Connecticut Humane Society

National Labor Relations Board - Administrative Judge Opinions

Jun 8, 2011

34-CA-012557 (N.L.R.B. Jun. 8, 2011)

JD(NY)–16–11
Newington, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
CONNECTICUT HUMANE SOCIETY
and Case 34-CA-12557
INTERNATIONAL ASSOCIATION OF MACHINISTS &
AEROSPACE WORKERS, AFL-CIO, DISTRICT
LODGE 26
CONNECTICUT HUMANE SOCIETY
Employer
and Case 34-RC-2351
INTERNATIONAL ASSOCIATION OF MACHINISTS &
AEROSPACE WORKERS, AFL-CIO, DISTRICT LODGE
26
Petitioner
Thomas E. Quigley, Esq., of Hartford, CT for the
General Counsel.
Brian Clemow, Esq. and Henry J. Zaccardi, Esq.,
(Shipman & Goodwin, LLP) of Hartford, CT for
the Respondent/Employer.
Gregg D. Adler, Esq., (Livingston, Alder, Pulda
Meiklejohn & Kelly PC) of Hartford, CT for
the Charging Party/Petitioner
DECISION
Statement of the Case
Steven Fish: Pursuant to charges and amended charges filed by International
Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge 26 (herein called
Charging Party, Petitioner or the Union), the Director for Region 34 issued a Complaint and
Notice of Hearing on August 26, 2010, alleging that Connecticut Humane Society (herein called
Respondent, CHS or the Employer) violated Section 8(a)(1) and (3) of the Act by terminating the
employment of Bridget Karchere (Karchere) and Maureen Lord (Lord) because of their support
for the Union, as well as by several instances of unlawful interrogations, threats and creation of
the impression of surveillance.
The Director also issued a Report on Objections in Case No. 34-RC-2351 on September
1, 2010, finding that the objections filed by the Employer therein warranted a hearing.
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On the same date, the Director issued an Order Consolidating the above cases for
hearing.
The trial, with respect to allegations raised in the above complaint and objections report,
was held before me in Hartford, Connecticut on November 17, 18 and 19, 2010. Briefs have
been filed1 and have been carefully considered. Based upon the entire record, including my
observation of the demeanor of the witnesses, I make the following:
Finding of Fact
I. Jurisdiction and Labor Organization
Respondent is a non-profit corporation with an office and facility in Newington,
Connecticut (Newington facility) and facilities in Waterford and Westford, Connecticut, where it
is and has been engaged in the business of animal care, sheltering and adoption. During the
12-month period ending July 21, 2010, Respondent purchased and received at its Connecticut
facilities goods valued in excess of $50,000 directly from points located outside the state of
Connecticut.
It is admitted, and I so find, that Respondent is and has been an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
It is also admitted, and I so find, that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. The Representation Case
The Union filed its petition in Case No. 34-RC-2351 on October 21, 2009.2 On
November 2, the parties entered into a Stipulated Election Agreement providing for an election
in a unit comprised of all full-time and regular part-time receptionist/customer care employees,
animal care workers, veterinary assistants and veterinary technicians employed by the
Employer at its Newington, Connecticut facility, including the Connecticut Humane Society
Memorial Clinic at that location, and at its Waterford and Westport, Connecticut facilities, but
excluding all office clerical employees, managerial employees, guards, professional employees
and supervisors as defined in the Act.
The election was conducted on December 9. The results were 18 “yes,” 15 “no” and no
challenges or void ballots. On December 11, the Employer filed timely objections to the election,
which asserts as follows:
Objection to Election:
CHS supervisors were directly and actively involved in soliciting
support for the union during the organizing campaign, and

1 Subsequent to the close of the hearing and the receipt of briefs, General Counsel,
pursuant to the rule enunciated in Reliant Energy, 339 NLRB 66 (2003), alerted the parties to a
recently issued Board decision relevant to one of the issues in the instant case. Respondent,
consisted with Reliant Energy, filed a response commenting on the recent case cited by General
Counsel, which has been considered.
2 All dates subsequently referred to herein are in 2009, unless otherwise indicated.
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disseminated implied threats of CHS action against employees if
they did not secure union representation, thereby tainting the
laboratory conditions required for a free and fair election.
The following are examples of this behavior by CHS supervisory
personnel:
In or about September 2009, Maureen Lord, CHS
Development Manager, and Bridget Karchere, CHS
Finance Assistant Manager, contacted Nancy
Patterson, District Manager of CHS’s Waterford
branch office on more than one occasion. Both Ms.
Karchere and Ms. Lord stated that they were
contacting Ms. Patterson to encourage the
Waterford staff, and Ms. Patterson, to sign a
“petition” for unionization, and indicated that Ms.
Patterson needed to act on this matter quickly. Ms.
Lord also stated that CHS’s Waterford employees
needed to sign a petition for unionization as soon
as possible, so that Ms. Patterson and the
Waterford employees would be “protected” from
management and could not be discharged by CHS.
This was either an implied threat of discharge in the
absence of union representation, or an implied
promise of protection from discharge if union
representation was elected, or both.
In or about September 2009, Maureen Lord, CHS
Development Manager, and Bridget Karchere, CHS
Finance Assistant Manger, contacted Brandon Guy,
Assistant District Manager of CHS’s Waterford
branch office on at least one occasion. Both Ms.
Karchere and Ms. Lord stated that they were
contacting Mr. Guy to encourage him, and through
him the CHS’s Waterford staff, to join the union.
In or about September 2009, Ms. Heather Keith,
Medical Team Leader Manager, contacted Sandra
Ocasio, CHS Animal Wellness Technician at CHS’s
Newington offices, and asked Ms. Ocasio to
consider being part of a union. Ms. Keith solicited
Ms. Ocasio’s involvement in the union organizing
effort, and offered to drive Ms. Ocasio to union
organizing meetings to listen to organizers’
promotional efforts where she could be solicited to
sign a petition or authorization card. Ms. Keith’s
actions thus assisted the union in arranging and
conducting organizing meetings for CHS
employees, and encouraged such employees to
participate in such meetings.
In addition, the following facts demonstrate that the foregoing
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supervisory involvement in the election was sufficient to taint the
outcome of the election:
Each of the supervisors involved in improper
activity was included in the union’s original
definition of the scope of the bargaining unit, and
upon information and belief, they were union
partisans. Although CHS was able to demonstrate
that these individuals were in fact bona fide
managers who should not be included in the
bargaining unit, they were obviously union
supporters who, at the outset of the union’s
organizing effort, anticipated being included in the
union, and upon information and belief, they likely
signed any petition and/or authorization cards that
became part of the showing of interest upon which
the union relied. Clearly, they intended to and did in
fact campaign for the success of the organizing
effort on that basis, and because of their position as
supervisors they would have an influence on the
employees they spoke to.
In addition, upon information and belief CHS
asserts that the above-mentioned supervisors and
others must have expressed similar views to other
CHS employees in their efforts as union partisans
to persuade CHS employees to sign a petition
and/or authorization cards, and ultimately to vote in
favor of union representation.
The outcome of the election was extremely close,
with 18 voters supporting the union and 15 voting
against unionization. Because the election took
place in a small proposed bargaining unit, and the
outcome was determined by as few as two votes,
any activity by supervisors urging employee
support for and votes in favor of unionization, or
making implied threats that union representation
was needed in order to protect employees against
discharge from employment, would be sufficient to
taint the required laboratory conditions and to affect
the outcome of the election.
The supervisor activities set forth above, including solicitation of
signatures for union organizing and implied threat of discharge in
the absence of union representation or promise of protection from
discharge if union representation was elected were improper for at
least the following reasons:
(a) they were a direct solicitation for support of
unionization and execution of a petition for
unionization by supervisory employees in a
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coordinated course of union partisan conduct;
(b) they implied a threat that employees would be
terminated by CHS management during the union
organizing campaign;
(c) they tainted the necessary laboratory conditions
in which a National Labor Relations Board election
must be conducted.
III. Respondent’s Operations
As noted above, Respondent provides animal care, sheltering and adoption services at
three locations, Newington, Westport and Waterford, Connecticut. Respondent employed
approximately 50 employees in its three locations of which 35 were eligible to vote in the
election.
Richard Johnston (Johnston) at the time of the events in question was Respondent’s
president and CEO and undisputedly its top official.
The Newington facility is attached to a separate legal entity, called the Fox Memorial
Clinic (Fox Clinic). The employees at the Fox Clinic were part of a bargaining unit set forth in the
election. They were considered part of the Newington facility, which comprised 22 employees
listed on the Excelsior list for the Newington location. The Excelsior list also listed 8 employees
at Waterford and 5 at Westport.
Janice Marzano is Respondent’s executive assistant to the president, an admitted
supervisor and is responsible for human resources functions for all of Respondent’s facilities.
Raymond Gasecki, another admitted supervisor, is Respondent’s chief financial officer.
Respondent also employed managers at each facility, which were also admitted
supervisors. They were Joanne Draper, acting district manager at Newington, Joanne Freeman,
practice manager of the Fox Clinic, 3 Nancy Patterson, district manager at Waterford, and
Allyson Smith, district manger at Westport.
Respondent also employs four team leaders at the Newington facility. Their supervisory
status is uncertain, but is inconsequential to the issues herein.4
IV. The Union’s Organizing Campaign
Bridget Karchere was employed by Respondent as a “finance assistant,” and Maureen
Lord was “manager of development technology.” Respondent contends that both Karchere and
Lord are managerial employees under the Act and that Lord is also a supervisor under Section
2(11) of the Act.5 Therefore, Respondent, while conceding that it terminated both Karchere and

3 There were approximately five or six unit employees at the Fox Clinic.
4 While the Employer did allege in its objections that one of the team leaders engaged in
objectionable conduct, it presented no evidence of any such conduct nor any evidence of
supervisory status of that or any other team leader. Thus, I find it unnecessary to decide the
supervisory status of Respondent’s team leaders.
5 While in its Objections and Answer, Respondent contended that Karchere was also a
Continued
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Lord because they engaged in union activities, asserts that such conduct is not unlawful in view
of the managerial and/or supervisory status (Lord) of the employees. It further asserts that the
activities engaged in by Karchere and Lord in support of the Union represents objectionable
conduct sufficient to warrant the election being set aside.
I shall detail the facts concerning the status of these employees below, but shall first set
forth their union activities. The Union’s organizing efforts at Respondent were initiated by Cathy
DeMarco, who had been employed by Respondent as a “human educator,” but who resigned in
August 2009.
In late August, DeMarco began contacting Respondent’s employees, including Karchere
and Lord, and suggested to them that unionization might be useful to deal with problems and
complaints that employees had about their working conditions and how they were treated by
management. DeMarco informed the employees that she would be setting up a meeting of
employees to discuss the possibility of unionizing Respondent’s employees. Karchere informed
DeMarco that she was interested in attending the meeting because the employees were treated
inhumanely and were miserable. Lord responded to DeMarco that the possibility of a union
“sounded interesting.”
A meeting was subsequently scheduled for September 11 and was held on that date at
an old school in Berlin, Connecticut called the “Grange.” Present were approximately 12
employees, including Karchere, Lord and DeMarco. Lord and Karchere drove to the meeting
separately, and neither of them instructed any other employees to attend the meeting. However,
Karchere admitted that all the employees were talking amongst themselves about the meeting
and that “we were all friends and we all kind of agreed that we should go to this meeting.”6
At the meeting, DeMarco informed those in attendance that the employees had been
collectively griping about their working conditions and told them that she would be inviting a
union representative to speak with them about the unionization process. She added that if
anyone was uncomfortable with speaking with a union representative they could leave. No one
left, so DeMarco called Everett Corey, the Union’s business representative, on her cell phone.
Shortly thereafter, Corey arrived at the Grange. He introduced himself as a
representative from the Machinists Union and spoke about some of the benefits of a union, such
as a grievance procedure, fair treatment and protections from the company.
Corey then asked employees if they had comments or questions. Some employees
expressed some concerns about their working conditions, such as complaints about chemicals
that they work with, possibly affecting their health and that they were not able to spend as much
time as they felt was appropriate to take care of the animals.
Lord asked Corey, “If the Union was voted in, whether employees would have to join or if
they could choose not to join the Union?” Corey replied that it depended on the contract that
was negotiated. Near the end of the meeting, Corey passed around a petition inviting
employees, who were interested in representation by the Union, to sign. Lord did not sign the
petition at that meeting because she was not sure if the union “applied” to her since most of the
_________________________
supervisor, that position appears to have been abandoned at trial since its own witnesses
conceded that Karchere did not supervise anyone.
6 The record does not reveal specifically what Karchere said to her fellow employees about
attending the meeting.
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employees there were directly involved in animal care and worked downstairs. In that regard,
both Karchere and Lord worked upstairs on the second floor, where clerical and administrative
employees were situated. Downstairs on the first floor, employees were involved with animal
care and dealing with the public with respect to various issues. They were called customer care
representatives or receptionists.
Karchere asked one question at the meeting. That is “How could the union help us?”
After Corey responded, Karchere asked if she was eligible to sign the petition since she does
not handle animals and is a clerical employee. Karchere briefly described to Corey her job
duties. Corey stated that Karchere was not a manager or a supervisor and was eligible to sign
since the Union was seeking to represent all non-managerial, non-supervisory positions.7
Karchere signed the petition after about five or six others had signed and before four or five
other employees signed. Neither Lord nor Karchere encouraged or suggested to any employees
present that they should sign the petition.
About a week later, DeMarco called Karchere and Lord and informed them that a second
union meeting was scheduled for September 22, also at 6:00 p.m. at the Grange. In between
the two meetings, Lord furnished DeMarco with a copy of her job description and asked her to
find out if she (Lord) would be eligible for union representation. DeMarco reported to Lord that
she had checked with Corey, who informed DeMarco that Lord “would be a candidate for the
group.”
At this meeting about 6 or 7 employees were present, including Karchere and Lord. Luke
Collins was present for the Union. He discussed what the Union could do for the employees.
Some employees mentioned that they wanted protection, and Collins passed out another
petition to sign. Karchere had already signed the petition on September 11, so she did not sign
again on September 22. All the other employees present signed the petition, including Lord,
who did so because she had now been informed by the Union through DeMarco that she would
be eligible for representation.
Also present at this meeting was Gay Marie Kuznir, who was Lord’s assistant.8 Lord did
not encourage or indeed say anything to Kuznir about either attending the meeting or signing
the petition. Kuznir signed the petition before Lord did, but clearly observed that Lord signed the
petition as well. Indeed, it is undisputed that at both meetings, employees observed Karchere
and Lord signing the petition for union representation.
On or about September 18, Lord telephone Nancy Patterson, who was, as related
above, the district manager at Respondent’s Waterford facility. Lord informed Patterson that
employees at Newington were very unhappy, that employees were not allowed to talk to each
other and had various other issues with management. Lord added that the employees at
Newington had met with a union representative to discuss their concerns and asked Patterson
to let her know if any of the employees at Waterford were interested in attending such a
meeting. Lord also informed Patterson that other Newington employees, such as Karchere,9

7 The petition filed by the Union on October 21 sought a unit, including all full-time and
regular part-time employees, excluding the president, CFO, public relations representatives,
district managers, assistant district managers, executive assistant to the president and
administrative assistant to the president.
8 The precise relationship between Lord and Kuznir will be detailed below.
9 Lord also told Patterson that former employee DeMarco was also involved in the union
campaign.
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would be willing to attend such a meeting with a union representative in the Waterford area and
at such a meeting employees would be asked to sign a petition in order to eventually have a
“union vote.” Finally, Lord assured Patterson that the meeting would be off-property, so if the
employees signed the petition their jobs would be safe. Patterson responded that she would let
Lord know if any of the employees at Waterford were interested.
Immediately after that call, Patterson spoke individually to each member of her staff,
including the assistant district manager, Brandon Guy.10 Patterson told each employee that she
had just received a call from Lord, who informed her that there were a lot of disgruntled and
agitated people at Newington and that they had met with a union representative. Patterson
added that Lord had asked her to find out if any of the Waterford employees were interested in
attending such a meeting. Patterson asked each employee how they felt about it. Each of the
Waterford employees responded to Patterson’s inquiries that they were not interested in
attending such a meeting, that they were very happy working for Respondent and added, “Why
don’t they leave us alone?”
A few days later, Lord called Waterford and asked to speak to Patterson. She was not
there, so Lord spoke to Assistant Manager Guy. Lord asked Guy if any of the Waterford
employees were interested in meeting with the Newington employees and the Union. Guy
replied “No.” Lord perceived that Guy was uncomfortable talking to her about the subject and
the conversation ended.
A few days prior to September 25, Lord called Patterson at home in the evening. Lord
asked Patterson if she had spoken to employees about meeting with the Union and the
Newington employees. Patterson replied that she had done so and that the employees at
Waterford “wanted no part of the Union.” At that time, Patterson’s husband was home and
overheard the conversation between Lord and Patterson. After the conversation ended,
Patterson’s husband, who had been a union member for 30 days, told her that it was illegal for
management employees to become involved with the Union. He suggested that Patterson
inform Johnston immediately about Lord’s call. However, she did not do so at that time.
On or about September 25, Karchere telephoned Patterson. Karchere reiterated what
Lord had told Patterson about having a meeting with union representatives and the Newington
employees. Karchere gave Patterson her cell phone number and asked Patterson to give the
cell phone number to the Waterford employees and to tell them that if they were interested in
such a meeting to call Karchere. Patterson agreed to pass out Karchere’s number. She offered
it to her employees and told them about Karchere’s call. Most of her staff did not even take the
number or took it and threw it away. According to Patterson, a day or so later, Guy informed her
that Karchere had called Guy at the facility and asked Guy if the employees had been given her
cell phone number since nobody had called her.11
V. Respondent’s Reaction to the Union’s Campaign

10 As noted above, the Excelsior list included 8 names for the Waterford facility.
11 My findings with respect to the conversations between Lord, Karchere and Patterson are
based on a compilation of the credible portions of the testimony of Patterson, Karchere and
Lord. While I found Patterson’s testimony to be generally reliable and believable, she was
uncertain concerning dates. To the extent that she testified that she informed Johnston about
her calls from Lord and Karchere shortly after her husband told her to do so, I do not credit that
testimony. Rather as more fully explained below, I find that she did not so inform Johnston until
sometime in November.
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As noted above, the Union filed its petition on October 21. Shortly after the petition was
filed, Respondent’s attorney, Brian Clemow, spoke with Johnston. Johnston informed Clemow
that the petition was “all news to him” and that he (Johnston) had “no clue about any of this.”
Clemow answered that this is not a good sign. Clemow informed Johnston that he couldn’t ask
rank and file employees about their union activities, but he could ask supervisors what they
heard and to keep their ears open. Clemow suggested that Johnston check with Respondent’s
managers and supervisors and ask if they heard anything (about the Union).
On October 23, Johnston conducted a meeting of various individuals, including Wright,
Gasecki, Marzano, Draper, Melissa Zaluski12 and Team Leaders Kitty Baker and Elizabeth
Clavette and Lord. Karchere was not present.
Johnston informed the participants at the meeting that Respondent had received a
petition for a union election and that he was surprised. He added that he had not had any
indication and had not seen it coming. Johnston said that Respondent did not believe that a
union would be beneficial to the employees or the pets, that this would be management’s stance
and that those present would be expected to back that up and support that position. Johnston
asked if anyone at the meeting had heard anything about the Union. No one answered that they
had heard anything. Johnston added that if anyone there heard anyone talking about the Union,
they should give their names to Marzano. Johnston then informed those present that there
would be a meeting with a lawyer the following week to discuss the matter further. Lord
informed Johnston that she would be on vacation the following week and would not be able to
attend the meeting with the lawyer. Johnston responded that that was okay.
On October 27, a meeting was conducted by Clemow and Johnston at the Newington
facility. In addition to the individuals present at the October 23 meeting, the participants included
Karchere and Patterson.13 Clemow began the meeting by stating that this was a meeting for
members of management and that if anyone was not comfortable in that role or did not want to
be in the room, they could leave. Karchere did not leave. According to her testimony, it was
because she was scared or afraid of retaliation from Johnston.
Clemow went over with the participants what they can and cannot legally do with regard
to the union campaign and handed out a document entitled, “Quick Reference for Supervisors.”
It reads as follows:
QUICK REFERENCE FOR SUPERVISORS
Brian Clemow
Shipman & Goodwin
You Cannot
1. Promise increases in wages or benefits or improvements in
working conditions if the union is voted out.
2. Tell employees that Connecticut Humane Society won’t agree
to any of the union demands.
3. Ask employees as to their grievances or complaints, or suggest

12 Zaluski was Respondent’s volunteer director.
13 As noted above, Lord was not present because she was on vacation.
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they come to you with their problems rather than the union.
4. Question employees as to their feelings about the union, or
eavesdrop on discussions about the union.
5. Discriminate against union sympathizers by harassment or
undesirable work assignments.
6. Force employees into one-on-one discussions about the union.
7. Misrepresent facts about the union (such as the amount of their
dues, rumors about their officers, etc.)
8. Threaten employees with loss of their jobs if the union wins the
election.
9. Tell employees that if the union wins the election, a strike in
inevitable.
10. Force an employee to vote, or restrain him from voting.
You Can
1. Remind employees of existing benefits and compare them with
benefits in other organizations, both union and non-union.
2. Tell them the union can’t get them anything unless Connecticut
Humane Society agrees to it.
3. Remind them that the Connecticut Humane Society has always
had an “open door” policy and tell them you think most problems
have been worked out satisfactorily without a union.
4. Listen to unsolicited comments or complaints, and report them
to senior management without making any problems.
5. Enforce firm and fair discipline for violating the Connecticut
Humane Society rules (such as discussing union business on
working time).
6. Express your views to individuals or groups of employees.
7. Pass on any factual information you have about this union or
unions in general.
8. Remind employees that the union cannot guarantee them
employment; only the Connecticut Humane Society can do that.
9. Remind employees that strikes do happen, and can cause
employees to lose their jobs if the Connecticut Humane Society is
forced to hire replacements for striking employees.
10. Encourage all employees to vote, and express your hope that
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they will vote “no”.
Summary: In general, you cannot promise employees
improvements in benefits or working conditions to encourage them
to vote against the union, or threaten employees with loss of
benefits if they vote for the union. You can always relate facts that
are pertinent to the union campaign, and you can always express
your personal opinion, or the position of the Connecticut Humane
Society, on workplace issues. You cannot change your policies or
discriminate against union sympathizers, but you can always limit
union campaigning to non-working time and non-working areas.
On November 2, the representation hearing was scheduled at the Regional Office. The
Board agent assigned to the case conducted a sort of “shuttle diplomacy” between the Union
and Respondent in order to facilitate the parties’ agreement on the election and unit issues. In
fact, Johnston and Clemow never even saw or spoke to Corey, who was present at the Region
on behalf of the Union on that day.
There were three primary issues that needed to be resolved before the parties could
agree to an election. Respondent wanted to include the employees employed by the Fox Clinic,
while the Union wanted these employees excluded from the unit. Conversely, the Union wanted
to include the team leaders in the unit while Respondent contended that these individuals were
supervisory and should be excluded. Finally, the Union sought to include both Karchere and
Lord in the unit. Respondent contended that Lord and Karchere were both managers and
supervisors and should be excluded.
After several hours of “shuttle diplomacy,” an agreement was obtained for an election to
be held on December 4 in a unit which specifically included employees employed at the Fox
Clinic.14 The unit excluded various classifications and excluded others, including office clerical
employees, managerial employees and supervisors.
According to Clemow, the Board agent reported to him that the Union agreed that the
team leaders were supervisors and would not be included in the unit. I do note that the unit
agreed upon makes no reference to team leaders.
The Board agent also informed Clemow that both Karchere and Lord would not be
eligible to vote in the election, but she did not tell Clemow that the Union had agreed with
Respondent’s position that Karchere and Lord were supervisors or managers. In this regard, I
note that the job titles of Karchere and Lord were not specifically included or excluded in the unit
description.
After the stipulated election agreement was executed, both Karchere and Lord had
conversations with Corey during which he informed them that due to Respondent’s insistence
the Union had agreed that they would not be eligible to vote in the election, but that the Union
hoped that they could be part of a separate clerical or administrative unit in the future.15

