The Salvation Army Williams Memorial Residence

National Labor Relations Board - Board Decisions

May 9, 1989

293 N.L.R.B. 944 (N.L.R.B. 1989)

944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Salvation Army Williams Memorial Residence
and Local 517-S, affiliated with Production,
Service and Sales District Council , Hotel Em-
ployees and Restaurant Employees , AFL-CIO,
CLC Cases 2-CA-19678, 2-CA-19753, and 2-
RC-19504
May 9, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On September 24, 1987, Administrative Law
Judge Robert M Schwarzbart issued the attached
decision The General Counsel and the Respondent
each filed exceptions and supporting and reply
briefs
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 as modified and to adopt the recom-
mended Order as modified 3
The judge found that the Respondent engaged in
widespread and extensive violations of Section
8(a)(1) of the Act that occurred during and after
the Union's election campaign at the Williams Resi
dence We have reviewed the Respondent's excep
tions to these findings and find them lacking merit
except with respect to the two 8(a)(1) allegations
discussed below We also agree with the judge that
the Respondent's unfair labor practices have made
the holding of a free and fair second election un-
likely, if not impossible, and that, therefore, a bar
gaining order is warranted 4 Finally, we adopt the
' The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 We find it unnecessary to pass on the judge s comments regarding
Machinists Local 1414 (Neufeld Porsche Audi) 270 NLRB 1330 (1984) in
his discussion of the preelection campaign meetings the Respondent con
ducted on May 23 and 24 1983
In adopting the judge s finding that the Respondent violated Sec
8(a)(1) of the Act through its attorneys questioning of employees Wal
lace and Salomon Chairman Stephens does not rely on Johnnie s Poultry
Co 146 NLRB 770 (1964) enf denied 344 F 2d 617 (8th Cir 1965) but
finds that under all the circumstances the questioning was coercive
a The judge inadvertently failed to include language in his notice re
flecting certain provisions in his recommended Order Accordingly we
will substitute a new notice
The General Counsel has requested that as part of the remedy the
Order include a visitatonal clause Under the circumstances of this case
we find such a clause unnecessary See Cherokee Marine Terminal 287
NLRB 1080 (1988)
4 NLRB v Gissel Packing Co 395 U S 575 (1969)
judge's findings that the Respondent did not, as al-
leged, violate Section 8(a)(3) of the Act by dis
charging two employees for their union activities 5
1 During the election campaign, the Respond-
ent's administrator, Major Ralph Leidy, told the
unit employees that the Union belonged to the
Mafia The judge found, citing Southland Knitwear,
260 NLRB 642, 655 (1982), that this statement vio
lated Section 8(a)(1) of the Act Contrary to the
judge, we find that the Respondent's comment
about the Union was protected by Section 8(c) of
the Act and is similar to certain statements that the
Board has found to be `privileged expressions of
opinions which, however false or unsubstantiated,
did not rise to the level of interference, restraint, or
coercion prohibited by Section 8(a)(1) of the
Act "6 Accordingly, this allegation of the com
plaint is dismissed
2 The judge concluded that the Respondent vio-
lated Section 8(a)(1) when Leidy told employee
Michael Wallace, an open union supporter, that he
knew about the union meeting that night and then
implied that he expected Wallace would be there
During the hearing, however, the Respondent was
not afforded the opportunity to cross-examine Wal-
lace regarding whether information on the time
and place of union meetings was common knowl-
edge throughout the plant The evidence that the
Respondent was seeking to adduce on this point
might well establish, if proven, a valid defense to
the allegation 7 As the judge did not permit the
Respondent to present evidence relevant to the dis-
position of the issue, we find that the matter was
not fully litigated and, accordingly we dismiss this
allegation
3 The Respondent contends that there has been
substantial turnover in its work force that should
preclude a Glssel bargaining order During the
hearing, the Respondent sought to introduce evi-
dence demonstrating that 27 of the 72 employees
who constituted the unit at the time of the election
were no longer employed at the facility The judge
sustained the General Counsel's objection to this
evidence on relevance grounds Subsequent to the
filing of its exceptions, the Respondent filed a
motion with the Board seeking to reopen the
record to present evidence on employee turnover
5 The General Counsel has excepted only to the dismissal of these
8(a)(3) allegations
6 See Camvac International 288 NLRB 816 (1988 ) quoting from North
Kingstown Nursing Care Center 244 NLRB 54 65 (1979)
Furthermore we find that the judge s reliance on Southland Knitwear
above is misplaced here In that case the respondents owner and his
family while telling employees that the union was from the Mafia and
was no good also took away leaflets the union had given the employees
and upped them up Thus the respondents conduct in Southland Knit
wear clearly went beyond simply expressing an opinion about the union
7 See e g La Reina Inc 279 NLRB 791 799-800 (1986)
293 NLRB No 118
SALVATION ARMY RESIDENCE 945
In this regard, the Respondent submitted the affida
vit of Major Leidy, who states, inter alga, that "[of]
the seventy two people employed by the Salvation
Army at the [Williams] Residence in March of
1983 [the time of the request and refusal to bar-
gain], forty six are no longer employed by the Sal-
vation Army " Leidy's affidavit further alleges that
two additional unit employees have transferred to
different departments, and that the employee main-
tenance department no longer exists and all mainte-
nance work is now subcontracted out
We deny the Respondent's motion to reopen the
record because the evidence it seeks to introduce
on changes in the composition of the bargaining
unit would not require a different result See Sec-
tion 102 48(d)(1) of the Board's Rules and Regula-
tions The Board has specifically held that "the va-
lidity of a bargaining order depends on an evalua-
tion of the situation as of the time the unfair labor
practices were committed "s Thus, the evi-
dence the Respondent proffers regarding changes
of this nature, as well as the passage of time, are
irrelevant considerations when assessing the propri-
ety of issuing a Gissel bargaining order 9 We are
cognizant, however, that this proceeding arises in
the Second Circuit in which the court repeatedly
has considered these factors relevant to the deter
mination of this issue 10 We therefore shall address
in this case the significance of the evidence that the
Respondent seeks to introduce For the reasons set
forth below, we find that, even assuming the rel-
evance and the accuracy of the information set out
in the Respondent's motion, this evidence would
not preclude an otherwise appropriate bargaining
order 11
In so concluding, we stress that, as described
above, the Respondent's unfair labor practices were
serious and affected virtually the entire bargaining
unit Although we will not presume that the Re
spondent's misconduct will recur in a new election
campaign, we cannot overlook certain factors that
increase the likelihood of recidivist behavior First,
the widespread nature of the misconduct and the
participation of management from top to bottom
show that the Respondent is deeply committed to
its antiunion position, a commitment from which it
is not likely to retreat It is also significant that, at
8 See Highland Plastics 256 NLRB 146 147 (1981)
8 See Bandag Inc 228 NLRB 1045 fn 1 (1977) and New Alaska De
velopment Corp 180 NLRB 971 (1970) See generally NLRB v Williams
burg Steel Products Co 369 U S 736 and cases cited at fn 16 (1962)
10 See e g NLRB v J Coty Messenger Service 763 F 2d 92 (1985)
NLRB v Marion Rohr Corp 714 F 2d 228 (1983)
11 Member Johansen joins in denying the motion to reopen but finds it
unnecessary to address the general relevance of turnover and passage of
time He like his colleagues is satisfied that the evidence the Respondent
offers to adduce would not alter the need for a bargaining order in this
proceeding
the time of the motion to reopen the record, Major
Leidy still remained the top management official at
the facility The continuing presence of Leidy, who
committed many of the unfair labor practices found
here, can serve only to reinforce in the minds of
the employees the lingering effects of the Respond
ent's violations Additionally, we note, with respect
to the alleged turnover of employees, that a sub-
stantial number of unit employees employed at the
time of the unfair labor practices remain in the Re-
spondent's employ As the Fifth Circuit has ob-
served, "Practices may live on in the lore of the
shop and continue to repress employee sentiment
long after most, or even all, original participants
have departed "12 Thus, the Respondent's unlawful
conduct has created a strong possibility that the in-
hibitive effects of the unfair labor practices remain
and serves to render unlikely the holding of a fair
election
We also find it significant that the Respondent's
misconduct persisted even after the election while
the Union's objections were pending As the judge
stated in his decision at 967
Leidy s statement to employees immediately
after the election to the effect that they would get
what was coming to them in wages and benefits,
but that he could not yet discuss such matters be
cause of the Union s continuing presence positioned
the Respondent to gain an advantage in the event of
a new election
Thereafter, approximately 1 year later, one of the
Respondent's attorneys did not fully comply with
the requirements of Johnnie's Poultry Co, 146
NLRB 770 (1964), when he interviewed employees
in preparation for the hearing in this case We also
note that this attorney further violated Section
8(a)(1) of the Act by interrogating employees re-
garding whether they had signed union cards, re-
garding who had supplied the cards, and regarding
the content of employee Michael Wallace's affida-
vit to the Board
We are not unmindful of the passage of time in
this case However, as the Board and the courts
have often emphasized, the passage of time is "re-
grettable" but is not a sufficient basis for denying
[a] bargaining order "13 In view of the serious mis
conduct the Respondent has engaged in, and par-
ticularly the threats of closure of the facility direct-
ed at the entire unit, we are convinced that the co-
ercive impact on the employees has not dissipated,
and in any event we are convinced that the mis-
12 Bandag Inc 583 F 2d 765 772 (5th Cir 1978) cited in Pggly
Wiggly v NLRB 705 F 2d 1537 1543 (11th Or 1983)
13 See e g Quality Aluminum Products 278 NLRB 338 340 (1986)
enfd 813 F 2d 795 (6th Cir 1987)
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conduct is likely to recur To withhold a bargain-
ing order in these circumstances, in effect, would
reward the Respondent for its own wrongdoing 14
Thus, although these factors are irrelevant in our
view, were we to consider them, we would not
find either employee turnover or the passage of
time significant here
We therefore agree with the judge that the possi-
bility of erasing the effects of the Respondent's
unfair labor practices and of conducting a fair elec-
tion by the use of traditional remedies is slight Re
quiring the Respondent simply to refrain from such
conduct will not eradicate the lingering effects of
the violations Consequently, an election would not
reliably reflect genuine uncoerced employee senti-
ment In these circumstances, we find that the em-
ployees' representation desires expressed here
through authorization cards would, on balance, be
better protected by our issuance of a bargaining
order than by traditional remedies
4 Finally, the tally of ballots in the representa
tion case shows 30 for and 34 against the Union,
with 19 determinative challenged ballots We
adopt, in the absence of exceptions, the judge's rec-
ommendations that the challenges to the ballots of
12 clerical employees and of Frederick Manck be
sustained and that the challenges to the ballots of
Bart Burton, Teresa DuPont, Claude Hintzen,
Florence Levy, Florence Roberts, and Jocelyne
Castillon Theodore be overruled The judge, how
ever, found that these six overruled ballots were
not determinative of the election results It is clear,
however, that these six ballots are determinative of
the election We, therefore, shall order that they be
opened and counted In addition, we shall further
modify the recommended Order to provide that
the Union is entitled to both a bargaining order and
a certification of representative in the event a re
vised tally of ballots shows that it won the elec-
tion 15 If, however, the Union should lose the elec-
tion based on the revised tally of ballots, the elec-
tion shall be set aside and the bargaining order
alone shall take effect
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, The Salvation Army Williams Memorial
Residence, New York, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified
14 New Alaska Development Corp above at 972
16 See Great Atlantic & Pacific Tea Co 230 NLRB 766 767-768
(1977)
1 Delete paragraphs 1(h) and 10), and reletter
the remaining paragraphs accordingly
2 Substitute the attached notice for that of the
administrative law judge
IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations not found
here
IT IS FURTHER ORDERED that the challenges to
the ballots of Bart Burton , Teresa DuPont, Claude
Hintzen , Florence Levy, Florence Roberts, and Jo-
celyne Castillon Theodore having been overruled,
they shall be opened and counted and a revised
tally of ballots be issued and served on the parties
If the tally shows a majority vote for the Union,
then the Union shall be certified as representative
in the above appropriate unit If the revised tally
fails to show that the Union has received a majori-
ty of the valid ballots counted , the election shall be
set aside and the representation case dismissed
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT threaten that if you select Local
517-S, affiliated with Production, Service and Sales
District Council, Hotel Employees and Restaurant
Employees, AFL-CIO, CLC as your bargaining
representative we will close our Williams Memorial
Residence
WE WILL NOT imphedly threaten that if you
select the above-named Union as your bargaining
agent, then as we have done with other of our fa-
cilities in the past, we will close the Williams Me-
morial Residence, lay you off, and reassign the
Residence building to one of our other ununionized
programs
WE WILL NOT threaten you that, if the above-
named Union wins a representation election, we
will take away your jobs by contracting out your
work
WE WILL NOT threaten you that, if the Union
wins a representation election, employees em-
ployed in your job classification will be laid off
WE WILL NOT threaten you with loss of break-
time and changes in work rules if you support the
above named Union or any other labor organiza
tion
SALVATION ARMY RESIDENCE 947
WE WILL NOT tell you that if you support the
above-named Union, or any other labor organiza-
tion, bargaining will be futile
WE WILL NOT promise you that, if the Union
loses a representation election, employees em
ployed in your job classification will receive pay
increases
WE WILL NOT solicit grievances from you and
imply offers to adjust such grievances in order to
induce you to abandon support for the Union
WE WILL NOT threaten surveillance and unspeci-
fied reprisals against employees who attend Nation-
al Labor Relations Board representation hearings
and/or who support the Union
WE WILL NOT blame the Union for our refusal to
grant requested pay increases and for our delay in
discussing and implementing a new wage and bene-
fits program for our employees
WE WILL NOT coercively interrogate our em-
ployees about their union activities, sympathies, de-
sires , those of other employees, the contents of
their affidavits given to the Board, and the Union's
organizing campaign
WE WILL NOT ask you to attempt to induce
other employees to abandon their support for the
above-named Union, or for any other labor organs
zation
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL recognize and, on request, bargain
with Local 517-S affiliated with Production, Serv
ice and Sales District Council, Hotel Employees
and Restaurant Employees, AFL-CIO, CLC as the
exclusive representative of all our employees in the
unit described below with respect to rates of pay,
wages, hours, and other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agreement
The appropriate bargaining unit is
All full-time and regular part time dietary,
housekeeping, maintenance and laundry em-
ployees employed by The Salvation Army
Williams Memorial Residence at 720 West End
Avenue, New York, New York, but excluding
all other employees, clerical/reception em
ployees, door persons, professional employees,
guards and supervisors as defined in the Act
THE SALVATION ARMY WILLIAMS
MEMORIAL RESIDENCE
Valerie E Brathwaite and Kent Hirozawa Esqs, for the
General Counsel
Ronald Kreismann and Carl A Schwarz Jr Esqs (Alfred
G Fehu and Cheryl Sabin Esqs and Finley Kumble
Wagner Heine Underberg Manley Myerson and Casey
on the brief), of New York , New York , for the Re
spondent i
Bruce Cooper Esq (Dubhrer Haydon Straci and Victor),
of New York , New York , for the Charging Party
DECISION
STATEMENT OF THE CASE
ROBERT M SCHWARZBART, Administrative Law
Judge These consolidated cases were heard in New
York, New York, dunng 38 days between 27 February
and December 1985,2 on complaints3 issued pursuant to
charges4 filed by Local 517-S, affiliated with Produc
tion, Service and Sales District Council, Hotel Employ
ees and Restaurant Employees, AFL-CIO, CLC (the
Union or HERE) b The second amended complaint, as
further amended at the hearing, alleges that the Salvation
Army Williams Memorial Residence, the Respondent,
violated Section 8(a)(1), (3), and (5) of the Act and that a
bargaining order should issue The Respondent, in its
answer, denies the commission of unfair labor practices
Pursuant to a petition filed by the Union in Case 2-
RC-19504, a Decision and Direction of Election issued
by the Regional Director for Region 2 on 29 April
1983,6 and the Board's 26 May denial of the Respond
ent's request for review of same, a representation elec
tion by secret ballot was conducted on 25 and 26 May
among the employees of the Respondent in the found
bargaining unit 7 The tally of ballots served on the par
ties immediately following the election showed that of
the approximately 86 eligible voters, 83 cast ballots, of
which 30 were cast for the Union, 34 were cast against
the Union and 19 ballots were challenged There were
no void ballots, but the challenged ballots were sufficient
in number to affect the results of the election The Union
i Kenneth A Margolis Esq onginally also cocounsel for the Re
spondent withdrew his appearance during the hearing
2 The hearing originally opened on 21 May 1984 before Administra
tive Law Judge Stanley N Ohlbaum who conducted the proceeding
during 12 days ending 26 July 1984 The consolidated proceeding was as
signed to me after Judge Ohlbaum s untimely death and the heanng re
sumed de novo on 27 February although the parties later stipulated that
much of the record developed before Judge Ohlbaum be made a part of
the record
3 The order consolidating Cases 2-CA-19678 and 2-CA-19753 was
issued on 30 September 1983 while the order consolidating these cases
with the hearing on objections and challenged ballots in Case 2-RC-
19504 was dated 5 January 1984 An amended consolidated complaint
and a second amended consolidated complaint issued on 25 January and
15 May 1984 respectively
4 The charges in Cases 2-CA-19678 and 2-CA-19753 were filed on I
June and 6 July 1983 respectively
6 The caption appears as amended sua sponte
B All dates are within 1983 unless stated to be otherwise
7 The bargaining unit found appropriate in the Decision and Direction
of Election is as follows
All full time and regular part time dietary housekeeping mainte
nance and laundry employees employed by The Salvation Army
Williams Memorial Residence at 720 West End Avenue New
York New York but excluding all other employees
clencal/reception employees doorpersons professional employees
guards and supervisors as defined in the Act
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
filed timely objections to conduct affecting the results of
the election In their objections, the Union alleged that in
the critical period before the elections the Respondent
Employer, through one of its colonels, told employees at
a meeting where attendance was mandatory that the Re
spondent would close the residence if the Union won the
election, that an officer of the Salvation Army showed
employees a motion picture of a nursing home and in
formed employees that the Salvation Army had closed
that facility after a union had won an election there, and
that, at another mandatonly attended employee meeting
called within 24 hours of the start of the election, the
