Briar Crest Nursing Home

National Labor Relations Board - Board Decisions

Apr 12, 2001

333 N.L.R.B. 935 (N.L.R.B. 2001)

BRIAR CREST NURSING HOME 935
Briar Crest Nursing Home and 1199 National Health
& Human Service Employees Union. Cases 2–
CA–30131, 2–CA–30258, 2–CA–30283, 2–CA–
30993, and 2–CA–31167
April 12, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN
AND WALSH
On August 28, 1998, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Respon-
dent and the General Counsel filed exceptions, supporting
briefs, and answering briefs, and the Charging Party filed
exceptions and an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,1 and conclusions2 and
to adopt the recommended Order as modified and set forth
in full below.3
Our dissenting colleague disagrees with the judge’s
findings that the Respondent violated Section 8(a)(3) by
eliminating employee Patrick Duncan’s hours of work and
by discharging employee Tessie Cherry. For the follow-
ing reasons, we agree with the judge.
1. Duncan began working for the Respondent as a li-
censed practical nurse in August 1996. Duncan believed
he was being hired for a full-time position. A day or two
before he began work, however, Director of Nursing Bar-
bara Rusinko informed him that the position had not been
approved and she could only offer him per diem work.
Duncan accepted the per diem position.
It is clear that Rusinko was aware Duncan continued to
want a full-time position. In November or December
1996, Duncan received an evaluation. The only negative
comment in the overall positive evaluation was that Dun-
can had refused to work weekends. Duncan replied in
writing that he refused to work weekends because he was
a per diem employee. He added that “should administra-
tion want my services to include holidays—as is expected
of full-time staff members with benefits—then I am open
to discussions concerning my classification.”

1 The General Counsel and the Charging Party have excepted to some
of the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 The Charging Party has excepted, inter alia, to the judge’s failure to
find that Supervisor Nancy Pupino unlawfully interrogated Patrick Dun-
can. No such violation was alleged in the complaint, and the issue was
not fully litigated at the hearing. Accordingly, we find no merit in the
exception.
3 We shall order the Respondent to rescind the unilateral change to
employee work schedules, which the judge inadvertently omitted from
the recommended Order. We shall also modify the recommended Order
to comply with the Board’s decision in Indian Hills Care Center, 321
NLRB 144 (1996), as modified by Excel Container, 325 NLRB 17
(1997).
In January 1997, the Respondent hired Velda King as a
licensed practical nurse. The Respondent did not offer
this position to Duncan.
In early February 1997, Rusinko summoned Duncan to
her office to tell him that Sabrina Allen had been hired as
a full-time employee and that there would not be much
work for him after February. Duncan asked why he had
not been notified of the opening because Rusinko knew
that he was interested in a full-time position with benefits.
Rusinko replied that a notice had been posted. Duncan
and two other employees testified that they had not seen
the posting. Rusinko asked Duncan whether he wanted to
give up his per diem position or remain on the on-call list.
Duncan replied that he wanted to remain on the on-call
list.
Notwithstanding his wish to remain on the on-call list
and his frequent calls requesting work, Duncan was not
called back to work after February 14, 1997. Rusinko
admitted at the hearing that Duncan was no longer on the
on-call list, and she could not recall when his name was
removed from the list. Rusinko also admitted that Lynette
Hunter, another on-call licensed practical nurse, had con-
tinued to work per diem after Allen was hired.
In addition to King and Allen, the Respondent hired
other full-time licensed practical nurses without informing
Duncan of the openings. When licensed practical nurse
Elaine Barkley resigned in March 1997, the Respondent
did not contact Duncan about this opening. After learning
from another employee that Barkley’s position had been
posted, Duncan called Rusinko to inquire whether there
were any hours available. Rusinko replied that there were
not. When Duncan asked about the posting for the full-
time position, Rusinko agreed to interview him the next
day.
At the interview, Rusinko informed Duncan that she
was not interviewing him for a full-time position. Instead,
she offered him work on weekends and holidays. Duncan
testified that he had never seen such a schedule. When
Duncan asked about the full-time position, Rusinko told
him that she had filled it that morning.
During the remainder of 1997, the Respondent hired at
least two more licensed practical nurses. Duncan was not
contacted about these positions, even though his applica-
tion remained on file.
333 NLRB No. 112
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 936
The complaint alleged that the Respondent violated
Section 8(a)(3) by eliminating Duncan’s scheduled work
hours in February 1997. The General Counsel has the
initial burden of establishing that protected activity was a
motivating factor in the Respondent’s elimination of Dun-
can’s work hours. The elements commonly required to
support such a showing of discriminatory motivation are
union activity, employer knowledge, and employer ani-
mus. Once such unlawful motivation is shown, the bur-
den shifts to the Respondent to prove its affirmative de-
fense that the alleged discriminatory conduct would have
taken place even in the absence of the protected activity.
See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983); and Manno Electric, 321 NLRB
278, 280 fn. 12 (1996). The test applies regardless of
whether the case involves pretextual reasons or dual moti-
vation. Frank Black Mechanical Services, 271 NLRB
1302 fn. 2 (1984). “[A] finding of pretext necessarily
means that the reasons advanced by the employer either
did not exist or were not in fact relied upon, thereby leav-
ing intact the inference of wrongful motive established by
the General Counsel.” Limestone Apparel Corp., 255
NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982).
The Respondent does not dispute that Duncan partici-
pated in union activity of which it was aware. The Re-
spondent argues, however, that there is no nexus between
Duncan’s union activity and the elimination of his work
hours.
The Respondent is arguing, in essence, that the General
Counsel failed to establish that the decision to reduce
Duncan’s hours was discriminatorily motivated. This
argument overlooks the threats the Respondent made dur-
ing the election campaign. In October and November
1996, the Respondent’s owner threatened to close the
business if employees selected the Union as their bargain-
ing representative, threatened employees with discharge if
they engaged in campaigning on company property, and
created the impression that employee union activity was
under surveillance.
The judge drew the connection between the Respon-
dent’s expression of animus and the elimination of Dun-
can’s hours: An employer who campaigns against its em-
ployees’ union organizing efforts by threatening to dis-
charge them and to close his business would have no dif-
ficulty resorting to illegal means to rid itself of a union
supporter and thereby improve its chances of defeating the
union in the rerun election it was seeking.4 Thus, in

