Jewish Home for the Elderly of Fairfield County

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1069 (N.L.R.B. 2004)

JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY
343 NLRB No. 117
1069
The Jewish Home for the Elderly of Fairfield County
and New England Health Care Employees Un-
ion, District 1199, SEIU, AFL–CIO. Cases 34–
CA–9920, 34–CA–10063, 34–CA–10099, 34–CA–
10127, 34–CA–10167, and 34–RC–1947
December 16, 2004
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On November 21, 2003, Administrative Law Judge
Michael A. Marcionese issued the attached decision. The
Respondent and the Charging Party filed exceptions and
supporting briefs, the General Counsel filed limited ex-
ceptions and a supporting brief, the Respondent and the
General Counsel filed answering briefs, and the Respon-
dent filed a reply brief.
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 exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3

1 No exceptions were filed to the judge’s dismissal of allegations
concerning: (1) the confidentiality rule contained in the corporate com-
pliance program handbook; (2) Dennis Magid’s prohibiting employees
from discussing the Union at any time at the Respondent’s facility; (3)
Linda DiGangi’s prohibiting employees from engaging in union activi-
ties while at work; (4) Jeannette Laidlaw’s prohibiting Tawana Wil-
liams from campaigning with employees who were working in an im-
mediate patient care area; (5) Laidlaw’s restricting the location of em-
ployee breaks; (6) threatening employees with arrest; (7) creating the
impression of surveillance by installing new surveillance cameras; (8)
creating the impression of surveillance through statements made by
Nursing Supervisor Debra Straubel to employee Marciana Lozada; (9)
creating the impression of surveillance by the statement or conduct of
Vice President Michael Silverman; (10) monitoring of employee Wil-
liams; (11) creating the impression of surveillance through Laidlaw on
April 10; (12) Art Caplan’s videotaping of employees; (13) soliciting
employees to revoke their union membership by stapling instructions to
their paychecks and by posting instructions; (14) discharging Misty
Hinds; (15) refusing to let Farid Gauthier work on February 27, 2002;
and (16) Magid’s statements to Carmen Dyer. In addition, no excep-
tions were filed to the judge’s recommendations to overrule Objections
2, 4, 10, 12, and 15 or to his disposition of unit placement issues.
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.
In crediting certain witnesses who were current employees, the judge
stated that their testimony was “inherently” credible or reliable because
they were testifying against the interests of their Employer. While
Chairman Battista and Member Schaumber adopt the judge’s credibility
resolutions, they believe that this formulation is somewhat overstated.
The principle is that “the testimony of current employees which contra-
and to adopt the recommended Order as modified and set
forth in full below.4
1. The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by maintaining a rule denying off-
duty employees access to “the facility” unless visiting
residents, clients, or conducting official business. We
adopt the judge’s finding of a violation for the reasons
stated by him.5
2. In agreeing with the judge that a bargaining order
pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575
(1969), is not warranted in this case, we do not necessar-
ily adopt his entire rationale. We do, however, agree with
the judge that the coercive effects of the Respondent’s
unlawful conduct can be satisfactorily mitigated, and a
fair rerun election ensured, by traditional Board remedies
in conjunction with the special remedies the judge has

dicts statements of their supervisors is likely to be particularly reliable
because these witnesses are testifying adversely to their pecuniary
interests.” Flexsteel Industries, 316 NLRB 745 (1995).
3 Chairman Battista and Member Schaumber agree with the judge
and their colleague that Carl Glickman, the Respondent’s chairman of
the board, unlawfully threatened employees with closure and job loss in
speeches given in April 2002. Accordingly, the Chairman and Member
Schaumber find it unnecessary to pass on the judge’s findings that the
Respondent also threatened closure and job loss in posters and leaflets
displayed and distributed in March and April 2002 and through state-
ments by President and Chief Executive Officer Magid in October and
November 2001. In their view, these additional findings of a violation
would be cumulative and would not affect the remedy.
In addition, Member Schaumber does not agree with his colleagues
or the judge that the Respondent unlawfully created the impression of
surveillance or engaged in actual surveillance of employees’ protected
activities. In his view, the record does not establish that the Respon-
dent’s observations of employees Williams, Gauthier, and Thompson
during the activities in question rose to the level of actual or implied
surveillance. Thus, Member Schaumber would reverse the judge’s
findings that the Respondent created the impression of surveillance in
connection with incidents involving (1) Tawana Williams on March 5,
2002, and (2) Farid Gauthier on March 26, 2002, and that the Respon-
dent engaged in actual surveillance in connection with an incident
involving Artarene Thompson on April 5, 2002.
Member Walsh would find that the Respondent violated Sec. 8(a)(3)
when it suspended Gauthier. In Member Walsh’s view, the evidence
and analysis that support the judge’s finding that the Respondent vio-
lated Sec. 8(a)(3) when it discharged Gauthier also support the conclu-
sion that the suspension was unlawful.
4 We have modified the judge’s recommended Order to conform to
the violations found and have substituted a new notice that reflects
these changes.
5 Chairman Battista and Member Schaumber acknowledge Tri-
County Medical Center, 222 NLRB 1089 (1976), as controlling prece-
dent in adopting the judge’s conclusion that the Respondent violated
Sec. 8(a)(1) by maintaining this rule. The Chairman notes that, under
Tri-County, supra, a no-access rule can be valid if it is justified by
business reasons. In the instant case, the Respondent has not given a
justification for its rule.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1070
recommended. Thus, we adopt his recommended rem-
edy and direct a second election.6
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, The Jewish Home for the Elderly of Fair-
field County, Fairfield, Connecticut, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Maintaining any rules that prohibit employees from
engaging in protected solicitation during nonworktime in
nonimmediate patient care areas or that prohibit employ-
ees from engaging in protected distribution during non-
worktime and in nonwork areas that are not immediate
patient care areas.
(b) Discriminatorily denying off-duty employees ac-
cess to the cafeteria.
(c) Maintaining any rules that deny off-duty employees
access to the outside nonwork areas of the facility.
(d) Maintaining any rules that prohibit employees from
discussing their wages, benefits, or other terms and con-
ditions of employment.
(e) Telling employees that they may not talk about the
Union during working time while permitting employees
to discuss other nonwork-related subjects during working
time.
(f) Engaging in actual surveillance of employees’ un-
ion and other protected concerted activities or, by other
acts, creating the impression among employees that these
activities are under surveillance.
(g) Providing assistance to, or otherwise encouraging,
employees to revoke signed union authorization cards.
(h) Coercively interrogating any employee about union
membership, activities, or support.
(i) Threatening employees with closure of the facility,
job loss, or other adverse consequences if they choose to
be represented by a union for purposes of collective bar-
gaining.
(j) Granting employees wage increases or promising
them increased wages and improved working conditions
to discourage them from selecting a union to be their
collective-bargaining representative.

6 In adopting the special remedies recommended by the judge,
Chairman Battista notes that the Respondent did not except to or make
any arguments against the imposition of these special remedies.
Member Walsh agrees with the General Counsel’s contention in his
exceptions that a Gissel bargaining order is necessary to remedy the
Respondent’s serious and pervasive unfair labor practices. However, in
the absence of a majority to issue such an order, Member Walsh joins
his colleagues in adopting the special remedies recommended by the
judge.
(k) Requiring employees to engage in antiunion activi-
ties.
(l) Imposing more onerous working conditions on, de-
nying recommendations for, discharging, or otherwise
discriminating against employees for supporting New
England Health Care Employees Union, District 1199,
SEIU, AFL–CIO, or any other union.
(m) In any other manner interfering with, restraining,
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
effectuate the policies of the Act.
(a) Rescind the rules prohibiting employees from en-
gaging in the solicitation or distribution of literature “in
resident, client or child care areas of the home at any
time”; denying off-duty employees access to outside
nonwork areas of the home; and prohibiting employees
from talking about the Union or discussing their wages,
benefits, and other terms and conditions of employment;
remove these rules from the employee handbook and
personnel policies; and inform employees in writing that
these rules are no longer in effect.
(b) Make the union observers whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, plus interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
(c) Within 14 days from the date of this Order, offer
Farid Gauthier and Ebonie Stewart full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(d) Make Gauthier and Stewart whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the decision.
(e) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges, and within 3 days thereafter notify Gauthier and
Stewart in writing that this has been done and that the
discharges will not be used against them in any way.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Fairfield, Connecticut, copies of the at-
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1071
tached notice marked “Appendix B.”7 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 34, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. The
notice shall be posted in English, Spanish, Portuguese,
and Haitian Creole. The notice shall also be read in the
presence of all unit employees by Carl Glickman or the
current chairman of the Respondent’s board of directors
if Glickman no longer holds that position, and shall also
be read in Spanish, Portuguese, and Haitian Creole by
interpreters. In the event that, during the pendency of
these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since October 1, 2001.
(h) Within 14 days from the date of this Order, supply
the Union with the names and current addresses of unit
employees, updated every 6 months for a period of 2
years or until a certification after a fair election has is-
sued.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
IT IS FURTHER ORDERED that the election in Case 34–
RC–1947 is set aside and that this case is remanded to
the Regional Director for Region 34 to conduct a new
election when he deems the circumstances permit the
free choice of a bargaining representative.
[Direction of Second Election omitted from pub-
lication.]

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-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX B
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 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain rules that prohibit you from en-
gaging in protected solicitation during nonwork time in
nonimmediate patient care areas or that prohibit you
from engaging in protected distribution during nonwork
time and in nonwork areas that are not immediate patient
care areas.
WE WILL NOT discriminatorily deny off-duty employees
access to the cafeteria.
WE WILL NOT maintain rules that deny off-duty em-
ployees access to the outside nonwork areas of the facil-
ity.
WE WILL NOT maintain rules that prohibit you from
discussing your wages, benefits, or other terms and con-
ditions of employment.
WE WILL NOT tell you that you may not talk about the
Union during working time while permitting you to dis-
cuss other nonwork-related subjects during working
time.
WE WILL NOT engage in surveillance of your union and
protected concerted activities or engage in other conduct
that makes it appear that we are engaging in such surveil-
lance.
WE WILL NOT offer to assist you, or otherwise encour-
age you, to revoke union authorization cards that you
have signed.
WE WILL NOT ask you about your union membership,
activities, or support.
WE WILL NOT threaten you that the facility will close,
or that you will lose your job if you vote for the Union.
WE WILL NOT give you wage increases or promise you
increased wages and better working conditions to dis-
courage you from voting for the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1072
WE WILL NOT require you to engage in antiunion activi-
ties, such as handing out flyers and leaflets opposing the
Union.
WE WILL NOT impose more onerous working conditions
if you join or support the Union.
WE WILL NOT refuse to give you a recommendation or
reference because you choose to join or support the Un-
ion.
WE WILL NOT discharge you, or otherwise discriminate
against you, if you join or support the Union.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights as set
forth above.
WE WILL rescind our rules that prohibit you from solic-
iting or distributing literature “in resident client or child
care areas of the home at any time”; that deny you access
to the outside nonwork areas of the home when you are
off-duty; and that prohibit you from talking about the
Union or discussing your wages, benefits, and other
terms and conditions of employment; and WE WILL re-
move these rules from our employee handbook and per-
sonnel policies.
WE WILL make the union observers whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against them, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, offer Farid Gauthier and Ebonie Stewart full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Gauthier and Stewart whole for any
loss of earnings and other benefits resulting from their
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Gauthier and Stewart, and WE WILL,
within 3 days thereafter, notify each of them in writing
that this has been done and that the discharges will not be
used against them in any way.
WE WILL, within 14 days from the date of the Board’s
Order, supply the Union with an updated list of our em-
ployees’ names and addresses.
THE JEWISH HOME FOR THE ELDERLY OF
FAIRFIELD COUNTY
Thomas E. Quigley and Robert M. Cook, Esqs., for the General
Counsel.
Thomas R. Gibbons and Edward V. Jeffrey, Esqs. (Jackson
Lewis LLP), of Hartford, Connecticut, for the Respondent.
Kevin A. Creane, Esq., of Milford, Connecticut, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. This
case, involving numerous alleged unfair labor practices com-
mitted during an unsuccessful 6-month long union organiza-
tional drive, was tried in Hartford, Connecticut, over 16 days
between November 13, 2002, and February 11, 2003. New
England Health Care Employees Union, District 1199, SEIU,
AFL–CIO (the Union) filed the initial charge in Case 34–CA–
9920 on November 15, 2001. That charge was amended six
times between January 17 and August 30, 2002.1 The Union
filed and amended the remaining charges in this case on various
dates between March 28 and July 8. On August 30, an order
consolidating cases, consolidated complaint and notice of hear-
ing issued, based on these charges. The General Counsel
amended the complaint on October 28 before the hearing
opened, and again at the hearing. On September 16, the Re-
spondent filed its answer to the complaint. The Respondent
also filed an answer to the amendment to the complaint on No-
vember 8 and answered the further amendments to the com-
plaint on the record at the hearing. On November 11, the Re-
spondent amended its answer to raise an additional affirmative
defense.
The consolidated complaint, as amended, alleges numerous
independent violations of Section 8(a)(1) of the Act, allegedly
committed by a number of supervisors and agents of the Re-
spondent, between October 2001 and April 10, 2002. The Gen-
eral Counsel alleges, inter alia, that the Respondent engaged in
actual, and created the impression of, surveillance of its em-
ployees’ protected activities; promulgated and/or maintained
and enforced various rules allegedly interfering with employ-
ees’ Section 7 rights; solicited employees to repudiate the Un-
ion and revoke union authorization cards they had signed;
granted and/or promised wage increases and other benefits;
threatened closure of the facility and job loss through posters
and speeches; and made other statements that were alleged to
be threatening or otherwise violative of the Act. The consoli-
dated complaint alleges that the Respondent violated Section
8(a)(1) and (3) of the Act by refusing to allow union activist
Farid Gauthier to work on February 27, by suspending Gauthier
on March 27, and terminating him on April 10; by imposing
more onerous working conditions on Juan Ayala since February
28 and by refusing to give Ayala a recommendation on March
15; by terminating Misty Hinds, Carmen Dyer, and Ebonie
Stewart on March 13, April 10, and July 1, respectively; and by
denying the Union’s observers the right to work on the day of
the Board-conducted representation election while allowing its
own observers to work. The General Counsel alleges that the
above unfair labor practices, if proven, are sufficiently serious
and pervasive to require the issuance of a bargaining order
pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
The Respondent, by its answer as amended, has denied the
commission of any unfair labor practices and has asserted that
the actions taken against the alleged discriminatees were moti-
vated by legitimate, nondiscriminatory reasons and would have

1 All dates are in 2002, unless otherwise indicated.
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1073
occurred even in the absence of union activity. The Respon-
dent also denied that the unit for which a bargaining order is
sought is an appropriate unit under Section 9(a) of the Act, that
the Union ever achieved majority support and that a Gissel
bargaining order is appropriate in this case.2
By Order dated October 30, the General Counsel consoli-
dated the unfair labor practice complaint with objections filed
by the Union in Case 34–RC–1947. The Union filed its peti-
tion in that case on March 1, seeking to represent the Respon-
dent’s service and maintenance employees. Pursuant to a stipu-
lated election agreement dated March 11, an election was con-
ducted at the Respondent’s facility on April 11. The tally of
ballots prepared after the election and served on the parties
revealed that a majority of the valid votes counted plus chal-
lenged ballots were not cast for the Union.3 On April 18, the
Union filed timely objections to conduct affecting the results of
the election. On October 7 the Union withdrew two of the ob-
jections. The Board’s Regional Director issued a Report on
Objections on October 30, finding that the Union’s Objections
1–8, 13, and 16 were identical or similar to allegations in the
consolidated complaint and that Objections 9, 10, 12, and 15
raised substantial and material issues of fact, including but not
limited to issues of credibility, that may best be resolved on the
basis of record testimony at a hearing.4
These latter objections allege the following:5
9. On both April 10th and April 11th the Employer or-
ganized, allowed and paid eligible voters, at least some of
whom were on duty at the time, to picket the entrance of
the facility holding “Vote No” and other signs with vari-
ous antiunion slogans.
10. During the critical pre-election period, Employer
agents, supporters, or others acting in concert with them

2 The Respondent’s answer also raised the issue of timeliness under
Sec. 10(b) of the Act and claimed that the underlying unfair labor prac-
tice charges did not support the allegations of the consolidated com-
plaint. Neither during the course of the hearing, nor in its brief, has the
Respondent specified which allegations should fail on these grounds.
Because the Respondent has essentially abandoned this affirmative
defense, I will not address it in my decision.
3 The tally indicates that there were approximately 396 eligible vot-
ers. Of the 389 votes cast, the Union received 146 votes, 213 votes
were cast against representation, and 30 ballots were challenged. The
challenged ballots were not determinative.
4 The Respondent, in the amendment to its answer filed on Novem-
ber 11, asserted that the administrative law judge lacked jurisdiction to
consider the Gissel bargaining order issue because the Board had not
ruled on exceptions it intended to file to the Regional Director’s Report
on Objections, citing Irving Air Chute, 149 NLRB 627 (1964). Be-
cause the time for filing exceptions to the Report had not yet expired
when the Respondent raised the issue, I reserved ruling on this defense
until I made my decision here. The Respondent never advised me
whether it in fact filed any exceptions to the Report on Objections or, if
it did, whether the Board had ruled on them. The Respondent also did
not address this affirmative defense in its posthearing brief. I shall
assume, based on the Respondent’s failure to press this issue, that the
Board has denied any exceptions that may have been filed and that the
issues raised by the objections are properly before me, including the
issue of the appropriateness of a bargaining order.
5 The Union’s objections are set forth in their entirety in app. A.
bribed or otherwise attempt to illicitly influence the vote
of eligible voters, as evidence by, but not limited to, offer-
ing to assist at least one employee in his attempt to obtain
a “green card” from INS and generating free publicity for
the musical band of two (2) other employees.
12. During the critical preelection period, the Em-
ployer promoted three (3) former union supporters into
leadership positions for the purpose of influencing their
vote in the election and assisting management in conduct-
ing its antiunion campaign.
15. During the critical preelection period, management
consultants, in the course of campaigning against the Un-
ion in their capacity as agents of the Employer, misrepre-
sented to employees that they were agents of the National
Labor Relations Board and disinterested parties to the
election. The consultants reinforced their sham claim that
they were agents of the Board by distributing Board issued
material to eligible voters.
During the course of the hearing, the General Counsel and
the Charging Party Union called 16 witnesses and the Respon-
dent called 46 witnesses.6 Numerous documents were submit-
ted into evidence by the parties. On April 11, 2003, the Gen-
eral Counsel, the Charging Party, and the Respondent submit-
ted briefs. On the entire record, including my observation of
the demeanor of the witnesses, and after considering the briefs
filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates a skilled nursing
home, providing inpatient medical and professional healthcare
services at its facility in Fairfield, Connecticut. The Respon-
dent, in conducting its operations, annually derives gross reve-
nues in excess of $100,000 and purchases and receives at its
facility goods valued in excess of $50,000 directly from points
outside the State of Connecticut. The Respondent 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 a health-
care institution within the meaning of Section 2(14) of the Act.
The Respondent also admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview
The Respondent operates a 360-bed nursing home on 15.6
acres in Fairfield, Connecticut, serving elderly residents, indi-
viduals undergoing rehabilitation following discharge from a
hospital, and Alzheimer’s patients. The Respondent’s facility
occupies 211,000 square feet in three main interconnected
buildings, i.e., the Tandet, Bennett, and Kuriansky Pavilions.
Also located on the Respondent’s grounds are four houses, one
of which is used as a childcare center, and a large parking lot.
The main entrance to the facility is a long driveway up a steep
hill. During the period from September 2001 through April

6 About half of the Respondent’s witnesses were card signers whose
testimony was offered to negate the validity of their signatures.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1074
2002, the Respondent employed approximately 400 individuals
in service and maintenance classifications and an undisclosed
number of employees in other positions, including managers,
supervisors, nurses, and other healthcare professionals. Dennis
J. Magid was the Respondent’s president and chief executive
officer during this period. Magid had been employed by the
Respondent since 1972, before the facility even opened. He
was no longer employed as of the date of the hearing, having
retired on September 30. Reporting to Magid were three vice
presidents: Michael Silverman, the vice president of operations;
Alyssa Rotella-Soderberg, vice president of health services and
administrator; and Steve Kramer, vice president of business and
finance. The vice presidents had operational responsibility for
various departments and, along with Magid and the director of
the nonprofit JHE foundation, comprised the Respondent’s
executive committee. Magid was responsible to the board of
directors, which was chaired at the time by Carl Glickman,
whose mother had been a resident of the facility for many
years.
The Respondent’s employees have never been represented
by a union. There was an organizational campaign, conducted
by the United Food & Commercial Workers Union, in 1999.
The Charging Party intervened in an election that was con-
ducted by the Board at the end of that campaign, in September
1999. An overwhelming majority of employees voted against
representation by either union at that time. About 2 years later,
the Charging Party Union commenced another organizational
drive when Tawana Williams, a certified nursing assistant
(CNA) at the Respondent’s facility, contacted the Union. Wil-
liams began holding informal meetings at her home in Septem-
ber 2001. The first union authorization cards were signed on
September 27, 2001. By October, the Union was regularly
handing out flyers at the bottom of the driveway leading into
the Respondent’s facility. Employee organizers, including
Williams, Gauthier, Stewart, and Artarene Thompson, began
soliciting employees to sign authorization cards in late Septem-
ber early October 2001. Some of these solicitations occurred
on the Respondent’s premises, particularly in the cafeteria and
other locations where employees took their breaks. By the time
the Union filed its petition, on March 1, it had collected 237
signed authorization cards.
The record reveals that the Union not only campaigned
among the Respondent’s employees but also enlisted the aid of
religious and community leaders in an effort to convince the
Respondent to recognize the Union without going through the
Board’s election processes. On February 27, the Union held a
“community election,” supervised by some of these individuals,
at a commuter parking lot near the Respondent’s facility. The
results of that election were 196 in favor of representation by
the Union and 6 opposed. On March 1, union organizers and
employees marched on the Respondent’s administration de-
manding recognition based on the results of the community
election. The Respondent declined and the Union filed the
Petition that became the subject of this proceeding.
It is undisputed that the Respondent learned of the Union’s
organizing campaign soon after it started and reacted quickly.
By early October 2001, the Respondent had hired attorneys to
represent the Respondent in the campaign and had begun train-
ing its supervisors how to respond to employees’ inquiries re-
garding the Union. There is no dispute that the supervisors
were also trained to be vigilant regarding employee organizing
efforts and to report what they observed to management. In
October 2001, the Respondent also began handing out literature
and holding meetings with the employees to communicate the
Respondent’s position.7 There is no dispute that Magid, the
Respondent’s president, conducted several of these meetings
within the first month of the campaign. There is also no dispute
that some of the literature distributed to employees early in the
campaign provided them with information regarding revocation
of union authorization cards. The Respondent’s communica-
tions with employees, through literature, meetings, and one-to-
one contacts between supervisors and employees, intensified
after the petition was filed, leading up to the date of the elec-
tion. The Respondent enlisted the chairman of its board of
directors, Glickman, to speak to the employees shortly before
the election, urging them to vote against union representation.
One of the significant events preceding the election was a
“Vote No” rally conducted by a number of the Respondent’s
employees at the bottom of the hill on the day before and the
day of the election.
It is clear from the record that both the Union and the Re-
spondent campaigned vigorously to win the hearts and minds of
the employees from October 2001 until the election on April
11. As noted above, the Board conducted an election on April
11 at which only 146 employees voted for the Union and 213
employees voted against representation, a significant reversal
from the 237 cards obtained before the petition was filed. The
long campaign generated a multitude of unfair labor practice
charges and a request for a remedial bargaining order, which
have been consolidated into this proceeding. The General
Counsel and the Charging Party contend that these unfair labor
practices caused the turnaround in employee support for the
Union. They seek a remedial bargaining order to cure the ef-
fects of the unfair labor practices and to restore the Union’s
status as the designated representative of an uncoerced majority
of the Respondent’s employees. The Respondent counters that,
regardless of any unfair labor practices found, the Union never
represented an uncoerced majority of employees and that the
results of the election reflect the true sentiments of the employ-
ees.
The alleged unfair labor practices can be grouped into major
categories, such as surveillance, rules, threats, promises, and
the like. Most turn on resolutions of credibility. As to be ex-
pected with the passage of time and the different perspectives
of the witnesses, there are many variations among the witnesses
on both sides in the testimony regarding common events. In
evaluating these allegations, I have considered the demeanor of
the witnesses, the consistency of each witness’ testimony, in-
ternally and with other evidence in the record, and the reason-
able probabilities that events occurred as described. The reso-
lution of these credibility issues is not an exact science, but I

7 Magid succinctly summarized the Respondent’s message in his tes-
timony: “that we were fully capable of resolving employees’ problems
and moving forward to higher levels of care, that a union was not nec-
essary in this process and could impair our ability to provide that.”
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1075
have tried in each instance to determine what is most likely to
have occurred in the circumstances. It also bears repeating the
well-recognized maxim that it is possible to believe a witness
as to part of his or her testimony even while discrediting the
witness on other aspects of the testimony. See Farmer Bros.
Co., 303 NLRB 638, 649 (1991). With respect to those allega-
tions involving undisputed facts, the parties disagree as to the
legal consequences. In these situations, I have applied what-
ever current test the Board has applied to such allegations to
reach my conclusion.
B. The 8(a)(1) Allegations
1. Rules and their application
a. The rules
Paragraph 20 of the consolidated complaint, as amended at
the hearing on December 13, alleges that the Respondent vio-
lated Section 8(a)(1) of the Act by maintaining the following
rules since on or about October 1, 2001:
a. Employees may not solicit or distribute literature in
resident, client or childcare areas of the home at any time.
b. Employees shall leave the Home promptly after
their scheduled work period ends. With the exception of
visiting residents, clients, or official facility business, off-
duty employees are not allowed access to the facility. Off-
duty employees who visit residents are subject to the rules
and regulations applicable to non-employee visitors.
c. The Home recognizes and respects the privacy and
confidentiality of employee records. The Home expects
that each employee will not disclose or share pertinent
private information. This applies to wages, merit in-
creases, paychecks, performance evaluations, health or
medical conditions, insurance or pension information or
any other benefit. At your request and with our written
approval, the Human Resources Department will release
certain confidential information needed to assist you in a
financial matter. [Emphasis in original.]
The first two rules are set forth at pages 19 and 20 of the Re-
spondent’s employee handbook, under the heading “Solicitation
and Distribution of Literature.” They are two of five rules pre-
ceded by an introductory paragraph noting the Respondent’s
primary concern is resident care and justifying the rules as nec-
essary to “prevent disruption or interference with the Home’s
operations.” The other three solicitation/distribution rules in
the handbook are not challenged by the General Counsel and
appear lawful on their face. The third rule alleged as unlawful,
regarding confidentiality of employee records, is contained in
the Respondent’s personnel policies. In addition, all new em-
ployees are required to sign a confidentiality agreement that
incorporates this rule. The Respondent did not dispute that it
maintained these rules during the organizational campaign,
averring only that the rules predated October 1. The Respon-
dent denied that the mere maintenance of these rules violated
the Act.
Complaint paragraph 21 alleges that the Respondent violated
Section 8(a)(1), on or about November 27, 2001, by issuing a
corporate compliance program handbook that contained the
following rule:
Employees or agents shall not use or reveal any confidential
information concerning JHE [the Respondent], or use for per-
sonal gain, any confidential information obtained as an em-
ployee or agent of JHE.
The Respondent admitted issuing the corporate compliance
program handbook containing the cited rule on November 27,
2001. The cited rule was only one of a number of policies
promulgated at that time to ensure that the Respondent and its
employees complied with the many laws affecting the operation
of its nursing home and establishing a mechanism to address
instances of noncompliance. The Respondent also denied that
the promulgation of this rule violated the Act.
(i) The solicitation/distribution rule
The General Counsel concedes that the Respondent, as a
healthcare facility, has the right to restrict employee solicitation
and distribution in immediate patient care areas even during
nonworking time. See Beth Israel Hospital, 437 U.S. 483
(1978). The General Counsel contends that the first rule cited
above is unlawful because it extends to areas of the facility that
are not “immediate patient care areas,” and that this factor and
the use of the phrase “at any time” make the rule overly broad.
The Respondent argues that the same logic that permits prohibi-
tion of protected employee activity in immediate patient care
areas should apply to the Respondent’s restriction of such activ-
ity in “resident, client and child care areas” of its facility. Nei-
ther in its brief, nor at the hearing, did the Respondent indicate
which areas outside of resident floors, other than the adult day-
care and childcare centers, would be covered by the prohibition.
The Respondent also offered no evidence as to the likelihood
that employee solicitation and distribution in these nondescript
“resident, client or child-care areas of the home” would disrupt
patient care.
In Our Way, Inc., 268 NLRB 394 (1983), the Board held that
rules prohibiting employee solicitation and distribution of lit-
erature during “working time” are presumptively lawful even
without further definition. Conversely, rules prohibiting solici-
tation at “any time” and distribution in nonwork areas at “any
time” are presumptively unlawful. Such rules will be found to
violate the Act in the absence of evidence that the employer has
clarified or defined the restriction to limit its application to
times when employees are scheduled to be working at their
assigned duties. Ichikoh Mfg., 312 NLRB 1022 (1993). Ac-
cord: Cardinal Home Products, 338 NLRB 1004 (2003). In a
healthcare facility like the Respondent, the Board recognizes
the importance of insulating patients from the potentially dis-
ruptive impact of employee solicitation and distribution by
permitting a ban on such activity in “immediate patient care
areas” at any time. Brockton Hospital, 333 NLRB 1367 (2001),
enfd. in relevant part 294 F.3d 100 (D.C. Cir. 2002), cert. de-
nied 537 U.S. 1105 (2003). See also Beth Israel Hospital, su-
pra; Baptist Hospital, 442 U.S. 773, 786–787 (1979).
I am unaware of a case, and the Respondent has not cited
one, in which a childcare center like the one operated by the
Respondent in a house separate from its primary pa-
tient/resident care buildings has been found to be an “immedi-
ate patient care area.” The children who attend the Respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1076
dent’s childcare center are neither patients nor residents. The
care they receive there is not healthcare. Although unit em-
ployees and employees in classifications whose status is dis-
puted work in the center, there is little contact with the resi-
dents who are the focus of the Respondent’s healthcare ser-
vices. To the extent the Respondent’s rule applies to employee
solicitation during nonworking time in the childcare center, it is
overly broad on its face.
The Respondent’s rule does not define “resident care” or
“client care” area. Because there is some evidence, to be dis-
cussed infra, that the Respondent has sought to restrict em-
ployee solicitation during breaks in areas such as employee
lounges and the nurses’ station on resident floors, it appears
that the rule goes beyond what the Board and the courts have
recognized as “immediate patient care” areas. Having chosen
to use ambiguous terms rather than the phrase “immediate pa-
tient care area,” it was incumbent on the Respondent to provide
some guidance to its employees as to the extent of the restric-
tion. See Norris/O’Bannon, 307 NLRB 1236 (1992). Accord-
ingly, to the extent this rule would prohibit employee solicita-
tion “at any time” in parts of the Respondent’s facility that are
not involved in immediate patient care, it is overly broad.
Similarly, to the extent the rule prohibits the distribution of
literature in nonwork areas within “resident and client care
areas” of the Home, it is overly broad. Cf. Hale Nani Rehabili-
tation & Nursing, 326 NLRB 335 (1998). Accordingly, I find
that the Respondent has violated the Act, as alleged, by main-
taining this rule during the period covered by the complaint.
Brockton Hospital, supra; Eastern Maine Medical Center, 253
NLRB 224, 225 (1980). Accord: Cooper Health System, 327
NLRB 1159 (1999).
(ii) The access rule
There is no dispute that the Respondent has maintained a
rule denying its off-duty employees access to “the facility”
unless they are visiting a resident, client, or conducting official
facility business. The Board held, in Tri-County Medical Cen-
ter, that such a “no-access” rule is valid
only if it (1) limits access solely with respect to the interior of
the plant [or] other working areas; (2) is clearly disseminated
to all employees; and (3) applies to off-duty employees seek-
ing access to the plant for any purpose and not just to those
employees engaging in union activity. Finally, except where
justified by business reasons, a rule which denies off-duty
employees entry to parking lots, gates, and other outside
nonworking areas will be found invalid.
222 NLRB 1089 (1976). Accord: Mediaone of Greater Flor-
ida, Inc., 340 NLRB 277 (2003). The General Counsel con-
tends that the Respondent’s no-access rule is unlawful on its
face because it does not define the term “facility” as being lim-
ited to the interior of the plant or other working areas. Accord-
ing to the General Counsel, employees could reasonably inter-
pret this rule as prohibiting them from solicitation and distribu-
tion in the parking lot and other nonworking areas outside the
building. The Respondent contends that the rule is clear on its
face and when read in the context of another rule that prohibits
nonemployees from “trespassing, solicitation, or distribution of
materials on the Home’s premises at any time.” According to
the Respondent, employees would clearly understand the dif-
ference between “facility” and “premises,” with the first word
being limited to the buildings and the latter including the park-
ing lot and other external areas.
In Lafayette Park Hotel, 326 NLRB 824 (1998), enfd. 203
F.3d 52 (D.C. Cir. 1999), the Board found unlawful a no-access
rule that required employees to leave the “premises” immedi-
ately after completion of their shift and not return until their
next scheduled shift. The Board rejected the Respondent’s
argument there that the rule was not intended to cover the park-
ing lot and other areas outside the hotel. As the Board stated:
The rule contains no explicit exclusion of such areas, and
therefore employees would reasonably read the rule as cover-
ing those areas. Thus, even if the Respondent did not intend
the rule to reach those areas, the intent was not clearly com-
municated to the employees. Further, even if the rule could
be considered ambiguous, any ambiguity in the rule must be
construed against the Respondent as the promulgator of the
rule.
326 NLRB supra, at 828. In Baptist Medical Center Health
Midwest, 338 NLRB 346 (2002), the Board adopted the admin-
istrative law judge’s finding that a rule prohibiting employees
from returning to the “facility” after their shift was unlawful
because it was unclear whether that term applied strictly to the
interior portion of the hospital or included outside areas. For a
no-access rule to be valid, it must be clear on its face that it is
limited to the “interior of the plant or other working areas.” Id.
In that case the Board also adopted the judge’s finding that
discipline issued to two off-duty employees under this rule for
soliciting at a nurses’ station was unlawful. Id. 352. The Board
has also recently reaffirmed the principal that off-duty employ-
ees have the right, under Section 7 of the Act, to engage in
union solicitation and distribution in nonwork areas of their
employer’s property. See Postal Service, 339 NLRB 1175
(2003); Golub Corp., 338 NLRB 515 (2002).
Applying the above precedent to the facts here, I find that the
Respondent’s rule is unlawful under the Tri-County standard.
The term “facility” is not so clear on its face that employees
would understand that they were permitted to engage in pro-
tected activity in the parking lot or in other nonworking areas
outside the building. Evidence in the record, to be discussed
infra, shows that the Respondent did not clarify the rule when
given a chance to do so on February 15, when it evicted from
the cafeteria three off-duty employees who were engaged in
union solicitation and distribution. According to the General
Counsel’s witnesses, they were told by the Respondent’s vice
president, Silverman, that they could not engage in such activ-
ity on the Respondent’s “premises” if they were off-duty. I do
not agree with the Respondent’s contention that the terms “fa-
cility” and “premises” are so distinct that the ordinary em-
ployee would understand the true extent of the Respondent’s
prohibition. Accordingly, I find, as alleged in the complaint,
that the no-access rule appearing in the Respondent’s employee
handbook was overly broad in violation of Section 8(a)(1) of
the Act.
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1077
(iii) Confidentiality rules
It is well settled that rules prohibiting employees’ discussion
of their wages, hours, or other terms and conditions of em-
ployment violate Section 8(a)(1) of the Act. Flamingo Hilton
Laughlin, 330 NLRB 287, 292 (1999); Koronis Parts, 324
NLRB 675, 686, 694 (1997); Vanguard Tours, 300 NLRB 250,
264 (1990), enfd. in relevant part 981 F.2d 62 (2d Cir. 1992);
Kinder-Care Learning Centers, 299 NLRB 1171 (1990). The
Respondent’s confidentiality rule contained in its personnel
policies and incorporated in the confidentiality agreement
signed by new employees, on its face, includes wages, merit
increases, evaluations, paychecks, and other information that
employees have a right under the Act to discuss with their co-
workers, union organizers, or government officials. The rule is
thus unlawful on its face.
The Respondent does not seriously challenge this finding.
The Respondent argues instead that no violation should be
found because the rule predates the union organizing drive and
there is no evidence it has ever been enforced. The fact that the
rule predated the campaign is immaterial because there is no
dispute that it was maintained during the campaign. The Board
has held that the mere maintenance of such rules is unlawful
because they tend to inhibit employees from engaging in oth-
erwise protected activity. IRIS U.S.A., 336 NLRB 1013 (2001).
See also Lafayette Park Hotel, 336 NLRB at 825. Recognizing
this precedent, the Respondent argues that the Board should
overrule it, essentially requiring that a rule prohibiting pro-
tected activity be enforced before a violation can be found. I
will leave that determination to the Board. Following prece-
dent, I find that this confidentiality rule violates Section 8(a)(1)
of the Act, as alleged.
The confidentiality rule contained in the corporate compli-
ance program handbook promulgated on November 27, 2001, is
a different story. That rule does not expressly mention wages,
benefits, or other employee terms and conditions as being in-
cluded in the realm of “confidential information concerning
JHE” that employees are prohibited from divulging or using for
personal gain. When faced with a similar rule in Lafayette
Park Hotel, supra, the Board found that employees would not
reasonably read such a rule as prohibiting discussion of wages
and working conditions with other employees. See also Me-
diaone of Greater Florida, Inc., supra; Super K-Mart, 330
NLRB 263 (1999). The General Counsel contends that the
Respondent’s employees would interpret this rule to prohibit
protected discussion because of the existence of the older rule
explicitly prohibiting such discussions. I do not agree. The
rule contained in the corporate compliance handbook was
adopted for a different purpose, which is explained in the intro-
ductory portions of the handbook. Reading this rule in the
context of the rest of that handbook would clarify any ambigu-
ity that existed because of the prior rule. I find that this rule is
not unlawful and shall recommend dismissal of paragraph 21 of
the complaint.
b. Application of the rules
Several complaint allegations involve claims that the Re-
spondent, through several admitted supervisors and agents,
unlawfully attempted to enforce these rules against employees
who were engaged in protected union activities. In most in-
stances, the complaint alleges that the Respondent’s agents
went beyond any permissible restriction on solicitation and
distribution by banning employees from even talking about the
Union at work. Most of these allegations turn on credibility
resolutions, with the Respondent calling the alleged supervisors
to contradict the testimony of the General Counsel’s witnesses.
One of the last incidents alleged as unlawful in this category of
offenses was the February 15 eviction of three of the leading
employee advocates for the Union from the cafeteria under the
Respondent’s no-access rule, found unlawful above. Because I
have already found that rule unlawful, the Respondent’s en-
forcement of it on February 15 would violate the Act even un-
der the version of events offered by the Respondent’s wit-
nesses. See Baptist Medical Center, supra, 352. I will discuss
each of these allegations, starting with those allegedly commit-
ted by the highest management officials and proceeding down
the chain of command.
Paragraph 12(b) of the complaint alleges that the Respon-
dent’s president, Magid, on an unspecified date in October
2001, prohibited employees from discussing the union at any
time at the Respondent’s facility. From the testimony at the
hearing, it appears this prohibition is alleged to have occurred
at one of the group meetings Magid admittedly conducted in
October to inform the employees of the Respondent’s position
on the Union. Of all the witnesses called by the General Coun-
sel and the Charging Party, only one, Williams, testified to such
a statement by Magid.8 Williams testified that this statement
was made at the annual budget meeting, in the first week of
October, after Magid had finished talking about the budget.
She recalled that Magid brought up the subject of the Union,
telling the employees that the Union was trying to get into the
facility again and that the Respondent was going to do every-
thing to keep the Union out. She testified that Magid told the
employees that the Respondent knew about the union activities
going on around the house. She recalled that he told employees
at this meeting that they “cannot discuss Union while on duty to
other employees or hand out leaflets or anything while on
duty.” According to Williams, Rotella-Soderberg, the Respon-
dent’s administrator was also at this meeting along with an
undisclosed number of employees from nursing, housekeeping,
and dietary.
Magid admitted holding two series of meetings with em-
ployees regarding the union campaign in October, one during
the first week of the month and the second on or about October
29. He also acknowledged annually meeting with the employ-
ees in October, after the budget is typically approved, to inform
the employees about the Respondent’s financial condition.
Magid could not recall if the budget meeting in 2001 was a

