversary wage increases were to be treated under the new pro-
posal. After a short discussion, the meeting ended without any resolu-
tion.

Dreama Thomas also was involved in a second conversation
regarding the proposal, this time with an employee named Dorothy
Smith. During a smoking break in Smith's car, Thomas asked Smith
her opinion of Pine Lodge's proposal. Smith responded that it
sounded good, but that it was made simply to get rid of the Union.
Thomas made no response and their discussion of the proposal ended.

Despite the expiration of the July 5 proposal, Pine Lodge submitted
another proposal to the Union on July 28, 1995. This proposal mir-
rored the first, but specifically noted that anniversary wage increases
would be maintained in addition to the newly offered hourly raises.
The July 28 offer letter also stated:

          If you really care about the hard working employees at
          Americare-Pine Lodge, then you will give them an opportu-
          nity to have a secret ballot vote on whether or not to accept
          this large and very generous wage increase. I honestly
          believe this proposal is much more than we will be offering
          if we have to bargain in December 1995.

(J.A. at 304.) Pine Lodge also copied the July 28 offer letter to its
employees.

Along with the July 28 letter, Sherry Johnson, the Administrator at
Pine Lodge, authored and distributed a memorandum to the Pine
Lodge employees. The memorandum read as follows:

          I have had many employees come to me asking if the
          wage increase that was offered earlier could be extended or

                     4
          reoffered since the union did not respond to the previous
          offer.

           I am pleased to announce that the company has agreed to
          reoffer this proposal. Also, please note for the employees
          who were concerned about not getting an anniversary
          increase, that this is being offered also.

           I feel that this is an extremely fair offer for each of you.
          I urge you to giving [sic] this proposal serious thought.

           I will be holding meetings next week to discuss this more
          indepth [sic] for those who have questions.

           Please note in the attached correspondence that the union
          must respond to Steve Ronilo, our human resource vice
          president by 6:00 p.m. on Friday, August 4, 1995, if you
          want this wage increase.

           Thank you for your time and attention to this proposal.

(J.A. at 306.)

On July 31, after receiving the second offer letter, Jennifer Jordan
again met with Pine Lodge employees and distributed a flyer notify-
ing them that the Union intended to hold a membership meeting on
August 4, at which it would take a vote on the second offer. Between
July 31 and August 4, the Union and Pine Lodge actively campaigned
for their positions. Both sides distributed flyers encouraging the
employees to vote for or against the proposal.2 Sherry Johnson and
_________________________________________________________________

2 A typical Pine Lodge flyer read as follows:

          There are no guarantees in life or in negotiations .. .
          ...

          Except the raise Pine Lodge is offering now! ! !

          25 cents and 50 cents per hour increase!

          You deserve a raise, so why not give yourself one effective July
          1, 1995

                     5
another supervisor, Nancy Cooper, also approached a few employees
individually and discussed the offer with them personally, once the
Union announced the decision to hold a vote. Finally, during that
same period, members of Pine Lodge management held a meeting for
nursing assistants and encouraged them to vote in favor of the pro-
posal.

At the August 4 Union meeting, the employees soundly rejected
the offer, but only 28 of the 73 bargaining unit employees voted. On
August 7, Sherry Johnson issued a memorandum announcing that the
wage increase would not be implemented.

Between August 25 and September 7, employees submitted signed
copies of a petition to Pine Lodge's management expressing their
desire to remove the Union as their exclusive bargaining representa-
tive. A majority, thirty-nine of the bargaining unit's seventy-three
employees, signed the petition. Based on the petition, Steve Ronilo,
the Vice President of Human Resources for Pine Lodge's parent com-
pany, sent a letter to the Union dated September 8 stating that Pine
Lodge was in possession of objective evidence that the Union no lon-
ger represented a majority of employees, and that Pine Lodge was,
therefore, withdrawing recognition from the Union upon the expira-
_________________________________________________________________

(J.A. at 312.)

A typical Union flyer read as follows:

          Boss offers bargaining unit .25 & .50 instead of
          negotiations

          A boss that fights the Union every step of the way now wants to
          offer us wages instead of negotiations

          What's Up!!

          Come and Find Out

          Full membership meeting & vote on proposal
          Friday August 4th
          10:30am, 1:00pm, 3:30pm
          Honey in the Rock Motel

(J.A. at 307.)

                    6
tion of the 1993 agreement. True to its word, Pine Lodge withdrew
recognition from the Union on December 7, 1995, and unilaterally
implemented the previously offered wage increase the following day.

Based on charges lodged by the Union, the Board issued a com-
plaint against Pine Lodge accusing it of engaging in unfair labor prac-
tices. Specifically, the complaint charged that Pine Lodge
circumvented the Union and dealt directly with the employees,
improperly withdrew recognition from the Union, and unilaterally
increased wages without engaging in mandatory bargaining. After a
hearing was conducted, an administrative law judge (ALJ) concluded
that Pine Lodge engaged in unfair labor practices in violation of
§ 8(a)(1) and (a)(5) of the NLRA. The ALJ specifically found that
Pine Lodge impermissibly dealt directly with employees. Conse-
quently, the ALJ determined that the employee's decertification peti-
tion was tainted and that Pine Lodge inappropriately relied upon it to
withdraw recognition from the Union and unilaterally to grant wage
increases to the employees.

The Board agreed with the ALJ's conclusions and, with only slight
modification, adopted the ALJ's order on November 8, 1997. The
order required Pine Lodge to: inform employees of the Board-
determined violations; recognize and bargain with the Union; cease
any direct bargaining with employees; discontinue interfering with the
exercise of rights under § 7 of the Act; post a notice informing
employees of their rights and pledging not to interfere with those
rights; and submit an explanation to the Board of how Pine Lodge
was to implement the order.

Pine Lodge petitioned this Court for review of the Board's decision
and order. The Board cross-petitioned for enforcement of its Novem-
ber 8, 1997, order. Because we conclude that the Board correctly
determined that Pine Lodge engaged in a single episode of direct
dealing, but the Board erred in holding that Pine Lodge committed
other unfair labor practices in violation of § 8(a)(1) and (a)(5) of the
Act, we grant Pine Lodge's petition for review in part and deny it in
part, and we grant the Board's cross-petition for enforcement in part
and deny it in part.

                     7
II.

In reviewing the Board's decision, the applicable standard of
review varies according to the aspect of the decision specifically at
issue. The Board maintains some discretion in its interpretation of the
NLRA and courts grant deference to that interpretation. See Holly
Farms Corp. v. NLRB, 116 S. Ct. 1396, 1406 (1996); Pirelli Cable
Corp. v. NLRB, 141 F.3d 503, 514 (4th Cir. 1998). A court will not
defer to the Board's interpretation of the NLRA, however, unless "its
reading is a reasonable one." Holly Farms, 116 S. Ct. at 1406 ("For
the Board to prevail, it need not show that its construction is the best
way to read the statute; rather, courts must respect the Board's judg-
ment so long as its reading is a reasonable one."). In cases involving
the Board's exercise of discretion, we review for an abuse of discre-
tion. See Westvaco v. NLRB, 795 F.2d 1171, 1173 (4th Cir. 1986). We
consider a departure from established policy, absent a reasonable
explanation, to be an abuse of discretion. See id.

