Time Warner v. NLRB

18-2323 (L)
Time Warner v. NLRB
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term, 2019 4
5
(Argued: November 14, 2019 Decided: December 10, 2020) 6
7
Docket No. 18-2323-cv(L), 18-2552-cv(XAP) 8
9
10
_____________________________________ 11
12
TIME WARNER C ABLE OF NEW YORK C ITY LLC, 13
14
Petitioner-Cross-Respondent, 15
16
v. 17
18
NATIONAL L ABOR R ELATIONS BOARD, 19
20
Respondent-Cross-Petitioner. 21
_____________________________________ 22
23
Before: 24
25
L IVINGSTON, C HIEF JUDGE , L EVAL , AND WESLEY , Circuit Judges. 26
27
Time Warner Cable of New York City LLC petitions for review, and the 28
National Labor Relations Board cross-petitions for enforcement, of a Board 29
ruling that Time Warner committed an unfair labor practice by coercively 30
interrogating employees about communications leading to an unprotected 31
demonstration and work stoppage that contravened the no-strike agreement 32
between Time Warner and the Union. Held, the Board’s standard, 33
interpreted to prohibit Time Warner from coercively questioning employees 34
who participated in an unprotected work stoppage about any communication 35
prior to the stoppage except to identify actual participants represented an 36
unexplained and unjustified departure from the Board’s precedents. 37
VACATED and REMANDED. 38
39

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G EORGE PETER C LARK, Kauff McGuire & 1
Margolis LLP, New York, NY (Daniel 2
Kirschbaum, Kenneth A. Margolis, 3
Kauff McGuire & Margolis LLP, New 4
York, NY on the brief), for 5
Petitioner/Cross-Respondent. 6
7
K IRA D ELLINGER V OL, National Labor 8
Relations Board, Washington, D.C. 9
(Valerie L. Collins, National Labor 10
Relations Board, Washington, D.C., on 11
the brief), for Respondent/Cross-Petitioner. 12
13
LEVAL, Circuit Judge: 14
Time Warner Cable of New York City LLC (“Time Warner”) petitions 15
for review of a June 22, 2018 Decision and Order by the National Labor 16
Relations Board (“the Board”) finding that Time Warner engaged in unfair 17
labor practices (“ULP”) in violation of Section 8(a)(1) of the National Labor 18
Relations Act (“the Act”), 29 U.S.C. § 158(a)(1); the Board cross-petitions for 19
enforcement. For the reasons set forth below, we VACATE the Board’s 20
Decision and Order and REMAND. 21

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Time Warner v. NLRB
3
BACKGROUND1 1
Time Warner operates facilities in New York City and New Jersey, 2
including one on Paidge Avenue in Brooklyn that provides 3
telecommunication services to customers in southern Manhattan. The staff at 4
that facility includes service technicians and their foremen, who are jointly 5
represented by Local Union No. 3, International Brotherhood of Electrical 6
Workers, AFL-CIO (“the Union”) in a single, multi-facility unit. 7
On March 31, 2013, the regional collective bargaining agreement 8
(“CBA”) between the Union and Time Warner expired. That agreement 9
contained a no-strike clause, which provided: “There shall be no cessation or 10
stoppage of work, service or employment on the part of or the instance of 11
either party, during the term of this agreement.” Joint App’x 632. Several 12
days earlier, on March 28, 2013, the Union and Time Warner had executed a 13
Memorandum of Understanding (“MOU”), which summarized agreed-upon 14
changes for a renewed CBA. Time Warner’s May 14, 2013 proposed draft of a 15
successor CBA retained an identical no-strike clause, and neither the MOU 16
1 The facts recounted here—as set forth in the June 22, 2018 NLRB Decision
and Order and the June 14, 2016 Decision by the NLRB’s Administrative Law
Judge—are undisputed. Pet’r’s Br. 3.

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nor the negotiations regarding proposed riders to the CBA (which continued 1
for over a year) included any mention of changing it. 2
On April 1, 2014, Time Warner issued two-day suspensions to several 3
foremen for violating a new company directive regarding when and where 4
employees were required to carry tools. Several of the foreman notified 5
Derek Jordan, the Union’s business agent, that they had been suspended and 6
that, in at least one instance, a foreman was suspended without union 7
representation, in arguable violation of the foreman’s rights under NLRB v. J. 8
Weingarten, Inc., 420 U.S. 251 (1975) (establishing an employee’s right to union 9
representation during an investigatory interview she reasonably fears may 10
result in disciplinary action). Jordan and other Union representatives then 11
called for a “safety meeting” for union members, to be held outside the 12
facility on the following morning. 13
Shortly before 6:30 a.m. on April 2, 2014, Jordan positioned his car in 14
the middle of the street, perpendicular to the direction of traffic, outside the 15
Paidge Avenue facility. By 6:33 a.m., at Jordan’s direction, six more 16
employees had similarly positioned their vehicles on Paidge Avenue, where 17
they obstructed public traffic and prevented Time Warner’s service trucks 18

