Community Action Commission of Fayette County, Inc.

National Labor Relations Board - Board Decisions

Nov 22, 2002

338 N.L.R.B. 664 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 664
Community Action Commission of Fayette County,
Inc. and Ohio Association of Public School Em-
ployees (OAPSE)/AFSCME, Local 4, AFL–CIO,
Petitioner. Case 9–RC–17367
November 22, 2002
DECISION AND DIRECTION OF SECOND
ELECTION
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
The National Labor Relations Board has considered
objections to and determinative challenges in an election
held May 2, 2000, and the hearing officer’s report rec-
ommending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 20 for and 20 against the Petitioner
with 2 determinative challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs and adopts the hearing officer’s find-
ings1 and recommendations2 only to the extent consistent
with this Decision and Direction of Second Election.
Overview
The Employer is a private nonprofit corporation whose
purpose is to aid economically disadvantaged residents
of Fayette County, Ohio, to become self-sufficient
through various programs, including a Head Start Pro-
gram. These programs are operated by the Employer and
are funded by Federal, State, and local funds. The Union
is seeking to represent the Employer’s Head Start Pro-
gram employees.
The hearing officer recommended, inter alia, that the
Employer’s challenge to the ballot of Head Start Program
employee Debra Tyree be overruled, and that her ballot
be opened and counted. The hearing officer also recom-
mended sustaining the Union’s objections alleging that
the Employer (1) threatened employees that they would
lose their jobs if the Union won the election and (2) se-
lectively videotaped employees on days that they were
wearing Union tee shirts at work. The hearing officer
recommended setting aside the election if the revised
tally of ballots showed that the Union had lost.
Members Cowen and Bartlett do not adopt the hearing
officer’s recommendation to overrule the challenge to

1 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
2 In the absence of exceptions, we adopt, pro forma, the hearing offi-
cer’s recommendation that the challenged ballot of Heather Michael be
neither opened nor counted because, at the hearing, the parties stipu-
lated that Michael was not eligible to vote in the election.
Tyree’s ballot. They sustain the challenge and find that
Tyree’s ballot should not be opened. Consequently, the
Petitioner has not received a majority of the valid ballots
cast.
Members Liebman and Cowen sustain the objection
based on the Employer’s threat of job loss. Conse-
quently, they find it unnecessary to pass on the hearing
officer’s recommendation to sustain the objection based
on videotaping. The election is set aside and a second
election is directed.
1. Debra Tyree
The Employer challenged Tyree’s ballot on the
grounds that she had been discharged effective March 31,
2000,3 and was therefore not eligible to vote in the May 2
election. The hearing officer recommended that the Em-
ployer’s challenge to Tyree’s ballot be overruled, on the
grounds that Tyree’s termination was not effective until
May 11, and that she was therefore eligible to vote in the
May 2 election. We disagree. We find that Tyree was
discharged on March 31 and that she was therefore ineli-
gible to vote in the May 2 election.
a. Facts
Tyree was a teacher in the Employer’s Head Start Pro-
gram. She suffered a stroke on December 5, 1999, and
was on leave pursuant to the Family Medical Leave Act
(FMLA) when the Union filed the instant representation
petition on March 17. The Employer’s personnel poli-
cies provide, inter alia, for termination of employment in
the event of a resignation or a discharge due to incompe-
tence and misconduct. There is no express provision for
termination because of inability to return to work upon
expiration of FMLA leave.4
The Employer’s fiscal officer, Jennifer Hollar Young,
notified Tyree by letter on March 15, 2 days before the
representation petition was filed, that her health insur-
ance and life/disability insurance benefits would termi-
nate on March 31, because she had exhausted her 12
weeks of eligibility for receipt of benefits under the
FMLA. The letter also asked Tyree to inform the Em-
ployer if she found out from her physician by March 24
that she would be able to return to work before April 1.
The Employer’s Head Start director, Cathy Jo Eggle-
ton, wrote to Tyree on April 3, advising her that it had
delayed her “release of employment” until March 31, in
3 All dates are 2000 unless otherwise stated.
4 We do not pass on the validity of Tyree’s discharge under these
policies. We say only that there was a discharge on March 31. We
note that we would reach the same result here if we used the April 3
date of the Employer’s termination letter to Tyree as the effective date
of the discharge.
338 NLRB No. 79
COMMUNITY ACTION COMMISSION OF FAYETTE COUNTY 665
the hope that she would have returned to work by then.
The letter went on to say:

Because we have no definite date for your return
and because the role of teacher is critical, we can no
longer hold this position open. Your release from
employment with Head Start is effective March 31,
2000, pending Policy Council approval. You are en-
couraged to reapply as your health improves and va-
cancies at Head Start become available.

Eggleton testified that Head Start employees are nor-
mally discharged after engaging in some type of prohib-
ited conduct, and that if she determines that an employee
“needs to be terminated,” then “that’s what I do.” She
also testified that she makes recommendations for termi-
nation to her superior, the Employer’s executive direc-
tor.5 She further testified that the Employer’s Head Start
Program Policy Council “has the opportunity to concur
or to not concur” with a termination, and that it has never
failed to concur with a decision that she has made to ter-
minate an employee. As to Tyree, Eggleton testified that
the medical statement from Tyree’s doctor was inconclu-
sive as to when, if ever, Tyree could return to work.
Thus, according to Eggleton, “her [12 weeks FMLA
leave] time was up and so she was released.” Eggleton
testified that “when her time was up, when the 12 weeks
was over, she was no longer employed” by the Em-
ployer.
The Policy Council referred to above is a formal Head
Start Program governing body. More specifically, the
Employer’s Head Start Program operates under regula-
tions set forth in Title 45, Code of Federal Regulations,
Chapter XIII, Subchapter B, Parts 1301–1311. Section
1304.50, Program Governance, its subsections, and ap-
pendix A thereto provide, in pertinent part, essentially
that the Employer must establish and maintain a formal
structure of shared governance of the Head Start Pro-
gram, through which parents can participate in policy-
making or in other decisions about the program. This
governance structure must consist of, inter alia, a Policy
Council, comprised of parents of children currently en-
rolled in the Head Start Program, and local community
representatives (as further defined in the CFR). At least
51 percent of the Policy Council members must be par-
ents of children currently enrolled in the Head Start Pro-
gram.6 Members of the Employer’s staff are not permit-
ted to serve on the Policy Council.

5 The executive director apparently approved the recommendation to
discharge Tyree. See Eggleton’s letter of April 3, supra.
6 Eggleton testified that the Policy Council here has four parent
members and three community representatives.
Title 45 CFR § 1304.50(d)(1)(xi) states in pertinent
part:

Policy Councils . . . must work in partnership
with key management staff . . . to develop, review,
and approve or disapprove . . . [d]ecisions to hire or
terminate any person who works primarily for the
. . . [Employer’s] Head Start program.

Appendix A to 45 CFR § 1304.50 specifies and de-
lineates governance and management responsibilities in
the operation of Head Start programs. In regard to §
1304.50(d)(1)(xi), supra, appendix A expressly provides
that the Policy Council “[m]ust approve or disapprove
decisions to hire or terminate any person who works
primarily for [the Employer’s] Head Start program,” and
elaborates that:

[The Policy Council] must be involved in the decision-
making process prior to the point of seeking approval.
If [the Policy Council] does not approve, a proposal
cannot be adopted, or the proposed action taken, until
agreement is reached between the disagreeing groups.7