In mixed questions of law and fact, or of pure fact, courts will con-
sider the Board's findings to be conclusive if the factual findings are
supported by substantial evidence based upon the record as a whole.
See Universal Camera Corp. v. NLRB, 340 U.S. 474, 491 (1951); 29
U.S.C.A. § 160(e) (West 1998) ("The findings of the Board with
respect to questions of fact if supported by substantial evidence on the
record considered as a whole shall be conclusive."); Pirelli, 141 F.3d
at 514. Substantial evidence is defined as evidence that is sufficient
to support the conclusion of a reasonable person. See Consolo v. Fed-
eral Maritime Comm'n, 383 U.S. 607, 619-20 (1966); Pirelli, 141
F.3d at 514.

In this case there are two overriding questions: First, did Pine
Lodge's management engage in unfair labor practices, and second,
did any unfair labor practices sufficiently taint the decertification peti-
tion as to make it unreliable? Only if the petition was tainted, was the
later withdrawal of Union recognition and the unilateral grant of wage
increases improper.

III.

Whether Pine Lodge engaged in unfair labor practices during the
course of its attempt to extend the contract is the first and most impor-

                     8
tant question we must answer because it is potentially dispositive of
the remaining issues. Although several factual scenarios allegedly
support the Board's conclusion that Pine Lodge engaged in unfair
labor practices, the foundation for all of the charges is the premise
that Pine Lodge engaged in a pattern of direct dealing with its
employees, thus circumventing the Union. To determine whether the
Board's holdings were accurate, we must first explore the law regard-
ing direct dealing, giving due deference to the Board's interpretation.

Direct dealing is a term used to describe practices that constitute
violations of § 8(a)(1) and (a)(5) of the Act. See 29 U.S.C.A.
§ 158(a)(1) & (a)(5) (West 1998). Section 8(a)(5) makes it an unfair
labor practice for an employer "to refuse to bargain collectively with
the representatives of his employees." 29 U.S.C.A. §§ 158(a)(5),
159(a) (West 1998). Section 8(a)(1) makes it illegal"to interfere with,
restrain, or coerce employees" in the exercise of their right to orga-
nize and bargain collectively. 29 U.S.C.A. §§ 157, 158(a)(1) (West
1998). These provisions require an employer to bargain exclusively
with the union representative and prohibit an employer from unduly
interfering in union organizing and collective bargaining.

The Board and the courts unanimously have recognized that an
employer violates § 8(a)(1) and (a)(5) if it engages in direct dealing
with employees and thereby interferes in the collective bargaining
process and in the union's role as the exclusive bargaining representa-
tive. See, e.g., Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 683-
84 (1944); NLRB v. Pratt & Whitney Air Craft Div., 789 F.2d 121,
134-35 (2d Cir. 1986); United Techs. Corp. 274 N.L.R.B. 609, 609
(1985), enforced sub nom. NLRB v. Pratt & Whitney Air Craft Div.,
789 F.2d 121 (2d Cir. 1986). Improper direct dealing is characterized
by actions that persuade employees to believe that they can achieve
their objectives directly through the employer and thus erode the
union's position as the exclusive bargaining representative. See Pratt
& Whitney, 789 F.2d at 134. Another way to frame the question of
direct dealing is "whether the employer has chosen `to deal with the
Union through the employees, rather than with the employees through
the Union.'" Id. (quoting NLRB v. General Elec. Co., 418 F.2d 736,
759 (2d Cir. 1969)).

Counterbalancing the prohibition against direct dealing is an
employer's strong interest in preserving its right to free speech. Con-

                    9
gress expressly recognized an employer's First Amendment right by
enacting 29 U.S.C.A. § 158(c), which states:

          The expressing of any views, argument, or opinion, or the
          dissemination thereof, whether in written, printed, graphic,
          or visual form, shall not constitute or be evidence of an
          unfair labor practice under any of the provisions of this sub-
          chapter, if such expression contains no threat of reprisal or
          force or promise of benefit.

29 U.S.C.A. § 158(c) (West 1998). An employer is, therefore, free to
communicate its views "so long as the communications do not contain
a threat of reprisal or force or promise of benefit." NLRB v. Gissel
Packing Co., 395 U.S. 575, 618 (1969). As the Board has recognized,
"permitting the fullest freedom of expression by each party" nurtures
a healthy and stable bargaining process. United Techs., 274 N.L.R.B.
at 610.

Drawing the line between an employer's freedom to speak and
direct dealing produces a relatively straightforward standard of per-
missible conduct. An employer may speak freely to its employees
about a wide range of issues including the status of negotiations, out-
standing offers, its position, the reasons for its position, and objec-
tively supportable, reasonable beliefs concerning future events. See,
e.g., Gissel Packing, 395 U.S. at 618; Pirelli, 141 F.3d at 516; Facet
Enters. v. NLRB, 907 F.2d 963, 969 (10th Cir. 1990); Pratt &
Whitney, 789 F.2d at 134. But, under § 8(c) the employer cannot act
in a coercive manner by making separate promises of benefits or
threatening employees. Thus the employer may freely communicate
with employees in noncoercive terms, as long as those communica-
tions do not contain some sort of express or implied quid pro quo
offer that is not before the union. See, e.g., Selkirk Metalbestos v.
NLRB, 116 F.3d 782, 788 (5th Cir. 1997) (noting that the promise of
benefit need be only reasonably inferable from the conduct); NLRB
v. Garry Mfg. Co., 630 F.2d 934, 943 (3d Cir. 1980) ("It is firmly
established that an employer violates section 8(a)(1) by his solicita-
tion of grievances, if accompanied by an express or implied promise
to remedy the grievance . . . ."). This standard recognizes the right of
represented employees to negotiate exclusively through the union,
while protecting the right of employers to tell their side of the story.

                    10
With these general standards in mind, we turn to the events that the
Board characterized as direct dealing.

A.

On July 5 and July 28, 1995, Pine Lodge sent letters offering a con-
tract extension in return for wage increases to the Union's business
offices and copied the letters to Pine Lodge employees. These letters
specifically offered hourly wage increases to all bargaining unit
employees in return for a one-year extension of the Union contract.
The July 28 letter also strongly encouraged the Union to hold a secret-
ballot vote on the proposal. In his decision, affirmed by the Board, the
ALJ recognized that an employer may communicate the reasoning
supporting its bargaining position but concluded that posting the offer
letters constituted unlawful direct dealing because the Union had no
meaningful opportunity to consider the proposal. Whether the Union
must have such an opportunity is a question of law, and, accordingly,
if the Board's interpretation of the NLRA is reasonable, then it is enti-
tled to deference. See Holly Farms, 116 S. Ct. at 1406.

Based on a review of the NLRA and previous Board and judicial
interpretations of its provisions, we find no support for a rule requir-
ing employers to delay informing its employees of a proposal until the
union has had some period of time to consider it. Communications to
employees that inform them of the employer's bargaining position
constitute no violation. See Facet Enters., 907 F.2d at 968-69;
General Elec. Co., 418 F.2d at 756; United Techs., 274 N.L.R.B. at
609-10; Adolph Coors Co., 235 N.L.R.B. 271, 277 (1978). In United
Technologies, the Board found no violation when an employer passed
out leaflets to employees explaining its final offers to the union made
on that same day and also telling employees that they could consider
the offers only if the union presented them. See United Techs., 274
N.L.R.B. at 609-10. In KEZI, Inc., the Board found no violation even
when an employer made public a benefit proposal directly affecting
nonunion employees before it presented the proposal to the union,
which was bargaining for inclusion in the benefit plan. See KEZI,
Inc., 300 N.L.R.B. 594, 600-01 (1990). These cases offer strong sup-
port for the proposition that employers may freely inform employees
of bargaining proposals, and certainly may do so if the proposals are
already before the union.