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5
from departing for work assignments. Over the next hour, approximately 1
fifty employees, many of whom were scheduled to start work between 6:30 2
and 8:00 a.m., gathered around the vehicles, contributing to the obstruction of 3
traffic. During that time, Jordan and other union representatives distributed 4
fliers regarding workplace safety and employees’ Weingarten rights. At about 5
7:30 a.m., Jordan gathered the participants around him and spoke to them 6
about the topics covered by the distributed fliers. The gathering dispersed 7
and the traffic obstruction was removed at about 8:00 a.m. Because service 8
trucks were effectively trapped within the facility from 6:30 to 8:00 a.m., “this 9
obstruction caused a ‘ripple effect’ of delayed or missed service appointments 10
for the rest of the day.” Joint App’x 625. 11
Time Warner investigated the incident to identify those responsible for 12
the demonstration and the resulting disruption to service appointments. 13
Using video recorded by the facility’s security cameras, Time Warner 14
identified a number of the employees who had been present. Each identified 15
employee was then summoned to an investigatory interview at which 16
supervisors and human resource managers asked each employee a series of 17
questions from a standardized questionnaire. The questions put to the 18

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employees included whether they attended the April 2 gathering, how and 1
when they arrived, and whether they parked. If an employee denied being 2
present, he or she was shown photographic evidence to the contrary. 3
Interviewees were also asked about their familiarity with the CBA’s no-strike 4
clause, which the interviewers then read aloud to each interviewee. 5
Employees were informed that their participation in the demonstration 6
subjected them to “discipline” and “possible termination.” Joint App’x 634– 7
35. The employees were also asked about conduct predating the 8
demonstration, specifically: “Who told you about this gathering?”; “When did 9
you receive notification of the gathering?”; “How was this event 10
communicated to you?”; and “What were you told about the reason for the 11
protest?” Joint App’x 628. The first three of these questions regarding pre- 12
demonstration communications are the focus of this appeal. 13
Several separate proceedings regarding the demonstration followed. 14
On April 16, 2014, Time Warner filed suit in the United States District Court 15
for the Eastern District of New York, alleging claims under the Labor 16
Management Relations Act, 29 U.S.C. § 185 (1994), and under state law, 17
seeking injunctive relief and damages. See Time Warner Cable of N.Y.C. LLC v. 18

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Int’l Brotherhood of Elec. Workers, 170 F. Supp. 3d 392, 402, 409 (E.D.N.Y. 2016). 1
On April 18, 2014, the Union filed an unfair labor practice (“ULP”) charge 2
before the Board (the action that ultimately led to this appeal). And, on May 3
5, 2014, Time Warner initiated an arbitration against the Union, contending 4
that the demonstration violated the no-strike clause. In the latter proceeding, 5
the Union and Time Warner voluntarily submitted to arbitration the question 6
whether the demonstration violated the no-strike clause. Having concluded 7
that the Union had waived its argument that the no-strike clause had not been 8
extended after the March 2013 expiration of the CBA, the arbitrator 9
determined that the April 2 demonstration violated that clause. This court 10
affirmed the arbitral decision. See Time Warner Cable of N.Y.C. LLC v. Int’l 11
Brotherhood of Elec. Workers, 684 Fed. App’x 68, 71 (2d. Cir. 2017) (summary 12
order). 13
This appeal arises from the Board’s June 22, 2018 Decision and Order 14
resolving the Union’s ULP charge of April 18, 2014. The Union alleged that 15
Time Warner’s post-demonstration interrogation of employees constituted 16
coercive interrogation in violation of Section 8(a)(1) of the Act and that the 17
suspensions of employees who attended that demonstration unlawfully 18

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discriminated against those employees for participation in protected union 1
activity in violation of Section 8(a)(3). Based on the prior arbitration 2
proceeding and its affirmance by this court, the Board “treat[ed] it as 3
established that the April 2 demonstration violated the parties’ no-strike 4
clause” and therefore concluded that the demonstration was unprotected. 5
Joint App’x 627. It accordingly found that Time Warner did not violate the 6
Act by suspending employees who participated in that demonstration. In this 7
appeal, the parties do not challenge the Board’s determinations that the 8
demonstration was unprotected and that the resulting suspensions were 9
lawful. 10
On the other hand, the Board concluded that three of Time Warner’s 11
questions—“Who told you about this gathering?”; “When did you receive 12
notification of the gathering?”; and “How was this event communicated to 13
you?”—were unlawfully coercive under Section 8(a)(1). Joint App’x 629. The 14
Board ruled that, in conducting interrogations into this unprotected activity, 15
Time Warner was “required to focus closely on the unprotected misconduct 16
and to minimize intrusion into Section 7 activity,” and that “[t]here was 17
therefore no need for [Time Warner] to inquire into the activity of any 18

