BENTLEY UNIVERSITY

National Labor Relations Board - Administrative Judge Opinions

Mar 25, 2014

01-CA-111570 (N.L.R.B. Mar. 25, 2014)

JD(NY)–14-14
Waltham, MA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
BENTLEY UNIVERSITY
and Case No. 1-CA-111570
BENTLEY UNIVERSITY PUBLIC SAFETY ASSOCIATION
Karen Hickey, Esq., Counsel for the General Counsel.
Thomas Horgan, Esq., Law Offices of Michael Hanely, LLC, Counsel for the Charging Party.
Arthur Telegen, Esq. and Jean Wilson, Esq., Seyfarth Shaw LLP, Counsel for the Respondent.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on
February 19, 2014 in Boston, Massachusetts. The Complaint herein, which issued on November
29, 20131 and was based upon an unfair labor practice charge that was filed on August 20 by
Bentley University Public Safety Association, herein called the Union, alleges that Bentley
University, herein called the Respondent, violated Section 8(a)(1) of the Act by conducting an
investigatory interview with employee Maria Canino after she requested to have a
representative of the Union present with her, and continued the interview while requiring the
Union representative to be silent during the interview, although Canino had a reasonable cause
to believe that the interview could result in disciplinary action being taken against her.
I. Jurisdiction and Labor Organization Status
Respondent admits, and I find that it has been engaged in commerce within the meaning
of Section 2(2), (6) and (7) of the Act and that the Union has been a labor organization within
the meaning of Section 2(5) of the Act.
II. The Facts
Canino was employed as a police officer by the Respondent’s Public Safety Department
from January 2010 to November. The Union began representing the police officers in about
June, at which time she became a member of the Union. She worked from 3:00 P.M. to 11:00
P.M., four days on and two days off. At the time, there were eighteen patrolmen reporting to
nine sergeants, who reported to the two lieutenants, William Williams and Panashe Flint. In
addition to their regular assignments of patrolling the campus, Respondent’s officers are
occasionally assigned to details, which usually involved construction or party events on the
Respondent’s campus, where it was determined that there might be safety issues. Canino was
assigned to such a detail from 7 a.m. to 3 p.m. on June 28, where some construction was
scheduled at the entrance to the campus. She attended roll call that day and then went to the
detail location. When nobody appeared she returned to the station and reported to the shift
sergeant, Sergeant Echevarria that the detail was canceled, but that she had some online