                    11
The Board presents only one case to support its restrictive position.
In Detroit Edison Co., the Board concluded that the employer
engaged in direct dealing because it presented the employees with the
substance of a proposal before it presented the proposal to the union,
and over union objections. Detroit Edison Co., 310 N.L.R.B. 564,
564-65 (1993). Rather than an example of an occasion when an
employer submitted a proposal to the union and immediately distrib-
uted it to employees, the Board in that case specifically found that the
proposal was distributed to the employees before fully presenting it
to the union. See id. We thus find no support in this decision or the
Act itself for the Board's contention that the union must have a mean-
ingful opportunity to consider a proposal before an employer dissemi-
nates information to employees. This is not a reasonable interpretation
of the Act. Furthermore, it is well settled that this Court will not
accept the Board's departure from its standing interpretation of the
Act without a reasonable explanation. See Westvaco, 795 F.2d at
1178; J.P. Stevens & Co. v. NLRB, 623 F.2d 322, 329 (4th Cir. 1980).

To impose this requirement upon employers would run counter to
the language of § 8(c), and is not required to protect the interests of
union members in organizing or bargaining collectively. Employers
must be free to communicate their positions. See 29 U.S.C.A.
§ 158(c) (1998). Further, the publication of the exact offer that is
properly before the union for consideration in no way erodes a
union's position as the bargaining representative. There is no hint of
a separate quid pro quo arrangement between the employer and
employees in such circumstances and there is no danger of coercion.
Instead, such notification tends to support the free exchange of infor-
mation that aids employees in making informed decisions and pro-
motes a stable bargaining environment. See Pratt & Whitney, 789
F.2d at 134; United Techs., 274 N.L.R.B. at 610. Not only did the
Board change its interpretation of the Act in midstream, its holding
is unreasonable because it is contrary to the language of the Act itself.

Because we find that the Board misinterpreted the mandate of
§ 8(a)(1) and (a)(5) and failed to give effect to § 8(c), we determine
that Pine Lodge did not commit an unfair labor practice. Pine Lodge
posted the letters only after it transmitted the letters to the Union and
in exactly the same form. Moreover, Pine Lodge clearly addressed the

                     12
letters to the Union and requested a response from the Union.3 There
was no reference in the letters that could be construed as an invitation
for direct bargaining. In summary, the letters were free of coercion,
thus complying with § 8(c), and communicated only proposals that
were properly before the Union, thus complying with § 8(a)(1) and
(a)(5). Accordingly, we find no unfair labor practice under the Act.

B.

The Board also found that direct dealing took place during the
course of the two conversations that Supervisor Dreama Thomas had
with certain Pine Lodge employees. Characterizing these conversa-
tions as attempts to solicit employee input about the outstanding wage
proposal, the Board concluded that the discussions were an effort to
understand and directly respond to employee concerns, and thus to
engage in the quid pro quo that characterizes direct dealing and
undermines the Union's position as the exclusive bargainer.

Engaging in a course of implied bargaining would constitute direct
dealing, and thus, an unfair labor practice. Therefore, if Pine Lodge
sought feedback from employees in order to craft a stronger proposal
to enhance the likelihood of obtaining a contract extension, rather
than directing its inquiries to the Union, then its conduct would run
afoul of the NLRA. The question we face is whether Pine Lodge
merely communicated what was already before the Union in a proper
exercise of its free speech rights or instead sought to strike a deal out-
side of the auspices of collective bargaining.

The Board's conclusion that Pine Lodge engaged in direct dealing
involved mixed findings of law and fact, and therefore must be upheld
if it is supported by substantial evidence viewing the record as a
whole. See Pirelli, 141 F.3d at 514. Based on our review of the
record, the Board's conclusion is not adequately supported.
_________________________________________________________________

3 We note that the Union representative was on vacation and evidently
there was no substitute representative available when the July 5 offer let-
ter was transmitted to the Union offices. That, however, has no bearing
on Pine Lodge's obligations. It communicated the offer in good faith,
and the Union was free to take any action it deemed appropriate
upon receiving the correspondence.

                     13
1.

In the first instance of alleged direct dealing, Dreama Thomas held
a meeting in her office with four of her employees, and eventually
another management employee, Jackie Clark. The origins of the meet-
ing are disputed. It is not disputed, however, that an employee, and
not management, raised the question about the status of anniversary
wage increases under the July 5 proposal.

An employer who simply answers an employee's question about an
outstanding proposal cannot be considered to be involved in negotia-
tions for purposes of the Act. If so, then an employer would be
required to stand by mute -- not a practically desirable result and cer-
tainly not in keeping with § 8(c). See 29 U.S.C.A. § 158(c) (West
1998). The key, therefore, to whether this conversation was an allow-
able exercise of Pine Lodge's right to inform its employees of the
terms of the outstanding proposal or an attempt by Pine Lodge to
negotiate directly with employees, is Pine Lodge's conduct during the
conversation and the substance of the discussion. Specifically, we
must determine whether Pine Lodge embarked on a course of quid
pro quo dealing, instead of merely clarifying the proposal already
before the Union.

Pine Lodge did not initiate the discussion of the issue. The evi-
dence is uncontroverted that an employee, Brenda Elliott, first asked
Ms. Thomas about the anniversary wages. Both Dreama Thomas and
Deborah Burgess testified to that effect.4 It is also evident, as found
by the ALJ, that Thomas invited other employees, at least to hear the
answer to Elliott's question, and requested Jackie Clark to join the
discussion because Thomas believed that Clark was better able to
explain the status of the anniversary increases.

The ALJ also found that Thomas solicited Elliott's question in an
attempt to frame a better bargaining proposal. That finding, however,
is clearly contrary to any testimony on the record. According to
Thomas's testimony, Elliott asked about anniversary wage increases
_________________________________________________________________

4 The ALJ's opinion does not address whether Thomas asked others
into her office following Elliott's question or whether Thomas simply
decided to hold an impromptu meeting.

                    14
prior to the meeting, and Thomas called the meeting so the employees
could hear the answer. Furthermore, Deborah Burgess, the witness
whose account the ALJ credited, did not testify about anything that
occurred prior to the meeting. Thus, we are left with the uncontra-
dicted testimony of Thomas. Viewing the record as a whole, we must
conclude that the ALJ's factual finding is incorrect. Elliott first raised
the question to Thomas.

After Elliott asked her question about anniversary wage increases,
Thomas called employees into her office.5 Elliott repeated her ques-
tion. No other employee inquired about the proposal. Clark then
joined the group and gave an inconclusive answer, which ended the
conversation. Significantly, neither Thomas nor Clark asked employ-
ees about their general interests in wages or benefits or even their
concerns. It was simply an attempt to clarify the proposal that was
already before the Union. There was no indication from these epi-
sodes that Pine Lodge was attempting to formulate a new proposal,
and there is no evidence that a management employee implied that
any concerns raised would be addressed by Pine Lodge. Clark was
unable even to answer Elliott's question, although under § 8(c), it
would have been perfectly appropriate to do so.