same colonel told employees that if they voted for the
Employer, the Army then would meet with them to
work out their grievances On 5 January 1984 the
Acting Regional Director issued his order that the objec
tions to the election and the determinative challenges to
ballots in Case 4-RC-19504 be resolved in consolidated
hearing with Cases 2-CA-19678 and 2-CA-19753
Issues
1 Whether jurisdiction can be asserted over the Wil
Hams Memorial Residence as a wholly owned facility of
the Salvation Army, a religious institution and, if so,
2 Whether the Respondent, through its officers, attor
neys, and supervisors,9 independently violated Section
8(a)(1) of the Act by
(a) Telling employees that it would be futile for them
to select the Union as their bargaining agent as the Re
spondent would not agree to any of the Union s propos
als during prospective bargaining sessions
(b) Threatening employees, while showing them a film
or slides depicting acts of violence, that such violence
would occur if they selected the Union to represent
them
(c) Coercively interrogating employees concerning
their communications with the Board and as to the testi
mony such employees intended to offer during the hear
ing
(d) Threatening employees with unspecified reprisals if
they selected the Union to represent them
(e) Threatening employees at various times, individual
ly and in groups, that it would close its residence if they
continued to support the Union or if the Union won the
election
(f) Coercively interrogating employees concerning
their union membership activities, and sympathies
(g) Informing employees that they were being denied
wage increases because of the Union s presence at the fa
cility
(h) Threatening employees with loss of wages because
of their union activities
8 In Goodyear Tire & Rubber Co 138 NLRB 453 (1962) the Board de
fined the critical period before an election as the interval from the date of
the filling of the petition to the time of the election Conduct occurring
during this period found to have interfered with the employees freedom
of choice at the polls may be grounds for setting aside the election Ac
cordingly in the present case the critical period is from 17 March when
the petition was filed to 26 May the date the election was concluded
9 The Respondent has two types of supervisory personnel-commis
sioned officers who are ordained clergymen and lay supervisors who
report to the officers
(1) Threatening employees with changes in work rules
and with loss of break periods if they selected the Union
to represent them
0) Promising employees that it would adjust griev
ances to their satisfaction if they voted against the
Union
(k) Promising benefits to employees in order to induce
them to abandon their support for the Union
(1) Creating the impression among its employees that
their union activities were under surveillance by the Re
spondent
(m) Threatening employees with discharge because of
a belief that they had engaged in union activities
(n) Threatening its employees that, if they chose a
union as their bargaining representative and a contract
containing a union security clause should thereafter
result, the Respondent would discharge its employees for
nonmembership under its union security clause even if
the Respondent had reasonable cause to believe that
union membership had been terminated for reasons other
than the employees failure to pay uniformly required ini
tiation fees and periodic dues
(o) Threatening employees that should they select a
union and seek to express views at union meetings in ac
cordance with their rights under Federal law, they could
be expelled or otherwise disciplined by that union
3 Whether the Respondent violated Section 8(a)(3)
and (1) of the Act by discharging and refusing to rein
state its employees, James N Gibbons and Clarence
Greaves, because of their membership in support for
and activities on behalf of the Union
4 Whether, in the context of the above alleged viola
tions a bargaining order is warranted requiring the Re
spondent to recognize and bargain with the Union
5 In the alternative whether the representation elec
tion in Case 2-RC-19504 should be set aside and a new
election be directed
All parties were given full opportunity to participate
to examine and cross examine witnesses, to introduce rel
evant evidence and to file briefs Briefs filed by the
General Counsel and the Respondent, have been careful
ly considered
On the entire record of this case and my observation
of the witnesses and their demeanor, I make the follow
ing
FINDINGS OF FACT
I JURISDICTION
The Respondent admits and I find that it is a non
profit, religious and charitable organization incorporated
by a special act of the New York State Legislature to
preach the gospel to disseminate Christian beliefs and to
undertake spiritual moral and physical rehabilitation of
needy people The Respondent operates a residential fa
cility at 720 West End Avenue New York New York,
the Williams Residence or the residence and annually
derives gross revenues in excess of $500,000,10 and pur
10 Hispanic Federation for Development 284 NLRB 500 (1987)
SALVATION ARMY RESIDENCE 949
chases and receives at the residence goods and materials
valued in excess of $50,000 directly from firms located
outside the State of New York
Throughout these proceedings starting with the origi
nal representation case consolidated the Respondent
consistently has denied that it is an employer engaged in
commerce under the Act and that the Board has jurisdic
tion over its operations The Respondent argues that as
in NLRB v Catholic Bishop of Chicago 11 Board jurisdic
tion should not be extended over its operations as the
Salvation Army s social service activities are an rote
gral part of the Respondent's religious and spiritual mis
sion as a court recognized religious organization and
church The Respondent points out that it has established
a wide variety of social programs designed to meet the
needs of the young, the sick or infirm, the destitute and
the elderly and that the Williams Residence which
serves persons of mature age, is such a social program
consistent with and necessary for the completion of its
religious mission
The essential findings of fact concerning the jurisdic
tional issue were made in the Regional Directors Deci
sion and Direction of Election in Case 2-RC-19504,
issued 29 April 12 The Regional Director found that ju
risdiction should be asserted notwithstanding the Catholic
Bishop case
The facility in question is a 16 story nonsectarian resi
dence for persons 55 years or older who pay for the
services provided Such services in addition to housing,
can include either two or three cafeteria meals daily at
the residents option and simple first aid from one of
two nurses who work staggered shifts between 7 am
and 11 p in No personal care, medical or nursing serv
ices as such, are provided for the approximately 400
residents all of whom are ambulatory and in good
health
In distinguishing the Catholic Bishop case, the Regional
Director found that although the residence was under
the direction and control of a director who was a Salva
tion Army officer and ordained minister and that reli
gious services and bible classes were regularly conducted
in the residences chapel, its operations essentially were
secular Attendance at religious services and bible classes
was completely voluntary membership in the Salvation
Army was not a condition of residence or employment at
the facility, and the Respondents employees neither
were expected to nor did proselytize on behalf of the
Salvation Army 13 Rather the employees in the relevant
bargaining unit performed essentially commercial tasks
such as cooking and serving food laundering cleaning
and otherwise maintaining the facility, and serving the
needs of the residents
On 26 May 1983 the Board agreed with the Regional
Directors conclusion that the Catholic Bishop case and
other precedents in which Board jurisdiction was found
inappropriate were not applicable to this nonsectarian,
commercial enterprise Unlike Catholic Bishop the lay
teachers propagated church doctnne in the classroom, it
was concluded here that no entanglement in religious
matters would result from application of the Board s ju
risdiction to the Respondents Williams Residence
An evenly-divided Board next ruled on this issue on
21 June 1984 when absent a majority it upheld Judge
Ohlbaum s ruling that Section 102 67(f) of the Board s
Rules and Regulations precluded relitigation of the juris
dictional issue as review of the Decision and Direction
of Election had been denied earlier in consolidated Case
2-RC-1950414 By mailgram, dated 29 June 1984, the
Board denied the Respondents motion for reconsider
ation of its 21 June order
When this hearing opened de novo, before me, I
denied the Respondents renewed motion to dismiss the
complaint on jurisdictional grounds On 8 March 1985,
the Board, ruling on the Respondents request for special
leave to appeal, noted that the Respondents appeal was
identical to that which had been denied earlier in the ab
sence of a Board majority and found that since the hear
ing was underway for a second time, this issue would be
more appropriately resolved after a hearing on the
merits Accordingly the Board majority denied the Re
spondent s motion to stay the hearing but granted the
Respondents request for special permission to appeal my
order striking the jurisdictional issue from the Respond
ent s answer to the complaint, reserving consideration of
the issue for its review of exceptions to this decision 15
Since the Board s last review of this matter, the U S
Court of Appeals First Circuit has found that the Board
properly had exercised jurisdiction over a Salvation
Army facility in NLRB v Salvation Army of Massachu
setts 16 In Salvation Army of Massachusetts, the First Cir
curt found that, unlike Catholic Bishop supra in which
the teaching facility was expected to imbue and indoc
innate the student body with the tenets of a religious
faith, the program under consideration in Salvation
11 440 U S 490 (1978) In the Catholic Bishop case the U S Supreme
Court seeking to avoid excessive entanglement with religion ruled
that Congress had not intended that the Act give the Board jurisdiction
over lay teachers in parochial high schools whose programs included re
ligious instruction and extracurricular activities and where the purpose
was to propagate a religious faith See Jewish Day School of Greater Wash
ington 283 NLRB 757 (1987) Nazareth Regional High School 283 NLRB
763 (1987) in which this doctnne more recently was followed and
Hanna Boys Center 284 NLRB 1080 (1987) where Board jurisdiction
was exercised over certain nonteaching nonprofessional and nonreligious
employees of a residential facility for boys operated by a Roman Catholic
diocese
12 At the hearing before me the Respondent agreed that there had
been no material factual changes at the residence affecting the junsdic
tional issue since the hearing in the representation case and did not offer
further evidence in support of its position concerning jurisdiction
19 About 15 to 20 percent of the residents were members of the Salva
tion Army
14 Sec 102 67(1) of the Rules and Regulations in relevant part pro
vides
Denial of a request for review shall constitute an affirmance of the
Regional Directors action which shall also preclude relitigatmg any
such issues in any related subsequent unfair labor practice proceed
mg
is Chairman Dotson citing Ming Quong Children s Center 210 NLRB
899 (1974) dissented from the 8 March ruling and would have granted
the Respondents motion
16 763 F 2d 1 (1st Cir 1985) enfg 271 NLRB 195 ( 1984) See also 247
NLRB 413 (1980) The First Circuits decision in the Salvation Army of
Massachusetts case supra was quoted with approval by the U S Court of
Appeals Eighth Circuit in Volunteers of America v NLRB 777 F 2d
1386 1389 (9th Cir 1985)
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Army of Massachusetts provided the children with care
not education The court found that the Dorchester Day
Care Center facility
involves no religious instruction, indoctrination
or extra curricular activities Neither the teachers,
children nor parents are chosen for their religious
affiliation Nor do they receive any religious train
ing No significant condition of employment is
imposed with an overt religious purpose in mind
Also, just as in Denver Post,17 although there is evi
dence that the Center fulfills the religious mission of
the Salvation Army there is no evidence that the
Center serves anything other than a secular funtion
Although the teachers are aware of the reli
gious purpose of the Salvation Army there is not
that intertwining of religious doctrine and secular
teaching which created the risks present in Catholic
Bishop
We are not faced with that infusion of reli
gion" into programming which sets institutions such
as parochial high schools apart from secular hign
schools Denver Post 732 F 2d at 772 The risk
of serious constitutional questions being being raised
in these circumstances is simply too insignificant
and speculative to be comparable to the risks
present in Catholic Bishop See National Labor
Relations Board v St Louis Christian Home, 663
F 2d 60, 64 (8th Cir 1981) Precedent thus calls for
a finding of jurisdiction See e g Denver Post, 732
F 2d at 773, Tressler Lutheran Home for Children,
677 F 2d 302, 305 (3d Cir 1982) (Catholic Bishop
distinguished on the ground that the main function
of a nursing home is to give personal attention to
the elderly and infirm ) St Louis Christian Home
663 F 2d at 65 (jurisdiction found over lay workers
at home for battered and abused children because
the function and operation of the home were no dif
ferent from those of other secular childcare institu
tions)
Finally while noting that the Salvation Army is a
well respected religious organization of genuine religious
purpose, the court concluded that were jurisdiction not
to be found under the circumstances of that case a for
malistic means of circumventing Federal labor laws
would be afforded to private care providers who articu
late some religious affiliation and mission no matter how
remote in effect from the social programs functions or
operations a result intended neither by Catholic Bishop
nor by Congress in legislating the Act
Noting as found by the Regional Director that the
Williams Residence is operated as a commercial housing
facility for mature adults who pay for their room and
14 Denver Post of the National Society of the Volunteers of America v
NLRB 732 F 2d 769 ( 10th Cir 1984) The Salvation Army of Massachu
setts Court strongly relied on Denver Post in reaching its determination
Although there were distinguishable factors the outcomes of both Salva
non Army of Massachusetts and Denver Post were determined by the secu
lar nature and functions of the operations in question
board that the religious aspects of the Salvation Army,
its ordained officers and optional religious practices do
not relate to the work of the residences staff or its basic
operations, the evidence is clear that the Williams Rest
dence primarily serves a secular function In so conclud
ing it further is noted that there is no requirement that
the residences staff or quests be of a particular faith, that
there was little need or opportunity for religious inter
change between staff and residents and that the work
performed by the unit employees-cooking, serving,
housekeeping, laundering, and maintenance-were quite
unrelated to religious observance or indoctrination
Unlike the young students considered in Catholic Bishop
Jewish Day School of Greater Washington supra, and
Nazareth Regional High School, supra the mature ages of
the residents here and the absence of a required curricu
lum create little expectation that they would be suscepti
ble, or even appreciably exposed, to religious training or
influence In this sense, the present matter is even less
similar to the Catholic Bishop case than was Salvation
Army of Massachusetts, which the Board, in asserting ju
risdiction found to be primarily concerned with custo
dial care of young children, and only secondarily con
cerned with education ' 18 Here the resident body is
mature and there are no educational concerns
I also would concur with Judge Ohlbaum that relitiga
tion of this jurisdictional issue in a related unfair labor
practice hearing after the Board had ruled on the same
matter in the earlier representation case is precluded by
Section 102 67(f) of the Rules and Regulations This is
particularly applicable since the representation case in
which the original jurisdictional ruling was made by
consolidation, remains a part of this proceeding
As the Board will not decline to assert jurisdiction
over an employer solely because it is a nonprofit organs
zation is exempt from income tax requirements under
the Internal Revenue Code or because of its charitable
function or worthy cause 19 it is appropriate for the
above reasons to take jurisdiction in the present matter
Accordingly I find that the Respondents Williams Me
morial Residence is an employer engaged in commerce
within the meaning of Section 2(2) (6), and (7) of the
Act and that assertion of Board jurisdiction will effectu
ate the purposes and policies of the Act
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act
18 247 NLRB 413 (1980) Exercise of Board jurisdiction is even more
strongly indicated in the present matter than in the recent decision in
Hanna Boys Center 284 NLRB 1080 (1987) in which the Board included
child care workers among others in one of the two nonreligious/
nonteaching/nonprofessional bargaining units found appropriate While
rejecting arguments that the child care workers were analogous to teach
ers with a critical role in fulfilling the mission of a church operated
school the Board did find that the child care workers among a range of
nonreligious functions did shepherd the resident male students to
chapel saw that the boys said their prayers and selected a boy to say the
evening prayer activities consistent with a subpart of the child care
workers job description which included D Teaching values ethical
principles religious observances The duties of the employees at the
Williams Residence have no religious component
is Hudelson Baptist Children Home 276 NLRB 126 127 (1985)
SALVATION ARMY RESIDENCE 951
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background and Outline of Parties' Positions
The Respondent operates a residence for about 400
mature adults in New York, New York, containing an
on premises cafeteria and snack shop However, except
for a first aid station, there are no health care facilities
Since 25 January, Major Ralph R Leidy, an ordained
Salvation Army officer, has been the residences adminis
trator, principally responsible for its operations The as
sistant administrator during the relevant March through
June period was Major Laurance Garrel 20 Other super
visors at the residence during the first half of 1983 in
cluded Blanche Kronnel housekeeping department,
Catherine Dempsey, dietary department, and Charles
Scales, maintenance department Myrtle Jaynes was man
ager of the front desk, which included oversight of the
telephone operations and the doorpersons 21 Lieutenant
Colonel Raymond D Howell of Salvation Army Greater
New York Division Headquarters and men s social serv
ices secretary, was in charge of Labor relations for the
northeastern part of the United States In accordance
with the parties stipulation, I find that Leidy, Garrel,
Howell, Dempsey, Kronnel, Scales, and Jaynes were su
pervisors and agents of the Respondent within the mean
ing of Section 2(11) and (13) of the Act, respectively
The Union's organizational campaign began soon after
1 March 1983, when Joseph Lovell, union district coun
cil representative, received a telephone call from a party
who identified himself as an employee of the Respond
ent's residence and who invited the Union to attempt to
represent the residence employees
On 2 March, Lovell, accompanied by organizer There
sa Rodriguez parked their car in the vicinity of the resi
dence and began to distribute authorization cards to the
Respondents employees as they passed on the street 22
Some interested employees aided the Union s campaign
by taking additional blank authorization cards and giving
them to other employees on the Respondents premises
The complaint alleges that as of 17 March, the Union
was the majority bargaining representative of the Re
spondent s unit employees and it is stipulated that on
that date the Union in writing requested that the Re
spondent recognize it as bargaining agent for the rele
vant unit employees On 17 March, the Union also filed
the petition for representation election in Case 2-RC-
19504 As noted, the Union was not successful at the
election conducted on 25 and 26 May, and the issues
ansing from the election, the objections and the determi
20 By the time of the hearing Garrel had transferred to another Salva
tion Army assignment
21 Doorpersons are excluded from the bargaining unit as guards Their
duties included discouraging undersirable people from entering the build
ing checking permits or passes for property taken from the building by
employees and other security functions As their role in the checking of