The representation election was held on May 2. Tyree
voted, and the Employer challenged her ballot. Tyree
did not seek to have the Policy Council review her termi-
nation. On May 11, Tyree’s termination was presented
to and approved by the Policy Council. Eggleton testi-
fied that no correspondence was ever sent to Tyree noti-
fying her that the Policy Council had approved her ter-
mination.
b. Analysis and conclusion
The hearing officer cited the rule that the Board has
applied to medical leave issues: a unit employee who is
on medical leave of absence on either the voting eligibil-
ity date or the date of the election, or on both dates, is
presumed to continue in an employed status unless and
until this presumption of continued employment is rebut-
ted by an affirmative showing that the employee has re-
7 The Employer introduced into evidence, without objection, a two-
page document (E. Exh. 2) described by the Employer’s counsel as a
“Performance Standard,” published by the U.S. Department of Health
and Human Services. The document is not further identified, and its
source is not revealed. The document makes express reference to ap-
pendix A to § 1304.50, supra, and it provides as follows in regard to §
1304.50(d)(1)(xi):
A method for including the Policy Council . . . in the approval
of decisions to hire or terminate individuals working for the
[Head Start] program is essential. Some roles of the Policy
Council . . . are to: . . . . Participate in the approval process, with-
out taking responsibility for directly hiring or terminating indi-
viduals, because this is a management function.
This “Performance Standard” is not, in any event, part of the Code of Fed-
eral Regulations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 666
signed or been terminated. Red Arrow Freight Lines,
278 NLRB 965 (1986). See also, e.g., Supervalu, Inc.,
328 NLRB 52 (1999) (then-Member Hurtgen dissenting
in pertinent part).
The hearing officer then essentially found the follow-
ing: termination of Head Start teachers requires approval
of the Policy Council; Tyree, a Head Start teacher, was
still employed on medical leave of absence on the March
29 voting eligibility date; notwithstanding that Tyree’s
12-week entitlement to leave and benefits under the
FMLA expired on March 31, the Policy Council did not
give its required approval for her termination until May
11; Tyree was therefore still employed on medical leave
of absence on the May 2 election date and was therefore
eligible to vote under Red Arrow. Accordingly, the hear-
ing officer overruled the Employer’s challenge to Tyree’s
ballot. We disagree.
We agree with the Employer that Tyree was dis-
charged effective March 31 and was therefore not eligi-
ble to vote in the May 2 election. We are mindful that,
under the Employer’s administrative apparatus, the Pol-
icy Council was required to review the March 31 dis-
charge and did not do so until May 11, after the election.
However, there are significant factors showing the pri-
macy of the March 31 date. The Policy Council acted
retroactively. It approved Tyree’s March 31 discharge.
The Employer’s administrative regulations do not pre-
clude a finding that Tyree’s discharge was therefore ef-
fective on March 31. Tyree did not challenge her March
31 discharge. Indeed, when asked at the hearing when
she was terminated, Tyree replied, “March 31st.” Tyree
received written notification from the Employer of her
March 31 discharge. In sum, although there was a theo-
retical possibility that the Employer’s action of discharg-
ing Tyree could be reversed, that possibility does not
contradict the fact that the Employer had indeed dis-
charged Tyree on March 31. Under these circumstances,
we find that Tyree was discharged on March 31 and we
shall overrule the challenge to her ballot and neither open
it nor count it.8
2. Threat of job loss
a. Facts
In early April, i.e., about 3 weeks before the election,
employee Susan Eckle, in the presence of employees

