Sea Breeze Health Care Center

National Labor Relations Board - Board Decisions

Aug 25, 2000

331 N.L.R.B. 1131 (N.L.R.B. 2000)

SEA BREEZE HEALTH CARE CENTER 1131
Sea Breeze Health Care Center, Inc. and United Food
and Commercial Workers Union, Local Union
No. 1657, AFL–CIO. Cases 15–CA–14273 and
15–RC–8042
August 25, 2000
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FOX, LIEBMAN, AND BRAME
On March 24, 1998, Administrative Law Judge Jerry
M. Hermele issued the attached decision. The Respon-
dent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief, and has decided to
adopt the judge’s rulings, findings, and conclusions as
modified below1 and to adopt the recommended Order as
modified.
We adopt the judge’s finding that the Respondent vio-
lated Section 8(a)(1) of the Act when Supervisor Joseph
Chestang conducted a group interrogation of the house-
keeping and laundry department employees, coercively
interrogated employee Damon Simon, and made a veiled
threat to employee Tondelayo Seals. We also agree with
the judge, as discussed below, that the Respondent’s
“Union Truth Quiz” constituted an unlawful attempt to
poll the unit employees regarding their union sympathies
that further violated Section 8(a)(1) of the Act. Based on
the Respondent’s unfair labor practices in this case, we
conclude that the Respondent has interfered with the
election held in the representation case and we shall di-
rect a new election.
1. Regarding the interrogations, the evidence shows
that Chestang, director of the Respondent’s housekeep-
ing and laundry department, called a meeting of his em-
ployees the day after learning of the union activity.
Chestang asked the approximately six employees who
were present if they had “any knowledge of a union try-
ing to get in.” The employees denied knowing anything
about union activity. Either that same day or about 3
days later, based on information he had received from
another employee, Chestang individually questioned
Simon regarding whether he was giving employees rides
to union meetings. Simon replied that he was not.2

1 We shall modify the judge’s conclusions of law to conform to the
violations he found.
2 The judge did not resolve the credibility conflict between
Chestang’s and Simon’s versions as to exactly when Chestang engaged
in this questioning. Also, the judge did not resolve the conflict in tes-
timony about whether Chestang asked Simon whether he had signed a
union card. Accordingly, in affirming the judge’s findings of unlawful
interrogations, and in setting aside the election, we do not rely on the
judge’s finding that Chestang asked Simon whether he had signed a
union card. We shall modify the judge’s recommended Order and
notice accordingly.
We agree with the judge that, under the totality of the
circumstances test set forth in Rossmore House, 269
NLRB 1176 (1984), affd. sub. nom. Hotel Employees
Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), these
interrogations were coercive. Here, Chestang’s question-
ing of his employees at the department meeting made it
clear to them that the Respondent wanted to find out
about any union organizing activity, and implied to the
employees that they were to let Chestang know what
they found out. We find, contrary to the dissent, that this
questioning violated Section 8(a)(1), particularly since
none of the employees interrogated had yet disclosed
their union sympathies.3
Our colleague sees it differently. He sees the question-
ing as “brief, casual and not followed-up.” He finds that,
in the absence of past hostility or discrimination by the
Respondent, Chestang’s questions to his subordinates do
not reasonably imply any threats or promises, and do not
establish that Chestang was seeking information about
union activities on which to base disciplinary action. We
disagree.
Both in words and context, Chestang’s questioning
contained elements of coercion and interference. The
day after the Respondent learned of the union activity,
Chestang, the director of the laundry and housekeeping
department, called a meeting of his subordinates, the
unskilled laundry and housekeeping employees. He
asked them, as a group and in each other’s presence, if
they knew anything about a union trying to get in. The
meeting—immediately following notice of union activ-
ity—and the questioning were pointed and certainly not
casual. The point was to find out who was doing what in
support of the Union, and employees reasonably would
construe the questions as a directive to let Chestang
know what they knew or found out. And, Chestang did
not let the matter drop. He followed up, questioning at
least employees Simon and Seals about their union ac-
tivities. Indeed, Chestang later told employee Seals that
he “was highly disappointed” in her because she did not
tell him that she supported the Union. Also, the group
gynamic of the questioning only heightened the likely
3 See, in addition to the cases relied on by the judge, Garney Morris,
Inc., 313 NLRB 101, 1115 (1993), enfd. mem. 47 F.3d 1161 (3d Cir.
1995); Harbor Crest Electrical, 307 NLRB 581, 587 (1992); Farm
Fresh, 305 NLRB 887, 890 (1991); and Taylor Chair Co., 292 NLRB
658 fn. 2 (1989).
We acknowledge that, as our dissenting colleague notes, only some,
but not all, of the factors set out in Bourne v. NLRB, 332 F.2d 47, 48
(2d Cir. 1964), cited in Rossmore House, supra, for determining
whether questioning is coercive support such a finding in this case.
(The type of information sought and, in Simon’s case, the failure to
give a truthful reply that would reveal his union activity both militate in
favor of a finding of coerciveness.) However, as the District of Colum-
bia Circuit has noted, “strict evaluation of each [Bourne] factor” is not
required, since the criteria are merely “a starting point for assessing the
totality of circumstances.” Perdue Farms, Inc. v. NLRB, 144 F.3d 830,
835 (1998), quoting Timsco, Inc. v. NLRB, 819 F.2d 1173, 1178 (D.C.
Cir. 1987).
331 NLRB No. 149
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1132
coerciveness of the questioning. Because Chestang
chose to assemble the employees as a group to ask about
union activities, each of the employees now knew that
the chances were greater that their own union activities
would be reported to Chestang by a fellow employee
following Chestang’s implied instructions that they do
so. Thus, contrary to our colleague, we find Chestang’s
interrogation to be coercive and reasonably likely to in-
terfere with Section 7 activities, even in the absence of
implied threats of particular consequences or promises of
particular rewards.
Our colleague contends that an employer may question
employees about “an organizing campaign” so that it can
better frame the issues and prepare its arguments in order
to respond to a union’s message. We acknowledge that
an employer may engage in a dialogue with employees—
that does not threaten or otherwise coerce—about the
employment and unionization issues raised in a cam-
paign. But, to the extent—as here—that an employer
questions employees about their own or other employ-
ees’ union activity, that questioning is circumscribed by
the totality of the circumstances test set forth in Ross-
more House, supra. Here, as discussed above, we have
found Chestang’s questioning of his subordinates about
their knowledge of union activity to be coercive under
the surrounding circumstances. Moreover, in finding
interrogations to be coercive, the courts have long recog-
nized that the natural tendency of such inquiries is “to
instill in the minds of employees fear of discrimination
on the basis of the information the employer has ob-
tained,” which is clearly not a legitimate purpose under
Section 8(a)(1) of the Act. NLRB v. West Coast Casket
Co., 205 F.2d 902, 904 (9th Cir. 1953). As the Fifth Cir-
cuit, in NLRB v. Laredo Coca Cola Bottling Co., 613
F.2d 1338, 1342 fn. 7 (1980), cert. denied 449 U.S. 990
(1980), has observed:

[A]n employee is entitled to keep from his em-
ployer his views so that the employee may exercise a
full and free choice on whether to select the Union
or not, uninfluenced by the employer’s knowledge or
suspicions about those views and the possible reac-
tion toward the employee that his views may stimu-
late in the employer. That the interrogation might be
courteous and low keyed instead of boisterous, rude,
and profane does not alter the case.

