Graham-Windham Services

National Labor Relations Board - Board Decisions

Nov 22, 1993

312 N.L.R.B. 1199 (N.L.R.B. 1993)

1199
312 NLRB No. 199
GRAHAM-WINDHAM SERVICES
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces up that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. Based on our examination
of the record, we are also satisfied that there is no evidence that the
judge prejudged the case, made prejudicial rulings, or demonstrated
any bias. Thus, we find no merit to the Repondent’s contention that
the judge was biased against its position in this case.
In fn. 4 of her decision, the judge incorrectly stated that the Re-
spondent did not ‘‘at any time’’ request special permission to appeal
from her initial ruling on par. 1 of the General Counsel’s subpoena
duces tecum. The Respondent filed such a request on November 21,
1991. However, this filing was after the General Counsel had pre-
sented his direct case and before the hearing resumed on the sixth
day. This inadvertent error of the judge does not affect our decision.
2 We agree with the judge’s recommendation that the Board take
action against counsel for the Respondent pursuant to Rules and
Regulations, Sec. 102.21, for willfully interposing an answer to a
complaint without a good-faith doubt of the facts asserted in the
complaint and for the purpose of delay. We express our strong dis-
approval of such conduct by Richard S. Boris, Esq. and Neal D.
Haber, Esq. and warn them against similar conduct in future appear-
ances before the Board.
Graham-Windham Services to Families and Chil-
dren, Inc. and United Food and Commercial
Workers Union, Local 342-50, Health Care and
Human Services Division, AFL–CIO. Case 2–
CA–24600
November 22, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 21, 1993, Administrative Law Judge El-
eanor MacDonald issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed an answering brief and a
brief in support of the judge’s decision.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs, and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions and to adopt the rec-
ommended Order.2
1. The judge ruled that the Respondent was pre-
cluded from using at the hearing any materials which
it should have provided the General Counsel pursuant
to paragraphs 1 and 3 of the subpoena duces tecum
served upon it. Paragraph 1 requested personnel hand-
books, rule books, guidebooks, codes of employee con-
duct and the like, while paragraph 3 requested the Re-
spondent’s campaign material. The judge also granted
the General Counsel’s posthearing motion to strike cer-
tain portions of the record relating to the material re-
quested in paragraph 1 of the subpoena duces tecum.
The Respondent excepts to all these rulings.
We affirm the judge’s rulings pertaining to para-
graph 1 of the subpoena. Clearly ignoring the judge’s
instruction to submit the requested documents to the
General Counsel, the Respondent attempted to intro-
duce a purported company employee handbook while
cross-examining a witness provided by the General
Counsel on the second day of the hearing. Further,
even assuming that the judge should not have struck
the eight transcript pages because the Respondent was
trying to use secondary evidence concerning the mate-
rial encompassed by paragraph 1 of the subpoena, we
observe that any such error would be harmless. The
testimony at issue was provided by Supervisor Sadie
Oliver and Director Robert Egan, who were specifi-
cally discredited by the judge, and by Vice President
Stafford, whose testimony about the timing of the dis-
tribution of the union flyer by childcare worker Anita
Burks was not relied on by the judge. We find it un-
necessary to pass on the judge’s rulings involving
paragraph 3 of the subpoena duces tecum. In this re-
gard, we note that the judge’s finding of unlawful dis-
parate treatment by the Respondent of union flyers was
not dependent on the presence or absence of the mate-
rials sought in the subpoena. Accordingly, the Re-
spondent suffered no adverse consequences because of
the judge’s rulings.
2. The Respondent argues that the judge’s finding
that Supervisor Oliver made unlawful promises to em-
ployee Askew was improper because it depended on a
theory that had not been alleged or litigated. We find
no merit in this argument.
Paragraph 7 of the complaint alleges, inter alia,
‘‘[o]n or about August 7, 1990, Respondent, acting
through Oliver, at its Hastings-On-Hudson facility, so-
licited grievances from employees, and implicitly
promised to remedy said grievances.’’ Child care
worker Ruth Askew testified that on August 9, 1990,
her supervisor, Sadie Oliver, spoke to her. In that con-
versation, Oliver promised that the Respondent would
give the employees a break, but if the Union came in
it would not save their jobs. Oliver also promised that
working conditions would improve, indicating that the
Respondent would rehabilitate two closed cottages and
hire more staff. The record reveals that, through the
winter of 1990, Askew had repeatedly complained
about poor heating in the cottages and understaffing.
The judge found that Oliver’s promises violated Sec-
tion 8(a)(1) by connecting a vote against the Union
with better conditions and retention of jobs. Thus, the
violation found by the judge was reasonably encom-
passed within paragraph 7 of the complaint. Further-
more, it was fully litigated at the hearing.
In any event, even assuming as the Respondent as-
serts that it had no notice prior to the hearing of the
specific violation found by the judge, the Respondent
does not allege that it was precluded from adducing
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 My colleagues equate a complaint allegation concerning solicita-
tion of grievances and the violation found in this case. The two are
not the same. In cases involving solicitation of grievances, the em-
ployer asks employees if they have any grievances. The theory of
violation is that the employer is impliedly promising to redress any
grievances that may exist, thereby eliminating the need for a union.
By contrast, the evidence in the instant case is that grievances al-
ready existed. There was therefore no need to solicit grievances, and
in fact there was no solicitation of grievances. Rather, there was
simply a promise of benefits if the employees rejected the Union.
I am not suggesting that there is an enormous difference between
the complaint and the violation found herein. Indeed, it was the kind
of variance that can be easily cured by a complaint amendment at
trial. That opportunity was offered to the General Counsel. He de-
clined to amend. I would not rescue him from his failure to do so.
2 Because I find that the judge’s assurances at trial preclude find-
ings beyond those specified in the complaint, Baytown Sun, 255
NLRB 154 (1981), cited by my colleagues, offers no guidance. That
case suggests, and I agree, that in appropriate circumstances the
Board will make findings regarding matters that were fully litigated
at trial. Here, because of the judge’s statements at trial, the cir-
cumstances are not appropriate for finding a violation, even if the
matter at issue was fully litigated.
1 The Union did not enter an appearance in this proceeding on the
first day of the instant hearing. However, when Respondent served
a subpoena on the Union, the Union made an appearance in order
to file and argue its petition to revoke. Counsel for the Union did
not attend from day to day, but instead appeared again when a sec-
ond subpoena was served on the Union.
any exculpatory facts. Oliver testified to a different
version of the same August 9 conversation with Askew
and denied the critical statements attributed to her by
Askew. Nor does the Respondent argue that it would
have litigated its case at the hearing differently had it
received what it would deem adequate notice. Hence,
there is no showing that the Respondent has been prej-
udiced. See Baytown Sun, 255 NLRB 154 (1981).
In declining to find a violation here, our dissenting
colleague takes the position that the judge ignored her
own admonition to the General Counsel that she would
not find unalleged violations. We are not persuaded by
this view. According to the credited evidence, Oliver
offered to remedy previously stated grievances submit-
ted by Askew by promising her desirable job improve-
ments. Offering to remedy previously stated grievances
by promising benefits does not significantly differ
from soliciting grievances and implicitly promising to
remedy them, the wording of the complaint. The judge
clearly did not view such a slight variance in phraseol-
ogy as falling within the purview of her admonition,
and we agree.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Graham-Windham Services
to Families and Children, Inc., New York, New York,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order.
MEMBER RAUDABAUGH, dissenting in part.
Unlike my colleagues, I would not adopt the judge’s
finding that Supervisor Oliver unlawfully promised
benefits to employee Askew in order to dissuade her
from supporting the Union.