4 Nonprofessional employees, including licensed practical nurses
(LPNs), voted for the Union in a representation election in November
agreement with the judge, we find that the General Coun-
sel has established that the Respondent’s antiunion animus
was a motivating factor in the decision to eliminate Dun-
can’s work hours.
Accordingly, we now turn to the issue of whether the
Respondent has shown that it would have taken the same
action even in the absence of Duncan’s union activities.
In his discussion of the Respondent’s motivation for
eliminating Duncan’s work hours, the judge considered
the Respondent’s explanations for its actions, including its
failures to offer Duncan a full-time position.5
The Respondent explained to Duncan that it wanted to
hire more full-time employees and rely less on per diem
employees. The record shows, however, that the Respon-
dent’s actions contradicted this explanation. After claim-
ing that it wanted to replace per diem employees with full-
time employees and hiring King and Allen, the Respon-
dent continued to employ Hunter as a per diem employee
even though Hunter had full-time employment elsewhere.
The Respondent’s claim that it wanted to hire more full-
time employees puzzled the judge for an additional rea-
son: Why repeatedly hire and train new employees when
Duncan was available and qualified? Duncan was a good
employee, had expressed an interest in full-time employ-
ment,6 and was already working almost full time.7 Yet, on
at least five occasions, commencing shortly after Duncan
had repeated to the Respondent his desire to work full
1996, after which the Respondent filed objections. These objections
remained pending until June 1997 when the Board certified the Union.
5 Contrary to the Respondent’s contention that the judge created a
theory for the case that the General Counsel did not argue, the General
Counsel relied heavily on the lack of a satisfactory explanation for fail-
ing to offer Duncan a full-time position as evidence that the Respondent
desired to prevent Duncan from working at all.
6 Duncan interviewed for a full-time position and, after being hired,
complained about working per diem when he wanted a full-time posi-
tion. It is clear the judge believed that Duncan was interested in a full-
time job and that the Respondent knew this.
Our colleague, however, claims the judge found that Duncan did not
express an interest in the full-time jobs for which King and Allen were
hired. Our colleague is apparently referring to the judge’s statement that
the Respondent “did not consider Duncan for the full-time positions that
were offered in January 1997 to either Sabrina Allen or Velda King,
ostensibly because after posting a notice, Duncan did not express any
interest in the positions.”
When viewed in context, it is obvious that our colleague is misreading
the judge’s statement. The judge is not making a finding about whether
Duncan expressed interest in the jobs. Rather, the judge is restating the
Respondent’s position for why it did not contact Duncan. Further, the
judge’s use of ostensibly signals doubt about the Respondent’s claim that
Duncan had expressed no interest in the jobs. Finally, two paragraphs
later in his decision, the judge states that he does not believe the Re-
spondent’s claim that Duncan had expressed no interest in the jobs.
7 The judge found that Duncan generally worked 3 to 4 days a week.
BRIAR CREST NURSING HOME 937
time, the Respondent filled full-time positions without
inquiring whether Duncan was interested.8
The judge found that the Respondent established no sat-
isfactory reason for failing to hire Duncan for one of the
full-time positions. The judge considered this failure
grounds for inferring that the Respondent acted with
unlawful motivation in eliminating Duncan’s hours. Cf.
Williams Contracting, 309 NLRB 433 fn. 2 (1992) (judge
may infer unlawful motivation when the proffered reasons
for an action are false even in the absence of direct evi-
dence of motivation).
In sum, the judge found that animus existed based on
the Respondent’s antiunion statements before the election,
that the Respondent knew of Duncan’s support for the
Union, that the Respondent acknowledged Duncan’s good
job performance, and that the Respondent offered no satis-
factory explanation for eliminating Duncan’s work hours.
These findings led the judge to conclude that the Respon-
dent had decided to eliminate Duncan’s work hours and
accomplished this goal by hiring others to work in his
stead. We agree. Accordingly, we adopt the judge’s con-
clusion that the elimination of Duncan’s work hours was
discriminatorily motivated in violation of Section 8(a)(3).9
2. In December 1997, employees represented by the
Charging Party engaged in a 2-day strike. Employee Olga
Mascary testified that, during the strike, striking employee
Cherry commented that if Mascary went to work during
the strike, Cherry would “get [striking employee] Lucretia
Elibox-Jupierre on her tail.” Employee Heather Town-
send testified that Cherry told her, “[S]he’s [Cherry’s]
going to make sure that [Townsend] don’t come to work
[during the strike].” The Respondent discharged Cherry
shortly after the strike ended for threatening employees
about coming to work during the strike. The judge found
the statements attributed to Cherry too ambiguous to be
considered threats of bodily harm.

8 Our colleague asserts that the Respondent offered Duncan a full-
time job. The only “job” the Respondent offered Duncan of which we
are aware was the “weekends’ and holidays’” offer. This can hardly be
called a good-faith offer of a full-time position. Duncan testified that he
had never heard of such a schedule, and the pay was $4 an hour less than
what he had been receiving from the Respondent. Duncan, reasonably in
our estimation, testified that he did not consider the offer serious and
rejected it.
9 The dissent argues that the Respondent satisfied its Wright Line bur-
den by showing that “the lawful hiring of others was the event that re-
sulted in the reduction of hours for Duncan.” We disagree. “Under
Wright Line, an employer cannot carry its burden of persuasion by
merely showing that it had a legitimate reason” for taking the action in
question; rather, it “must show by a preponderance of the evidence that
the action would have taken place even without the protected conduct.”
Hicks Oils & Hicksgas, 293 NLRB 84, 85 (1989), enfd. 942 F.2d 1140
(7th Cir. 1991). For the reasons set forth above, we find that the Re-
spondent has failed to show that it would have eliminated Duncan’s
hours in the absence of his union activity.
At issue is whether the statements attributed to Cherry
were threats of bodily harm, which would constitute seri-
ous misconduct justifying the Respondent’s refusal to
reinstate her under the standard set forth in Clear Pine
Mouldings, 268 NLRB 1044 (1984), enfd. mem. 765 F.2d
148 (9th Cir. 1985), cert. denied 474 U.S. 1105 (1986). In
applying Clear Pine, the Board has drawn a distinction
between statements made by strikers that can reasonably
be construed as threats, see, e.g., Chesapeake Plywood,
294 NLRB 201, 219 (1989) (striker, among other threats,
shouted to other strikers to “drag the son-of-a-bitch out of
his pick-up truck” and “I’ll stump his godamned [sic]
ass”), and statements that are too vague to constitute a
threat. A comparison of Georgia Kraft Co., 275 NLRB
636, 636–637 (1985), and Wayne Stead Cadillac, 303
NLRB 432, 436 (1991), illustrates how the Board has
drawn the line between threats and ambiguous statements.
In Georgia Kraft, supra, strikers went to the home of a
nonstriking employee and told him “we’ll take care of you
[if you return to work].” The Board found the surround-
ing circumstances—the strikers were drunk, cursed in
front of the nonstriker’s pregnant wife and young daugh-
ter, and refused repeated requests to leave—were coercive
and intimidating. Taking into account the context, the
Board found the strikers’ “take care of you” statement was
not ambiguous, but rather a threat of bodily harm.
In Wayne Stead Cadillac, supra, a striker told another
striker’s wife that her husband should reconsider returning
to work because he “could get hurt.” The Board adopted
the judge’s finding that this statement was too ambiguous
to be considered serious misconduct for which the striker
could be discharged. The judge observed that the “take
care of you” remark in Georgia Kraft conveyed that the
speaker would take action against the person addressed
and it was clear from the surrounding circumstances that
the action threatened was to cause injury. In contrast, the
person who “could get hurt” was not the person ad-
dressed. And, as the judge observed, the speaker could
have been referring to the nonstriker’s future relationship
with the speaker and other strikers, if the nonstriker re-
turned to work. Finally, contrary to the facts in Georgia
Kraft, the judge could find nothing in the surrounding
circumstances that made clear the striker intended the
“could get hurt” statement to be a threat to cause bodily
harm.
Other cases illustrate the importance of context in de-
termining whether a statement is a threat of bodily harm
warranting refusal to reinstate a striker. For example, in
Midwest Solvents, Inc., 251 NLRB 1282 (1980), enfd. 696
F.2d 763 (10th Cir. 1982), the Board found that a striker’s
statement to a nonstriking employee to “watch” himself
because “some of the boys might get rowdy” was “noth-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 938
ing more than the type of impulsive, trivial misdeed which
we have found, in the past, to be insufficient to warrant a
denial of reinstatement.”10 Although the Board’s decision
predated Clear Pine, the Tenth Circuit’s enforcement of
the Board’s holding was based on the principle that even-
tually was adopted in Clear Pine. According to the court,
“In the absence of other threatening statements or of some
coercive action, this statement [was] too ambiguous to be
considered a threat.” The court continued, “At best, [the
striker] attempted to dissuade [the non-striking employee]
from continuing to work during the strike. That was his
right, and [the Respondent] cannot refuse to reinstate him
for that reason.” 696 F.2d at 766–767.
Based on the precedent cited above, we find the state-
ments attributed to Cherry were too ambiguous to be con-
sidered threats. Cherry’s statements were, no doubt, at-
tempts to dissuade Mascary and Townsend from continu-
ing to work during the strike. Neither statement, however,
was, objectively speaking, an unambiguous threat to cause
bodily harm. Nor do we believe that the surrounding cir-
cumstances—the strike was not marred by any instances
of violence—supply the context in which to find Cherry
intended her statements to convey a threat of bodily
harm.11
In sum, we agree with the judge that the statements
were not sufficiently unambiguous to be considered
threats of bodily harm. Thus, we find that Cherry’s con-
duct would not, under the circumstances existing, rea-
sonably tend to coerce or intimidate employees in the ex-
ercise of their Section 7 rights. Clear Pine, 268 NLRB at
1046. Therefore, the Respondent violated Section 8(a)(3)
and (1) when it discharged her.