passes is in issue in connection with the alleged unlawful discharges this
function will be considered below in detail At the time of the heairng
doorpersons no longer were employed
22 Many of the Respondents employees were distinguishable by the
uniforms they wore which were differently colored for each department
native challenged ballots have been consolidated as a
part of this proceeding 23
Although Major Leidy, the residences administrator,
testified that he first became aware of the Union's orga
nizational campaign during either the second or third
week of February, the Union, as indicated, did not begin
to distribute authorization cards outside the residence
until the beginning of March 24
Thereafter the Respondent conducted a series of
meetings with its employees in a sustained effort to
counter the Union's campaign These meetings, presided
over by Leidy with support from assistant administrator
Garrel, were conducted on 13 April, during the morn
ings and afternoons of 13, 17, and 19 May, and during
the afternoon and morning of 23 and 24 May, respective
ly 25 Except for the first, April meeting, which was at
tended only by about 10 to 15 dietary department em
ployees and held in the residence dining room, the other
preelection meetings were attended jointly by groups of
about 30 employees summoned from the various affected
departments, including housekeeping, dietary, and main
tenance, and were held in the activities room in the rest
dence basement The May sessions were duplicated in
scope so that each afternoon session covered the same
ground as had the morning meeting that had immediately
preceded it In this manner the afternoon 23 May and
the morning 24 May meetings also were the same in con
tent The Respondent thereby was able to rotate its em
ployees attendance at the May meetings so that, theo
retically, each employee would be exposed to all of the
Respondents campaign materials Attendance at all
meetings was mandatory and employees were told when
and where to be present by their immediate supervisors
Lieutenant Colonel Raymond D Howell of Salvation
Army headquarters read the same prepared speech to the
employees at the 23 and 24 May meetings Many of the
numerous alleged violations of Section 8(a)(1) of the Act
relate to what was told to employees at these preelection
meetings of April and May by Leidy Garrel and
Howell
The General Counsel considers as violative of Section
8(a)(1) of the Act certain remarks made at a 26 May
meeting of employees called by Leidy in the residence
lounge very shortly after it became known that the
Union had lost the representation election, statements
made to individual employees before the election apart
from these meetings by Leidy and by other residence su
pervisors and what was told to employees by the Re
spondent s counsel at private interviews well after the
election while preparing for the trial of this matter
The complaint further alleges that on 28 June about 1
month after the election two maintenance employees
James N Gibbons and Clarence Greaves, were terminat
2S Another unit issue related not to the election but to the General
Counsels request for a bargaining order is the unit placement of certain
employees whose ballots were not challenged but whose status in this
regard must be resolved to determine the size of the unit on 17 March so
as to enable determination of whether the Union enjoyed support of a
majority of the unit employees
24 As noted Leidy had become administrator only shortly before on
25 January
25 The representation election took place on 25 and 26 May
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ed in violation of Section 8(a)(3) and (1) of the Act be
cause of their union activities and sympathies The Re
spondent contends that these individuals were terminated
solely for having stolen carpeting from the residence
The General Counsel, the Union and the two men in
volved assert that Gibbons had received prior permission
from his immediate supervisor to tie, store and remove
the carpeting Greaves chance involvement began only
at the last minute when, as a favor he helped Gibbons to
carry the heavy carpeting out the door
Finally the General Counsel and Union argue that the
Respondent's unfair labor practices at the meetings and
elsewhere in the residence, including the two discharges
were so flagrant as to preclude a free election and that
accordingly, the Respondent should be required to rec
ognize and bargain with the Union
B The Alleged 8(a)(1) Violations
1 The 13 April meeting
a Facts
Employees Jose Vasquez and Michael W Wallace26
testified concerning the Respondents first preelection
meeting on 13 April It was held in the residence dining
room, was conducted by Leidy and attended by Dietary
Department Supervisor Catherine Dempsey and by 10 to
15 dietary employees 27
According to Wallace and Vasquez Leidy told the
employees that there were some union people hanging
around outside the building that he dust had taken office
and that the employees had not given him a chance He
had not known that anything like this was happening
There were two sides to the story The Union had one
side and the Williams Residence had another Leidy
asked the employees to give him a chance
Leidy continued that the building was run on a fixed
income and that he could pay only so much With time,
he would try to make it a little better The employees
should come talk to him about their pay instead of going
to the Union
Leidy also told the employees that if the Union came
in they would lose breaktime and he would not give the
Union a penny The Union belongs to the Mafia and the
rules around the residence would change 28
26 At the time of the hearing both Wallace and Vasquez were em
ployed as kitchen employees in the Respondents dietary department
where they reported to that departments supervisor Catherine Dempsey
Wallace by then had been with the Respondent for about 8 years and
Vasquez for about 6 months less
27 The April meeting was the only one where all the employees were
drawn from a single department The Respondents subsequent gatherings
were attended by groups of about 30 employees summoned from all rele
vant departments
28 Wallace testified that two individuals whose status as unit employees
originally was disputed also spoke at the April meeting Dining room em
ployee Irene Mitchell told the employees that she really did not want the
Union and did not know why any union was coming in Mary Vester
Reese chief cook stated that she did not think that the employees
needed a union Although the parties subsequently stipulated that Mitch
ell should be included in the unit Reese s status remained in dispute and
is considered below
Leidy testified that at the April meeting he thanked
the employees for coming apologized for having inter
rupted their work and informed them that word had
come to him about the Union s efforts He told the em
ployees that the Salvation Army had received a telegram
from the Union in March and that the employees prob
ably would have to make some decisions concerning
their relationship with the Union Leidy told the group
that he had called them together to give information that
they should think about as they considered signing up
for a union If the Union should come to represent the
employees, certain procedures normally would follow
There would have to be a negotiating session and the
employees should know that in negotiations as Leidy
understood them, there was give and take and negotia
tions were not just a one way street All benefits would
go to zero and things that the Salvation Army had given
the employees in the past would have to be negotiated
Wages and benefits would be negotiated and benefits the
employees then had might not necessarily be theirs after
bargaining If the parties did not come to an agreement
during the bargaining process, the only alternative that
Leidy knew would be for the employees to strike
Leidy denied having told the employees at that session
that they would be replaced in the event of a strike or
that he had invited employees to come to him with their
problems
The April meeting ended after Leidy finished answer
ing employees questions
b Discussion and conclusions
From the foregoing I find that Leidy s unrefuted
statements to employees that they would lose breaktime
and that rules around the residence would change if the
Union came in respectively violated Section 8(a)(1) of
the Act
Leidy also admittedly observed at that session that if
the Union came in, give and take negotiations would
follow all wages and benefits would go to zero wages
and benefits previously afforded would have to be re
negotiated and might not still be available to employees
after bargaining and that in the absence of agreement,
the Union s only known alternative was to strike
As stated by Administrative Law Judge Robertson in
his Board approved decision in Baton Rouge General
Hospital 29
The cases have customarily found that threats to
bargain from scratch or from a blank sheet of
paper do not violate Section 8(a)(1), when the con
text of the statement shows the comments relate to
the give and take of bargaining and when it is re
vealed that benefits may go up or down during ne
gotiations General Electric Co, 246 NLRB
1103, 1107 (1979) Delchamps Inc, 244 NLRB 366,
372 (1979) Rapid Mfg Co, 239 NLRB 465, 471,
472 (1978)
28 283 NLRB 192 210-211 (1987) Also see La Z Boy 281 NLRB 338
(1986) Clark Equipment Co 278 NLRB 498 ( 1986) Kawasaki Motors
Mfg Corp 280 NLRB 491 (1986)
SALVATION ARMY RESIDENCE
Although the power to strike or the strike itself,
may be one of the Union's strongest weapons it is
not the only weapon [or alternative] as indicated
However that statement does not consti
tute misrepresentation in view of the strike being
the most likely recognized weapon available to
labor organizations Where the speech does not
stress that a strike is inevitable, no violation is found
(see Tipton Electric Co, 242 NLRB 202)
Moreover an employer does not violate the Act
by telling employees they will not receive pay
during a strike and that it has a right to replace eco
nomic strikers 30
From the above authority, I find that Leidy s state
ments to employees that wages and benefits would go to
zero, would have to be negotiated and might not still be
available to the employees after bargaining, did not vio
late Section 8(a)(1) of the Act I also conclude that there
was no violation of Section 8(a)(1) in Leidy s statement
that a strike might be the only alternative if there is no
agreement Leidy did not tell the employees that a strike
was inevitable
Leidy did not deny testimony that he had told em
ployees at the April meeting that, in the event of bar
gaining, he would not give the Union a penny Accord
ingly, I find that the Respondent violated Section 8(a)(1)
of the Act by warning its employees that it would be
futile for them to select the Union as bargaining repre
sentative as the Respondent would approach the bargain
ing process with a closed mind 3 i The Respondents fur
ther representation that the Union belonged to the Mafia
also violated Section 8( a)(1) 32
Finally with respect to this meeting noting from the
record as a whole that Leidy s general credibility was
impaired by his substantial and repeated impeachment by
the Union during his subsequent testimony concerning
the unit placement of dining room/snack bar employee
Bart Burton, I credit testimony denied by Leidy that he
invited the employees to talk to him about their pay in
stead of going to the Union I conclude that Leidy s re
marks in this regard contain an implied promise to adjust
grievances concerning compensation to reduce or
remove reason for union representation Such conduct
violates Section 8(a)(1) of the Act as an unlawful solicita
tion of grievances 33
30 The Employer in Baton Rouge General Hospital as here had re
ferred only to replacement of economic strikers-those participating in a
stnke that had resulted from rejection of union negotiating demands
31 Atlas Microfilming 267 NLRB 682 685-686 (1983) Dimensions in
Metal 258 NLRI3 563 566 (1981)
32 Southland Knitwear Inc 260 NLRB 642 643 655 (1982) Although
in Newsday Inc 274 NLRB 86 95 ( 1985) an employers unrefuted state
ment that a union was no good for its employees and that the Union s
president was corrupt was held to be lawful expressions of opinion pro
tected as the speech by Sec 8(c) of the Act the term Mafia goes
beyond this as a specific reference commonly associated with menace and
violence It therefore would appear that the Respondents unsubstantiat
ed statement that the Union belonged to the Mafia was more exacerbated
and inherently more coercive in affecting employees in their choice of a
bargaining representative
33 Long Airdox Co 277 NLRB 1157 (1985) Windsor Industries 265
NLRB 1009 1016-1018 (1982) Lawson Co 267 NLRB 463 470 (1983)
2 The 13 May meetings
a Facts
953
Combining the testimony of Majors Leidy and
Garrel 34 on 13 May at 1015 a m and at 2 15 p m two
meetings identical in content were conducted with dif
ferent groups of employees from the dietary, mainte
nance, and housekeeping departments at the residence
Leidy began this and all later meetings by thanking the
employees for coming and by apologizing for having in
terrupted their work He then announced that he and
Garrel would be giving the employees some information
concerning the Union Instead of a lecture this informa
tion would be in the form of a question and answer ses
sion The employees were told that when the questions
and answers were completed they would be shown a
videotape
In the morning session, Garrel then read aloud 23 pre
pared questions pausing after each question so that
Leidy could read back the respective prewritten answers
During the afternoon meeting Leidy and Garrel re
versed roles so that Leidy read the same questions and
Garrel the answers
During the question and answer part of the 13 May
meetings, the employees were advised that the Salvation
Army knew from experience that day to day relations
are more direct and satisfactory without constant inter
ference by an outside third party, that unions can cause
trouble by stirring up false issues to justify collecting
dues, that labor trouble would jeopardize the Respond
ent s ability to operate successfully, that the Respond
ent s facility did not have to give in to any union
demand that was not for the good of or that may be
harmful to the residence Employees were urged to vote
at the representation election
Selected excerpts from the Respondents transcript of
the questions and answers follow reflecting the Re
spondent s account of matters raised in the testimony of
the General Counsels witnesses as
Q If the Union is voted in will we get all the
things that the union had been promising?
A Contract negotiating is a two way street
Union members can win and they can also lose
Many employees have found themselves with less than
they had before the union took control Once a union
represents employees the employer can no longer
grant voluntary wage raises or improve fringe bene
fits at will Instead, these things must be negotiat
ed As a result many employers are forced to
hold back on the raises and fringe benefits and
give only what the union can force out of them
How else can you bargain?
Q If the union is voted in will there be a strike?
Cf Middletown Hospital Assn 282 NLRB 541 (1986) where an analogous
potential violation was not found because not alleged in the complaint
' Garrel with the Salvation Army for 35 years at the time of the
hearing was assigned to its divisional headquarters in Pittsburgh Pennsyl
vania He was assistant administrator of the Williams Residence under
Leidy from January to June 1983
35 Italicized and capitalized passages of the excerpted answers appear
as emphasized by the Respondent
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A I don t know We would bargain in good
faith But if the facility doesn t agree to the things
the union has been promising the only way the
union can try to force it to agree is to make you go
out on strike It is easy for the union to make all
sorts of big promises to you, but something else for
the union to fulfill its promises
Q If the union calls a strike, do I have to go out
on strike if I don t want to?
A YES AND NO' If you were a union member
and did not go out on strike, the union could fine
you Records show that in the last few years fines
of up to several thousand dollars have been levied
by various unions against members crossing picket
lines
In a lot of strikes those people who are striking
will not let employees who want to work cross the
picket line The union may try to stop you with
threats and intimidation Unions have been known
to bring in outsiders-people who have never
worked at this facility-to do its picketing for it
When this happens, everybody suffers-not only
those who want to strike, but those who are not al
lowed to work
Q If the Union calls a strike, can we lose our
jobs?
A YES Under the law, if the union makes you
strike to try to force the employer to agree to the
union s economic demands, the employer is free to
replace the strikers This means that after the strike
is over, you may no longer have a job The law
does not force the facility to rehire you unless an
opening occurs for which you are qualified and you
are next in line on the rehire list which could be a
long time if ever The only real weapon the union
has is to strike When strikes occur employees lose
wages that are never recovered while union officials
continue to draw their salaries and expenses during
strikes As I have said before if members decide to
work at their jobs during a strike, they may be
kicked out of the union or fined some outrageous sum
or both
We read about union violence in the papers The
violence that accompanies a strike is something the
organizer doesn t like to discuss Unfortunately the
violence and terror accompanying a strike are
something no one can fully comprehend unless he
or she has lived through the experience And we all
know that the HERE is as bad as any other
Q Can the union make the facility run its busi
ness and furnish us with a job
A No, the union has no power legally or other
wise to force the facility to operate for one day,
week, month, or year
Q Will the union get us more benefits or is it
possible to lose something we now have?
A The union may tell you that you have every
thing to gain and nothing to lose This may not be
true If the union gets in and a contract is negotiat
ed the union can get you only the benefits which
the facility agrees to give and no more If the de
mands of the union are such as would hamper the
efficient operation of the facility, the facility would
then be justified in demanding a reduction in wages
or other benefits now enjoyed in order to operate
profitably Whether you will still have the benefits
you now have after a contract is negotiated will
depend entirely on what takes place in the negotia
tions The union can't guarantee the results no
matter what it promises you now You could actual
ly lose in such a situation It has happened many
times)
Employees further were advised that, in the Respond
ent s opinion, unions could get nothing for them that
they could not obtain anyway, except a chance to pay
union dues that the Respondents success in satisfying its
residents needs is what determines wages and benefits
that, regardless of unionization, the Respondent cannot
give more than is economically justified, and if the
Union should demand more than the facility could give
its only tool to justify its existence is a strike or threat to
strike Employees also were told of how difficult it is to
get rid of a union once it is in Employees who tried to
get the Union out could be considered in violation of the
Union s constitution and fined noting that fear of union
bosses, fines and intimidation are the main reasons em
ployees are afraid to try to get the union out-once it is
in-even though they way [sic] hate working in a union
environment
Employees also were informed during the question
and answer sessions that union membership was expen
sive, with dues generally at least $100 to $200 a year
and initiation fees costing as much as $100 Fines, too,
were not unusual in unions including HERE There fol
lowed a summary of costly fines assessed by unnamed
unions against unspecified members for working during a
strike for not walking a picket line and for working non
union The employees were reassured that they would
not lose their jobs if they voted against the Union that
they had the right to campaign against the Union that
they were not obliged to let union organizers into their
homes, and that they could vote against the Union even
if they previously had signed union authorization cards
The last question and answer, in relevant part, follows
Q Why is the facility fighting the union so hard?
A We value our trained employees but if
the facility should desire to operate and stay in buss
ness during a strike it would be necessary for us to
replace all economic strikers The union has no in
vestment in your future or the future of this facili
ty Ask yourself these questions-IF I DID NOT
HAVE A JOB, WOULD THE UNION BE INTERESTED IN
ME? IF THE UNION CALLED ME OUT ON STRIKE,
WOULD IT PROMISE TO GET ME A JOB? WHERE
WOULD THAT JOB BE? WOULD THE UNION TAKE
CARE OF MY FAMILY AND MY BILLS IN THE MEAN
TIME?