Based on the record as a whole, the Board's decision is not sup-
ported by substantial evidence. The conversation about the anniver-
sary wage increases, initiated by an employee, was devoid of any
evidence of bargaining, express or implied. Thus, we hold that it was
not direct dealing and did not constitute an unfair labor practice under
the Act.
_________________________________________________________________

5 The dissent makes much of the fact that Thomas called the meeting
at which Elliott repeated her question. As we explain, however, the
proper inquiry does not focus on the fact that a meeting was called, but
the substance of the discussion at the meeting and the conduct of the
supervisory employees during the meeting.

Furthermore, the dissent asserts that "perhaps . . . the only reasonable"
characterization of the meeting is that it was an attempt by Pine Lodge
to elicit feedback about the proposal. Post at 27. If so, the supervisory
personnel roundly failed in their endeavor because they neither asked the
assembled employees about their general concerns or about wages or
benefits, nor learned anything more about employee views of the pro-
posal.

                     15
2.

In the second conversation, which the ALJ characterized as
improper direct dealing, Dreama Thomas had a brief conversation
with employee Dorothy Smith while on a smoking break in Smith's
car. Thomas asked Smith what she thought of the proposal. Dorothy
Smith responded that the proposal sounded good, but that it was made
only to get rid of the Union. That was the entirety of the conversation.

In the context of campaigns for the votes of union members, courts
have held that friend-to-friend conversations outside of the workplace
do not rise to the level of direct dealing. See Weather Shield Mfg., Inc.
v. NLRB, 890 F.2d 52, 59-60 (7th Cir. 1989); Dow Chem. Co. v.
NLRB, 660 F.2d 637, 649-50 (5th Cir. 1981). Although this statement
was not made in the context of a campaign, this type of casual conver-
sation still does not constitute evidence of direct dealing in the collec-
tive bargaining context.

Here again, there was no evidence of an attempt to enter into any
quid pro quo negotiation with employees outside of the proposal on
the table before the Union. Thomas asked a single question and did
not pursue the matter any further. She did not question Smith about
how the offer could be improved. Nor did Thomas communicate,
either expressly or impliedly, that through dealing with Thomas or
Pine Lodge, the employees could achieve the same or better results
than they could achieve through the Union. No reasonable person
could conclude that this brief exchange eroded the Union's position
as the exclusive bargaining representative. We fail to see how a single
question, posed in a nonwork setting, concerning what was undoubt-
edly the issue of the day, constituted evidence of direct dealing.
Accordingly, there is insufficient evidence to support the Board's
finding of an unfair labor practice under the Act.

C.

The Board and the ALJ also determined that the written communi-
cations from Pine Lodge to its employees on July 28 constituted
direct dealing. According to the Board's ultimate conclusions, these
communications both evidenced give and take between the employees
and Pine Lodge and encouraged employees to abandon the Union.

                     16
Further, the Board concluded that Sherry Johnson's statement that
Pine Lodge was making the offer in response to employee questions
and her exhortation to give the offer serious consideration were
improper direct dealings. We agree with the Board's conclusion that
the memorandum from Johnson could be construed as direct dealing
but for somewhat different reasons. We do not agree, however, that
the language of the July 28 offer letter from Steve Ronilo, which was
copied to the employees, was improper.

1.

The ALJ concluded that the July 28 offer letter, which stated that
the proposal was "much more than we will be offering if we have to
bargain in December 1995," constituted direct dealing because it
invited abandonment of the union, presumably in favor of direct
negotiation. This conclusion is unsupportable. Ronilo's statement was
neither a promise of benefit nor threat of detriment and was thus pro-
tected under § 8(c). The offer was placed before the Union, and the
Union had the right to accept or reject the proposal.6 If rejected, the
status quo simply would continue until the contract expiration. The
language of the letter would certainly encourage the Union to con-
sider the offer seriously, but we fail to see how it would encourage
employees to abandon the Union in favor of direct negotiations. We
find no substantial evidence of a violation in this statement.

Because the July 28 offer letter included language specifically
addressing the anniversary wage increase, the ALJ also found evi-
dence of give and take. We also take issue with this finding. Because
the offer merely extended the 1993 agreement, which already
_________________________________________________________________

6 Unlike the dissent's characterization of our inquiry generally, and par-
ticularly in this Part and in Part III.D., we do not simply determine
whether Pine Lodge made threats or quid pro quo promises. Instead, we
first review the questioned communications for direct dealing, or quid
pro quo negotiations, between the employer and employees. Second, our
analysis recognizes that if the speech is not coercive, i.e., there is no
threat of force or promise of benefit, then it is subject to the protections
of § 8(c). Our analysis acknowledges both requirements and gives full
effect to both the direct dealing doctrine of § 8(a) and the free speech
protections of § 8(c).

                     17
included anniversary increases, it stretches logic too far to conclude
that the specific mention of those increases in the July 28 offer letter
represents evidence of give and take.7 Both proposals only contem-
plated extending the term of the agreement for one year and increas-
ing hourly pay rates. The mention of the anniversary pay increases in
the July 28 offer letter simply clarified any misunderstanding, which
Pine Lodge knew was a possibility due to the questions raised by
employees regarding the July 5 offer.

2.

The ALJ also determined that Sherry Johnson's July 28 memoran-
dum evinced direct bargaining. Unlike the other communications,
Johnson's July 28 memorandum strayed beyond the protections of
§ 8(c) because it did more than explain the offer. Instead, it implied
that the Union's unresponsiveness could be cured by direct negotia-
tions. Johnson stated, "many employees [have] come to me asking if
the wage increase that was offered earlier could be extended or reof-
fered since the union did not respond to the previous offer." (J.A. at
306.) She continued, "I am pleased to announce that the company has
agreed to reoffer the proposal." (J.A. at 306.) Johnson also clarified
that the anniversary wage increases were being offered. The memo-
randum implied that quid pro quo dealing would work and thus
tended to erode the Union's position as the bargaining agent. Further,
the memorandum undermined the Union's authority as the bargaining
representative because it attempted to encourage employees to come
directly to Pine Lodge if they were unhappy with the Union.

It is worth noting that the Johnson's July 28 memorandum did state
that any response to the proposal would have to be made by the
Union, which tended to mitigate the offending language. Thus,
_________________________________________________________________

7 The dissent simply misinterprets the July 28 offer letter. In its analy-
sis, the dissent implies that July 28 offer letter proposed something more
than the anniversary wage increases provided in the contract then in
effect. The language of the offer letter, however, is clear: "All employees
who would normally receive anniversary date increases between August
1, 1995 and December 31, 1995 will receive their tenure step increases
on their respective anniversary dates, in addition to either the 25¢ increase
or the 50¢ increase . . . ." (J.A. at 305 (emphasis added).)

                     18
whether Johnson's July 28 memorandum did in fact invite direct deal-
ing is a close question. Despite our concern, we must defer to the
Board because we find that substantial evidence supported its conclu-
sion that this conduct violated § 8(a)(1) and (a)(5). See 29 U.S.C.A.
§ 158(a)(1) & (a)(5).

D.

