American Red Cross Missouri-Illinois Blood Services RegionDownload PDFNational Labor Relations Board - Board DecisionsJun 5, 2006347 N.L.R.B. 347 (N.L.R.B. 2006) Copy Citation AMERICAN RED CROSS MISSOURI-ILLINOIS BLOOD SERVICES REGION 347 NLRB No. 33 347 American Red Cross Missouri-Illinois Blood Services Region and Local Union No. 682, International Brotherhood of Teamsters.1 Cases 14–CA–27956 and 14–RC–12500 June 5, 2006 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On February 14, 2005, Administrative Law Judge Bruce D. Rosenstein issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel and the Charging Party each filed an- swering briefs, and the Respondent filed reply briefs to each. The General Counsel filed cross-exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions as modified and to adopt the recommended Order as modi- fied and set forth in full below.3 The judge addressed multiple unfair labor practice al- legations in this case; he found merit in some and dis- missed others.4 In addition, he sustained the Union’s Objection 14, in part. Based on his unfair labor practice 1 We have amended the caption to reflect the disaffiliation of the In- ternational Brotherhood of Teamsters from the AFL–CIO effective July 25, 2005. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 We shall modify the judge’s recommended Order to conform to our findings. We shall also substitute a new notice in conformity with the Order as modified. 4 No exceptions were filed to the judge’s dismissal of 8(a)(1) allega- tions that (1) the Respondent threatened to withhold a pay increase from employee Judy Allen; (2) Senior Director of Donor Services Michelle Langley solicited employee grievances, promised to remedy grievances, and threatened loss of jobs and pay; (3) Supervisor Patricia Lasater and Recruitment Manager Lisa Wilson stated that it would be futile to elect the Union and solicited and promised to remedy griev- ances; (4) Langley threatened plant closure, withholding of pay in- creases, and loss of benefits; (5) Lasater and Wilson threatened loss of pay increase; (6) Lasater created an impression that employees’ union activities were under surveillance, interrogated an employee, told an employee that the employee could not be trusted because of her union activities, and solicited an employee to sign an antiunion petition; (7) Lasater and Wilson interrogated an employee. Nor did any party ex- cept to the judge’s decision to overrule union Objection 12. findings and Objection 14, the judge recommended set- ting aside the election and ordering a second election. We agree in part, and disagree in part, with the judge’s decision. We adopt the judge’s findings that the Respondent vio- lated Section 8(a)(1) by coercively interrogating em- ployee Judy Allen and violated Section 8(a)(3) and (1) by isolating employees Jerri Thompson, Nicole Bishop, and Catherine Pendleton because of their union activities. A majority of the Board (Chairman Battista and Member Liebman) additionally finds that the Respondent unlaw- fully harassed Thompson because of her protected activi- ties. A different majority, comprised of Chairman Bat- tista and Member Schaumber, (1) affirms the judge’s dismissal of allegations that the Respondent threatened to freeze wages,5 (2) reverses the judge’s finding that the Respondent violated Section 8(a)(1) by soliciting em- ployees’ grievances; (3) agrees with the judge, for the reasons set forth below, that the Respondent did not maintain an overly broad no-solicitation policy; and (4) overrules union Objection 14.6 For reasons explained at other points in this decision, Member Liebman dissents from the Board’s dismissal or overruling of all four of these allegations.7 Based on the entirety of the Respon- 5 We adopt this dismissal for the reasons stated by the judge. We emphasize that we found the exact same language to be lawful in Man- trose-Haeuser Co., 306 NLRB 377 (1992). We find no meaningful distinction between this case and Mantrose-Haeuser. We note that the Respondent’s pamphlet stated that “wage . . . programs,” not “wages,” typically remain frozen during bargaining. Employees would reasona- bly interpret the pamphlet to mean that the Respondent would continue its wage programs, including its program of granting a wage increase every July. Employees could not reasonably interpret the pamphlet as communicating that the Respondent would depart from its wage pro- grams by canceling the July increase. The fact that other conduct was unlawful does not change the reasonable reading of this pamphlet. 6 The Union withdrew Objections 5, 10, 15, 16, and 17 before the Acting Regional Director issued his Report on Objections. Objections 1–4, 6–9, and 11–13 are coextensive with the unfair labor practice allegations. We sustain Objection 4 (coercive interrogation of Allen) and Objection 6 (discriminatory isolation of Thompson, Bishop, and Pendleton). There was no objection filed that corresponds to our find- ing that the Respondent unlawfully harassed Thompson. We overrule the remaining objections consistent with our decision to dismiss the corresponding unfair labor practice allegations. 7 Member Liebman dissents from the majority’s dismissal of the al- legation that the Respondent unlawfully threatened to freeze the em- ployees’ wages during the bargaining process. The Respondent’s prac- tice was to grant predetermined wage increases every July, following the yearly employee evaluations and training. The Respondent stated in a campaign flyer shortly before the election that: “While bargaining goes on, wage and benefit programs typically remain frozen until changed, if at all, by contract. If the Union wins, You [sic] take the risks . . . you will have to ‘wait and see’ if anything happens to wages and benefits.” In contrast to the majority, Member Liebman concludes that employees could reasonably interpret the campaign flyer’s state- ments that “wage and benefit programs typically remain frozen” and that employees would “have to ‘wait and see’ if anything happens to DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD348 dent’s unlawful conduct, we will set aside the July 8, 2004 election and direct a second election.8 I. BACKGROUND American Red Cross Missouri-Illinois Blood Services Region (the Respondent) operates a network of fixed and mobile facilities to collect blood from donors. Teamsters Local 682 (the Union) filed an election petition on March 26, 2004,9 seeking to represent the Respondent’s blood- collection employees. The election was held on July 8. The tally of ballots shows 102 for the Union, 118 against, and 1 nondeterminative challenged ballot. The Union filed timely objections. II. THE RESPONDENT’S UNFAIR LABOR PRACTICES A. We agree with the judge, for the reasons set forth in his decision, that the Respondent violated Section 8(a)(1) by coercively interrogating employee Judy Allen and violated Section 8(a)(3) and (1) by isolating employ- ees Thompson, Pendleton, and Bishop because of their union activities. These violations occurred shortly after the petition was filed, in response to the Union’s organiz- ing campaign. On April 18, approximately 3 weeks after it filed the petition, the Union held an organizing meeting. Em- ployee Judy Allen attended that meeting. The next day, Allen’s supervisor, Robert Nemec, telephoned Allen at home before her shift and directed Allen to meet that day wages” to mean that the July wage increase, to be made pursuant to the wage program, would be withheld: i.e., that existing wages would be “frozen” as part of the program. This interpretation would tend to be reinforced by the Respondent’s other unfair labor practices and objec- tionable conduct. In dismissing the allegation, the judge relied on the Board’s decision in Mantrose-Haeuser Co., in which the Board found that the identical language did not constitute a threat in violation of Sec. 8(a)(1) “in the circumstances presented.” The Board observed that “there were no other allegations of unfair labor practices or objectionable conduct.” Id. at 377. 306 NLRB 377, 378 (1992). Moreover, as the Board noted, the employer in Mantrose-Haeuser assured its employees that it would continue its past process of granting a December wage increase. In contrast, here the Respondent not only failed to reassure its employees that it would grant its customary merit increases in July, but also com- mitted numerous unlawful acts contemporaneously with its circulation of the flyer. Under these circumstances, Member Liebman would find that the Respondent’s flyer constituted an implied threat to freeze wages in the event of a union victory and violated Sec. 8(a)(1). As such, it should serve as an additional ground on which to set aside the election. 8 Member Schaumber agrees that the election must be set aside and a second election directed based on the Respondent’s unlawful and ob- jectionable isolation of Thompson, Bishop, and Pendleton, which commenced shortly after they testified at a representation hearing and which was published to unit employees on posted work schedules. He does not rely on the so-called “harassment” of Thompson because, for the reasons set forth in his partial dissent, he finds that the Respon- dent’s conduct in that regard did not violate the Act. 9 All dates are in 2004, unless noted otherwise. with Interim Director of Collections Rachelle Wiedman. During the meeting, Wiedman asked Allen if she knew of anybody who attended the April 18 union meeting, whether Allen was going to vote for the Union, and who had influence over the votes. Wiedman also asked Allen whether she had attended the union meeting. Allen falsely responded that she had not attended the union meeting. Wiedman also told Allen that “it did not mat- ter[] if we got this particular union in anyway because things would not change; not much would change, as far as work, the work environment.” Shortly after the Respondent unlawfully interrogated Allen, it discriminatorily isolated employees Jerri Thompson, Nicole Bishop, and Catherine Pendleton from other employees because of their union activities. Thompson, Bishop, and Pendleton, who were open union adherents, attended the representation hearing between April 15 and 20. Pendleton and Thompson testified on behalf of the Union at that hearing. The Respondent’s agents observed them testify. Thompson was also a known union spokesperson who discussed the benefits of unionization with employees and passed out union au- thorization cards. In two separate conversations in April, Scheduling Manager Helen Gwin instructed scheduler Gayle Hinklin to schedule Thompson, Bishop, Pendleton, and Marie Stratton together (and apart from other employees) “to keep them from infecting the others.”10 Gwin directed Hinklin to schedule them together “until I tell you differ- ently.” Between April 26 and 30, the Respondent sched- uled Bishop, Pendleton, Thompson, and Stratton together (and apart from the other employees) every day that they were scheduled to work. The Respondent also scheduled these employees in this fashion on 19 occasions in May, 20 occasions in June, 15 occasions in July, 19 occasions in August, and 9 occasions in September.11 The judge found, and we agree, that the Respondent affected a term or condition of employment when it changed the schedules of Thompson, Bishop, and Pen- dleton, isolating them from other employees.12 10 The complaint does not allege that the Respondent discriminated against employee Stratton. Stratton was a union supporter and served as an observer for the Union at the July 8 election. 11 The Respondent concedes that it began scheduling the alleged dis- criminatees together more often shortly after the representation hearing. Thus, between January 2 and April 25, the Respondent never scheduled all three alleged discriminatees together, and it scheduled two of the three alleged discriminatees together only three times per month, on average. The alleged discriminatees worked with many other employ- ees during this time period. 12 See Briar Crest Nursing Home, 333 NLRB 935, 943 (2001) (“[C]hanges in work schedules involve[] a material change in the em- ployees’ terms and conditions of employment.”). We find that the Respondent affected a term or condition of employment even though AMERICAN RED CROSS MISSOURI-ILLINOIS BLOOD SERVICES REGION 349 B. As found by the judge, the Respondent continued its unlawful response to the union campaign by harassing employee Jerri Thompson in violation of Section 8(a)(1). We recognize that the General Counsel has not alleged an 8(a)(3) violation. However, we believe that Thomp- son’s testimony in support of the Union in the represen- tation case was part and parcel of her union activity. All of that activity was protected and concerted. As dis- cussed below, the Respondent harassed her for that activ- ity, and it thereby violated Section 8(a)(1). As stated above, Thompson was a leading union adherent and she testified for the Union about her job duties at the repre- sentation hearing, stating that, when she served as a team leader, she did not assign tasks to employees but instead let employees decide among themselves who would per- form each task. Thompson’s testimony was against the Respondent’s interests. On May 4, 2 weeks after the representation hearing closed, Supervisor Robert Nemec telephoned Thompson at home and directed her to meet with him and Manager Barbara Labinjo the next day. On May 5, Thompson met with Nemec and Labinjo. Director of Human Resources Wineland and Robyn Kline, assistant to the director of collections, also participated in the meeting by tele- phone.13 When Thompson asked Nemec to sign a state- ment that the meeting would not result in her discipline or termination, Nemec refused. Nemec then told Thompson that, based on Thompson’s testimony at the representation hearing, he thought she did not understand her duties and responsibilities as team leader. Nemec, with three other managers attending, then proceeded to read the entire team leader handbook verbatim to Thompson. After each section, Nemec stopped and questioned Thompson whether she understood him, and asked whether she was performing each function with her team members. The meeting lasted approximately 90 minutes. Thompson was not disciplined. The judge found that the Respondent violated Section 8(a)(1) during the May 5 meeting by harassing Thomp- son because of her union activities and the adverse testi- the Respondent did not isolate Thompson, Bishop, and Pendleton from every other employee on every day of employment. The crucial fact— and one that the Respondent concedes—is that the Respondent changed the schedules of Thompson, Bishop, and Pendleton in a way that lim- ited their contact with other employees, thus imposing different work- ing conditions on the three employees. 