This violation was not specifically alleged in the
complaint. Paragraph 7 of the complaint alleged an un-
lawful solicitation of grievances with the implicit
promise to remedy those grievances. It did not allege
a promise of benefits unrelated to a solicitation of
grievances, the violation found by my colleagues. This
variance could easily have been corrected. Indeed, the
judge offered the General Counsel the opportunity to
do so. In this regard, the transcript reflects that, at trial,
the General Counsel made a motion to conform the
pleadings to the proof. The judge denied the motion
but invited the General Counsel to propose any spe-
cific amendment that the General Counsel believed
was warranted by the record evidence. The General
Counsel declined to offer any such amendment. The
judge further stated on the record:
I’m not going to find any unfair labor practices
that are[n’t] alleged in the complaint. Especially
since General Counsel declines to amend the
complaint. So I think that should be guidance to
you. You’re entitled to know what you’re up
against.
Notwithstanding these express assurances, the judge
found a violation based on the Oliver-Askew conversa-
tion.
Surely, the colloquy at trial led the Respondent to
believe that the judge’s findings would be in strict
compliance with the allegations of the complaint. In
these circumstances, the Respondent was entitled to
conclude that the General Counsel did not seek, and
the judge would not make any findings beyond those
specifically alleged by the complaint. In my view, fun-
damental notions of fair play, and the principle that
parties should be able to rely on representations from
a judge, both dictate that the Board should not find the
violation.1
On this basis, I would decline to find that the Re-
spondent made an unlawful promise of benefit.2
Suzanne K. Sullivan, Esq., for the General Counsel.
Richard S. Boris and Neal D. Haber, Esqs. (Moss & Boris,
P.C.), of New York, New York, for the Respondent.
Lawrence Kolodney, Esq. (Broach & Stulberg), of New
York, New York, for the Union.1
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in New York, New York, on 8 days between
October 7, 1991, and March 6, 1992. The amended com-
1201GRAHAM-WINDHAM SERVICES
2 Errors in the transcript have been noted and corrected.
3 As noted above, the Union did not make an appearance until
served with two subpoenas by Respondent and counsel for the Union
remained in the hearing room only long enough to present a petition
to revoke and listen to my ruling.
4 I note that Respondent did not at any time request special per-
mission to appeal from my ruling on par. 1 of General Counsel’s
subpoena.
plaint alleges that Respondent, in violation of Section 8(a)(1)
of the Act, threatened its employees with discharge, engaged
in surveillance, promised benefits, promulgated and dispar-
ately enforced a no-posting rule, promulgated and enforced
an overly broad no-distribution rule, promised a wage in-
crease and solicited grievances. Respondent denies that it en-
gaged in any unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent in June
1992, I make the following2
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation with its principal of-
fice in New York, New York, is a social service agency pro-
viding a variety of services to families and children. Re-
spondent admits and I find that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union commenced an organizing campaign at Re-
spondent’s facilities in January or February 1990. Graham-
Windham operates three divisions throughout the New York
City metropolitan area: a group home division, a foster home
boarding division, and a residential campus in Hastings-on-
Hudson, New York.
B. Matters Relating to General Counsel’s Subpoena
Duces Tecum
Counsel for the General Counsel served a subpoena duces
tecum on the Respondent and the Respondent filed a petition
to revoke as to certain paragraphs. I will discuss matters re-
lating to the subpoena briefly and only insofar as a ruling
was required at the hearing and issues relating to the ruling
arose in the course of questioning the witnesses.
Paragraph 1 of the subpoena requested personnel hand-
books, rule books, guidelines, codes of employee conduct
and the like. On the first day of the instant hearing, counsel
for the General Counsel agreed to limit her request to any
materials applicable from February 1990, forward. Counsel
for Respondent acknowledged on the record that any policy
or rule relating to solicitation on Respondent’s property was
relevant to the case and that a policy or rule on the posting
of materials would also be relevant. Counsel for Respondent
resisted turning over any rules to counsel for the General
Counsel and urged that he did not want the Union to see any
material that might be turned over.3 I ruled that I would not
revoke paragraph 1 of the subpoena and instructed Respond-
ent to turn over the material requested. Counsel for the Re-
spondent asked that any material he gave counsel for the
General Counsel not be shown to the Union unless it became
necessary for the preparation of witnesses. On the second
day of the hearing, counsel for the General Counsel informed
me that early in the morning she asked counsel for Respond-
ent, Haber, for the materials covered by the subpoena and he
replied that he did not intend to turn over any of the docu-
ments and that he would be requesting special permission
from the Board to appeal the administrative law judge rul-
ing.4 Nevertheless, later that day, counsel for the Respondent
attempted to show a purported employee handbook to a wit-
ness and to pose questions thereon. Counsel for Respondent
wished the witness to testify concerning a purported policy
on distribution contained in the handbook. Counsel for the
General Counsel objected to Respondent’s attempt to use a
document which should have been turned over to her pursu-
ant to the subpoena. I then ruled that Respondent would be
precluded from using material which should have been given
to counsel for the General Counsel. I informed counsel for
the Respondent that I would not permit him to introduce the
handbook nor to introduce secondary testimony about it be-
cause he had refused to give the material to counsel for the
General Counsel when she requested it earlier that day. On
the third day of the instant hearing, after the completion of
General Counsel’s case, counsel for the Respondent offered
to turn the handbook over to counsel for the General Coun-
sel.
Paragraph 3 of the General Counsel’s subpoena duces
tecum requested that Respondent turn over campaign mate-
rial distributed by Respondent. On the first day of the instant
hearing, after discussion of Respondent’s petition to revoke,
I ruled that Respondent should provide General Counsel with
campaign materials distributed from January to September
1990. Counsel for the Respondent took exception to my rul-
ing and stated his intention to request special permission to
appeal. Counsel for Respondent filed his request to appeal
with the Board on the third day of the hearing and the
Board’s denial of Respondent’s request was not received
until the close of General Counsel’s case. I ruled that Re-
spondent would be precluded from using at the hearing any
materials which should have been provided to counsel for
General Counsel under paragraph 3 of the subpoena. Bannon
Mills, 146 NLRB 611, 614, 633–634 fn. 4 (1964).
On November 25, 1992, counsel for the General Counsel
filed a motion to strike portions of the record relating to the
material requested in General Counsel’s subpoena duces
tecum. I hereby grant the motion with respect to the material
on the following pages relating to paragraph 1 of the sub-
poena: 430, 446, 448, 450, 493, 524, 600, and 601. I deny
the motion with respect to the material relating to campaign
literature requested in paragraph 3 of the subpoena because
counsel for the General Counsel did not object on the record
when the witnesses were being questioned. I note, however,
that the testimony now sought to be stricken was incon-
sequential.
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Of the rank-and-file in attendance, only social workers were not
included in the appropriate unit.
6 The complaint does not allege that Respondent unlawfully solic-
ited grievances in April 1990.
7 Greene said the meeting was not held at Albermarle Road, but
she did not otherwise specify its location.
8 Butler works for a different agency now.
C. Alleged Unlawful Statements to Employee
Lester Ford
1. Background
Lester Ford was hired in March 1989 as the independent
living coordinator for the group homes division. It is Ford’s
responsibility to help the clients learn how to find jobs, how
to find housing and how to perform other tasks that will en-
able them to live in the outside world. Ford learned about
the union organizing campaign in February 1990 when he
saw union organizers outside the office and received lit-
erature from them. Ford spoke to other employees about the
Union. Counsel for the General Counsel presented extensive
testimony by Ford and others to show that beginning in April
1990 Respondent conducted meetings at which the Union
was discussed and at which Ford was an outspoken supporter
of the Union. The purpose of giving the substance of what
occurred at these meetings was to set the stage for allegedly
unlawful statements made to Ford after each of these meet-
ings by his direct supervisor, Chestine Greenee.
