Bon Secours Charity Health Systems

National Labor Relations Board - Administrative Judge Opinions

Apr 26, 2010

02-RC-023303 (N.L.R.B. Apr. 26, 2010)

JD(NY)–13–10
Warwick, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
BON SECOURS CHARITY HEALTH SYSTEMS,
WARWICK HEALTHCARE CAMPUS
Employer
and Case No. 2-RC-23303
1199 SEIU, UNITED HEALTHCARE WORKERS EAST
Petitioner
Amy Ventry, Esq. and Robert Cirino, Esq.,
(Nixon Peabody, LLP), Counsel for the
Employer.
William Massey, Esq., (Gladstein, Reif and
Meginniss), Counsel for Petitioner.
RECOMMENDED DECISION ON OBJECTIONS
Statement of the Case
STEVEN FISH, Administrative Law Judge: On July 3, 2008,1 1119 SEIU United
Healthcare Workers East, herein called the Petitioner or the Union, filed a petition seeking to
represent certain employees employed by Bon Secours Charity Health Systems, herein called
the Employer or Bon Secours, at the Warwick Healthcare Campus in Warwick, New York.
On September 12, the parties entered into a Stipulated Election Agreement scheduling
an election for October 30.
The election was conducted in a unit of non-professional service employees at the
Employer’s three facilities, namely Schervier Pavilion, a nursing home (Schervier); Mount
Alverno, an assisted living facility (Mount Alverno); and St. Anthony’s Community Hospital, a
hospital (St. Anthony’s). The initial tally of ballots showed 121 votes for the Union, 118 against,
and 11 challenges. Thus, challenges were determinative. On November 6, Petitioner filed 15
objections to the election.
On March 6, 2009, the parties agreed to stipulate to the eligibility of one of the
challenged voters. On March 10, 2009, the Region issued an Order Approving Stipulation
Regarding Challenged Ballot, Approving Request to Withdraw an Objection, and Notice of
Hearing on Challenges and Objections. Among the provisions of that stipulation was that
Petitioner withdrew Objection 11, leaving 14 remaining objections.

1 All dates herein are in 2008 unless otherwise indicated.
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On May 5, 2009, Administrative Law Judge Joel Biblowitz granted the Employer’s Motion
to bifurcate the hearing and to conduct a hearing on the challenges first, and postponing the
hearing on objections until the disposition of the challenges determined whether it was
necessary to resolve the objections.
Judge Biblowitz conducted a hearing on the challenges on May 14, 15, 18, 19 and 20,
2009.
On September 9, 2009, Judge Biblowitz issued a decision, sustained the challenges to
the ballots of six employees, overruling the challenges to four employees, and recommending
that these four ballots be opened and counted, along with the ballot of one employee, for whom
the Union had withdrawn its challenge.
On December 23, 2009, the Board issued a decision adopting Judge Biblowitz’s
recommendations and ordered that the five challenged ballots be opened and counted, and that
the revised tally of ballots be issued.
On January 6, 2010, the challenged ballots were opened and counted. The revised tally
showed 121 votes for the Union, 123 against, 6 sustained challenges, and one void ballot. Thus,
a majority of the valid votes were cast against representation by Petitioner.
On January 21, 2010, the Director issued a Notice of Hearing on the remaining 14
objections filed by Petitioner, which previously had been held in abeyance pending resolution of
the challenges.
The hearing was held before me in New York, NY on February 8, 9, 16 and 17, 2010. On
February 9, 2010, the Petitioner withdrew Objection 2.
Briefs have been filed and have been carefully considered. In its brief, the Union
withdrew Objections 12 through 15, which leaves for consideration by me, Objections 1 and 3
through 10.
Based upon the entire record, including my observation of the demeanor of the witness, I
issue the following:
Finding of Fact
1. The Objections
The remaining objections2, Objection 1 and 3 through 10 are as follows:
PETITIONER’S OBJECTIONS TO CONDUCT
AFFECTING THE RESULTS OF THE ELECTION
Pursuant to Section 102.69 of the Board’s Rules and
Regulations, Petitioner, 1199 SEIU United Healthcare Workers
East (“The Union”), objects to conduct affecting the results of the

2 I grant the Union’s request made in its brief to withdraw Objections 12 through 15.
Objection 2 was withdrawn during the trial, and Objection 11 was withdrawn previously by
Petitioner.
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election, conducted on October 30, 2008, for the following
reasons:
1. During the critical, pre-election period, the
Employer through its agents and representatives,
threatened employees with the loss of wages and
salary increases if they voted for the Union.
3. During the critical, pre-election period, the
Employer through its agents and representatives,
threatened employees with the loss of their jobs if
they voted for the Union.
4. During the critical, pre-election period, the
Employer through its agents and representatives,
threatened to change and make more onerous
employees’ work assignments and work schedules
if they voted for the Union.
5. During the critical, pre-election period, the
Employer through its agents and representatives,
engaged in surveillance of employee union activity
and created the impression of surveillance of
employee union activity.
6. During the critical, pre-election period, the
Employer through its agents and representatives,
posted campaign literature that created and
promoted a general atmosphere of fear, violence,
and reprisal.
7. During the critical, pre-election period, the
Employer through its agents and representatives,
disparaged employees for engaging in protected
Union activities and stated that their Union activity
was incompatible with continued employment.
8. During the critical, pre-election period, the
Employer through its agents and representatives,
discriminatorily applied and altered its rules
regarding the solicitation, distribution, and posting
of literature.
9. During the critical, pre-election period, the
Employer through its agents and representatives,
informed employees it would be futile for them to
select the Union.
10. During the critical, pre-election period, the
Employer through its agents and representatives,
threatened employees with the loss of their ability
to speak directly to management concerning
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workplace issues if they voted for the Union in the
election.
2. Objection 5
A. Conduct of Mike Deyo
Subsequent to the filing of its petition in July, the Union began to engage in shift change
organizational activities at the Employer’s premises. These activities occurred at all of the
Employer’s facilities, but primarily at Schervier and Mount Alverno. They were conducted at
different times of the day to coincide with three different times when shifts change. However, the
majority of these activities took place at or around the 3:00 p.m. shift change, where the highest
number of employees would be either arriving or leaving work.
At these activities, between five and ten unit employees would participate along with
several union representatives, including Robin Ringwood, the lead organizer for Petitioner. The
employees and union representatives would attempt to speak to employees leaving and
entering the facilities and to hand them union literature and talk to them about unionization.
These shift change activities took place approximately once a week during July, August
and early September. After the parties entered into the Stipulated Election Agreement on
September 11, the Union increased the frequency of these shift change activities to
approximately five days a week, sometimes including weekends. On these days, the Union
would conduct between five and ten activities per day.3
Additionally, the Union also held weekly organizational meetings every Wednesday at
the Legion Hall in Warwick, outside the Employer’s premises. Ashley VonHahsel was a CNA
employed by the Employer at its Schervier facility. She regularly attended these Wednesday
meetings. VonHahsel participated in the Union’s shift change activities at the 3:00 p.m. shift
change, once or twice a week during July and August, and two or three times a week during
September and October.
In early October, Mike Deyo, the Administrator at Schervier, conducted a meeting in the
Mills Dining Room at Schervier. In addition to Deyo, several other management officials were
present, including Sandra Gomas, nurse manager and Jody Collins, Director of Nursing.
Approximately fifteen to twenty employees were present, including VonHahsel. Deyo
urged employees to vote “No” in the election and asked the employees to give him another year
to make their problems better. VonHahsel responded that “We gave you enough time. Some
people have been there for over ten years and it’s only gotten worse in the two years that I have
worked there.”
Deyo then asked if anyone has any questions. VonHahsel asked why she couldn’t hang
her pro-union literature on the Employer’s bulletin boards4 because the Employer posted anti-
union literature all around. Deyo responded that VonHahsel couldn’t hang pro-union literature
because it was “against policy.” Deyo added that if “anyone wanted information about the Union

