NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Valerie Manor, Inc. and New England Health Care Employees
December 28, 2007
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
By Members Liebman, Kirsanow, and Walsh
On June 23, 2006, Administrative Law Judge Howard Edelman issued the attached decision. The Respondent filed exceptions and a supporting brief.1 The General Counsel filed cross-exceptions and a supporting brief, and an answering brief to the Respondent’s exceptions. The Respondent filed an answering brief to the General Counsel’s cross-exceptions.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the judge’s decision and the record2 in light of the exceptions,3 cross-exceptions,4 and briefs and has decided to affirm the judge’s rulings, findings,5 and conclusions6 as modified and to adopt the recommended Order as modified and set forth in full below,7 and finds that the election must be set aside and a new election held.8
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified below and orders that the
Respondent, Valerie Manor, Inc.,
1. Cease and desist from
(a) Coercively interrogating any employee about their union sympathies.
(b) Threatening employees with facility closure, layoffs, job loss, loss of benefits, or other unspecified reprisals if they select the New England Health Care Employees Union, District 1199, SEIU, as their representative.
(c) Soliciting employees to revoke their union authorization cards.
(d) Threatening employees that unionization would be futile.
(e) Threatening employees that a strike would be inevitable
if they selected the
(f) Threatening to withhold a wage increase because of union activity.
(g) Promising to grant employee benefits if the employees
do not select the
(h) Using employee signatures on an antiunion petition without their consent.
(i) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in
(b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among the employees in the unit found appropriate, whenever the Regional Director deems appropriate. The Regional Director shall direct and supervise the election, subject to the Board’s Rules and Regulations. Eligible to vote are those employed during the payroll period ending immediately before the date of the Notice of Second Election, including employees who did not work during the period because they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an economic strike that began less than 12 months before the date of the election directed herein and who retained their employee status during the eligibility period and their replacements. Those in the military services may vote if they appear in person at the polls. Ineligible to vote are employees who have quit or been discharged for cause since the payroll period, striking employees who have been discharged for cause since the strike began and who have not been rehired or reinstated before the date of the election directed herein, and employees engaged in an economic strike that began more than 12 months before the date of the election directed herein and who have been permanently replaced. Those eligible shall vote whether they desire to be represented for collective bargaining by the New England Health Care Employees Union, District 1199, SEIU.
To ensure that all eligible voters have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses that may be used to communicate with them. Excelsior
Underwear, 156 NLRB 1236 (1966); NLRB
v. Wyman-Gordon Co., 394
Dated,
______________________________________
Wilma B. Liebman, Member
______________________________________
Peter N. Kirsanow, Member
______________________________________
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not coercively question you about your union sympathies.
We will not threaten you with facility closure, lay offs, job loss, loss of benefits, or other unspecified reprisals if you select the New England Health Care Employees Union, District 1199, SEIU, as your representative.
We will not solicit you to revoke your union authorization cards.
We will not threaten you that unionization would be futile.
We
will not threaten you that a strike would be inevitable if you select
the
We will not threaten to withhold a wage increase because of union activity.
We
will not promise to grant employee benefits if you do not select the
We will not use employee signatures on an antiunion petition without their consent.
We will not in any other manner interfere with, restrain, or coerce you in the exercise of the rights set forth above.
Valerie Manor, Inc.
Jennifer F. Dease, Esq., for the General Counsel.
Hugh F. Murray III, Esq. and Michael C. Harrington, Esq., for the Respondent.
Kevin A. Creane, Esq., for the Charging Party.
DECISION
Statement of the Case
Howard Edelman,
Administrative Law Judge. These cases were
tried in
Respondent filed timely answers to the two complaints. In its answers, Respondent admitted the
commerce allegations, the
Findings of Fact
i.
jurisdiction
At all material times, Respondent, a corporation with an office
and place of business in
At all material times, Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and has been a health care institution within the meaning of Section 2(14) of the Act.