2. The April meeting
Ford described a staff meeting held in April 1990 at Re-
spondent’s facility at Albermarle Road in Brooklyn. Accord-
ing to Ford, the meeting was chaired by John Plowden, the
assistant program director of group homes for Graham-
Windham. Also in attendance were Ford’s superior, Director
of Group Homes Chestine Greene, and other supervisors, so-
cial workers, childcare workers, and clerical employees.5
Plowden told the employees at the meeting that the Union
was connected to organized crime and that he had newspaper
clippings which showed that there was corruption in the
Union. Plowden said the Union was only interested in receiv-
ing dues money. He added that the Union was a meatcutters
union and not suited to a foster care agency. At this meeting,
Greene said she wanted to know why employees were inter-
ested in the Union. Ford spoke up and said that the Union
was needed to correct conditions at Graham-Windham. He
said the personalities involved were not the issue; the only
issue concerned conditions at work. When Plowden asked
what complaints the employees had, various employees re-
sponded. According to Ford, Plowden made notes of the
complaints and said he would look into the problems.6
Plowden testified that the April 1990 meeting was held to
discuss the processes of the agency and to encourage
childcare workers and social workers to work together.
Plowden stated that the Union was not discussed at this
meeting. He said that he first saw a newsclipping alleging a
union tie to organized crime in June or July at a meeting
conducted by Al Rodriguez, Respondent’s director of man-
agement information systems, and attended by social workers
and childcare workers. Plowden denied mentioning the Union
at the April meeting; he denied telling the employees that the
Union only wanted their dues and he denied asking employ-
ees about their complaints. Greene, however, recalled this
April meeting, and she testified that Al Rodriguez spoke
about a newspaper article that linked a union official to orga-
nized crime.7 Rodriguez showed the clipping to Ford and
Ford responded that one should not believe everything in the
newspapers.
Rodriguez testified that he conducted a series of meetings
beginning in late June and ending just before the election.
Rodriguez evidently had an imperfect recollection about the
timing of these meetings: he was vague as to whether there
had been two or three meetings and he did not specify dates
for any of them. Rodriguez stated that at a late July meeting
at Albermarle Road he had discussed allegations of criminal
conduct with Ford.
Former Graham-Windham employee Charlene Butler testi-
fied that she was a caseworker for Respondent from April
1990 until February 1991.8 Butler testified in great detail
about a meeting held in April at which the Union was a
major topic. According to Butler, Greene, and Plowden were
there, along with other supervisors, childcare workers, case-
workers, and Lester Ford. The participants in the meeting
discussed methods of dealing with the children in group
homes. In addition, Plowden told the employees that if a
union came to the agency, they would have a middle man
in grievances. Plowden said the Union was a butcher union
with ties to organized crime. Butler particularly recalled that
Plowden had a news clipping in his hand. Ford said that the
employees needed a union and that employees could now be
fired for no reason. Ford said workers in group homes were
overworked and that caseworkers had too many cases to han-
dle. Greene acknowledged that there was too much work.
Greene asked the employees how they felt about the Union
and asked what concerns they had that management could
address. A discussion of benefits and insurance coverage
available to employees ensued. Ford said the agency would
benefit from the Union because the Union would represent
the workers’ interests; employees at Graham-Windham were
overwhelmed but were afraid to speak out.
Ford testified that after the meeting, Greene called him
into her office. Greene said she was upset about what Ford
had said in the meeting. She advised Ford to moderate his
rhetoric and to consider whether or not he wanted to con-
tinue working at Graham-Windham. Greene said that word
was getting around that Ford was antiagency. Ford replied
that he was not antiagency and that he wanted to continue
at Graham-Windham but that certain conditions had to be
corrected.
Greene denied that she discussed the Union with Ford in
a meeting in her office and she denied telling him to mod-
erate his rhetoric; she did not ask whether he wanted to re-
main with the agency.
3. The May meeting
According to Ford, at a staff meeting in May 1990 the
Union was the only topic under discussion. Plowden again
mentioned an alleged union connection to organized crime
and said the Union only wanted the employees’ money and
would turn them against the agency. Ford testified that he
said the real issue was conditions at Graham-Windham. Ford
told the meeting that he had heard that social service agen-
cies with union representation enjoyed better relations be-
1203GRAHAM-WINDHAM SERVICES
9 Ford’s affidavit states that this meeting took place July 2, 1990.
10 Committees were created and announced in January 1991, but
Respondent maintains that these were not discussed with the em-
ployees before the election.
tween staff and management and that the turnover rate was
more favorable. Greene said that the Union was not good
and that employees should not vote for the Union. She stated
that a union was not necessary.
Butler recalled that this meeting was called to discuss a
childcare issue but that it went off at a tangent in a discus-
sion of the Union. Ford said many of the same things he had
said at the first meeting and he added that at other agencies
where the employees were represented by a union things
were going well.
Plowden denied that at a meeting in May 1990 he dis-
cussed the Union or any other social service agencies whose
employees were represented by a union.
According to Ford, after this meeting, Greene called him
to her office and told him to moderate his rhetoric; word was
getting around that Ford was an agency-hater.
Greene denied that she made any of the statements attrib-
uted to her by Ford.
4. The July meeting
Ford testified concerning a big meeting held at Albermarle
Road in late June or early July 1990.9 Chief Executive Offi-
cer Joyce Lapenn was in attendance as well as David
Megley, the division director. Management again mentioned
the newsclippings suggesting an organized crime connection
with the Union and said committees would be formed with
staff representation to investigate employee complaints.10
Management did not want employees to vote for the Union;
the employees were told that the Union was not interested
in providing benefits or services but that it only wanted their
dues. Ford spoke at the meeting and stated that he did not
want to be on a committee that would make recommenda-
tions to management; rather, he wanted to be in a bargaining
unit and negotiate a binding contract with the agency. Ford
said he wanted to be a partner. There was a power struggle
between the employer and the employees and he wanted to
change the power dynamics. Other employees mentioned
their complaints; the grievance policy and the pay scale are
arbitrary, in the winter some of the children were cold and
did not have proper bedding. The social workers complained
about their case load. Lapenn stated that the Union had no
experience in the field of foster care.
Ford testified that after this meeting, Greene called him
into her office and expressed surprise that he could say such
things in front of Lapenn and Megley. Greene said Ford was
undermining her position by speaking out in staff meetings.
She told him that he should moderate his rhetoric and con-
sider whether he wanted to work at Graham-Windham.
Greene told Ford he was a demoralizing factor in the office.
Greene instructed Ford that from now on he was to limit his
contact with clients, social workers, and the childcare staff.
Ford’s affidavit states that Greene told him to give her a
memorandum if he wanted to contact childcare staff or social
workers in carrying out his job duties. Ford said he could not
work under those conditions. The next day, Ford called
Megley and told him that Greene had placed constraints on
him and that he could not do his work in those cir-
cumstances. Greene’s restrictions on Ford’s contacts were
never enforced.
Plowden testified that a meeting was held in May or June
to discuss the concept of therapeutic communities. Lapenn
was not at this meeting. The object was to strengthen the
antidrug message to the children. Plowden asserted that the
Union was not discussed at this meeting. Plowden recalled
that at this meeting Ford tried to discuss subjects related to
the way the agency did business; Ford wanted to discuss
team work and stipend checks. Megley brought the meeting
back to its stated subject. Plowden did not recall any mention
of employee committees at this meeting.
Megley testified that the meeting was conducted on July
2, 1990. Graham-Windham had received state funds to con-
duct a drug-alcohol abuse prevention program and the meet-
ing was to prepare staff for the training. Megley stated that
Lapenn did not attend this meeting. Megley recalled that
Ford mentioned teamwork and other subjects, and that people
were annoyed because Ford’s comments were not relevant to
the stated subject of the meeting. Megley said that no one
mentioned the Union at this meeting and no one raised any
allegations about organized crime nor did management pro-
pose employee committees. Megley testified that after the
meeting he instructed Greene to tell Ford that his operational
questions should be raised directly with Greene and that they
had been inappropriate for the meeting. Megley testified that
Ford never called and told him that Greene had imposed re-
strictions on him and limited his contacts with the staff; rath-
er, Megley recalled that Ford had telephoned him in early
June to complain that Greene had not made a decision on
some program that he was interested in. Megley told Ford
he would speak to Greene on his behalf, but that Ford had
to work with Greene. Megley stated that he knew Ford sup-
ported the Union. Megley attended meetings with the staff
where the Union was discussed in July and August before
the election, but he could not recall how many there were.