14 While the “Fox Clinic” is not mentioned in the unit description, the “Memorial Clinic” is
referred to, which is the Fox Clinic.
15 In that connection, none of the employees, who worked on the second floor with Karchere
or Lord, were included in the unit, which did specifically exclude office clericals. The Excelsior
list submitted by Respondent did not include any of the employees working on the second floor,
Continued
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Two days later, on November 4, Gasecki asked Karchere to come into a small
conference room. Gasecki asked Karchere if she had heard anything about the union activity or
knew what was going on with that or “what situations might have provoked it.” Karchere testified
that the questions made her uncomfortable, but she responded that “Company policy always
changed. It was never consistent and the staff was very upset about it. Whatever Richard
wanted, happened.” She added that these were the reasons why the employees decided to
unionize. Gasecki replied that this was “good to know” and instructed Karchere that if she heard
anything to let him know.
On November 6, both Karchere and Lord were separately called into a meeting in a
small conference room. Present were Johnston, Gasecki and Wright for Karchere’s meeting.
Johnston spoke, and Wright was writing notes while Johnston addressed Karchere. Johnston
informed Karchere that he considered her to be a manager and wanted to know what Karchere
had heard about the Union. She responded that employees were upset with company policies
such as benefit time being taken in proper increments. Johnston repeated that Karchere was a
manager, and he expected her to take that position and support management and to “report
anything” to him that she heard or saw. Karchere did not challenge Johnston’s assertion that
she was a manager because she was afraid she would lose her job if she did so. She added
that “You don’t disagree with him,” referring to Johnston.
Marzano was present at Lord’s meeting along with Johnston and Gasecki. Johnston
informed Lord that the Union had argued that she should be included in the group eligible to
vote in the election. He asked Lord if she knew why they would do that. Lord responded that she
had no idea why they would do that. Johnston told Lord that he was thinking of having some
employees speak at a general staff meeting about management’s position and asked Lord if she
would be comfortable speaking in that regard. She replied that she would be.
On November 12, Johnston conducted a staff meeting at Newington. He began by
stating that he had considered asking employees to speak about management’s position
concerning the Union, but decided against it and would give management’s position himself. He
then spoke for an hour about how he did not believe it was in the best interest of the employees
or the animals at the Connecticut Humane Society for a variety of reasons.
At some point in early November, Patterson participated in a conference call with
Johnston, Marzano and other supervisors. Johnston asked the participants on the call whether
any of them had hear anything about a union. Patterson, at that point, informed Johnston that
she had been contacted by Lord and Karchere and was asked by them to discuss with her staff
about a meeting with a union representative.
Shortly after this call, Johnston informed Clemow that he had just learned that Karchere
and Lord had called Patterson about setting-up a meeting with her staff and the Union. Clemow
replied that this explains why the Union was so anxious to have Lord and Karchere included in
the bargaining unit when the parties had met on November 2. Johnston asked Clemow what his
options were. Clemow replied that based on their previous discussion, he believed that Lord and
Karchere were supervisors or managers, and that Respondent therefore had the right to
terminate them. However, Clemow added the downside of the action was that Respondent
would lose two key management members and there was also a risk that Karchere and Lord
were key players in the organizing campaign that they would become martyrs in the eyes of the
_________________________
including Karchere, Lord and Lord’s assistant, Kuznir or the team leaders.
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rank and file workers and engender sympathy for the pro-union efforts. Clemow also added that
if they were not terminated and the Union won the election, Respondent would have to conduct
collective bargaining while having two key management players closely affiliated with the Union.
Accordingly, Clemow recommended that Respondent not terminate Lord or Karchere at
that time, but should speak to the employees about the matter. He urged Johnston to inform
Lord and Karchere that Respondent knew that they were involved in union organizing, that it
was inappropriate for them to do that and to urge them to stop any pro-union activities. Clemow
also recommended that Johnston suggest that Lord and Karchere do anything they can to
neutralize the damage they might have done and that Respondent would take some time to
decide what action to take.
Johnston agreed to accept Clemow’s advice. Thus, on November 13, Johnston met
separately with Lord and Karchere in a large conference room. Present, in addition to Johnston,
were Marzano and Gasecki. Johnston asked Karchere if she had listened to what he had said in
their earlier conversation about supporting management’s position with regard to the Union.
Karchere replied that she did and that she was to support management’s position that the Union
did not belong at CHS and that she should report anything back to Respondent that she heard.
Johnston replied, “Good, glad to know,” but added that he had been told by a “reliable source”
that she had been involved in union organizing activities. Karchere asked who and what was
said about her. Johnston refused to tell Karchere his “source” or what had been reported to him
about her activities. Since she was fearful of Johnston, Karchere denied engaging in any union
organizing. Johnston instructed Karchere to cease immediately any involvement with the Union,
that she should report anything to him that she hears and that she should try to achieve a
reversal of the impact made by her union activity.
Johnston also informed Karchere that he would not be making any decision about any
disciplinary action until after his return from a vacation. However, the success that Karchere had
in reversing the disloyal impact on co-workers may be involved in Respondent’s final disciplinary
decision.
Johnston started the conversation with Lord by asking if she knew Respondent’s position
in relation to the Union. She said that she did and was able to state such a position. Johnston
told Lord that he had a credible source that Lord had been involved in supporting the Union. He
asked for her response. Lord replied that she was uncomfortable continuing this discussion.
Johnston ordered Lord to immediately cease any actions in supporting union activity and urged
her to take steps to reverse her position on the issue. Johnston added that any disciplinary
action would be based on Lord’s success in reversing her support of the Union. Lord asked if
there was anything specific that he would like her to do to reverse her position. Johnston replied
that that was entirely up to her. Johnston added that he was cancelling an educational
conference trip that he had previously planned for Lord to attend.
During the course of the election campaign, Respondent issued four documents
concerning the Union and the election to all employees. They were not signed, but were
prepared by Johnston and were from the Connecticut Humane Society. They are as follows:
November 9, 2009
Bridget Karchere
27 Bohemia Street
Plainville, CT 06062
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Dear Bridget:
I am writing to bring you up to date on recent developments
affecting you and every other employee of the Connecticut
Humane Society. A few weeks ago, the Machinists Union filed a
petition with the National Labor Relations Board (NLRB) seeking
to represent certain employees at each of our facilities around the
state. The Machinists union is a labor organization that represents
industrial workers at places such as Pratt & Whitney Aircraft and
Electric Boat.
Following a meeting at the NLRB’s office in Hartford on Monday,
the following arrangements for a secret ballot election, in which
eligible employees can vote for or against union representation,
have been established:
Eligible Voters
Employees in the following job categories that will be eligible to
vote in the election: Veterinary Technicians, Veterinary Assistants,
Animal Care workers, and Receptionists (Customer Care
workers). All other categories, such as Team Leaders, Assistant
Managers and Mangers, Assistant Director and Directors, and
Administrative/Clerical workers and other supervisors are
excluded.
Election Date and Times
The election will take place on Friday, December 4, 2009. Voting
will occur at our Newington, Waterford and Westport facilities.
Those assigned to the PetSmart store will vote in Waterford, and
those working in the Fox Clinic will vote next door in the main
building. Voting will take place between 9:30 a.m. and 10:00 a.m.
in the garage of the Waterford facility, between 10:30 a.m. and
11:00 a.m. in the break room of the Westport facility, and between
noon and 1:30 p.m. in the dog training room of the Newington
facility. Eligible employees will be released to vote during those
hours.
In the coming weeks, we will be addressing issues we believe you
should be considering in connection with this union-organizing
effort. However, you should understand from the outset that the
Connecticut Humane Society does not believe that employees
need a union to represent them, and is convinced that a unionized
workforce would negatively impact our ability to help animals,
work with volunteers, and our almost 130 year old mission.
Finally, while we understand there may be strong feelings on both
sides of this issue, we cannot allow the union election process to
interfere with our important work. Employees should not engage in
union activity or discuss union issues during working time, or in
areas to which members of the public have access. Nobody
should feel pressured to listen to union sales pitches or to take
sides in this debate.
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If you have any questions, please do not hesitate to ask.
November 19, 2009
Bridget Karchere
27 Bohemia Street
Plainville, CT 06062
Dear Bridget:
During the 50th year of the Connecticut Humane Society (1931)
the state and the nation were suffering from the effects of the
Great Depression. Unemployment was 15 million people or 30%
of the work force and the economy was in shambles.
In the minutes of the Connecticut Humane Society Annual report
for 1931 was written “We extend out sincere thanks to our many
dedicated employees in pursuit of our mission. We also give our
profound gratitude to the many contributors who have donated to
our Society. For many years the contributors have donated to our
cause at a considerable sacrifice to themselves during this time of
Great Depression. They have given to us for our work and for the
principles and ideals for which we stand.”
During the exceedingly difficult time of the Great Depression, the
employees of the Connecticut Humane Society did not turn to
outsiders who represented unions. During these years the union
concept was popular, but our employees stayed union free.
And, please remember that the Connecticut Humane Society
relies on the generosity of donors. The last thing donors want to
hear during this time of the Great Recession (2009/2010) is that
their dollars are going to pay union dues, or fund inefficiencies
caused by the union work rules.
Thank you for your continued dedication to our mission and the
pets.
We wish you a Happy Thanksgiving!
November 27, 2009
Bridget Karchere
27 Bohemia Street
Plainville, CT 06062
Dear Bridget:
We worry that our employees do not understand the complexity of
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the union issue. It is a difficult issue for anyone who has not been
associated with a collective bargaining unit to sort out.
We do want our employees to understand that only 8% of the
companies out there have a union. That tells you something right
away. Again, we are not anti-union but we do not feel that
involving a union that represents machinists in our decision
making would benefit the pets we serve, the public that comes
here, or the contributors that support us.
Also, please remember that a union cannot guarantee the results
of negotiating a collective bargaining contract. In contract
negotiations, everything is on the table, including the benefits you
now have. Principal among those benefits is your health
insurance, the premium cost for which is significantly subsidized
by your nearly 130 year-old Society. In our opinion, the benefits
you currently receive are far more generous than that of other
companies.
Finally, please remember that the only leverage a union has is the
threat of a strike. If the union calls a strike you may have no
reasonable choice but to join it. If that happens, you can be
without wages, without health insurance, or you other benefits for
weeks, or months, or longer. Some employees could even find
themselves without a job when the strike is over. You can be sure
that doesn’t happen by voting “no” on December 4.
Thank you for your continued service to our mission and the pets.
December 1, 2009
Bridget Karchere
27 Bohemia Street
Plainville, CT 06062
Dear Bridget:
We worry that our employees do not understand that a union can
promise anything they want in the weeks and days leading up to
the election while we are prohibited from promising anything.
After the election, the union can only deliver what your 130 year-
old union free Society is willing to agree to. The union will call their
negotiating “proposals” but they amount only to requests. Of
course, these requests will be made under a threat of strike.
Please remember that even if you signed a union card you can
still vote to remain union free on December 4th. This is a secret
ballot election and nobody will know how you voted.
And, most importantly, please remember the union election will be
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decided by a majority of those voting. So if you don’t vote you will
be letting others decide your future and fate for you.
This will be one of the most important choices you will make for
yourself.
So please vote, and we hope you will vote “no”!
Thank you for your continued dedication to our mission and the
pets.
On December 2, Johnston met with employees from both Newington and Westport in a
large conference room. There were from 20-30 employees present. Johnston told the
employees once again that Respondent believed that a union would not be beneficial to the
employees or the animals of the Connecticut Humane Society. Lord testified that Johnston
reminded employees that nothing was guaranteed in a contract and that everything was up for
negotiation, including benefits that the employees had, and those could all change. Karchere’s
testimony on this issue was similar, but slightly different. She asserts that Johnston said that
benefits were up for grabs, that the employees had a very generous package and if the Union
got involved, those benefits would be up for grabs.
Both Karchere and Lord recall that Johnston had set-up a display in the front of the
room. On one side, there was a trash barrel with sticks coming out of it with an “on strike” sign.
On the other side of the room, there was a photograph of Respondent’s employees helping out
with animals during Hurricane Katrina with an American flag behind it. According to Lord,
Johnston commented, pointing to the photograph, that this is a picture of what the Connecticut
Humane Society is now and this over here, pointing to the trash barrel, is what could happen
with a union.
Karchere’s version of what Johnston said about the display was significantly different
from Lord’s. Karchere testified that Johnston said that he believed that the company wouldn’t
agree and if the company and the Union didn’t agree, then the employees would have to strike
and the animals would not be cared for. Karchere adds that Johnston pointed to the two
displays and told the employees that they could choose this (the strike barrel) or this (CHS with
the American flag).
Johnston did not testify.16 Respondent did not call any witnesses, who were present at
this meeting. The record does not reflect whether Marzano, Gasecki or any other supervisors of
Respondent were present at this meeting.
However, Clemow testified that he discussed with Johnston about giving speeches to
Respondent’s employees and what Johnston could and could not say. Clemow informed
Johnston that when discussing strikes, he could point out that strikes are a possibility if
negotiations do not go well, but that he couldn’t say that strikes would be inevitable or were
certain to happen. Johnston prepared written “talking points” that he intended to use in his
speeches to employees. Clemow reviewed two drafts of these points, made some changes and
finally was sent a final draft of talking points that Johnston intended to use during speeches on
November 12 and thereafter. These talking points, after final review by Clemow, read as follows:

16 The record establishes that Johnston was no longer employed by Respondent at the time
of the trial.
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Union Issue: Staff Discussion Points:
1. Antithetical to CHS Mission…………CHS not anti-union and no
doubt that unions play some role in the only 8% of civilian
companies out there ……….but the Machinists union has no real
connection to animal care and have represented Pratt & Whitney
and Electric Boat where many jobs have been lost;
Of course, they will try to convince you that you need them, that
you are powerless without them……..and if some of you decide
you don’t want a union you will have to pay union dues
anyway…….a reduction on your wages;
2. Union is a business whose principal business purpose is to
make money through the collection of dues……….they have no
power to promise or guarantee your job….or even your current
benefits…….they certainly don’t have any interest in our 130 year
old mission;
3. We currently have excellent benefits that many companies no
longer offer: 10% cost on health care, sick time and sale of
unused amount, 401 (k) benefit, pension, snow days, the day off
for Veteran’s Day…… (God Bless our veterans); if a union is
brought in as an outsider and made part of the decision making,
all current benefits, wages and applicable policies are ON THE
TABLE.
4. Will hurt services to pets;
5. Will hurt use of volunteers;
6. Will hurt disaster response;
7. Hurts doing the right thing and presuming good faith as it
includes an outside union business in decision making.
8. Unions cannot guarantee or promise changes in business
conditions or benefits but can only negotiate. A STRIKE with a
worker walkout is the principal leverage…….while on strike the
workers earn no wages;
9. A strike takes workers away from caring for the animals and
causes disruption of medical services to animals……….harm to
reputation and business mission about serving animals;
10. Your choice……associate with outsiders that emphasize
secrecy, anonymous complaints and the exclusion of employees
and have a union speak for you……….AND REMEMBER THEY
CANNOT GUARANTEE THE RESULTS OF COLLECTIVE
BARGAINING, YOUR JOB OR THE BENEFITS YOU NOW
HAVE…………or continue a 130 year tradition of managing what’s
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in the best interest of the pets…….the staff…….the public we
serve, and operating with good faith and positiveness with an
emphasis on open dialogue;
11. No evidence of widespread motivating factors exist in
performance reviews, surveys or documents, or in discussions at
weekly and monthly business meetings. No one going to
President or other manager about concerns to discuss in a good
faith effort what the issues are………..apparently, discussion of
issues is held by secret groups and provocative workers
statements…….ALTHOUGH I CAN’T DO ANYTHING ABOUT
THESE ISSUES RIGHT NOW.
12. It would be much more positive if issues had been brought to
my attention for an OPEN DIALOGUE that may have resulted in
addressing the issues (can’t remedy these now BECAUSE OF
LABOR LAWS);
Instead the opposite of open dialogue has occurred recently: The
best example……..anonymous complaint to OSHA regarding the
use of bleach to kill distemper and parvo germs whose aim was to
embarrass the company and its dedicated staff……….surprise
investigation…….disruption and confusion among the staff;
Another example: rumor mongering about the spending $400
instead of $1200 (75% discount) for a barn item replacement. By
comparison, the CHS has spent in excess of $10 million on pet
shelters, state of the art medical equipment, cat condo’s and a
hospital to serve animals……….to give you and the pets the best
facilities; a REGULAR program of maintenance to ratify public’s
trust, and yours, in our facilities…….ALL DONE WITH
DISCOUNTS AND GIFTS BY PEOPLE WHO KNOW WE
DEPEND ON THEM now future projects will be impacted by the
union issue………regional shelters and pet hospital………….what
will the public think about making contributions to a union related
workforce that has an effect on our MISSION?:
Another example: provocative remarks about members of our staff
designed to mislead and create upset between managers and
workers CREATING A WEDGE by sponsoring an atmosphere that
breeds negativity, stating lies and using profanity and words such
as “crack-whores” and questioning our approach concerning the
presumption of innocence and acting with due process and good
faith about an individual fighting for her home………;THEIR
APPROACH is better?..........thank you, but I’d rather be positive
and presume good faith and give each employee their
rights………based on 130 years of doing the right thing……..not
based secret conversations from outsider;
13. Those that worked by my side during Hurricanes Katrina and
Rita know in their hearts the best of what the Ct Humane Society
is and that those days are now in jeopardy………OUTSIDERS
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and the people who weren’t there think they know
better………that they will define for us our disaster response will
be……..and what volunteers can go……what employees can
go……what our 130 year old mission should now be;
14. Let me give you example of a recent local disaster over in
Farmington: The continuing union difficulties and strikes involving
the American Red Cross as reported in the newspaper is an
example of a non-profit’s mission suffering as a result of union
turmoil. Recent action involving a union resulted in a complaint to
the Department of Public Health about who should be collecting
blood which ultimately resulted in 22 people being laid off (19
WERE UNION MEMBERS),………the reputation, the mission, and
the patients and public will suffer because less blood will be
collected blood……….BY THE WAY PLEASE TELL ME HOW
THE UNION MEMBERS BENEFITED FROM THIS;
15. Your choice ladies and gentlemen the continuation of a 130
year mission and reputation for doing the right thing……….OR
BRINGING IN OUTSIDERS WHOSE PRINCIPAL INTEREST IS
MONEY…………..not you, the animals, the volunteers, the
mission or the public. Your choice on December 4th.
Thank you for your service to the animals.
Richard Johnston
November 12, 2009 and subsequent meetings hereafter
As noted above the election took place as scheduled on December 4. Neither Lord nor
Karchere voted or attempted to vote.
As also noted, Respondent filed timely Objections to the Election based primarily on the
conduct of Karchere and Lord in organizing for the Union. Respondent obtained a written
statement from Patterson, dated December 16, in support of its objections, wherein she
recounted her version of the discussions with Lord and Karchere concerning union meetings, as
recounted above.
On December 18, Lord and Karchere were told to report to the boardroom. Lord entered
the room first. Gasecki and Marzano were present. Gasecki informed Lord that Respondent was
terminating her employment because of her support for the Union and that the trust that
Respondent had for her was damaged beyond repair.
Lord left the boardroom and was escorted out of the building by Wright. Karchere was
then called into the room. Gasecki told Karchere that she was involved in union organizing
activities, so she could longer be trusted by Respondent. Therefore, she was terminated.
Karchere was also escorted out of the building and told to get off the property.
VI. The Status of Karchere and Lord
A. Karchere
Karchere was hired on October 12, 2008 and her job title was “Finance Assistant.” She
worked at the Newington facility in a cubicle next to Lord and Lynette Watt-Gibson, the accounts
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payable clerk. Karchere reported directly to Gasecki, the CFO. She was paid a salary of
$40,000 per year and received a $1000 signing bonus when she was hired. At that time,
Karchere was given a “Position Description,” which reads as follows:
POSITION DESCRIPTION
Position Title Finance Assistant
Reports To Chief Financial Officer, Connecticut
Humane Society
Summary of Duties The incumbent is responsible for the
essential accuracy, timeliness of technical reliability of the General
Ledger and subsidiary Journals for the Connecticut Humane
Society and its subsidiary, The Fox Memorial Clinic with a strong
technical understanding of Not-for-Profit Accounting. This position
serves as the primary backup to the Chief Financial Officer and
will perform duties in this capacity that require competent and
complex presentations to the Board of Directors and/or other
professional groups and individuals.
Primary Duties and Responsibilities
ï‚· To perform the job successfully, the incumbent will be
required to demonstrate technical and accounting
competency to perform these essential functions, in
compliance with Company Policy and applicable law:
o Identity problems and resolve them in a timely way;
o Analysis, review and maintenance of general ledger
and subordinate journals is essential;
o Essential and thorough understanding of IRS Form
990;
o Creation and analysis of Balance Sheet, Income
Statement and Statement of Cash Flows and
analyzing information skillfully;
o Cash receipt processing, reconciliation, posting and
deposit, and administration;
o Perform Accounts Receivable duties including
creation of invoices and posting of payments
received;
o Primary responsibility for preparation and
confidentiality of ADP supported payroll including
entry of payroll data, rates and benefits changes
and statistical reports relating to payroll;
o Preparation of Sales & Use tax filing and related
filings;
o Understanding of intercompany transactions and
multi-corporation accounting environment,
budgeting and forecasting;
o Indentify, analyze and resolve budget variances in
a timely manner and analyzing information skillfully;
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o Assist in audit preparation, Fixed Asset lapsing
schedules and other required audit information;
o Preparation of bank statement reconciliations,
including posting of adjusting entries;
o Preparation of monthly statistical reports and
analysis of trends;
o Assist with Accounts Payable processing in
absence of A/P associate;
o Maintenance of Finance Department Policies &
Procedures Manual;
o Preparation of monthly employee benefit related
insurance invoices;
o Practice superior customer service within the
guidelines of the Company “WAAG” program found
in the Company’s Personnel Policies Handbook;
o Must speak clearly and persuasively in positive and
negative situations, and make skillful group
presentations and conduct productive meetings;
o Assist the CFO or President with any other task as
may be needed or assigned.
Education Required Bachelor of Science Degree, Accounting or
Finance, computer literacy.
Experience Required Minimum three to five years experience in
corporate accounting environment with excellent written, verbal
communication skills and the demonstrated ability to translate
financial data into management tools to evaluate the Company’s
fiscal and performance.
The majority of Karchere’s time while she was employed by Respondent consisted of
performing reconciliations and working on ledgers, payroll ledgers and bank accounts. She
would do cash receipt posting, which involved putting into the system what was processed for
the day with respect to money coming in.
Karchere performed at one time or another all of the functions in her position description
with four exceptions. Bullet point seven, which refers to primary responsibility for preparation of
payroll, including rates and benefit changes, was not performed by Karchere since she had
informed Marzano and Gasecki that there was to be no HR involvement in her job.
Bullet point eleven mentions preparation of “fixed asset lapsing schedules.” That area
was handled by Gasecki, and Karchere did not work on that area.
The fourth bullet point states the “creation and analysis of Balance Sheet, Income
Statement and Statements for Cash Flows and analyzing information skillfully.” Karchere
assisted Gasecki in these areas, but did not perform these functions independently.
While Respondent in its Answer and in its Objections asserts that Karchere is a
supervisor, that position seems to have been abandoned at the hearing and in its brief. This is
not surprising since Gasecki, Respondent’s witness, testified that Karchere did not supervise
anyone. In any event, no evidence was adduced that Karchere exercised any of the indicia of
supervisory responsibilities under Section 2(11) of the Act.
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Respondent does vigorously assert however that Karchere was a managerial employee
and did adduce evidence in support of that contention. Both Marzano and Gasecki testified that
Karchere was considered the primary back-up to CFO Gasecki. Indeed, her “position
description” so provides. Further, in an employee newsletter, an article appeared, prepared by
Marzano, announcing Karchere’s hire by Respondent. The article points out that in “conjunction
with her duties as Finance Assistant, Bridget will serve as the primary back-up to the Chief
Financial Officer.”
However, the record establishes that during her employment by Respondent, Karchere
was never designated as nor did she serve as acting CFO. When Gasecki was out of the office
on vacation or out sick, there was no change in Karchere’s responsibilities or functions. Indeed,
Gasecki admitted that he was not out much and was never sick. When he was out for small
vacations, he would leave a message on his voicemail that he would be out for a period of time
and if the caller had any questions to direct them to Karchere. In fact, Gasecki conceded that
during the brief times that he was out “nothing that was of such importance that, you know,
somebody had to step in and solve the problem right away.”
Karchere received a performance evaluation on May 6, 2009, prepared by Gasecki.
Page 3 of that document lists various “performance characteristics” and states that this section
is to be completed on those individuals who manage or supervise others. These categories
were not filled out for Karchere, and she received no ratings on these categories. In a section
entitled, Summary of Performance, Gasecki made several relevant comments. “Bridget appears
to be a dedicated employee, who is eager to learn and who cares about her job performance.
She assumed the responsibilities for the task of payroll in the first month of 2009 and has done
a good job learning the ADP system and the particulars of both the CHS and Fox businesses.”
On the next page of the evaluation entitled, Summary of Developments, Gasecki wrote:
“During the coming year, it is expected that Bridget will (a) work towards achieving knowledge
and experience that positions her as a true second to the CFO.”
In February 2009, Karchere recommended to Gasecki that Respondent change its
payroll system from a manual timecard system to an automated card system. Karchere had
experience with the automated system in her previous employment with ADP, the same vendor
that Respondent was already using with the manual system. Karchere researched and
evaluated systems and recommended that Respondent adopt a system called ADP Easy Labor
Manager to replace Respondent’s manual system. Karchere along with Marzano and Lord met
with representatives of ADP and obtained and negotiated cost figures for the system.
On February 20, Karchere wrote a memo to Gasecki (cc: to Marzano and Lord)
attaching a cost analysis of the system and stated that she, Lord and Marzano would be
meeting to assess the amount of time that the software would save the staff and to more
precisely gauge the benefits in implementing the program. Gasecki instructed Karchere to go
back and speak with ADP and see if she could obtain any reductions in price. Thus, Karchere,
Lord and Marzano again met with ADP representatives and did obtain some slight modifications
from the vendor. Lord, Marzano and Karchere discussed the issue among themselves, and they
all agreed that the system would be beneficial to Respondent and should be implemented.
Consequently, Karchere wrote a memo to Gasecki (cc: to Marzano and Lord) detailing
the reasons why Respondent should utilize the software in question. She attached the revised
copy of the cost analysis and concluded the memo as follows: “By reviewing the cost analysis
attached, it is clear that the implementation fee and monthly cost of this program is small in
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proportion to the value and time savings it generates. Because of the increase in accuracy and
efficiency associated with these components, I recommend the implementation of this
conversion with our current ADP payroll system.” Gasecki approved the recommendation, and
the system was ultimately implemented in June.
Karchere was also involved in the implementation and administration of the system
along with Lord. Karchere was responsible for communicating with supervisors and managers
with respect to implementing the system and reminding them to submit to her information
regarding employee time and attendance so she could pay the employee properly.17
Karchere also recommended to Gasecki the implementation of a tax credit program with
ADP in August. Gasecki agreed, but when Gasecki discussed it with Johnston, Johnston asked
what the tax credit was against. Upon further checking, it was ascertained that the tax credit for
Respondent would be against income taxes and not payroll taxes as both Karchere and
Gasecki had thought. Thus, there would be no benefit to Respondent since it is exempt from
federal taxes anyway. Therefore, this recommendation of Karchere was not implemented.
Respondent conducted weekly managers’ meetings every Monday. These meetings
were generally conducted by Gasecki and Marzano at the Newington facility. Present also were
Wright, Zaluski, Lord, Freeman, team leaders, at times, Suzanne Dunlap, executive assistant to
Johnston, and Karchere. Karchere stopped attending these meetings for some undisclosed
period of time because she was busy doing payroll, which was due on Tuesdays.
On February 3, 2009, Gasecki emailed Karchere that Johnston “thought that she should
start attending Monday managers’ meetings to further develop your knowledge of the
organization.” Karchere responded in an email, “Thank you for the heads-up.” Thereafter,
Karchere attended these meetings.
At the Monday meetings, various issues were discussed, such as animal data, building
and maintenance issues, what was going on in the press vis a vis Respondent and updating the
participants about ongoing projects. Personnel or HR issues were not discussed at these
meetings. Karchere’s role at these meetings would primarily be to provide updates on the
payroll system or animal statistics.
Respondent also conducted monthly management meetings at Newington, which
included the district managers and assistant district managers from Westport and Waterford
along with the same participants from the weekly meetings. Similar topics were discussed at
these meetings, such as shelter statistics, budget and financial issues, plus current projects and
events. Karchere attended approximately three of these monthly meetings.
At one of the weekly managers’ meetings attended by Karchere, she made a suggestion
that Respondent offer a discount for aged length of stay cats. The issue of how to move older
cats through the system was being discussed, and Gasecki indicated that Respondent should
focus on a program for older cats. Karchere indicated that in her view the focus should not be
the chronological age of the cat, but on how long the particular cat was in the system. Thus, she
argued that there are many reasons why a particularly cat might not be adopted, such as color,
size as well as age. Therefore, Karchere argued that Respondent should not focus on why a
particular cat not been adopted, but merely consider the amount of time that the cat has been in