10 See also Calliope Designs, 297 NLRB 510, 521 (1989) (striker’s
statement to nonstriker that he would be sorry if he did not join the strike
was common banter with no violent connotation), and Hotel Roanoke,
293 NLRB 182, 210–211 (1989) (striker Bonnie Finney’s statement,
“I’ll beat your ass,” absent surrounding circumstances suggesting the
words should be taken seriously, does not warrant refusal to reinstate
Finney; by contrast, striker Ralph Hayes’ statement that he “would kill”
an employee if the employee reported Hayes, given Hayes’ unauthorized
entry on employer property, was a serious threat that warranted refusal to
reinstate Hayes).
11 Our colleague, practicing a form of guilt by association, finds it
likely employees would have believed Cherry was making a threat be-
cause Lucretia Elibox-Jupierre, another striker, threatened to beat up
employees if they went to work during the strike. Absent surrounding
circumstances making it likely that Cherry’s, at best, ambiguous state-
ments were intended to be threats, we cannot agree that Cherry’s state-
ments should be interpreted in light of Elibox-Jupierre’s conduct. There
is no evidence suggesting a conspiracy between Cherry and Elibox-
Jupierre to engage in threatening or intimidating behavior.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Briar Crest Nursing Home, Ossining, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally and without bargaining with 1199 Na-
tional Health & Human Service Employees Union chang-
ing the work schedules of its employees.
(b) Eliminating work hours of employees because of
their support for the Union.
(c) Discharging economic strikers because of a mis-
taken belief that they have engaged in strike misconduct.
(d) Issuing disciplinary warnings to employees because
of their protected concerted activity.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Patrick Duncan and Tessie Cherry full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(b) Make Patrick Duncan and Tessie Cherry whole for
any loss of earnings and other benefits suffered as a result
of the discrimination against them, in the manner set forth
in the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to unlawful actions against
Patrick Duncan, Terry Ransom, and Tessie Cherry, and
within 3 days thereafter notify them in writing that this
has been done and that such actions will not be used
against them in any way.
(d) Rescind the unilateral change in work schedules of
the employees in the activities department.
(e) On request, bargain with the Union regarding any
changes in wages, hours, or other terms and conditions of
employment in the following unit:

All full-time and regular part-time non-profess-
ional employees, inclusive of employees classified as
certified nursing attendants, feeders, dietary aids,
housekeepers, activities aides, office clerical, clinical
records clerk, receptionists, assistant bookkeepers, li-
censed practical nurses, maids, laundresses, mainte-
nance workers and porters, employed by the Em-
ployer at its facility located at 31 Overton Road, Os-
sining, New York, excluding all other employees, in-
cluding professional employees in Voting Group A,
BRIAR CREST NURSING HOME 939
as well as guards, confidential employees, managerial
employees and supervisors as defined in the Act.

(f) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its Ossining, New York facility copies of the attached
notice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, 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 Re-
spondent at any time since January 1, 1997.
(h) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.

MEMBER HURTGEN, dissenting in part.
Although I agree with my colleagues in other respects, I
would reverse the administrative law judge and dismiss
allegations that the Respondent violated Section 8(a)(3)
and (1) of the Act by reducing employee Patrick Duncan’s
hours of work and by discharging employee Tessie
Cherry. I conclude, for the reasons stated below, that the
General Counsel has failed to establish that Duncan’s loss
of hours was motivated by his union activities. I further
conclude that striker Cherry engaged in misconduct which
warranted her discharge.
1. The evidence establishes that the Respondent hired
Duncan, who had sought a permanent position, as a part-
time licensed practical nurse (LPN) on August 12, 1996.
Duncan was a per diem employee and did not have any
regularly scheduled hours, but often worked 3–4 days per
week on the evening shift that ran from 3:30 until 11:30

12 If this Order is enforced by a judgment of the 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 La-
bor Relations Board.”
p.m. After the organizing campaign began, Duncan
signed a union card and spoke to other employees about
the asserted benefits of union membership. The Respon-
dent has admitted that it knew Duncan was a union adher-
ent. On November 20, 1996, the Union won an election
among the Respondent’s nonprofessional employees. The
Respondent filed election objections, but the Board over-
ruled them and certified the Union on June 12, 1997.1
On January 20, 2 months after the election, the Respon-
dent hired Sabrina Allen as a full-time LPN on the eve-
ning shift. At that time, Duncan normally worked only on
weekend evenings because he was attending school, learn-
ing to become a massage therapist. The Respondent hired
another full-time LPN, Velda King, on January 27. The
record shows that the Respondent posted notices for these
LPN openings in accordance with its usual practice. Al-
though the postings were located near the timeclock that
employees punched each shift, Duncan testified that he
did not see them.
In February, Barbara Rusinko, the Respondent’s direc-
tor of nursing, informed Duncan that there probably
would not be much work for him in light of the recent
hires. Duncan told Rusinko that he wanted to become a
full-time employee instead of a per diem employee.
When Duncan asked why the Respondent had not given
him a full-time slot, Rusinko replied that, “You didn’t
show any interest in it because you didn’t apply.” Duncan
claimed that he had not seen the job posting. Rusinko
stated that she did not have a full-time opening for Dun-
can at that time.2
Thereafter, the Respondent reduced the hours that Dun-
can worked. In April, Duncan interviewed for a full-time
job after a day-shift LPN had resigned in March. Rusinko
offered Duncan a full-time position that included working
every weekend and on holidays. Duncan declined this
offer.
In finding that the Respondent’s reduction of hours of
employee Duncan violated the Act, the judge noted that
Rusinko did not consider Duncan for full-time employ-
ment when it hired both Allen and King. The judge noted,
however, that Duncan did not express any interest in these
jobs, i.e., the jobs filled by Allen and King. Despite Dun-
can’s lack of interest, the judge found that “it would have
been easy enough to ask Duncan [if he wanted the full-
time position] and probably easier than posting a notice
and going through an interview and training process.”
The judge then speculated that the Respondent’s disinter-
est in hiring Duncan as a full-time employee may have
resulted from the Respondent’s concern that if the Board
1 All dates are in 1997, unless otherwise noted.
2 The complaint does not allege an unlawful refusal to hire Duncan
for the full-time positions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 940
sustained its pending election objections and directed a
new election Duncan’s prounion vote could decide the
rerun election. Therefore, based on the Respondent’s
failure to offer Duncan the job, its alleged union animus,
Duncan’s known support of the Union, and Rusinko’s
acknowledgement that Duncan was a good employee, the
judge found that the Respondent unlawfully reduced Dun-
can’s hours.
Contrary to the majority and the judge, I do not find
that the General Counsel has sufficiently demonstrated the
connection between Duncan’s union activities and the
Respondent’s reduction of his hours. I think it clear that
the reduction of hours resulted from the fact that two new
full-time employees had been hired. As noted above, the
complaint does not allege that the Respondent unlawfully
refused to hire Duncan for these positions. Nor would any
such allegation have merit. It is true that Duncan had
sought a full-time position when the Respondent hired
him as a per diem employee in mid-August 1996. Yet,
nearly 6 months passed before openings became available
in January 1997. By this time, Duncan was a student tak-
ing massage therapist classes and may not have been read-
ily available for full-time work. Significantly, Duncan did
not apply for the full-time jobs filled by Allen and King.
My colleagues say that Duncan had shown, at various
times, an interest in full-time employment. Assuming
arguendo that this is so, the fact is that Duncan did not
apply for the full-time jobs posted in January. Although
these postings were located near the timeclock that all
employees punch each shift, Duncan says that he did not
see the postings. Even accepting this dubious claim, the
critical fact is that Duncan did not apply for these posi-
tions. My colleagues seem to quarrel with this critical
fact. But, even Duncan does not say that he applied for
these jobs. Rather, he simply explains that he did not ap-
ply because he did not see the postings. Finally, as noted
above, even the General Counsel does not allege that the
failure to hire Duncan for the two full-time jobs (or any
full-time job) was unlawful.
As discussed, it was the filling of the two full-time jobs
that reduced the need for on-call services at the nursing
home. Concededly, the full-time hires did not entirely
eliminate the need for on-call services. In this regard, my
colleagues note that the on-call services of employee Lyn-
ette Hunter were retained. However, there is no evidence
of unlawful discrimination as between Hunter and Dun-
can. For example, there is no showing that Hunter was a
nonsupporter of the Union.
In light of the above, it is clear that the General Counsel
has not established a prima facie case that the Respondent
reduced Duncan’s hours for discriminatory reasons. The
General Counsel’s theory (that the Respondent did not
want Duncan to be an eligible voter in a possible second
election) is based on pure speculation. Moreover, even if
the General Counsel has shown that a reason for the re-
duction in hours was union activity, the Respondent has
shown that, in any event, the lawful hiring of others was
the event that resulted in the reduction of hours for Dun-
can. In my view, the Respondent did not merely show
that it had a legitimate reason for its reduction of Dun-
can’s hours. Rather, it established that it would have
taken the same action even in the absence of any union
activity.
2. The Respondent had employed Tessie Cherry as a
certified nursing assistant (CNA) since 1986. In early
December, the Union called a 2-day strike among nonpro-
fessional employees in the bargaining unit. Cherry told
fellow employee Olga Mascary that if Mascary went to
work during the strike Cherry would get employee Lu-
cretia Elibox-Jupierre on her “a—” or “tail.” Another
employee, Heather Townsend, testified that Cherry had
told her that she was going to make sure that Townsend
did not go to work during the strike. On December 4,
after the strike ended, the Respondent discharged Elibox-
Jupiere and suspended Cherry for strike misconduct. The
Respondent subsequently advised Cherry, on December
10, that she was terminated because she had threatened
employees about coming to work during the strike.
While noting that the Respondent “had met its burden
of going forward,” the judge concluded that the General
Counsel had successfully established that Cherry did not
engage in any “serious strike misconduct” that would jus-
tify her discharge. In the judge’s view, Mascary and
Townsend did not testify that Cherry had made any “un-
ambiguous threats” to them. The judge found that Cherry,
at most, had threatened Mascary that she would get Eli-
box-Jupierre on her “a—” if Mascary reported for work
during the strike. Based on the view that the statements
attributed to Cherry were too ambiguous to constitute a
threat, the judge concluded that Cherry’s discharge vio-
lated Section 8(a)(3).
It is well established that in cases involving either the
discharge or a refusal to reinstate strikers for having en-
gaged in alleged acts of strike misconduct the General
Counsel’s threshold burden is to establish (1) that a
worker was, in fact, a striker and (2) that his employer
took some action against him for conduct associated with
the strike. Laredo Coca Cola Bottling Co., 258 NLRB
491, 496 (1981). When the General Counsel has estab-
lished this prima facie case of a violation, the burden
shifts to the respondent-employer to show that it had an
honest belief that the employee disciplined was guilty of
strike misconduct that was serious in nature. NLRB v.
Champ Corp., 933 F.2d 688, 700 (9th Cir. 1991), cert.
BRIAR CREST NURSING HOME 941
denied 502 U.S. 957 (1991); Gem Urethane Corp., 284
NLRB 1349, 1352–1353 (1987). If the respondent meets
that burden, the General Counsel must show that the em-
ployee was innocent of the misconduct.
In the instant case, the Respondent has shown an honest
belief that Cherry engaged in misconduct. In response,
the General Counsel does not dispute the fact of miscon-
duct. Rather, the General Counsel argues that the mis-
conduct was not serious enough to warrant discharge. I
disagree with this contention.
In Clear Pine Mouldings, 268 NLRB 1044, 1046
(1984), enfd. mem. 765 F.2d 148 (9th Cir. 1985), cert.
denied 474 U.S. 1105 (1986), the Board adopted an objec-
tive test for determining whether strikers had engaged in
strike misconduct that was sufficient to bar reinstatement.
The Third Circuit Court of Appeals formulated such a test
in NLRB v. W. C. McQuaide, 552 F.2d 519 (3d Cir. 1977),
on remand 237 NLRB 177 (1978), supplemented by 239
NLRB 671 (1978), enfd. 617 F.2d 349 (3d Cir. 1980).
The court in W. C. McQuaide held that an employer need
not “countenance conduct that amounts to intimidation
and threats of bodily harm.”3 In determining whether
verbal threats by strikers directed to fellow employees
justify an employer’s refusal to reinstate, the criterion is
“whether the misconduct is such that, under the circum-
stances existing, it may reasonably tend to coerce or in-
timidate employees in the exercise of rights protected un-
der the Act.”4
Applying the principles of W. C. McQuaide and Clear
Pine to the present case, I conclude, contrary to my col-
leagues and the judge, that Cherry’s remarks to employees
Mascara and Townsend effectively constituted a threat of
violence. As stated, Cherry told employee Mascary that,
if Mascary went to work during the strike, Cherry would
get fellow employee Elibox-Jupierre on her “tail.” This
clearly was no “ambiguous” statement, as the judge de-
scribed it.
Both the judge and the Board find that the Respondent
lawfully discharged Elibox-Jupierre for threatening em-
ployees, including Mascary and Townsend, that she would
beat them up or damage their vehicles if they went to
work during the strike. The evidence shows that Cherry
and Elibox-Jupierre acted in concert when they attempted
to intimidate their fellow employees into supporting the
Union’s strike. Indeed, Mascary and Townsend were
among a number of employees who complained to the
Respondent’s supervisor, Barbara Vetolus, about Cherry’s
and Elibox-Jupierre’s conduct. Given these circum-
stances, I find that Mascary would reasonably believe that