Greene testified that the July 2 meeting concerned the con-
cept of a therapeutic community. Megley was there, but
Lapenn did not attend. According to Greene, there was no
discussion of the Union at this meeting. Ford spoke about the
lack of a team approach, he raised the issue of a problem
with stipend checks and he discussed a racist incident at one
group home. Greene stated that she spoke to Ford the next
day in her office. She told him that he had raised improper
issues at the meeting; the stipend checks were to be dis-
cussed directly with Greene. Greene told Ford he had been
disruptive at the meeting because the meeting was not for the
purpose of discussing any of the subjects he had raised.
Greene did not ask Ford how he could make his comments
in the presence of Megley and Lapenn.
Greene testified that on one occasion Ford had sought
money for an event he was planning by going over Greene’s
head directly to the headquarters staff. On another occasion,
he complained that the stipend checks were inaccurate with-
out discussing the matter with Greene first. Greene told Ford
that he should make fund requests through her. Greene re-
called that in June 1990 she asked Ford what he was plan-
ning for the group home residents. Greene wanted to be sure
the proper services were being provided and she wanted to
know Ford’s schedule and whereabouts. Greene told Ford to
route all his memos through her. Greene denied telling Ford
to report all his discussions with staff members and she did
1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Further, Butler corroborated the fact that Ford was outspoken in
favor of the Union at the meetings in 1990.
not tell him to limit his contacts with staff members and cli-
ents. Greene placed these directives in the context of her
need to know what Ford was doing in his work. She stated
that she never discussed the Union with Ford.
Greene testified that she did not discuss the Union be-
tween April and June 1990, and that she never met with Ford
in order to tell him to moderate his rhetoric nor that he was
getting a reputation as an agency-hater.
Lonnie Stafford, the vice president of residential services,
was the highest official of Graham-Windham to testify in the
instant proceeding. According to Stafford, once Graham-
Windham became aware that the Union was organizing, it re-
tained outside counsel and decided to mount a ‘‘systematic
strategy and campaign’’ against the Union. The agency did
not want the Union to be successful, and the campaign was
‘‘very carefully orchestrated and strategized [sic] . . . .’’
Stafford emphasized that management spent ‘‘an inordinate
amount of time . . . with our line supervisors’’ on the
antiunion campaign. Stafford testified that he and Rodriguez
conducted three sets of group meetings with employees prior
to the election, saying essentially the same things to small
groups of employees. The first set of meetings took place in
late June or early July. He and Rodriguez informed the em-
ployees that there would be a hearing and then an election.
They told employees that a newspaper article linked an offi-
cial of the Union with organized crime. Management in-
formed the employees that the Union had a contract with an-
other social service agency but the Union would not benefit
them. At the second set of meetings, employees were told
about provisions of the union constitution and about the dues
structure. At the third set of meetings, management went
through the same kinds of issues as had been discussed with
the employees in the prior meetings, and it said that it hoped
the Union would not be successful and urged employees to
vote in the election. Stafford confirmed that he had told em-
ployees that they could end up with less than they had at the
present time if the Union came in because all benefits are
negotiated. Stafford acknowledged that even before the group
meetings he described, there were communications from
management to the employees about the Union. At regular
staff meetings, management would give an update on union
activities. Some employees asked questions about dues and
some said they needed the Union. Although Stafford did not
attend all the staff meetings held from February to June
1990, Stafford maintained that nothing was said about crimi-
nal activity.
5. Discussion
It is evident from the recitation of the facts above that
issues of credibility must be determined in order to find
whether Respondent’s supervisors and managers made the
statements attributed to them by the testimony of Ford. From
Stafford’s testimony, it is clear that Respondent mounted a
carefully planned and comprehensive campaign to persuade
its employees to vote against the Union. However, it does
not follow from the fact that management had a careful plan
that all the statements made on behalf of management were
part of that plan. Individuals in a supervisory or managerial
capacity may have made statements that neither Stafford nor
Rodriguez knew about. Further, since Graham-Windham ap-
parently held many meetings, both to deal with client issues
and the union campaign, witnesses for Respondent and the
General Counsel had trouble distinguishing among the meet-
ings. Ford gave generally consistent testimony about the
meetings. However, Ford attributed remarks about criminal
connections to Plowden while Respondent’s witnesses con-
sistently attributed these remarks to Rodriguez. Ford stated
that he first heard allegations about criminal activity in April,
and this was confirmed by Greene, but Respondent’s other
witnesses placed these remarks in June or July. Ford is still
employed by Graham-Windham and he has nothing to gain
by testifying about the alleged unlawful remarks made to
him by Greene. Indeed, Ford’s testimony will not serve to
advance his career at Graham-Windham.
Having observed Ford testify and respond to extensive
cross-examination by counsel for Respondent and having
compared Ford’s testimony with the testimony of other wit-
nesses, I conclude that Ford testified accurately to the best
of his recollection. Ford generally recalled the substance of
the meetings and I credit his testimony. I also credit Ford’s
testimony about his discussions with Greene and the state-
ments she made to him. Greene’s statements as related by
Ford are consistent with the the substance of the meetings he
attended and Ford’s account of Greene’s statements had the
ring of truth.11 As noted above, Ford had no motive to invent
or falsify Greene’s statements. I do not credit Greene’s deni-
als. Thus I find that in April 1990 Greene advised Ford to
moderate his rhetoric concerning the Union and to consider
whether or not he wanted to continue working at Graham-
Windham. I find that in May 1990 Greene warned Ford that
word was getting around that he was an agency-hater. I also
find that in July 1990 Greene again warned Ford to moderate
his rhetoric and to consider whether he wanted to work at
Graham-Windham. By these statements, Greene was warning
Ford that his outspoken support of the Union endangered his
continued employment at Graham-Windham. I find that Re-
spondent implied that Ford might lose his job if he continued
to support the Union and that this tended to coerce Ford in
his support of the Union. Respondent thus violated Section
8(a)(1) of the Act.
I credit Ford’s testimony that in July 1990 Greene told
Ford that he was undermining her position by speaking out
in staff meetings. After Greene told Ford that he should
moderate his rhetoric and consider whether he wanted to
work at the agency, Greene instructed Ford that he was to
give her a memorandum if he wanted to contact other staff
members. Greenee acknowledged telling Ford that he should
route all his memos through her but she stated this was for
the purpose of knowing what he was doing about his job du-
ties. Greenee also brought up an occasion when Ford went
over her head and another occasion when he submitted an er-
roneous list for client stipends. However, these two incidents
do not justify a request that Ford tell Greene if he wanted
to contact other staff members and that Ford route all his
memos through her, a directive that would permit Greenee
to monitor and effectively control all of Ford’s contacts with
other staff members. Indeed, Greene’s instructions to Ford
show that Greene wished to limit Ford, an outspoken union
supporter who engaged in prounion rhetoric, in his ability to
communicate with other employees. Although Ford protested
Greene’s directive and it was never enforced, it is clear that
1205GRAHAM-WINDHAM SERVICES
12 ‘‘[T]he test for an 8(a)(1) violation is whether . . . surveillances
tend to be coercive, not whether the employees are in fact coerced.’’
Sturgis Newport Business Forms, 563 F.2d 1252, 1256 (5th Cir.
1977).
13 The poster measured 8 by 15 inches and it bore pictures and
statements of Graham-Windham employees who favored the Union.
Respondent communicated to Ford an instruction that would
have permitted it to engage in surveillance of his union ac-
tivities.12 It is a violation of the Act for an employer to
maintain a close watch on an employee in order to discour-
age conversation about union-related matters. Stone & Web-
ster Engineering Corp., 220 NLRB 905, 919 (1975), enfd. in
relevant part 536 F.2d 461, 468 (1st Cir. 1976). A directive
that Ford communicate with other employees only through
his immediate supervisor, given in circumstances where it
would be clear to Ford that this was as a result of his support
of the Union, had a tendency to restrain and interfere with
Ford’s union activities and violated Section 8(a)(1) of the
Act.