ro-union.
8 Since Tyree was discharged on March 31, she was ineligible even
under the Red Arrow test. It is therefore unnecessary to pass on its
validity. Member Bartlett disagrees with the Red Arrow test. See
Member Bartlett’s personal footnote on this issue in Agar Supply Com-
pany, Inc., 337 NLRB 1267 (2002). Member Bartlett agrees that Tyree
was discharged on March 31. Accordingly, even under Red Arrow,
Tyree is ineligible to vote.
Shelly Knisely and Davette Mead, asked Supervisor
Jodie Baker about rumors that Eckle would not get her
“Family Partner” job back after she returned from sum-
mer layoff.9 Baker told her that if the Union “came in,”
Eckle might not have a job. In answer to a question,
Baker further told Eckle that if the Union did not “come
in,” then Baker would “lay [her] life on it” that Eckle
would keep her job. Eckle discussed this incident with
Knisely that day, and with employee Lisa Massey a few
days later. She also repeated Baker’s remarks at a union
meeting.10
Eckle testified that Baker subsequently made it clear to
her that Eckle’s support or nonsupport for the Union
made no difference in whether she would be recalled to
work in the fall, and that Eckle’s job would not be af-
fected by how Eckle voted in the election. Eckle testified
that she and Knisely went into Baker’s office and Baker
assured them “it wasn’t going to affect our job which
way we voted.”
In addition, Eggleton testified about her prepetition
March 10 meeting with employees.11 Eggleton called the
meeting to address questions about whether employees
would be fired if they supported the Union and the Union
lost the election, or if they opposed the Union and the
Union won. Eggleton assured employees that they
would not lose their jobs under either circumstance, and
that their job performance, not their union sympathies,
would determine whether they would keep their jobs.
Furthermore, Eggleton testified that she reiterated these
assurances to employees “daily” from then on through
the date of the May 2 election.
Finally, on April 27, 5 days before the election, Em-
ployer Deputy Director Bambi Baugh sent a letter to all
unit employees, in which she stated, inter alia, that she
did not believe a Union handout that accused a manager
of making unlawful statements. Baugh’s letter stated:

I was with this manager during training we had dealing
with this very issue. She obviously understood every-
thing she was being taught. CJ [Eggleton] attended a
workshop last January . . . where one of the presenters
was from the National Labor Relations Board. She
learned that during a union campaign, union
representatives may promise, misrepresent and lie to
get people to vote p

9 Head Start teacher Tina Miller testified that the Head Start Program
runs from about Labor Day through mid-May each academic year, and
that the teachers usually get laid off in mid-May and recalled in late
August.
10 The record does not reveal how many employees attended this
meeting.
11 The petition was filed on March 17.
COMMUNITY ACTION COMMISSION OF FAYETTE COUNTY 667
b. Analysis and conclusion
We agree with the hearing officer, for the reasons she
sets forth and as further discussed below, that Baker
threatened Eckle with loss of her job if the Union won
the election, that this threat was immediately and subse-
quently disseminated to other employees, and that it in-
terfered with this very close election. An employer’s
threat of job loss if a union wins an election is objection-
able conduct warranting the setting aside of that election.
See, e.g., Jonbil, Inc., 332 NLRB 652 (2000); Audubon
Regional Medical Center, 331 NLRB 374 (2000). Ac-
cordingly, we adopt the hearing officer’s recommenda-
tion to sustain this objection and to set aside the election
and direct a second election.
The Employer argues that Baker’s alleged threat could
not have affected the outcome of the election, pointing to
“subsequent statements or denials by management to
employees” to the effect that their support or nonsupport
of the Union made no difference in whether they would
keep their jobs. We disagree. Although parties to an
election should be encouraged promptly to repudiate
potentially objectionable statements or conduct, we find
that the Employer did not effectively do so here.12
Eggleton’s March 10 prepetition remarks to employees
were made about a month before Baker’s threat to Eckle,
and thus, obviously, cannot be said to have repudiated it.
Further, none of the alleged repudiations focused on the
threat uttered to Eckle. The threat to Eckle pertained to
the consequences of a union victory or loss. The alleged
repudiation focused on the consequences of individual
employees’ support or nonsupport of the Union.13