After the question and answer session was completed
the lights were turned off and as promised a videotape
entitled This Matter of Unions, was shown This video
SALVATION ARMY RESIDENCE
tape showed an employee and a supervisor, the Employ
er s personnel manager , seated at the latter s desk in the
office, discussing , at the employees initiative , the ramifi
cations of a union campaign During the meeting, the su
pervisor answered the employees questions about the
Union and what it could mean 36
At the end of both the morning and afternoon 13 May
sessions , after showing the video film, Leidy asked for
questions When there were none, he asked the employ
ees to return to work
b Discussion and conclusions
The U S Supreme Court has stated in NLRB v Gissel
Packing Co 37
[a]n employer is free to communicate to his employ
ees any of his general views about a particular
union , so long as the communications do not con
tarn a threat of reprisal or force or promise of ben
efit " He may even make a prediction as to the pre
cise effect he believes unionization will have on his
company In such a case, however, the prediction
must be carefully phrased on the basis of objective
fact to convey an employers belief as to demonstra
bly probable consequences beyond his control or to
convey a management decision already arrived at to
close the plant in case of unionization See Textile
Workers v Darlington Mfg Co 380 U S 263 274, n
20 (1965) If there is any implication that an em
ployer may or may not take action solely on his ini
tiative for reasons unrelated to economic necessities
and known only to him, the statement is no longer a
reasonable prediction based on available facts but a
threat of retaliation based on misrepresentation and
coercion, and as such without the protection of the
First Amendment We therefore agree with the
court below that (c)onveyance of the employer s
belief, even though sincere that unionization will or
may result in the closing of the plant is not a state
ment of fact unless, which is most improbable, the
eventuality of closing is capable of proof 397 F 2d
157 160 As stated elsewhere, an employer is free
only to tell what he reasonably believes will be the
likely economic consequences of unionization that
36 Although the General Counsel was granted leave to add to the
record transcripts of those soundtrack portions from the two videotapes
shown employees on 13 and 17 May respectively that were deemed vio
lative of the Act together with written descriptions of what correspond
ingly was being shown on the screen this was not done and no argu
ment concerning the videotapes was made in the General Counsels brief
Accordingly no finding will be made concerning the lawfulness of the
videotapes The significance of these videotapes in any event might
have been lessened by the Board s finding in Kawasaki Motors Corp 280
NLRB 159 ( 1986) that a videotape shown by an employer to its employ
ees during a union s organizing drive depicting strike violence and which
portrayed to employees that the union had had a long and violent strike
history and that one third of its members were unemployed due to that
union s stands was found together with employer statements made
during its showing to have been expository in nature and speech protect
ed by Sec 8(c) of the Act Also see Offshore Shipbuilding 274 NLRB
539 553 ( 1985) Although the Respondent has included what purports to
be the full text of the supervisors remarks in This Matter of Unions on
p 15 of its brief the representations made there are not cognizable as evi
dence
37 395 U S 575 618-619 (1969)
955
are outside his control , and not threats of economic
reprisal to be taken solely on his own volition
NLRB v River Togs Inc, 382 F 2d 198, 202 (2d
Cir 1967)
As indicated above , employer threats to bargain from
scratch made to employees during a unions organizing
drive do not violate Section 8(a)(1) of the Act where the
context of the statements show the comments relate to
the give and take of bargaining , where it is revealed that
benefits may go up or down during negotiations 38 Nor
is there a violation in employer statements to employees
that if a union 's demands are not met, the strike is the
only weapon ,' in which case strikers could lose their
jobs as the employer had the right to replace them 39
Applying the above principles , it does not appear that
the series of questions and answers read to employees at
the 13 May meetings , the transcript of which is in evi
dence , contained language violative of the Act As found
above , it is lawful for an employer, as here to inform
employees that bargaining would have to begin at the
zero point and may result in reduced benefits
Although the Respondent alluded to the prospect of a
strike should the Union become bargaining representative
and its negotiating demands not be met , the Respondent,
on 13 May, did state an intention to bargain in good
faith The Respondent did not tell the employees that a
strike was inevitable or that it was the only way the
Union could achieve reasonable contract demands The
Respondent's suggestion was that in the event that unrea
sonable union demands were made , it might be put in the
position of accepting a strike I therefore , conclude that
the references to a strike and its consequences were pre
dictions of the possible occurrence of events outside of
its control and not a threat of reprisal based on its own
volition 40
Although the Respondent 's further representations
during the question and answer segment that the Union
lawfully could fine and otherwise discipline employee
members who attempted to resign from the Union during
a strike and who had not been supportive would not
now be true in view of Machinists Local Lodge 1414
(Neufeld Porsche Audi)4 i and such later cases as Machin
ists District Lodge 94 (McDonnell Douglas) 42 and the Su
preme Court s decision in Pattern Makers League of
North America AFL-CIO v NLRB, 43 the Respondent s
observations in this regard were not misrepresentations
of law when made in 1983 because predating the earliest
of these matters
The Respondent's above described references to the
possibility of union violence accompanying a strike,
38 Baton Rouge General Hospital 283 NLRB 192 (1987) supra Stand
and Products Co 281 NLRB 141 (1986) Pilhod of Mississippi Inc 275
NLRB 799 807 (1985)
39 Baton Rouge General Hospital supra Golden Fan Inn 281 NLRB
226 (1986)
40 See Reliable Mfg Corp 240 NLRB 90 96 100 (1979)
41 270 NLRB 1330 (1984)
42 283 NLRB 881 (1987)
43 473 U S 95 (1985) Also see Machinists Lodge 1233 (General Dynam
ics) 284 NRLB 1101 (1987) Cf NLRB v Allis Chalmers Mfg Co 388
U S 175 (1967)
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
should one occur and of the difficulties of getting nd of
a union after it has come in, in the context used here
also were found lawful in Baton Rouge General Hospi
tal 44
Accordingly as no finding will be made concerning
the videotaped material for reasons stated above, the Re
spondent did not violate Section 8(a)(1) of the Act
dunng the 13 May meetings
3 The 17 May meetings-facts and conclusions
Garrel and Leidy testified that on 17 May at 10 15
am and 2 15 p in , respectively, two identically struc
tured meetings again were held with different groups of
employees from the relevant departments Leidy in
formed the employees that they would be given further
information concerning the Union Another videotape, of
about 30 minutes' duration, entitled Why Employees are
Leaving Unions, was shown to the employees When the
video film showing was completed, Leidy invited ques
tions and sent the employees back to work when none
were asked
Since the morning and afternoon meetings of 17 May
were devoted exclusively to the showing of the second
videotape and as, for reasons stated in footnote 36,
above, in connection with the 13 May meetings, it has
been concluded that no finding can be made with respect
to these tapes, no determination is made concerning
events at the 17 May meetings 45
4 The 19 May meetings
a Facts
On 19 May at 10 15 a in and 2 15 p in respectively,
Leidy and Garrel conducted two more meetings of the
same scope and content before successive groups of em
ployees from the maintenance, dietary, and housekeeping
departments Leidy told the employees that he and
Garrel would be giving them information in the form of
a slide presentation Should the Union come in there in
evitably would have to be a bargaining period The Sal
vation Army wanted the employees to be aware of the
process and some of the implications of bargaining
The lights then were turned off and Garrel stood by a
screen in front of the room and spoke while Leidy pro
jected a senes of 42 slides onto the screen The same
slides were shown to the employees during each of the
19 May meetings accompanied by the same explana
tions 46
44 Supra Also see Prlliod of Mississippi Inc 275 NLRB 799 (1985)
Kawasaki Motors Mfg Corp 280 NLRB 159 (1986)
46 See Kawasaki Motors Corp supra The videotape shown on 17 May
followed the format of the weekly television program Sixty Minutes and
was narrated by that program s Mike Wallace In documentary style the
videotape portrayed violence dunng a stoke by a union other than
HERE
46 The General Counsel does not contend that the visual content of
any of the slides shown to the employees either dunng the two 19 May
meetings explained by Garrel or dunng the later sessions of 23 and 24
May which were narrated by Leidy were violative of the Act The
General Counsel does argue that remarks made to the employees while
certain slides were being shown was unlawful
The presentation began with a series of slides center
ing around a U S court of appeals decision which as
Garrel represented, related to the bargaining process, fol
lowed by a depiction of a Board decision Garrel stated
that these decisions were significant in that they held
that the Employer had not violated the Act by reducing
wages
The employees then were shown a slide of the petition
for representation election filed in Case 2-RC-19504 by
the Union and a slide of the Union s mailgram to the Re
spondent requesting recognition and bargaining Garrel
told the employees that it was peculiar that the Union
was asking the Respondent to bargain with no notifica
tion at all to the employees 47
A senes of slides followed showing portions of con
tracts between Local 517-S and various employers, fo
cusing on the dues checkoff provisions, provisions of
fording supersenionty for stewards, and followed by
slides relating to the decertification of a union at the Sal
vation Army's Adult Rehabilitation Center in Philadel
phia, Pennsylvania The employees were told that the
Philadelphia case ended in December 1982 when the Re
gional Director informed the Employer Petitioner in that
case, in writing that the Union no longer was interested
in representing the employees
A succession of slides followed describing the closing
of the Salvation Army s Eventide Nursing Home in De
troit Michigan of which, Garrel related he then had
been director This series began with a slide identified as
the petition for an election in a unit of Eventide employ
ees, filed by Local 79, HERE, a sister local to Local
517-S, with the Board s Detroit Regional office The em
ployees next were shown slides portraying the tally of
ballots in favor of Local 79 and of that successful union s
subsequent unfair labor charge which Garrel explained
alleged that Eventide had not bargained in good faith
Garrel then identified certain pages on the screen as
being from an agreement negotiated by Eventide and the
union for the closing of the Eventide facility Garrel
called the employees attention to certain provisions of
this agreement, including the signature page that he and
others had signed
A slide senes of newspaper clippings then were pro
jected showing the headline Salvation Army Closing
Complex For the Elderly Garrel informed the employ
ees that these were copies of newspaper stories covering
the closing of Eventide He read brightly underscored
portions of these newspaper clippings referring to Even
tide s financial burden
A succession of slides of photographs followed The
first was a photograph of two buildings on one of which
the words The Eventide could be read Garrel ex
plained that the building shown in the foreground had
been the Eventide Nursing Home and that the building
in the background has been a facility for the aged The
two buildings had formed one complex linked by a
tunnel The nursing home facility had been for critically
ill people, but no longer was a nursing home The former
41 Garrel denied having asked the employees if they had known any
thing about the Union s bargaining request
SALVATION ARMY RESIDENCE
Eventide buildings were shown as completely vacant as
Garrel announced that the nursing home and the home
for the aged had been closed and all the residents trans
ferred to other facilities
Garrel identified the next slide as a photograph of
three employees at what had been the Eventide nursing
facility which, Garrel pointed out, by then had become a
drug and alcohol detoxification center known as the
Harbor Light program This was because the Salvation
Army had moved Harbor Light, another of its programs,
into that facility The successor Harbor Light program
also was operated by the Salvation Army 48 The next
slide showed an individual wearing a white jacket
Garrel told the employees that this slide picutred a
person who seemed to have a cheerful countenance
There was no sense of doom about her
A slide picturing two people, one of whom was lying
on a bed, was shown Garrel explained that the Harbor
Light facility now was being used to treat those individ
uals who either were drug addicts or alcoholics He did
not know what was the problem of the patient shown,
but the patient was being attended by an employee, most
probably a nurse This was followed by a photograph of
two individuals, whom Garrel told the employees,
seemed to be quite happy, the employees shown were
not part of any Union
The next slide portrayed a number of people, some of
whom were seated Garrel explained that this slide
showed a section of the former nursing home that was
being used as a dining room There were patients who
were eating and being attended to by some of the em
ployees Garrel observed that the place seemed to be
hustling and bustling with the new program that was
going very well Garrel explained that the next slide was
another picture of three individuals who seemed to be
happy and content in their jobs now that they were in a
facility that had been reopened for another program
Garrel told the employees that the next slide was a
copy of the Daily Labor Report He called attention to
the headline Courts Favor Tough Management Bar
gaining and referred the employees to red underlined
passages that dealt with the bargaining process
In a later slide Garrel read an excerpt from a head
note to Schnadig Corp 49 a decision concerning an al
48 Garrel testified that it had taken about 1 year to remodel the former
Eventide facility to accommodate its Harbor Light detoxification pro
gram which previously had been located elsewhere During the year
long renovation period the Eventide building had stood vacant The
Harbor Light program and its employees then were moved to what had
been Eventide s premises Although Garrel as indicated explained to
employees at the 19 May meetings that Eventide and Local 79 HERE
certified to represent Eventide employees had negotiated for the closing
of Eventide Garrel did not also tell the employees that Local 79 had
been advised about the Eventide buildings future
The Eventide facility was closed in 1981 about 2 years after the repre
sentation election where Local 79 was certified as representative The
Eventide employees were terminated when that facility closed receiving
benefits negotiated with Local 79 None thereafter were employed by
Harbor Light which brought in its own staff
49 265 NLRB 174 (1982 ) but left uncited in the slide presentation As
extensive violations were found in Schnadig including unlawful unilateral
wage reduction that case does not particularly support the Respondents
reference infra
957
leged refusal to bargain Garrel again read the under
scored portion, referring to it as a Board decision where
no violation was found when the company did not in
crease wages
The last slide explained by Garrel simply showed the
figure 1,623,240 Garrel told the employees that that
was the number of hours lost in strikes by employees
connected with HERE
After the slides were shown, the lights were turned
on When the employees declined an opportunity to ask
questions, they were returned to work Literature was
distributed to the employees as they left but Garrel
could not recall the content
As stated, the same slides and commentary were given
to the respective employees who attended both 19 May
meetings
b Discussion and conclusions
During the morning and afternoon sessions of 19 May,
the Respondent showed successive groups of employees
a series of 42 slides projected by Leidy and explained by
Garrel Of particular consequence among the slides
shown on 19 May were those concerning the closing of
the Salvation Army s Eventide Nursing Complex in De
troit, Michigan, after Local 79, HERE, was certified as
bargaining representative and the subsequent reutilization
of the Eventide building Garrel told the employees that
he had been in charge of Eventide when it was closed
Although Garrel did not tell the Williams Residence
employees in so many words that if they chose the
Union in the forthcoming election, the Williams Resi
dence, as was Eventide, would be closed, that they
would be permanently laid off, perhaps with negotiated
severance benefits and that the residence building might
later be assigned to some other nonunion Salvation
Army program the possibility of such a sequence occur
ring was made coercively clear 50
As stated by Administrative Law Judge Roth in his
Board approved decision in Blue Bird Body Co ,51 where
the employer also had shown slides to its employees to
counter a union s campaign
[A]s the Supreme Court pointed out in N L R B v
Gissel Packing Co, 395 U S 575, 617-620 (1969),
employees because of their economic dependence
on the employer tend to pick up intended implica
tions of the latter that might be more readily dis
missed by a more disinterested ear, and are par
ticularly sensitive to rumors of plant closings
Therefore the employers statements as to the con
sequences of unionization must be carefully
phrased on the basis of objective fact and [the em
ployer] must `make his views known without en
gaging in brinksmanship when it becomes all too
easy to overstep and tumble over the brink
Gissel, supra In sum the employer must bear the
responsibility for any misleading ambiguity on his
part
50 See Midland Ross Corp v NLRB 617 F 2d 977 984-985 (3d Cir
1980) cert denied 449 U S 871 (1980)
si 251 NLRB 1481 1488 (1980)
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Similarly, as noted in Walter Carpet Mills 52
[i]f the subject matter discussed by the employer is
one peculiarly in his control (e g , closing the plant,
moving the plant, loss of wage increases, loss of
benefits) the speech will be very carefully scruti
nized by the Board In election situations an em
ployer may make statements only if they are
made on the basis of objective fact to convey his
belief as to demonstrably probable consequences
beyond his control
Here, the Respondent described to its Williams em
ployees how it had closed Eventide, a sister facility in
another city, after a sister union to Local 517-S had been
certified there as bargaining representative how Even
tides employees were laid off, and how the Salvation
Army turned the use of that same building to one of its
other programs that still continues there with its own
cheerful, nonunion employees, none of whom had
worked for Eventide Garrel also made the point that he,
who had presided over the closing of Eventide, was then
at the Williams Residence As broadly suggested to the
Williams employees, at least part of the Harbor Light
employees' happiness could be traced to the fact that
they, unlike the former Eventide staff, were working
The Eventide/Harbor Light slides, which were 17 of
the 42 slides shown during each 19 May session, were no
quick reference They constituted 40 percent of the Re
spondent s presentation for that day
Little was given to the Williams employees in way of
objective fact about the background of Eventide/Harbor
Light Apart from some undecipherable slides of newspa
per clippings headlining that Eventide had had a finan
cial burden, nothing specific and meaningful was con
veyed concerning the financial circumstances and the
source of the difficulties that had led to Eventide s clos
ing and its on site replacement by another Salvation
Army program Similarly the only connection between
Eventide and the Williams Residence of which the em
ployees were made aware, besides shared status as Salva
tion Army programs and the presence of Garrel was the
advent at both places of sister locals of HERE to which
the Respondent repeatedly had expressed its strong op
position Even had the objective reasons for closing
Eventide and the conveyance of its building to Harbor
Light been explicated there still was no factual explana
tion to the Williams employees as to how, apart from the
Respondents distaste for HERE the financial and gener
al situation of their place of employment in New York
City compared to Eventide in Detroit so as to make
Eventide economically relevant to their situation Also if
finances had been a problem in Detroit it was not ex
plained why it had been expedient for the Salvation
Army to close and idle the Eventide building while
payiny the costs of a year long renovation on behalf of
another program
Finally in describing what had occurred at
Eventide/Harbor Light the Respondent did not merely
state objective facts to convey its belief concerning the
52 259 NLRB 691 694 (1981)
demonstrably probable consequences of unionization that
