NLRB v. Long Island Ass’n for AIDS Care, Inc.

16-2325-ag(L)
NLRB v. Long Island Ass’n for AIDS Care, Inc.
16‐2325‐ag(L)
NLRB v. Long Island Ass’n for AIDS Care, Inc.
1
UNITED STATES COURT OF APPEALS 2
FOR THE SECOND CIRCUIT 3
____________________ 4
5
August Term, 2017 6
7
(Argued: August 21, 2017 Decided: August 31, 2017) 8
9
Docket Nos. 16‐2325‐ag(L), 16‐2782‐ag(XAP) 10
11
____________________ 12
13
NATIONAL LABOR RELATIONS BOARD, 14
15
Petitioner‐Cross‐Respondent, 16
17
v. 18
19
LONG ISLAND ASSOCIATION FOR AIDS CARE, INC., 20
21
Respondent‐Cross‐Petitioner. 22
23
____________________ 24
25
Before: NEWMAN, LEVAL, and POOLER, Circuit Judges. 26
27
Before the Court is the July 1, 2016 application of Petitioner‐Cross‐ 28
Respondent National Labor Relations Board (“NLRB”) to enforce, and the 29
August 10, 2016 cross‐petition of Respondent‐Cross‐Petitioner Long Island 30
Association for AIDS Care, Inc. (“LIAAC”) to review, the NLRB’s June 14, 2016 31

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Decision and Order determining that LIAAC violated Section 8(a)(1) of the 1
National Labor Relations Act, 29 U.S.C. § 158(a)(1), by promulgating an unlawful 2
confidentiality agreement and by terminating an employee for his refusal to sign 3
the unlawful confidentiality agreement. Because an employer violates Section 4
8(a)(1) when it terminates an employee for refusing to sign an unlawful 5
employment document, we enforce the order of the NLRB and deny the cross‐ 6
petition for review. 7
The remaining issues on appeal are disposed of in a summary order filed 8
this day. 9
Affirmed. 10
____________________ 11
DAVID R. EHRLICH, Stagg, Terenzi, Confusione & 12
Wabnik, LLP (Debra L. Wabnik, on the brief), Garden 13
City, NY. for Respondent‐Cross‐Petitioner Long Island 14
Association for AIDS Care, Inc. 15
16
RUTH E. BURDICK, Deputy Assistant General Counsel, 17
National Labor Relations Board (Julie Broido, 18
Supervisory Attorney, Kyle A. deCant, Attorney, 19
Richard F. Griffin, Jr., General Counsel, Jennifer 20
Abruzzo, Deputy General Counsel, John H. Ferguson, 21
Associate General Counsel, Linda Dreeben, Deputy 22
Associate General Counsel, on the brief), Washington, 23

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D.C., for Petitioner‐Cross‐Respondent National Labor 1
Relations Board. 2
3
PER CURIAM: 4
Before the Court is the July 1, 2016 application of Petitioner‐Cross‐ 5
Respondent National Labor Relations Board (“NLRB”) to enforce, and the 6
August 10, 2016 cross‐petition of Respondent‐Cross‐Petitioner Long Island 7
Association for AIDS Care, Inc. (“LIAAC”) to review, the NLRB’s June 14, 2016 8
Decision and Order determining that LIAAC violated Section 8(a)(1) of the 9
National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(1), by promulgating 10
an unlawful confidentiality agreement and by terminating an employee for his 11
refusal to sign the unlawful confidentiality agreement. Because an employer 12
violates Section 8(a)(1) when it terminates an employee for refusing to sign an 13
unlawful employment document, we enforce the order of the NLRB and deny 14
the cross‐petition for review. 15
The remaining issues on appeal are disposed of in a summary order filed 16
this day. 17

