FRANKLINTON PREPARATORY ACADEMY

National Labor Relations Board - Board Decisions

Apr 20, 2018

366 NLRB No. 67 (N.L.R.B. 2018)

366 NLRB No. 67
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Franklinton Preparatory Academy and Franklinton
Preparatory Academy Educators Association,
Petitioner. Case 09–RC–144924
April 20, 2018
DECISION AND DIRECTION
BY MEMBERS PEARCE, MCFERRAN, AND KAPLAN
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
and objections to an election held March 5, 2015, and the
hearing officer’s report recommending disposition of
them. The election was conducted pursuant to a Stipu-
lated Election Agreement. The tally of ballots shows 5
for and 4 against the Petitioner, with 1 void ballot and 3
challenged ballots, a sufficient number to affect the re-
sults.
The Board has reviewed the record in light of the ex-
ceptions and briefs and has adopted the hearing officer’s
findings1 and recommendations, only to the extent con-
sistent with this Decision and Direction.
We agree with the hearing officer’s recommendation
to overrule the challenge to the ballot of Anne Hyland.2
In addition, for the reasons that follow, we agree with the
hearing officer’s recommendation to sustain Petitioner’s
Objection 3, alleging that the Employer threatened em-
ployees against exercising their rights protected by Sec-
tion 7 of the Act.3

1 The Petitioner has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have carefully
examined the record and find no basis for reversing the findings.
2 The Petitioner challenged the ballots of employees Herbert Hatch,
Anne Hyland, and Beth Dewitt. At the hearing, only the challenges to
the ballots of Hyland and Dewitt were before the hearing officer, as the
Regional Director had previously sustained the challenge to the ballot
of employee Hatch, pursuant to an agreement by the parties. Regarding
Anne Hyland, we adopt the hearing officer’s recommendation to over-
rule the Petitioner’s challenge to her ballot. As a result, we direct the
Regional Director for Region 9 to open and count her ballot. In the
absence of exceptions, we adopt pro forma the hearing officer’s rec-
ommendation to sustain the Petitioner’s challenge to the ballot of Beth
Dewitt.
3 Contrary to the hearing officer’s recommendation, we overrule the
portion of Petitioner’s Objection 5, alleging that the Employer prom-
ised benefits to unit employees if they voted against union representa-
tion. The hearing officer found that Griffith’s statement “[i]f I haven’t
done what I say we can do, another Union election can be held in 366
days” constitutes an implicit promise of benefits. We disagree. The
statement does not promise that anything in particular will happen, and
it was not accompanied by any request to air specific concerns or any
On February 28, 2015, just a few days before the elec-
tion, Chief Operating Officer Marty Griffith sent an
email to employee Julie Pfeifer. Through a series of rhe-
torical questions, Griffith detailed to Pfeifer numerous
favorable employment conditions, such as pay increases,
personal development days, and hiring and training flex-
ibilities. After doing so, Griffith asked Pfeifer to consid-
er several “facts,” including the following:
If FPA is unionized, I suspect that FPA’s Board will
take a very hard line on the pay, benefits, working con-
ditions, PD [professional development] days and other
things that I’ve worked so hard to bring to FPA. And
please remember that I work for the Board. As much
as some may hope, it is unrealistic to believe that the
Board will welcome unionization at FPA.
Prior to the election, Pfeifer shared the details of Griffith’s
email with three other employees in the petitioned-for unit.
In evaluating party conduct during the critical period,
the Board applies an objective standard under which
conduct is found to be objectionable if it reasonably
tends to interfere with employee free choice. Cedars-
Sinai Medical Center, 342 NLRB 596, 597 (2004), citing
Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995). In
determining whether election misconduct warrants set-
ting aside the election result, the Board considers (1) the
number of incidents of misconduct; (2) the severity of
the incidents and whether they were likely to cause fear
among employees in the bargaining unit; (3) the number
of employees in the bargaining unit subjected to the mis-
conduct; (4) the proximity of the misconduct to the elec-
tion date; (5) the degree of persistence of the misconduct
in the minds of the bargaining unit employees; (6) the
extent of dissemination of the misconduct among bar-
gaining unit employees; (7) the effect, if any, of the mis-
conduct by the opposing party to cancel out the effect of
the original misconduct; (8) the closeness of the final
vote; and (9) the degree to which the misconduct can be
attributed to the party. Id.
We find that employees would reasonably understand
Griffith’s statements above to threaten them with the loss