3 Sometimes the Union would conduct these activities simultaneously at all three facilities.
Other times, they would be conducted only at one or two facilities at a time.
4 VonHahsel had previously been instructed by several supervisors that she could not hang
pro-union literature on the Employer’s bulletin boards.
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they should attend your Wednesday meetings.”
My findings concerning Deyo’s comments at the October meeting is based on the
credible and uncontradicted testimony of VonHahsel. Deyo did not testify, so her testimony was
not denied and is credited.
In this regard, the Employer argues that VonHahsel should not be credited because of
the lack of corroborating evidence, plus the fact that another witness called by Petitioner, Val
DeWitt, testified about and was present at the Deyo meeting and did not corroborate
VonHahsel’s testimony concerning Deyo’s comments about the union meetings. Thus, the
Employer argues that it need not have called Deyo as a witness to “contradict an otherwise
disproven statement.” I disagree.
While DeWitt did testify concerning the meeting in question, she did not deny or
contradict VonHahsel’s testimony with respect to Deyo’s remarks. DeWitt was not asked about
the specific statements in question that I have found that Deyo made at the meeting. Further,
DeWitt conceded that Deyo said other things more than she could recall at the meeting, but did
not remember anything else that Deyo said.
Moreover, Dunkin, Respondent’s supervisor, who did testify at the hearing and was
present at the meeting in question, furnished no testimony on this subject and thus, did not
contradict VonHahsel’s testimony concerning Deyo’s comments.
In these circumstances, the Employer is clearly incorrect. VonHahsel’s testimony has not
been “disproved,” and it is appropriate for me to draw an adverse inference from its failure to
call Deyo to deny or refute VonHahsel’s testimony in this respect. Even apart from an adverse
inference, VonHahsel’s testimony was not refuted or contradicted and is therefore credited.
Having credited VonHahsel’s testimony in this regard, the question is whether Deyo’s
comments establish that the Employer created the impression of surveillance of its employees’
union activities as asserted by the Petitioner. The test for determining whether an employer has
created the impression that its employees’ union activities have been placed under surveillance,
is whether the employees would reasonably assume from the employer’s statements or conduct
that their union activities had been placed under surveillance. Stevens Creek Chrysler Dodge,
353 NLRB #132 slip op, 2-3 (2009); Donaldson Bros., 341 NLRB 958, 961 (2004); Mountaineer
Steel Inc., 326 NLRB 787 (1998). The standard is an objective one based on the rationale that
“employees should be free to participate in union organizing campaigns without the fear that
members of management are peering over their shoulders taking note of who is involved in
union activities and in what particular ways.” Flexsteel Industries, 311 NLRB 257 (1993).
The Board does not require employees to attempt to keep their activities secret before
an employer can be found to have created an unlawful impression of surveillance. Central
Valley Meat Co., 346 NLRB 1078, 1080 (2006); Spartech Corp., 344 NLRB 576, 577 (2005);
North Hills Office Service, 344 NLRB 1083, 1095 (2005).
The Board does not require then as employer’s words on their face reveal that the
employer acquired its knowledge of the employees’ activities by unlawful means. Dallas & Mavis
Specialized Carrier Co., 346 NLRB 253, 254 fn. 6 (2006); Sam’s Club, 342 NLRB 620 (2004);
North Hills, supra, 344 NLRB at 1095.
When an employer tells employees that it is aware of their union activities, but fails to tell
them the source of that information, the employer violates Section 8(a)(1). This is because the
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employees are left to speculate as to how the employer obtained its information causing them
reasonably to conclude that the information was obtained through employer monitoring. Stevens
Creek Chrysler, supra, 353 NLRB at 3; Conley Trucking, 349 NLRB 308, 315 (2007); Dallas &
Mavis Carrier, supra, 346 NLRB at 254; United Charter Service, 306 NLRB 150, 151 (1992).
See also Beverly California, 326 NLRB 232, 233 (1998).
In applying these principles to the instance facts, it is clear that Deyo’s comments
violated the standards detailed above, violated Section 8(a)(1) of the Act, and therefore
constitutes objectionable conduct. Here Deyo informed VonHahsel, as well as 15-20 other
employees at the meeting, that he was aware that the Union conducted meetings on
Wednesdays, as well as the fact that VonHahsel attended such meetings. Deyo did not inform
the employees of the source of his information, so that the employees could reasonably
conclude that the information was obtained through employer monitoring. Stevens Creek
Chrysler, supra; Conley Trucking, supra.
Here the meetings were held outside the premises of the Employer, and there is no
evidence that the meetings were publicized, open events. Stevens Creek Chrysler, supra, 353
NLRB at 3. Furthermore, by Deyo directing his comments to VonHahsel and referring to “your
Wednesday union meetings,” he inferred that the Employer was aware of who attended the
meetings, that VonHahsel was a leader of the organizing drive and that the meetings were held
regularly on Wednesdays. All of these remarks demonstrate significant knowledge by the
Employer of details of the meetings and adds to the reasonableness of the employees’ belief
that the Employer was monitoring their union activities. Conley Trucking, supra, 349 NLRB at
315; North Hills, supra, 344 NLRB at 1096; Spartech, supra, 349 NLRB at 576; United Charter
Service, 306 NLRB at 151; Emerson Electric Co., 287 NLRB 1065 (1988).
Accordingly, based on the foregoing analysis and authorities, I conclude that the
Employer engaged in objectionable conduct by Deyo’s statements at the October meeting.
Thus, this objection must be sustained, I so find.
B. The Conduct of Mary Dunkin
Petitioner also asserts that the Employer created the impression that its employees’
union activities were under the surveillance by the conduct of nurse manager and admitted
supervisor, Mary Dunkin.
On September 10, CNA Carina Oros was sitting alone in the Maple Hill breakroom at
Schervier. Dunkin and Oros exchanged greetings, and Dunkin proceeded to post a document
on the small bulletin board next to the other anti-union literature, which had been posted on that
bulletin board. The next day, Oros returned to the breakroom and observed that the document
was still posted. Oros removed the document from the bulletin board with the intention of
showing it to her co-workers. However, Oros heard footsteps coming so she became nervous
and slid the leaflet underneath some books on the table in the breakroom. Oros was off from
work on September 12.
On September 13, she returned to the breakroom and saw that the document was still
where she had left it on September 11. Oros folded the document and put it in her lunch bag.
The document reads as follows:
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When she left work that day, Oros showed the document to employees VonHahsel and
DeWitt as well as to Ringwood. Oros informed them that she had seen Dunkin post the
document on the bulletin board in the Maple Hall breakroom. Both VonHahsel and DeWitt each
informed a dozen of their fellow employees that Dunkin had posted this document on the
bulletin board.
My findings above with respect to this incident is based on the credited and believable
testimony of Oros, which was corroborated in part by VonHahsel, DeWitt and Ringwood, who all
testified that Oros showed them the leaflet and told them that she (Oros) had seen Dunkin post
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it in the breakroom at Maple Hall.
Although none of these three witnesses saw Dunkin post the document, I do find their
testimony corroborative of Oros in that they confirmed that Oros informed them that she had
seen Dunkin do so. I find it unlikely that Oros would fabricate such an assertion. Further, I found
Oros to be an extremely credible witness. Her testimony was consistent on direct and cross
examinations, and she appeared to me to be sincerely attempting to recount what she
remembered rather than attempting to tailor her testimony to favor the Union.
In contrast, I was less than impressed with Dunkin’s testimony. She impressed as a
witness, who was in fact bending over backwards to testify to facts that she believed would be
favorable to the Employer rather than to honestly testify to what she remembered. Illustrative of
this tendency on her part is her insistence that the Employer was “neutral” with respect to the
Union and the election, and that the documents that she was given to distribute to employees by
the Employer, as well as statements made at meetings by officials of the Employer, all reflected
such neutrality. Indeed, Dunkin denied that any Employer representative or documents urged
employees to vote “No.”
This testimony is clearly untrue and in fact is contradicted by Employer campaign
documents, which are in the record, as well as the testimony of Tom Brunelle, the Employer’s
Executive Vice-President. Further, while Dunkin conceded that she regularly distributed the
Employer’s campaign literature and communicated directly the Employer’s campaign messages
to employees, she could not recall specifically what she said to the employees or what the
campaign literature stated, other than employees need to make up their own mind and need to
have all the facts.
The Employer argues that Oros should not be credited because DeWitt testified that she
saw the document in question in the breakroom, but did not see it posted and that she worked
during the days (September 11 and 12) that Oros testified that the document was posted on the
bulletin board. However, I find little significance in DeWitt’s failure to recall seeing it posted,
particularly since there is no record evidence that DeWitt looked at the bulletin board on those
days.
Furthermore, both the Employer and Petitioner rely on the testimony of Irene Caldwell,
the Employer’s Acting Director of Nursing, during the period in question to bolster their positions
vis a vis the credibility dispute between Dunkin and Oros concerning the posting. I place little
reliance on Caldwell’s testimony on this issue, since it is inconclusive. To the extent that it is
relevant, I find it more supportive of Oros’s version. Thus, Caldwell testified that Dunkin had
mentioned to her that someone’s tires had been slashed during the campaign and that a
document picturing a slashed tire had been posted on the bulletin board. Caldwell also testified
that she observed Dunkin with the leaflet in her hand, and she (Caldwell) assumed that Dunkin
had removed it from the bulletin board. The only thing that Caldwell recalled about Dunkin
commenting about the document was “Look what I found.”
Dunkin on the other hand testified that not only did she not post the document but that
she never saw it posted, and did not recall ever discussing it with or showing it to Caldwell or
even discussing tire slashing with Caldwell. Dunkin asserts that she saw the document once
when it was handed to her by an employee, and Dunkin told the employee to bring it to Human
Resources.
Thus, although Caldwell’s testimony on this issue is not conclusive, I find that Caldwell’s
contradicting of Dunkin as to whether they discussed tire slashing, whether Dunkin had the
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document in her hand and whether it has been posted further detracts from Dunkin’s credibility.
I therefore find that Dunkin, as testified to by Oros, did post the document in question on
September 10.
Having so found, the next question becomes whether the Employer is responsible for the
contents of the document by virtue of that fact that Dunkin, an admitted supervisor, posted it on
the bulletin board.
An employer is responsible for conduct of individuals, where the employees would
reasonably believe that the alleged agent was reflecting company policy and speaking and
acting for management. Southern Bag Corp., 315 NLRB 725 (1994); API Industries, 314 NLRB
706 fn. 1 (1994).
Here I find that the employees would reasonably believe that Dunkin, an admitted agent
and at the time a supervisor of two out of three units of the Employer’s nursing home, was
reflecting company policy by posting the document. Thus, although there is no evidence that the
Employer was involved in the preparation of the document when Dunkin posted it and was
observed by employees in engaging in that conduct,5 the Employer has adopted the messages
contained in the document. Monroe Auto Equipment, 230 NLRB 742, 748 (1977) (employer
responsible for the conduct of a supervisor, who showed employees a newspaper ad placed by
“concerned employees” containing unlawful threats.) Voca Corp., 329 NLRB 591, 592, 601
(1999) (employer responsible for posting of minutes of compensation board meeting, although
recommendations therein were not final and were never implemented.)
Having found the Employer responsible for the statements made in the document, the
next issue is whether any of these statements represent objectionable conduct. The Petitioner
contends that identification of four employees as promoting the Union constitutes another
example of creating the impression of surveillance of employees’ union activities. I agree.
Similar to my prior discussion and analysis of Deyo’s comments, the statements in the
letter did not disclose the source of the Employer’s information as to which employees were
promoting or soliciting for the Union. Stevens Creek Chrysler, 353 NLRB at 3; Beverly
California, supra, 326 NLRB at 233. Moreover, although two of the employees named as
soliciting for the Union were open union adherents (VonHahsel and DeWitt), there is no record
evidence that either Debbie Coffey or Amanda Cooper, the other two employees identified in the
document, had been open union adherents. In that regard, the evidence discloses that
VonHahsel and DeWitt had participated in shift change activities on behalf of the Union and/or
spoke up at Employer meetings in favor of the Union, and/or posted or attempted to post pro-
union literature. There is no record evidence that either Coffey or Cooper engaged in any of
these activities or any other activities in support of the Union.
Accordingly, I conclude that by Dunkin posting the document that the Employer has
again created the impression that its employees’ union activities were under surveillance and
constituted an additional instance of objectionable conduct.6