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BACKGROUND 1
I. Factual Background 2
LIAAC is a not‐for‐profit, non‐union organization that provides services 3
for HIV/AIDS prevention and treatment at its facility in Hauppauge, New York. 4
LIAAC hired Marcus Acosta in February 2014 to work as part of a mobile 5
outreach team conducting surveys about substance abuse and mental health. A 6
few months after he was hired, Acosta became a prevention specialist on the 7
mobile outreach team focusing on populations with a high risk of contracting 8
HIV/AIDS. 9
When Acosta was hired, LIAAC had him read and sign a Confidentiality 10
Statement, as it did with all of its employees. The Confidentiality Statement 11
comprised primarily four operative paragraphs and a remedy paragraph. The 12
first two paragraphs required employees of LIAAC to maintain the 13
confidentiality of information protected by the Health Insurance Portability and 14
Accountability Act (“HIPAA”) and by a New York law regarding HIV testing. 15
The third paragraph “strictly prohibited” employees from disclosing information 16
with respect to all “non‐public information intended for internal purposes” of 17
LIAAC, including “administrative information such as salaries [and the] contents 18

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of employment contracts.” App’x at 125. The fourth paragraph prohibited 1
employees from being “interviewed by any media source, or answer[ing] any 2
questions from any media source regarding their employment at LIAAC” or “the 3
workings and conditions of LIAAC” without permission from LIAAC. App’x at 4
125. The final paragraph instructed employees that “any breach of confidentiality 5
will result in disciplinary action up to and including suspension or termination 6
of employment and criminal prosecution.” App’x at 125. 7
During 2014, Acosta struggled with time management and documentation 8
of his activities. As a response to his difficulties, Acosta was provided with a 9
time log in order to help him manage his time better. Acosta did not appreciate 10
having to fill in the time log and testified that he entered the ingredients of his 11
lunch into his time log at one point “80 percent to help [him]self” with an eating 12
disorder and “20 percent” to be “snippy with [his] supervisor.” App’x at 46‐47. 13
In November 2014, Acosta read a Newsday article which reported that 14
Gail Barouh, the CEO of LIAAC, had misappropriated public funds. Specifically, 15
the article reported that an investigation had concluded that Barouh had 16
misappropriated cost‐of‐living adjustment (“COLA”) benefits intended for 17
LIAAC employees. The day the article was published, Acosta received a letter 18

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from Barouh at his desk which “explained what happened and said that LIAAC 1
ha[d] resolved all the issues and we’re going to be moving forward.” App’x at 13. 2
Along with the letter, Acosta also received a fundraising packet from LIAAC. 3
According to Acosta, the other employees at LIAAC were upset about the 4
article because many people told him that they had worked for years without 5
raises. As a result, Acosta asked his supervisors and the Director of Human 6
Resources, Robert Nicoletti, how wages and raises worked at LIAAC and how 7
COLA funds were used at LIAAC. Nicoletti instructed Acosta to “just focus on 8
[his] work and nothing else.” App’x at 21. Acosta testified that he decided to do 9
just that. 10
In February 2015, Acosta’s head supervisor, Michele Keogh, wrote in a 11
Supervision Meeting Summary that Acosta had been insubordinate and negative. 12
Specifically, Keogh recounted that Acosta had been tasked with giving a 13
presentation, which Acosta refused to do and announced at a team meeting that 14
“he did not get paid enough to fulfill this task.” App’x at 129. Keogh identified 15
this as insubordination. Keogh also wrote that Acosta was being negative based 16
on his informing her that “other staff members were voicing their dissatisfaction 17
with regards to salary and work environment to him,” but then refusing to 18

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“disclose names of the individuals who [we]re reporting to him their negative 1
feelings.” App’x at 129. Nonetheless, Keogh also wrote that Acosta “takes pride 2
in his work” notwithstanding his concerns about management, and Acosta wrote 3
on the report that he wants to “focus on the work and developing professionally” 4
in the work that he does as a prevention specialist. App’x at 130‐31. 5
In March 2015, LIAAC asked all employees to sign its Confidentiality 6
Statement again. Acosta signed, but indicated that he did so under duress and 7
identified certain portions of the Confidentiality Statement with which he 8
disagreed, specifically the third paragraph’s prohibition on discussing wages and 9
the fourth paragraph’s prohibition on talking to the media. 10
On March 20, 2015, Acosta met with his direct supervisor, Sophia Noel, 11
and requested a raise. Acosta explained that he had spoken to other employees 12
who had told him they received raises, and so he felt he could ask for a raise 13
based on his year of working at LIAAC. Noel laughed when he asked for a raise, 14
but she told him that he had made great improvements in time management and 15
that she would let Keogh know about his request. 16