[Quoting from the underlying decision in Laredo Coca Cola
Bottling Co., 241 NRLB 167, 172 (1979).]
In any event, the Employer’s questioning here did not
amount to an exploration of issues. Surely, our colleague
cannot argue with a straight face that asking an employee
whether he is driving fellow employees to union meet-
ings will help an employer frame the campaign issues.
2. The evidence shows that employee Seals, after ini-
tially denying to Chestang that she was a union adherent,
wore a union button and handbilled for the Union.
Chestang told her that he was “highly disappointed” in
her for supporting the Union and not telling him. Our
dissenting colleague relies on the Board’s decision in
Oklahoma Installation, 309 NLRB 776 (1992), enf. de-
nied mem. 27 F.3d 567 (6th Cir. 1994), to support his
finding that Chestang’s comments did not rise beyond
protected free speech. In Oklahoma Installation, how-
ever, the Board found that a similar comment regarding a
supervisor’s “disappoint[ment]” with union activity was
permissible in the absence of “some direct reference” by
the supervisor equating protected activity with disloyalty
to the employer. We find that the present situation is
distinguishable from Oklahoma Installation.
The extreme disappointment that Chestang expressed
over Seals’ failure to report her union sympathies to him
reveals Chestang’s sentiment that Seals was acting dis-
loyally by deceiving him and denying him information
about the Union. In this context, we find that Chestang’s
expression that he was “highly disappointed” in Seals
both for supporting the Union and not telling him about it
was coercive and contained a veiled threat of reprisal
against Seals in retaliation for her union activity, particu-
larly if she did not keep him informed about such activity
in the future. Thus, we adopt the judge’s finding that the
Respondent violated Section 8(a)(1) of the Act by this
conduct. See HarperCollins San Francisco v. NLRB, 79
F.3d 1324, 1330 (2d Cir. 1996) (statements equating un-
ion support with disloyalty unlawful; hence, violation
where company official told employees union effort was
“extremely disloyal and ill-conceived”). Accord: Fer-
guson-Williams, Inc., 322 NLRB 695, 699 (1996)
(unlawful to tell employee that her comments in defense
of the union had “greatly offended” employer’s chief
officers); and House Calls, Inc., 304 NLRB 311, 313
(1991) (telling employees that by seeking union repre-
sentation they showed themselves “ingrates” unlawful).
3. During the preelection campaign, the Respondent
prepared its “Union Truth Quiz” (see App. B) that con-
sisted of 17 questions with an antiunion bias for employ-
ees to answer regarding their knowledge of the Union.
The Respondent made the quiz available to employees
throughout its facility at the nurses’ stations and in the
employee breakroom. The Respondent informed em-
ployees that the prize for completing the quiz was
$1,427.60 that it would donate to the winning em-
ployee’s favorite charity and that the deadline for sub-
mission was the day before the election. Employees had
to identify themselves on the test sheet to become eligi-
ble to win the prize. According to the Respondent, the
prize represented the amount of money that the Union
would receive in monthly dues payments from the unit
employees if they chose union representation. Phalisa
Smith was the only employee who submitted a quiz and,
following the election, the Respondent awarded the
monetary prize to Smith’s designated charity.
SEA BREEZE HEALTH CARE CENTER 1133
The Board considered a similar issue in the context of
a representation case in Melampy Mfg. Co., 303 NLRB
845 (1991). Relying on earlier decisions in National
Gypsum Co., 280 NLRB 1003 (1986), and Houston
Chronicle Publishing Co., 293 NLRB 332 (1989), the
Board concluded there that the employer’s contest was
objectionable for the following reasons:
[T]he objectionable aspect of preelection contests like
this one lies in instructing the employees to sign their
names to the tests. This not only informs the Employer
which employees participated and which had been fa-
miliar with its campaign material, it enables the Em-
ployer to know where additional campaign efforts
should be focused and affords “the potential for direct-
ing pressure at particular employees.” [National Gyp-
sum, supra.]
The Respondent in this case, like the employers in
Melampy, Houston Chronicle, and National Gypsum,
required employees to identify themselves as a condition
of eligibility for the prize. Because the Respondent’s
contest was thus tantamount to effectively polling em-
ployees about their union sentiments, we conclude that
the Respondent’s conduct in preparing this questionnaire
and making it available to all the unit employees as a
contest with a substantial monetary prize is coercive un-
der the Act. Thus, the Respondent, by coercively seek-
ing to learn about its employees’ feelings about unioniza-
tion in this manner, has both violated Section 8(a)(1) of
the Act and interfered with the election as the judge
found.
Contrary to our dissenting colleague, the coercive ef-
fect of this contest is not dissipated by the fact that only
one employee actually submitted a quiz, that the Re-
spondent did not learn this employee’s identity until after
the balloting ended, and that the prize went directly to
the employee’s designated charity instead of directly to
her. Whether or not the contest was a success in the eyes
of the Respondent is not the point. Rather, just conduct-
ing the contest created an inherently coercive situation.
Whether employees chose to enter or not enter the con-
test, they were put on the spot by being forced to choose
and thereby declare themselves by their choice. If they
took the quiz, the employees were required to identify
themselves on the quiz form in order to become eligible
to win the prize. Through their answers they would re-
veal themselves to the Respondent as being either rela-
tively knowledgeable or relatively ignorant about the
unionization issues that the Respondent obviously
deemed important. If they chose not to play, they would
reveal themselves to the Respondent as being inattentive
and indifferent to those issues or unwilling to put their
knowledge on display. Either way, they are forced to
reveal themselves, and employees reasonably could dis-
cern that this contest was a tool by which the Respondent
could poll employee sentiments and learn where individ-
ual employees stood on unionization. Accordingly, we
adopt the judge’s conclusion that the Respondent vio-
lated Section 8(a)(1) of the Act in this way also.4
4. Finally, we adopt the judge’s recommendation that
the Board set aside the election. It is well established that
“[c]onduct violative of Section 8(a)(1) is, a fortiori, con-
duct that interferes with the exercise of a free and un-
trammeled choice in an election.”5 Thus, the Board’s
policy is to direct new elections in cases where unfair
labor practices have occurred during the critical preelec-
tion period, unless the conduct is so de minimus as to
warrant a finding that it did not impact on the election
results.6 In this case, Chestang conducted a group inter-
rogation, separately interrogated an employee, and threat-
ened an employee in another instance. Furthermore, each
employee was confronted with the choice of taking the
Respondent’s “Union Truth Quiz,” that we have found to
be unlawful. Thus, the Respondent’s unlawful conduct
clearly was not de minimus in the context of this election.
Accordingly, we shall direct a second election.
AMENDED CONCLUSIONS OF LAW
Insert the following as paragraph 5 of the judge’s con-
clusions of law, and renumber all subsequent paragraphs
accordingly:
“5. By threatening employees because of their union
activities, membership, or sympathies, the Respondent
has violated Section 8(a)(1) of the Act.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Sea
Breeze Health Care Center, Inc., Mobile, Alabama, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Interrogating or polling any employees about their
union activities or sympathies.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
IT IS FURTHER ORDERED that the election held
April 17, 1997, in Case 15–RC–8042, is set aside and
that this case is severed and remanded to the Regional
Director for Region 15 for the purpose of conducting a
new election.
[Direction of Second Election omitted from publica-
tion.]

MEMBER BRAME, dissenting.
Contrary to the majority, I would reverse the judge and
dismiss allegations that the Respondent violated Section

4 In doing so, we rely on the analysis set forth above, and thus we do
not pass on the judge’s analysis set forth in sec. B, par. 4 of his attached
decision.
5 Dal-Tex Optical Co., 137 NLRB 1782, 1786–1787 (1962).
6 Super Thrift Markets, Inc., 233 NLRB 409 (1977).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1134
8(a)(1) of the Act by Supervisor Joseph Chestang’s con-
duct in allegedly interrogating and threatening employees
and by the “Union Truth Quiz” that the Respondent dis-
seminated as part of its preelection campaign. Because
these alleged violations constitute the basis on which my
colleagues and the judge conclude that the Respondent
interfered with the representation election, I also disagree
with their decision to set aside this election. Instead, I
would certify the election results.
1. Alleged Interrogations and Implied Threat: On Feb-
ruary 27, 1997,1 Chestang, the Respondent’s director of
its housekeeping and laundry department, learned about
the union organizing campaign at a supervisory meeting
the Respondent held. After the meeting ended, Chestang
asked employee Azerita Bryant if she knew anything
about “a union campaign trying to get in there.” Bryant
replied that she was aware of it, that it had been going on
for several months, and that fellow employee Damon
Simon had been giving employees rides to union meet-
ings.2
The next day, Chestang called a meeting of his de-
partment employees and asked if they had “any knowl-
edge of a union trying to get in.” The employees denied
knowing anything about it. Later on February 28,
Chestang spoke individually with Simon, who testified
that Chestang asked him if knew anything about the Un-
ion and if he had signed a card. Simon stated that he
responded negatively to both questions. Chestang admit-
ted asking Simon if he knew anything about the Union,
but expressly denied asking whether Simon had signed a
card. The judge did not resolve this credibility conflict.
Either during this same conversation or about 3 days
later,3 Chestang told Simon that he had learned Simon
was giving employees rides to union meetings. Simon
disputed this assertion. Simon subsequently became an
open union adherent who wore a button and handbilled
for the Union.
About this time, Chestang also discussed the Union
with Tondelayo Seals, a housekeeping employee, in one
of the patients’ rooms. Chestang asked Seals if she knew
anything about the Union, to which Seals replied that she
did not. Chestang had another conversation with Seals a
few days later in which he told her that “he was highly
disappointed in [her]” for supporting the Union and not
telling him. Later, in March, Seals, began handbilling
for the Union and wearing a union button.
For the reasons stated below, I conclude that
Chestang’s questionings here were not unlawful. The
Board’s test for interference, restraint, and coercion un-

1 All dates are in 1997, unless otherwise noted.
2 The General Counsel does not allege that Chestang’s question of
Bryant was an unfair labor practice.
3 The judge again did not resolve the credibility conflict between
Chestang’s testimony that these remarks occurred during the same
discussion and Simon’s version that they had two different conversa-
tions about the union organizing campaign.
der Section 8(a)(1) of the Act is an objective one and
depends on “whether the employer engaged in conduct
which, it may reasonably be said, tends to interfere with
the free exercise of employee rights under the Act.”4
Because interrogation is not per se unlawful, “[t]o fall
within the ambit of Section 8(a)(1), the words themselves
or the context in which they are used must suggest an
element of coercion or interference.” Midwest Stock Ex-
change v. NLRB, 635 F.2d 1255, 1267 (7th Cir. 1980).
To assist in determining whether an employer’s question-
ing of an employee is a “true interrogation” and therefore
unlawful, the Second Circuit in Bourne v. NLRB, 332
F.2d 47, 48 (1964), considered the following factors: (1)
the history of employer hostility; (2) the nature of the
information sought; (3) the identity of the questioner; (4)
the place and method of the interrogation; and (5) the
truthfulness of the employee’s reply. As the court in
Midwest Stock Exchange, 635 F.2d at 1267, “the Bourne
criteria are not prerequisites to a finding of coercive
questioning, but rather useful indicia that serve as a start-
ing point for assessing the ‘totality of the circum-
stances.’” This analysis, in my view, may also consider
other factors such as the tone, duration, and purpose of
the questioning and whether it was repeated.
Applying the Bourne factors to the incidents of alleged
interrogation here, there is no evidence to establish a
background of employer hostility and discrimination in
which Chestang’s queries to the housekeeping employees
might reasonably be found to convey any implied threats
or promises. It is also evident that Chestang’s general
inquiries regarding whether employees “had heard any-
thing about a union campaign trying to get in there,” if
they had “any knowledge of a union trying to get in,” and
whether they had given employees rides to union meet-
ings do not establish that Chestang was seeking informa-
tion about union activities on which to base disciplinary
action. Although my colleagues nonetheless conclude
that the nature of Chestang’s questioning establishes its
coercive effect on the employees, the evidence shows
that these inquiries were brief, casual, and not followed
up. I do not find that Chestang’s inquiries were coercive
in this setting. Moreover, an employer may question
employees in a noncoercive manner, as here, about an
organizing campaign so that it can better frame the issues
and prepare its arguments in order to respond to the un-
ion’s message.5 Regarding the identity of the questioner
4 American Freightways Co., 124 NLRB 146, 147 (1959) (footnote
omitted).
5 Courts have recognized the legitimacy of this pursuit so long as the
questioning is not threatening or otherwise coercive. In NLRB v. She-
nanigans, 723 F.2d 1360 (7th Cir. 1983), the company co-owners, at a
social gathering, “asked a retarded employee whether any union people
had visited him in his home,”; he admitted they had, ending the conver-
sation. The court, in rejecting the Board’s finding of a violation, stated
at 1369: “An employer in planning his campaign has a legitimate inter-
est in finding out whether the union has approached his employees, and
if he merely asks—without pressing the inquiry when the employee
SEA BREEZE HEALTH CARE CENTER 1135
here, Chestang was a relatively low-level supervisor re-
sponsible for only the housekeeping and laundry depart-
ments. Thus, these alleged interrogations did not involve
a high-ranking official with extensive authority to make
decisions affecting the Respondent’s operations. The
evidence concerning the place and method of Chestang’s
questioning also does not support the conclusion that his
conduct was threatening or coercive. Chestang’s inquir-
ies in this case occurred both in a group setting and dur-
ing individual conversations. There is no showing, how-
ever, that Chestang attempted to isolate Bryant, Seals,
and Simon or directed that they see him in his office so
as to create an atmosphere of intimidation in the ques-
tioning of these employees.6 Finally, as to the truthful-
ness of the reply, the employees questioned by Chestang
in every case, excepting his conversation with Bryant,
refused to provide any information about their own union
sympathies or the organizing campaign generally. Even
assuming that the employees did not respond truthfully to
Chestang’s inquiry, this is just one of the factors that the
Board considers in deciding whether the questioning was
coercive under the “totality of the circumstances” test.7
In sum, notwithstanding any contrary evidence on the
last factor, an analysis of the Bourne criteria in this case
requires a finding that Chestang’s questioning was non-
coercive. In so concluding, I stress that the evidence
fails to establish that Chestang’s manner or tone of voice
was threatening or hostile; to the contrary, the record
discloses that the conversations that Chestang had with
employees were innocuous. This is particularly true of