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9
employees prior to the event, except . . . specifically to identify the additional 1
individuals who were actual participants in the demonstration.” Joint App’x 2
628-29; Pet’r’s Br. 11. With respect to the three questions specified above, the 3
Board concluded that Time Warner failed to observe those limitations and 4
accordingly committed an unfair labor practice. Time Warner brought this 5
petition to set aside the Board’s Decision and Order. 6
DISCUSSION 7
Time Warner challenges the Board’s conclusion barring coercive 8
questioning about anything that occurred prior to the actual demonstration 9
except the identification of additional “actual participants in the 10
demonstration” and the Board’s resulting decision that the three questions 11
constituted unfair labor practices under Section 8(a)(1). It argues that 12
decision lacks a reasonable basis in law and departs from the Board’s prior 13
interpretations of the Act without explanation for why such a departure is 14
necessary or appropriate. Because we agree that the Board’s enunciated 15
standard, at least as applied here, lacks a reasonable basis in law, we remand 16
to the Board for further proceedings not inconsistent with this opinion. 17

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10
A. Standard of Review 1
“On appellate review, the Board’s findings of fact will not be 2
overturned if they are supported by substantial evidence on the record 3
considered as a whole, taking into account whatever in the record fairly 4
detracts from its weight, but giving due regard to the Board’s expertise.” 5
Novelis Corp. v. NLRB, 885 F.3d 100, 106 (2d Cir. 2018) (quoting NLRB v. Thalbo 6
Corp., 171 F.3d 102, 112 (2d Cir. 1999)). Our review of the NLRB’s legal 7
conclusions is also deferential: “This Court reviews the Board’s legal 8
conclusions to ensure they have a reasonable basis in law. In so doing, we 9
afford the Board a degree of legal leeway,” and will uphold the conclusions 10
“if not arbitrary and capricious.” Cibao Meat Prods., Inc. v. NLRB, 547 F.3d 336, 11
339 (2d Cir. 2008) (quoting Long Island Head Start Child Dev. Servs. v. NLRB, 12
460 F.3d 254, 257 (2d Cir.2006)). However, “[w]here the Board departs from 13
prior interpretations of the Act without explaining why that departure is 14
necessary or appropriate, the Board will have exceeded the bounds of its 15
discretion,” regardless of whether that departure reflects a reasonable 16
interpretation of the Act. Service Employees Int’l Union, Local 32BJ v. NLRB, 647 17
F.3d 435, 442 (2d Cir. 2001) (internal quotation marks and citation omitted). 18

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11
“We review de novo the NLRB’s application of the law to the facts, but we 1
defer to the NLRB’s choice between two fairly conflicting views.” Beverly 2
Enters., Inc. v. NLRB, 139 F.3d 135, 140 (2d Cir. 1998) (internal quotation marks 3
and citation omitted). 4
B. Relevant Provisions of the National Labor Relations Act 5
Section 7 of the Act guarantees employees “the right to self- 6
organization, to form, join, or assist labor organizations, to bargain 7
collectively through representatives of their own choosing, and to engage in 8
other concerted activities for the purpose of collective bargaining or other 9
mutual aid or protection.” 29 U.S.C. § 157. Section 8 defines certain conduct 10
as “unfair labor practice[s]” when committed by an employer or by a union. 11
Id. § 158(a)-(b). Challenged conduct must infringe on a right protected by 12
Section 7 before it can constitute an unfair labor practice under Section 8(a)(1). 13
See id. § 158(a)(1) (“It shall be an unfair labor practice for an employer . . . to 14
interfere with, restrain, or coerce employees in the exercise of the rights 15
guaranteed in [Section 7 of the Act] . . . .”). 16
An employer’s questioning of an employee constitutes coercive 17
interrogation violative of Section 8(a)(1) if it interferes with a right protected 18

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by Section 7 and “the words themselves or the context in which they are used 1
. . . suggest an element of coercion or interference.” Bozzuto’s Inc. v. NLRB, 2
927 F.3d 672, 684 (2d Cir. 2019) (quoting Rossmore House, 269 N.L.R.B. 1176, 3
1177 (1984)). “[A]n interrogation that is ‘not itself threatening is not held to be 4
an unfair labor practice unless it meets certain fairly severe standards.’” Id. 5
(alteration omitted) (quoting Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964) 6
(per curiam)).2 The crucial inquiry in determining whether questioning 7
violated the Act is “whether under all of the circumstances the interrogation 8
reasonably tends to restrain, coerce, or interfere with rights guaranteed by the 9
Act.” Rossmore House, 269 N.L.R.B. at 1177 & 1178 n.20. 10
2 To determine whether questioning is threatening or coercive, we look to the
five so-called “Bourne factors”:
(1) The background, i.e., is there a history of employer hostility and
discrimination?
(2) The nature of the information sought, e.g., did the interrogator appear
to be seeking information on which to base taking action against
individual employees?
(3) The identity of the questioner, i.e., how high was he in the company
hierarchy?
(4) Place and method of interrogation, e.g., was [the] employee called from
work to the boss’s office? Was there an atmosphere of ‘unnatural
formality’?
(5) Truthfulness of the reply.
Bourne, 332 F.2d at 48; accord Bozzuto’s, 927 F.3d at 684.