17 Karchere had that same responsibility when Respondent utilized the manual time card
system.
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the system without being adopted. This argument of Karchere was convincing to Gasecki and
other managers present, and Gasecki asked Karchere to prepare a memo detailing her specific
proposal. Karchere prepared a memorandum setting forth the reasons for her recommendation
to offer a discount for cats, which had been in the system for 2-3 months and up. The memo
also included a cost analysis and her predications for cost savings if her proposal was adopted.
The memo and attachment is set forth below.
Memorandum
Date: July 1, 2009
To: Ray Gasecki
From: Bridget Karchere
Re: Reduced adoption fees for cats with an aged length of stay, 2-
3 months
Ray,
This memo is to address the proposed benefit of reducing the
adoption fees of cats in our system with an aged length of stay;
more specifically those who have been in the system for
approximately 2-3 months and up.
It is particularly important to institute this discount policy at this
point due to the increase in kitten population and feline availability
in general. All of the branches, Newington, Waterford, and
Westport are inundated with felines, and all are almost at
maximum capacity which in turn means having to turn adoptable
felines away.
In analyzing our shelter statistics I have come to the conclusion
that the average length of stay has increased drastically during
kitten season, more specifically the spring and summer months,
for adult cats. If we look at our current inventory in June and
compile and average length of stay based on these adoptable
adult cats versus an average length of stay from January 2009
through June 2009 we can see a drastic difference in numbers.
The average length of stay has soared 61% from a meager 19 day
average to a 77 day average of current inventory in June.
Also, sales of cats pale in comparison to the sales of kittens for
the month. Revenue reports pulled on June 29th 2009 reveal that
the sales of kittens are ahead of adult cats by 64%. Differences in
revenue show this dramatic variation as well; the tally for kitten
revenue is $28,200 for all districts with cats trailing behind at
$3,825.
I propose this reduction of fees to accomplish numerous results;
first being to move cats more promptly through our system. This
will increase revenue in a number of ways and be in keeping with
our mission statement. We will be benefitting animals by finding
them good homes sooner. And, we will provide the general
population with a means to adopt a wonderful needy pet at a low
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cost.
Secondly, by reducing our fees on these aged stay felines we will
increase our revenue stream by being able to take in new
adoptable felines. This will in turn bring in a surrender fee and
eventually an adoption fee on these new animals. If a cat on
average stays 19 days in our system, by clearing out the cats that
are stagnant in the system, approximately 77 days, we will have
opened up the possibility to potentially place three more felines
through our system per one aged stay cat. The potential
implications of this throughput on revenue are tremendous; our
revenue stream could potentially go from $4,800 to approximately
$14,400 for adoption fees on the extra animal intake versus the
stagnant population based on our current figures.
It is obvious that our surrender revenue would also increase; if we
are taking in more animals per cage we will clearly be bringing
[sic] in more surrender fees.
A great number of other humane societies and the ASPCA
discount adult felines during kitten season. It seems this is a
seasonal theme that these shelters replicate each year. They
introduce new promotional themes to highlight the reduced cost of
free cat adoptions. Some of the humane societies who have
instituted this discount offer include: Nebraska; Nodaway County,
Missouri; Springfield, Vermont; Oregon; Michigan; and Kandiyohi
County, Minnesota.
It is with these factors in mind that I ask you to consider a
reduction in adoption fees for aged stay cats. Please see the
attached materials for reference on these figures and
approximations.
Thank you,
Bridget Karchere
Cat & Kitten Adoptions
CATS KITTENS TOTAL #VARIANCE %VARIANCE
Jan-09 192 206 398 14 4%
Jun-09 52 239 291 187 64%
244 445 689 201 68%
Length of Stay-Cats
Avg LOS Avg LOS
In Days In Days
Jan 09-Jun 09 Current Inventory # Variance % Variance
19 77 58 61%
Adoption Revenue Comparison
Current Adoption Proposed Proposed
Inventory Revenue Additional Revenue
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Aged Stay Current Intake Current
Felines Fee Fee
64 $4,800.00 192 $14,400.00
Implications of Proposed Adoption Fee Reduction
Current Adoption Discounted Proposed
Inventory Fee Adoption Revenue
Aged Stay Proposed Fee Aged
Felines Discount Felines
64 50% $37.50 $2,400.00
Proposed Current Adoption Total
Additional Adoption Revenue Adoption
Intake Fee New Intake Revenue
192 $75.00 $14,400.00 $16,800.00
This proposal of Karchere was approved and adopted by Respondent and proved to be
quite successful as Karchere had predicted.18
In early October, Karchere was assigned to prepare the 2010 budget for the Fox Clinic
and present the budget to the Fox Clinic Board. In that connection, Gasecki sent an email,
dated October 9, to Freeman, the district manager of the Fox Clinic, requesting her budget
estimates by October 16. The email also reflects that “Richard has asked that Bridget prepare
the Fox budget this year, so she is working on it & I am assisting her.”
Between October and December, Karchere received a template from Gasecki of the
2009 Fox Clinic Budget as well as a rent calculation spreadsheet used by Gasecki in
preparation for the 2008 budget. Karchere subsequently received from Freeman her estimates
of increases or decreases in revenues and sales and discussed these numbers with Gasecki.
Gasecki suggested to Karchere the percentages of increases in the budget. As Karchere
credibly testified concerning her role in the process, “I took Joanne’s numbers, Ray helped me
with the percentages and I plugged Joanne’s numbers in Ray’s percentages, checked the
formulas, formatted the sheet and then checked the totals at the end to make sure that they
were accurate with the formula.” She further asserted, “I got the figures and then I basically just
has to make sure that – I did like the grunt work, formulas, formatting and plugging it in and just
checking all those formulas.”
She consulted regularly with Gasecki and finally prepared a document dated 2010
Budget Assumptions and sent it to Gasecki. Since Karchere was terminated a week later,
Gasecki prepared the actual budget based on the document submitted by Karchere. Although
Karchere had previously been informed that she would be presenting to and discussing the
budget with the Fox Clinic Board, this did not occur since Karchere was terminated prior to the
Board meeting. Consequently, Gasecki presented the budget to the Board of Directors.
My findings with respect to Karchere’s role in connection with the preparation of the Fox
Clinic budget are based on a compilation of the credited portions of the testimony of Karchere

18 While Karchere’s job responsibilities did not encompass animal care, she was interested
in animal care issues. Indeed, she volunteered to walk animals during her lunch hour, and in
fact had adopted herself several animals from Respondent prior to her employment. Indeed,
one of the reasons for her accepting of the job at Respondent was her love of animals.
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and Gasecki as well as documentary evidence. To the extent that there is discrepancy between
the testimony of Gasecki and Karchere concerning how much judgment and independence
Karchere demonstrated in this process and how extensively Gasecki was involved, I credit
Karchere’s version of the events in question. I found her more detailed and credible testimony to
be more persuasive than the vague, conclusionary, self-serving and unconvincing testimony of
Gasecki concerning this issue. I note that when asked if he had directed Karchere as what
percentage changes to include, he equivocally responded, “I don’t recall that I did that.” Thus,
he did not deny that he had done so, and then he added that he might have sent Karchere
information on what he was doing on the CHS budget. Later on in his testimony, Gasecki
conceded that there might have been two or three times that Karchere came to him with
questions with regard to percentage increases and “I would give her advice on them.”
Further, the emails submitted by Respondent confirm extensive collaboration between
Gasecki and Karchere concerning the preparation of the Fox Clinic budget. Thus, his testimony
that “I had very little involvement” in the preparation of the budget is inaccurate.
Further, Respondent failed to call Freeman as a witness to dispute Karchere’s testimony
that she simply “plugged in” Freeman’s estimates of increases or decreases in revenues and
sales in the preparation of the budget assumptions. The failure to call Freeman, an admitted
supervisor, as a witness leads to an adverse inference, which I find it appropriate to draw, that
Freeman’s testimony would not have supported Respondent’s version of the events in question.
International Automated Machines, 285 NLRB 1122, 1123 (1987).
B. Lord
Lord began her employment with Respondent as an administrative assistant to President
Johnston and was promoted to the position of “manager of development technology” on August
6, 2001. She worked at the Newington facility on the second floor in a cubicle next to Karchere
and Lynne Watt-Gibson, accounts payable clerk. Lord reported to Gasecki as did Karchere and
Watt-Gibson.
The “Position Description” for Lord’s job is as follows:
Summary of Duties
The incumbent has the overall responsibility for managing
information systems and databases for the entire organization,
including the management of any related third party relationships.
In general, this position determines the needs of the user
community and provides the systems to meet those needs,
supports public relations, Internet and mail fundraising and
operations and acts as a liaison between management, board,
staff and vendors. Additionally, the incumbent will manage the
Newington reception staff and their involvement in providing data
entry support for the animal tracking system, Shelter Buddy.
Primary Duties and Responsibilities
ï‚· Evaluate use of technology in the organization and
recommend improvements in technology (hardware and
software upgrades)
ï‚· Manage computer database back-up and security systems
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ï‚· Develop and maintain a disaster recovery plan
ï‚· Stay abreast of advances in technology and inform
management in writing about these advances
ï‚· Manage, maintain and troubleshoot computer operations
on a day-to-day basis
ï‚· Oversee communications network with outside support
vendors
ï‚· Provide management of the animal tracking system and
the related vendor relationship, including training and the
ongoing development of its applications for CHS
ï‚· Oversee CHS and Fox Clinic website development with
outside provider and manage daily maintenance to notify
Public Relations of necessary content and graphics
changes
ï‚· Oversee and support all other facility technology-related
systems, including the telephone, lighting, HVAC and
security systems
ï‚· Work with Team Leader to manage and develop the
reception staff, including their data entry support of the
animal tracking system
ï‚· Develop and implement revenue enhancing initiatives
related to the use of technology, including increased
website donations and use of the animal tracking system in
support of regional consortiums and out-of-state rescues
ï‚· Other development tasks will include mail solicitation
(fundraising) and liaison with direct mail vendors, gift
acknowledgement and management of administrative
assistant(s)
ï‚· Perform other tasks as may be assigned by the President
or Chief Financial Officer
ï‚· Provide monthly reports regarding the above, as
requested.
When Lord first assumed that position, the team leaders and employees of adoptions,
incoming and medical reported to Acting District Manager Joanne Draper. The team leader of
customer service, Jackie Czerwinski, reported to Lord, as did four customer representatives or
receptionists, who worked downstairs on the first floor. Gay Marie Kuznir, who worked on the
second floor as an administrative assistant, also reported to Lord. Kuznir’s primary job involved
fundraising and consisted of entering donations into the donor tracking system and generating
thank you letters to donors.
In June 2009, Respondent, due to a “reorganization,” removed all supervisory
responsibilities from Lord vis a vis the customer service employees, and from that point on the
customer service employees reported to Draper. However, Lord continued to exercise some
functions that could be construed as “supervisory” authority over Kuznir until Lord was
terminated in December 2009.
The primary indicia of supervisory authority that Lord exercised over the customer
service employees and Kuznir prior to June 2009, and would have exercised with respect to
Kuznir subsequent to June 2009 had she not been terminated, was her involvement in the
preparation of performance evaluations.
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Prior to June 2009, Lord prepared annual evaluations for Kuznir and Jackie Czerwinski,
the team leader for customer service employees. Lord also collaborated with Czerwinski in the
preparation of the annual evaluations for three or four customer service employees, who
reported directly to Czerwinski.
These evaluations, which are referred to as “performance reviews,” are four-page
documents, which have three separate sections. The sections are entitled performance
characteristics, comments and examples and actions to be taken. The first category, which
includes items such as “knowledge and understanding of work,” “motivations and initiative” and
“co-worker relations and customer interaction,” also has a rating system of 1 through 5. The
second category is entitled “comments and example,” wherein the supervisor details in narrative
form their comments and examples pertaining to employees’ performance in each “performance
characteristics.” The final section includes what actions need to be taken by the employee to
improve their performance in each category. Finally, the document includes a section entitled,
”summary of developments,” where the supervisor writes a brief summary of what actions the
employees need to work on in the coming year.
The performance reviews for the customer service employees lists Lord and Czerwinski
as a “supervisor” of the employee and is signed by Gasecki as well as by Lord and Czerwinski.
In practice, these reviews were prepared by Czerwinski, including the numbers from 1-5 in each
category. Lord and Czerwinski would then discuss the reviews, and Lord would make some
suggestions on the wording or phrasing of some of the narrative comments. Lord did not
disagree with Czerwinski with respect to any of the numerical ratings assigned to each
employee and did not recommend any changes in these scores. As Lord testified, “She
(Czerwinski) was the one who worked with them directly, so I trusted her.”
The reviews were then presented to Gasecki, and he signed by all of the reviews without
making any changes or recommendations. The reviews would then be shown to Johnston for
his review. Johnston would frequently make changes in the reviews’ narrative portions and
would at times add a personal anecdote that Johnston remembered from an interaction with an
employee that he wanted included on the review. Lord would make the changes suggested by
Johnston and/or include the additional information that Johnston had detailed in the review
before it is presented to the employee.
In the case of Kuznir’s review, Czerwinski was not involved, so Lord herself prepared the
review, including the numerical scores. The reviews would then go to Gasecki and then to
Johnston for his comments prior to being given to Kuznir.
The review prepared by Lord for Kuznir in December 2008 was ultimately signed by Lord
and Gasecki and provided to Kuznir on January 23, 2009. In that review, the section entitled
“overall performance,” Lord had recommended that Kuznir be scored a 3, which corresponds to
“meets expectation of position.” Johnston disagreed with that number, and in his comments, he
instructed Lord to reduce that score to a 2, which corresponds to “needs improvement.”
Prior reviews that Lord wrote for Kuznir were also changed by Johnston in terms of
phrasing as well as in downgrading certain specific scores. However, the overall rating for
Kuznir was not changed in these prior reviews as it was in the 2008 review.19

19 Lord had prepared reviews for Kuznir for the years 2006 and 2007.
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The record reflects that the purpose of all of the reviews was to evaluate performance, to
identify goals for future performance and to provide feedback. The reviews were not used by
Respondent in calculating or deciding upon wage increases for its employees.
The customer service employees, who reported to Lord prior to July, worked on the first
floor. These employees interacted with the public, processed animals entering the facility,
answered questions of the public and entered data concerning the animals into Respondent’s
data entry system. As noted, these employees reported directly to Czerwinski, their team leader,
who in turn reported to Lord. Lord would consult with Czerwinski concerning technical support of
how employees were performing their data entry functions or questions about the employees
were answering from the public.
Kuznir, whose classification was administrative assistant, primarily dealt with donations,
wherein she recorded donations in the data entry system and generated thank you letters for
donations. Lord would provide technical support to Kuznir in recording data and assisted her in
preparing thank you letters. Lord and Kuznir interacted with each other 10-15% of their time on
a given day. Kuznir would enter the donations data, and Lord would track what Kuznir had run
and issue reports based on this data.
Prior to June 2009, Lord issued three documents entitled “Memorandum” to employees
concerning their conduct at work. On April 24, 2008, Lord’s memo referenced a discussion
between her and employee Tom Witt. The memo states that Witt had left blood on at his work
station, requiring another worker to clean it when they took over the work station. It further urges
Witt to be careful to bandage any wounds and to be aware of keeping a clean and sanitary work
area.
Lord also issued a memo to Witt, dated May 20, 2008, wherein she referenced a
discussion between them, where Lord criticized Witt for his conduct in an argument between
Witt and another employee.
On December 23, 2008, Lord issued a memo concerning her discussion with Kuznir.
This memo reflected a discussion concerning “proper form and attention to detail on donor
acknowledgement letters.” The memo further reflects that Lord indicated to Kuznir that she must
be more careful in proofing letters and catching errors before presenting the letters to Johnston
for his signature. The impetus for this memo came from Johnston, who had been complaining in
voicemails to Lord about the errors in letters that had been prepared for his signature by Kuznir.
Finally, Gasecki informed Lord that Johnston had directed that she speak to Kuznir about the
proliferation of errors that Johnston had been receiving and that she should write a memo
documenting their conversation. Accordingly, Lord issued the memorandum to Kuznir, as
described above.
Notably, none of the memoranda issued by Lord to Witt or Kuznir made any mention of
future discipline for the employees nor does the record reflect that either of the employees
received any discipline based on the conduct described therein. Further, the memo issued by
Lord to Kuznir was the only such memo issued by Lord to Kuznir either before or after June
2009.
In January 2008, when Lord still had responsibility for the customer employees, she and
Czerwinski interviewed Angela Utaro, an applicant for a customer position reporting to both Lord
and Czerwinski. After the interview, Czerwinski and Lord discussed the applicant, and both
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agreed that she should be hired. They made a recommendation to hire Utaro to Marzano and
Johnston, and Utaro was hired without any further interviews.20
In early July 2009, Lord was asked by Marzano to participate in an interview with Marisa
Evans, who was applying for a position as a certified vet tech. According to Marzano, she asked
Lord to participate in the interview. Respondent was also considering Evans as a potential
candidate for a district manager position since Evans had “a lot of experience.” Thus, Marzano
testified that she wanted Lord’s input as to whether Evans would fit into the management team.
Lord participated in the interview along with Marzano, Wright and Zaluski.
Marzano testified that after the interview the participants discussed Evans and that Lord
replied that she “liked” Evans. However, Marzano did not indicate if Lord recommended that
Evans be hired. In fact, Marzano conceded that Respondent had not made a decision on
whether to hire Evans when Evans “dropped out” of consideration for the position. Thus, Evans
was not hired by Respondent.
Marzano also testified that Lord was involved in the interview of Karen Cordner for the
position of district manager in early November 2009. According to Marzano, Lord was a
participant along with other “managers” in the interview and Lord as well as the other managers
would give their opinions as to whether Cordner would be a “good fit” for the job. Marzano
however did not testify as to what recommendation or input Lord gave to Respondent
concerning the hiring of Cordner. When asked specifically about Lord’s role during the interview
process of Cordner, Marzano testified as follows: “She would have participated in the interview
process to not only answer any questions that the candidate or the applicant would have, but
also to give the applicant some insight into the organization as a whole and to ask questions.”
Gasecki testified that he was hired by Respondent in April 2008. When he interviewed
for the CFO position, he had three interviews. The first was solely with Marzano. The second
interview was with a panel of managers, including Marzano, Lord, Wright and Zaluski. The third
interview, according to Gasecki, included a panel of “people,” who Gasecki did not name, plus
Johnston. No further evidence was adduced concerning Lord’s participation in the hiring
process of Gasecki. Thus, no evidence was presented that Lord made any recommendation
concerning the hiring of Gasecki.
If Kuznir was going to be out for the day, she would either call Lord or Marzano.
Respondent had a policy that vacations for longer than five days in a calendar quarter had to be
approved by the CEO. Lord was involved in recommending to Johnston that Kuznir be allowed
to exceed the five-day limit on several occasions. Most of the time, Respondent would approve
Lord’s recommendations in this regard. However, on one occasion in 2009, Lord had
recommended approval of eight vacation days for Kuznir. Marzano and Gasecki met with Lord
and expressed Respondent’s displeasure with granting Kuznir 8 days of vacation time. After
some negotiation between Lord, Marzano and Gasecki, Respondent approved six days of
vacation for Kuznir.
Also, in an email exchange between Kuznir and Lord on August 7, 2009, Kuznir states,
“But you are a boss.”