8 Only three other witnesses testified regarding the meetings at
which Magid spoke, Marciana Lozada, Harmenta Needham, and
Melissa Quarles. None of them mentioned Magid making any state-
ments at the meetings they attended regarding employees’ rights to talk
about or solicit for the Union. However, because Magid held a number
of meetings, both at the beginning of the campaign and closer to the
election, it is not clear whether the meetings described by Lozada,
Needham, and Quarles were the same meeting at which Williams heard
this statement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1078
separate meeting or combined with one of his talks about the
Union. According to Magid, he utilized a script for both meet-
ings about the Union to avoid saying anything that was illegal.
While claiming to have read the scripts verbatim, Magid ac-
knowledged that he was required to speak off the top of his
head during question and answer sessions at these meetings.
There is no mention of when and where employees may engage
in union activity in the script for the meetings Magid gave at
the beginning of October. There is a section in the script for
the October 29 meeting which is entitled “Workplace Activity.”
If Magid read this portion of the script, he would have told the
employees the following:
Employees are allowed to communicate with other
employees about anything they choose when both employ-
ees are on their own time and are not in a patient care area.
This means non-working time—your breaktime or lunch
time.
Employees also have the right to distribute literature to
other employees when both employees are on their own
time, but only if they are not in a patient care area or any
other working area.
Magid did not specifically deny making the statement attributed
to him by Williams.
Based on the above evidence, I find that the Respondent,
through Magid, did not violate Section 8(a)(1) of the Act in
October 2001 as alleged in paragraph 12(b) of the complaint.
Even crediting Williams’ uncorroborated testimony, at most
Magid advised the employees that they should limit their solici-
tation and distribution activities to times when they were not on
duty. This is consistent with the text of the October 29 speech
and consistent with Board law on the subject, as discussed
above. In particular, there is no evidence that Magid told em-
ployees, at this meeting or at any other time, that they could not
discuss the Union “at any time at the Respondent’s facility.”
Accordingly, I shall recommend that paragraph 12(b) of the
complaint be dismissed.
Williams also testified about another incident that occurred
in late October involving Linda DiGangi, the Respondent’s
assistant director of patient care services and an admitted su-
pervisor. The complaint alleges at paragraph 13 that the Re-
spondent violated Section 8(a)(1) during this encounter by
“prohibiting employees from engaging in union activities while
at work.” According to Williams, she was summoned to Di-
Gangi’s office at about 10 a.m. Nursing Supervisor Jeannette
Laidlaw was also present in the office. This meeting occurred
the same morning that Williams had handed out union leaflets
to employees on Tandet East, which was not her unit. Williams
did this before the start of her shift. She acknowledged that the
employees to whom she gave the leaflets were on duty, even
though she herself was not. Tandet East is clearly a work area.
Williams testified that DiGangi told her, during the meeting,
that Williams had been seen handing out leaflets and talking to
other workers on east wing. DiGangi told Williams that she
“cannot be soliciting on the job, while on duty.” When Wil-
liams replied that she was not on duty, DiGangi said, “I don’t
care how you feel about the Union, you cannot do union activi-
ties while on duty.” On cross-examination, Williams conceded
that she understood DiGangi’s instruction to be that she could
not solicit if either she or the person she was soliciting was on
duty.
DiGangi testified that she called Williams into her office af-
ter receiving reports that she was handing out leaflets on work
time. According to DiGangi, Williams denied that she was on
work time. When DiGangi asked if the other employees were
on duty, Williams said some were, some weren’t. DiGangi
testified that she then reminded Williams that she can only
hand out literature if both she and the other employee are on
break. When she finished her remarks, Williams asked, “[I]s
that it?” When DiGangi said, “[Y]es,” Williams said, “[O]kay”
and left the office. It is undisputed that no disciplinary action
was taken against Williams as a result of this incident. Both
witnesses agree that the meeting was very brief.
I find nothing improper in this event. Williams essentially
admitted that she had engaged in unprotected activity by hand-
ing out union literature in a patient care area to employees, at
least some of whom were on duty. There is no credibility issue
here because Williams and DiGangi essentially agree as to what
was said in DiGangi’s office. DiGangi’s statement of the rule
regarding distribution is consistent with the Act, as interpreted
by the Board. See Hale Nani Rehabilitation Center, 326 NLRB
335 (1998). Accordingly, I shall recommend dismissal of this
allegation of the complaint as well.
Paragraphs 8(b), (c), and (d) allege that the Respondent vio-
lated Section 8(a)(1) through admitted Supervisor Laidlaw, on
two occasions, in November and December 2001, when she
prohibited employees from talking about the Union while at
work. Laidlaw is also alleged, in the latter incident, to have
unlawfully limited employees regarding the location of their
breaks. Harmenta Needham testified regarding the November
allegation and Williams is the witness to the December allega-
tion. Laidlaw testified for the Respondent as to both these alle-
gations.
Needham, who was still employed by the Respondent when
she testified at the hearing, testified that Laidlaw told employ-
ees in meetings, sometime in the fall 2001, that they “cannot
discuss the Union on the job. You have to do it on your own
time.” Laidlaw acknowledged that Needham was an employee
under her supervision but testified that she could not recall
having any conversation with Needham about the Union. Laid-
law also testified that she could not recall having a discussion
with Needham or any other employee about when they could or
could not talk about the Union. I credit Needham’s testimony.
As a current employee, testifying against the interests of her
employer, Needham is inherently credible. Flexsteel Indus-
tries, 316 NLRB 745 (1995); Georgia Rug Mill, 131 NLRB
1304, 1305 fn. 2 (1961), enfd. as modified 308 F.2d 89 (5th
Cir. 1962). Laidlaw’s admonition amounted to an overly broad
“no-talking rule.” In the absence of evidence that the Respon-
dent banned all nonwork related topics from employees’ on-
the-job conversations, I must find that Laidlaw violated the Act
in her statement to Needham and other employees who were at
the meeting. See PCC Structurals, Inc., 330 NLRB 868, 869
(2000); Frazier Industrial Co., 328 NLRB 717 (1999), enfd.
213 F.3d 750 (D.C. Cir. 2000); Emergency One, 306 NLRB
800 (1992).
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1079
Williams testified that, on or about December 6, 2001, after
learning that employees were getting a raise, she left her unit
and went to Tandet West, another nursing unit, to talk to Ar-
tarene Thompson about it. Thompson was another leading
union supporter. Williams admitted speaking to Thompson
about the raise in the hallway on Tandet West. Williams testi-
fied that she was on her lunchbreak at the time. She testified
further that, although Thompson was not on a break, she did not
appear to be working. Williams then went to Tandet East unit
to talk to another employee, Joyce Williams. When she did not
find Joyce Williams on her unit, Tawana Williams went to the
staff cafeteria to eat her lunch. She found Joyce Williams in
the cafeteria, also on her lunch break. According to Tawana
Williams, while she was in the cafeteria, she was called to the
phone. Angela Bentley, the assistant nurse in charge of her
unit, was on the other end of the line. Bentley asked Tawana
Williams what she was doing, telling Williams that she had
received three phone calls about her, from Magid, Silverman
and Laidlaw. Williams told Bentley that she was “visiting” and
was now on break in the cafeteria. After this conversation,
Tawana Williams finished her break and returned to work.
Shortly after returning to her unit, she was called to the nursing
office by Laidlaw. The infection control nurse, who has since
passed away, was also present when Williams got to Laidlaw’s
office. Williams testified that Laidlaw told her that she could
not go to the west wing on her break, that she had to go to des-
ignated areas, such as the coffee shop, the staff cafeteria or the
women’s auxiliary cafeteria. Williams asked if this applied to
everybody. According to Williams, Laidlaw replied that is not
what she was saying. When Williams asked what was she say-
ing, Laidlaw replied, “[T]he girls on west wing were not on
their break.” Williams responded that she did not know that
they were not on their break because they were sitting in the
hallway. Williams recalled further that Laidlaw told her that
the nurse manager on Tandet West, John Stusalitis, is the one
who informed Laidlaw that Williams was on the unit talking to
the employees.
Laidlaw testified that, on a date she could not recall, some-
one called her and said that Tawana Williams was on Tandet
West, in a patient care area, talking with staff on the unit. Laid-
law admitted calling Williams’ unit and being told that Wil-
liams was on her lunchbreak. Laidlaw then called the Tandet
West unit and asked if the employees with whom Williams
spoke were on break. According to Laidlaw, she was told that
the employees had already had their break and were covering
for other employees who were at lunch. Laidlaw then called
Tawana Williams to the office and asked her what she was
doing on Tandet West. Laidlaw admitted telling Williams that
she was in an area where she was not supposed to be, talking to
employees who were working. Laidlaw also admitted telling
Williams that she should take her breaks in the cafeteria, the
lounge on the unit, or outside. Laidlaw testified that she could
not recall if this was in the same conversation or not. Accord-
ing to Laidlaw, she told Williams this in order to “re-clarify”
policy regarding where employees can take breaks after receiv-
ing reports that Williams was being seen throughout the build-
ing. Laidlaw conceded that Williams was a good CNA, that
she had not had any problems with Williams “wandering” be-
fore the union campaign and that there had been other employ-
ees who did have a tendency to wander off during the workday.
Laidlaw testified that she has spoken to other employees about
“wandering” around the facility. Laidlaw also acknowledged
that employees were permitted to talk to one another while at
work. There is no dispute that no discipline resulted from this
incident.
As noted above, a healthcare institution, like the Respondent,
is entitled to impose greater restrictions on employee solicita-
tions than would be permitted in other settings. For example, a
prohibition on solicitation in immediate patient care areas “at
any time” is presumptively lawful, even though the same re-
striction in another setting would be considered overly broad.
See Brockton Hospital, 333 NLRB 1367 (2001). The Supreme
Court has included corridors outside patients’ rooms within the
definition of “immediate patient care area.” NLRB v. Baptist
Hospital, 442 U.S. 773, 784–786 (1979). Here, although Ta-
wana Williams was on her break when she “visited” Thompson
on Tandet West and spoke to her in the hallway, there is no
dispute that Thompson was not on break. If Williams’ activity
can be characterized as “solicitation,” her visit was not pro-
tected and Laidlaw’s statement to her would not be unlawful.
As also noted above, an employer, including one in the health-
care business, cannot ban its employees from “talking” about
the union if it permits conversation on other topics. I find that
Williams’ activity went beyond mere routine work time con-
versation that is acceptable in a healthcare institution. Williams
sought out Thompson, while she was working, to discuss with
her the recent announcement regarding the wage increase and
its relation to the union campaign.9 Although Williams techni-
cally did not “solicit” Thompson to do anything, her “cam-
paigning” is the type of activity that should take place when
both employees are not supposed to be working and should not
take place in an immediate patient care area under the rationale
of Board and Court decisions. To the extent that Laidlaw pro-
hibited Williams from campaigning with employees who were
working in an immediate patient care are, her statement was
lawful. Accordingly, I shall recommend dismissal of paragraph
8(c).
The complaint alleges separately that Laidlaw’s conversation
with Williams unlawfully restricted the location where she
could take breaks. While it may be true that employees gener-
ally had not previously been restricted during their breaks to the
cafeterias, lounges, and other locations cited by Laidlaw, her
statement must be considered in the context of the incident that
led Laidlaw to call Williams into the office. As I have found
above, Williams’ meeting with Thompson to discuss the recent
wage increase went beyond what is permissible activity in an
immediate patient care area. I also note that after first telling
Williams she could only take her break in the areas designated,
she essentially retracted that prohibition when confronted by

9 Williams’ conduct is thus qualitatively different from two employ-
ees talking about or “discussing” the Union while they go about per-
forming their duties in their work area. A ban on such conversations
would be unlawful because they are no different than workplace con-
versations among employees about sports, politics, local events of
interest, etc., which the Respondent has permitted. See Wal-Mart
Stores, 340 NLRB 637 (2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1080
Williams. Laidlaw then explained “what she was saying” by
reference to the activity at issue, i.e., Williams having gone to
another patient unit to talk to employees who were supposed to
be working. There is no evidence that Williams or any other
employee was restrained with respect to where they took their
breaks after this conversation. Accordingly, considering the
evidence regarding this meeting in its context, I cannot find that
the Respondent, through Laidlaw, unlawfully restricted the
location of employee breaks as alleged at paragraph 8(d) of the
complaint. I shall recommend dismissal of this allegation as
well.
Paragraph 16 of the complaint alleges that the Respondent’s
admitted supervisors, Julie Wargo and Stusalitis, on separate
occasions involving different employees, unlawfully prohibited
employees from talking about the Union. Juan Ayala testified
regarding the Wargo allegation and Thompson testified regard-
ing the Stusalitis allegation. The Respondent called both su-
pervisors to contradict the testimony of the General Counsel’s
witnesses. Resolution of this allegation turns on whether the
supervisors in fact prohibitted employees from merely talking
about the Union, which as found above would be unlawful, or
from soliciting other employees during worktime.
Thompson testified that, sometime during the union cam-
paign, most likely after Christmas and during the wintertime,
she was sitting in the nurses’ station on her unit, talking with
her coworkers about the Union when her supervisor, Stusalitis,
told her and her coworkers that they couldn’t talk about the
Union unless they were on break. Thompson described the
conversation as employees sharing information about their
experiences with the Union. She denied that anyone was solic-
iting people to sign cards during this conversation. According
to Thompson, the conversation took place after she and her
coworkers had finished their patient care duties and were wait-
ing to transport the residents to lunch. Although Thompson and
the others complied with Stusalitis instructions at that time, she
acknowledged that she continued to talk about the Union with
other employees at work after this incident. It is undisputed
that no discipline resulted from this incident. Although
Thompson identified by name the other employees with whom
she was talking, none were called as witnesses.
Stusalitis admitted talking to Thompson and other CNAs
sometime in the winter 2002, before the election. He recalled
the conversation taking place in the unit kitchen located behind
the nurses’ station. According to Stusalitis, he spoke to the
employees because they were speaking loudly, within earshot
of the residents, and he observed that there were breakfast trays
out that had to be collected. Stusalitis testified he told the em-
ployees to “tone it down. You have work to do. If you want to
talk about this, take it into the break room.” Stusalitis ac-
knowledged that he was aware that the employees were talking
about the Union. Although he recalled other employees being
present, he testified that Thompson is the only one he remem-
bered by name because she stood out in his recollection of the
event. Stusalitis acknowledged that he and Thompson would
often “butt heads” and that he was aware that she was an active
union supporter. Stusalitis denied telling Thompson or the
other employees that they could only talk about the Union on
break. According to Stusalitis, he spoke to them because they
were loud and residents were close by. He described this inci-
dent as consistent with his practice of asking employees to take
their conversations into the breakroom when they become loud
enough for residents to hear. During her cross-examination by
counsel for the Respondent, Thompson had denied Stusalitis’
characterization of the event.
Thompson was still employed by the Respondent at the time
of the hearing. Because she was testifying against the interest
of her current employer, her testimony is inherently credible. I
note also that Stusalitis recalled this conversation with a great
deal of detail even though he took no notes or otherwise memo-
rialized the event that took place about a year before his testi-
mony. Stusalitis’ attentiveness to the fact that the employees
were talking about the Union is also consistent with the training
the Respondent’s supervisors had received to be vigilant for
employees’ engaging in union activities at the Home.
Stusalaitis went beyond merely telling the employees that they
could not solicit for the Union. He prohibited them from even
talking about the Union. I thus find that the Respondent vio-
lated the Act, as alleged in paragraph 16(b) of the complaint.
Juan Ayala testified that, early in March, while wrapping sil-
verware in the kitchen, a coworker asked him a question about
the upcoming union election. According to Ayala, the em-
ployee wanted to know if she had to vote in the election. Ayala
told her that it was just like the presidential election, it was her
choice whether to vote or not. Soon thereafter, Julie Wargo,
one of the Respondent’s food service supervisors, called Ayala
into the office and told him he had to stop talking about the
Union. According to Ayala, Wargo told him if he wanted to
talk about the Union, he had to do it on break. Ayala denied
that he was talking about the Union, telling Wargo that he was
merely answering a question. Wargo did not respond to this
and the conversation ended. No discipline resulted from this
event.
Wargo recalled having a conversation with Ayala about “un-
ion conversations” sometime between January and the April
election. According to Wargo, she spoke to Ayala because
another employee, Linda Disabella, complained to her that
Ayala was talking about the Union while she was trying to get
her work done. Wargo testified that she told Ayala, “[Y]ou
need to talk about the Union on your own time, you’re interfer-
ing with other people who are trying to do their work.” Ac-
cording to Wargo, Ayala said nothing and turned and left the
office. Wargo conceded that Ayala has worked for the Re-
spondent a number of years, that he is a good employee, quiet,
who has never caused any problems. Nevertheless, she called
him in based on one employee’s complaint that he was “inter-
rupting her work.” Wargo also acknowledged that employees
are permitted to talk about nonwork subjects while they are
working as long as they don’t interfere with the work of others.
I credit Ayala’s version of this incident, i.e., that Wargo told
him he had to stop talking about the Union, that he could only
talk about the Union on break. This is consistent with what
Wargo testified was her understanding of the rules. Her testi-
mony about another employee complaining that Ayala was
interfering with her work appeared to be nothing more than a
posthoc rationalization for her conversation with Ayala. From
her own description of him, it would be out of character for
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1081
Ayala to have interfered with another employee’s work. In any
event, Ayala’s conduct did not amount to “solicitation” as the
Board has defined it. See Wal-Mart Stores, supra. As with the
above-described statements by Laidlaw and Stusalitis, Wargo’s
statement to Ayala in early March amounted to an overly broad
prohibition of union talk in violation of Section 8(a)(1) of the
Act. Accordingly, I find that the Respondent violated Section
8(a)(1) as alleged in paragraph 16(a) of the complaint.
Paragraph 15 of the complaint alleges that the Respondent,
through Magid, Silverman, and Kevin Pryor, its director of
facility services, violated Section 8(a)(1) of the Act by denying
access to its off-duty employees and threatening them with
arrest on February 15. As previously noted, there is no dispute
that the Respondent evicted Stewart, Gauthier, and Tawana
Williams from the cafeteria on that date under the no-access
rule that was previously found unlawful. Even assuming the
rule was a valid access rule under Tri-County Medical, 222
NLRB 1089 (1976), I find that the Respondent’s actions that
day were unlawful because the evidence clearly establishes that
this was a discriminatory application of that rule. The Respon-
dent, in its brief, makes much of apparent discrepancies in the
description of this event among the General Counsel’s wit-
nesses. Suffice it to say that the Respondent’s three witnesses,
Magid, Silverman, and Pryor, were also not entirely consistent
in their description. It is not necessary for me to determine
which is the more credible version because, even as described
by the Respondent’s witnesses, the Respondent violated the
Act.
There is no dispute that Gauthier, Stewart, and Williams
came to the Respondent’s facility on their day off for the ex-
press purpose of handing out union leaflets in the cafeteria.
There is no evidence that in doing so they interfered with the
Respondent’s operations or disturbed any residents or employ-
ees. On the contrary, the three off-duty employees took up a
position at a table at the back of the cafeteria with their leaflets
and essentially waited for employees to come to them to pick
up literature. They may have approached a few employees and
offered them literature, but there is no contention that their
activity was disruptive or confrontational. Within a short time
after they arrived, Donna Erickson, a food service supervisor,
picked up the phone and called Silverman, the Respondent’s
vice president. Silverman testified that Erickson told him that
there were off-duty employees in the cafeteria handing out
literature. Although Silverman did not testify that Erickson
told him it was union literature, Magid and Pryor admitted that
they knew it was prounion literature being disseminated in the
cafeteria. In fact, Magid explained that is why he, the Respon-
dent’s president, decided to go to the cafeteria with Silverman
to see what was happening. Pryor testified that he was sitting
in Silverman’s office when the call from Erickson came in and
that Silverman was concerned that it was union flyers that were
being distributed.10 On receiving this report, these three high-

10 As one example of the inconsistency in the testimony of the Re-
spondent’s witnesses, I note that Silverman contradicted Pryor’s testi-
mony that Pryor was in his office when he received Erickson’s call.
According to Silverman, he and Magid picked up Pryor on their way to
the cafeteria.
level managers sprung into action and headed straight for the
cafeteria where, on confirming with the employees that they
were in fact off-duty, Silverman told them they had to leave.
Gauthier, Stewart, and Williams quickly complied, gathered up
their papers and left the building. Although all three managers
testified that they cited the access rules in telling the employees
that they had to leave, at least two of them, Pryor and
Silverman admitted that they themselves had seen off-duty
employees in the cafeteria on other occasions and never even
questioned what they were doing there. Silverman testified that
he just “assumed” that if an off-duty employee was in the cafe-
teria they were there for one of the permissible reasons under
the rule. Yet he admitted that no issue had ever been made of
off-duty employees being in the cafeteria until these three union
activists decided to leaflet there on their own time. Thus, a rule
that had largely been ignored before February 15 was revived
solely in response to the report of off-duty employees engaging
in prounion distribution in the cafeteria.11 The discriminatory
application of this rule clearly violated Section 8(a)(1) and I so
find.12
2. Surveillance and related allegations
Several of the complaint allegations allege that the Respon-
dent engaged in actual surveillance of its employees’ union
activities, or created that impression among its employees
through statements and conduct. To determine whether an
employer’s statements or actions unlawfully create the impres-
sion of surveillance, the Board asks whether the statements or
actions at issue would reasonably lead employees to assume
that their protected concerted activities had been placed under
surveillance. Ichikoh Mfg., 312 NLRB 1022, 1023 (1993);
United Charter Service, 306 NLRB 150 (1992). Among the
factors considered by the Board in performing this analysis is
the extent to which the employees have been open about their
union activities, whether the activities have been conducted on
or off the employer’s premises, and the extent of knowledge
conveyed by the employer regarding the details of the employ-
ees’ activities.
Paragraph 7 of the complaint alleges that the Respondent
created the impression of surveillance by installing new surveil-
lance cameras at its facility in October 2001. The only evi-
dence offered by the General Counsel in support of this allega-
tion was the testimony of Tawana Williams. Williams testified
that, about the second week of October, after Magid had held
his first series of meetings with the employees, she noticed
surveillance cameras had been installed at all entrances to the
building, by the smoking area, which is near the time clocks,
and in the Kuriansky elevators. There is no evidence that these

11 I note that, had the three employees distributed union literature in
the cafeteria during a lunchbreak on a scheduled workday, they would
clearly have been protected by Sec. 7 of the Act under long-settled law
and the Respondent could not have evicted them.
12 Par. 15 of the complaint also alleges that the employees were
threatened with arrest. Only one of the General Counsel’s witnesses,
Williams, testified to such a threat. In the absence of some corrobora-
tion from one of the other witnesses who were with her when Pryor
allegedly said this, I shall recommend dismissal of this portion of the
allegation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1082
surveillance cameras were being used to record any employees
engaged in protected activity. Silverman, the Respondent’s
vice president of operations, testified that the cameras were
installed in response to increased security concerns following
the terrorist attacks on the World Trade Center on September
11, 2001. While acknowledging that the new cameras were
installed after the union organizing drive began, Silverman
testified that the plan to do so had been in the works for some
time, following a security audit performed for the Respondent
by an outside security company. According to Silverman, the
audit was conducted in response to incidents of car thefts in the
parking lot, burglaries, and vandalism, particularly the appear-
ance of anti-Semitic graffiti in the Kuriansky elevators. In
2000, the Respondent had budgeted for enhanced security and
solicited bids from several companies but had postponed action
because the cost was too high. The September 11 attacks
prompted the Respondent to go forward with these plans, de-
spite the costs, because of concerns raised by residents and staff
that the Respondent’s facility, as a Jewish organization, could
be a target for terrorists opposed to Israel. Silverman testified
further that the Respondent already had security cameras at
some entrances and in the residents’ smoking area and that the
new cameras were part of an enhanced system. Williams cor-
roborated Silverman’s testimony to the extent that she ac-
knowledged that, after September 11, the Respondent con-
ducted lock-down practices and modified procedures for re-
sponding to bomb threats as part of an increased security
awareness. She also conceded that the Respondent advised its
employees that the reason for the new surveillance cameras was
September 11 and incidents of thefts and vandalism. Finally,
Williams testified that she was also aware of the antisemitic
graffiti in the Kuriansky elevators, the only ones in which cam-
eras were installed.
Considering the above evidence, I find that the General
Counsel has not established that the installation of the cameras
in October 2001 would reasonably lead employees to believe
that their union activities were being kept under surveillance.
In the circumstances here, where the Respondent’s concerns
were not trivial and were acknowledged by General Counsel’s
witness, and where the Respondent’s communication to em-
ployees of its reasons for the new cameras would allay any
concerns that they were being directed at protected activity, the
mere existence of new cameras does not amount to a violation.
The situation here is, thus, distinguishable from those cases
where an employer has been found to violate the Act by install-
ing cameras directed at employee picketing or other protected
activity. See Mercy General Hospital, 334 NLRB 100 (2001),
vacated on other grounds 336 NLRB 1047 (2001); National
Steel & Shipbuilding Co., 324 NLRB 499 (1997), enfd. 156
F.3d 1268 (D.C. Cir. 1998). Accordingly, I shall recommend
dismissal of this allegation of the complaint.
Paragraph 14 of the complaint alleges that the Respondent
created the impression of surveillance, in or about November
2001, through statements made by Nursing Supervisor Debra
Straubel to employee Lozada. Lozada, a CNA who had been
employed by the Respondent for 10 years at the time of the
hearing, testified that Straubel’s attitude toward her changed
after she started openly discussing the Union with her cowork-
ers. According to Lozada, Straubel began to “nitpick” and
question her whereabouts. She recalled one occasion in the fall
2001 when Straubel told her that other nurses had complained
that Lozada had overstayed her smoke break. Lozada testified
that she had not overstayed her break, instead having stopped in
a patient’s room to answer a resident’s call light on her way
back to work. Lozada could not recall ever being questioned
about overstaying a break before the union campaign. Lozada
testified that she told Straubel that she felt as though the nurses
were picking on her because of her union activity and that, if it
continued, she would file unfair labor practice charges.
Straubel was not called to testify by the Respondent. Lozada’s
testimony regarding this incident is thus uncontradicted.
Accepting Lozada’s testimony as credible, I do not find that
this interaction with her supervisor would reasonably lead any
employee to believe that their union activities were being moni-
tored. I note that Straubel made no reference to the Union or
any protected activity during her questioning of Lozada. She
merely reported what she had heard from a nurse to determine
whether the report was true. When Lozada explained what had
happened, Straubel apparently accepted this explanation and no
further action was taken. This hardly amounts to the kind of
increased monitoring of employees’ activities that the Board
has found unlawful in other cases. See New Process Co., 290
NLRB 704, 708 (1988). Accordingly, I shall recommend dis-
missal of this allegation of the complaint. St. Luke’s Episcopal-
Presbyterian Hospitals, 331 NLRB 761 (2000), enf. denied on
other grounds 268 F.3d 575 (8th Cir. 2001).
The complaint, at paragraph 11(b), alleges that the Respon-
dent, on or about December 6 created the impression of surveil-
lance by statements or conduct of its vice president, Silverman.
It is not clear what evidence the General Counsel is relying on
to establish this allegation. The only evidence regarding
Silverman that relates to the date alleged in the complaint is
Williams’ testimony, described above, regarding her visit to
Thompson on Tandet West during her break that day and the
call she received while eating lunch a short time later from her
assistant head nurse, Bentley, that Silverman and others had
called Bentley to inquire as to Williams’ whereabouts. Shortly
after returning to her unit, Williams was summoned to the nurs-
ing office by Laidlaw and told, inter alia, that she should not
have been on Tandet West talking to other employees who
were not on break.13 Williams testified further that soon after
she returned to her unit from this meeting with Laidlaw
Silverman came to the floor and held a meeting with the em-
ployees about the wage increase. Because Williams had gone
to see Thompson to discuss the timing of this wage increase, in
the midst of the campaign, the inference sought to be drawn is
that Silverman met with the employees to counteract any cam-
paigning that Williams had done to suggest to the employees
that they only got a raise because of the Union.
There is no evidence in the record that Silverman made any
statements directly to Williams or any other employee that

13 Although the General Counsel argues that Laidlaw’s questioning
of Williams on December 6 created the impression of surveillance, the
complaint does not allege this conversation as unlawful under that
theory.
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1083
would convey the impression of surveillance. Even if Bentley
told Williams that Silverman had called Bentley about her,
Silverman’s statements to Bentley are hearsay. Although the
complaint alleges that Bentley was an agent of the Respondent
within the meaning of Section 2(13), the complaint does not
allege that the Respondent violated the Act through Bentley’s
statement. The fact that Silverman met with employees on
Williams’ floor after she had been questioned about her union
activities would not reasonably lead employees in general to
believe that their activities were under surveillance. Although
Williams may have suspected the two events were linked, this
subjective impression on her part does not meet the objective
test for analyzing 8(a)(1) allegations. Because the General
Counsel has not proved that Silverman created the impression
of surveillance on December 6, 2001, I shall recommend dis-
missal of paragraph 11 of the complaint.
The General Counsel argues in his brief that the events of
December 6, 2001, are an example of the Respondent’s close
monitoring of Williams after it became aware of her union
activities. The General Counsel also cites the earlier incident,
described above, when DiGangi called Williams into her office
in late October and, with Laidlaw present, questioned Williams
about reports that she had been seen handing out leaflets and
talking to employees who were working on Tandet East.14 The
General Counsel also cites another incident, to be discussed
shortly, that occurred on March 8 after Williams had been ob-
served by Laidlaw getting into a car in the Respondent’s park-
ing lot.15 While I found Williams a generally credible witness
and much of her testimony regarding these incidents believable,
the complaint does not clearly allege the violation the General
Counsel seeks to prove through this testimony. Nowhere in the
complaint is there a specific allegation that the Respondent
violated the Act by more closely monitoring employees who
were engaged in protected union activity. Even assuming the
evidence factually established that the Respondent was more
vigilant toward Williams’ union activities,16 this would not
necessarily establish a violation of the Act. I note that Wil-
liams was a very open advocate for the Union and never sought
to conceal her activity. Moreover, as noted above, Williams
admittedly engaged in union activity in resident units by talking
to employees who were not on break. She also brought union
leaflets into these work areas to distribute to employees. The
record reveals that, despite this extensive union activity on her
part, and the Respondent’s knowledge of it, no disciplinary
action was ever taken against her. Under these circumstances, I
find that the “close monitoring” of Williams was a legitimate
attempt on the part of the Respondent to ensure that employees
did not engage in union solicitation and distribution in “patient
care areas.” The Act permits a healthcare institution to limit

14 Although the General Counsel argued that DiGangi’s questioning
of Williams also created the impression of surveillance, there is no such
allegation in the complaint.
15 Par. 8(f) alleges this incident as creating the impression of surveil-
lance.
16 Several of the Respondent’s witnesses conceded that, as part of the
training provided to supervisors in response to the campaign, they were
instructed to be vigilant of employees engaging in union activity in the
home.
solicitation and distribution in these areas even in the absence
of a valid rule. Accordingly, I shall recommend dismissal of
the complaint to the extent it alleges that the Respondent’s
monitoring of Williams was unlawful. See St. Luke’s Episco-
pal-Presbyterian Hospitals, supra.
As noted above, paragraph 8(f) of the complaint alleges that
the Respondent, through Laidlaw, created the impression of
surveillance on March 5 and April 10. The first incident relates
to Williams’ testimony that, on March 8, as she was leaving the
Respondent’s facility on an approved early dismissal to take
care of a personal matter, she observed Laidlaw at the window
of the conference room in Bennett, watching as she got into her
ride’s car. Williams testified further that she called her unit
later that day about some union leaflets she had left behind.
Her head nurse, Celeste Turner, told her that Laidlaw had
called the unit after Williams left for the day, asking who were
the men in the car that Williams got into. Laidlaw admitted
calling Williams’ unit sometime in March after seeing her get
into a car around noontime. Laidlaw testified that she called
the unit and asked Turner if she knew that Williams had left the
unit and was out of the building. Turner told Laidlaw she was
already aware of this. I find that, unlike the earlier incidents,
Laidlaw’s conduct here would lead an employee to reasonably
believe that their protected concerted activities were under
surveillance. Laidlaw’s observation of Williams when she was
in the parking lot and her inquiry regarding the identity of her
traveling companions went beyond any legitimate interest the
Respondent had in enforcing a legitimate solicitation or distri-
bution rule. Because Laidlaw admitted being aware that Wil-
liams was on her own time, her concern about how she was
spending that time impinged upon Williams protected activity.
It is immaterial that Williams was not engaged in any union
activity at the time. It is clear that Laidlaw suspected she was.
Based on the undisputed evidence, I find that the Respondent
violated Section 8(a)(1) of the Act as alleged in paragraph
8(f).17
Paragraph 8(g) of the complaint alleges that the Respondent,
through Laidlaw, engaged in actual surveillance of employees’
union activities on April 5. The only evidence in the record I
could find that would be relevant to this allegation is the testi-
mony of Artarene Thompson regarding what happened to her
during the April 5 meeting at which Glickman, the chairman of
the Respondent’s board of directors, spoke to the employees.
According to Thompson, Laidlaw called her out of the meeting
while Glickman was speaking. When she and Laidlaw got out
in the hallway, Thompson saw James Dimery, a security guard
standing there. Shortly thereafter, Silverman and Pryor came
down the hallway. Thompson testified that Silverman asked
Laidlaw, “[D]id you ask her?” Laidlaw said, “[N]o, I was wait-
ing for you.” Silverman then told Thompson that they believed
that Thompson had been tape recording the meeting. Thomp-
son responded, “[D]o I look like I’m taping the meeting?”