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C. Application 1
The principal issue on appeal is the propriety of the Board’s ruling that 2
the three questions put by Time Warner to known participants in the 3
demonstration—“Who told you about this gathering?; “When did you receive 4
notification of the gathering?”; and “How was this event communicated to 5
you?”—were unlawfully coercive under Section 8(a)(1). Notwithstanding the 6
Board’s conclusion that the stoppage violated the no-strike clause of the CBA 7
and was therefore “unprotected activity,” into which the employer was 8
entitled to inquire coercively, the Board concluded that these three questions 9
intruded into employees’ Section 7 protected activity. Joint App’x 629.3 It 10
ruled that the employer’s “inquiry was . . . required to focus closely on the 11
unprotected misconduct and to minimize intrusion into Section 7 activity.” 12
Joint App’x 628. Because Time Warner had established through video 13
evidence what had happened and had identified many of the employees who 14
participated, the Board concluded that Time Warner had “no need . . . to 15
inquire into the activity of any employees prior to the event, except . . . 16
3 The Board did not analyze the legality of additional questions asked by Time
Warner because finding additional questions to violate the Act would have
been “essentially cumulative.” Joint App’x 629.

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14
specifically to identify the additional individuals who were actual 1
participants in the demonstration.” Joint App’x 628–29. The Board therefore 2
ruled that these questions constituted a ULP. 3
Time Warner challenges the Board’s restriction, contending that its 4
standard lacks a reasonable basis in law and departs from the Board’s 5
precedents without explanation for why that departure is necessary or 6
appropriate. See Service Employees, 647 F.3d at 442. As described above, the 7
Board’s articulated legal standard has two parts: Time Warner was both 8
“required to focus closely on the unprotected misconduct” and also to 9
“minimize intrusion into Section 7 activity.” Joint App’x 628. In response to 10
Time Warner’s challenge, we conclude the portion of the Board’s standard 11
requiring that in coercive questioning, employers “focus closely” on 12
unprotected activity where it might touch on protected activity has a 13
reasonable basis in law; but we conclude that the Board’s requirement that an 14
employer “minimize” intrusion into Section 7 activity in such questioning, at 15
least as understood by the Board in this case, does not. We address each part 16
of the Board’s standard in turn. 17

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15
Time Warner contends that, under the Board’s precedents, when an 1
employer conducts an investigation “in reaction to” unprotected activity, the 2
employer has broad latitude to question employees about any matter and is 3
not required to focus closely on the unprotected activity or minimize 4
intrusion into protected activity. But the cases on which Time Warner relies 5
do not support such a broad rule. Many of the cases Time Warner cites do 6
not even consider the issue of coercive interrogation, and those that do say 7
nothing about the content of the interrogation at issue. In short, Time Warner 8
points to no precedent that supports its argument that an employer is free to 9
coercively interrogate employees about any subject—however intrusive into 10
protected activity—merely because that questioning is prompted by 11
unprotected conduct of an employee. 12
In support of its argument, Time Warner relies heavily on the Board’s 13
decision in Preferred Building Services, Inc., 366 N.L.R.B. No. 159 (2018), 14
arguing that it “clearly stands for the proposition that employer conduct, such 15
as an alleged interrogation, that occurs in response or reaction to an 16
employee’s unprotected activity does not violate the act.” Pet’r’s Br. 18. That 17
misreads the Preferred Building Services ruling. 18

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In that case, janitors brought ULP charges against the company alleged 1
to be their employer, a contracting company that had subcontracted the job at 2
which they were employed, contending that the company violated Sections 3
8(a)(3) and 8(a)(1) by cancelling contracts and discharging, threatening, 4
interrogating, and surveilling the employees in response to picketing activity. 5
Preferred Building Servs., 366 N.L.R.B. No. 159, at *1. The respondent raised an 6
affirmative defense that the picketing was secondary activity prohibited by 7
Section 8(b)(4)(ii)(B), that the picketing was therefore unprotected, and that 8
the interrogations and disciplinary action taken in response to that 9
unprotected activity were not unlawful. Id. The ALJ rejected this affirmative 10
defense, but the Board reversed, ruling that the picketing activity was 11
unlawful and unprotected, and, as a consequence, the employer was entitled 12
under the Act to take the particular actions it took in response. Id. 13
Despite having mentioned in its description of the case’s procedural 14
history that the janitors had alleged among their ULP charges that they had 15
been unlawfully interrogated, the Board did not specify or in any way 16
analyze the questioning conducted. The Board’s decision focused entirely on 17
whether the employees’ picketing was protected. Nor did the ALJ’s decision 18