5 Although only Oros observed Dunkin posting the document, the fact that Dunkin posted it
was disseminated by Oros and other employees to over two dozen unit employees.
6 Petitioner also asserts that several other statements in the document also constituted
objectionable conduct. However, these assertions relate to other objections and will be
discussed when those objections are considered.
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Objection 5 also alleges that the Employer engaged in surveillance of its employees’
union activities by the conduct of Dunkin.
In this regard, the Employer’s facility is a smoke-free campus, so employees need to
leave the Employer’s property in order to smoke. Mary Dunkin was and is a heavy smoker. She
normally would take several smoke breaks throughout the day. Dunkin was regularly employed
as the nurse manager of two units at Schervier during the period of the election.
Ordinarily, Dunkin would take smoke breaks between 11:00 a.m. and 11:30 a.m.,
between 1:30 p.m. and 2:00 p.m. and between 3:30 p.m. and 4:00 p.m. There is a shift change
at 3:00 p.m. daily. Thus, Dunkin usually will remain in the facility between 3:00 p.m. until close
to 3:30 p.m. in order to facilitate the shift change. More particularly, she needs to make sure that
employees have arrived to replace employees whose shifts are ending.
Usually, Dunkin would take her break in front of Schervier, where she worked, but the
Employer conducted weekly management meetings at Mount Alverno between 2:00 p.m. and
3:00 pm. Dunkin was required to attend these meetings. Thus, when she was attending these
meetings, after the meetings ended, Dunkin would take her smoke break on a bench outside of
Mount Alverno.
As I have mentioned above, the Union engaged in shift change organizational activities
starting in July and intensifying in September and October to five days a week, primarily at or
around the 3:00 p.m. shift change at Mount Alverno and Schervier.
Ringwood would generally arrive and commence the shift change activities between
2:30 p.m. and 2:45 p.m. and it would continue until close to 4:00 p.m. During September and
October, Dunkin on between five and seven occasions would appear while the shift change
activities were being conducted. Some of these incidents were at Mount Alverno and others at
Schervier. At Mount Alverno, Dunkin sat on a bench 40-50 feet away from where the shift
change activities occurred. At Schervier, Dunkin either sat on a bench or a chair or stood about
20-25 feet away from the activities.
On some of these occasions, Dunkin would appear either a few minutes before 3:00
p.m. and on other times she would arrive a few minutes after 3:00 p.m. She would sit on the
bench or chair or stand for between 30-40 minutes, and smoke cigarettes, make calls on her
cell phone and/or would have paperwork with her and she would be writing notes. According to
Dunkin, she would be paying bills. Dunkin would also from time to time on these occasions look
directly at the employees engaging in their organizational activities. At times, during these
incidents, employees would ask Ringwood if she thought that Dunkin was taking their pictures
or if she was writing their names down and might tell management which employees were out
there. Ringwood would not respond to these inquiries but would try to “refocus” them on
organizing.
My findings above with respect to Dunkin’s conduct are based on a compilation of the
credited portions of the testimony of Dunkin, Ringwood and employees VonHahsel, DeWitt and
Evelyn McSherry. To the extent that credibility issues exist among the witnesses, I credit
Petitioner’s witnesses on this subject. Their testimony was mutually corroborative in most
respects, and I have already noted my opinion of Dunkin’s credibility above. The chief areas of
dispute between Dunkin and the Petitioner’s witnesses involve whether Dunkin looked at
employees while she was present during the shift change activities and how long she was
present. Dunkin testified that when she saw the activities, she turned her back and walked
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away; she also insisted that she never took more than a 15-minute smoke break during these
occasions. I reject Dunkin’s testimony and find as detailed above that she did in fact look
directly and observed the employees in their organizational activities, and that she was present
at the shift change activities for 30-40 minutes and frequently remained in the area until the shift
change activity ended at close to 4:00 p.m.
Although it is well established that an employer may observe open union activity at or
near its property, it may not do something “out of the ordinary,” which gives employees the
impression that it is engaging in surveillance of their union activities. Sprain Brook Manor
Nursing Home, 351 NLRB 1190, 1191 (2007); Loudon Steel, 340 NLRB 307, 311 (2003).
Here, I agree with Petitioner that Dunkin’s conduct in observing shift change activities
was “out of the ordinary” and constituted unlawful surveillance.
Although Dunkin did ordinarily take her smoke breaks at essentially the same locations,
where she observed the union activities, she acted differently during the five to seven occasions
in September and October by extending her normal 15-minute break to 30 or 40 minutes, and
by observing the shift change activity until it ended on these occasion at close to 4:00 p.m.
Further, she would on most of these occasions be present shortly before or shortly after 3:00
p.m., where she normally would remain inside Schervier to monitor the shift change at two floors
until close to 3:30 p.m.
Thus, Dunkin acting “out of the ordinary” observed employees engaging in their
organizational activity and was close enough to them to observe to see which employees
passed out handbills or spoke to employees coming or leaving. PartyLite Worldwide Inc., 344
NLRB 1342 (2005)7, and observed the employees for at times 30-40 minutes and after until the
shift change activity ended. Carry Cos. of Illinois, 311 NLRB 1058, 1073 (1993) (employer
representative stood close to organizational activities and remained for entire duration of the
union activities); Eddyleon Chocolate, 301 NLRB 887, 888 (1991) (official of employers
stationed car 15 feet from union activity and spoke on phone until union representatives left);
Gainesville Mfg Co., 271 NLRB 1186, 1188 (1984) (representatives of employer stood close to
union representatives for 15-20 minutes); Smithfield Packing, supra, 344 NLRB at 2 (officials of
employer stationed 15-20 feet away from handbillers for 30-40 minutes); PartyLite Worldwide,
supra, 344 NLRB at 1342-1343 (supervisors observed handbilling for 15 minutes).
Accordingly, based on the above analysis and authorities, I conclude that the Employer,
by Dunkin, engaged in unlawful surveillance, which would be violative of Section 8(a)(1) of the
Act and constitutes objectionable conduct.
Therefore, I recommend that Objection 5 be sustained.
C. The Conduct of Patrick Clark
Patrick Clark was the Director of Human Resources for the Employer’s Warwick
Healthcare Campus for approximately 8 years. As I have detailed above, the Union engaged in
organizational shift change activities on a regular basis during the months of September and

7 Notably employees, who obviously observed Dunkin writing something during these
incidents, asked Ringwood whether Dunkin was writing their names down and might tell
management which employees were out there. See Smithfield Packing Co., 344 NLRB 1, 2
(2004).
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October. On approximately six occasions during this time while the Union was conducting shift
change activities at Mount Alverno, Clark rode the Employer’s shuttle bus for the entire time of
these activities from shortly after 3:00 p.m. to close to 4:00 p.m.
The shuttle bus in question was provided by the Employer to transport employees from
the parking lots to the particular facilities where they work. The bus would drive in a loop making
various stops at each facility.
On the days in questions, Clark received phone calls from individuals indicating that the
shift change activities were causing back-ups due to congestions, and employees were having
difficulty entering or exiting the facility because of the activities. Mount Alverno is the only
entrance to the campus. At shift changes, employees would be leaving and coming at the same
time. Thus, if a car is stopped and the occupants are talking to the employees or the Union
representatives, cars behind were forced to wait and were delayed. Clark received calls from
various supervisors, administrators and vice-presidents, who informed him that employees were
clocking-in late and that employees informed supervisors that they could not get in the facility
because they were blocked by the shift change activities. Clark also received calls directly from
several employees, who informed him that they were held up at Mount Alverno because they
couldn’t get in or out of the facility. Further, on one of these occasions, Clark received a call
from Lorraine, the shuttle bus driver, informing him that there were a lot of people in the area
and that she had difficulty in turning into the area to pick-up people. On that occasion, Clark
heard horns honking. Therefore, as a result of these calls, Clark decided to hop on the bus
himself to check-out the situation. His main purpose was to keep the entrance way open and he
conceded that he believed that when employees saw him on the bus, they “would disperse” and
the employees could get in and out.
On these days, when the bus arrived at Mount Alverno, the bus would slow down, Clark
waved to employees and some employees waved back. Clark continued to ride the shuttle bus
around the loop until the shift change activity ceased at around 4:00 p.m. Most of the time when
Clark arrived at Mount Alverno, the blocking cars had ceased and cars were coming in and out
without difficulty. On one occasion, Clark himself observed cars being blocked and the
employees stepped away from the cars when they saw Clark in the bus.
Clark did not get out of the bus on any of these occasions nor did he speak to the union
officials or the employees to tell them that they must not block traffic from coming in and out.8
My findings with respect to the above events are based on a compilation of the credited
portions of the testimony of VonHahsel, DeWitt, McSherry, Ringwood and Clark. The facts are
largely undisputed and the testimony of all the witnesses is largely consistent, except for one
area. Clark testified that on all the occasions that he rode the bus in response to the shift
change activities that he made only one loop except for one time. On this one occasion,
according to Clark, as he was riding the bus back to his office, he received another call
informing him that the employees and the Union were again blocking traffic. Thus, he then rode
the bus back to Mount Alverno.
However, I credit the mutually corroborative and credible testimony of Ringwood,
VonHahsel, McSherry and DeWitt that on each of the six occasions that Clark rode the shuttle
bus during the 3:00 p.m. shift change activities he rode it for the entire time of the activities

