Heartshare Human Services of New York

National Labor Relations Board - Board Decisions

Jul 29, 2003

339 N.L.R.B. 842 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 842
Heartshare Human Services of New York, Inc. and
CSEA, Local 1000, American Federation of State,
County and Municipal Employees, AFL–CIO.
Cases 29–CA–24269, 29–CA–24318, and 29–CA–
24564
July 29, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On June 7, 2002, Administrative Law Judge Raymond
P. Green issued the attached decision.1
We adopt the judge’s finding,2 for the reasons stated in
his decision, that the Respondent’s executive vice presi-
dent, Kathleen Meskell, unlawfully threatened an em-
ployee with job loss if the employees selected a union to
represent them. For the reasons set forth below, we also
adopt the judge’s findings that the Respondent’s former
program director, Carol Roberti, did not unlawfully inter-
rogate employees Consuela Hodge and Larry Evans about
their union activities, and did not unlawfully create the
impression that the employees’ union activities were under
surveillance.3
I. FACTUAL BACKGROUND
The Respondent is a day treatment program that serves
adults with severe developmental disabilities, whom the
Respondent refers to as “consumers.” The Respondent
employs approximately 60 employees at its Woodside,
New York facility, known as the Hoffman Day Treatment
Center (Hoffman). There are several senior instructors
and assistant instructors at Hoffman to provide direct care
to the consumers, including dressing, undressing, position-
ing, feeding, cleaning, and bathrooming.

1 The Respondent and the General Counsel filed exceptions and sup-
porting briefs, and the Respondent and the General Counsel filed an-
swering briefs. The Respondent filed a letter in reply.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the
exceptions and briefs and has decided to affirm the judge’s rulings,
findings, and conclusions and to adopt the recommended Order, except
that the attached notice is substituted for that of the administrative law
judge.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 No exceptions were filed to the judge’s dismissal of the 8(a)(1) al-
legations of unlawful interrogation and solicitation of grievances in
June and August 2001.
In March 2001, a woman who only identified herself as
“Shirley”4 approached employee Consuela Hodge after
work hours at a bus stop near the Hoffman facility.
Shirley did not mention that she was from a union. After
learning that Hodge worked at Hoffman, Shirley began
asking her questions regarding the Respondent’s wages
and working conditions. Rather than answering Shirley’s
questions, Hodge referred Shirley to her supervisor.
The following day, Hodge told her senior instructor,
Susan Manwaring, about her encounter with Shirley. Just
as Hodge was relaying the story, Assistant Program Direc-
tor Robin Adams joined the conversation and was also told
about the bus stop incident.5 The three individuals specu-
lated whether Shirley might be from a union.
Later that same day, Shirley approached Hodge again at
the bus stop after work and asked her questions similar to
those Shirley asked the previous day. A day after this sec-
ond encounter, Hodge was asked to meet with Hoffman
Facility Program Director Carol Roberti6 in her office.
According to Hodge, Roberti first stated, “she heard that
somebody was asking [Hodge] questions at the bus stop.”
Roberti then asked Hodge whether this person was a man
or a woman. Hodge replied that the person was a woman.
Roberti asked for a physical description of the woman, and
some other general questions, such as what the woman
was wearing and whether she drove. Hodge truthfully
answered all of Roberti’s questions.7 The testimony re-
flects that Roberti did not ask Hodge anything further—in
fact, the word “union” was never even mentioned; nor did
Roberti inquire about the substance of Hodge’s discussion
with Shirley.
Around this same time period, Shirley also approached
Hoffman employee Larry Evans at a bus stop after work
hours. She asked Evans the same sort of questions she
asked Hodge. The day after his conversation with Shirley,
Roberti requested that Evans meet with her in her office.
Roberti began the meeting by mentioning that she had
heard that a union representative had approached Consuela
Hodge and “someone else” at the bus stop. Without speci-
fying whom that “someone else” was, she asked Evans
what the union representative looked like. Evans gave her
a “basic description” of the individual.8 Roberti also asked
Evans whether he had ever been in a union. When Evans
4 “Shirley” did not testify at the hearing.
5 The judge stated that Hodge told Adams about Shirley. The record
evidence, however, shows that Manwaring, in Hodge’s presence, was
the one to tell Adams about Hodge’s encounter with Shirley.
6 Roberti is no longer employed by the Respondent and did not tes-
tify at the hearing.
7 Hodge told Roberti that the woman had braids and was African-
American, but that she did not know whether the woman drove.
8 Evans told Roberti that the union representative was African-
American with braids in her hair.
339 NLRB No. 102
HEARTSHARE HUMAN SERVICES OF NEW YORK 843
replied that he had, Roberti stated that she had also been in
one. According to Evans’ testimony, that was the extent
of their conversation.
II. ANALYSIS
A. Interrogation
Contrary to our dissenting colleague, we agree with the
judge that Roberti did not coercively interrogate employ-
ees Hodge and Evans regarding their union activities. In
determining whether a supervisor’s questions to an em-
ployee constitute an unlawful interrogation, the Board
examines whether, under all the circumstances, the ques-
tioning reasonably tends to interfere with, restrain, or co-
erce employees in the exercise of their Section 7 rights.
Rossmore House, 269 NLRB 1176 (1984), affd. sub. nom.
Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985). Under this totality of circumstances approach,
the Board examines factors such as the employer’s back-
ground (i.e., whether there is a history of employer hostil-
ity and discrimination); the nature of the information
sought (e.g., whether the interrogator appeared to be seek-
ing information on which to base action against individual
employees); the identity of the questioner (i.e., his position
in the company hierarchy); place and method of interroga-
tion (e.g., whether the employee was called from work to
the boss’ office; whether the tone of the questioning was
hostile or threatening); and truthfulness of the reply.
Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). Al-
though “strict evaluation of each factor” is not required,
these “useful indicia . . . serve as a starting point for as-
sessing the totality of the circumstance[s].” Perdue
Farms, Inc. v. NLRB, 144 F.3d 830, 835 (D.C. Cir. 1998).
Applying the above factors to the facts of this case, we
find that Roberti’s questioning of Hodge and Evans did
not reasonably tend to interfere with, coerce, or restrain the
exercise of their Section 7 rights.
Notwithstanding that Roberti was a high-level supervi-
sor, and the conversations occurred in her office, we find
that the relevant factors, considered in their entirety, are
insufficient to establish an unlawful interrogation. First,
the questions all came about because Hodge had voluntar-
ily reported to management about her encounter with
Shirley. The Respondent was trying to find out about
Shirley. The questions did not concern the employees’
union sympathies or activities, but instead were limited to
entirely neutral matters, such as Shirley’s physical descrip-
tion.9 We disagree with our dissenting colleague that