13 The General Counsel claims that Kline and Wineland participated in the meeting from its beginning. The Respondent claims that Kline and Wineland began participating only after Thompson asked to have a coworker present and asked Nemec to sign a declaration that no disci- pline would result from the meeting. Our finding of a violation does not turn on this factual dispute. Hence, we need not resolve it. mony that she gave during the representation hearing. We agree, for the reasons set forth below. The Board applies the Wright Line framework to al- leged violations of Section 8(a)(1) that turn on employer motivation. Colburn Electric Co., 334 NLRB 532, 533 (2001) (citing Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981)); Tomatek, Inc., 333 NLRB 1350, 1354 (2001). To prove a violation under Wright Line, the General Counsel must first show that protected activity was a motivating factor in the Respon- dent’s decision to take adverse action against the alleged discriminatees. The General Counsel can satisfy this initial burden by proving that the alleged discriminatees engaged in protected activity, that the Respondent was aware of it, and that the Respondent demonstrated some animus toward that protected activity. The burden then shifts to the employer to demonstrate that the same ad- verse action would have occurred even absent the pro- tected activity. Applying that framework, we find that the General Counsel met his burden, and that the Re- spondent failed to establish that it would have taken the same action absent Thompson’s protected activities. As discussed above, there is ample evidence that the Respondent knew that Thompson was a strong union supporter and that she had engaged in the protected activ- ity of testifying on behalf of the Union at the representa- tion hearing. The Respondent’s animus is evident from its unlawful interrogation of Judy Allen in mid-April, from its contemporaneous isolation of union supporters Thompson, Bishop, and Pendleton from other employ- ees—to keep them from “infecting” their coworkers— and from the fact that Thompson was harassed on May 5 at least in part because of her testimony at the Board rep- resentation hearing. On these bases, we find that the General Counsel satisfied his initial burden of proving that Thompson’s protected activity was a motivating factor in the Respondent’s decision to harass Thompson by isolating her in a meeting of several managers, read- ing her the entire team leader handbook, and questioning her about the handbook provisions over the course of a 90-minute meeting. We further find that the Respondent failed to satisfy its rebuttal burden of proving that it would have conducted this 90-minute meeting even absent Thompson’s pro- tected activities. The Respondent claims that it con- ducted the May 5 meeting in order to make sure that Thompson fully understood the duties and responsibili- ties of the team leader position. In this regard, Labinjo, who was not Thompson’s direct supervisor, heard Thompson testify at the representation hearing that Thompson permitted team leaders at the mobile blood drives to choose which responsibilities they wanted to DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD350 perform rather than directly assigning responsibilities to each individual team member. Labinjo then requested that Nemec hold a meeting to discern if Thompson was conversant with her team leader duties. The Respondent argues that it would have conducted the resultant meeting because of Thompson’s nonperformance of duty even had Thompson not engaged in any protected activity. Indeed, the Respondent contends that Supervisor Nemec similarly read the handbook verbatim to a group of team leaders in January or February “to reiterate the job re- sponsibilities to all Team Leaders.” We find that the Respondent failed to prove that it would have held the 90-minute meeting with Thompson on May 5 absent her protected activity. That Nemec previously read the handbook verbatim to all team lead- ers while conducting a regular training session regarding all team-leader duties does not establish that the Respon- dent would have read the entire handbook to an em- ployee whom it believed was not performing to its satis- faction one of many duties described in the handbook. The two situations are significantly different. The fact that the Respondent read the entire handbook aloud in the one context does not demonstrate that it would have done the same in the second context even absent Thomp- son’s protected activity. The Respondent introduced no evidence that it ever called another team leader into man- agement offices, for a meeting with several managers, during which the employee was read the entire handbook and questioned about her understanding of it, purportedly because the Respondent suspected that she did not under- stand a particular duty. Nor did the Respondent other- wise persuade by a preponderance of the evidence that it would have taken the same action absent Thompson’s protected activities. Further, inasmuch as the Respon- dent’s actions during this 90-minute meeting were di- rectly motivated by, and directed at, Thompson’s pro- tected activity of testifying at the representation hearing, they had a reasonable tendency to restrain her from en- gaging in further protected activities. Our dissenting colleague asserts that the Respondent’s meeting with Thompson was motivated by the substance of her testimony at the representation hearing. Accord- ing to that argument, the testimony revealed a lack of understanding by Thompson as to what her duties were, and thus the Respondent had to conduct a special training session for her. 14 The argument does not withstand analysis. As dis- cussed above, Thompson testified on behalf of the Un- 14 The fact that the Respondent did not meet with Thompson until approximately 2 weeks after Thompson testified at the representation hearing undercuts the Respondent’s argument that it was concerned that Thompson was not carrying out her duties. ion, and against the interests of the Respondent, in a Board hearing. That testimony was consistent with, and in furtherance of, her other union activity. Thus, under Wright Line, the General Counsel has shown that these activities were at least a reason for the meeting. The burden was then on the Respondent, under Wright Line, to show that it would have held the same meeting with Thompson, even if she had not engaged in those activi- ties. We conclude that the Respondent has not met its rebuttal burden. The Respondent has not shown a single instance in which an employee has been subjected to the treatment involved herein because of an asserted lack of understanding of duties. In addition, the meeting was not confined to the single matter which she assertedly mis- understood. Concededly, if the Respondent had a prac- tice of holding such meetings to remedy misunderstand- ings, it may have been privileged to meet with Thompson about the misunderstanding, even if that misunderstand- ing was revealed in testimony in a Board proceeding. However, the Respondent has not shown such a practice or otherwise established that it would have held the 90- minute meeting regardless of Thompson’s protected ac- tivities, and thus the General Counsel’s initial case stands unrebutted. Accordingly, we adopt the judge’s finding that the Respondent violated Section 8(a)(1) by harassing employee Thompson because of her protected activi- ties.15 III. SOLICITATION OF GRIEVANCES The judge found that the Respondent violated Section 8(a)(1) by soliciting its employees’ grievances. We dis- agree. Because we find that the Respondent’s actions 15 We are not holding that employers are precluded from acting on misconduct that they learn from a witness’ testimony at a Board hear- ing. Nor are we holding that, in order to satisfy its Wright Line burden, an employer must show an identical past situation where identical discipline was imposed. In the instant case, the Respondent has not shown a past situation that is even similar to the instant case. As dis- cussed above, the meetings in January and February were substantially dissimilar to the meeting with Thompson. Thus, we are merely hold- ing, for the reasons stated above, that the Respondent failed to prove that it would have held the 90-minute meeting with Thompson absent her protected activities. Engineered Comfort Systems, 346 NLRB 661 (2006), a case cited by our dissenting colleague, actually supports our conclusion. In that case, the Board held that a judge erred when she relied on an employer’s treatment of dissimilarly situated employees when evaluating whether the employer satisfied its rebuttal burden. Here, the Respondent at- tempts to satisfy its rebuttal burden with evidence that it read the team- leader handbook to groups of employees in January or February as part of general training in all duties. Employees who attended these general training sessions are not similarly situated to Thompson, who allegedly failed to perform a specific duty. Consistent with Engineered Comfort Systems, we decline to give weight to evidence of the Respondent’s treatment of dissimilarly situated employees. AMERICAN RED CROSS MISSOURI-ILLINOIS BLOOD SERVICES REGION 351 were consistent with its past practice of soliciting em- ployee feedback, we dismiss this allegation. The Respondent has an established practice of solicit- ing its employees’ grievances. Specifically, for several years preceding the Union’s organizing drive, the Re- spondent solicited its employees’ grievances in regular meetings, during informal conversations, and with two surveys. Since at least 1998, the Respondent has held quarterly team meetings that provided an open forum for employ- ees to discuss any work problems they were having. Supervisor Sherry Koenig testified that she asked em- ployees at these quarterly meetings about their concerns. Supervisor Maria Smith testified that she too solicited employee concerns at these monthly team meetings. This past practice of soliciting grievances at quarterly team meetings is reflected in the minutes of a supervi- sory meeting. The minutes from a regular biweekly meeting of supervisors held on February 23, 2004, state that “[c]ommunication is an issue[;] please talk in team meetings about what staff needs[,] likes[,] and dislikes.” In addition to these quarterly meetings, CEO Chris Bales held annual town hall meetings where she commu- nicated important information to employees and asked their input on any problems or issues that they had. In response to Bales’ solicitations, employees voiced their concerns at these town hall meetings. Prior to the union organizing campaign, the Respon- dent had also asked employees about their concerns dur- ing informal conversations. Supervisor Maria Smith testified during the unfair labor practice hearing that, over the 2 years preceding that hearing, she asked em- ployees about their opinions on the “good things” and “bad things” about working for the Respondent. Addi- tionally, Collections Manager Barbara Labinjo testified that CEO Bales told employees to discuss any concerns or issues with their supervisors. Interim Director of Col- lections Rachelle Wiedman testified that, in November 2003, management decided to ask employees about what they liked and disliked about working for the Respon- dent. Moreover, the Respondent has a history of soliciting employee input through written surveys. In 2000, the Respondent solicited employee feedback in a written survey that it distributed to employees at the request of the national headquarters of the American Red Cross. In 2002, the Respondent further solicited employee feed- back in a telephonic survey. Both surveys consisted of questions about working conditions that called for “yes” or “no” answers. Employees responded to both surveys anonymously. Consistent with this established pattern of solicitations, Director of Collections Wiedman created a written sur- vey in the early spring of 2004. This survey asked em- ployees to list “five positive topics this week” and “five areas you feel can be improved.” The survey—which made no mention of the Union or the organizing cam- paign—did not ask employees to identify themselves, but it did call for their “Center/Team.” Interim Manager Robert Nemec instructed supervisors to distribute the written survey to employees and to collect written re- sponses or record oral responses. Supervisors Sherry Koenig and Maria Smith distributed the survey to em- ployees in April. Employee Bishop testified that she and a group of her coworkers wrote their feedback on a single survey and returned it to Supervisor Smith. Supervisor Nemec testi- fied that he collected 10 or more completed surveys. There is no evidence that at any time the Respondent linked the survey to the organizing campaign or prom- ised to remedy any of the employees’ complaints. Section 8(a)(1) prohibits employers from soliciting employee grievances in a manner that interferes with, restrains, or coerces employees in the exercise of Section 7 activities. “The solicitation of grievances alone is not unlawful, but it raises an inference that the employer is promising to remedy the grievances.” Amptech, Inc., 342 NLRB 1131, 1132 (2004). An employer can rebut that inference. Uarco Inc., 216 NLRB 1, 2 (1974). Addi- tionally, “[a]n employer who has a past policy and prac- tice of soliciting employees’ grievances may continue such a practice during an organizational campaign.” Johnson Technology, Inc., 345 NLRB 762, 764 (2005) (citing Wal-Mart Stores, Inc., 339 NLRB 1187, 1187 (2003)). “However, an employer cannot rely on past practice to justify solicitation of grievances where the employer ‘significantly alters its past manner and meth- ods of solicitation.’” Wal-Mart Stores, supra (quoting Carbonneau Industries, 228 NLRB 597, 598 (1977)). Based on the foregoing, we find that the evidence fails to establish that the Respondent unlawfully solicited grievances from its employees. Rather, we find that the April survey was consistent with the Respondent’s past practice of soliciting grievances. As it had in the previ- ous meetings, conversations, and surveys, the Respon- dent asked employees in its April survey about working conditions that they found satisfactory and those that needed improvement. The April survey’s questions were very similar to both Supervisor Smith’s practice of ques- tioning employees about the “good” and “bad” aspects of employment and to the meeting minutes directing super- visors to ask about employees’ “needs, likes, and dis- likes.” Moreover, the Respondent’s use of a survey is DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD352 consistent with its history of soliciting employee feed- back with surveys. Although there were some differ- ences between earlier solicitations and this one, it must be borne in mind that the issue is not whether there has been a charge in method of solicitation, but rather whether the instant solicitation implicitly promised a benefit. The particular changes in methods of solicita- tion in this case did not give rise to an implied promise. Consequently, we dismiss this allegation.16 IV. NO-SOLICITATION CLAUSE The judge dismissed the allegation that the Respondent violated Section 8(a)(1) by maintaining an overly broad no-solicitation policy. The judge found that the policy allegedly maintained by the Respondent was not unlaw- fully overbroad. Although we agree that the allegation must be dismissed, we do so on the basis that the General Counsel failed to satisfy his burden of proving that the Respondent actually maintained the alleged no- solicitation policy. The complaint alleged that, “[s]ince about January 15, 2004, Respondent has maintained a Solicitation, Distri- bution of Literature and Access policy that provides, in part, ‘No employee may engage in solicitation of any kind during working time or in working areas.’” The Respondent denied this allegation