20 The interview process also included a one-day trial, where Utaro worked for Respondent
for a day. Lord and Czerwinski observed her and concurred that she should be offered a
position.
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Lord summarizes her responsibilities at Respondent in a resume that she prepared and
posted online. It states that she was “responsible for extensive growth of development strategy,
most notably the implementation of online fundraising strategies, including developing and
implementing social networking strategy. Major duties include management of an animal direct
mail program, special events planning and the interfacing with donors. Also, [she] acted as IT
manager for main and regional offices.”
More specifically, in 2004, shortly after she was hired, Lord was part of a team that
developed the concept of online fundraising for Respondent, which had not existed before. The
team included Steve Zulli, who was Gasecki’s predecessor as CFO, and the public relations
director. The team sought to expand Respondent’s website to include an option for donors to
make donations on the website directly. In that connection, the team evaluated two or three
different companies to design the website and to implement fundraising strategies. They finally
selected Convio as the vendor to utilize, and the team so recommended to the Board. The
recommendation was approved, and Convio was selected.
After Convio was chosen, Lord was the liaison between Respondent and Convio. She
worked with the consultant from Convio, ran the reports about the donations and evaluated the
success towards the goals that Convio had said Respondent could achieve. Convio would make
suggestions concerning sending out emails and designing the website in a way that encourage
more donations. Lord, the CFO and the public relations director would evaluate these
suggestions and recommend them to the Board.
Convio initially had signed a three-year contract with Respondent. In 2007, Convio and
Respondent entered into a new contract. Lord and the other members of the team evaluated the
performance of Convio, as well as the proposals made by Convio, to renew its contract and
recommended to the president and the Board that the proposal be accepted. The president and
the Board agreed, and a new three-year contract was signed on September 25, 2007 by
Johnston on behalf of Respondent. Lord’s initials also appeared on the document, as well as
Jeffrey Wands, the CFO at the time. Johnston had initiated a policy that the supervisory
manager in charge of the function, for which the contract would serve, would be required to
initial each contract that Johnston would sign. The contract lists Lord as the “principal contact”
and “billing contact” for Respondent in connection with the implementation of the contract. Some
of the specific strategies that Convio would suggest and that Lord and the other members of the
team would evaluate included how many times per year emails should be sent out and at what
time of the year emails should be sent out to try and get the best response.
In 2009, Convio recommended to Lord that Respondent implement a new tool that would
have allowed Respondent to closely integrate online donations with offline donations.
Respondent’s offline donations that were received by mail had been coordinated by Kuznir in a
separate database. The new tool would have enabled all of Respondent’s donations to be in
one place. Lord thought that this was a good idea and discussed it with Gasecki. Gasecki also
thought the concept was a good idea, but there had been no pricing information at the time.
Lord was in the process of exploring different options for how Respondent could implement it
and how much it would cost when she was terminated. The record does not reflect whether this
proposal by Convio was ever implemented by Respondent.
On October 23, 2009, Lord sent a memorandum to Gasecki recommending personal
fundraising software that had been suggested by Convio. The memo gives reasons why Lord
thought that the proposal was worthwhile pursuing and included the cost of the product.
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Respondent did not follow Lord’s recommendation in this regard because as Gasecki testified,
“We weren’t convinced that it would give us enough of a return.”21
Respondent also raises money through a direct mail campaign. The vendor utilized by
Respondent to implement the program was Alpha Dog. This direct mail campaign resulted in
$1.1 million dollars in revenue for Respondent in 2009. Lord was responsible for managing the
relationship between Alpha Dog and Respondent. She was, as she was with Convio, the liaison
between Respondent and Alpha Dog. This role consisted of making sure Respondent got the
mailings out on time according to the plan and monitoring the reports to see if Respondent was
raising the amounts of money that Alpha Dog had projected. Lord also was making sure that
Respondent submitted the necessary information to Alpha Dog by the deadlines required by the
plan put in place by Alpha Dog.
Lord was also involved, along with Public Relations Director Wright, in reviewing and
changing, if necessary, copies of letters prepared by Alpha Dog to be sent by direct mail under
Respondent’s name.
In 2005, during Hurricane Katrina, some employees of Respondent had been there
assisting, presumably with regard to helping with animals. Someone suggested to Lord that
Respondent include that fact in a mailing so that people might want to keep that in mind when
deciding on whether to donate to Respondent. Lord proposed to Johnston that this be done, and
the recommendation was approved.
Alpha Dog representatives would have two meetings a year with representatives of
Respondent to discuss Alpha Dog’s plans for direct mailing. Lord would be present, along with
Johnston, the CFO, Wright and Marzano, at times. Lord, since she was the liaison with Alpha
Dog, discussed with Alpha Dog representatives their proposal before the meetings with
Respondent and then would ask Lord if anything is missing. However, Lord did not make any
suggestions to what should be included in the proposal, but would comment on typographical
errors that she found. Lord would also coordinate with Mike Monk, the CEO of Alpha Dog, in
setting up the twice yearly meetings with Respondent.
During these meetings, the Alpha Dog representatives would present its plans for the
next year. The group of Respondent’s officials, including Lord, described above, would discuss
it and eventually approve the plan proposed by Alpha Dog.
An email exchange between Lord and representatives of Alpha Dog in June 2009
reflects that Mike Monk, CEO of Alpha Dog, proposed a prospect test consisting of a
modification of the frequency and content of Respondent’s direct mailings. Monk stated in the
email that “I need your approval this week if at all possible.” The mail also reflects that he could
call Lord the next morning to discuss his proposal.
A week later, Lord responded to Laura Klaus, another representative of Alpha Dog, as
follows: “The package looks good. Let’s go ahead with the test. As I discussed with Mike, this
won’t be an additional cost on top of our original plan, but we will be substituting some of the
planned quantity with this. Let me know if you need anything else. Thanks.”22

21 The record does not reflect precisely how or who made the decision not to accept Lord’s
recommendation to purchase and use this product.
22 The record does not reflect whether Lord obtained authorization from anyone else at
Respondent before approving the request of Alpha Dog to go forward with the test.
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Another facet of Lord’s responsibility involved maintaining Respondent’s Facebook page
and Twitter account. This was actually part of the Convio proposal, which Respondent
implemented to utilize these social networking sites to publicize Respondent’s operations. In
that regard, Lord would consult with Public Relations Manager Wright and decide which items to
post, and Lord would be responsible for actually posting updates on these sites.
Lord’s primary responsibility was as manager of technology. She was in charge of all of
Respondent’s technological infrastructure, including its computer networks, PCs, software used
by Respondent, internet connections and its phone system. She worked with the outside
vendor, which maintained Respondent’s computer network to make sure that everything is
functioning. If any employee had questions about or problems with their computer or software, if
it could not be resolved by their supervisor, they would go to Lord for assistance.
Lord would also be involved in making recommendations to Respondent to expand or
change its technology. In that regard, in 2006, Lord recommended that Respondent change the
database that Respondent used to track animals. Lord believed that the prior system used by
Respondent was inferior to “PetPoint,” and she recommended that Respondent switch to
PetPoint. The recommendation was accepted, and PetPoint became Respondent’s shelter
software. PetPoint tracks the animal from the time that it comes into the shelter and includes its
medical history, how long the animal remains in the system and when it is adopted. The
program also includes animal statistics about Respondent’s operations, the animals that it
receives and where they come from. PetPoint also records case receipts and it is a “point of
sale system.” A large number of Respondent’s employees utilize PetPoint, and if they have
questions or problems about it, they come to Lord for assistance. Lord also monitors the system
and will notify employees if she sees errors in their use of the system.
On June 18, 2009, Lord recommended to Gasecki that they utilize a new internet
monitoring system and attached a description of the product for Gasecki’s review. The record
does not establish whether the particular recommendation was ultimately approved. Lord did
testify, however, that Respondent switched to a “new database” in 2009 based on her
recommendation, but did not provide any further details concerning this item.
Finally, Lord was assigned to the project of obtaining registration for Respondent with
Charity Navigator, which is a rating agency for non-profits and charities. Lord interacted with
Charity Navigator in registering Respondent, obtaining and compiling the necessary information
from various sources within Respondent to submit to the agency and filling out the application.
This process resulted in Charity Navigator awarding Respondent a 4-star rating on July 1, 2009.
VII. Analysis
A. Supervisory Status of Lord and Karchere
Section 2(11) of the Act, 29 U.S.C. § 152(11), defines the term “supervisor” as:
An individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or to
responsibly direct their, or to adjust their grievances, or to
effectively recommend such action, if in connection with the
foregoing, the exercise of such authority is not of a merely routine
or clerical nature but requires the use of independent judgment.
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An individual need only possess one of these indicia of supervisory authority as long as
the exercise of such authority is carried out in the interest of the employer, and requires the use
of independent judgment. Sheraton Universal Hotel, 350 NLRB 1114, 1115 (2007); Arlington
Masonry, Inc., 339 NLRB 817, 818 (2003). It is not required that the individual have exercised
any of the powers enumerated in the statue, rather, it is the existence of the power that
determines whether the individual is a supervisor. Arlington Masonry, supra; California
Beverage, 283 NLRB 328 (1987).
Thus, while Section 2(11) of the Act requires only possession of “authority” to carry out
the enumerated supervisory function, the evidence still must suffice to show that such authority
actually existed. Avante at Wilson, Inc., 348 NLRB 1056, 1057 (2006). The burden of proving
supervisory status falls on the party asserting it. Sheraton Universal, supra; KGTV, 329 NLRB
454, 455 (1999). The proof that is required to demonstrate the existence of supervisory authority
must relate to the specific period of time, wherein the alleged supervisor had such authority. It is
irrelevant if the individual possessed such authority at a different time. Avante at Wilson, supra
at 1057.
Further, the Board has repeatedly observed, supported by the Courts, that in making a
determination of supervisory status, such status should not be construed too broadly because
an employee, who is deemed to be a supervisor, may be denied rights, which the Act is
intended to protect. Talmadge Park Inc., 351 NLRB 1241, 1243 (2007); Oakwood Healthcare,
Inc., 348 NLRB 686, 688 (2006); Avante at Wilson, supra at 1058; Tree-Free Fiber Co., 328
NLRB 389, 390 (1999); East Village Rehabilitation Center v. NLRB, 165 F.3d 960, 963 (D.C.
Cir. 1999); Williamson Piggly Wiggly v. NLRB, 827 F.2d 1098, 1100 (6th Cir. 1987);
Westinghouse Electric v. NLRB, 424 F.2d 1151, 1158 (7th Cir. 1970).
In applying the principles set forth in these and other cases, I conclude that Respondent
has fallen short of meeting its burden of proof that either Karchere or Lord was a supervisor
under Section 2(11) of the Act at the time that Respondent terminated them. As I have observed
above, Respondent appears to have abandoned its prior position that Karchere was a statutory
supervisor since its own witness conceded that Karchere did not supervise anyone. Moreover,
no evidence was adduced that Karchere possessed or exercised any of the indicia of
supervisory authority set forth in 2(11) of the Act. Accordingly, I find that Respondent has not
demonstrated that Karchere was a 2(11) supervisor.
Respondent does vigorously assert that it has presented evidence to establish that Lord
possessed and/or exercised several of the indicia of supervisory status in Section 2(11) of the
Act. It asserts that Lord possessed and exercised the authority to effectively recommend hiring,
direct the work of employees, issue disciplinary memoranda and write performance evaluations
for employees.
I do not agree that the evidence adduced at the trial concerning these issues established
that Lord either possessed or exercised any primary indicia of supervisory responsibility during
the relevant time period.
In that regard, I note that the evidence is undisputed that in June 2009, several months
before her termination, a substantial portion of Lord’s alleged supervisory functions were
removed as a result of a reorganization, wherein she no longer had responsibility for supervising
customer service representatives. Therefore, much of the evidence presented concerning Lord’s
pre-June authority concerning the customer service representatives is not relevant to the
determination of her status in December 2009 when she was terminated. Avante at Wilson,
supra at 1057; Volair Contractors, 341 NLRB 673, 674-675 (2004). However, I do agree with
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Respondent that since it is sufficient that it establish that Lord possessed authority to exercise
any of the indicia of supervisory status set forth in 2(11) of that Act, that it is appropriate to
consider Lord’s pre-June conduct with respect to Kuznir, since it is clear that she continued to
supervise Kuznir, even after the June 2009 reorganization. For example, I conclude that had
Lord not been terminated, she would have written Kuznir’s 2009 performance evaluation since
the evidence discloses that Lord had performed this function in several prior years.
Whether Lord’s authority to write these performance evaluations as well as other
evidence of her pre- and post-June 2009 conduct with regard to Kuznir and other employees is
sufficient to establish supervisory status is another matter. It is to these issues that I now turn.
Respondent places significant reliance on what it characterized as Lord’s participation in
Respondent’s hiring process, both before and after June 2009, to establish that Lord exercised
and possessed the authority to effectively recommend hiring of employees. The evidence,
however, discloses only a single instance, where it was established that Lord effectively
recommended the hire of an employee by Respondent. That was Lord’s role in the interviewing
along with Team Leader Czerwinski of Angela Utaro in January 2008. There, Lord, after the
interview, recommended that Respondent hire Utaro, and Respondent did so without any further
interviews. Thus, conduct would be evidence of Lord exercising her authority to effectively
recommend hire, but it cannot be considered as relevant to Lord’s status when she was
terminated since this conduct was related to her supervisory role over customer service
employees, which had ended in June 2009. Avante at Wilson, supra; Volair Contractors,
supra.23
Respondent, apparently conceding the irrelevancy of the Utaro hiring, argues that Lord,
subsequent to June 2009, continued to be involved in the hiring process. In that regard, in July
2009, Marzano asked Lord to participate in an interview with Marisa Evans, who was applying
for a position as a certified vet tech. According to Marzano, Respondent was considering Evans
as a potential candidate for a district manager since Evans had “a lot of experience.” Marzano
testified that she wanted Lord’s input as to whether Evans would fit into Respondent’s
management team, and so that the managers present, including Lord, “could answer the
applicant’s questions as far as the whole company picture.”
Marzano further testified that Respondent utilized a “three-interview” process, wherein
three groups of managers would interview the applicant and give feedback to Respondent’s
decision maker, Johnston, as to the particular manager’s opinion whether they thought the
applicant would “fit.” Lord interviewed Evans, along with Wright, Zaluski and Marzano. There
were also two other interviews with different managers, where Marzano also attended. One of
the interviews, the last one, also included Johnston.
According to Marzano, Lord was present along with Zaluski and Wright at one of the
three interviews with Evans. Marzano did not recall what Lord said during the interview, but
recalled, “I’m sure she asked her questions. I don’t remember anything in particular.” The record
reflects that after the interview, Wright, Zaluski, Marzano and Lord met in the conference room

23 While Lord made one effective recommendation to hire Utaro in January 2008, I need not,
and do not, decide whether this conduct or other pre-June 2009 evidence is sufficient to
establish that Lord was a supervisor under Section 2(11) of the Act at that time. I do find,
however, that her role in recommending Utaro’s hire cannot be considered as relevant to her
status post-June 2009 when she no longer supervised customer service employees, of which
Utaro was one.
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for “feedback.” Marzano testified further concerning the process and the opinions of the
managers. “As I mentioned before, Maureen and other managers were part of an interview
process and their input was requested in those cases. It wouldn’t have been as strong as
recommending someone for hire, but there would have been attention paid to their opinions,
whether they thought this was a good fit for us.” Marzano also testified that while she didn’t
remember anything in particular that Lord said about Evans during the feedback, she added that
we probably asked her what she thought,” and Lord said that she “liked her.” Marzano did not
testify as what, if anything, she or the other managers, who participated in the interview along
with Lord, said. Significantly, Marzano also did not testify as to whether or not this group of
managers that included Lord made any recommendation to Johnston that Evans be hired.
Marzano also did not testify whether or not she transmitted to Johnston Lord’s comment during
the “feedback” that she “liked” Evans. Further, Marzano conceded that Respondent had not
made any decision whether or not to offer a position to Evans when Evans dropped out of the
consideration for the job.
Based on the above facts, Respondent argues that Lord’s involvement in the hiring
process concerning Evans demonstrated that Lord still possessed the authority to effectively
recommend hiring subsequent to June 2009. I disagree.
Indeed, Marzano’s own testimony refutes any such conclusion. Thus, Marzano
conceded that Lord’s participation in this interview, along with other managers, was “not as
strong as recommending” someone for hire, but merely that Respondent’s decision maker,
Johnston, pay attention to their opinion whether the managers thought the applicant was a good
fit for the organization. This can hardly be construed as a recommendation to hire. More
importantly, here the only comment made by Lord concerning Evans was that she (Lord) “liked”
Evans, which does not even rise to the level of an opinion that Evans was a “good fit” for
Respondent, much less to a recommendation that Evans be hired. Further, there is no evidence
that Lord’s comments about Evans were even communicated by Marzano to Johnston or that
anyone, including Lord, had made a recommendation to Johnston that Evans be hired.
Finally, it is undisputed that Respondent never made any decision whether or not to offer
a position to Evans. Thus, Lord’s role in the interview process, concerning Evans, falls short of
establishing that she had the authority to effectively recommend the hiring of employees.
I would also note that participation in the interview process, even where opinions or
recommendations are given, is not necessarily sufficient to establish effective recommendations
to hire, particularly, where as here, the decision maker (Johnston) also participated in the
interview process. Ryder Truck Rental, 325 NLRB 1386, 1387 fn. 9 (1998); Waverly-Cedar Falls
Health Care, 297 NLRB 390, 392 (1989).
Respondent presented no evidence, that even if Lord’s statement to Marzano that she
liked Evans could be construed as a recommendation to hire, that Lord’s purported
recommendation would have carried more weight than that of the other interviewers or, indeed,
any weight at all. The Door, 297 NLRB 601, 602 (1990).
Finally, the best that can be said for Lord’s participation in this process is that she is part
of a group recommendation that the applicant would be a good fit for the organization. This kind
of a “recommendation” is considered to be merely an assessment of “compatibility,” and does
not support a finding of a hiring authority within the meaning of Section 2(11). Talmadge Park,
Inc., 351 NLRB 1241, 1244 (2007); Tree-Free Fiber Co., 328 NLRB 389, 391 (1999);
Greenspan D.D.S., P.C., 318 NLRB 70, 76-77 (1995), enfd. mem. 101 F.3d 107 (2nd Cir. 1996);
Anamag, 284 NLRB 621, 623 (1987).
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Respondent fares little better in its assertions that Lord’s role in the interview process
concerning Cordner and Gasecki also establishes that she possessed or exercised the authority
to effectively recommend hire. Marzano testified concerning Lord’s role in this interview process
for Cordner, who was interviewed and ultimately hired for the position of district manager.
Marzano was uncertain as to the date of the interview of Cordner that Lord participated
in, but an email introduced into the record places the interview on July 16. According to the
email, Marzano, Wright and Zaluski were also present. Similar to her testimony concerning
Lord’s role in the interviewing of Evans, Marzano asserted that Lord, as well as the other
managers present during the interview, provided opinions as to whether Cordner would be a
“good fit for the job.” However, Marzano did not testify as to what Lord specifically stated during
or after the interview and did not testify whether Lord either recommended that Respondent hire
Cordner or even whether or not Lord felt Cordner would be a “good fit.” Indeed, Marzano did
testify that Lord “would have participated in the interview process to not only answer questions
that the candidate would have, but also to give the applicant some insight into the organization
as a whole and to ask questions.” Further, Marzano did not even testify whether or not the
group of managers, including Lord, who interviewed Cordner, made a group recommendation to
hire Cordner or what other interviews were conducted before she was hired. As related above,
Marzano testified that normally Respondent’s interview process consisted of three separate
interviews, including Johnston, the decision maker.
In these circumstances, similar to my conclusions detailed above concerning Lord’s role
in the interviewing of Evans, her participation in the interview of Cordner provides no support for
Respondent’s assertion that Lord exercised or possessed the authority to effectively
recommend hire of employees. Thus, as noted above, Respondent provided no evidence that
the group of managers that included Lord, and who interviewed Cordner, made a
recommendation to hire Cordner or even that they considered Cordner a “good fit.” More
significantly, no evidence was adduced that Lord herself made any such recommendations.
Moreover, as I have detailed above, participation in the interviewing process is
insufficient in itself to establish the requisite 2(11) supervisory authority to recommend hire,
even where such recommendations are made, particularly where as here, Johnston, the
decision maker, also participated in an interview of the applicant. Ryder Truck, supra, 326 NLRB
at 1387; Talmadge Park, supra; Tree-Free Fiber, supra at 391; Greenspan DDS, supra, 318
NLRB at 76-77; Anamag, supra, 284 NLRB at 623; The Door, supra, 297 NLRB at 602.
Additionally, even apart from the above analysis, Lord’s participation in interviewing
Cordner cannot be used to establish Lord’s supervisory status under Section 2(11) of the Act
since supervisors are not considered employees of the employer. Volair Contractors, supra. It is
well-settled that an individual must exercise supervisory authority over employees of the
employer in order to qualify as a supervisor under Section 2(11) of the Act. Franklin Hospital
Medical Center, 337 NLRB 826, 827 (2002) (purported supervisors supervised employees
employed by outside vendors); North General Hospital, 314 NLRB 14 (1994) (attending
physicians supervised interns and residents); Great Lakes Sugar Company, 92 NLRB 1408,
1409-1410 (1951) (supervision over agricultural workers, who are excluded from the definition of
employee under 2(3) of the Act). It, therefore, follows, and I so conclude, that Lord’s role in
hiring Cordner cannot be considered as indicative of 2(11) supervisory status, even if it had
been established, which it has not, that Lord effectively recommended that Cordner be hired by
Respondent.
For similar reasons, I also reject Respondent’s contention that Lord’s participation in the
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interview process for the hiring of Gasecki as CFO is supportive of her supervisory status. The
evidence adduced on this issue reveals that in April 2008, Lord participated in a panel interview
of Gasecki, along with Wright, Marzano and Zaluski. Gasecki also had a third interview,
including a panel of people, including Johnston. However, the record does not reveal whether
Lord was present at the third and final interview. No further evidence was presented concerning
this issue. Thus, once again, no evidence was presented that either the managers, who
interviewed Gasecki, or Lord herself, made any recommendation to hire Gasecki. As detailed
above, mere participation in the interviewing of applicants is insufficient to establish the exercise
or the possession of the authority to effectively recommend hiring. Ryder Truck, supra; Tree-
Free Fiber, supra.
Further, since the CFO is clearly a supervisory position, Lord’s involvement in
interviewing a candidate for such a position cannot be considered as relevant to 2(11) status.
Franklin Hospital, supra; North General Hospital, supra; Great Lakes Sugar, supra.
In addition to Lord’s alleged authority to recommend hire, Respondent also asserts that
Lord effectively recommended discipline, which is one of the 12 indicia of supervisory authority
in 2(11) of the Act. In that regard, Respondent introduced three memos, which it characterized
as disciplinary, reflecting discussions that Lord had, all prior to June 2009, with two employees,
one of whom was Kuznir. Two of the documents involved Lord criticizing Customer Service
Representative Witt for leaving blood at his station and for arguing with another employee. The
third memo, issued to Kuznir on December 23, 2008, reflects a discussion between Lord and
Kuznir concerning “proper form and attention to detail on donor acknowledgement letters” and
states that Lord indicated to Kuznir that she must be more careful in proofing letters before
presenting the letters to Johnston for his signature.
The memos issued by Lord to Witt have no significance in assessing Lord’s supervisory
status, as I have detailed above, since they involved customer service employees, whom Lord
no longer supervised subsequent to June 2009.
I agree with Respondent that Lord’s memo to Kuznir can be considered even though it
occurred in 2008 since it is relevant to whether she “possessed” the authority to discipline
employees in 2009 as her supervisory responsibilities towards Kuznir did not change. However,
I do not agree with Respondent that Lord’s memo to Kuznir establishes that Lord possessed the
authority to discipline or to effectively recommend discipline. Significantly, Respondent has not
showed that in the memo issued by Lord to Kuznir, or for that matter to Witt, Lord mentioned the
possibility of any discipline for the employees involved if the conduct complained of continued or
that the memos issued by Lord resulted in any further discipline by Respondent or that it was
part of a progressive disciplinary process utilized by Respondent. In such circumstances,
Respondent has not demonstrated Lord’s supervisory authority to discipline employees. Pacific
Coast M.S, Industries, 355 NLRB #226 slip op at 4 (2010); Williamette Industries, 336 NLRB
743, 744 (2001); Ken-Crest Services, 335 NLRB 777, 778 (2001); Vencor Hospital, 328 NLRB
1136, 1139 (1999).
Further, the one memo that Lord issued to Kuznir was instigated by Johnston through
Gasecki, who informed Lord that Johnston had directed that she speak to Kuznir about the
proliferation of errors that Johnston had been receiving in letters that had been prepared by
Kuznir for Johnston’s signature. Thus, this memo not only did not mention possible discipline for
Kuznir, but does not demonstrate independent judgment since Lord was directed by higher
management to issue the memo. Ryder Truck, supra, 326 NLRB at 1387.
Accordingly, Respondent has not come close to establishing that Lord possessed or
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exercised the authority to issue a recommend discipline.
Respondent also argues that Lord’s role in the preparation of performance reviews
establishes her supervisory status. The record establishes that Lord, along with Czerwinski,
prepared performance reviews for the customer service representatives under their joint
supervision. Once again, the conduct of Lord cannot be considered in assessing her post-June
2009 status since her supervision of customer service employees ceased at that time. I again
agree with Respondent that Lord’s preparation of performance evaluations for Kuznir in 2006,
2007 and 2008 can be considered in assessing Lord’s status post-June 2009 since her
supervision of Kuznir continued after Lord’s supervisory authority over customer service
employees was removed. However, the authority to evaluate employees’ performance is not a
Section 2(11) indicium. Thus, when the evaluation does not by itself affect the wages and the
job status of the employee evaluated, the individual performing such an evaluation will not be
found to be a statutory supervisor. Pacific Coast M.S. Industries, supra, 355 NLRB slip op at 2,
fn 13; Williamette Industries, supra, 336 NLRB at 743, 744; Elmhurst Extended Care Facilities,
329 NLRB 535, 536 (1999); Vencor Hospital, supra, 328 at 1139-1140. Here, Respondent has
not adduced any evidence that the evaluations written by Lord for Kuznir, or indeed for the
customer service representatives, played any role in the employees’ job status or on any
potential wage increases for these employees. Thus, Lord’s supervisory status has not been
established by her role in preparing performance evaluations.
Moreover, the record establishes that Johnston regularly changed portions of Lord’s
reviews, including making changes in Lord’s scores for Kuznir in the 2008 review for Kuznir
prepared by Lord. This finding further diminishes the significance of Lord’s role in preparing
these evaluations in assessing her supervisory status. Elmhurst Extended Care, supra at 536-
538 (employer has not established that the annual evaluations of charge nurses lead directly to
personnel actions, which affect either the wages or the job status of the CNAs).
Respondent also contends that it has proven that Lord’s direction of the work of Kuznir,
as well as that of other employees, demonstrates her supervisory status. Once again, I cannot
agree.
In order to establish that an individual “responsibly directs” employees under Section
2(11) of the Act, it must be established that the employer delegated to the purported supervisor
the authority to direct the work of employees using independent judgment, plus the authority to
take corrective action if necessary and that there is a prospect of adverse consequences for the
putative supervisor if he/she does not take these steps. Oakwood Health Care Inc., 348 NLRB
686, 690-694 (2006). Here, Respondent relies on the evidence that Lord was responsible for
directing and correcting Kuznir’s work, particularly Kuznir’s writing of donor acknowledgement
letters, corrected her timecards and approved Kuznir’s vacation requests. Further, Lord
instructed customer service employees subsequent to June 2009 on the use of Respondent’s
PetPoint system, and if an employee had a question about the use of the PetPoint system, they
would ultimately go to Lord for direction, assuming that their immediate supervisor could not
solve the problem.
Lord’s correction of Kuznir’s timecards does not evidence independent judgment, but is
considered to be merely a routine clerical function not demonstrative of supervisory status.
Talmadge Park, supra, 351 NLRB at 1244; Webco Industries, Inc., 334 NLRB 608, 610 (2001).
Similarly, while Lord does recommend approval of vacations for Kuznir, these
recommendations do not involve the exercise by Lord of independent judgment since they are
based on the availability of the dates or enforcement of Respondent’s rules on frequency of
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vacation days and are routine and clerical in nature. Dico Tire, Inc., 330 NLRB 1252, 1253
(2000); Fleming Cos., 330 NLRB 277, 280 (1999); North Shore Weeklies, Inc., 317 NLRB 1128,
1130 (1995).
I need not decide whether Lord’s conduct in correcting errors in Kuznir’s preparation of
letters for Johnston’s signature24 or her role in instructing employees in the use of PetPoint
involves the exercise of independent judgment since Respondent has clearly failed to
demonstrate the existence of the third crucial element of establishing responsible direction
under Oakwood Healthcare, supra. Thus, Respondent has adduced no evidence that
Respondent holds Lord accountable for the performance of Kuznir or any other employee
allegedly under Lord’s supervision. It produced no evidence that Lord faced the prospect of
“adverse consequences” due to a failure of Kuznir or any employee to perform the tasks that
Lord allegedly is responsible for directing them to perform. Lynwood Manor, 350 NLRB 489,
490-491 (2007); Golden Crest Healthcare, 348 NLRB 727, 731-732 (2006); Oakwood
Healthcare, supra at 695.25
Respondent also asserts that the evidence established that Lord possessed several
secondary indicia of supervisory status, such as participation in management meetings, receipt
of Respondent’s management memos, as well as the fact that employees considered her to be
a supervisor.26 Respondent further asserts that such indicia of supervisory status can be relied
upon to support a finding of supervisory status. Sheraton Hotels, supra, 350 NLRB at 1118.
However, it is well-settled that absent evidence of the existence of one of the primary
indicia of supervisory status, secondary indicia are not dispositive. Pacific Coast M.S. Industries,
supra, 355 NLRB slip op at 2, fn. 13; Central Plumbing Specialties, 337 NLRB 973, 975 (2002);
Ken-Crest Services, supra 335 NLRB at 779; Training School at Vineland, 332 NLRB 1412,
1412-1413, fn. 3 (2000).
Therefore, since I have found that Respondent has not demonstrated that Lord
possessed or exercised any of the primary indicia of supervisory status, the evidence of
secondary criteria, related above, is not sufficient to meet Respondent’s burden that Lord was a
supervisor under Section 2(11) of the Act.
Accordingly, based upon the foregoing analysis and precedent, I conclude that
Respondent has fallen considerably short of meeting its burden of proof of establishing Lord’s
supervisory status at the time of her termination in December 2009.
B. Managerial Status of Karchere and Lord

