Nynex Corp.

National Labor Relations Board - Board Decisions

Nov 22, 2002

338 N.L.R.B. 659 (N.L.R.B. 2002)

NYNEX CORP. 659
Nynex Corp., and its subsidiaries New York Tele-
phone Company and Telesector Resources
Group, Inc., d/b/a Bell Atlantic and Local 1105,
Communications Workers of America, AFL–
CIO. Cases 34–CA–7953 (formerly 2–CA–30651)
and 34–CA–8130
November 22, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On June 13, 2000, Administrative Law Judge Eleanor
MacDonald issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief. The Respon-
dent also filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings and
findings.1 The Board, however, has decided to reverse
the judge’s conclusions that the Respondent violated the
Act. Accordingly, the complaint shall be dismissed in its
entirety.2
I. INTRODUCTION
The central issue in this case is whether the Respon-
dent violated Section 8(a)(1) by taking action against the
Union and its representatives after they attempted to
meet and arrange grievance meetings with the staff direc-
tor of the Respondent’s Absence Benefit Center (ABC or
the Center). The judge found that the conduct at issue
was protected. Contrary to the judge, we find no viola-
tion, given the 2-hour cessation of work at the Center
caused by the union representatives and their persistent
refusal of the Respondent’s demands that they leave.
II. FACTS
In 1995, the Respondent established an Absence Bene-
fit Center staffed by licensed nurses to process and ini-
tially evaluate employee absences. The Center was lo-

1 The Respondent asserts that certain of the judge’s credibility reso-
lutions are a result of bias and prejudice. Specifically, the Respondent
argues that the judge’s discussion of the testimony of certain female
witnesses was influenced by sex-based stereotypes and the judge’s
personal view of how female managers should react in the modern
business world. Counsel for the General Counsel argues that it is the
Respondent, not the judge, who is relying on sex-based stereotypes. In
view of our disposition of this matter, we find it unnecessary to resolve
this issue. Although the judge used certain imprudent language in
discussing the testimony in sec. G,1 of the decision—which we specifi-
cally disavow—we have placed no reliance on this discussion in decid-
ing this case.
2 Inasmuch as they find that the complaint should be dismissed for
the reasons set forth below, Members Liebman and Bartlett find it
unnecessary to address the additional reasons for dismissing the com-
plaint set forth in Member Cowen’s concurrence.
cated in a secure area, where access was restricted to
persons having a magnetic access card. Although some
of the Center’s nurses were temporary employees of the
Respondent, others were employed by an outside agency.
Although the Union represents employees whose ab-
sences were processed by the Center, it did not represent
any employees who actually worked in the Center.3
The Respondent required that an employee who was to
be absent for illness or injury contact the Center. There,
a nurse case manager would gather information from the
employee, determine whether the absence was “justified”
under the sick leave provisions of the collective-
bargaining agreement, and notify the employee’s super-
visor that the employee would be absent. The informa-
tion gathered by the case managers was used to deter-
mine whether the employee would receive benefits under
the collective-bargaining agreement. That decision
rested with the employee’s supervisor.
By 1997, the Center had become the focus of dispute
between the Respondent and the Union. Union members
alleged that the nurse case managers issued arbitrary de-
cisions, were rude, and engaged in other inappropriate
behavior. The Union filed numerous grievances on be-
half of employees who had complained about the Center.
Those grievances were filed with the employees’ super-
visors, pursuant to the contractual grievance procedure.
The resolution of the grievances, however, took several
months, which the Union claims led to increasing frustra-
tion among the unit employees.
In response to this alleged increasing frustration, the
Union decided to send its executive board to the Center
to request appointments to discuss absence-related griev-
ances directly with the supervisors of the nurse case
managers. The purpose of this action, according to the
Union, was to show the Respondent that the Union was
“serious” about obtaining appointments and to emphasize
the importance of the issues related to the Center.
Thus, at about 8:15 a.m. on July 14, 1997, the Union’s
executive board, led by employee-member Paul Sapienza
and using Business Agent Robert Shannon’s company-
issued magnetic access card, entered the Center unan-
nounced, confronted a nurse case manager at her work-
station concerning the whereabouts of her supervisor,
and demanded to schedule appointments to discuss
grievances.4 The Union had never attempted to submit
3 Union representatives, however, had been issued access cards to
the building because the Union represented several employees who
worked in the Respondent’s Benefits Delivery Center, which was lo-
cated on the same floor as the Center.
4 Altogether, the union contingent comprised 13 union members.
Twelve of the 13 union members were employed by the Respondent,
but not at the Harrison facility. The remaining participant in the events
of July 14, Keith Edwards, was not an employee of the Respondent.
338 NLRB No. 78
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 660
grievances to anyone at the Center prior to July 14, and it
never attempted to do so after that date. There is no evi-
dence that prior to July 14 anyone at the Center played
any role in the processing of grievances under the par-
ties’ collective-bargaining agreement.
Marie McDonnell-Foley, the staff director of the Cen-
ter, was alerted to the Union’s entry into the secure area
of the Center and attempted to lead the union representa-
tives to a conference room in a public hallway. Paul Sa-
pienza, however, insisted on meeting with McDonnell-
Foley in an employee lounge in the secure area. Sapi-
enza spoke in a voice loud enough to be heard at some
distance in the office. McDonnell-Foley acquiesced in
his demand. She then left the union representatives in
the lounge for several minutes while she did two things.
First, McDonnell-Foley tried, unsuccessfully, to contact
the Respondent’s labor relations staff. Second, she in-
structed those nurses who were already on duty to leave
their workstations and wait in the conference room.
In the meantime, the union contingent—left the em-
ployee lounge to look for McDonnell-Foley’s office.
They again began walking through the hallways and cu-
bicles of the Center, this time recording the nurses’
names and cubicle locations. McDonnell-Foley saw this
activity and tried unsuccessfully to stop it. Then, after
finally speaking with the Respondent’s labor relations
staff, McDonnell-Foley again confronted Sapienza and
the union contingent. Sapienza repeated the Union’s
demand for a meeting to discuss grievances, but McDon-
nell-Foley refused. She demanded that Sapienza and his
group leave the Center, warning that they were trespass-
ing. She also advised Sapienza that the Union’s griev-
ances could be filed with the Respondent’s labor rela-
tions department. Sapienza—who at this point had be-
come “very aggressive, loud, and boisterous,” according
to the judge’s finding—insisted that the Union had a
right to be at the Center to present grievances. Once,
again, however, McDonnell-Foley asserted that they
were trespassing and added that the employees in the
group could be subject to discipline if they did not leave
the Center. When the union group still refused to leave,
McDonnell-Foley summoned the police.
The arrival of the police eventually led to the Union’s
departure from the Center at about 10:15 a.m. The Re-
spondent did not press criminal charges against the union
representatives. Two days later, though, the Respondent
issued 2-day suspension notices to the 12 employees who
had participated in the July 14 incident, advising them
that they had engaged in a “disruption of work opera-
tions” and had “refus[ed] to follow a direction by man-
agement to leave the work area.” On July 17, the Re-
spondent sued the Union and all 13 union members in-
volved in the July 14 incident in State court for trespass.
Shortly after July 14, the Respondent unilaterally can-
celled Business Agent Robert Shannon’s magnetic access
card. Four months later, the card of local Union Steward
Joseph DeBiase was also cancelled. Shannon and DeBi-
ase thus could no longer meet with their constituents in
the Benefit Delivery Center at will, but rather had to ob-
tain an access card from the Respondent on each visit.
III. THE JUDGE’S FINDINGS
The judge found that the Union’s actions were pro-
tected under Section 7 of the Act. She therefore con-
cluded that the Respondent violated Section 8(a)(1) of
the Act by: (1) suspending the employees who sought to
present grievances at the Center; (2) calling the police
regarding the union representatives’ refusal to leave the
Center; and (3) filing the trespass lawsuit against the
Union and the 13 individual union members. The judge
also concluded that the Respondent violated Section
8(a)(5) and (1) by refusing to accept the employees’
grievances and to make appointments to discuss the
grievances, and by taking away Shannon’s and DeBi-
ase’s magnetic access cards, thereby unilaterally chang-
ing the terms and conditions of the Union’s right of ac-
cess to unit employees.
IV. ANALYSIS
We find that the union representatives caused a 2-hour
disruption of work at the Center and persistently refused
McDonnell-Foley’s demands that they leave. In light of
this conduct, the Respondent did not violate the Act
when it summoned the police to the Center on July 14,
suspended the 12 employee-union representatives in-
volved in the events of that day, or filed its trespass law-
suit against the Union and the representatives. Similarly,
we find that the Respondent, faced with the Union’s ac-
tions on July 14, did not violate Section 8(a)(5) and (1)
by refusing to accede to the Union’s demands. Last, we
find that the Respondent did not violate Section 8(a)(5)
and (1) by unilaterally canceling Shannon’s and DeBi-
ase’s magnetic access cards.
The Union Representatives’ Actions Exceeded the
Protections of the Act
Section 7 of the Act grants employees the right to en-
gage in “concerted activity” for the purposes of “collec-
tive bargaining or other mutual aid or protection.” The
filing of grievances unquestionably is protected, con-
certed activity. See Aluminum Co. of America, 338
NLRB 20 (2002); United Parcel Service of Ohio, 321
NLRB 300, 323 (1996). But the Board must also take
into account the right of employers to maintain order and
to use their premises. See NLRB v. Thor Power Tool
Co., 351 F.2d 584 (7th Cir. 1965), enfg. 148 NLRB 1379
NYNEX CORP. 661
(1964). Thus, activity is protected if carried out in a
manner that is abusive or unjustifiably disruptive of an
employer’s operations. See, e.g., Carolina Freight Car-
riers, 295 NLRB 1080 (1989) (manner in which em-
ployee sought to communicate work protest message to
other coworkers—taking over the hospitalwide computer
system—was unprotected); Washington Adventist Hospi-
tal, 291 NLRB 95, 95 fn. 1 and 102–103 (1988) (finding
that employee lost the protection of the Act where he
took over hospitalwide computer system to communicate
otherwise protected message to coworkers). That is what
happened in this case.
In sum, we find that the manner in which Sapienza and
the union representatives acted on June 14 was unpro-
tected and that the Respondent lawfully reacted to this
unprotected misconduct, not to any grievance that the
representatives may have been attempting to present.
These union representatives entered the working area of
the Center during the nurses’ working time, loudly con-
fronted nurse case managers at their cubicles, refused to
meet with McDonnell-Foley in a conference room in a
public area, and wandered the work areas of the Center
recording the nurses’ names and cubicle locations. The
union contingent’s actions caused McDonnell-Foley to
direct her staff to stop working, resulting in a 2-hour ces-
sation of the Center’s operations.5 McDonnell-Foley
attempted to restore order by demanding that Sapienza
and his group leave the Center. However, Sapienza, in a
“very aggressive, loud, and boisterous” manner (as the
judge found), persistently refused McDonnell-Foley’s
demands, notwithstanding her warnings that the union
group was trespassing and that employee-members of the
group could be subject to discipline if they did not leave
the premises. Considering the totality of these circum-
stances, but with particular emphasis on the disruption of
the nurses’ work and the union contingent’s persistent
refusal to leave the Center at McDonnell-Foley’s re-
peated request, we find that the Respondent did not vio-
late Section 8(a)(1) when it summoned the police to as-