in its answer. At the hearing, virtually no evidence was introduced to support the unlawful maintenance allegation. In her 16 Member Liebman dissents, agreeing with the judge’s finding that the April 2004 survey departed from the Respondent’s past practice of soliciting employee grievances and violated the Act. See, e.g., Car- bonneau Industries, 228 NLRB at 598 (1977). The judge found that while the employees had participated in a writ- ten survey in February 2000 and a telephone survey in 2002, these surveys were far different than the April 2004 survey. The National Red Cross organization and the Gallup Organization created earlier surveys, which solicited yes/no answers to questions. Most impor- tantly, employees participated on an anonymous basis. In contrast, a local manager created the 2004 survey, which asked employees to name five areas of concern and which was distributed and collected by supervisors—shortly before the Board hearing concerning the represen- tation petition. Participation was essentially mandatory and employees were identified by their center and team. Thus, the 2004 survey signifi- cantly altered the past methodology of surveying. Member Liebman would also find the Respondent’s practice of having managers orally solicit employee grievances at meetings to be inapposite since it bore no resemblance to the written survey utilized in 2004. In fact, a com- parison of the two methods further supports the status of the 2004 sur- vey as a marked departure from former practices. Clearly, the Respondent did not have a past practice of soliciting grievances that was comparable to the April 2004 survey. The majority suggests that a “change in method of solicitation” does not automati- cally establish a violation. But such a change, if significant, does create an inference that the employer is promising to remedy grievances. See, e.g., Center Service System Division, 345 NLRB 729, 729 (2005). In Member Liebman’s view, on the facts here, there was a significant change, and the Respondent has failed to rebut the resulting inference. opening statement, counsel for the General Counsel stated that she intended to prove, among other violations, that the Respondent “maintained a facially unlawful no- solicitation policy.” In his opening statement, counsel for the Respondent replied, “In regard to the no- solicitation policy, we believe that it is not facially over- broad and we will have testimony about that.” After the opening statements, the judge asked counsel for the General Counsel whether she had anything further before calling her first witness. Counsel for the General Counsel stated, “Yes, just to clear up—put into the re- cord, at this point, General Counsel’s Exhibit 7, which is the solicitation policy, in question.” That exhibit, which is a 1-page document, reads in relevant part: American Red Cross Missouri-Illinois Blood Services Region Section 6: Miscellaneous Solicitation, Distribution of Literature and Ac- cess I. Policy Employees should not be disturbed or disrupted in the performance of their job duties. Therefore, no employee may engage in solicitation of any kind during working time or in working areas. No em- ployee may engage in distribution of literature dur- ing working time or in working areas. Working time shall include when any of the individuals involved are supposed to be performing designated work tasks. Working time does not include authorized pe- riods of off-duty such as meal breaks or other desig- nated break period. Working areas include any mo- bile blood collection location operation. . . . . Effective Date 09–01–2002[17] Policy No. 6.2 Although the General Counsel introduced the policy, he never established that the policy was in effect. The General Counsel’s allegation that the Respondent main- tained that policy was denied in the Respondent’s an- swer. Concededly, at the hearing, the Respondent’s counsel said that the policy was not facially overbroad. However, this was not a clear retraction of its denial (in the answer) that the policy was maintained. On this re- cord, we find that the General Counsel failed to satisfy his burden of proving that the Respondent actually main- 17 The policy says that it was effective September 1, 2002. But a date on a memo does not establish that the policy was actually opera- tive on that date or at the time of the events herein. That proof would require a witness, or at least some documents showing enforcement. AMERICAN RED CROSS MISSOURI-ILLINOIS BLOOD SERVICES REGION 353 tained the policy set forth in Exhibit 7, and therefore we dismiss this allegation.18 V. OBJECTION 14 As noted above, the Union lost the July 8 election by a vote of 118 to 102, with 1 challenged ballot. The Union filed a number of objections alleging that the Respondent tainted the election. The judge sustained Union Objec- tion 14, finding that the Respondent treated union elec- tion observers disparately from its own observers. Spe- cifically, the judge found that the Respondent prohibited union observers, but not its own observers, from working on election day. The judge also found that union observ- ers were not invited to attend a preelection meeting that Employer observers attended and that the Union was not informed that it could have alternate observers. For the reasons set forth below, we disagree with the judge that the Respondent engaged in objectionable conduct. The election was conducted on July 8. The Respon- dent compensated its election observers and alternate observers for certain activities on July 7 and 8. Specifi- cally, the Respondent paid each of its observers and al- ternates 8 hours’ pay for attending each of two meetings on July 7. The first meeting was among the Respon- dent’s managers, election observers, and alternates. It lasted 1 hour. The second meeting was the preelection conference held by the Board agent. This meeting also lasted approximately 1 hour. The Respondent also paid each observer and alternate 8 hours’ pay for serving as observers or alternates on July 8. Most of the Respon- dent’s observers and alternates served only about 2–3 hours on election day. Some of the Respondent’s ob- servers and alternates also worked a regular shift on elec- tion day and received their normal pay in addition to the pay they received for serving as observers or alternates. 18 Member Liebman disagrees with the majority’s finding that the General Counsel failed to prove that the Respondent maintained the no- solicitation policy at issue. She would also reverse the judge’s finding that the policy was substantively lawful because it only prohibited solicitation during working time. Regarding the maintenance of the policy, the General Counsel introduced a memo from the Respondent stating the policy with the notation, “Effective Date 09–01–2002.” The Respondent had denied in its answer to the complaint that it maintained this policy; at the hearing, it only denied that the policy was facially overbroad. Member Liebman would find that the policy memo, in conjunction with the Respondent’s failure to contest the policy’s exis- tence at trial, sufficed to prove that the Respondent maintained the policy. As for the policy’s facial illegality, the policy states: “[N]o employee may engage in solicitation of any kind during working time or in working areas” (emphasis added). The Board has long found such prohibitions of all solicitation in working areas (which necessarily cover solicitation occurring during nonworking times) to be presump- tively unlawful. Our Way, Inc., 268 NLRB 394 (1983). Accordingly, Member Liebman would find the policy to be unlawful. Before the election, the Respondent had several con- versations with employees regarding the use of “paid time off” (PTO) if they served as union observers. Su- pervisor Pam Burgess telephoned Supervisor Sandy Loy, who was at a blood drive in Flora, Illinois. Employees Brenda Loy (no relation to Sandy), Angela Blake, Chris- sie Harrison, and Donna Funnemann were standing next to Sandy Loy during that telephone discussion. With Burgess still on the line, Sandy Loy told Blake and Har- rison that, if they served as observers for the Respondent, “you will be paid eight hours or, if you want the hours, you can go in and be an alternate and still go to the Cen- tralia drive and get paid for that.” Sandy Loy then handed the telephone to Brenda Loy. Burgess told Brenda Loy that “the union had requested for me [Brenda] to be an observer, that they had given me the day off, but I would have to take a PTO day.” Brenda Loy chose not to serve as election observer. Employee Nicole Bishop testified that Manager Labinjo called her at home and informed her that the Union had notified the Respondent that she (Bishop) was going to serve as an observer for the Union. Bishop tes- tified that Labinjo told her that “if I was going to serve, as an observer, that I needed to let her know because she needed to put in PTO time for me.” Bishop was sick on July 8 and did not work or serve as an observer. Based on the foregoing, we disagree with the judge’s finding that the Respondent committed objectionable conduct. First, we find, contrary to the judge, that the Respondent did not prohibit union observers from work- ing on election day. The Respondent’s statements that employees would have to use PTO if they wished to serve as observers did not preclude those employees from also working on election day. Nothing in the Re- spondent’s statements forbade an employee from work- ing a normal shift and serving as a union observer before or after that shift. Moreover, nothing in the Respon- dent’s statements prevented a union observer from serv- ing as a union observer during a scheduled shift, using PTO to cover the time spent observing, and working the remainder of the scheduled shift. Further, we do not view the Respondent’s conducting a meeting for only its observers, but not the Union’s ob- servers, to be objectionable. The Respondent was clearly permitted, prior to the election, to explain to its observers their role in the election process. It was not obligated to provide similar explanations to the Union’s observers. Nor are we aware of any responsibility the Respondent had to inform the Union that it could have alternate ob- servers. Thus, we cannot conclude that the Respondent’s conduct with respect to observers constitutes objection- able conduct. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD354 The Union seeks to raise in its answering brief an addi- tional argument that the Respondent tainted the election by grossly overcompensating its election observers. We find that this argument is not properly before the Board. The judge did not base his finding of objectionable con- duct on this basis; indeed, he did not address the com- pensation issue at all. Further, no proper exception was filed to the judge’s failure to sustain the objection based on the alleged overcompensation of the Respondent’s observers. Rather, in a footnote in its answering brief to the Respondent’s exceptions, the Union merely stated that it interpreted the judge’s decision as sustaining Ob- jection 14, which was a multipart objection, in full and that, assuming arguendo that the judge did not do so, it was cross-excepting. Cross-exceptions, however, may not be asserted in answering briefs. Section 102.46(d)(2) of the Board’s Rules and Regulations (“The answering brief to the exceptions shall be limited to the questions raised in the exceptions and in the brief in support thereof.”); see also Section 102.46(j) (“Any brief filed pursuant to this section shall not be combined with any other brief. . . .”); cf. Manno Electric, 321 NLRB 278 fn. 10 (1996). The Respondent excepted to the part of Ob- jection 14 on which it did not prevail before the judge. The Union did not except to the different part of Objec- tion 14 on which it did not prevail. We do not agree that one party’s exception to a loss can be used to somehow supply the adverse party with an exception that it did not file. Because the Union failed to properly cross-except to the judge’s failure to sustain Objection 14 on the gross-overcompensation ground, we decline to pass on this issue. Consequently, we overrule Objection 14.19 19 In addition, there were no objections based upon the Employer’s paying its own observers and not paying union observers. Member Liebman would find merit in Objection 14 on the basis that the Respondent grossly overcompensated its observers (and alternates) by paying them 8 hours of pay for attending a 2–3 hour preelection conference and then another 8 hours of pay for serving 2–3 hours as observers or alternates on the day of the election. This pay was “grossly disproportionate” to the services rendered. Quick Shop Mar- kets, 200 NLRB 830 (1972), enfd. 492 F.2d 1248 (8th Cir. 1974); Ea- sco Tools, Inc., 248 NLRB 700 (1980). The record indicates that the Respondent extended this overcompensation to fully one-sixth of the election unit by designating (and paying) some 33 employees as ob- servers or alternates. Further, the Respondent’s supervisors actually telephoned employees serving as the Union’s observers and offered them duty as Respondent’s observers, noting that they could make 8 hours of pay without taking paid leave or could work their normal shift and make an additional 8 hours of pay. Member Liebman disagrees with the majority’s finding that the Un- ion failed to properly raise the gross overcompensation issue under Sec. 102.46(d)(2) of the Board’s Rules and Regulations because it presented the argument in its answering brief instead of in a separate cross- exception. The Respondent brought this issue into play when it con- tested the judge’s finding that a supervisor told an employee that if she served as an observer for the Respondent she could both work and VI. SETTING ASIDE THE ELECTION We find that the July 8 election must be set aside, and a second election ordered based on the Respondent’s unfair labor practices. Soon after the Union started its organizing campaign, the Respondent committed three unfair labor practices. It coercively interrogated Judy Allen, isolated Thompson, Bishop, and Pendleton on a continuous basis because of their protected activities, and harassed Thompson because of her protected activities. “[I]t is the Board’s usual policy to direct a new elec- tion whenever an unfair labor practice occurs during the critical period since ‘[c]onduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an elec- tion.’”20 The only exception to this policy is “where the misconduct is de minimis: ‘such that it is virtually im- possible to conclude’ that the election outcome has been affected.”21 Based on the facts above, we find that the Respon- dent’s unfair labor practices, particularly the isolation of three employees, destroyed the laboratory conditions the Board requires in order to ensure a free and fair election. See Jewish Home for the Elderly of Fairfield County, 343 NLRB 1069 (2004) (setting aside election because respondent’s unfair labor practices tainted laboratory conditions). The isolated employees, Thompson, Pendle- ton, and Bishop, were open union supporters who testi- fied at the representation proceeding and engaged in ad- ditional protected activities. Other employees knew of their union support. Work schedules, posted by the Re- spondent for all employees to observe, clearly showed that the Respondent kept Thompson, Pendleton, and Bishop away from other employees and that it com- menced this practice shortly after the three employees testified at the representation hearing. Employees who observed the work schedules would reasonably infer that the Respondent was discriminating against the three be- cause of their union support. Further, the Respondent’s isolation of these employees significantly altered their ability to discuss the Union with other employees. This receive 8 hours pay. Thus, under Sec. 102.46(d)(2), the compensation issue is “a question[] raised in the exceptions and in the brief in support thereof” and is properly before the Board. Finally, the Respondent was not prejudiced by the Union’s manner of raising this argument since it had (and had availed itself of) the opportunity to file a reply brief to the Union’s answering brief. 