17 I have been unable to determine, and the General Counsel’s brief
has failed to enlighten me, regarding what statement or conduct attrib-
utable to Laidlaw on April 10 would create the impression of surveil-
lance. Accordingly, I shall recommend dismissal of this aspect of the
allegation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1084
Silverman then asked her directly if she was taping the meeting
and if she had a tape recorder. Thompson replied, “[D]o I look
like I have a tape recorder?” At that point, she pulled her cell
phone out of the breast pocket of her uniform and showed it to
Laidlaw, asking, “[D]oes this look like a tape recorder?” No
one answered her. Thompson then asked if they were through.
When Silverman said yes, she returned to the meeting. Al-
though Laidlaw, Pryor, and Silverman all testified as witnesses
for the Respondent, none was asked about this incident.
Thompson’s testimony stands unrebutted and is credited here.
It is apparent from the testimony that Laidlaw was closely
observing Thompson during this meeting in the belief that she
was tape recording Glickman’s speech. Her conduct in calling
Thompson out of the meeting, without explanation, would rea-
sonably lead an employee like Thompson to believe that the
Respondent was keeping an eye on her. This belief would have
been confirmed with the arrival of the Respondent’s vice presi-
dent and his questioning of her activities at the meeting. The
Respondent has not demonstrated any legitimate basis for Laid-
law’s actions. Accordingly, I find as alleged in the complaint
that the Respondent violated Section 8(a)(1) in its treatment of
Thompson on April 5.18
Paragraph 17(a) of the complaint alleges that the Respon-
dent, through Pryor, violated Section 8(a)(1) of the Act on
March 27 by creating the impression of surveillance. This alle-
gation will be discussed in connection with the 8(a)(3) allega-
tions involving the Respondent’s treatment of Gauthier.
Paragraph 19 of the complaint alleges that the Respondent
engaged in unlawful surveillance, on April 10, when its admit-
ted supervisor, Art Caplan, videotaped employees engaged in
protected concerted activities. April 10 was the day before the
Board-conducted election. There is no dispute that a number of
union supporters, including employees of the Respondent, en-
gaged in hand billing at the entrance to the Respondent’s facil-
ity, at the bottom of the hill. The handbilling occurred around
the time of the afternoon shift change. It is also undisputed
that, at the same time, a contingent of antiunion employees,
most still in uniform, came down the hill carrying large “Vote
No” signs and took up position on the other side of the drive-
way.19 Artarene Thompson testified that she saw Caplan, the
Respondent’s assistant director of food services, standing on
the grass up the hill from the employees, holding a video cam-
era, recording the activity. Although a number of witnesses
testified for the Union and the General Counsel regarding this
incident, Thompson is the only one to testify to observing this.
Melissa Quarles, who was called as a witness by the Charging
Party, testified that she was standing next to Caplan at the top
of the hill, with a large group of employees and managers, ob-
serving the activity of the union supporters and the “Vote No”
group. Significantly, Quarles did not testify that Caplan, or any
other manager, was holding or using a video camera. Wit-
nesses did identify one of the employees participating in the
“Vote No” demonstration, Nelson Rosa, as using a video cam-
era to record the events. The camera apparently belonged to his

18 Although Silverman and Pryor were participants in this incident,
the complaint cites only Laidlaw’s conduct as unlawful.
19 This incident is the subject of the Union’s Objection 9.
girlfriend, who was also an employee of the Respondent and a
participant in the “Vote No” rally. No one else was identified
as using a video camera. Caplan denied this allegation.
Although Thompson was generally a credible witness, I do
not believe her testimony about Caplan videotaping the em-
ployees’ activities on April 10. The absence of any corrobora-
tion from any of the other witnesses who were there, and espe-
cially from Quarles who was closest to Caplan and would have
been in the best position to corroborate this testimony, con-
vinces me that Thompson was confused about who had a video
camera that day. It appears from the weight of the testimony
that the only one using a camera was employee Rosa. There is
no allegation, nor any evidence in the record, that Rosa was
acting as an agent of the Respondent that day.
The Board, in F. W. Woolworth Co., 310 NLRB 1197
(1993), set forth the fundamental principals governing em-
ployer surveillance of protected concerted activities. Where
employees are conducting their activities openly on or near the
employer’s premises, open observation of such activities is not
unlawful. Roadway Package System, 302 NLRB 961 (1991),
and cases cited therein. Where an employer’s surveillance
activities go beyond “mere observation,” the Board will find a
violation. In F. W. Woolworth, supra, the Board found that
photographing or videotaping employees engaged in such activ-
ity goes beyond “mere observation” and is unlawful because
such pictorial record keeping tends to create fear among em-
ployees of further reprisals. Accord: National Steel & Ship-
building Co., supra. In this case, I find that the evidence does
not support the General Counsel’s allegations that the Respon-
dent in fact videotaped or otherwise recorded the activity at the
bottom of the hill on April 10. I find further that the open ob-
servation of this activity by Caplan and other supervisors was
not unlawful. The employees had been engaging in similar
activity at the bottom of the hill for a number of months before
April 10, the activity occurred just off the Respondent’s prop-
erty, Caplan and the others were standing a good 100 feet away
from the employees and did not interfere with there activity.
Under the circumstances, employees would not be chilled in the
exercise of their Section 7 rights by such conduct. Roadway
Package System, supra. Accordingly, I shall recommend dis-
missal of paragraph 19 of the complaint.
3. Alleged solicitation of employees to revoke
union authorization cards
Paragraph 9(a) of the complaint alleges that the Respondent,
during the period from October to December 2001, unlawfully
solicited employees to repudiate the Union and to revoke their
union membership by stapling instructions for doing so to pay-
checks and by posting such instructions on bulletin boards and
timeclocks. Paragraph 8(a) alleges that Nursing Supervisor
Laidlaw solicited employees to repudiate the Union and to re-
voke their union membership sometime in November 2001.
The Board has held that “an employer may lawfully inform
employees of their right to revoke their authorization cards,
even where employees have not solicited such information, as
long as the employer makes no attempt to ascertain whether
employees will avail themselves of this right nor offers any
assistance, or otherwise creates a situation where employees
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1085
would tend to feel peril in refraining from such revocation.”
Mariposa Press, 273 NLRB 528, 529–530 (1984); R. L. White
Co., 262 NLRB 575, 576 (1982). It is undisputed that the Re-
spondent disseminated such information to employees, in
Magid’s speeches to the employees in October 2001 and
through flyers and postings. Laidlaw admitted speaking to
employees, including the General Counsel’s witness Lozada, in
the fall 2001. The issue is whether, through these communica-
tions, the Respondent crossed the line between provision of
information and active solicitation and assistance.
As noted above, Magid held two series of meetings with em-
ployees after learning that the Union was trying to organize the
Respondent’s employees. At the first meeting, early in Octo-
ber, Magid admittedly spoke about union authorization cards,
emphasizing the point that the Union could get in without an
election if enough people signed cards and urging the employ-
ees not to sign a union card. At the second series of meetings,
on or about October 29, Magid addressed the issue of revoking
a card once signed. If Magid read the prepared text for this
speech verbatim, as he claims to have done, he told the em-
ployees the following:
Employees have been coming forward and volunteer-
ing that they signed a card but changed their mind. They
have asked if there is any way to get their card back.
The answer is yes. [At this point, according to the
text, Magid held up the “card revocation posting”].
These notices were posted on the units after a number
of employees first asked this question.
As these notices indicate, if you signed a card and
changed your mind, you have the right to cancel your card
by writing the Union and telling them you are canceling
your card.
There are extra copies of this notice in the back of the
room if anyone needs them.
In evidence is a flyer with the heading, “SINCE YOU ASKED . . .
QUESTIONS & ANSWERS ABOUT THE UNION,” which is most likely
the posting Magid held up and made available at the meeting.
While advising employees of their right to get their card back,
the flyer states: “We do not encourage or discourage employees
to revoke union cards, but some of you have asked about how
to do this. Below is a sample revocation letter.” The Respon-
dent, in this flyer, also suggested employees keep a copy of
their revocation letter “for your records.” The sample reads:
I, ______, no longer wish to be represented by District 1199.
Please rip up my card and send it back to me.
The record reveals that several employees in fact utilized this
form in an attempt to revoke cards they had signed.
On November 20, 2001, the Respondent distributed another
notice to the employees from Magid on the same subject. In
this notice, Magid tells the employees that the earlier postings,
described above, had been removed but that employees were
still asking how to cancel their union authorization cards.
Magid then provided the following information:
You have the right to revoke a union card by following these
simple steps:
1. Write a letter to the union saying you are a JHE
employee and you want to cancel your signed card.
2. Sign and date the letter.
3. Mail (or deliver) your letter to:
New England Health Care Employees Union, District 1199
77 Huyshope Avenue, First Floor
Hartford, CT 06106
You may want to keep a copy of your letter for proof.
Canceling a union card is a personal decision. We are not
attempting to require or persuade anyone to cancel a union
card. However, we are again providing information to
those who are interested. If you have any questions about
this matter, please speak to me or your immediate supervi-
sor. [Emphasis in original.]
In order to assist supervisors in answering questions that this
notice might elicit, the Respondent admittedly provided its
supervisors, around the same time, with “talking points” on the
subject of union cards. These points emphasized the binding
legal nature of the cards, the disadvantages of membership,
such as union dues and adherence to union rules, the right of
employees to refrain from talking to union representatives and
signing a card, and ends with an invitation to ask questions of
the supervisor if an employee needs more information.
The text of Magid’s speech and the documents distributed to
the employees in October and November, on their face, do not
violate the Act under the principals of R. L. White Co., supra.
See also Mid-Mountain Foods, 332 NLRB 229 (2000); Perkins
Machine Co., 141 NLRB 697 (1963). The General Counsel
offered testimony that Magid went beyond the text of his
speech and that at least one supervisor, in answering employee
questions, exceeded the bounds of permissible speech.20 For
example, Lozada testified that at one of his meetings in the fall
2001, Magid held up the form described above, told the em-
ployees they could use it to retract their authorization cards and
said, if the employees filled out the forms, the Respondent
would “put it in an envelope, stamp it, and mail it to the Un-
ion.” On cross-examination, Lozada acknowledged that the
latter statement, regarding stamping and mailing the revoca-
tions, does not appear in the affidavit she provided to the Gen-
eral Counsel in March, about 5 months after Magid’s meeting.
When confronted with this omission, Lozada testified that she
believed Magid made this statement at a meeting after she gave
the affidavit and that Magid always talked about employees’
revoking their cards. While it is true that Magid held additional
meetings with the employees in March and April, before the
election, there is no other evidence in the record that he dis-
cussed this subject in those meetings.
Magid denied making any such statement to the Respon-
dent’s employees, sticking to his story that, if it wasn’t in the
text of a speech, he didn’t say it. Of course, Magid was forced
to concede on cross-examination that there were things he told
employees that were not in the text, particularly when answer-

20 The complaint does not specifically allege that Magid engaged in
such an unfair labor practice. I find, however, that the evidence offered
regarding Magid’s statements at the meeting in October falls within the
scope of par. 9(a) of the complaint and was fully and fairly litigated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1086
ing questions from employees that were not anticipated. More-
over, in response to questions from counsel at the hearing,
Magid often testified to statements he claimed to have made
that were favorable to the Respondent’s position but do not
appear in any of the text. Finally, Magid contended that he
would never have said such a thing because, after all, the Re-
spondent had received training from counsel regarding what to
say and what not to say during a union campaign.
As noted above, Lozada also testified that Laidlaw addressed
this topic in a meeting she held with employees on Lozada’s
unit. Her best recollection was that this meeting occurred in
late October, in the chartroom behind the nurses’ station. Pre-
sent were four CNAs, including Lozada, and the nurses on
duty. According to Lozada, Laidlaw said that she heard the
Union was trying to organize and that an employee was going
around trying to get people to sign cards. Laidlaw went on to
say that anyone who had signed a card could get it back by
writing a letter to the Union. In this same meeting, according
to Lozada, Laidlaw also asked the CNAs how long each had
been working at the JHE. Two of the employees had been em-
ployed a relatively short time, under a year. Lozada recalled
that Laidlaw told them that, if the Union got in, they would be
the first to go because the Respondent would have to cut staff
to meet the Union’s demands. When Lozada told Laidlaw that
she had worked there almost 10 years, Laidlaw said that Lozada
could lose all her sick time and vacation time she had accumu-
lated because “all that would go on the bargaining table.” In
reference to revocation of cards, Lozada testified that Laidlaw
invited any employees who wanted to know how to get their
cards back to stay after the meeting and she would show them
what to write. Lozada testified that one of the new CNAs, an
employee named Josephine whose last name Lozada did not
know, did remain behind to meet with Laidlaw alone. Finally,
Lozada testified that, after this meeting, the posting containing
the “sample” revocation letter was posted in the same room and
distributed to the employees. Lozada testified further that, at
another meeting with Laidlaw that occurred later at a date
Lozada could not recall, Laidlaw made the same statement she
attributed to Magid, that if employees wrote a letter retracting
their cards, the Respondent would put a stamp on it and mail it
to the Union. Lozada was the only employee at the meetings
with Laidlaw to testify in this proceeding.
Laidlaw admitted holding meetings with employees on
Lozada’s unit as part of the Respondent’s campaign to convince
employees that a union was not in their best interests. She con-
ceded that she believed it was important to get the Respon-
dent’s message out to the employees, a message to which she
wholeheartedly subscribed. She also admitted addressing this
particular subject at one of those meetings. According to Laid-
law, she simply handed out the Respondent’s literature about
revoking or canceling union cards, told the employees that she
had just heard it was possible to do that, and asked employees if
they had any questions. Laidlaw testified that she also told the
employees that, if they needed more information about it, she
would try to get it for them. Laidlaw claimed she had no recol-
lection about anything else she said in this meeting. Despite
this lack of recall, she affirmatively denied ever telling the em-
ployees that the Respondent would put a stamp on the letters
and mail them to the Union for the employees. According to
Laidlaw, she knows she did not say this because she attended
an educational session for supervisors the same day, at which
they were first told about the procedure for revoking union
cards, where she had been told that supervisors could not say
something like that.
Laidlaw did corroborate Lozada’s testimony that one new
employee, Josephine Thelours, sought Laidlaw out after the
meeting asking for information about how to get her card back.
According to Laidlaw, she told Thelours she would get the
information for her. Laidlaw admittedly met with Thelours
again and gave her the sample language that appears in the
Respondent’s literature and told Thelours this is what she
needed to write if she wanted her card back. Although the evi-
dence described above clearly establishes, and it is essentially
undisputed, that the Respondent distributed the flyer described
above containing the sample language, Laidlaw denied seeing it
before the hearing and denied that it was posted on the unit or
distributed to employees. Laidlaw testified that she never saw
any revocation letters signed by employees and did not know if
any of the employees followed through with the instructions
she provided.21 Laidlaw denied making the additional state-
ments attributed to her by Lozada regarding seniority and loss
of benefits but she admitted talking about these subjects during
her many meetings with employees. According to Laidlaw, she
always discussed these things in the context of talking about the
collective-bargaining process, following the instructions given
to her regarding what she could and could not say on that sub-
ject.
Although I found Lozada to be a generally credible witness, I
do not credit her testimony that Magid told the employees that
the Respondent would put a stamp on and mail employees’
revocation letters to the Union. The omission of such a critical
statement from the affidavit she gave about this same meeting,
closer in time to the events, is glaring. Her explanation that
Magid said this after she gave her affidavit is implausible. By
the time she gave the affidavit, the Union had already filed the
petition and there would be less of a need for the Respondent to
solicit employees to revoke their cards because the secret ballot
election that the Respondent desired would soon take place. I
also note the absence of any corroboration that such a statement
was made, or that the subject of revocation of union cards was
even mentioned in meetings after Lozada gave her affidavit.
Because there is no evidence that the Respondent’s written
communications with employees regarding this subject went
beyond merely providing them with information regarding their
rights, and because I do not credit the testimony that Magid’s
oral communication on the subject exceeded permissible com-
munication of information, I shall recommend the dismissal of
paragraph 9(a) of the complaint.

21 The record contains a union card signed by “Marie Josephine Va-
lerius” dated September 29, 2001, and a handwritten revocation letter
with the same signature dated October 18, 2001. There is no dispute
that this is Josephine Thelors, her name having changed after these
events. Significantly, Thelors did not use the form provided by the
Respondent but appears to have composed her own letter conveying her
wish to revoke the card.
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1087
I did find Lozada’s testimony regarding Laidlaw’s meetings
with employees more credible than the denials elicited by the
Respondent from Laidlaw. Lozada, as a current employee of
the Respondent, was taking a risk in testifying adversely to the
Respondent’s interest and, other than the fact she is a union
supporter, there is no reason for her to have fabricated this tes-
timony. I note that, although the Respondent’s counsel showed
that Lozada’s testimony regarding Magid was inconsistent with
her prior affidavit, no similar inconsistency was shown between
her testimony and the affidavit with respect to Laidlaw’s ac-
tions. I infer that had such a conflict existed between the affi-
davit and the testimony, the Respondent’s counsel would have
brought that to my attention. In contrast, Laidlaw’s denial that
she told employees that the Respondent would put a stamp on
and mail employees’ revocation letters to the Union is hollow
considering her avowed difficulty in recalling any other details
about the meetings she held with the employees. Moreover,
Laidlaw admitted that she told employees to see her after the
meeting if they wanted information on how to get their cards
back. The Board has held that such an invitation converts an
otherwise lawful communication of information to a solicitation
of employees to reveal their degree of support for the Union.
Arkansas Lighthouse for the Blind, 284 NLRB 1214, 1220–
1221 (1987), enf. denied on other grounds 851 F.2d 180 (8th
Cir. 1988); Hatteras Yachts, AMF, Inc., 207 NLRB 1043
(1973) (making employees come to the personnel office to get
information to revoke their union cards). I also credit Lozada’s
testimony that Laidlaw advised employees of their right to re-
voke their cards, invited them to see her to find out how to do
so and offered to stamp and mail revocation letters for the em-
ployees in the context of threatening statements regarding em-
ployees jobs and benefits.22 Accordingly, I find that the Re-
spondent has violated Section 8(a)(1) of the Act through the
statements of Laidlaw, as alleged in paragraph 8(a) of the com-
plaint.
4. The December wage increase and alleged
promise of more
a. The wage increase
The complaint alleges, at paragraph 10, that the Respondent
violated Section 8(a)(1) of the Act by granting its employees a
wage increase on or about December 6, 2001. It is undisputed
that a wage increase was announced and implemented in De-
cember 2001 at a time when the Respondent was aware the
Union was attempting to organize its employees. The Respon-
dent contends that the decision to grant a wage increase at the
time had been in the works since April 2001, long before the
start of the Union’s organizational campaign, and that the Re-
spondent’s reasons for increasing its employees’ wages were
unrelated to the campaign. The Respondent also argues that the
fact the Respondent granted wage increases to employees
whom the Union was not seeking to represent militates against
a finding that the increase was intended to interfere with em-
ployees’ choice of representative.

22 These alleged threats will be discussed in more detail, infra. At
this point, suffice it to say, I credit Lozada over Laidlaw regarding
these statement.
Alyssa Rotella-Soderberg, the Respondent’s vice president
of health services and administrator, testified as the Respon-
dent’s primary witness with respect to this allegation and de-
scribed the process that led to the December 2001 wage in-
crease. According to Rotella-Soderberg, the process began in
April 2001, soon after she was hired by the Respondent. She
testified that she began a review of the Respondent’s entire
wage structure as a result of problems she encountered in hiring
and retaining nurse managers.23 Rotella-Soderberg testified
that she quickly came to the conclusion that the Respondent’s
compensation program lacked any formal structure or consis-
tency in application, resulting in internal inequities. She also
noted that the Respondent hadn’t conducted a formal market
analysis to determine whether the wages it paid its employees
were competitive in at least 15 years. According to Rotella-
Soderberg, she reached the conclusion that an outside consult-
ant should be hired to review the entire compensation program
and she recommended this course of action to the executive
management committee in April. She also recommended a
particular consultant with whom she had worked at another
facility, Mary Novak-Jandrey. The committee agreed with her
recommendation and invited Novak-Jandrey to the facility to
discuss such a project. Novak-Jandrey had her first meeting
with the Respondent in May 2001.
Rotella-Soderberg testified further that Novak-Jandrey sub-
mitted a proposal to review and redesign the Respondent’s
compensation program on May 23, 2001. At that time, accord-
ing to Rotella-Soderberg, the Respondent’s management was
concerned with the cost of this project, as proposed by the con-
sultant. She recalled that Novak-Jandrey proposed receiving
about $30,000 for her work on this project. No further action
was taken on this proposal until the end of July 2001, after the
Respondent had started its annual budget process. In an effort
to have the work done more cheaply, the Respondent solicited
other bids in August. Rotella-Soderberg testified that, after
reviewing these bids, the management committee decided to
hire Novak-Jandrey as its consultant for this project. Although
Rotella-Soderberg testified that this decision was made in Au-
gust, the Respondent could not go forward with the project until
its board of directors approved the expenditure as part of the
Respondent’s annual budget. Rotella-Soderberg testified that
final approval of the budget for the fiscal year beginning Octo-
ber 1, 2001, did not come down until mid-October. By that
time, the Respondent was admittedly aware of the union activ-
ity at its facility. Rotella-Soderberg acknowledged that, at that
point, the only thing the directors had approved was the study.
The Respondent had not yet budgeted for any wage increases
that might result from such a review.
Rotella-Soderberg testified that Novak-Jandrey started her
work on this project when she visited the facility on Novem-
ber 9, 2001, by which point the union campaign was in full
swing. Under her initial proposal, submitted in May, Novak-
Jandrey anticipated that the first phase of the project, i.e., “a
market analysis and review and adjustment of salaries and

23 It appears from the evidence in the record that the Respondent’s
nurse managers occupy positions similar to a charge nurse in most
nursing homes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1088
grades and ranges,” would take her 6 to 8 weeks. On Novem-
ber 27, the Respondent’s president, Magid, issued a memo to
the employees announcing that the consultant who was hired to
review the Respondent’s wage and salary program had started
her on-site work on November 9 and had met with department
managers on November 20 to explain the work she was going
to be doing.24
Novak-Jandrey apparently finished her work significantly
ahead of schedule because the evidence indicates that she sub-
mitted a “Preliminary Compensation Market Review” contain-
ing a recommendation for a wage increase within 3 weeks of
her first visit on November 9. Rotella-Soderberg testified that
the Respondent implemented the December 2001 wage increase
based on Novak-Jandrey’s recommendation but acknowledged
that the Respondent did not follow the recommendation as to
the size of the increase. Novak-Jandrey recommended two
options for the Respondent: (1) a market adjustment for all
nonmanagement staff at an estimated cost of almost $850,000;
or (2) creation of an entirely new wage structure with wage
adjustments capped at 4 cents an hour, estimated to cost in
excess of $1.5 million. Rotella-Soderberg testified that the
Respondent chose to implement the first option, but with a
smaller increase to reduce the cost. She estimated that the cost
of the wage increase, as implemented by the Respondent, was
about $600,000 and that the board of directors had not included
this in the budget approved in mid-October.25 On December 6,
2001, the Respondent issued a memo to all employees an-
nouncing its decision to implement a “technical market adjust-
ment,” effective December 16, 2001. Under this adjustment,
registered nurses were to receive a $1.25 hourly increase, li-
censed practical nurses would receive an increase of 70 cents
an hour, service employees (essentially the unit that the Union
sought to represent) would receive a 60-cent-an-hour raise and
other employees would receive a 40- cent-an-hour raise.
Novak-Jandrey’s preliminary report suggests that the Re-
spondent and its consultant were aware of the impact of a wage
increase on the union organizing campaign. Novak-Jandrey
recommended, for example, that the Respondent “move the
ranges of selected positions closer to local union rates” and
“provide all non-management employees with a market raise to
support employee relations.” Rotella-Soderberg also acknowl-
edged, on cross-examination, that she was aware of employees’
concerns about the Respondent’s wage structure and that these
concerns were a factor in employee support for the Union.
In contrast to Rotella-Soderberg’s description of the process
preceding the wage increase, Silverman claimed in his testi-
mony that the Respondent had a regular practice of granting

24 In this memo, Magid refers to an earlier “announcement” he made,
in response to questions from employees in September, that the Re-
spondent had already decided to retain a compensation analyst. The
only evidence in the record of such an announcement is the text of the
speech Magid gave to the employees on October 29, 2001. There is no
evidence that the Respondent informed employees of this process be-
fore the advent of the Union.
25 This fact must be considered in the context of the Respondent’s
statements to employees, during meetings about the Union, that the
Respondent was already experiencing financial difficulties and union
wage demands could have an impact on employees’ job security.
wage increases at that time of the year. The evidence offered to
support this claim is not persuasive. Other than merit increases
granted to employees based on annual performance reviews and
increases resulting from promotions, the only other “regularly
recurring” wage increases Silverman could recall were: (1) a
June 1999 wage increase granted to all employees as a result of
legislation passed by the State of Connecticut that year, which
increased the reimbursement rate for nursing homes with the
understanding that the additional moneys would be used to
increase employees’ wages and benefits; and (2) an October
2000 “technical adjustment” of 40 cents an hour for service and
maintenance employees to remain competitive in the labor
market. The September 28, 2000 memo, announcing the latter
increase stated that the employees had been told in July 2000
that the Respondent was considering such an increase and that
the board of directors had approved the increase.26 Silverman
recalled a third instance of this “regular practice,” after his
memory had been refreshed by the Respondent’s counsel, i.e., a
December 1999 increase in the weekend and shift differential.
The Respondent offered no documentary evidence to support
the claim of a regular practice of granting general wage in-
creases or “technical market adjustments.” The lack of such
evidence is consistent with Rotella-Soderberg’s description of
the Respondent’s compensation program as it existed when she
arrived, i.e., no formal structure or consistency with regard to
wage increases.
The Supreme Court recognized, many years ago, that:
Section 8(a)(1) prohibits . . . conduct immediately favorable to
employees which is undertaken with the express purpose of
impinging on their freedom of choice . . . and is reasonably
calculated to have that effect. . . . The danger inherent in well-
timed increases in benefits is the suggestion of a fist inside the
velvet glove. Employees are not likely to miss the inference
that the source of [the] benefit now conferred is also the
source from which future benefits must flow and which . . .
may dry up if not obliged.
NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964). Over
the years, the Board has applied this rationale to find a violation
under circumstances similar to those found here. Although the
Board has held that the grant of benefits during an election
campaign is not per se unlawful, the Board will draw an infer-
ence of improper motivation and interference with employee
free choice where the evidence shows that employees would
reasonably view the grant of benefit as an attempt to interfere
with or coerce them in their choice of representative. An em-
ployer may rebut this evidence with proof of a legitimate busi-
ness reason for the timing and grant of the benefit. Southgate
Village, Inc., 319 NLRB 916 (1995); Holly Farms Corp., 311
NLRB 273, 274 (1993), enfd. 48 F.3d 1362 (4th Cir. 1995),
affd. 517 U.S. 392 (1996); American Sunroof Corp., 248 NLRB
748 (1980), modified on other grounds 667 F.2d 20 (6th Cir.
1981). More recently, the Board held that the timing of an

26 The same memo announced improvements in fringe benefits of-
fered to the employees, which Silverman claimed was part of the Re-
spondent’s “regular practice” of making adjustments to wages and
benefits.
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1089
employer’s announcement of wage increases during a union
campaign may be unlawful even if the wage increase itself does
not violate the Act. Mercy Hospital Mercy Southwest Hospital,
338 NLRB 545 (2002), and cases cited therein.
I find that the evidence in the record before me is sufficient
to support the inference that the Respondent timed its an-
nouncement and granted the December 2001 wage increase in
order to interfere with employees’ free choice. Contrary to
Silverman’s testimony, the Respondent had no regular practice
of granting general wage increases, or “technical market ad-
justments,” at any particular time of the year. Although em-
ployees may have heard something about the hiring of a con-
sultant to review the Respondent’s wage structure, no formal
announcement of this project was made until after the Respon-
dent became aware of the Union’s organizing activity and,
certainly, no timetable for implementation of the results of such
a study had been previously disclosed to the employees. Thus,
employees would reasonably view the December 2001 an-
nouncement of this previously unscheduled wage increase as
timed to affect their support for the Union.
The evidence offered by the Respondent to rebut this infer-
ence does not withstand scrutiny. Although I have no doubt
that Rotella-Soderberg was testifying truthfully regarding the
process of hiring the consultant, it is clear that the Respondent
was in no hurry to complete this process until it became aware
of the Union. Rotella-Soderberg’s recommendation that the
Respondent do a complete review of its wage structure to ad-
dress the inequities she observed languished from April until
mid-October. Only then, after the Respondent was well aware
of the organizing drive and had begun responding to it through
meetings and literature, did the board of directors approve the
expenditure of funds to hire the consultant. Then, with light-
ning quick speed, the consultant completed her work, made a
recommendation and the Respondent accepted that recommen-
dation, all within about 6 weeks. Moreover, the Respondent’s
executive committee apparently decided to grant approximately
$600,000 in wage increases without any prior budgetary provi-
sion for it. This stands in stark contrast to the reluctance to
spend $30,000 to hire the consultant until the directors finalized
the annual budget. In American Sunroof Corp., supra, the
Board, in dismissing a similar allegation, noted the significance
of the administrative law judge’s finding that the employer in
that case did not accelerate completion of its new pension plan
in response to an upcoming union election and that the employ-
ees would have been notified of this new benefit at the same
time even were no union around. There is no reliable evidence
in this case that the Respondent would have gone forward with
the recommendations of the consultant when it did had it not
been faced with a vigorous campaign from the Union to repre-
sent its employees, a campaign in which employees’ dissatis-
faction with their wages was a significant element. Finally, I
note that, while the Respondent may have been planning a
wage and salary review before the onset of the Union, the size,
timing and application of any wage increase to be granted were
still entirely within its discretion at the time the Union arrived
on the scene. See Holly Farms Corp., supra.27
Accordingly, based on the above, I find that the General
Counsel has proved that the December 2001 announcement and
grant of a wage increase violated Section 8(a)(1) of the Act, as
alleged in the complaint.
b. Alleged promise of additional increases
As previously noted, Tawana Williams testified that, on the
day the wage increase was announced, Silverman came to her
unit and held a meeting of the employees who were there. Ac-
cording to Williams, Silverman told the employees that “the
study has been done and the first allotment of the pay has ar-
rived. The study should be completed by the end of February,
sometime in February, and there is more to come with that.”
Silverman denied making such a statement although he admit-
ted meeting with the employees on Williams’ unit. He even
acknowledged that Magid sent him to meet with this particular
group of employees, even though the nursing department was
not within his chain of command, because Williams worked on
that unit. Silverman explained that he was sent because a nurs-
ing supervisor was not available to meet with the employees
and Magid was concerned that the Respondent’s message be
communicated correctly to this group of employees because
Williams worked there. Silverman testified that what he told
the employees was that the first phase of the consultant’s study
was completed, that the study would continue, and that addi-
tional adjustments could be made if found appropriate.
I find that Williams’ version of this meeting is more credible
than that of Silverman. This meeting clearly occurred in re-
sponse to the reports received by Silverman and others in man-
agement that Williams was “visiting” other units and talking to
employees about the wage increase that had just been an-
nounced. It is obvious that the Respondent wanted to counter-
act any propaganda that Williams was disseminating. In meet-
ing with the employees, Silverman would have been attempting
to dispel any notion that the employees were only getting this
raise because the Union was around. It is highly likely that he
would have done so by referring to the consultant’s study and
holding out the promise that additional improvements were
likely as the consultant continued to review the situation. His
statements, which implied that the employees would be receiv-
ing additional wage increases in the future, would have a rea-
sonable tendency to discourage employee support for the Union
out of fear that the Respondent would not grant such increases
if they chose union representation. See NLRB v. Exchange
Parts Co., supra; Garry Mfg. Co., 242 NLRB 539 (1979), enfd.
630 F.2d 934 (3d Cir. 1980). Accordingly, I find that the Re-
spondent violated Section 8(a)(1) of the Act, as alleged at para-
graph 11(a) of the complaint, through Silverman’s promise of
another wage increase if employees reject the union as their
bargaining representative.