1 Unless indicated otherwise, all dates referred to herein relate to the year 2013.
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training to perform, as well as another case that she could complete; he did not respond. At
about 10:30 that morning Echevarria called her back to the station and when she returned he
asked her if she thought that she was just going to remain at work all day and work, and she
said that after her detail was canceled she did her online work and followed up on one of her
cases. He replied that she couldn’t stay if her detail had been canceled: “You just can’t do
whatever you want.” She was surprised because in the past, when details were canceled, she
was permitted to remain at work, and she told him that she would take a vacation day, but he
said that he would not allow her to take a vacation day. She said that she was being treated
unfairly because in the past she had been permitted to remain at work when her detail was
canceled, and he responded that he treats everybody fairly. At that point, she went home and
returned to work at 3:00 for her regular shift. She testified that during this meeting with
Echevarria she may have raised her voice and may have used vulgarities.
The next time that she heard of the incident was on July 10, when she was called to the
station to speak to Lieutenant Williams, Echevarria’s supervisor, and he asked her what
happened with the “fight” that she had with Echevarria. He said that he had spoken to
Echevarria about the argument that they had and Echevarria was upset and frustrated about it.
He also said that it sounded like she was on the defense because he was yelling and she was
attempting to defend herself. She responded that she thought that it was just a
misunderstanding between them and he told her that Echevarria was working the following day
and that she should tell him that they spoke about it, and she said that she would do so. On the
following morning, she saw Echevarria, told him that she had spoken with Williams and said,
“I’m okay with everything, are we okay?” and he responded, “Yeah, we’re fine, it was just
frustrating,” and she returned to work. Later that day Echevarria sent her an email stating:
I thank you for meeting with Lieutenant Williams and myself regarding the conversation
that you and I had last week, where I became concerned at the way you were answering
my questions and therefore, I wanted to follow up on this to make sure that, not only we
are understanding each other, but that you also understand how to address your
supervisor. I am satisfied now that we have addressed the issue and I want to remind
you not to hesitate to approach me with any issues, question, concerns that you may
have. Thank you, Maria.
Canino testified that she did not agree with the statement in his email that now she knows how
to address her supervisor and was fearful that it might be used against her in a future situation,
so she sent Echevarria an email on July 14 in response:
I am confused and surprised at your statement about my understanding on how to
address a supervisor. Not once in my meeting with Lt Williams or you was that subject
ever discussed. My understanding was that the meeting was to clarify consistency with
the way supervisors handled situations of canceled details and whether an officer will be
paid or not for the full detail time period. I apologize for your concern with my answers to
your questions, but I felt I was only reacting to the way you were speaking and
questioning me. When I met with Lt. Williams, I never brought up your comments to me
because I was under the impression that after 13 days had passed since the date in
question, that this was no longer an issue between you and I. I think there is some
confusion that we have addressed the issue. What issue are you referring to?
Later that day, Echevarria responded: “Ok, we need to meet again. You me and the lieutenants.
I’ll be more clear next time, because there are obvious issues that need to be addressed and I
want to do this in person.” Flint and Williams were ccd on this email. On August 5, Echevarria
again wrote to Canino stating that because of vacations and weekends, it was difficult to
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arrange a meeting, but that he, Flint and Canino would all be working on August 15, “so let’s
meet and put any and all issues on the table then.” On the following day, Canino sent an email
to Echevarria, Williams, Flint and Kevin McDonnell, a patrolman employed by the Respondent,
and the president of the Union, stating that she would be able to attend the meeting and had
“…reached out to my union representatives and Officer McDonnell has agreed to attend as
well.” She testified that she asked McDonnell to attend the meeting with her because she had
never previously attended a meeting by herself with two lieutenants and a sergeant and, based
upon Echevarria’s email, she was fearful that discipline would result from the meeting.
The meeting took place on August 15 at a table in the roll call room, an open area where
other officers walk through on a regular basis. Lt. Williams began the meeting by asking
Echevarria to speak first, and he spoke of what occurred on June 28 and said that Canino yelled
at him on that day, and that it was frustrating working with her because she made decisions that
she was not supposed to make. At that point, Officer McDonnell asked: “What decisions is she
making that she’s not supposed to make?” and Williams cut him off and informed him that he
wasn’t allowed to speak. McDonnell said that he was allowed to participate and offered to show
him the case law which he had with him, but Williams refused to accept it. McDonnell then said,
“Are you ordering me not to speak?” and Williams said that he was. After that, Canino gave her
side of the story and Evchevarria did the same. After about thirty minutes, Canino said that they
should “agree to disagree. Nothing’s being accomplished.” Williams then told her that if a
superior tells her to do something, “you need to do it.” Canino then asked if she could defend
herself if she felt that she was being disrespected and he said that she could. McDonnell then
asked if the meeting was over and was again told that he wasn’t allowed to speak, and the
meeting ended. She testified that as best as she can recollect, none of the participants took
notes at the meeting. Canino also testified that at no time prior to, or during the meeting was
she told that there was no chance that she would be disciplined as a result of the meeting.
McDonnell testified that Canino called him in early August and asked him to attend the
August 15 meeting with her. She told him about the June 28 incident and sent him a copy of the
above emails, and told him that she did not agree with what he said and thought that the issue
had previously been resolved. At the meeting, Williams asked Canino and Echevarria to speak
and Echevarria spoke of the June 28 incident and he said that he felt that Canino was making
decisions that only sergeants should make. When he said that, McDonnell asked for clarification
and Williams told him, “Kevin, you’re not here to speak, you’re only a witness.” He asked
Williams if he was ordering him not to actively participate in the meeting, and Williams said that
he was. McDonnell offered to show him case law to prove that he could participate, but Williams
refused the offer. The conversation between Echevarria and Canino continued for about another
fifteen minutes and Williams asked Echevarria if he felt that the situation had been resolved,
and he said that he did. At that point, McDonnell asked if that was the end of the discussions of
the incident and was again ordered him not to speak, that his role was to sit and not actively
participate. That concluded the meeting. During this meeting, Williams had a notebook and pen,
but he is not certain whether he took notes at the meeting.
Williams testified that on the afternoon of June 28 he received a call from Echevarria
telling him of the incident that morning, and Williams told him to send him an email explaining
what occurred in detail. The email referred to some issues of “insubordination” that he was
experiencing with Canino, that she “gave him an attitude” during that discussion and that she
was making decisions on her own that should be made by supervisors. Echevarria also said in
the email that it was often difficult for him to approach her because she always gives an attitude
right off the bat and often talks in an accusatory tone. Shortly thereafter, Williams saw Canino
and asked her to come into his office to talk. He asked if she knew what he wanted to discuss,