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On March 24, 2015, Acosta met with Noel again. She told him that he had 1
improved and was doing well, and the two of them made plans for future events 2
in which Acosta would participate for LIAAC. 3
Acosta’s meeting with Noel was cut a few seconds short by a co‐worker 4
who told Acosta to go see Nicoletti for a meeting. Ray Ward, the Chief Program 5
Officer for LIAAC, and another Human Resources employee were also present at 6
the meeting. Nicoletti opened the meeting by telling Acosta that “this is a yes or 7
no conversation, there’s no room for discussion.” App’x at 31‐32. Nicoletti then 8
gave Acosta the Confidentiality Statement to sign a second time, and told Acosta 9
to sign it or get fired. Acosta signed the statement, but indicated that he did so 10
“under duress” three times at the bottom of the sheet. App’x at 124. Upon 11
receiving the Confidentiality Statement with Acosta’s notations, Nicoletti 12
informed Acosta that “you just terminated yourself.” App’x at 32. Acosta asked 13
for a copy of the Confidentiality Statement that he signed, but this was denied. 14
Acosta then called the police thinking it might help him get a copy of his signed 15
Confidentiality Statement, but when Nicoletti yelled at Acosta, Acosta told the 16
police there was no emergency and he hung up the phone. Acosta then left 17
LIAAC’s building. 18

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II. Procedural Background 1
On March 26, 2015, Acosta filed a charge against LIAAC with the NLRB. In 2
his charge, Acosta alleged that LIAAC had “unlawfully prohibited employees 3
from talking about their wages, hours, terms[,] and conditions of employment” 4
and that LIAAC had “discharged [Acosta] because he asserted his Section 7 5
rights and because he engaged in protected concerted activities.” App’x at 123. 6
On July 27, 2015, the Administrative Law Judge (“ALJ”) tried the case in 7
Brooklyn, New York. The ALJ heard testimony from Acosta and from Ward on 8
behalf of LIAAC. 9
On August 26, 2015, the ALJ issued his decision. The ALJ first held that the 10
Confidentiality Statement was “facially invalid” because “an employer 11
unlawfully intrudes into its employees’ Section 7 rights when it prohibits 12
employees, without justification, from discussing among themselves their wages 13
and other terms and conditions of employment.” App’x at 175. The ALJ then 14
found that Acosta engaged in concerted activity with respect to wages at LIAAC 15
by discussing wages and COLA increases with other employees, and by bringing 16
these concerns to Noel, Keogh, and Nicoletti even though Acosta refused to 17
identify those with whom he had been speaking. The ALJ also found that, even if 18

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Acosta were not engaged in concerted activity, his comments were protected 1
because the Confidentiality Statement was facially invalid. The ALJ further held 2
that LIAAC had not met its burden in proving that Acosta would have been 3
discharged due to his poor work performance, and thus concluded that LIAAC’s 4
discharge of Acosta violated Section 8(a)(1) of the NLRA. The ALJ therefore 5
required LIAAC to reinstate and compensate Acosta, to remove paragraphs three 6
and four from the Confidentiality Statement, and to post an attached Notice to 7
Employees in its facility. 8
Thereafter, both parties filed exceptions to the ALJ’s decision. On June 14, 9
2016, after considering the parties’ exceptions, the NLRB issued a decision 10
affirming the ALJ’s rulings, findings, and conclusions as modified. The NLRB 11
agreed with the ALJ that LIAAC violated Section 8(a)(1) of the NLRA by 12
“promulgating and maintaining a confidentiality statement that employees 13
would reasonably construe to prohibit them from discussing wages or other 14
terms and conditions of employment with employees or nonemployees and the 15
media.” App’x at 199. The NLRB also agreed with the ALJ that LIAAC violated 16
Section 8(a)(1) by threatening to discharge and then discharging Acosta for 17
refusing to agree to the unlawful confidentiality statement. The NLRB did not 18