other promise or grant of specific benefits. Under these circumstances,
we find that the statement is merely a generalized request for another
chance or more time and thus falls within the limits of permissible
campaign propaganda. Cf. Noah’s New York Bagels, 324 NLRB 266,
267 (1997).
In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendations to overrule Petitioner’s Objection 4, alleging
that the Employer interrogated unit employees about their union sup-
port and activities, and the portion of Petitioner’s Objection 5, alleging
that the Employer granted benefits to employees, such as scheduling
earlier staff meetings, increasing frequency of early-release Fridays,
and switching to an “open lunch” plan, during the critical period.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
of existing benefits and terms and conditions of employ-
ment if they voted for union representation. After re-
minding Pfiefer about favorable working conditions and
benefits, Griffith shared his belief that if the employees
voted for unionization, the board “will take a very hard
line” on these terms and benefits. In addition, Griffith
emphasized that, although he had brought many of those
benefits to employees, he was subservient to the board,
warning Pfeifer that “it is unrealistic to believe that the
[b]oard will welcome unionization[.]” Moreover, these
“facts” conveyed by Griffith lacked any objective basis
and did not predict demonstrably probable consequences
beyond the Employer’s control. See generally NLRB v.
Gissel Packing Co., 395 U.S. 575, 618–619 (1969).
Griffith offered no evidence that unionization would lead
to significant new costs for the Employer that would ne-
cessitate reductions in existing benefits. Nor did his re-
marks explain how a change in existing benefits and
working conditions could result from the give-and-take
of future collective bargaining. Instead, Griffith’s re-
marks clearly suggested that employees, by entertaining
the prospect of union representation, were courting the
wrath of the Employer’s board. As a result, Griffith’s
statements went well beyond merely advising employees
of the potential consequences of good-faith collective
bargaining and instead constituted statements threatening
the loss of existing benefits and terms and conditions of
employment.4
In addition, given the circumstances surrounding Grif-
fith’s threatening statements we find that they would
reasonably tend to interfere with employee free choice in

4 Our dissenting colleague would find that Griffith’s “hard line”
statement in the February 28 letter was not objectionable. In his view,
in the context of other communications from the Employer during the
critical period, employees would reasonably understand Griffith’s
statement as a lawful reference to the give-and-take of good-faith col-
lective bargaining. Specifically, he contends that employees would
view the remark as merely suggesting that the Employer’s board would
be unlikely to agree to any improvements in pay and benefits as part of
the collective-bargaining process. We disagree. To be sure, in the
weeks leading up to the election, the Employer, through notices to
employees and statements at a meeting, discussed how the collective-
bargaining process works once a union is certified, and the Employer’s
statements in this regard are not alleged to be objectionable. But Grif-
fith’s remarks in the February 28 letter are different in that they do not
seek to address, explicitly or implicitly, the give-and-take of the collec-
tive-bargaining process. Instead, the letter focuses on the consequences
of unionization and, without any reference to the collective-bargaining
process whatsoever, conveys the view that the Employer’s board “will
take a very hard line” on employee’s pay, benefits, and other terms and
conditions of employment. Even considering that the Employer may
have been conveying unobjectionable information about the collective-
bargaining process to employees in other contexts, Griffith’s remarks in
the February 28 letter were nonetheless coercive as they clearly por-
tended the loss of benefits in the event of unionization without offering
any objective basis for doing so.
the election. Griffith was the highest ranking member of
management at the school and an individual whom the
employees understood worked closely with the board.
Griffith made the statements just days before the elec-
tion, and the statements were made and disseminated to
approximately one-third of the employees in the peti-
tioned-for unit. Moreover, the statements were made in
the context of a very close election, where one vote could
change its outcome. In these circumstances, we find that
Griffith’s statements warrant setting aside the election if
the revised tally of ballots shows employees voted
against representation.
DIRECTION
IT IS DIRECTED that the Regional Director for Region 9
shall, within 14 days from the date of this Decision and
Direction, open and count the ballot of Anne Hyland.
The Regional Director shall then prepare and cause to be
served on the parties a revised tally of ballots.
IT IS FURTHER DIRECTED that if the revised tally of bal-
lots shows that the Petitioner has received a majority of
the valid ballots cast, the Regional Director shall issue a
certification of representative. If, however, the revised
tally shows that the Petitioner has not received a majority
of the ballots cast, the Regional Director shall set aside
the election and conduct a new election when he deems
the circumstances permit the free choice of a bargaining
representative.
Dated, Washington, D.C. April 20, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER KAPLAN, dissenting in part.
Contrary to my colleagues and the hearing officer, I
would not find that the Employer’s chief operating of-
ficer, Marty Griffith, made an objectionable threat in an
email sent to prounion employee Julie Pfeifer on Febru-
ary 28, 2015, a few days prior to the March 5 election.1