12 In Passavant Memorial Area Hospital, 237 NLRB 138 (1978), the
Board articulated the standard for how an employer can avoid liability
for unlawful statements or conduct by effectively repudiating it. Al-
though the Passavant standards were developed to address the repudia-
tion of unfair labor practice conduct, the Board has also applied these
standards, by analogy, to assess whether otherwise objectionable con-
duct has been effectively neutralized by other employer statements.
Warren Manor Nursing Home, 329 NLRB 3, 4 (1999); Columbia
Alaska Regional Hospital, 327 NLRB 876, 877 (1999); see also Gaines
Electric Co., 309 NLRB 1077, 1081 (1992). To be effective under
Passavant, the repudiation must be timely, unambiguous, specific in
nature to the coercive conduct, free from other proscribed conduct,
adequately publicized to the employees involved, not followed by other
proscribed conduct, and accompanied by assurances to employees that
the employer will not interfere with the exercise of their rights under
Sec. 7 of the Act. 237 NLRB at 138–139.
Although Member Cowen does not agree with all of the Passavant
requirements for effective repudiation, he agrees that, in the instant
case, for the reasons set out below the purported repudiation did not
address the substance of the threat, and that given the absence of even a
general repudiation and the closeness of the election, the unrepudiated
threat constitutes objectionable conduct.
13 Member Cowen considers Baker’s statement to Eckle to be a
“threat” only to the extent that it is a prediction of adverse conse-
quences of unionization that was not accompanied by objective consid-
Thus, the Employer’s post-threat assurances did not
specifically and unambiguously repudiate Baker’s threat.
Nor did they disavow future interference by the Em-
ployer in the employees’ exercise of their Section 7
rights. As the hearing officer said:

[N]one of these subsequent statements or denials to
employees as to the effects of their individual positions
concerning the union on their individual job situations
reached the heart of Baker’s threat to Eckle and the two
other family partners [i.e., Knisely and Mead]: if the
Union was selected as the employees’ collective-
bargaining representative their jobs were in jeopardy.

Contrary to Member Bartlett, the difference between
the Employer’s threat and the Employer’s assurances did
not involve a mere “distinction without a difference.” As
emphasized, the Employer’s threat was that a union vic-
tory would have a detrimental effect on employees. By
contrast, the assurance was that an individual’s stance on
unionization would not bring retaliation to him/her.
Thus, an employee could support the Union and not fear
consequences. However, based on the Baker threat, the
employee would fear consequences if the Union won the
election. The latter fear was not eliminated by the Em-
ployer’s assurances.
Furthermore, Baker’s threat was not repudiated by
Bambi Baugh’s letter to employees sent April 27, 5 days
before the election. In that letter, Baugh expressed her
personal disbelief that a manager (apparently Eggleton,
not Baker, from the context of this letter) had made
unlawful statements. She also assured the employees
that Eggleton had attended a workshop where one of the
presenters was from the National Labor Relations Board
and Eggleton had “obviously understood everything she
was being taught”—including, according to the letter,
“that during a union campaign, union representatives
may promise, misrepresent, and lie to get people to vote
prounion.”
Baugh’s letter fails as an effective repudiation of
Baker’s threat, even assuming that the letter was
timely—coming about 3 weeks after the threat and only
5 days before the election. The letter did not unambigu-
ously and specifically repudiate that threat, and it con-
tained no assurances against future interference by the
Employer in the employees’ exercise of their Section 7
rights.

erations supporting the prediction. See NLRB v. Gissel Packing, 395
U.S. 575, 618 (1969). Member Cowen does not consider this to be a
threat of retaliation for union activity, and therefore the Employer’s
subsequent assurances concerning non-retaliation were not responsive
to this “threat.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 668
Accordingly, we adopt the hearing officer’s recom-
mendation to sustain Objection 1.
[Direction of Second Election omitted from publica-
tion.]

MEMBER LIEBMAN, concurring in part and dissenting in
part.
For the reasons set forth in the majority opinion, I join
Member Cowen in adopting the hearing officer’s finding
that the Employer engaged in objectionable conduct,
warranting the setting aside of the election, when Super-
visor Jodie Baker threatened employees that if the Union
won the election, employee Susan Eckle might not keep
her job. I also agree that the Employer did not effec-
tively repudiate this threat.1
Contrary to my colleagues, however, I would adopt the
hearing officer’s findings that employee Debra Tyree
was employed on both the voting eligibility cutoff date
and the date of the election. My colleagues find that
Tyree was discharged effective March 31, 2000,2 and
that she was therefore ineligible to vote in the May 2
election. I disagree. Tyree was not discharged until May
11, when the Employer’s Head Start Policy Council gave
its statutorily-required approval for Tyree’s discharge.
Tyree was therefore eligible to vote in the May 2 elec-
tion, and her ballot should be opened and counted.
The majority opinion sets forth most of the relevant
facts. I add, however, that while the Employer’s formal
Personnel Policies provide that medically eligible em-
ployees—like Tyree—are entitled to 12 workweeks of
leave under the Family Medical Leave Act (FMLA),
nowhere do these policies state or even imply that an
employee’s employment terminates when, and simply
because, her 12 weeks of FMLA leave expires. Indeed,
the Employer’s formal Personnel Policies imply the op-
posite, as follows:
SECTION V—LEAVE OF ABSENCE
1.9 An employee who has been approved for FMLA
leave is entitled to be reinstated to the same job or
equivalent position with equivalent pay, benefits, and
terms and conditions of employment as before taking
leave.