27 In Holly Farms, supra, the Board also rejected a defense based on
the fact that the employees in the unit sought by the Union represented
only a small portion of the employees who received the wage increase
at issue.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1090
c. Alleged implied promise of benefit
Paragraph 12(c) of the complaint alleges that the Respon-
dent, on March 29 and April 2, through Magid, impliedly prom-
ised employees increased benefits and improved terms and
conditions of employment if they did not select the Union as
their bargaining representative. The General Counsel cites
three memos issued by Magid to the employees in late March
and early April as establishing this violation. All three memos
purport to update the employees on the work of the consultant,
Novak-Jandrey.
On March 29, the Respondent distributed a letter, addressed
to “11–7 shift” from Magid, advising the employees that No-
vak-Jandrey’s follow-up report, which Magid had hoped would
be ready that day, would be distributed to all employees on
Monday, April 1. He said, in this letter, that the report would
“highlight . . . issues that JHE needs to address including wage
and salary adjustments, compensation information, job descrip-
tions and restructuring.” On or about April 1 Magid distributed
a summary of Novak’s report, which is dated March 31, con-
taining the following recommendations: “restructure current
program to ensure fairness”; “maintain competitive pay”; and
“change merit pay program.” Magid advised the employees
that the changes recommended by the consultant would have a
major impact on the Respondent’s budget and that the Respon-
dent “would have to evaluate its ability to bear these costs.” He
asked for the employees’ “help to find ways to meet the new
wage goals, maintain quality care, and keep staff members with
no layoffs.” To do this, Magid promised to form a joint man-
agement-employee team to look at these issues and invited
volunteers to participate in the process. On April 2, Magid
distributed another memo to the employees promising changes
in the human resources department, recommended by the con-
sultant, to address complaints from employees about the service
they received from that department.
In addition to these memos, the prepared text of a speech that
Magid gave to the employees around March 29 includes refer-
ence to the compensation survey from the consultant. In that
speech, which Magid claims to have read verbatim, he first tells
the employees that the Respondent had asked the employees,
during the last union election, to give the Respondent a chance.
He then said that the employees gave the Respondent that
chance when they rejected both unions. He acknowledged that
the Respondent had not done enough since that election to
make things better. The text shows that Magid then made some
commitments to things he would do “no matter what happens
on April 11.” Then he talked about the consultant, stating:
There is one other thing. I received the compensation
survey from the consultant. Unfortunately, I received it
several days after we got the petition from the union and
there was nothing we could do about it then.
We spent a lot of time and money on this consultant
and I think her analysis is good. She has recommended a
number of changes to improve our wage and salary sys-
tem.
She has recommended that she continue her study by
reviewing and updating job descriptions, looking at job
grades, and considering how we give credit for seniority,
including the possibility of implementing a wage scale or a
similar arrangement.
She has asked us for approval to continue her work
and I have approved it. Regardless of what happens, I
think this is too important to leave it unfinished.
So that’s where we are. I recognize that we did not do
enough after the last election, and I accept responsibility
for that. But I have described some of the things that are
in our future. I ask only that you vote based upon what
you believe in your hearts is best for you, the Jewish
Home, and our residents.
The memos and the speech, taken together, conveyed to the
employees that the Respondent was in the process of making
improvements in the employees’ wages and other terms and
conditions that had been the subject of employee complaints.
He suggested, in his speech, that the Respondent could not do
anything now because the Union had filed the petition, leaving
the implication that, if there was no Union, the Respondent
could implement the changes recommended by the consultant.
Magid also utilized the theme, to be picked up later by Glick-
man, that the Respondent could resolve the employees’ com-
plaints better by working together without the Union. These
statements clearly implied that the Respondent would carry out
the improvements only if the employees rejected the Union and
agreed to work directly with the Respondent. Such an implied
promise violates the Act and I so find. Reno Hilton Resorts
Corp., 319 NLRB 1154, 1156 (1995).
5. Alleged threats of closure and job loss
Paragraphs 9(b) and (c) of the complaint allege that the Re-
spondent, through posters and leaflets displayed and distributed
to employees in March and April, threatened employees with
closure of the facility and the loss of jobs and benefits if the
Union were selected as the employees’ collective-bargaining
representative. At paragraph 12(a), the complaint alleges that
the Respondent, during the October–November 2001 period,
through statements of its president, Magid, threatened employ-
ees with closure of the facility, loss of benefits, loss of jobs and
permanent replacement if they selected the Union. The com-
plaint alleges, at paragraph 18(c), that the Respondent again
threatened employees with job loss, discharge and closure of
the facility, during speeches given by chairman of the board,
Glickman, on April 4 and 5.
The General Counsel placed in evidence a poster, “11 x 17”
in size, featuring a bright red list of 16 nursing homes that had
been organized by the Union and were closed or bankrupt. At
the top of the poster, in large brightly colored lettering, appears
the following:
The union says it can deliver
SECURITY
For you and your family
—District 1199 handout, 3/12/02
BUT WHAT’S THE TRUTH?
At the bottom of the poster, after the list of closed or bankrupt
homes, is the following disclaimer:
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1091
We’re not saying JHE would go bankrupt or close if a union
got in, but having a union is no guarantee of job security.
PLEASE VOTE NO ON APRIL 11.
The words “security” and the “vote no” request are in red type.
The uncontradicted testimony of the General Counsel’s wit-
nesses establishes that this poster was displayed for several
weeks before the election.
The General Counsel also cites one leaflet admittedly dis-
tributed to employees during the preelection campaign, in
March or April, as containing threats of the loss of jobs and
benefits. The leaflet, which asks the question, “Why does the
Jewish Home oppose the Union?” provides the following an-
swer:
A union won’t help the Jewish Home. We would have
to devote lots of money to contract negotiations, union
grievance procedures, and possible strike preparations.
That’s money that could buy equipment and supplies
. . . improve our facility . . . or fund your wages and bene-
fits.
Will a union really help you? District 1199 failed to
win any pay increases for 2001, any improvements in
staffing, or free health benefits for many 1199 members
who, like you, pay something for their health insurance.
But it did subject them to a damaging strike that cost many
union members more than $1000 in lost wages.
A union won’t help our residents or their families. In
fact, in light of last year’s strike-related sabotage, they
could live in constant fear of possible strikes or other un-
ion activity that would disrupt their home and their care.
That’s why we oppose the union.
Be informed.
This is your future.
The General Counsel argues that the poster and this leaflet must
be considered in the context of statements made by Magid and
Glickman in their speeches to the employees.
The General Counsel relies on the testimony of Melissa
Quarles to establish the allegation that Magid threatened the
employees in the October–November period. Quarles, a part-
time dietary aide who had worked for the Respondent about 2
years at the time of the hearing, testified that she attended one
meeting at which Magid spoke. She was unable to recall when
this meeting occurred more precisely than that it was before the
Union’s February 28 community election. She recalled that
Magid told the employees not to vote in the community elec-
tion because it was not a real election. She recalled further that
the meeting was in the recreation room and that 75–80 employ-
ees from a mix of departments were there. She also recalled
Vice President Silverman being present. Quarles testified that
Magid was not holding any papers in his hand and was not
reading from anything when he spoke to the employees. Ac-
cording to Quarles, Magid told the employees at this meeting
not to vote for the Union, that other homes the Union had or-
ganized had closed down and that, if the Union came in, the
Respondent would close down because it did not have enough
money for the Union to come in. On cross-examination,
Quarles testified that Magid said that “all the 1199 homes” had
closed down and that employees’ in the audience disputed this
statement, shouting out that this was a lie. Quarles testified
further, on cross-examination, that Magid did not identify any
of the union homes that had closed and that he did not make the
same disclaimer that appears on the poster. Quarles testified
that she spoke up at this meeting, commenting in response to
Magid’s statements about a supervisor who had been in the
Union, “it’s good for you to keep your enemies close by you.”
She testified that Magid then asked her what she meant by that.
She did not testify as to the response, if any, she gave to this
question.
One other employee, Harmenta Needham, testified to similar
threats by Magid. Needham, an employee of the Respondent
for more than 3 years at the time of the hearing, recalled that
Magid spoke to the employees about the Union in the fall 2001.
She testified that Magid said, “[T]hat the place would shut
down like Grant Street did and we were going to go out on
strike, and when the strike is over, we won’t have a job.” Grant
Street Health & Rehab. Center is one of the union-represented
homes listed on the poster as having closed. On cross-
examination, after being shown a pretrial affidavit she gave,
Needham was forced to acknowledge that she previously said
that Magid used the word “could” not “would.” She insisted,
however, that both Glickman and Magid said the Respondent
would shut down in response to the Union at the meetings
closer to the election.
As previously noted, Magid admittedly spoke to the Respon-
dent’s employees about the Union two times in October 2001.
He also admitted holding three additional series of meetings
after the Union filed its petition, two in March and one in April.
Magid testified that he read verbatim from the prepared text at
each meeting and only spoke extemporaneously when respond-
ing to employee questions. Magid denied making the threats
attributed to him by Quarles and Needham. Magid also denied
being at a meeting where an employee made the statement,
about “keeping your enemies close,” that Quarles claims to
have made. Magid did acknowledge talking to the employees
about the Respondent’s financial condition, including the fact
that the Respondent was losing “staggering amounts of
money,” in the context of his annual budget meetings in Octo-
ber 2001. He also acknowledged that Glickman spoke about
the Respondent’s losing money in his meetings closer to the
election.
Magid also acknowledged speaking about the closure and
bankruptcy of union-represented homes, even though this does
not appear in any of his scripts. According to Magid, he proba-
bly talked about this in response to employees’ questions. He
testified that he told employees that “there were a lot of homes
in bankruptcy, near bankruptcy, that had closed, that were 1199
homes.” He testified that he also said to the employees “that
just because they were represented by the Union, doesn’t tell
the whole story. There could’ve been lousy management, there
could’ve been inadequate resources, they could have agreed to
too rich a contract and couldn’t have afforded it. But that the
majority of homes that had closed and the majority that were
bankrupt or near bankrupt were 1199 homes.” Magid recalled
mentioning at least a few homes by name, citing as an example
Grant Street Partnership, a facility not far from the Respondent,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1092
which was listed on the poster as an 1199 home that closed in
1999, and Birmingham in Derby. On cross-examination, in
denying that he told employees that 1199 caused the homes to
close or go bankrupt, he admitted saying that he didn’t know
what happened, but “isn’t it striking that all of these are 1199
homes that are closed, in bankruptcy, or near bankruptcy.”
The texts of Magid’s speeches, which are in evidence, con-
tain no reference to close 1199 facilities. There are references,
in the first speech he gave at the beginning of October, and in a
speech given in March, soon after the Union filed its petition
with the Board, to strikes by 1199 and the loss of benefits by
employees at union-represented homes in Connecticut, includ-
ing a specific mention of employees at Birmingham health
center paying more for their health insurance after a strike than
they did before. The text of the latter speech does indicate that
Magid opened the floor to questions from employees at the end
of that meeting.
Although the evidence in the record shows that Magid did
not meet with the employees before the community election, as
Quarles recalled, the prepared text of the meeting he held soon
after the Union’s petition was filed, at the beginning of March,
shows that Magid referred to the community election, telling
the employees that “the NLRB vote is the only one that
counts.” This tends to corroborate Quarles’ testimony that
Magid said that the community election was not a “real elec-
tion.” The fact that this same text refers to loss of benefits by
unionized employees at other homes also tends to corroborate
the testimony of Quarles and Needham that Magid mentioned
the closure of other unionized facilities. I thus credit Quarles
and Needham regarding statements they attributed to Magid.
There is no dispute that Glickman met with the Respondent’s
employees, in two sets of meetings, before the election. Both
series of meetings occurred in April, about a week apart, with
the last one held only a couple days before the election. There
is also no dispute that Glickman, unlike Magid, did not use a
prepared text or read any portion of his speeches, preferring to
speak extemporaneously. Magid was present at all meetings at
which Glickman spoke. The text of Magid’s remarks, which
preceded one of Glickman’s speeches, indicates that a video
was shown to the employees before Glickman spoke. The
video apparently portrayed employees relating their experi-
ences with the Union during a recent strike at another facility.
The General Counsel called seven witnesses to testify about the
meetings held by Glickman. Five of the witnesses were still
employed at the time of their testimony. Glickman also testi-
fied and denied making any alleged threats during his meetings.
Ebonie Stewart, one of the alleged discriminatees, testified
that she attended one meeting at which Glickman spoke. This
meeting occurred on April 4, a week before the election. Stew-
art testified that this was the first time in the more than 5 years
she had worked there that Glickman met with the employees.
The meeting occurred in the recreation center with about 75
employees present from all departments except nursing. The
employees were told that they could not ask any questions but
could write any questions they had on an index card and turn
them in after the meeting. After being introduced by someone
from human resources, Glickman told the employees that he
had only been on the Board for 5 months and was not aware
that people were dissatisfied with the home. He told the em-
ployees that he was not there to “bash the Union,” that he was
not saying the Union was bad, just that the employees did not
need one there. Stewart recalled that Glickman told the em-
ployees that they could work out their problems if given a
chance, citing some examples of employees who’d brought
complaints to management and had them resolved. Glickman
then said that only “lazy employees” wanted the Union and that
the Union could do nothing for them if they were fired. Glick-
man then told the employees that the Union was also in debt
and that the only way the Union could make money was to
organize nursing homes and collect dues. Stewart recalled that
Glickman also spoke about how the Respondent was doing and
said he didn’t want to see it “go down.” He told the employees
that the Respondent was already a half million dollars in debt
and, if the home was forced to give employees a $2.50/hour
raise, it would cost roughly $6 million, which the Respondent
didn’t have. Glickman added that, if the Union won and it was
time to negotiate, he would hire the best lawyer in town to back
up his “no” at the bargaining table. Stewart testified that Glick-
man also told the employees that the home could close as a
result of the Union’s demands, that the Respondent would have
to cut staff if the Union got in and “then family members aren’t
going to want to keep their family member in a place where it’s
half the people that are supposed to be there.” Stewart gave the
most detailed account of this meeting, which is probably be-
cause she took notes during the meeting that she used in the
preparation of her affidavit.
Helen Wright, a CNA on the 11–7 night shift who has
worked for the Respondent in excess of 13 years, testified that
she had never seen Glickman before he came to the home, in
April, to speak to the employees about the Union vote. She
attended a different meeting than the one Stewart attended.
Wright recalled that about half of the third shift employees
were at the meeting she attended, which was also held in the
recreation center. According to Wright, Glickman introduced
himself as Magid’s boss. Glickman told the employees that if
the Union came in and negotiated for a $1 raise, they wouldn’t
get it, and if the Union negotiated for a $2 raise, they wouldn’t
get it. Wright recalled that Glickman then said he would close
the place down if necessary. When one of the employees at the
meeting spoke up, asking what he would do with Magid’s
mother-in-law, a resident of the home, Glickman answered,
“there is New Haven, there is Darien,” referring to other Jewish
Homes in the State of Connecticut. Wright testified that she
could recall nothing else from this meeting, claiming that she
became upset when Glickman said he would close the facility.
She did recall that he ended the meeting by telling the employ-
ees that he was Magid’s boss and Magid has to listen to what he
says.
Thompson, employed by the Respondent for seven years,
testified that she attended a meeting at which Glickman spoke
on April 5, also in the recreation center. She recalled that there
were about 20–30 employees at this meeting. This was also a
different meeting than the ones attended by Stewart and
Wright. Thompson already knew Glickman because she has
cared for his mother, another resident of the home. Thompson
also recalled that employees were told not to ask questions, but
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1093
to write them down and submit them in an envelope that was
provided. After being introduced by someone from Human
Resources, Glickman told the employees that he is “like a doc-
tor for business . . . I go in and see if a sick business is worth
saving. Or I shut it down.” Thompson testified that Glickman
told the employees that the Respondent had lost a lot of money
in 2000 and 2001 and that they would lose a lot more money
this year because of the raise employees had received in De-
cember. She recalled that he then said that the reason the Un-
ion wants to organize the Respondent’s employees is because
they also lost a lot of money and needed to make it up with
dues collected from the employees. It was at this point in the
meeting, according to Thompson, that Laidlaw asked her to
leave the meeting in the mistaken belief that Thompson was
tape recording it. When she returned to the meeting, Thompson
heard Glickman say if the Union came in and the home started
to go downhill, he “had no problem taking his family out and
shutting down the place.” Thompson recalled that he then
asked the employees to give the Respondent another chance
and, if the Respondent didn’t do what they say they’re going to
do, the employees could always have another vote because the
Union would always be there. According to Thompson,
Glickman finished his speech by telling the employees that “he
is the boss, and everybody reports to him, everybody . . . but
God.” On cross-examination, Thompson testified that she did
not recall Glickman talking about negotiating with the Union,
or mentioning any particular raise demanded by the Union. She
also did not recall him emphasizing staffing as a large part of
the Respondent’s costs.
Tawana Williams was at the same meeting as Thompson.
She corroborated Thompson’s testimony that Glickman asked
the employees to give the Respondent another chance and that
he said he would take his mother to another home and close the
Respondent’s facility. She recalled that the latter statement was
made in connection with his discussion of Union wage de-
mands. According to Williams, she challenged Glickman’s
statement, standing up and saying that he did not have the
power to close down the home.28 Williams corroborated
Thompson’s testimony that Glickman ended the meeting by
telling the employees that Magid answers to him and he an-
swers to no one but God. Williams also corroborated Thomp-
son’s testimony that this was the same meeting at which
Thompson was called outside by Laidlaw. Williams recalled,
in contrast to Thompson’s testimony, that there were 75–100
employees at this meeting. She also recalled, contrary to the
other witnesses, that Glickman was using notes and would oc-
casionally look down at them while he spoke.
Williams testified that she attended another meeting at which
both Magid and Glickman spoke and a video was shown. Ac-
cording to Williams, it was at this meeting that cards were dis-
tributed for employees to write any questions they wanted to
ask. She recalled that, at this meeting, after the video was
shown, Glickman again asked the employees to give the Re-
spondent another chance and to vote “No” in the election. On
cross-examination, Williams acknowledged that the alleged

28 Thompson corroborated Williams regarding Williams speaking
out at the meeting.
threat to close was not mentioned in a pretrial statement she
gave, which was otherwise consistent with her testimony. Wil-
liams explained this apparent conflict by testifying that the
pretrial affidavit at issue only referred to the second meeting
and, according to Williams, Glickman did not say he would
close the facility at this meeting.
Carmen Dyer, another alleged discriminatee, testified that
she attended a meeting with Glickman on April 4. Because she
was working the evening (3–11 p.m.) shift, she attended a dif-
ferent meeting than the ones described by the above witnesses.
There were only 10–12 employees at the meeting she attended.
She recalled that, after being introduced by someone from hu-
man resources, Glickman told the employees not to ask any
questions, to write them down and give them to the woman
from human resources who had introduced him. At that point,
according to Dyer, she commented out loud, “I don’t know if
he thinks we’re stupid but why can he speak and we can’t?”
Glickman then asked her if she thought that was funny. She
replied that she was not being funny. Glickman then told the
employees that they must think about their families because, if
the Union won, the Respondent would close. Dyer testified
that she stood up at that point and said, “[W]hat are you going
to do with all the residents if you close down.” She told
Glickman that she didn’t believe him and walked out of the
meeting before it was over. On cross-examination, Dyer ac-
knowledged that Glickman said more than this, but she could
only recall the exchange that took place between him and her.
Lozada also testified about Glickman’s meetings. She re-
called attending two at which he spoke, in addition to the meet-
ing with Magid described above. According to Lozada, at one
of the meetings at which a video was shown, Glickman told the
employees that there was no way he would agree to a $2/hour
raise, that he would tell his lawyers not to agree to such a de-
mand. He told the employees they would either have to go on
strike and be replaced, or the home would shut down. She
recalled Glickman saying he would take his mother out of the
home and close it. Lozada testified that Glickman’s mother is
one of the residents she has cared for.
Finally, Needham testified that she attended one meeting at
which Glickman spoke. The meeting she attended took place in
the afternoon and was one of two meetings that day, one in the
morning and one in the afternoon. It is unclear whether the
meeting she attended is the same one described by Lozada, who
worked the same shift. It is clearly a different meeting than the
ones described by the other witnesses because they occurred at
different times, on different shifts or involved nonnursing em-
ployees.29 Needham testified, on direct examination, that
Glickman said: “they would close all the building, take his
mother out of there, put her in another home and sell it
to . . . Sacred Heart [University], and if the Union got in, he
would pay top lawyers to threaten them from coming in.” She
could not recall anything else from the meeting at that time. On

29 Williams and Thompson, who work on the same shift as
Needham, testified that they attended the morning meeting. Wright
attended a meeting for nightshift employees at 4 a.m. and Dyer at-
tended an evening shift meeting. Stewart testified that there were no
nursing department employees at the meeting she attended.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1094
cross-examination, Needham, while acknowledging that
Glickman said much more about the Union than she recalled on
direct, denied that Glickman said he had heard that the Union
was going to demand a $2-hour raise or that, if he had to nego-
tiate with the Union, he would instruct his negotiators not to
agree to a deal that would not be good for the home. She also
denied that he even talked about negotiating a contract or bar-
gaining in the context of shutting down the home. She did
acknowledge, on cross-examination, that Glickman talked
about the Respondent losing money and not having much
money in the budget. According to Needham, this was the first
time she had heard that the Respondent was having money
problems. On redirect, Needham testified that Glickman told
the employees that “he would pay a sh— load of money to top
lawyers so the union can’t come in but there won’t be no nego-
tiations, that the union is not coming in.” After reviewing the
affidavit she gave on April 5, shortly after Glickman’s meeting,
she recalled further that Glickman said, if there was a union
contract, the Respondent would cut staff. She testified that it
was clear in her mind that Glickman used the word “would”
when speaking about shutting down and cutting staff.
Glickman testified that the theme of his first series of meet-
ings in early April was to introduce himself to the employees,
to educate them about the Respondent’s financial situation, and
to describe to them how the Respondent would have to react to
unfair demands from the Union, should the employees vote in
favor of representation. In explaining the Respondent’s finan-
cial condition, Glickman told the employees that the Respon-
dent had been losing money for several years and that the losses
were increasing. He attributed these losses to the failure of the
State and Federal governments to increase Medicare/Medicaid
reimbursement rates. Glickman told the employees that, be-
cause the Respondent was primarily dependent on these gov-
ernment payments for its revenue, the Respondent was unable
to keep up with its operating costs that were rising at a much
faster rate. Glickman admitted telling the employees that the
only way it could prevent losses was to cut costs and that 80
percent of its costs were people, i.e., labor costs. According to
Glickman, he told the employees that the Respondent had been
reluctant to take this step because it did not want to reduce the
quality of care provided to the residents, something Glickman
said that the Respondent was proud of. Glickman ended this
portion of his speech by telling the employees that, because of
these financial considerations, the Respondent was not in a
position to meet the demands that the Union was advising em-
ployees to pursue by becoming organized. Glickman testified
that he based these comments on information being circulated
by the Union that the Respondent’s wages were out of line with
the competition by about $2 an hour. Glickman then told the
employees, “[W]e could solve our problems with our employ-
ees without the help of the Union . . . we can solve our prob-
lems by working directly with them better than through a union,
which was making promises it couldn’t keep.”
Glickman testified further that after describing the Respon-
dent’s financial situation and its impact on union bargaining
demands he told the employees what could happen in bargain-
ing. According to Glickman, he told the employees that al-
though the Respondent couldn’t afford the Union’s demands it
would bargain in good faith. He told the employees that if the
employees selected the Union to represent them he would be
directing the professionals hired by Respondent to conduct the
negotiations. He told the employees that if the parties couldn’t
agree in negotiations several things could happen. He said the
employees could go on strike. If that happened, he told the
employees that the Respondent would have to continue caring
for its residents and would do whatever was necessary to de-
liver care. According to Glickman, he then told the employees
what would happen if the Respondent met the Union’s eco-
nomic demands. Glickman told the employees that the Re-
spondent
would then proceed to change our quality of care. To un-
doubtedly reduce the number of employees, which would
mean greater work loads for the remaining employees. We
would of course seek efficiencies but we knew we could not
make up for the additional losses by efficiencies since that’s
what we’ve already been pursuing . . . . [I]f we were cutting
the number of employees and quality of care to clients we
would become very much like many of the other homes that
have ended up with financial problems. The union homes in
particular. And that people, like my mother who happens to
be in the home, has a family that probably would not want her
to be in the home. If the quality of care declined, we’d take
her out. There are other board members who have family and
would probably make the same decisions.
If directors were taking their family members out of
the home undoubtedly other people would be doing the
same. And if the reputation of the home declined to such a
point where people actually were leaving then in all prob-
ability we would have difficulty filling beds with new
residents. In that case we would essentially be approach-
ing bankruptcy and would either voluntarily close or just
be forced to close.
Glickman testified that he ended this presentation by telling the
employees that, “by voting against the Union and working with
management to resolve the problems, by allowing the Respon-
dent to provide wage increases based on market conditions, we
could probably solve the problems together.”
Glickman testified that he held the second set of meetings in
response to union propaganda that “mischaracterized” his
statements at the first meeting, with the Union telling employ-
ees that he had said the Respondent would close if there was a
union. Glickman testified further that at the second meeting he
spoke to the employees after Magid had spoken and after a
video was shown in which employees who had been on strike at
another 1199 facility were interviewed about their experiences.
Glickman testified that he made three points at these meetings:
(1) he addressed the “sad conditions” people in the video de-
scribed, telling the Respondent’s employees that they could
face the same conditions in a strike by voting for the Union and
pursuing unreasonable economic demands; (2) he reviewed the
Respondent’s financial condition again, telling employees why
the Respondent could not meet unreasonable union economic
demands and that if negotiations were unsuccessful the em-
ployees might end up on strike like the employees in the video;
and (3) he reiterated his previous statements, telling the em-
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1095
ployees that what the Union was claiming he said was untrue,
that he didn’t say those things because he knew it was illegal,
and he couldn’t say that Respondent would shut down if there
was a union. He told the employees that what he had done was
to point out to them the circumstances under which it could in
fact happen. Glickman ended the meeting by asking the em-
ployees to vote against the Union.
After testifying in a narrative fashion regarding the meetings,
Glickman then denied, in response to a series of leading ques-
tions, that he made the statements attributed to him by the Gen-
eral Counsel’s witnesses. On cross-examination, Glickman
conceded that because he did not use a script or read from notes
his statements to the employees varied from one meeting to the
next. He also conceded that he could not testify as to the exact
words he had used at each meeting because of this. Glickman
testified that he did receive advice before the meetings about
what he could and could not say and that he was careful, in
choosing his words, to avoid committing any unfair labor prac-
tice. Glickman also admitted, on cross-examination, that he
referred to the homes listed on the Respondent’s posters as
having closed or gone bankrupt, telling the employees that
these were all union homes. Glickman also admitted that at the
time he gave these speeches to the employees the Union had
made no economic demands on the Respondent and that he did
not know what the Union would demand in bargaining if it won
the election. Glickman also described himself, in response to a
question from the Charging party’s counsel about his back-
ground, as having been involved in “turnaround situations.”
Glickman acknowledged telling employees this and explaining
to them what a “turnaround” is. Glickman further acknowl-
edged that employees were not permitted to ask questions at
these meetings but that some employees did speak out anyway.
Glickman’s narrative testimony about the two meetings he
held, in contrast to his responses to leading questions from his
own counsel, tended to corroborate much of the testimony of
the General Counsel’s witnesses. For example, Glickman’s
description of his background in “turnaround situations” sup-
ports the testimony of Thompson that he told the employees he
was like a doctor for sick businesses. He admitted asking the
employees, as the General Counsel’s witnesses recalled, to give
the Respondent a chance. He also acknowledged telling em-
ployees that he would take his mother out of the home if the
quality of care diminished, that other residents’ families would
probably do the same and that, if enough did so, the Respon-
dent would be on the road to bankruptcy or closure. Although
the employees’ recollections may have differed regarding his
precise phraseology, he clearly made those points in the context
of discussing what would happen if the employees elected un-
ion representation. Similarly, although he and the General
Counsel’s witnesses may disagree as to the manner in which he
phrased it, it is apparent that he did indicate to the employees
that the Respondent would not agree to a proposal to raise their
wages by $2 an hour and that he would hire “professionals” to
make sure the Respondent did not agree to such a demand. It is
also clear, regardless of the terminology used, that he predicted
that the Respondent’s agreement to such a demand would set in
motion a chain of events leading to the ultimate closure of the
home. I also note that Glickman essentially agreed with the
testimony of the General Counsel’s witnesses regarding the
mechanics of the meetings, i.e., the absence of a written speech,
no opportunity for questions, employees nonetheless speaking
out of turn, the presentation of a video at one of the two sets of
meetings.
I have previously found that Williams and Thompson were
generally credible witnesses. They, along with Lozada,
Needham and Wright, are still employed by the Respondent.
Their testimony is thus inherently reliable. Flexsteel Industries,
316 NLRB 745 (1995). Moreover, any variation among the
witnesses is understandable in light of the fact that they were at
different meetings and in light of Glickman’s acknowledgement
that he did not say the exact same thing at each meeting. Varia-
tions in the testimony of the General Counsel’s witnesses and
Glickman is also understandable in light of the fact that they
were recalling what happened at these meetings from different
perspectives and in the context of different life experiences.
Finally, as noted above, Glickman essentially corroborated the
key elements of the testimony of the General Counsel’s wit-
nesses to the extent necessary to resolve the issues raised by the
complaint. I thus find, to the extent there is any material con-
flict in the testimony, that the recollection of the General Coun-
sel’s witnesses is more credible.
The Board and the courts have frequently addressed
speeches and campaign posters similar to those at issue here.
The decisional precedent reflects a constant struggle to balance
the 8(c) right of an employer to make his views known and the
right of employees to make their decision free from unlawful
threats and intimidation. The fact that an employer does not
directly threaten employees with plant closure or job loss is not
the end of the inquiry. As the Supreme Court itself has recog-
nized, any balancing of these competing interests “must take
into account the economic dependence of the employees on
their employers, and the necessary tendency of the former,
because of their relationship, to pick up intended implications
of the latter that might be more readily dismissed by a more
disinterested ear.” NLRB v. Gissel Packing Co., 395 U.S. 575,
617 (1969). Under Gissel, when an employer makes a predic-
tion regarding the consequences of unionization,
the prediction must be carefully phrased on the basis of objec-
tive fact to convey an employer’s belief as to demonstrably
probable consequences beyond his control. . . . If there is any
implication that an employer may or may not take action
solely on his own initiative for reasons unrelated to economic
necessities and known only to him, the statement is no longer
a reasonable prediction based upon available facts but a threat
of retaliation based on misrepresentation and coercion, and as
such without the protection of the First Amendment.
Id. at 618. See also NLRB v. St. Francis Healthcare Center,
212 F.3d 945, 954–955 (6th Cir. 2000); Times-Herald Record,
334 NLRB 350 (2001); Wallace International de Puerto Rico,
328 NLRB 29 (1999); SPX Corp., 320 NLRB 219, 221 (1995).
Cf. Savers, 337 NLRB 1039 (2002).
The Board, in Quamco, Inc.,30 found unlawful an employer’s
campaign tactic of displaying a “UAW Wall of Shame,” con-

30 325 NLRB 222 (1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1096
sisting of tombstones with the name of a closed factory where
the UAW had represented employees, adding one a day leading
up to the posting of a tombstone bearing the name of the em-
ployer with a question mark the day before the election. The
Board held that “the logical inference to be drawn from the
expanding cemetery of UAW-represented plants is that the
same fate of plant closure and job loss awaited Eldorado.” Id.
at 223. The Board held further that “the clear implication of the
display [of the final tombstone] was that the fate of the plant
would be thrown into question if, and only if, the employees
chose union representation.” Id. See also Laser Tool, Inc., 320
NLRB 105 (1995) (employer’s poster depicting four or five
UAW strikers in front of a factory building displaying a “closed
banner,” with the legend “Do you want this to happen to you?
Vote No,” violated Section 8(a)(1)).31
The General Counsel argues that Magid’s and Glickman’s
statements in meetings with employees, together with the poster
and leaflet, conveyed the clear message to the employees that a
vote for the Union would result in closure of the facility and
loss of employees’ jobs. Times-Herald Record, 334 NLRB
supra at 351 fn. 8 (an employer’s letter to employees equating a
vote for the union with a vote for job insecurity violated Sec-
tion 8(a)(1)); SPX Corp., supra (cumulative effect of the Re-
spondent’s campaign had reasonable tendency to convey the
message to employees that job loss would result from their vote
for union representation). The Respondent, on the other hand,
argues that all of the statements were protected under Section
8(c) of the Act. In the Respondent’s view, it did no more than
communicate to employees the fact that, in light of its financial
situation, the Respondent would not be able to meet the Un-
ion’s publicized economic demands which, if agreed to, would
threaten the continued viability of the home, possibly leading to
its closure. The Respondent contends that these statements
clearly indicated to employees that any closure or job loss fol-
lowing selection of the Union would be economically driven
and not retaliatory. Savers, supra; Clintonville Shoe Co., 272
NLRB 609 (1984).
While not free from doubt, I find that the Respondent here
crossed the line between a permissible prediction of the eco-
nomic consequences of unionization and an unlawful threat of
plant closure and job loss. Although the poster and leaflet, on
their face, may not have directly threatened such a result, par-
ticularly because of the disclaimer at the bottom, when consid-
ered in the context of what Magid and Glickman told the em-
ployees at the meetings, they were unlawful. The clear mes-
sage the Respondent conveyed through this campaign was that
union representation would lead to job insecurity. Glickman, in
his meetings, said as much. Thus, despite the Respondent’s

31 In other cases, posters depicting closed factories under the ques-
tion “Is this what the Union calls job security?” have been found law-
ful. Sheraton Hotel Waterbury, 312 NLRB 304 (1993), enfd. in rele-
vant part 31 F.3d 79 (2d Cir. 1994); EDP Medical Computer Systems,
284 NLRB 1232 (1987). In these two cases, the complaint allegations
regarding the posters were dismissed by the respective administrative
law judge, without comment by the Board. Because it is unclear from
the Board’s decisions whether the General Counsel even took exception
to these particular findings, the decisions are of limited precedential
value.
financial situation, which would be no different on the day after
the election whether the Union won or lost, Glickman sug-
gested that the Respondent would only work with the employ-
ees to solve its financial problems and avoid cutting staff if
there were no union. Although Glickman attempted to blame
“unreasonable union demands” for any actions it might take if
the Union won, it is clear that whatever action Respondent took
was within its control and discretion. In addition, notwithstand-
ing union campaign propaganda regarding employees’ need for
a $2-raise, there is no evidence that the Union in fact would
have sought a raise in that amount if it won the election. Nor is
there any evidence that the Union would not have been willing
to work with the Respondent to solve its economic problems, if
warranted. Glickman essentially predicted dire consequences
of unionization as if it had no choice in the matter, which sim-
ply is not true. Under the circumstances here, I find that the
Respondent’s written and oral communications to the employ-
ees would lead the employees to reasonably believe that the
Respondent would close the facility rather than deal with the
Union if the employees voted for union representation. These
communications thus violated Section 8(a)(1) of the Act as
alleged in the complaint. Federated Logistics & Operations,
340 NLRB 255 (2003); Times Herald Record, supra; SPX
Corp., supra.
6. Miscellaneous 8(a)(1) allegations
The complaint alleges, at amended paragraph 8(e), that the
Respondent’s supervisor, Laidlaw, threatened employees, in
November 2001 with loss of benefits and jobs if they supported
the Union. The General Counsel relies on the testimony of
Lozada, described above, regarding statements Laidlaw made
to employees during a meeting on the Tandet West unit some-
time around late October 2001. This is the meeting at which, as
found previously, Laidlaw unlawfully solicited employees to
revoke union authorization cards they had signed. According
to Lozada, Laidlaw told two employees with less than a year’s
tenure that they would be the first to go if the Union got in
because the Respondent would have to cut staff to meet union
demands and any cuts would be by seniority. Lozada testified
further that Laidlaw told her that she could lose all her sick
time and vacation time that she had accumulated because “all
that would go on the bargaining table.” In response to leading
questions from the Respondent’s counsel, Laidlaw denied mak-
ing the specific statements attributed to her by Lozada. She
acknowledged speaking to employees at meetings on the units
about benefits and seniority but claims she talked about these
subjects in the context of describing the collective-bargaining
process. According to Laidlaw, she could not have made any
threats to the employees because she knew, from training she
received, that she could not say these things.
I previously credited Lozada’s testimony regarding this
meeting over Laidlaw’s testimony. I find that the threats
Lozada attributed to Laidlaw are consistent with the general
theme of the Respondent’s campaign. The evidence reviewed
above shows that the Respondent, in speeches given by higher
management officials to groups of employees, conveyed the
message that the Respondent would be forced to reduce staff to
meet union demands in bargaining. Laidlaw’s statement that
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1097
those cuts would be done by seniority and the two relatively
new CNAs would be the first to go was coercive because not
based on any objectively demonstrable facts. This statement
was thus unlawful. I do not find Laidlaw’s statement to
Lozada, that she could lose accrued vacation and sick time,
unlawful. Lozada conceded on cross-examination that Laidlaw
said she could lose these benefits only as the result of bargain-
ing, not that the Respondent would take them away unilaterally
in response to a union victory. Accordingly, I find that the
Respondent violated Section 8(a)(1) only with respect to Laid-
law’s threat that the two new employees would lose their jobs if
the Union were voted in.
The complaint alleges additional independent violations of
Section 8(a)(1) committed by Laidlaw, Magid, and Pryor.
These allegations all involve interactions between the alleged
supervisors and either Dyer or Gauthier. Because these allega-
tions are relevant to consideration of the 8(a)(3) allegations
involving Dyer and Gauthier, they will be discussed in that
section of this decision.32
C. The 8(a)(3) Allegations
1. Juan Ayala
Juan Ayala had been employed by the Respondent for more
than 10 years at the time of the hearing. He is a part-time die-
tary aide classified as a floater. In that position, Ayala per-
forms different tasks within the dietary department. His imme-
diate supervisors at the time of the organizing drive were
Wargo and Erickson. Brian Cullen is the supervisor responsi-
ble for preparing the schedule. Ayala, who has a B.A. in for-
eign languages and has been certified to teach Spanish since
1998, was going to school at the time of the organizing cam-
paign to become a registered nurse. In the fall 2001, Ayala
worked weekends and 2 days during the week, usually Mon-
days and Tuesdays, so that he could take classes the rest of the
week. There is no dispute that Ayala has been considered a
good employee throughout his tenure with the Respondent.
Ayala signed a union authorization card on September 29,
2001. He was one of the first to show his support for the Un-
ion. According to Ayala, he spoke to other employees about
joining the Union, solicited at least one card, and regularly
leafleted outside the cafeteria door and at the bottom of the hill.
He appears in a picture with other union supporters on a leaflet
distributed by the Union during the preelection campaign in
March, entitled, “What does the Future Hold?” Ayala is the
only male employee in the photograph. Ayala testified that he
spoke up at one of the meetings the Respondent required its
employees to attend that were conducted by its outside consult-
ant, Direct Labor Training. According to Ayala, when the gen-
tleman conducting the meeting told the assembled employees
that he was being paid by the Respondent and would be impar-