6. The radio incident
Ford testified that Bill Dano, a union organizer had asked
him to appear on a radio talk show before the election. After
Ford accepted this invitation and mentioned it to people in
the office, Greene called him into her office and said she
heard Ford would be on the radio. Greene asked Ford what
he would say, and Ford replied that he would say the same
things he had been saying in the meetings. Thereupon,
Greene asked Ford not to appear on the show; she said there
were good things in store for Ford because he was intelligent
and energetic, and that he should avoid actions which would
make him seem like an agency-hater. Ford said he was not
against the agency and that many people agreed with him.
Finally, Greene told Ford that she had recommended him for
his position and repeated her request that Ford not appear on
the show. Ford agreed to consider the matter. In the event,
Ford recorded a message for use on the radio show.
Greene testified that before the election she saw flyers an-
nouncing a radio program and that her boss informed her that
Ford would appear on the radio. Greene spoke to Ford in her
office and said she had heard Ford would be on the forth-
coming radio program. Ford acknowledged that he had made
a tape. Greene said she would rather Ford not appear on the
radio program since it would make the agency look bad.
Ford replied that he was not against Greene but that he was
against the administration. Greene told Ford that she was part
of the administration and she would rather Ford did not par-
ticipate. Greene did not recall asking Ford what he said on
the tape. Eventually, Ford said he would see if he could pull
the tape back.
I have found generally that Ford is a reliable witness. With
regard to this specific incident, Greene’s recollection seems
to be unreliable. Although Greene could not recall inquiring
as to what Ford would say on the radio, she recalled that she
asked him not to appear on the show because it would make
the agency look bad. Greene did not explain how she knew
Ford’s statements would reflect unfavorably on Graham-
Windham if she did not know what Ford planned to say. I
shall credit Ford’s version of his conversation with Greene
and I shall not rely on Greene’s testimony. I find that Greene
asked Ford not to speak for the Union on the radio talk show
and that she told Ford ‘‘good things’’ were in store for him
and that he should avoid actions that made him seem like an
agency-hater. The term ‘‘agency-hater’’ was one Greene had
employed when chastising Ford for speaking in favor of the
Union at employee meetings. In effect, Greene was telling
Ford that the ‘‘good things’’ would come to pass if he re-
frained from voicing his support of the Union on the radio.
I find that Respondent violated Section 8(a)(1) of the Act by
implying that Ford’s future with Graham-Windham would be
enhanced if he refrained from supporting the Union.
7. The poster incident
Ford shares a small office with another staffperson. Many
documents are posted on the walls of the office, including
pictures of clients, cards from clients, and papers relating to
staff duties. Several days before the election, Ford affixed a
union poster to the wall in his office: the next day it was
gone.13 Ford testified that he asked Greene about the poster
and she said it was taken down because it was against agen-
cy policy to have posters in the office. Ford replied that there
were many antiunion posters in the office and that staff were
wearing ‘‘union busting’’ buttons. About 10 minutes later,
according to Ford, Greene came into his office carrying the
poster; she told Ford to call the main office to request per-
mission to put the poster back on the wall. Ford stated that
he had never needed permission before this incident in order
to post matter on the wall.
Greene testified that she knew Ford had a poster on his
office wall for 2 or 3 days. One day, Ford asked her if she
knew what had happened to his poster. Greene said she did
not know but that she would look around. Greene found the
poster in a management office; although she recalled that it
was on the floor near a trash can, Greene could not recall
if it was in the office of John Godwin, a childcare super-
visor, or the office of John Plowden, the assistant director of
group homes. Greene made no inquiries of management, and
she returned the poster to Ford and told him he could put
it back up on the wall. Greene denied that she told Ford the
poster was removed pursuant to agency policy, she denied
saying management had taken down the poster, and she de-
nied telling Ford he needed permission to put the poster back
up. Plowden testified that he heard there was a union poster
in Ford’s office, but that he did not remove it and did not
know who had done so. Godwin did not testify.
I shall credit the testimony of Ford concerning the poster
incident. As discussed above, he is a more reliable witness
than Greene. Further, although it is clear from Greene’s and
Plowden’s testimony that Ford’s poster was a matter of dis-
cussion, Greene testified that she made no inquiries as to
who might have removed the poster just before the election.
This testimony strains credulity. I find that Ford had various
items posted in his office and that there were antiunion post-
ers around the agency. Ford had never been required to ask
permission before posting material on the walls of his office.
I find that Greene told Ford the union poster was taken down
because it was against agency policy. I find that when
Greene returned the poster to Ford, she instructed him to re-
quest permission of the main office before he put it back up.
The evidence shows that Respondent violated Section 8(a)(1)
of the Act by permitting the posting of material in employee
offices, including antiunion signs, but by disparately prohibit-
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 The memorandum was distributed to employees on the Hastings
campus and at the group homes division.
ing the posting of material favoring the Union unless permis-
sion had been obtained from the main office. New Process
Co., 290 NLRB 704, 708 fn. 18 (1988).
D. Alleged Promise of Benefits
Graham-Windham had Long been lobbying the state gov-
ernment in Albany for additional money from the State De-
partment of Social Services. Stafford testified that in early
August 1990 he learned that funds would be made available
for the purpose of increasing the wages of employees in the
foster care residential programs and to hire more staff. Staf-
ford testified that he did not know when this money would
actually be made available by the State. In the event, Re-
spondent decided to tell the affected staff members the ‘‘wel-
come news’’ on August 8, 1990, the day of the staff picnic
at the Hastings campus.14 This date was 14 days before the
election scheduled for August 22. A memorandum was pre-
pared which stated in part:
We have been informed that the New York State De-
partment of Social Services has now provided, effective
July 1, 1990, a significant increase in available salary
and fringe benefits in foster care programs, which will
likely mean between $1000 and $2000 per employee
for approved child care and social work staff. . . .
Much has yet to be determined as to how this im-
pacts on our staff and our overall plans for the coming
months. We are hopeful that all of this can be finalized
and implemented as early as possible.
According to Stafford, the supervisors were told to distrib-
ute the memo to the staff and to answer any questions the
employees might ask. The supervisors were instructed to in-
form the employees that if the Union won the election, the
additional state money would be a part of the bargaining be-
tween Graham-Windham and the Union.
Childcare worker Betty Williams testified that Unit Man-
ager Jack Toone called her into the office and handed her
the memorandum at the end of her shift. Toone instructed
Williams to read the memorandum and inquired whether she
understood what it said. When Williams asked Toone to ex-
plain the memorandum to her, Toone replied that she would
get between $1000 and $2000 but that if the money did not
come through before the Union vote and the Union won,
then it would have to go on the bargaining table for benefits
and dues.
Toone denied that he mentioned the Union at all to Wil-
liams; he did not mention benefits, nor did he discuss the
election and possible negotiations. Toone explained that he
believed Williams to be a union advocate and he did not
want any controversy to arise. Toone testified that he had
been instructed to tell each person under his supervision that
Albany had said money would be available to employees at
the agency. He was told that he could not promise when the
money would come. Toone stated that he knew he could not
make promises to employees nor threaten them in connection
with the Union. Toone said his instructions were to share the
good news with the employees and that there was no connec-
tion with the Union. However, Toone also testified that he
did not get instructions about what to say to employees be-
cause the memo was self-explanatory. Respondent admittedly
had an exhaustive planned campaign leading up to the Au-
gust 22 election. In addition to the fact that Toone’s testi-
mony was self-contradictory it was inconsistent with Stafford
who testified that supervisors were indeed told what to say
to the staff. Moreover, I find it hard to believe that 2 weeks
before the election, Respondent instructed its supervisors to
hand a memo about a significant pay raise to unit employees
but that it did not tell the supervisors what to say to the em-
ployees. I do not credit Toone’s testimony and I do credit
the testimony of Williams. Thus, I find that Toone told Wil-
liams that she would received a wage increase of between
$1000 and $2000, but that if the money came after the elec-
tion and the Union won the election, then the possible wage
increase would be part of the bargaining with the Union.