5 The judge found no evidence that the Union’s occupation of the
Center prevented the nurses from doing their work, suggesting that
McDonnell-Foley was independently responsible for the disruption of
the Center’s operations. We disagree. The nurses’ work consisted of
receiving confidential medical information from employees, discussing
the information with the employees, typing the information onto com-
puter screens, and then e-mailing the information to the employees’
supervisors. In these circumstances, we find that was reasonably fore-
seeable that the Union’s presence in the nurses’ working area would
cause McDonnell-Foley to direct the nurses to cease working to protect
the confidentiality of the employees’ medical information. Signifi-
cantly, McDonnell-Foley, prior to directing the nurses to cease work-
ing, offered to meet with the union representatives in a conference
room outside the nurses’ working area, but, as described above, Sapi-
enza refused this offer.
sist it in restoring order at the Center, suspended the 12
employees involved in the July 14 incident, and sued the
Union and the union representatives for trespass. See,
e.g., Loehmann’s Plaza, 316 NLRB 109, 114 (1995)
(employer’s pursuit of lawsuit to enjoin union picketing
on employer’s premises was not unlawful where picket-
ing was unprotected).6
V. THE RESPONDENT DID NOT UNLAWFULLY REFUSE
THE UNION’S DEMANDS
We also find, contrary to the judge, that the Respon-
dent did not violate Section 8(a)(5) and (1) by refusing
on July 14 to immediately accept the Union’s grievances
or take appointments to discuss the grievances. To be-
gin, the Respondent did not refuse altogether to accept
the Union’s grievances or to discuss matters concerning
the Center. As the Respondent points out, McDonnell-
Foley provided Sapienza with the name and telephone
number of another company representative with whom
the Union could make an appointment. Sapienza more-
over conceded that after July 14 he filed the grievances
with the employees’ immediate supervisors, as he had
done in the past with some 100–150 other grievances
related to the Center. Thus, the question really is limited
to whether, in the face of the Union’s actions on July 14,
McDonnell-Foley’s failure to immediately accede to Sa-
pienza’s demands constituted an unlawful refusal to bar-
gain in violation of Section 8(a)(5). We find that it did
not. See Santa Clara Lemon Assn., 116 NLRB 44, 44–
45, 63–65 (1956) (employer’s refusal to immediately
discuss a discharge with an employee-steward who had
left her workstation without permission, and who refused
repeated orders to return to work, was not an unlawful
refusal to bargain; by requiring bargaining at reasonable
places and times, “Congress did not . . . require that em-
ployers meet at any time, at the whim or caprice of any
representative of the employees”).7
6 Member Liebman observes that the result here is also consistent
with cases such as Cambro Mfg. Co., 312 NLRB 634, 636 (1993);
Postal Service, 282 NLRB 686, 694 (1987); and Volt Information
Sciences, 274 NLRB 308 fn. 6 (1985), in which employees engaged in
otherwise protected activity were held to have lost the protection of the
Act based on their abusive or unjustifiably disruptive behavior. While
the Union’s attempt here to meet and arrange grievance meetings with
the staff director may have been protected conduct, the union represen-
tatives lost that protection by their subsequent conduct.
7 The Respondent also asserts that it was privileged to refuse to ac-
cept the Union’s grievances on July 14 because the Union, by attempt-
ing to file the grievances with McDonnell-Foley, was either ignoring or
trying to unilaterally alter the contractual grievance procedure. The
General Counsel maintains that the grievance procedure may reasona-
bly be interpreted to permit the filing of grievances at the Center. We
find it unnecessary to decide these issues and, accordingly, express no
view on the parties’ respective contentions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 662
VI. THE RESPONDENT DID NOT UNLAWFULLY CANCEL
THE UNION’S ACCESS CARDS
The judge found that the Respondent violated Section
8(a)(5) and (1) by unilaterally canceling Union Represen-
tatives Shannon and DeBiase’s magnetic cards for gain-
ing access to the workplace. Specifically, the judge
found that the breach of past practice in this regard was a
“material, substantial, and significant” change. We dis-
agree.
Prior to July 14, union representatives enjoyed virtu-
ally unlimited access to Respondent’s facility. After the
July 14 disruption of the ABC, however, the Respondent
beefed up security at the facility, canceling the magnetic
cards held by any person who did not have regular busi-
ness there at least once a week. As a result of the cancel-
lation, union representatives, among others who visited
the facility less regularly than once a week, were re-
quired to stop and present identification in order to gain
access.
In Peerless Food Products, 236 NLRB 161 (1978), the
employer narrowed its practice of allowing general ac-
cess to one confining to the production areas of the plant
to persons whose presence was necessary and required,
and excluding all others. Finding the change to be de
minimis, the Board noted that

not every unilateral change in work, or in this case ac-
cess, rules constitutes a breach of the bargaining obliga-
tion. The change unilaterally imposed must, initially,
amount to “a material, substantial, and a significant”
one. Rust Craft Broadcasting of New York, Inc., 225
NLRB 327 (1976) [footnote omitted], and we do not
believe the access limitations imposed here amount to
that.

The Respondent’s new security procedures did not
limit the Union’s movement within its facility or result in
the Union’s being denied access to any unit employees at
the workplace.8 Union representatives were not required
to obtain the Respondent’s permission in order to enter
the facility and could borrow access cards from man-
agement or rank-and-file employees situated at the front
desk. Under these circumstances, as in Peerless Food
Products, supra, the Respondent’s access restrictions
were not material, substantial, and significant.9 Accord-

8 Although Union Business Agent Joseph DeBiase testified that in
November 1997 he met with unit employee Mary Hussey after she was
directed to meet with him outside the work area, the judge noted that
the record is not clear as to why this happened. DeBiase also testified
that since the summer of 1997 he was given an access card each other
time he visited union members at the facility.
9 Frontier Hotel & Casino, 323 NLRB 815, 817–818 (1997), relied
on by the judge, is distinguishable. In that case, the employer directed
ingly, the Respondent did not violate Section 8(a)(5) of
the Act, and we shall dismiss this complaint allegation.
ORDER
The complaint is dismissed.

MEMBER COWEN, concurring.
I join my colleagues in the dismissal of the complaint.
I write separately to express the additional reasons why
certain allegations of the complaint lack merit.
I agree that the Respondent was privileged to take ac-
tion against the union representatives because of the
manner in which they behaved in presenting their griev-
ances. Fundamentally, however, in finding that their
conduct was unprotected, there is no doubt that they had
no right to be on the Respondent’s property in the first
place. In general, employees do not have an unfettered
right to engage in concerted activity in any locus they
choose. The law requires a balance between the right of
the offsite off duty employees to engage in concerted
activity and the employer’s property right to exclude
them from interior areas of its facilities. See Hudgens v.
NLRB, 424 U.S. 507, 522 (1976) (accommodation be-
tween employees’ Section 7 rights and employers’ prop-
erty rights must be obtained “with as little destruction of
one as is consistent with the maintenance of the other”).1
Even onsite employees, for example, do not have the
right to engage in such activity on worktime or in work
areas. See generally Republic Aviation Corp. v. NLRB,
324 U.S. 793 (1945).
In a general sense, any employee engaged in activity
on the employer’s property which is objectionable to the
employer could be deemed a trespasser.2 Even onsite

security guards to require union representatives to acknowledge in
writing familiarity with the union-access provisions of the expired
contract as a condition to entering the facility. In rejecting the em-
ployer’s argument that the restriction was de minimis, the Board noted
that “the [r]espondent’s new restriction was specifically aimed at union
representatives and it actually resulted in denying employee access to
the representatives on the day the restriction was imposed.” Id. at 818.
Here, the new procedures were general restrictions that applied to any-
one who conducted business at the facility on a less frequent basis than
once a week. Furthermore, there is no evidence that they resulted in
union representatives being denied access to any unit employees.
1 See also Hillhaven Highland House, 336 NLRB 646 (2001) (bal-
ancing rights of offsite off duty employee with the respondent’s private
property rights to exterior areas of its facilities); Peck, Inc., 226 NLRB
1174, 1175 (1976) (workers who occupied employee lunchroom after
shift ended engaged in illegal trespass).
2 Hillhaven Highland House, supra at 649. (“Broadly viewed, of
course, any employee engaged in activity to which the employer ob-
jects on its property, might be deemed a trespasser, not an invitee: the
employer arguably is free to define the terms of its invitation to em-
ployees.”). In Hillhaven, the Board held that offsite employees have a
Sec. 7 right of access to their employer’s facilities for the purpose of
organizing, although the access in that case was limited to an outside
nonwork area.
NYNEX CORP. 663
employees may be considered trespassers if they seek
access to the employer’s property when they have not
been invited on to the property, e.g., when they are
offduty.3 In those cases where offsite or off duty em-
ployees have been allowed access to the employer’s
property, the access has been limited to outside, nonwork
areas such as a parking lot.4 They have not been allowed
to enter en masse into an active area. In weighing an
employer’s reasons for denying access to offsite employ-
ees, the Board takes into account the employer’s “pre-
dictably heightened property concerns.” The Board has
acknowledged that an influx of offsite employees might
raise security problems or other difficulties that “might
well justify an employer’s restriction (or even prohibi-
tion) of such access.”5
Here, the Respondent operates two separate offices on
the third floor of a building, the Absence Benefit Center
(ABC or the Center) and the Benefit Delivery Center.
Only the employees in the Benefit Delivery Center are
represented by the Union. Entrance to both offices is
through a door controlled by an electronic access device.
The ABC employees and the Benefit Delivery Center
employees have access to the secure work area by use of
a magnetic card.
On July 14, Robert Shannon, the union business agent
who served the employees in the Benefit Delivery Cen-
ter, used his magnetic access card to allow all 13 union
members, including himself, to enter the secure area.
Not one of the 13 union members who entered the secure
area worked in the building. One of the 13 was not even
employed by the Respondent. Thus, all of the union
members were either offsite workers or nonemployees.
The nonemployee had no right at all to be on the Re-
spondent’s property, as there were clearly an alternative
ways available to present the grievances.6 Assuming
arguendo that the offsite employees had some right to
enter the ABC offices initially,7 once they engaged in

3 Id.
4 See, e.g., New York New York Hotel & Casino, 334 NLRB 772
(2001) (off duty employees of restaurant operating on the respondent’s
premises were entitled to handbill in nonwork areas, absent evidence
that their handbilling would interfere with production or discipline);
Tri-County Medical Center, 222 NLRB 1089, 1089 (1976) (except
when justified by business reasons, a rule which denies off duty em-
ployees entry to parking lots, gates, and other outside nonworking areas
is invalid). In Tri-County Medical, the Board also established clear
criteria for adopting a rule regarding off-duty employee access to the
employer’s property, providing that an employer may restrict access to
the interior of the workplace or other working areas.
5 Id.
6 See Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) (nonemployees
have no right of access to an employer’s property unless there is no
reasonable alternative available to exercise the relevant Sec. 7 rights).
7 See fn. 9, supra.
objectively disruptive behavior, and the Respondent,
through Staff Manager Marie McDonnell-Foley, ordered
them to leave, any license the offsite employees might
have had to be on the premises was revoked. At that
point, they had no right of access to the Respondent’s
facility. Their remaining in a work area after having
been asked to leave is not protected by Section 7. There-
fore, the suspension of the 12 employees was not unlaw-
ful.8
With respect to the 8(a)(5) allegation that the Respon-
dent refused to accept the Union’s grievances note that
the Union and the Respondent were parties to a collec-
tive-bargaining agreement which provided a grievance
and arbitration procedure. The first step of the grievance
procedure, described in article 13 of the agreement, re-
quires that grievances be presented

to the immediate supervisor or a higher ranking super-
visor in the department having authority in the matter
and the appropriate representative of the Union. The
grievance shall be reviewed at a meeting of not more
than three (3) Union representatives and not more than
three (3) representatives of management one of whom
shall be the immediate supervisor or a higher ranking
supervisor in the department having authority in the
matter.