24 I do note in this regard that Lord’s role in this respect appears to have been circumscribed
by Johnston’s frequent complaints to Lord that Kuznir’s errors were too extensive and needed to
be corrected.
25 While the performance evaluation of Lord by Gasecki, dated January 2, 2009, does rate
Lord in various areas of supervision, including direction of work, this evaluation was issued at a
time that Lord was supervising customer service representatives (which ended in June) and
appears to primarily be directed to this aspect of her responsibilities. More importantly, simply
evaluating the purported supervisor on her performance in supervising employees is insufficient
to establish “accountability” under Oakwood Healthcare, supra, absent specific evidence that
Lord’s “evaluation” for direction of subordinates may have, either by itself or in combination with
other factors, an effect on Lord’s terms and conditions of employment. Golden Crest, supra.
26 This latter fact was allegedly established by Kuznir referring to Lord as “a boss.”
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While the Act makes no specific mention of “managerial” employees, it is undisputed that
such employees are excluded from the Act’s coverage because their functions and interests are
more closely aligned with management than with unit employees. International Transportation
Service, 344 NLRB 279, 285 (2005); NLRB v. Bell Aerospace Co., 416 U.S. 267, 286 (1974).
Managerial employees have been defined as “those who formulate and effectuate
management policies by expressing and making operative the decisions of their employer and
who have discretion in the performance of their jobs independent of their employer’s established
policies.” Case Corp., 304 NLRB 939, 948 (1991), enfd. 995 F.2d 700 (7th Cir. 1993); NLRB v.
Bell Aerospace, supra. Accord, NLRB v. Yeshiva University, 444 U.S. 672 (1980).
While work, which is based on technical or professional competence, often involves the
exercise of discretion and judgment, technical and professional employees are not the same as
managerial employees. Technical and professional employees are not vested with management
authority, merely because of their status, even though the work that they perform may have
bearing on the direction of the company or where they make recommendations in order to
reduce the employer’s cost of business. Case Corp., supra, 304 NLRB at 939 and 948. Further,
technical expertise involving the exercise of judgment and discretion does not confer managerial
status upon the performer. Case Corp., supra at 948; General Dynamics Corp., 213 NLRB 851,
857-858 (1974).
It is also clear that as in the case of supervisory status, the party asserting managerial
status has the burden of proving it. George Mee Memorial Hospital, 348 NLRB 327, 333 (2006).
The definition of managerial employee has been construed narrowly since as with supervisory
status those employees, who fall within that category, are denied substantial statutory rights.
Curtis Industries, 218 NLRB 1447, 1448 (1975).
Applying these principles to the instant case, I conclude that Respondent has failed to
meet its burden of proof that either Lord or Karchere were managerial employees under
applicable Board and Court precedent.
With respect to Lord, Respondent relies on Lord’s conduct as manager of development
and technology, where in Respondent’s view she was “involved in the formulation,
determination and effectuation of management policies.” Point Park v. NLRB, 457 F.3d 42
(CADC 2006).
Respondent relies on Lord’s role in effectively recommending to Respondent that it
change its database for animal tracking to use software from PetPoint. Lord believed that
PetPoint was a superior system to the one used by Respondent at the time. Lord’s
recommendation was accepted and the PetPoint system, which tracks the animals from the time
that it comes into the shelter and includes various other animal statistics and receipts, has been
utilized by Respondent since that time. Lord monitors the system and notifies employee if she
sees errors in their use of the system and answers questions that employees may have about it.
Similarly, Lord was part of a team, along with Respondent’s CFO and public relations
director, that developed the concept of online fundraising, which had not existed before. The
team sought to expand Respondent’s website to include an option for donors to make donations
directly. The team evaluated two or three proposals and selected Convio as the vendor to use.
The team recommended approval of Convio to Johnston and the Board, and the
recommendation was approved. Lord was the liaison between Convio and Respondent. Convio
would make various suggestions concerning sending out emails and designing the website in
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ways to encourage more donating. Lord, the CFO and the public relations director would
evaluate these suggestions and recommend them to the Board.
In 2007, the previous contract between Convio and Respondent was renewed after Lord
and the other members of the team evaluated Convio’s performance and recommended that
Convio’s proposal be accepted. Pursuant to Johnston’s instructions, Lord initialed the contract
that Johnston signed on behalf of Respondent.
In 2009, Convio recommended that Lord implement a new tool that would have allowed
Respondent to closely integrate online donations with offline donations. Lord and Gasecki
thought it was a good idea, and Lord was in the process of obtaining pricing information for the
tool when she was terminated.
In October 2009, Lord recommended that Respondent purchase personal fundraising
software suggested by Convio. Respondent rejected Lord’s recommendation to purchase that
software because it did not believe that it would give Respondent “enough of a return.”
Finally, Respondent relies on Lord’s role in managing Respondent’s relationship with
Alpha Dog, the vendor used by Respondent in the direct mail advertising campaign.
Respondent notes that this campaign generated over $1,000,000 in revenue for 2009. Lord’s
responsibilities for managing the relationship between Respondent and Alpha Dog included
making sure that Respondent submitted the necessary information to Alpha Dog on a timely
basis and monitoring reports to see if Respondent was raising the amounts of money that Alpha
Dog had projected. She, also, along with Wright, would review and change, if necessary, letters
prepared by Alpha Dog to be sent by the plan put in place by Alpha Dog.
Lord also made a recommendation, which was ultimately approved by Respondent, to
include a reference to Respondent’s efforts to aid animals during Hurricane Katrina in its
mailings by Alpha Dog.
Lord was also present, along with Johnston, Gasecki, Wright and Marzano, at twice
yearly meetings with representatives of Alpha Dog to discuss Alpha Dog’s plans for direct
mailing. The group of Respondent’s officials would discuss Alpha Dog’s plans for the next year
and approve the plan proposed by Alpha Dog.
I cannot agree with Respondent that the above described evidence either singly or
collectively established that Lord formulated, determined or effectuated management policies as
defined by Board and Court precedent.
The primary area of responsibility for Lord is that of managing Respondent’s computer
systems, which includes making recommendations for purchases of software and computer
equipment and acting as a liaison between computer vendors utilized by Respondent, such as
PetPoint and Convio.
Such conduct does not establish that Lord makes or effectuates policy decisions of
Respondent. It demonstrates only that Lord uses her technical expertise with respect to
computers, which is not considered to be making or effectuating management policies, but
merely a tool in carrying out its business, which is animal care and not computers. Nurses
United, 338 NLRB 837, 840 (2003) (clinical system coordinator, who uses her computer
expertise in helping develop and implement software programs for employer, not a managerial
employee); International Transportation Service, supra, 344 NLRB at 279 (payroll and billing
representative, who deals with software contractor and has authority to order modifications to
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programs costing in excess of $23,000, is not a managerial employee); Bakersfield Californian,
316 NLRB 1211, 1214-1215 (1995) (systems/pagination coordinator, who as computer
specialist manages and makes recommendations on purchases of hardware and software, is
not managerial employee; Board concludes that although her responsibility for computer system
requires technical skill and expertise, this skill does not involve formulating policy or acting
independently of employer’s established policy). See also Case Corp., supra, 304 NLRB at 939
(no evidence that purported managerial employee (engineer) has discretion to deviate from
employer’s established policies).
Based upon the above precedent, it is clear, and I so find, that Lord’s computer
responsibilities and functions do not establish that she was a managerial employee.
Respondent also relies upon, as noted, Lord’s responsibilities as “development”
manager, which encompasses managing Respondent’s direct mail advertising in conjunction
with Alpha Dog, the vendor utilized by Respondent. While these responsibilities of Lord are not
directly related to her computer skills, my conclusion with respect to these functions of Lord is
the same.
Respondent is not in the advertising business, but in the business of animal care.
Nurses United, supra, 338 NLRB at 840. Further, there is no evidence that whatever discretion
that Lord exercised in managing Respondent’s direct mail fundraising, she had the discretion to
deviate from Respondent’s established policies. Case Corp., supra, 304 NLRB at 939; Solartec
Inc., 352 NLRB 331, 336-338 (2008) (fact that purported managerial employee had authority to
recommend purchase and use of equipment and machinery and to negotiate with supplier,
insufficient to establish managerial status since the recommendations of knowledgeable
employee does not evidence employee’s discretion independent of employer’s discretion and
approval).
Respondent’s reliance on the fact that Respondent’s receives over 1 million dollars in
donations from the direct mail donations that Lord manages is misplaced. It is well-established
that even where recommendations of a purported managerial employee results in saving of
money for or a change of direction of employer’s policies that is insufficient to establish
managerial status, particularly, where the recommendations must be approved by higher
management. Case Corp., supra, 304 NLRB at 948-949 (engineers, whose basic function is to
make recommendations to reduce costs and save money for employer, are not managerial
employees); Pacific Mutual Insurance, 284 NLRB 163, 167-168 (1987) (senior benefits analyst,
who has among other functions, developed cost cutting measures, not managerial employee
since his recommendations were subject to approval of higher management and not shown that
he had discretion to deviate from employer’s establish policy); Neighborhood Legal Services,
236 NLRB 1269, 1273 (1978) (unit heads not managerial employees; executive director makes
final decisions and whatever weight he may choose to give to unit heads viewed on policy
issues are attributable to the unit heads’ professional expertise); Illinois State Journal-Register
v. NLRB , 412 F.2d 37, 42-43 (7th Cir. 1969) (district manager not managerial employee despite
authority to recommend to company changes in policies and future plans); Sampson Steel &
Supply Inc., 289 NLRB 481, 482-483 (1988) (warehouse supervisor, who can pledge employer’s
credit and who recommends purchase of large warehouse saws, held not to be managerial, but
a knowledge employee, who did not formulate or effectuate employer policies); Lockheed-
California Co., 217 NLRB 573, 574-575 (1975) (buyer, although they can commit company’s
credit up to $50,000 and also negotiates prices with suppliers, does not have discretion
independent of established policy since higher authority must review and approve much of their
recommendations); Westinghouse Broadcasting Co., 216 NLRB 327, 329-330 (1975)
(producers/directors of radio and TV stations, who were told they were members of
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management, and are involved in planning and production of local programs, not managerial
since their recommendations must be approved by higher management officials); General
Dynamics, supra at 857-859 (engineers, although they make recommendations that bear on
company direction and affect company policy, not managerial since their decisions and
discretion are based on engineers’ technical skills and must be approved by managerial
superiors); Westinghouse Electric, 163 NLRB 723, 726-727 (1967), enfd. 424 F.2d 1151, 1158
(7th Cir. 1970) (engineers, whose work requires a high degree of technical competence and use
of independent judgment with respect to matters of importance to the employer’s financial and
other managerial interests, held not “managerial,” but professional employees); Puget Sound
Power & Light Co., 117 NLRB 1825, 1827 (1957) (power pool engineers are not managerial
although they make recommendations, which lead to financial outlays); Western Electric Co.,
100 NLRB 420, 422 (1952) (stock maintainer and unit stock maintainer are not managerial
employees, even though their functions are important to employer and understocking or
overstocking may result in loss to it).
Accordingly, based on the above analysis and Board and Court precedent, I conclude
that Respondent has failed to meet its burden of proof that Lord was a managerial employee at
the time that she was terminated.
Respondent also asserts that the evidence establishes that Karchere was a managerial
employee since she “formulated and effectuated management policies.” Respondent relies upon
Karchere’s role in recommending changes in Respondent’s payroll process as well as a change
in Respondent’s “aged cat” program, plus her role in the preparation of the 2009 Fox Clinic
budget. Based upon much of the same analysis and precedent detailed above in my discussion
of Lord’s status, I again do not agree with Respondent’s contentions with respect to Karchere’s
status.
The record does establish, as Respondent asserts, that Karchere in her role as
Respondent’s “finance assistant,” effectively recommended that Respondent change its payroll
system from a manual timecard system to an automated card system. This recommendation
clearly had financial implications for Respondent and was based on Karchere’s previous
experience at a former job with the automated system that she recommended.
This conduct of Karchere is similar to Lord’s responsibilities as computer manager and
requires a similar conclusion. Karchere, although exercising her judgment in making this
recommendation, was not effectuating management policy, but merely using her technical
expertise in recommending a tool in carrying out Respondent’s business, which is animal care
and not payroll processing. Nurses United, 338 NLRB at 840; International Transportation
Service, supra, 344 NLRB at 279 (payroll and billing representative not managerial employee);
Triad Management, 287 NLRB 1239, 1248 (1988) (corporate financial manager not managerial
employees. See also Holly Sugar Corp., 193 NLRB 1024, 1026 (1971) (timekeeper not
managerial employee although he exercises judgment and makes some decisions); Pacific Far
East Line Inc., 174 NLRB 1168, 1169 (1969) (financial analyst, who consults with management
about corporate financial matters, but does not formulate or effectuate management policies).
Respondent is correct that the evidence further discloses that Karchere effectively
recommended to management that it offer a discount for aged length of stay cats. Karchere
convinced management, contrary to Gasecki’s view, that Respondent should emphasize how
long the cat was in the system rather than chronological age in deciding on the discount. While
this recommendation can be construed as a recommendation relating directly to animal care
policy, it is, in my view, insufficient to establish Karchere’s managerial status.
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I note initially that this recommendation was not part of Karchere’s regular job or
responsibilities as finance assistant. It stemmed from her personal interest in cats and is a
suggestion that could have been made by any employee. NLRB v. Meenan Oil, 139 F.3d 311,
319-320 (2nd Cir. 1988) (payroll personnel administrator not a managerial employee although
she made recommendations to management on various issues. Court concludes that “her
recommendations were spoken directly to management, but were not different in kind from any
employee’s deposit in a suggestion box”.)
More significantly, as was the case with Lord’s recommendations, Karchere’s
recommendations concerning the aged pet discount as well as the change in payroll systems
were subject to higher management approval. Thus, Respondent has not shown that Karchere
had the discretion to deviate from Respondent’s established policies. Case Corp., supra, 304
NLRB at 939, 948-949 and numerous other cases cited above in my discussion of Lord’s status.
Respondent also places significant reliance on Karchere’s role in the preparation of the
Fox Clinic budget. However, based on my credibility findings detailed above, I have credited
Karchere’s version of her role in the preparation of this budget. Based on these findings,
Karchere merely used Gasecki’s template of the prior year’s budget, received estimates of
increases and decreases in revenues from Freeman, discussed the estimates with Gasecki and
Gasecki suggested to her the percentages of increases to put into the budget. Karchere credibly
testified, “I got the figures and then I did like the grunt work, formulas formatting and plugging it
in and just checking all these formulas.”
Therefore, contrary to Gasecki’s testimony, Karchere did not exercise significant
discretion, independence or judgment in her preparation of the Fox Clinic budget. Therefore, her
role in that task is far from sufficient to establish her managerial status.
Respondent also makes reference to the fact that management expected Karchere to
eventually replace Gasecki, a CFO, and that she was the “primary back-up for Gasecki.”27
However, the record discloses that Karchere was never specifically designated as acting
CFO, even when Gasecki was out. There was no evidence of any change in Karchere’s
responsibilities in the rare occasions that Gasecki was out of the office. Indeed, Gasecki
conceded that he was not out much and was “never sick.” He added that when he was out, he
would leave a message on his voicemail to call Karchere if they had questions while he was out.
Gasecki conceded that during the brief times that he was out “nothing was of such importance
that, you know, somebody had to step in and solve the problem right away.”
In these circumstances, since Karchere had not performed any of Gasecki’s functions or
even actually filled in for him, this evidence is not supportive of any finding that she was a
managerial employee. Hanover House Industries, 233 NLRB 164, 175 (1977) (accountant, who
was also “assistant to the vice-president,” not a managerial employee since his duties were not
co-extensive” with vice-president); Talmadge Park, supra, 351 NLRB at 1245 (no evidence that
when employee substituted for supervisor, his duties changed); Dean & Deluca, 338 NLRB
1046, 1047 (2003) (filling in for supervisor does not establish supervisory status in absence of
evidence that individual exercised independent judgment during that time).