9 Thus, Phillips Industries, 172 NLRB 2119, 2123 (1968), enfd. sub
nom. Clarke v. NLRB, 410 F.2d 756 (4th Cir. 1969), relied on by the
dissent, is inapplicable. There, management specifically questioned the
employees about their union activities [passing out union authorization
cards].
Roberti’s limited efforts to obtain a physical description of
an unknown individual who was repeatedly approaching
the Respondent’s employees as they left its worksite was
conduct that would reasonably tend to coerce employees
in the exercise of their Section 7 rights. Nor do we find
merit in our colleague’s characterization of Roberti’s ques-
tions about Shirley’s appearance as a “painstaking exami-
nation” or in his conclusion that, by “taking such pains” to
obtain a physical description of Shirley, Roberti’s com-
ments were coercive. In any event, because the subject
matter of Roberti’s questions—Shirley’s physical appear-
ance—was not coercive, her questions cannot become
coercive merely because Roberti sought an accurate rather
than a generalized physical description.
Similarly as to Hodge, nothing in Roberti’s comments
linked Shirley to the Union. Further, in neither of her brief
comments to Hodge or Evans did Roberti inquire into the
substance of the employee’s conversations with Shirley.
As to the method of interrogation, neither Hodge nor
Evans testified that Roberti’s tone was hostile or threaten-
ing, and she did not make any explicit or implicit threats of
reprisal or promises of benefit in the context of her ques-
tioning. In fact, after she asked Evans whether he had
been in a union, Roberti told him that she had been in one
in the past too.10 Additionally, the fact that both employ-
ees truthfully answered Roberti’s questions is evidence
that there was nothing in those questions that could rea-
sonably have “inspired fear” in the employees. Bourne,
supra at 48. Again, Roberti’s questions appear to be no
more than a casual and amicable inquiry as to who was
approaching Hoffman employees after work, and the ques-
tioning was never followed up. Finally, there is no evi-
dence that the Respondent has a history of union animus.11
In our view, this type of exchange does not amount to
coercive interrogation. As the judge pointed out, “the
mere fact that Roberti sought to satisfy her curiosity as to
who was approaching employees on their way home, was
normal behavior and was rather innocuous and non-
coercive.”
We reject our dissenting colleague’s claim that
Roberti’s questioning constitutes an unlawful interrogation
because, among other things, the nature of the questioning
itself was coercive. Contrary to our colleague, we do not
find that the employees reasonably would have believed
that Roberti sought information on which to base discipli-
10 Roberti’s comment to Evans that she had once been in a union
would reasonably be perceived as a friendly observation that she and
Evans shared similar backgrounds.
11 We acknowledge that neither employee had disclosed his/her un-
ion sympathies prior to the questioning. Despite this fact, however, we
believe that the surrounding circumstances of the questioning do not
lend themselves to finding an 8(a)(1) violation. Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 844
nary action against those who engaged in union activities.
The questions were harmless inquiries, limited to Shirley’s
physical appearance. To find that the Respondent sought
this limited information in order to take future disciplinary
action against its employees is wholly speculative.
Nor do we agree with the dissent that employees would
reasonably be inhibited from engaging in Section 7 activ-
ity because of Roberti’s very narrow area of inquiry,
which inquiry sought absolutely no information about the
employees’ discussions with Shirley or about the employ-
ees’ activities.
The dissent makes a number of leaps to support this
view. It says that an employee would “assume” from the
questions that the Respondent wanted to be able to spot
Shirley if Shirley came near the facility again. And, the
dissent then infers from that assumption that the employee
would refrain from associating with Shirley. In our view,
both the assumption and the inference are unwarranted.
In sum, considering the factors above, we agree with the
judge that the Respondent did not coercively interrogate its
employees in violation of Section 8(a)(1) of the Act. We
therefore affirm the judge’s dismissal of this allegation.
B. Impression of Surveillance
We also adopt the judge’s finding that the Respondent
did not create an impression that the employees’ union
activities were under surveillance. In order to establish an
impression of surveillance violation, the General Counsel
bears the burden of proving that the employees would rea-
sonably assume from the statement in question that their
union activities had been placed under surveillance.
Grouse Mountain Lodge, 333 NLRB 1322 (2001), enfd.
56 Fed. Appx. 811 (9th Cir. 2003). Contrary to our dis-
senting colleague, we adopt the judge’s findings that em-
ployees Hodge and Evans could not have reasonably be-
lieved that their union activities were under surveillance.
Hodge initiated the conversation with Senior Instructor
Manwaring in which Hodge told Manwaring about the
encounter with Shirley at the bus stop. When Assistant
Director Adams joined their conversation in midcourse,
Manwaring told Adams about the “Shirley encounter” in
Hodge’s presence. Adams testified, without contradiction,
that she later told Director Roberti about Hodge’s encoun-
ter with Shirley. Thus, when Roberti thereafter stated to
Hodge that she had heard that somebody had been asking
Hodge questions at the bus stop, Hodge would have rea-
sonably assumed, as the judge found, and the facts sup-
port, that Adams had told Roberti about the conversation
between Manwaring, Adams, and Hodge. Under these
circumstances, there is nothing that would have suggested
to Hodge that management was surreptitiously surveiling
Hodge’s union activities.
We also agree with the judge that the Respondent did
not create an impression of surveillance with respect to
Larry Evans. At the beginning of her conversation with
Evans, Roberti mentioned that she heard that “Consuela
[Hodge] and someone else” had been approached by the
Union. We find that this statement alone would not have
caused Evans to reasonably believe that the Respondent
was surreptitiously surveiling the employees’ union activi-
ties. Presumably, a spy would know who the “someone
else” was. Thus, the employee would reasonably believe
that the information was not the product of surveillance.
We agree with the judge in the circumstances of this
case that “nothing in Roberti’s statements . . . could rea-
sonably lead either employee to conclude that their own
union activities, or the activities of other employees, were
being spied upon or being kept under surveillance.” For
these reasons, we affirm the judge’s dismissal of this alle-
gation.12
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge and orders
that the Respondent, Heartshare Human Services of New
York Inc., Woodside, New York, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order, except that the attached notice is substituted for that
of the administrative law judge.13