Childcare worker Ruth Askew testified that on the morn-
ing of August 9, 1990, just as her shift was ending, Super-
visor Sadie Oliver spoke to her about the memorandum. Oli-
ver told Askew that the employees would receive between
$1000 and $2000 but that if the money came after the elec-
tion and the Union came in, there was a chance employees
would not receive as much and it would have to be nego-
tiated. Although subjected to vigorous cross-examination,
Askew was unwavering in her testimony: she was told that
if the Union was successful, the state funds were subject to
negotiation and employees might receive less than the stated
figure of $1000 to $2000. Askew also recalled that Oliver
told her employees did not need the Union because Graham-
Windham was like a family and did not need any more peo-
ple to tell it what to do. Graham-Windham would sit down
and discuss things with employees and ‘‘give us a break.’’
But if the Union came in it could not save our jobs. Oliver
told Askew that Graham-Windham was going to rehabilitate
two closed cottages and hire more staff.
Oliver testified that she first became aware of the union
campaign in July 1990. Then, she stated that management
met with supervisors beginning in January and told them
about the campaign. Oliver obviously had no independent
recollection of the union campaign or she would have been
better able to place the relevant events in a coherent time
frame. Oliver testified that she was given the welcome news
memorandum and told to share the news with the staff. Oli-
ver recalled that she was told that it was still to be deter-
mined just how much and when the money would be given
out. I formed the impression watching and listening to Oliver
that she had rehearsed her testimony, learned it by rote so
that it could be repeated time after time, but that she had no
actual memory of the matters as to which she was testifying.
Oliver denied handing the memorandum to Askew and she
denied speaking to her about it or saying that Graham-
Windham would rehabilitate some cottages. I do not credit
Oliver.
Kachina Riley, now a resident of Florida and the owner
of her own business in a field unrelated to Graham-
Windham’s activities, testified that she had been a supervisor
in the foster care program before she resigned in December
1990. Riley attended many meetings called by management
to inform the supervisory staff how to respond to employee
concerns about the union campaign. Riley testified that when
the ‘‘welcome news’’ memorandum was to be distributed to
the rank-and-file employees, she was told to alert them that
1207GRAHAM-WINDHAM SERVICES
15 The facts do not support a finding that Respondent, which had
not received the funds from the State, withheld the raise from its
employees. Nor does the record support the General Counsel’s con-
tention that Graham-Windham learned of the additional funds in July
but withheld announcement until August. The record shows that Re-
spondent learned that it would receive additional funds in August,
and that the funds would be retroactive to July.
16 Every year, Graham-Windham hosts a staff picnic on the
Hastings campus. Most of the children are sent to an off-campus
event in the care of the summer staff so that employees will be free
to enjoy the picnic. In 1990, the staff picnic was held on August
8 from 9:30 a.m. until 7:30 p.m. May Taylor Day, named for a ben-
efactor of Graham-Windham, is a day of carnival activities for the
children including rides and a cookout. The childcare staff is on duty
to watch over the safety and behavior of the children. In 1990, May
Taylor Day was held on August 15.
17 Milton testified that she never attends the staff picnic.
the raise could not be given until after to see if the Union
won. If the Union was successful, then the raise would be
held up pending the contract negotiations. Riley had an im-
pressive demeanor and I became convinced of her credibility
as I observed her being cross-examined by counsel for Re-
spondent. I shall rely on Riley’s testimony.
It is clear that both Toone and Oliver told employees that
if the money from the State was received after the election
and if the Union won the election, then they might not get
as much as $1000 to $2000 because the amount of the raise
would be subject to negotiation with the Union. Given the
fact that these statements were made on August 8 and that
the election was to be held in 2 weeks time, employees knew
that if they did not get a raise before the election, a union
victory would delay and perhaps decrease the amount of the
raise they ultimately received. Respondent presented no evi-
dence to show how it had arrived at the $1000 to $2000 fig-
ure. Nor did it show why, if the raise were subject to nego-
tiations with the Union, employees might get less than the
figure Respondent named. No reason appears on the record
why the $1000 to $2000 would not be available for em-
ployee raises if the Union won. The only reason would be
that Respondent would not offer as much in the bargaining
as it would have granted as largesse if the Union lost. Thus,
Respondent told its employees that if they voted against the
Union they would receive a raise of between $1000 to $2000
but that if they voted for the Union, the amount and timing
of the raise was up in the air. Respondent’s statements to its
employees implied that they were more sure of the raise if
they voted against the Union and thus tended to interfere
with and coerce employees in the exercise of their rights. Re-
spondent thereby violated Section 8(a)(1) of the Act.15
As discussed above, I find that when Supervisor Oliver
told Askew about the increased state funding for raises, she
also said that Graham-Windham would sit down and discuss
things with employees and give them a break but if the
Union came in it would not save their jobs. In addition, Oli-
ver said the agency would rehabilitate two closed cottages
and hire more staff. The General Counsel contends that these
statements implied that employees would receive better con-
ditions if they voted against the Union and might lose their
jobs entirely if the Union won the election. I agree that Oli-
ver’s promise that Respondent would give the employees a
break, improve conditions generally and that the Union could
not save employee jobs violated Section 8(a)(1) of the Act
by connecting a vote against the Union with better conditions
and retention of jobs.
E. Alleged Unlawful Prohibition of Distribution of
Union Flyer
Childcare worker Anita Burks testified that on a day in
August 1990, when a special event took place on the
Hastings campus, she handed out some union flyers to fellow
employees. The flyer consisted of a handwritten page pre-
pared by Burks the day before. Burks at first testified that
the event took place on August 8 and that it was either the
staff picnic or May Taylor Day.16 However, it became clear
during Burks’ testimony that she had no recollection whether
she distributed the flyers during the staff picnic when there
were no children around the campus or whether it was May
Taylor Day when the children were free to roam around the
campus and had to be supervised by the staff. Eventually,
Burks’ confusion as to what was taking place on campus
during that day became evident and she became uncoopera-
tive. The General Counsel contends, and Burks testified, that
Burks was handing out literature on her own time before she
went on duty and that Assistant Residence Director Robert
Egan told her she could not give out a union flyer on
Graham-Windham property either on her own time or on her
worktime. Respondent contends that Egan was informed that
Burks, who was admittedly on campus before she was on
formal working time, continued distributing the flyer after
her worktime began and was told she could not do that. Al-
though Burks testified at length, I will not rely on her testi-
mony because I find that her recollection is faulty, confused
and vague; further, Burks became uncooperative at a certain
point and ceased trying to answer the questions posed to her.
The matter does not end there, however. The General
Counsel produced another witness, childcare worker Annie
Milton, who was present during the relevant events. Milton
testified that on May Taylor Day at about 3:30 p.m., she saw
Burks handing out a union flyer on the Hastings campus near
the pond where children were playing games.17 Then Super-
visor Oliver came up to Burks and instructed her to report
to Egan’s office. Burks asked Milton and another employee
to accompany her as witnesses and they walked with Oliver
to see Egan. As they stood in Egan’s office, Milton heard
Egan tell Burks that it was against agency policy to pass out
leaflets about the Union. Burks replied that she had only en-
gaged in the distribution for a little while on her own time
before she signed in, but Egan responded that she could not
do it any time. Egan stated that Burks could not pass out the
flyers on the campus; once she was through the gate she
could not pass out any flyers. Milton testified that Burks was
not the only person giving out flyers on the campus that day;
Supervisor Les Jones gave her a leaflet and said, ‘‘Say no
to the Union.’’ Milton stated that this was not the ‘‘welcome
news’’ memo. Jones did not testify. I shall credit Milton’s
testimony.