8 According to Clark, the Union had previously been informed by the Vice-President of
Operations that they had to move and could not block traffic.
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making several loops. In addition to the consistent and corroborative testimony of four
Petitioner’s witnesses on this subject, I note that two of the witnesses, McSherry and DeWitt are
still employees of the Employer. Their testimony where it is adverse to their employer is
considered against their self-interest and therefore more worthy of belief. Evergreen America,
348 NLRB 178, 207 (2006); Meyers Transport, 338 NLRB 958, 968 (2003); Georgia Rug Mill,
131 NLRB 1304, 1305 fn. 2 (1961), enfd. as modified 308 F.2d 89 (5th Cir. 1962).
Further, Clark’s testimony suffers from the same problem as Dunkin’s. Clark also asserts
that the Employer never communicated to employees either in writing or orally that they should
vote “No.” This testimony is, as I described above, contradicted by the testimony of the
Employer’s own witness, Brunelle, as well as by campaign literature in the record.
Petitioner contends that based on the above facts, the Employer engaged in additional
acts of unlawful surveillance by Clark’s conduct. I disagree.
I conclude that the Employer established reasonable justification for Clark’s actions, and
that it therefore did not engage in unlawful surveillance. Clark’s testimony, which I credit,
establishes that he rode the shuttle bus only in response to complaints from employees,
administrators and supervisors that the shift change activities were causing employee problems
in leaving and entering working, including causing employees to be late for the start of their
shifts. In such circumstances, Clark’s conduct was justified and not violative of the Act. Saia
Motor Freight Line Inc., 333 NLRB 784 (2001) (employer established reasonable justification for
photographing employees handbilling based on concerns for accidents and traffic congestion9);
Wal-Mart Stores, 340 NLRB 1216, 1217 (2003) (manager did not engage in unlawful
surveillance when he watched organizers distribute handbills in response to complaints from
customers); Town & Country Supermarkets, 340 NLRB 1410, 1414-1415 (2004) (photographing
of union activity lawful since it was in response to reasonable belief that trespass had occurred
and could occur again); Berton Kirshner Inc., 209 NLRB 1081 (1974) (photographing in
response to trespass lawful).
Accordingly based on the above precedent and analysis, I conclude that Clark’s conduct
did not constitute unlawful surveillance or objectionable conduct. I therefore recommend
dismissal of that portion of the Objection 5 that so alleges.
3. Objections 1, 4, 9 and 10
A. Conduct of Mary Dunkin
Dunkin as nurse manager at Maple Hall regularly conducted meetings with the CNAs
under her supervision. These meetings referred to as “huddles” generally encompass patient
care issues and new policies. At one of these “huddles” in August or September after discussing
patient care issues, Dunkin stated to a group of CNAs, including Catherine Fink, that if the
Union comes in the employees’ flexibility in shifts would be taken away. Dunkin asked if there
were any questions and no employee responded. According to Fink, at the time of Dunkin's
comment three CNAs in the unit were working 10-hour shifts.
During the second week of October, Dunkin and Dewitt had a disagreement about
whether DeWitt could take at break at a particular time. After Dunkin instructed DeWitt that she

9 Notably, Saia Motor, supra was decided under the more stringent standard of requiring an
employer to establish reasonable justification for photographing employees.
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could not go on break, DeWitt asked to speak to Irene Caldwell, the Acting Director of Nursing,
at the time.
A few minutes later, Caldwell met with DeWitt and Dunkin in the Maple Hall breakroom.
DeWitt began by complaining to Caldwell about Dunkin denying her permission to take a break.
Caldwell interrupted DeWitt and said “I’m so sick of this union shit.” DeWitt responded “What
does this have to do with the union? I didn’t get a break. I’m tired.” Caldwell replied “I’m sick of
you disrespecting Mary.” DeWitt denied that she had disrespected Dunkin and added that she
merely wanted to discuss the break issue. Dunkin then interjected “You know if the union comes
in here, they’re going to take away your 10-hour shifts and it could drive your salary down to
minimum wage.” DeWitt concluded the discussion by stating again “What does this have to do
with the union? You just wasted a half an hour. I could have been back on the floor. I can’t talk
about this.” DeWitt then left the breakroom.
I note that DeWitt as well as two other employees (Trisch Guy and Michele Burn) worked
10-hour shifts. The record also reveals that the Employer had a longstanding practice of
permitting employees to work 10 or 12-hour shifts if they so chose.
On October 28, Dunkin came into the Maple Hall breakroom to get a cup of coffee. Oros
was present in the room. Dunkin approached Oros and said “If the Union wins, you’re going to
lose your self-scheduling and have shift changes.” Self-scheduling refers to the Employer’s
practice of permitting employees to fill out a proposed schedule, which is reviewed by
management and generally approved as long as it has sufficient staff coverage.
My findings above with respect to the three conversations with Dunkin is based on the
mutually corroborative and credible testimony of Fink, DeWitt and Oros. All three of these
witnesses provided consistent testimony on both direct and cross examinations concerning
these incidents. Further, DeWitt and Fink are both still employees of the Employer. Thus, as I
have observed, their testimony adverse to the Employer’s interest is apt to be particularly
reliable especially where it contradicts the testimony of their supervisor. Evergreen, supra;
Flexsteel Industries Inc., 316 NLRB 745 (1995), enfd 83 F.3d 419 (5th Cir. 1996); Farris Fashion,
312 NLRB 547, 554 fn. 3 (1993), enfd 32 F.3d 373 (8th Cir. 1994).
In contrast, I have already discussed Dunkin’s credibility above in connection with other
conduct, and I rely on the above assessment of her testimony and the reasons detailed therein
to further support my conclusion that the employees’ testimony as to these incidents should be
credited over Dunkin’s unconvincing denials.
I have considered the fact that Caldwell testified and supported Dunkin’s denials
concerning the conversation with DeWitt. I did not find Caldwell to be a particularly convincing
witness. Her memory was admittedly poor, and she conceded that she did not remember much
that was said about the Union or the election by anyone during the election campaign. Indeed,
even her “denial” of hearing Dunkin’s comments to DeWitt was somewhat equivocal. When she
was asked whether she heard Dunkin say to DeWitt “If the Union comes in they’ll take away
your 10-hour shifts and your pay will be lowered to minimum wage.” Caldwell replied “No. I don’t
recall it. No.” Thus, Caldwell did not forthrightly deny hearing the remark but hedged by stating “I
don’t recall it.”
Moreover, Caldwell on direct examination admitted that she said “I’m sick of this union
shit,” but denied that she said it to DeWitt. According to Caldwell, she made the statement right
after the election was over and as she was getting out of the elevator. She also did not believe
that anyone heard this comment. However, on further examination on this subject, Caldwell
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changed her testimony and asserted that she did not mention the word “union” in the comment
that she made getting out of the elevator, but she said merely “I’m tired of this shit” while
conceding that she was referring to the conflict in the facility between the employees over the
election campaigns. Caldwell also admitted that DeWitt was one of the employees, who had
been involved in conflicts with other employees concerning the Union.
Thus, I find Caldwell’s testimony somewhat supportive of DeWitt’s testimony in that
Caldwell admitted stating that "she was tired of this union shit” as testified to by DeWitt, and that
she (Caldwell) was aware that DeWitt was one of the employees, who had conflicts with others
about the Union. This fact supports DeWitt’s testimony that Caldwell would have made the
comment to her, as she so testified and as I too have so found.
For the above reasons, I therefore credit Oros, DeWitt and Fink and find that Dunkin
made the comments to them as detailed above.
Based on these findings, there can be little doubt that the Employer engaged in
objectionable conduct by Dunkin’s statements to its employees. By such conduct, the Employer
has unlawfully threatened its employees with loss of flexibility in scheduling: St. Joseph
Ambulance, 346 NLRB 1311, 1314 (2006); Exelon Generation Co., 347 NLRB 815, 820 (2006);
changes of shifts: Transportation Repair and Service, 328 NLRB 107, 110, 112 (1999) and
reduction of wages: Schaumburg Hyundai Inc., 318 NLRB 449, 450 (1995). See also Pennant
Foods, 352 NLRB 451, 452, 462 (2008) (if union comes in, employees would lose control to
union and lose benefits); Mercy Hospital, 334 NLRB 100, 103 (2001) (employees would lose
benefits such as time-off if union comes in); Fieldcrest Cannon, 318 NLRB 470, 495 (1995)
(stricter enforcement of rules if union comes in).
Thus, based on Dunkin’s conduct alone, I recommend that Objections 1 and 4 be
sustained.
B. Conduct of Thomas Brunelle
On October 27 and 28, Thomas Brunelle conducted a series of approximately 10
meetings of employees at various times to set forth the Employer’s view concerning the union
election. At one of these meetings held in the Green Briar Room at Mount Alverno, there were
10 employees present plus Deyo.
Brunelle gave the employees reasons why he felt that employees should vote “no” in the
election. Among the reasons he discussed was that if the Union came in, the employees’ “open
door policy” would be taken away. Accordingly, Brunelle explained that employees would lose
their freedom to speak with HR or managers because if the Union came in, the employees
would have to find a third party to represent them, and the Union would have to represent them
in dealing with management.
Brunelle also mentioned that if the Union came in, the employees would lose special
privileges like flexibility. Brunelle explained that a lot of CNAs are mothers, who are permitted to
leave work early or come in later for doctor’s appointments for themselves or their children.
Thus, if the Union came in, the employees would lose that flexibility of scheduling.
On October 28, Brunelle conducted another meeting in the Green Briar Hall at Mount
Alverno. Present were 8-10 employees plus Deyo. After urging employees to vote against the
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Union, Brunelle informed the employees that it would take years to get a contract if the Union is
voted in, that everything would be frozen and there would be no annual pay raise10, and the
employees won’t be able to do flexible schedules anymore.
Evelyn McSherry asked a question and had a discussion with Brunelle about benefits at
another facility that employees had worked in. The discussion became somewhat heated, and
Deyo intervened and said “That’s enough.” McSherry then said that she had to go back to work,
shook Brunelle’s hand and left the meeting.
My findings concerning the events at these two meetings is based on the credible
testimony of VonHahsel and McSherry.
Both witnesses furnished detailed and somewhat mutually corroborative testimony11,
which was consistent on direct and cross examinations. The testimony is also in part similar to
statements made by Dunkin to employees that I have found above concerning the loss of
flexibility if the Union came in. Further, McSherry is currently an employee of the Employer, and
as I have observed above, her testimony where it is adverse to the Employer’s interest is
entitled to greater weight. Evergreen, supra; Flexsteel Industries, supra.
In contrast, Brunelle’s testimony as to his statements at meetings was vague and
uncertain, and he could not recall what he said at any particular meeting. His testimony
consisted primarily of generalized statements of what he “would have” said at meetings about
particular subjects, not what he actually said.
Brunelle did deny making the specific statements attributed to him by VonHahsel and
McSherry, although as noted he was somewhat vague concerning what he did say and at what
meeting. Thus, with respect to the issue of an open door policy, Brunelle denied telling
employees that the Employer’s open door policy would be taken away if the Union came in and
emphatically denied telling employees that they would no longer be allowed to meet with Human
Resources if the Union came in.12
According to Brunelle, he did mention at meetings that if a union was voted in to
represent the employees that that would restrict the things that he could meet with employees to
talk about, that there were certain things that could only be brought to management through the
Union.
Brunelle also denied that he told employees that wages or other benefits would be
“frozen.” However, Brunelle does recall saying that if employees chose to be represented by a
union their wages as well as everything else would stay the way that it was until negotiations
were completed.
Brunelle also denied that he told employees at the meeting attended by McSherry that it
would take years to get a contract. According to Brunelle, he did tell employees at that meeting,
as well as at other meetings, that the length of time for negotiations is not prescribed. He added