20 Clark Equipment Co., 278 NLRB 498, 505 (1986) (quoting Dal- Tex Optical Co., 137 NLRB 1782, 1786 (1962)). 21 Washington Fruit & Produce Co., 343 NLRB 1215, 1223 (2004) (quoting Sea Breeze Health Care Center, 331 NLRB 1131, 1133 (2000)). Chairman Battista and Member Schaumber do not necessarily agree with the “virtually impossible” standard. However, it reflects current Board precedent, no party seeks to reverse that precedent, and they therefore apply it for institutional reasons. AMERICAN RED CROSS MISSOURI-ILLINOIS BLOOD SERVICES REGION 355 unlawful discrimination, which was practiced openly and posted for employees to view, together with the Respon- dent’s other unfair labor practices, tainted the election conditions, necessitating that the election be set aside and a second election ordered. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, American Red Cross Missouri-Illinois Blood Services Region, St. Louis, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating any employee about union support or union activities. (b) Harassing any employee because of the employee’s union support, union activities, or participation in a Board representation case hearing. (c) Imposing more onerous terms and conditions of employment on employees by isolating them from other employees because of union support, union activities, or participation in a Board representation case proceeding. (d) In any like or related manner interfering with, re- straining, 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 from the date of this Order, remove the imposition of more onerous working conditions on its employees Nicole Bishop, Catherine Pendleton, and Jerri Thompson. (b) Within 14 days after service by the Region, post at its facility in St. Louis, Missouri, copies of the attached notice marked “Appendix.”22 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice 22 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” to all current employees and former employees employed by the Respondent at any time since April 19, 2004. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. IT IS FURTHER ORDERED that the election held on July 8, 2004, in Case 14–RC–12500 be set aside, and that this case be severed and remanded to the Regional Director to conduct a new election when he deems appropriate. [Direction of Second Election omitted from publication.] MEMBER SCHAUMBER, dissenting in part. I agree that the Respondent violated Section 8(a)(1) by coercively interrogating employee Judy Allen, and Sec- tion 8(a)(3) and (1) by isolating employees Nicole Bishop, Catherine Pendleton, and Jerri Thompson. I also agree that these violations—particularly the isolation of Bishop, Pendleton, and Thompson, which commenced shortly after they testified at a representation hearing and which was published to unit employees on posted work schedules—warrant a new election. I disagree, however, with my colleagues’ finding that the Respondent violated Section 8(a)(1) by retraining Thompson in her duties as a team leader. There is no dispute that the initial team leader training, given to all team leaders in January or February 2004, consisted of Supervisor Nemec reading the entire team leader handbook aloud. One provision in the handbook states that team leaders are expected to “provide[ ] neces- sary direction as far as scheduling what the staff will be doing that day.” Record evidence establishes that there had been complaints about staff members bickering among themselves about job assignments. Under union subpoena, Thompson testified at the representation hear- ing in April 2004. During her testimony, she stated that she allowed staff members to decide for themselves which tasks they would perform. In other words, Thompson admitted that she was not carrying out one of her duties as a team leader. The Respondent then re- trained her in the team leader handbook by once again reading the entire handbook aloud. Other employees also testified at the representation hearing under sub- poena from the Union. Only Thompson was retrained. Assuming arguendo that the General Counsel estab- lished that Thompson’s protected activity was a motivat- ing factor in the Respondent’s decision to retrain her, I find that the Respondent would have retrained her even DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD356 in the absence of that activity. The record evidence demonstrates that “training” in the team leader handbook consisted of reading the entire handbook aloud to those being trained. Thompson admitted, under oath, that she was not carrying out one of her duties as a team leader. Considering how recently she had been trained in those duties, the Respondent could have simply disciplined Thompson on the basis of her admission. Instead, it gave her the benefit of the doubt by assuming that she did not understand her duties and therefore repeated her training. It did not retrain any other of its employees who simi- larly testified at the representation hearing on the Un- ion’s behalf but who did not admit under oath, as did Thompson, to dereliction of duty. Thus, the evidence shows that in retraining Thompson, the Respondent acted on her admission of nonperformance of duty. Contending that the initial group training and Thomp- son’s retraining constituted “significantly different” situations, the majority finds the fact that the Respondent read the entire handbook aloud at the initial training fails to show that it would have done the same at Thompson’s retraining even in the absence of Thompson’s protected activity. The fallacy in this analysis lies in its point of departure. The majority believes that the initial group training and Thompson’s retraining presented signifi- cantly different situations, but there is no evidence that the Respondent so believed. Indeed, the only evidence we have indicates that the Respondent viewed the two situations alike. Both were team leader trainings, and the evidence shows that for this Respondent, a team leader training means reading the entire team leader handbook aloud. Absent evidence that Respondent viewed the situations as different, the consistency of its conduct in those situations supports its Wright Line rebuttal case. The majority finds that the Respondent failed to carry its Wright Line rebuttal burden because there is no evi- dence that the Respondent ever comprehensively re- trained another team leader as it did Thompson. But there is no evidence that a like situation had arisen be- fore, and it is extremely unlikely that it had. As stated above, Respondent conducted its initial team leader handbook training in January or February 2004, and Thompson’s admission that she was neglecting one of her duties as a team leader came just a few months later, in April. The odds of a comparable situation having arisen in the interim are vanishingly small. The majority also would require the Respondent to show, for Wright Line rebuttal purposes, additional instances in which it held meetings with employees to correct misunderstand- ing of duties. The issue, however, is not how the Re- spondent deals with employee misunderstanding of du- ties in general, but specifically how it trains team leaders. As stated above, the record evidence shows that the Re- spondent acted consistently in that regard. Cf. Engi- neered Comfort Systems, 346 NLRB 661 (2006) (finding that employer sustained Wright Line rebuttal burden based on employer’s consistent treatment of employees who were specifically no-call/no-show 2 consecutive days, despite evidence showing employer’s lax enforce- ment generally of time and attendance rules). In finding Thompson’s retraining unlawful, the major- ity also relies in part on the fact that Thompson was questioned about her understanding of and compliance with the handbook. In my view, such questioning was not “harassment” but, on the contrary, perfectly legiti- mate. Instead of disciplining Thompson for her admitted nonperformance of duty, the Respondent gave Thompson the benefit of the doubt and assumed only that she mis- understood her responsibilities. At the same time, how- ever, the Respondent’s director of human resources, Paula Wineland, informed Thompson that she could not promise that discipline would not result from further failure to do her job. Thus, it is apparent that, by asking Thompson to confirm that she understood each provision of the handbook, the Respondent wanted to eliminate misunderstanding as a potential excuse in case further noncompliance were to make discipline necessary. To reiterate, other employees in addition to Thompson also testified for the Union at the representation hearing. There is no evidence that any of these employees admit- ted, under oath, that they were not performing their du- ties. Only Thompson so admitted, and only Thompson was retrained. Thus, Respondent showed it would have retrained Thompson even absent her protected activity. In addition, the evidence shows that the Respondent does not differentiate between or among various team leader training situations, and that a team leader training con- sists of reading the entire team leader handbook aloud. Thus, the Respondent showed that it would have re- trained Thompson by reading the entire team leader handbook aloud to her even absent her protected activity. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated 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 AMERICAN RED CROSS MISSOURI-ILLINOIS BLOOD SERVICES REGION 357 Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT coercively interrogate any employee about union support or union activities. WE WILL NOT harass any employee because of the em- ployee’s union support, union activities, or participation in a Board representation case hearing. WE WILL NOT impose more onerous terms and condi- tions of employment on employees by isolating them from other employees because of union support, union activities, or participation in a Board representation case proceeding. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed you by Section 7 of the Act. AMERICAN RED CROSS MISSOURI-ILLINOIS BLOOD SERVICES REGION Kathy J. Talbott-Schehl, Esq., for the General Counsel. George J. Miller, Esq., of Lexington, Kentucky, for the Re- spondent-Employer. Christopher N. Grant, Esq., of St. Louis, Missouri, for the Charging Party-Petitioner. DECISION STATEMENT OF THE CASE BRUCE D. ROSENSTEIN, Administrative Law Judge. This case was tried before me on November 29 through December 2, 2004,1 in St. Louis, Missouri, pursuant to a complaint and no- tice of hearing (the complaint) issued by the Regional Director for Region 14 of the National Labor Relations Board (the Board) on August 31. In addition, on September 13, Region 14 ordered consolidated certain issues arising from the representa- tion election in Case 14–RC–12500. The complaint, based upon an original and amended charge in Case 14–CA–27956, filed by Local Union 682, International Brotherhood of Team- sters, AFL–CIO (the Charging Party or the Union) alleges that American Red Cross Missouri-Illinois Blood Services Region, an Unincorporated Chartered Unit of the American Red Cross, a Federally Chartered Corporation (the Respondent or Em- ployer), has engaged in certain violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). The Union’s petition was filed on March 26, and sought an election among certain of Respondent’s blood collection em- ployees. An election was held pursuant to a Regional Direc- tor’s Decision and Direction of Election on July 8. The tally of ballots issued on July 8, shows that of approximately 234 eligi- ble voters, 221 ballots were cast, 102 in favor of representation by the Union, 118 against, and 1 ballot was challenged. The 1 All dates are in 2004, unless otherwise indicated. challenged ballot is not sufficient in number to affect the out- come of the election. The Union filed timely objections to conduct affecting the results of the election on July 15. Thereafter, the Regional Director concluded that the allega- tions of the objections to the election in Case 14–RC–12500 parallel certain issues with the complaint allegations in Case 14–CA–27956, and ordered the consolidation of those cases for hearing before an administrative law judge. The Respondent filed a timely answer to the complaint denying that it had com- mitted any violations of the Act. Issues The complaint alleges that the Respondent imposed more onerous working conditions on its employees Nicole Bishop, Catherine Pendleton, and Jeri Thompson by isolating these employees from other employees in violation of Section 8(a)(1) and (3) of the Act,2 and engaged in numerous independent vio- lations of Section 8(a)(1) of the Act including coercive interro- gation, the enforcement of an overly-broad solicitation policy, threatened employees with loss of benefits, solicited and prom- ised to remedy grievances, threatened to discharge employees who supported the Union, threatened employees with loss of wages and benefits, gave employees the impression that their activities on behalf of the Union were under surveillance, threatened to withhold pay increases and close one of its facili- ties, and threatened employees that their wages and benefit programs would remain frozen during bargaining if employees chose the Union as their bargaining representative. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, the Charging Party, and the Respon- dent, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent is a corporation engaged in the collection, processing, and distribution of blood and related matters throughout the States of Missouri, Kansas, and Illinois, with an office and place of business located in St. Louis, Missouri, where it annually derived gross revenues in excess of $250,000, and purchased and received materials and supplies in excess of $50,000 directly from points located outside the State of Mis- souri. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. 2 Par. 6(a) of the complaint alleged that on May 27, Respondent ter- minated its employee Ramona Curtis. After the opening of the hearing the Charging Party and the Respondent entered into a non-Board set- tlement resolving all outstanding issues concerning the termination. Since the General Counsel did not object to the settlement, I approved the Charging Party’s request to withdraw the portions of the original and amended charge alleging the discharge, the withdrawal of the un- derlying representation objection regarding the allegation and the Gen- eral Counsel’s request to withdraw par. 6(a) of the complaint. Thus, the subject decision will not address this issue as the settlement fully effectuates the purposes and policies of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD358 II. ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent operates a network of fixed and mobile lo- cations in Missouri, Illinois, and Kansas to facilitate the dona- tion of blood by individuals, corporations, schools, religious organizations, and other groups. It employs approximately 800 individuals with various job classifications including drivers, nurses, and blood collection specialists. The employees in- volved in this proceeding are those that principally work in fixed and mobile blood locations that draw and process blood. The Union presently represents and has a collective-bargaining agreement for vehicle drivers that transport equipment to the mobile blood locations. At all material times Michelle Langley was the senior direc- tor of donor services of Respondent, Rachelle Wiedman held the position of interim director of collections, Paula Wineland serves as the director of human resources, Barbara Labinjo was a collections manager, Sherry Koenig, Charles Roach, and Maria Smith held the positions of collection supervisor, Pam Burgess, Patricia Lasater, Sandra Loy, and Robert Nemec were first-line supervisors, Helen Gwin held the position of schedul- ing manager and Lisa Wilson served as the recruitment man- ager. Employees Nicole Bishop, Catherine Pendleton, and Jerri Thompson were subpoenaed as witnesses for the Union during the mid-April 2004 representation case hearing and either testi- fied or remained in the hearing room during the majority of the 4-day proceeding. Each of those individuals submitted subpoe- nas that they had received from the Union to Respondent repre- sentatives in advance of the representation case hearing. B. The 8(a)(1) Violations 1. Allegations concerning solicitation a. Facts The General Counsel alleges in paragraph 5(A) of the com- plaint that since about January 15, Respondent has maintained a solicitation, distribution of literature, and access policy that provides, in part, “No employee may engage in solicitation of any kind during working time or in working areas.” The policy further provides that working time shall include when any of the individuals involved are supposed to be performing desig- nated work tasks. Working time does not include authorized periods of off duty such as meal breaks or other designated break periods. Working areas include any mobile blood collec- tion location operation. (GC Exh. 7.) b. Discussion In evaluating rules governing employee solicitation, the Board has defined the legal consequences arising from the use of two terms-of-art, “working hours” and “working time.” In its leading case on this question, the Board described and reaf- firmed its previous holdings that no-solicitation rules using the term “working hours” are presumed to be unlawful, “because that term connotes periods from the beginning to the end of work shifts, periods that include the employees “own time.” Our Way, Inc., 268 NLRB 394, 395 (1983). By contrast, no- solicitation rules that employ the phrase “working time” are presumed to be lawful, “because that term connotes periods when employees are performing actual job duties, periods which do not include the employees’ own time such as lunch and break periods.” The guiding principle is that rules prohibit- ing employee solicitation during working time must state with sufficient clarity that employees may solicit on their own time. In the subject case I find that the Respondent’s policy specifi- cally informs employees that working time does not include authorized periods of off duty such as meal breaks or other designated break periods and, therefore, sufficiently alerts em- ployees that no prohibition of solicitation would be found dur- ing those designated periods. In regard to “Working Areas,” the Respondent’s policy sufficiently informs employees that it includes any mobile blood-collection location operation. While employees are on working time in working areas they are pro- hibited from engaging in solicitation. On the other hand, when employees are engaged in authorized periods of off duty such as meal breaks or other designated break periods at a mobile blood collection location, they may engage in solicitation. Additionally, the Respondent’s policy does not circumscribe the ability of employees to engage in personal discussions or solicitation while riding in a van in route to a mobile blood collection location. Indeed, a number of employees credibly testified that they regularly engage in personal conversations in route to the work location and on occasions talked to each other about the benefits of union representation. The Respondent has not precluded such conversations nor did they discipline any employees who engaged in union solicitation while in route to the blood collection location. Based on the foregoing, I find that the Respondent’s solicita- tion policy is not overly broad and does not violate Section 8(a)(1) of the Act. Therefore, I recommend that paragraph 5(A) of the complaint be dismissed. 2. Allegations concerning Sherry Koenig and Maria Smith a. Facts The General Counsel alleges in paragraphs 5(B) and (C) of the complaint that in April 2004, Koenig and Smith solicited employee grievances. Supervisor Robert Nemec, who also acted as the interim manager of district II in March, April, and May 2004, was given a copy of a survey while attending a managers’ meeting in March or April 2004, that sought employee responses for five positive topics and five areas that needed improvement. Nemec testified that Director of Collections Wiedman created the survey (GC Exh. 2). Nemec instructed his first-line super- visors including Koenig and Smith to either hand the survey to each team member with a request to complete and return the survey or orally record the answers provided by the employees and return all responses to him. Both Koenig and Smith fol- lowed these instructions and returned the completed surveys or oral answers that they memorialized to Nemec. b. Discussion The timing of this survey is significant in that it took place after the filing of the subject representation petition in March 2004, and either around the same time or just shortly after the representation case hearing in mid-April 2004. The Respon- AMERICAN RED CROSS MISSOURI-ILLINOIS BLOOD SERVICES REGION 359 dent does not dispute that the survey was distributed to em- ployees by its supervisors or that employees were requested to complete the survey and return it to their respective supervi- sors. Rather, the Respondent argues that there was a past prac- tice of supervisory-employee meetings, town hall meetings, and prior employee satisfaction surveys that discussed issues of employee working conditions including feedback from em- ployees on conditions of employment that was no different than the subject survey. Indeed, in February 2000, the Respondent received a written survey from Washington, D.C. headquarters that all Red Cross chapters were requested to distribute to its employees and in 2002 a voluntary Gallup poll survey was conducted by telephone throughout the Missouri-Illinois Re- gion concerning employee working conditions. I find, how- ever, that the Respondent’s arguments in this regard are mis- placed. For example, the subject survey was conducted during the critical period between the filing of the representation petition and either just before or shortly after the representation case hearing but at a time before the scheduled election. According to Koenig, this was the first time in her 6 years as a supervisor that she was requested to survey her employees in this manner. The subject survey was created by an onsite high-level supervi- sor unlike the prior surveys that were conducted either by American Red Cross headquarters or by a third party that sought yes or no written or telephone answers. Here, employ- ees were confronted with a series of questions to list five posi- tive topics and five areas that needed improvement with in- structions to complete and return the survey to their supervi- sors. Under these circumstances, I find that employees were under a directive from their supervisors to complete and return the survey at a critical period in the election process. Since the initiation of this type of survey in the same manner had not been undertaken previously, I conclude that it was created for the sole purpose of obtaining information from the employees to be used during the union organization campaign. Wal-Mart, Inc., 339 NLRB 1187 (2003). Under these circumstances, I find that Supervisors Koenig and Smith solicited employee grievances in violation of Section 8(a)(1) of the Act and recommend that the allegations alleged in paragraphs 5(B) and (C) of the complaint be sustained. Em- bassy Suites Resort, 309 NLRB 1313 (1992) (there is a compel- ling inference that an employer is implicitly promising to cor- rect those inequities he discovers as a result of his inquiries and likewise urging on his employees that the combined program of inquiry and correction will make union representation unneces- sary). 3. Allegations concerning Rachelle Wiedman a. Facts The General Counsel alleges in paragraph 5(D) of the com- plaint that about April 19, Wiedman interrogated an employee about the employee’s union activities and sympathies and the union activities and sympathies of other employees. Employee Judy Allen testified that Nemec instructed her to meet with Wiedman on or about April 19 regarding a “commu- nication of change” when working with copper sulfate as part of her job duties. According to Allen, after Wiedman com- pleted the discussion about the change, she asked her if she know of anybody who went to the union meeting, whether Al- len was going to vote for the Union, who had influence over the votes, and informed Allen that even if you got the Union in, things would not change as far as work. Weidman testified that the only time she spoke with Allen during the entire critical period was during the meeting that she communicated to her the change in certain job-related duties. Weidman categorically denies interrogating Allen about any issues dealing with the Union during their April 2004 discus- sion. b. Discussion While I found Weidman to be a very sincere witness who impressed me during her testimony with her command of the issues, I am constrained to find that she did interrogate Allen about her union sympathies for the following reasons. First, I note that the meeting took place around the period that the par- ties were engaged in the representation case hearing and the issue of the Union was in the forefront of both employees and managers. Second, the meeting took place 1 day after the Un- ion held an employee organizing meeting that was widely dis- seminated by a flyer throughout the facility (GC Exh. 22). Third, around this same time period, it was Weidman who di- rected that an employee survey be created and according to Nemec instructed the supervisors to obtain responses from their team members and return the completed survey to her (GC Exh. 2). Fourth, as will be discussed more thoroughly later in the decision, Nemec testified that Wiedman was one of the manag- ers that instructed him to hold a meeting with employee Jerri Thompson on May 5 regarding testimony that she had given during the representation case hearing. Finally, employee Gayle Hinklin testified that Scheduling Manager Helen Gwin stated that higher ups instructed her to isolate three employees to keep them from infecting the others. Gwin admitted that she reported directly to Wiedman. The employees that were sched- uled together were Thompson, Pendleton, and Bishop, who Wiedman knew prior to the April 19 meeting, were known union supporters. When evaluating the credibility of Wiedman and Allen, I have taken into consideration the fact that Allen was not known to be a leading union adherent and her short tenure of employ- ment at Respondent. These factors lead me to conclude that Allen had no reason to fabricate her testimony in light of the fact that she testified adversely to her pecuniary interest. Flex- steel Industries, 316 NLRB 745 (1995), affd. 83 F.3d 419 (5th Cir. 1996). Likewise, the instances of Wiedman’s involvement with union activities as discussed above and her high level position in Respondent’s hierarchy, leads me to believe that Wiedman made the statements attributed to her in paragraph 5(D) of the complaint. Therefore, I recommend that the allega- tions alleged in that paragraph be sustained. 4. Allegations concerning Charles Roach a. Facts The General Counsel alleges in paragraph 5(E) of the com- plaint that about April 26, Supervisor Charles Roach threatened DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD360 an employee with withholding a pay increase because of the employees’ union activities. Allen testified that she had a discussion with Roach to seek a pay increase because she had attended several classes to be a preceptor for the purpose of training newly-hired employees on blood-collection procedures. On direct examination, Allen stated that Roach informed her that she would not be able to get a raise until the union stuff was over. On cross-examination, however, Allen testified that Roach informed her that any raises would have to be negotiated after the union stuff was over. Roach acknowledged during his testimony that he recalled a conversation with Allen that concerned a request for a raise. He informed Allen that if anything occurred before the Union arrived, the Respondent could give a raise but if the Union was selected by the employees to represent them then future raises will be dependent on negotiations and any resulting contract. He further told Allen that you start with a blank piece of paper in negotiations. b. Discussion In evaluating this allegation, I found Roach to be a very sin- cere and credible witness who had a good recollection of the facts and a more precise memory of the conversation that he had with Allen about the raise. Allen, on the other hand, dra- matically changed her testimony from that given on direct ex- amination when responding to questions on cross-examination regarding what Roach told her during their conversation about the raise. Under those circumstances, I am not inclined to credit Allen regarding this conversation. Therefore, I find Roach’s recitation of events during the conversation concerning the raise to be more plausible and not violative of the Act. In summary, I find that Roach did not make the statements attributed to him in paragraph 5(E) of the complaint and rec- ommend that the allegation be dismissed. 