27 In that regard, an employee newsletter, issued shortly after she was hired, points out that
in conjunction with Karchere’s duties as finance assistant, Karchere “will serve as the primary
back-up to the Chief Financial Officer.”
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I also place no significance on the testimony that Respondent may have contemplated
offering Karchere the position of CFO to replace Gasecki at some undetermined and
unspecified time in the future. Admittedly, this was never told to Karchere, and there is no
evidence presented that Gasecki was expecting to retire or leave Respondent’s employ.
Accordingly, based upon the foregoing analysis and precedent, I conclude that
Respondent has not met its burden of establishing that Karchere was a managerial employee at
the time of termination or, indeed, at any other time during the course of her employment.
C. The Termination of Lord and Karchere
Having found that Respondent has not met its burden of establishing that either
Karchere or Lord were supervisors or managerial employees under the Act, there can be no
doubt that it has violated Section 8(a)(1) and (3) of the Act by terminating them. Indeed,
Respondent admits that it discharged both employees because they engaged in union activities.
The fact that Respondent may have had a good faith belief that the employees were supervisory
or managerial or that it believed that the employees were “disloyal” is of no consequence.
Solartec, 352 NLRB at 343. The mistaken belief that they were managerial or supervisory
employees does not lessen the protection of the Act or excuse action that would otherwise be
unlawful. Id
Therefore, I find that Respondent has violated Section 8(a)(1) and (3) of the Act by
terminating Lord and Karchere.
Respondent contends that both Karchere and Lord have lost their right to reinstatement
as a result of their post-discharge conduct of criticizing Respondent’s operations as well as
various management representatives and members of the Board of Directors.
In that regard, George Gombassy is a former newspaper reporter, who operates a
website under the name, “Watchdog.” On January 5, 2010, Gombassy’s website included an
article entitled “Ct Humane Society President Under Fire From Dismissed Workers Who Tried to
Unionize.”
The article refers to the discharges of Karchere and Lord and includes accusations of
mismanagement of the Society by Lord and Karchere. It also includes a response from
Respondent’s Public Relations Director Alicia Wright.
The article is set forth below:
Ct Humane Society President Under Fire From Dismissed
Workers Who Tried to Unionize
By George Gombassy │ Jan 5, 2010
Copyright © 2010, CtWatchdog.com
Two recently fired workers from the Connecticut Humane Society
– a multimillion-dollar-a-year charity – are accusing its longtime
president of unethical and improper behavior.
In written statements given to me by the two former workers – one
a financial assistant, the other a manager – they accuse Richard
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Johnston of having his personal expenses paid for by the
Newington-based charity as well as requiring paid staff to baby-sit
his daughter when they were supposed to be working at the
center. There is also an accusation that one board member has a
conflict of interest in an ongoing project.
The two have given me permission to forward their complaints to
state Attorney General Richard Blumenthal with the hope that he
would order an investigation into the operations of the Society. I
have forwarded the complaints to Blumenthal’s office.
Johnston, who has been president of the Humane Society for
about 20 years, did not respond to requests for comment. He is a
lawyer and a former state senator.
A Society spokeswoman declined to comment on any of the
specific claims that have been made – including that a larger
percentage of animals are euthanized than what is made public.
Instead, spokeswoman Alicia Wright blamed the allegations on an
attempt to unionize the Society’s four centers and threatened libel
action against anyone who made these claims or published them.
Her complete statement is at the bottom of this column. The
statement refers to one unsigned letter but Wright said the
statement also covers the additional written allegations made by
the former employees.
“You should know that there is currently an ongoing effort to
unionize some of the staff at the Connecticut Humane Society,”
Wright wrote to me. “It is not unusual in this context, for unfounded
allegations to be made to foster negativity towards management
and for efforts to be made to share these statements with the
community at large. The union issue is being addressed by the
Society and handled through the appropriate channel, the National
Labor Relations Board.”
The main accusations against Johnston and the management of
the Humane Society are being made by Bridget Karchere, who
was finance assistant and had intimate knowledge of the Society’s
bookkeeping, and Maureen Lord, who worked at the Society more
than eight years, including four as Johnston’s personal assistant.
Karchere of Plainville and Lord of Hartford were both fired on Dec.
18. A third employee, a male, was also fired last month. Karchere,
Lord and others connected to the Society allege that the three
firings were in retaliation for their union activities.
After conducting numerous secret meetings, the staff of the
Society petitioned to be represented by the Machinists Union – the
same group that represents many United Technologies workers.
By a vote of 18-15 the backers of the union won. However, the
Society is contesting the election.
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The pro-union members claim to have support from about 20 of
the workers, with some afraid of speaking out publicly. They have
set up an organization called The Coalition for Positive Change
and are contacting former workers to join their battle. They insist
that their efforts are aimed at improving the lives of workers as
well as the 8,000 animals its shelters handle each year, not for
wage increases. They claim that Johnston and some of his
managers act in tyrannical fashion finding ways to punish anyone
who disagrees with them.
“This organization boasts to donors and the general public that it
is a low kill shelter, that .85 cents of every dollar is spent on the
animals. They also claim that their mission is to treat humans
humanely as well. All of these statements are false; I will attest to
this,” Karchere, the staff accountant, wrote me.
“First I will start off by saying that the number of former disgruntled
employees of the humane society is almost innumerable. And,
these employees are not disgruntled because they abused their
jobs, didn’t follow the company’s mission statement, or treated the
animals poorly and lost their jobs; rather they are disgruntled,
damaged, and disgusted by how they were treated and what they
were exposed to while working at the humane society. And, these
former employees consist of Public Relation Directors, District
Managers, Animal Care workers, Humane Educators, Chief
Financial Officers, Administrative staff…the list goes on and
on…it’s quite mind boggling.”
While the Society states in its reports that Johnston’s
compensation from the Society is $57,366 a year, Karchere said it
is much higher when one includes all of his personal expenses
that are paid by the nonprofit firm.
She claims that the Humane Society pays for Johnston’s
magazine and newspaper subscriptions, real estate and attorney
license fees, parking tickets, gasoline for nonbusiness [sic] travel,
and undocumented charges for liquor and gifts.
She also claims that some items are mischaracterized as being
used to care for the animals to falsely improve its rating as a
charity.
“Euthanasia numbers, on a study of the Newington Branch, show
a significant increase due to the short staffing and lack of
appropriate management from 2008 vs. 2009,” she wrote me.
Lord also claims that Johnston uses his company vehicle for
personal use, including driving back and forth from Newington to
Avon where his daughter goes to school. She claims that
Johnston is the only employee not required to keep a log of his
travels.
“For my entire 8 1/2 years at the Humane Society, Richard
Johnston has used the society as his personal day care agency,”
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Lord wrote me. “When I first started at the Humane Society, I was
the Assistant to the President and his daughter was pre-school
aged. She came with him to the office most days and disrupted
the work of many employees, who were expected to entertain
her.”
“I was instructed on several occasions to take (her) outside for
play/entertainment reasons. When I questioned whether I should
do that since I had other work to perform for the company, Mr.
Johnston implied that I didn’t have anything else to do that was
more important than taking (her) outside.”
She claims that Johnston even violates the leash rules at the
Society with his two dogs.
Lord said it a “potentially very dangerous situations with cars in
the parking lot as well as other dogs that are being walked on the
property. One would think he would have more concern for the
safety of his own dogs, as well as the dogs residing in the shelter
or belonging to clients. The shelter sometimes houses dogs that
are aggressive and when an unrestrained dog approaches one of
these dogs while being walked it is very dangerous for both dogs
as well as the animal care worker who is restraining the
aggressive dog.”
The following is the response from the Humane Society
Dear Mr. Gombossy:
The Connecticut Humane Society is proud of its 129 year history
of “promoting humanity and kindness” for the animals, children
and public that we have served so faithfully over the years.
We are issuing the following statement in response to your inquiry
for an interview regarding an unsigned letter, which you have
received and subsequently forwarded to us for consideration:
1. This unsigned letter contains anonymous allegations.
Consequently, we hope that you give no weight to its contents.
We will not be dignifying the contents with a reply.
2. In the case of this letter, many of the allegations are libelous
and whomever states or distributes these allegations could be
subject to legal liability for defamation. We will immediately consult
our attorneys about this.
3. You should know that there is currently an ongoing effort to
unionize some of the staff at the Connecticut Humane Society. It
is not unusual in this context, for unfounded allegations to be
made to foster negativity towards management and for efforts to
be made to share these statements with the community at large.
The union issue is being addressed by the Society and handled
through the appropriate channel, the National Labor Relations
Board.
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4. Finally, there has been a recent personnel termination from the
Connecticut Humane Society staff. This action may have caused
this individual to “strike out” in order to cause unfair retributive
upset and damage. The Connecticut Humane Society cannot
comment on any termination that may have occurred because this
action is governed by privacy protections afforded the individual
involved. These situations are always handled through the
appropriate, legal channels. But again, if these allegations have
been made by a disgruntled former employee, they are libelous in
nature and should be given no credence.
Thank you for your thoughtful consideration of our position and for
doing the right thing with regards to the letter in your possession.
Sincerely,
Alicia Wright
Public Relations Director
Two subsequent articles by Gombassy, dated February 7 and May 20, 2010, included a
draft of a letter Karchere was intending to send to a representative of the Board of Directors
(BOD) as well as a letter that Karchere sent to the “new” leaders of the BOD.
Thereafter, both Karchere and Lord filed numerous posts on Gombassy’s website,
commenting on Respondent’s operations and its officials. Additionally, James Luberda, who
lives with Lord and he can be characterized as her “significant other,” also posted several blog
entries on the same website, wherein he made some comments about Respondent’s
management. Luberda also sent an email to Chris White, who was a member of the BOD and
became president of the BOD after the terminations of Karchere and Lord. This email reads as
follows:
From: James Luberda james.luberda@gmail.com
Date: Thu, Mar 11, 2010 at 8:18 PM
Subject: CHS
To: cwhite@mywesthartfordlife.com
Chris,
I have met you, though you won’t remember me. This is to
officially inform you that I have heard of your subcomittee’s [sic]
inability to reach a proper settlement that will change the way
things are run at CHS.
This is also to officially inform you that, instead of Richard
Johnston’s name, yours will be primary in my future postings on
my
200+ facebook page, my twitter updates, and, given I have been
both on
tv and radio commenting on this issue, I will focus on your name
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the next media appearance I get.
I hope things can be resolved sooner rather than later, as I like
you as a person, but I cannot allow things to continue as they are
without speaking out. And I am holding you personally responsible
for the failure to work things out, because I know of your role, and
am confident in your ability to make a meaningful change in CHS
management.
All of these posts, including the letters sent by Karchere to the BoD, consist of
essentially similar complaints about Respondent’s treatment of its employees, its allegedly
unlawful discharge of Karchere and Lord, its reaction to the unionization of its employees and
how management operates the facility. Some of the posts and letters include accusations
against various individual managers, particularly Johnston as well as members of the BOD. It is
these references that Respondent particularly objects to, and that it argues warrants a denial of
reinstatement to Lord and Karchere.
The specific comments relied upon by Respondent are as follows:
Ms. Karchere:
If I were lying I would be acting like CHS management and the
[Board of Directors].
Misuse of funds, harassment of employees, and animal abuse and
neglect; and they continue to operate in this fashion
I can’t wait to see what the public does to these criminal managers
and corrupt [Board of Director] members.
Everything he [Chris White, Chair of the CHS Board of Directors]
says and does gets exposed, as do all the lies and corruption that
management is cooking up at CHS.
This goes to show you, the people running the shelters are the
same people Richard put in place…the place is the same with or
without Richard. We need to clear this management and [Board of
Directors] out now and fast!
Those managers are heartless, crazy, selfish, and in denial.
And one last retort I have for Karyn Cordner, from the CHS Board
of Directors [and] now District manager, who by the way does not
have the experience to run any shelter let alone be an animal care
worker…
The answer is your behavior staff are completely unqualified and
so are you and your entire executive/management team.
The current management and [Board of Directors] were appointed
by Richard [Johnston] and continue to manage as though he is
still there. The only way to repair the damage that’s been done is
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to remove the obviously corrupt executives, managers, and Board
members.
And of course, promote the wonderful, dedicated, and
knowledgeable staff who truly keep that place going. Not the
Richard yes men who continue to make poor decision and harass
employees.
Ms. Lord:
[Regarding a newly formed “euthanasia team”]: The token team
members who have not sided with these managers (who happen
to be their superiors) are most likely not respected by the
managers and are probably fearful to fully stand by their opinions
for fear of disciplinary action. This is the same way the
organization has operated for years.
[People] do not believe that things are getting better. Also, new
policies are only as good as the people implementing them.
If people have been proven to make bad decisions time and time
again, no policy will turn them into effective leaders.
Anyone who knows the first thing about running a business knows
that demonizing and harassing employees can only hurt business.
I am not exaggerating when I say demonizing. The things that I
have heard managers at all levels say about employees…Their
behavior would be completely inappropriate even if the things they
said were true, but it is even worse because they are absolutely
untrue. It is absolutely essential for the entire management culture
to change. Perhaps bringing in a competent new Executive
Director…can change the practices of every one of these abusive
managers and hold them accountable for their previous actions,
other personnel changes may need to be made as well.
Mr. Luberda:
[T]his is not simply a question of a couple of disgruntled
employees. It’s a testimony to a pattern of mismanagement, and,
frankly, abuse, under Richard Johnston.
Based on my personal interaction with Chris White [Chair of the
CHS Board], let alone the public evidence before us showing that,
just like Richard Johnston, he has profited from CHS while
enabling a toxic (literally) environment for staff and animals, I can
assure you he is no better than Richard Johnston. I would strongly
suggest boycotting his publications…until he steps down.
[Regarding Chris White] That, fundamentally, is the purpose of
sharing this exchange on the heels of the sharing of Cathy’s quite
separate exchange with him – to give more public evidence of his
character which, as even the title of this blog post suggests, is, to
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say the least, questionable.
Respondent argues that both Karchere and Lord made “ugly, insulting statements about
the executive leadership and governing structure of CHS, the same management that they
would be expected to work with should they be reinstated.” It also asserts that Karchere and
Lord lost the protection of the Act by their comments as described above. Trus Joist MacMillan,
341 NLRB 369, 371-372 (2004).
However, Respondent’s reliance on Trus Joist MacMillan, supra, is misplaced since that
case was decided under a different rationale and standard applying Atlantic Steel Co.28
principles, which are not appropriate here.
The Board has recently clarified this issue in Hawaii Tribune-Herald, 356 NLRB #63
(2011) and made clear that the post-discharge conduct or disparagement must be evaluated
under the standard of whether such conduct “was so flagrant as to render the employee unfit for
further service or a threat to the efficiency of the plant.” Id at p.2, citing O’Daniel Oldsmobile,
Inc., 179 NLRB 398, 405 (1969).
Respondent responds by asserting that since Lord, Karchere and Luberda accused
managers and board members of “lying, misusing funds, abusing animals, corruption and
harassment” that they can no longer “function as members of a team when they have
systematically poisoned virtually all their relationships.” Therefore, Respondent asserts that Lord
and Karchere have rendered themselves “unfit for further service or a threat to efficiency” in
Respondent’s organization. Hawaii Tribune-Herald, supra; O’Daniel Oldsmobile, supra.
Once again, I cannot agree with Respondent’s contentions. The first problem with
Respondent’s argument is that it adduced no evidence from any witnesses of Respondent that
anyone from Respondent believed that the conduct of Lord, Karchere or Luberda made Lord or
Karchere unfit for service or a threat to efficiency or that they (Lord and Karchere) have
“poisoned their relationships” or that they can no “longer function as members of a team.” These
sweeping contentions are simply made in Respondent’s brief without any evidentiary support
that any management official or member of the BOD so believed. Since it is Respondent’s
burden to prove its affirmative defense that reinstatement is unwarranted, it has failed to do so
for this reason alone. George A. Hormel & Co., 301 NLRB 47 (1991), enfd. denied on other
grounds, 962 F.2d 1061 (DC Cir. 1992) (respondent failed to meet its burden of proof);
Berkshire Farm Center, 333 NLRB 367 (2001) (Board reverses judge who simply found that
misconduct occurred that justified denial of reinstatement without any evidence that employer
would have terminated employee for engaging in such conduct); Tel Data Corp., 315 NLRB 364,
367 (1994) (employer failed to meet its burden of establishing that it would have discharged
employee for engaging in conduct discovered post-discharge); Owens Illinois, 290 NLRB 1193,
1194 (1988) (respondent introduced no evidence to establish that misconduct of employee
would have any impact on performance if reinstated); Cf. Aldworth Co., 338 NLRB 137, 147
(2002) (employer met its burden by establishing, based on record evidence, that it would have
terminated employee for engaging in the misconduct, not discovered until after the discharge).
See also Family Nursing Home, 295 NLRB 923 fn.2, 928 and 931 (1989) (reinstatement denied
based on post-discharges assault of supervisor, where employer had adduced testimony that it
considered conduct of employee to be a risk to patients, and respondent would not rehire her).
I, therefore, conclude that for this reason alone Respondent has failed to meet its burden

28 245 NLRB 814 (1979).
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of proof that the post-discharge conduct of Karchere or Lord disqualified them from the Board’s
normal remedy of reinstatement and full back pay.
Apart from that issue, and even assuming that Respondent adduced the evidence that I
believe would be required in order to at least arguably meet its burden, I conclude that
Respondent has fallen short of establishing under Board and Court precedent that either
Karchere or Lord were “unfit for further service or a threat to the efficiency” of Respondent as a
result of their post-discharge conduct.
My examination of the relevant precedent reveals that generally this stringent standard
necessary to disqualify discriminatorily discharged employees from reinstatement is met by
conduct involving threats of violence or bodily harm or actual acts of violence. Hadco Aluminum
& Metal Corp., 331 NLRB 518, 521 (2000) (employee threatened another employee over the
phone by stating “you’re going to be dead”); Alto-Shaam, Inc., 307 NLRB 1466, 1467 (1992)
(threat made to employee at home by discriminatee that she should strike “if you valued your
life,” held to be threat of bodily harm); Family Nursing Home, supra, 295 NLRB at 923 (assault
against employer’s director of nursing); Roure Bertrand Dupont, 271 NLRB 443, 444-445 (1984)
(unlawfully discharged strikers throwing nails at truck driver by employee of different employer;
Board concludes that reinstatement should not be awarded to employee, who “purposefully
disregards the safety of employees and non-employees and intentionally attempts to injure them
and the public at large”); Fairview Nursing Home, 202 NLRB 318, 322, fn. 36 at 325 (1973)
(discriminatee rammed a shopping cart into side of car of employee).
In contrast, the Board, supported by the Courts, has been extremely reluctant to deny
reinstatement to discriminatorily discharged employees for conduct consisting of statements
made disparaging the business operations of the employer or the employer’s officials,
particularly where the statements were made in the context of protesting their unlawful
terminations. Hawaii Tribune-Herald, supra, slip at 21-22 (discharged employee criticized on a
blog and at a meeting, employer’s management practices); Dearborn Big Boy No. 3, 328 NLRB
705, 709, 711-712 (1999) (employee cursed at supervisor twice using the F-word, and then
when picking up her belongings, she called supervisor a stupid, f-cking bi-ch, and as she was
leaving again called supervisor a s-o-b; all of these comments were made in the presence of
customers in the store); George A. Hormel & Co., 301 NLRB 47 (1991), enfd. denied on other
grounds 962 F.2d 1061 (DC Cir. 1992) (discharged employee handed out leaflet attacking
employer’s product and telling an employee that employer’s product “can kill people”); C-Town,
281 NLRB 458, 458 (1986) (employee made racially inflammatory slur directed towards her
replacement); Timet, 251 NLRB 1180, 1180-1181 (1980) enfd. 671 F.2d 973 (6th Cir. 1982)
(letter distributed by employee accusing employer of providing “false testimony” at hearing
before judge and accusing employer of “expressed and implied tyranny” does not disqualify
employee from reinstatement, particularly since statements were made in context of protesting
his unlawful discharge); J.W. Microelectronics Corp., 259 NLRB 327, 327-328, 333-335 (1981)
(discriminatee made racially derogatory remarks about white supervisor; employee said “why
should we listen to these people…and their lies…we know all Caucasians are animals”);
Teamsters, Local 705, 244 NLRB 794, 796-797 (1979) enfd. denied on other grounds 630 F.2d
505 (7th Cir. 1980) (accusation made by discharged employees in pamphlet that union
secretary/treasurer was a thief, and union members’ pensions were being stolen); Pincus Bros.,
241 NLRB 805, 809 (1979) enfd. denied on other grounds 620 F.2d 367 (3rd Cir. 1980)
(discriminatee published article in “dissident” newspaper accusing employer of being “crooks”
and of stealing from employees); Golden Day Schools, 236 NLRB 1292, 1297 (1978), enfd. 644
F.2d 834, 841 (9th Cir. 1987) (discharged employees distributed flyer to parents of students
while picketing; flyer disparages employer’s service and facilities including accusing it of serving
spoiled food, having water fountain with dirty water, using unsafe buses and having children
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sleep on dirty cots; flyer also protests unlawful discharge of employees for organizing to protest
the conditions complained of in leaflet; Court sustained Board’s finding that reinstatement rights
had not been forfeited even though leaflet used “harsh language and made serious charges, not
all of them true,” 644 F.2d at 841-842); Coors Containers Co., 238 NLRB 1312, 1320 (1978)
(employees displayed sign stating “Boycott Coors – Scab Beer,” and when ordered by security
guards to stop displaying sign, called security guards “mother-fuckers”); The Mandarin, 228
NLRB 930, 931-932 (1977), enfd. sub nom. 621 F.2d 336 (9th Cir. 1980) (discharged employee,
after judge’s decision, distributed letter to employees announcing judge’s decision that ordered
him to be reinstated and included various attacks on employer’s manager referring to him as
“pompous,” “arrogant” and accusing him of “lying;” letter also referred to manager’s “Jewish
boss” and asserts that manager was “exploited by his Jewish boss to oppress his own
countrymen”; Board observed that it did not condone any racial or ethnic slurs that these
comments might imply, but finds that letter was insufficient to disqualify employee from
reinstatement, particularly where it is part of protecting employee’s unlawful discharge);
O’Daniel Oldsmobile, supra, 174 NLRB at 398, 404-405 (handbills distributed by unlawfully
locked out employees disparaging employer’s business and warning customers not to “entrust
their business to unqualified scabs”).
Here, there is no allegation that either Lord or Karchere engaged in any conduct that can
be construed as threatening or engaging in violence or any other conduct justifying
Respondent’s failure to reinstate them. I find that the assertions made on George Gombassy’s
blog by Karchere and Lord and Luberda,29 while at time harsh and unflattering, were little
different than the comments described in the above cited cases,30 where reinstatement was
ordered.
I also note, as in many of the above cases, that the comments made by Lord, Karchere
and Luberda were all made in the context of protesting the unlawful discharge of Karchere and
Lord.
Respondent argues that the attacks on Chris White, the current president of the Board,
were particularly outrageous since he had nothing to do with the decision to discharge the
employees. However, this alleged fact has not been established by any evidence. Moreover, I
note that the record discloses that although White did not become president of the Board until
after the discharges, he was a member of the Board previously. Thus, he conceivably could
have been involved in the decision to discharge Lord and Karchere. Further, the blogs reveal
that White was involved in attempting to settle the issue of the discharges of Karchere and Lord,
and indeed the accusation made by Karchere that White “lied” related to her assertion that
White had lied about his efforts to meet with the discriminatees.
In this regard, Respondent asserts that the statements made by the employees had “no
basis in fact or reasonable belief.” Respondent attempts to distinguish Hawaii Tribune-Herald in
this respect since the Board therein relied in part on a finding that there was no evidence that
the statements made by the discriminatee, were made “with knowledge of their falsity or
reckless disregard for their truth or falsity.” Respondent notes in this regard that neither the

29 I shall assume, without deciding, that Lord can be held responsible for the comments of
her live-in boyfriend in assessing her fitness for reinstatement. I have serious doubts about such
a conclusion, but I have considered Luberda’s statements as well as the comments of Lord.
30 Hawaii Tribune-Herald, supra; George Hormel, supra; J.W. Microelectronics, supra;
Teamsters, Local 705, supra; Pincus Bros., supra; Golden Day Schools, supra; The Mandarin,
supra.
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General Counsel nor Charging Party showed that the employees’ statements had “any basis in
fact or reasonable belief.” However, Respondent has misperceived its burden of proof. It is
Respondent’s burden to establish that the employees’ conduct disqualified them from
reinstatement and that the burden includes establishing that the statements were made “with
knowledge of their falsity or reckless disregard for their truth or falsity.” Indeed, Hawaii Tribune-
Herald, supra is not to the contrary. The finding there that there was no evidence that the
statements were made with knowledge of their falsity or reckless disregard for their truth or
falsity “was based on the Employer’s failure to establish these assertions.” There was no finding
made there that the employee had any basis in fact or a reasonable belief in his assertions.
Similarly, here, Respondent has adduced no evidence that any of the assertions made
by Lord or Karchere were not based on facts or a reasonable belief of the employees. Contrary
to Respondent’s contention, it is not the burden of General Counsel or Charging Party to
affirmatively establish that the employee statements were based on facts or a reasonable belief
that they were true.
I note, however, that there is some evidence in the record that the employees did have
some factual basis for some of their statements. Respondent relies on the assertion that
employees accused management and BOD members of lying. However, as noted above,
Karchere specifically accused White of lying when he allegedly told donors that he and the BOD
had met with the discharged employees, including Karchere and Lord,31 in an attempt to settle
the issues. In fact, according to Karchere, no such meeting took place. Significantly,
Respondent adduced no evidence from White or anyone else that Karchere’s assertions in this
respect were untrue. Similarly, Respondent asserts that the employees accused Respondent of
corruption, misuse of funds and criminal activities. Once more, Respondent adduced no
evidence that any of the accusations made by Karchere or Lord in this regard were not true or
were not based on a reasonable belief. Further, both Karchere and Lord expressed their
extreme disapproval of Respondent’s conduct of spending large amounts of money that should
have gone towards the care of animals on fighting the union and fighting the unlawful discharge
allegations in the instant case. More specifically, Karchere notes in her post of June 19, 2010
that a former member of the BOD was a member of the law firm representing Respondent in
this case as well as in the representation case, where Respondent is contesting the Union’s
certification. Karchere notes in her post that Respondent is spending “in the ball park of around
$1000.00 an hour” on a partner in the law firm fighting the Union and the employees’ decision to
unionize. Thus, while the assertion that this conduct by Respondent, assuming it to be true, is
evidence of corruption or criminal activities may be construed as “hyperbole,” it is not
unreasonable to argue that spending large amounts on legal fees rather than on animal care is
misuse of funds and evidence of corruption. In any event, as I have observed several times
above, Respondent has not introduced any evidence that any of the assertions made by Lord,
Karchere or Luberda were untrue or not based on a reasonable belief of the speaker.”32
Respondent also argues that the accusations made by Lord, Karchere and Luberda
about the competency of the managers and the BOD, as well as the accusations described
above,33 make their reinstatement a “threat to efficiency” of Respondent, O’Daniel Oldsmobile,

31 Employees other than Lord and Karchere were also terminated, but are not
discriminatees here.
32 I note that in making this finding, I need not and do not decide whether or not if
Respondent had made such a showing that it would be sufficient to disqualify the employees
from reinstatement.
33 Corruption, criminal behavior, lying, misusing funds.
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supra. Respondent asks, “How can they function effectively as members of that team when they
have systematically poisoned virtually all their working relationships?” I cannot agree with
Respondent’s contention in this regard.
While there may very well be bitterness created by the employees about management,
speculation on how that would affect future relations between the discriminatees and current
management is insufficient to disqualify employees from reinstatement. Owens Illinois, 290
NLRB 1193, 1194 (1988). The Board standard remedy for unlawful discharge is reinstatement,
and speculation concerning possible “dysfunction” is insufficient reason to depart from the
Board’s established remedy. The Lorge School, 352 NLRB 119 (2008). While Respondent’s
action in firing Lord and Karchere may have created bitterness and undermined their loyalty, but
if so, Respondent has only itself to blame since Respondent unlawfully terminated them in the
first place. The Lorge School, supra; NLRB v. Advertisers Manufacturing, 823 F.2d 1086, 1089
(7th Cir. 1987).
Further, an important basis of reinstatement orders is the object that other employees be
made aware through the discriminatees’ return to their former job that their rights to engage in
concerted activities are protected by the Act. Thus, here, since the post-discharge assertions
made by Lord and Karchere were part of their protesting their unlawful discharges and
Respondent’s decision to oppose unionization of its employees, it is important that other
employees be informed of their rights to engage in such activities. The Mandarin, supra, 228
NLRB at 930. Therefore, despite the difficulties that could be engendered by reinstating
employees, who have made the accusations detailed above, about management34 and the
BOD, it is incumbent upon Respondent and the discriminatees “to attempt to work together
harmoniously and forget past animosity.” The Mandarin, supra (rejecting contention of employer
that reinstatement would result in an impossible situation because discriminatee “villified,
ridiculed and rebuked” manager); Accord, Trustees of Boston University, 224 NLRB 1385
(1976), enfd. 548 F.2d 391, 393-394 (1st Cir. 1977).
Accordingly, based on the analysis, detailed above, and the precedent that I have cited, I
conclude that Respondent has fallen far short of meeting its burden that either Lord or Karchere
engaged in conduct that rendered them “unfit for further services or a threat to efficiency” should
they be reinstated. I shall therefore order the normal reinstatement for both employees.
D. The Alleged 8(a)(1) Conduct
1. The October and November Conversations with Lord and Karchere
On October 23, two days after the petition was filed, Johnston conducted a meeting of
various individuals, including Lord, Wright, Gasecki, Zaluski, Draper and two team leaders,
Baker and Clavette.35 Johnston informed the participants that Respondent had received a
petition for a union election and that he was surprised. He informed those present that
Respondent did not believe that a union would be beneficial to the employees or the pets and
that this would be management’s stance, and those present would be expected to back-up and
support that position. Johnston asked if anyone at the meeting had heard anything about the
Union. No one answered. Johnston added that if anyone heard anyone talking about the Union,
they should give their names to Marzano.