At all material times, the
At all material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of Respondent within the meaning of Section 2(11) of the Act and agents of Respondent within the meaning of Section 2(13) of the Act:
|
Joseph Colaci |
Acting Administrator |
|
Denise Quarles |
Administrator |
|
Maureen Markure |
Assistant Director of Nurses |
|
Lillian Ciesco |
Director of Admissions |
|
Linda Orlowski |
Director of Social Services |
|
Darryl Davis |
Director of Resident Support
Services |
|
|
Chef Manager |
|
Nancy Berube |
MDS Coordinator, Head Nurse |
|
Susan Maches |
Registered Nurse |
|
Bonny Hendrick |
Registered Nurse |
|
Tami Chevrier |
Charge Nurse |
|
Bill Thomas |
Financial Director of
Nursing Home Operations, Athena Healthcare |
|
Dee Rosetti |
Employee Relations Advocate,
Athena Healthcare |
|
Doreen Christiano |
Admissions Coordinator, Brookview
Health Care Facility |
|
Melissa Moran |
Social Worker |
Respondent’s facility is managed by Athena Healthcare
which manages a number of healthcare facilities including Brookview Nursing
Home, also located in
ii.
credibility
I credit all of the General Counsel’s witnesses.
I was impressed with the General Counsel’s witnesses’ overall demeanor. These witnesses were most responsive and forthright during both direct and cross-examination. Moreover, they made admissions against their interest when their cross-examination conflicted with their pretrial affidavits. These differences were restricted to the words “would” or “could,” which I have found in this case that such differences were immaterial and reflected threats.
Further their testimony, especially during meetings was essentially
corroborated by other employees. For
example, a number of employees testified that during the first meetings conducted
by Joseph Colaci as to different large sums of money he was willing to spend to
keep the
Moreover, all of the General Counsel’s witnesses were employed by Respondent during the course of the trial. In Conair Corp., 261 NLRB 1189, 1266 (1982), the judge set forth:
As employees of Respondent their testimony was given at considerable risk . . . and is not likely to be false.
The judge’s credibility findings were upheld by the Board.
If there were any inadvertent specific failures on my part to make a credibility resolution, such credibility resolutions were implicitly set forth in my resolution and analysis of all of the complaint violations. Amber Foods, Inc., 338 NLRB 712, 713 fn. 7 (2002).
iii.
credibility of respondent’s witnesses
I found Respondent’s witnesses not credible.
Respondent witnesses, especially Joe Colaci and Bill Thomas testified in generalities.
The supervisor presenters of the slide shows had virtually no recollection of their statements to employees between the slides, as contrasted with the specific testimony of employees. Moreover, virtually no Respondent witness contradicted the General Counsel’s witnesses, especially in the slide show with testimony, with the exception of broad-leading questions which I have totally rejected as relevant evidence. Such leading questions by Respondent’s attorneys often they were unable to remember any conversations with employees were, “Did you threaten anyone . . . did you interrogate anyone?,” etc., to which Respondent’s witnesses answered no.
Further, a number of Respondent’s witnesses did not appear at the trial to give relevant and corroborative testimony. No explanation was given by Respondent why they did not appear.
Detailed discussions as to the credibility of the witnesses are set forth below:
Facts of the Case
Rena Bailey is employed as a certified nurse’s assistant, CNA. She works the 3 to 11 p.m. shift. She works at the Skyview and Meadowview sections of Valerie Manor.
Some time in late February after the
Colaci stated that he heard that we signed union cards and
he wished that we would ask the
I find Colaci’s solicitation to ask employees for union
signed cards is a violation of Section 8(a)(1) of the Act. Mohawk
Industries, 334 NLRB 1170, 1171 (2001), which states that as a general
rule, an employer may not solicit employees to revoke their union cards . . .
in an atmosphere where employees would tend to feel peril in revoking union
cards. Such atmosphere was created by
Colaci’s statements, set forth above and below, to the effect that he would
spend as much money and do whatever was necessary to keep the
Bailey also testified that Ciesco said that in Adams
House, managed by Athena, located in a neighboring town, was down 20 beds
because of the
The General Counsel also contends that Ciesco threatened
employees with a loss of customers if they selected the
The Supreme Court described the balance between employer free speech rights as codified by Section 8(c) and employees’ Section 7 rights in NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969).