5. Allegations regarding the harassment of an employee a. Facts The General Counsel alleges in paragraph 5(F) of the com- plaint that about May 5, a number of supervisors harassed an employee because of the employee’s union activities and par- ticipation in a Board hearing. Employee Jerri Thompson is one of the long-tenured em- ployees at Respondent having worked there for approximately 10 years. She was an experienced donor-service specialist who served as a preceptor and a pilot when driving the van with team members to mobile blood-drive locations.3 Thompson was also one of the leading union adherents having been sub- poenaed by the Union to testify in the representation case hear- ing and serving as a spokesperson on behalf of the Union in discussing the benefits of the Union with coworkers during nonworktime, and in the van while driving employees to the mobile work locations. She also was heavily engaged in pass- ing out union authorization cards to fellow employees. On May 4, Thompson received a telephone call at home from first-line supervisor Nemec to attend a meeting with him 3 Employees who held the position of pilots received extra pay when driving the van to remote mobile blood locations. and another supervisor the next day at work. Thompson wanted to bring someone with her as her representative but Nemec told Thompson that it was not permitted. Upon arriving at the meeting on May 5, in district 4, Interim Manager Barbara Labinjo’s office, Nemec informed her that human resources assistant Robyn Kline would also participate in the meeting by telephone. Nemec informed Thompson that based on some of her testimony given in the representation case hearing it ap- peared to Labinjo that she did not fully understand the duties and responsibilities of her team-leader position. Nemec then proceeded to read the entire team-leader handbook verbatim to Thompson during the meeting and after each section inquired if Thompson understood and asked whether she was doing this function with team members. The meeting took approximately 1-1/2 hours and Thompson received no discipline as a result of the meeting. The Respondent does not dispute what took place during the course of the meeting but asserts that the purpose of the meet- ing was not to harass Thompson but rather to make sure that she fully understood the duties and responsibilities of the team- leader position. In this regard, Labinjo heard Thompson testify at the representation case hearing that she permitted team members at the mobile blood drives to choose which responsi- bilities they wanted to perform rather then directly assigning responsibilities to each individual team member. Accordingly, Labinjo, who was not Thompson’s direct supervisor, requested that Nemec hold a meeting to discern if Thompson was conver- sant with her team-leader duties. Director of Human Resources Wineland was informed in advance of the meeting and directed her assistant, Robyn Klein, to participate in the meeting by telephone. During the course of the meeting Wineland also participated by telephone. Both Wineland and Kline took notes of the meeting immediately after it concluded and their recita- tions do not materially differ from Thompson’s version of events (GC Exh. 24; R Exh. 9). b. Discussion The issue for consideration is whether the actions of Re- spondent in holding the May 5 meeting amounted to harass- ment of Thompson because of her union activities. Nemec acknowledged that in January 2004, he had met with the team leaders under his direct supervision including Thomp- son and reviewed the team-leader handbook either individually or in a group setting. He also admitted that no other manager attended those meetings and that he did not read the handbook paragraph-by-paragraph to the team leaders. He further ac- knowledged that he never received any reports or complaints that Thompson was performing her job duties in an unaccept- able manner. Likewise, Nemec testified that he never read the team-leader handbook to any other employee word-for-word or called a meeting with an employee to do so. Based on the discussion set forth above, I am of the opinion that Labinjo requested that the meeting take place solely be- cause of the testimony that Thompson gave during the repre- sentation hearing. Prior to this meeting, there were no reports or complaints about the inadequacy of Thompson’s team-leader job performance and Nemec admitted that he had never previ- ously read the team-leaders handbook word-for-word to any AMERICAN RED CROSS MISSOURI-ILLINOIS BLOOD SERVICES REGION 361 employee. Assuming that Labinjo legitimately was concerned that Thompson was uncertain about one aspect of her job du- ties, there was no compelling reason to read the entire hand- book to her when Labinjo’s sole concern rested with the re- sponsibility of assigning duties to team members rather then permitting team members to decide which duties they would perform. I find the actions of the Respondent, when taken as a whole, were directed at an employee who was a known and vocal supporter of the Union to be nothing more than harass- ment rather than a legitimate inquiry concerning Thompson’s knowledge of her job duties. For all of the above reasons, I find that the actions of the Re- spondent violate Section 8(a)(1) of the Act and recommend that the allegations in paragraph 5(F) of the complaint be sustained. 6. Allegations concerning Michelle Langley a. Facts The General Counsel alleges in paragraph 5(G) of the com- plaint that Senior Director of Donor Services Michelle Langley about May 6, solicited employee grievances, promised to rem- edy grievances if employees chose not to be represented by the Union, and threatened employees with loss of jobs and pay if employees chose to be represented by the Union. Supervisor Pam Burgess apprised a number of employees working at the Mount Vernon High School blood drive that Langley would be visiting the location and intended to give a presentation to those in attendance. Upon arriving at the loca- tion, according to employee Ramona Curtis, Langley engaged her in conversation and said that she heard some of the employ- ees were unhappy. Curtis informed Langley that a number of employees were upset with their scheduling, inadequate staff- ing, and not being paid for mileage when they drove their per- sonal vehicles to remote mobile blood-drive locations.4 Curtis informed Langley of the names of employees who had not been fully reimbursed for mileage and later in the day wrote down the names for Langley on a piece of paper. Langley promised to look into the matter. According to Curtis, in due course, employees were eventually paid for past due mileage expenses. Curtis and Langley engaged in a further one-on-one conversa- tion and according to Curtis, Langley informed her that she was new to her position and requested that the employees give her a chance to straighten things out. Additionally, Curtis testified that Langley told her that “I’m going to be able to do more for you then [sic] the Union can.” Employee Brenda Loy also was working at the Mount Vernon High School blood drive on May 6, and had the oppor- tunity to talk with Langley inside the school. The topic of the Union came up and one of the employees asked Langley in Loy’s presence if the Union had organized any other Red Cross facilities. Langley responded that she was aware of one Red Cross facility in Nebraska and gave this as an example that when a union comes into a facility you could lose benefits. 4 Curtis acknowledged on cross-examination that prior to March 26, the date the Union’s representation petition was filed, she complained to Supervisors Burgess and Sandra Loy that employees were upset about not being reimbursed for mileage when driving to remote mobile blood-drive locations. Langley apprised those including Loy that before contract ne- gotiations commenced in the Nebraska Red Cross facility there was a complement of 64 nurses and when the contract negotia- tions were finalized there were less than 10 nurses left. Loy testified that Langley informed the employees that she would be on the negotiating team if the Union won the election and she could get the nurses wages cut to $12 an hour. Langley testified that she assumed the permanent position of senior director of donor services in April 2004. She acknowl- edged that she attended the Mount Vernon High School blood drive and when she first was introduced to the employees a number of them bombarded her with questions including those about inadequate staffing and lack of mileage reimbursement. Langley obtained the names of the employees who asserted they were not reimbursed for mileage and promised to look into the matter. Langley testified that she had experience in prior union organizing campaigns and was familiar with what issues could and could not be addressed with employees. Indeed, she mentioned the guidelines known as “TIPS,” wherein managers should not threaten, interrogate, promise, or spy on employees but noted that managers could address issues that arose prior to the commencement of the organizing campaign. Langley ac- knowledged that in response to a question from one of the em- ployees at the high school, she informed them that the Union had previously engaged in an organizing campaign in the Red Cross midwest region and that after negotiations the wages of nurses were reduced so that a large percentage of them left employment. Langley categorically denied interrogating or threatening employees or soliciting employee’s grievance and promising to remedy them during her attendance at the blood- drive location. b. Discussion Langley impressed me as a savvy manager who had previous experience in dealing with union organizing campaigns and was conversant in what could be discussed with employees without violating the Act. In regard to Langley looking into employees not being reimbursed for mileage, it followed prior complaints to first-line supervisors before the commencement of the organizing campaign and these same questions were raised with her during her conversations with impacted em- ployees. Recycle America, 308 NLRB 50, 56 (1992) (no viola- tion where employer asked employees what their concerns were and promised to look into them; not a promise to treat com- plaints differently than in the past). In the totality of what was discussed at the Mount Vernon High School blood drive, I am convinced that Langley did not engage in the statements attributed to her in paragraph 5(G) of the complaint. Rather, I believe that employees Curtis and Loy took statements made by Langley out of context and made their own interpretations of what she tried to express during their conversations on May 6. I also note that 11 employees were assigned to the Mount Vernon High School location and the General Counsel only called two employees to support this allegation. For all of the above reasons, I credit Langley’s tes- timony that she did not solicit or attempt to remedy employee grievances nor did she threaten employees with loss of jobs and pay if they chose the Union to represent them. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD362 Therefore, I recommend that the allegations in paragraph 5(G) of the complaint be dismissed. 7. Allegations concerning Patricia Lasater and Lisa Wilson a. Facts The General Counsel alleges in paragraph 5(H) of the com- plaint that Supervisor Patricia Lasater and Recruitment Man- ager Lisa Wilson about May 17, told employees that it would be futile for them to select the Union as their bargaining repre- sentative and solicited and promised to remedy grievances if the employees chose not to be represented by the Union. Employee Kelly Sanders testified that she attended a manda- tory meeting with approximately 40 employees that Lasater and Wilson called to discuss plans going forward for automation technology at the Respondent. The meeting lasted in excess of 1 hour. At one point in the meeting, a number of employees raised questions about the Union. According to Sanders, La- sater told the employees that the Union is not good and it could take a long time. Wilson told the employees that she knows that the Red Cross has some issues but asked the employees to give the Respondent a year to straighten out some of the exist- ing problems. Wilson also asked the employees to vote no, and told employees that in a year if things had not been worked out she will personally call the Union. Lasater acknowledged that she did attend the May 17 meet- ing and that Wilson had prepared an agenda that she followed throughout the course of the meeting (R Exh. 12). Lasater as- serted that during the meeting a number of staff members raised questions about the union campaign but they were few in num- ber. Lasater stated that in response to some of the employees’ questions about wage increases she told them that negotiations would have to take place in order to determine their amount. Wilson testified that at no time did she tell employees that it would be futile to select the Union as their bargaining represen- tative and Sanders did not substantiate this allegation during her testimony. b. Discussion Wilson credibly testified that she had undergone prior train- ing on how to respond to employee questions during union organizing campaigns. In this regard, she was aware that you could not discuss or elicit opinions from employees about the Union. Thus, I do not credit Sanders’ testimony that Wilson asked employees to give them a year to straighten out existing problems. Even if Wilson made such a statement, the Board has found it proper for an employer to ask for a second chance in an organizational campaign (Noah’s New York Bagels, Inc., 324 NLRB 266 (1997)). Based on the above recitation and testimony of Sanders, I am not convinced that either Lasater or Wilson made statements during the meeting that are violative of Section 8(a)(1) of the Act. I also note that out of 40 employees that attended this meeting, the General Counsel only produced one employee to testify to the allegations alleged in this paragraph of the com- plaint. For all of the above reasons, I recommend that the allega- tions in paragraph 5(H) of the complaint be dismissed. 8. Allegations concerning Michelle Langley a. Facts The General Counsel alleges in paragraph 5(I) of the com- plaint that about June 24, Senior Director of Donor Services Michelle Langley threatened to close the Effingham facility, threatened to withhold pay increases, and threatened employees with loss of benefits if they selected the Union as their bargain- ing representative. Employee Brenda Loy testified that she attended a meeting held by Langley with five other employees at the Effingham facility. According to Loy, Langley distributed some paper- work to show employees that if they did not pay union initia- tion fees and union dues, the Union would have the right to request the Employer to terminate them. During the meeting Langley mentioned that a private sector plant in the Effingham vicinity would be closing because of labor relations problems. According to Loy, Langley told the employees that she wasn’t saying that it was going to happen here, but that it was a possi- bility. Additionally, Loy asserted that Langley told the em- ployees that she did not want the Union at the Red Cross and asked the employees to give her a chance for a year to fix things and if matters could not be fixed, Langley would find a union for the employees. Langley testified that she attended the meeting at Effingham due to the request of Supervisor Burgess who informed her that a number of employees had questions about the Union. Lang- ley asserts that an employee question arose about a plant that closed in the immediate vicinity but she never informed em- ployees that they would lose benefits or the Effingham facility would be closed. Rather, she apprised employees that any benefits would be determined under the negotiation process and that during bargaining pay increases are sometimes frozen. Human resources assistant Robyn Kline attended this meeting and credibly testified that Langley informed the employees that pay raises are normally obtained through bargaining and some- times wage increases could be frozen while negotiations are ongoing. In regard to the private sector facility that closed in the immediate vicinity of the Effingham office, Kline noted that discussions did occur on this matter and that Langley in no way threatened employees that the same thing could happen to the Effingham facility. b. Discussion As previously discussed earlier in the decision when evaluat- ing Langley’s credibility in paragraph 5(G) of the complaint, I determined that she had a general understanding of what could be discussed with employees in the course of an ongoing union organizing campaign. Thus, I am hard pressed to find that Langley made the statements attributed to her by the General Counsel. Moreover, Kline accompanied Langley to this meet- ing and credibly testified that Langley did not threaten any employees with plant closure or loss of pay or benefits if the employees selected the Union as their bargaining representa- tive. Moreover, I note that the General Counsel did not call any additional witnesses other than Loy to confirm that Langley threatened employees at this June 24 meeting. AMERICAN RED CROSS MISSOURI-ILLINOIS BLOOD SERVICES REGION 363 For all of the above reasons, I recommend that paragraph 5(I) of the complaint be dismissed. 