MEMBER WALSH, concurring in part and dissenting in part.
I join my colleagues in finding that the Respondent
unlawfully threatened employee Larry Evans with job loss
in July 2001. Contrary to the judge and the majority,
however, I would find that the Respondent violated Sec-
tion 8(a)(1) of the Act by interrogating employees Con-
suela Hodge and Larry Evans about their union activities
and by creating, in the mind of Larry Evans, the impres-
sion that the employees’ union activities were under sur-
veillance.
The relevant facts are as follows. Shirley, a union rep-
resentative, approached Hodge at a bus stop around the
corner from the Respondent’s facility. Shirley asked
Hodge if she worked at the Hoffman facility. When
Hodge replied that she worked there, Shirley asked her
questions about the wages and working conditions at the
facility. Hodge did not answer, but instead referred
Shirley to her supervisor at Hoffman.
The next morning Hodge told her senior instructor,
Susan Manwaring, about her conversation with the woman

12 In affirming the judge’s dismissal of this allegation, we do not rely
on the judge’s finding that the Respondent could not have created the
impression of surveillance of employees’ union activities because there
were no union activities to be surveilled.
13 We shall substitute a new notice in accordance with our recent de-
cision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
HEARTSHARE HUMAN SERVICES OF NEW YORK 845
at the bus stop. Manwaring told Hodge that it was possi-
ble a union was attempting to organize workers at Heart-
share. Manwaring also told Hodge that unions have, on
previous occasions, tried to organize Hoffman workers,
but were unable to do so. While Hodge was talking to
Manwaring, Assistant Program Director Robin Adams
joined the conversation. Manwaring told Adams about
Hodge’s conversation with Shirley. Adams stated that
Shirley “was probably from a union.” Later that same
day, Shirley again approached Hodge at the bus stop and
asked her questions similar to those asked the day before.
The following day, Program Director Carol Roberti
asked Hodge to come into her office to speak with her.
According to Hodge’s testimony, Roberti mentioned that
she heard that somebody was asking Hodge questions at
the bus stop. When Hodge replied that this was correct,
Roberti started asking Hodge a series of questions con-
cerning the identity of this person, including her national-
ity, hairdo, and clothing, and whether Hodge knew if she
drove. After answering the questions, Hodge was permit-
ted to return to her normal duties.
Hodge testified that she had never before been called
into Roberti’s office for a discussion. She indicated that
employees were not often called into Roberti’s office,
unless there was something going on with one of the con-
sumers, or there was an ongoing investigation of a busi-
ness matter.
Around this same time, Union Representative Shirley
also approached employee Evans at a bus stop outside the
Respondent’s building. Evans testified that Shirley asked
him whether he worked at Hoffman and then asked him
about the working conditions there. The day after Evans
spoke with Shirley, Roberti summoned Evans over the
facility’s loudspeaker to appear in her office. According
to Evans’ testimony, Roberti began the questioning by first
“mention[ing] that Consuela [Hodge] and someone else
had been approached by someone from the union.” Then,
without mentioning that she knew that Evans was the
“someone else” who had talked with Shirley, and how she
knew that, Roberti asked Evans to describe the physical
characteristics of the union representative with whom he
had spoken at the bus stop. Evans described Shirley to
Roberti. Roberti then asked Evans whether he had ever
been in a union. Evans told her that he had been in a un-
ion in the past. The questioning ended shortly thereafter.
A. Interrogation
As my colleagues acknowledge, in determining whether
an interrogation is unlawful, the Board examines whether,
under all the circumstances, the questioning reasonably
tends to interfere with, restrain, or coerce employees in the
exercise of their Section 7 rights. Rossmore House, 269
NLRB 1176 (1984), affd. sub nom. Hotel Employees Lo-