This entitlement to reinstatement is neither conditioned
on the continuation of the FMLA leave nor extinguished
by its expiration. The Employer’s formal Personnel

1 See, e.g., Warren Manor Nursing Home, 329 NLRB 3, 4 (1999),
applying, by analogy, standards of repudiation of unfair labor practice
conduct articulated in Passavant Memorial Area Hospital, 237 NLRB
138 (1978). I note that, regardless of his disagreement with some of the
Passavant requirements, Member Cowen agrees that the Employer did
not effectively repudiate Baker’s objectionable threat.
2 All dates are 2000 unless stated otherwise.
Policies contain no provision permitting, much less re-
quiring, termination of an employee simply because she
is unable to resume her work upon expiration of her
FMLA leave. Indeed, the Personnel Policies expressly
provide for termination for only three reasons: resigna-
tion, incompetence, or misconduct. Further, while the
Employer informed Tyree on March 15 that her health,
life, and disability insurance coverage was being termi-
nated, coincident to expiration of her FMLA leave, the
Employer did not tell her that her employment itself
would also be terminated. This was its last correspon-
dence to her prior to her purported discharge on March
31. In fact, when the Employer actually notified Tyree by
letter on April 3 that she was being “release[d] from em-
ployment,” it stated that her FMLA leave had expired on
March 10, but that the Employer had delayed her “re-
lease of employment” until March 31, in the hope that
she would have returned to work by then. The letter
went on to say:

Because we have no definite date for your return and
because the role of teacher is critical, we can no longer
hold this position open. Your release from employ-
ment with Head Start is effective March 31, 2000,
pending Policy Council approval. You are encouraged
to reapply as your health improves and vacancies at
Head Start become available. [Emphasis added.]

Thus, the Employer, by the express terms of its own
letter to Tyree, did not terminate her because her FMLA
leave had expired, but rather because it had no definite
date for when Tyree would return to work, and because it
could no longer leave Tyree’s teaching position unfilled.
Therefore, Head Start Director Eggleton’s claims at the
hearing, that Tyree was terminated on March 31 because
her FMLA leave had expired and the Employer’s Per-
sonnel Policies required that she therefore be terminated
at that time, are neither factually supported nor proce-
durally justified under those Policies.
To the contrary, as the record clearly establishes,
Tyree’s employment as a Head Start teacher was not
terminated until the Head Start Policy Council officially
acted on her case on May 11, more than a week after the
May 2 election. The Policy Council is a formal Head
Start Program governing body. The Code of Federal
Regulations expressly requires that the termination of
Head Start teachers must be approved or disapproved by
the Head Start Policy Council. 45 CFR §
1304.50(d)(1)(xi) and appendix A (i.e., the Policy Coun-
cil “[m]ust approve or disapprove decisions to hire or
terminate any person who works primarily for [the Em-
ployer’s] Head Start program”). Under that provision,
Tyree’s termination was not finally effective until the
COMMUNITY ACTION COMMISSION OF FAYETTE COUNTY 669
Policy Council approved her discharge. The Policy
Council did not grant its statutorily required formal ap-
proval of Tyree’s discharge until May 11, prior to which
Tyree remained an (as-yet undischarged) employee of the
Employer on medical leave of absence.
Accordingly, Tyree remained eligible to vote in the
May 2 election under the well-established rule of Red
Arrow Freight Lines, 278 NLRB 965 (1986): a unit em-
ployee who is on medical leave of absence on either the
voting eligibility date or the date of the election, or on
both dates, is presumed to continue in an employed status
unless and until this presumption of continued employ-
ment is rebutted by an affirmative showing that the em-
ployee has resigned or been terminated. In my view, no
such affirmative showing has been made here.
I would therefore overrule the challenge to Tyree’s
ballot, open and count it, and certify the Union if it turns
out that it won the election. If the Union lost the elec-
tion, I would (as Member Cowen and I in fact join in
doing here, given the majority’s sustaining the challenge
to Tyree’s ballot) set aside the election on the basis of the
Employer’s objectionable threat of job loss if the Union
won.