9. Allegations concerning Patricia Lasater and Lisa Wilson a. Facts The General Counsel alleges in paragraph 5(J) of the com- plaint that about July 1, Supervisor Patricia Lasater and Re- cruitment Manager Lisa Wilson threatened that employees would not get a raise and also threatened that employees would not get a raise during bargaining if the employees chose the Union as their bargaining representative. Employee Kelly Sanders testified that on July 1, Lasater and Wilson came to her West County worksite to talk with employ- ees and a discussion concerning the Union took place outside the breakroom. Sanders said that in response to a question, Lasater told the employees that it could take up to 2 years to get raises if the Union won the election. Sanders asserts that Wil- son informed the employees that it could take around 14 days if the election vote was appealed and in negotiations with the Union it could take up to 2 years to get a raise.5 Wilson testified that a meeting did take place at the West County facility on July 1 to inform the employees that Lasater would be their new supervisor. Wilson asserts that no discus- sion took place about the Union nor did she discuss wages or pay raises with the employees. Lasater was not asked any questions about this meeting during her direct testimony. b. Discussion Even if Sanders testimony is credited in its entirety, I am not convinced that the statements she attributes to Lasater and Wil- son are violative of the Act. I do not discern any threatening comments in Sanders recitation of what Lasater and Wilson stated at the July 1 meeting. Moreover, Sanders did not sub- stantiate that either Lasater or Wilson made the statements al- leged in paragraph 5(J) of the complaint and her testimony that she was home sick on July 1 casts doubt on her assertions. Under these circumstances, I recommend that paragraph 5(J) of the complaint be dismissed. 10. Allegations concerning Patricia Lasater a. Facts The General Counsel alleges in paragraph 5(K) of the com- plaint that about July 2, Supervisor Patricia Lasater created the impression that an employee’s union activities were under sur- veillance, interrogated an employee about the employee’s union activities and sympathies, told an employee that the employee could not be trusted because of the employee’s union activities and solicited an employee to sign an antiunion petition. Sanders testified that she met with Lasater on July 2 to dis- cuss her two performance evaluations and despite the signature date of June 3 that appears on both appraisals, she is certain that the meeting occurred on July 2 (R Exhs. 5 and 6). Sanders asserted that during their meeting Lasater informed her that she needed to be a team player. Sanders further testified that La- sater stated that she heard Sanders was for the Union and you 5 Further doubt is cast on Sanders’ veracity as she testified at the hearing that she was sick on July 1, and did not report to work. should vote no. Sanders also stated that around July 1 an anti- union petition was being circulated in her work facility that not all of the staff agreed with (GC Exh. 5). Sanders testified that a fellow employee who works in a different facility than Sanders distributed the antiunion petition. When a coworker at Sand- ers’ jobsite attempted to give her a copy of the petition to sign, Sanders told the employee to get it out of her face. Sanders asserts that after the evaluation meeting on their way to the lobby, Lasater handed the antiunion petition to her and said you need to be part of the team and sign this. Lasater testified that she did meet with Sanders to discuss her evaluation but it did not occur on July 2 as alleged by Sand- ers. Rather, they met on June 3, when both she and Sanders signed the evaluations. Lasater also points to the fact that Rachelle Wiedman, the interim director, signed off on the ap- praisals on June 11 as the reviewing official. Lasater further testified that the antiunion petition was created and distributed by employees in the bargaining unit without any involvement from her and at no time did she give a copy of the petition to Sanders either during or after the evaluation meeting. Lasater admitted that she informed Sanders that she should be a team player and on occasions she could not trust her but indicates that these comments were made in the context of Sanders ap- praisals. In this regard, Lasater points to the fact that as part of the appraisal form under “Interpersonal Skills” the term “Is a team player” is used and she noted in the appraisal that Sanders often “gossips” with or about other employees and needs to be trusted more if she wants to move up in the organization. b. Discussion I am not convinced that the evaluation meeting took place on July 2, when alleged surveillance and interrogation by Lasater took place. Rather, based on the appraisal documents, I find that any meeting to discuss them took place in June 2004, at a time prior to Wiedman signing off on the evaluations as the reviewing official. Moreover, I am inclined to credit Lasater’s testimony that any discussion about “trust” took place in the context of Sanders appraisal and was unrelated to her union sympathies or activities. Likewise, I do not credit Sanders testimony that Lasater asked her to sign the antiunion petition. Rather, as testified to by Sanders a fellow employee showed her a copy of the petition to which Sanders told that employee to get the petition out of her face. I further find that during the evaluation meeting, Lasater did not raise issues about the Union with Sanders. Therefore, I find that the General Counsel did not sustain the allegations in paragraph 5(K) of the complaint and recommend that they be dismissed. 11. Allegations concerning Lisa Wilson and Patricia Lasater a. Facts The General Counsel alleges in paragraph 5(L) of the com- plaint that about July 7, Recruitment Manager Lisa Wilson and Supervisor Patricia Lasater interrogated an employee about the employee’s union activities. Sanders testified that Lasater asked her to be an observer for the Employer in the July 8 election. Sanders agreed to serve as an observer and on July 7, attended a preelection meeting with DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD364 approximately 40–50 other employer observers that was con- ducted by one of Respondent’s attorneys. According to Sand- ers, Wilson asked her “where is your vote no button.” Sanders told Wilson that she must have left the button at home and Wil- son then gave her another vote no button. During the course of the meeting, Lasater came over and after observing the vote no button, told Sanders that she was so proud of her. Wilson testified that she did not talk to Sanders during the preelection meeting. Lasater testified that she did talk to Sand- ers at the preelection meeting and Sanders brought up the Un- ion. Lasater asserts that Sanders said she was tired about argu- ing about the Union and she received pressure both ways con- cerning the pros and cons of the Union. Lasater stated that she never asked Sanders how she would vote but told her to vote how you want and don’t try and please both sides. b. Discussion Even if Sanders testimony is credited in its entirety, I am not convinced that Wilson or Lasater’s statements violate the Act. In this regard, the majority of employer observers at the pre- election meeting were wearing vote no buttons. It was natural for Wilson, after observing other employee observers wearing their vote no buttons and seeing Sanders without one, to inquire where is your vote no button. Thus, under these circumstances, I do not find Wilson’s question to be violative of the Act. Ad- ditionally, I tend to credit Lasater’s version of the conversation that she had with Sanders at the preelection meeting. Since all of the employees who were in attendance at the meeting had previously agreed to be employer observers, it makes no sense that either Wilson or Lasater would single out Sanders to inter- rogate her about the Union. For all of the above reasons, I recommend that paragraph 5(L) of the complaint be dismissed. 12. Allegations concerning Respondent’s campaign literature a. Facts The General Counsel alleges in paragraph 5(M) of the com- plaint that about July 8, Respondent in campaign literature impliedly threatened employees that their wages and benefit programs would remain frozen during bargaining if employees chose the Union as their bargaining representative. On or about July 8, the Respondent distributed to employees an 18-page pamphlet that included numerous questions with answers about the Union (GC Exh. 4). At page 9 of the docu- ment, it states as follows: If Bargaining for a First Contract is not Simple, How long would it take? • When bargaining for a first contract does begin, it can be a long and complicated process, taking weeks, months, a year . . . or longer. • While bargaining goes on, wage and benefit pro- grams typically remain frozen until changed, if at all, by contract. If the union wins, You take the risks . . . you will have to “wait and see” if anything happens to wages and bene- fits. b. Discussion The Respondent argues that the above language has previ- ously been found not to violate the Act in the Board’s holding in Mantrose-Haeuser Co., 306 NLRB 377 (1992). There the Board found that the same language used in the subject case was contained in a 19-page document that was devoid of any other unlawful or objectionable statements. The Board also noted that the respondent in that case, as I find in the present case, did not say that preexisting benefits would be lost if the Union won the election. The respondent’s statement was that wage and benefit programs would be frozen. The statement implies only that wages and benefit programs would not change. The respondent in that case, as I find in the present case, had a past practice of granting predetermined wage in- creases following yearly employee evaluations and training periods. That practice continued during the election campaign. Finally, the Board in that case, as I find in the subject case, noted that the word “frozen” was preceded by the word “typi- cally,” which modified and limited its meaning, thereby reduc- ing the possibility that employees would reasonably perceive the statement as a threat that their wages and benefits would be lost. Based on the above holding of the Board, I conclude in the same circumstances presented here, that the Respondent’s statement regarding wages and benefits, “typically remain fro- zen” does not constitute a threat in violation of Section 8(a)(1) of the Act. Therefore, I recommend the allegations in para- graph 5(M) of the complaint be dismissed. C. The 8(a)(1) and (3) Violations The General Counsel alleges in paragraph 6(B) of the com- plaint that about April 26, Respondent imposed more onerous working conditions on its employees Nicole Bishop, Catherine Pendleton, and Jerri Thompson by isolating these employees from other employees. In Wright Line, 251 NLRB 1083 (1990), enfd, 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board announced the following causation test in all cases alleging violations of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation. First, the General Counsel must make a prima facie showing sufficient to support the in- ference that protected conduct was a “motivating factor” in the employer decision. On such a showing, the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. The United States Supreme Court approved and adopted the Board’s Wright Line test in NLRB v. Transportation Management Corp., 462 U.S. 393, 399–403 (1993). In Manno Electric, 321 NLRB 278 fn. 12 (1996), the Board restated the test as follows. The General Counsel has the burden to persuade that antiunion sentiment was a substantial or motivating factor in the chal- lenged employer decision. The burden of persuasion then shifts to the employer to prove its affirmative defense that it would have taken the same action even if the employee had not en- gaged in protected activity. For the following reasons, I find that the General Counsel has made a strong showing that the Respondent was motivated by antiunion considerations in isolating the three employees AMERICAN RED CROSS MISSOURI-ILLINOIS BLOOD SERVICES REGION 365 from other employees. First, the evidence establishes that Re- spondent knew that the three employees were leading union adherents, all of them having either testified or appeared at the April 2004 representation case hearing under subpoena from the Union. Second, one of Respondent’s supervisors informed the employee who prepares the mobile blood-drive schedules, that the three employees should be scheduled together, until she is told differently, to keep them from infecting the others. The burden shifts to the Respondent to establish that the same action would have taken place even in the absence of the employee’s protected conduct. The Respondent contends that as of April 2004, the three employees were assigned to the same team based on their ex- pertise and experience in working with large corporate clients, and that is the reason that they were often scheduled together during the period from April to October 2004. I find that the reasons advanced by Respondent are pretex- tual and suggest a predetermined plan to isolate the three em- ployees from other employees to prevent them from engaging in union activities. Employee Gayle Hinklin commenced her employment at Re- spondent in July 2001, and in December 2003, started working in the central scheduling office with the primary responsibility of preparing the schedules for mobile blood-drive employees in districts 2 and 3. Hinklin testified that the team components are forwarded to her department by the respective supervisors in each district and then she compiles the schedules with oversight from Scheduling Manager Helen Gwin. Some of the criteria that she uses when scheduling is to assign one pilot (driver of the van) and