3 522 F.2d at 527.
4 Id. at 528 (quoting Operating Engineers Local 542 v. NLRB, 328
F.2d 850, 852–853 (3d Cir. 1964), cert. denied 379 U.S. 826).
Cherry was capable of influencing Elibox-Jupierre’s con-
duct. Mascary would also understand, from Cherry’s
menacing remarks, that Cherry was making a threat, like
those which Elibox-Jupierre, herself, had made directly,
that the latter would inflict on her either personal injury or
property damage. Further, based on the evidence of Eli-
box-Jupierre’s direct threats and her connection with
Cherry as the employee leaders of the strike movement, I
find that Cherry’s statement (that she was going to make
sure that Townsend did not report for work during the
strike) constitutes another threat of unspecified violence
that was designed to interfere with Townsend’s Section 7
right to refrain from union activity.
My colleagues argue that Cherry’s remarks were not
threats of physical harm. The argument is plainly without
merit. Employer Elibox-Jupierre had threatened to beat
up employees who worked during the strike. Cherry told
Mascara that Elibox-Jupierre would be on her “a—” or
“tail” if Mascara worked during the strike. In these cir-
cumstances, Cherry was telling Mascara that going to
work would result in physical harm from Elibox-Jupierre.
In addition, the remark to Townsend must be viewed in
the same context.
Contrary to the majority, I am not suggesting a “con-
spiracy” between Elibox-Jupierre and Cherry, or a “guilty
association,” I am simply placing Cherry’s remarks in the
context of what Elibox-Jupierre had said to others.
Thus, based on Cherry’s threats to Mascary and Town-
send, I find that the Respondent has established that
Cherry, like her cohort, Elibox-Jupierre, engaged in strike
misconduct that was sufficient for the Respondent to dis-
charge her following the strike. In deciding discrimination
cases, the Board may not substitute its business judgment
for an employer’s. The Respondent in this case carefully
reviewed Cherry’s conduct during her suspension and
legitimately concluded that she had made serious threats
that precluded her reinstatement.5 Accordingly, I would
also dismiss this allegation of the complaint.

5 Contrary to the judge, I find that the present case is distinguishable
from Wayne Stead Cadillac, 303 NLRB 432, 435–436 (1991). In that
case, employee Jerry Schrader said that he was “afraid that [another]
employee could get hurt” if he crossed the picket line. Schrader did not
say that he would inflict or cause the harm. Here, by contrast, Cherry
made two threats of unspecified harm to employees Mascary and Town-
send. This case is more like Georgia Kraft Co., 275 NLRB 636 (1987),
supplemented by 288 NLRB 29 (1988), in which the Board found that
the employees’ remarks that they would “take care of” a nonstriker if he
returned to work constituted serious strike misconduct that warranted the
strikers’ discharge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 942
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT unilaterally and without bargaining
with 1199 National Health & Human Service Employees
Union change your work schedules.
WE WILL NOT eliminate your work hours because of
your support for the Union.
WE WILL NOT discharge economic strikers because of
a mistaken belief that they have engaged in strike miscon-
duct.
WE WILL NOT issue disciplinary warnings to you be-
cause of your protected concerted activity.
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.
WE WILL, within 14 days from the date of the Board’s
Order, offer Patrick Duncan and Tessie Cherry full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges pre-
viously enjoyed.
WE WILL make Patrick Duncan and Tessie Cherry
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful actions against Patrick Duncan, Terry Ransom, and
Tessie Cherry, and WE WILL, within 3 days thereafter,
notify them in writing that this has been done and that
such actions will not be used against them in any way.
WE WILL rescind the unilateral change in work sched-
ules of the employees in the activities department.
WE WILL, on request, bargain with the Union regard-
ing any changes in wages, hours, or other terms and con-
ditions of employment in the following unit:
All full-time and regular part-time non-profes-
sional employees, inclusive of employees classified
as certified nursing attendants, feeders, dietary aids,
housekeepers, activities aides, office clerical, clinical
records clerk, receptionists, assistant bookkeepers, li-
censed practical nurses, maids, laundresses, mainte-
nance workers and porters, employed by us at our fa-
cility located at 31 Overton Road, Ossining, New
York, excluding all other employees, including pro-
fessional employees in Voting Group A, as well as
guards, confidential employees, managerial employ-
ees and supervisors as defined in the Act.