32 The General Counsel offered evidence at the hearing about actions
taken by the Respondent in response to a petition submitted by CNAs
on the night shift complaining of unfair and discriminatory treatment by
a supervisor. In his posthearing brief, the General Counsel does not
cite this evidence as supporting any of the allegations in the complaint.
I have not been able to find any complaint allegations that specifically
address this event. Accordingly, I shall make no findings regarding the
matter.
tial, Ayala asked how could he be impartial if the Respondent
was paying him. No supervisors employed by the Respondent
were at this meeting. There is no dispute that the Respondent
was aware of his support for the Union. As discussed above,
Wargo unlawfully directed Ayala, in early March, not to talk
about the Union while working.
Ayala testified that, in December 2001, he submitted his re-
quest to Cullen for the days off he wanted in order to accom-
modate his course schedule in the upcoming semester. Cullen
told him there would be no problem and honored his request for
the first 4 weeks of the semester. According to Ayala, Cullen
stopped honoring his request for days off after the Union’s
community election, February 27. When Ayala asked Cullen
why he was doing this, Cullen told Ayala he had only approved
the request for 2 specific days, not the entire schedule. Ayala
pointed out that Cullen had been honoring this request for 4
weeks. Ayala did not testify as to Cullen’s response to this
statement. Ayala testified further that, also after the community
election, Cullen started assigning him to strip trucks more of-
ten. As Ayala described this work, it was one of the most un-
desirable tasks in the dietary department. According to Ayala,
because of his relative seniority in the department, he had rarely
been assigned such dirty and menial tasks before. When Ayala
asked Cullen about this change, Cullen responded, with a
smirk, “I put my best people on trucks.” Ayala recalled that his
increased assignment to stripping trucks lasted for 3–4 months
until Cullen reverted to assigning him a variety of tasks. The
work schedules in evidence substantially support Ayala’s testi-
mony. They show that, at least from about mid-March through
mid-June, Ayala was assigned to truck duty at least 3 out of the
4 days he worked each week. In some weeks, that was the only
assignment he received. In contrast, the schedules for January
and February show some weeks when he was not assigned to
strip trucks at all, and other weeks when it would be only l day.
Ayala testified further that, at some point in 2002, he needed
a recommendation from his current employer to enter nursing
school. He first asked his immediate supervisor, Erickson, who
had given him a similar recommendation about 2 years earlier
for a teaching job. According to Ayala, this time Erickson told
him she had to talk to the director of the department, Tim
Horan, before she could do it. When Ayala asked her later the
same day if she had talked to Horan, Erickson told him that
Horan said Ayala had to sign a waiver on the recommendation
form, giving up his right to see the recommendation. When
Ayala told Erickson he would not sign the waiver, she told him
she would talk to Horan. When Ayala saw Horan later, he
asked him about the recommendation. According to Ayala,
Horan at first told Ayala he would give him the recommenda-
tion the next day. The next day, Horan called Ayala into his
office and told him he could not give him the recommendation.
Ayala testified that Horan said, “To be honest, I cannot give
you the recommendation because, what am I going to put here
where the person says ‘intelligence and communication skills’?
You do not have any.” Ayala testified that, because there was
nothing for him to say at that point, he left Horan’s office with-
out saying anything further. According to Ayala, he then asked
Caplan, Horan’s assistant who had given Ayala a recommenda-
tion for another matter previously, if he would fill out the form
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1098
for nursing school. Caplan replied that he could not because
“his job was on the line.” When Ayala asked Caplan if he
could use the letter of recommendation Caplan previously
wrote, Caplan said, okay. Ayala testified that he had asked
Caplan for the earlier recommendation because Horan was
away at that time. According to Ayala, when Horan returned,
he asked Ayala why he hadn’t asked Horan to give him a rec-
ommendation, telling Ayala that he would have been glad to
give him one.
Cullen testified for the Respondent and disputed Ayala’s tes-
timony regarding the scheduling issue. Cullen acknowledged
speaking to Ayala about his schedule around January 2002.
According to Cullen, he spoke to a number of part-timers who
were in school about their schedules around that time because it
had come to his attention that some of the employees who
claimed to be in school at certain times were not. Ayala was
one of these employees. Cullen testified further that part-time
employees usually give him their course schedules at the be-
ginning of each semester. Cullen testified further that when he
asked Ayala why his school course schedule showed he had no
classes on one of the days off he requested, Ayala told him he
needed the extra day to study. Cullen told Ayala he would try
to accommodate the request. He then asked Ayala if he would
work if he needed him to work that extra day off. Cullen testi-
fied that Ayala said he would.33 According to Cullen, he tried
to accommodate Ayala’s requested schedule thereafter and had
no further discussions with him about this subject.
Cullen testified that when he makes up the schedule he also
decides what job each employee will be doing. According to
Cullen, he bases his work assignments on which employee has
the most skill at a particular task. Cullen recalled having one
conversation with Ayala about his work assignment. Ayala
asked him about a “pattern” of being assigned to trucks. Cullen
testified that he told Ayala that this was because Ayala “was the
most knowledgeable of this position.” Significantly, Cullen did
not attempt to disabuse Ayala of the notion that there was such
a pattern of assignments. Cullen could not recall when this
conversation occurred other than it was around the same time
as the earlier discussion about Ayala’s school schedule. Cullen
admitted learning of Ayala’s support for the Union long before
these conversations. While acknowledging there are some
positions in the department that are less desirable than others,
Cullen claimed that stripping trucks is not the most undesirable
task. Cullen considered being assigned to the dish room or pots
and pans as less desirable. Cullen also testified that an em-
ployee assigned to trucks does not strip trucks all day. They
only have to do this twice a day, about 45 minutes each time,
with the remainder of the shift spent doing nourishments and
working the tray line.
Horan disputed Ayala’s testimony about his request for a
recommendation. According to Horan, it was Ayala who ap-
proached him directly, asking him to fill out a recommendation
form for nursing school. Horan did not recall any involvement
by Erickson in this matter. Horan testified that he asked Ayala

33 On cross-examination, Ayala had acknowledged being asked for a
copy of his course schedule but denied that Cullen pointed out any
discrepancy between his course schedule and his requested days off.
if he was willing to sign the waiver on the form so that Horan
could send it directly to the school. Ayala told Horan he would
rather get the form back and mail it himself. Horan told Ayala
to leave the form with him and he would take a look at it.
Horan testified further that he called Ayala into his office a day
or two later, after having reviewed the recommendation form,
and told Ayala he had concerns about the nature of the recom-
mendation sought. According to Horan, he told Ayala that the
form looked like a personal reference, not a typical employ-
ment reference, because it asked for comments about Ayala’s
integrity, character, etc. He told Ayala that he might be better
off asking someone who knew him better to complete the form.
Horan testified that he had never done this type of “personal
reference” for any other employee in the department. Accord-
ing to Horan, after he said this, Ayala said okay and left with
the form. Horan denied saying anything to Ayala about his
intelligence or communication skills. Horan also denied being
aware that Ayala had gotten references or recommendations
from Erickson and Caplan in the past.
Caplan admitted having a conversation with Ayala, some-
time in the spring of 2002, about a recommendation. Caplan
recalled Ayala telling him that he had asked Horan for a rec-
ommendation and been denied. He recalled Ayala asking him
for a recommendation. According to Caplan, he told Ayala that
if he had an issue with the director over a recommendation, to
take it up with the director. He denied telling Ayala that he
could not give Ayala a recommendation because “his job was
on the line.” Caplan denied being aware that Ayala was a un-
ion supporter. He also denied, incredibly, being aware of any
interest in the Union among the employees in the dietary de-
partment, despite the fact that Stewart, one of the core group of
employee union activists, also worked in the department, and
contrary to the testimony of other department supervisors that
they were aware of such support. On cross-examination,
Caplan admitted providing a “personal recommendation” for
Ayala, in 1998, when Ayala was seeking a position as a
teacher’s aide. He also contradicted his direct testimony when
he denied, on cross-examination, that Ayala asked him for a
recommendation in 2002. Erickson was not asked any ques-
tions by the Respondent about her involvement in Ayala’s re-
quest for a recommendation.
The complaint alleges, at paragraph 27, that the Respondent
imposed more onerous working conditions on Ayala on or
about February 28, 2002, and, at paragraph 28, that the Re-
spondent refused to supply Ayala with a recommendation on or
about March 15, 2002. Paragraph 34 alleges that the Respon-
dent was motivated in taking these actions by Ayala’s having
joined, supported, and assisted the Union. The Respondent
denies that it imposed more onerous working conditions on
Ayala and denies any unlawful motivation behind its treatment
of Ayala. The test for determining whether the Respondent’s
actions involving Ayala and the other alleged discriminatees
violated Section 8(a)(3) is the Board’s Wright Line test.34 Un-
der this test, the General Counsel bears the initial burden of

34 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1980), cert. denied 455 U.S. 989 (1982). See also Manno Electric, 321
NLRB 278, 280 fn. 12 (1996).
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1099
proving by a preponderance of the evidence that protected ac-
tivity was a motivating factor in the employer’s actions. To
meet this burden, the General Counsel must offer evidence of
union or other protected activity, employer knowledge of this
activity, and the existence of antiunion animus that motivated
the employer to take the action it did. The Board has recog-
nized that direct evidence of an unlawful motivation is rarely
available. The General Counsel may meet his burden through
circumstantial evidence, such as timing and disparate treatment,
from which an unlawful motive may be inferred. See Naomi
Knitting Plant, 328 NLRB 1279 (1999), and cases cited therein.
If the General Counsel meets his burden, then the burden shifts
to the respondent to prove, by a preponderance of the evidence,
that it would have taken the same action, or made the same
decision, even in the absence of protected activity.
I find, based on Ayala’s credible testimony, as substantiated
by the work schedules in evidence, that Cullen did increase the
regularity of assigning Ayala to “trucks” after the Union filed
its petition on March 1. I note that Cullen implicitly admitted
this was the case when Ayala questioned him about this pattern
of work assignments. Rather than telling Ayala that he was not
assigning him to trucks any more than he had before, he simply
responded, “I put my best people on trucks.” This sarcastic
response confirms that a change had taken place because, if that
were truly the case, why hadn’t Ayala, one of Cullen’s best
people, been put on trucks so regularly before? With respect to
the denial of a recommendation, the facts are largely undis-
puted. Horan admitted he refused to give Ayala a recommen-
dation, attempting to justify this refusal by making a distinction
between a “personal reference” and an “employment refer-
ence.” This distinction ignores the fact that at least one of
Ayala’s supervisors, Caplan, admittedly did not have a problem
giving such a “personal” reference before the onset of union
activity, even though Caplan did not really know Ayala outside
the work environment.
The evidence described above clearly establishes that the
Respondent was aware of Ayala’s union activity at the time of
the alleged discriminatory actions. The 8(a)(1) violations found
above, and in particular, Wargo’s overly broad restriction of
Ayala’s right to talk about the Union with his coworkers, estab-
lishes the requisite element of animus. Circumstantial evi-
dence, such as the timing of the Respondent’s actions, taken
during the critical preelection period between the Union’s peti-
tion and the election, supports a finding that Ayala’s union
activities and the Respondent’s animus toward such activity
motivated its supervisors to schedule Ayala to do the unpleas-
ant task of stripping trucks more often than before and to deny
him a recommendation for nursing school. I find that the Gen-
eral Counsel has established, by a preponderance of the evi-
dence, that antiunion animus motivated the Respondent’s
treatment of Ayala, shifting the burden to the Respondent to
prove, by the same preponderance, that Ayala would have been
assigned to strip trucks as often and would have been denied a
recommendation had there been no union activity.
The Respondent’s defense to the first allegation is that strip-
ping trucks is really not that onerous a task and that, as a part-
timer, Ayala could be assigned wherever he was needed. While
these assertions may be true, the Respondent’s own witnesses
acknowledged that many employees do not like being assigned
to trucks. Ayala’s complaint about this assignment would have
put Cullen on notice that Ayala did not like this work. Never-
theless, he continued to assign this unpleasant task even though
Ayala was perhaps one of the most experienced employees in
the department and recognized as a good employee. Ordinarily,
an employer would be expected to accommodate such an em-
ployee and not intentionally assign them work they did not like
to do. The fact that the Respondent chose not to do so during
the union campaign, when it had done so in the past, shows that
the assignment was vindictive. Similarly, with respect to the
denial of a recommendation, there is no dispute that Ayala had
received similar recommendations before from other supervi-
sors. Only after he displayed his open support for the Union
did it become a problem for Horan to provide a recommenda-
tion for Ayala. Although Horan claimed that he declined to
provide this recommendation because it was “personal” in na-
ture and he did not know Ayala well enough to evaluate his
judgment, integrity, character, etc., I credit Ayala’s version of
the conversation, which shows that Horan made a point of in-
sulting Ayala when he denied the request. Even if Horan had
legitimate concerns about his ability to evaluate Ayala on cer-
tain criteria, he could have completed the form, noting these
limitations, without insulting Ayala. Accordingly, I find that
the Respondent has not met its Wright Line burden and that the
General Counsel has established the merits of the allegations of
the complaint as to Ayala.
2. Misty Hinds
Hinds was hired by the Respondent on July 23, 2001. She
worked full time as a CNA on second shift. Straubel was her
supervisor. Hinds learned of the Union’s organizing drive soon
after it started and was one of the first employees to sign an
authorization card, on September 27, 2001. Hinds testified that,
after signing the card, she attended union meetings off-site,
voted in the February 27 community election in the commuter
parking lot, handed out union leaflets on her unit and spoke to
coworkers. She did not identify any supervisory or manage-
ment employees who may have seen her doing this.
On January 26, Hinds was injured in an automobile accident.
After seeing her doctor, she spoke to DiGangi, the head of the
nursing department, about her need to stay out of work for at
least 2 weeks. DiGangi approved her request for leave and, on
February 8, a letter signed by Linda Silverberg, human re-
sources assistant, confirmed this, as follows:
As we discussed, since you do not meet the require-
ments to be eligible for Family Medical Leave, the Jewish
Home is prepared to grant you a compassionate leave.
The criteria for family medical leave is that you are em-
ployed for one year in conjunction with working 1000
hours. Therefore, under the policies of the Jewish Home
you will be placed on a compassionate leave effective Feb-
ruary 5, 2002.
During this leave, you will need to maintain contact
with Linda DiGangi, Assistant Director of Patient Services
or a member of the Human Resources Department.
It is our hope that your physician will clear you to re-
turn to work fit for full duty without restrictions effective
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1100
on February 22, 2002. (Since you will be going to your
physician on February 21, 2002). If you are unable to re-
turn on or before February 22, 2002 please notify Human
Resources and your last date of employment will be re-
corded as February 8, 2002 which was your last day
worked. Unfortunately, we cannot extend any more leave
under the Jewish Home’s policies.
Although there is no guarantee you will be rehired,
when you are prepared to return to work, you may apply
for any available position.
Hinds testified that she had not heard of “compassionate leave”
before receiving this letter. Hinds testified further that she did
not recall DiGangi telling her that she was not eligible for fam-
ily medical leave. She also did not recall discussing this with
Silverberg despite what the letter indicates.
Hinds testified that her doctor released her to return to work
on February 22 and she returned to work that date, as required
by the letter from Silverberg.35 According to Hinds, on her first
day back, she was told to attend a meeting in the recreation
room in Tandet building. When she got to the meeting, it had
already started. There were a number of CNAs and housekeep-
ing employees there as well as DiGangi. Hinds asked what the
meeting was about. The gentleman from DLT who was con-
ducting the meeting told her she was late. He then introduced
himself and said he was not from the Respondent and he was
not from the union. Hinds then asked why he was there. The
man replied that he was there because a few of the employees
did not understand or speak English. Hinds then got up and
said, if they don’t understand English, why is he speaking Eng-
lish. She also asked why was she there because she spoke and
understood English. The man repeated that he was there be-
cause some of the employees didn’t understand English and he
then started talking about how the Union isn’t everything it’s
set out to be. Hinds again interrupted him, asking why should
she be here since she didn’t have any problem understanding.
She said she had better things to do, that she hadn’t finished her
PM care for her residents. According to Hinds, other CNAs
started speaking out saying the same thing she had. Gradually,
Hinds and the others started walking out of the meeting until no
one was left to listen to the man. Hinds testified that, during
her exchange with the man, DiGangi appeared irritated, pacing
and clicking her pen.
Hinds testified that she had another accident at the end of
February, injuring her toe on a medicine cart, which exacer-
bated a preexisting condition. She called her doctor, who rec-
ommended that she have surgery. Her doctor asked Hinds to
fax him her medical information. After speaking to her doctor,
Hinds went into work early and asked a nurse who worked the
day shift on the Kuriansky-3 unit, whom she knew only by the
first name as Elaine or Irene, to fax the insurance information
to her doctor. According to Hinds, this nurse said she would
fax the information if Hinds agreed to say, “no.” When Hinds
asked, “[S]ay no to what?” the nurse replied, “[S]ay no to the

35 Hinds testified that her doctor initially told her to stay out of work
longer. He changed her return to work date after she told him about the
letter she had received from the Respondent, requiring her to return no
later than February 22.
Union.” This nurse then talked to Hinds for about 20–25 min-
utes about what the Union had done at another facility, Medi-
plex. Hinds admitted that she listened to the nurse but did not
reveal her own prounion sympathies during this conversation.
On March 12, her day off, Hinds had surgery on her toe. She
expected to be able to return to work but was told by her doctor
that she needed to be off her feet for 5–7 days. There is no
dispute that Hinds submitted a note from the Doctor to that
effect to the human resources department the same day. Hinds
testified that she received a call from someone in the nursing
department the next morning telling her, “[T]his is a courtesy
call. You’re terminated.” When Hinds expressed incredulity,
the woman on the other end of the line said, “Yes, we can’t
afford to give you a week off after what you already had with
the accident.” The woman told Hinds she could reapply when
she felt better if the Respondent had the position available.
Hinds was told she would receive something in the mail.
Sometime after this phone call, Hinds received a letter from the
Respondent, signed by Silverberg and dated March 13, stating
the following:
I was sorry to hear that you had surgery and will not be
able to return to work at this time. I certainly understand
your need to stay home and recuperate from your surgery.
As I explained regarding your leave of February 8th,
the Jewish Home makes every effort to work with em-
ployees who do not qualify for a leave of absence under
the Family Medical Leave Act by granting you a two week
Compassionate Leave.
Since you have already exhausted your 2 weeks com-
passionate leave and you have informed me that you will
not be returning to work at this time, your last day of ac-
tual work (March 9, 2002) will be listed as the date your
employment ended.
Although there is no guarantee that you will be re-
hired, when you are prepared to return to work, you may
reapply if an opening is available.
Hinds testified that she reapplied for employment, as in-
structed in the letter, but was never called by the Respondent
for a job. On the day of the election, April 11, while visiting a
friend at the home, Hinds saw a posting for a 40-hour position.
According to Hinds, she called the Respondent’s human re-
sources department about this opening. Hinds testified that she
spoke to Jacqueline Solomon, the person in human resources
who had interviewed her when she was hired in July 2001.
When Hinds asked Solomon about a job, Solomon said there
were no openings. Hinds then asked her directly about the
posting. According to Hinds, Solomon said, “[T]hey’re not
going to re-hire you because you’ve already been terminated.”
The Respondent called two witnesses to rebut the allegation
regarding Hinds’ termination. Eileen Potkay, an LPN who
works the day shift on the Kuriansky-3 unit where Hinds
worked the evening shift in March, was called to rebut Hinds’
testimony regarding her interaction with a nurse she knew only
as Elaine or Irene. Potkay testified that she was familiar with
Hinds as a CNA who worked on her floor. She testified that
she was not a charge nurse but did oversee the unit if the nurse
manager or assistant nurse manager were not around. Accord-
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1101
ing to Potkay, the only conversations she would have had with
Hinds in March were about patient care. Potkay specifically
denied talking to Hinds about the Union and specifically denied
speaking to Hinds about her medical condition. Potkay could
not recall ever being asked by Hinds to fax anything to her
doctor and she “absolutely did not” tell Hinds she would fax
something or do anything else for her if Hinds voted against the
Union. Potkay acknowledged having worked previously in an
1199 facility where the number of CNAs was cut in half. She
admitted talking about her experiences at that facility with the
employees who worked on her shift. Because Hinds did not
work on her shift, she never shared these experiences with her.
The Respondent also called Sonceria Jackson-Holland, who
is employed by the Respondent as a senior human resources
administrator responsible for recruitment, orientation, HR in-
formation systems, and assisting managers and employees with
questions and problems. She testified that she made the deci-
sion to terminate Hinds’ employment. Although Jackson-
Holland has been employed by the Respondent for 13 years,
she was absent from the facility on maternity leave during part
of this union campaign, from December 15, 2001, until March
7, 2002. She testified that she became involved in Hinds case
soon after returning to work when Silverberg, who works under
her supervision, brought the matter to her attention. According
to Jackson-Holland, Silverberg informed her that Hinds had
been granted compassionate leave but used it up and now was
seeking more leave. Jackson-Holland instructed Silverberg to
draft the March 13 letter, terminating Hinds’ employment, and
she reviewed it before it issued.36 Jackson-Holland also testi-
fied that she had a telephone conversation with Hinds in March
in which she explained to Hinds the Respondent’s compassion-
ate leave policy. According to Jackson-Holland, when Hinds’
asked if she was being fired, Jackson-Holland replied, “[W]e’re
not firing you. We have a job available but you can’t work.
But, as you learned on orientation, you can re-apply. If there is
an opening, you may be re-hired but there is no guarantee.”
Jackson-Holland testified that she did not believe that Hinds
ever reapplied for a job.37 She also denied knowledge of
Hinds’ union activities or support.
Jackson-Holland also testified regarding the Respondent’s
leave policies. She claimed that the Respondent only provides
a maximum of 2-weeks “compassionate leave” to employees
who do not meet the eligibility requirements for FMLA leave,
i.e., employment for 1 year and at least 1000–1250 hours
worked preceding the leave. She testified further that the Re-
spondent automatically terminates employees at the end of their
leave if they are unable to return to work. She cited three ex-
amples of employees treated similarly to Hinds. The docu-
ments offered to support this testimony are status change forms
indicating that each of the three employees was terminated, on
April 5, October 2, and November 1, 2001, respectively, for the
stated reason that they were unable to work at the conclusion of
their “compassionate leave.” Attached to the forms are copies

36 The Respondent did not call Silverberg as a witness.
37 The Respondent did not call Jacqueline Solomon, whom it admit-
ted in its answer was a statutory supervisor and agent, to rebut Hinds’
testimony that she did reapply and was told she would not be hired.
of letters sent to each of the employees, which are identical to
one another, advising them that they had been granted “a one-
time compassionate leave of up to two weeks” and that, if un-
able to return at the end of that leave, they would be considered
to have voluntarily terminated their employment but could re-
apply. All three letters are signed by Silverberg. The two let-
ters Silverberg sent to Hinds, on February 8 and March 13,
while worded differently and containing additional verbiage,
essentially communicate the same information, i.e., that the
Respondent was granting, or had granted, her 2 weeks’ com-
passionate leave on February 8, that no further leave could be
extended, and that if she was unable to work beyond the 2
weeks, she would be considered terminated.
Documents offered into evidence by the General Counsel
show that the Respondent provides several types of leave for its
employees. An “Outline of Benefits,” with a date of September
2001, shows that, in addition to vacation, sick leave and per-
sonal days which employees begin to accrue after 6 months of
continuous employment, employees are eligible for 26 weeks of
short-term disability benefits “on the first of the month follow-
ing three full months of employment.” The Respondent’s
short-term disability policy requires a 7-day waiting period
unless the disability is due to an accident. The Respondent’s
employee handbook also describes the short-term disability
plan. That section of the handbook describes the monetary
benefit employees may receive under the plan and the process
for filing a claim with the insurance company but refers to the
“Leave of Absence” section of the handbook for “employees
unable to work due to medical reasons for an extended period.”
The “Leave of Absence” section of the handbook only de-
scribes FMLA and pregnancy leave and ends with the follow-
ing paragraph:
In general, the Jewish Home will not grant more leave than is
allowed under the Federal or State Family Medical Leave
Acts. The Home does, however, reserve the right to grant
leave under its internal disability leave policy. The total
maximum leave granted in any year may not exceed 6
months. Business reasons may make it necessary to fill posi-
tions after the expiration of family medical leave. When ap-
plicable, the Home will make every effort to notify prior to
filling your position.
The handbook does not explicitly mention “compassionate
leave.” No other document memorializing the Respondent’s
“compassionate leave policy” was offered into evidence by the
Respondent.
The General Counsel, conceding that there is no direct evi-
dence that the Respondent was aware of Hinds’ union support,
argues that the Respondent’s knowledge and unlawful motiva-
tion may be inferred from circumstantial evidence. General
Counsel suggests that motive may be inferred by the haste with
which Hinds was terminated, the failure to consider whether
she was eligible for short-term disability or some other form of
leave, and the general antiunion animus evident from the unfair
labor practice findings set forth above. I disagree. Knowledge
is a key element in the General Counsel’s case that is missing
here. Even crediting Hinds’ testimony about her actions at the
meeting with the DLT representatives, there is no evidence that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1102
in expressing her frustration at attending a meeting she re-
garded as a waste of time, she communicated her prounion
sympathies. The testimony regarding the nurse who faxed her
insurance information is too unreliable to establish knowledge.
Not only was Hinds unable to identify who the nurse was, she
could not testify in any detail as to the particular individual’s
supervisory or agency status. Assuming the evidence is suffi-
cient to point to Potkay as the nurse in question, the Respon-
dent has successfully rebutted this testimony through Potkay’s
credible denial that she had such an encounter with Hinds. I am
also not persuaded by General Counsel’s arguments that Hinds
was treated differently from other employees who were not
eligible for FMLA leave. The only examples in the record, all
pre-dating Hinds’ case, show no more than 2 weeks “compas-
sionate leave” being granted with virtually automatic termina-
tion when the employee did not return after exhausting the 2
weeks’ leave. All correspondence also indicates that this is a
one-time benefit only. While the Respondent’s policy may be
harsh and unfair, there is insufficient evidence that the Respon-
dent applied this policy in a discriminatory manner to terminate
Hinds. I note, in particular, the absence of any evidence that
Respondent permitted an employee who was not eligible for
FMLA or pregnancy leave, to be out of work for more than 2
weeks.38 Having found that the General Counsel did not pre-
sent a prima facie case of a discriminatory motive behind
Hinds’ termination, I shall recommend dismissal of paragraph
29 of the complaint.39
3. Farid Gauthier
Gauthier was hired as a shift leader in the Environmental
Services Department on January 3, 2000. He worked second
shift, from 3 to 11:30 p.m., during the week and on the day shift
when he worked weekends. A total of seven employees
worked the same shift as Gauthier in environmental services.
Gauthier worked directly with a crew of four. Gauthier was
hired by former Environmental Services Director Richard
Bracci, who gave him a good evaluation and 3-percent merit
raise after 1 year. Bracci left in mid-2001 and was replaced by
Vidal Castrillon who also left the Respondent’s employ, in late
2001. Kevin Pryor, the current director, started in January, in
the midst of the Union’s campaign.
Gauthier was one of the first employees to get involved with
the union drive. He signed a card on September 28, 2001, at-
tended meetings, spoke to other employees and obtained a
number of cards from them, distributed leaflets at the main
entrance to the Respondent’s facility, and appeared in union
literature distributed to employees and in the community. He

38 This would exclude employees who were absent on accrued sick
leave, vacation, or personal days since there is no evidence that Hinds
had any accrued leave left to use on March 13.
39 Hinds’ testimony, that she re-applied and was not hired even
though the Respondent had an opening for a CNA on or about April 11,
was not contradicted by the Respondent. Although this might suggest
that Hinds was being treated discriminatorily, the fact remains there is
no evidence that Solomon, or anyone else in the Respondent’s man-
agement, had any knowledge of Hinds’ union sympathies. There is
also no evidence that any other employee terminated for not returning
from leave was subsequently rehired.
was with Tawana Williams and Ebonie Stewart on February 15
when Magid, Silverman, and Pryor evicted them from the cafe-
teria under the Respondent’s unlawful no-access rule. Because
of the highly visible nature of Gauthier’s union activities,
knowledge is essentially undisputed.
The Respondent contends that, as a shift leader, Gauthier
was a supervisor within the meaning of the Act. Although it is
undisputed that Gauthier did not have the authority to hire, fire,
discipline, promote, transfer, or otherwise directly affect the
tenure or status of employees working on his shift, the Respon-
dent apparently relies on his direction and or assignment of
work to other employees as establishing his supervisory status.
The evidence in the record, however, reveals that the employ-
ees on Gauthier’s crew occupied positions that defined their job
duties. Moreover, Gauthier met at the start of the shift each day
with admitted Supervisors Pryor, Candice Brooks, and Jose
Valencia, who told him what needed to be done on his shift. At
the end of the shift, Gauthier filled out a report indicating what
tasks had been accomplished and noting any problems encoun-
tered. Although he could note problems he had with employ-
ees, Gauthier could not take any action against an employee
and was not consulted by his supervisors regarding any disci-
pline that might be imposed. Gauthier also had no authority to
authorize the employees on his shift to work overtime if a task
was not completed. In fact, he was issued a written warning by
former Supervisor Jeff Long in March 2001 for “misuse of
authority” when he allowed employees to work overtime. The
record reveals that Gauthier was also responsible for filling out
inventory sheets which, for the most part, simply recorded the
amount of supplies on hand and whether additional supplies
needed to be ordered based on predetermined amounts. He had
no authority to order supplies himself, nor could he make any
independent determination regarding the amount to be ordered.
Gauthier was also responsible for filling out forms to document
any work-related injury occurring on his shift and to record the
times in and out when an employee forgot to punch his time-
card.
None of the evidence in the record demonstrates the type of
independent judgment in the exercise of the limited authority
Gauthier had as a shift leader that would meet the statutory
definition of a supervisor. See Highland Superstores, Inc. v.
NLRB, 927 F.2d 918 (6th Cir. 1991); Somerset Welding &
Steel, 291 NLRB 913 (1988). Moreover, in contrast to other
supervisors recognized by the Respondent, Gauthier was paid
on an hourly basis, received hourly employees’ benefits, per-
formed work alongside his crew for most of the shift and was
not invited to attend any of the training sessions or other meet-
ings conducted by the Respondent for its supervisors during the
union campaign. In fact, the Respondent did not treat Gauthier
like a supervisor until it decided to fire him. Based on the pre-
ponderance of the evidence, I find that the Respondent has not
met its heavy burden of proof that Gauthier was not entitled to
the Act’s protection as a statutory supervisor.40 Freeman
Decorating Co., 330 NLRB 1143 (2000).

40 As the party asserting supervisory status, the Respondent has the
burden of proof on this issue. NLRB v. Kentucky River Community
Care, Inc., 532 U.S. 706, 711 (2001).
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1103
Gauthier testified that after he became involved with the Un-
ion Castrillon, the director at the time, called him into the office
and told him that he should not be part of the Union. Accord-
ing to Gauthier, Castrillon told him the Union would strain their
relationship, that it would not be good for Gauthier or the Re-
spondent’s employees. Gauthier testified further that Castrillon
began to find fault with anything he did, leading to a written
warning he received on December 19, 2001. The warning cata-
logues a litany of incidents of alleged unsatisfactory perform-
ance by Gauthier dating from October 8, 2001. Gauthier dis-
puted the warning, contending that he was being held to a dif-
ferent standard fromthe other shift leader, Maria Labrada, and
that the Respondent did not have adequate staffing to accom-
plish all the tasks assigned on his shift. Gauthier testified that,
after receiving this warning, he went to see Vice President
Silverman and asked for a meeting with his department head to
address his concerns. Such a meeting was held within a week
or two, in Silverman’s office. During this meeting, according
to Gauthier, Castrillon interrupted him while he was explaining
the staffing problems to Silverman, and said, “[L]et’s stop kid-
ding ourselves here. Everybody knows you’re one of the Union
leaders.” Gauthier recalled that Silverman appeared taken
aback by Castrillon’s statement and, when Castrillon started
accusing Gauthier of calling his home and threatening Castril-
lon’s wife, Silverman stopped the meeting, telling Gauthier and
Castrillon that the meeting was going nowhere. Castrillon was
replaced by Pryor not long after this meeting. Castrillon, who
was no longer employed by the Respondent at the time of the
hearing, was not called as a witness and Silverman, who testi-
fied for the Respondent, did not dispute Gauthier’s testimony
about this meeting.
On February 27, the day of the Union’s community election,
Gauthier leafleted at the bottom of the hill and gave employees
rides to and from the commuter parking lot where the election
was held. When he reported to work that afternoon, supervi-
sors Brooks and Valencia expressed surprise that he was there,
telling Gauthier that they thought he was not coming in that
day. Gauthier testified that he had told Brooks sometime be-
fore February 27 that he might need to take that day off to pick
up his brother at the airport if his brother decided to come for a
visit. According to Gauthier, he also told Brooks that it would
be a last-minute thing and that he might not call her until the
last minute if he needed the day off. He testified that he also
told Brooks that if he didn’t call her it meant he would be com-
ing into work. After reminding Brooks of this earlier conversa-
tion, Gauthier went to work. About 15 minutes later, Gauthier
was paged by Silverman and told to meet him in the department
office. When Gauthier got to the office, Silverman told him
that there was a “discrepancy” on the schedule. He told
Gauthier to punch out and go home and that if he had anything
to say to Silverman to wait until the next day when he was on
the clock. Gauthier did as he was told. Gauthier testified fur-
ther that about a month before this, on January 30 Brooks also
questioned what he was doing there when he reported for work.
Brooks told him at that time that she thought he was off and
that she had failed to schedule him. Rather than send him
home, Brooks apologized for her mistake and Gauthier worked
the shift.
The General Counsel alleges, at paragraph 27 of the com-
plaint, that the Respondent violated Section 8(a)(3) of the Act
by refusing to let Gauthier work on February 27. Brooks and
Silverman testified for the Respondent regarding this allega-
tion. Brooks, who impressed me as a credible witness, corrobo-
rated Gauthier to the extent that she acknowledged he asked her
for a day off to pick up a relative at the airport several weeks
before the day in question. However, Brooks did not recall
there being anything contingent about Gauthier’s request for
the day off. She recalled further that Gauthier submitted a re-
quest form for the day off which she approved. Brooks testi-
fied that she wrote “holiday” on the schedule for Gauthier and
assigned Labrada, the other shift leader who normally fills in on
Gauthier’s days off, to work that day. Brooks testified further
that when Gauthier showed up for work on the day he had re-
quested off she asked him what he was doing there. When
Brooks reminded him of his request for the day off, Gauthier
told her he forgot to tell her that he had changed his mind and
no longer needed the day off. Brooks told Gauthier that he
could not work because Labrada was already working the shift
for him. Brooks acknowledged that she discussed the situation
with Silverman and fellow Supervisor Valencia before telling
Gauthier that he could not work. Silverman testified that
Brooks called him and told him that Gauthier was in the build-
ing working on a day he was not scheduled to work. Silverman
went to the environmental services office and met with Brooks
and Valencia. After reviewing the schedule to verify that
Gauthier was scheduled off, he spoke to Gauthier and asked
him why he was working. Gauthier told Silverman that he was
scheduled to work. When Silverman reminded Gauthier that he
had asked for the day off, Gauthier acknowledged he had asked
for the day off, mentioning his brother’s visit, and said his plans
had changed. Gauthier asked Silverman, “[W]hat’s the big
deal?” Silverman told Gauthier that the Respondent had already
scheduled a replacement for him and didn’t need him to work.
When Gauthier asked Silverman if he was telling him to go
home, Silverman said, yes. Silverman recalled that Gauthier
acknowledged that he never told his supervisor that he had
changed his mind after his day off had been approved.
Silverman testified that he was unaware of an earlier incident in
which Gauthier was permitted to work even though he was not
on the schedule. Brooks had not been asked about this incident.
The evidence in the record clearly establishes that Gauthier
was a leading union activist and that the Respondent was aware
of this on February 27 when he was sent home. The unfair
labor practices found above, and in particular the incident on
February 15 when Gauthier was one of three off-duty employ-
ees evicted from the cafeteria where they were handing out
union literature, establishes the Respondent’s animus toward its
employees’ union activities. Gauthier was sent home within 2
weeks of this incident by Silverman, the same management
representative who evicted him from the cafeteria. The day that
Gauthier was not permitted to work is also the same day that
the Union conducted its well-publicized community election.
Based on these factors, as well as Gauthier’s undisputed testi-
mony that Brooks permitted him to work on a day he was not
on the schedule about a month earlier, I find that the General
Counsel has made out a prima facie case that Gauthier’s union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1104
activities motivated the Respondent’s decision not to let him
work on February 27. However, Brooks’ and Silverman’s tes-
timony convinces me that Gauthier would not have been per-
mitted to work on February 27 even in the absence of union
activity. Gauthier requested and was given the day off and
Labrada was scheduled to cover his absence. There is no dis-
pute that Gauthier never bothered to tell Brooks, or any other
supervisor, that his plans had changed and he now wanted to
work. When he appeared for work on February 27, he was no
longer needed. The Act does not require the Respondent to
overstaff a shift to accommodate a union activist’s shifting
plans. The earlier incident when Gauthier was permitted to
work is distinguishable. In that situation, Gauthier had been
scheduled off as a result of the supervisor’s admitted mistake.
On February 27, Gauthier was scheduled off as a result of his
own actions. Even assuming Gauthier told Brooks that he
wasn’t sure he would need the day off and would let her know
“at the last minute,” I would still not find a violation. The Re-
spondent could hardly be expected to run a business if its em-
ployees take such a cavalier approach to their work schedule.
What was the Respondent supposed to do if in fact Gauthier did
wait until the last minute to tell Brooks he wasn’t coming in?
Who would cover the shift then? Based on the evidence before
me, I find that the Respondent has met its Wright Line burden
with respect to this incident. Accordingly, I shall recommend
dismissal of paragraph 27 of the complaint.
Gauthier testified that, on March 26, he noticed that one of
his supervisors, Valencia, was observing him while he handed
out union leaflets on break. Shortly thereafter, Valencia went
into the office and returned with a stack of the Respondent’s
campaign literature. According to Gauthier, Valencia told
Gauthier that he had to hand them out to other employees, that
it was part of his job. When Gauthier protested, Valencia told
him that when Valencia had been a union supporter in the last
election, he had also been required as a housekeeping porter to
hand out procompany literature. Gauthier took the leaflets
from Valencia but he did not hand them out. When Valencia
returned later and asked Gauthier why he had not handed out
the Respondent’s leaflets, Gauthier replied that he and his crew
had been on break and that he would hand them out later. Va-
lencia walked away and left work for the day shortly thereafter.
Gauthier begrudgingly handed out the leaflets later in the shift.
Valencia admitted giving Gauthier campaign literature prepared
by the Respondent and telling Gauthier to distribute it on sec-
ond and third shift. According to Valencia, he did this because
Valencia was not present on those shifts to hand out the litera-
ture himself. Valencia recalled that this incident occurred
about a month before Gauthier’s March 27 suspension. He
acknowledged that Gauthier appeared “bothered” by his re-
quest.
The next day, according to Gauthier, the entire crew was
called to a meeting in the nursing conference room with Pryor,
Brooks and Valencia. Pryor spoke at this meeting, telling the
employees that things had been “kind of weird” with changes in
management and everything, but that things were working out
and the employees should keep up the good work. At the end
of the meeting, Valencia told Gauthier that Pryor wanted to
meet with him in the environmental services office. Gauthier
went to the office where he met with Pryor. Valencia and
Brooks were also present. Pryor berated Gauthier, telling him
that his crew did a “horrible job” the night before and com-
plaining that the dining room carpet had not been cleaned prop-
erly. Gauthier told Pryor that he knew this and that he had
noted it on his report.41 Pryor then told Gauthier that he had
received information that someone saw Gauthier get into his car
the night before, drive around from Bennett lobby to the Kuri-
ansky building, post union literature, then drive back and clock
out. Gauthier explained to Pryor that he had gone out to the
parking lot to warm up his car as usual, then clocked out as
usual before going to Kuriansky, where he admitted posting
literature. Gauthier explained further that after doing this, he
had a cigarette with several employees and left for the night.
After explaining his actions the night before, Gauthier com-
plained to Pryor that he was angry and insulted that the Re-
spondent would use the security camera to keep track of his
movements and would accuse him of engaging in union activi-
ties on the Respondent’s time. Pryor then handed Gauthier
some more of the Respondent’s campaign literature and told
him that it was part of his job to distribute them to other em-
ployees. No disciplinary action was taken against Gauthier
based on the report Pryor described about his alleged abuse of
company time.
The Respondent’s witnesses, Brooks, Pryor, and Valencia,
were not asked specifically, on direct examination, about this
meeting. Pryor did admit, on cross-examination, that he asked
Gauthier to hand out some of the Respondent’s campaign litera-
ture on his shift. According to Pryor, he did this because he
had not had time to do it himself. He considered this no differ-
ent than other instances where he asked Gauthier to communi-
cate some information to employees on the second shift.
Brooks and Pryor acknowledged that Gauthier communicated
his unhappiness with being asked to distribute the Respondent’s
literature.
The complaint alleges, at paragraph 17(a), that the Respon-
dent unlawfully created the impression of surveillance when
Pryor described to Gauthier the “report” he had received con-
cerning Gauthier’s activities the night before. The complaint
further alleges, at paragraphs 17(b) and 22, respectively, that
Pryor’s and Valencia’s instructions to Gauthier to hand out the
Respondent’s campaign literature violated Section 8(a)(1) of
the Act. Because Gauthier’s testimony that Pryor accused him
of engaging in union activity without clocking out is undis-
puted, I credit his testimony. Pryor’s statements about the “re-
port” he received and the details he provided to Gauthier about
his alleged activities the night of March 26 would reasonably
lead an employee to believe that the Respondent had them un-
der surveillance. The Board has found such statements unlaw-
fully create the impression of surveillance in violation of Sec-
tion 8(a)(1). See Ichikoh Mfg., 312 NLRB 1022 (1993); United