1 I agree with my colleagues on the remaining contested issues.
Specifically, I join them in adopting the hearing officer’s recommenda-
tion to overrule the challenge to employee Anne Hyland’s ballot, and I
join them as well in overruling that part of Petitioner’s Objection 5
alleging that Griffith promised benefits if employees voted against
representation.
FRANKLINTON PREPARATORY ACADEMY 3
Specifically, I would find that Griffith did not implicitly
threaten unilateral retaliatory action by stating he sus-
pected the charter school board would not welcome un-
ionization and would take a very hard line on the im-
proved wages, benefits, and working conditions that
Griffith had secured for unit employees. Particularly
when read in context with flyers distributed immediately
prior to this email and in the absence of any other objec-
tionable statements made during the entire preelection
campaign, employees would reasonably understand Grif-
fith’s observation as a lawful reference to the give and
take of good-faith collective bargaining. Accordingly, as
to this issue, I respectfully dissent from the failure to
overrule Petitioner’s Objection 3.2
The email at issue was the third sent in a short time pe-
riod to Pfeifer, an open employee leader in the organiz-
ing campaign. The first two, sent on February 25 and 27,
respectively, included flyers that were distributed to all
unit employees. Nothing in these documents was alleged
to be objectionable. Indeed, both of them lawfully em-
phasize the give-and-take nature of collective bargaining.
The February 25 flyer focused almost entirely on this
process. It expressly and correctly stated that, if the Un-
ion won the election, employees would represent it and
the Employer would be obligated to bargain with it.
However, it would not be compelled by the Act to agree
to a proposal and would reject in good faith “any Union
demands for wages and benefits and working conditions
that are unrealistic, unreasonable, or would cause us to
run over our budget.” Further, the flyer correctly empha-
sized that “if collective bargaining begins, then every-
thing becomes subject to collective bargaining including,
but not limited to: FPA’s current wages, FPA’s current
benefit package (sick days, personal days, types and
depth of insurance coverage FPA could afford) PD [pro-
fessional development] days, teachers’ dedicated work-
day, duty schedules and student to teacher ratios. Every-
thing.”
The February 27 flyer reiterated the message that “[i]f
the Union is voted in: Everything we currently enjoy at
FPA—our wages, our benefits, the number of PD days,
flexible scheduling, sick days, personal days, dedicated
work days, EVERYTHING—will be subject to negotia-
tion. There is no predicting what conditions will win in
the end.”