one preceptor (trainer of new employees) to each respective team if at all possible. Hinklin was aware that an election petition was filed for the mobile blood-collection em- ployees but since she was assigned to the scheduling office, her position was not included in the petitioned-for-unit. Commenc- ing in April 2004, when Hinklin started to compile the sched- ules for the district 2 mobile blood-drive employees, she no- ticed that three or four employees seemed to be routinely scheduled together and that several of them were qualified pre- ceptors or pilots. The four employees were Nichole Bishop, Catherine Pendleton, Jerri Thompson, and Marion Stratton.6 Accordingly, Hinklin inquired of Gwin why this was occurring on such a regular basis. In two separate conversations in April 2004, Gwin told Hinklin “that she was instructed to put the four employees together and we will keep these people together to keep them from infecting the others.” Gwin further stated to Hinklin, “that this came from higher ups and will remain in effect until I tell you differently.” Gwin categorically denied that she made the statements at- tributed to her by Hinklin. I have grave doubts about Gwin’s denial for the following reasons. First, Gwin denied knowing 6 Each of these employees either individually or in a group asked Supervisors Nemec, Labinjo, and Wiedman why they were being iso- lated from other employees and only assigned to work with each other on a regular basis. Respondent’s answer was they were on the same team and, therefore, were regularly assigned to the same blood drive. I note that while Marion Stratton is not alleged in par. 6(B) of the com- plaint, she served as an observer in the election for the Union and was routinely assigned to work with the other three known union adherents. about the union organizing campaign until sometime in May 2004, and contended that she had no conversations with any managers about the union campaign in March or April 2004. Aside from the fact that the filing of the election petition on March 26 was common knowledge throughout the facility, Gwin’s immediate supervisor (Wiedman) contradicted her and testified that she discussed the union organizing campaign with Gwin in April 2004. Moreover, I find that Hinklin was a very credible witness who was neutral in the union organizing cam- paign since her position was not included in the petitioned-for- unit. Thus, I find that she had no reason to fabricate her discus- sion with Gwin regarding the irregular scheduling of the four employees. Further evidence that confirms what Hinklin ob- served and Gwin stated is revealed in the actual schedules be- tween January and September 2004 (GC Exh. 6(a), (b), (c), and (d)). Indeed, I personally reviewed each of these schedules and gleaned the following information. Between January 2 and April 25, there were no instances of scheduling either 3 or 4 of the above-noted employees together on even one mobile blood- drive assignment. Instances when two of the four employees were scheduled together during the same time period averaged less than three times each month. From April 26 to 30, the employees were scheduled together on each day. In May 2004, the employees were scheduled 19 times together. On other days when they were not scheduled together, the employees on a number of occasions either were not on the schedule or three of them were off on the same day. In June 2004, the employees were scheduled with each other on at least 20 occasions. In July 2004, the employees were scheduled together on 15 occa- sions. In August and September 2004, the employees were scheduled respectively, 19 and 9 times together. I note in Sep- tember 2004 that on 10 days three of the employees were either off on the same day or not scheduled to work. Based on the above recitation, I am convinced that the Re- spondent isolated Bishop, Pendleton, and Thompson from other employees to keep them from engaging in union activities or urging their coworkers to join the Union. Each of these em- ployees was known by the Respondent as early as April 2004 to be active supporters of the Union. Indeed, the scheduling isola- tion commenced shortly after the close of the representation case hearing in April 2004. Accordingly, I find that the Respondent’s actions in isolating the three employees to violate Section 8(a)(1) and (3) of the Act and recommend that the allegations alleged in paragraph 6(B) of the complaint be sustained. III. THE UNION OBJECTIONS The Union objected on 12 grounds to conduct that they claim affected the results of the election. As set forth in the Board’s order consolidating cases, 10 of the union objections to the conduct of the election are coextensive and encompassed by the complaint. The two remaining objections will be addressed below. Objection 12 In this objection, the Petitioner alleges that on or around July 2, the Employer allowed an employee to travel from center-to- center and confront employees about signing an antiunion peti- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD366 tion containing statements that collective bargaining is a futile process, and threats of a wage freeze. While there is some testimony in the record concerning an antiunion petition that was faxed to and then distributed at the West County Center (GC Exh. 5), the Petitioner did not offer any evidence to establish that any Respondent representative supported, condoned, or specifically permitted any employee to travel from center-to-center and confront employees about sign- ing it. Indeed, the first part of the petition abundantly makes clear that the authors of the petition are not management but are line staff. Under these circumstances, the Petitioner did not substanti- ate the underpinnings of this objection, and I recommend that it be dismissed. Objection 14 In this objection, the Petitioner alleges that the Employer in- duced employees to vote against the Union, held a captive au- dience meeting within 24 hours of the election to encourage employees to vote against the Union, interrogated employees selected by the Union as observers, and discriminated against union observers: (a) On or around July 1, Team Supervisor Pam Burgess ap- proached an employee in Effingham, Illinois, and suggested that the employee was going to be an observer for the Union. (b) On or around July 1, at a blood drive in Flora, Illinois, Supervisor Sandy Loy told a group of employees that observers for the Company would receive 8-hours pay for working as observers and could then go to their scheduled blood drive to earn extra money. The group of employees included individu- als who served as observers for the Company. (c) On or around July 6, the Employer told an employee that she could serve as an alternate observer for the Employer at the election, and she would get paid 8 hours for the 2-hour preelec- tion conference meeting. (d) On July 7, within 24 hours of the election, the Employer met with its observers prior to the preelection conference and asked them to wear “VOTE NO” buttons to the meeting. (e) On July 7, the Employer paid its observers and alternates to attend the preelection conference and excused them from work. The Union did not receive notice prior to the conference that observers for the Union could attend the meeting or that the Union could have alternates. (f) On July 7, during the preelection conference, Manager Barbara Labinjo and Manager Lisa Wilson called employees whom the Union had selected as observers and asked them if they were “alright with that” and that they needed to take PTO (paid time off) time. (g) On July 7, after the preelection conference, Supervisor Pam Burgess told an employee whom the Union had selected as an observer that she had to use her personal time off if she wanted to be an observer. (h) On July 8, the Employer paid its observers and alternates 8-hours’ pay for working one 2-to 3-hour election-shift period. The Employer did not require its observers to take PTO (paid time off). The Employer utilized 33 observers and alternates. The Union had four observers. In one instance, the Employer had two observers and three alternates at one shift. In Effing- ham, Illinois, some of the employer alternate observers left the polling place after they voted and before the voting period was over. At other polling places, observers were allowed to return to work after voting and work a full shift. Observers for the Union were not given the opportunity to work their shift. The gravamen of the Petitioner’s objection is that union ob- servers were treated disparately when compared to the treat- ment received by the Employer’s observers. Senior Director of Donor Services Michelle Langley testified that she authorized 8 hours of pay for those employees who were going to serve as employer observers for both July 7 and 8. In this regard, a number of the observers selected for the Employer had to travel lengthy distances in order to be in St. Louis for the preelection Employer meeting that was held be- fore the preelection conference with Board personnel. Addi- tionally, these same employees would be required to serve as observers or alternates for the election on July 8. Langley also approved a full day’s pay on July 7 and 8, for those employees who could work their regular schedule while still being able to attend the required meetings on July 7, and the election on July 8. For example, employee Kelly Sanders testified that she was paid for 20 hours on both July 7 and 8 by working her regular schedule on both days and being paid 8 hours for her atten- dance as an employer observer at the required meetings on July 7 and the election on July 8. This testimony is consistent with the timecards for all employer observers and alternates that were introduced into evidence covering the period of July 7 and 8 (CP Exh. 6). On the other hand, union observers were treated differently. For example, employee Brenda Loy credibly testi- fied that around July 7 she received a telephone call from her Supervisor Pam Burgess who apprised Loy that if she wanted to be an observer for the Employer she would be paid for 8 hours and if it did not interfere with her regular work schedule she would also be paid for working that day. Burgess then informed Loy that the Union had requested her to be an ob- server for the election and if she accepted, she would have to take PTO (paid time off). Loy told Burgess that this was not right since if you are an observer for the Employer you get paid and do not have to take PTO. Burgess did not testify at the hearing so Loy’s testimony is unrebutted. This disparate treat- ment is further confirmed by the timecards that show that em- ployees who served as union observers were required to take PTO for the election on July 8 (CP Exh. 5). The record also establishes that union observers were not in- vited to attend the July 7 preelection meeting that employer observer’s had with one of Respondent’s attorneys nor was the Union informed that they could have alternate observers. The Board in a recent case, Jewish Home for the Elderly of Fairfield County, 343 NLRB 1069, 1114 (2004), held that the employer’s refusal to permit the union’s observers to work on the day of the election, while permitting its own observers to work, interfered with the employees’ exercise of their Section 7 rights in violation of the Act. Likewise in that case, as in the subject case, union observers were told that they would have to take a vacation day or personal day in order to serve as observ- ers. See also Big Three Industrial Gas & Equipment Co., 181 NLRB 1125 (1970), enf. denied 441 F.2d 774 (5th Cir. 1971). AMERICAN RED CROSS MISSOURI-ILLINOIS BLOOD SERVICES REGION 367 Based on the above discussion, I find that the Respondent treated union observers differently than employer observers and sustain the Petitioner’s Objection 14.7 The Board conducted the election on July 8 at the Em- ployer’s premises. The Union filed timely objections on July 15. I have found that the Respondent committed unfair labor practices consisting of soliciting employee grievances, interro- gating an employee about the employee’s union activities and sympathies and the union activities and sympathies of other employees, harassing an employee because of the employee’s union activities and participation in a Board representation case hearing, and imposing more onerous working conditions on its employees Nicole Bishop, Catherine Pendleton, and Jerri Thompson by isolating these employees from other employees. The objections that allege these forms of misconduct are there- fore sustained. Additionally, I found one of the objections filed by the Petitioner that was not alleged in the complaint to be sustained. In this regard, I found as more fully discussed above that the Respondent treated its employee union observers dis- parately when compared to the pay and benefits provided to Employer observers and alternates. In Safeway, Inc., 338 NLRB 525 (2002), the Board held that conduct violative of Section 8(a)(1) of he Act will, a fortiori, constitute conduct that interferes with the exercise of free and untrammeled choice in an election unless it is virtually impos- sible to conclude that the misconduct could have affected the election results. Based on the violations of the Act discussed above, I con- clude that these unfair labor practices and the underpinnings of Objection 14 precluded achievement of the requisite laboratory conditions and materially undermined the employees’ freedom 7 In its brief, the Respondent cites Golden Arrow Dairy, 194 NLRB 474, 478–479 (1971), for the proposition that it is permissible for an employer to pay its observers but not the union’s observers. I note that the Board did not independently discuss this issue but affirmed the trial examiner’s recommended order. Additionally, the issue of being paid as an employer representative at the preelection meetings and being permitted to work and being paid on the day before and the day of the election was not before the Board in that case as it is in the subject case. of choice. As a result, I will recommend that a second election be conducted. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by soliciting employee grievances. 4. Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by interrogating an em- ployee about the employee’s union activities and sympathies and the union activities and sympathies of other employees. 5. Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by harassing an em- ployee because of the employee’s union activities and partici- pation in a Board representation case hearing. 6. Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act by imposing more onerous working conditions on its employees Nicole Bishop, Catherine Pendleton, and Jerri Thompson by isolating these employees from other employees. 7. The unfair labor practices described above affect com- merce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondent having discriminatorily imposed more on- erous working conditions on its employees Nicole Bishop, Catherine Pendleton, and Jerri Thompson by isolating these employees from other employees, it must immediately cease assigning these employees to the same mobile blood drives for the purpose of keeping these employees away from other em- ployees. [Recommended Order omitted from publication.] Copy with citationCopy as parenthetical citation