BRIAR CREST NURSING HOME

Karen Newman, Esq. and Joshua Zuckerberg, Esq., for the Gen-
eral Counsel.
James Dean, Esq., for the Respondent.
Sally Otos, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was tried in New York, New York, on May 18–22, 1998.
The charge and amended charge in Case 2–CA–30131 were filed
on February 20 and March 13, 1997. The charge in Case 2–CA–
30283 was filed on April 8, 1997. The charge and amended
charges in Case 2–CA–30258 were filed on April 1 and 24 and
July 2, 1997. The charge in Case 2–CA–30993 was filed on
December 4, 1997. And the charge in Case 2–CA–31167 was
filed on January 5, 1998. A complaint in Case 2–CA–30131 was
issued on August 15, 1997, and a consolidated complaint in all
of the above cases was issued on February 10, 1998. In sub-
stance the allegations as amended at the hearing are as follows:
1. That pursuant to an election held on November 20, 1996,
the Union was certified as the exclusive collective-bargaining
representative on June 12, 1997.
2. That on November 1996, the Respondent, by its supervi-
sors, Ellen Enriquez and Barbara Rusinko, directed employees
not to talk about the Union.
3. That in mid-November 1996, Barbara Rusinko, the Re-
spondent’s director of nursing, interrogated employees regard-
ing their union activities and sympathies.
4. That in February 1997, Respondent for discriminatory rea-
sons, eliminated the scheduled work hours of Patrick Duncan.
5. That on December 4 and 8, 1997, the Respondent for dis-
criminatory reasons, discharged Lucretia Elibox-Jupierre and
Tessie Cherry.
6. That on December 5, 1997, the Respondent for discrimina-
tory reasons, issued a disciplinary warning to Terry Ransom.
7. That in or around January 1997, the Respondent unilater-
ally and without bargaining, changed the work schedules for
employees in the activities department.
At the opening of the hearing the General Counsel withdrew
paragraph 10 of the complaint regarding Barbara Vassallo. The
grounds were this individual’s refusal to cooperate.
BRIAR CREST NURSING HOME 943
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company admits and I find that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union commenced an organizational campaign amongst
the professional and nonprofessional employees of the Respon-
dent in August 1996. Pursuant to petitions filed on September
24, 1996, elections were held on November 20, 1996. The pro-
fessional employees voted against representation and the non-
professionals voted in favor of the Union. The vote in the non-
professional unit was 51 in favor of representation, 42 against,
and 4 challenged ballots. The Employer thereupon filed objec-
tions to the election that was won by the Union but these were
overruled by the Regional Director in April 1997. On appeal, the
Board upheld the Regional Director’s decision and on June 12,
1997, the Union was certified as the exclusive bargaining repre-
sentative for the nonprofessional employees. Bargaining started
in September 1997.
During the course of bargaining, the Union called a 2-day
strike on December 2 and 3, 1997. As of the time of the hearing
herein, the parties had yet to reach an agreement. There is, how-
ever, no allegation in this case that the Company has failed to
bargain in good faith.
B. Unilateral Change
In January 1997, the Respondent notified employees in the ac-
tivities department that there would be changes in their work
schedules. They were told that they would have to work every
other weekend, as well as one evening a week from 1 to 8 p.m.
Previously, these employees worked from 9 a.m. to 4:30 p.m.
and were assigned to work one evening per month. The change
required employees to work one evening per week and one extra
weekend per month.
The announcement of the change and its implementation were
made without notification or bargaining with the Union. This is
not surprising inasmuch as the Employer was, at the time, chal-
lenging the Union’s victory by way of objections. Ultimately,
however, the Board rejected the Employer’s objections and the
Union was certified.
The Board’s position in this type of situation is quite clear and
is set forth in Casa San Miguel, 320 NLRB 534, 598 (1995). As
stated by the administrative law judge in an opinion adopted by
the Board:

It is settled law that when, as here, a majority of the vot-
ing unit employees cast their ballots in favor of union rep-
resentation that a unilateral change in the employees’ terms
and conditions of employment made pending determination
of the employer’s objections to the election have the effect
of bypassing and undermining the union’s status as the em-
ployees’ bargaining representative, in the event it is ulti-
mately certified. Thus, the employer acts at its peril in
making unilateral changes during this period and, if the un-
ion is ultimately certified, as it was in this case, the em-
ployer’s unilateral changes violate Section 8(a)(5) and (1)
of the Act, in the absence of a showing of compelling eco-
nomic considerations. Mike O’Connor Chevrolet, 209
NLRB 701 (1974).

As the changes in work schedules involves a material change
in the employees’ terms and conditions of employment1 and as
the Respondent has not shown compelling economic considera-
tions to justify making this change without bargaining, I con-
clude that the Employer has violated Section 8(a)(5) in this re-
gard.
C. Preelection Conduct
Although there was a settlement agreement executed by the
Respondent covering certain alleged preelection conduct, the
General Counsel put evidence of such conduct into this record
for the purpose of establishing the Respondent’s antiunion ani-
mus. Without detailing all this evidence, which was not contro-
verted by the Respondent, suffice it say that the record shows,
inter alia, that during the period of October and November 1996,
the Respondent, by its owner, Samuel Klein (a) threatened to
close the facility if the Union was selected as the bargaining
representative; (b) threatened employees with discharge in they
engaged in leafleting or campaigning on company property; and
(c) created the impression that it was surveilling its employees’
union activities.
D. Patrick Duncan
The complaint alleges that the Respondent violated Section
8(a)(3) of the Act by eliminating, in February 1997, the sched-
uled work hours for Duncan. Additionally, the complaint alleges
that certain statements were made to Duncan by his supervisors
in November 1996, which constituted violations of Section
8(a)(1) of the Act.
Patrick Duncan was hired on August 12, 1996, as a licensed
practical nurse (LPN). Although seeking a permanent position,
he was hired as a part-time per diem employee. In general, al-
though he did not have any regularly scheduled hours, he tended
to work 3 to 4 days per week during the evening shift of 3:30 to
11:30 p.m.
Prior to his hiring, Duncan had been employed elsewhere
where he had been a shop steward for Local 1199 for 4–1/2
years. (Whether this was known by agents of the Respondent is
not known by me.) In any event, Duncan testified that he signed
an authorization card for the Union and was active in talking to
other employees about the benefits of union membership. The
Company concedes that it was aware that Duncan was a sup-
porter of the Union although the evidence does not indicate that