lay beyond its control Garrel, for example, did not tell
the Williams employees about what had happened at
some other employers unionized premises What was
done at Eventide/Harbor Light was internally decided
and implemented by the Salvation Army The clear mes
sage to employees was that what the Salvation Army
could do at the large Eventide Nursing Complex it
could do at the Williams Residence
Therefore from Garrel s testimony I find that his
Eventide/Harbor Light presentation was a strongly im
plied threat to the Williams employees that if they chose
the Union in the forthcoming election, the Williams Resi
dence, too, might be closed its facility quite possibly
conveyed to another Salvation Army program, and that
the Williams Residence employees would share the fate
of those who had worked at Eventide Garrel, the officer
who had presided over Eventide s demise already was in
place at the Williams Residence Such a threat violated
Section 8(a)(1) of the Act and was particularly aggravat
ed because it deliberately was repeated at the successive
meeting so as to be heard by virtually all the residence s
bargaining unit employees 53
The remaining slides shown during the 19 May meet
ings which concerned repeated references to specific
Board decisions upholding employers who did not agree
to wage increases during bargaining and which showed
the many work hours lost in strikes by employees con
nected with HERE, were lawful
5 The 23 and 24 May meetings
a Facts
The last two paired preelection meetings were con
ducted on 23 May at 2 15 p in and on 24 May at 9 a in
Each of these meetings were conducted principally by
Leidy, with Garrel s assistance, and ended with a pre
pared speech by Lieutenant Colonel Raymond D
Howell from Territorial Headquarters Each session was
attended by approximately 35 employees from the main
tenance dietary and housekeeping department Leidy as
was his practice began each meeting by thanking the
employees for coming, by again apologizing for having
interrupted their work and by announcing that the em
ployees were going to receive additional information
pertaining to unions This time the information would be
in two forms There would be a slide presentation and
then the employees would listen to a man from Salvation
Army headquarters
At the 23 and 24 May meetings, Garrel operated the
slide projector while Leidy explained the 82 slides that
were screened
While the first slide showing the word Facts was
being projected, Leidy told the employees that the Sal
vation Army was going to show them a series of slides
all of which could be proved and are facts During the
showing of the next slide a cover of the magazine, US
53
Midland Ross Corp v NLRB supra Also see Han Dee Pak, Inc
232 NLRB 454 456-457 (1977) in which the Board found that posting a
photograph of an empty plant in related circumstances constituted an un
lawful threat of reprisal
SALVATION ARMY RESIDENCE
News and World Reports on which appeared the words
'Unions on the Run,' Leidy told the employees that it is
not unusual for the news media to report the problems of
unions losing members
During slides where the U S Department of Labor
and the National Labor Relations Board were given as
sources, Leidy explained that the proportion of represen
tation elections won by unions were declining that there
was a decline of union membership in the United States
and that four out of five U S workers were not union
members
Leidy then identified a series of 10 slides as pages from
HERE s constitution Certain underscored passages on
the slides were emphasized and read aloud by Leidy
who told the employees that in HERE it is not one man
one vote Leidy pointed out that the HERE Convention
is the supreme governing body, that under HERE s con
stitution, the general executive board has broad powers
that could effect the employees financially In a later
slide in this series, Leidy pointed out the HERE presi
dent's powers included the right to make payments for
lobbying or for other political purposes
During the slide series on HERE s constitution Leidy
focused on that union's finances, observing that under its
constitution, the officers were very highly paid He read
aloud the salaries of the president and general vice presi
dent, while also indicating the salaries of other union of
ficers as depicted on the slides Leidy told the employees
that these pages of the constitution showed the initiation
and reinstatement fees The fact that there were fees
were provided for reinstatement implied that it might be
costly to employees to get back into the Union should
there have been some problem when they left member
ship
In subsequent slides concerning HERE s constitution,
Leidy pointed out that not only did the constitution pro
vide for monthly dues, but also for per capita taxes
Leidy told the employees that under HERE s constitu
tion members who did not pay dues for 2 months were
automatically suspended as shown on the slides The
constitution also provided for the charging and trial of
members
There then followed several slides relating to the disci
plining of HERE s members officers, and business agents
for various reasons Leidy announced that he was show
mg the employees an excerpt from a legal decision
where a HERE Loyal and Faithful Member was
found to have been un'awfully expelled for threatening
to bring criminal charges against his union Leidy ex
plained that another slide showed the finding of a Feder
al court that a HERE local union officer had been fined
and barred from office for having criticized the Union's
leadership He noted that if union officers could be fined
and barred for criticizing the leadership, then perhaps,
the employees would want to reconsider their member
ship in the Union Another slide related to the discharge
of a local union business agent for having unlawfully
filed a sex discrimination suit against HERE
Four more slides related to HERE's constitution then
were projected onto the screen In connection with these
slides, Leidy explained that once the employees became
members of the Union they always must consider the
959
possibility of the strike He then read aloud from the rel
evant part of the constitution, as excerpted on a slide
that local union members must support strikes by other
locals when obliged to do so by the international presi
dent and that the executive board must approve all
strikes before financial support is authorized for strikers
As the constitution provided that joint elective boards
must be formed if two or more local unions exist in the
same city, Leidy informed the employees that such
boards also have power to levy taxes and assessments on
members Since a local union s bylaws must be approved
by the international president, members did not have the
autonomy that the employees might have expected
Leidy asked the employees to pay particular attention
to the slide that indicated that the lcoal unions are au
thorized to pay the expenses of officers as it showed that
paid in dues moneys apparently were being used for
things that, in Leidy s opinion did not seem appropriate,
such as expenses of officers or others who had been
charged with violating the law
The foregoing was followed by three slides depicting
court decisions and newspaper clipping relating to the
convictions of various HERE officials for criminal of
fenses Leidy, explaining that two of HERE s officers
were found guilty of embezzling, called attention to
newspaper clippings that showed that two HERE mem
bers had won a $275,000 judgment against a local union
whose officers had solicited them for prostitution, for
pornographic entertainment, and for personal sexual
favors After each instance, Leidy suggested that the em
ployees either give consideration as to with whom they
would want to affiliate themselves or that they be careful
about their affiliation
Leidy then explained seven consecutive slides repre
sented as excerpts of Local 517-S bylaws Leidy told
the employees that he did not know what the Union had
said to them about whether there would be dues or what
they would be However the bylaws indicated that there
must be dues Leidy then showed bylaws excerpts relat
ing to the powers of the local union president and the
executive board, concentrating on the rules and the pen
allies for their violation
Another series of slides related to fines levied by the
unions against members Leidy called attention to a news
article that showed that such fines were getting larger
Leidy stated that according to the Union s own publica
tion union fines can be imposed and that the one re
ferred to in the slide then being shown had amounted to
$2000 He told the employees that they had to consider
that there could be fines and that Union fines could go as
high as $2000 as shown in the Union s publication Leidy
also pointed out that according to HERE s bylaws,
charges could be brought against employees and that
those charges could result in trials
To make the Respondent's point that the Union
wanted the employees because it needed their money,
the employees were shown 13 slides identified as pages
of the Labor Organization Annual Report Form 2
filed by Local 517-S with the Federal Government
Leidy pointed out that unions are required to file such
financial reports annually He called attention to the
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Unions charitable and local political contributions, its
schedule of new liabilities, and the listed disbursements
to officers and employees respectively, and told the em
ployees that he was showing the slides to illustrate how
expensive it was to have officers of the local Union 54
In the context of the dues and fees that the Union had
advised the Government that it charges its members,
Leidy indicated that the expense lines on the financial
statement showed that nothing was reported to the Gov
ernment as having been spent on behalf of individual
members Also, the Union reported that it had more
money going out than was coming in
A succession of seven slides assertedly describing
union corruption followed These included a cover of
US News and World Reports displaying the legend
Union Corruption Worse Than Ever and a series of
newspaper clippings referring to various investigations
by law enforcement agencies and by a U S Senate sub
committee concerning mob influence, the ties of various
local union officials to organized crime and the taking of
kickbacks One slide showed a newspaper clipping quot
ing a U S Senator that HERE is one of the most cor
rupt unions in the U S Leidy again told the employees
that they should be careful with whom they affiliated
themselves Another slide summarized allegations that
Leidy explained had been excerpted from the Daily
Labor Report Such allegations included statements that
the international president of HERE had been hand
picked by organized crime that an HERE officer had re
tired on an $85 000 union salary after being convicted for
misusing union funds, and that that officers successor
was connected with a sweetheart agreement restau
rant bombings, threats and murder Leidy finished this
sequence by reading that the international union had the
power to put local unions into trusteeship to further its
own ends
Subsequent slides went on to show additional allega
tions of HERE s moral inadequacies As excerpted from
the Daily Labor Report, these slides referred to hearings
on the Union s corruption its organizers strong arm tac
tics threats made to assault employees who had refused
54 Much of Leidy s testimony concerning what he had said while ex
plammg the slides at the 23 and 24 May meetings including that he in
formed employees that two HERE members had won a large monetary
judgment from a local union whose officers had solicited them for prosti
tution personal entertainment and sexual favors that HERE had ties to
organized crime and that its principle officers were paid vast sums of
money instead was attributed to Garrel by several employee witnesses
called by the General Counsel These included dietary employees Mi
chael Wallace and Kenneth Harris housekeeping employees Pearlina
McQueen House William Ramos Victor Simeon and former mainte
nance employee James N Gibbons Synthesizing their testimony they
generally related that Garrel while explaining slides had told the em
ployees that the Union was a member of organized crime that its big
leaders were earning $250 000 a year and that the local was run by the
Mafia and was operating a prostitution center with the employees
money Although ascribing such remarks to Garrel these employees oth
erwise lacked detail and some only had fragmentary recall Noting that
the subject matter of the employees account substantially conforms to
what was testified to by Leidy that Leidy s recollection of these events
seems more complete was anchored by the slides in that the subject
matter of the slides he explained corresponded more closely to his de
scribed narrative then did those slides shown while Garrel spoke I credit
Leidy s testimony that it had been he who had addressed the employees
in the above areas and as to what he said to them
to sign union cards, and an instance in Miami where the
International Union took over contract negotiations to
make sweetheart deals that allowed members with se
niority to be laid off without cause After the strike, 300
to 400 employees were laid off
Leidy then explained a sequence of slides identifying
cases ruled on by the U S Court of Appeals, for the
Sixth Circuit, where the court found, in part, that the
United States Government including the NLRB could
not guarantee employees that the collective bargaining
process would start from where the employees presently
were in wages, insurance pension, profit sharing and all
other conditions of employment and that the terms and
conditions of employment could only go up from there
Neither the Board nor the Government guaranteed that
the employees would not involuntarily lose benefits
Ten more slides followed relating to strikes, particular
ly those called by HERE These principally consisted of
various newspaper clippings on the subject Leidy told
the employees that he did not know what HERE had
said to them pertaining to strikes, but when the employ
ees became involved with the Union they must consider
strikes as a possibility Accordingly, he wanted to show
them HERE s record as far as the length of time lost on
strike Leidy then read an emphasized figure of 50 weeks
and identified a series of lengthy strikes at different loca
tions, calling each strike and its duration to the employ
ees attention Employers identified in the various news
paper clippings as having been struck included facilities
in Pittsburgh, Pennsylvania Detroit, Michigan and San
Francisco, California
In this series , Leidy showed clippings of help wanted
advertisements placed in newspapers by various employ
ers seeking to replace economic strikers called out by the
Union Leidy pointed out that the law allows for the
hiring of replacements for folks who are striking for eco
nomic demands and that the employees also should con
sider this if they affiliate themselves with the Union He
told the employees that if the Union called them out on
a strike over money or other benefits they are economic
strikers and could be permanently replaced at their jobs
and that if as union members they tired of striking and
wanted to return to work the Union could fine them for
each time they crossed the picket line During showing
of the final slide which bore the legend Vote No
Union Leidy stated that there were two things that he
hoped to get through to the employees after this entire
presentation It was important that they vote, the Salva
tion Army urged them to vote The second thing is that
the employees were asked to consider whether they
would vote No Union
After the slide presentation the lights were turned on
and Leidy introduced Lieutenant Colonel Howell to the
employees as an officer from headquarters who would
speak to them
Howell testified that he then read verbatim from a pre
pared speech written by himself and a labor consultant
Howell s speech to the employees in relevant part, was
as follows
THANK YOU MAJOR LEIDY GOOD MORNING/
AFTERNOON LADIES AND GENTLEMEN MAJOR LEIDY
SALVATION ARMY RESIDENCE
INTRODUCED ME AS A MEMBER OF THE ARMY S
BOARD OF TRUSTEES HOWEVER IT IS ANOTHER ONE
OF MY RESPONSIBILITIES THAT HAS GIVEN ME THE
OPPORTUNITY TO SPEAK WITH YOU TODAY THAT
RESPONSIBILITY IS LABOR RELATIONS YOU SHOULD
KNOW THAT I AM PERSONALLY RESPONSIBLE FOR
ALL LABOR RELATIONS AND UNION MATTERS IN THE
EASTERN HALF OF THE UNITED STATES FOR THE
SALVATION ARMY THAT RESPONSIBILITY HAS
TAKEN ME INTO MANY COMBAT ZONES WITH
REGARD TO UNION PROBLEMS THAT RELATE TO THE
SALVATION ARMY I CAN SPECIFICALLY REFER YOU
TO TWO INCIDENTS ONE OCCURRED IN BROOKLYN
WHERE A UNION TRIED TO BLACKJACK THE SALVA
TION ARMY INTO RECOGNIZING THEM WE DIDN T
KNUCKLE UNDER AND THE RESULT WAS A NINE
MONTH STRIKE WHERE WE REPLACED EVERY STRIK
ER ANOTHER SITUATION LAST YEAR OCCURRED IN
YOUNGSTOWN OHIO EMPLOYEES THERE WENT ON
STRIKE WE OPERATED AT A 100% EFFICIENCY, AND
THREATS OF VIOLENCE AGAINST THE EMPLOYEES
THAT CROSSED THE PICKET LINE AS WELL AS SAL
VATION ARMY OFFICIALS DID NOT DETER US FROM
CONTINUING TO OPERATE I HAVE BEEN INVOLVED
IN OTHER SITUATIONS THAT HAVE TURNED VERY
NASTY BECAUSE OF THE UNION S PRESENCE BUT
THE IMPORTANT THING FOR YOU TO REMEMBER IS
THAT NOT ONCE IN OUR HISTORY HAVE WE KNUCK
LED UNDER TO ANY PRESSURE FROM ANY UNION AT
ANY SALVATION ARMY FACILITY , ( LOOK UP)55 AND
WE DON T INTEND TO START HERE IF ANYTHING,
OUR EXPERIENCE SHOWS YOU THAT WE ARE NOT
BABES IN THE WOODS WHEN IT COMES TO DEALING
WITH UNIONS WE HAVE HAD THIS EXPERIENCE
BEFORE
I'D LIKE NOW TO REVIEW A FEW BASIC FACTS AS
WE SHOWED THE SLIDE PRESENTATION, BOTH
TODAY AND LAST THURSDAY , BARGAINING IS A
TWO WAY STREET THOSE OF YOU THAT BELIEVE
THAT A UNION CAN COME IN HERE AND EXTORT
MONEY FROM US IN THE FORM OF HIGHER WAGES
OR EXORBITANT BENEFITS ARE OUT OF YOUR MINDS
IF WE ARE FORCED TO GO TO THE BARGAINING
TABLE WITH THE UNION , WE WOULD BARGAIN IN
GOOD FAITH BUT BARGAINING IN GOOD FAITH DOES
NOT MEAN THAT WE WOULD GIVE ANYTHING
WHAT YOU HAVE TO REALIZE IS THAT THE REVE
NUE THAT IS GENERATED AT THE WILLIAMS RESI
DENCE IS GENERATED SOLELY FROM THE RESI
DENTS MONTHLY RENT THERE IS NO POT OF GOLD
THAT WE CAN DIP INTO AND PASS ON TO YOU IF
WE HAD THAT POT OF GOLD , DON T YOU BELIEVE
THAT WE WOULD BE PASSING IT ON TO YOU?
(PAUSE ) THIS VERY FACILITY IS IN FACT , OPERAT
ING AT A LOSS EVERY MONTH MAJOR LEIDY IS
TRYING TO DO SOME THINGS THAT ARE GOING TO
IMPROVE THAT FINANCIAL POSITION BUT IT'S NOT
GOING TO BE AN EASY JOB ITS GOING TO TAKE
SOME TIME AND TEAMWORK THE PEOPLE THAT
ss The parenthesized stage directions as shown in the text of Howell s
address are included to indicate his points of emphasis
961
LIVE HERE LIVE ON A FIXED INCOME THEY
CANT JUST FORK OVER AN EXTRA ONE HUNDRED
OR TWO HUNDRED DOLLARS A MONTH MORE BE
CAUSE WE ARE HAVING TROUBLE OPERATING
WITHIN THE BUDGET ( PAUSE ) AS FAR AS THE SAL
VATION ARMY TERRITORIAL HEADQUARTERS GOES
THE ONLY INVOLVEMENT THAT THEY HAVE WITH
THIS FACILITY FROM A FINANCIAL STANDPOINT IS
WHEN THERE IS A NEED FOR CAPITAL IMPROVE
MENTS , SUCH AS , WINDOWS , ELEVATORS, ETC EV
ERYTHING ELSE HAS TO BE COVERED BY THE REVE
NUE WE RECEIVE FROM OUR GUESTS HERE
I M GOING TO BE THE ONE WHO SITS DOWN AT
THE CONTRACT TABLE ACROSS FROM THE UNION
AND DECIDES WHAT HAPPENS HERE WITH REGARD
TO WAGES AND FRINGE BENEFITS I CAN TELL YOU
I'VE GOT A LOT OF EXPERIENCE DOING THAT AND I
HAVE NEVER , I REPEAT , NEVER MADE A CONCES
SION THAT WAS NOT IN THE BEST INTEREST OF THE
SALVATION ARMY AND I M NOT GOING TO START IN
THIS CASE I WOULD BARGAIN IN GOOD FAITH, BUT
EVERY CONCESSION THAT I MADE TO THE UNION
WOULD HAVE TO BE MATCHED BY A CONCESSION OF
EQUAL VALUE FROM THE UNION AND FROM YOU,
THE EMPLOYEES BECAUSE, AFTER ALL , THE UNION
HAS NOTHING TO GIVE ME ALL THEY DO IS GIVE
ME THINGS THAT YOU HAVE DEALING WITH THE
UNION IS EXPENSIVE THE COSTS OF LEGAL FEES
AND OTHER ADMINISTRATIVE PROCESSES WILL TAKE
MONEY FROM THE WILLIAMS RESIDENCE BUDGET
THAT COULD HAVE BEEN SPENT ON EMPLOYEES IF
WE ARE REQUIRED TO OPERATE IN A WAY THAT
COSTS US MONEY BECAUSE OF A UNION, WE ARE
GOING TO FIND A WAY TO TAKE THAT MONEY BACK
FROM SOME PLACE
WITH REGARD TO STRIKES , YOU D BETTER BE
SURE YOU UNDERSTAND WHAT STRIKES ARE ALL
ABOUT IF THE UNION CAN T LIVE UP TO THE LOFTY
PROMISE THAT IT IS MAKING TO YOU , IT HAS ONLY
GOT TWO CHOICES ONE IS GO BACK DOWN AT THE
BARGAINING TABLE AND THE OTHER IS TO STRIKE
WE VE SHOWN YOU NUMEROUS SITUATIONS WHERE
THIS UNION HAS STRUCK AT OTHER PLACES ITS A
STRIKE HAPPY UNION IF IT STRIKES HERE TO TRY
TO FORCE US TO MAKE UNREASONBLE CONCESSIONS,
I WANT YOU TO KNOW THAT I WILL DO EVERY
THING LEGALLY WITHIN MY POWER TO MAKE SURE
THAT THIS FACILITY CONTINUES TO OPERATE ONE
OF THOSE LEGAL OPPORTUNITIES IS TO REPLACE
EVERY STRIKER WHO GOES ON STRIKE FOR ECONOM
IC REASONS PLEASE DON T TAKE THIS THE WRONG
WAY, LADIES AND GENTLEMEN , BUT IF YOU GIVE
UP YOUR JOB IN AN ECONOMIC STRIKE I COULD RE
PLACE YOU IN A NEW YORK SECOND I WOULDN T
HAVE A CHOICE , I WOULDN T WANT TO BUT IF I M
GOING TO ASSURE THAT OUR GUESTS HAVE A PLACE
TO LIVE AND ARE FED , I WOULD HAVE TO REPLACE
YOU
I UNDERSTAND THAT THE UNION HAS MADE
SOME VERY INTERESTING PROMISES SUCH AS TO
DOUBLE YOUR WAGES AND TO PROVIDE YOU WITH
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
BENEFITS BETTER THAN THE ONES THAT YOU AL
READY HAVE IF YOU BELIEVE ALL THEIR PROMISES,
YOU RE PLAYING A GAME WITH YOURSELF AND
IT S A GAME THAT YOU LL LOSE
WE SHOWED YOU IN THE SLIDE SHOW WHAT A
MISERABLE BUNCH THESE HOTEL EMPLOYEES AND
RESTAURANT EMPLOYEES IS THEY RE JUST AS BAD
AS THE TEAMSTERS THEY RE INFECTED WITH
PEOPLE ACCUSED OF COMMITTING CRIMES THEY RE
UNDER INVESTIGATION BY SENATE COMMITTEES
SOME OF THEIR OFFICIALS HAVE BEEN INDICTED
YET AT THE SAME TIME, THE PRESIDENT OF THE
UNION MAKES OVER $100,000 A YEAR AND MOST OF
HIS HENCHMEN ARE VERY WELL PAID HOW IMPOR
TANT DO YOU THINK YOU WOULD BE TO THEM?