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reveal the nature of any questioning conducted in reaction to the picketing or 1
suggest that any of it intruded into protected activity. Thus, the Board’s 2
summary conclusion that the company’s “reaction to the employees’ 3
unprotected picketing did not violate the Act” based on the unprotected 4
status of the picketing, id., says nothing about the scope of questioning 5
available to an employer in an investigation conducted in reaction to 6
unprotected activity. 7
Nor does Time Warner find support in the cases relied upon by the 8
Board in Preferred Building Services. In Martel Construction, Inc., 302 N.L.R.B. 9
522 (1991), the Board remanded because the ALJ, in ruling against the 10
employer, failed to consider the employer’s affirmative defense that its 11
termination of and threatened disciplinary action against several employees 12
were lawful because those actions were taken in response to allegedly 13
unprotected picketing activity. Id. at 522. In Rapid Armored Truck Corp., 281 14
N.L.R.B. 371 (1986), the Board affirmed an ALJ’s dismissal of charges that an 15
employer committed unfair labor practices against several employees— 16
including discharging those that participated in a strike, threatening others 17
with discharge if they joined the instigating union, refusing to rehire 18

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employees that participated in a strike, and conditioning payment of accrued 1
vacation pay based on strike participation—because those actions were taken 2
in response to an unprotected strike. Id. at 382. In neither Martel nor Rapid 3
Armored, however, did the Board or the ALJs consider a ULP charge based on 4
coercive interrogation, and neither case considered the permissible scope of 5
interrogation touching on protected activity when conducted in the course of 6
an investigation into unprotected activity. Those precedents do not support 7
Time Warner’s argument. 8
The remaining authorities cited by Time Warner, rather than 9
supporting its argument that an employer is entitled to question employees 10
without limitation when the questioning is in reaction to unprotected activity, 11
instead demonstrate that the first portion of the Board’s challenged 12
standard—that an employer’s coercive interrogation must “focus closely” on 13
unprotected conduct—is consistent with established Board precedent. In 14
Fresh & Easy Neighborhood Market, Inc., 361 N.L.R.B. No. 12 (2014), for 15
example, the Board permitted an employer to question an employee 16
regarding her motivation for engaging in conduct that was the subject of 17
harassment complaints both by and against the employee—even though that 18

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conduct had occurred during the exercise of the employee’s protected 1
concerted activity—because that “questioning . . . was focused on and narrowly 2
tailored to enabling the [employer] to conduct a legitimate investigation into 3
[the] complaint.” Id. at *12 (emphasis added). Significantly, the Board noted 4
that there was no evidence that the employer’s questioning “delve[d] into [the 5
employee’s] motives or sentiments beyond the narrow facts surrounding the 6
complaints at issue.” Id. The Board’s narrow ruling in favor of the employer 7
in that case depended on the constrained purpose of the employer’s 8
questioning and the employer’s assurances that it would protect the 9
employee against retaliation.4 10
Time Warner similarly reads too much into the Board’s ruling in HCA 11
Health Servs. of N.H., Inc., 316 N.L.R.B. 919 (1995). Time Warner cites HCA for 12
the proposition that questioning of employees does not violate the Act— 13
regardless of how intrusive into protected activity the questioning is—if the 14
conduct about which the interrogation took place was not protected. But 15
HCA does not support such a broad assertion; to the contrary, it provides 16
4 We neither express nor imply any views on whether Time Warner’s three
questions complied with the “focus closely” prong of the Board’s standard.
That is a question the Board will be at liberty to resolve on the remand which
we direct in the latter portion of this opinion.

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precedent for the Board’s requirement, enunciated here, that an employer 1
must “focus closely” on unprotected activity when coercively questioning 2
employees. 3
Time Warner correctly observes that, in HCA, the Board affirmed the 4
ALJ‘s dismissal of a ULP charge, which concluded: “As the conduct about 5
which the interrogation took place was not protected, I do not find the 6
interrogation violated the Act.” Id. at 931. Nonetheless, when read in context, 7
those words cannot be construed to have the meaning that Time Warner 8
ascribes to them: that, when an investigation is initiated into unprotected 9
conduct, there are no limits on the questions an employer may put to 10
employees. 11
In HCA, an operating room nurse who had been disciplined by her 12
supervisor and believed herself to be in danger of discharge, spread false, 13
malicious rumors about the supervisor’s prior employment in an effort to 14
convince other nurses to join her in an effort to have the supervisor fired. Id. 15
at 929. When this came to the attention of the supervisor, she questioned the 16
nurse as to why she had done this. Id. at 925. The nurse took the position that 17
she had done it because she believed the supervisor’s bad management was 18

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deleterious to the performance of the operating room. Id. at 925, 930. 1
Following an investigation by the hospital, the nurse was discharged. She 2
brought a ULP complaint asserting that the hospital had unlawfully 3
interfered with her right to seek concerted action to remedy the allegedly 4
poor management practices to which she objected. Id. at 920. 5
The ALJ concluded that the interrogation and ultimate discharge of the 6
nurse were motivated solely by the nurse’s malicious spreading of a false, 7
defamatory rumor for her own personal protection and had nothing to do 8
with the nurse’s dissatisfaction with her supervisor’s management, id. at 930 9
(“This is not a case where an employer is shown to reject employee input on 10
issues of working conditions . . . .”), and that the supervisor, “on learning of 11
the spreading of the [false] rumor . . . with the obvious purpose of stirring up 12
support to get [the supervisor] fired, reasonably wanted to verify what was 13
happening,” id. at 931. Critically, the ALJ reasoned that the nurse’s spreading 14
of the false rumor was indivisible from any of her other actions, including 15
those that might have otherwise been protected. See id. (“[O]ne cannot 16