Although the Union had historically presented griev-
ances to a grievant’s immediate supervisor, it interpreted
the language of article 13, which allows for presentation
of a grievance to “a higher ranking supervisor in the de-
partment having authority in the matter” to mean that the
Union could go to another department with its grievance.
The Union read “having authority in the matter” to mod-
ify “department,” and concluded that it could take its
grievances to the ABC as “the department having author-
ity in the matter.” The Respondent, on the other hand,
interpreted “having authority in the matter” to modify
“supervisor” and therefore understood that the Union
could go only to another higher ranking supervisor in the
grievant’s department. Although the judge acknowl-
edged the Union’s reading of the agreement to be a
“novel” interpretation, he nevertheless concluded that the
Union’s act of demanding to schedule grievances at the
ABC was protected, and that the ABC’s refusal to accept
those grievances violated the Act.
I agree with my colleagues that the Union had no right
to dictate the time and place of its presentation; it like-
wise had no right to choose the representative of the Re-
8 See, e.g., Loehmann’s Plaza, 316 NLRB 109, 114 (1995) (Loeh-
mann’s Plaza II) (employer’s pursuit of lawsuit against union for pick-
eting on employer’s premises was not unlawful where picketing was
found to be unprotected activity).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 664
spondent in the grievance procedure.9 Neither did the
Union have the right to unilaterally determine that article
13 gave it the right to present grievances to “the depart-
ment having authority over the matter” or that the ABC
was the authoritative department. The Union had no
authority to force the Respondent to allow the ABC to
process first-step grievances. If the Respondent con-
cluded that the collective-bargaining agreement did not
allow for the processing of grievances by the ABC, and
therefore caused the ABC to refuse the Union’s griev-
ances, then the Union’s remedy was to arbitrate to de-
termine the meaning of article 13 of the agreement. In
that forum the Union could voice its dissatisfaction with
the Respondent’s handling of grievances related to the
ABC. The Respondent was under no obligation to accept
grievances at the ABC pending such an arbitration.
Therefore, I find, for the additional reason to that ex-
pressed by my colleagues, that the Respondent did not
violate the Act by the ABC’s refusal to accept the griev-
ances.
Finally, I note that, with respect to the Respondent’s
State court lawsuit for trespass, my colleagues correctly
observe that this conduct cannot violate the Act inas-
much as the Union’s activity at which the lawsuit was
directed was itself unprotected. However, even if that
finding were to the contrary, there is still no violation.
Under Board law,10 an employer violates the Act only if
it does not stay a preempted State court lawsuit within 7
days of the General Counsel’s issuance of complaint.
Here, the General Counsel issued complaint on August
14, 1998. Although the record is silent regarding the
exact date of the Respondent’s motion to stay the State
court proceeding, the Respondent’s counsel, in a letter
dated September 3, 1998, confirmed that the lawsuit had
been stayed. Moreover, it is not argued, nor did the
judge find, that the Respondent continued the lawsuit
after the filing of the complaint by the General Counsel.
Accordingly, for this additional reason, the allegation
that the lawsuit violated Section 8(a)(1) lacks merit.

9 See New Jersey Bell Telephone Co., 308 NLRB 277 (1992) (a fun-
damental entitlement of the collective-bargaining process is that both
labor and management have “the right to select representatives of
[their] choosing for participation in the various phases of a complex
collective-bargaining relationship and, absent extreme reason to the
contrary, to be free of interference in the process from the opposite
party”).
10 For purposes of this discussion, I find it unnecessary to pass on
whether the precedent on which this finding is based, Loehmann’s
Plaza, 305 NLRB 663, 671 (1991) (Loehmann’s Plaza I), was cor-
rectly decided.
MEMBER LIEBMAN, dissenting in part.
Unlike my colleagues, I would affirm the judge’s find-
ing that the Respondent violated Section 8(a)(5) and (1)
of the Act by unilaterally canceling Union Representa-
tives Robert Shannon’s and Joseph DeBiase’s magnetic
access cards to the Harrison facility.
Those cards gave the two representatives effectively
unrestricted access: they could enter the facility at will,
without advance notice to the Respondent. There is
surely a significant distinction between this freedom and
the restrictions then imposed by the Respondent, which
required Shannon and DeBiase to request an access card
upon each visit and also required them to identify the
unit employee being visited. In effect, the Respondent’s
new policy forced the Union to identify those employees
involved in union activities or those seeking assistance
from the Union with workplace issues. This aspect of
the Respondent’s policy necessarily impacted the unit
employees’ ability to meet with or submit complaints to
the Union in confidence at the workplace.1 In my view,
this was a material and substantial change affecting the
entire unit. Accordingly, I would affirm the judge’s find-
ing.

Darryl Hale, Esq. and Lindsey E. Kendellen, Esq. for the Gen-
eral Counsel.
Michael Hertzberg, Esq., of New York, New York, for the
Respondent.
Thomas M. Murray, Esq. (Spivak, Lipton, Watanabe, Spivak &
Moss LLP), of New York, New York, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in New York, NY on five days between January
27 and February 23, 1999. The Complaint alleges that the Re-
spondent, in violation of Section 8(a) (1), (3) and (5) of the Act,
caused the police to detain Union representatives, filed a law-
suit for trespass against the Union, suspended employees, re-
fused to meet with the Union regarding certain grievances and
changed the terms and conditions of access by Union represen-
tatives to the Respondent’s facility in Harrison, New York.
The Respondent denies that it has violated the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
1 I recognize that the Union may have had regular meetings, at which
members would have been able to meet with union representatives
away from the Respondent’s watch. Unit employees who were not
members of the Union, and as a result were likely not permitted to
attend such meetings, would not have had the same opportunity.
NYNEX CORP. 665
by the General Counsel, the Union and the Respondent, I make
the following1
FINDINGS OF FACT
I. JURISDICTION
The parties agree that the Respondent, a domestic corpora-
tion with an office at 1095 Avenue of the Americas in New
York City and a facility located at 4 West Red Oak Lane, Har-
rison, New York, is engaged in providing telephone communi-
cation and related services. Annually, the Respondent derives
gross revenues in excess of $100,000 and receives at its New
York facilities goods valued in excess of $50,000 directly from
points outside the State of New York. The Respondent is an
employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act. Local 1105, Communications
Workers of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The parties agree that the following employees constitute a
unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:

Those employees described in Article 1, Section 2, Article 34
and Appendix A in the collective bargaining agreement be-
tween the Communications Workers of America, herein
called CWA, and New York Telephone Company Commer-
cial, Public Communications, Sales and Headquarters De-
partment Downstate and the Telesector Resources Group,
Inc., Downstate, effective by its terms December 4, 1989, as
amended September 1, 1991 and April 3, 1994 through Au-
gust 8, 1998.

The parties agree that at all material times CWA has been the
exclusive collective bargaining representative of the unit and
that Local 1105, hereinafter the Union, has been the designated
representative of CWA for purposes of contract administration,
including but not limited to grievance processing.
B. The Absence Benefits Center and Its Operation
In 1995 the Respondent established the Absence Benefits
Center (the ABC) to deal with employee absences. The ABC is
a location which receives recorded messages from employees
who will be absent on a workday due to illness or injury. The
Respondent’s employees, including the employees in the unit
above represented by Local 1105, telephone a toll-free number
to report an absence and to provide a return telephone number.
The employees’ calls are returned by licensed nurses working
at the ABC, also called nurse case managers, who seek details
from the employees about the illness or injury and who deter-
mine whether the absence is “justified” pursuant to the sick
leave provisions of the contract. The nurse case managers also
send e-mail messages to the employees’ supervisors notifying

1 The record is corrected so that at p. 463, L. 23 reads “qualifications
or training”; at p. 512, LL. 19 and 20, the case name should read
“Wright Line.”
them that the individual employees will be absent from work.2
The information provided to the nurses by the employees is
used to determine whether the employees will receive benefits
under the collective bargaining agreement.
Before the Respondent established the ABC, the unit em-
ployees’ immediate supervisors administered the pay treatment
of workers who were absent or on disability. Employees who
were ill or injured called the field supervisor who would take
the appropriate information and make sure that the employees
were being paid properly under the contract. Depending on an
employee’s length of service, he was entitled to be paid from
the first day or the third day of absence. After the seventh day
of absence, the personal physician would complete a form relat-
ing to the absence.
The ABC is located on the third floor of a building in West-
chester County, NY. The third floor also contains other offices
of the Respondent, including the Benefits Delivery Center in
which employees represented by Local 1105 work. As one gets
off the elevators on the third floor, a reception area is visible.
There are also some conference rooms opening on the public
hallway. The space where work is performed by the Respon-
dent’s employees is accessible through a door controlled by an
electronic access device. Entrance is gained by bringing a
magnetic access card into contact with the electronic device
which then opens the door. Throughout this case, the parties
have referred to the area within the electronic access doors as
the “secure area.” All of the Respondent’s employees who
work on the third floor have access to the secure area including
the nurse case managers employed by the ABC was well as
members of the Local 1105 bargaining unit, other employees
and the managers who have offices at the site. All of the Re-
spondent’s employees use the kitchen and the lounge which are
located within the so-called secure area.
In July, 1997 about 30 nurse case managers were employed
at the ABC. They came to work at staggered times between
7am and 9am. None of the ABC employees were represented
by a Union. Some of the nurse case managers were temporary
employees of the Respondent and some were employees of an
outside agency which had provided them to the ABC. All of
the nurse case managers were registered nurses with the whole
range of nursing experience including training in hospitals and
work with patients and as case managers. In addition, some
had specialized training or experience in mental health.
The physical location of the ABC consists of cubicles large
enough to accommodate a desk and two or three standing indi-
viduals. The cubicles are connected by narrow walkways to
which they open on one side. The walls of the cubicles do not
reach the ceiling; a person standing in a cubicle can see over
the walls into the surrounding area.
By 1997 the operation of the ABC had been a matter of dis-
pute between the Respondent and various locals of the CWA
for some time. Employees complained that the nurse case
managers were rude and that they made arbitrary decisions
about whether absences were justified and about how long em-
2 Medical information relating to employees is kept in filing cabinets
at the ABC and if a nurse is working on a particular case the informa-
tion may be on the nurse’s desk.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 666
ployees should be absent for a particular indisposition. There
were complaints that the nurses would often decide on the first
day of an illness how long the employee should be absent and
that they would inform the employee that if he did not return in
a certain number of days he would not be paid. One grievance
concerned an employee who suffered a miscarriage and
claimed that a nurse case manager had made harassing calls to
her in the hospital about the length of time required for her
recovery. Nurse case managers had the authority to inform
employees that, based on the information on hand, the em-
ployee would not be “justified” for an absence nor would he be
justified for further extensions of the absence. The record
shows that the Union filed grievances on behalf of some em-
ployees who were not paid because their absences had not been
justified by the nurse case managers. However, the record also
shows that actual control over the pay treatment of employee
absences rested with an individual employee’s field supervisor.
It is not clear on the record how the authority of the nurse case
managers was coordinated with that of the field supervisors
although is evident that the nurse case managers did play a role
in determining whether an employee would be paid for an ab-
sence.
The collective bargaining agreement provides in Article 13,
Section 1:

Grievances shall be presented to the immediate supervisor or
a higher ranking supervisor in the department having author-
ity in the matter . . . .