34 I do note, in this respect, that Johnston, who was the subject of most of the criticism and
accusations made by the discriminatees, is no longer employed by Respondent.
35 Karchere was not present.
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Since Lord was present at this meeting, and I have found her to be an employee and not
a supervisor or a managerial employee as Respondent contends, Johnston’s comments
violated the law in several respects. By asking Lord if she heard anything about the Union,
Respondent has coercively interrogated her in violation of Section 8(a)(1) of the Act.
In assessing the lawfulness of interrogations, the Board applies a totality of
circumstances test adopted in Rossmore House, 269 NLRB 1176, 1178, fn. 20 (1984). Various
factors are examined including whether the employer has a history of hostility to union activity;
the nature of the information sought; the identity of the interrogator, i.e. his or her placement in
the respondent’s hierarchy; the place and method of the interrogation; and the truthfulness of
the interrogated employee’s reply. The Board also considers it highly significant whether the
employees are open and active union supporters. Camaco Lorain Mfg. Plant, 356 NLRB No.
143 slip op at 1 (2011); Boulder City Hospital, 355 NLRB #203 ALJD slip op at 9 (2010);
Evergreen America, 348 NLRB 178, 208 (2006). Here, I find that Johnston’s questioning Lord
about whether she heard anything about the Union constituted coercive interrogation since the
inquiry was made by Johnston, the highest official of Respondent, Salon/Spa at Boro Inc., 356
NLRB #69 ALJD slip op at 15 (2010); Boulder City Hospital, supra at 9; Gelita USA Inc., 352
NLRB 406, 410-411 (2008); Lord was not an open union supporter at the time of questioning,
Evergreen America, supra, 348 NLRB at 208; Demco New York Corp., 337 NLRB 850, 851
(2002); Heartland of Lansing Nursing Home, 307 NLRB 152, 155 (1992); and Lord attempted to
conceal her previous union activities by failing to respond to Johnston’s inquiry, Camaco Lorain,
supra, 356 NLRB slip op at 1 and 2; Sproule Construction Co., 350 NLRB at 774, fn. 2, 780
(2007); Evergreen America, supra, 348 NLRB at 208; Westwood Health Care Center, 330
NLRB 935, 940-941 (2000); Grass Valley Grocery Outlet, 338 NLRB 877, 879, fn. 1 (2003).
Respondent further violated Section 8(a)(1) of the Act at that meeting when he instructed
Lord that if anyone heard anyone talking about the Union, they should give their names to
Marzano. Wal-Mart Stores, 340 NLRB 220, 223-225 (2003) (employer instructing department
managers that they could not participate in union activities and they were to report union activity
to management unlawful since department managers were not supervisors); American Standard
Cos., 352 NLRB 644, 653 (2008) (informing employees to survey union activities of other
employee and to report such activities back to employer).
On November 4, two days after the scheduled representation hearing, which resulted in
an agreement to hold an election, Gasecki asked Karchere to come into a conference room.
Gasecki asked Karchere if she heard anything about the union activity, knew what was going on
with that or what “situations might have provoked it.” I find for reasons similar to Johnston’s
comments at the meeting, where Lord was present, that Gasecki’s comments constituted
coercive interrogation. Karchere was not an open union supporter, Evergreen America, supra;
Demco New York, supra, and the inquiry was made by a high ranking official of Respondent,
Camaco Lorain, supra; Boulder City Hospital, supra.
Further, when Gasecki informed Karchere that if she heard anything (about union
activities) to let him know, Respondent also violated Section 8(a)(1) of the Act by instructing her
to report union activity to management, Wal-Mart, supra.
On November 6, Johnston engaged in more unlawful conduct during separate
conversations with Karchere and Lord. Both meetings were in the small conference room. At
Karchere’s meeting, in addition to Johnston, Gasecki and Wright were also present. Johnston
informed Karchere that he considered her to be a manager and wanted to know what she had
heard. Karchere replied that employees were upset with company policies, such as benefit time
being taken in proper increments. Johnston repeated that Karchere was a manager and he
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expected her to take that position and “report anything” to him that she heard or saw. Once
again, by instructing Karchere, a statutory employee to report to Respondent any union
activities that she heard or saw, Respondent violated Section 8(a)(1) of the Act, Wal-Mart,
supra. By questioning Karchere about what she had heard about the Union, Respondent
engaged in coercive interrogation in violation of the Act. Karchere was not an open union
support, Camaco Lorain, supra; Evergreen America, supra, and the questioning was conducted
by Johnston in presence of Gasecki, the two highest level officials of Respondent, Salon/Spa at
Boro, supra; Boulder City Hospital, supra. Furthermore, the questioning was accompanied by
other unfair labor practices, the unlawful instruction to report to Respondent any union activities.
Where, as here, the interrogation is accompanied by other unlawful conduct, it is strongly
indicative of coercive conduct, Evergreen America, supra, 348 NLRB at 208; Parts Depot, 332
NLRB 670, 673-674 (2000); Advance Waste Systems, 306 NLRB 1020 (1992).
Similarly, when Johnston in the presence of Gasecki asked Lord why the Union would
argue at the representation proceeding that Lord should be included in the unit, Lord responded
that she had no idea why the Union would do that. This questioning by Johnston in the presence
of the other two highest company officials,36 in addition to himself, of a non-open union
supporter37 is coercive, particularly, where as here, Lord declined to answer truthfully, Camaco
Lorain, supra, 356 NLRB slip op at 1 and 2; Sproule Construction, supra, 350 NLRB at 774, fn.
2.
Respondent’s unlawful conduct continued on November 13 when it had virtually identical
but separate discussions with Karchere and Lord. In both conversations, Johnston, in the
presence of Marzano and Gasecki, asked the employees if they were aware of or had listened
to management’s position on the Union previously stated, and whether they were prepared to
support such a position. The employees replied that they were aware of that position and were
willing to support it. Johnston informed both employees that he had been informed by a “reliable
source”38 that they had been involved in activities in support of the Union.
Karchere asked who and what was said about her. Johnston refused to respond to
Karchere. She then denied engaging in any union activity. After Johnston asked for Lord’s
response to the accusation that she engaged in union activities, Lord replied that she was
uncomfortable continuing the discussion. Johnston informed both Karchere and Lord that
Respondent was contemplating future disciplinary action against them and its decision would be
based on the success that they would have in reversing the support of other employees for the
Union that they (allegedly) had accomplished by their union activity. Johnston also added that
he was cancelling an educational conference trip that Respondent had previously planned for
Lord to attend.
I find that Johnston’s threat to discipline both Karchere and Lord unless they were
successful in “reversing” their previous union support amongst employees is a clear violation of
Section 8(a)(1) of the Act. Pepsi Cola Bottling Co., 301 NLRB 1008, 1014 (1991).39

36 Salon/Spa at Boro, supra.
37 Camaco Lorain, supra.
38 While Johnston did not inform Lord or Karchere who the reliable source was, the evidence
discloses that the source was Patterson. As noted above, Patterson, Respondent’s district
manager as its Waterford facility, informed Respondent that Lord and Karchere had phoned her
and asked her to inquire whether employees at her facility would be interested in attending a
meeting with union representatives.
39 I make no finding that Respondent’s decision to cancel Lord’s attendance at a previously
Continued
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I also conclude that Respondent once again unlawfully interrogated Lord and Karchere
when he asked them about the accusation from a “reliable source” that they engaged in union
activities despite being aware of management’s position on that subject. Once more, the
questioning was asked by the highest ranking management representative, in the presence of
the next two highest ranked officials, was made to non-open union adherents, resulted in
evasive and/or untruthful replies from employees and was accompanied by unlawful threats of
discipline. Such questioning is clearly coercive under Rossmore standards. I so find.
General Counsel also asserts that Johnston unlawfully created the impression of
surveillance of employees by informing Lord and Karchere that Respondent had received
reports from a “reliable source” that they had engaged in union activities. Studio 54, 260 NLRB
1200, 1204 (1982).
This issue is not free from doubt. The Board’s test for determining whether an employer
has created an unlawful impression of surveillance as whether under all the relevant
circumstances reasonable employees would assume from the statement in question that their
union or protected activities had been placed under surveillance. Stevens Creek Chrysler, 353
NLRB 1294, 1295-1296 (2009); Bridgestone Firestone South Carolina, 350 NLRB 526, 527
(2007).
Where an employer tells employees that it is aware of their union activities but fails to tell
them the source of that information, Section 8(a)(1) is violated because employees are left to
speculate as to how the employer obtained the information causing them reasonably to
conclude that the information was obtained through employer monitoring. Stevens Creek
Chrysler, supra at 1296; Conley Trucking Co., 349 NLRB 308, 315 (2007).
In contrast, where an employer tells employees that it learned of their union activities
from another employee, the Board concludes that comments in such circumstances do not lead
employees to believe that their union activities are under surveillance. Park ‘N Fly Inc., 349
NLRB 132, 133 (2007); North Hills Office Services, 346 NLRB 1099, 1103-1104 (2006);
Register Guard, 344 NLRB 1142, 1144 (2005).
Here, Johnston informed Karchere and Lord that Respondent had obtained the
information about their union activities from a “reliable source.” He did not identify the reliable
source and did not inform Karchere or Lord that its source was another employee. In the
circumstances here, I conclude that Respondent’s failure to identify its “reliable source” renders
his comments coercive and unlawful. Stevens Creek Chrysler, supra, 353 NLRB at 1296
(employer must tell employees the source of their information about their union activities). See
also Ridgeview Industries, 353 NLRB #119 at 1096, 111 (2009) (employer did not inform
employees of a legitimate source for the information). I find it significant here that Karchere
pressed Johnston to disclose his “reliable source” but he failed to do so. In such circumstances,
Karchere could reasonable believe that Respondent acquired its knowledge by surveilling her
union activities. Classic Sofa, 346 NLRB 219, 221 (2006). Further, in both conversations with
the employees, Johnston accompanied his comments about being aware of their union activities
with unlawful threats to discipline the employees. Thus, Johnston apparently did not believe the
employees’ denials that they engaged in union activities since he ordered them to “reverse” the
_________________________
scheduled educational conference was unlawful since the complaint makes no such allegation.
Nor does General Counsel assert in its brief that such violation should be found or that the issue
was “fully litigated.”
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union support that they allegedly had effectuated. Classic Sofa, supra (fact that employee
denied engaging in union activities when confronted and employer continued to press issue
could reasonably lead employee to believe that knowledge obtained by surveilling union
activity). I conclude that Johnston’s accompanying threats conveyed the message to Lord and
Karchere that they were being watched and their union activities were under scrutiny, and is
supportive of my conclusion that by his comments, Johnston unlawfully created the impression
of surveillance. Beverly California, 326 NLRB 232, 233 (1998) (employer did not identify source
of information and made clear its displeasure with employee’s union activities); Flexsteel
Industries, 311 NLRB 257, 257-258 (1993) (reference to employee’s union activities in contest
of unlawful interrogation would reasonably lead employee that his protected activity was under
surveillance); United Charter Service, 306 NLRB 150, 151 (1992) ( employer accompanied
comments about knowledge of union activities of employees with unlawful threats).
Accordingly, I find based on the foregoing that Johnston’s remarks about his knowledge
of the union activities of Lord and Karchere created the impression that their union activities
were under surveillance and were violative of Section 8(a)(1) of the Act.
2. Johnston’s November 27 Letter
As part of its campaign literature, Respondent issued a letter dated November 27, which
included the following paragraph:
Finally, please remember that the only leverage a union has is the
threat of strike. If the union calls a strike you may have no
reasonable choice but to join it. If that happens, you can be
without wages, without health insurance, or you[r] other benefits
for weeks, or months, or longer. Some employees could even find
themselves without a job when the strike is over. You can be sure
that doesn’t happen by voting ”no” on December 4.
General Counsel asserts that the letter’s statement that in the event of a strike “some
employees could even find themselves without a job when the strike is over” is unlawful since it
reasonably links the act of striking with the loss of jobs. A.P. Automotive Systems, 333 NLRB
581 (2001). I agree.
An employer does not violate the Act by informing employees that they are subject to
permanent replacement in the event of a strike. Eagle Comtronics, 263 NLRB 515, 516 (1982).
Further, an employer need not fully explain the nature and scope of the Act’s protections for
replaced strikers. Superior Emerald Park Landfill, LLC, 340 NLRB 449, 462 (2003); Unifirst
Corp., 335 NLRB 706 (2001); Quirk Tire, 330 NLRB 917, 926 (2000), enfd. in part 241 F.3d 41
(1st Cir. 2001).
However, where an employer’s statements about permanent replacements make
specific references to job loss, such statements are generally deemed to be unlawful since they
convey to employees the message that their employment will be terminated. Wild Oats Market,
344 NLRB 717, 740 (2005). Such comments are deemed to be inconsistent with and contrary to
employees Laidlaw40 rights. Kentucky River Medical Center, 340 NLRB 536, 546-547 (2003)

40 Laidlaw, 171 NLRB 1366 (1968) (permanently replaced strikers, who have made
unconditional offers to return to work, are entitled to full reinstatement upon the departure of
replacements.)
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(statement by employer that if there was an economic strike employees would be replaced, and
if and when the strike is over, they had a position open for employees they would have a job, if
there was no position for them, they would not have a job); Fern Terrance Lodge, 297 NLRB 8,
8-9 (1989) (“an employer has the legal right to permanently replace the striking employees and
the replaced striker is not automatically entitled to his job after the strike ends,” found by Board
to unlawfully imply that employees would be deprived of Laidlaw rights to be placed on
preferential hiring list and wait for openings to occur); Hajoca Corp., 291 NLRB 104, 105 (1988)
(employees told that if they went on strike they could be permanently replaced and they would
no longer have jobs with the employer).
Here, Respondent’s comments simply equated job loss with a strike without even
mentioning the possibility of its hiring replacements. Such comments are clearly unlawful since
they link striking with job losses and are far more coercive than the numerous cases that find
threats of job loss unlawful, even where it is accompanied by lawful statements of an employer’s
rights to hire replacements. Wild Oats, supra, 344 NLRB at 740 (“when unions go on strike,
wages can be lost and many have lost their jobs because striking workers are replaced”); Gelita
USA Inc., 352 NLRB 406, 406-407, 409-410 (2008) (employer told employees that economic
strikers would have no job protection if replaced); Superior Emerald Park, supra, 340 NLRB at
462-463 (employer informed employees that if they go on strike they might not have a job to
return to because the company would not be required to rehire them if they had been
permanently replaced); Mediplex of Danbury, 314 NLRB 470, 470-471 (1994) (employer
informed employees that its Westport facility, after union was voted in, they went on strike,
permanent replacements were hired and striking employees were terminated); Kentucky River,
supra; Baddour Inc., 303 NLRB 275 (1991) (“you could end up losing your job by being replaced
with a new permanent worker”); Larson Tool & Stamping, 296 NLRB 895, 895-896 (1989)
(employees could lose their jobs to permanent replacements).
Therefore, based on the above analysis and precedent, I find that Respondent has
further violated Section 8(a)(1) of the Act by threatening job loss in its November 27 letter.
3. Johnston’s Group Meeting of December 2
General Counsel contends that Respondent violated Section 8(a)(1) by Johnston’s
comments and conduct at the meeting he conducted on December 2 with employees from
Newington and Westport. As I have related above in the facts, there are differences, some of
them significant, between the testimony of Karchere and Lord concerning Johnston’s
statements at this meeting. They were the only witnesses to offer testimony concerning the
events at that meeting. I credit Lord’s version of Johnston’s comments since I found her
testimony more believable and was consisted with the talking points given to Johnston by
Respondent’s attorney prior to the speech and with the statements made by Respondent in its
campaign literature.
In this regard, General Counsel asserts that an adverse inference should be drawn from
Respondent’s failure to call Johnston as a witness and/or from its failure to question Gasecki or
Marzano about the meeting. International Automated Machines, 285 NLRB 1122, 1123 (1987). I
do not agree. It is not appropriate to draw an adverse inference from the failure of Respondent
to call Johnston since his was no longer associated with or employed by Respondent at the time
of the trial. Goldsmith Motors Corp., 310 NLRB 1279, 1279, fn. 1 (1993). As for Respondent’s
failure to question either Gasecki or Marzano about the meeting, the record does not disclose
whether either of these individuals was present at this meeting.
That leaves the testimony of Lord and Karchere, and as related above, I found Lord’s
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version more credible.
Thus, I find that Johnston reminded employees that nothing is guaranteed in a contract
and that everything is up for negotiation, including benefits that the employees had, and those
all could change. General Counsel relies on Karchere’s version, not significantly different, and
that Johnston stated that benefits would be “up for grabs” if the Union was voted in.
General Counsel argues that Johnston’s comments threatened employees with loss of
benefits if employees supported the Union. Heartland of Lansing Nursing Home, 307 NLRB 152,
158 (1992). I disagree.
The comments made by Johnston were made in the context of an accurate description
of the collective bargaining process during which benefits currently enjoyed by employees can
change. Such statements do not threaten a loss of benefits are not unlawful. Wild Oats, supra,
344 NLRB at 717-718. (“In collective bargaining you could lose what you have now”); UARCO,
286 NLRB 55, 58 (1987); Jefferson Smurfit Co., 325 NLRB 280, fn. 3 (1998) (benefits could go
either way as a result of collective bargaining, i.e. employees could get more or less).
I shall therefore recommend dismissal of this compliant allegation.
General Counsel also argues that Johnston’s statements at the meeting unlawfully
threatened the inevitability of strikes. Valerie Manor, 351 NLRB 1306, 1310 (2007); A.P.
Automotive Systems, supra, 333 NLRB at 501.
Based on my factual findings related above, I found based on Lord’s credited testimony
that Johnston, after reminding employees that nothing was guaranteed in a contract and
everything was up for negotiation, pointed to a display that he had set-up in the front of the
room. On one side was a trash barrel with sticks coming out of it with an “on strike” sign. On the
other side of the room, there was a photograph of Respondent’s employees helping out with
animals during Hurricane Katrina. Johnston pointed to the latter photograph and said that is a
picture of what the CHS is now and this over here, pointing to the trash barrel, is what could
happen with a union.
I do not agree with General Counsel’s assertion that Johnston’s comments and
Respondent’s display conveyed to employees the inevitability of strikes. Stanadyne Automotive
Corp., 345 NLRB 85, 89-90 (2005), enfd. in pertinent part 520 F.3d 192 (2nd Cir. 2008) (display
of sign displaying plants closed where union represented employees, coupled with statements
by officials of employer, such as “where unions exist, strikes occur” and that the particular union
is “strike happy” held not to convey inevitability of strikes); Novi American, 309 NLRB 544, 545
(1992) (statement that the only way a union can pressure the company to agreed to its
demands is to call a strike held not to convey inevitability of a strike); Blue Grass Industries, 287
NLRB 274, 275 (1987) (slideshow depicting strikes did not convey message that strikes were
inevitable since it did not amount to prediction that strikes occur at employer).
In my view, Johnston’s comments, plus the display, consisted of lawful statements
protected by 8(c) of the Act. He was simply explaining the collective bargaining process and
informing employees that if the Union was unable to convince Respondent during their
negotiations to agree to the Union’s demands, a strike “could” result. There is no implication in
any of Johnston’s remarks that Respondent would not bargain in good faith with the Union or
that it would not agree to the Union’s demands or that it would force the Union to strike. Indeed,
the cases cited by General Counsel, A.P. Automotive Systems, supra and Valerie Manor, supra
include similar findings in order to conclude that the employers there conveyed to employees
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the inevitability of strikes. A.P. Automotive Systems, supra (employer’s position that it would not
agree to union’s demands and a strike would ensue held to convey inevitability of strike); Valerie
Manor, supra, 351 NLRB at 1310-1311 (employer unlawfully threatened futility). Devon Gables
Lodge & Apartments, 237 NLRB 775, 775-776 (1978) is also instructive. There, statements
were made by supervisors to employees that if the union won there would be a strike because
the owner in intended to go down fighting, held to convey inevitability of strikes. The Board, in
reversing the judge and finding violations, observed as follows:
We disagree. The speakers stated flatly, without qualification, that,
if the Union won, a strike would occur. The logical inference from
these statements is that no matter how negotiations progressed
and no matter what the Union sought from Respondent the
employees would nevertheless have to strike to obtain a contract.
It is clear that the statements about the inevitability of a strike
contained a threat that the Respondent would refuse to bargain in
good faith in order to insure a strike. Certainly, Chesnik’s
statement that Connelly would go down fighting indicates that
Respondent would itself act to induce a strike, no matter what
position the Union took. Therefore, we find that the statements of
Carlton and Chesnik that a strike was inevitable violated Section
8(a)(1) of the Act. Id at 776.
Here, by contrast, Respondent did not state “without qualification” that if the Union won,
a strike “would” (emphasis supplied) occur. Further, there is no indication in any of Johnston’s
comments that Respondent would refuse to bargain in good faith with the Union or even that it
would not agree to the Union’s demands.
Therefore, based on the above analysis and precedent, I shall recommend dismissal of
this allegation in the complaint.
4. Respondent’s Informing Lord and Karchere That They Were Terminated
Because of Their Union Activities
It is undisputed that on December 18, Respondent, by Gasecki, informed both Karchere
and Lord that they were being terminated because of their union activities. Such comments are
independently violative of Section 8(a)(1) of the Act. Mediplex of Danbury, 314 NLRB 470, 472
(1994); NKC of America Inc., 291 NLRB 683, 688 (1988). I so find.
E. The Objections
Respondent’s objections assert that objectionable conduct was established by virtue of
the pro-union activities of Lord and Karchere, who were, in its view, supervisors and/or
managers.
Since I have found, as detailed above, that neither Lord nor Karchere were 2(11)
supervisors or managerial employees as claimed by Respondent, I need go no further to
recommend dismissal of the objections, I so recommend.
However, in the event that my findings concerning the status of Lord or Karchere are
reversed, I deem it appropriate to express my views on the issues of whether their conduct
upset the laboratory conditions for a fair election.
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The Board utilizes a two-step inquiry to apply in cases involving objections to an election
based on pro-union supervisory conduct.
(1) Whether the supervisor’s prounion conduct reasonably tended
to coerce or interfere with the employees’ exercise of free choice
in the election.
This inquiry includes: (a) consideration of the nature and degree of
supervisory authority possessed by those who engage in the
prounion conduct; and (b) an examination of the nature, extent,
and context of the conduct in question.
(2) Whether the conduct interfered with freedom of choice to the
extent that it materially affected the outcome of the election, based
on factors such as (a) the margin of victory in the election; (b)
whether the conduct at issue was widespread or isolated; (c) the
timing of the conduct; (d) the extent to which the conduct became
known; and (e) the lingering effect of the conduct.
Harborside Healthcare, Inc., 343 NLRB 906, 909 (2004).
Respondent argues that the evidence establishes that the conduct of both Lord and
Karchere meets the standards set forth in Harborside, supra; Madison Square Garden CT, LLC,
350 NLRB 117, 120-123 (2007).
I shall first examine Respondent’s contentions based on a finding, contrary to my
conclusions set forth above, that Lord was a statutory supervisor at the time that she engaged in
pro-union conduct.41
In examining the first prong of the Harborside analysis, I must decide whether Lord’s
pro-union conduct reasonably tended to coerce or interfere with employee free choice. In
assessing that issue, Harborside makes clear that contrary to some prior precedent42 in order to
find that conduct reasonably tended to coerce or interfere with employee free choice, it is not
essential that the pro-union conduct include expressed threats or promises by the supervisors.
343 NLRB at 909, 913.
However, the principal pro-union activity relied on by Harborside as well as by Madison
Square Garden was the supervisor’s solicitation of authorization cards. Indeed, Harborside
characterized supervisory solicitation of authorization cards as having “an inherent tendency to
interfere with the employee’s freedom of choice to sign a card or not.” 343 NLRB 911. The
Board reasoned that “when a supervisor asked that a card be signed, the employee will
reasonably be concerned that the ‘right’ response will be viewed with favor, and a ‘wrong’
response with disfavor. Id.
Further, Harborside created another exception to Ideal Electric Co.,43 and found as in