balks, or following up with coercive statements—he has not violated
the statute.”
I stress that, as in that case, Chestang ceased his inquiries here when
the employee was unwilling to provide the information sought and that,
unlike in Shenanigans, Chestang was not a top management official.
Furthermore, even assuming, as my colleagues’ assert, that Chestang’s
asking an employee whether he was driving his fellow employees to
union meetings served no legitimate purpose, the questioning does not
become, ipso facto, an unfair labor practice unless the General Counsel
establishes that it was coercive. The majority, in finding that this in-
quiry was coercive, ignores the realities of the workplace where,
“[b]ecause . . . supervisors and employees often work closely together,
one can expect that during the course of the workday they will discuss a
range of subjects of mutual interest, including ongoing unionization
efforts.” Graham Architectural Products Corp. v. NLRB, 697 F.2d 534,
541 (3d Cir. 1983), rehearing and rehearing in banc denied 706 F.2d
441 (1983), modified 706 F.2d 441 (3d Cir. 1983).
6 In Bourne, supra, the court stated that the fourth factor in determin-
ing the lawfulness of employer questioning was the “[p]lace and man-
ner of interrogation, e.g. was the employee called from work to the
boss’s office? Was there an atmosphere of ‘unnatural formality?’”
Here, the General Counsel has failed to establish that Chestang called
employees into his office or otherwise created “an atmosphere of un-
natural formality” when he discussed the Union with unit employees.
7 My colleagues concede, even in finding coercive interrogations
here, that not all of the factors set out in Bourne are present in this case.
Yet, they readily find violations while purportedly applying a “totality
of the circumstances” standard in this case where Chestang’s question-
ing met at most two of the five-part test for coercive inquiries. The
majority, in my view, has expanded Bourne without justification by its
finding that Chestang’s conduct violated the Act here.
Chestang’s inquiry to the group of employees on Febru-
ary 28 regarding whether they had “any knowledge of a
union trying to get in.” When the employees failed to
provide any information on this subject, Chestang dis-
continued his questioning and concluded the meeting, as
he did when he individually questioned Simon and
Seals.8 Thus, the evidence supporting the last factor of
Bourne is diminished by the further showing that
Chestang stopped questioning employees about their
knowledge of the union activity after they failed to re-
spond affirmatively to his inquiry For all these reasons, I
disagree with my colleagues’ and the judge’s findings
that the Respondent coercively interrogated employees
regarding their knowledge of union activities.9
Although my colleagues do not rely on the judge’s
finding that Chestang unlawfully interrogated Simon
about whether Simon had signed a union card in the ab-
sence of a credibility resolution on this point, even cred-
iting Simon’s version that Chestang made this inquiry, I
would find no violation. Because Chestang’s remarks
conveyed neither threat nor promise, it logically follows
that Chestang’s questioning could not have been coercive
and fell within the protection of the proviso to Section
8(c) of the Act.10 Furthermore, Chestang’s questioning,
as in other instances here, was brief and non-
confrontational, he ceased the inquiry after Simon re-
sponded negatively, and did not revisit the subject. In
8 The judge’s conclusion that Chestang engaged in “a coercive ‘sys-
tematic interrogation’ of his employees” and his reliance on Custom
Window Extrusions, 314 NLRB 850, 855 (1994), to support the finding
of a violation is misplaced. Here, Chestang simply made one brief,
nonconfrontational inquiry to a group of employees regarding their
knowledge of the organizing campaign. Thus, this case clearly did not
involve a “systematic interrogation” where the employer individually
asked a large group of employees about their union sentiments as was
found unlawful in Custom Window Extrusions.
9 In Federal-Mogul Corp. v. NLRB, 566 F.2d 1245, 1249 (5th Cir.
1978), the court reversed the Board on 12 8(a)(1) findings of interroga-
tion on the grounds, inter alia, that they involved low-level supervisors
and employees in casual settings, were generally isolated and innocu-
ous, and there was little evidence of employer hostility. The questions
asked included: (1) What could the Union do for the employees? (2)
Why are the employees supporting the Union? (3) What do you think
about the Union? and (4) Why are you wearing union buttons? In
determining that these inquiries did not violate the Act, the court found
that “there was no systematic campaign of interrogation by the Com-
pany [as] the questions were more in the nature of casual remarks
among friends” (id. at 1250) and that “there was no evidence that the
questions were asked to obtain information for the purpose of reprisals
by the Company [particularly where] the questions themselves were not
on their faces threats of reprisal, nor were they coercive” (id. at 1251).
I find that similar inquiries made by Chestang in this case also were not
violative of the Act based on the evidence that, as in Federal-Mogul
Corp., he was a low-level supervisor, his remarks to employees were of
a casual nature and were not accompanied by any threats of reprisal,
and that the Respondent did not conduct a systematic campaign of
interrogation as Chestang alone engaged in such questioning.
10 Sec. 8(c) provides that: “The expressing of any views, argument,
or opinion, or the dissemination thereof, whether in written, printed,
graphic, or visual form, shall not constitute or be evidence of an unfair
labor practice under any of the privisions of this Act . . . if such expres-
sion contains no threat of reprisal or force or promise of benefit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1136
these circumstances, I find that Chestang’s inquiry con-
stituted employer free speech and, therefore, did not con-
stitute unlawful interrogation.11
Additionally, my colleagues and the judge seize on
Chestang’s statement that he was “highly disappointed”
on learning that Seals was a union adherent to support
their finding that Chestang’s remark implicitly threatened
Seals. Contrary to the majority, I conclude that Chestang
was simply expressing his personal opinion about Seals’
union sentiments and that Chestang was again acting
within the realm of employer free speech when he did so.
It is essential, as the Seventh Circuit stated in J. C. Pen-
ney Co. v. NLRB, 123 F.3d 988, 994 (7th Cir. 1997), in
analyzing allegations of this kind to “differentiate be-
tween a threat and an exchange” that amounts to nothing
more than a casual, lawful conversation between a
worker and supervisor.
In Oklahoma Installation, supra, the Board found no
violation of the Act on similar facts when, in the absence
of some direct reference equating union activity with
disloyalty to the employer, a plant manager said that he
was “disappointed” with the employees and that they had
“hurt [his] feelings” by starting “all this union bull.” The
employer’s remarks in that case demonstrated far greater
hostility toward the employees’ union activities than did
Chestang’s mere expression of disappointment here.
Furthermore, as in Oklahoma Installation, there is no
evidence here that Chestang made any reference to dis-
loyalty in telling Seals that he was “highly disappointed”
with Seals. Chestang was a relatively low-level supervi-
sor, there is no evidence that Chestang’s tone or manner
was threatening, and Chestang made no other statements
that could be construed as promises or threats. In short,
this was a casual conversation in which the disputed re-
mark did not rise to the level of a veiled threat violating
the Act.12

11 See NLRB v. Champion Laboratories, Inc., 99 F.3d 223, 227–228
(7th Cir. 1996) (court found no violation in the questioning of an em-
ployee about the number of production employees who had attended a
union meeting held the previous day).
12 I find that the cases that my colleagues rely on for a contrary result
are distinguishable here because, unlike in this case, those employers
equated the employees’ union activities with disloyalty to their em-
ployer. Thus, in HarperCollins San Francisco v. NLRB, 79 F.3d 1324,
1330 (2d Cir. 1996), the employer’s chief operating officer, in a loud
and angry tone of voice, made a “hostile, highly personal reference”
accusing the employee union organizers of being “disloyal” to the
company which the court found “was sufficient to support the [judge’s]
and the Board’s conclusion that there was an attempt to coerce employ-
ees into abandoning the Union, as well as an implicit threat of repercus-
sions for union loyalty;” in Ferguson-Williams, Inc., 322 NLRB 695,
699 (1966), the employer’s project manager accused an employee of
disloyalty because she had made comments defending the union; and in
House Calls, Inc., 304 NLRB 311, 313 (1991), the employer’s owner
called the employees “ingrates” for seeking union representation and
said that he would “put a key in the door” before signing a collective-
bargaining agreement. By contrast, as stated, Chestang’s statement in
this case that he was “highly disappointed” with employees was not
tantamount to accusing them of disloyalty, was not made by a high-
2. “Union Truth Quiz.” During the election campaign,
the Respondent prepared a “Union Truth Quiz” that con-
sisted of 17 questions for employees to answer and sub-
mit voluntarily to the Respondent by April 16, the day
before the election. (See App. B.) The Respondent did
not distribute the quiz, but rather made it available to
employees at various nursing stations and in the employ-
ees’ breakroom. The Respondent described the quiz in
its brief “as a ‘tongue-in-cheek’ educational tool to get
the employees to review the [Union] constitution, by-
laws, and union documents and, admittedly, to take a
couple of jabs at the Union.” Despite the Respondent’s
offer of a $1427.60 cash prize (the amount it claimed that
the Union would collect from the unit employees in
monthly dues) that it would donate to the winning em-
ployee’s favorite charity or church, Phalisa Smith was
the only employee who submitted the answers to the
quiz. Smith turned in her completed quiz the day before
the election and the Respondent’s officials testified that
they did not review it until after the election was over.
The Respondent then donated the winning prize to
Smith’s church as she had requested.
My colleagues and the judge find that the Respondent
violated Section 8(a)(1) of the Act by making the “Union
Truth Quiz” available to its employees. They conclude
that, by this conduct, the Respondent unlawfully polled
its employees regarding their union. I disagree.
The test for determining whether an employer’s
preelection propaganda constitutes an unlawful poll is
whether the information it seeks would “[indicate] to the
employer where additional campaign efforts should be
focused and [afford] potential for directing pressure at
particular employees.”13 The Respondent’s “Union Truth
Quiz” here was nothing more than a “tongue-in-cheek”
educational tool designed to make the employees aware
of the Union’s constitution, bylaws, and fees, as well as
its motives for initiating the organizing effort. The quiz
was voluntary and consisted solely of multiple choice
questions on these subjects. Thus, contrary to the
judge’s finding, this voluntary quiz did not require em-
ployees who completed it to disclose their own personal
views about the union organizing campaign. Rather, it
used multiple choice questions to test the test-takers’
knowledge so that presumably they would consult the
Respondent’s campaign materials for the relevant facts.
It simply did not probe the takers’ position or inclination
and its “availability” to all employees no more violated
the Act than the Respondent’s other unchallenged cam-
paign propaganda.
Moreover, because only one employee submitted the
completed quiz and the Respondent’s officials, according
to their undisputed testimony, did not even review it until