SIXTY PEOPLE SITTING UP IN THE UPPER WEST SIDE
OF NEW YORK I DON T THINK YOU D BE VERY IM
PORTANT TO ALL TO THEM, WHETHER YOU ARE
WORKING OR NOT WOULD BE OF LITTLE CONCERN
TO THEM BUT OF GREAT CONCERN TO US
THE WILLIAMS RESIDENCE IS IMPORTANT TO THE
SALVATION ARMY IT S IMPORTANT BECAUSE OF THE
MANY, MANY ELDERLY PEOPLE THAT LIVE HERE
YOU CONTRIBUTE TO THAT, AND TO THE EXTENT
THAT WE ARE ABLE FINANCIALLY TO CONTINUE TO
OPERATE THIS FACILITY, WE WILL DO SO MOST OF
YOU KNOW THAT THIS BLOCK OF REAL ESTATE IS
ATTRACTIVE TO CONDOMINIUM DEVELOPERS LOOK
AROUND THE CORNER AT THE COLUMBIA WE HAVE
HAD OFFERS IN THE NEIGHBORHOOD OF $14 TO $18
MILLION DOLLARS TO SELL THIS BUILDING THOSE
OF YOU IN MAINTENANCE ARE AWARE THAT THIS
BUILDING IS IN NEED OF MAJOR REPAIRS SUCH AS
PLUMBING WINDOWS ETC WHETHER WE CAN CON
TINUE TO AFFORD TO MAKE THESE REPAIRS WILL
DEPEND UPON SUCH FACTORS AS OUR LABOR COSTS
THIS IS NOT A THREAT TO SHUT THE BUILDING
DOWN WE DO NOT INTEND TO DO THAT THERE
ARE AS YOU CAN SEE MANY CONSIDERATIONS AND
FACTORS THAT GO INTO OPERATING THIS FACILITY
(PAUSE LOOK UP)
LADIES AND GENTLEMEN A UNION IS NOT A
CURE ALL I WILL ADMIT THAT WE HAVE PROBLEMS
HERE EVERY BUSINESS AND ORGANIZATION IN THE
UNITED STATES TODAY IS FACING PROBLEMS THE
PROBLEMS THAT WE HAVE WE CAN WORK OUT
OURSELVES YOU VE GOT A NEW ADMINISTRATOR
HERE YOU HAVEN T GIVEN HIM A CHANCE HE S
GOT A TOUGH JOB TO TRY TO BRING THIS FACILITY
AROUND BUT HE'S GOING TO OPERATE FAIRLY AND
IN AN EVENHANDED WAY I'M FAMILIAR WITH THE
PAST THREE YEARS AND DURING THE TIME THE
PREVIOUS ADMINISTRATION WAS HERE, MANY OF
THE THINGS THAT SHOULD HAVE HAPPENED DIDN T
FOR THAT I APOLOGIZE BUT AT THE SAME TIME I
DON T FEEL THAT THE SALVATION ARMY SHOULD
APOLOGIZE FOR THE OTHER THINGS IT HAS DONE
FOR YOU SUCH AS PROVIDE YOU WITH A VERY EX
CELLENT PACKAGE, AND A PENSION PLAN AND A
WAGE STRUCTURE THAT IS COMPETITIVE FOR THE
JOBS THAT ARE PERFORMED SURE WE D LIKE TO DO
MORE WE D LIKE TO PROVIDE HIGHER WAGES TO
THE EXTENT THAT WE CAN IN THE FUTURE, WE
WILL PROVIDE HIGHER WAGES, BUT THE UNION S
PRESENCE HERE IS NOT GOING TO FORCE US TO DO
ANYTHING THAT WE CAN T AFFORD TO DO OR THAT
IN FACT THAT WE DON T WANT TO DO WE ALWAYS
FOUND THAT THE BEST WAY FOR US TO WORK OUR
PROBLEMS OUT IS BY WORKING DIRECTLY WITH
OUR EMPLOYEES AND THAT S WHAT WE WANT TO
CONTINUE TO DO WITH YOU HERE THINK ABOUT
THE UNION ELECTION THINK ABOUT ALL THE
MANY BAD THINGS IT COULD BRING TO YOU NOT
TO THE SALVATION ARMY, BUT TO YOU THE EM
PLOYEES THIS WILL BE THE MOST IMPORTANT
ELECTION YOU WILL EVER VOTE IN, AND, IN MY
FIRM OPINION , THE BEST VOTE THAT YOU MAKE IS A
VOTE FOR YOU AND AGAINST THE HOTEL EMPLOY
EES AND RESTAURANT EMPLOYEES AND ALL THE
PROBLEMS THAT THEY COULD BRING TO US
Howell concluded his address by urging the employ
ees to vote and by reminding them that the long stressful
period of the campaign would end only if the Union lost
He finished by telling the employees
IF THE UNION WINS THE PROPAGANDA, AND THE
PULLING APART, THE TENSION THAT EXISTS NOW
MAY CONTINUE AND WHO KNOWS HOW LONG IT
WILL CONTINUE SO PLEASE VOTE AND VOTE NO
AGAINST THE UNION
THANK YOU
At the conclusion of Howell s speech, he invited ques
tions from employees At this point in the 23 May meet
ing, a female employee, referring to the part of Howell s
address where he had stated that employees would be re
placed in the event of an economic strike asked how the
facility would replace 60 to 70 employees Howell re
plied that the Salvation Army immediately would bring
in supervisors from its 15 centers in the metropolitan
northern New Jersey area It then would go through the
300 applications it normally had on file and would hire
people for the strikers jobs
Leidy then thanked Howell and the employees for
coming and the respective meetings of 23 and 24 May
ended
b Discussion and conclusions
The 82 slides shown to employees during the paired 23
and 24 May afternoon and morning meetings, respective
ly, Leidy s accompanying explanations and Lieutenant
Colonel Howell s prepared speech that followed present
few matters not previously considered here
Many of the slides and accompanying explanations
merely related to reproductions of news magazine covers
and parts of stones that had been carried in magazines
and in newspapers, and which focused on union difficul
ties These, although uncomplimentary to unions in gen
eral and to HERE in particular were openly distributed
media features already are in the public domain Other
slides depicted documents relating to the Union s fi
nances, its powers to raise and administer funds and to
the compensation of principal union officers Such docu
SALVATION ARMY RESIDENCE 963
ments included relevant portion of HERE 's constitution
and bylaws and 13 slides showing facts of the Labor Or
ganization Annual Report , Form LM 2, filed by Local
517-S with the U S Department of Labor as required
under the Labor Management Reporting and Disclosure
Act of 1959 56 In connection with the showing of these
LM 2 form slides, Leidy pointed not only to the there
listed disbursements to the Union s officers as illustrative
of how expensive it was to have such officers, he com
paratively indicated from the expense lines on the LM 2
form that nothing had been reported to the Government
as spent by the Union on behalf of individual members
The foregoing statement , although found to be a misrep
resentation was considered by Board majorities that de
clined to set aside elections pursuant to objections filed
in Midland National Life Insurance Co 57 and in Mattera
Litho Inc 58
Member Jenkins , dissenting in Mattera Litho , 59 pointed
out the nature of the employers misrepresentation in that
case, which is the equally applicable here
The [Employers] leaflet emphasized the lower
dollar amount entered on line 71 , which reflects
cash disbursements on behalf of individual mem
bers," and contrasted these figures with the amounts
paid to union officials and the amounts for 'enter
tainment ' However , the leaflet conveniently failed
to mention that the Labor Department 's instructions
for completing line 71 provide that all normal op
erating expenses are excluded from disbursements
on behalf of individual members By omitting this
explanation , the Employer disguised the fact that
normal operating expenses are also incurred for the
benefit of all members and it seriously distorted the
manner in which [the Union] and its International
spend union members money
Although the Union s LM 2 form was used by the Re
spondent in the present case to draw the same inaccurate
comparisons concerning Union expenditures on behalf of
officers as compared to individual members consistent
with Midland National Life Insurance Co and Mattera
Litho, such misrepresentations are in materials found to
be clearly identifiable by employees as campaign props
ganda, constitute neither promise of benefits nor threat of
reprisal , and do not appear to be remediable under the
Act
The 23 and 24 May slide presentations also included
projections of a series of newspaper articles referring to
various investigations of HERE by law enforcement
agencies and by a U S Senate subcommittee concerning
mob influence , ties of various union officials to organzied
crime and the taking of kickbacks The slides included a
56 29 U S C A § 401 et seq
57 263 NLRB 127 (1982)
58 267 NLRB 375 (1983) As representation cases neither National
Midland Life Insurance Co supra, nor Mattera Litho Inc supra specifi
cally considered whether like employer conduct with respect to the
Union s LM 2 form was in violation of Sec 8(a)(1) of the Act However
in refusing to set aside elections in these cases the Board indicated that
the employers statements in this regard could be evaluated by employees
and did not warrant remedial action
59 267 NLRB 375 supra at 376
newspaper clipping quoting a U S Senator that
' H E R E is one of the most corrupt unions on the
US ', excerpts from the Daily Labor Report that
HERE s international president had been handpicked by
organized crime that a HERE official had retired on a
large union salary after being convicted for misuing
union funds, and that that convicted officers successor
had been connected to a sweetheart agreement, to restau
rant bombings, threats, and murder The General Coun
sel does not contend that the media articles depicted in
these slides were not genuine reproductions or that they
had been altered before being shown Rather the Gener
al Counsel principally argues that by so tying the Union
to organized crime, corruption and violence, the employ
ees are presented with the futility of joining or support
ing the Union, and that such statements also unlawfully
tend to intimidate employees away from supporting the
Union
Representations of the type made here, however, have
been held by the Board to be valid expressions of the
Employers opinion protected by Section 8(c) of the Act
and to constitute legitimate agreement 60
Leidy s references to the prospect of strikes at the 23
and 24 May meetings again did not proclaim their inevi
tability should the Union become bargaining representa
tive and, as found above, were violative of the Act 611 As
also found above, Leidy s statements while narrating the
slides that should there be a strike, the Respondent had
the right to replace employees who participated62 and
that union could fine employee members who abandoned
the strike and attempted to return to work As Leidy s
statements concerning union fines , when made accurate
ly reflected the law as it existed at the time, before issu
ance of Machinists Lodge 1414 (Neufeld Porsche Audi),63
which decision restricted the right of striking unions to
fine unsupportive members
At the 23 and 24 May sessions Leidy also repeated
earlier campaign statements to the effect that the em
ployees could not be guaranteed even by the NLRB
that they would retain all existing wages and job benefits
after bargaining, or that existing terms and conditions of
employment could only go up from where they were
Such employer comments have been found above to be
lawful
Accordingly noting that Leidy s lengthy slide narra
tion on 23 and 24 May included no promises of benefit
or threats of reprisal and that it reiterated statements
found above to be lawful, I find that Leidy s commen
tapes during the slide presentations on 23 and 24 May
were not violative of Section 8(a)(1) of the Act
80 Elano Corp 216 NLRB 691 700 (1975) and cases cited in fn 8 St
Anthonys Center 227 NLRB 1777 1785 (1977) The situation during the
23 and 24 May meetings where the Respondent lawfully related the
Union to organized crime and its indicia differs from that of the above
described April meeting where the Respondent s simple statement that
the Union belonged to the Mafia was found unlawful under Southland
Knitwear 260 NLRB 642 655 (1982) In the May meetings the Respond
ent did not just make an unsubstantiated inflammatory statement as in
April but expressed its views by way of materials already placed in the
public domain by the news media
si Baton Rouge General Hospital supra
62 Baton Rouge General Hospital supra Golden Fan Inn supra
83 270 NLRB 1330 (1984)
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I similarly conclude that Howells prepared speech
read verbatim at the 23 and 24 May meetings after the
slide show was lawful in its content The relevant text of
that speech has been quoted above 64 Howell s speech,
too, repeated subject matters previously raised by Leidy
and Garrel during the Respondents countercampaign
and which have been found above to be unlawful Such
remarks include Howell s identification of himself as a
hard Salvation Army negotiator who, although ready to
bargain in good faith would make no unrequited conces
sions Howell s statement that employees could lose ex
isting wages and benefits through negotiations that if the
Union cannot keep its lofty promises, it either only
could back down at the bargaining table or strike as it
had at other places, that the Union is strike happy,65 that
the Respondent could and, if necessary, would replace
all economic strikers It is noted that Howell s statement
did not go beyond the provisions of law in that he did
not say, that such economic strikers necessarily would be
permanently replaced losing all rights to their jobs
Howell's further comments during his speech that the
Respondent, had illustrated in the slide show what a
miserable bunch HERE is that it is infected with
people accused of committing crimes, that it is under
Senate committee investigation, and that it is burdened
by indicted and overpaid officials, in the applicable con
text were lawful, protected expressions of the Respond
ent s opinion 86 Howell came closest to breaching the
line of unlawfulness when he reminded the employees
how attractive the block occupied by the Williams Resi
dence was to real estate developers and that the Re
spondent had received offers of $14 to $18 million to sell
the building while maintenance employees knew of the
need for major repairs to the building However, Howell
then retreated from this theme expressly declaring that
his words were not a threat to shut down the building,
that the Respondent had no intention of doing so and
that many considerations went into operating the facility
For reasons further explicated below I find nothing
unlawful in Howell's prepared speech His response
when asked by an employee at the end of the 23 May
meeting how the Respondent would replace 60 to 70 em
ployees should they join an economic strike, to the effect
that the Respondent would bring in supervisors from
other nearby locations and hire replacements from the
300 job applications normally on file merely described
the method to be used to continue operations in such an
eventuality As found above, employers so circum
stanced may lawfully inform their employees of their in
tention to -replace economic strikers, and Howell s
answer in this regard merely augments the exercise of
that right by addressing the means by which such a pur
pose might be achieved
64 Howells testimony that he adhered to the prepared text of his
speech is accepted as the text substantially conforms to descriptions of his
remarks given by the General Counsels employee witnesses
85 Consistent with above cited authority I find that these statements of
the possibility of a strike do not constitute an unlawful prediction that a
strike inevitably would result
66 Newsday Inc 274 NLRB 86 supra at 1785
As Administrative Law Judge Herzog noted in his
Board approved decision in Walter Carpet Mills Inc 67
That employees hearing such a speech might, as
it appears to me they did, later recall a threat or a
prediction in somewhat stronger terms than it was
made is not surprising For, clearly, the speech was
designed to evoke strong emotions among the em
ployees, and to arrest their movement toward the
Union As such, the speech serves as evidence that
the Company harbored strong sentiments against
the Union
But that is not the question at issue For it has
been long settled that Section 8(c) of the Act of
fords protection to an employer's expression of
opinion concerning unions so long as the expression
remains free of threat of reprisal or force or prom
ise of benefit Instead, since the Supreme Court s
decision in N L R B v Gissel Packing Co Inc, 395
U S 575 (1969), the Board has developed specific
guidelines for distinguishing between protected
speech and proscribed threats or promises of bene
fit '
7 The Court set out a distinction between lawful predictions
and unlawful threats or promises as follows
[A]n employer who has control over that relationship [with
employees] and thereof knows it best cannot be heard to com
plain that he is without an adequate guide for his behavior He
can easily make his views known without engaging in brink
manship when it becomes all to easy to overstep and tumble
[over] the brink At the least he can avoid coercive speech
simply by avoiding conscious overstatements he had reason to
believe will mislead his employees Id at 620
Judge Herzog s above analysis is applicable here as
well The record contains varying accounts by the Gen
eral Counsels employee witnesses concerning matters
not substantively denied by the Respondent which, con
trary to the General Counsel have been found above to
be lawful Accordingly, the record contains much tests
mony by employee witnesses concerning statements
made by the Respondents officials to the effect that if
the Union came in, bargaining would go to zero and in
the bargaining process employees might lose benefits
presently enjoyed that the Respondent had the right to
replace employees who participate in any economic
strike and that such a strike might result if negotiations
do not produce agreement Certain other testimony by
employee witnesses has been found unlawful This in
cludes the Respondents references linking HERE with
the Mafia Other more ambiguous and less coercive char
acterizations by the Respondent as described by witness
for the General Counsel and Respondent alike, reflect
mg on whether the Union is corrupt its officers overpaid
and dishonest, and the Union and its parent organization
HERE prone to strikes violence and other difficulties
have been found above to be lawful expressions of opin
ion protected under Section 8(c) of the Act It has been
determined throughout that although the Respondent in
its preelection propaganda repeatedly referred to the
67 259 NLRB 691 694 (1981)
SALVATION ARMY RESIDENCE
prospect of a strike should the Union come in and no
ready collective bargaining agreement be reached the
Respondent did not cross the line into unlawfulness in
this regard by telling its employees that a strike would
be inevitable in the event of unionization
In subsuming certain employee testimony into the Re
spondent s accounts of same, I find that here as in
Walter Carpet,66 differences of detail can be attributed to
a lack or fluency in the English language on the part of a
number of the General Counsels witnesses, and conclude
that much of what is factually disputed here as having
occurred at the Respondents preelection meetings is
based on misunderstanding rather than on the conscious
desire on the part of witnesses to mislead Bearing in
mind considerations of relative language difficulties and
the degree to which precision and accuracy seemed
either possible or of importance to each witness, I have
evaluated their testimony While it has not been neces
sary or practical to separately present and discuss the
testimony of each of the many employee witnesses, their
testimony has been considered as has the substance of
each issue of fact and raised and developed in the record
6 Further alleged unlawful conduct at the
Respondents preelection meetings-facts and
conclusions
A number of employees testified to additional matters
as having occurred during the Respondent's preelection
meetings These are discussed below
1 Dietary employee Michael W Wallace testified that
at the first May meeting he attended, Leidy told the
group that he was aware that some of the employees
must have signed authorization cards by then or else the
Union still would not be outside Leidy expressed the
hope that the employees knew what they were getting
into because it was going to be rough along the way
Wallace further testified that Leidy also told the em
ployees at that meeting that if the Union were to come
in and if there were no agreement during bargaining on
wages, the employees would have to support the Union s
demands and there would be a strike or the Salvation
Army could just close the building 69 The Salvation
Army was not obliged to honor the Union s demands
Leidy announced that the Union could not guarantee the
employees jobs which came from the Salvation Army
Although I find Wallace to be a very credible witness
whose testimony was consistent and detailed and who
was not successfully impeached by the Respondent his
testimony concerning Leidy s statements about strike
possibilities in the event that agreement was not reached
during bargaining and with respect to the Respondent s
right to replace employees who should join such an eco
nomic strike have been considered above and, in the ap
plicable contexts, have been found lawful However, I
credit Wallace s further testimony that Leidy had threat
ened that if the Union came in, and should demand too
68 259 NLRB supra at 694 and fn 6
69 Wallace s testimony concerning the Respondents threat to close
was corroborated by employees Pearlma McQueen House Thomas
Welch William Ramos and Kenneth Harris although with some differ
ences in detail
965
much money, the Salvation Army could just close the
building Such threats to close were consistent with and
a part of the Respondents antiunion campaign As found
above, a threat to close the facility was unlawfully im
plied by Garrel in his successive descriptions to virtually
all unit employees of the closing of the Eventide Nursing
Home after unionization As will be found below, threats
to this effect also were unlawfully made by two supervi
sors besides Leidy and Garrel in the period before the
election, incidents that are not refuted Accordingly, it
would appear that Leidy, as described by Wallace and
other employees, had threatened that the Respondent,
should it be deemed expedient, could close the Williams
facility if the employees chose the Union as bargaining
agent Leidy s threat to close, which is found here to
have occurred, violated Section 8(a)(1) of the Act
Garrel then spoke, telling the employees that Booth
Memorial Hospital had a union unwanted by 50 percent
of the employees and that that hospital was trying to get
rid of it There had been conflict there and the same