The Union and its sister local unions complained that they
could not resolve grievances about decisions made by the nurse
case managers at the lower steps of the grievance procedure.
Thus, when the Union presented grievances relating to actions
taken by the ABC they were dealt with by the employee’s im-
mediate supervisor. The Union complained that the first and
second step grievance representatives of the Respondent in-
variably told the unions that they had no authority to deal with
actions taken by the ABC. When the grievance reached the
third step, the management response was often that the ABC
would not give management the information necessary to deal
with the matter. The resolution of grievances concerning the
ABC took a long time and was fraught with frustration for the
employees represented by the local unions. ABC grievances
took from three to nine months to resolve and most grievances
about the ABC were denied by the Respondent. Sometimes the
union stewards and business agents who were directly respon-
sible for the earlier steps of the grievance procedure tried to talk
to the nurse case managers at the ABC in order to resolve pay
problems on behalf of the members.3 In May, 1997, the ABC
nurses stopped returning these types of telephone calls from
Union representatives.
In July, 1997 the Local 1105 executive board discussed the
problems relating to ABC grievances. The board discussed the
language of the contractual grievance procedure and decided
that instead of presenting the ABC-related grievances to the

3 If the grievant recalled the name of the nurse case manager dealing
with the particular absence the business representative might be able to
speak to that nurse.
employees’ immediate supervisors those grievances should be
presented to the ABC “supervisor having authority in the mat-
ter”. The Local 1105 executive board decided to present the
grievances directly to the ABC and to request appointments to
discuss the numerous pending grievances. Because the over
200 shop stewards were judged to be too large a crowd to send
to the ABC, it was decided that the executive board itself
should present the grievances and seek appointments to discuss
them.
I note that on October 21, 1998, Administrative Law Judge
Wallace H. Nations issued his decision (JD–178–98), in a case
involving the Respondent and Local 1112, CWA. In that case,
Judge Nations found that the Respondent had violated Section 8
(a) (1) and (5) of the Act by failing and refusing to supply in a
reasonable time information requested by Local 1112 which
related to the operations of the ABC. That case involved only
Local 1112. Local 1105, the Union herein, was not a party.4
Marie McDonnell-Foley is the staff director of the Absence
Benefits Center. She has been employed by the Respondent in
various capacities for over 21 years. McDonnell-Foley testified
about a weekend in mid-April 1997 when instead of the usual
ten new cases called in to the ABC there were about 300 hun-
dred calls to the ABC. By the close of business on Monday,
there were about 1200 new cases. McDonnell-Foley received
telephone calls from some field supervisors saying that al-
though they had received electronic notification that an em-
ployee was going to be absent, the employee was in fact at
work. The Respondent investigated the large volume of calls
and determined that they were made from a few telephone
numbers including one number belonging to another Local of
the CWA.5
C. Events of July 14, 1997
1. Testimony of the General Counsel’s witnesses
Paul Sapienza is a 20-year employee of the Respondent. As
the executive vice president of Local 1105 he sits on the execu-
tive board of the Local, he processes third-step grievances and
he keeps the records of grievance procedures.
Sapienza testified that on July 14, 1997, most of the mem-
bers of the executive board of Local 1105 and two staff assis-
tants arrived at the ABC location at about 8:15 a.m.6 All the
members of the Union group wore red golf shirts with an em-
broidered CWA Local 1150 logo.7 Sapienza was attired in
dress jeans and sneakers. The Union representatives took the
elevator to the third floor. There, Robert Shannon, a Local
4 The Administrative Law Judge’s Decision was not appealed to the
National Labor Relations Board.
5 There is no suggestion in the record that Local 1105, the Charging
Party herein, played any part in placing the large volume of calls to the
ABC in mid-April. Of course, some of those calls were genuine in that
they reported actual absences due to illness and injury.
6 The group included, Paul Sapienza, Roberto Perez, Joanne Amico,
Dexter Hendon, Keith Edwards, Denise Hawley, Frank Paxton, Robert
Shannon, Nelson Zapata, Lillian Dinker, Joyce Augustus, Doreen Sed-
ley and Patty Egan. Keith Edwards was not an employee of the Re-
spondent.
7 Since 1989 CWA members have worn red on Thursdays and other
days of significance as a demonstration of their solidarity.
NYNEX CORP. 667
1105 business agent, used his access card to open the door to
the secure area and the group entered the work area. Sapienza
testified that the group soon encountered two people. Sapienza
introduced himself and said that the executive board was there
to file grievances. He asked where nurse Carol Singer was
because she was the subject of the first grievance they intended
to present. After being directed to Singer, the group proceeded
to her cubicle. Once there, Sapienza greeted Singer, identified
himself and asked her to direct them to her supervisor so that he
could file a grievance.8 Singer gestured in a direction and said
that she did not know if her supervisor was in yet because most
people did not arrive until 9 a.m.
McDonnell-Foley then approached the group and asked what
they were doing. Sapienza introduced himself and the others
and told her that they were there to request appointments to
discuss grievances relating to the ABC. McDonnell-Foley said
that if they followed her she would talk to them and she mo-
tioned them outside the magnetic access door. Sapienza saw a
hallway with a number of elevators and he told McDonnell-
Foley that that was not an appropriate place to meet. He asked
if they could meet in a lounge near the door inside the secure
area. Sapienza had used the lounge in the past when he met
with Local 1105 members who worked on the third floor.
McDonnell-Foley asked to be excused for a moment and Sapi-
enza replied that the group would wait for her return. When
she did not return after ten minutes, the Union representatives
went looking for her. As they walked down the hallway, they
met two people and asked for McDonnell-Foley’s office and
continued down the hallway. Shannon copied the names ap-
pearing outside the cubicles for future reference in grievance
processing. Again the group was approached by two people
who told them not to go into the cubicles and not to look at any
information in the cubicles. Sapienza responded that they had
not entered into any cubicles but that they wanted to find Foley.
The people led Sapienza toward McDonnell-Foley’s office. At
some point a woman asked the names of the Union representa-
tives and Sapienza directed those in his group to give her their
names.
McDonnell-Foley then appeared walking toward Sapienza.
In response to his request that she give him an appointment to
discuss grievances, she said that she had no intention of making
an appointment and she said, “I’m going to have to ask you to
leave.” Sapienza replied, “You may ask but my intention is not
to leave until you give us the appointment.” McDonnell-Foley
repeated her request that they leave and Sapienza repeated his
determination not to leave until he had been given an appoint-
ment. McDonnell-Foley, who was accompanied by a man, told
Sapienza that the Union was trespassing. Sapienza replied that
they were not trespassing, that they had a right to be there and
that they had members at the site. He said that they were there
to present grievances and that they had a right to do that. Sapi-
enza said, “If you think we’re trespassing you can call the po-
lice or throw us out if that’s what you want to do but we have
every right to be here.” The man with McDonnell-Foley said
that he would like to throw them out. Sapienza told him to be

8 Sapienza also told Singer that she had been the subject of a griev-
ance.
careful. Finally, McDonnell-Foley told Sapienza that if the
Union group returned to the lounge she would talk about giving
him appointments to discuss grievances. When the group re-
turned to the lounge, McDonnell-Foley repeated that they were
trespassing and had to leave. Sapienza told her to check with
the Respondent’s labor relations staff.
McDonnell-Foley left and after about 10 minutes two police
officers came to the lounge. They informed Sapienza that
NYNEX had called them because the Union was trespassing.
Sapienza identified himself and the group. He told the officers
that they were there to present grievances. While one officer
went to speak to management, Sapienza told the other one that
the group had every right to be there and that he would be glad
to get the union attorneys to explain the position to the police.
The police officer said that Sapienza had to stay where he was
and could not leave. When the other officer returned from
speaking to management, he informed Sapienza that the com-
pany claimed that the group was trespassing. Shannon then
told the police that he had universal access to the Respondent’s
facilities and he demonstrated his card to the police. The offi-
cers said that they would call their supervisor and they told the
Union representatives to wait in the lounge. Fifteen minutes
later, Lieutenant Kamensky arrived. Sapienza and Kamensky
spoke about the universal access card and about the Respon-
dent’s claim that the Union was trespassing. Sapienza tele-
phoned John Hann, the member of the Respondent’s staff re-
sponsible for dealing with Local 1105, but Hann would not
speak to him. Sapienza again asked McDonnell-Foley to give
him a grievance appointment but she refused. Sapienza and his
group then decided to leave. Kamensky told them that they had
to stay in the lounge because the Respondent’s security depart-
ment was on its way to investigate how the Union representa-
tives had gained access to the facility. After 1/2-hour, Sapienza
telephoned a Union attorney about the situation. Pursuant to
his instructions Sapienza informed Kamensky that unless the
group members were going to be arrested they wanted to leave.
The Union group left the facility at about 10:15 a.m.
Sapienza testified that while the Union was walking around
the third floor area he saw only a few people at work. Of the
22 cubicles he saw, most were unoccupied. Sapienza stated
that his group did not disrupt the work of the nurse case man-
agers. Union people did not chant or yell, they did not enter
cubicles and they did not touch any medical files.9
Sapienza denied that McDonnell-Foley ever said that the Un-
ion representatives would be subject to disciplinary action by
the Respondent if they did not leave the facility. In the event,
Sapienza and all the other Union representatives were sus-
pended for two days. On July 18, 1997, he received a summons
in a trespass action filed by the Respondent. Sapienza stated
that the Local 1105 membership did not ratify the actions of the
executive board in coming to the ABC.
On cross-examination Sapienza acknowledged that he had
never before submitted a grievance to a manager at the ABC.
Management of the ABC was not used to dealing with the Un-
ion or handling grievances. Sapienza stated that all of the
9 Sapienza denied that the group sang the song “Old MacDonald Had
a Farm.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 668
members of the Local 1105 executive board present on July 14
were prepared to present various grievances relating to the
ABC. He acknowledged that he could have obtained McDon-
nell-Foley’s telephone number and contacted her before July
14. However, the purpose of having the executive board arrive
at the ABC unannounced was to emphasize the issues and to
demonstrate that the Union was serious about obtaining griev-
ance appointments.
Sapienza testified that in April 1997 a group of seven Local
1105 executive board members and staff went to the Respon-
dent’s facility on White Plains Road in the Bronx. Both repre-
sented and non-represented employees work at that location.10
The Union had received complaints from a number of employ-
ees about a supervisor’s memo that was perceived to be offen-
sive. The Union group entered the White Plains facility and
asked to speak to the offending supervisor. That supervisor
was not present, but other supervisors asked the group to leave.
The union people said that they wanted to speak to the manager
and file grievances. When the manager did not appear, the
Union asked the employees to stand up and to continue work-
ing standing up. Then the manager appeared and met with the
Union in a conference room. After the matter had been dealt
with, the Union told the employees to sit down. According to
Sapienza the Respondent did not discipline any of the Union
group as a result of the April 1997 visit to the White Plains
Road facility, it did not call the police and it did not file a law-
suit.
Sapienza testified that the collective bargaining agreement
does not deal with access to the workplace by union representa-
tives. The practice maintained between the Respondent and the
Union has been one of “open access.” Sapienza stated that
when he goes to one of the Respondent’s locations where the
entrance is protected by a guard he identifies himself and is
given free access to the building. If the guard has been re-
placed by an automated system then he uses the magnetic ac-
cess card supplied to him by the Respondent to enter the facil-
ity. According to Sapienza all of the union officials have mag-
netic access cards supplied by the company. Sapienza has
never had to request management’s permission to obtain access
to the workplace. Sapienza testified that during an adjournment
of the instant hearing he had used his access card to gain access
to the Respondent’s facilities in Staten Island, Brooklyn and
Manhattan.
Sapienza’s testimony about the events of July 14 was cor-
roborated by other members of the union group who were pre-
sent that day. Both Joyce Augustus and Doreen Sedley de-
scribed the events much as Sapienza had related them, albeit
with minor variations. Both Augustus and Sedley were pre-
pared to file grievances on July 14 concerning various actions
taken by certain of the nurse case managers. Sedley testified
that when the two police officers appeared at the facility they
told the union group that they were being kept on the premises
until corporate security arrived. In addition, the lieutenant told
the Union representatives that they were accused of trespass