ranking manager, and did not occur in conjunction with threats of plant
closure.
13 National Gypsum Co., 280 NLRB 1003 (1986).
SEA BREEZE HEALTH CARE CENTER 1137
after the balloting, the lone submission could hardly have
influenced the Respondent’s election campaign or the
election results. I also note that the prize did not go di-
rectly to employee Smith. Rather, the money went to
Smith’s church and thus did not benefit her personally.
Based on all of these circumstances, I conclude that the
humorous and innocuous quiz that the Respondent used
in its preelection campaign was protected by Section 8(c)
of the Act and therefore could have neither violated the
Act nor warranted setting aside the election.14
In short, I find that the Respondent did not engage in
any unfair labor practices or objectionable conduct in this
case. Accordingly, I would dismiss the complaint and
certify the election results.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten any employee because of
their union activities, membership, or sympathies.
WE WILL NOT interrogate or poll any employees
about their union activities or sympathies.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
SEA BREEZE HEALTH CARE CENTER,
INC.

14 Because the Respondent’s “Union Truth Quiz” had no impact on
this election, the majority is obliged to engage in unwarranted specula-
tion as to the effect it may have had on the unit employees, including
all but employee Smith, who chose not to participate in the contest. My
colleagues miss the point that National Gypsum, as quoted above, sets
forth the true test for determining whether an employer’s campaign
materials constitute objectionable polling. The Respondent’s quiz in
this case did not give the Respondent any information as to “where
additional campaign efforts should be focused” and did not afford it
with the “potential for directing pressure at particular employees.” The
majority is bootstrapping the results of earlier Board decisions to find
objectionable conduct here by its finding that the Respondent’s quiz
was impermissible where only one employee participated, where her
vote was not dispositive of the election, and where her answers were
not known to the Respondent until after the election had ended.
APPENDIX B
SUPPORT YOUR FAVORITE CHURCH OR
CHARITY OR RESIDENTS
UNION TRUTH QUIZ

Attached is a quiz about the UFCW and some of Julee
Jerkovich’s claims. The answers are based on the most
recently filed financial documents and the Union’s Con-
stitution and By-Laws (and a little common sense). If
you want a copy of any of these documents, please let
Anne know and she will give you one.
THE PRIZE
Since the Union would claim that we were trying to “bribe”
employees if we gave the winner any money, we cannot do
that. However, we will donate the prize in the winner’s
name, to his or her charity or church, or a “shopping spree”
for residents of the winner’s choice. (Your personal reward
will be the knowledge that you gain about this important
issue.)

HOW MUCH?

Since this is about the Union and the TRUTH, it seems ap-
propriate that we should make the prize the same amount
the Union wants to collect in dues from our employees each
and every month—$1,427.60.
If there is more than one winner, the prize will be split
evenly between all of those employees.
All entries must be submitted by Wednesday, April 16 by
9:00 a.m.
The winner will be announced as soon after that as we can
score the entries.
GOOD LUCK . . . PAY ATTENTION THIS
UNION IS A REAL PIECE OF WORK.
1. “No Sea Breeze employee will pay an initiation fee now,
or in the future:
True_____ False_____
2. According to the UFCW’s filings with the Federal Gov-
ernment, how many of its International Officers are “double
dippers.” (Officers who are paid by the International and
another labor organization like a local union.)

(a) 7
(b) 11
(c) 22
(d) 32
(e) None

3. Last year, International President Dority was paid over
$300,000 by the Union. How much was his “Executive
Assistant” paid?

(a) $10,000
(b) $50,000
(c) $100,000
(d) $234,090.43
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1138
(e) Nothing—he worked just for the Respect
and Dignity of belonging to the Butchers
Union.

4. Out of every $1.00 in dues paid to the Union by its mem-
bers, how many cents went to pay the Union salaries, bene-
fits, and expenses.

(a) 5 cents out of every dollar
(b) 10 cents out of every dollar
(c) 20 cents out of every dollar
(d) 43 cents out of every dollar
(e) 93 cents out of every dollar

5. Of the $2,000,000.00 in dues collected by UFCW Local
1657, how much was spent “on behalf of individual mem-
bers?”

(a) $1 million
(b) $2 million
(c) $1.5 million
(d) $1.8 million
(e) $4,306

6. Once a strike is authorized by a vote of those present at a
meeting during negotiations, the Union can order you to
walk off the job.

True_____ False_____

7. Of the 9,641 members of Local Union 1657, how many
have to show up and vote at a meeting to make it “official”
and bind all members.

(a) more than 50% of the members
(b) more than 25% of the members
(c) 15% of the members
(d) 10% (5% of the Butchers and 5% of the
Grocery Clerks)
(e) Seven members.

8. According to the International Constitution, Local By-
laws and financial documents, what are the sources of the
Union’s revenue or income?

(a) Dues
(b) Initiation fees
(c) Reinstatement fees
(d) “Special Assessments”
(e) Disciplinary fines
(f) Per Capita tax (“Head Tax”)
(g) All of the above.

9. According to the International Constitution, how many
dues increases has Local 1657 had without a members’
vote?

(a) None
(b) One
(c) Two ($1.00 in 1994, and $1.00 in 1995).

10. You can always trust the Union to act in its own self-
interest.

True_____ False_____

11. What was the average length of UFCW strikes from
1993 to 1995.

(a) One week without pay and benefits
(b) 3 days without pay and benefits
(c) There were no strikes
(d) 60.8 days without pay and benefits.

12. The Union has spent millions of dollars to repeat the
“Right-to-Work” laws so they can force all employees to
join the Union and pay dues.

True_____ False_____

13. Article 38 of the International Constitution (p. 27) states:
“All financial obligations imposed by or under this Consti-
tution and Local Union by-laws shall be legal obligations of
the members upon whom imposed and shall be enforceable
in a court of law.” What does this mean?

(a) If a member gets behind in dues or does
not pay a “special assessment” or disci-
plinary fine, the Union can sue the per-
son in court and take his property.
(b) The Union can garnishee a person’s
wages at any job he holds.
(c) The Union always wants its money.
(d) The employee gets shafted.
(e) All of the above.

14. Which of the following are disciplinary “offenses” that
subject a union member to monetary fines?

(a) Violating “any provision” of the Interna-
tional Constitution or any “law” or direc-
tive of the union.
(b) Failure to pay dues, fines and assess-
ments.
(c) Talking to another employee about get-
ting rid of the Union with another vote.
(d) Disturbing the “peace or harmony” of a
Union meeting.
(e) Buying anything at a store that has a
picket line put up by any union recog-
nized by the UFCW
(f) Failing to walk off the job and leave your
residents when ordered to do so by the
Union.
(g) All of the above
.
15. “You always decide what you have in any Union con-
tract.”
True_____ False_____

16. A UFCW organizer in North Carolina confessed to forg-
ing employee signatures on 400 union authorization cards.
True_____ False_____

17. What happened to the 417,000 members that the UFCW
lost from the 1.4 million Julee Jerkovich claims to have?

SEA BREEZE HEALTH CARE CENTER 1139
(a) They retired and now live on the beach in
Hawaii.
(b) Their grocery store went out of business
(c) They passed away.
(d) They quit.
(e) Nobody knows and nobody cares.

Name

If I win, I want my prize donated to

Charles R. Rogers, Esq., for the General Counsel.
Dean E. Rice and Cynthia L. Gleason, Esqs. (Fisher & Phil-
lips), of Atlanta, Georgia, for the Respondent.
Juleeann M. Jerkovich, of Birmingham, Alabama, for the Union.
DECISION
I. STATEMENT OF THE CASE
JERRY M. HERMELE, Administrative Law Judge. On
April 17, 1997, the United Food and Commercial Workers
Union, Local Union No. 1657, AFL–CIO (the Union), lost an
election, by a vote of 37 to 42 (with one disputed ballot), to
organize the unskilled employees at a nursing home in Mobile,
Alabama. The Union filed unfair labor practice charges and
objections1 to the election result, alleging various campaign
irregularities and requesting that the outcome be set aside. On
June 30, 1997, the General Counsel filed a complaint against
the Respondent, Sea Breeze Health Care Center, Inc. (Sea
Breeze), alleging various violations of Section 8(a)(1) and (3)
of the National Labor Relations Act. These alleged violations
involved interrogations, polling, surveillance of and promises to
employees before the election, the elimination of overtime for
one employee before the election, and the interference with the
work of two employees on election day. Sea Breeze generally
denied these allegations in its July 11, 1997 answer. Then, on
July 30, 1997, both the General Counsel’s complaint and the
Union’s objections were consolidated for a hearing.2
This case was tried from October 14–17, 1997, in Mobile,
Alabama, during which the General Counsel and the Union
called 10 witnesses, and Respondent called 11 witnesses. Dur-
ing the hearing, the Union withdrew Objection 5(c). And after
the hearing, the Respondent and the General Counsel filed
briefs, on December 5 and 7, respectively.
II. FINDINGS OF FACT
Capitol Care Management Company, Inc.3 (Capitol Care),
based in Atlanta, Georgia, operates approximately 120 nursing
homes and 60 retirement centers, the vast majority of which are
not unionized and are located in the southern United States (Tr.
519, 826). In June 1994 it purchased the Sea Breeze nursing
home in Mobile, Alabama (Tr. 812). The facility was closed in
1994 but it was relicensed, and reopened by Capitol Care in
January 1995 (Tr. 696). In 1996 Sea Breeze derived gross