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base its decision on a finding that Acosta engaged in concerted activity. The 1
NLRB also adopted remedial provisions similar to those adopted by the ALJ and 2
required LIAAC to post a Notice to Employees on its premises regarding 3
LIAAC’s employees’ rights under the NLRA. 4
The NLRB’s application to enforce and LIAAC’s cross‐petition to review 5
the NLRB’s decision were timely filed on July 1, 2016 and August 10, 2016, 6
respectively. 7
DISCUSSION 8
I. Standard of Review 9
“We uphold the NLRB’s findings of fact if supported by substantial 10
evidence and the NLRB’s legal determinations if not arbitrary and capricious.” 11
Cibao Meat Prods., Inc. v. NLRB, 547 F.3d 336, 339 (2d Cir. 2008). “[S]ubstantial 12
evidence is more than a mere scintilla. It means such relevant evidence as a 13
reasonable mind might accept as adequate to support a conclusion.” NLRB v. 14
G&T Terminal Packaging Co., Inc., 246 F.3d 103, 114 (2d Cir. 2001). “The 15
substantial evidence standard requires us to review the record in its entirety, 16
including the body of evidence opposed to the [NLRB’s] view.” Id. (internal 17
quotation marks and ellipses omitted). “We may not[, however,] displace the 18

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[NLRB’s] choice between two fairly conflicting views, even though we would 1
justifiably have made a different choice had the matter been before us de novo.” 2
Id. (internal quotation marks and brackets omitted). “Instead, a reversal based 3
upon a factual question will only be warranted if, after looking at the record as a 4
whole, we are left with the impression that no rational trier of fact could reach 5
the conclusion drawn by the” NLRB. Id. (internal quotation marks omitted). 6
“Our review [of the NLRB’s legal conclusions] is [also] deferential: This 7
[C]ourt reviews the [NLRB’s] legal conclusions to ensure they have a reasonable 8
basis in law. In so doing, we afford the [NLRB] a degree of legal leeway.” Cibao 9
Meat Prods., 547 F.3d at 339. 10
II. Acosta’s Termination in Violation of Section 8(a)(1) 11
LIAAC appeals the NLRB’s decision with respect to Acosta’s termination 12
primarily because Acosta did not engage in “concerted activity” under Section 7 13
of the NLRA, 29 U.S.C. § 157, and therefore his termination was not in violation 14
of Section 8(a)(1), and, secondarily, because Acosta was terminated because of 15
his poor work performance and not his refusal to sign the Confidentiality 16
Statement. The NLRB, however, affirmed the ALJ’s decision because it 17
determined that Acosta had been terminated based on his refusal to sign the 18

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Confidentiality Statement and because it held that terminating Acosta for his 1
refusal to sign an unlawful confidentiality agreement violated Section 8(a)(1) 2
independent of any need for concerted activity. Thus, we must first determine 3
whether substantial evidence supports the factual finding that Acosta was 4
terminated for his refusal to sign, and then we must determine whether a 5
concerted activity is legally necessary to find a violation of Section 8(a)(1). 6
We hold that substantial evidence supports the NLRB’s finding that Acosta 7
was terminated because of his refusal to sign the Confidentiality Statement. 8
Acosta’s testimony that Nicoletti told him to “sign [the Confidentiality 9
Statement] or get fired” during the meeting on March 24, 2015 is uncontroverted. 10
App’x at 32. In addition, both Acosta and LIAAC’s own witness testified that 11
Nicoletti told Acosta that he “just terminated his own employment” based on his 12
writing “under duress” on the Confidentiality Statement when he signed it on 13
March 24, 2015. App’x at 32, 88. No evidence has been presented that refutes this 14
statement of events. 15
Further, LIAAC’s counter‐story that Acosta was fired for his poor 16
performance is not supported by the evidence. Although there is evidence in the 17
record that Acosta had difficulty with time management in 2014, that he was 18