10 There are about 100 members of the unit in the facility and the
managers commonly deal with on-site Union stewards and other Union
agents.
and until the matter was straightened out they would have to
stay where they were. Sedley testified that when McDonnell-
Foley was talking to Sapienza about whether she would discuss
grievances with him she mentioned something about trespass-
ing and disciplinary action, but Sedley could not recall exactly
what McDonnell-Foley had said.
The record shows that on July 14, 1997, there were no signs
posted at the West Red Oak Lane facility limiting access to the
secure area of the third floor.
Robert Shannon is a Local 1105 business agent and a mem-
ber of the executive board. Shannon testified that as a matter of
practice he has access to the Respondent’s facilities without
asking permission of management. When Shannon became a
business agent in 1991 he represented the then 80 unit members
who worked in the Benefits Delivery System located at the
West Red Oak Lane facility.11 Shannon introduced himself to
Robert Leonard, the division manager at the facility, and said
that he needed access to the members. Leonard gave Shannon
a magnetic access card for the third floor. Shannon has never
had to check with management before visiting the facility.
After the ABC was established on the third floor Shannon con-
tinued to visit the facility and he checked on the working condi-
tions of his membership. Although the ABC personnel were
now working in the same secure area with the Benefits Deliv-
ery System union members Shannon was not restricted in his
movements on the third floor. He conducted meetings for the
members in the lounge and he visited the area with other Union
officials.
Shannon recalled that on July 14, 1997, the Union group ar-
rived at the facility at 8:15 a.m. He saw a couple of nurses
having coffee and talking and he asked them who was in charge
of the ABC. The nurses said that McDonnell-Foley was in
charge but that they did not know where she was. The group
walked down the hall looking for Foley. They took down some
of the nurses’ names if they saw them posted outside the indi-
vidual cubicles. About 15 or 20 minutes after the group entered
the facility, Foley walked over to them. Sapienza introduced
himself and said that he was there to make a grievance ap-
pointment. Shannon had a list of grievances that he wanted to
file. McDonnell-Foley told the group to wait in the lounge
while she went to get her calendar. When she failed to return
after about 20 minutes, the union agents went looking for her.
Shannon testified that McDonnell-Foley was in the hall with
another female manager and two male managers. She asked the
union group to leave. When Sapienza said that they were there
to set up grievance appointments, McDonnell-Foley directed
them back to the lounge. Shannon stated that two police offi-
cers arrived and that McDonnell-Foley told them that the Union
was trespassing and that she wanted them removed. The union
representatives told the police that they were company employ-
ees and union members and they showed their ID cards. One of
the officers left to summon the lieutenant. The other officer
stood in the door and told the group that they were not permit-
ted to leave until the matter was straightened out. After about
20 minutes the lieutenant arrived and conferred with Sapienza
11 In 1996 the department was moved to Florida and now there are
only five unit members remaining at the facility.
NYNEX CORP. 669
and McDonnell-Foley. Shannon denied that the Union repre-
sentatives chanted, sang songs, spoke very loud or entered the
nurses’ cubicles. He denied that the work of any nurse was
disrupted, pointing out that for most of the time between 8:15
and 9:45 that he was at the facility the Union contingent re-
mained in the lounge.12 He did not hear McDonnell-Foley
threaten disciplinary action if the group did not leave the prem-
ises.
Shannon testified that on July 14 he saw a total of 15 to 20
people who were not members of the bargaining unit at the
facility. Some were walking around and some were in cubicles.
2. Testimony of the Respondent’s witnesses
McDonnell-Foley testified that on July 14, 1997, she arrived
at work between 7:30 and 8am. There were some nurses work-
ing when she arrived and by 8:30 at least one-half of the nurse
case managers were present. According to McDonnell-Foley
she heard a commotion in the hallway and walked toward it to
see a “sea of red with red T-shirts, about 15 people.” The peo-
ple were standing near nurse case manager Carol Singer’s cubi-
cle. McDonnell-Foley tried to squeeze between the people.
There was a loud noise and everybody was speaking. McDon-
nell-Foley identified herself by name and title and asked, “Can
I help you?” In response, Paul Sapienza, the executive vice
president of Local 1105, introduced himself and said that he
was there to see nurse Singer and other nurses whom he identi-
fied by name. McDonnell-Foley testified that Sapienza’s voice
was loud as though he were making a statement to a group.
She told Sapienza that if he came with her they could talk.
When pressed on direct examination to recount more of the
initial conversation with Sapienza, McDonnell-Foley stated that
she could not recall what Sapienza said. She thought he wanted
to see specific nurses and he may have said that he wanted to
file grievances. She testified that she was scared because she is
not big and she was surrounded by 15 people who were mostly
big men.
McDonnell-Foley stated that she tried to lead the group to a
conference room but they “walked right by her” so she sug-
gested that they go into the lounge. After the group was in the
lounge, McDonnell-Foley told them that she had to get a pen
and paper and that she would be right back. She returned to her
office and called the labor relations staff of the Respondent.
However she could not reach anyone. Eventually, she left
voice mail messages for several different managers. As she left
her office, she saw the union group in the corridor. She put her
hands out and said that the group could not walk around be-
cause there was confidential medical information in the area.
But the group ignored her and kept walking. McDonnell-Foley
saw two account executives, Ruth Burns and Maureen Walsh,
and told them, “We can’t let them walk around here.” She
testified that she did not ask the two women to take any action.
Next, McDonnell-Foley went to the director’s office outside
the secure area where the executive assistant had some mem-
bers of the Respondent’s labor relations staff on the telephone.

12 Shannon left the lounge to use the lavatory and he then waited
downstairs until the entire Union group left the facility.
McDonnell-Foley spoke to a few of these people, perhaps in-
cluding John Hann.
Next, McDonnell-Foley returned to the ABC with John Sias,
an executive not involved with the ABC. She testified she
asked Sias to accompany her because she is a woman and there
were men there and “I was just scared.” McDonnell-Foley and
Sias encountered some union representatives in the hallways
between the cubicles. One of them was writing on a pad of
paper. McDonnell-Foley told the Union agents that they were
trespassing and that they had to leave. Sias also told the Union
people to leave. Union representative Robert Shannon asked
Sias whether he was threatening him and Sias replied that the
representatives should leave. McDonnell-Foley did not recall
anything else that was said as part of this exchange but she did
recall that Shannon was “very contentious.”
McDonnell-Foley and the Union agents went back to the
lounge and she repeated that the Union was trespassing, that the
representatives would be subject to discipline if they did not
leave and that she would call the police if the Union did not
depart. Sapienza said that he wanted to file grievances with
McDonnell-Foley but she replied that he would have to go
through the labor relations staff. McDonnell-Foley testified
that “they” told her to call the police, but she could not recall
who had actually said that. She stated that she did not want to
call the police but eventually she instructed Ruth Burns to
summon them.
While McDonnell-Foley and the union group were in the
lounge one of the group asked her for her name and telephone
number. She replied that her name was Marie McDonnell.
Then someone called her phone and heard her full name on her
voice mail. McDonnell recalled that “they started laughing and
singing the song ‘Old MacDonald had a Farm.’”
Soon after this exchange two police officers arrived.
McDonnell-Foley informed the officers that she wanted the
Union representatives to leave. She testified that she did not
ask the police to detain the Union group. One of the officers
told McDonnell-Foley that he had to call his lieutenant. Then
he informed her that he could not make the Union leave unless
she pressed charges. McDonnell-Foley replied that she did not
want to press charges.
Eventually, the Union group left.
According to McDonnell-Foley, the nurse case managers did
not do any work on July 14. While the Union was there she
took them away from their work and instructed them to sit in
the conference room. Then, she met with them to calm her
down. She believed they needed calming down because they
had never experienced this type of event before. She added that
the nurses spent the afternoon speaking to three psychiatric
nurses. McDonnell-Foley stated that the nurses asked that a
security guard be seated outside the elevators. Although the
usual turnover at the ABC was two or three nurse case manag-
ers per month, about 20 of them resigned in July and August. 13
13 No direct testimony was presented to show why 20 nurses re-
signed in the summer of 1997. Although the Respondent clearly seeks
to blame Local 1105 for the resignations there is insufficient evidence
to make a finding on this point.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 670
On cross-examination by counsel for the General Counsel,
McDonnell-Foley stated that she gave a statement about the
July 14 incident to the Respondent’s corporate security depart-
ment on July 15. Her statement reveals that Maureen Walsh
and Ruth Burns first informed her that there were people from
the Union in the facility. The statement contains nothing about
McDonnell-Foley becoming aware of the presence of the Union
through a commotion in the hall. McDonnell testified that she
did not call corporate security on the 14th and she could not
recall whether she knew they were coming to the facility while
the Union representatives were on the premises. Before July 14
she knew that the Union had filed grievances concerning the
actions of the ABC and she recalled that on July 14 Sapienza
said that he wanted to see the nurse case managers and that he
wanted to file grievances. McDonnell said that Sapienza did
not tell her that he wanted to set up appointments for griev-
ances. She recalled that he was yelling as loud as he would
have at a rally. At first, McDonnell-Foley did not recall that
there were any women in the Union group, saying, “it just ap-
peared that there were a lot of men there. They were bigger
than I was.” Finally, she acknowledged that of the 15 Union
people one-half were women. McDonnell-Foley could not
recall whether she told the police that the Union was trespass-
ing but she did tell them that the group was in an unauthorized
area. The police asked her how the Union group had gained
access. McDonnell did not recall that a Union representative
demonstrated his magnetic access card for the police.
Maureen Walsh is a staff manager at the ABC.14 Walsh, a
14-year employee of the Respondent, assists with the day-to-
day operations of the office. She reports to McDonnell-Foley.
Walsh testified that on July 14, 1997 she arrived at work be-
tween 8 and 8:15 a.m., she turned on her computer and then she
went to the kitchen to get some tea. She noticed that some
nurse case managers were present in their cubicles. As Walsh
left the kitchen she saw some people wearing red T-shirts walk-
ing toward Carol Singer’s cubicle. Walsh heard a lot of noise.
She asked whether she could help the group and a man later
identified as Frank Paxton replied that they were on a tour.
Walsh could not recall any of the Union group informing her of
the purpose of their visit. Walsh recalled a comment she heard:
“Nice picture, nice kids, hope you love your kids, we now
know what they look like.” Walsh said she heard “something to
that effect” but she did not offer any description of the person
who said this. After encountering the Union representatives,
Walsh went into McDonnell-Foley’s office. Later, according to
Walsh, she saw McDonnell-Foley quarreling with the Union
representatives. She heard her asking them to come into the
conference room but instead they went into the lounge. Still
later, Walsh saw the group come down the hall to McDonnell-
Foley’s office. She saw McDonnell-Foley put her hands out
across the hall and ask them not to proceed, but the Union rep-
resentatives walked on nevertheless. McDonnell-Foley asked
Walsh to follow the representatives and get their names. Walsh
and Burns saw that the Union people were writing down the
names of nurses who occupied the various cubicles. When