thing could happen at our place ' something that
Garrel did not want to see happen
In disagreement with the General Counsel, I find that
Leidy s statement to employees that he hoped that the
employees knew what they were doing in supporting a
union because it was going to be rough along the way to
be too vague and ambiguous to a threat of nonspecific
reprisal for choosing the Union The comment was not
even necessarily a reference to future action by the Re
spondent 40
I also conclude that Garrel's reference to union related
conflict among employees at Booth Memorial Hospital
and to his desire to see that avoided at the Williams Res
idence was not a violative coercive statement but an ex
pression protected under Section 8(c) of this Act It has
been found above that other Employer statements refer
ring in similar terms to past and possible potential union
sponsored violence are protected Here the term vio
lence' was not even used Accordingly, I find that Gar
rel s statement concerning the potential for Booth Me
monal-type conflict at the Williams Residence did not
violate Section 8(a)(1) of the Act
2 Wallace and employee Christopher Delia? i testified
that at the end of one of the May meetings Leidy dis
tributed stapled, printed booklets, entitled Union Prom
ises Warranty Coupons and wooden nickels to the as
sembled employees Each warranty coupon was a
narrow strip of paper containing an Employer prepared
promise attributed to the Union by the Respondent at the
top and a signature line and date line at the bottom On
the second page of the coupon booklet was a note to em
ployees suggesting that to protect themselves against
rash promises by some irresponsible union organizer, the
employees get union promises guaranteed in writing by
70 In contrast see Maxwells Plum 256 NLRB 211 216 (1981) in
which an employers more pointed declaration to its employees that they
would regret joining the Union was found to be an unlawful threat of
nonspecific reprisal
71 Delia who testified only before Judge Ohlbaum was employed in
the Respondents maintenance department for 1 1/2 years ending 26 May
the final day of the representation election His testimony was incorporat
ed into the present record by stipulation
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
having a union official sign and date each of the enclosed
warranty coupons Twelve such coupons followed each
headed by the words I Guarantee These read
I Guarantee you will get a pay raise of
cents an hour in the very first contract we get with
your company
[m]y union will pay your hourly rate of pay,
commencing with the first day off from work, in
the event you lose any time from work because of
labor trouble or strikes
[t]here will be absolutely no fines or assessments
against you by my union
[t]here will be no layoffs regardless of whether or
not your company has work to do
[m]y union will pay for the support of your
family and all of their expenses if you are thrown
out of work because of strikes called by the union
[n]o one will have to work on weekends, float or
rotate if they don t want to, once the Union get in
[o]nce you became a member of my union you
will not be required to abide by the Constitution
and By Laws of my union , because I have not given
you a copy or explained what it means to you
[i]f you are called out on strike you will get your
job back at the end of the strike, regardless of
whether you have been permanently replaced by
your company
[t]hat should a strike be called, and you choose to
work, that you will not be fined by my union for
crossing the picket line
[y]ou will not lose anything you now have
The last page of the coupon booklet read
UNLESS A RESPONSIBLE UNION OFFICIAL
HAS SIGNED EACH COUPON YOU SHOULD
VOTE NO
The heads side of the wooden nickel also distributed at
the time showed an Indian head and the words
Wooden Nickel, in the inner of two concentric circles
The outer circle bore the legend `Wooden Nickels like
Union Promises are Worthless The obverse or tails
side read It Makes Sense to Vote NO UNION
In distributing these items, Leidy first opened the
coupon booklet and read the above described coupons to
the employees When giving the employees the wooden
nickels, Leidy declared that the Union's promises are just
like this wooden nickel They are worthless because the
Union can promise you the world but cannot guarantee
you anything
The above items , which I find the Respondent distrib
uted to employees during at least one set of the paired
preelection meetings contains neither promises of benefit
nor threats of reprisal by the Respondent to discourage
employee support for the Union At most, the distributed
materials were a more dramatic way of informing the
employees that the Union could make a lot of promises
that it might not necessarily fulfill 72 The Respondent in
72 Representations by employers to employees before a representation
election to the effect that a union might not be able to fulfill its campaign
preparing these hand outs, then went on to raise a
number of topics as subjects of these putative union
promises, conduct that has been found above to be
lawful Accordingly, I find that the above distributed
materials do not violate Section 8(a)(1) of the Act
3 Employee Michael W Wallace further testified that
several hours after attending the meeting where the
above described coupons and wooden nickels were dis
tributed, he encountered Leidy by an elevator in the resi
dence According to Wallace, Leidy told him that he
knew that there was going to be a union meeting that
night, suggested that Wallace take those (warranty) cou
pons with him to the meeting and asked if Wallace
thought that the union officials would sign them Wal
lace replied that he doubted it and inquired why Leidy
did not ask them Both men laughed
As Wallace s account of the above incident at the ele
vator is uncontradicted, I find that in telling Wallace that
he knew about the union meeting that night, and infer
ring expectation of Wallace s attendance there, Leidy
created an impression that Wallace s union activities
were under surveillance in violation of Section 8(a)(1) of
the Act
Since Leidy, as found, repeatedly expressed to em
ployees his strong opposition to the Union on a number
of occasions in unlawful terms, the surface geniality of
his exchange with Wallace did not serve to meliorate the
coercive nature of his remarks
4 From the combined testimony of certain General
Counsels employee witnesses 73 Leidy began the meet
ings of 23 and 24 May, not as he described by politely
thanking the employees for attending and by telling
them that they would be given information about the
Union in the form of a slide presentation and in a talk by
an officer from headquarters but in harsher terms Ac
cording to these witnesses, Leidy opened these sessions
by telling the respective groups of employees that he had
heard that they had signed union cards He did not want
the Union to tell him how to run the residence If the
employees selected the Union during negotiations he
would not agree to the Union s proposal for higher
wages and there was nothing the Union could do about
it The employees were told that they should not join the
Union that unions were no good and that Leidy could
not have one at the Williams Residence If the Union
came in , the residence would have to be closed or sold
Most of the employee recollections as combined above
were fragmentary and incomplete Leidy as it has been
found from his own testimony at various times did take
promises have been found lawful See Knspy Kreme Doughnut Corp 245
NLRB 1053 1056 (1979) The literature in issue here contained certain
hypothetical possibilities rather than threats of what the Respondent
would do if the Union was chosen These were cast in the sense that the
Union could not without employer agreement bung about desired con
ditions referred to such as pay raises or freedom from weekend work At
the same time the Union could not or perhaps would not guarantee
against certain negative possibilities such as the costs to employees of
any future strikes or other referred potentialities
72 The following is based on a synthesis of the testimony of employees
Wallace Welch House Delia Harris Malcolm Ford Victor Simeon
and Ainsworth Hibbert The testimony of Delia and Hibbert who ap
peared only before Judge Ohlbaum has been incorporated into the
present record by stipulation
SALVATION ARMY RESIDENCE
a hard line before employees on the prospects of ready
contractual agreement with the Union should it be se
lected, and spoke of the need for the Union in very nega
tive terms As noted differences in the parties accounts
can be laid to language and comprehension difficulties on
the part of certain employee witnesses Accordingly
while I generally credit Leidy s more-coherent account
as to the prepared content of these meetings, I, nonethe
less, credit so much of the employees' testimony as re
lates to threats to close the residence if the Union should
come in as consistent with the Respondents tactics
dunng the campaign A strongly implied threat to close
was at the core of Garrel's 19 May slide presentations in
telling the story of the former Eventide Nursing Home
and, as will be considered below, direct threats to close
if the Union came in also were made to employees by
Supervisors Catherine Dempsey and Charles Scales of
the maintenance and dietary departments, respectively
Accordingly, I find that by Leidy s threat at the 23
and 24 May reelection meetings to close the residence if
the employees chose the Union, the Respondent further
violated Section 8(a)(1) of the Act
7 The 26 May postelection meeting-facts and
conclusions
On the morning of 26 May, shortly after the election
ended and the issued tally of ballots showed that the
Union had not been successful, the employees were sum
moned to the lounge to meet with Leidy 74
According to the General Counsels witnesses Leidy
thanked the employees for enabling him to win the elec
tion and told them that now the election was over, the
employees would get what was coming to them in wages
and benefits In response to an employee question as to
the whereabouts of their benefits and pay Leidy an
swered that some of the employees had been asking
about money, but he could not talk about this yet be
cause the election results had just been announced and
the Union still had it in its hand He had not given
raises to the employees who asked about them but when
the time came and he was ready he would give all em
ployees good raises and increased benefits
The General Counsel contends that the above 26 May
conduct was unlawful in that the Respondent, through
Leidy had informed its employees that they were being
denied wage increases because of the Union s presence at
its facility, and also because employees were promised
increased pay and benefits to induce them to abandon
support for the Union in the event of a second election
Leidy testified in this regard that on 26 May, after the
polls finally were closed, he conducted a meeting of
about 35 to 40 employees from the housekeeping, die
74 There is some difference of detail in the accounts of various employ
ees with respect to the 26 May meeting Victor Simeon testified that the
meeting was attended by all residence employees James N Gibbons re
called that only around 20 of the Respondents employees and a number
of supervisors were there Unlike Simeon Gibbons testified that Leidy
began the meeting by playing We Shall Overcome on a musical instru
merit and that what took place occurred not just at a single 26 May meet
ing but during two such meetings on 26 May and at a second gathering
held sometime between 6 and 13 June From the entire record however
it is clear that the only such postelection meeting was held early on 26
May
967
tary, and maintenance departments in the residence
lounge He thanked the employees for coming, apolo
gized for having interrupted their work, and stated that
he wanted to share with them the information that the
Union s efforts were over The election had been com
pleted and that as far as Leidy knew the Union had lost
and there would be no union Leidy declared that, per
haps, during the Salvation Army s attempts to resist the
Union s organizing campaign, there might have been
some differences of opinion or divisions Leidy expressed
the hope that these could be put behind and asked for
unity and harmony in the workplace
Leidy related that an employee then had asked what
future wage adjustments might be considered Leidy re
plied that, traditionally at the Williams Residence wage
adjustments are made during the first pay period in Oc
tober when management prepares the annual budget
Any adjustments, accordingly would occur in October
Leidy then asked the employees to go back to work 75
Noting that Garrel only partially corroborated Leidy's
account of the 26 May meeting, I do not credit Leidy s
account Rather, I find that he, in effect, did then prom
ise the employees pay raises to become effective later,
but could not then speak of the matter because of the
Union's continued presence Consistent with this it will
be found below from uncontradicted testimony that, but
a few weeks before, Leidy, in denying the request of em
ployee Clarence Greaves for a pay increase also had un
lawfully placed the onus for such refusal on the Union s
presence Also, as noted, Leidy s general credibility was
materially compromised during his testimony concerning
the challenged ballot of Bart Burton, when he was re
peatedly impeached
Accordingly I find from the credited evidence that
Leidy s statement to employees immediately after the
election to the effect that they would get what was
coming to them in wages and benefits but that he could
not yet discuss such matters because of the Union s con
tinuing presence positioned the Respondent to gain an
advantage in the event of a new election in violation of
Section 8(a)(1) of the Act 76 Smith & Smith Aircraft Co
264 NLRB 516 fn 2 (1982) 77 The Respondents actual
procedure as described by Leidy of granting pay and
benefits improvements only in early October in conjunc
tion with its annual budget process would not preclude
the above finding since Leidy, of course could have told
the employees whatever he considered expedient and
did so
45 Garrel recalled that the meeting took place immediately after the
election and was attended by nearly all employees All Garrel could re
member of the event was that Leidy had told the group that now that
the election was over the Salvation Army wanted to bind together as a
team and to go on from there
76 Tipton Electric Co 242 NLRB 202 213 (1979) enfd 621 F 2d 890
(8th Cir 1980)
r' At the same time in blaming the Unions continued presence for its
delay in discussing and implementing a new wage and benefit program
the Respondent further violated Sec 8(a)(1) of the Act
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Alleged unlawful conduct affecting individual
employees-facts and conclusions
a Incidents affecting Michael W Wallace
Apart from the events at the above described preelec
tion meetings , the General Counsel contends that during
two separate conversations between employee Michael
W Wallace and his immediate dietary department super
visor Catherine Dempsey, Dempsey , respectively, un
lawfully discouraged Wallace from participating in a
Board proceeding and threatened Wallace that the rest
dence would be closed if the Union should win the elec
tion Wallace s testimony concerning both of these mci
dents is uncontradicted
1 Wallace testified that the first such conversation oc
curred on or about 7 or 11 April after he had appeared
as a witness for the Union at the representation hearing
in Case 2-RC-19504 As Wallace was supposed to be at
work on the day he attended the hearing he, according
ly, had called the residence to say that he would be late
However, the hearing had taken all day and Wallace was
unable to report to work
When Wallace later again called the residence he
spoke to a fellow kitchen worker who was upset at Wal
lace s absence Wallace told the employee that he had
called twice to advise that he was being increasingly de
layed and now did not think that he could come to work
because of the lateness of the hour The worker , telling
Wallace that Dempsey was busy did not want to
comply with Wallace s request to call her to the tele
phone Wallace compelled the employee to call Dempsey
and made an appointment to speak with her the next
day
On the following afternoon at 1 o clock Wallace met
with Dempsey in her office Wallace told Dempsey that
he had not come to work the preceding day having
called in He related that Dempsey asked if Wallace had
had to go When Wallace replied that it had been neces
sary to attend the hearing Dempsey asked if he could
not have said no Wallace answered no Dempsey then
told Wallace that she really wished that he had not
gotten involved Wallace told her that it was too late it
was something he had had to do He had been asked and
so he had gone Dempsey replied that Wallace knew that
it was going to be rougher now because they are
going to be watching you Wallace said that he knew
He then left her office
I find that Dempsey s undisputed repeated questioning
of Wallace on that occasion as to his need to attend the
Board hearing together with her further statement that
it was was going to be rougher now for Wallace be
cause they" were going to be watching him to have
been coercive in violation of Section 8(a)(1) of the Act
even though Wallace had been a visibly active union
supporter Dempsey 's words carried the message that the
Respondent was so displeased with Wallace s open activ
ity as possibly to retaliate against him 78 Here , the viola
78 Purolator Products 270 NLRB 694 fn 2 (1984)
tion was even more pronounced than in Purolator Prod
ucts, supra as the activity that Dempsey tried to discour
age Wallace from pursuing was attendance at a Board
representation hearing
2 Wallace testified that during the week following the
above conversation, he returned to Dempsey s office for
some work supplies While there Dempsey told him that
she had heard some rumors that the Salvation Army
might be selling the building and that there were people
looking to buy the building If the Union came in, there
may be a chance that the Salvation Army was going to
sell Wallace replied that he had heard the same thing
from other employees
In finding that Dempsey's statement to Wallace that
the Salvation Army might sell the residence building
should the Union come in violative of Section 8(a)(1) of
the Act as a threat to discourage union activity and sup
port, it is not relevant that Wallace also may have heard
fellow employees speculate to the same effect As one of
the supervisory department heads through whom the Re
spondent s policies were expressed, Dempsey s statement
was cloaked with official significance and, therefor was
coercive in its effect
3 Wallace also testified without contradiction that in
April, a day after attending the representation hearing
that had been the subject of his above conversation with
Dempsey, he went to speak to Leidy in the latter s
office They were alone Wallace told Leidy that he had
heard that there was going to be a fight between two of
the residence workers and that he wanted Leidy to know
that the fight was not union related Wallace explained
that since Leidy had stated that he did not want any
thing like that to happen, Wallace since he was involved
with the Union had taken it upon himself to determine
this because Wallace had not wanted anyone to say that
the Union was making employees fight each other
Leidy told Wallace that he was a smart guy and asked
how come he had gotten involved with the Union Wal
lace replied that the Union had asked for his help and he
had given it He had not brought in the Union but the
Union had wanted his help and he had given it Leidy
thanked Wallace for his cooperation
In Rossmore House 79 the Board rejecting a per se ap
proach to interrogation found that an employers ques
tioning of open and active union supporters about their
union sentiments in the absence of threats or promises
did not necessarily violate the Act Such determinations
would rest on case by case analysis which considered the
circumstances surrounding disputed interrogations and
which did not ignore the realities of the workplace 80
Here, Wallace had initiated the conversation and
raised the topic of the Union, presenting himself to
Leidy as a Local 517 adherent with some union related
knowledge that he had come to discuss Wallace in
effect had invited some relevant response Leidy s reply
contained neither threat or reprisal nor promise of bene
fit because of Wallace s union activities Accordingly, I
find that Leidy s question to Wallace as to how come a
79 Rossmore House 269 NLRB 1176 (1984) enfd 760 F 2d 1006 (9th
Or 1985) Sunnyvale Medical Clinic 277 NLRB 1217 (1985)
80 Sunnyvale Medical Clinic supra at 1217
SALVATION ARMY RESIDENCE 969
smart guy such as himself had become involved with
the Union does not constitute unlawful interrogation in
violation of Section 8(a)(1) of the Act
b Incidents affecting Clarence Greaves
1 Clarence Greavess i testified that on 5 May he went
to Leidy s office and asked for a raise Leidy replied that
as a union was coming in, he could not give Greaves a
raise 82
Leidy s testimony in response, that he could not recall
having discussed the Union with Greaves before the
election, is too equivocal in comparison to Greaves'
clear, affirmative accounts of this and of a second con
versation with Leidy described below to constitute of