Unit Manager Toone saw Burks handing out literature at
about 3:30 p.m. He did not know whether Burks was on duty
and he did not tell her to stop. Toone said this incident took
place at the staff picnic, and he produced a typed flyer pre-
pared by the Union which he stated Burks gave him in ex-
change for the ‘‘welcome news’’ memo.
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Oliver did not see the document.
Director Egan testified that on the day of the staff picnic
Oliver came to his office and informed him that Burks was
distributing union literature to the staff. Egan stated that he
was certain Burks was on duty and that this occurred after
4 p.m. That day, according to Egan, Burks’ scheduled report-
ing time was 3 p.m. Egan instructed Oliver to send Burks
to him. When Burks appeared with Milton, Egan told her she
could not distribute material such as union literature while
she was on duty. Egan acknowledged that his duties require
him to review all daily sign-in sheets and weekly timesheets;
he also acknowledged that Burks’ timesheet for August 8,
the day of the picnic, shows that she worked from noon until
midnight. Egan did not explain the discrepancy between his
recollection and Burks’ timesheet. Egan testified that Burks’
duties began at 3 p.m. when she was to provide supervision
and care to the children. He stated that she could not have
done her duty if she was near the pond area. However, Egan,
by his own account, did not call Burks to task for neglecting
her duties; he only reprimanded her for distributing union lit-
erature. I shall not credit Egan about this incident as I am
convinced that he does not have a firm recollection of the
events and shaded his testimony to favor Respondent.
Oliver testified that she saw Burks handing out literature
on the day of the picnic at about 3:45 p.m.18 At 4:15, Oliver
testified, she observed Burks still socializing with the staff
and handing out literature. Oliver went to Egan’s office and
informed him that Burks was handing out literature and had
not taken over her responsibilities to the children who had
returned from a field trip. According to Oliver, when she ac-
companied Burks and Milton to Egan’s office, Egan told
Burks to take over her responsibilities as she was on duty
from 4 p.m. and could not pass out literature. Oliver stated
that on the way out of Egan’s office, Burks told her, ‘‘If you
didn’t want me to pass out literature you could have told me
yourself.’’ I have found above that Oliver is not a reliable
witness. Further, Oliver testified that Burks was on duty
from 4 p.m., contrary to Respondent’s records and also con-
trary to Egan’s testimony. I shall not credit Oliver’s testi-
mony about this incident.
Stafford, who was director of the Hastings campus before
he became a vice president of Graham-Windham, testified
that on the day of the staff picnic he observed employees
distributing literature on the campus. Stafford saw Burks giv-
ing out a flyer from about noon or 12:30 p.m. until 3 or 4
p.m. Stafford could not recall what time Burks was due to
commence work on that day.
As noted above, I precluded Respondent from introducing
any evidence about a purported rule concerning distribution
on its property because Respondent failed to comply with my
ruling that it turn over employee handbooks and rules in re-
sponse to General Counsel’s subpoena duces tecum. Further,
because Respondent failed to produce the material in re-
sponse to the subpoena, the General Counsel may introduce
secondary evidence in support of the allegations.
Kachina Riley, a most impressive witness and a former su-
pervisor of Graham-Windham, testified that as a supervisor
she never reprimanded any employee for soliciting money or
selling goods during working hours. Riley said that people
sold Avon, raffle tickets, lingerie, candies, and cookies at
Graham-Windham. Riley testified about an instance when a
manager named Ray, the director of the foster care program,
asked her to buy something in his own office. Riley and Ray
bought raffle tickets together on occasion and Riley was sure
she was on working time when she did this. Riley also paid
funds towards an AIDS walkathon on her working time. Of
course, Riley was not able to testify whether any of the other
people may have been on a break when they engaged in this
activity. Ray was not called to testify. I credit Riley that as
a supervisor she was not aware that she should prevent em-
ployees from soliciting on working time. Riley was also not
aware that she should refrain from buying things on her
working time. I believe that if Riley, a very intelligent, well-
informed, and obviously enterprising and dedicated person
was not aware that there was any rule about distributing ma-
terials on working time, then there is no reason to believe
that Respondent restricted solicitation or distribution.
Former employee Charlene Butler testified that from the
beginning of her employment at Respondent, employees sold
products and solicited funds on their working time. Both
Plowden and Godwin signed up for a raffle that she was sell-
ing. Butler was sure that an employee who was scheduled to
be working sold Tupperware to her while she herself was on
worktime. In addition, Butler bought candy from Godwin on
her working time. Neither Plowden nor Godwin testified that
they were on breaktime when they were solicited by Butler.
I shall rely on Butler’s testimony.
Based on the credited evidence, I find that Graham-
Windham did not enforce any rule against soliciting for sales
or charity on working time and that both supervisors and
rank-and-file employees regularly conducted solicitations and
commercial activities while they were scheduled to be on
duty. I find that Egan told Burks that it was against agency
policy to pass out leaflets about the Union at any time: once
Burks was through the front gate she could not pass out any
flyers. Respondent violated Section 8(a)(1) by prohibiting the
distribution of prounion material at any time. Republic Avia-
tion Corp. v. NLRB, 324 U.S. 793, 801 (1945). It is clear
that Respondent permitted the distribution of charity and
sales materials by employees on working time and the dis-
parate nature of Respondent’s no-solicitation policy would be
an additional ground for finding a violation.
F. Conduct of Attorneys Boris and Haber
Counsels for the Respondent, Richard S. Boris, Esq. and
Neal D. Haber, Esq., also represented Respondent in the rep-
resentation case that preceded the instant unfair labor prac-
tice case. The Stipulated Election Agreement in the represen-
tation case was signed by Boris on behalf of Graham-
Windham. The stipulation names the Union as ‘‘United Food
& Commercial Workers Union, Local 342-50, Health Care
and Human Services Division, AFL–CIO.’’ The charge in
the instant case names the Union as ‘‘U.F.C.W. Local 342-
50, AFL–CIO.’’ The complaint gives the Union its complete
name, including the phrase ‘‘Health Care and Human Serv-
ices Division.’’ Respondent’s answer, signed by Boris, denies
that the Union named in the complaint filed the charge, de-
nies that the Union is a labor organization within the mean-
ing of the Act, denies that the Union filed a representation
petition with the Board, and denies that the party which filed
the instant charge appeared on the ballot in the election. The
answer demands that the complaint be dismissed ‘‘inasmuch
[sic] as the putative entity identified in the Complaint as the
1209GRAHAM-WINDHAM SERVICES
19 See Superior Industries, 295 NLRB 320 (1989).
Charging Party is not the party who filed the unfair labor
practice charge in the instant proceeding’’ and ‘‘the putative
entity identified as the Charging Party is not a labor organi-
zation within the meaning of [the Act].’’ From all of this
verbiage it is apparent that Respondent’s counsel objected
that the Union gave its name without the phrase ‘‘Health
Care and Human Services Division’’ when it filed the instant
charge but that the Regional Director signed a complaint
which added this phrase to the name of the Union.
At the commencement of the instant hearing, which was
to last 8 days, I attempted to resolve this issue in the belief
that it would be a waste of governmental resources to litigate
an issue which on its face seemed illusory. In reply to my
attempts, Boris stated, ‘‘I don’t know what Health Care and
Human Services Division is.’’ When I insisted that there was
no importance to the inclusion in the name of the Union of
the phrase ‘‘Health Care and Human Services Division,’’
Haber stated that the union which filed the charge was a dif-
ferent union from the one named in the complaint. Haber
went on to state that he did not doubt that Local 342-50 was
a labor organization but that he doubted that the entity
named in the complaint was a union because it had a dif-
ferent name from the union which filed the charge. Haber
was insisting that United Food and Commercial Workers
Union, Local 342-50, AFL–CIO was a labor organization but
that he could not say whether United Food and Commercial
Workers Union, Local 342-50, Health Care and Human Serv-
ices Division, AFL–CIO was a labor organization.