14 Walsh manages the clerical staff. The supervisor of the nurse case
managers is Carla Quinlan.
Walsh asked them for their names and asked to see some ID,
they laughed. Walsh later saw the Union group in the lounge
with McDonnell-Foley. Walsh said she heard McDonnell-
Foley tell them that they were trespassing and that they might
be subject to disciplinary action and that they should leave.
On cross-examination by Counsel for the General Counsel
Walsh stated that she was interviewed by the corporate security
department on July 14 for 25 minutes. Walsh wanted to tell the
security department everything that had happened earlier in the
day because she had felt intimated by the Union group. The
notes of Walsh’s interview show that Walsh told corporate
security that when she first encountered the Union representa-
tives they told her that they were looking for McDonnell-Foley.
The notes contain no mention that anyone told Walsh that they
were “taking a tour” nor do the notes reflect that anyone made
comments about any children’s’ pictures in the nurses’ cubi-
cles.
Carol Singer was a temporary employee of the Respondent at
the ABC facility in July 1997. Singer is a registered nurse with
a master’s degree in mental health nursing. Singer recalled that
on July 14th she was sitting in her cubicle when she heard a
loud voice asking for her by name. She stood up in her cubicle
and as the Union group approached she saw seven or eight
people wearing red shirts. Singer could not recall much about
the events of July 14. She recalled that Sapienza spoke to her
but she did not remember anyone else saying anything else to
her. She testified that Sapienza was speaking very loudly and
that he was angry but she could not recall anything that he said
beyond asking to speak to Singer’s supervisor. Singer stated
that it was “a very traumatic incident because there were all
these people there.” Singer said that she was intimidated and
frightened but she did not provide any details to show why she
felt that way beyond Sapienza’s loud voice and the fact that
there were seven or eight people near her cubicle. Singer told
Sapienza that her supervisor was Harriett Vogel. Then
McDonnell-Foley came to Singer’s cubicle and the Union
group left. Singer related that the nurses were asked to leave
and go outside the work area. Singer said that all the nurses
were upset because “the Union had come in and invaded the
work space, and disrupted all of us and . . . we weren’t going to
get anything done for a while.” Singer gave a statement to the
company’s security representative that she told Sapienza that
her supervisor did not make decisions on benefit cases but that
she alone made these decisions.
John Sias, a 17-1/2 year employee of the Respondent, was no
longer with the company when he testified in the instant hear-
ing. Sias recalled that on July 14 McDonnell-Foley came into
his office and said that she had a group of uninvited union
members roaming around the floor. She asked Sias to help her
get them to leave. Sias walked up to a group of four or five
men at the end of a corridor and said, “Can I ask your name?”
Someone said, “You can ask.” Then Sias told the group that
they were in a restricted area and would have to leave the prem-
ises. The union representatives said that they would not leave.
Sias stated that he did not behave in a hostile or threatening
manner and he did not say that he wanted to throw Sapienza
out. Sias said that he was speaking in a tone loud enough for
NYNEX CORP. 671
the Union to hear and that the union group was also speaking
loudly but was not screaming.
John Hann, a 35-year employee of the Respondent, is the Di-
rector of Labor Relations. Hann testified that the ABC was a
major issue between the Union and the Respondent and that
hundreds of grievances concerning the ABC had been filed by
the various bargaining units. Hann testified that he and other
managers decided to discipline the employees who went to the
ABC because they disrupted work operations, they intimidated
employees and they refused to leave when asked to do so. He
denied that the decision to discipline the employees was based
on the Union’s request to file grievances or to make appoint-
ments to discuss grievances.
On cross-examination, Hann testified that grievances con-
cerning ABC decisions on absences were not being taken care
of at the first step. Further, an issue relating to the Family
Medical Leave Act had led to the filing of a lawsuit by the Un-
ion. Hann stated that the grievances concerning the ABC could
lead to arbitrations that might cost the Respondent a lot of
money. The company did not want the ABC to be part of the
grievance procedure. Hann stated that before a decision was
made to suspend the employees who went to the ABC on July
14th he received reports from the corporate security people
orally and in writing. Hann acknowledged that usually before
the company suspends an employee it conducts an investigation
and asks the employee for his or her side of the story. In the
instant controversy, however, he believed that it was outra-
geous that Local 1105 had invaded the workplace, intimidated
employees, disrupted their work and refused to leave when
asked.
Michael J. Kamensky, a Lieutenant in the Town of Harrison
police department, testified that on July 14, 1997, he went to
the West Red Oak Lane facility in response to a request from
two police officers at the scene. The officers told Kamensky
that they were conducting a criminal investigation for the pos-
sibility of a misdemeanor criminal trespass and possession of
stolen property.15 Once he arrived at the facility Kamensky
spoke to McDonnell-Foley who told him that the Union group
was not supposed to be on the premises and she wanted them
removed. When Kamensky asked her whether she wished to
press criminal charges, she stated that she was unsure and that
she would have to contact people in higher authority in the
company. Kamensky spoke to Sapienza who said that the Un-
ion representatives had a right to be there and that they had
authorized key cards. Sapienza said the Union was staying
because the group wanted the officer manager to meet with
them and to set up a meeting. Sapienza kept insisting that he
wanted McDonnell-Foley to arrange a meeting. Kamensky
recalled that when he spoke to Sapienza the latter was “very
aggressive, loud and boisterous”. Sapienza wanted to get his
point across and at times his voice was elevated. But Sapienza
was not abusive and he was not screaming. McDonnell-Foley
was agitated and she seemed overwhelmed by the situation.
After these two conversations, Kamensky spoke by telephone
with John Hann who said that the company would handle the

15 The record contains no clue as to the matter of alleged stolen
property.
matter internally and that it did not intend to press charges.
Once Kamensky heard this, the matter was no longer a criminal
investigation. At this point, the Union representatives were free
to leave. Kamensky told Sapienza that the Respondent would
not press charges and that it wanted him to leave the premises.
According to Kamensky, before he was told that the com-
pany was not pressing charges the situation was that the police
were conducting a criminal investigation. While the criminal
investigation continued the police were detaining the Union
representatives as alleged suspects.
D. Suspensions
On July 16, 1997 the Respondent sent two-day suspension
notices to all of its employees who participated in the July 14
attempt to present grievances to the ABC. The notices gave the
following reason for the suspension: “your disruption of work
operations and your refusal to follow a direction by manage-
ment to leave the work area.” The employees included:

Joanne Amico Frank Paxton
Joyce Augustus Roberto Perez
Lillian Dinker Paul Sapienza
Patricia Egan Doreen Sedley
Denise Hawley Robert Shannon
Dexter Hendon Manuel Zapata Jr.
E. Lawsuit Against the Union
On July 17, 1997, the Respondent commenced a lawsuit in
the Supreme Court of the State of New York against Local
1105 and all 13 individuals who went to the West Red Oak
Lane facility on July 14.16 The complaint alleges that access to
the facility is limited to the Respondent’s employees and invit-
ees, that the individual defendants gained access to the prem-
ises by the improper use of a security access card and that the
individual defendants intimidated and harassed the staff,
blocked the hallways, entered private cubicles and caused busi-
ness operations to cease completely for “approximately five
hours.” The complaint alleges that the “unlawful activities of
the individual defendants … were directed, authorized, con-
doned and approved by Defendant Local 1105.” The damages,
in excess of $25,000, were left to be determined at trial.
On September 3, 1998, Peter D. Stergios, Esq., an attorney
representing the Respondent in the New York State action for
trespass, wrote to Counsel for the General Counsel stating:

[T]his confirms that we will not pursue that trespass action
during the pendency of your Region’s proceedings in this
matter . . . . Should we receive any inquiry from the Court,
we will respond by requesting that the action be held in abey-
ance pending the outcome of your proceedings.
F. Access to the Facility
Shannon testified that he went to the West Red Oak Lane fa-
cility at the end of July to meet with the Union members. His
access card no longer opened the door to the third floor area
and Shannon did not gain admittance that day. When Shannon
spoke to one of the Respondent ‘s managers in charge of labor
relations he was told that he was being denied access through
16 Index No. 11359/97 was filed with the County Clerk on July 17.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 672
the use of the card and that if he wished access to the facility he
would have to see a manager. Now, when Shannon visits the
members at the West Red Oak facility he must go to the recep-
tion area and ask for admittance. A receptionist notifies man-
ager Joan Scott-Monck that Shannon is present and then the
receptionist is directed to admit him to the secure area.
Joanne Baker the Respondent’s Director of Employee Bene-
fits is the highest-ranking manager at the West Red Oak Lane
building. Baker testified that after July 14 she tightened up
security to the facility on the recommendation of the corporate
security department. Baker cancelled Shannon’s magnetic
access card. Thereafter Shannon had to obtain an access card
whenever he visited the facility. It was not Baker’s policy to
deny him access to the facility.
Joseph DeBiase, a chief steward for Local 1105, testified that
he used to have an access card for the West Red Oak Lane fa-
cility but that it had ceased working in the summer of 1997.
His request to Scott-Monck for a replacement was denied.
Instead, he is given a card each time he visits the unit members
and he must return the card at the end of his visit. In November
1997 DeBiase went to confer with unit employee Mary Hussey.
When DeBiase arrived at the facility and asked for an access
card, Scott-Monck told him to wait and that she would get
Hussey to see him. Shortly thereafter Hussey came out of the
secure area and DeBiase met with her in the lobby area.
Hussey told him that she had been directed to meet with him
outside and that she had been told to leave her access card in
the secure area and to ask a manager for admittance when she
finished speaking to DeBiase. DeBiase testified that this
method of proceeding meant that management was always
aware when he met with a unit member and that he could not
conduct surprise visits to check for safety violations and haz-
ards in the workplace.
Staff director Joan Scott-Monck testified that for a number of
years she has known both Shannon and DeBiase to come visit
the unit members unannounced. However, as of November
1997 the Union agents were required to obtain access cards
from management officials. The access cards must be returned
after each use. In addition, a security guard has been posted
outside the third elevator and the guard checks the ID of any
person attempting to use an access card to enter the secure area.
Scott-Monck testified that in November 1997 DeBiase told her
that he had come to see unit employee Marie Hussey. Scott-
Monck said that she was on her way to the secure area and so
she told DeBiase that she would check to see whether Hussey
was in. When Scott-Monck found Hussey she told her that
DeBiase was there and that she would fetch him. Hussey said,
“That’s OK, I’ll go out and see him outside.” Scott-Monck
testified that she did not tell Hussey to leave her pass before she
went outside.
G. Discussion and Conclusions
1. Credibility of the witnesses
The testimony of McDonnell-Foley is difficult to accept on
many points. McDonnell-Foley had a tendency to exaggerate
her descriptions of the events of July 14. On direct examina-
tion she said that Sapienza’s voice when she first encountered
him was “loud” as though to address a group but on cross ex-
amination she stated that he was “yelling” as though at a rally.
McDonnell-Foley sought to give the impression that the Union
group was intimidating. She constantly referred to “men” and
to the “sea of red shirts” they were wearing. In fact, the group
was composed of an equal number of men and women.
McDonnell-Foley implied that the wearing of a red polo shirt
with a Union logo was frightening. The fact is that the Union
group consisted of a bunch of middle-aged people wearing
sneakers, hardly the revolutionary sans culottes who stormed
the Bastille.17 In the absence of any objective facts to support
her testimony that the Union representatives were physically
intimidating or actually threatening, McDonnell-Foley repeat-
edly fell back on the complaint that she is a small person and
she was surrounded by men or “big” men. The record shows
that McDonnell-Foley has been employed by the company for
21 years and that she has risen to a position of executive re-
sponsibility. During this time she has doubtless dealt with
many men including big men. Many times in her 21 years of
employment she must have attended meetings where she was
the only woman or in a distinct minority of women.18 McDon-
nell-Foley could not have risen to her present position if she
could not deal with a situation where men were present, even
big men. It is rather late in the day for a woman to expect a
finder of fact to believe that the mere presence of men reasona-
bly tends to intimidate a woman manager. I find that McDon-
nell-Foley’s exaggerated testimony on this point was designed
to make the Union visit look violent and shocking. Further,
McDonnell-Foley’s recollection was inexact. First, she testi-
fied that she became aware of the Union group’s presence by a
commotion. In fact, her own statement to the company security
department stated that Walsh and Burns came to her office to
tell her the Union was there. Second, McDonnell-Foley repeat-
edly testified that she could not recall what was said in many of
the conversations that are central to the case. Thus she could
not recall what Sapienza said to her when they first met. She
could not recall that she instructed Burns and Walsh to follow
the Union group and take their names.19 I conclude that
McDonnell-Foley did not recall many of the facts she was
asked about and that she shaded her testimony, and I shall not
rely on her testimony where it is contradicted by more credible
evidence.
Walsh testified on direct examination by Counsel for the Re-
spondent that while she was standing with the Union group on
July 14 she heard a comment about a nurse’s children and the
veiled threat “We now know what they look like.” This is a
very serious accusation. Although Walsh remembered that
Paxton said the Union was “on a tour” she could not recall who
made the implied threat on the staff member’s children. Fur-
thermore, Walsh’s statement to the Respondent’s security
department given on July 14 did not mention the alleged threat.
If Walsh had indeed heard a threat to an employee’s family on
17 The Respondent’s brief has seized on the date of the Union’s visit
to the third floor of the West Red Oak Lane facility to draw an ill-
founded analogy to the French Revolution.
18 At the instant trial, McDonnell-Foley was part of a very small mi-
nority of women on the Respondent’s side of the courtroom. Indeed,
on some days she was the only woman representing the Respondent.
19 Walsh testified that she and Burns followed this directive; appar-
ently they were not afraid of men.
NYNEX CORP. 673
Walsh had indeed heard a threat to an employee’s family on the
morning of July 14 she could not have failed to relate this to
corporate security later on the same day. I conclude that the
threat was never made. I find that Walsh shaded her testimony
to favor the Respondent’s position and I shall not rely on her
testimony where it is contradicted by more credible evidence.
Singer’s testimony was not convincing. She stated that she
was intimidated and frightened because seven or eight people
were around her cubicle and Sapienza was using a loud and
angry voice. As a trained nurse with a specialty in mental
health nursing Singer was surely competent to deal with a per-
son using an angry and loud voice without feeling intimidated
and frightened. Since Singer could not recall what Sapienza
said she obviously did not feel threatened or intimidated by
anything he said to her. Nor did the Respondent proffer any
testimony at all that Sapienza made threats or behaved in a
physically threatening manner. Nurses are trained to document
conditions and events. Because Singer did not recall any spe-
cifics of what Sapienza said to her or what he did that made her
feel threatened or intimidated I do not credit her testimony.
Moreover, her use of the term “invaded the work space” and
“disrupted us all” is identical to the phrase used by Director of
Labor Relations John Hann. This leads me to believe that the
phrase was prompted more by the Respondent’s legal strategy
than by Singer’s actual recollection of the events of July 14.
I find that all of the other witnesses herein testified in a
straightforward manner given the normal vagaries of recollec-
tion and a tendency to favor one’s own view of the case.
2. Resolution of factual issues
Based on my credibility discussion above, I find that the fol-
lowing events took place on July 14, 1997:
At about 8:15 a.m. 14 Local 1105 representatives took the
elevator to the third floor of the West Red Oak Lane facility.
Local 1105 business agent Shannon used the key card issued to
him by the Respondent to open the locked door to the work
area. The individuals of the Union group were there to present
grievances concerning the operation of the ABC to a “supervi-
sor in the department having authority in the matter.” The Un-
ion believed that in this case the grievances should be presented
to supervisors of the nurse case managers at the ABC.
Once inside the work area, the Union group located nurse
Singer who was the subject of one of the grievances. Sapienza
told Singer that she was the subject of a grievance and that the
executive board of Local 1105 was on the premises to file
grievances. Sapienza asked Singer the whereabouts of her
supervisor. Singer pointed the way but said that she was not
sure whether the supervisor had arrived at work. Singer told
Sapienza that she made decisions on benefit cases not her su-
pervisor.
McDonnell-Foley then approached the group having been
alerted to the Union presence by some employees. Sapienza
told her that the Local 1105 executive board was there to pre-
sent grievances and to request appointments to discuss griev-
ances relating to the ABC. Sapienza mentioned the names of
various nurses and said that the members of the group wanted
to present grievances relating to each of these nurses. McDon-
nell-Foley told Sapienza that she would talk to him and she
tried to lead the group outside the secure area to a conference
room on the public hallway. Instead, Sapienza asked whether
they could meet in the employee lounge. After the Union
group entered the lounge, McDonnell-Foley said that she was
leaving to get a pen and paper but that she would return in a
few minutes. She returned to her office and made vain attempts
to contact people in company labor relations. McDonnell-
Foley instructed those nurses who were already at work to
leave their cubicles and sit in the conference room.
Ten minutes after McDonnell-Foley left the lounge the Un-
ion representatives went looking for McDonnell-Foley’s office.
They walked down the hallways of the ABC and took down the
names of nurses from signs outside the cubicles. There is no
evidence that the Union representatives looked at any confiden-
tial medical information while they were in the ABC area.
McDonnell-Foley saw the group and she tried to stop them
from walking around the area. Pursuant to McDonnell-Foley’s
instructions, Walsh and Burns followed the Union group and
asked for the names of the Union representatives.
Eventually McDonnell-Foley spoke to members of the com-
pany labor relations staff by telephone. Next, McDonnell-
Foley asked Sias to accompany her to see the Union group.
They all met in the hallway. Sapienza repeated his request that
she give the Union an appointment to discuss grievances con-
cerning the ABC. McDonnell-Foley said that she would not
give him an appointment and she indicated that she wished the
Union representatives to leave. McDonnell-Foley told Sapi-
enza that the Union was trespassing. Sapienza denied that they
were trespassing and he asserted that the group had a right to be
there because they had members at the site and they wanted to
present grievances.
The Union representatives and McDonnell-Foley again
headed for the employee lounge. McDonnell-Foley repeated
her charge that the group was trespassing and she said that she
wanted them to leave. McDonnell-Foley mentioned that the
Union group could be subject to discipline. Sapienza suggested
that McDonnell-Foley contact the Respondent’s labor relations
staff for instructions on how to proceed and she left the lounge.
Eventually, McDonnell-Foley summoned the police. When the
officers arrived, she told them that the Union group was tres-
passing and that she wanted the Union to leave.
Sapienza told the police officers that his group was there to
present grievances and that they had the right to be on the
premises. Shannon demonstrated his key card and the Union
representatives told the police that they had access to the Re-
spondent’s locations. The police officers decided that they
were witnessing a labor-management dispute and they called
for a superior officer. In the meantime, the officers instructed
the Union representatives to stay in the lounge. The officers
were conducting a criminal investigation and the Union repre-
sentatives were alleged suspects. Lieutenant Kamensky arrived
about 15 minutes later and Sapienza informed him that the
Union had access to the premises. Sapienza repeated to
Kamensky his request that McDonnell-Foley should make ap-
pointments to discuss grievances concerning the ABC. But
McDonnell-Foley said that grievances had to be filed with the
labor relations staff.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 674
Kamensky told Sapienza that the corporate security staff was
on its way to investigate how the Union had gained access to
the secure area. Kamensky told Sapienza that his group had to
stay in the lounge. Eventually, pursuant to telephonic instruc-
tions from Union counsel, Sapienza told Kamensky that unless
the Union representatives were going to be arrested they
wanted to leave. Kamensky spoke by telephone with Hann
who told him that the Respondent did not intend to press
charges against the Union representatives. Kamensky decided
that this put an end to the ongoing criminal investigation and at
this point the Union group was free to leave the premises. At
about 10:15am the Union people left the facility.
Sapienza spoke to Singer in a voice loud enough to be heard
some distance in the hallways. Sapienza spoke to McDonnell-
Foley in a voice loud enough to be heard by a group, but Sapi-
enza did not yell at her. While in the hallways, others in the
group also spoke and inquired for the location of various nurse
case managers whom they wanted to identify in connection
with certain grievances. I do not find that the Union yelled or
shouted or chanted in the hallways near the cubicles. Although
some noise would unavoidably be created by the presence of 14
people talking and walking down the narrow hallways to the
cubicles, I do not find that the Union group took any action to
create an undue disturbance in the hallways. There is no credi-
ble evidence that the Union group threatened harm to any per-
son at the ABC and there is no evidence that the group looked
at confidential information. Consistent with the testimony of
Kamensky about the situation in the lounge, I find that while
Sapienza was in the lounge he was very aggressive, loud and
boisterous but that he was not abusive and he did not scream.
Pursuant to Hann’s testimony, I find that the Respondent
disciplined its employees who were members of the executive
board of Local 1105 for the stated reason that they had invaded
the workplace, intimidated employees, disrupted the work of
employees and refused to leave when asked.
3. Resolution of legal issues
It is clear that the Union group was engaged in protected ac-
tivity on the morning of July 14, 1997. The presentation of
employee grievances is protected under the Act.20 Local 1105
had brought many grievances relating to the ABC method of
handling of employee’s absences caused by illness and injury.
The uncontradicted testimony shows that the grievances were
not being resolved by the employees’ supervisors at the lower
steps of the grievance procedure because the supervisors had no
authority over the decisions made by the ABC and because they
were not being given necessary information by the ABC. The
Union’s attempts to resolve matters directly with the nurse case
managers were rendered ineffectual when the nurses stopped
returning shop stewards’ calls in April 1997. As a result the
Union decided to bring grievances directly to the ABC under
the contract provision that permits presenting a grievance to a
“higher ranking supervisor in the department having authority
in the matter.” It is not for me to decide the merits of the griev-
ances sought to be presented by the Union. It is enough to find,
20 Ad Art, Inc., 238 NLRB 1124, 1131 (1978), enfd. 645 F.2d 669
(9th Cir. 1980).
and I do, that the Union had numerous grievances that it was
trying to present to supervisors at the ABC who had authority
over the work done by the nurse case managers. Although the
ABC supervisors did not usually deal with the Union concern-
ing grievances the Union was not debarred from presenting
grievances to these supervisors where the contract language on
its face permitted such a method. The Union’s novel interpreta-
tion of the contract does not render its efforts unprotected.
It is well established that unless employees engage in egre-
gious conduct while conducting protected activity they do not
lose the protection of the Act.21 Here, the facts show that the
Union group approached individual nurse case managers at
their cubicles, informed them that they were the subject of
grievances and asked the identity and location of their supervi-
sors. There is no evidence that the Union group stood around
and prevented the nurses from proceeding to do their work. No
nurse testified that the Union interfered with efforts to complete
phone calls or look at the computer. Indeed, the nurses were
taken away from their work by McDonnell-Foley who told
them to sit in the conference room outside the secure area. The
evidence does not show that the Union group deliberately
yelled so as to create noise sufficient to prevent work from
taking place. Loud talk is not considered abusive where a Un-
ion is seeking to present its point of view to management.
There is no credible evidence that the Union group threatened
any nurses or did anything reasonably calculated to inspire fear
of physical danger. No curses or abusive phrases were used.
Indeed, the Union took only those actions required to identify
the supervisors of the nurse case managers who were the sub-
jects of grievances which the Union wished to present that day.
The Union ‘s actions in requesting to meet with McDonnell-
Foley were protected as well. She identified herself as the
manager of the ABC and the Union did not lose the protection
of the Act by making repeated efforts to schedule a meeting
with her to discuss the ABC-related grievances. In this regard,
it is clear that the Union group was willing to wait for McDon-
nell-Foley in the employee lounge in the belief that she would
return for the purpose of scheduling a meeting. It was only
when McDonnell-Foley did not return that they went in search
of her and re-entered the area where the cubicles are located. It
was at this point that McDonnell-Foley first expressed her lack
of intention to grant grievance appointments to the Union. The
Union did not lose the protection of the Act by insisting that it
wanted to make grievance appointments. It was entirely proper
for the Union to press its point and try to convince McDonnell-
Foley that she should meet with them or arrange a meeting to
resolve grievances relating to the operation of the ABC. Surely
a Union is not supposed to defer to management’s view every
time the two parties have a difference of opinion. Thus, when
McDonnell-Foley told the Union group to leave the Union did
not lose the protection of the Act by staying and trying to con-
vince McDonnell-Foley that she should make appointments to
discuss the grievances. When McDonnell-Foley informed the
Union that it was trespassing the Union did not lose the protec-
tion of the Act by trying to convince her otherwise using argu-
21 Consumers Power Co., 282 NLRB 130, 132 (1986); Columbia
University, 236 NLRB 793, 795 (1978).
NYNEX CORP. 675
ments that appeared reasonable on their face: The Union had
gained access to the site using access cards provided by the
Respondent; the Union was there to present grievances; and the
Union had members working at the site.
Although the Respondent referred to the area behind the
locked doors as a secure site, there was no sign limiting access
to the ABC workplace. Employees of the ABC mingled freely
with unit employees and other employees of the Respondent.
All of these employees used the same hallways and the same
kitchen and lounge. The evidence shows that Union
representatives had long enjoyed unrestricted access to the third
floor of the facility without regard to the fact that nurse case
managers had been working there since 1995. The evidence
also shows that Union representatives had met with employees
in the lounge next to the kitchen.