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divorce the spreading of the rumor from any other action taken by [the 1
nurse].”). 2
Understood in context, the HCA decision did not establish that an 3
employer is at liberty, without limitation, to conduct coercive questioning into 4
protected activity so long as the interrogation is in reaction to unprotected 5
activity. Instead, the ALJ permitted coercive questioning properly directed at 6
the nurse’s unprotected spreading of a false defamatory rumor, 7
notwithstanding that the questioning would inevitably also touch on the 8
nurse’s protected concerted activity, because the unprotected and protected 9
conduct was inextricably intertwined. Far from establishing for an employer 10
broad latitude to inquire about any subject when investigating unprotected 11
activity, HCA is correctly understood as permitting coercive questioning to 12
touch upon protected activity when the protected activity is closely related to 13

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the unprotected activity and the questioning is properly focused on the 1
unprotected aspects of that conduct.5 2
Contrary to Time Warner’s argument, while coercive questioning of 3
employees is permitted when it relates solely to unprotected activity, the 4
Board’s precedents do provide support for at least the “focus closely” portion 5
of the standard the Board announced here. The employer’s questioning in 6
Fresh & Easy was permitted because it “focused on” and was “narrowly 7
tailored” to an investigation of unprotected harassment, and, to the extent 8
that the questioning touched on protected activity, it did so only because the 9
protected conduct was inextricably intertwined with the unprotected conduct 10
about which the employer could lawfully inquire. 361 N.L.R.B. No. 12, at *12. 11
Similarly, in HCA, coercive questioning about an employee’s unprotected 12
conduct, despite also touching on her protected concerted communications 13
with other employees, was permitted because it was impossible to separate 14
5 Time Warner also contends that Alton Box Board Co., 155 N.L.R.B. 1025
(1965), supports its position. But that case is inapposite. In Alton Box, the
Board permitted an employer to question an employee about conversations
related to a planned work stoppage because the interrogation itself was not
coercive, and thus, did not infringe on Section 7 protected activity. 155
N.L.R.B. at 1042. Here, in contrast, Time Warner does not argue—nor could
it—that the questioning of employees was not coercive.

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her protected motivations from her unprotected conduct. 316 N.L.R.B. at 931. 1
And in St. Louis Comprehensive Neighborhood Health Center, Inc., 248 N.L.R.B. 2
1078 (1980)—also cited by Time Warner—the Board permitted coercive 3
interrogation that was “peripherally related to union activities” because it 4
was “directed not at that protected and concerted activity,” of lawful 5
picketing but rather at unprotected “picket line misconduct” including 6
violence directed at other employees. Id. at 1087. Each of the cases supports a 7
standard requiring employers to carefully distinguish between unprotected 8
activity at which they may direct coercive questioning and protected activity 9
at which coercive interrogation may not be directed but on which, in some 10
circumstances, coercive interrogation may touch to a limited, incidental, or 11
peripheral extent. We therefore conclude that the first portion of the standard 12
enunciated by the Board, that an employer’s coercive interrogation must 13
“focus closely” on unprotected activity, has a reasonable basis in law and 14
does not depart from the Board’s prior interpretations of the Act. 15
On the other hand, it is less clear that there is precedent for the 16
remainder of the Board’s enunciated standard requiring employers to 17
“minimize” intrusion into Section 7 activity, Joint App’x 628, depending on 18

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the meaning the Board assigned to the ambiguous word “minimize.” 1
Dictionary definitions of “minimize” include both, “[t]o reduce to the smallest 2
possible amount, extent, size, or degree,” or simply, “[t]o reduce.” Minimize, 3
The American Heritage College Dictionary (4th ed. 2007). 4
In interpreting the “minimize” prong of its enunciated standard as 5
prohibiting inquiry into pre-demonstration activity except to identify 6
additional “actual participants in the demonstration,” Joint App’x 628–29, the 7
Board apparently employed the more restrictive alternate meaning of the 8
word—as the antonym of “maximize”—allowing questioning to touch on 9
protected activity no more than to “the smallest possible amount [or] extent,” 10
Minimize, The American Heritage College Dictionary (4th ed. 2007). This 11
application of the standard was a departure from the Board’s precedents. 12
As noted above, in HCA, Fresh & Easy, and St. Louis Comprehensive, 13
where, as in this case, the unprotected activity that was the legitimate focus of 14
the employer’s inquiries was potentially intertwined with protected activity, 15
such that any inquiry into the planning or motivation of the unprotected 16
activity inevitably risked eliciting answers that would bear on the exercise of 17
protected rights, the Board has previously allowed questioning that could 18