MEMBER BARTLETT, dissenting in part.
Contrary to my colleagues, I would overrule the Peti-
tioner’s objection based on Supervisor Jodie Baker’s
threat of job loss. I therefore find it necessary to reach
the Petitioner’s remaining objection based on the Em-
ployer’s alleged videotaping of protected activity, and,
contrary to the hearing officer, would overrule that objec-
tion as well.
1. Threat of job loss
With regard to Supervisor Baker’s threat of job loss,
the totality of the circumstances demonstrates that the
threat would not have interfered with the election. The
employees received numerous assurances, both before
and after Baker’s comment, by the top manager and
Baker herself, that the Employer would not discharge
employees because of their union activities or because of
the outcome of the election. Thus, at a March 10 staff
meeting attended by most of the employees, Employer
Director Cathy Jo Eggleton specifically addressed ru-
mors that employees’ postsummer recall would be ad-
versely affected by the union campaign. Eggleton told
the assembled employees that whether an employee sup-
ported the Union or opposed the Union would have noth-
ing to do with whether the employee kept her job. Fur-
thermore, Eggleton reiterated this message—that the
union campaign would have no impact on the employ-
ees’ jobs—to employees on a daily basis throughout the
union campaign. The Union also reiterated Eggleton’s
message in a March 22 employee mailing, quoting
Eggleton as saying, “If you vote for the union, you won’t
lose your job.” Moreover, when an employee raised
Baker’s threat at a union meeting, union officials reas-
sured the employees at the meeting (including the three
employees who had heard Baker’s threat), that the Em-
ployer could not consider the union campaign in making
employment decisions regarding the employees. Finally,
at some point after that union meeting but before the
election, employees Susan Eckle and Shelly Knisely (two
of the three employees who heard Baker’s original
threat) discussed Baker’s threat with Baker herself.
Baker assured Eckle and Knisely that whether an em-
ployee supported the Union would have no effect on the
employee’s job.
As the majority notes, the Board’s standard for curing
unlawful statements is set forth in Passavant Memorial
Area Hospital, 237 NLRB 138 (1978).1 Applying this
standard, the Board inquires whether an employer’s cura-
tive assurances are timely, unambiguous, specific in na-
ture to the unlawful statement, free from other proscribed
conduct, adequately publicized to the employees in-
volved, and accompanied by assurances that the em-
ployer will not interfere with the employees’ statutory
rights. This standard, however, should not be applied in
“a highly technical or mechanical manner.” Broyhill Co.,
260 NLRB 1366, 1366 (1982). The Employer here sub-
stantially satisfied the Passavant requirements by Direc-
tor Eggleston’s assurances to the assembled employees at
the March 10 staff meeting, by Director Eggleston’s as-
surances to individual employees throughout the cam-
paign, and by Supervisor Baker’s post-threat assurances
to two of the three directly-involved employees. Fur-
thermore, the Board has found no other unlawful or ob-
jectionable conduct by the Employer during the cam-
paign.
In finding that the Employer’s assurances did not cure
the threat, my colleagues emphasize that Supervisor
Baker’s threat was a threat of retaliation triggered by a
union election victory and that the Employer’s assur-
ances principally addressed retaliation triggered by an
individual employee’s support for the Union. However,
this is a distinction without a difference. Accordingly, it
provides no support for my colleagues’ finding.
2. Videotaping
With regard to the Employer’s videotaping of pro-
tected activity, the evidence shows that the Employer had
a legitimate purpose for the videotaping and that the Em-