cal 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). Under the
totality of circumstances approach, the Board examines
factors such as whether the interrogated employee is an
open and active union supporter, the background of the
interrogation, the nature of the information sought, the
identity of the questioner, and the place and method of
interrogation. Demco New York Corp., 337 NLRB 850
(2002). Applying these factors, I find, contrary to my col-
leagues, that the circumstances here show that Roberti’s
questioning had a tendency to interfere with the employ-
ees’ exercise of their protected rights.
Here, both the location of the interrogation and the iden-
tity of the questioner tended to create a coercive environ-
ment because the questioning occurred in the office of the
highest ranking official at the facility, and the questioning
was conducted by that official. Ferguson-Williams, Inc.,
322 NLRB 695, 698 (1996). Hodge testified that employ-
ees were rarely called into Roberti’s office, and were only
called in to discuss client issues, investigative matters, or
personal problems. See Phillips Industries, Inc., 172
NLRB 2119, 2123 (1968), enfd. sub nom. Clarke v.
NLRB, 410 F.2d 756 (4th Cir. 1969) (whenever a high
executive calls production line workers into his office and
questions them about union activities, there is inevitably
an implication of coercion). In addition, Evans was sum-
moned over the loudspeaker to Roberti’s office. The use
of a loud speaker to summon employees has an inherently
coercive effect upon employees because of the fear and
embarrassment associated with it. See Phillips Industries,
supra at 2123.
Furthermore, Roberti’s questions alone had elements of
coercion sufficient to find a violation. Roberti asked
pointed questions to Hodge and Evans about Shirley’s
physical appearance. She wanted to know what type of
clothing Shirley was wearing as well as her nationality and
hairstyle, and Roberti also wanted to know whether
Shirley drove. These detailed questions were not “harm-
less inquiries” as the majority suggests. Instead, this type
of interrogation would reasonably raise a question in the
employees’ mind as to why the Respondent wanted such
detail regarding a union representative’s identity. The
employees would have reasonably assumed that the Re-
spondent’s painstaking examination as to Shirley’s physi-
cal characteristics was for the purpose of ensuring that it
would be able to spot her should she ever come near the
Respondent’s facility again.1 An employee would rea-
sonably be inhibited from associating with a person that

1 Contrary to my colleagues’ contention, my position is based on
reasonable inferences drawn from the facts of this case, not speculative
“leaps.” It is well established that the “NLRB is empowered to draw
permissible inferences from credible testimony.” NLRB v. L & B Cool-
ing, Inc., 757 F.2d 236, 241 (10th Cir. 1985).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 846
the Respondent was taking such pains to spot, out of fear
of reprisal for associating with such a person.2 See John
W. Hancock, Jr., Inc., 337 NLRB 1223, 1224 (2002) (In
evaluating the nature of the information sought, the rele-
vant consideration is whether the questioner appeared to
be seeking information upon which to take action against
individual employees). Consequently, Roberti’s question-
ing had the tendency to chill the employees’ exercise of
their protected rights.3
In addition, I find that Roberti’s questioning had a ten-
dency to be coercive in light of the fact that the employees
had not disclosed their union sympathies. See Demco New
York Corp., supra (the fact that the employee was not an
open union supporter and had not revealed his union sen-
timents prior to the interrogation supported the finding that
the interrogation was coercive).4
Under the totality of circumstances, I find, contrary to
my colleagues, that the factors here establish that the Re-
spondent’s questioning was coercive. Accordingly, I
would find that Roberti’s questioning violated Section
8(a)(1) of the Act.
B. Impression of Surveillance
Contrary to my colleagues, I would also find that the
Respondent’s statement to Evans unlawfully created the
impression that it was engaging in surveillance of the em-