Finally, the ALJ concluded that Pine Lodge engaged in several
instances of direct dealing during the period between July 31, the date
that the Union announced the vote, through August 4, the date of the
vote. The ALJ specifically addressed two sets of events. The first
involved a series of questions and brief conversations between indi-
vidual supervisors and employees about the employee's attitude
towards the offer.8 The second was a round of flyers distributed to all
employees encouraging them to vote for Pine Lodge's proposal.
Whether these acts were indeed impermissible involves mixed ques-
tions of law and fact, and therefore, the Board's conclusion must be
supported by substantial evidence. See Pirelli, 141 F.3d at 514.

During a campaign for union organization, union decertification, or
contract ratification, the object of the vote is already established and
thus the opportunity for direct dealing is diminished -- the question
is no longer what will be offered, but whether the offer will be
accepted. Once a vote is announced, any union negotiations are, by
definition, at least temporarily concluded. An employer must always
ensure that its communications are free of coercion, but concern about
quid pro quo dealmaking, which would circumvent the union, natu-
rally decreases. Cf. Vons Grocery Co., 320 N.L.R.B. 53, 56 (1995)
(explaining that polling employees after a vote has been announced
does not indicate an improper investigation of support for bargaining
proposals, but instead merely a preview of the vote). Therefore, an
_________________________________________________________________

8 We note that the ALJ stated that the solicitation of employee input
generally continued between July 28 and August 4, but in his factual
findings he noted that the conversations between Johnson or Cooper and
individual employees occurred only between July 31 and August 4. We
must conclude from these references that the specific conversations at
issue occurred only during the more limited period of July 31 to August
4.

                    19
employer may question employees about their attitudes towards the
offer, see Dow Chem., 660 F.2d at 650-52, may hold meetings to
explain bargaining proposals, see United Techs., 274 N.L.R.B. at 610,
and may generally express support for its position, even if those com-
ments include criticisms of the union's position, see Pratt & Whitney,
789 F.2d at 135 (holding that an employer statement that the union
was "thoughtless and irresponsible" and that it was on "a collision
course" was neither coercive nor implied that employees should aban-
don the union). Any forecasts of consequences for rejecting the
employer's position are permissible as long as the forecasts are
backed with objective evidence and do not imply retaliation within
the employer's control. See Gissel Packing, 395 U.S. at 618; Crown
Cork & Seal Co. v. NLRB, 36 F.3d 1130, 1138 (D.C. Cir. 1994);
Garry Mfg., 630 F.2d at 938-39; Monroe v. NLRB, 460 F.2d 121, 125
(4th Cir. 1972). Employers and unions must be allowed equal footing.
Unions cannot be "free to use the rhetoric of Mark Antony while
employers are limited to that of a Federal Reserve Board chairman."
Crown Cork, 36 F.3d at 1140; see Monroe, 460 F.2d at 125 ("In the
context of a hard-fought election campaign, we find little evidence
that [an employer's statements that improved benefits would be possi-
ble absent a union] exceed the permissible bounds of campaign rheto-
ric or that it could be construed by employees as threatening the loss
of economic benefits."). Viewed in accordance with these standards,
we have little trouble determining that Pine Lodge conducted itself in
a lawful manner during the campaign period.

First, the questions and brief discussions that Pine Lodge supervi-
sors, Sherry Johnson and Nancy Cooper, alternately engaged in with
four employees, Dorothy Smith, Alice Boggs, Cindy Aust, and San-
dra Glass, did not constitute direct dealings. In each of these conver-
sations, Johnson or Cooper asked the employees about their opinion
of the wage offer and whether they would vote for it. Without offer-
ing any reasoning, the ALJ concluded that these conversations were
attempts to determine whether Pine Lodge's handbills persuading
members to vote for the offer were effective. But as we have stated,
because the proposal was already on the table, employee input would
not aid in formulating Pine Lodge's bargaining strategy. Furthermore,
whether the statements were or were not aimed at gauging the effec-
tiveness of the employer's campaign is immaterial. Employers may
engage in one-on-one conversations during an election campaign as

                    20
long as those conversations are not coercive. See Dow Chem., 660
F.2d at 650-52. These conversations may include questions or general
statements of opinion. See id. Only in cases where the employees
feared reprisals have courts determined solicitations of opinion to be
improper. See id. at 650 (holding "casual and moderate inquiries, even
as to union preference, absent evidence indicating that the employee
has reason to consider the inquiries a threat of reprisals, as not consti-
tuting an unfair labor practice" (citing NLRB v. McGahey, 233 F.2d
406 (5th Cir. 1956))).

The ALJ found no coercion in the inquiries, and our review of the
record reveals none. We, therefore, find no substantial evidence to
support the charge that Pine Lodge committed an unfair labor practice
under the Act when its supervisors discussed the upcoming vote with
individual employees.

Second, we find no unfair labor practice in the flyers that Pine
Lodge distributed. The ALJ concluded that three flyers tended to
encourage direct dealing with the Union because they pressured
employees into direct negotiations by predicting a less favorable out-
come through the Union. In particular, one of the flyers stated that
Union negotiations might not produce favorable results for the
employees while voting for the July 28 offer would produce a "gener-
ous raise that is truly deserved."9 The Board also found that the flyers
_________________________________________________________________

9 The full text of the flyer reads:

          What's Up?

          Americare Pine Lodge wants to increase your wages 25 to 50

          The Union does not want you to accept this generous offer

          What's Up? ??? ??

          Through Union negotiations your [sic] may or maynot [sic]
          receive a generous wage increase. The outcome is not known.

          Through Americare Pine Lodge you will receive a generous raise
          that is truly deserved. This is known!

          The Union wants to take you out on a statewide strike this
          Christmas.

          Americare Pine Lodge wants to reward its hardworking employ-
          ees

                     21
were improper because they "sought to disparage the Union and to
drive a wedge between the Union and the unit employees" by assert-
ing that the Union was planning a big strike. (J.A. at 2.)

At the time the flyer was distributed, there was no ongoing bargain-
ing and both sides were actively seeking support for their respective
positions. This situation is precisely the type in which concerns about
direct dealing are greatly diminished. Pine Lodge's prediction of
uncertainty if Union negotiations were undertaken in December is
nothing more than encouragement to vote in its favor. The flyer did
not fall outside of the protections of § 8(c) because Pine Lodge made
no express or implied threat. See, e.g., TRW-United v. NLRB, 637
F.2d 410, 420-21 (5th Cir. 1981) (noting that threats consist of state-
ments implying that existing benefits are in jeopardy). There was no
promise of benefit, other than, of course, the wage increases that the
Union already had agreed to put to a vote. The flyers simply pre-
sented no substantial evidence of direct dealing or coercion.

Nor, as the Board concluded, did the flyers improperly drive a
wedge between the Union and employees through predictions of a
strike and thus encourage direct dealing. First, any union member
realizes that a strike is always a possibility during labor negotiations.
Second, the Union literature frequently touted strikes and civil disobe-
dience as a legitimate tool to obtain bargaining objectives. Third, the
Union President, Teresa Ball, admitted under examination that the
Union was attempting to coordinate contract expiration dates at a
number of different facilities in the same region to obtain more bar-
gaining power. Because Pine Lodge had an objective basis upon
which it could reasonably base predictions of a strike, its criticisms
of the Union's motivations were examples of permissible propaganda
and thus protected under § 8(c). See Be-Lo Stores v. NLRB, 126 F.3d
268, 285-86 (4th Cir. 1997); Garry Mfg., 630 F.2d at 938-39 (holding
that predictions of strikes are not threats and are permissible if they
_________________________________________________________________

          It's your choice ! ! ! ! ! ! !