10 The Employer had a policy of awarding pay raises to employees annually on the
anniversary of their date of hire.
11 Both employees testified that if the Union came in, that employees would lose their
privilege of flexibility in scheduling.
12 Brunelle testified that “I would remember if I made a statement to the effect because I
knew it to be untrue.”
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that negotiations continue until a contract is reached, and it could take a short period of time and
it could take a long period of time depending on how well the communications go.
Brunelle denied telling employees that they would no longer have flexible schedules.
Brunelle testified that he did tell employees that flexibility in scheduling would be reduced unless
it was negotiated into a contract. He asserts that he further explained that once a union contract
is in place things like scheduling and shifts are set in a contract, so there would be less flexibility
in that environment than in a non-union environment.
As noted above, I credit the testimony of the employees as detailed above13, for the
reasons that I have set forth.
Further, as more fully explained below, I find that in most of the areas in dispute vis a vis
McSherry and VonHahsel versus Brunelle, my conclusions with respect to the existence of
objectionable conduct would be unchanged based on either version of Brunelle’s comments.
Starting with Brunelle’s statement concerning the open door policy, I have credited
VonHahsel that Brunelle told employees that the Employer’s “open door policy” would be taken
away if employees voted for the Union. However, such comments are neither unlawful nor
objectionable. Ben Venue Laboratories, 317 NLRB 900 (1995); SMI Steel, 286 NLRB 274
(1987); FGI Fibers, 280 NLRB 473 (1986); Koons Ford of Annapolis, 282 NLRB 506 (1986); Tri-
Cast, Inc., 274 NLRB 377 (1985).
Petitioner cites Guardian Automotive Trim Inc., 337 NLRB 412, 415 (2002) in support of
its assertion that comments, such as these made by Brunelle, are unlawful. However, in that
case, respondent filed no exceptions and the Board therefore affirmed the judge’s findings pro
forma and affirmed the decision based on general counsel’s exceptions to conform the judge’s
conclusions to his findings and add the union’s complete name to the notice. Notably, the judge
cited no case in support of his conclusion that the statement that an open door policy would end
constitutes an unlawful threat.
I therefore find Guardian Automotive not to be a persuasive authority and find as I have
stated above that such comments by Brunelle are neither unlawful nor objectionable. Ben
Venue, supra; Tri-Cast, supra; Koons Ford, supra.14
I therefore recommend that Objection 10 be dismissed.
I have found above that Brunelle did tell employees at a meeting that if the Union is
voted in, it would take years to get a contract, everything would be frozen and there would be no
annual pay raise. Brunelle’s remarks that there would be no annual pay raise and everything
would be frozen is clearly an unlawful threat to withhold wage increases, particularly where as
here the Employer had a practice of granting annual wage increases to its employees. First
Student Inc., 341 NLRB 136, 141 (2004); Superior Emerald Park Landfill, 340 NLRB 449, 460-