2 Because Roberti did not specifically inquire about the substance of
the employees’ discussion with Shirley, my colleagues assert that the
employees would not have reasonably felt inhibited from engaging in
future Sec. 7 activity. Employer questioning, however, need not rise to
the level of a blatant probing into an employee’s union sympathies
before an interrogation violation may be found. As the Fifth Circuit
has recognized, “Coercion by interrogation is one of the ‘subtler’ forms
of management’s interference with labor’s protected rights.” NLRB v.
Camco, Inc., 340 F.2d 803, 804 (5th Cir. 1965) (quoting Bok, The
Regulation of Campaign Tactics in Representation Elections Under the
National Labor Relations Act, 78 Harv. L. Rev. 38, 106 (1964)). Here,
as discussed above, Roberti’s detailed and repeated questioning about
union organizer Shirley’s physical appearance, for which Roberti of-
fered no legitimate explanation, would reasonably tend to discourage
Hodge and Evans from being seen talking to Shirley.
3 My colleagues focus exclusively on whether the Employer was
gathering information for the purpose of retaliating against the employ-
ees for union activities, and assert that, by concluding that it was doing
so, I am engaging in speculation. As stated above, however, it is the
reasonable tendency of the questioning to interfere with employee
rights that is the touchstone, not the Employer’s motive. It is clear to
me that Roberti’s questioning would have had a tendency to chill any
desire these employees might have had to associate with this union
organizer.
4 My colleagues rely on the fact that Hodge and Evans truthfully an-
swered the questions asked, and therefore did not feel coerced by
Roberti’s questions. The fact that the employees honestly answered
Roberti’s questions also “could reflect nothing more than” their “sur-
prise at the question[s].” BJ’s Wholesale Club, 319 NLRB 483, 484
(1995).
ployees’ union activities.5 As the majority notes, the
Board’s test for determining whether an employer has
created an impression of surveillance is whether the em-
ployee would reasonably assume from the statement in
question that his union activities had been placed under
surveillance. Tres Estrellas de Oro, 329 NLRB 50, 51
(1999). “The idea behind finding ‘an impression of sur-
veillance’ as a violation of Section 8(a)(1) of the Act is
that employees should be free to participate in union orga-
nizing campaigns without the fear that members of man-
agement are peering over their shoulders, taking note of
who is involved in union activities, and in what particular
ways.” Flexsteel Industries, 311 NLRB 257 (1993).
“When an employer creates the impression among its em-
ployees that it is watching or spying on their union activi-
ties, employees’ future union activities, their future exer-
cise of Section 7 rights, tend to be inhibited.” Robert F.
Kennedy Medical Center, 332 NLRB 1536, 1539 (2000).
Applying the above principles to the facts of this case, I
find that Roberti’s statements to Evans would suggest that
the Respondent was closely monitoring the degree and
extent of employees’ union activities. Specifically,
Roberti’s statements imply that she knew that Evans was
the “someone else” who had talked to Union Representa-
tive Shirley, even though the evidence does not show that
Evans spoke with anyone at the Respondent’s facility
about his conversation with Shirley until after his meeting
with Roberti. I believe that Roberti’s statement would
reasonably raise an issue in Evans’ mind as to how the
Respondent learned of his encounter with Shirley, and that
Evans would reasonably have believed that the Respon-
dent had gained its knowledge of his meeting with Shirley
through unlawful surveillance, rather than by lawful
means. This impression of surveillance would have the
reasonable tendency to inhibit Evans in the future exercise
of his Section 7 rights. See Ballou Brick Co., 277 NLRB
41, 57 (1985), enfd. in relevant part 798 F.2d 339 (8th Cir.
1986) (“The Board has long held that when management
gives its employees the impression that it is spying on their
union meetings and activities, it has a chilling effect, and a
tendency to deter employees from their rightful participa-
tion in union activities.”).6
5 In light of this finding, I find it unnecessary to pass on whether the
Respondent created an impression of surveillance with respect to Con-
suela Hodge, because to do so would be cumulative and would not
affect the order.
6 I disagree with the judge’s findings that the Respondent could not
have created the impression of surveillance of employees’ union activi-
ties because there were no union activities to be surveilled. Contrary to
the judge, I find that, in the instant case, the employees were engaged in
union activity by speaking to Union Representative Shirley, even if
they did not initiate that contact or have any interest in it. See West-
chester Iron Works Corp., 333 NLRB 859, 865, 867 (2001) (employees
HEARTSHARE HUMAN SERVICES OF NEW YORK 847
Accordingly, contrary to my colleagues, I would reverse
the judge’s finding that the Respondent did not violate
Section 8(a)(1) by creating the impression that the em-
ployees’ union activities were under surveillance.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

WE WILL NOT tell employees that their selection of a un-
ion to represent them could lead to the loss of jobs.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