[A]n employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.’ He may even make a prediction as to the precise effects he believes unionization will have on his company.
In Stanadyne, Binkus, an employee and agent, explained that a striker at another Stanadyne plant resulted in the death of a guard who was struck in the head during an altercation with the union employees, stating:
The action we take as individuals does, at times, result in something completely unplanned. Let’s not let any unplanned action take place here. Violence, threats, intimidation, and a death are not things that happen just on TV or something you read somewhere about another company. They happened at UAW locations at former Stanadyne facilities.
The Board held that:
To the extent that the Respondent’s message may be construed as a ‘predication’ of the effects of unionization, in spite of its assurances to the contrary, we find that its statements were ‘carefully phrased on the basis of the objective fact to convey [the Respondent’s] belief as to demonstrably probable consequences beyond [its] control.’
In TNT Logistics North America, 345 NLRB 290 (2005), the Board stated:
With regard to the supervisor’s statement that ‘if the
Counsel for the General Counsel contends that in Stanadyne the Board stated:
Further, the speakers [of Stanadyne] repeatedly made clear
that they were not making threats or predictions about the future, but rather,
presenting ‘facts and recollections about actual events.’ By providing ‘concrete examples[s] of a
negative outcome for employees who were represented by the same union that
seeks to represent’ the Respondent’s employees, the Respondent ‘made no prediction
at all.’
However this paragraph was merely a further, or moreover position, and not essential to the Board’s decision.
Accordingly, I find Ciesco’s statements are based upon objective considerations, and upon a reasonable prediction.
Bailey also testified that Ciesco stated that if we did
become union, the
I conclude Ciesco’s statement constitutes a threat to
strike and loss of jobs in violation of Section 8(a)(1). See Heartland
of
A day or so following Colaci’s appointment as administrator
of Respondent, Colaci testified he met with the employees in the Pineview of
Valerie Manor. He had a number of meetings
in the Pineview so that all the employees could appreciate his position. Colaci testified he told the employees at
each meeting pretty much the same thing.
Colaci told the employees that it was his belief that unions did not
belong in health care, and that we would work hard to keep Valerie Manor nonunion. During these meetings I would tell the employees
that I was willing to spend $100,000 to keep Valerie nonunion. Colaci testified that during these meetings,
employees asked questions about revoking their union authorization cards. And Colaci responded that they could go to the
I find by Colaci’s statement to the effect that he would do whatever he had to do to keep the Union out, coupled with his asking his employees to get their union cards back, again unlawfully solicited his employees at this meeting to get their signed union cards back in violation of Section 8(a)(1). See Mohawk Industries, supra.
Colaci’s statement that he would do anything necessary to keep the union out is also an implied threat of unspecified reprisals. See Gravure Packaging and Soltech Inc., supra.
Colaci also told the employees that other nursing homes closed because of unions. I do not find this to be a violation. See Stanadyne, supra.
On or about February 28, Kathy Carey, Tammy Robison, Dianne Sullivan, and Carolyn Clark attended a meeting conducted by Colaci in the Pineview dining room. About 15 employees attended the meeting.
I find this statement to be an unlawful promise of benefits, in violation of Section 8(a)(1). K-Mart Corp., 336 NLRB 455, 472 (2001).
I find these statements to constitute a threat of futility and violative of Section 8(a)(1). Gravure Packaging and Soltech, supra.
Diane Sullivan, a CNA, testified that Colaci said that he
didn’t blame us for calling the Union, but he would like us to revoke our cards
that we had signed for the
I also find Colaci’s statement that he didn’t want Respondent to be union coupled with the statement that he couldn’t talk about money constitutes a promise of benefits and is a violation of Section 8(a)(1). See K-Mart Corp., supra.