To put an end to this discussion, I stated on the record that
I would find that the union named in the complaint was a
labor organization under the Act.
However, my finding did not put an end to the efforts of
Boris and Haber to litigate the status of the Union under the
Act. On the third day of the instant hearing, counsel for the
Union appeared before me for the purpose of filing and argu-
ing a petition to revoke a subpoena duces tecum served on
the Union at the instance of Haber. This subpoena required
the Union to produce the union constitution, by laws, rules
and regulations, all membership applications from January
1988 to the present, all documents filed with the U.S. De-
partment of Labor, all correspondence with employees of any
employer sought to be organized by the Union from January
1988 to the present, all collective-bargaining agreements en-
tered into by the Union, and all documents relating to offi-
cers and staff of the Union from 1988 to the present. This
subpoena probably would have required the Union to empty
all of its files. Haber explained in support of the subpoena
that he wanted all of this material because the charge omitted
from the name of the Union the phrase ‘‘Health Care and
Human Services Division’’ but that this phrase was added to
the name of the Union in the complaint. Haber stated on the
record that he was not sure the union in the complaint was
the same union that filed the charge because the name was
different. He stated that he doubted ‘‘whether that is in fact
the same labor organization or whether it is a different entity
which may or may not be a labor organization.’’
I granted the Union’s petition to revoke and stated that the
issue raised by Respondent as to the status of the Union was
frivolous.
On the fourth day of the instant hearing, counsel for the
General Counsel introduced into evidence and called to
Haber’s attention the Stipulated Election Agreement which
named the Union as stated in the instant complaint including
the phrase ‘‘Health Care and Human Services Division.’’
Thus, it was called to Haber’s attention that the stipulation
signed by Boris on behalf of Respondent named the Union
in the style to which he and Boris had been objecting. I then
invited Haber on behalf of Respondent to stipulate as to the
status of the Union within the meaning of the Act and amend
Respondent’s answer. However, counsel for Respondent re-
fused this further opportunity to agree to what must have
been clear from the very beginning. Boris, having signed a
stipulation that named the Union as being in the Health Care
and Human Services Division, could have been in no doubt
as to the identity of the Union which was named in the com-
plaint. Yet he and Haber continued to express on the record
their doubt that the Union named in the complaint was a
labor organization under the Act. Indeed, Respondent only
amended its answer to admit the labor organization status of
the Union when the Board’s decision in M. J. Santulli Mail
Services, 281 NLRB 1288 (1986), was called to counsel’s at-
tention. I informed Haber on the record that he should read
this case and that it would be discussed in my decision.
Section 102.21 of the Board’s Rules and Regulations pro-
vides that:
An answer of a party represented by counsel shall be
signed by at least one attorney of record in his individ-
ual name, whose address shall be stated. . . . The sig-
nature of an attorney constitutes a certificate by him
that he has read the answer; that to the best of his
knowledge, information, and belief there is good
ground to support it; and that it is not interposed for
delay. . . . For a willful violation of this rule an attor-
ney may be subject to appropriate disciplinary action.
In the instant case, Attorney Boris signed Respondent’s
answer denying the labor organization status of the Union.
Boris continued to express doubt that the Union was a labor
organization on the record and then these doubts were con-
tinued on the record by Attorney Haber. Eventually, Haber
caused to be served on the Union the subpoena described
above. It is clear that Boris had knowledge and information
that the Union, United Food and Commercial Workers
Union, Local 342-50, Health Care and Human Services Divi-
sion, AFL–CIO, was a labor organization. Boris had signed
a Stipulated Election Agreement in June 1990, on behalf of
Respondent with the Union.19 Further, Haber stated on the
record that he did not doubt that Local 342-50 was a labor
organization within the meaning of the Act.
It is clear that Attorneys Boris and Haber maintained Re-
spondent’s position denying the status of the Union for pur-
poses of delay. Much time was spent on the record in an at-
tempt to secure a change in Respondent’s answer. Further,
Haber served on the Union a burdensome and frivolous sub-
poena, egregious in the scope and irrelevancy of the informa-
tion sought, which had the effect of forcing the Union to
serve and file a petition to revoke and to send an attorney
to the instant hearing for the purpose of arguing the petition.
The time required to deal with this frivolous subpoena
caused further delay in resolving this lengthy case.
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
21 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.’’
The facts recited above show that Attorneys Boris and
Haber willfully violated the rule prohibiting the interposition
of an answer for purposes of delay. I shall recommend that
they be warned not to engage in similar conduct in the future
and that the Board express its strong disapproval of their
conduct in the instant case. M. J. Santulli Mail Services,
supra at fn. 1; Worldwide Detective Bureau, 296 NLRB 148
(1989).
CONCLUSIONS OF LAW
1. By implying to its employee that he might lose his job
if he continued to support the Union, Respondent violated
Section 8(a)(1) of the Act.
2. By instructing its employee to direct all communications
with other employees through a supervisor, Respondent vio-
lated Section 8(a)(1) of the Act.
3. By informing its employee that his future at the Em-
ployer would be enhanced if he refrained from supporting the
Union, Respondent violated Section 8(a)(1) of the Act.
4. By disparately prohibiting the posting of material favor-
ing the Union unless permission was granted by the main of-
fice, Respondent violated Section 8(a)(1) of the Act.
5. By informing employees that they were sure of raises
if they voted against the Union but that if the Union won
the election the timing and amount of the raises was in
doubt, Respondent violated Section 8(a)(1) of the Act.
6. By promising employees that the Employer would give
them a break and informing employees that the Union could
not save their jobs, Respondent violated Section 8(a)(1) of
the Act.
7. By informing its employees that it prohibited the dis-
tribution of union literature at any time on its property, Re-
spondent violated Section 8(a)(1) of the Act.
8. Richard S. Boris, Esq. and Neal D. Haber, Esq. will-
fully violated Section 102.21 of the Board’s Rules and Regu-
lations by denying the Union’s status as a labor organization
under the Act, without a good-faith doubt of the facts as-
serted in the complaint, for the purpose of delaying the pro-
ceedings.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The Respondent, Graham-Windham Services to Families
and Children, Inc., New York, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Implying to its employees that they might lose their
jobs if they support the Union.
(b) Instructing its employees to direct all communications
with other employees through a supervisor.
(c) Informing its employees that their futures with the Em-
ployer would be enhanced if they refrain from supporting the
Union.
(d) Disparately prohibiting the posting of material favoring
the Union unless permission was granted by the main office.
(e) Informing its employees that they were sure of raises
if they voted against the Union, but that if the Union won
the election the timing and amount of the raises was in
doubt.
(f) Promising its employees that the Employer would give
them a break and that the Union could not save their jobs.
(g) Informing its employees that it prohibited the distribu-
tion of union literature at any time on its property.
(h) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facilities in the three divisions in the New
York metropolitan area in New York State copies of the at-
tached notice marked ‘‘Appendix.’’21 Copies of the notice,
on forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately on re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that Richard S. Boris, Esq. and
Neal D. Haber, Esq. are warned not to violate the Board’s
Rules and Regulations by interposing an answer without a
good-faith doubt of the facts asserted in the complaint for the
purpose of delay, and that the Board expresses its strong dis-
approval of their conduct in the instant case.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
1211GRAHAM-WINDHAM SERVICES
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT inform you that you might lose your jobs
if you support the United Food and Commercial Workers
Union, Local 342-50, Health Care and Human Services Divi-
sion, AFL–CIO.
WE WILL NOT instruct you to direct all communications
with other employees through a supervisor.
WE WILL NOT inform you that your future will be en-
hanced if you refrain from supporting the Union.
WE WILL NOT prohibit the posting of material favoring the
Union.
WE WILL NOT inform you that you will receive a raise if
you vote against the Union.
WE WILL NOT promise you a break while telling you that
the Union can not save your jobs.
WE WILL NOT prohibit the distribution of union literature
at any time on agency property.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
GRAHAM-WINDHAM SERVICES TO FAMILIES
AND CHILDREN, INC.