1 Carbonex Coal Co., 262 NLRB 1306, 1313 (1982) (change in shift
schedule affecting three employees); Mitchellace, Inc., 321 NLRB 191,
195 (1996) (change in hours held to be nontrivial change in shift starting
times); Blue Circle Cement Co., 319 NLRB 954 (1995) (change in start
times); and Carpenters Local 1031, 321 NLRB 30 (1996) (change re-
quiring employee to work one-half hour more per day).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 944
he was active to the extent of employees Terry Ransom, Lucretia
Elibox-Jupierre, and Tessie Cherry.
Duncan testified that in October 1996 he had a conversation
with Sam Klein about a loan during which Klein offered to bet
him $1 that the Union would not get into the shop.
Duncan also testified that in November 1996 he was told by
Supervisor Wendy Charo that although she did not mind if he
spoke to others about the Union on his time she did not want him
talking about the Union on companytime. He states that he re-
sponded that this was on his time, but that she said that the other
workers were on duty and had better things to do. Later in the
day, Supervisor Ellen Enriques and Barbara Rusinko, the direc-
tor of nursing, told him that they were aware of the incident with
Charo and did not want this to happen again. No further action
was taken on this matter and Duncan did not receive any sort of
discipline. Nor was he threatened with discipline for any future
infraction. Additionally, the General Counsel does not allege in
this case that the Employer has maintained or enforced any kind
of invalid no-solicitation rule.
According to Duncan, sometime in early to mid-November
1996, Supervisor Pupino told him that she was seeking to have
everyone vote. Duncan states that during this conversation Pu-
pino said that she could not ask him how he was going to vote,
but she put out her hands in a manner which suggested that she
was asking a question. Duncan said that she could not ask him
and he was not going to tell.
Duncan testified that in mid-November 1996, shortly before
the election, he had a conversation with Rusinko in which she
asked him what he thought were the chances of keeping the Un-
ion out. Duncan states that he responded that he did not think
that the Company had a snowball’s chance in hell. Duncan fur-
ther testified that Rusinko asked if there was anything that would
persuade Duncan to vote against the Union. (It is this incident
that the General Counsels assert, in their brief, as constituting
unlawful interrogation.)
In any event, the election was held on November 20, 1996,
and the Union obtained a majority of the votes in the nonprofes-
sional unit which included Duncan’s classification. After that, a
period of quiescence set in, during which time the Employer’s
objections to the election were pending before the Board.
The evidence shows that on or about January 20, 1997, the
Company hired Sabrina Allen as a full-time LPN on the shift
that Duncan normally worked. This position was posted by the
Respondent on January 16, 1997, although Duncan and several
other employees testified that they did not see the posting. Dun-
can testified that in early February 1997, Rusinko told him that
his position was filled and there probably would not be much
worktime available for him. Duncan states that he told Rusinko
that he had made it clear that he wanted to go from being a per
diem employee to a full-time employee. The consequence of
hiring Allen was that the number of hours available to Duncan
was drastically reduced.2

2 The record also shows that another person, Velda King, was hired as
a full-time LPN on January 27, 1997.
Subsequently, in April 1997, Duncan interviewed with Rus-
inko about another LPN position3 and was offered one which
involved working every weekend and on holidays. Duncan testi-
fied that she told him that she had filled a full-time position that
morning and was offering this as an alternative. Duncan refused
the offer, testifying that in his opinion, this was not a serious
offer.
The question I had was why Rusinko did not at least offer the
full-time job to Duncan instead of going to the trouble of inter-
viewing and hiring outsiders such as Sabrina Allen and Velda
King? After all, Rusinko conceded that that she considered
Duncan to be a good worker and that there was nothing in his
work or personality to which she objected.
It is true that in January 1997 Duncan was attending school to
learn to be a massage therapist and generally worked only on
weekends during the evening. Nevertheless, he had earlier ex-
pressed his annoyance at being kept on as a per diem, as opposed
to a full-time employee. (See R. Exh. 4 which contains Duncan’s
somewhat sarcastic response to his evaluation which, in overall
terms, was positive.) Had he been offered a full-time position,
Duncan might have reevaluated his priorities.
The point is, however, that Rusinko, simply did not consider
Duncan for the full-time positions that were offered in January
1997 to either Sabrina Allen or Velda King, ostensibly because
after posting a notice, Duncan did not express any interest in the
positions. But it would have been easy enough to ask Duncan
and probably easier than posting a notice and going through an
interview and training process. Had Rusinko maintained any
qualms about Duncan’s job performance or about his somewhat
sarcastic attitude, this might have been a reason. But, according
to Rusinko, neither was the case.
At the time of these events, the election had been held but the
Employer had filed objections which were pending before the
Regional Director. The election amongst the nonprofessional
employees was relatively close and a swing of five votes would
change the outcome. Assuming as I do that the Employer’s
objections were filed in good faith and not simply to delay a
certification, the Employer, as of January and early February
1997, must have entertained some hope that the election might
be set aside and that another election would be held in the future.
The Employer would then have at least a reasonable chance of
winning a rerun election if there was turnover among the em-
ployees in the unit. Moreover, its chances would be even better
if that turnover came about with the loss of people such as Dun-
can who had openly expressed their prounion position.
The above is the scenario that I believe motivated the em-
ployer in its decision not to offer Duncan a full-time position and
to essentially eliminate his hours by hiring someone else. In this
regard, I note the evidence showing (a) antiunion statements
made by Klein before the election; (b) the Employer’s knowl-
edge of Duncan’s support for the Union; and (c) Rusinko’s ac-
knowledgement of his good job performance. What is more, I
really do not understand why it was so difficult to simply ask
Duncan if he was interested in the full-time jobs that were filled
by others in late January 1997. In short, I don’t believe that the
3 The record shows that Elaine Barkley, a day-shift LPN, resigned in
March 1997.
BRIAR CREST NURSING HOME 945
decision to not offer him either job was because he had not ex-
pressed any interest in them. Therefore, and in accordance with
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), I find that the Em-
ployer violated Section 8(a)(1) and (3) of the Act by reducing his
hours of work, which was a consequence of hiring others to full-
time LPN positions in his stead.
Notwithstanding the above, I do not conclude that the alleged
statements by Rusinko to Duncan in November 1996, amounted
to illegal coercive interrogation inasmuch as Duncan was an
open union supporter and no coercive remarks accompanied the
interrogation. FMC Corp., 290 NLRB 483, 485 (1998); Sunny-
vale Medical Clinic, 277 NLRB 1217 (1985); and Associacion
Hospital del Maestro, 267 NLRB 237, 238 (1983). Similarly, I
do not think that the “directive” to Duncan that he should not
solicit for the Union on the worktime of other employees consti-
tutes a violation of the Act. Associacion Hospital del Maestro,
supra; Our Way Inc., 268 NLRB 394 (1983) (a prohibition on
solicitations in the work place on “worktime” as opposed to
work hours would be presumptively legal).
E. Tessie Cherry, Lucretia Elibox-Jupierre, and
Terry Ransom
Tessie Cherry has been employed as a certified nursing assis-
tant (CNA) since 1986. Lucretia Jupierre was employed as a
CNA for 4 years. Terry Ransom began her employment with the
Respondent as a CNA in September 1973.
The Respondent acknowledges that it was aware that all three
of these employees were very active union supporters.
The events that led to the discharges of Cherry and Jupierre
and the discipline of Ransom all relate to a 2-day strike that took
place on December 2 and 3, 1997. In accordance with Section
8(g) of the Act, the Union had given at least 10 days notice of
this strike and the notice was delivered by Jupierre.
Barbara Vetolus, then the day supervisor, testified that before
the strike, Alethea Smith, a CNA, told her that a few of the em-
ployees had been threatened with bodily harm and threatened
with fines and loss of jobs if they came to work during the strike.
Vetolus testified that Smith attributed these threats to Cherry and
Jupierre and said that they had been directed to Olga Mascary.
According to Vetolus, she asked Mascary about these threats and
was told that Jupierre and Cherry had said that she would be
beaten up and have her car damaged if she went to work. She
also states that Mascary said that she was told that if she went to
work during the strike she would be fined and lose her job.
Vetolus testified that on the day before the strike she received
a phone call from Heather Townsend who stated that although
she was afraid to come in she was nevertheless going to report to
work on December 2. According to Vetolus, on December 2,
she got a call from Townsend from the police station who, while
crying, gave a somewhat unclear account concerning Jupierre
and Cherry. Vetolus states that later in the day, and pursuant to
direction of Rusinko, she interviewed Townsend and after writ-
ing down what she said, asked Townsend to sign a report of
what had happened. This report was signed by Townsend and
offered into evidence as Respondent’s Exhibit 1.
On December 2–4, 1996, Vetolus interviewed other nonstrik-
ing employees and obtained signed statements from Olga Mas-
cary (R. Exh. 2), Alethea Smith (R. Exh. 3), Miroslawa Uram
(R. Exh. 4), and Hyacinth Richards (R. Exh. 5). To varying
degrees, these employees, in their statements and in their subse-
quent testimony, asserted that they had received or witnessed
threats by Jupierre. These consisted of threats to burn or damage
cars, threats to beat up employees, threats that employees would
be fined if they went to work, and threats that employees would
lose their jobs if they did not honor the strike.
On the other hand, although employees Townsend and Mas-
cary reported statements made by Tessie Cherry which they
considered to be threatening, their testimony indicates that even
if made, the statements, by an objective standard, would be too
ambiguous to amount to threats sufficient to warrant a discharge.
Thus, in the case of Olga Mascary, she essentially testified that
Cherry told her that if she went to work during the strike she
would get Jupierre on her ass or tail. And in the case of Heather
Townsend, she related that, at most, Tessie Cherry told her that
she was going to make sure that she did not go to work during
the strike. Also, although the statement signed by Alethea Smith
asserts that Jupierre and Cherry threatened to beat up nonstrik-
ers, she did not testify in this case.
Based on the statements gathered by Vetolus, John Gold-
smith, the Respondent’s administrator, decided on December 4,
1996, to discharge Jupierre immediately and to suspend Cherry
pending further investigation. Goldsmith states that he also
spoke directly to Heather Townsend and Miroslawa Uram.
On December 4, 1996, after the employees returned to work
from the strike, Jupierre was directed to go to Goldsmith’s of-
fice. She went, accompanied by Terry Ransom and met with
Rusinko and Goldsmith. At this meeting, Goldsmith told her
that she was fired and when Jupierre asked why, she was told
that it was because she had threatened workers and had threat-
ened to harm a car. At that point according to Jupierre, she
asked whom she had threatened and asserted that she had the
right to know. She was told that they didn’t have to tell her who
reported the threats. When Jupierre insisted on receiving her
final paycheck before leaving the premises, the police were
called and she was escorted from the office. According to Jupi-
erre’s own testimony, when told that she was being discharged
because of threats made to other employees, she did not deny
making such threats.
During this same meeting, after Jupierre was discharged, Ran-
som left the office and, while walking down the corridor, said on
one or more occasions, “I can’t believe that they just fired Lu-
cretia.” The Respondent asserts that Ransom said this several
times as she walked down the hall and made the statement in a
loud voice. Ransom, on the other hand, testified that she made
the statement quietly. I suspect that each side is exaggerating
the loudness or softness of her voice, but in any event, the evi-
dence indicates that at the time, patients were having lunch be-
hind closed doors and there is no credible evidence to show that
the statements made by Ransom either interfered with patients or
employees. On December 5, 1996, Rusinko sent the following
memorandum to Ransom:

On Thursday, December 4, 1997, you accompanied a
fellow employee to a meeting with administration. During
the meeting you hastily left and as you were heading for the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 946
doorway leading to the lower level, you announced loudly,
to the 2West staff, the nature of the meeting. You told the
staff, “Lucretia was fired because they said she harassed
someone.” This behavior is unacceptable and will not be
tolerated. It is disruptive to the staff and residents.
Therefore this is a written warning advising you that if
another incident of this nature occurs, you will be termi-
nated. Since you are a valued employee, I am confident
that this will not occur again.

Tessie Cherry testified that on December 4, 1996, she re-
ceived a call at home from Goldsmith who told her that she was
being suspended for threatening a coworker. She testified that
she asked how he could suspend her without asking her any
questions.
On December 10, 1996, Goldsmith sent the following letter to
Cherry:

Upon further investigation, we have concluded that you
did in fact threaten other employees about coming to work
during the strike.
This behavior cannot be tolerated; so we are terminating
your employment as of this letter.
F. Discussion
Employees who engage in an economic strike are engaged in
protected concerted activity and may not be discharged for that
activity. Thus, strikers who unconditionally offer to return to
work are entitled to their former jobs unless the employer has
“legitimate and substantial business justifications” for refusing.
NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967).
In situations where strikers are accused of misconduct related
to the strike, the employer may refuse to recall strikers, but it has
the burden of going forward to show that it had a reasonable
good-faith belief that the conduct has been committed. If the
employer meets that burden, then the General Counsel has the
burden of proving that the striker or strikers did not actually
engage in the conduct alleged. In NLRB v Burnup & Sims, Inc.,
379 U.S. 21 (1964), the Court stated:

We find it unnecessary to reach the questions raised un-
der [Section] 8(a)(3) for we are of the view that in the con-
text of this record [Section] 8(a)(1) was plainly violated,
whatever the employer’s motive. Section 7 grants employ-
ees, inter alia, “the right to self-organization, to form, join
or assist labor organizations.” Defeat of those rights by
employer action does not necessarily depend on the exis-
tence of an anti-union bias. Over and over again the Board
has ruled that [Section] 8(a)(1) is violated if an employee is
discharge for misconduct arising out of protected activity,
despite the employer’s good faith, when it is shown that the
misconduct never occurred.
. . . .
In sum [Section] 8(a)(1) is violated if it is shown that
the discharged employee was at the time engaged in pro-
tected activity, that the employer knew it was such, that the
basis of the discharge was an alleged act of misconduct in
the course of that activity, and that the employee was not, in
fact, guilty of that misconduct.

Before 1984, the Board’s position was that verbal statements,
as opposed to physical acts of intimidation and coercion, would
generally not be sufficient acts of misconduct to warrant the
employer’s refusal to reinstate a striker. The Board changed that
position in Clear Pine Mouldings, 268 NLRB 1044 (1984), affd.
765 F.2d 148 (9th Cir. 1985), cert. denied 474 U.S. 1105 (1986).
The Board stated:

In the past, the Board has held that verbal threats by strikers,
“not accompanied by any physical acts or gestures that would
provide added emphasis or meaning to [the] words,” do not
constitute serious strike misconduct warranting an employer’s
refusal to reinstate the strikers. On the other hand, the Board
has held that verbal threats which are accompanied by physical
movements or contracts such as hitting cars, do constitute seri-
ous strike misconduct. The Board summarized its standard . . .
in Coronet Casuals [207 NLRB 304 (1973)], where it stated
that “absent violence . . . a picket is not disqualified from rein-
statement despite . . . making abusive threats against nonstrik-
ers.
. . . .
We disagree with this standard because actions such as
the making of abusive threats against nonstriking employ-
ees equate to “restraint and coercion” prohibited elsewhere
in the Act and are not privileged by Section 8(c ) of the
Act.[4] Although we agree that the presence of physical
gestures accompanying a verbal threat may increase the
gravity of verbal conduct, we reject the per se rule that
words alone can never warrant a denial of reinstatement in
the absence of physical acts. Rather, we agree with the . . .
First Circuit that “[a] serious threat may draw its credibility
from the surrounding circumstances and not from the
physical gestures of the speaker.” We also agree with the
. . . Third Circuit that an employer need not “countenance
conduct that amounts to intimidation and threats of bodily
harm.”
. . . .
In deciding whether reinstatement should be ordered af-
ter an unfair labor practice strike, the Board has in the past
balanced the severity of the employer’s unfair labor prac-
tices that provoked the strike against the gravity of the
striker’s misconduct. We do not agree with this test. There
is nothing in the statute to support the notion that striking
employees are free to engage in or escalate violence or mis-
conduct in proportion to their individual estimates of the
degree of seriousness of an employer’s unfair labor prac-
tices . . . . In the case of picket line and strike misconduct,
we will do this by denying reinstatement and backpay to
employees who exceed the bounds of peaceful and rea-
soned conduct. [268 NLRB at 1045–1047.]

Cases subsequent to Clear Pine Mouldings, have elucidated
some of the types of behavior that would justify the discharge or
failure to reinstate strikers and the apportionment of the respec-
tive burdens placed on the General Counsel and the Respondent.
In Gem Urethane Corp., 284 NLRB 1349, 1352 (1987), the
Board, noted that: “At all times, the burden of providing dis-

4 Presumably, the Board is referring to Sec. 8(b)(1)(A) of the Act.
BRIAR CREST NURSING HOME 947
crimination is that of the General Counsel.” In this respect, the
Board overruled the administrative law judge and said: “We find
the Respondent acted in good faith and accordingly, that the
judge improperly allocated the burden of proof by requiring the
Respondent to prove the alleged strike misconduct on which it
based its refusal to reinstate the 12 strikers.” In applying Clear
Pine Mouldings, the Board held that threats of assault would be
sufficient to justify the refusal to reinstate strikers.
In Axelson, Inc., 285 NLRB 862, 864 (1987), the Board re-
versed the administrative law judge’s conclusions regarding the
respondent’s refusal to reinstate certain strikers because of al-
leged strike misconduct. One striker, Williams, allegedly bran-
dished a revolver and threatened to kill two striker replacements.
The judge found that the Respondent had not proven that Q. Ray
Williams was the person who did this and therefore had not met
the appropriate burden of proof. The Board disagreed with the
judge’s allocation of burdens and stated:

We emphasize that Rubin Bros. [Footwear, 99 NLRB
610 (1952)], indicates that the respondent’ s honest belief
burden does not extend to proving that the strikers did in
fact engage in the misconduct. Once an honest belief is es-
tablished, it is for the General Counsel to demonstrate the
strikers’ innocence and thus establish that the respondent’s
conduct is illegal. To the extent that there is a lack of evi-
dence on this issue, it must be resolved in favor of the em-
ployer, because the General Counsel has the burden of
proof on this question. . . . . We also note that the Rubin
Bros. procedure has been implicitly endorsed by the Su-
preme Court. See NLRB v. Burnup & Sims, 379 U.S. 21 at
fn. 3.[5]

As a general matter, the cases since Clear Pine Mouldings,
supra, to the extent that they deal with a striker’s actual state-
ments have fallen into two categories. On one side are state-
ments which are obscene, scandalous, and tawdry. And on the
other side are statements which could be construed as threats of
bodily injury or property damage.
By and large obscene statements, in the absence of actual
threats or accompanying coercive acts, have been held to be
insufficient to justify a refusal to reinstate. Catalytic, Inc., 275
NLRB 97 (1995) (obscene hang-up phone call to nonstriker’s
wife); Gloversville Embossing Corp., 297 NLRB 182, 194
(1989) (male striker’s flashing of female nonstrikers); Calliope
Designs, 297 NLRB 510 (1989) (obscene statements to non-
striker in front of her daughter); and Nickel Molding, 317 NLRB
826 (1995), enfd. denied sub nom. NMC Finishing v. NLRB, 101
F.3d 528 (8th Cir. 1996) (obscene sign posted at exit of plant
and directed toward one particular nonstriker).6
Where, however, statements made by strikers are reasonably
construed as constituting threats of assault or threats to property,
such statements are sufficient to justify a refusal to reinstate.
Georgia Kraft Co., 275 NLRB 636 (1985); Chesapeake Plywood

5 See also Chesapeake Plywood, 294 NLRB 201, 218, (1989), and
Clougherty Packing Co., 292 NLRB 1139, 1142 (1989).
6 In General Chemical Corp., 290 NLRB 76 (1988), the Board or-
dered reinstatement of a striker who, during a strike, called the em-
ployer’s director of manufacturing a “liar,” “crook,” and a “thief.”
Inc., 294 NLRB 201 (1989); and Axelson, Inc., 285 NLRB 862
(1987). There are cases, however, where a statement was
thought to be too vague to constitute a threat or where the cir-
cumstances were such that a reasonable person could not have
viewed the statement as constituting a threat. For example, in
Wayne Stead Cadillac, 303 NLRB 432, 435 (1991), a striker
who told a nonstriker’s husband that her spouse could get hurt if
he went to work was considered to be too vague to constitute a
threat of bodily harm.
Applying these cases to the present situation, it seems to me
that the Employer has demonstrated that it had a reasonable
basis for its belief that Jupierre and Cherry had engaged in con-
duct which included threats of bodily injury and threats to dam-
age property. In this regard, the Employer’s supervisors, after
being notified by Alethea Smith and Heather Townsend, inter-
viewed a number of employees, some of whom stated and signed
statements to the effect that they had heard such threats by both
individuals. Moreover, the Employer put some of these employ-
ees on the witness stand. The Employer has therefore met its
burden of going forward on the reasonable basis question.
Accordingly, the General Counsel has the burden of proving
either that the alleged conduct did not occur, or if it did occur,
that it was not Jupierre or Cherry who made the statements.
With respect to Jupierre, the credible evidence presented by
the Respondent shows that on several occasions she told em-
ployees that if they went to work during the strike she would
beat them up and that their vehicles would be damaged or
burned. 7 While Jupierre denied making such threats, I do not
believe her. I note that when she was told that she was being
discharged for making threats she did not deny doing so; instead
asking the Company to tell her who reported the threats. As I
conclude that these types of threats are sufficient to deny her
reinstatement when the strike ended, I shall recommend that this
allegation of the complaint be dismissed.
The situation is somewhat different as to Cherry. While I
have concluded that the Employer has met its burden of going
forward, I think that the General Counsel has, in this instance,
successfully met the burden regarding the issue of whether
Cherry actually engaged in serious strike misconduct. In this
regard, the only persons who actually testified about statements
allegedly made by Cherry (Mascary and Townsend), did not
testify that she made any unambiguous threats. The closest thing
to a threat was the statement to Mascary, who testified that
Cherry told her that if she went to work during the strike she
would get Jupierre on her tail. I do not think that this statement
is sufficiently unambiguous to constitute a threat. (The out of
court statement signed by Alethea Smith is hearsay as to the
truth of the matter asserted; namely, that Cherry actually made a
threat of bodily harm. Accordingly, it is my opinion that in the
absence of Smith’s testimony, Cherry’s testimonial denial,
trumps, Smith’s hearsay assertion.)
Turning finally to Terry Ransom, she was not disciplined for
any alleged strike misconduct. Rather, her discipline involved
7 The evidence also shows that she told employees that if they did not
strike they would be fined by the Union and would lose their jobs. It is
not clear from the case law that such statements would or would not
constitute misconduct sufficient to deny her reinstatement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 948
the events surrounding her alleged actions at the meeting where
she was asked by Jupierre to represent her and where Jupierre
was discharged. Clearly, Ransom’s attendance at the meeting
constituted protected concerted activity and was analogous to the
situation where a shop steward is present to represent an em-
ployee who is about to be disciplined or discharged. Further,
statements that she thereafter makes to other employees regard-
ing or informing them of the discharge, would likewise be con-
sidered protected concerted activity. Guardian Industries Corp.,
319 NLRB 542, 549 (1995).
Soon after Jupierre was told that she was being fired, Ransom
left the room and while proceeding down the corridor was heard
to say, “I can’t believe they fired Lucretia.” On its face, the
warning was given to Ransom because she told employees that
the employer had fired Lucretia.
The evidence shows that Ransom made the statement as she
passed by the dining room where patients were having lunch.
The dining room is behind closed doors and there was no evi-
dence that any patients heard what she said or were troubled by
it. There was no indication that Ransom’s remarks had any dis-
ruptive impact of patient care or on the work being done by her
coworkers. The statement was an understandable and spontane-
ous reaction to the discharge of Jupierre and was over in an in-
stant. There is nothing in what Ransom did or said, which I
would consider as constituting conduct which, by its character
would make her concerted activity unprotected. Thus, in Con-
sumers Power Co., 282 NLRB 130, 132 (1986), the Board
stated:

[W]hen an employee is discharged for conduct that is part of
the res gestae of protected activities, the relevant question is
whether the conduct is so egregious as to take it outside the
protection of the Act, or of such character as to render the em-
ployee unfit for [further] service.8

8 See also Postal Service, 250 NLRB 4 (1980), and Postal Service,
252 NLRB 624 (1980). However, contrast those cases with those where
an employee engages in abusive and/or insubordinate conduct while also
engaged in concerted activity. Postal Service, 268 NLRB 274 (1983);
Carolina Freight Carriers Corp., 295 NLRB 1080 fn. 1 (1989); and
Postal Service, 282 NLRB 686, 694–695 (1987).
CONCLUSIONS OF LAW
1. By unilaterally changing the work schedules for certain
employees, without offering to bargain with 1199 National
Health & Human Service Employees Union, the Respondent has
violated Section 8(a)(1) and (5) of the Act.
2. By eliminating hours of work for Patrick Duncan in Febru-
ary 1997, because of his support for the Union, the Respondent
has violated Section 8(a)(1) and (3) of the Act.
3. By discharging Tessie Cherry, an economic striker, be-
cause of its mistaken belief that she engaged in strike miscon-
duct, the Respondent has violated Section 8(a)(1) and (3) of the
Act.
4. By issuing a disciplinary warning to Terry Ransom be-
cause of her protected concerted activity, the Respondent has
violated Section 8(a)(1) and (3) of the Act.
5. The Respondent has not violated the Act in any other man-
ner encompassed by the complaint.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged or re-
duced the hours of work of employees Tessie Cherry and Patrick
Duncan, it must offer them reinstatement and make them whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from the effective dates of such actions to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Regarding the unilateral change, it is recommended that the
Respondent rescind this change until such time as it bargains in
good faith about it and either reaches an agreement or reaches an
impasse on the issue.
[Recommended Order omitted from publication.]