I find that although the Local 1105 group entered the work-
place they did not for that reason lose the protection of the Act
by seeking to present grievances at the ABC. I find that the
Union did not intimidate any employees on July 14 at the ABC.
I find that the Union’s visit to the ABC on July 14 disrupted the
work of some employees but only to a minimal degree. A few
nurses were interrupted when they were asked to name their
supervisors. The major interruption took place when McDon-
nell-Foley told the nurses to leave their work stations and sit in
the conference room. This occurred while the Union was wait-
ing in the lounge for McDonnell-Foley to return and speak to
the executive board. There is no evidence that the nurses could
not have continued working while McDonnell-Foley dealt with
the Union in the lounge. The record shows that the Union
group left the premises at 10:15 a.m. Thus, even if it had been
reasonable for the nurses to cease work while the Union group
was in the lounge, all of the nurses could have returned to work
at that time.22 McDonnell-Foley’s testimony that the nurse case
managers could not do any work for the rest of the day because
they were meeting with mental health nurses is simply incredi-
ble. The events of the morning would not reasonably have
required psychological counseling for a nurse trained to react
with equanimity to life and death situations.23 I find that the
Union did not lose the protection of the Act by refusing to leave
when McDonnell-Foley first asked the Union representatives to
leave. The Union had a right to try to press its point of view
and to demand a meeting with management. Thus the Respon-
dent violated Section 8(a)(1) of the Act when it imposed disci-
pline on its employees who went to the West Red Oak Lane
facility on July 14, 1997.
In cases where the General Counsel alleges that an employer
has violated the Act by penalizing employees for engaging in
protected activity such as filing grievances it is the policy of the
Board to find a violation of Section 8(a)(1) of the Act and to
decline to decide whether the discharge or suspension also vio-
lated Section 8(a)(3) of the Act. Mast Advertising & Publish-

22 Even if the Union had caused a two-hour cessation of work, that
would not have lost its efforts the protection of the Act. NLRB v.
American Mfg. Co., 106 F.2d 61, 68 (2d Cir. 1939).
23 At most, a few nurses saw a bunch of people gathered around their
cubicles for a few moments in the early morning of July 14. The Re-
spondent’s attempt to equate this with a catastrophic or traumatic event
is not convincing.
ing, 304 NLRB 819, 820 fn. 7 (1991); Bunney Bros. Construc-
tion, 139 NLRB 1516 (1962). Thus, I shall not reach the Com-
plaint allegation that the Respondent violated Section 8 (a) (3)
by suspending the employees who entered the West Red Oak
Lane facility on July 14.
The Board has also held that it is error to apply a Wright Line
analysis to cases where the General Counsel alleges that an
employer has violated the Act by penalizing employees for
conduct that is part of the res gestae of protected activity.24
Felix Industries, 331 NLRB 144 (2000); Neff-Perkins Co., 315
NLRB 1229 fn. 2 (1994); Mast Advertising & Publishing, 304
NLRB 819 (1991). Thus, I shall not consider the Wright Line
argument advanced by the General Counsel and the Respon-
dent.
As summarized above, Union representatives had been dis-
cussing grievances informally with nurse case managers until
April 1997 when the nurses stopped returning the Union’s tele-
phone calls. At that point, the Union went to the ABC to pre-
sent grievances to the nurses’ supervisors. The article 13, sec-
tion 1 contract language quoted above provides for presentation
of grievances to “the immediate supervisor or a higher ranking
supervisor in the department having authority in the matter.”
The record shows that both an employee’s immediate supervi-
sor and the ABC nurse case managers had authority in deter-
mining whether an employee would be paid for absence due to
illness or injury. Thus, the ABC met the collective bargaining
agreement’s definition of a “department having authority in the
matter.” The Union’s attempt to present grievances to the su-
pervisors of the individual nurse case managers or to McDon-
nell-Foley was sanctioned by the contract. The presentation
and discussion of grievances has long been recognized as a
vital part of the collective bargaining process. The Respondent
violated Section 8(a)(5) of the Act by refusing to accept and
arrange for the discussion of grievances at the ABC on July 14.
The evidence shows that the Respondent summoned the po-
lice to the West Red Oak Lane facility on July 14, 1997. Lieu-
tenant Kamensky, who was called to testify by the Respondent,
stated that his officers told him they were investigating an al-
leged criminal trespass and possession of stolen property.
Kamensky’s testimony is clear that while the investigation was
ongoing the members of the Union group were being detained
as suspects and they were not free to leave the lounge. The
Union witnesses testified that the police officers told them to
stay where they were until the matter was straightened out.
After the Respondent decided not to press charges the criminal
investigation was over and the Union representatives were
permitted to leave the premises. The Respondent called the
police because the Union representatives were attempting to
present grievances at the ABC facility. The Respondent vio-
lated Section 8(a)(1) of the Act by causing the police to detain
the employees because they were at the facility to engage in
protected activity.25
The Decision of Administrative Law Judge Nations, referred
to above, comments on the events of July 14, 1997. The Un-
24 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
25 Union Child Day Care Center, 304 NLRB 517, 525 (1991).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 676
ion’s presence in the ABC facility was presented as one of
many defenses in Judge Nations’ case to the claim that the Re-
spondent unduly delayed in providing certain information to
Local 1112. In his Decision, Judge Nations wrote that “unions”
“besieged” the ABC, “intimidated” the staff and made com-
ments about case managers’ children. Judge Nations further
wrote that “it is clear to me that their intention was to intimi-
date the case workers, who, among other things, make deci-
sions as to whether union members’ leaves of absence under
the FMLA will be approved or disapproved.” Of course, the
case before Judge Nations did not involve Local 1105 and
Judge Nations based his dicta wholly upon the testimony of
McDonnell-Foley and other witnesses provided by the Respon-
dent. Indeed, the true purpose of the Union’s attempt to present
grievances at the ABC on July 14 was not an issue in the case
before Judge Nations. Although the Respondent’s brief urges
that Judge Nations made various “holdings” about the events of
July 14, it is clear that he could not make any findings which
would be binding in the instant case. In fact, it would deprive
the Union of due process to give any weight to Judge Nations’
dicta which were based on the testimony of company witnesses
in a case where the Union herein was not a party, did not pre-
sent any witnesses and did not cross examine the company
witnesses. In sum, the Respondent’s brief is incorrect in urging
reliance on JD–178–98.
The General Counsel asserts that the Respondent’s lawsuit
against the Union is unlawful under the rule of Bill Johnson’s
Restaurant v. NLRB, 461 U.S. 731, 737–738 (1983).26 As dis-
cussed above, the action of the Union representatives in seeking
to present grievances at the ABC was activity protected by
Section 7 of the Act and the Union group did not behave in
such a way as to deprive the activity of the protection of the
Act. As explained by the Board in Loehmann’s Plaza, 305
NLRB 663, 669–671 (1991), the special requirements of Bill
Johnson’s do not apply once it has been established that a state
lawsuit seeks to interfere with a protected activity under the
Act. The suit for damages in trespass filed by the Respondent
against the Union and the individual members of the executive
committee has the stated aim to recover damages for engaging
in protected activity. Thus, the lawsuit interferes with the
rights of employees under Section 7 of the Act. Accordingly,
the lawsuit is unlawful under Section 8(a)(1) of the Act. Be-
cause the filing of grievances is actually protected activity, the
lawsuit constituted a violation from the date it was filed, July
17, 1997.27
The testimony is undisputed that after July 14, 1997, the Re-
spondent implemented changes in the access of Union repre-

26 In that case the Supreme Court directed that, except in lawsuits
where state jurisdiction is preempted or where the lawsuit has an aim
that is illegal under Federal law, the Board must determine whether the
lawsuit lacks a reasonable basis and has been filed for retaliatory pur-
poses.
27 Although, as the Respondent’s brief points out, the Complaint al-
leges only that the Respondent sued the Union the lawsuit also names
the individuals as defendants. The issue regarding the lawsuit has been
fully litigated as to the individuals as well as the Union and the remedy
may properly provide relief for both the Union and the individual de-
fendants.
sentatives to the unit employees who work on the third floor of
the West Red Oak Lane facility. Scott-Monck knew that for
years both Shannon and DeBiase visited Local 1105 members
unannounced. Shannon’s card was cancelled soon after July 14
and as of November 1997 DeBiase could no longer use the
magnetic access card issued to him years ago by the company.
Now, each time Shannon and DeBiase visit the facility they
must obtain an access card from management and they are re-
quired to return the access card upon their departure. It is un-
disputed that this procedure is a change: Shannon and DeBiase
can no longer meet with a unit member unless management is
first informed and Union representatives can no longer conduct
surprise safety inspections in the workplace.28 I note that the
Union representatives herein gave uncontradicted testimony
that they have long had access cards which admitted them to all
of the Respondent’s magnetically secured locations
where Local 1105 unit members are employed. Moreover, on
at least one occasion when DeBiase came to see unit member
Hussey, he met with her outside the work area contrary to the
established practice. Although the record is not clear as to why
exactly this came to pass, the fact is that the change resulted
from DeBiase’s inability to gain access to Hussey’s workplace
without first consulting a member of management.
An employer violates the Act when it makes actual changes
in allowing union access to employees in the workplace without
giving prior notice to and an opportunity to bargain to the un-
ion. Frontier Hotel & Casino, 323 NLRB 815, 817–818
(1997). Here the changes consist of forcing the Union repre-
sentative to seek management’s permission to enter the work-
place and changing the location of meetings between employ-
ees and their representatives. The Respondent seeks to distin-
guish the instant case from Frontier Hotel by citing Peerless
Food Products, 236 NLRB 161 (1978). However, the Board’s
Decision in that case supports a finding of violation in the in-
stant case. In Peerless the Board said:

Plainly, that Respondent may have perceived some business
need . . . for changes in its policy of allowing [the union busi-
ness agent] unlimited access to the plant does not relieve Re-
spondent of its statutory obligation to bargain . . . . Although
the policy does not derive from the express terms of the col-
lective-bargaining agreement, the past practice elevates it to a
term of employment not susceptive to unilateral change . . . .
[Citations omitted.]

In Peerless the Board found that the unilateral change did not
constitute a breach of the bargaining obligation because it was
not “material, substantial, and significant.” The Board said the
only change to limit the representative’s access was to remove
his right to speak to employees on the production floor about
matters unrelated to the collective bargaining agreement.
Clearly, the Board viewed the limitation as a de minimis altera-
tion.
In the instant case, as in Peerless, the change concerns a past
practice as to which management may not make a unilateral
change. And, indeed, the change is material, substantial and
28 Before admitting DeBiase to the workplace, Scott-Monck went to
see if the unit member he wished to see was present.
NYNEX CORP. 677
significant. The Union must now disclose to management
every visit to the workplace and indicate which member of the
unit is being visited. The Union may not conduct surprise visits
to check for safety hazards as it did formerly. I find that the
change in access violates Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. By suspending its employees because they sought to pre-
sent grievances at the Absence Benefits Center on July 14,
1997, the Respondent violated Section 8(a)(1) of the Act.
2. By refusing to accept grievances and arrange for the dis-
cussion of grievances at the Absence Benefit Center on July 14,
1997 the Respondent violated Section 8(a)(5) and (1) of the
Act.
3. By causing the police to detain its employees because
they sought to present grievances at the Absence Benefit Center
on July 14, 1997, the Respondent violated Section 8(a)(1) of
the Act.
4. By filing a lawsuit for trespass against the Union and
against the individual members of the Union Executive Board
on July 17, 1997, because they sought to present grievances at
the Absence Benefit Center the Respondent violated Section
8(a)(1) of the Act.
5. By unilaterally changing the terms and conditions of the
Union’s right to access to unit employees at the West Red Oak
Lane facility the Respondent has violated Section 8(a)(5) and
(1) of the Act.
6. The General has not shown that the Respondent violated
the Act in any other manner.
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.
The Respondent having unlawfully suspended employees, it
must make them whole for any loss of earnings and other bene-
fits plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
The Respondent must be ordered to withdraw the lawsuit in
Index No. 11359/97 filed on July 17, 1997 and it must be or-
dered to make the Union and the individual defendants whole
for all legal expenses, plus interest as computed in New Hori-
zons for the Retarded, supra, incurred in the defense of the
lawsuit since the date of its filing. Loehmann’s Plaza, supra at
672.
[Recommended Order omitted from publication.]