Tammy Robison, a CNA, testified that Colaci stated that he
didn’t blame us for calling the
I find Colaci’s statement about revoking signed union cards is a violation of Section 8(a)(1). Mohawk Industries, supra. I also find his statement that “he couldn’t talk about money until after the Union,” coupled with his statement about revoking the signed union cards is an implied promise of raises once the Union is out of the picture and is violative of Section 8(a)(1). See K-Mart Corp., supra.
Lillian Ciesco, director of admissions, also spoke to a group of employees. Robison testified that Ciesco stated that family members who were considering placing their loved ones at Adams House were asking whether the facility was Union before they would make a decision concerning putting their loved ones. Ciesco also said Adams House had 20 empty beds.
The General Counsel contends that Ciesco’s statement
clearly implies that what happened to Adams House, which was Union, would
happen to Respondent if the
As set forth above, Colaci had similar meetings with different
groups of employees concerning the advent of the
I find Colaci’s statement about his knowledge of employees signing union cards and that he didn’t want a union in Respondent’s facility, his statement to pay hundreds of thousands of dollars to keep the Union out constitutes an unlawful solicitation that the employees should not sign union authorization cards or to revoke signed cards, and is a violation of Section 8(a)(1). See Mohawk Industries, supra. I also find Colaci’s statement that he knew about employees signing union cards is surveillance in violation of Section 8(a)(1).
I also find that Colaci’s statement about paying hundreds
of thousands of dollars to keep the
Employees Joan Champagne, Marsha Deming, and Danielle
Robison, kitchen employees, met with Colaci, Joe DeVito, administrator at
Athena, and Theresa Meyers, supervisor, sometime in late February.
I find no violation in connection with Colaci’s or DeVito’s
statement concerning another facility had closed because of the
Marsha Deming, an aide, testified that Colaci told
employees that he didn’t want a union in the place and that he would spend
$100,000 and that the place would close. He also stated he would take out a second mortgage
on his home to keep the
I find Colaci’s statement to be a threat to close the facility and an implied threat of unspecified reprisals. Gravure Packaging and Soltech, Inc., supra.
With regards to the threat of closure of the facility, Respondent’s statements regarding plant closing that might result from unionization are also evaluated within the “total context” in which they appear, under standards established by the Supreme Court’s Gissel decision. Such statements have sometimes, but rather seldom, been found to be predictions “based on objective fact.” Far more commonly, the Board has deemed them coercive threats. In Atlas Microfilming, 267 NLRB 682 (1983), for example, the Board found a violation where a supervisor told all the employees in her department that the plant would close if the employees selected the union. See also Highland Yarn Mills, 313 NLRB 193, 206, 209 (1993).
Robison testified that Colaci stated he heard a union was
coming in and he didn’t want it in there. He said he had stock in Valerie and if Valerie
Manor were to go union his stock would be no good. It would be devalued. He said he would fight to the end and would
pay $80,000 to $100,000 to prevent the Union from coming in and that the
I find this statement a threat of futility in violation of Section 8(a)(1).
Deming and Robison also testified that Colaci stated he
would spend $100,000 and if necessary he would take out a second mortgage and
he would fight to the end. I find these
statements express a futility of supporting the
Joan Champagne, a CNA, testified that either Colaci or DeVito
stated that another facility owned by Athena had closed because of the
Darla Jacobs, a CNA, testified that Supervisor Darryl Davis
told her that Colaci wanted to meet with her. Jacobs had missed the general meetings
discussed above. During this meeting
Jacobs testified that Colaci said he knew the employees were upset; he knew
that union cards were being passed out, and said the
I find Colaci’s statement that he would spend up to $100,000 to keep the Union out, that he had a mortgage and bills to pay and there was no money, that’s all they had, to be violative of Section 8(a)(1), an unlawful statement of futility. See Gravure Packaging and Soltech, Inc., supra.
During the meetings described above neither Colaci, Ciesco,
or DeVito denied any of the statements
described above.
Darla Jacobs testified that she had a conversation with Bonnie
Hendricks, a registered nurse, and an admitted supervisor within the meaning of
2(11) of the Act, on or about February 26.