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considered for termination in November 2014, and that there was an issue with 1
Acosta refusing to do a presentation at work in early 2015, the more recent 2
evidence in the record indicates that Acosta was improving. LIAAC presented no 3
evidence contradicting Acosta’s testimony that Noel told him four days before he 4
was fired that he had made “a big improvement since November.” App’x at 30. 5
LIAAC also did not respond to Acosta’s testimony that, on the day of his firing, 6
he met with Noel in order to discuss future events that Acosta would be 7
participating in at LIAAC, thus suggesting that Noel did not believe Acosta 8
would be fired later that day based on his performance. Indeed, Acosta testified 9
that at that meeting, which was immediately before he was terminated, Noel 10
again told him that he had improved. 11
Accordingly, we hold that substantial evidence supports the NLRB’s 12
finding that Acosta was terminated because of his refusal to sign the 13
Confidentiality Statement. Thus, we must next determine whether the NLRB was 14
correct as a legal matter that LIAAC violated Section 8(a)(1) when it terminated 15
Acosta for his refusal to sign an unlawful confidentiality agreement without 16
requiring proof of concerted activity. 17

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“The [NLRB] has long adhered to and applied the principle that discipline 1
imposed pursuant to an unlawfully overbroad rule is unlawful.” The Cont’l Grp., 2
Inc., 357 N.L.R.B. 409, 410 (2011). This is called the Double Eagle rule after Double 3
Eagle Hotel & Casino, 341 N.L.R.B. 112 (2004). See The Cont’l Grp., Inc., 357 N.L.R.B. 4
at 410. One of the central concerns animating the Double Eagle rule is that “the 5
mere maintenance of an overbroad rule tends to inhibit employees who are 6
considering engaging in legally protected activities by convincing them to refrain 7
from doing so rather than risk discipline.” Id. at 411. Thus, “[a]n employer is not 8
free to evade liability through the device of utilizing a rule prohibiting activity 9
protected by Section 7 of the [NLRA] and by then basing its discipline on the fact 10
that the employee has violated the rule, thereby being insubordinate.” Kolkka 11
Tables & Finnish‐Am. Saunas, 335 N.L.R.B. 844, 849 (2001). In other words, “an 12
employer may not discharge an employee for refusing to comply with an 13
unlawful order prohibiting protected activity.” Quantum Elec., Inc., 341 N.L.R.B. 14
1270, 1280‐81 (2004). The rule that has emerged, therefore, is “that an employer 15
may not take coercive action against an employee . . . for refusing to comply with 16
a policy that . . . itself deters protected activity” in violation of Section 8(a)(1). 17
NLRB v. Air Contact Transp. Inc., 403 F.3d 206, 214 (4th Cir. 2005). This rule holds 18

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true for employee refusals to sign unlawful documents as a condition of 1
employment, including, for example, unlawful arbitration agreements. See 2
Everglades College, Inc., 363 N.L.R.B. No. 73, at *1, *3 (2015). 3
We hold that the NLRB was correct in deciding that an employer violates 4
Section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), when an employer terminates 5
an employee for refusing to agree to an unlawful confidentiality agreement. An 6
employer may not require even one individual employee to agree to abide by 7
unlawful restrictions as a condition of employment. That the employees have not 8
yet organized in order to protest the unlawful nature of the restriction at issue 9
does not make it any less unlawful. The contrary rule urged by LIAAC, that an 10
employee can be required to comply with an unlawful policy and the employee 11
is only protected from the unlawful policy if he or she actively organizes with 12
other employees against it, is illogical and untenable. An unchallenged unlawful 13
document can cause the chilling effect that Section 8(a)(1) seeks to prevent just as 14
much as one that has been challenged by concerted action. See NLRB v. Vanguard 15
Tours, Inc., 981 F.2d 62, 67 (2d Cir. 1992). We see no reason to judge the effect of 16
an unlawful requirement on an employee’s termination based solely on whether 17
the employee acted in concert or alone. Instead, we judge the effect of the 18

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requirement on an employee’s termination based on the lawfulness or 1
unlawfulness of the requirement. 2
Here, the Confidentiality Statement was unlawful and Acosta was 3
terminated by LIAAC for refusing to sign the unlawful Confidentiality 4
Statement. This was a violation of Section 8(a)(1). Accordingly, finding neither 5
legal nor factual error, we affirm the decision of the NLRB that Acosta was 6
terminated by LIAAC in violation of Section 8(a)(1) for refusing to sign the 7
unlawful Confidentiality Statement. 8
CONCLUSION 9
For the reasons set forth above and in the accompanying summary order, 10
we affirm the judgment of the NLRB. 11

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