1 Charges were filed on March 27, May 31, and June 19, 1997, and
objections were filed on April 23, 1997.
2 The Regional Director approved the Union’s withdrawal of Objec-
tions 1(b) and (d). Also, he noted that Objections 1(a), (c), (e), 2(a),
and (b) were concurrent with the General Counsel’s unfair labor prac-
tice allegations.
3 Capitol Care’s parent, Retirement Care Associates, is the actual
owner of the Sea Breeze facility. Capitol Care manages the facility (Tr.
507). Capitol is misspelled “Capital” in the transcript.
revenues over $100,000 and purchased/received over $50,000
in goods from outside Alabama (GC Exh. 1(j)).
Other than the management and administrative staff, the Sea
Breeze workers are skilled and semiskilled, such as registered
nurses (RNs) and licensed practical nurses (LPNs). Then, there
are the unskilled workers such as certified nursing assistants
(CNAs) (also known as nurse’s aides) and laundry/housekeeping
workers, almost all of whom are black women.
It is these unskilled workers that the Union attempted to or-
ganize in its campaign which commenced on February 27,
1997, when the union organizer, Juleeann Jerkovich, presented
the Sea Breeze administrator, Anne Kogelschatz, with a letter
announcing the Union’s intention (Tr. 696–697). Jerkovich is a
veteran of many campaigns to organize nursing home workers
in the South (R. Exh. 5).
George Hunt was the Sea Breeze “Human Resources” super-
visor in early 1997 (Tr. 507). He and Ron Smith, Capitol
Care’s regional director for Alabama and Georgia, were in
charge of Respondent’s opposition to the Union’s election
campaign (Tr. 545, 811). Hunt had experience in six prior
union organizing campaigns and, as such, instructed the Sea
Breeze department heads on the dos and don’ts of dealing with
employees during the campaign. For example, Hunt told them
that they could not threaten or interrogate employees, spy on
employees, or make promises to employees. However, it was
permissible to “provide information about the union to employ-
ees” (Tr. 546–547, 557–558). Hunt himself would talk to an
employee about the Union if he happened to meet one in the
hallway, for example (Tr. 577). Kogelschatz also talked to
prounion employees in an attempt to persuade them to vote
against the Union (Tr. 771).
According to Hunt, some Sea Breeze employees were both-
ered by union supporters visiting their homes after work (Tr.
507–508). So, upon complaining to Hunt and Kogelschatz (Tr.
736), management prepared the following flyer for distribution
to Sea Breeze employees (Tr. 820):

DON’T BE COMING AROUND MY HOUSE

THE LABOR BOARD MADE THE COMPANY GIVE A
LIST OF EMPLOYEES NAME AND ADDRESSES FOR
THE VOTE, BUT. . . .

THAT WAS NOT AN INVITATION TO COME BY MY
HOUSE FOR A “FRIENDLY VISIT” TO PRESSURE ME
ABOUT THE UNION.

THIS IS TO PUT YOU ON NOTICE THAT YOU ARE
NOT WELCOME AND I WANT YOU TO STAY AWAY
FROM MY HOME AND STAY AWAY FROM ME.

(GC Exh. 3.) Smith told the supervisors to place the flyers on
nurse’s stations and breakrooms in the facility, but not to dis-
tribute them to employees “personally” (Tr. 812). Hunt also
posted one of the flyers on the first floor bulletin board. The
flyers were not to be returned by employees to management.
Rather, according to Hunt, the flyer was supposed to be given
by any employee who wished one directly to the Union (Tr.
509–510). According to CNA Deandrea Wilson, a Sea Breeze
supervisor may have passed out the flyer directly to employees
(Tr. 216–223). CNA Teresa Bell testified that LPN Veronica
Whisby (now Veronica Roberson) told her that the flyer was
supposed to be returned to Kogelschatz. Whisby indicated her
prounion sentiments to Bell. Bell then asked Whisby for a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1140
bunch of flyers and promptly threw them in the trash, with
Whisby’s knowledge (Tr. 346–347, 803).
Another company campaign tactic was the “Union Truth
Quiz.” Hunt, Smith, and Kogelschatz prepared this “tongue-in-
cheek” document for placement at the nurse’s stations and in
the employee breakroom (Tr. 510–512, 820). The Quiz con-
sisted of 17 questions with a distinct antiunion flavor, to be
submitted by April 16, 1997, and a line for the employee’s
name. The prize for completing the Quiz was $1427.60, which
would be donated to the winning employee’s church or charity.
The $1427.60 represented “the same amount the Union wants
to collect in dues from our employees each and every month.”
(GC Exh. 2). Only one laundry employee, Phalisa Smith, sub-
mitted the answers to the Quiz. After the election, management
announced that Smith won the $1427.60 and Sea Breeze do-
nated that amount to her church (R. Exh. 6; Tr. 513, 586, 596–
598).
During the election campaign, Hunt hired Reverend David
Jones, a black labor relations consultant, whose campaign re-
cord for employers was 615 victories and only 10 losses. Jones
instructed Sea Breeze management on campaign strategy. Ac-
cording to Hunt and Kogelschatz, Jones never wore a clerical
collar at the facility nor discussed religion (Tr. 521–526, 576–
577, 714, 717). However, housekeepers, Virginia Morrissette
and Tondelayo Seals, and CNAs Deandrea Wilson, Teresa Bell,
and Evelyn Wooten testified that Jones wore a clerical collar
while talking with the employees about the bad aspects of un-
ions (Tr. 34, 101–103, 185, 416–417, 478).
In January 1997, Sun Health Care (Sun) signed a letter of in-
tent to purchase Retirement Case Associates, including the Sea
Breeze nursing home.4 Hunt invited Sun’s personnel director,
Connie Johnson, to speak to the Sea Breeze employees before
the election to ease their anxiety about the acquisition, which
was scheduled to occur in June 1997 (Tr. 105, 514–516).
“Give Sun a Chance” buttons were worn by some antiunion
employees during the campaign (Tr. 36–37). Other employees
wore prounion buttons (Tr. 111). Johnson met with the em-
ployees before election day and was asked several times in the
meetings about what specific benefits Sun would provide to the
employees when Sun took over. According to laundry em-
ployee Lewis Taylor and CNAs Bell and Wooten, Johnson
declined to give specifics, saying only that Sun would provide
“better” dental and insurance benefits, “better” health care and
“better” working conditions. In sum, Johnson told the employ-
ees to “give Sun a chance” (Tr. 250–251, 350–352, 476). But
some employees were disappointed when Johnson failed to
provide specifics (Tr. 517). However, according to Kogel-
schatz, Johnson did not even use the word “better” to respond
to questions about Sun’s benefits (Tr. 734–735). And house-
keeper Tondelayo Seals got the “impression” that Sun’s bene-
fits would be better, notwithstanding Johnson’s refusal to be
specific (Tr. 124–125). Also at this meeting, Johnson showed
an antiunion videotape which stated that unions are violent and
turn employees against each other (Tr. 399–402).
As discussed supra, Sea Breeze management had discussions
with the employees during the election campaign about the
Union. For example, housekeeper Seals was told by manage-
ment that she had the right to join a union (Tr. 122). On the
other hand, Kogelschatz met with several CNAs in late Febru-