          That's what's up ! ! ! ! ! ! ! ! ! ! ! ! ! ! !

(J.A. at 316.) This flyer was in response to an earlier Union flyer which
is reproduced at footnote 2.

                      22
are based on objective facts and are outside the employer's control).
We find no substantial evidence for the Board's conclusion that these
statements violated the NLRA.

In sum, of all the alleged instances of direct dealings, we find sup-
port in the record for only one unfair labor practice under the Act: the
distribution of the July 28 memorandum from Sherry Johnson to the
employees. We therefore reverse the Board's findings of unfair labor
practices except as to this single instance, and affirm that finding.

IV.

Our conclusion that the vast majority of the Board's findings of
direct dealings lack sufficient support, calls into question the Board's
decision that the employees' decertification petition was tainted.

During the term of a collective bargaining agreement, an employer
must bargain with its employees' collective bargaining representative.
See 29 U.S.C.A. § 158(a)(5) (West 1998); Auciello Iron Works v.
NLRB, 116 S. Ct. 1754, 1758 (1996); Pirelli, 141 F.3d at 520. Even
after a collective bargaining agreement expires, a union maintains a
rebuttable presumption of majority status. See Auciello Iron Works,
116 S. Ct. at 1758; Pirelli, 141 F.3d at 520. "To rebut the presump-
tion, an employer must show `either (1) the union did not in fact enjoy
majority support, or (2) the employer had a "good-faith" doubt,
founded on a sufficient objective basis, of the union's majority sup-
port.'" Pirelli, 141 F.3d at 520 (quoting NLRB v. Curtin Matheson
Scientific, Inc., 494 U.S. 775, 778 (1990)). "`A petition signed by at
least half of the bargaining unit's members in which they indicate that
they do not wish to be represented by the union ordinarily constitutes
sufficient objective evidence to rebut the union's presumed majority
status.'" Pirelli, 141 F.3d at 520 (quoting NLRB v. D & D Enters.,
125 F.3d 200, 209 (4th Cir. 1997)).

But, if the Board can "show that the employees are disgruntled with
union representation because the employer has committed unfair labor
practices that have negatively impacted the union's efficacy, the peti-
tion may be considered tainted," and the petition cannot be relied
upon to rebut the presumption of majority support. Pirelli, 141 F.3d
at 520.

                     23
The Board has developed a four-factor test to determine whether
a decertification petition is tainted by unfair labor practices, which
this Court has adopted. See, e.g., Pirelli, 141 F.3d at 520-21 (setting
forth the test). Those factors are:

          "(1) the length of time between the unfair labor practice and
          the decertification petition; (2) the nature of the employer's
          illegal acts; (3) any possible tendency to cause employee
          disaffection from the union; and (4) the effect of the unlaw-
          ful conduct on employee morale, organizational activities,
          and membership in the union."

Pirelli, 141 F.3d at 520-21 (quoting D&D Enters., 125 F.3d at 209).
These factors simply represent an attempt to determine whether the
unfair labor practices caused the decertification effort.

Applying these factors to the facts at hand, we determine that the
July 28 Johnson memorandum was sufficiently isolated so that it
would not taint the decertification petition. The petition was submit-
ted approximately one month after the unfair labor practice occurred.
However, the memorandum was but one communication in a sea of
words between the Union, Pine Lodge, and the employees. Perhaps
a communication that directly invited negotiations between the
employer and employee could sufficiently impact the employees as to
taint a decertification petition, but the somewhat vague implication
contained in the July 28 Johnson memorandum does not rise to that
level. In fact, it recognized that the "union must respond" to Pine
Lodge's offer, thus affirming the authority of the Union. Although the
language of the July 28 Johnson memorandum may cross the direct
dealing line, there is little concern that it alone would breed disaffec-
tion with the Union. Finally, the memorandum is devoid of any
threats or other language that would adversely impact employee
morale or prompt employees to flee the Union. Viewed under these
standards, we find that the memorandum's relationship to the decerti-
fication petition is too tenuous to support a finding that the petition
was tainted.

Pine Lodge offers a litany of independent reasons for the employ-
ees' apparent dissatisfaction with the Union. In light of our finding
that there was an insufficient causal link between the single episode

                     24
of direct dealing and the decertification petition, we need not explore
possibilities of intervening causes.

Because we conclude that the Board erred in determining that the
decertification petition was insufficient to support a good-faith doubt
that the Union represented a majority of employees, we reverse the
Board's finding. Accordingly, we also find that the Board erred when
it determined that Pine Lodge violated § 8(a)(1) and (a)(5) when it
unilaterally implemented the proposed wage increases at the expira-
tion of the 1993 agreement.

V.

Based on the above findings, we grant Pine Lodge's petition for
review in part, and deny it in part, and we grant the Board's cross-
petition for enforcement in part and deny it in part.

          PETITION FOR REVIEW GRANTED IN PART
          AND DENIED IN PART; CROSS-APPLICATION
          FOR ENFORCEMENT GRANTED IN PART AND
          DENIED IN PART

MURNAGHAN, Circuit Judge, concurring in part and dissenting in
part:

Although I concur in sections III(A), III(B)(2), and III(C)(2) of the
majority's opinion, I find that there is substantial evidence to support
the findings of the Administrative Law Judge (ALJ) and the National
Labor Relations Board (NLRB or Board) that Americare Pine Lodge
Nursing and Rehabilitation Center (Americare) directly dealt with its
employees. I therefore respectfully dissent from the remainder of the
majority's opinion.

I. Direct Dealing

Since most of the Board's findings at issue are either pure ques-
tions of fact or mixed questions of law and fact, we must respect the
Board's findings as conclusive if supported by substantial evidence
based upon the record as a whole. Universal Camera Corp. v.

                     25
N.L.R.B., 340 U.S. 474, 491 (1951); 29 U.S.C.A.§ 160(e) (West
1998); Pirelli Cable Corp. v. N.L.R.B., 141 F.3d 503, 514 (4th Cir.
1998). Substantial evidence "`must be enough to justify, if the trial
were to a jury, a refusal to direct a verdict when the conclusion sought
to be drawn from it is one of fact for the jury.'" Universal Camera
Corp., 340 U.S. at 477 (quoting N.L.R.B. v. Columbian Enameling &
Stamping Co., 306 U.S. 292, 300 (1939)). A court should direct a ver-
dict only if the evidence is such that "a reasonable [person] could
come to but one conclusion." Westfarm Assocs. Ltd. Partnership v.
Washington Suburban Sanitary Commission, 66 F.3d 669, 683 (4th
Cir. 1995); 9A Charles A. Wright, et al., Federal Practice & Proce-
dure: Civil § 2524, at 262 (2d. ed. 1995).

I disagree with the Court's ready dismissal of the Board's interpre-
tation of many of the mixed questions of fact and law. I certainly do
not find that the majority's counter-interpretations are the only con-
clusions a reasonable person could draw from the evidence.