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elicit considerably more than the “smallest possible amount” of such overlap 1
into protected activity. 2
Had the Board’s standard employed “minimize” intending its less 3
extreme definition—merely “to reduce”—and required an employer to 4
demonstrate something like reasonable care to avoid excessive interference in 5
protected rights by closely focusing on unprotected conduct, while 6
nevertheless recognizing that some overlap might permissibly occur when the 7
unprotected conduct is intertwined with the exercise of protected rights, that 8
would have been consistent with the Board’s precedents in HCA and Fresh & 9
Easy. Both cases acknowledge that lawful coercive questioning properly 10
directed at unprotected conduct will sometimes unavoidably (and 11
permissibly) touch on some closely related protected activity to a limited, 12
incidental, or peripheral extent. Had the Board adopted this less restrictive 13
definition of “minimize,” its standard would also have been consistent with 14
St. Louis Comprehensive, in which the Board similarly required that coercive 15
questioning be “directed at” unprotected activity, while also permitting some 16
intrusion into the “peripher[y]” of protected union activities, where that 17
peripheral intrusion results from the proximity of the unprotected activity, 18

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which is the proper focus of questioning, to protected activity. See 248 1
N.L.R.B. at 1087. 2
Instead, the Board’s standard barred Time Warner from seeking 3
information of very high pertinence to its investigation of the unprotected 4
demonstration. By allowing no inquiry into any conduct preceding the 5
demonstration except to identify “actual participants,” the Board disallowed 6
highly relevant inquiry into identification of those deserving of discipline and 7
into making appropriate distinctions among them. For example, it prohibited 8
Time Warner from seeking to identify those most responsible for the 9
unauthorized stoppage because they suggested it, argued in its favor, or 10
solicited or directed others to participate in it, regardless of whether those 11
persons also participated in the stoppage. It also barred Time Warner from 12
seeking information that would distinguish between those employees whose 13
presence at the demonstration was less culpable, because they had attended 14
based on a belief that it was a meeting about workplace safety and Weingarten 15
rights, from those who were more culpable, because they attended for the 16
purpose of participating in the unprotected stoppage. 17

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The Board incorrectly contends that its ruling in Can-Tex Industries, 256 1
N.L.R.B. 863 (1981), supports its position. The ALJ’s decision in that case, 2
summarily affirmed by the Board, concluded that the dismissal of Billy Jester 3
constituted an unfair labor practice. Id. at 872. Jester had engaged in 4
concerted advocacy of a work stoppage to be accomplished by shutting down 5
certain manufacturing equipment that required complex, time-consuming 6
processes to restart, and by simultaneous striking and picketing. Id. at 864– 7
65, 870. 8
The first issue confronted was why Jester was fired. Jester contended 9
that he was fired because of his advocacy in support of the work stoppage, 10
while the employer contended he was fired not because of that advocacy but 11
because of unspecified misconduct and insubordination. Id. at 870. The ALJ 12
was persuaded that the employer’s claim of insubordination and misconduct 13
“constituted rationalization designed to develop a pretextuous reason for the 14
discharge of Jester.” Id. at 871. The ALJ rejected the employer’s explanation 15
and concluded that Jester was fired because of his advocacy in support of 16
conduct creating a work stoppage, all of which the ALJ found to be protected. 17

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Id. at 864–65, 870. Accordingly, the ALJ ruled that the discharge interfered 1
with rights protected by Section 7. 2
As a fallback position, the ALJ went on to rule that “even if the turning 3
off of equipment in a shutdown constituted unprotected conduct, when an 4
employee like Jester has engaged in concerted activity which is protected, 5
mere talk, as in this case, would not remove him from the protection of the 6
Act.” Id. at 872 (emphasis added). This is the portion of Can-Tex the Board 7
contends furnishes precedential justification for its ruling here that any 8
inquiry into pre-demonstration activity other than to identify actual 9
participants infringed on protected rights. 10
We respectfully disagree. The ALJ’s classification of Jester’s prior 11
advocacy, which predated the work stoppage by two months, as “mere talk” 12
at worst, and therefore protected even if the conduct he advocated would 13
have been unprotected, was specific to the facts of that case, as emphasized by 14
the words, “as in this case.” Id. The ruling did not purport to establish that 15
any and all verbal communication supportive of unprotected conduct is 16
protected, even from employer inquiry, regardless of the content of that 17
communication or the closeness of its relationship to the occurrence of the 18

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unprotected conduct. For example, Can-Tex does not stand for the 1
proposition that, if an employee exhorts co-workers to burn down the 2
employer’s building in protest against unfair wages, the employer is 3
prohibited from interrogating its employees to identify who advocated arson 4
against their property or from terminating the employee for that advocacy 5
simply because it was verbal and predated the demonstration. Can-Tex does 6
not furnish precedent for the proposition that any and all words spoken on 7
April 1 (whatever they may have been) supporting a work stoppage 8
automatically constituted “mere talk” and were protected not only from 9
disciplinary action but from questioning conducted so as to learn the facts of, 10
and assign responsibility for, an unprotected work stoppage. 11
The Board also contends that KQED, Inc., 238 N.L.R.B. 1 (1978), 12
provides precedential support for its ruling. 6 Once again, we disagree. 13
There, an employee, Richard Laskov, filed a ULP charge against his employer, 14
a network that produced the television show for which Laskov worked as a 15
cameraman, alleging that he was unlawfully discharged because he made 16
6 The Board also initially relied on Sunrise Senior Living, 344 N.L.R.B. 1246
(2005), and Tony Silva Painting Co., 322 N.L.R.B. 989 (1997), but, in a June 12,
2019 letter to the court, the Board disavowed reliance on those cases. See Dkt.
No. 102.