13 However, I do not credit the testimony that Brunelle said that if the union comes in
employees would no longer be able to speak to Human Resources. I credit Brunelle’s emphatic
denial in this respect as I do not believe that he would have made such a comment since he
knew that it was not true.
14 See also United Rentals, 349 NLRB 190, 191 (2007), a post-Guardian Automotive case
reaffirming the principles of Tri-Cast, supra that accurate descriptions that the selection of a
union changes the relationship between employees and their employer are not unlawful.
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462 (2003); Federated Logistics & Operations, 340 NLRB 253, 254 (2003); Jensen Enterprises,
339 NLRB 877 (2003); Illiana Transit Warehouse Corp., 323 NLRB 111, 113-114 (1997). I
therefore find Brunelle’s comments constituted objectionable conduct.
Notably, even crediting Brunelle’s version of his remarks would not change my
conclusions in this regard. Thus, although Brunelle denies telling employees that their wages
would be “frozen” if the Union came in, he does admit to informing employees that if they chose
to be represented by a union their wages would stay the way it was until negotiations are
completed. Thus, although Brunelle denies using “frozen” to describe the status of its
employees’ annual increases, he concedes that he told employees that their wages would stay
the way it is until negotiations are completed. I find no significant difference between the word
“frozen” and the phrase “stay the way it is” and conclude based on the precedent cited above
that even crediting Brunelle, the Employer engaged in objectionable conduct by threatening to
withhold wage increases.
Based on the credited testimony of VonHahsel and McSherry, Brunelle told employees
at the meeting that these employees attended, that if the Union came in, the employees would
lose special privileges like flexibility (VonHahsel) or that they won’t be able to do flexible
scheduling anymore (McSherry).
These comments are virtually identical to the statements made by Dunkin to employees
in individual conversations that I have found above to be objectionable. St. Joseph Ambulance,
supra, 346 NLRB at 1314; Exelon Generation, supra, 347 NLRB at 830. I find that Brunelle’s
statements are similarly objectionable.
Moreover, I also conclude that were I to credit Brunelle’s version of what he said to
employees at meetings concerning flexibility, such comments were objectionable. According to
Brunelle, he told employees that flexibility in scheduling would be reduced, unless it was
negotiated into a contract. He asserts that he added that once a union contract is in place,
things like scheduling and shifts are set so there would be less flexibility in a non-union
environment.
Thus, Brunelle was in effect making a prediction of the possible consequences of union
representation on the employees’ current practice of flexible scheduling. Such predictions must
be based on objective facts to convey to employees an employer’s belief as to demonstratively
probable consequences beyond his control. Exelon Generation, supra, 347 NLRB at 830; NLRB
v. Gissel Packing Co., 395 U.S. 575, 618 (1969); Systems West LLC, 342 NLRB 851, 852-853
(2004); Schaumburg Hyundai, supra, 318 NLRB at 450.
Here, Brunelle provided no objective facts to support his prediction that flexibility in
scheduling would or could be reduced in the event of union representation. He provided no
support for his assertion or speculation that since a union contract details scheduling or shifts,
flexibility is less likely. Indeed, while union contracts may or may not detail shifts and schedules,
it is not likely that a union contract would preclude an employer from permitting employees to
leave early or come in later on particular days for doctor’s appointments or other such reasons.
Further, the statement by Brunelle that flexibility in scheduling would be reduced unless
it was negotiated into a contract conveys to employees that the loss of their present benefit of
flexibility in scheduling would be triggered by unionization and the loss would continue
throughout negotiations unless and until it is restored. Hertz Corp., 316 NLRB 672 fn. 2 (1995);
Federated Logistics, supra, 340 NLRB at 255-256; Mercy Hospital, supra, 334 NLRB at 103-
104.
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Accordingly, based on the foregoing, I conclude that Objections 1 and 4 should be
sustained.
I have also found above that Brunelle told employees at one meeting that it would take
years to get a contract if the Union was voted in, everything would be frozen, there would be no
annual pay raise and employees won’t be able to do flexible scheduling any more. These
comments would reasonably be understood by employees that selecting union representation
would be futile. Federated Logistics, supra, 340 NLRB at 255-256; Allegheny Ludlum Co., 320
NLRB 484, 487-488, 494 (1995); General Fabrications Corp., 328 NLRB 1114, 1130 (1999);
Capitol EMI Music, 311 NLRB 997, 1007-1009 (1993), enfd 23 F.3d 399 (4th Cir. 1994); Sivalls
Inc., 307 NLRB 986, 1001 (1992).
Such conduct is unlawful and constitutes objectionable conduct. I therefore conclude
that Objection 9 should be sustained.
4. Objections 3, 6 and 7
These objections relate to the posting of the document described above by Dunkin,
wherein I found above that the Employer was responsible for the contents of the document and
had created the impression of surveillance of employees’ union activities as encompassed by
Objection 5.
Petitioner also argues that other parts of this document also established that the
Employer threatened employees with loss of jobs, disparaged employees for engaging in union
activities, stated that union activity is incompatible with continued employment and posted
literature that created and promoted a general atmosphere of fear, violence and reprisal.
Petitioner contends that the comments in the document that if union supporters want to
work in a union facility then they should go to one that already has the union, is an implied
threat of discharge. I agree.
Statements similar to the above quoted comment imply that support for the Union is
incompatible with continued employment. “Suggestions that employees who are dissatisfied
with working conditions should leave rather than engage in union activity in the hope of
rectifying matters coercively imply that employees who engage in such activity risk being
discharged.” Jupiter Medical Center Pavilion, 346 NLRB 650, 651 (2006).
I therefore find that the Employer has engaged in further objectionable conduct by
impliedly threatening discharge. Jupiter Medical, supra (employer informed employee that he
“seemed unhappy here” and adding “maybe this isn’t the place for you…there are a lot of jobs
out there”); Hialeah Hospital, 343 NLRB 391, 394 (2004) (employer suggesting that if the
employees were “not happy” they should quit); Paper Mart Co., 319 NLRB 9 (1995) (employer
telling employee that he should seek employment elsewhere if he was not happy working for
employer); Stoody Co., 312 NLRB 1175, 1181 (1993) (telling employee that those who were “so
nitpicking” about conditions of employment should seek other employment); House Calls Inc.,
304 NLRB 311, 313 (1991) (informing employees, who were engaging in concerted activities by
complaining about working conditions, that “they could quit if they did not like it”); Fontaine Body
& Hoist, 302 NLRB 863, 866 (1991) (employer tells employee if he was unhappy with the
company and wanted the union so much, he should seek other employment).
Accordingly, I concluded that Objection 3 and Objection 7 in part should be sustained.
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Objection 7 also alleges that the Employer “disparaged employees for engaging in
protected union activities.” Petitioner argues in this regard that the leaflet falsely accuses union
supporters of continually promoting the union and harassing and terrorizing co-workers not in
support of the union instead of taking care of the residents. Petitioner argues that this conduct is
objectionable. Aldworth Co., 338 NLRB 137, 141-142 (2002) (employer unlawfully disparaged
and falsely accused unnamed union proponents of misconduct and thus held them up to
derision in the voting unit.) Petitioner also argues that the leaflet “unlawfully portrays union
supporters as bullies and pushers who belong in Cuba, not in America.” Refuse Compactor
Service, 311 NLRB 12, 13 (1993) (employer unlawfully opined that supporting the union is like
“being in Russia”). I disagree.
It is well settled that the Act countenances a significant degree of vituperative speech in
the heat of labor relations. Words of disparagement alone concerning a union, its officials or its
supporters is insufficient for a violation of Section 8(a)(1) of the Act. Trailmobile Trailer LLC, 343
NLRB 95 (2004). Rather, flip or intemperate statements that are mere expressions of opinion
are protected by the provisions of Section 8(c) of the Act. Trailmobile Trailer, supra; Sears
Roebuck & Co., 305 NLRB 193 (1991).
Here, I find that the statements made in the leaflet about union supporters while
disparaging, did not suggest that the employees’ union activity was futile, did not convey any
implicit threats and did not constitute harassment that would reasonably tend to interfere with
employees’ Section 7 rights. Trailmobile Trailer, supra (referring to union supporters as
“monkeys,” people in the union or union representatives as “stupid,” “worthless,” “no good” and
as a “fat ass”); Evergreen, supra, 348 NLRB at 201 (telling employees that the union was
related to gangsters); Sears Roebuck, supra (telling employees that the union might send
someone out to break their legs in order to collect dues); Salvation Army Residence, 293 NLRB
944 (1989) (telling the employees that the union belonged to the mafia); Camvac International,
288 NLRB 816, 820 (1988) (informing employees about union officials’ reported connections to
organized crime and criminal investigations of union pension funds); Newsday Inc., 274 NLRB
86, 95 (1985) (telling employees that the union president was corrupt); The Nestle Co., 248
NLRB 732, 737 (1980) (referring to union as “a bunch of crooks”); Fayette Cotton Mill, 245
NLRB 428 (1979) (stating that the union had “chickened out”); North Kingstown Nursing Care
Center, 244 NLRB 54, 65 (1979) (stating that unions were “communistic”).
The cases cited by Petitioner in support of its position are inapposite. Aldworth, supra,
338 NLRB at 141-142 found that the employer had unlawfully disparaged employees by falsely
accusing union proponents of specific and serious misconduct, which held these employees “up
to derision before the entire unit.” However, the primary basis for this finding was the Board’s
prior conclusions that the purported misconduct for which the employees were disciplined and
which were referred to by the employer in its comments to employees (“lateness,” “stealing
time” and “sleeping on the job”) were found to be pretextual since the ultimate suspension and
discharge of these employees was violative of Section 8(a)(3) of the Act. Here, there is and can
be no such finding, and in fact, Petitioner adduced no evidence that the accusations made
against the union supporters in the leaflet (that they were “bullies,” that they had “terrorized”
employees by “threatening” everyone who is not in support of the union, and that they
“promoted the union on a full-time basis instead of taking care of residents like they are suppose
to”) were not true or accurate. See Newsday, supra, 274 NLRB at 95 (ALJ affirmed by Board
finds that accusation that union president was “corrupt” in absence of evidence to the contrary
to be “truthful”). I need not and do not find that the accusations made about the union
supporters were truthful. However, I do rely in part on the absence of any evidence that the
accusations were false in determining that the comments in the leaflet were neither unlawful nor
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objectionable, and that Aldworth, supra is clearly distinguishable on that basis.
Refuse Compactor Service, supra also cited by Petitioner is even less persuasive.
There, the Board considered an exception by General Counsel that the judge had failed to find
that a statement by the employer that supporting the union is “like being in Russia” violated
Section 8(a)(1) of the Act. The Board concluded there was no need to find a separate 8(a)(1)
violation based on this statement since the judge had appropriately treated this and similar
statements by the employer on that day as collectively threatening the futility of union
organization. Thus, contrary to Petitioner, the Board did not find that a statement that supporting
the union is “like being in Russia” violated the Act. Here, there are no other statements made in
the leaflet that can be construed as threatening the futility of union representation.
Therefore, the cases cited by Petitioner do not support its assertion that the accusations
made in the leaflet unlawfully “disparaged” the union supporters or amounted to objectionable
conduct. Rather, based on the precedent that I have cited above15, I conclude that this portion
of Objection 7 be dismissed.
Petitioner contends in Objection 6 that the Employer “posted campaign literature that
created and promoted a general atmosphere of fear, violence and reprisal.” Robert Orr-Sysco
Food Services, 338 NLRB 614 (2002). Petitioner argues that the Employer was “encouraging
loyal employees to stand-up and fight the terrorizing union bullies” and “promoting the specter of
vandalism” by posting the leaflet. Once again, I cannot agree.
Contrary to Petitioner, the statements made in the leaflet do not come close to meeting
the stringent standard of “creating an atmosphere of fear and violence” applied in Robert Orr-
Sysco, supra. There, the evidence revealed several direct threats of violence as well as threats
to cause employees to be deported.
Here, there is no such evidence. Petitioner’s assertion that the leaflet encourages
“employees to stand-up and fight the terrorizing union bullies” and creates an atmosphere of
fear, violence and reprisal, I find to be misplaced.
I find that the statements referred to are ambiguous and cannot be reasonably be
construed as urging any employees to engage in any violent activity. The comment urging
employees to “to stand up for our rights and fight these bullies” does not in my view imply
fighting by the use of violence but rather a metaphorical “fighting” by standing up for their rights.
While it is true that the leaflet accused the union supporters of “terrorizing” non-union
supporters, that comment does not promote violence but is merely an opinion by the anti-union
employees (adopted by the Employer) that characterized union supporters’ behavior. I have
already concluded above that such “disparaging” comments about the union and/or its
supporters are neither unlawful nor objectionable.
Petitioner’s further contention that the document “promotes the specter of vandalism”
presumably by its picture of slashed tires is also without merit. I do not view the slashed tire as a
promotion of vandalism. There is no suggestion that anti-union employees engage in tire
slashing or any other violent activity or engage in any vandalism. Rather, the leaflet appears to
be accusing union supporters of engaging in the tire slashing by its comment “SUPPORT THE