2 The initial tally of ballots showed 5 votes for and 4 votes against
the Union. Because I would find no merit in Petitioner’s Objection 3, I
would direct the Regional Director to open and count Hyland’s ballot
and issue the appropriate certification—a certification of representative
if Hyland voted for the Union and a certification of results if she voted
against it.
Griffith’s private February 28 email to Pfeifer remind-
ed her that the teachers had received a 5-percent wage
increase the previous year, that FPA built 28 days of pro-
fessional development into the previous year’s sched-
ule—in contrast to the 3 or 4 professional development
days employees are “lucky” to get at “union” schools,
and that FPA “spend[s] thousands of dollars every year
training our teachers.” Finally, as the seventh of eight
enumerated “facts” set forth near the end of the email,
Griffith wrote:
If FPA is unionized, I suspect that FPA’s Board will
take a very hard line on the pay, benefits, working con-
ditions, PD days and other things that I’ve worked so
hard to bring to FPA. And, please remember that I
work for the Board. As much as some may hope, it is
unrealistic to believe that the Board will welcome un-
ionization at FPA.
Further, on March 4, the day before the representation
election, Griffith convened a meeting of all unit employ-
ees. At this meeting, Griffith read aloud from a script,
and employees DeWitt and Hyland testified that Griffith
stuck to the script. There are no allegations that the
script contained any objectionable statement. In relevant
part, the script stated
What does that mean—to be represented by the Union
in collective bargaining? First of all, it means that eve-
rything goes to the bargaining table—absolutely every-
thing. Even the wages and benefits we currently have
are subject to bargaining. And right now you have
pretty good wages and very good benefits. This is es-
pecially true given that, as a charter school, we receive
an estimated 65 cents to every dollar that traditional
district schools receive in public funding—and, unlike
them, we also have to pay for our own building with
that funding.
Also, more than just wages and benefits are subject to
bargaining. Sick days, personal days, the defined
work-day, the maximum number of students in each
class, employee parking, vending machines, breaks,
even what goes on the bulletin boards in the Main Of-
fice, becomes subject to bargaining. . . .
And the fact that we have to bargain with the Union
does not necessarily mean that wages or benefits will
go up or that conditions will improve. Wages and ben-
efits could stay the same or even go down depending
on the result of the negotiations. FPA’s bargaining po-
sition will depend on a lot of factors including our
budget, finances and economic conditions. And, as
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
you know, our budget and finances depend significant-
ly on our student enrollment numbers. Having a Union
here at FPA certainly won’t do anything to increase our
student population.
Look at what could happen in collective bargaining.
Although I assure you that if we are required to bar-
gain, we will bargain in good faith, FPA will not agree
to any demands that are unreasonable, unrealistic, or
that could jeopardize our ability to compete for stu-
dents. The law does not require us to agree to any such
demands.
. . . .
You may ask why our School would resist unreasona-
ble demands by bargaining hard . . . . [W]e will bargain
hard because we want to be able to continue to work
toward fulfilling our mission and that requires us to be
financially healthy enough to compete for students. . . .
Also, keep in mind that just because a Union is here
doesn't mean we will get any more students, get higher
funding from the State of Ohio, or do our jobs any bet-
ter.
Out of all of the foregoing campaign communications
from Griffith to Pfeifer and other unit employees, my
colleagues find objectionable only the single passage
from the February 28 email in which he states that the
school board will take a hard line on improvements he
worked hard to bring to employees and will not wel-
come unionization. In my colleagues’ view, employees
would reasonably view these statements as threatening
them with “the loss of existing benefits and terms and
conditions of employment if they voted for union rep-
resentation.” I disagree.
“An employer is free to communicate to his employees
any of his general views about unionism or any of his
specific views about a particular union, so long as the
communications do not contain a ‘threat of reprisal or
force or promise of benefit.’” NLRB v. Gissel Packing
Co., 395 U.S. 575, 618 (1969) (quoting from Section 8(c)
of the Act). That is what Griffith did in his several
communications to employees from February 25 through
March 4, both before and after the allegedly objectiona-
ble statement in the February 28 email. In this context,
with numerous accurate descriptions of the Employer’s
bargaining obligation and to the give-and-take and poten-
tial pitfalls for employees of collective-bargaining nego-
tiations, unit employees would reasonably understand
Griffith’s “hard line” reference in the February 28 email
to Pfeifer as suggesting that FPA’s Board would be un-
likely, in collective bargaining, to agree to improvements
in pay and benefits.3
My colleagues say that Griffith’s email threatened that
existing benefits and working conditions would change,
and change for the worse. Of course, Griffith did not say
that existing benefits and working conditions would
change at all. He only said that FPA’s Board of Direc-
tors would take a very hard line on pay, benefits, and
other working conditions. But even if the phrase could
be interpreted as implying a potential change for the
worse, the statement would still be unobjectionable in
light of Griffith’s repeated statements to all unit employ-
ees before and after the February 28 email that any
changes would only come about as a result of collective
bargaining, not in immediate retaliation against a vote for
unionization. It is only by erroneously focusing in isola-
tion on the one statement in Griffith’s February 28
email—ignoring everything else Griffith said to Pfeifer
and to the rest of the unit employees in campaign flyers
and in his election eve speech—that an objectionable
threat could be implied.
Accordingly, I respectfully dissent from my col-
leagues’ failure to overrule Petitioner’s Objection 3 in its
entirety.
Dated, Washington, D.C. April 20, 2018
______________________________________
Marvin E. Kaplan, Member
NATIONAL LABOR RELATIONS BOARD

3 Griffith’s email did state that it was “unrealistic to believe that the
Board will welcome unionization at FPA,” but it is not objectionable
for an employer to state that it will not welcome unionization and I do
not read my colleagues’ opinion as expressing a contrary view.