4 Sun is based in Albuquerque, New Mexico, and owns nursing
homes in the United States, Canada, and Great Britain (Tr. 518–519).
ary or early March 1997 and stated that “for the Union to come
up in there, somebody had to participate to get them up in there.
. . .” According to CNA Bell, Kogelschatz had “a book, a tab-
let, in her hand” at this meeting. After Kogelschatz’ statement,
Bell revealed that she was “a card signer” for the Union (Tr.
344–345). The next day, RN Netha Johnson asked Bell how
she felt about the Union, in the presence of several other peo-
ple, whereupon Bell reiterated her prounion stance to Johnson.
Johnson stated that management instructed the RNs to talk to
the CNAs about the Union. Johnson then told Bell about the
pros and cons of a union but revealed that she (Johnson) was
prounion too (Tr. 342–343, 610–612).
In March 1997 payroll clerk Martha Fredrickson was in-
structed by Kogelschatz to talk to five employees about Sun
and to distribute “Give Sun A Chance” buttons and copies of
the union constitution and bylaws (Tr. 427, 442–445).
Fredrickson does not attend management meetings and does not
supervise any employees. In this regard, she does not hire, fire,
discipline, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or adjust the grievances of any employee (Tr.
438, 448–450). Also in March, Fredrickson asked CNA Dean-
drea Wilson “How do you feel about this thing going on?”
Wilson replied, “Well, what thing you talking about,” to which
Fredrickson replied “This union thing.” (Tr. 179–181). At the
time, Wilson did not yet wear a union button. A few days later,
maintenance supervisor Jessie Smelly, who did not usually talk
to her, asked her “How do you feel about this thing going on?”
She replied, “What thing?” wanting Smelly to use the word
“union” because Wilson knew this was not permitted. Finally,
Smelly replied, “This union stuff.” Smelly stopped talking
when other people came by, and then when he and Wilson were
again alone he added “There’s going to be a lot of static around
here if we get that union in.” Wilson was not wearing a union
button during this talk with Smelly (Tr. 208–214).5
Joseph Chestang is the director of housekeeping and laundry
at Sea Breeze. On February 27, 1997, Kogelschatz called a
meeting of supervisors to find out what they knew about the
Union. After the meeting, Chestang asked one of his employ-
ees, Azerita Bryant, if she “heard anything about a union cam-
paign trying to get in there.” Bryant said yes and added that
Damon Simon was helping the Union. The next day, before he
received any training from management about what he could or
could not do during an election campaign, Chestang called a
meeting of his employees and asked all of them if they had
“any knowledge of a union trying to get in.” Chestang then
asked Simon, a floor cleaner, if he had signed a union card and
whether Simon was giving employees rides to union meetings.
Simon told Chestang no to both questions (Tr. 133–135, 652–
656). Simon later wore a union button and handbilled for the
Union (Tr. 138). Chestang also spoke with housekeeper Seals,
asking her “did I know anything about the union.” Seals said
no. At this point, she had not revealed her prounion position to
management yet. Later, Chestang again spoke with Seals, tell-
ing her that he was “highly disappointed in me” for supporting
the Union and not telling him (Tr. 79–83, 98, 665). In March,
Seals started handbilling for the Union and wearing a union
button (Tr. 99, 111).
During the campaign, Lewis Taylor, a laundry worker on the
5 a.m. to 1 p.m. shift, wore a prounion button. Chestang told
5 Smelly does not remember Wilson or any conversation with any
employee about the Union (Tr. 685).
SEA BREEZE HEALTH CARE CENTER 1141
him he was surprised to see him wearing a union button and if
he had a problem he should have come to Chestang (Tr. 237–
240). Before this conversation with Chestang, Taylor substi-
tuted about twice a month for Katrina Smith, who worked the
midnight—5 a.m. shift and often called in sick. Smith would
call Taylor, who would then call Chestang to receive permis-
sion to come in early and work the overtime (Tr. 241). As a
general rule, however, overtime is discouraged at Sea Breeze
(Tr. 663, 812–813). Indeed, in late 1996 an internal Sea Breeze
memorandum warned that “overtime . . . must be controlled.”
(R. Exh. 17). Thus, if it is necessary to cover an open shift, it is
preferable to use an employee whose additional hours would
not create the need to pay overtime. But, unlike nursing duties,
management does not consider it essential always to fill a va-
cant laundry shift (Tr. 700–701). And because there are few
laundry employees it is difficult to find replacements (Tr. 280–
281, 702). After Taylor started wearing a union button,
Chestang denied Taylor’s request for overtime. This was
Chestang’s first such denial of Taylor’s request. As it turned
out, nobody covered the vacant shift. After the April 17, 1997
election, Chestang denied his request again, stating that he
needed to cut down on overtime (Tr. 241–243, 275). Thereaf-
ter, Chestang simply told Taylor to come in an hour or two
early if Smith called in sick again (Tr. 277). According to
Chestang, the denial of Taylor’s requests for overtime had
nothing to do with Taylor wearing a union button (Tr. 664).
Rather, Chestang stated that he turned Taylor down because
Taylor was covering for Smith without his permission and be-
cause Chestang’s supervisor was complaining about excessive
overtime (Tr. 672, 681). From January 1996 to mid-1997, there
was very little overtime approved in the laundry department.
Specifically, only 71 hours of overtime were approved in the 6-
month tenure of Taylor, constituting just 1.2 percent of the total
hours worked in the department (R. Exh. 15).
During the campaign both the Union and Respondent passed
out campaign literature (GC Exhs. 4, 5, 7; R. Exhs. 1, 3–4, 9–
10, 12–14). One antiunion handbill stated that “[Jerkovich] and
your helpers promote racism.” (U. Exh. 2).
Election day was April 17, 1997, and the polls were open
from 6:45 to 8:30 a.m., and from 3 to 4 p.m. (Tr. 356). Voting
took place on the first floor of the facility across from a nurse’s
station (Tr. 357). According to Personnel Director Hunt, it was
difficult to keep the employees focused on their work that day
and he anticipated that some employees would want to leave a
little early (Tr. 534–535, 564). So, Hunt told the LPNs to in-
struct the employees not to leave before the end of their 3 p.m.
shifts so that the second-shift employees had a chance to vote
and replace the first-shift employees (Tr. 542–543).
During the morning vote, the Union hung a sign “Vote Yes”
across the street from the nursing home, on non-Sea Breeze
property (U. Exh. 1). Union Steward Kelly Luker was asked by
Respondent’s attorney, Dean Rice, to take the sign down be-
cause, according to Luker, Rice said it was on Sea Breeze prop-
erty (Tr. 317–318). Hunt then took a picture of the sign with
the consent of one of Jerkovich’s associates (Tr. 538–539).
Luker did not take the sign down until the morning vote was
over. Then she rehung the sign for the afternoon vote (Tr. 320–
–323). Before the afternoon vote, Hunt obtained a 27-foot long
truck and parked it catty corner in front of the Sea Breeze en-
trance in order to block the view of the sign from the entrance,
as well as to block some of the noise coming from the union
supporters near the sign. Hunt conceded, however, that the
truck idea did not work well (Tr. 535–538, 541). In that regard,
the union supporters moved elsewhere with their sign. And the
truck moved after the voting started (Tr. 296–298).
In between the voting sessions, Chestang told Taylor to clean
up a storeroom and watched him do so for the 15 minutes that it
took (Tr. 244–245). Although cleaning the storage room was
not usually part of his job, Taylor had done it before (Tr. 282–
283). When Taylor was done, Chestang told him and another
employee, Phalisa Smith, to gather laundry upstairs, after learn-
ing of a laundry shortage in the facility. Chestang accompanied
both Taylor and Smith on the laundry hunt and helped them
(Tr. 656–658, 669). According to Taylor, this was the only
time during which Chestang “followed” him as he worked (Tr.
245–247, 286–287). According to Smith and Chestang, these
laundry hunts occurred about once a week, took about an hour,
and normally included Chestang as well as the hunters (Tr.
586–588, 599–600, 657–658). After the hunt was over, some-
one from the Union called Hunt to complain about Chestang.
Hunt contacted Kogelschatz, who talked with Chestang. But
Chestang denied doing anything improper (Tr. 561–562).
Before the 3 p.m. vote, CNA Bell, who was a union ob-
server, saw Mark Havard and Hugh Ash near the voting area.
Havard is the rehabilitation director at Sea Breeze but is not
employed by the nursing home directly. Ash is Havard’s boss.
Bell was stationed in the voting room as the voting session
began and could see Havard and Ash talking at the nurse’s
station directly across from the voting room. Either Havard or
Ash was on the telephone. Bell notified the Board agent, Nora
Flaherty, about the presence of the two men, whereupon
Flaherty approached the two men and asked them to leave the
area. Havard did not take part in the Respondent’s campaign
and was not even sure when the voting was scheduled that day.
They left immediately when asked to do so by the Board agent
(Tr. 360–362, 411–413, 602, 614–621. No voters were yet
present in the area and the Board agent submitted no memoran-
dum about the matter (Tr. 693–694).
As the See Breeze administrator, Kogelschatz walked around
the facility a lot on “compliance rounds” (Tr. 705). Virginia
Morrissette and Tondelayo Seals worked their regular 7 a.m. to
3 p.m. second-floor housekeeping shifts on April 17, 1997.
Customarily, they would leave the second floor on the elevator
with their cleaning carts at 2:45 p.m., put the carts away on the
first floor, and wait to clock out at approximately 2:53 p.m.
Although their shifts do not end until 3 p.m., a 7-minute early
clockout was allowed by Fredrickson, the payroll clerk, be-
cause the housekeepers would come in seven minutes before 7
a.m. and/or it did not look good to have a bunch of people mill-
ing around the timeclock between 2:53 and 3 p.m. waiting to
clock out (Tr. 20–22, 48–52, 61–62, 797). Kogelschatz was
aware of this practice and she told Chestang to tell his people to
stop it (Tr. 766).
Morrissette and Seals both wore union buttons on election
day. Both women had voted in the morning session that day
(Tr. 26–27, 89–90). Seals’ lunch was supposed to start at 12:15
but it was delayed until 12:30 p.m. But this had happened be-
fore and since April 17, 1997 (Tr. 111–115). Later that day,
however, as they were preparing to take the elevator downstairs
at 2:45 p.m., Kogelschatz, who was also on the second floor,
noticed that the front of the nurse’s station was “absolutely
filthy” (Tr. 709). According to Kogelschatz, certain employees
were “slacking off” before election day. Kogelschatz warned
no employee, however, before April 17 about slacking off (Tr.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1142
708, 741). But on spotting Morrissette and Seals at the elevator
door, she instructed them to clean the nurse’s station. Accord-
ing to Seals, the front wall thereof was clean, but Seals said
nothing (Tr. 131). This task took about 10 minutes and was
completed at about 2:58 p.m. (Tr. 764). According to Morris-
sette and Seals, this task took only a few minutes, and was
completed at approximately 2:50 p.m., whereupon Kogelschatz
told them to wait on the second floor until 3 p.m. with nothing
to do (Tr. 22–23, 87–88). Kogelschatz denied telling them to
stay until 3 p.m., estimating that it took until then to finish the
job (Tr. 764). Morrissette had already cleaned the nurse’s sta-
tion earlier that day, as was her custom, but it is unclear if she
also cleaned the front wall of the station (Tr. 30–31, 129–130).
Just before 3 p.m., from the second floor window, Morrissette
and Seals noticed other employees in the parking lot leaving
work (Tr. 24, 88). At least some of those employees were
wearing pro-Sun buttons (Tr. 91–92). Finally, Morrissette and
Seals went downstairs and clocked out just after 3 p.m. (Tr. 52–
53, 94–95). The next day, April 18, Kogelschatz called Morris-
sette and Seals into her office to apologize about the delay and
tell them she bore no grudge against them. Then, Kogelschatz
hugged both women (Tr. 40–41, 56, 96, 712–713).
The Union lost the election by a vote of 37 to 42, with 1 bal-
lot disputed (GC Exh. 1(o)). Hunt and Kogelschatz left Sea
Breeze shortly after the election (Tr. 507, 698). As of late
1997, Sun’s acquisition of Sea Breeze has still not occurred (Tr.
515). Also as of late 1997, 61 of the 80 voters in the election
remain as employees at Sea Breeze (Tr. 650).
III. ANALYSIS
The General Counsel’s unfair labor practice allegations fall
into five broad categories: (a) eight separate interrogations by
four different supervisors during the campaign in violation of
Section 8(a)(1); (b) two different methods of polling the em-
ployees during the campaign, in violation of Section 8(a)(1); (c)
the elimination of one employee’s overtime in violation of Sec-
tion 8(a)(1) and (3); (d) the election day harassment of one
employee in violation of Section 8(a)(1); and (e) the election
day detention of two employees in violation of Section 8(a)(1)
and (3). Those union objections to the election that are separate
from the General Counsel’s unfair labor practice allegations
cover seven areas: (a) promises made by Sun to better working
conditions; (b) management’s use of racist literature against the
Union; (c) the impermissible use of religion to defeat the Un-
ion; (d) stationing two supervisors near the polls to influence
the voting; (e) hindering the ability of prounion employees to
campaign on election day while making it easier for antiunion
employees to campaign; (f) blocking the view of, and attempt-
ing to remove, a prounion sign on election day, plus restricting
union handbilling activity that day; and (g) photographing the
prounion sign on election day.
A. Interrogations
The Union delivered the election petition to a surprised Sea
Breeze administrator, Anne Kogelschatz, on February 27, 1997.
Immediately, Kogelschatz met with the various Sea Breeze
supervisors to ascertain what they knew about the Union. In
that connection, housekeeping supervisor Joseph Chestang
endeavored to question his employees. And it is this series of
interrogations that is most damaging to Respondent’s case.
Specifically, the evidence clearly shows, and indeed
Chestang admits, that he called a meeting of his six or so em-
ployees on approximately February 28 and asked them if they
had “any knowledge of a union trying to get in.” Then, he
asked Azerita Bryant, in a separate encounter, if she “heard
anything about a union campaign trying to get in . . . .” On
learning about Damon Simon from Bryant, he then questioned
Simon if he had signed a union card and was giving employees
rides to union meetings. Next, Chestang talked to Tondelayo
Seals twice, first asking her if she knew anything about the
Union, and later, after learning of Seals’ prounion status, telling
her that he was “highly disappointed” in her for supporting the
Union and not telling him. The General Counsel correctly
points out that, regarding all of these interrogations, Chestang
failed to communicate a valid purpose to his employees or as-
sure them that there would be no reprisals for their answers or
lack thereof. Respondent, however, contends that Chestang’s
actions were friendly “casual interactions” with his close-knit
housekeeping unit, were merely generated by his “curiosity,”
and did not contain any threats.
In determining whether an interrogation of an employee vio-
lates Section 8(a)(1), the totality of the circumstances must be
considered. Blue Flash Express, 109 NLRB 591 (1954). Thus,
the place and method of the interrogation, the background
thereof, the nature of the information sought and the identity of
the questioner are all important factors to evaluate. Rossmore
House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir.
1985). Before February 1997 there is no history of Respon-
dent’s hostility or discrimination against union supporters.
Also, Chestang’s group interrogation, later separate questioning
of Bryant and first separate questioning of Seals were general
and nonthreatening: did they know anything about a union?
See Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). Also,
these incidents occurred very early in the election campaign
and did not take place in a closed setting such as Chestang’s
office, for example. Compare Basin Frozen Foods, 307 NLRB
1406, 1416 (1992). On the other hand, none of the aforemen-
tioned interrogatees was yet an open union supporter. Indeed,
Simon falsely denied knowing anything about the Union and
giving rides to union supporters, indicating that he was afraid of
Chestang’s questions. Next, all of these incidents took place at
work, and during normal working hours. Further, Chestang’s
questioning of Simon got very specific about the latter’s union
activities. And, Chestang’s second conversation with Seals
constituted a veiled threat: he was “highly disappointed” in her
for supporting the Union. Finally, Chestang’s initial group
meeting smacks of a coercive “systematic” interrogation of his
employees. See Custom Window Extrusions, 314 NLRB 850,
855 (1994). Thus, on balance, the presiding judge concludes
that Chestang’s multiple remarks tended to restrain, coerce, and
interfere with his employees’ Section 7 rights. See Hertz
Corp., 316 NLRB 672, 684 (1995).
Next, RN Netha Johnson interrogated CNA Teresa Bell.
Specifically, Johnson asked Bell how she felt about the Union
on orders from upper management to talk to employees during
the campaign about the pros and cons of the Union. However,
Bell was openly for the Union at this point. Further, several
other people were present during this conversation and Johnson
even told Bell that she was prounion too.
The legal standard for determining the coercive nature of an
interrogation is an objective, as opposed to subjective, test.
Thus, it usually makes no difference whether the interrogatee is
an open union supporter and thus whether the employee is ac-
tually coerced. Rather, the key inquiry is “whether the ques-
tioning tended to be coercive.” Heartland of Lansing Nursing
SEA BREEZE HEALTH CARE CENTER 1143
Home, 307 NLRB 152, 156 (1992). Under the total circum-
stances of the Johnson-Bell interrogation, the presiding judge
concludes that the encounter was not coercive. Johnson was
not Bell’s immediate supervisor. The conversations occurred in
the presence of several people. Johnson already knew of, and
indeed shared, Bell’s prounion sentiments. There were no
threats and the conversation was relatively casual. Thus, on
balance, there was no 8(a)(1) violation. See Emery Worldwide,
309 NLRB 185, 186 (1992).
Payroll clerk Martha Fredrickson asked another CNA, Dean-
drea Wilson, “How do you feel about this thing going on?. . .
This union thing.” Wilson was not yet a union supporter and
she replied “What thing?” At the outset, while it is clear that
Fredrickson is not a supervisor, the General Counsel still argues
that her statement is unlawful because, as a payroll clerk with
independent judgment, she is Respondent’s “agent;” a status
Respondent does not deny. Again applying the totality of the
circumstances test, the presiding judge finds no violation of the
Act. Logically, Fredrickson’s lesser agent status reduces the
coerciveness factor. Moreover, Fredrickson’s question to Wil-
son was extremely general. Thus, it cannot be said that her
remark was specifically calculated to elicit a declaration from
Wilson about her union sentiments. See NLRB v. McCullough
Environmental Services, 5 F.3d 923 (5th Cir. 1993).
The final interrogation involves Wilson and maintenance su-
pervisor Smelly, who usually did not talk to her but did ask her
how she felt “about this thing going on.” Wilson, who was a
closeted union supporter, egged Smelly on to use the word
“union” which he finally did. Smelly stopped talking when
other people walked by but continued when they were alone to
add that “There’s going to be a lot of static around here if we
get that union in.” The totality of the circumstances, however,
shows no unlawful interrogation by Smelly. Significantly,
Wilson’s conduct smacks of entrapment. Also, Smelly is not
Wilson’s direct supervisor and, in the Presiding Judge’s view,
his “static” remark is too vague to constitute any kind of a
threat.
B. Polls: Flyer and Quiz
The General Counsel alleges that the “Don’t Be Coming
Around My House” flyer was an unlawful attempt to poll the
employees before the election inasmuch as only antiunion em-
ployees would presumably be interested in taking the flyer. In
support of this allegation, it is contended that LPN Whisby
once told CNA Bell that, if she took one, the flyer would have
to be returned directly to Kogelschatz. Also, the General
Counsel points out that the flyer contained a signature line.
If this flyer consituted an impermissible preelection poll it
was certainly a remarkably unsuccessful one. The record evi-
dence reveals absolutely no information that Respondent
gleaned from this “poll” about its employees. Indeed, other
than CNA Bell, who threw a bunch of flyers in the trash, there
is no evidence that a single employee took the flyer, much less
that Respondent tracked who took a flyer and who did not.
Moreover, the flyer was left at various nurses’ stations as op-
posed to being distributed by supervisors to specific employees.
Finally, the presiding judge accepts personnel director Hunt’s
credible explanation that the flyer was supposed to be given by
the employee directly to the Union. As for Bell’s testimony
that Whisby told her that the flyer was supposed to be turned in
to Kogelschatz, it is significant that Whisby, a credible witness,
did not corroborate Bell’s verson about the destination of the
flyers. Finally, no employee testified that he or she believed
that the flyer was supposed to be turned in to management. So,
it cannot be concluded that the flyer constituted an impermissi-
ble poll or interrogation.
Turning to the “Union Truth Quiz,” the General Counsel
likewise characterizes it as an unlawful preelection poll. By
way of summary, the Quiz was a “tongue-in-cheek” antiunion
document left at the nurses’ stations and breakroom, and was
due 1 day before the election. Unlike the flyer, it elicited one
response: from laundry employee Phalisa Smith, who was de-
clared the winner of the $1427 prize. According to the rules of
the Quiz, that money was then donated to Smith’s designated
charity after the election.
The Quiz presents more problems than the aforementioned
flyer because it was designed to be turned in to management
before the election and was in fact responded to by one em-
ployee. At the outset, it is well-settled that an employer’s
preelection poll of its employees generally violates Section
8(a)(1). Struksnes Construction Co., 165 NLRB 1062 (1967).
The same is true for raffles. And, although an employer’s use
of a raffle as preelection propoganda is not per se objectionable,
Heartwood Avenue Corp., 225 NLRB 719 (1976), all of the
circumstances thereof must be evaluated. Here, it is important
to consider whether the Quiz, which had aspects of both a poll
and raffle, was used to determine employees’ sympathies or
designed to sway an employee’s vote. Accordingly, it is con-
cluded that Respondent may have learned more about Phalisa
Smith’s union sympathies than it was entitled to know, not-
withstanding the lack of any evidence about what her sympa-
thies were.6 As for whether Smith’s vote was swayed, if indeed
she voted at all, it cannot be concluded that the $1427 prize did
so. Indeed, direct prizes totalling approximately this same
amount have been found to be “not so substantial as to warrant
setting aside an election.” Sony Corp. of America, 313 NLRB
420 (1993). However, it is concluded that Respondent de-
signed its Quiz to poll its employees and may have learned
about the union sympathies of one employee.
C. Harassment of, and Elimination of Overtime for,
Lewis Taylor
The General Counsel alleges that after laundry employee
Lewis Taylor started to wear a prounion button on approxi-
mately March 13, 1997, his immediate supervisor, Joseph
Chestang, began to retaliate against him. Indeed, Chestang told
Taylor that he was surprised to see him wearing the button.
First, it is alleged that Chestang stopped assigning Taylor over-
time after March 13. Although the written record evidence is
unclear as to exactly how much overtime was available to Tay-
lor after March 13, it is clearer from Taylor’s testimony that
Chestang turned down his request for overtime created by the
absence of Katrina Smith twice: March 15 and sometime in late
April, after the election (Tr. 242–243). But Chestang had ap-
proved Taylor for overtime on February 23, 1997, to cover
Smith’s absence, and 15 hours of overtime on three occasions
in January 1997 for other reasons.
Respondent has the better of the argument on the overtime
issue. To begin with, there was not all that much overtime
available in the laundry department during Taylor’s tenure:
only 71 hours in the 6-month period from mid-November 1996
to mid-May 1997. And Taylor covered for Smith only once