The majority erred on several accounts. First, the majority erred at
times by substituting its own reasonable interpretation of the facts for
the Board's. In particular, in section III(B)(1) the majority erred by
disregarding the Board's reasonable interpretation of the July 12
meeting. The majority asserts that it is not disputed that an employee,
not management, raised the question about the status of anniversary
wage increases at the July 12 meeting.1 The Board, however, adopted
the ALJ's finding that supervisor Thomas first asked the employees
how they viewed the July 5 proposal. This was based on the direct
examination of employee Burgess, during which she testified that the
subject of the July 5 proposal first came up at the July 12 meeting
when Thomas "asked us." While the record evidence on the sequence
of events is not crystal clear, this testimony provides substantial evi-
dence to support the Board's conclusion that Thomas solicited
employee questions about, and was the first to raise, the July 5 pro-
posal at the July 12 meeting.
_________________________________________________________________

1 The majority glossed over an important fact. As the Board pointed
out, even if Elliott asked Thomas about the July 5 proposal prior to the
July 12 meeting, the evidence is undisputed that Thomas unilaterally cal-
led the other employees together to discuss the proposal. Elliott had not
requested such a meeting.

                    26
In fact, one could question the reasonableness of the majority's
take on the facts. The majority asserts that employee Elliott first asked
supervisor Thomas whether anniversary wage increases were
included in the July 5 proposal while the two were alone. In response,
Thomas called a meeting of several employees so that Elliott could
repeat her question. Thomas did not know the answer to the question
so she called her supervisor, Jackie Clark, to the meeting to see if
Clark could answer it. Here is the problem with the majority's
approach: What possibly could have motivated Thomas to call the
other employees into a meeting so that Elliott could repeat a question,
when Thomas, by her own admission, did not know the answer to
Elliott's question in the first place? It is certainly a permissible infer-
ence (perhaps it is the only reasonable inference) that Thomas was
trying to elicit feedback about the July 5 proposal from the other
employees -- to see if they shared Elliott's concerns or had other sug-
gestions about the proposal.2

Second, the majority obfuscated the correct legal standard. The
issue in this case is whether Americare engaged in direct dealing in
violation of §§ 8(a)(1) and (5) of the National Labor Relations Act,
29 U.S.C.A. § 158(a)(1) & a(5) (West 1998). The majority focused
heavily on section 8(c) of the NLRA, which immunizes the expres-
sion of any views, arguments or opinions if such expression "contains
no threat of reprisal or force or promise of benefit." 29 U.S.C.A.
§ 158(c) (West 1998). In a vigilant effort to secure § 8(c)'s protec-
tions, the majority evaluated each communication at issue, in particu-
lar the written communications on July 28 (section III(C) of the
opinion) and the personal contacts from July 31 through August 4
_________________________________________________________________

2 The majority argues that, if it was Americare's goal to elicit feedback,
they "roundly failed," ante at 15 n.5, because they neither asked about
the proposal nor learned anything more about employee views. First, the
majority incorrectly clings to its interpretation of the facts. As noted
above, substantial evidence supports the ALJ's determination that
Americare did ask the employees what they thought of the proposal at
the July 12 meeting. Second, I hope that the majority does not mean to
advocate a rule that direct dealing may only be found when an employer
is successful or particularly adept in its efforts directly to deal with
employees. The NLRA outlaws direct dealing whether it is undertaken
by a bumbling or a skillful employer.

                     27
(section III(D) of the opinion), to see whether or not Americare had
made threats or quid pro quo promises in these communications.
Finding none, the majority held that no direct dealing took place.

Direct dealing may exist, however, even if no threat or promise is
made by the employer. Direct dealing occurs, inter alia, when an
employer attempts to bypass the Union in negotiations over the terms
and conditions of employment. See Medo Photo Supply Corp. v.
N.L.R.B., 321 U.S. 678, 683-684 (1944); N.L.R.B. v. Pratt & Whitney
Air Craft Div., 789 F.2d 121, 134 (2nd Cir. 1986). The question turns
on whether the employer's actions -- direct solicitation of employee
sentiment, perceived give-and-take over working conditions, or dis-
paragement of the union -- are likely to erode or undermine the
union's position as exclusive bargaining agent of the employees. See
Alexander Linn Hosp. Ass'n, 288 NLRB 103, 106 (1988), enforced
sub nom. N.L.R.B. v. Wallkill Valley General Hosp. , 866 F.2d 632
(3rd Cir. 1989). In short, a court should examine "whether the
employer has chosen `to deal with the Union through the employees,
rather than with the employees through the Union.'" Pratt & Whitney
Air Craft Div., 789 F.2d at 134 (quoting N.L.R.B. v. General Elec.
Co., 418 F.2d 736, 759 (2nd Cir. 1969)). Accord Facet Enters., Inc.
v. N.L.R.B., 907 F.2d 963, 968 (10th Cir. 1990).

There are a series of cases (which I will call the "Survey cases")
which illustrate the point very clearly, and which are relevant to the
case sub judice. The Survey cases establish that an employer's effort
to poll or survey employees about their opinions on issues subject to
bargaining with the union constitutes unlawful direct dealing. Such
direct solicitation of employee sentiment "plainly erodes the position
of the designated representative." Allied Signal, Inc., 307 N.L.R.B.
752, 754 (1992). It is the union's exclusive province to gather
employee views, and the strength of those views, on matters subject
to collective bargaining. See id.; Obie Pacific, Inc., 196 N.L.R.B. 458
(1972); Wallkill Valley General Hosp., 866 F.2d at 636; Harris-Teeter
Supermarkets, Inc., 293 N.L.R.B. 743, 744-45 (1989), enforced, 905
F.2d 1530 (4th Cir. 1990) (unpublished opinion). But see Vons Gro-
cery Co., 320 N.L.R.B. 53 (1995) (permissible to ask employees how
they will vote in upcoming post-bargaining election).3
_________________________________________________________________

3 Citing to Vons, the majority argues that direct dealing concerns were
at a minimum because once a vote has been scheduled, no further bar-

                    28
The majority's heavy reliance on cases, such as Dow Chemical Co.
v. N.L.R.B., 660 F.2d 637 (5th Cir. 1981), N.L.R.B. v. Garry Manufac-
turing Co., 630 F.2d 934 (3rd Cir. 1980), and Crown Cork & Seal Co.
v. N.L.R.B., 36 F.3d 1130 (D.C. Cir. 1994), involving union certifica-
tion and decertification elections clouds the direct dealing standard.
Cases involving union certification and de-certification elections are
generally not helpful in the direct dealing context because in such
cases, by definition, direct dealing is not an issue. In the context of
a union certification election, the employees have not yet designated
the union to be their exclusive bargaining agent, so the employer is
not obligated by statute to negotiate exclusively with the union. Simi-
larly, the entire purpose of a union decertification election is to cir-
cumvent the union, so direct dealing concerns are at a minimum.
These cases, therefore, give a wide berth to employer communica-
tions and focus almost exclusively on whether the employer has used
coercion or threats. See, e.g., N.L.R.B. v. Gissel Packing Co., 395 U.S.
575, 617 (1969); Louisburg Sportswear Co. v. N.L.R.B., 462 F.2d
380, 385 (4th Cir. 1972). In contrast, communications that do not con-
tain threats or promises may constitute direct dealing because, as in
the Survey cases discussed above, in the direct dealing context the
employer's "communications are more than evidence of an unfair
labor practice; they are the unfair labor practice itself." Safeway
Trails, Inc. v. N.L.R.B., 641 F.2d 930, 933 (D.C. Cir. 1979) (finding
employer had committed unfair labor practice by attempting to under-
mine and subvert the authority of the employees' chief bargaining
representative). The fact that the majority did not find direct dealing
_________________________________________________________________

gaining is possible. Regardless of the validity of Vons, the majority's
argument is not persuasive given the facts of the case sub judice. The
ALJ and the Board specifically found that Americare had modified its
July 5 proposal based on its solicitation of employee opinion. In this con-
text, it was not unreasonable for the ALJ and the Board to conclude that
Americare's continued solicitation of employee input was for the pur-
pose of gauging employee opinions about, and incorporating such opin-
ions into, its proposal. The vote at issue was not the end-game: Since
Americare's proposals came outside the normal bargaining time-period,
any "intelligence" on employee sentiment gained could be used to formu-
late later negotiating strategies, undermining the Union's role as bargain-
ing agent.