41 Gauthier had noted on his report for the prior evening’s shift that
the employee assigned to clean the spot did not do a good job.
Gauthier had also noted that his crew had not been able to clean one
area and that they did not “break down” the recreation room, which was
set up for a meeting, because more meetings were to be held there.
Gauthier had also made a point of noting in this report that Valencia
had ordered him to hand out antiunion literature.
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1105
Charter Service, 306 NLRB 150, 151 (1992). I find that the
Respondent violated the Act, as alleged at paragraph 17(a) of
the complaint, through Pryor’s statements to Gauthier at this
meeting on March 27.
In Clinton Food 4 Less,42 the Board adopted the administra-
tive law judge’s decision that an employer who requires its
employees to convey its antiunion message to other employees
violates Section 8(a)(1) of the Act. The judge reasoned that
such conduct coerces employees to act as agents of the em-
ployer and robs them of their right to freely exercise their Sec-
tion 7 rights. The judge cited decisions in which the Board had
found an employer’s coercive requirement that employees wear
pro-employer buttons or T-shirts unlawful. Id. at 612, and
cases cited therein. Based on this precedent, I find that the
Respondent violated Section 8(a)(1) here when Pryor and Va-
lencia required Gauthier to hand out the Respondent’s cam-
paign literature on March 26 and 27.
Gauthier admitted that he was upset when he left the meeting
with Pryor and his supervisors on March 27. He acknowledged
telling Brooks, as he was leaving, that “this is ridiculous. If
Jose Valencia has a problem with me, we should settle this man
to man, or else, if he doesn’t, I’ll start taking things personally.
I can get downright dirty too.” Gauthier testified that Valencia
was near enough to have heard these remarks. According to
Gauthier, Valencia went into the office, came out and ap-
proached him. As the two men passed, they apparently brushed
shoulders. Valencia asked Gauthier. “Do you have something
to say to me?” Gauthier at first said, no, but then changed his
mind and said, “[Y]es, let’s go outside and talk for a minute.”
Valencia told Gauthier that, if he wanted to talk, they could talk
in his office. Gauthier and Valencia went into the office. Ac-
cording to Gauthier, as soon as he got in the office, Valencia
called Pryor on the phone, telling him that Gauthier was “being
very hostile.” Valencia then walked out of the office, telling
Gauthier that he would speak to him after he talked to Pryor.
Gauthier followed Valencia to Pryor’s office. Shortly after
Valencia went into Pryor’s office, Gauthier was called in.
Pryor again berated Gauthier, saying that Gauthier hadn’t done
anything since he got to work that day but cause a commotion,
cause problems. Gauthier testified that he tried to speak up but
Pryor wouldn’t let him. Gauthier just listened and, when Pryor
was done, he left the office and returned to work.
Gauthier testified that he spoke to the Union’s organizer,
Paul Fortier, later that day during a smoke break when Fortier
met him in the Respondent’s parking lot to give him more un-
ion leaflets to distribute. According to Gauthier, Fortier told
him that he did not have to hand out the Respondent’s literature
and that it was illegal for them to ask him to do so. When
Gauthier returned to work, he told Brooks what Fortier had
said. Gauthier testified that he also spoke to one of the nursing
supervisors later the same day.43 The supervisor had com-
mented that Gauthier looked upset and Gauthier told her why.
While he and the nursing supervisor were discussing the Union,
Pryor walked by and shook his head. A short time later,

42 288 NLRB 597 (1988).
43 The Respondent identified the supervisor as Christine Tocchi, di-
rector of nursing.
Gauthier was paged to Pryor’s office. When he got to the of-
fice, Pryor told Gauthier that he considered the earlier incident
with Valencia to be harassment and that he was suspending
Gauthier without pay pending an investigation of the incident.
Pryor then had security escort Gauthier out of the building.
Before leaving, Gauthier went to the front office to try to talk to
someone higher up. He encountered Magid and the nursing
supervisor he had spoken to earlier. When Gauthier tried to say
something, Magid said he did not have time to talk to him, that
he was leaving for New York. Magid also told Gauthier that
Silverman was his supervisor, and that Gauthier was sus-
pended. Gauthier turned to the nursing supervisor and said,
“Now do you see what I’m talking about?”
Gauthier attempted several times to schedule a meeting with
Pryor to discuss the suspension but each time the meeting was
canceled. On April 4, Pryor called Gauthier and told him he
made a mistake when he suspending him without pay. He told
Gauthier that he would be paid during the time on suspension.
A meeting was finally scheduled for April 9. Gauthier attended
this meeting with Tawana Williams as a witness. Also present
were Pryor and an employee from the human resources depart-
ment, Linda Ciszkawski. Gauthier gave his side of the story
and provided Pryor with the names of four witnesses he said
would support his version, i.e., Tom Gallagher, Lisa Eleazer,
Marie Martin, and Rakic Smikle. Gauthier asked when he
could return to work. Pryor responded that he needed time to
conduct an investigation and that he would try to have a deci-
sion by Friday, April 12. The next day, April 10, which was
also the day before the election, Pryor called Gauthier and in-
formed him that Pryor had decided to terminate him because of
his “past history and performance, his lack of motivation and
the incident with Valencia.”
Rakic Smikle, who had been terminated by the Respondent
after 3 years of employment shortly before she testified, cor-
roborated Gauthier’s testimony regarding the incident with
Valencia on March 27.44 Smikle testified that she encountered
Gauthier pacing in the hallway, just outside the cafeteria, as she
turned the corner from the resident’s dining room on her way to
the cafeteria. Although she testified that she could tell some-
thing was wrong by the way he was acting, she denied that he
was acting “unusual.” In her pretrial affidavit, Smikle had
stated that Gauthier looked “really upset.” Observing this be-
havior, Smikle asked Gauthier if anything was wrong. She
recalled that he replied, “[N]ot now, not now.” At that point,
she saw Valencia come out of his office, across from the cafete-
ria and walk toward Gauthier. She testified that Valencia said
to Gauthier, “[D]o you have something to say to me?” Gauthier
at first said no, then said, yes and asked Valencia to go outside
to talk. Valencia declined the invitation, telling Gauthier that
they could talk in his office. Smikle then went into the cafete-
ria and heard nothing further about the incident. Smikle testi-
fied that she went to see Pryor on her own when she heard that
Gauthier had been suspended. She testified further that she told
Pryor that she had been there and that nothing happened. Ac-

44 Although the Charging Party stated its intent to file a charge over
Smikle’s termination, no further information was provided regarding
this issue before the close of the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1106
cording to Smikle, Pryor told her the suspension had nothing to
do with that incident, that people from all over the facility had
been complaining that Gauthier was not doing his job. Smikle
testified that she told Pryor that she was going to go to the Un-
ion and tell them that she would be a witness for Gauthier.
Smikle gave her affidavit during the investigation before her
termination by the Respondent.
Brooks did not testify regarding the conversations Gauthier
described having with her on March 27. She did testify that
some time earlier on a date she could not recall Gauthier had
expressed to her that he was upset that Valencia was promoted
to the supervisor’s position instead of him. Brooks recalled that
Gauthier questioned Valencia’s lack of experience and ability
to handle the job. Valencia had not worked in housekeeping
before being given the supervisor’s job in environmental ser-
vices. His prior position was “wheelchair specialist.” Brooks
also testified that Gauthier had difficulty working with Valen-
cia before his suspension, that he would ignore instructions
Valencia gave him. She recalled that Valencia had complained
to her about the way Gauthier treated him. On cross-
examination, Gauthier had admitted that he was unhappy over
Valencia’s promotion, that he believed he was more qualified
for the position and that he expressed this view to Pryor. De-
spite these feelings, Gauthier claimed that he had no problem
working with Valencia before March 26 and 27.
Valencia, who was no longer employed by the Respondent
when he testified at the hearing, having resigned in November
under threat of termination, testified for the Respondent. Ac-
cording to Valencia, he was walking down the hall toward the
cafeteria when Gauthier “shouldered him” while mumbling
something. Valencia stepped aside and asked Gauthier if he
had something to say. When Gauthier said no, Valencia con-
tinued into the cafeteria. Gauthier followed him in and, yelling
from across the room, in front of a number of employees and
others who were there, said: “Yeah, I got something to say to
you, I’m sick of this s—t.” According to Valencia, he sug-
gested to Gauthier that they have this conversation in the office
and Gauthier replied, “[L]et’s take this outside.” Valencia then
directed Gauthier to go to the office. Valencia testified further
that, when they got to the office Gauthier slammed the door and
continued to harangue him, claiming that management was
picking on him. Valencia called Pryor, telling him that
Gauthier was in his office, harassing him. Pryor told Valencia
to come to his office. Valencia directed Gauthier to go back to
work, telling him that Pryor would speak to him later. Accord-
ing to Valencia, when he got to Pryor’s office, he accused
Gauthier of calling him outside to fight. Valencia threw his
keys and badge on the desk and told Pryor that he didn’t have
to deal with this, that it’s not right that he has to tolerate such
abuse from Gauthier. Valencia denied that he was upset when
he walked into Pryor’s office, specifically denying that his eyes
were large, or that he was red. Valencia claimed that he re-
mained calm throughout this incident, despite the apparent
threatening conduct and belligerent attitude of Gauthier.
Pryor contradicted Valencia’s description of his demeanor
that day. According to Pryor, when Valencia called him on the
phone, he was upset, saying that he needed to speak to Pryor
right away and, when he entered the office, Valencia was
sweating with his eyes bulging. Pryor testified that Valencia
described the incident much the same way Valencia did on the
witness stand. Shortly after Valencia got to his office, Gauthier
arrived. Pryor testified that he told Gauthier it was not appro-
priate to ask Valencia to “go outside,” that this could be viewed
as a threat. Pryor recalled that Gauthier did not deny saying
this but he did deny intending it as a threat. Pryor also recalled
that Gauthier did not deny “shouldering” Valencia. Pryor also
described Gauthier as agitated, pacing, unable to sit down, roll-
ing his eyes, and making facial expressions. However, despite
the presence of these two apparently agitated and hostile indi-
viduals in his office and despite his testimony that he did not
“feel safe,” Pryor did not feel the need to call security. Pryor
also testified that, after Gauthier left his office, Valencia told
him that he could not work there anymore, giving Pryor his
keys and threatening to quit. Pryor testified that although he
had the authority to suspend Gauthier on the spot he did not do
this. Instead, he discussed the situation with Vice President
Silverman, his boss, admittedly because of Gauthier’s active
role in the union campaign and the pending election. After
consulting with Silverman, Pryor suspended Gauthier without
pay, which he conceded was contrary to policy. When he
learned he had made a mistake, he called Gauthier and told him
that he would be paid during the investigation.
According to Pryor, he prepared a written report immediately
after the incident, summarizing events leading up to the suspen-
sion. In his written report, Pryor describes the meetings with
Gauthier on March 26 and 27, which preceded the incident with
Valencia, in which Pryor criticized Gauthier’s work perform-
ance. The report refers to Gauthier “doing personal work on
company time.” Pryor reluctantly admitted that was a reference
to Gauthier’s union activity. In the report, when he described
the meeting with Valencia and Gauthier in his office after the
incident, Pryor wrote that he told Gauthier “that the whole issue
boiled down to one thing, that he (Farid) was not doing his
job.”
Pryor testified that he did conduct an investigation after
Gauthier was suspended. According to Pryor, he spoke to three
witnesses, including Smikle. Pryor denied that Smikle ap-
proached him on her own to give a statement. Pryor recalled
that one of the witnesses claimed to have seen nothing, Smikle
claimed that she didn’t see anything bad and the third, the nurse
supervisor identified by Gauthier, said she did not see Gauthier
until after the incident. Pryor did not recall canceling meetings
with Gauthier before the meeting on April 9. Pryor claimed
that he could not recall everything that was said during that
meeting but he did recall that Gauthier reminded him of a con-
versation they had the day before where Gauthier told Pryor
that he and Valencia would never be able to get along. Pryor
also recalled that Gauthier downplayed the incident, denying
that his invitation to Valencia to “go outside” was a threat.
Pryor testified that after conducting the investigation he met
with Magid and Silverman and made the decision to terminate
Gauthier. Pryor testified further that he fired Gauthier for two
reasons, the incident with Valencia, and the continuing failure
of Gauthier to perform his job. While acknowledging that he
made the decision the day before the election, Pryor denied that
the decision was rushed. However, the “Employee Change of
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1107
Status” form completed by the Respondent’s human resources
office to effectuate the termination on April 10 has the word
“RUSH” stamped on top.
The Respondent offered into evidence several warning no-
tices Gauthier had received during his employment as proof of
his poor performance as a “supervisor” or shift leader. The first
of these is the March 2001 warning previously referred to that
Gauthier received when he allowed employees to work over-
time to complete an assignment without authorization. The
documentation of a “follow-up meeting” held on June 20, 2001,
signed by former Supervisor Jeff Long indicates that Gauthier’s
performance had improved and that no additional followup or
action was needed. Also in evidence is a June 18, 2001 “sec-
ond warning,” signed by former Supervisor Long and former
Director Castrillon, for “failure to complete tasks in a timely
manner and failure to communicate with supervision of tasks.”
This warning relates to incidents that occurred between May 31
and June 12, 2001. Although the warning notice provides for a
followup meeting to be held on September 18, 2001, there is no
evidence in the record that any such meeting occurred. The
next warning, issued in December 2001 by Castrillon, is the
one that Gauthier testified was issued after his supervisors be-
gan finding fault with everything he did after he became an
open union supporter. As described above, Gauthier contested
each incident cited in this warning and sought to meet with
Silverman about it. Although this warning also called for a
follow-up meeting in thirty days, none was held and Castrillon
left soon thereafter to be replaced by Pryor. Although Pryor
claimed in his testimony to have had problems with Gauthier
performing his assigned duties almost from the beginning, he
had not documented any of this before the incident on March
27. He acknowledged in his testimony that Gauthier often re-
sponded that he had been unable to complete certain assign-
ments because of a lack of staff.
The General Counsel alleges, in the complaint, that
Gauthier’s March 27 suspension and April 10 termination were
discriminatorily motivated in violation of Section 8(a)(3). The
Respondent contends that, even if the General Counsel could
satisfy his prima facie burden, the evidence establishes that the
Respondent would have taken then same action even in the
absence of union activity. As previously noted, the record
clearly establishes knowledge of, and animus toward Gauthier’s
activities in support of the Union. This by itself is not enough
to make out a prima facie case of unlawful motivation. Be-
cause there is no direct evidence of an unlawful motivation, the
General Counsel must rely on circumstantial evidence to satisfy
this element of its case. The timing of Gauthier’s suspension,
soon after the Respondent unlawfully created the impression
that his activities were under surveillance and unlawfully co-
erced him to distribute its campaign propaganda, and after he
had expressed his objection to being used by the Respondent in
this fashion, might suggest a discriminatory motive. However,
the suspension also came on the heels of Gauthier’s involve-
ment in an apparently threatening confrontation with his super-
visor. Thus, timing does not support the General Counsel’s
case with respect to the suspension, unless one were to believe
that the incident between Valencia and Gauthier was orches-
trated by the Respondent in order to create a reason to suspend
him. I do not subscribe to this conspiracy theory. The Respon-
dent could not have predicted that Gauthier would have been as
angry as he was after the meeting on March 27.45 Although I
found Pryor’s testimony exaggerated regarding Gauthier’s ap-
pearance when he was in the office with Valencia, I also find
that Pryor’s exercise of caution by suspending Gauthier pend-
ing an investigation was a reasonable exercise of management
discretion in the face of an incident like this. The fact that he
discussed it with Silverman before implementing his decision
because of Gauthier’s status as a union supporter does not
prove a discriminatory motive. It only evidences an extra de-
gree of caution in light of the pending union election. Accord-
ingly, I find that the General Counsel has not met his burden of
proving that the Respondent was motivated by Gauthier’s union
activities when it suspended him, pending an investigation, on
March 27.
Whether the Respondent’s subsequent decision to terminate
Gauthier, after the “investigation,” is a different matter. The
General Counsel contends that the “cursory investigation” con-
ducted by the Respondent during the suspension and the “rush”
decision to fire him the day before the election, and only one
day after the Respondent interviewed Gauthier as part of the
investigation, suggests that the Respondent was motivated by a
desire to rid itself of a key union organizer before the election.
The General Counsel notes that not all the witnesses identified
by Gauthier at the April 9 meeting were interviewed. The tim-
ing of the Respondent’s decision to terminate Gauthier, the day
after meeting with him for the first time during the investiga-
tion, and after Pryor told Gauthier that he still needed to com-
plete the investigation and would get back to him on April 12,
is suspect. Gauthier had been out of work for almost 2 weeks
before Pryor even met with him. The Respondent has not ade-
quately explained why Pryor rushed to complete the investiga-
tion one day later. In considering the Respondent’s motive for
converting the suspension to a termination, I also note that the
witnesses that Pryor did interview did not provide any evidence
that was more damaging to Gauthier’s case. One witness
claimed he did not hear what Gauthier said, another said
Gauthier was not doing anything wrong and the third wasn’t
even in the area. Moreover, instead of focusing on the incident
which led to the suspension, Pryor decided he needed to boot-
strap his decision by advancing additional reasons for the ter-
mination, i.e., Gauthier’s alleged inadequacies as a shift leader.
In doing so, he relied on discipline that was remote in time to
the incident in question. This suggests that the Respondent,
and in particular, Pryor, did not believe the incident with Va-
lencia by itself warranted termination. Considering these fac-
tors, I am forced to conclude that the General Counsel has met
his burden of proving that the Respondent was motivated by
Gauthier’s union activities, at least in part, when it converted
his suspension to a termination.

45 Although there may be some dispute as to exactly who brushed
whom in the hallway, there is no dispute that Gauthier was agitated and
hostile toward Valencia that afternoon. He admitted as much, he ex-
pressed these feelings to Brooks, suggesting that he and Valencia settle
things “man to man,” and his witness, Smikle, recalled seeing him
pacing the hallway, apparently upset.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1108
Although the Respondent may have been justified, in the
heat of the moment, in suspending Gauthier, the evidence it
proffered is insufficient to establish that termination would
have occurred following the investigation of the incident.
Gauthier’s record showed no other incidents of similar hostile
or threatening conduct. His “altercation” with Valencia, while
ill-advised, was not threatening. Valencia himself testified that
he remained calm throughout and was not threatened by
Gauthier. Moreover, Valencia was not blameless in the dis-
pute, but appeared to provoke Gauthier with his taunt, “you got
something to say to me?” I also credit Gauthier that the two
men bumped shoulders, rather than Valencia’s claim that only
Gauthier shouldered him. It is apparent that it wasn’t only
Gauthier who had issues with Valencia. Valencia was also
unhappy with “rumors” Gauthier was allegedly spreading about
him. It is clear that the passage of time since the suspension
would have allowed the emotions of both men to cool so that a
return to work would not have posed any risk to Valencia or
other employees.
The Respondent’s actions supports this conclusion. If the
Respondent felt the incident alone warranted discharge, it
would not have needed to add on other reasons to bolster its
case, particularly where the additional reasons are a weak basis
for action. Assuming I found Pryor’s testimony that he repeat-
edly talked to Gauthier about his performance issues credible,
which I do not, there is no evidence that such issues had ever
led to termination of another employee under similar circum-
stances. Moreover, I credit Gauthier’s testimony that any fail-
ure to complete a task was due to a lack of staff rather than any
shortcomings on his part as a shift leader. In this regard, be-
cause Gauthier was not a true supervisor and had no real au-
thority to order his staff to do what it would take to complete
the assignments, by working overtime for example, he was not
in a position to accomplish what the Respondent was asking
him to do. Even with regards to the incident on March 26 when
another employee failed to properly clean the dining room car-
pet, Gauthier himself reported this to Pryor. There was not
much more he could do because he had no authority to take
action against the employee whose improper cleaning fell short
of what was required and he could not direct another employee
to work overtime to correct the error. I thus conclude that the
Respondent has not met its burden under Wright Line of estab-
lishing that it would have terminated Gauthier on April 10 in
the absence of union activity, and in particular, the union elec-
tion scheduled for the next day.
4. Carmen Dyer
The Respondent hired Carmen Dyer as a 24-hour CNA float
on March 26, 2001. In July 2001, Dyer requested and was
granted a full-time, 40-hour position. As a float, her shifts and
work assignments varied, depending on the needs of the Re-
spondent. According to Dyer, when she reported to work, she
would go to the nursing office in the Bennett building and re-
ceive her assignment for the shift from either the scheduler or,
after the scheduler was terminated, Linda DiGangi, the Re-
spondent’s assistant director of nurses. Once she received her
assignment, Dyer would report to the unit where she would
punch in. Depending on which unit she was assigned, it could
take her from 5 to 12 minutes to walk to the unit. Because she
worked on different shifts and units, Dyer had no one supervi-
sor to whom she reported. Her annual performance evaluation,
received on March 27, was generally favorable with respect to
her nursing skills and treatment of the residents but did note
that she had a problem with attendance and tardiness. Dyer, in
setting her goals for the future as part of this evaluation, ac-
knowledged her need to “be on time.” The supervisor who
evaluated Dyer, Debbie Straubel, did not recommend a raise at
that time. Instead, she recommended reevaluating Dyer in 3
months, “pending improvement of attendance and punctuality.”
The Respondent fired Dyer before she could be reevaluated.
Dyer had previously been an active member of a different
local of the Union while working as a CNA in New York City.
She became involved in the Union’s efforts to organize the
Respondent’s employees early in the campaign, by signing a
card on September 28, 2001. Dyer signed the card, using her
maiden name, Carmen Morgan. She testified that she did this
out of fear of being fired if the Respondent knew she signed a
card. Other than signing a card, Dyer did not engage in any
other activity in support of the Union until February and March,
when she attended a couple union meetings, one held at the
commuter lot down the road from the Respondent’s facility and
another at a union office in Bridgeport, Connecticut.
As noted above, Dyer spoke up at one of the meetings con-
ducted by the Respondent’s chairman, Glickman, on April 4,
asking out loud if Glickman thought the employees were stupid
because he wouldn’t let them ask questions at the meeting.
After a brief exchange with Glickman, Dyer walked out of the
meeting.46 Dyer testified that the next day, while working on
Bennett 2, Nursing Supervisor Laidlaw asked to speak to her.
Dyer then accompanied Laidlaw into the breakroom where,
according to Dyer, Laidlaw interrogated her by asking if she
had ever been a member of a union and what she knew about
1199. Dyer told Laidlaw that she had been an active member
of 1199 in New York but she didn’t know much about the Un-
ion in Connecticut. Laidlaw then asked if Dyer had attended
any of the meetings they were having. When Dyer told Laid-
law she had not, Laidlaw asked why. Dyer said she did not
attend the meetings because they didn’t have anything to do
with the residents, so she didn’t see the point of going to the
meetings. Laidlaw told Dyer that the Respondent’s president,
Magid, was asking her to attend the meetings that the Respon-
dent had arranged for the employees with the outside labor
consultants. Laidlaw also told Dyer that Magid did not want
her to vote for the Union. Laidlaw ended this conversation by
telling Dyer to think about her family and her job and to think
about the residents at the Jewish Home. When Dyer replied
that she was thinking about them, but that she also had to think
about herself, Laidlaw said, “I’m begging you again to think
about the residents and what side you’re going to go.” Dyer
told Laidlaw that she was not going to tell Laidlaw how she
was going to vote and Laidlaw walked away.
Laidlaw testified for the Respondent about this conversation.
She corroborated Dyer’s testimony that it was Laidlaw who

46 Glickman did not specifically deny Dyer’s testimony regarding the
meeting she attended.
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1109
initiated the conversation by approaching Dyer while she was
in the solarium and that she and Dyer then went into the break
room to have their discussion. According to Laidlaw, she ap-
proached Dyer with one of the flyers that had been handed out
to ask her if she had any questions about it. Laidlaw testified
that this was her practice during the campaign. Even though
Dyer told Laidlaw that she didn’t have any questions, Laidlaw
continued the conversation, asking Dyer if she understood the
process. According to Laidlaw, the flyer she was addressing
dealt with contract negotiations and benefits and she explained
to Dyer how benefits were negotiable. Laidlaw recalled that
Dyer told her she was very happy at the home, hoped to work
there until retirement, and that she did not think the Union was
necessary. Laidlaw denied asking Dyer how she was going to
vote and denied telling Dyer to think about her family and her
job when voting. According to Laidlaw, she knew better than
to say such a thing because of the training the Respondent had
provided. Laidlaw did recall telling Dyer that she should make
up her own mind when voting and should not vote a certain
way because someone told her to. Laidlaw also recalled Dyer
telling her that she did not like going to the Respondent’s meet-
ings because there were too many of them and they were un-
pleasant. According to Laidlaw, this was the only conversation
she had with Dyer during the campaign.
The complaint alleges, at paragraphs 8(e) and (h), that Laid-
law unlawfully interrogated Dyer and threatened her with loss
of her job and benefits during this conversation. Resolution of
this allegation turns exclusively on credibility. Because there is
no dispute that Laidlaw approached Dyer and initiated a private
conversation with her in order to convey the Respondent’s mes-
sage as part of the campaign, the only question is whether
Dyer’s or Laidlaw’s version of the conversation is true. I have
previously noted my concerns about Laidlaw’s credibility.
Dyer, who appeared to have difficulty recalling the events,
requiring the assistance of leading questions from the General
Counsel, was not any more impressive as a witness. On bal-
ance, I have decided to credit Dyer’s version of this conversa-
tion because her description of it is consistent with Laidlaw’s
strong support for the Respondent’s position and her admitted
desire to convince the employees of the need to defeat the Un-
ion. It is highly likely that she would have sought out Dyer,
whose union support had been kept hidden, to attempt to gauge
whether she was a union or company voter, and to urge her to
seriously consider her vote and the consequences of a vote for
the Union. Laidlaw acknowledged telling Dyer how her bene-
fits would become “negotiable” if the Union won the election.
I do not find it hard to believe that she would have gone further
and pleaded with Dyer to vote no, casting the choice as one
affecting the future of her job, her family, and the fate of the
residents. Having credited Dyer, I find that her questioning of
Dyer as to her previous experience with and knowledge of the
Union amounted to unlawful interrogation under the test ap-
plied by the Board to such allegations. Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985). See also Westwood Health
Care Center, 330 NLRB 935, 939–940 (2000). I further find
that Laidlaw’s statement that Dyer should think about her fam-
ily, her job, and the residents was an implied threat of job loss
if she voted in favor of union representation. St. Luke’s Hospi-
tal, 258 NLRB 321, 322 (1981). Accordingly, I find that the
Respondent has violated Section 8(a)(1) of the Act, as alleged
in the complaint, through Laidlaw’s conversation with Dyer.
Dyer testified further that, the next day, April 6, Magid ap-
proached her while she was in a patient’s room. Dyer was
working over on second shift at the time to help out due to short
staffing. Another CNA who was in the room assisting the other
resident remained in the room while Dyer went out in the hall-
way to speak to Magid. Dyer testified that, after reminding her
that the election was set for the following Thursday, Magid told
her to “think about your family, your job and the residents.”
When Dyer asked Magid, “[W]hat about my job?,” Magid re-
plied, “[Y]ou know, if the Union wins, you can get fired.”
Dyer then asked why would she get fired and Magid responded
that the home couldn’t afford to have the union. Magid urged
Dyer to really think about what side she was going to be on.
Dyer responded in the same manner she responded to Laidlaw,
that her decision in the election was a personal decision and she
was not going to disclose how she would vote. At the end of
the conversation, Magid again told her to try to think about her
job.
Magid testified for the Respondent that he could not recall
having any conversation with Dyer, either in a resident’s room
or outside. Although Magid recognized Dyer’s name, he could
not recall what she looked like. Magid acknowledged that he
did have conversations with employees as he walked through
the home before the election, trying to convey the Respondent’s
message to as many employees as he could and generally mak-
ing himself available to answer any questions they had. When
pressed on cross-examination, Magid conceded that he was not
denying that he spoke to Dyer, he just could not recall who she
was. On direct examination by the Respondent’s counsel,
Magid denied, in response to leading questions, making the
statements attributed to him by Dyer.
The complaint alleges, at paragraph 12(d), that Magid
unlawfully interrogated Dyer during this conversation and, at
paragraph 12(e), that his statements threatened Dyer with job
loss if she voted for the Union. As there were no other wit-
nesses to this conversation, resolution of this issue turns exclu-
sively on credibility. Although Magid denied making the spe-
cific statements attributed to him by Dyer, his denial was not
based on any specific recollection of such a conversation. In
fact, because Magid could not recall what Dyer looked like, he
acknowledged the inability to recall whether he even had a
conversation with Dyer. At the same time, Magid admitted that
he had one on one and group conversations with many employ-
ees before the election as part of his effort to convince them
that a union was not needed. I credit Dyer’s testimony that she
had a conversation with Magid because she was able to recall it
with sufficient detail to render her testimony believable in light
of Magid’s admitted practice of seeking out employees to talk
to them about the election. While I believe Dyer’s testimony
that she had a union-related conversation with Magid shortly
before her termination, I find it hard to believe that he made the
statements she claimed. Her testimony regarding this conversa-
tion is almost identical to what she recalled that Laidlaw said to
her, i.e., to think about her job, her family, and the residents
when she cast her vote. Although Magid and Laidlaw may
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1110
have had the same theme, it is highly improbable that they
would have used the same words to convey that theme. I find it
more likely that Dyer was confusing these two conversations,
which took place a day apart. I also find it implausible that
Magid, the Respondent’s president, would have directly threat-
ened Dyer that she could be fired if the Union won. I find it
more likely that if the subject of job loss came up it would have
been in the context of the economic consequences of union
demands at bargaining, which was the theme of Magid’s and
Glickman’s speeches to the employees. Although such predic-
tions may be unlawful, depending on the language and phrasing
employed, it is impossible to determine whether Magid’s
statements to Dyer crossed the line between the permissible and
impermissible because she was unable to recall with any detail
what Magid actually said to her. Rather, it appears that Dyer
was simply giving her interpretation of what Magid said, which
is insufficient to support an unfair labor practice finding. Ac-
cordingly, I shall recommend dismissal of the allegations that
Respondent interrogated and threatened Dyer through state-
ments made by Magid.
The circumstances leading up to Dyer’s termination began
on the afternoon of April 9 when Dyer reported to work for the
3–11 p.m. shift not feeling very well. Dyer had been off work
the day before and had been ill. Because Dyer does not drive,
her son and his girlfriend drove her to work, as they usually
did. Dyer testified that she arrived at about 2:45 p.m., went to
the nursing office and punched in and asked to speak to Di-
Gangi. DiGangi was speaking to someone else so she told
Dyer to wait. After about 10 minutes, when DiGangi was free,
Dyer told DiGangi that she was not feeling well and asked, if
the Respondent was not short-staffed that night, could she go
home? DiGangi told Dyer she could. According to Dyer, at
that point she clocked out and then went to the receptionist in
the lobby and asked her to call her son for her. Although Dyer
could not recall the specific time she clocked out, she was cer-
tain that she did so before going to the receptionist. After the
receptionist placed the call to her son, Dyer told him to come
pick her up. Dyer testified that, after speaking to her son, she
walked down the hill to the main entrance to wait for her son
and his girlfriend to return.47 April 9 was the first day of the
competing demonstrations by prounion and pro-Respondent
employees at the bottom of the hill. Although Dyer saw this
going on, she did not participate. Instead, she sat on the grass
under a tree, a little way up the driveway. After about 15–20
minutes, Dyer’s son and his girlfriend returned. Dyer got in the
car and his son’s girlfriend, who was driving, continued up the
hill, into the main parking lot to turn around before exiting the
facility. Dyer denied that the car stopped, or that she got out of
the car, in the parking lot.
Dyer’s son and his fiancé both testified, as witnesses for the
General Counsel and, essentially, corroborated Dyer’s testi-
mony. Their recollections, however, were not identical. For
example, although Dyer’s son recalled that the car turned
around in the parking lot on the right, his fiancé recalled turn-
ing at the top of the hill without entering either parking lot.