During this conversation Hendricks told Jacobs “What do you think about
the Union stuff going on?” Jacobs testified that she was an adult, that she
would hear both sides and that she would make a decision. Hendricks then stated Athena would close the
place if the
Respondent did not call Hendricks as a witness.
However, I find Hendrick’s statement that “Athena would
close the place if the
Additionally, I find Hendrick’s statement “What do you think about the Union stuff going on?” to be an unlawful interrogation. As the General Counsel points out in her brief, such interrogation was accompanied by an unlawful threat. Accordingly, I find such interrogation a violation of Section 8(a)(1). See Hoffman Fuel Co., 309 NLRB 327 (1992); Rossmore House, 269 NLRB 1176 (1984), affirmed 760 F.2d 1006 (9th Cir. 1985).
Diana DuPont, a CNA, was employed by Respondent for 3
years working the night shift. DuPont
testified she had a discussion with Nancy Berube, an admitted supervisor, in
the Skyview section of Valerie Manor. CNA’s
Ellen Dalene and Irene Pisarcyk were present. DuPont testified that Berube asked them what
they thought about the
Berube admitted that she had a conversation with Dalene, Pisarcyk, and DuPont sometime between late February and March 7. Berube testified that she told them about an instance where she worked in another building and it became unionized and eventually it closed down. She did not name the facility. I find no violation in this connection. See Stanadyne, supra.
Tammy Robison testified that after their general meeting
with Colaci, she and Dianne Sullivan and Carolyn Clarke met with Supervisor
Tammy Chevrier. Robison testified that
Chevrier stated Valerie Manor would never accept the Union and if the
I find Chevrier’s statement is a direct threat to close
Respondent’s facility if the
Deming testified that the employees would take their
breaks in an area in back of the facility.
There is a back doorway and two small picnic tables where the employees
could congregate and smoke. Deming
testified that before the
Deming admitted that Davis and Steponitis are smokers, that the area in the back parking lot where the picnic tables are located is the only area where smoking is permitted, and that Davis and Steponitis would smoke at the tables or by the doorway. Neither Davis or Steponitis spoke to any of the employees during these breaks.
Steponitis admitted that he smoked either at the back door or at the picnic tables and that this practice was the same before the union campaign and after.
I conclude there is insufficient evidence to establish unlawful surveillance.
Post Petition
On March 7, the
At some point in time after the
Unlawful 8(a)(1) Statements Made by Supervisors
Between Slide Show
Respondent held a power point presentation on March 22, 2005, at 1:30 p.m. The presenters were Linda Orlowski and Theresa (Tree) Meyers. It should be noted that Orlowski conducted a number of slide show meetings. Pursuant to Respondents direct examination Orlowski could not recall any of the conversations with employees at any of the meetings she conducted. Through Respondent’s attorney’s leading questions, Orlowski simply testified “no” as to Respondent’s witnesses’ testimony relating to alleged 8(a)(1) conduct. For example, Respondent’s counsel would ask a leading question like “Did you ever threaten any employees?” The answer was always “No,” etc.
Meyers did not testify.
Dianne Sullivan credibly testified that Orlowski stated “If
we went out on an economic strike we won’t receive pay, unemployment benefits
and our health coverage would end.” Sullivan
further testified that Orlowski also stated “The Union doesn’t care about
families or residents, and that we would lose everything.” I find such statement to be a threat to lose
benefits and wages and a clear violation of Section 8(a)(1). See Pembrook
Management, 296 NLRB 1226, 1239 (1989).
In Pembrook, the Judge found a
statement “If the
Sullivan also testified that Orlowski stated, “We are a
family at Valerie (Respondent). Give us
six months to improve.” I find that such
statement especially coupled with the above threat of “losing everything” is an
implied promise of improved benefits.
Sullivan further testified Orlowski stated “With a Union we won’t be able to bend the rules.”