6 Smith, however, did testify as a Sea Breeze witness.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1144
before March 13. Thus, it cannot be concluded that Chestang’s
denial of Taylor’s two overtime requests after March 13 dis-
rupted a well-established practice of assigning Taylor overtime.
Second, Chestang did allow Taylor to work some overtime
after April 17 by coming in an hour or two early. Third, it is
significant that Respondent assigned overtime to nobody else to
cover the shifts missed by Smith. Fourth, Chestang’s explana-
tion that he denied Taylor’s two overtime requests because of
Respondent’s policy to reduce overtime is plausible in view of
the written evidence produced by Respondent showing man-
agement’s desire to curb overtime. Hence, the General Counsel
has failed to show, by a preponderance of the evidence, that
Respondent denied Taylor overtime because of antiunion ani-
mus.
Turning to the alleged harassment of Taylor by Chestang on
election day, Chestang told Taylor to clean up a storeroom,
which was usually not part of his job, and watched over him for
the 15 minutes it took. Then, Chestang accompanied Taylor
and Phalisa Smith on the “laundry hunt” upstairs; a procedure
that Taylor testified to as never having happened before or
after. The General Counsel alleges that Chestang’s actions
constituted survillance of Taylor, while Respondent character-
izes Chestang’s behavior as “supervision of and assistance to”
Taylor.
Again, the evidence supports Respondent’s position. Re-
garding the storeroom incident, Taylor admitted that he had
been required to perform this task previously. As to Chestang’s
watching of Taylor for the 15-minute period, the evidence is
simply insufficient to conclude whether this was unusual. As
for the laundry hunt, Phalisa Smith’s testimony is significant.
Smith corroborated Chestang’s position that these hunts were
common and normally included Chestang. While the General
Counsel intimates that Smith is a witness whose testimony may
have been unduly influenced because she won Respondent’s
“Union Truth Quiz,” the Presiding Judge finds her to be a
credible witness who gave a thorough rendition of the laundry
hunt procedure. Therefore, the preponderance of the evidence
fails to establish any surveillance or harassment of Taylor by
Chestang.
D. Alleged Dentention of Morrissette and Seals
The last unfair labor practice allegation concerns the deten-
tion of housekeepers Morrisette and Seals on election day
which, according to the General Counsel, prevented these two
union supporters from campaigning from 2:45 to 3 p.m. Re-
spondent contends that Kogelschatz merely asked Morrissette
and Seals “to take a few minutes before the end of their shift to
clean filthy counter tops.”
The evidence does not support a conclusion that Kogelschatz
intentionally detained these two prounion employees for 15
minutes in an effort to prevent them from campaigning between
2:45 and the 3 p.m. afternoon voting session. First, there is
absolutely no evidence that Morrissette or Seals intended to
campaign in this time period. Second, it was common for Ko-
gelschatz to walk around the facility on “compliance rounds.”
Thus, it cannot be concluded that Kogelschatz was lying in wait
for these two women at 2:45 p.m. Third, although Morrissette
had cleaned the top of the nurses’ station earlier that day, she
had not cleaned the “filthy” front of the station. Fourth, while
the last-minute cleaning job may have been completed before
the stroke of 3 p.m., it is also true that Kogelschatz disapproved
of CNAs leaving before the end of their regular shifts. Thus, it
cannot be said that Kogelschatz’s last minute work order was a
pretext to delay the two womens’ departure. Finally, the “early
departure” of other employees that day, some of whom were
wearing Sun buttons, is a red herring: there is no evidence that
Kogelschatz or other supervisors specifically approved these
other departures. Therefore, no impermissible disparate treat-
ment regarding the departure of the first shift employees on
election day has been established.
E. The Union Objections
As discussed supra, Sun was on track in early 1997 to pur-
chase the Sea Breeze facility. In Objection 3, the Union alleges
that Sun representative Connie Johnson,7 along with Sea Breeze
supervisors Kogelschatz, Smith and Hunt, made various prom-
ises of “future employee benefits” in the election campaign,
plus threats that these benefits would be withheld if the Union
won the election. The inquiry on this issue focuses on two
matters: the distribution of “Give Sun a Chance” buttons during
the campaign, and the statements by Johnson, during preelec-
tion group meetings with the employees, that Sun would pro-
vide “better” benefits and working conditions.
The Union intimates in its objections that the election contest
was a Sun versus Union affair. The plain fact though is that
Sun is not a named Respondent in this case. And it is well
settled that the Board accords less weight to the conduct of
nonparties in determining whether an election should be set
aside. Orleans Mfg. Co., 120 NLRB 630 (1958). Moreover, it
is very difficult to conclude that Sun’s very general promise to
make things “better” was contingent on the Union’s loss in the
upcoming election. Compare Highland Yarn Mills, 313 NLRB
193, 207 (1993) (8(a)(1) violation where supervisor said that if
the Union was gone employees would make more money and
air quality in plant would improve). Hence, the Union’s objec-
tions based on Sun’s involvement in the campaign will be over-
ruled.
The Union next alleges in Objection 4 that Respondent im-
properly injected race and religion into the campaign. With
respect to race, the Union claims that Respondent “distributed
literature accusing the union and its agents of promoting ra-
cism.” The sole evidence of this consists of one of Respon-
dent’s antiunion flyers, which states, among other things, that
union organizer “[Jerkovich] and your helpers promote ra-
cism.” The context for this statement is the fact that virtually
all of the unskilled Sea Breeze employees are black, while most
of management is white. This underwhelming evidence, how-
ever, warrants dismissal of this objection. As for the claim that
Respondent’s use of Reverend Jones in its campaign “used
religion to influence the sympathies of the voters,” the only
evidence thereof is the testimony of five employees that Jones
wore a clerical collar while talking to them about the bad as-
pects of unions. And even this claim is contradicted by Hunt
and Kogelschatz, who testified that Jones never wore a clerical
collar. Suffice it to say that collar or no collar, the Union’s
evidence on its religion allegation is insufficient.
In Objection 5(a), the Union claims that Respondent sta-
tioned Supervisors Havard and Ash near the voting areas on
election day “to monitor and influence employees while they
entered to vote.” As the evidence reveals, however, Havard
and Ash accidentally entered the general voting area, left im-