HEARTSHARE HUMAN SERVICES OF
NEW YORK, INC.
Sharon Chau, Esq., for the General Counsel.
Peter M. Pankin and Steven M. Latino, Esqs., for the Respondent.
William A. Herbert Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried before me in New York City on March 22, 2001. The
charge in Case 29–CA–2269 was filed on May 30, 2001. The
charge in Case 29–CA–24318 was filed on June 27, 2001. The
charge and amended charge in Case 29–CA–24564 was filed on
October 29 and December 27, 2001.1 A consolidated complaint

were engaged in union activity simply by speaking with a union repre-
sentative). Furthermore, during their second encounter, Shirley asked
Hodge whether she thought the staff at Hoffman would want a union.
Hodge stated that she did not know, but she thought the employees
needed one. I find that this conversation alone is sufficient to establish
that Hodge was engaged in union activities.
1 At the hearing, the Respondent asserted that allegations contained
in the amended charge filed on December 28, 2001, are time-barred by
Sec. 10(b) of the Act. The record shows that this amended charge was
mailed to the Respondent on December 28, 2001, and in accordance
with Sec. 102.113 of the Rules and Regulations, the date of service is
the day on which it is deposited in the mail. Sioux Quality Packers,
was issued on August 10, 2001, and a further consolidated com-
plaint was issued on January 3, 2002. In substance the second
consolidated complaint alleges:
1. That in March and April 2001, the Respondent by Program
Director Carol Roberti, interrogated employees about their union
membership and support.
2. That in March and April 2001, the Respondent, by Roberti,
created the impression of surveillance.
3. That in early June and late August 2001, Roberti interro-
gated employees regarding their knowledge of unfair labor prac-
tice charges filed by the Union.
4. That in early June and late August 2001, Roberti solicited
employee complaints and grievances and impliedly promised to
remedy them if employees abandoned their union support.
5. That in or about July 2001, the Respondent, by Executive
Vice President Katie Meskell, threatened employees with job loss
if they supported the Union.
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is admitted and I find that the Respondent is engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the
Act. It also is admitted that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent is a charitable enterprise engaged in providing
services for severely handicapped people. It has a number of
facilities in New York and employs over a thousand employees.
The facility involved in the present case is located at 62–10
Northern Boulevard, Woodside, New York, where the Respon-
dent employs about 60 employees.
The Union began an effort to organize employees of the Re-
spondent in or about March 2001 when one of its organizers
started talking to employees outside the Northern Boulevard
facility.
On or about March 28, 2001, Consuela Hodge was walking
toward the bus stop on her way home when a woman who identi-
fied herself as Shirley stopped and asked if Hodge worked at the
Respondent. This woman also asked about wages and working
conditions. Hodge responded simply by saying that if the woman
wanted such information she should go to the facility. Hodge
stated that Shirley did not identify where she was from.
The next day, Hodge told another employee, Susan Manwar-
ing, about her encounter at the bus stop. Manwaring opined that
it probably was someone from a union. As the two were talking,
Robin Adams, the program director, entered into the conversation
and asked who the woman was, where she was from, and what
she wanted. Hodge related her encounter of March 28 and Ad-
ams said that the woman was probably from a union. The con-

228 NLRB 1034 (1977); Sears, Roebuck & Co., 117 NLRB 522 (1957).
(Proof of service made by ordinary mail is “presumptive” evidence of
receipt.) Further, as pointed out by the General Counsel in her brief,
the allegation of the amended charge, which is “solicitation of griev-
ances,” is closely related to the other allegations in the underlying
charge. Redd-I, Inc., 290 NLRB 115 (1988); Nickles Bakery of Indi-
ana, 296 NLRB 927 (1989); Ross Stores, Inc., 329 NLRB 573 (1999):
and Seton Co., 332 NLRB 979 (2000).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 848
versation then ended and Hodge left. With respect to this con-
versation, the testimony of Robin Adams is essentially the same
as Hodge’s except that she claims that the word “union” was not
used.
On the same evening, Hodge was again stopped by Shirley
who told her that she was from the Union. According to Hodge,
Shirley asked the same basic questions and asked how the em-
ployees were treated. Hodge stated that she told Shirley what her
wages were and said that she had been in a union at another job.
Shirley asked Hodge if she thought the other employees might
want union representation and Hodge said that she didn’t know.
According to Hodge, on or about Friday, March 31, 2001,
Carol Roberti, then the Respondent’s program director called her
into the office and said that she heard that somebody was asking
her questions at the bus stop. Hodge said this was true. Hodge
stated that Roberti asked for a description of the person (national-
ity, gender clothes, etc.) and that she told Roberti that the woman
had braids and was African-American. That seemed to be the
extent of the conversation and there was no assertion by Hodge
that Roberti asked her specifically about a union or how she felt
about a union. (Indeed, there is no evidence that Hodge actually
engaged in any union activity.)
Larry Evans testified that he too was met after work by Shirley
who asked him about the working conditions at the Respondent.
He placed this encounter in March or April 2001.
Evans testified that the day after he spoke to Shirley, Roberti
paged him to go to her office where she mentioned that Consuelo
Hodge had been approached by a person from a union. Accord-
ing to Evans, Roberti asked him for a description of the person,
which he gave. Although not clear on the transcript, it seems that
Evans asserted that Roberti asked him if he had been in a union
before and that she mentioned that she too had been in a union.2
At the time of the hearing, Roberti was no longer employed by
the Respondent and was not called as a witness.
There is no question but that in the spring of 2001, the Re-
spondent figured out that there was Union trying to organize.
In May 2001, Kathleen Meskell, the executive vice president,
visited the Hoffman facility and spoke to the staff about various
programs. At this meeting, Larry Evans asked a question about
fundraising and the allocation of funds to various programs.
According to Meskell, she remembered this question by Evans
because it was sort of unusual. She testified that he asked how
the Respondent distributed funds and after explaining the proc-
ess, Evans suggested that the Respondent had made a bad busi-
ness decision by using money to underwrite a failing program;
that if it wasn’t getting funding, it should be closed. Meskell
testified that she responded that the Respondent had an obligation
to provide services to handicapped people and that closing a
money losing program would cause some employees to lose their
jobs.
The General Counsel does not allege that anything said by
Meskell at the May meeting violated the Act.
However, Evans testified that in July 2001 Meskell was at the
facility and said to him, “[D]o you know that if the union comes
in, some jobs will be lost.” This is denied by Meskell who says