41 Since Respondent concedes that Karchere was not a supervisor under Section 2(11) of
the Act, I need not consider her conduct vis a vis supervisory status.
42 Pacific Physicians Services, 313 NLRB 1176 (1994); Sutter Roseville Center, 324 NLRB
218 (1997); Pacific Micronesia Corp., 326 NLRB 458 (1998).
43 134 NLRB 1275 (1961) (elections generally cannot be set aside based on conduct
Continued
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NLRB v. Savair Manufacturing.,44 where an election was set aside based on union’s promise of
waiver of initiation fees, that objectionable conduct can be found on the basis of pro-union card
solicitation by supervisors, even if it occurred prior to the filing of the petition. Id at 912.
Another, but related rationale for finding supervisory solicitation of cards to be inherently
objectionable, was expressed in Madison Square Garden, supra, 350 NLRB 117, 120, fn. 10,
where the Board noted that such solicitations requires an employee to make an observable
choice, demonstrating support for or rejection of the union, similar to an unlawful interrogation
by an employer.
Here, the record contains no evidence that Lord solicited the signing of cards or
signatures on the union petition from any employees. Respondent argues that these principles
are applicable here since Lord was present at union meetings and observed employees signing
the petition and that employees, including Kuznir, who is under Lord’s supervision, observed
Lord signing the union petition. Respondent further relies on Lord’s conduct in calling Patterson,
Respondent’s district manager at its Waterford facility. In their first conversation, Lord asked
Patterson to let her know if any of the employees at Waterford were interested in meeting with
the union and with Newington employees to discuss unionization and to consider signing a
union petition in order to eventually have a union vote. Lord assured Patterson that the meeting
would be “off-property,” so if employees signed the petition their jobs would be safe.
Immediately after this conversation, Patterson spoke individually to the eight unit
employees at the Waterford facility, plus her assistant district manager, Brandon Guy. Patterson
informed each employee that she had received a call from Lord, who had informed her that the
Newington employees had met with a union representative. Patterson added that Lord had
asked her to find out if any of the Waterford employees were interested in attending such a
meeting. Patterson asked each employee how they felt about it. Each employee responded that
they were not interested in attending such a meeting and that they were happy working for
Respondent. They added, “Why don’t they leave us along?” Lord followed-up by calling a few
days later. Patterson was not there, so Lord spoke with Guy and asked if the Waterford
employees were interested in meeting with the Newington employees and the Union. Guy
replied, “No.”
A few days before September 23, Lord called Patterson at home. Lord asked Patterson
if she had spoken to the Waterford employees about meeting with the Union and the Newington
employees. Patterson replied that she had and that the employees at Waterford “wanted no part
of the Union.”
I conclude, contrary to Respondent’s contentions, that none of Lord’s conduct, including
her attending union meetings, signing a union petition in the presence of employees, observing
other employees, including Kuznir, signing the union petition or her conversation with Patterson,
wherein she encouraged employees to attend union meetings, either singly or collectively, was
the equivalent to solicitation of signing union cards or petitions, or that it reasonably tended to
coerce or interfere with employee free choice.45
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occurring before filing of the petition).
44 414 U.S. 270 (1973).
45 I note that both Charging Party-Petitioner and General Counsel contend that
Respondent’s objections should be dismissed on the grounds that all the conduct complained of
by both Lord and Karchere occurred outside the critical period, i.e. prior to the filing of the
petition. This position is incorrect. Harborside and Madison Square Garden make clear that card
Continued
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With regard to Lord’s attending union meetings, signing the union petition in front of
employees and observing other employees, including Kuznir, sign the petition, such conduct
does not reasonably tend to coerce or interfere with employee free choice. Northeast Iowa
Telephone Co., 346 NLRB 465, 466-468 (2006) (supervisor attended union meetings, signed
authorization cards in front of employees and spoke in favor of union at such meetings);
Stevenson Equipment Co., 174 NLRB 865, 866 (1969) (supervisors attended union meetings,
informed employees about the meeting, signed cards in front of employees and employees
signed in presence of supervisors).
Further, Lord made no comments directly to any Westport employees. To the extent that
Lord’s statements to Patterson about attending a union meeting that were transmitted to
Westport employees can be attributed to Lord, I find that what was stated to employees by
Patterson as coming from Lord was not objectionable. Essentially, all that Patterson told
employees was that Lord had requested Patterson to ask employees whether they were
interested in attending a union meeting, wherein they would discuss the signing of a union
petition. Such comments, even if made directly by Lord to employees, do not reasonably tend to
coerce or interfere with employee free choice. Northeast Iowa Telephone, supra; Stevenson
Equipment, supra; Terry Machine Co., 332 NLRB 855, 856 (2000) (supervisors encouraged
employees to attend union meetings). See also Harborside, supra, 343 NLRB at 911, where
Board observed that supervisor went beyond merely inviting other employee to union meetings.
Board emphasized that supervisor told employee that he “had to” attend union meeting. This
suggests that had supervisor merely asked employees to attend meetings (the conduct
engaged in by Lord), it would not be objectionable.
Respondent further argues that Lord’s comments to Patterson, wherein she informed
Patterson that employees would be “safe” from possible retaliation if they attended a union
meeting, constitutes a coercive “threat.” I cannot agree.
In my view, these comments cannot be reasonably construed as threatening retaliation
by Respondent or by Lord. She was assuring employees that the meeting would be held off
premises and that Respondent would not know about it. Thus, they would be “safe” from any
retaliation by Respondent.
More significantly, even if these comments by Lord to Patterson can be considered
coercive, there is no evidence that Patterson communicated that portion of Lord’s comments to
any employees. Therefore, it cannot be considered as objectionable since no unit employees
became aware of these statements by Lord.
Therefore, I find that Respondent has not met its burden of establishing the first prong of
Harborside, i.e. that Lord, even if she is found to be a supervisor, engaged in conduct that
reasonably tended to coerce or to interfere with employee free choice.
Even assuming that Lord’s conduct, described above, was found to meet the first prong
and coercive conduct was established, it would be necessary to evaluate the second prong of
the Harborside standards and consider whether Respondent has established that Lord’s
conduct materially affected the outcome of the election. Respondent has fallen woefully short of
meeting its burden in that regard. Respondent has not established that Lord had any
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solicitation and other pro-union conduct by supervisors relating to card signing can be
considered as objectionable conduct, even if it occurred prior to the filing of the petition.
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supervisory authority over the employees, except for Kuznir, that were present at the meetings
that she attended, wherein Lord signed the union petition and observed other employees sign or
employees at Waterford, who were informed by Patterson that Lord had asked if they were
interested in attending a union meeting. Such a failure of proof is crucial and is sufficient in itself
to reject Respondent’s assertion that Lord’s conduct materially affected the outcome of the
election. Northeast Iowa Telephone, supra, 346 NLRB at 467 (no evidence that managers
signed their cards in front of employees under their supervision); Glen’s Market, 344 NLRB 294,
295 (2005) (supervisors’ solicitation of authorization cards from employees and requesting
employees to distribute cards to other employees not objectionable because of lack of evidence
that the two supervisors involved “had supervisory authority over the employees toward whom
their conduct was directed”). Id at 295.
An examination of Harborside and its progeny only reinforce this conclusion since each
of these cases emphasize in finding objectionable conduct that the solicitation of union cards or
petitions by supervisors was directed towards employees under their direct supervision.
Harborside, supra, 343 NLRB at 910, fn. 13 (emphasis on conduct affecting employees under
direct supervision of supervisor, who solicited cards and threatened employees with job loss);
SNE Enterprises, 348 NLRB 1041, 1042 (2006) (Board again emphasis that solicitation of cards
by supervisors directed towards their subordinates, distinguishing Glen’s Market, supra on this
basis); Madison Square Garden, supra, 350 NLRB at 122 (“it is undisputed that supervisors
solicited union authorization cards from their direct subordinates”); Chinese Daily News, 344
NLRB 1071, 1072 (2005) (Board finds that supervisor’s “solicitation and collection of
authorization cards from the book department employees whom he supervised was inherently
coercive”) Id at 1072 and at fn. 16.
I recognize that the majority opinion in Millard Refrigerated Services, 345 NLRB 1143,
1144-1147 (2005), relied in part on solicitation of one card by a supervisor, who was not the
direct supervisor of the employee. It disagreed with the dissent’s contention that Glen’s Market,
supra stands for the broad proposition that “supervisory conduct, no matter how coercive,
targeted towards one, who is not the supervisor’s direct subordinate cannot be objectionable.” Id
at 1145. The majority concluded in Millard Refrigerated that there a group of supervisors
working together engaged in coercive pro-union conduct, which involved coercive threats and
coercive interrogations, as well as solicitation of cards. The Board observed that the conduct
“does not become non-objectionable simply because some lines if supervision are crossed.” Id
at 1145, 1146. The decision also noted that most of the conduct was directed toward
subordinates of the particular supervisors involved. Further, it found it appropriate to rely on the
solicitation of cards by a supervisor, who was not the direct supervisor of the employee. The
employee solicited testified that his supervisor, like the supervisor who solicited his card, was
also busy soliciting and collecting cards. Thus, the Board concluded that the employee would
reasonably conclude that his own supervisor was as desirous of the employee’s signature as
the supervisor, who solicited him. Thus, in those limited and exceptional circumstances, the
Board considered the one instance of card solicitation by a supervisor, who did not supervise
the employee solicited, as part of a pattern of conduct. I also note that the observation of the
majority about Glen’s Market is dicta since it did not need to consider the one instance of
supervisory solicitation to support its conclusion. I note that one pro-union supervisor by himself
solicited cards from 13 employees in his crew, which was enough by itself to warrant setting
aside the election.46 Id at 1146.
Thus, I reaffirm my conclusion based on Glen’s Market, supra, as well as the other

46 That same supervisor also unlawfully interrogated an employee.
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precedent that I have cited,47 that in order for supervisory solicitation or other pro-union conduct
to be objectionable, subject to the limited exception set forth in Millard Refrigerated, supra that it
be directed towards employees under the supervision of the pro-union supervisor.
Here, there is no evidence of any coercive or pro-union conduct by any other pro-union
supervisor,48 so the exception detailed in Millard Refrigerated, supra is inapplicable. Lord’s
conduct was not directed towards any employee under her supervision other than Kuznir.
Therefore, based on the precedent cited above, I find that her conduct directed towards
employees, such as observing them sign cards or encouraging employees to attend union
meetings, cannot be considered objectionable and did not materially affect the outcome of the
election despite the small margin of the Union’s victory. Northeast Iowa Telephone, supra, 346
NLRB at 467-468.
Part of Lord’s conduct, as described above, was “directed” towards Kuznir since Kuznir
observed Lord signing the union petition, and Lord observed Kuznir signing the petition.
However, Kuznir was not an eligible voter, her name was not on the Excelsior list, and she did
not vote. Therefore, any pro-union conduct by Lord towards her subordinate cannot have
materially affected the results of the election. Further, even if Kuznir was an eligible voter, her
one vote would not be sufficient to affect an election, which the Union won by 3 votes.
Accordingly, even if Lord was found to be a statutory supervisor, her pro-union conduct
was insufficient to warrant setting aside the election.
Respondent also contends, as I have noted above, that both Karchere and Lord are
managerial employees under the Act.
The first issue to be considered is whether the Harborside principles are applicable to
managerial employees. I have found no precedent discussing or deciding this issue.
Respondent argues that the rationale of Harborside requires applying its principles to
managerial employees. It notes that when the Board considers knowledge issues of union
activities of employees, it will find that knowledge of a managerial employee of such activities is
generally attributed to the employer. Respondent further points out that the rationale of
Harborside’s conclusion that supervisory solicitation of cards is objectionable is that employees
will reasonably be concerned that he or she “must provide the right response which will be
viewed with favor, as opposed to the wrong response, which could be met with disfavor.” 343
NLRB at 911. Therefore, it argues that the pro-union solicitation by a managerial employee
should also be considered “inherently coercive.”
While I find some cogency in that argument, I note that it ignores other significant
aspects of Harborside and its progeny. That is the emphasis on the reasonable concern of
employees that their responses to the solicitation could lead to rewards or penalty is derived
from the Board’s view that the pro-union supervisor had direct supervisory responsibility over
the employee, who the supervisor solicited. Glen’s Market, supra; Northeast Iowa Telephone,
supra.
Indeed, managerial employees do not necessarily have the power or authority to affect

47 Harborside, supra at 910; Madison Square Garden, supra at 122; Chinese Daily News,
supra at 1072; Northeast Iowa Telephone, supra at 467.
48 I note that Respondent concedes, and I have found, that Karchere is not a supervisor
under the Act.
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the terms and conditions of employment of employees. I note, of course, that some and perhaps
most managerial employees will also be considered supervisory employees. For example, here,
Johnston and Gasecki would be considered both managerial and supervisory employees.
However, their authority to affect the terms and conditions of employment of employees is
derived primarily from their supervisory status, and not their managerial status.
Here, both Karchere and Lord have no authority by virtue of their alleged managerial
status to reward or punish employees or to otherwise directly affect their terms and conditions of
employment. Respondent asserts that it established the managerial status of Karchere based
on her effectively recommending policy changes in Respondent’s payroll system and its
discount policy concerning aged cats, as well as her role in the preparation of the Fox Clinic
budget. As for Lord, Respondent relies on Lord’s role in effectively recommending that
Respondent change its database and software for tracking animals, managing its computer
system and her role recommending changes in and managing Respondent’s online and non-
online fundraising. None of these functions of either Karchere or Lord directly impact on
employees’ terms and conditions of employment in the sense that employees would reasonably
perceive that either Karchere or Lord had the power to reward or punish them for their support
of or non-support of the Union.
I, therefore, find that the issue of whether managerial employees are subject to the
Harborside principles is uncertain and has not been decided by the Board. I, therefore, find it
unnecessary to decide whether Harborside is applicable to managerial employees since I
conclude that, as detailed below, Respondent has not established that the conduct of Karchere
or Lord was objectionable, even if they were to be considered managerial employees.
Thus, I shall assume without deciding that managerial employees are subject to
Harborside principles in assessing whether their pro-union conduct warrants setting aside an
election. However, I find that Respondent has not established that the conduct of Karchere or
Lord, singly or collectively, is sufficient to warrant setting aside the election, even if they are
considered to be managerial employees.
Starting with Lord’s conduct, I have already found above, that her pro-union conduct,
even assuming her supervisory status, does not warrant setting aside the election. That
conclusion does not change assuming that she is a managerial employee. Her pro-union
conduct is of course the same. I have concluded that her conduct of attending union meeting,
observing employees, including Kuznir, signing the union petition and signing the petition herself
are not the equivalent of solicitation of union cards and does not reasonably tend to coerce or
interfere with employee free choice. Northeast Iowa Telephone, supra; Stevenson Equipment,
supra. That conclusion is equally applicable to assessing Lord’s status as a managerial
employee. I so find.
I also found above that since Lord had supervisory authority over only one employee,
who was present at these meetings, and that employee (Kuznir) was not an eligible voter that
Lord’s conduct at the meetings, even if considered coercive, did not materially affect the results
of the election. Northeast Iowa Telephone, supra; Glen’s Market, supra. That conclusion is also
warranted even if Lord is considered to be a managerial employee as well.
I have also considered that Lord’s conduct in telephoning Patterson and asking her to
inquire if employees at Westport were interested in attending a meeting similarly did not
reasonably tend to coerce or interfere with employee free choice, even though Patterson did
transmit Lord’s request to eight employees at that facility. Northeast Iowa Telephone, supra;
Stevenson Equipment, supra; Terry Machine, supra; Harborside, supra at 911.
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I do recognize in that regard that it could be argued that by in effect encouraging
employees to attend a union meeting Lord has run afoul of part of the rationale for Harborside’s
conclusions. It could be concluded as Respondent argues that when Lord encouraged
employees to attend union meetings, that the employees so requested were ”put on the spot” to
respond and would reasonably fear retaliation or reward depending on their response.
However, I find this argument unconvincing in the circumstances of this case. First of all,
the employees were not spoken to directly by Lord, but only by Patterson, who relayed Lord’s
request to them. Therefore, the employees asked would not reasonably fear retaliation or
reward from Lord since Lord was not present and would not be aware of the employees’
response.
Furthermore, in my view, there is a considerable difference between a request to attend
a union meeting and to sign a union card or a union petition. The former request is merely
asking an employee to attend a union meeting and listen to the discussion. It does not
necessarily request an employee to support the union or to commit themselves to doing so. In
contrast, a request to sign a union card or petition is a request to commit oneself to support the
union and would likely be construed by an employee to commit to voting for the union in the
event of an election. Therefore, I conclude that a mere request by a manager or a supervisor to
attend a union meeting would not have the same tendency to force employees to choose or to
fear reprisals or rewards depending on their response to the request.
Additionally, I note here that the employees subject to Lord’s indirect request worked at
a different facility from Lord, and I find that Respondent has not established by any probative
evidence that the Westport employees knew or believed that Lord was a managerial employee
or that she had any potential to affect their terms and conditions of employment. In that regard,
Respondent relies on testimony from Patterson that she believed that the employees knew that
Lord was a manager because she would see Lord at monthly management meetings and when
she reported to employees under her supervision on the results of the meeting, she would
inform them that Lord had been present. I find this evidence insufficient to establish that
employees knew or believed that Lord was a managerial employee, particularly, when Patterson
conceded that the employees at Westport would have interactions with Lord only if they had a
problem with computers. They would call Lord and she would come and fix it or resolve the
problem. No evidence was presented that the Westport employees were aware of any of the
activities of Lord that Respondent contends establish her managerial status.49
Therefore, there is simply no basis for concluding that the Westport employees or indeed
the other employees, who attended the union meeting, where Lord was present, had any
reasonable belief that Lord had the ability to affect their terms and conditions of employment or
to reward or retaliate against them.
Finally, although not determinative, I rely upon the reaction of the Westport employees to
Lord’s inquiries transmitted through Patterson. Patterson, after informing each employee of
Lord’s request, asked the employees how they felt about it. They all told Patterson that they
were not interested in attending such a meeting, that they were happy working for Respondent
and added, “Why don’t they leave us alone?” In these circumstances, I find it highly unlikely that
any of the Westport employees reasonably feared that Lord might reward them if they attended

49 Her role in effectively recommending changes in Respondent’s computer system and
software and her role in recommending changes in online and non-online fundraising.
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the meeting or might retaliate against them if they did not. I find it even less likely that any of
these employees had any fears of reprisal or hopes of reward from Lord when they voted in the
election a month and a half after their conversation with Patterson.
I, therefore, reaffirm my conclusion that Respondent has not met the second prong of
the Harborside factors and has not established that Lord’s conduct, even if coercive, materially
affected the outcome of the election. Accordingly, I conclude that whether Lord is considered a
supervisor, a managerial employee or both, her pro-union activities does not warrant setting the
election aside.
As for Karchere, she, like Lord, attended two union meetings, signed the union petition
at one meeting in the presence of other employees and observed other employees signing the
petition at both meetings. As I found above with respect to Lord, this conduct does not
reasonably tend to coerce or interfere with employee free choice. Northeast Iowa Telephone,
supra; Stevenson Equipment, supra. I find similarly with respect to Karchere’s conduct, even if
she is considered to be a managerial employee.
Karchere also telephone Patterson and reiterated what Lord had previously told
Patterson about having a union meeting with union representatives and the Newington
employees. Karchere gave Patterson her cell phone number and asked Patterson to give the
cell phone number to the Waterford employees and to tell them that if they there were interested
in such a meeting to call Karchere. Patterson agreed to do so, told employees about Karchere’s
call and offered them Karchere’s number. Most of them did not even take the number or took it
and threw it away. A day or so later, Guy, her assistant manager, informed her that Karchere
had called Guy at the facility and asked Guy if the employees had been given her cell phone
number since nobody had called her.
Similar to my findings with respect to Lord, Karchere’s conduct consisting of essentially
asking or at best encouraging the Westport employees to attend a union meeting. Such conduct
does not tend to coerce or interfere with employee free choice. Northeast Iowa Telephone,
supra; Harborside, supra; Stevenson Equipment, supra.
Thus, Respondent has not met its burden of establishing the first prong of Harborside
based on Karchere’s conduct. Even assuming that Karchere’s conduct at the meetings or in her
call to Patterson can be considered coercive, Respondent has also failed to meet its burden of
establishing the second prong of the Harborside standards that Karchere’s conduct materially
affected the outcome of the election. My discussion above with respect to Lord’s conduct vis a
vis this issue is equally applicable to Karchere. There is insufficient evidence adduced that any
of the employees present at the meetings or at Westport would reasonably believe that
Karchere had the power or authority to reward them if they attended or retaliate against them if
they did not. I will not repeat my discussion concerning Lord’s managerial status and this issue
except to say that these conclusions are more forcefully applicable to Karchere. Similar to Lord,
Karchere’s functions, which Respondent asserts established her managerial status, were not
shown to have been known to employees. Further, not a scintilla of evidence was adduced that
Karchere had any authority to reward or punish employees or that employees would so believe.
Karchere’s title is the “finance assistant,” and her interactions with employees consist of
dealing with payroll issues. The fact, as Respondent argues, that in an employee newsletter,
Karchere was referred to as “primary back-up to the CFO,” hardly suffices as evidence that
Karchere had any power or authority over employees, particularly since the record reveals that
Karchere never actually acted in that capacity since Gasecki was rarely absent.
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Further, at the first union meeting attended by Karchere, she asked the union
representative if she was eligible to sign the petition since she did not handle animals and is a
clerical employee. After Karchere described her job duties to Corey, he stated that since she
was not a manager or a supervisor, she was eligible to sign the petition. While the opinion of
Corey as to Karchere’s duties is, of course, not binding or conclusive, the fact that he made that
statement to employees can be relied upon to assess what employees reasonably believed
about Karchere’s status. I find that the employees present would have reasonably believed that
she was a rank and file employee eligible to join the union, and not that she was a supervisor or
manager with any authority or power to reward or punish them based on their decision whether
to sign the union petition. Thus, Respondent has not shown that Karchere’s pro-union conduct
materially affected the election results, even if such conduct were considered coercive.
Accordingly, based upon the above analysis and precedent, I conclude that Respondent
has failed to establish that the pro-union conduct of Karchere or Lord, singly or collectively,
warrants the setting aside of the election.
I, therefore, recommend that the objections be dismissed.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By coercively interrogating employees concerning their activities on behalf of or
support for International Association of Machinists & Aerospace Workers, AFL-CIO, District
Lodge 26 (the Union), by creating the impression that the union activities of its employees are
under surveillance, by informing and instructing its employees that they cannot participate in
union activities and to report union activity to management, by threatening its employees with
discharge, job loss or other discipline if they engage in activities on behalf of the Union or if they
engage in a strike and by informing employees that they are being terminated because of their
union activities, Respondent has violated Section 8(a)(1) of the Act.
4. By terminating the employment of Bridget Karchere and Maureen Lord because of
their activities on behalf and support for the Union, Respondent has violated Section 8(a)(1) and
(3) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of Section
2(2), (6) and (7) of the Act.
6. Respondent has not violated the Act in any other manner as alleged in the complaint.
7. Respondent’s objections in Case No. 34-RC-2351 are without merit and must be
dismissed.
THE REMEDY
Having found that Respondent has violated the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action necessary to effectuate the purposes of the
Act.
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Respondent, having discriminatorily discharged Bridget Karchere and Maureen Lord, it
must offer them reinstatement to their former positions of employment and make them whole for
any loss of earnings and other benefits. Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with the interest at the rate prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB No. 8 (2010).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended50
ORDER
The Respondent, Connecticut Humane Society, Newington, Connecticut, its officers,
agents, successors and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees concerning their activities on behalf of or
support for International Association of Machinists & Aerospace Workers, AFL-CIO, District
Lodge 26 (the Union).
(b) Creating the impression that the union activities of its employees are under
surveillance.
(c) Informing or instructing its employees that they cannot participate in union activities
or to report union activities of employees to management.
(d) Threatening its employees with discharge, job loss or other discipline if they engage
in activities on behalf of the Union or if they engage in a strike.
(e) Informing employees that they are being terminated or have been terminated
because of their union activities.
(f) Terminating or otherwise disciplining its employees because of their activities on
behalf of or support for the Union.
(g) In any like or related manner interfering with, restraining or coercing employees in the
exercise of the right 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 the Board’s Order, offer Bridget Karchere and
Maureen Lord full reinstatement to their former jobs or, if these jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.

50 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(b) Make Karchere and Lord 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 decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges of Karchere and Lord, and within 3 days thereafter notify
the employees in writing that this has been done and that the discharges will not be used
against them in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its Newington, Waterford and
Westport, Connecticut facilities copies of the attached notice marked “Appendix.”51 Copies of
the notice, on forms provided by the Regional Director for Region 34, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
October 23, 2010.
(f) Within 21 days after service by the Region, file with the Regional Director for Region
34 a sworn certification of a responsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

51 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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It is also recommended that the objections filed by Respondent in Case No. 34-RC-2351
be dismissed and that a certification of representatives be issued.
Dated, Washington, D.C., June 8, 2011
____________________
Steven Fish
Administrative Law Judge
JD(NY)–16–11
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT coercively interrogate our employees concerning their activities on behalf of or support for International Association
of Machinists & Aerospace Workers, AFL-CIO, District Lodge 26 (the Union).
WE WILL NOT create the impression that the union activities of our employees are under surveillance by us.
WE WILL NOT inform or instruct our employees that they cannot participate in union activities or to report union activities of
employees to management.
WE WILL NOT threaten our employees with discharge, job loss or other discipline if they engage in activities on behalf of the Union
or if they engage in a strike.
WE WILL NOT inform our employees that they are being terminated because of their union activities.
WE WILL NOT terminate or otherwise discipline our employees because of their activities on behalf of or in support of the Union.
WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of the right guaranteed
them by Section 7 of the Act.
WE WILL within 14 days from the date of this Order offer Bridget Karchere and Maureen Lord reinstatement to their former jobs, or if
their jobs no longer exist to substantially equivalent jobs without prejudice to their seniority and other right or privileges previously
enjoyed.
WE WILL make Bridget Karchere and Maureen Lord whole for any loss of earnings and other benefits suffered by them as a result
of the discrimination against them, plus interest.
WE WILL within 14 days from the date of the Board’s Order remove from our files any reference to the unlawful discharges of
Bridget Karchere and Maureen Lord, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that
the discharges will not be used against them in any way.
CONNECTICUT HUMANE SOCIETY
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot
elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find
out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
A.A Ribicoff Federal Building and Courthouse
450 Main Street, 4th Floor
Hartford, Connecticut 06103-3503
Hours: 8:30 a.m. to 5 p.m.
860-240-3522.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 860-240-3528.