47 Dyer was able to reach her son on his cell phone while he was still
enroute home.
They also had different recollections as to which side of the
driveway Dyer was standing when they arrived and which side
of the car she entered. They agreed, however, that Dyer did not
get out of the car when they got to the top of the driveway and
did not reenter the facility.
Dyer testified further that she was scheduled to work a dou-
ble shift the next day, April 10, starting at 7 a.m. Because she
was still not feeling well, Dyer called the home, sometime be-
tween 4 and 5:30 a.m., and spoke to the supervisor on duty, a
man she knew only by his first name, Al. According to Dyer,
she told Al that she was still not feeling well and that she would
not be coming to work. Al told her that he would write it
down, but to make sure she called Linda DiGangi. Dyer testi-
fied that she planned to call DiGangi around noon, in time to
call out for the evening shift, but before she could do so, the
mailman delivered an envelope from the Respondent containing
a pink slip and final paycheck. According to Dyer, the pink
slip stated that she was terminated for violating company policy
and lying to her supervisor.48 Dyer tried calling DiGangi to
find out why she had been terminated but was told that DiGangi
was in a meeting. When she called later, Dyer was told that
DiGangi was still unavailable so she spoke to Jacqueline Solo-
mon from human resources, the person who initially hired her.
Dyer told Solomon about the pink slip and paycheck she had
received and she asked Solomon what policy she had violated.
Solomon told Dyer that DiGangi said that three people told
DiGangi that Dyer, after claiming to be sick, had left the build-
ing and returned later to punch out and that Dyer had lied to her
supervisor. Dyer testified that she told Solomon that she didn’t
know what the company policy was, but that she did not do
what she had been accused of. She asked Solomon who were
the three people who said she did. Solomon only identified two
of the three, i.e., Laidlaw and an employee named Joe who
worked as a CNA on K-3. According to Dyer, Solomon did not
identify the third person. When Dyer asked who was the third
person, Solomon told her to call DiGangi later.49 Dyer testified
that she called DiGangi later the same day and asked her what
happened. DiGangi told her essentially the same thing that
Solomon had, i.e. that three people, only two of whom she
identified, had reported that Dyer had not clocked out when she
left sick. When Dyer attempted to dispute the accusation, Di-
Gangi said three people can’t lie.
Although Dyer recalled that DiGangi told her she would
send her a letter explaining why she had been terminated, she
testified that she never received such a letter. Dyer specifically
denied seeing the letter dated April 10, which is in evidence
and which reads as follows:
This is to confirm your termination of employment effective
immediately as discussed this afternoon. As we mentioned,
we have reviewed your entire personnel record and the events
of yesterday and this morning. Based upon these facts, you
have been terminated for the following reasons:
• Stealing company time by failing to punch out;
• Lying to your supervisor;

48 The pink slip is not in evidence.
49 Solomon did not testify in this proceeding.
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1111
• Misrepresenting the reasons for leaving your duties;
• Failure to notify your supervisor of your absence this
morning;
• Poor overall work record including a final warning for
unsafe patient handling, prior discipline for excessive absen-
teeism and the unsatisfactory performance review dated
March 27, 2002.
Dyer acknowledged on cross-examination that she had a dis-
cussion with DiGangi in early April about medical problems
she was having that affected her attendance. She also acknowl-
edged that the performance evaluation she received shortly
before her termination was not as good as her first evaluation
because of attendance and tardiness problems she was having.
However, Dyer claimed that the “tardiness” was caused by
delays in getting her assignment in the nursing office, which
made her late getting to the unit. Dyer explained that she was
not supposed to punch in until she got to the unit.50 Dyer de-
nied that she ever received a written warning, but acknowl-
edged “reading” one that had something to do with her use of
some equipment.51 Dyer also denied getting a written warning
specifically for attendance. Dyer adhered to this denial even
after being shown an October 18, 2001 warning notice, bearing
her signature, for excessive tardiness. Dyer’s failure to recog-
nize warning notices she signed was similar to her inability to
recall other documents bearing her signature in which she ac-
knowledged receipt of the Respondent’s handbook and other
orientation documents.
DiGangi, who was the Respondent’s acting director of nurs-
ing services when she testified and had been the assistant direc-
tor during the campaign, testified that she made the decision to
fire Dyer. DiGangi characterized Dyer as a “marginal em-
ployee,” testifying that she had a “conversation” with Dyer
about her attendance and entire record sometime before the
incident in question. DiGangi claimed that, either during this
conversation, or at another time, within 3 weeks of the vote,
Dyer volunteered that she was not in favor of the Union. When
questioned on cross-examination by the Respondent’s counsel,
Dyer had denied having such a conversation with DiGangi.
With respect to the events leading to Dyer’s termination,
DiGangi recalled Dyer requesting to go home, at the start of the
shift on April 9, because she was sick. Although DiGangi
claimed she doubted that Dyer was really sick, she granted the
request after advising Dyer that this could lead to termination
because she was on final warning. DiGangi claimed that Dyer
was very dramatic, insisting that she was very ill and needed to
leave to see her doctor. About an hour later, according to Di-
Gangi, she was in the front office when someone complained
about Dyer being at the bottom of the hill, grabbing papers out

50 This testimony appears to be inconsistent with Dyer’s testimony
that she punched in on April 9 before speaking to DiGangi in the nurs-
ing office.
51 Dyer identified a warning dated November 16, 2001, as the warn-
ing she “read.” This warning, designated a “final warning” was signed
by Dyer and related to an incident in which Dyer allegedly used a
Hoyer lift improperly, potentially causing injury to a resident. The
warning notice indicates that Dyer was sent home pending an investiga-
tion.
of peoples’ cars. On cross-examination, DiGangi identified
Silverman as the source of this report based on a complaint
Silverman received from a male employee.52 DiGangi testified
further that when she returned to her office Laidlaw told her
that Dyer had just punched out.53 According to DiGangi, this
was about 1 hour after Dyer had asked to go home sick.
DiGangi testified that she was going to fire Dyer when she
reported for work the next day but Dyer did not come to work.
DiGangi called and left Dyer a message to call her. DiGangi
testified on direct that she finally was able to speak to Dyer that
afternoon or the next morning and that, when she told Dyer that
she was terminated, Dyer became very angry and threatened to
get a lawyer. On cross-examination, DiGangi acknowledged
that the telephone conversation with Dyer occurred on the
morning of April 10, with Solomon in the room. After her
conversation with Dyer, DiGangi prepared the April 10 letter
described above. DiGangi explained that Dyer’s alleged failure
to notify her supervisor that she would be absent on April 10,
cited in the letter, was based on the supervisor, Al, telling her
that Dyer had not called out. DiGangi acknowledged that, in
her conversation with Dyer, Dyer insisted that she had called
and informed Al that she was too ill to work.
On cross-examination, DiGangi admitted that she made the
decision to fire Dyer without giving Dyer the opportunity to
answer the charges against her. DiGangi acknowledged that
Dyer denied during their telephone conversation that she had
punched out an hour after being allowed to leave work. Ac-
cording to DiGangi, she did not accept this denial because she
had already verified with the punch detail list from the Respon-
dent’s timekeeping system that Dyer had in fact punched out an
hour later. Although DiGangi testified that she relied on the
punch report to establish that Dyer “stole time” from the Re-
spondent, that this was the primary reason she decided to fire
Dyer, and that Dyer would probably not have been fired on
April 10 if she had not stolen time, the Respondent did not offer
the punch report in evidence when DiGangi testified on direct.
Nor had the Respondent turned it over to the General Counsel
in response to the subpoena request for, inter alia, all docu-
ments relied upon in terminating Dyer. Only at the very end of
DiGangi’s testimony, on re-direct examination, did the Re-
spondent produce this crucial piece of evidence.54
In order to establish that the Respondent violated Section
8(a)(3) when it terminated Dyer, the General Counsel must
show that Dyer was engaged in union activity, that the Respon-
dent was aware of this, and that animus against such activity
was a motivating factor in the termination decision. If such a
showing is made, a violation will be found unless the Respon-
dent proves that the termination would have occurred even
absent Dyer’s union activity. Wright Line, supra. Dyer’s pro-

52 Silverman, who testified for the Respondent, was not asked to cor-
roborate this testimony.
53 Laidlaw did not testify regarding these events.
54 Counsel for the General Counsel confirmed the representations of
Respondent’s counsel that he did show the punch report to the General
Counsel earlier in the hearing. However, there is no dispute that the
document was not furnished in response to the subpoena and was not
offered as an exhibit until rather late in DiGangi’s testimony. The
reason for this is not entirely clear to me.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1112
tected activity was limited to signing a card and attending a
couple offsite union meetings. There is no evidence that the
Respondent was aware of this before Dyer’s termination. Al-
though Dyer’s testimony, that she spoke up during Glickman’s
meeting with employees about a week before her termination,
is uncontradicted, her challenge to his directive that employees
not ask questions did not necessarily reveal her support for the
Union. I may, however, infer that the Respondent would be-
lieve that Dyer was a union supporter based on her conduct at
this meeting. Such an inference is supported by the fact that
both the nursing supervisor and the Respondent’s president
sought out Dyer for one-on-one conversations within a day or
two of this meeting. Although I found that Laidlaw engaged in
unlawful conduct during her conversation with Dyer, it is un-
disputed that Dyer declined to reveal her support for the Union
even when Laidlaw invited her to do so. Dyer was consistent in
testifying that at no point, in these conversations or others, did
she ever reveal her union sympathies to the Respondent. In
fact, Dyer signed her union authorization card under a different
name to ensure that the Respondent would not find out that she
was a union supporter. Under these circumstances, I cannot
find that the General Counsel has met his burden of proving
knowledge, an essential element of his case.
The General Counsel would argue that knowledge is estab-
lished by circumstantial evidence, such as timing, departure
from past practice and lack of investigation of misconduct. I
disagree. The timing of Dyer’s termination has more to do with
the alleged misconduct than with the upcoming election. Di-
Gangi made the decision to terminate Dyer after confirming
Laidlaw’s report that Dyer had punched out an hour after she
was granted permission to leave work. Under these circum-
stances, it cannot be said with any degree of certainty that Di-
Gangi was motivated by the upcoming election rather than the
immediate issue regarding an alleged abuse of time in making
the decision to terminate Dyer. Although DiGangi admitted
making her decision before giving Dyer an opportunity to re-
spond to the accusation, and conceded that she would normally
have provided such an opportunity, DiGangi also testified,
believably, that the confirmation provided by the punch report
was enough to convince her that Dyer had indeed “stolen time.”
Although I cannot condone the Respondent’s having withheld
this critical piece of evidence from the General Counsel until
late in the proceedings, I cannot reject the evidence, which
clearly shows that Dyer punched out almost an hour later than
she claimed she did. From the undisputed testimony of the
Respondent’s timekeeper, it is clear that the time on the punch
report could not have been altered after the fact without the
computer indicating the fact that the time was changed. It is
also clear from the evidence, including Dyer’s employment
record, that DiGangi had reason to believe that Dyer was not
being truthful when she asked to leave work. Dyer had already
received discipline for her attendance and tardiness and, in her
recent evaluation, had any recommendation regarding a raise
deferred pending improvement of attendance and punctuality.
Considering Dyer’s very limited union activity and the Re-
spondent’s lack of knowledge of that activity, I cannot find that
the General Counsel has met his burden of proving that pro-
tected activity was a motivating factor in the Respondent’s
termination of Dyer. Accordingly, I shall recommend dismissal
of this allegation of the complaint.
5. Ebonie Stewart
Stewart was employed by the Respondent as a dietary aide
from October 1996 until her termination on July 1, almost 3
months after the election. For the last couple years, she had
worked the first shift, from 6:30 a.m. to 3 p.m. Timothy Horan
was the director of food services and her supervisors were
Donna Erickson or Julie Wargo. Although hired as a part-time
16-hour employee, Stewart generally worked a full-time sched-
ule. Erickson completed her last evaluation, on October 1,
2001, rating Stewart as a satisfactory employee. Stewart re-
ceived a 3-percent merit increase as a result of this evaluation.
Erickson noted on the evaluation that Stewart’s attitude, accu-
racy and attendance had improved.55
Stewart became involved in the union effort early in the
campaign. She signed a card given to her by Tawana Williams
on September 27, 2001, and attended meetings away from the
facility on a regular basis beginning in November. Stewart
became one of the key union organizers in the Home and was
very visible in her support of the Union. She handed out union
literature on her breaks in the kitchen as well as at the bottom
of the hill when off-duty. As previously described, she was
with Gauthier and Williams when Magid, Silverman, and Pryor
evicted them from the cafeteria on February 15, after they were
found to be distributing union literature to employees while off-
duty. Stewart was in the group of employees who accompanied
union organizer Paul Fortier on March 1 when the Union de-
manded recognition. Stewart was also one of a group of em-
ployees pictured in a leaflet widely distributed by the Union
before the election headlined, “What Does Our Future Hold?”
and she served as the union observer at the April 11 election.
Stewart also testified, without contradiction, that she spoke up
at one of the meetings that the Respondent arranged with the
consultants from direct labor training, questioning his affilia-
tion. Her questions prompted the consultant to ask, “What are
you, their spokesperson?” After this incident, Stewart was no
longer invited to these meetings.
Stewart testified that on January 16 she and fellow dietary
employee Melissa Quarles went to see Vice President
Silverman about concerns they had. According to Stewart, they
were taking up Silverman on his invitation to see him if they
had any problems or complaints. One of Stewart’s concerns
involved discipline she received for allegedly violating the
Respondent’s funeral leave policy by taking time off to attend
the funeral of her uncle. After discussing the Respondent’s
policy, Silverman volunteered that he had spoken to the Re-
spondent’s attorneys who told him, after looking at her file, that
the Respondent had enough to get rid of her a long time ago.
Silverman did not rebut this testimony.
On June 28, Stewart was assigned to make toast for the
morning breakfast trays. Erickson was the supervisor on duty

55 Stewart had received a couple written warnings and a suspension
before this evaluation for attendance and attitude problems. In addi-
tion, her 2001 evaluation had been held up for 2 months because of
these issues. The October 2001 evaluation, noting improvement, su-
percedes this earlier disciplinary record.
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1113
at the time but she was in the dining room. According to Stew-
art, Director Horan walked by and then, without speaking di-
rectly to her, began complaining loudly in front of other em-
ployees that the toast was too light. Stewart observed Horan go
into the dining room and heard him complaining, loudly, to
Erickson about the toast. Erickson and Horan then walked back
into the kitchen and, while standing behind her, Horan contin-
ued complaining. Stewart recalled that Horan was saying
things like, “How long has she worked her, doesn’t she know
how to make toast, she should know better, etc.” Horan then
instructed Erickson to talk to Stewart about the toast. Accord-
ing to Stewart, Erickson then approached her and said the toast
needed to be darker. In response, Stewart told Horan, who was
still standing behind her, that he didn’t need to go all the way to
the dining room to get Erickson, he could have just told her to
make the bread darker. At that point, according to Stewart,
Horan blew up, saying, “[W]ho the hell do you think you are? I
don’t have to talk to you, I’m the director. If I tell a supervisor
to tell you something, you have no right to come and question
what I say and do.” Horan continued and became more abu-
sive, finally telling Stewart to get out of the building. When
Stewart asked Horan if he was serious, Horan repeated, “[G]et
out of here!” Stewart responded that she would leave because
she “wasn’t going to walk around on eggshells for you or any-
body in here.” As Stewart was leaving, Horan followed her,
continuing to berate her, until she left the building. Stewart
testified that she only raised her voice after Horan began yell-
ing at her. She denied cursing or using profanity toward him.
Stewart testified further that when she reported to work on
June 30, her next scheduled workday, Supervisor Wargo told
her to go home, that she was terminated, or at least suspended.
Wargo advised Stewart to call human resources the following
Monday. On Monday, July 1, Stewart spoke to Solomon, the
Respondent’s human resources director on the telephone.
Solomon told Stewart that she had been terminated and that she
could come to the Home to pick up her paycheck. Stewart went
to the Respondent’s facility and met with Solomon the same
day. According to Stewart, Solomon would not let her give her
version of events, instead telling Stewart that she was fired for
“verbal abuse” and that there was nothing she could do about it.
Solomon told Stewart that the Respondent had already talked to
their lawyers and been told that it was okay to fire her because
it was after the election. When Stewart asked Solomon if she
could have something in writing, explaining why she was fired,
Solomon told her she didn’t have anything yet, to come back in
a few days.56 When Stewart returned to the facility a couple
weeks later and asked for a copy of her personnel file, she
found a written memo, dated June 28, addressed from Horan to
her regarding her termination. Stewart testified that this is the
first and only written notice she saw of her termination.
Horan’s memo describes the toast incident of June 28 differ-
ently than Stewart recalled it. According to the memo, it was
Stewart who became verbally abusive toward him first. Horan
wrote that Stewart’s hostile behavior continued after he in-

56 As previously noted, Solomon was not called as a witness even
though it is undisputed that she was still employed by the Respondent
at the time of the hearing.
structed her to leave. He recites that she said that she was sick
of people talking behind her back and that she “wasn’t walking
on egg shells in this place.” In explaining the reason for termi-
nating Stewart, Horan wrote that she had
a long history of problem behavior and other issues regarding
her work habits such as attendance, tardiness, and a very
negative attitude. She has been on final notice and has been
spoken to on numerous occasions concerning her attitude and
poor work habits.
Because of her past record of poor performance and
her continued aggressive and negative behavior and this
final act of insubordination, I am left no other choice than
to terminate her employment effective immediately. Eb-
ony has been treated fairly and has been adequately coun-
seled and warned in writing concerning her continued un-
acceptable attitude and behavior.
Erickson and Horan were the only witnesses called by the
Respondent regarding this allegation. Erickson testified that
Stewart became “very, very, very angry and hostile” after she
told Stewart that the toast was too light. According to Erick-
son, Stewart “went off” on Director Horan, asking, “[W]hy
couldn’t he come over and tell me himself?” She recalled that
even after Horan told Stewart to leave she continued to be abu-
sive and hostile toward him. Erickson conceded, on cross-
examination, that Stewart was not hostile toward her. Erickson
identified a memo dated June 28 addressed to Solomon as a
report she prepared immediately after the incident. According
to Erickson, the memo was typed by someone in human re-
sources from handwritten notes she no longer had. Erickson
was required to refer to this memo frequently during her testi-
mony to recall the incident. Erickson also demonstrated a ten-
dency to embellish the account of Stewart’s conduct when not
relying on the document. For example, she testified that Stew-
art was “laughing, like everything was a big joke” when she
was speaking in the allegedly abusive manner, a detail left out
of her report. Erickson also claimed, for the first time at the
hearing, that Stewart used profanity in speaking to Horan. In
her memo and on the witness stand, Erickson also claimed that
she had verbally warned Stewart frequently, close in time to
this incident, about her attitude, attendance, and other perform-
ance issues. However, she only cited as evidence of Stewart’s
poor record the warnings that Stewart had received more than a
year before the incident and that had been superceded by the
evaluation Erickson prepared in October 2001, noting im-
provement on these issues. Erickson, who had no part in the
decision to terminate Stewart other than in preparing the memo,
admitted being aware of Stewart’s union activities during the
campaign.
Horan testified that he made the decision to fire Stewart “on
the spot” after the confrontation in the kitchen. Horan, while
corroborating some of Stewart’s testimony regarding how the
incident arose, denied that he ever raised his voice or lost his
temper, even while Stewart was challenging his authority.
Horan also had a tendency to embellish his description of the
event, claiming on the witness stand that Stewart used profan-
ity, which he did not mention in his June 28 written report.
Horan testified further that he based his decision on the incident
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1114
as well as on Stewart’s past performance and “continual behav-
ior patterns that I just couldn’t tolerate anymore.” However,
like Erickson, he was only able to cite the old discipline from
2001 that had been superceded by the October 2001 evaluation.
Although Horan conceded that he was aware of Stewart’s union
activities, he attempted to minimize the extent of it.
The General Counsel offered evidence, acknowledged by
Erickson and Horan, that Stewart was not the first or only em-
ployee in the dietary department to have been involved in such
an outburst. The Respondent’s personnel records show that
Isabel Alves, another dietary aide, had been noted to have “a
hot temper and tends not to follow the directions and tasks
given her by her supervisors” and, on another occasion, was
said to have engaged in “disruptive behavior and creating an
unsafe condition.” Although Horan was admittedly aware of
these incidents, having signed Alves’ warnings, she was never
terminated and was still working for the Respondent at the time
of the hearing. Horan even conceded, on cross-examination,
that Alves’ performance had not improved in spite of the warn-
ings in evidence. Horan admitted that Alves was not known to
be a union supporter. Her sister, Maria Alves, was a shift
leader in the department.
Applying the Board’s Wright Line analysis, I find that the
General Counsel has met his burden of proving that Stewart’s
union activities were a motivating factor in Horan’s decision to
discharge her over the toast incident. I find, initially, that Stew-
art was a more credible witness than either Erickson or Horan.
Although Stewart may have had a tendency to become argu-
mentative on cross-examination, I note that the Respondent
cross-examined her at considerable length. Despite a blistering
cross-examination, the Respondent’s counsel was unable to
shake her testimony, which was consistent throughout. In con-
trast, as previously noted, Horan and Erickson tended to exag-
gerate their testimony and appeared incapable of keeping their
story straight. It is clear from Stewart’s version of the June 28
incident that Horan provoked her and was at least equally abu-
sive and hostile toward her. When the circumstances leading
up to Horan’s “on the spot” decision to terminate a relatively
long-term employee are considered against the background of
her strong union activity, the Respondent’s knowledge and
animosity toward that activity and the lenient treatment Alves
received from the same supervisor for similar behavior, the
discriminatory nature of Horan’s decision becomes apparent.
Rather than being a reasonable reaction to misconduct by a
problem employee, the decision was nothing more than the
Respondent seizing an opportunity to rid itself of one of the
remaining key employees in the Union’s unsuccessful cam-
paign. Further supporting this conclusion is the fact that the
Respondent dredged up old discipline to bolster its asserted
reason for terminating Stewart. The documentary evidence
establishes that whatever attendance or attitudinal problems
Stewart had in 2000–2001 had been corrected by the time of
her evaluation on October 1, 2001. The testimony of Erickson
and Horan that these problems continued until June 2002 is
simply not credible in light of the total absence of objective
evidence to support it. In light of the strong prima facie case
presented by the General Counsel, the Respondent’s evidence is
insufficient to prove that Stewart would have been fired over
the June 28 incident in the absence of union activity. The Re-
spondent offered no evidence that it had terminated any other
employee under similar circumstances and the evidence offered
by the General Counsel proves that in fact it chose lesser forms
of discipline when confronted with similar misconduct by an-
other employee. Accordingly, I find that the Respondent vio-
lated Section 8(a)(1) and (3), as alleged in the complaint, by
terminating Stewart on July 1.
6. Alleged discrimination against the union’s observers
The complaint alleges, at paragraph 23, that the Respondent
violated Section 8(a)(1) and (3) of the Act on April 10 and 11
by denying the Union’s election observers the right to work on
the day of the election while permitting its observers to work
that day. The testimony regarding this allegation is essentially
undisputed. Stewart, Tawana Williams, and Jennifer Mc-
Eachron were the Union’s observers at the April 11 election.
Williams testified that, on April 10, DiGangi, the assistant di-
rector of nurses, told her that she and the other election observ-
ers would have to take a vacation day or personal day in order
to serve as observers. Athena McClennon, who had originally
been scheduled to be an observer, testified to a similar conver-
sation with DiGangi. McClennon chose not to serve as an ob-
server after this conversation. Stewart testified that she was
scheduled off on April 11, even though this would not have
been a regular day off for her. In contrast, the Respondent’s
records show that all of its observers, Catherine Stewart, Ruth
Rodriguez, Frederica Plummer, and Shantake Johnson, were on
the clock on the day of the election. In fact, all except Johnson
appeared at the election in uniform.
In defense of this allegation, the Respondent offered the tes-
timony of DiGangi who claimed that all of the observers were
told that they had to take the day off if they were going to serve
as observers. According to DiGangi, it was Vice President
Silverman who directed her to relay this message to the observ-
ers who were employed in the nursing department. When ques-
tioned regarding whom she called and what she said, DiGangi
only recalled speaking to Williams and only recalled generally
conveying the message that observers would have to take time
off to serve at the election. There is no evidence in the record
that any of the Respondent’s observers received this message.
The Board, in Big Three Industrial Gas & Equipment Co.,57
found a violation on almost identical facts. The Board, revers-
ing the trial examiner, held that the employer’s refusal to permit
the union’s observers to work on the day of the election, while
permitting its own observers to work, interfered with the em-
ployees’ exercise of their Section 7 rights in violation of Sec-
tion 8(a)(1) and discriminated against them in regard to their
terms and conditions of employment in violation of Section
8(a)(3). Although the court of appeals denied enforcement to
the Board’s order based on this unfair labor practice finding, it
did so on the ground that the conduct was de minimis and did
not warrant setting aside the election. Because the Board has
never overruled Big Three Industrial, it is controlling precedent
here. Those cases in which the Board has held that it is not
unlawful for an employer to pay its witnesses in an NLRB hear-

57 181 NLRB 1125 (1970), enf. denied 441 F.2d 774 (5th Cir. 1971).
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1115
ing, but not witnesses subpoenaed by a union or the General
Counsel, their lost wages are inapposite. See Electronic Re-
search Co., 190 NLRB 778 (1971) (Electronic Research II).
Cf. Electronic Research Co., 187 NLRB 733 (1971) (Electronic
Research I). The Board has noted the distinction between the
payment of witness fees and an employer’s distinguishing be-
tween its employees in their employment relationship on the
basis of whether they were summoned as witnesses by it or by
the opposition and has found the latter to be unlawful discrimi-
nation because it punishes employees for engaging in activity
protected by the Act. General Electric, 230 NLRB 683, 684–
686 (1977). Accordingly, I find that the Respondent has vio-
lated Section 8(a)(1) and (3) of the Act as alleged in paragraph
23 of the complaint.
D. The Union’s Election Objections
The Union filed timely objections to conduct affecting the
results of the election, most of which parallel the unfair labor
practice allegations of the complaint. I have already found
above that the Respondent committed the following violations
of Section 8(a)(1) of the Act during the critical period between
the filing of the petition on March 1 and the April 11 election:
1. The maintenance of overly broad rules restricting
employees’ protected solicitation and/or distribution ac-
tivities during non-work time or in non-work areas, deny-
ing off-duty employees access to the facility, and prohibit-
ing employees from discussing their wages, benefits or
other terms and conditions of employment or even talking
about the Union while at work (Objections 3 and 6).58
2. Supervisor Laidlaw creating the impression of sur-
veillance on March 5 by observing Tawana Williams get-
ting into a car in the parking lot and calling Williams’ im-
mediate supervisor to question where she was going and
who she was with; and engaging in actual surveillance on
April 5 by pulling Artarene Thompson out of Glickman’s
meeting with employees, followed by the accusation that
Thompson was tape recording the meeting (Objection #1).
3. Supervisor Pryor creating the impression of surveil-
lance on March 27 when he accused Gauthier of engaging
in union activity while on the clock, describing a report he
had received of Gauthier’s activities the night before (Ob-
jection #1).
4. Threatening employees with closure of the facility
and the loss of jobs through posters displayed during
March and April and through Magid’s and Glickman’s
speeches to employees in late March and early April (Ob-
jection #5).
5. By memos and speeches in the period March 29
through April 2, Magid impliedly promised employees
improved terms and conditions of employment if they re-
jected union representation (Objection #13).
6. On March 26 and March 27 when supervisors Va-
lencia and Pryor instructed Gauthier to distribute the Re-

58 I have also found at least one instance of enforcement of these
rules during the critical period, i.e., Supervisor Wargo’s instruction to
Ayala that he could not talk about the Union at work.
spondent’s campaign propaganda to other employees (Ob-
jection #16).
7. Laidlaw’s interrogation of and threats of job loss di-
rected to Dyer on April 5 (Objection #16).
I have also found that the Respondent violated Section
8(a)(3) of the Act, during the critical period, by imposing more
onerous working conditions on and denying a reference to
Ayala, by terminating Gauthier on April 10, and by refusing to
permit the Union’s observers to work on the day of the election
while permitting its observers to work (Objections 7 and 8).
The Board has long held that it will set aside an election
where one party engages in conduct which could have the rea-
sonable effect of destroying the “laboratory conditions” neces-
sary to ensure that employees have the opportunity to make an
uninhibited choice on the question of representation. General
Shoe Corp., 77 NLRB 124, 127 (1948). Conduct may be objec-
tionable even where it does not rise to the level of an unfair
labor practice. Conversely, conduct which violates the Act is, a
fortiori, conduct which interferes with an election unless it is so
de minimis that it is virtually impossible to conclude that the
violation could have affected the results of the election. Air-
stream, Inc., 304 NLRB 151, 152 (1991); Dal-Tex Optical Co.,
137 NLRB 1782, 1786 (1962). The unfair labor practices
found above could hardly be called de minimis. Accordingly, I
shall sustain the Union’s Objections 1, 3, 5—8, 13, and 16. No
evidence was presented in support of Objection 2 and the only
unfair labor practice found consistent with Objection 4, Laid-
law’s solicitation of employees to revoke their authorization
cards in late October 2001, occurred long before the filing of
the petition. I shall recommend that these objections be over-
ruled.59
The Union filed four additional objections which do not par-
allel the complaint but which have been consolidated with the
complaint for hearing. As the objecting party, the Union has
the burden of coming forward with evidence to support these
objections. Daylight GroceryCo. v. NLRB, 678 F.2d 905, 909
(11th Cir. 1982). The Union offered substantial evidence in
support of only two of these objections, which will be discussed
infra. The only evidence offered in support of Objection 10,
alleging that the Respondent or its agents “bribed” employees
to vote against the Union, and Objection 12, alleging that the
Respondent promoted three union supporters into “leadership
positions,” was hearsay, gossip, or conjecture. Because I find
that the Charging Party has not carried its burden as to Objec-
tions 10 and 12, I shall overrule these objections.
Objection 9
In this objection, the Union alleges that the Respondent, on
April 10 and 11, “organized, allowed and paid eligible voters,
at least some of whom were on duty at the time, to picket the
entrance of the facility holding ‘Vote No’ and other signs with

59 The Board has considered pre-petition conduct when ruling on ob-
jections, where such conduct “adds meaning and dimension to related
postpetition conduct.” Dresser Industries, 242 NLRB 74 (1979). Here,
it is unnecessary to consider any unfair labor practices that occurred
before March 1 because there are ample grounds to overturn the elec-
tion based on conduct occurring during the critical period.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1116
various anti-union slogans.” The evidence, some of which has
been described above, establishes that, on April 10, two groups
of employees staged competing rallies at the base of the drive-
way leading into the Respondent’s facility.60 A group of union
supporters, including nonemployees, apparently arrived first
and began handbilling as employees arrived for the second
shift. At about 2:30 p.m., a group of employees, many in uni-
form, came down the hill from the Respondent’s facility and
proceeded to demonstrate on the opposite side of the driveway
from the Union’s supporters. This group of employees carried
signs urging employees to “Vote No” in the election. The par-
ties stipulated that 24 unit employees, all but 2 of whom
worked in the dietary department, participated in the “Vote No”
rally and that the rally lasted at least until 3:15 p.m.61 Of these
24 employees, seven were not scheduled to work, or were
scheduled to start work later;10 employees ended their work
day and punched out approximately 30 minutes early; 5 em-
ployees extended their breaks, by as much as 30 minutes, to
participate in the rally; and 2 employees who were on duty at
the time did not punch out before joining the demonstration.
The testimony of the Respondent’s witnesses reveals that only
two employees who punched out early made a request to do so.
There is no evidence in the record that any of the other employ-
ees on duty sought or were granted permission to leave early or
extend their breaks. The testimony of the witnesses from both
sides clearly shows that the Respondent’s dietary supervisors,
including Director Horan, were aware that employees who were
scheduled to work were participating in the rally.
Melissa Quarles, a dietary aide, testified for the Union that
she observed some of these employees making signs and oth-
erwise preparing for the demonstration in the kitchen before
they punched out. Quarles testified further that after the em-
ployees left to participate in the rally her supervisor, Wargo,
asked her to complete the assignments of two of the employees
who participated in the “Vote No” rally. According to Quarles,
she also observed that a third employee who left early had not
completed his assignment, i.e., sweeping the floors and empty-
ing the garbage. Wargo, who testified for the Respondent,
denied asking Quarles or any other employee to complete the
work assignment of employees who left early that day. Wargo
did testify, as did the other dietary supervisors, that an em-
ployee who desires to leave work early must complete their
assignment before leaving.
The Respondent’s witnesses all admitted that employees
must obtain permission from a supervisor before leaving work
early or extending their break, as the employees did here. As
noted above, Horan recalled only two of the employees asking
him for permission and Wargo, Caplan, and Erickson denied
being asked by any of the other employees for permission. The
Respondent’s witnesses, while testifying that it was not unusual
for employees to leave early or extend their breaks, with per-