2 Evan’s testimony was: “She mentioned to me had I been in the un-
ion. I said, Yes. She mentioned, she had also been in the union.”
that she was not at the Hoffman facility in July on business. But
she does acknowledge that she visits the facility, from time to
time, to visit her sister who is a customer there.
In June 2001, the Union distributed a flyer indicating that it
had filed an unfair labor practice charge against the Company.
The flyer notified employees of their rights and solicited employ-
ees to contact the Union if they felt that those rights had been
infringed in any manner. Among other things, the flyer accused
management of mistreating employees for speaking with repre-
sentatives from CSEA. 3
On or about June 11, 2001, Roberti held a meeting where she
held up the flyer and commented on it. According to Hodge,
Roberti had some papers in her hand and asked the assembled
group if they knew about unfair labor practice charges and if they
felt that they were being treated unfairly. Hodge testified that
when no one responded, Roberti said that she had an open-door
policy and that employees didn’t need a union to come speak for
them.
Susan Manwaring, who was called by the Respondent, testi-
fied that Roberti had the flyer on her desk and merely asked the
employees if they felt threatened.
Robin Adams testified that at the June 11 meeting Roberti, re-
ferring to the flyer, said that it claimed that employees were being
mistreated and asked if anyone felt that this was the case. Ad-
ams testified that Roberti told employees that she had an open-
door policy, which Adams states was, in fact, consistent with the
existing practice.4
Roberti held another meeting with employees in late August
2001. Hodge’s recollection of this meeting was somewhat dis-
jointed. As far as I can tell from Hodge’s testimony, Roberti
apparently referred to some unfair labor practice charge that had
been filed,5 asked the employees if they knew anything about it,
and asked if they felt that they were being treated unfairly. Ac-
cording to Hodge, Roberti repeated that she had an open-door
policy and that the employees did not need anyone to talk for
them. Hodge testified that at the end of the meeting, Roberti held
up the sign-in sheet and said she was going to use it in court.
Susan Manwaring recalled that Roberti held a second meeting
in August 2001 where she talked about a charge, which alleged
that the staff was being treated unfairly. She testified that Roberti
asked the assembled employees if they felt threatened and if so,
they could come and talk to her.
III. ANALYSIS
The complaint alleges that the Respondent, on various occa-
sions, interrogated employees, either about the Union, their union
activities, or about unfair labor practice charges that were filed by
the Union.
3 The charge in Case 29–CA–2269 was filed on May 30, 2001.
4 The Company’s personnel policy manual does have a provision at
6.04, modified on March 1995 which provides for a procedure whereby
an employee with a complaint or grievance can bring it to the attention
of his or her immediate supervisor at step one; then bring it to the atten-
tion of the program director at step two, and finally bring it to the atten-
tion of the human resource department at step 3.
5 The charge in Case 29–CA–24318 was filed on June 27, 2001.
HEARTSHARE HUMAN SERVICES OF NEW YORK 849
Interrogation by management of employees is the kind of ac-
tivity that sometimes violates the Act, and sometimes does not. It
depends on the circumstances.
In Rossmore House, 269 NLRB 1176, 1177 (1984), affd. 760
F.2d 1006 (9th Cir. 1985), the Board held that interrogations may
be considered noncoercive with the meaning of Section 8(a)(1) of
the Act, if they are unaccompanied by threats of reprisal or force
or promises of benefits. See also Bourne v. NLRB, 332 F.2d 47
(2d Cir. 1964).
With respect to the events of late March 2001, the testimony of
Hodge indicates that she was the person who volunteered to oth-
ers that she had been approached at the bus stop by a person ask-
ing her questions about her employer but who did not identify
herself as a union representative. When she was asked by
Roberti to describe this person and what she said, Hodge was not
asked anything about a union or union activity.
Evans was also asked by Roberti about being approached by
this woman. And in this case, according to Evans, Roberti said
that she had heard that Hodge had been approached by someone
from a union.
In neither case, however, did Roberti interrogate either em-
ployee about their union sympathies or their union activities
(which were nonexistent). Nor did she make any threats or prom-
ises. In my opinion, the mere fact that Roberti sought to satisfy
her curiosity as to who was approaching employees on their way
home, was normal behavior and was rather innocuous and non-
coercive.
Nor do I conclude that Roberti gave either employee the im-
pression that their union activities were under surveillance when
she indicated that she was aware that they had been approached
by Shirley. The fact is that neither employee was, at the time,
engaged in any union activity and there was nothing in Roberti’s
statements which, in my opinion, could reasonably lead either