1 I express no opinion regarding whether the Board should continue
to adhere to the Passavant standard for effective repudiation of mis-
conduct.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 670
ployer communicated this legitimate purpose to the af-
fected employees.
The credited testimony shows that Supervisor Baker
videotaped teacher Tina Miller and assistant teacher,
Suzette Adams, with Miller’s class on Thursday, March
23, that Baker videotaped them again on Thursday,
March 30, and that on both days Miller and Adams were
wearing union T-shirts pursuant to a union campaign
strategy of wearing the union T-shirts to work on Thurs-
days.2
Employer actions that create the impression of surveil-
lance of employees’ protected activities coerce employ-
ees in the exercise of their statutory rights. Standard
Sheet Metal, Inc., 326 NLRB 411, 423 (1998); Sonoma
Mission Inn & Spa, 322 NLRB 898, 902 (1997). How-
ever, where employer actions are undertaken for a le-
gitimate purpose, the actions are lawful notwithstanding
that the actions may incidentally create the impression of
surveillance. Saia Motor Freight Lines, Inc., 333 NLRB
784 (2001).
Here, the Employer wanted to make a videotape of
school activities to show to prospective customer parents
during the summer months when the school would be
shut down. The Employer asked Supervisor Baker to
make a videotape for this purpose and Baker made the
videotape. The Employer did, in fact, use the videotape
for the announced purpose—that is, the Employer
showed the videotape to prospective customer parents.
Furthermore, Supervisor Baker told employee Adams, in
response to Adams’ question while Baker was videotap-
ing the class, that she (Baker) was making the videotape
to show parents who visited the school during the sum-
mer what the school rooms looked like during the school
year. Similarly, when an employee at a staff meeting
asked about the videotaping, the Employer repeated this
explanation to the assembled employees—that is, that the
Employer was making a video to show to prospective
customer parents during the summer.

2 Baker testified that she videotaped activities throughout the school
on March 28 and 30, but denied doing any videotaping on March 23.
In these circumstances, the Employer has demon-
strated its legitimate purpose for the videotaping and that
the employees were aware of that legitimate purpose.
Accordingly, I would overrule the objection alleging
election interference resulting from the videotaping.
In recommending that the Board sustain the objection,
the hearing officer relied, in part, on evidence showing
that the employees discussed the videotaping at a March
30 union meeting and that the employees there decided
to discontinue the practice of wearing the union T-shirts
to work every Thursday. However, assuming arguendo
that the employees’ action—in discontinuing the Thurs-
day union T-shirt practice—showed that the employees
felt coerced by the videotaping, this fact would not ren-
der the videotaping objectionable. As noted above,
where an employer has a legitimate purpose for surveil-
lance, the surveillance is lawful notwithstanding possible
incidental impact on employees’ concerted activities; this
is particularly true where, as here, the employer explic-
itly communicates that legitimate purpose to the employ-
ees.
Furthermore, in evaluating the coercive tendency of an
employer’s action, the Board relies upon objective rather
than subjective evidence of employee coercion. C.P.
Associates, Inc., 336 NLRB 167 (2001); East Side Shop-
per, Inc., 204 NLRB 841, 845 (1973) (alleged impression
of surveillance). The fact noted by the hearing officer—
that the employees decided to discontinue the every-
Thursday tee shirt practice—is, at most, subjective evi-
dence of employee coercion.
Finally, although the videotaping may have caused the
employees to discontinue the practice of wearing the
union T-shirt to work every Thursday, the videotaping
did not cause the employees to discontinue wearing the
union T-shirt to work. To the contrary, the employees
continued wearing the union T-shirt to work, albeit on a
random basis.
Accordingly, for all the foregoing reasons, I would
overrule the Petitioner’s objections and certify the results
of the election.