The General Counsel contends the “bend the rules” statement is violative of Section 8(a)(1). I do not find such statement to be a violation of Section 8(a)(1). See Pembrook Management, supra at 1227, where the Board cited Tri-Cast, Inc., 274 NLRB 377 (1985), involving exactly the same conduct, and concluded such conduct “is nothing more or less then permissible conduct.”
Jacobs testified that a slide show was conducted on March 23 at 10 a.m. and 11 employees attended. Lillian Ciesco and Melissa Moran took turns reading the slides which were projected on a screen. Ciesco and Moran made comments between reading the slides. Jacobs testified that Moran said we can check the financial records with Colaci, that Respondent has no money, and that Ciesco and Moran said that if there was a strike we “could” lose our jobs.
Moran did not testify and although Ciesco testified, she
could not recall any conversation employees raised concerning the
I find the statements by Ciesco and Moran establish a
threat of the inevitability of a strike which would cause the employees to lose
their jobs. Heartland of
In connection with the phrase “if there was a strike we ‘could’
lose our jobs.” it is well settled that a prediction of plant closure as a
possibility rather than a certainty is violative of the Act. Daikichi
Corp., 335 NLRB 622, 624 (2001); McDonald
Land & Mining Co., 301 NLRB 463, 466 (1991). Indeed in Gissel, 395 U.S. 575, 616–620
(1969) itself, where the standards for evaluating the lawfulness of predictions
of adverse consequences based on the Union’s appearance were formulated, that
if the employer stated that a strike, “could lead to the closing of the plant,”
violated Section 8(a)(1) as a threat to strike.
Moreover, in the instant case the alleged threat that “if there was a strike we could lose our jobs.” was not followed by the Laidlaw reinstatement rights.1
On March 23, a meeting was conducted at 1:30 p.m. Orlowski and Jodie O’Brien conducted this meeting. Seven employees attended this meeting.
Tammy Robison testified that Orlowski stated that we would have to pay union dues, and they could change the assessment of dues whenever they wanted to; that negotiations with the Union could take 2 years and the parties could reach an impasse, and if it went to impasse you could be forced to strike; you could lose your job, and your house.
Kathy Carey testified that Orlowski said they wouldn’t be
able to help us with our jobs if we had a Union, that we would have to have to
start paying dues after the election, that we would be forced to strike if the
Orlowski admitted that she conducted the above meeting with O’Brien but had no recollection as to what she, O’Brien or any of the employees attending the meeting said. Orlowski was unable to recall any questions put to her or responses she might have made to employees. Pursuant to the usual leading questions, she denied any unlawful conduct. O’Brien did not testify.
Robinson and Carey credibly testified that Orlowski stated
negotiations with the
They also testified Orlowski’s statement about impasse which I found unlawful coupled with the statement that you could be forced to strike, lose your job and your house constitutes a clear threat that the employees would have to inevitably strike and lose benefits and their home. See Gissel Packaging and Heartland of Lansing Nursing Home, supra.
On March 24 at 10 a.m., another slide show was conducted
by Orlowski and Ciesco. Eleven employees were present. Mary Roberts, a CNA, credibly testified that
following the slide show Orlowski stated that “If you vote in favor of the
Union on Thursday a
Employee Marsha Deming testified that Ciesco stated that
outside individuals considering placing their loved ones in Valerie Manor would
call the Manor and ask if the facility was
Ciesco also threatened employees that union homes went out of business because they were unionized. Ciesco cited Adams House as an example. In this connection she stated that 20 beds were down at Adams House.
I find such statements not to be violative of the Act. See Stanadyne, supra.
On March 24 at 11:30 a.m., a meeting was conducted by Nancy Berube and Tree Meyers, three employees were present at this meeting. Diana DuPont testified that at some point during this slide show Berube stated that if Valerie Manor became unionized the employer would have to sell.
Berube was not questioned by Respondent’s counsel concerning this meeting. Meyers did not testify.
I find this a clear coercive threat to close Respondent’s facility. See Gissel Packaging and Atlas Microfilming, 267 NLRB 682, 687 (1983).