15 Trailmobile Trailer, supra; Evergreen, supra; Salvation Army, supra; Camvac
International, supra; Newsday, supra; Nestle Co., supra; Fayette Cotton, supra; North
Kingstown, supra.
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UNION OR GET ONE OF THESE.” I have already concluded based on the precedent cited
above that these kinds of accusations against the Union or its supporters are neither unlawful
nor objectionable particularly where, as here, no evidence was adduced that the accusations
were baseless or not true.
Accordingly, based on the foregoing, I recommend that Objection 6 be dismissed.
5. Objection 8
In August, VonHahsel began to post union literature on the bulletin board located in the
Forest Hall breakroom at Schervier. On about five occasions in that month, Sandra Gomas,
nurse manager for Forest Hall, instructed VonHahsel to remove the literature and not post such
literature on the bulletin board. Gomas added that if VonHahsel did not remove the literature,
she (Gomas) would take it down herself. VonHahsel asked she why could not post union
literature. Gomas replied that it was against company “policy.” VonHahsel answered that she
was not aware of any such policy and demanded that Gomas show her the policy. Gomas never
showed VonHahsel any policy that prohibits the posting of union or other literature on the
bulletin, nor did Gomas explain to VonHahsel what the policy specifically stated concerning the
posting of items on the bulletin board. On some of these occasions, Gomas actually removed
the union literature in front of VonHahsel from the bulletin board and took the literature with her.
As I have detailed above, in early October, VonHahsel complained at an anti-union
meeting conducted by Deyo about why she couldn’t hang pro-union literature around the facility
when “you” post your anti-union literature. Deyo responded that she couldn’t post union
literature because it was against “policy.” As related above, Deyo added that if anyone wanted
information about the Union, they should attend VonHahsel’s Wednesday union meetings. Deyo
did not explain at the meeting what the Employer’s “policy” was concerning the posting of union
or other literature on the Employer’s bulletin boards.
Similarly, in mid-October, DeWitt was in the Briar Hall breakroom at Schervier. Dunkin
began to post anti-union literature on the bulletin board. DeWitt asked Dunkin if the employees
could hang up some pro-union fliers on the bulletin board. Dunkin replied “No, it’s illegal.”
DeWitt responded by asking “Why is it illegal?” and adding Dewitt’s opinion “It’s not illegal.”
Dunkin replied “Yes, it is,” and Dewitt left the room.
Previously, DeWitt had herself put up pro-union fliers on several occasions on bulletin
boards in the breakrooms at Maple Hill and at Briar Hall. However, the day after she posted the
union literature, DeWitt noticed that the fliers had been removed.
The day after DeWitt’s conversation with Dunkin, as detailed above, DeWitt observed a
notice handing on the Briar Hall breakroom bulletin board along with other Employer campaign
literature. This notice in Dunkin’s handwriting stated “There are only postings on material
approved and initialed by H.R.”
The above findings concerning the above incidents are based on the credited and similar
testimony of DeWitt and VonHahsel. Notably, Gomas did not testify, so VonHahsel’s testimony
with regard to her conversation with Gomas is undenied and uncontradicted. While Dunkin did
deny that she told DeWitt that it was “illegal” to post union literature, I have not credited her
denials concerning other alleged comments and events as testified to by employees for the
reasons that I have detailed above. I find similarly here, including the fact that DeWitt is still an
employee of the Employer. Evergreen, supra; Flexsteel Industries, supra.
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Employees VonHahsel, DeWitt and Allen testified that they were never made aware of
any policy of the Employer concerning what items can be posted on bulletin boards at the
Employer’s facilities.16
VonHahsel testified that throughout her employment at Schervier, she observed on three
bulletin boards in the breakrooms at that facility various items posted, such as advertisements
for Weight Watchers, leaflets by employees selling jewelry, jewelry parties, food tasting parties
and Avon functions. She saw these items for months at a time. DeWitt testified that she
observed items on the bulletin boards in Briar Hall at Schervier, such as people selling jewelry
or other items, cards from residents’ families, Avon materials and candlelight party invitations.
Shannon Allen testified that she recalled seeing a notice for the Haiti Relief Fund on bulletin
boards at Schervier. Allen did not recall ever seeing on bulletin boards personal notices, such
as weddings or people selling things.
Several witnesses for the Employer testified concerning the Employer’s alleged policy
concerning bulletin boards. It is undisputed that the Employer has never announced to
employees any kind of policy or rule concerning bulletin boards in writing. Notably, the Employer
has issued a manual detailing various rules and regulations that employees must follow, but
there is no mention of any policy or requirement with respect to posting material on the
Employer’s bulletin boards.
Clark, who as noted was the Employer’s Director of Human Resources for the Warwick
Campus, testified that the Employer had in place a longstanding unwritten two-tier policy.
According to Clark, each facility had one or two bulletin boards designated as Human
Resources or Administration bulletin boards. As to these boards, Clark asserts that employees
were required to obtain permission from HR in order to post any items. However, Clark
contends that as to other bulletin boards generally located in breakrooms, nurse managers were
given discretion as to what items could be posted in the breakrooms for which these supervisors
were responsible.
Brunelle and Dunkin, on the other hand, did not mention any two-tiered policy. They
testified that all postings at all bulletin boards needed permission from HR. According to
Brunelle, he found out about this policy when he was transferred to the Warwick Campus in
September 2007, and he was told by one of three Human Resources officials, Clark, Larry
Delacourt or a woman, whose name Brunelle did not recall. Brunelle also testified that during
the union campaign one of these same three HR officials informed him that union supporters
had asked HR for permission to post union material on the Employer’s bulletin boards and that
HR had denied those requests.
Mary Dunkin testified that in her experiences the “policy” had always been that all
postings at bulletin boards must be approved by HR. She also testified that she has consistently
applied and enforced this policy in the units under her supervision. Dunkin recalled that an
employee asked for permission to post a notice selling a television and an employee was
hosting an Avon party. According to Dunkin, when these employees asked her for permission to
post these items on bulletin boards, she instructed them to get permission from HR. She asserts
further that both employees did so, permission was granted, the items were initialed by HR and
the postings were permitted. Dunkin also testified that during the campaign, she was instructed
by someone from HR, probably Larry, that if there were materials on the bulletin boards which

16 VonHahsel was employed by the Employer for slightly over 2 years, Allen for 9 years and
DeWitt for 13 years.
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did not have initials from HR that she should take it down. Dunkin further testified that she
followed these instructions and removed material from bulletin boards, including union literature
and gave the items to HR.
Clark also testified that he was unaware of whether or not anyone asked HR for approval
to post union literature. According to Clark, as related above, particular managers used their
discretion to decide whether materials could be posted on HR bulletin boards. He asserted that
under this policy individual managers have allowed postings for garage sales and birthday
parties. Clark also testified to an occasion when an employee asked HR for permission to post a
notice on the HR Administration’s bulletin board for an event for an outside not for profit agency
for which the employee was a volunteer. Clark approved that request, initialed it and the notice
was posted. He recalls approving the posting of a sympathy card on the HR board. Further,
Clark contends that if he saw a posting on an HR board that was not initialed he would pull it
down. Clark also testified that generally he would grant permission for employees to post items
on the HR boards but he did recall one incident where he denied such permission. Clark could
not recall the specifics of the item but he believed that an employee was selling something and
he (Clark) felt that the Employer was not in business to help employees profit.
Clark also testified that early on in the campaign, prior to the filing of the petition,
supervisors of the Employer were routinely removing union literature from all bulletin boards.
However, after consulting with counsel, Clark testified that the Employer instructed its
supervisors that with respect to non-HR bulletin boards if the supervisor had permitted
employees to post non-work related items, such as garage sales, birthday parties and selling
their kids tricycle, then they must also allow union related literature to be posted on these
bulletin boards.
An employer is under no obligation to permit employees to use its bulletin boards to post
pro-union materials or literature even where the employer itself uses the same bulletin boards to
post its own anti-union messages. Register Guard, 351 NLRB 1110, 1114, 1118 (2007).
However, if the restrictions on employees’ use of bulletin boards are promulgated with anti-
union motivation or discriminatorily enforced, then an employer has violated Section 8(a)(1) of
the Act. Loparex LLC, 353 NLRB #126 slip op at 9 (2009); Starbucks Corp., 354 NLRB #99 slip
op at 21 (2009).
In applying these principles here, I am in agreement with Petitioner that the evidence
establishes that the Employer both unlawfully promulgated and discriminatorily enforced its
prohibition against employees’ use of its bulletin boards to post pro-union literature.
I credit the mutually corroborative testimony of VonHahsel, DeWitt and Allen17 that they
had never been informed or aware of a policy of the Employer with respect to posting material
on bulletin boards or that permission from HR was required before such posting was permitted.
While witnesses for the Employer furnished testimony concerning the existence of such
a policy, such testimony was not consistent. Thus, Clark testified that the Employer had in
existence and enforced a two-tier policy of requiring permission for posting materials only on
certain HR or administrative bulletin boards, but as to other bulletin boards located in
breakrooms and which were the boards involved here, the manager of each unit had discretion
to allow such postings or not. In contrast, Brunelle and Dunkin testified that the Employer’s
policy was to require permission from HR to post any notices on any bulletin boards. This