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comments that were arguably supportive of a work stoppage. Id. at 2. 1
Specifically, during a meeting in which the employer informed Laskov and 2
the rest of the show’s crew that certain film-editing work would be assigned 3
to a nonunion employee, which several employees viewed as a violation of 4
the contract between the union and the network, Laskov asked, “If you do 5
this, do you expect us to come to work tomorrow?” Id. When directed by a 6
supervisor to “stop these idle threats,” Laskov responded, “It’s not a threat.” 7
Id. The following day, Laskov apologized to the supervisor for “coming on ‘a 8
little strong’” and explained that, although his feelings about the assignment 9
of work to a nonunion employee had not changed, he regretted how he had 10
expressed them. Id. at 3. Laskov heard nothing further about the 11
conversation and believed the matter to be closed until one month later when 12
he was terminated. Id. 13
The Board summarily affirmed the ALJ’s ruling that Laskov’s conduct 14
in the meeting constituted protected concerted activity because it was in 15
protest of the employer’s assignment of work to a nonunion employee, it was 16
intertwined with similar protests from fellow employees related to the terms 17
and conditions of their employment, and it was designed to achieve 18

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32
compliance with the contract between the union and the employer. Id. In so 1
ruling, it rejected the employer’s argument that Laskov’s comment was 2
unprotected as a “rhetorical allusion to a work stoppage.” Id. 3
KQED offers no precedent in support of the Board’s ruling in this case. 4
The circumstances were quite different. No work stoppage ever occurred, the 5
employer never coercively interrogated the employee, and the comments at 6
issue—a two-line exchange arguably supportive of a hypothetical work 7
stoppage that never in fact occurred—did not necessarily resemble the 8
communications (unknown to Time Warner when it asked) into which Time 9
Warner inquired. As with Can-Tex, the Board’s ruling in KQED was about the 10
specific comments made in the specific circumstances of that case. KQED 11
does not stand for the proposition that any words spoken that have some 12
connection to a legitimate concern over rights protected by Section 7 are 13
necessarily protected. That case simply throws no light on whether Time 14
Warner improperly interfered with Section 7 rights in asking what had been 15
said about planning an unprotected work stoppage that took place the 16
following morning. 17

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In the absence of any supportive precedent, the Board’s standard 1
prohibiting Time Warner from questioning its employees about any subject 2
except actual participation in the April 2 demonstration lacks a reasonable 3
basis in law. It is not the Board’s use of the phrase “minimize intrusion” that 4
is problematic; it is the Board’s interpretation of that phrase to mean “avoid 5
virtually all intrusion,” thus barring Time Warner from asking reasonable 6
questions about conduct preceding the actual demonstration. 7
Time Warner had a legitimate investigatory interest in learning more 8
than the identities of those who “were actual participants” in the 9
demonstration. Employment of a standard that so narrowly constrained 10
Time Warner’s inquiry as to bar questions seeking any information other than 11
who were actual participants in the unprotected work stoppage compelled 12
the conclusion that Time Warner’s more open-ended questions interfered 13
improperly with Section 7 rights. Because that conclusion was arrived at 14
through use of an unsubstantiated standard, we hereby set aside the Board’s 15
conclusion, not because we have reached any determination about the 16
correctness of its result, but because the result was determined through use of 17
an unjustified standard (at least as narrowly interpreted by the Board here). 18

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The mere fact that planning of the unprotected work stoppage may have 1
occurred in conjunction with and alongside planning for a protected meeting 2
(or other protected communications) does not necessarily compel the 3
conclusion that the inquiry was an unlawful interference into protected 4
activity. Under the guidelines established by prior Board precedent reviewed 5
above, there were issues into which Time Warner could reasonably inquire, 6
even in coercive questioning, notwithstanding a risk that, because of the 7
proximity to protected activity, and the fact that Time Warner did not know 8
the answers to the questions it was asking, its questions might unintentionally 9
elicit information about protected activity. That was true, as discussed above, 10
in HCA, Fresh & Easy, and St. Louis Comprehensive. On remand, the Board 11
should determine, employing a standard consistent with its precedent, 12
whether Time Warner’s questioning interfered unreasonably with rights 13
protected by Section 7. 14
CONCLUSION 15
The ruling of the Board is hereby VACATED, and the matter is 16
REMANDED for further proceedings not inconsistent with this opinion. 17
18

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