60 Although the objection alleges identical conduct occurring on
April 11, the day of the election, almost all of the testimony offered
relates to April 10.
61 Punch detail reports for these employees in evidence show that
those who returned to work after the rally did not punch in until 3:40
p.m. or later.
mission, conceded that they were unaware of any other occa-
sion when so many employees left work early or in the middle
of their shift at the same time.
Although there is no evidence that the Respondent actively
planned or supported the “Vote No” rally, the evidence does
convince me that the Respondent at least gave its tacit approval
to the employees by allowing so many of them to leave work
early or take extended breaks to participate in it. Moreover, the
dietary department employees who participated in the rally
were so open about their activity, making signs in the kitchen
and gathering as a group to leave, that the Respondent was on
notice as to their activities. I credit Quarles’ testimony that
some of these employees who were allowed to leave early had
not even completed their work before leaving for the day, a
departure from the Respondent’s policies and procedures. Al-
though there is no dispute that all but two of the employees
were on their own time when they participated in the rally, it is
also true that Horan and the other supervisors made no effort to
ensure that this was the case. In fact, the two employees who
failed to punch out were paid for their time at the rally and
suffered no discipline for this abuse of company time. I do not
agree with the Respondent that this was an inadvertent mistake.
It was apparent from the punch detail report that these two em-
ployees had not punched out and Horan, who reviews these
reports on a regular basis, made no effort to correct them.
Based on the evidence in the record, I find that the Union has
met its burden of proving that the Respondent at least condoned
the anti-Union rally and lent logistical support in the form of
the mass grant of time off and the failure to correct the punch
report for those two employees who had not punched out. By
doing so, the Respondent would lead employees to reasonably
believe that employees who opposed the Union could expect to
receive more lenient treatment regarding attendance at work.
Such conduct has the tendency to interfere with employee free
choice in the election and is thus objectionable.
Objection 15
In this objection, the Union claims that the Respondent, dur-
ing the critical period, hired management consultants who
“misrepresented to employees that they were agents of the Na-
tional Labor Relations Board and disinterested parties to the
election. The consultants reinforced this claim that they were
agents of the Board by distributing Board issued material to
eligible voters.” There is no dispute that the Respondent hired
a company called Direct Labor Training (DLT) to assist it dur-
ing the preelection campaign. There is also no dispute that
representatives of DLT conducted meetings for the Respon-
dent’s employees during the critical period. Five witnesses
testified for the Union regarding these meetings, i.e., Stewart,
Tawana Williams, Helen Wright, Lozada, and Misty Hinds.
The Respondent questioned one supervisor, Sandy Peralta, and
its human resources administrator, Jackson-Holland, regarding
this issue. The Respondent did not call any of the DLT repre-
sentatives who met with the employees to rebut the testimony
of the Union’s witnesses.
Based on the testimony of the Union’s witnesses, who at-
tended different meetings, it appears that the format of these
meetings was similar. The employees were asked to attend the
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1117
meetings by their immediate supervisor, the meetings were held
in a conference room, approximately 10–20 employees were
present at each meeting and the meeting began with a supervi-
sor or human resources representative introducing the DLT
consultants. The Respondent’s supervisor or representative left
the room after the introduction. Stewart testified that a Spanish
gentleman who spoke at her meeting told the employees that he
was “from the labor board.” The DLT consultants distributed
the “Basic Guide to the National Labor Relations Act,” an
NLRB publication, to the employees. When Stewart asked the
speaker what part of the labor board he worked at, the man
replied, “[W]ell, I do not work for the labor board, I work with
the labor board, I’m with direct labor.” According to Stewart,
the man then told the employees that he was not there for the
Union, nor for the Respondent, that he was there for the work-
ers, to help them “read between the lines on what the Union
was promising and offering us.” Williams’ testimony regarding
the meeting she attended was similar. She recalled that the
speaker introduced himself as Manny Gonzalez and said he was
from the labor board. The basic guide was also distributed at
the meeting she attended. According to Williams, it was only
after the meeting had ended and the other employees had left
the room that Gonzalez told Williams, when she asked him for
his business card, that he was from DLT. Williams testified
that during the meeting, Gonzalez only made negative com-
ments about unions. Wright’s testimony was consistent with
Stewart and Williams. At the first meeting she attended with
DLT representatives, they never identified themselves as any-
thing other than labor board representatives. Only at a second
meeting she attended, a week or two later, did the DLT speaker
tell employees, in response to an employee’s question, that they
were not from the labor board but were being paid by the Re-
spondent. The testimony of Hinds and Lozada was also consis-
tent with that of the other witnesses.
Jackson-Holland, who testified for the Respondent, testified
that she attended several meetings at which she introduced the
DLT consultants to the employees. She denied that the con-
sultants told the employees that they were from the labor board.
Supervisor Sandy Peralta, who also introduced the consultants
at several meetings, testified that she introduced the DLT con-
sultants by name and told employees that they were going to
explain the pros and cons of joining a union. Peralta admitted
leaving the meetings after making this introduction. The Re-
spondent also put in evidence a flyer advising employees that it
had “invited some experts on human resources and labor rela-
tions issues to join us over the next few weeks. This group is
not part of the union, the government, or the Jewish Home.
You can get straight talk from them.” Although this flyer,
unlike other flyers that were posted or distributed by the Re-
spondent during the campaign, does not contain the express
statement that it was “distributed by the Jewish Home for your
information,” it does bear the Respondent’s logo. Williams
testified that she did not recall receiving or seeing such a flyer
during the campaign.
I credit the Union’s witnesses that the DLT representatives
made statements and engaged in conduct that conveyed to the
employees that they were “from the labor board.” Because
neither Peralta nor Jackson-Holland were present during the
actual meetings, their testimony does not really contradict that
of the Union’s witnesses. I shall draw an adverse inference
from the failure of the Respondent to call as witnesses any of
the DLT representatives who did speak at these meetings. See
Queen of the Valley Hospital, 316 NLRB 721 (1995). I also
find, based on the testimony of the Union’s witnesses, that this
ruse was not successful because, when confronted by employ-
ees, the DLT consultants admitted that they were in fact con-
sultants hired by the Respondent. Although all of the employ-
ees may not have seen the flyer announcing the hiring of DLT,
employees would have been able to discern from the tenor of
the statements made by DLT’s representatives and from their
admission when pressed as to their identity, that they were
speaking for the Respondent and not for the NLRB. While the
DLT representatives may have endeavored to misrepresent their
affiliation, they did not succeed. Accordingly, I find that the
Union has not met its burden of proving that the Respondent,
through the actions of DLT, engaged in objectionable conduct.
I shall recommend that Objection 15 be overruled.
E. Unit Placement Issues
Although the parties stipulated prior to the election as to the
appropriateness of a service and maintenance unit and as to the
unit placement of a number of job classifications, the parties
disagreed as to the placement of four classifications at the hear-
ing. Because resolution of this issue is necessary not only for
determination of majority status under the General Counsel’s
request for a Gissel bargaining order, but also for the direction
of any rerun election that may result based on the Union’s ob-
jections, I shall address this question now. The Respondent
seeks to include in the unit the following groups of employees:
two preschool and seven childcare teachers who work in the
childcare center; two resident bankers in the fiscal services
department; nine therapeutic recreation directors (TRDs); and
one or two admissions associates.
Teachers
The Respondent operates a childcare program for children
aged 3 months to 5 years. The Respondent’s program is open
to children of employees and the general public. The childcare
center is housed in a separate building next to the Kuriansky
Pavilion. Elicia Kusnitz, the current director of the center,
testified at the hearing regarding this issue. She reports to Vice
President of Health Services Rotella-Soderberg. At the time of
the election, the Respondent employed seven childcare teachers
who worked with children from 3 months to 2 years old; two
preschool teachers who worked with children from 3 to 5 years
old; and two assistant teachers who were included in the unit by
agreement of the parties. The teachers are responsible for plan-
ning and overseeing the daily program for children in their
respective age group and interacting with the parents. The
assistant teachers participate in implementing the program and
supervising the children’s activities, receiving direction from
the teachers.
Kusnitz testified that the Respondent prefers to hire indi-
viduals who have at least a 2-year college degree for the posi-
tion of childcare teacher. The minimum requirement, however,
is a CDA certification and/or nine college credits in early
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1118
childhood education. To obtain a CDA certification, a teacher
must complete 1000 hours of clinical training and certain spe-
cialized college-level classes. Kusnitz has promoted an experi-
enced assistant teacher into the position of childcare teacher
even though the individual lacked either a college degree or
CDA certification. According to Kusnitz, the individual was
required to work towards obtaining the CDA certification as a
condition of the promotion. Because preschool teachers have
more responsibility, the minimum requirements are greater.
According to Kusnitz, the educational requirement is a bachelor
or associates degree in one of three specialized fields of study.
Both positions also require 1 to 2 years of relevant work ex-
perience and 20 hours of in-service training, which may be
received on-site. In contrast, an individual seeking a position
as an assistant teacher needs only a GED or high school di-
ploma with no prior work experience. There is no evidence
that any other employees in the service and maintenance unit
are required to possess any particular educational or experience
prior to employment, although the CNAs are required to be
certified after a period of training.
The Respondent’s childcare and preschool teachers are paid
on an hourly basis and receive the same benefits package as
unit employees. Kusnitz testified that the rate of pay for child-
care teachers is about $11 an hour, that for preschool teachers is
about $12 an hour and for assistant teachers $10 an hour. Jack-
son-Holland, from the Respondent’s human resources depart-
ment, testified that the range of pay for teachers in the childcare
center was between $10 and $16 an hour. These rates are simi-
lar to those received by many employees in the stipulated unit,
in particular the CNAs and cooks. The teachers in the childcare
center go through the same general orientation for new employ-
ees as unit and nonunit employees, although they also have
their own orientation within the center. They are subject to the
same rules, punch a timeclock, use the same cafeteria, and other
facilities as unit employees. The Respondent posts vacancies in
teacher positions and unit employees may apply for these posi-
tions if they meet the requirements. Similarly, employees in
the childcare center may bid on vacancies in other areas of the
Home. Other than the promotion of assistant teachers to one of
the teacher positions, there is no evidence of any other transfers
between unit positions and these teacher positions. Kusnitz
testified that the teachers interact on a daily basis with the assis-
tant teachers in the unit and interact less frequently with other
unit positions when, for example, CNAs transport residents to
activities with the children. There is opportunity for further
interaction between the teachers and unit employees in the cafe-
teria, at staff meetings, and when interacting with unit employ-
ees whose children attend the childcare center.
The Respondent argues that the childcare and preschool
teachers should be included in the unit because they share a
sufficient community of interest with other employees included
in the stipulated service and maintenance unit. The Respondent
emphasizes the similarity in pay and benefits, working condi-
tions, and interaction with unit employees, most notably the
assistant teachers, as grounds for including these teachers in the
unit. The Union argues that the childcare and preschool teach-
ers are technical employees whose specialized skill and training
outweigh the community of interest factors cited by the Re-
spondent. The General Counsel took no position on the unit
placement of these employees. In Park Manor Care Center,62
the Board held that, in making unit determinations in nonacute
care facilities like the Respondent, it would apply “a pragmatic
or empirical community of interests approach,” utilizing back-
ground information gathered during the Board’s hospital unit
rulemaking proceeding and prior case precedent involving the
specific unit being sought or the particular type of facility in-
volved. The Board has held, in subsequent cases, that there is
no automatic exclusion for technical employees from non-
professional units of employees in a nursing home. As the
Board has stated, whether or not technical employees constitute
a separate appropriate unit depends on their relationship with
other non-professional employees. Hillhaven Convalescent
Center of Delray Beach, 318 NLRB 1017 (1995).
Considering the evidence in the record, I find that the Re-
spondent’s childcare and preschool teachers are technical em-
ployees, rather than service and maintenance employees. They
possess specialized training, which they apply, using independ-
ent judgment, in devising the daily program for the children
under their care. Although they may work side by side with the
assistant teachers, they are the ones who essentially direct the
assistant teachers to carry out the program they have designed.
They are more highly skilled than most of the employees in the
unit and have more independence in performing their duties.
These factors outweigh the factors relied on by the Respondent
as demonstrating a community of interest with the stipulated
unit employees. I note that the same argument advanced by the
Respondent for inclusion of the teachers could be applied to the
LPNs, whom the parties have agreed should be excluded from
the unit. The LPNs are hourly paid, punch a time clock, receive
the same benefit package as unit employees, have frequent
interaction with unit employees and are subject to the same
personnel policies and rules and regulations. Like the teachers,
they had specialized training, licensing requirements, and use
independent judgment in carrying out their patient care duties.
Thus, the teachers in the Respondent’s childcare center would
more appropriately be included in a unit with other technical
employees like the LPNs. The fact the rate of pay received by
the teachers is similar to that received by the CNAs and certain
other unit employees does not outweigh the difference in their
educational requirements, training and skills utilized in the
performance of their jobs. Accordingly, I shall recommend that
the childcare teachers and preschool teachers be excluded from
the unit. Hillhaven Convalescent Center of Delray Beach, su-
pra; Lincoln Park Nursing & Convalescent Center, 318 NLRB
1160 (1995).
Resident Bankers
The Respondent operates a residents’ bank, located on the
first floor of the Tandet Building, which serves as the deposi-
tory for residents’ personal funds. The residents can make
deposits and withdrawals as they would at a typical bank. The
two resident bankers in dispute spend most of their workday,
which is 8 a.m. to 4:30 p.m., in the resident bank. They are part
of the department of fiscal services, under the direction of Joan

62 305 NLRB 872 (1991).
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1119
Fisher, which also employs accounts payable, payroll, and bill-
ing clerks. No other employee in this department was included
in the stipulated unit. When not in the resident bank, the resi-
dent bankers work in the fiscal services office, located in the
Kuriansky building, performing accounting functions related to
the bank. In addition to handling residents’ funds, the resident
bankers have paperwork duties related to Medicare and Medi-
caid eligibility of the residents.
Fisher testified that the resident bankers, who are hourly em-
ployees, are paid in the same general range as the CNAs in-
cluded in the unit, i.e., approximately $10 to $16 an hour. Jack-
son-Holland testified that the resident bankers’ wage rate is the
same as that for cooks in the dietary department, i.e., from
$9.50 to $15 an hour. The resident bankers receive the same
benefits as other employees, go through the same general orien-
tation, and interact with other employees in the cafeteria and at
staff meetings. They also have occasional interaction with
CNAs when a CNA escorts a resident to the bank to conduct
business. Although resident bankers may bid on vacancies in
other positions within the stipulated unit and vice versa, there is
no evidence that any transfers between theses positions and unit
positions have ever occurred. The only educational require-
ment to be hired as a resident banker is a high school diploma.
Although the parties agree that the stipulated unit excludes
business office clerical employees, they disagree as to whether
the resident bankers fall into this classification. The Respon-
dent contends that they should be included in the service and
maintenance unit in the same way that unit clerks, department
secretaries and receptionists are. The Union argues that the
resident bankers should be excluded along with the rest of the
fiscal services department employees. The Board, in Lincoln
Park Nursing & Convalescent Center, supra, noted that it has
traditionally distinguished between business office clericals and
other clerical employees in healthcare settings, consistently
including the latter in service and maintenance units where they
have regular contact with unit employees. The Board has de-
scribed the functions of business office clericals as follows:
Handling finances and billing, and dealing with Medicare,
Medicaid, and other reimbursement systems. Business office
clericals are generally supervised separately in business office
clerical departments . . . . Business office clericals have little
interaction with other nonprofessionals as the business office
clerical offices are often physically isolated.
Id. at 1164, citing Rhode Island Hospital, 313 NLRB 343, 359
(1993).
I find, based on the evidence in the record, that the two resi-
dent bankers are business office clerical employees whom the
parties intended to exclude from the stipulated unit. While they
may share some similarities with service and maintenance em-
ployees with respect to their wages, benefits, and general work-
ing conditions, they are functionally part of the fiscal services
department, which is separately supervised and isolated from
patient care areas of the home. The interaction they have with
the residents and an occasional CNA is incident to their role as
fiscal service employees, not part of the Respondent’s patient
care regimen. Accordingly, I shall recommend that the resident
bankers be excluded from the unit.
Therapeutic Recreation Directors (TRDs)
The Respondent’s therapeutic recreation department, located
in the lower level of the Tandet building, is responsible for
leading group activities and one-to-one activities for the 360
residents of the home. Therapeutic recreation is an integral part
of the residents’ care plan. Ellen Ashkins, the department di-
rector, testified regarding this group of employees. At the time
of the election, the department employed, in addition to the
director, an assistant director, a supervisor, a resident computer
lab instructor, the nine TRDs at issue, four therapeutic recrea-
tion assistants, and three therapeutic recreation transporters
who were included in the stipulated unit. Ashkins and the as-
sistant director have offices, while the supervisor and the TRDs
have desks located in the department.
The TRDs are responsible for planning, leading, and co-
leading recreational activities for the residents as required by
the State of Connecticut Public Health Code and Federal Regu-
lations,63 completing documentation required to satisfy the
regulations and to obtain reimbursement, and attending care
plan and family meetings with other members of a resident’s
interdisciplinary team. The care plan team for each resident
generally includes a nurse manager and a social worker. Only
TRDs may complete the resident paperwork documenting as-
sessment and provision of care. Although a therapeutic recrea-
tion assistant in the process of being certified as a TRD may
also fill out such paperwork, Ashkins, the Director, would have
to co-sign the form. According to Ashkins, the forms that
TRDs fill out require evaluating, designing, and implementing
individualized treatment for each resident.
There are two subclassifications of TRDs employed by the
Respondent: recreation therapists, who are required to have a
minimum of a bachelors degree and certification from the Con-
necticut association of therapeutic recreation directors and ther-
apy associates, who are required to have obtained, at the mini-
mum, certification by the association. Some of the therapy
associates also have associates’ degrees. To be certified by the
association, an employee must complete both the clinical and
classroom components of a specialized program, which in-
cludes six to eight college level courses in the field. An em-
ployee who transfers into the TRD position cannot work as a
TRD until they obtain their certification. According to Ash-
kins, the job duties of the TRDs are the same, regardless of
subclassification. Ashkins testified that the starting rate is
$14.35 an hour for a TRD (therapist) and somewhere between
$12 and $13 an hour for a TRD (associate). TRDs can earn as
much as $20 an hour, with raises. The starting rate for the
therapeutic recreation associates in the stipulated unit, who are
only required to have a high school diploma or GED, is about
$10.35 an hour. The transporter’s starting rate, which was not
identified, is lower than this.
The TRDs generally work Monday to Friday. They are not
required to wear a uniform but must dress “professionally” in
accordance with the department dress code. They receive the

63 The Respondent is required to provide “therapeutic recreation” for
each resident. Each resident’s chart must include a section for this
element of their care and each resident, on admission, must be assessed
by the department for their individual recreation needs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1120
same benefits as other hourly employees, punch a timeclock,
attend the same staff meetings, use the same parking lot and
cafeteria and interact with unit employees when working with
residents. Vacancies in TRD positions are posted company-
wide and TRDs are also able to bid on vacancies in other areas
of the home. However, transfers between TRD positions and
unit positions are rare because of the educational and certifica-
tion requirement. Ashkins herself was promoted from a TRD
position to director and another TRD became the Respondent’s
director of social services. In addition, there is evidence that
one of the TRDs was formerly a CNA and that two other TRDs
had worked as transporters and associates within the depart-
ment before becoming a TRD.
The Respondent argues for inclusion of the TRDs in the unit
on community of interest grounds, emphasizing similarities in
wages, benefits and working conditions, and interaction with
unit employees when providing treatment to residents. The
Union argues that TRDs, like the teachers in the childcare cen-
ter, should be excluded as technical employees, regardless of
any similarities in wages, etc. Applying the test announced by
the Board in Park Manor, supra, I find that the TRDs meet the
Board’s definition of a technical employee and that any “com-
munity of interest” they share with unit employees is out-
weighed by the higher skill, independent judgment and higher
pay they receive. Their interests are more aligned with the
nurses, RNs, and LPNs, who are excluded from the unit, be-
cause they use their education, training and skills on a daily
basis to independently assess and meet the needs of residents
under their care. Accordingly, I shall recommend that the
TRDs be excluded from the stipulated service and maintenance
unit.
Admissions Associate
The admissions associate works in the department of con-
tinuing care and outcomes management. Nicole Alaimo, the
director of the department, testified regarding this issue.
Alaimo reports to Rotella-Soderberg, the vice president for
health services. The department handles preadmission screen-
ing, reimbursement management, and patient care management
from admission to discharge. The department has several of-
fices in the Bennett building and the admissions associate
works in one of these offices on the first floor. According to
Alaimo, the admissions associate’s job duties include clinically
assessing and prescreening applicants for long-term admissions,
preparing paperwork to obtain Medicare, Medicaid or other
reimbursement for care, assisting and advising residents and
their families regarding eligibility for government benefits.
The admissions associate works Monday through Friday from 8
a.m. to 4:30 p.m. and spends most of the day in the office. At
the time of the election, there was one full-time admissions
associate, Ellen Lockwood, a salaried employee who was paid
approximately $42,000 an year. Lockwood had previously
worked as a secretary in the front office. The Respondent also
employed a per diem admissions associate, Arlene Gordon,
who was paid hourly, at the rate of $16 an hour, and punched a
clock.64 Jackson-Holland, from the Respondent’s human re-
sources department, testified that the rate of pay for this posi-
tion could be as high as $23 an hour. The only requirement for
the position is a high school diploma or GED.
The admissions associate receives the same package of bene-
fits as other hourly employees, including those in the unit, is
subject to the same personnel policies and rules, attends a simi-
lar new employee orientation, may use the cafeteria, and at-
tends in-service and staff meetings with other employees.
However, according to Alaimo, the admissions associate has
very little contact with unit employees in the course of her
work. Most of the time, the admissions associate interacts with
nonunit employees in the fiscal services and medical records
department. Although she may occasionally have contact with
a CNA when visiting a resident or family member on one of the
floors, the contact would be minimal. Similarly, although ad-
missions associates may participate in the job posting and bid-
ding process, there is no evidence of any transfers between this
position and any unit position.
The Respondent, again relying on “community of interest”
factors, argues for inclusion of the admissions associate in the
unit. The Union contends that this position should also be ex-
cluded as a business office clerical, which the parties, in their
stipulation, agreed to exclude. Having considered the evidence,
I agree with the Union that the admissions associate meets the
definition of a business office clerical and shares very little in
common with the employees included in the stipulated unit. I
note, in particular, the relatively high salary that the main in-
cumbent of this position receives as a factor against inclusion.65
Accordingly, I shall recommend that the admissions associate
be excluded from the unit.
F. The Request for a Bargaining Order Remedy
The Board’s test for evaluating the appropriateness of a bar-
gaining order as a remedy for an employer’s preelection unfair
labor practices has been stated as follows:
In Gissel, supra, the Supreme Court “identified two types of
employer misconduct that may warrant the imposition of a
bargaining order: ‘outrageous and pervasive unfair labor prac-
tices’ (‘category I’) and ‘less extraordinary cases marked by
less pervasive practices which nonetheless still have the ten-
dency to undermine majority strength and impede the election
process’ (category II).” The Court found that, in determining
a remedy in category II cases, the Board can take into consid-
eration the extensiveness of an employer’s unfair labor prac-
tices in determining whether the “possibility of erasing the ef-
fects of past practices and ensuring a fair election . . . by use
of traditional remedies, though present, is slight and employee
sentiments once expressed by authorization cards would, on
balance, be better protected by a bargaining order.”

64 Alaimo testified that Gordon worked, “as needed” to fill in for va-
cations, or when there were a lot of admissions, but that generally there
would be only one admissions associate working at a time. She re-
called that, in March, before the election, Gordon was working close to
40 hours a week because Lockwood was on leave.
65 It is unclear from the record whether Gordon, the per diem,
worked on a sufficiently regular basis before the eligibility date to be
included even if the position were properly part of the unit.
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1121
Michael’s Printing, Inc., 337 NLRB 860 (2002), and cases
cited therein. See also Parts Depot, Inc., 332 NLRB 670
(2000); Sheraton Hotel Waterbury, 312 NLRB 304 (1993), enf.
denied sub nom. J.L.M., Inc. v. NLRB, 31 F.3d 79 (2d Cir.
1994). Among the factors considered by the Board when ap-
plying this test are the number of employees directly affected
by the unfair labor practices, the size of the unit, the extent of
dissemination among employees, and the identity and position
of the individuals committing the unfair labor practices.
Garvey Marine, Inc., 328 NLRB 991, 993 (1999). The Board
must also be mindful of the important congressional policy
underlying the Act which favors employee free choice of a
bargaining representative through a secret-ballot election con-
ducted under the Board’s auspices. See Dessert Aggregates,
340 NLRB 289, 294 (2003).
Conceding that this is not a category I case, the General
Counsel argues that the Respondent’s “extensive” unfair labor
practices warrant issuance of a remedial bargaining order, cit-
ing four factors:
(1) the massive number of serious Section 8(a)(1) vio-
lations, including “hallmark” plant closing threats, which
affected a majority of the bargaining unit;
(2) the “hallmark” nature of the terminations of four
employees for their union activity;
(3) the significant number of unit employees directly
affected by all of the alleged violations; and
(4) the timing of much of the alleged unlawful con-
duct, such as the Dyer and Gauthier discharges occurring
within mere days of the election.
The General Counsel’s argument is undercut somewhat by
my failure to find that the Respondent committed all of the
unfair labor practices alleged in the complaint, including my
recommendation that the allegations regarding the discharge of
Dyer be dismissed. However, the record does establish, as I
have found, that the Respondent committed a number of serious
and pervasive unfair labor practices. Most notable is the threat
of closure of the facility and job loss contained in the poster
displayed in the facility within weeks of the election and com-
municated to employees by the chairman of the Respondent’s
board of directors at meetings with the employees within a
week of the election. In addition, I have found that the Re-
spondent discriminatorily terminated one of the leaders of the
organizing drive, Gauthier, on the day before the election.
There is testimony from at least one of the General Counsel’s
witnesses that Gauthier’s discharge was a topic of conversation
among the employees at the time of the election. Other viola-
tions found which affected the entire unit involved the Respon-
dent’s maintenance of unlawfully broad and discriminatory
rules restricting employees’ exercise of their protected activi-
ties; the December 2001 wage increase; and Magid’s memos to
the employees in late March early April impliedly promising
improved terms and conditions based on the consultant’s study.
All of the other unfair labor practices were directed at individu-
als or small groups of employees, or occurred early in the Un-
ion’s organizing drive. Only one unfair labor practice has been
found to have occurred after the election, i.e., the termination of
another of the union leaders, Stewart, on July 1. The question
presented here is whether these unfair labor practices can be
remedied and the Union’s strength restored without a bargain-
ing order so that a rerun election will provide a meaningful
opportunity for the employees to freely express their choice of
bargaining representative.
In considering this issue, I note initially that the General
Counsel concedes that the Union still had the support of a ma-
jority of the Respondent’s employees as late as March 1, when
the demand for recognition was made and the petition filed. If
that is the case, then the violations which preceded that date,
such as the December 2001 wage increase, cannot be said to
have undermined the Union’s majority support. I will thus
focus on the unfair labor practices found that occurred after
March 1. The most serious of these is the threat of closure,
long considered by the Board to be a “hallmark” violation suf-
ficient to warrant a remedial bargaining order. Aldworth Co.,
338 NLRB 137 (2002). Cf. Aqua Cool, 332 NLRB 95, 97
(2000) (threat of closure not enough to warrant Gissel remedy
where this was only “hallmark” violation found). The dis-
charge of a union activist like Gauthier is also a “hallmark”
violation that the Board has frequently relied upon to support a
bargaining order. Aldworth Co., supra. Cf. Pyramid Manage-
ment Group, Inc., 318 NLRB 607 (1995) (the unlawful dis-
charge of two union supporters, in the absence of other hall-
mark violations, not enough for a bargaining order). The fact
that Glickman, the highest ranking official of the Respondent,
committed the most serious of the unfair labor practices is an-
other factor that the Board would consider as warranting this
extraordinary relief. Aldworth Co., supra. Despite the presence
of these and other factors cited by the General Counsel, I am
not prepared to conclude that the chances of holding a fair rerun
election are so slight that a bargaining order is the only effec-
tive remedy.
In deciding against a Gissel remedy here, I note the large
size of the unit, approximately 400 employees, as a factor long-
recognized by the Board as diluting the impact of even the most
serious unfair labor practices. See Beverly California Corp.,
326 NLRB 232 (1998); Philips Industries, 295 NLRB 717,
718–719 (1989). See also Pyramid Management Group, supra.
Most of the unlawful conduct here affected only a handful of
employees. The wage increase, which affected the entire unit,
occurred before the General Counsel claims the Union lost
majority support. The threat of closure, which was widely
disseminated, can be effectively remedied by the special reme-
dies I will be recommending. Moreover, I note that Glickman’s
statements and the posters did not directly threaten closure, but
only implied such a result from unionization. While still seri-
ous, this is not the type of direct threat that the Board has often
relied upon to support a remedial bargaining order. Finally, the
discharge of one of the leading union adherents in a unit of this
size, where other strong union supporters like Tawana Williams
and Artarene Thompson, suffered no adverse consequences, is
not enough to warrant a bargaining order, particularly where
the discharge involved a mixed motive. Because Gauthier was
not entirely blameless in the circumstances leading to his dis-
charge, the tendency of other employees to interpret his dis-
charge as an assault on union supporters generally is lessened.
Unlike the situation in Aldworth Co., supra, a case relied on by
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1122
the General Counsel, no management official here publicized
the discharge as having been motivated by protected activity.
Other factors which have convinced me that a bargaining or-
der is not necessary to remedy the unfair labor practices found
here is the fact that only one violation occurred after the elec-
tion. This is not a case where an employer, not satisfied with a
victory in the election, continues a campaign of unlawful con-
duct to destroy any lingering union sentiment. Because of this
lack of continuing unlawful conduct, and the passage of time,
the traditional Board remedies, with some additional relief to be
ordered, should be sufficient to restore the laboratory condi-
tions necessary for a fair rerun election. In this regard, al-
though not a factor relied upon by the Board, I note that some
of the high-ranking management officials involved in the prior
unfair labor practices are no longer employed. Thus, Magid,
the Respondent’s president who essentially directed the anti-
union campaign, has retired, and Silverman, the vice president
involved in enforcement of the unlawful no-access rule and
other conduct, has moved on to other employment. Although
Glickman was still the chairman of the board at the time of the
hearing, my recommendation that he read the notice to the em-
ployees, to be discussed infra, should dissipate any lingering
effect from the unlawful threats he made at the meetings he
held before the election.
Accordingly, based on the above, I shall not recommend the
issuance of a remedial bargaining order based on any card ma-
jority obtained by the Union before March 1, 2002. Based on
this recommendation, I find it unnecessary to resolve the issues
raised by the Respondent as to the validity of some of the cards
or the authenticity of some signatures. Based on the unfair
labor practices and meritorious objection found above, I shall
recommend that a new election be conducted after the Respon-
dent has remedied the violations found.
CONCLUSIONS OF LAW
1. By the following conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the Act.
(a) Maintaining overly broad solicitation and distribution
rules that restrict employees right to engage in protected con-
certed activities during nonworktimes and/or in nonwork areas
that are not immediate patient care areas.
(b) Maintaining and enforcing an overly broad rule denying
off-duty employees access to the Respondent’s facility.
(c) Maintaining an unlawful rule prohibiting employees from
discussing their wages, benefits, and other terms and conditions
of employment with their fellow employees.
(d) Telling employees that they may not talk about the Union
during work while permitting employees to discuss other non-
work-related subjects.
(e) Creating the impression among employees that their pro-
tected concerted activities were under surveillance and engag-
ing in actual surveillance of employees who were engaged in
protected concerted activities.
(f) Providing unlawful assistance and encouragement to em-
ployees to revoke their signed union authorization cards by
requesting employees to see a supervisor if they wanted to do
so and by offering to stamp and mail employees’ revocations.
(g) Interrogating employees regarding their union member-
ship, activities, and support.
(h) Threatening employees with closure of the facility, job
loss and other adverse consequences if they selected the Union
as their collective-bargaining representative.
(i) Granting employees a wage increase in order to influence
their choice of bargaining representative.
(j) Promising employees additional wage increases and im-
plying that working conditions would improve if they rejected
union representation.
(k) Requiring employees to engage in antiunion activities.
2. By imposing more onerous working conditions on Juan
Ayala and denying Ayala a recommendation, and by terminat-
ing Farid Gauthier on April 10 and Ebonie Stewart on July 1,
2002, because of their membership in and activities in support
of the Union, the Respondent has discriminated against its em-
ployees in violation of Section 8(a)(3) and committed unfair
labor practices affecting commerce as defined in Section 2(6)
and (7) of the Act.
3. The Respondent has not violated Section 8(a)(1), (3), or
(5) of the Act in any other manner alleged in the complaint.
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 effectu-
ate the policies of the Act. Specifically, I shall recommend that
the Respondent rescind the various unlawful rules contained in
its employee handbook and personnel policies and notify its
employees that these rules are no longer in effect. I shall also
recommend that the Respondent be ordered to post and abide
by a notice to employees, attached hereto as appendix B. Hav-
ing found that the Respondent discriminatorily discharged
Gauthier and Stewart, it must offer them reinstatement and
make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). Because the assignment of more onerous
working conditions to Ayala had ended before the hearing, and
because there is no evidence that Ayala still needs a recom-
mendation from the Respondent, I shall not recommend any
affirmative relief for these violations. However, should Ayala
require a recommendation now or in the future, the Respondent
shall not discriminatorily withhold it from Ayala under the
cease-and-desist provisions of the recommended Order.
As noted above, I have found that a bargaining order is not
necessary to remedy the unfair labor practices found here.
However, certain additional remedies, aside from those tradi-
tionally ordered in cases such as this, are necessary to dissipate
the effects of the serious and pervasive unfair labor practices
committed by the Respondent and to ensure that a fair rerun
election is possible. In recent cases, the Board has relied upon
some of the same factors that traditionally warrant a remedial
bargaining order as sufficient to justify less extraordinary but
nonetheless nontraditional remedies. Federated Logistics &
Operations, 340 NLRB 255, 256, 258 (2003); Audubon Re-
JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY 1123
gional Medical Center, 331 NLRB 374, 378 (2000). To rem-
edy any lingering effect that Glickman’s threats of closure may
have, I shall recommend that he be ordered to read the notice to
the employees at captive audience meetings similar to those he
conducted in April, before the election. Moreover, in order to
give the Union an equal opportunity to counteract the unlawful
campaign engaged in by the Respondent prior to the last elec-
tion, I shall recommend that the Respondent furnish the Union
with an updated list of unit employees’ names and addresses
within 14 days of issuance of a final order in this case and that
the Respondent update this information every 6 months until a
fair election has been certified by the Board. Finally, because
of the variety of violations found and their serious nature, evi-
dencing a general disregard for employees’ rights under the
Act, and in order to ensure that the Respondent is not tempted
to devise new or creative ways to unlawfully interfere with its
employees’ free choice in the rerun election, I shall recommend
a broad order, prohibiting the Respondent from restraining,
coercing, or otherwise interfering with employees Section 7
rights in “any other manner,” rather than merely in any manner
similar to the unfair labor practices found here. Because it
appeared from the testimony of some of the witnesses called by
the Respondent that some unit employees are not native English
speakers and may have difficulty understanding a notice posted
and read in English, I shall recommend that the notice be
posted in Spanish, Portuguese, and Haitian Creole, in addition
to English, and that interpreters be available at Glickman’s
meetings to translate for employees who do not understand
English. With these special remedies, in addition to those tradi-
tionally ordered, a free and fair rerun election will be more than
a “slight possibility” and will better reflect the employees’ true
desires than a card-based bargaining order would.
[Recommended Order and Direction of Second Election
omitted from publication.]
APPENDIX A
THE UNION’S OBJECTIONS66
1. From the outset of the Union’s campaign, and continuing
throughout the critical preelection period, the Employer en-
gaged in the surveillance of employees engaged in union activi-
ties and/or created the impression with employees that their
activities were under surveillance by the Employer.
2. From the outset of the Union’s campaign and continuing
throughout the critical preelection period, Employer agents,
supporters or others acting in concert with them requested that
employees disclose the union sympathies of their coworkers.
3. From the outset of the Union’s campaign, and intensify-
ing during the critical preelection period, the Employer forbade
union supporters from discussing the union campaign at work
while at the same time allowing and/or encouraging antiunion
employees to discuss their antiunion sentiments with employees
during worktime.
4. From the outset of the Union’s campaign, and continuing
throughout the critical preelection period, the Employer solic-

66 The Union withdrew Objections 11 and 14 on October 7, 2002,
before issuance of the Regional Director’s Report on Objections.
ited and/or encouraged employees to repudiate the Union and to
revoke their signed union membership cards.
5. From the outset of the Union’s campaign, and intensify-
ing during the critical preelection period, Employer agents,
supporters or others acting in concert with them made numer-
ous statements regarding collective bargaining, jobs, loss of
pension benefits, strikes and closure of the Jewish Home which,
individually and collectively, were intended to convey to em-
ployees that selecting the Union would be futile and would
inevitably lead to closure of the Jewish Home and/or a strike
and loss of jobs through the hiring of permanent replacements.
6. From the outset of the Union’s campaign and continuing
throughout the critical preelection period, the Employer (which
permitted off-duty employees on its premises for various pur-
poses prior to the union organizing drive) denied union sup-
porters off-duty access to the facility, and on at least one occa-
sion, removed three (3) off-duty union supporters from the
premises.
7. During the critical pre-election period, the Employer ter-
minated union supporters Misty Hinds and Carmen Dyer, and
suspended and terminated union supporter Farid Gauthier be-
cause of their support for, and activities on behalf of, the Un-
ion.
8. During the critical pre-election period, the Employer dis-
criminated against union supporters by requiring that two (2) of
the Union’s election observers take the entire day of the elec-
tion off from work while allowing the Employer’s observers to
work and take time off from their shifts to serve as the Em-
ployer’s observers.
9. On both April 10th and 11th the Employer organized, al-
lowed and paid eligible voters, at least some of whom were on
duty at the time, to picket the entrance of the facility holding
“Vote No” and other signs with various anti-union slogans.
10. During the critical preelection period, Employer agents,
supporters, or others acting in concert with them bribed or oth-
erwise attempt to illicitly influence the vote of eligible voters,
as evidence by, but not limited to, offering to assist at least one
employee in his attempt to obtain a “green card” from INS and
generating free publicity for the musical band of two (2) other
employees.
11. [Withdrawn]
12. During the critical preelection period, the Employer
promoted three (3) former union supporters into leadership
positions for the purpose of influencing their vote in the elec-
tion and assisting management in conducting its anti-union
campaign.
13. Following the outset of the Union’s campaign, the Em-
ployer unilaterally changed terms and conditions of employ-
ment by granting a wage increase to eligible voters, and during
the critical preelection period suggested that an additional wage
increase would be forthcoming, for the purpose of influencing
employee sentiment in regard to unionization.
14. [Withdrawn]
15. During the critical preelection period, management con-
sultants, in the course of campaigning against the Union in their
capacity as agents of the Employer, misrepresented to employ-
ees that they were agents of the National Labor Relations Board
and disinterested parties to the election. The consultants rein-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1124
forced their sham claim that they were agents of the Board by
distributing Board issued material to eligible voters.
16. Throughout the critical pre-election period the Employer
and its agents threatened, coerced, harassed and intimidated
pro-union employees for exercising their rights under the
NLRA to freely select the Union as their bargaining representa-
tive.