17 I note that Allen was a witness called by the Employer.
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inconsistency in testimony renders the Employer’s attempt to establish the existence of a policy
with regard to permission to post, suspect and unpersuasive. Further, it is undisputed that the
alleged “policy” concerning permission was not in writing and was not included in the
Employer’s manual distributed to employees. Jordan March Stores, 317 NLRB 460, 462 (1995)
(alleged rule requiring approval for posting notices on bulletin boards, not mentioned in manual
and employees unaware of such rule); Nashville Plastic Products, 313 NLRB 462 (1993)
(alleged rule not in handbook and employees unaware of its existence).
Further, when Gomas instructed VonHahsel to remove from the bulletin board union
literature that VonHahsel had posted or in some cases removed the literature herself,
VonHahsel asked why she could not post these items. Gomas replied that it was against
company “policy.” VonHahsel replied that she was not aware of any such policy and demanded
that Gomas show her the policy. Gomas did not show her any policy and more significantly,
never explained to her what the policy was or that VonHahsel needed to obtain permission from
HR in order to post items on the bulletin board.
When VonHahsel subsequently complained about being unable to post union literature
at a meeting conducted by Deyo, she was told that such posting was against “policy,” again
without explaining what the policy was or that she needed to ask permission from HR before
posting items on the bulletin boards.
Similarly, when DeWitt asked Dunkin if she could hang up pro-union fliers on the bulletin
board, Dunkin replied “No, it’s illegal.” Dunkin did not explain why it was “illegal,”18 and more
importantly, did not inform DeWitt of any company policy requiring permission from HR.
I therefore conclude that based on the above evidence that the Employer has unlawfully
promulgated a policy of denying employees permission to post union literature. Loparex, supra;
Gallup Inc., 334 NLRB 366 (1993); Nashville Plastic, supra; Jordan Marsh, supra.
Moreover, even if it were found that the Employer had such a policy in place, the
evidence discloses that it failed to enforce such a policy until the Union appeared on the scene.
Starbucks, supra, slip op at 22; Gallup, supra, 334 NLRB at 373-374; Jordan Marsh, supra, 317
NLRB at 462.
While this finding in itself constitutes objectionable conduct by the Employer, I also
conclude that even apart from that finding that the Employer discriminatorily enforced its policy
pertaining to posting on its bulletin boards. Loparex, supra; Starbucks, supra; Register Guard,
supra.
I note that Register Guard, supra modified extant Board law concerning what constitutes
discriminatory enforcement of policies and rules, such as the use of bulletin boards.19
The Board adopted the analysis of the 7th Circuit in Fleming Co., 349 F.3d 968 (7th Cir.),

18 I agree with Petitioner’s assertion that Dunkin’s comment to DeWitt that it was “illegal” to
post union fliers in the bulletin board is independently violative of Section 8(a)(1) of the Act and
should therefore constitute objectionable conduct. Wal-Mart Stores Inc., 340 NLRB 220, 234-
235 (2003) (statement to employee that it was “unlawful” for employees to participate in union
activities violative of Section 8(a)(1) of the Act.
19 While Register Guard, supra involved the issue of the use on employer’s email system, it
is clear that the analysis applied to bulletin boards as well.
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denying enf. of 336 NLRB 192 (2001) and Guardian Industries, 49 F.3d 317 (7th Cir.), denying
enf. of 313 NLRB 1275 (1995) and finds discriminatory enforcement only if the disparate
treatment consists of activities and communications of a similar character because of their union
status. While the Board did not define precisely what communications or activities are of “a
similar character” to union activities or communications, it did provide some examples of where
discrimination would be construed as unlawful and along Section 7 lines.
For example, an employer clearly would violate the Act if it
permitted employees to use e-mail to solicit for one union but not
another, or if it permitted solicitation by antiunion employees but
not by prounion employees.17 In either case, the employer has
drawn a line between permitted ad prohibited activities on Section
7 grounds. However, nothing in the Act prohibits an employer from
drawing lines on a non-Section 7 basis. That is, an employer may
draw a line between charitable solicitations and noncharitable
solicitations, between solicitations of a personal nature (e.g., a car
for sale) and solicitations for the commercial sale of a product
(e.g., Avon products), between invitations for an organization and
invitations of a personal nature, between solicitations and mere
talk, and between business-related use and non-business-related
use. In each of these examples, the fact that union solicitation
would fall on prohibited side of the line does not establish that the
rule discriminates along Section 7 lines.18 For example, a rule that
permitted charitable solicitations but not noncharitable solicitations
would permit solicitations for the Red Cross and the Salvations
Army, but it would prohibit solicitations for Avon and the union.19
17 On the other hand, an employer may use its own equipment to
send antiunion messages, and still deny employees the
opportunity to use that equipment for prounion messages. As
noted above, employees are not entitled to use certain method of
communication just because the employer is using it. See Nutone,
supra at 363-364.
18 Of course, if the evidence showed that the employer’s motive for
the line drawing was antiunion, then the action would be unlawful.
There is no such evidence here.
Member Kirsanow notes that in determining whether a facially
Section 7-neutral line has been drawn with an antiunion motive,
the employer’s reasonable interest in drawing that particular line
would be, for Member Kirsanow, a relevant consideration. That is,
if the line drawn has the effect of prohibiting all Section 7
communications and is not based on any reasonable employer
interest, Member Kirsanow would find an antiunion motive to be a
permissible inference.
19 Indeed, the Board has already recognized that allowing limited
charitable solicitations does not necessarily require an employer
to allow union solicitations. See Hammary Mfg. Corp., 265 NLRB
57 (1982) (an employer will not violate Sec. 8(a)(1) by “permitting
a small number of isolated ‘beneficent acts’” – such as solicitation
for a United Way campaign – as “narrow exceptions” to a no-
solicitation rule, while prohibiting union solicitation).
351 NLRB at 1118
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Later in the decision, the Board in assessing the alleged disparate treatment
distinguished between personal announcements and personal offers to sell products, which it
deemed dissimilar to union activities from solicitations to support groups or organizations, which
it deemed similar to union activities. 351 NLRB at 1119; Starbucks, supra, 354 NLRB #99 at 22.
In applying this analysis, it is clear that the employer’s conduct here consisted of
disparate treatment along Section 7 lines and was unlawful. Thus, the Board in Register Guard
stated that an “employer clearly would violate the Act if it…permitted solicitation by antiunion
employees but not by prounion employees. 351 NLRB at 1118. Here, not only did the Employer
permit non-union literature prepared by anti-union employees to be posted on the same bulletin
boards where it denied permission of pro-union literature to be posted, but in fact the Employer
actually posted the anti-union literature prepared by anti-union employees on such bulletin
boards. This evidence is sufficient in itself to establish discriminatory disparate treatment along
Section 7 lines. Register Guard, supra.
Moreover, some of the same types of items that the Employer permitted to be posted
would be considered to be similar to union notices and would be disparate treatment along
Section 7 lines. The evidence discloses that the Employer permitted postings on its bulletin
boards for Avon20 and for Weight Watchers. Both of these items would fall within the Board’s
definition in Register Guard of groups or organizations deemed to be similar to labor
organizations. Indeed, the Board in Register Guard specifically coupled Avon and union
solicitation as similar in explaining what types of discrimination is unlawful. 351 NLRB at 1118.
Additionally, Clark conceded that he personally had, on behalf of the Employer, granted
permission for an employee to post a notice for an event for an outside non-profit agency where
the employee was a volunteer. This would appear to be a posting for a group or an organization
and also similar to a union communication. I find this to be further evidence of discriminatory
enforcement. Register Guard, supra.
Accordingly, based on the foregoing analysis and authorities, I conclude that the
Employer discriminatorily promulgated and enforced a policy of denying employees the right to
post union literature on its bulletin boards. Such conduct constitutes objectionable conduct. I
therefore recommend that Objection 8 be sustained.
Conclusions
I have found above that Objections 6 and 10 and portions of Objections 5 and 7 should
be dismissed. I have also concluded that Objections 1, 3, 4, 8 and 9 and portions of Objections
5 and 7 should be sustained. The objectionable conduct that I have found included a number of
instances of surveillance, creating the impression of surveillance, threats of discharge, threats to
reduce wages, threats to change flexibility in scheduling and shifts, and threats of futility and
unlawfully promulgating and enforcing a policy of prohibiting employees from posting union
literature on the Employer’s bulletin boards.
This conduct which affected a large number of unit employees in a close election is more
than sufficient to require that the election be set aside. I so find.

20 Notably, Dunkin testified that the Employer granted permission to employees to post a
notice for an Avon party.
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ORDER
I therefore recommend21 that the election held on October 30, 2008 be set aside, and
the case be remanded to the Regional Director to schedule a new election.
Dated, Washington, D.C. April 26, 2010
____________________
Steven Fish
Administrative Law Judge

21 Under the provisions of Sec. 102.69 of the Board’s Rules and Regulations, Exceptions to
this Report may be filed with the Board in Washington, DC within 14 days from the date of
issuance of this Report and recommendations. Exceptions must be received by the Board in
Washington by May 10, 2010.