March 28–April 2 Meetings
During this period Respondent presented its second slide show entitled “collective bargaining.”
On March 29 at 10 a.m., Respondent conducted its slide show. The meeting was conducted by Linda Orlowski and Andy Sebastian, director of maintenance. Slides would be read and in between slides or groups of slides Orlowski and Sebastian would answer questions and engage in conversations with the employees between slides.
In connection with slides relating to collective
bargaining Jacobs testified that during this meeting Sebastian stated that if
we go to negotiations we could lose less than we already went in with. Orlowski stated that we could lose the benefits
that we already have if the
Orlowski testified she was unable to recall questions put to her by employees or any responses she might have made to employees at any of the slide shows she presented. Pursuant to the usual leading questions put to her by Respondent’s attorney she denied that neither she nor Sebastian made any unlawful statements.
I find Orlowski’s statements concerning the loss of
benefits if the
A meeting was scheduled on March 29, 1:30 p.m., and conducted
by Ciesco and O’Brien. Nine employees
were present. Mary Roberts testified
that this meeting was about benefits.
Both Ciesco and O’Brien read the slides and made comments in between
slides. Roberts testified that O’Brien
stated that if you voted for the
Ciesco testified that she did not recall conducting the meetings during the week of March 28 through April 2, and that she did not recall any comments made by her copresenters. Respondent’s attorney made the usual leading questions and solicited that neither she nor her copresenters stated anything during these meetings that could be considered unlawful conduct.
O’Brien did not testify.
I find O’Brien’s statement constitutes a threat of loss of benefits and
a violation of Section 8(a)(1). See Pembrook Management and
A formal slide
show meeting was held on March 31 at 8 p.m.
The meeting was conducted by
Orlowski and Meyers. Three employees attended. Bailey testified that they had a slide show,
and they talked about Unions, particularly a glass company that was
As set forth above, Orlowski was unable to recall questions put to her by employees or any responses she may have made to employees. Again the same leading questions by Respondent’s attorney denied any unlawful conduct. Meyers did not testify.
I find Meyer’s statement concerning loss of benefits violates Section 8(a)(1). See Pembrook Management and Superior Emerald Park Landfill LLC, supra.
Slide Show April 5–9
A formal slide meeting was conducted on April 5 at 10 a.m.,
by Quarles and Orlowski and eight employees attended. Jacobs testified that Orlowski stated we were
getting wrong information from the
Orlowski could not recall any statements that she or Meyers made during this slide show. Quarles did not testify. Pursuant to the usual leading questions by Respondent’s attorney Orlowski denied any unlawful conduct.
Carey credibly testified that Sebastian stated that if we
joined the
Carey also testified that Thomas stated if the Union came
in, they would not negotiate with the
On April 6 at 10 a.m., another slide show was conducted by Bill Thomas, Doreen Christiano, and Quarles. Twelve employees were present.
Following the slide show Carey testified that Thomas
stated that Brookview had laid off 22 employees because they got a Union and
that 1199 didn’t care about those employees; he stated that they had to close a
unit in Brookview because they had the
On April 6, a slide show meeting was held conducted by Thomas Christiano and Quarles.
Carey testified that Thomas told the employees at the meeting
that Brookview, a nursing home managed by Athena, laid off 22 workers because
they, Brookview, were represented by the
For the reasons set forth above, I find no violation. See Stanadyne, supra.
On April 6, another slide show meeting was held at 11
p.m. The meeting was conducted by
Thomas, Quarles, and Christiano. Thomas told employees at this meeting that
Brookview lost 2-1/2 million dollars since it became unionized; that it lost
sick days, and vacation days, and that Brookview laid off 22 employees and 68
beds were vacant because people did not want to go to Brookview because it was
unionized. I find that by such
statements Respondent was implying that whatever happened at Brookview would
happen to Respondent’s employees if they solicited the
DuPont also testified that Thomas told the employees that
in the past when Respondent only received 1 percent from Medicare they still
gave the employees a 2-percent raise. Thomas
also stated that if Respondent received the 4-percent in funds from the State
of