and she said that she had an idea that it involved the June 28 incident with Echevarria. He
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asked her to tell him what happened because Echevarria was upset and frustrated with their
interactions. She said that they were both frustrated and he suggested that it would be a good
idea if she spoke to Echevarria and cleared it up, and she agreed. Shortly thereafter, Williams
saw the emails between Echevarria and Canino and determined: “That there was still confusion.
And that there needed to be a clarification because there seemed to be a communication issue.”
August 15 was chosen for the date of the meeting because that was the first day that all the
participants would be at work at the same time, and the meeting was held in the roll call room
where they conduct meetings, job interviews and training. Neither Williams, Flint nor Echevarria
took notes at this meeting. He did not consider the meeting to be investigatory or a disciplinary
meeting and, as far as he understood, no facts were in dispute; discipline was never even
considered. At some point in the meeting, McDonnell attempted to say something and he told
McDonnell: “Kevin. You’re here as an observer. You’re not here to participate in the meeting.”
McDonnell said that he had case law to support his participation, and that he would file an unfair
labor practice.
III. Analysis
Obviously, this case is controlled by NLRB v Weingarten, Inc., 420 U.S. 251 (1971),
where the Court found that Section 7 of the Act creates a statutory right for an employee to
refuse to participate in an investigatory interview with the employer without union
representation, when he/she reasonably fears that the meeting may result in disciplinary action
being taken against him/her. Those “reasonable fears” are to be measured by objective
standards considering all the facts of the case. Weingarten, supra, footnote 5. The issue
therefore is whether Canino, objectively, had a reasonable fear, based upon her conversations
with Echevarria and Williams as well as emails from Echevarria, that the meeting on August 15
could result in disciplinary action.
The incident that created the instant situation occurred on June 28, when Canino’s detail
was canceled. When she attempted to remain on duty performing other work until her regular
shift began, Echevarria called her back to the station and asked her whether she thought that
she could remain at work and she told him that her detail was canceled and she was performing
other work. He replied, “You can’t just do whatever you want.” The next that she heard of the
incident was on July 10, when Williams asked her what happened with the “fight” that she had
with Echevarria, and that Echevarria was upset and frustrated about it. She told him that she
thought that it was just a misunderstanding, and he told her to discuss it with Echevarria on the
following day. On the following day, she told Echevarria that she was okay with everything and
he responded that he was fine, but “it was just frustrating.” Although that should settled the
matter, Echevarria sent her an email on the following day stating that he was concerned “at the
way you were answering my questions” and wanted to follow up and to “make sure that…you
also understand how to address your supervisor,” although he concluded the email by saying
that he was satisfied that they had addressed the issue. Canino, however, was not satisfied with
this message and she responded saying that she was confused and surprised by his statement
that she did not understand how to address a supervisor. Echevarria responded later that day,
with Williams and Flint copied, saying that they needed to meet again, with the Lieutenants and
that he would be clearer the next time as “there are obvious issues to be addressed and I want
to do this in person.” In his email scheduling the meeting for August 15 he said that they would
put “any and all issues on the table.”
I find that Canino could reasonably have believed that this August 15 meeting might
result in some form of discipline and therefore she was entitled to Union representation at the
meeting. Echevarria questioned whether she knew the proper manner of speaking to her
supervisor and after the back and forth of emails he said that they “need” to meet again, with the
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lieutenants because of “obvious issues that need to be addressed.” He scheduled the meeting
for August 15, saying that they need to meet again and that Williams and Flint would also be
present at the meeting. If he wanted to have a meeting simply to address obvious issues, the
appropriate manner of doing so would be for the two of them to meet again. Adding Williams
and Flint to the meeting gave Canino reasonable cause to believe that it could result in
discipline. Although Williams credibly testified that the August 15 meeting was just for
clarification of the communication issue, and that discipline was never considered, that is not
dispositive because the issue is whether Canino could reasonably believe that discipline was a
possibility, and I find that considering all the facts herein, she could. As the Board stated in
Consolidated Edison Company, 323 NLRB 910 (1997):
Consequently, it is no answer to this allegation of a Weingarten violation that the
Respondent’s supervisors were only engaged in fact finding, or that they had no
intention of imposing discipline on Hunter at the time of the interview. Neither of those
conditions is inconsistent with Hunter’s reasonable belief that discipline could result from
the interview.
Finally, although McDonnell was present at the August 15 meeting, he was not allowed
to speak or participate. The law is clear that employees are entitled to the advice and active
assistance of their representatives, who “cannot be made to sit silently like a mere observer. “
Talsol Corp., 317 NLRB 290, 331-332 (1995); Barnard College, 340 NLRB 934 (2003); Washoe
Medical Center, Inc., 348 NLRB 361 (2006). By denying Canino active representation at the
August 15 meeting, the Respondent violated Section 8(a)(1) of the Act.
Conclusions of Law
1. The Respondent has been engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act.
2. The Union has been a labor organization within the meaning of Section 2(5) of the
Act.
3. By denying Maria Canino Union representation at an investigatory meeting conducted
on August 15, at which time she could reasonably believe that discipline could result from the
meeting, the Respondent violated Section 8(a)(1) of the Act.
The Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it shall be ordered to cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended2

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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ORDER
The Respondent, Bentley University, its officers, agents, successors and assigns, shall
1. Cease and desist from
(a) Denying to any bargaining unit employee the right to be represented on request by
Bentley University Public Safety Association (the Union) at an investigatory interview that the
employee reasonably believes might result in disciplinary action.
(b) In any like or related manner interfering with, restraining or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days after service by the Region, post at its campus in Waltham,
Massachusetts, copies of the attached notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 1, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily 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 Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since August 15, 2013.
(b) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. March 25, 2014
________________________________
Joel P. Biblowitz
Administrative Law Judge

3 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)–14-14

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 violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT deny to any of our bargaining unit employees the right to be represented on
request by Bentley University Public Safety Association at any investigatory interview that the
employee reasonably believes might result in disciplinary action.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
BENTLEY UNIVERSITY
Dated________________ By_______________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
10 Causeway Street, Boston Federal Building, 6th Floor, Room 601
Boston, Massachusetts 02222–1072
Hours of Operation: 8:30 a.m. to 5 p.m.
617-565-6700.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 617-565-6701.