7 The Union incorrectly calls her Connie Snyder in the written objec-
tions.
SEA BREEZE HEALTH CARE CENTER 1145
mediately when asked to do so, and that no voters were even
present when they were there. Accordingly, this objection will
be dismissed.
In Objection 5(b), the Union claims that antiunion employees
were afforded a greater opportunity to campaign on election
day than prounion employees. As discussed supra, however,
there is no evidence of a policy by Respondent regarding anti-
union employees, and insufficient evidence of such a policy
regarding prounion employees, including Morrissette and Seals.
In Objection 5(d), the Union complains that Respondent in-
terfered on election day in two ways with the prounion sign
across from the Sea Breeze facility. First, Union Steward
Luker testified that Respondent’s attorney asked her to take the
sign down on election day. But the sign stayed up. Thus, it is
difficult to discern any actual harm to the Union’s campaign
regarding the sign. Second, Respondent parked a truck on its
property to block the view of the sign from the facility’s en-
trance and to reduce the noise coming from the union support-
ers around the sign. So, the Union moved the sign. Again, any
damage to the Union’s campaigning is difficult to discern.
Finally, the Union produced no evidence in support of its alle-
gation in this objection that Respondent “restricted access to the
Union’s handbilling activity. . . .”
The Union’s final Objection 5(e) claims that Respondent
photographed “protected union activity including the union’s
campaign posters and signs.” But the evidence only shows that
Hunt took a picture of the union sign with a union supporter’s
consent. No Sea Breeze employee or union campaigner was
photographed. Compare Reno Hilton, 319 NLRB 1154, 1156
(1995). Therefore, there is insufficient evidence to sustain this
objection.
F. Summary
When an employer violates Section 8(a)(1) during an elec-
tion campaign, the usual remedy is to order a second election
because such prohibited conduct interferes with the “laboratory
conditions” of the first election. Dal-Tex Optical Co., 137
NLRB 1782 (1962). The only exception to this policy is where
the misconduct is de minimis: “such that it is virtually impossi-
ble to conclude” that the election outcome was affected. Super
Thrift Markets, 233 NLRB 409 (1977). In this connection, the
number of violations, their severity, the extent of dissemination
and the size of the unit, are among the relevant factors to con-
sider in determining whether the misconduct warrants setting
aside an election result. Caron International, 246 NLRB 1120
(1979).
Here, Respondent committed two kinds of 8(a)(1) violations:
housekeeping supervisor Chestang’s multiple interrogations of
his staff and a threat to one employee; and the “Union Truth
Quiz.” Although the Chestang interrogations occurred very
early in the election campaign, one was a very specific request
for information about an employee’s protected activity and one
contained a veiled threat against another employee. As for the
Quiz, while it was generally ignored by all employees except
one, it constituted an attempted preelection poll of all eligible
voters. Further, the closeness of the vote—a five-vote union
loss out of 80—also tips the scale in favor of a new election.8

8 The bottom line, however, is that an early second election is
unlikely. Continued litigation ensures that. By contrast, an end to legal
hostilities means the Union is entitled to a new vote any time after
April 17, 1998 (the 1-year anniversary of the first vote), provided it
obtains an adequate showing of support from the employees.
Compare Caron, supra (one employee out of 850 affected by
employer misconduct); Essex International, 216 NLRB 831
(1975) (four-vote margin, only 2 of 325 employees affected).
In sum, while it should be emphasized that the General Counsel
and the Union have failed to prove the vast majority of their
allegations, the allegations that have been proven are too sub-
stantial, and the voting margin too close, to reach any other
conclusion.
IV. CONCLUSIONS OF LAW
1. The Respondent, Sea Breeze Health Care Center, Inc., is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union, United Food and Commercial Workers Union,
Local Union No. 1657, AFL–CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Pursuant to paragraphs 7(a), (b), (c), and (d) of the Gen-
eral Counsel’s complaint, Respondent violated Section 8(a)(1)
of the Act by interrogating certain of its housekeeping employ-
ees about their union activities, membership and sympathies.
4. Pursuant to paragraph 12 of the complaint, Respondent
violated Section 8(a)(1) of the Act by interrogating and polling
its employees with the “Union Truth Quiz.”
5.The General Counsel has failed to prove its allegations at
paragraphs 7(e), 8, 9, 10, 11, 13, 14, and 15 of the complaint.
6. The Union’s Objections 1(a) and 2(b) are sustained.
7. The Union’s Objections 1(c), (e), 2(a), 3, 4, 5(a), (b), (d),
and (e), are overruled.
8. The unfair labor practices and campaign misconduct of
Respondent described in paragraphs 3, 4, and 6, above, affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
ORDER
Accordingly, IT IS ORDERED that the Respondent, Sea
Breeze Health Care Center, Inc., its officers, agents, successors
and assigns, shall:9
1. Cease and desist from
(a) Interrogating or polling any employees about their union
activities, membership or sympathies.
(b) Threatening any employee because of their union activi-
ties, membership, or sympathies.
(c) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action.
(a) Post at its facility in Mobile, Alabama, copies of the at-
tached notice marked “Appendix.”10 Copies of the notice, on
forms provided by the Regional Director for Region 15, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1146
shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business, been purchased or closed
the facility involved in these proceedings, Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current and former employees employed by Respondent
since February 1997.
(b) File with the Regional Director a sworn certification of a
responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
3. IT IS FURTHER ORDERED that the election held in
Case 15–RC–8042 on April 17, 1997, is set aside, and that the
case is remanded to the Regional Director for Region 15 for the
purpose of conducting a new election.