                    29
is therefore not surprising, since it was often looking for the wrong
behavior.

The majority's most severe error is that it examined each incident
in isolation, using its sterile scalpel to sever each communication
from the others and render its diagnosis: communication six was
malignant, but communications one through five, seven, and eight,
were benign. In fact, however, we are not concerned with a series of
isolated lumps, but a single tumor -- an inter-related course of con-
duct carried out by Americare over a short period of time. And it was
reasonable for the Board to conclude that the conduct was infected
throughout. See Pratt & Whitney Air Craft Div., 789 F.2d at 135
(even if the communications do not individually constitute unlawful
direct dealing, "the challenged communications can be viewed within
a pattern of other unfair labor practices which, when examined in its
totality, reveal direct dealing ....").

The majority neglected to examine the record in its totality. For
instance, in section III(B)(1), the majority stated about the July 12
meeting called by Dreama Thomas, "[t]here was no indication ... that
Pine Lodge was attempting to formulate a new proposal, and there is
no evidence that a management employee implied that any concerns
raised would be addressed by Pine Lodge." Ante, at 15. When viewed
in isolation, the majority might be correct; but the record supports the
contrary conclusion when the entire course of Americare's conduct is
examined. The majority found that Sherry Johnson's July 28 memo-
randum constituted unlawful direct dealing because it implied that
quid pro quo dealing was possible. One of the sections of that same
memorandum stated, "please note for the employees who were con-
cerned about not getting an anniversary wage increase, this is being
offered also." Here was a clear signal to employees that any concerns
raised would be addressed by Americare when formulating a new pro-
posal. It is noteworthy that the concerns mentioned in the memoran-
dum are exactly those concerns solicited from employees at the July
12 meeting.4
_________________________________________________________________

4 The majority rejected the ALJ's finding that the inclusion of anniver-
sary increases in the July 28 offer letter provided evidence of give-and-
take. The majority believes that the July 28 offer letter merely clarified

                     30
Similarly, when one connects the dots between the July 28 offer
letter, the various solicitations of employee sentiment between July 31
and August 4, and Americare's flyers and memoranda, a picture
emerges which substantially supports the Board's direct dealing diag-
nosis. Americare's first offer to the Union was rejected. While the
offer was outstanding, management personnel solicited employee
concerns about the offer. Americare shortly thereafter issued another
offer. The letter announcing that offer began, "Enclosed please find
an ... offer extended to the ... employees at Americare-Pine Lodge."
The implication of this statement was emphasized by the fact that the
offer was disseminated to each employee at the same time as it was
sent to the Union.5 The letter dared the Union to let the employees
decide on their own whether or not to accept the offer, instead of hav-
ing the Union, as their representative, make the decision. The July 28
offer was accompanied by a memorandum stating that the offer was
extended because employees had come to management "after the
Union did not respond to the previous offer." Further, the July 28
offer "also" included a provision on anniversary increases; the
employees were told that this provision had been included "for the
employees who were concerned about" the issue. Employees might
remember that Americare knew of their concerns because it had solic-
ited their opinions. After the offer was extended, management person-
nel continued to solicit employee input about the offer. Could this
have been for the purpose of gauging the need to improve its offer yet
again? Finally, various memoranda and fliers told the employees that
_________________________________________________________________

the previous July 5 proposal. Yet Sherry Johnson, who put both wage
proposals together, testified that she had not given any thought to how
anniversary increases would be handled in the July 5 proposal and that
she could not tell employees that the July 5 proposal included anniver-
sary increases. Nor do the terms of the collective bargaining contract pro-
vide support for the majority's view. The contract did not set marginal
increases in salary each year regardless of current pay; instead it associ-
ated a nominal salary with a given tenure. Under this system a "Level
Two" employee with 5 years at Americare could conceivably have
missed two years worth of anniversary wage increases under the July 5
proposal.

5 While the simultaneous dissemination, in isolation, does not consti-
tute direct dealing, see ante section III(A), we may still consider it in the
context of a pattern of direct dealing.

                     31
"the Union wants to take you out on a statewide strike" and that they
should "STAND UP to the Union" since Americare "DO[ES] NOT
INTEND" to offer a similar wage increase if they have to bargain
with the Union.6 When the record is thus viewed in its totality, there
is substantial evidence to support the Board's conclusion that Ameri-
care engaged in a course of conduct involving a give-and-take with
employees, which was meant to circumvent the Union and otherwise
undermine the Union's role as exclusive bargaining agent for the
employees.

If the case had been before me as a matter of first impression I may
not have come to the conclusions made by the ALJ and adopted by
the Board. But our review is merely under a substantial evidence stan-
dard. This court should not "displace the Board's choice between two
fairly conflicting views, even though the court would justifiably have
made a different choice had the matter been before it de novo."
Universal Camera Corp., 340 U.S. at 488. I cannot agree that the
Board was unreasonable in finding that Americare sought to deal with
the Union through the employees rather than the employees through
the Union. Pratt & Whitney Air Craft Div., 789 F.2d at 134. And that
is all we are permitted to examine.
_________________________________________________________________

6 The majority concludes that Americare's assertion that the Union
intended to strike and that Americare did not intend to offer a similar
wage increase in the future are protected by § 8(c). I disagree. Employer
predictions must be "carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably probable consequences
beyond his control ...." Gissel Packing, 395 U.S. at 618. There was no
objective basis for the belief that the Union would force the employees
to strike in December. First, as the record shows, a strike would require
an employee vote. Second, to paraphrase the Supreme Court in Gissel
Packing, Americare had no support for its basic assumption that the
Union, which had not yet presented any demands, would have to strike
to be heard. Gissel Packing, 395 U.S. at 619.

Separately, whether Americare decided to offer similar wage increases
in Union negotiations in December is totally within Americare's control.
A legitimate reading of the statement "we DO NOT INTEND to offer
such a generous wage increase if we have to bargain in December" is that
if employees do not accept the unilateral offer from Americare, Ameri-
care will not bargain in good faith during the scheduled negotiations with
the Union.

                    32
II. Taint

Having found substantial evidence to support the Board's conclu-
sions that Americare was engaged in a course of direct dealing, I
would affirm the Board's determination that this course of direct deal-
ing tainted the union decertification petition that soon followed under
the test set forth in N.L.R.B. v. Williams Enterprises, Inc., 50 F.3d
1280, 1288 (4th Cir. 1995).

I would, therefore, affirm the Board's over-all decision, and
enforce the Board's order.

                    33