employee to conclude that their own union activities, or the ac-
tivities of other employees, were being spied on or being kept
under surveillance. See Grouse Mountain, 333 NLRB 1322
(2001); Tres Estrellas de Oro, 329 NLRB 50 (1999). In South
Shore Hospital, 229 NLRB 363 (1997), the Board rejected the
contention that the Respondent had unlawfully created the im-
pression of surveillance based on a statement to the effect that
there was talk of having a union all over the hospital. The Board
noted that the statement indicated, at most the company was
merely aware of the interest in unionization by some of the em-
ployees.
With respect to the meetings held in June and August 2001,
the General Counsel alleges that Roberti, interrogated employees
and impliedly solicited grievances with an attendant promise to
remedy them. I don’t agree.
Clearly, Roberti called the June 2001 meeting in response to a
flyer distributed by the Union, which accused the Company of
committing unfair labor practices and mistreating employees.
Roberti’s inquiry as to whether any of the employees felt threat-
ened by the Company (as alleged by the Union), does not, in my
opinion, amount to illegal interrogation. Rather, it is a normal
response to a serious accusation and is viewed by me simply as a
rhetorical question. Similarly, the reference to an open-door
policy, which was already in existence at the time, does not strike
me as constituting a solicitation of grievances with an attendant
promise to remedy them. PYA/Monarch, Inc., 275 NLRB 1194
(1985). See also Uarco, Inc., 216 NLRB 1 (1974); and Genzer
Tool & Die Corp., 268 NLRB 330 (1983).
Much the same can be said for the August meeting where
Roberti, apparently in response to an unfair labor practice allega-
tion, gathered employees together and asked if any felt threat-
ened. Again her reference to an open-door policy was not, in my
opinion, a violation of the Act.
However, I will credit the testimony of Larry Evans to the ef-
fect that in July 2001, Meskell said to him, “do you know that if
the union comes in, some jobs will be lost.” I suspect that this off
hand statement made by Meskell was a kind of followup to
Evan’s comment at an earlier meeting to the effect that one way
to save money was to cut unprofitable programs. (Which of
course would have meant cutting jobs.) I doubt very much that
Meskell intended her remark as a threat of reprisal and she
probably made the remark simply as a statement of opinion. But,
from Evan’s point of view, her statement could reasonably be
viewed as a threat that unionization could lead to the loss of jobs.
In viewing such statements, the speaker’s subjective intent is
really not relevant. What is relevant is the reasonably expected
impact on the listeners if the listeners are employees. The law
does not require the listener to be a mind reader in order to deci-
pher a speaker’s subjective intent.
There is a decent argument that Meskell’s statement should be
considered de minimis. The statement was made by one manager
to one employee and is the only troubling remark made by repre-
sentatives of the Respondent over a 5-month period in the context
of an union organizing drive involving about 60 employees.
But there are statements and statements. It would be one thing
if the statement in question was a promise, or a single instance of
a coercive interrogation, or a single statement that selecting a
union would be futile. But having credited Evan’s version, it is
my opinion that Meskell’s statement is more serious in that it
could reasonably be viewed as a threat of layoff or discharge. I
therefore shall conclude that the statement is not de minimis and
requires a remedy.
CONCLUSIONS OF LAW
1. By telling an employee that if a union comes in it may cost
jobs, the Employer violated Section 8(a)(1) of the Act.
2. The Employer has not violated the Act in any other manner
encompassed by the complaint.
3. The unfair labor practice found, affects commerce within
the meaning of Section 8(a)(1) and Section 2(2), (6), and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectuate
the policies of the Act.
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended6

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 850
ORDER
The Respondent, Heartshare Human Services of New York,
Inc., its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that selection of a union might cost
them jobs.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the rights guaranteed to them by Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days after service by the Region, post at its facil-
ity in, Queens, New York, copies of the attached notice marked
“Appendix.”7 Copies of the notice, on forms provided by the

Board and all objections to them shall be deemed waived for all pur-
poses.
7 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
Regional Director for Region 29, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60 con-
secutive 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, defaced, or covered by any other material. In the event
that during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since July 1,
2001.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.