fective denial Therefor, Greaves' testimony concerning
both conversations is credited
As stated in Smith & Smith Aircraft Co 83
[i]n general , during a representation campaign an
employer must proceed as he would have done
had the union not been on the scene The Gates
Rubber Company, 182 NLRB 95 (1970), Wells Fargo
Alarm Services a Division of Baker Industries Inc,
224 NLRB 1111, 1113 (1976) When an employer
prior to a union campaign, has an established wage
increase policy, the suspension of that policy during
the union campaign will normally be found to vio
late Section 8(a)(3) unless the employer postpones
the increase only for the duration of the campaign
and informs the employees at the time the postpone
ment that the sole reason for its action is to avoid
the appearance that it seeks to intervene in the elec
tion and the Board finds that this in fact was the
reason Centre Engineering Inc, 253 NLRB 419,
421 (1980), Progressive Supermarkets Inc, 259
NLRB 512 (1981) If the employer does so inform
the employees, and cannot be said to have placed
the onus for postponement on the union the post
ponement will not be found to violate the Act See
Uarco Incorporated, 169 NLRB 1153 (1968)
Here Leidy put the burden for his rejection of
Greaves' pay request solely on the Union Although
Greaves' application for a raise did not mesh with the
Respondents policy for granting pay increments in Oc
tober when, as noted it prepared its budget, Leidy net
ther rejected the request on that ground nor did he ex
plain to Greaves that his raise was being turned down to
avoid the appearance of interference with the upcoming
election Rather, Leidy s reply merely informed Greaves
81 Greaves 28 June discharge with James N Gibbons is alleged as un
lawful in the complaint A maintenance employee under that depart
ment s supervisor Charles Scales Greaves first was employed at the Re
spondent s facility in May 1978
82 Although the General Counsel does not contend that a cyclical pay
raise then was due she argues that Leidy s reply violated Sec 8(a)(1) of
the Act because it indicated to Greaves as an employee that no raise
would be forthcoming solely because of the union campaign
83 264 NLRB 516 fn 2 (1982) Also see Times Wire & Cable Co 280
NLRB 19 ( 1986) which although factually distinguishable from the
present case reaffirms the applicable rule that it is unlawful for an em
ployer in denying a wage increase to seek to influence employee senti
ments by placing the onus for its action on the union
that his pay increase was being denied strictly because of
the Union s organizational campaign, leaving open an in
ference that his pay request might have been differently
considered had there been no union
I, therefore, find that the Respondent violated Section
8(a)(1) of the Act in this regard
2 Greaves also testified that about a week after Leidy
had turned down his wage request and approximately 2
weeks before the election, he was approached by Leidy
in the residence dining room Leidy asked him what was
going on When Greaves asked about what, Leidy re
plied about the Union Greaves told Leidy that he
should not ask him anything about the Union, he had his
family to support, that he will try to make a living be
cause he vote for the Union
Noting that Greaves had not been an open or conspic
uous union supporter that Leidy s questioning of him
had occurred at a time when the Respondent was ex
pressing to employees its strong hostility to the Union
both at meetings of employees and to individual employ
ees, and that, as found above the Respondent, about a
week earlier, had unlawfully blamed the Union for its re
jection of Greaves pay request, I conclude that Leidy s
interrogation of Greaves was in violation of Section
8(a)(1) of the Act 84
c Incident affecting Jose Vasquez
Jose Vasquez85 related that on 25 May around 2
p m ,86 he and coworker Michael Wallace left the Re
spondent s premises to go to a nearby camera store Both
men were on break when they left the building
When they returned approximately 5 minutes later
Majors Leidy and Garrel were standing in front of the
building Leidy told the two men that he wanted to
speak with them Accordingly, Leidy, Wallace, and Vas
quez went to the kitchen where Leidy told Wallace that
since he had received permission to go outside (the
building), he could leave Wallace returned to work
leaving Leidy alone with Vasquez Leidy asked Vasquez
if he had permission to go outside When Vasquez said
he did not Leidy told Vasquez that he would dock him
15 minutes pay for having left the building without per
mission 87
The General Counsel contends that this conversation
was unlawful in that Leidy had threatened Vasquez with
a change in work rules and benefits including loss of his
break period, if he selected the Union, and, that Leidy
also unlawfully had threatened Vasquez with a loss of
wages because of his union activities
Vasquez, however conceded that the Respondent had
had in effect a long standing rule requiring that employ
ees obtain their supervisors permission before leaving
the residence building during break periods Vasquez had
84 Rossmore House supra
85 Vasquez a dietary department employee for approximately 7 1/2
years at the time of the hearing did kitchen work Vasquez was em
ployed by the Respondent when he testified
86 25 May was the first day during which the representation election
was conducted The balloting took place between 1 30 p in and 4 30 p in
on 25 May and from 8 to 8 30 a in on 26 May
87 In spite of Leidy s stated intent no money was withheld from Vas
quez pay because of this incident
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
known of this rule well before 25 May and had abided
by it on earlier occasions Nonetheless, on 25 May, Vas
quez had not sought such a pass for himself even though
he had heard Wallace ask Dempsey for permission to
leave the building 88
Contrary to the General Counsel it appears from the
foregoing that the threat to dock Vasquez for having left
the building without permission, although occurring on
the day of the representation election, was not related to
his union activities of which there is no evidence of em
ployer knowledge Rather it appears that Vasquez was
spoken to by Leidy because he had breached an estab
lished work rule that not only was known to Vasquez,
but was one with which he had complied in the past
There is no evidence that the rule either had been pro
mulgated or was more stringently enforced because of
the Union s organization campaign
Noting, too, that Wallace who accompanied Vasquez
from the building but who had complied with the rule,
was not disciplined although Leidy, as found above, by
then knew that Wallace was an active union adherent, I
conclude that Leidy s unfulfilled statement that Vasquez
would be docked 15 minutes pay was not union related
or violative of Section 8(a)(1) of the Act 89
d Incident affecting William Ramos
William Ramos90 testified that on 26 May, the day it
became known that the Union had lost the election
Leidy passed his work area and told Ramos that he
wanted to speak to him for a few minutes Ramos
agreed Leidy declared that he needed Ramos help
Ramos asked what kind of help Leidy told him that he
knew that Ramos was one of the big chiefs for the Union
because a lady had told him so, and that he needed
Ramos help to make peace with the employees who had
been fighting for the Union Ramos replied that in cam
paigning for the Union he had been exercising his rights
and in doing so he had not been breaking the company
rules the law or any regulations Ramos also told Leidy
that he was not satisfied with the way in which he was
being treated by the Company or with the benefits that
he was receiving from the Company Leidy then walked
away
As Leidy recalled the incident during the afternoon of
26 May, after the Union had lost the election he looked
for Ramos and found him at work somewhere in the
building Leidy told Ramos that he had seen him in
volved with the Union-both at the Labor Board and as
union election observer As Ramos had influence or at
least , interest in the Union, Leidy declared that he
wanted Ramos help in making certain that there would
be no further antagonism among the employees Leidy
88 Although Leidy s focus with respect to this incident was on Vas
quez Wallace had been far more active on behalf of the Union having
distributed and collected substantial numbers of authorization cards in
cluding that signed by Vasquez In contrast Vasquez principal union ac
tivity had been merely to sign and return his own authorization card to
Wallace
89 It has been found above that the Respondent had earlier violated
Sec 8(a)(1) of the Act by certain of Leidy s other conduct directed at
Wallace
90 Ramos a housekeeping department employee with the Respondent
for more than 12 years still was employed at the time of the hearing
testified that this was the extent of his only conversation
with Ramos on the matter of unions
The General Counsel contends that Leidy s remarks
during the above conversation violated Section 8(a)(1) of
the Act in that they created an impression that Ramos
union activities had been under surveillance The Re
spondent argues that no impression of surveillance either
was intended or created By the time of this occurrence,
Ramos had been conspicuously active for the Union for
months had appeared on its behalf at the April represen
tation case hearing and he served as the union observer
during the 2 days of the gust completed election Accord
ingly, Ramos union sentiments were well known and it
was precisely because Ramos was a known union adher
ent that, when the election was over the Respondent
had sought his aid in smoothing over employee differ
ences that may have arisen during the campaign
As the respective accounts of Ramos and Leidy of this
conversation are substantially in accord with regard to
the principal aspects of what was said, that Leidy had
asked Ramos as a leading union activist for assistance in
making peace among the employees during the postelec
tion period resolution of that aspect of this incident does
require resolution of credibility In the area of difference
that does exist whether as Ramos testified Leidy told
him that he had learned of Ramos union role from some
lady or whether, as Leidy related, he had discerned this
from seeing Ramos at the representation hearing and as
the Union s election observer that same day, logic would
require that Leidy s version be accepted as supported by
Ramos sheer conspicuousness
In this context the evidence does not support the
General Counsels contention that Leidy, in some way
had imparted to Ramos that his union activities were
being scrutinized or spied on, but rather, that the Re
spondent in a noncoercive way merely had asked for
Ramos assistance in improving the atmosphere of the
workplace in the aftermath of the representation election
Accordingly I find no basis for concluding that Section
8(a)(1) of the Act was violated by what was said by
Leidy during this conversation
e Incident affecting Stephen Brown
Former employee Stephen Brown91 testified that
during the second or third week of April Leidy ap
proached his work station , greeted him , and told Brown
that he was scared of the Union and that Brown must
talk to some of the kitchen workers to (get them to) vote
against the Union Brown replied that he would try his
best
As Leidy did not contradict Brown s testimony in this
regard I find that the Respondents solicitation of Brown
in the preelection period to get the employees to vote
91 Brown employed in the residences dietary department as a kitchen
worker had two periods of employment with the Respondent He first
worked at the Williams Residence from about 1972 to about 1973 or
1974 and resumed his employment there in 1975 leaving in December
1983 During 1983 Brown was employed as a part time short order cook
Other testimony by Brown will be considered in connection with the al
leged unlawful discharges
SALVATION ARMY RESIDENCE
against the Union is violative of Section 8(a)(1) of the
Act 92
f Incidents affecting Jose Reynoso
1 Jose Reynoso93 testified with respect to two con
versations with his immediate superior, Maintenance Su
pervisor Charles Scales
The first incident, according to Reynoso, occurred in
mid February,94 when Scales phoned him to come to
Scales subbasement office, where they met alone Reyn
oso related that Scales told him that the Union was plan
ping to come into the building and that, if it did so, the
Salvation Army was going to bring in contractors to
take the employees jobs and was going to close down
the building Reynoso, replying that he would go look
for a job someplace else, went back to work
2 The second conversation took place in mid April in
the early morning After Scales had given out the assign
ments to the maintenance crew in the shop area, where
this usually was done, he directed Reynoo to remain
behind Scales then took Reynoso back to his office,
where, again , he spoke to him privately Scales told
Reynoso that if the Unions should win the election the
painters would be laid off, but if the Union should lose
the election, the painters would get a good increase in
salary Reynoso did not reply
Although Scales later testified at the hearing, he did
not seek to contradict Reynoso s above testimony, which
is credited
In agreement with the General Counsel, I find that the
Respondent, during Scales two conversations with
Reynoso respectively violated Section 8(a)(1) of the Act
by Scales' threats that if the Union should win the elec
tion the Respondent would take away the employees
jobs by contracting out their work, would close the rest
dence building, and by telling Reynoso a painter that
the painters would be laid off The Respondents promise
to Reynoso in the alternative that if the Union should
lose the election the painters would receive a good
salary increase, also violated Section 8(a)(1) of the Act
g Alleged conduct of Respondents counsel
(1) Kenneth A Margolis
The General Counsel adduced testimony to establish
that in May 1984, a year after the election and shortly
before the hearing opened with Judge Ohlbaum on 21
May 1984 one of the Respondents attorneys, Kenneth
92 PYA/Monarch Inc 275 NLRB 1194 1196 (1985) The violation
here would appear to be more pronounced than that in PYA/Monarch
supra, where an employer solicited an employee to induce other employ
ees to repudiate the union during a conversation that had been begun by
the employee who had been seeking the employers help in resolving
confused feelings about the union Here it was the Respondent who had
initiated the conversation with the employee and raised the topic of the
Union
93 Until his resignation in September after the election Reynoso had
been employed for 10 years as a painter in the Respondents maintenance
department
94 As the Union s organization drive did not begin until March Reyn
oso s testimony with respect to a February date for a discussion concern
ing the Union probably was incorrect This error however does not
serve to nullify the substance of his testimony which as will be noted is
uncontroverted
971
A Margolis 95 unlawfully interrogated employees at the
residence concerning the extent of their cooperation with
the Board s Regional Office during its investigation of
the underlying charges herein, and as to the testimony
they might offer as witnesses for the General Counsel at
the hearing
Employee Michael W Wallace testified that in May
1984 his supervisor in the dietary department, Dempsey,
told him at work that a Salvation Army lawyer was
waiting downstairs to speak with him Dempsey then
took Wallace to the basement near the activities office
where she introduced him to Margolis and left 96 Mar
golis told Wallace that he did not have to talk to him
and that he had the right to leave the room at any time
he wanted At no time during their interview did Wal
lace tell Margolis that he would not cooperate or that he
wanted to leave
Wallace related that Margolis then asked if he had
signed a statement for the Labor Board After a pause,
Wallace told Margolis that he had Margolis asked for
the statement's content Wallace told Margolis that he
did not remember 11
Margolis asked if Wallace had attended any meetings
conducted by the Union Wallace answered yes Margo
Its did not ask what had occurred at any such meetings
Wallace testified that Margolis final question to him
was whether he had signed a union card When Wallace
again answered yes Margolis told him that that was it,
ending their meeting
Josette Salomon98 testified that, in May 1984, she re
ceived a telephone call at her work station from Major
Leidy Leidy, without explanation, told Salomon to go
downstairs to Major Jordan s office in the residence
basement 99
Salomon testified that when she entered Jordan s
office only Margolis was present He introduced himself
as the Salvation Army lawyer and stated that he was
there to prepare for the trial that was going to take place
involving the Salvation Army According to Salomon
Margolis did not ask if she had been subpoenaed and she
denied that Margolis had told her that she did not have
to talk to him if she did not want to Margolis did tell
Salomon that he was trying to help Major Leidy
Margolis then asked if Salomon had signed a union
card When she said yes, Margolis then asked who had
given her the card Salomon replied that she had re
ceived the card from the union lady, Theresa Rodriguez
on the street
Margolis asked if Salomon remembered anything that
had taken place at the meetings conducted by the Re
spondent He asked if she had seen a movie (videotape)
that Major Leidy had shown and if she remembered
as Margolis as noted no longer represents the Respondent
99 Wallace had met Margolis earlier at the representation case hearing
97 By the time of their May 1984 interview Wallace had given the
Board s Regional Office two affidavits dated in January and February
1984 respectively
es Salomon a housekeeping department employee had been at the
Williams Residence for approximately 14 years where she still was em
ployed at the time of the hearing
" Except that his office was used for certain interviews Salvation
Army Major Mario Jordon was not involved in this proceeding
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
anything about the movie Salomon told Margolis that
while she had seen a movie she did not remember any
thing about it In response to Margolis question, Salo
mon stated that she also did not remember anything
about the slides shown during those meetings
Margolis asked if the Labor Board lawyer ever had
called Salomon about the movie She answered no Mar
golis then told Salomon, Josette, if the Labor Board
lawyer calls you about the movie, tell her you don t re
member nothing You did not see anything because, Jo
sette, I want to help Major Leidy Salomon then asked
if Margolis was finished with her He answered yes, and
she returned to work
Margolis testified that during his 18 May 1984 visit to
the Williams Residence, he met consecutively with ap
proximately seven or eight employees He had gone to
the residence after being advised by Ronald Kreismann,
his senior cocounsel, that the Respondent had notified
their law office that several employees subpoenaed by
the General Counsel had raised questions about their
subpoenas At the Williams facility, Leidy provided Mar
golis with use of a basement office and arranged to
summon the relevant subpoenaed employees, one at a
time, to meet there with Margolis
Margolis related that the respective interviews all fol
lowed the same basic format Without giving his name,
Margolis introduced himself as the Salvation Army s
lawyer to each employee as they came in He told the
respective employees that he wanted to speak to them
about the events involved in the unfair labor practice
trial that was coming up during the following week, that
he wanted to help the Williams Residence prepare for
hearing and that it was up to each employee to decide
whether they wanted to speak to him As far as Margolis
and the residence were concerned nothing would happen
to any employee regardless of whether the employee
chose to talk to him If so desired the employee was free
to leave Before proceeding further, Margolis asked each
employee if he or she wanted to stay and discuss this
matter All interviewed employees agreed to talk to him
Margolis related that he then told each employee in
turn that it had come to the Respondents attention that
several workers who had received subpoenas to attend
the hearing had questions concerning the subpoenas If
they had received such subpoenas they should comply
with them as official requests by the Government for
their appearances If the employee had any questions
concerning the subpoena, he or she should contact the
counsel for the General Counsel whose name and ad
dress were on the subpoena
Margolis then asked what each employee remembered
as having occurred at the residence during the period
before the union election He then advised that only one
of the charges alleged that there had been a threat to
close the facility if the Union came in and asked if the
respective employees had heard words to that effect
Margolis testified that he began the interview with
Salomon using the above introductory remarks He intro
duced himself as the Respondent's attorney advised
Salomon of her right to decide whether to talk to him
about matters relevant to the Respondents trial prepara
tion without concern for reprisal and advised her to
comply with the General Counsels subpoena When
Salamon agreed to speak with him Margolis asked what
she remembered as having occurred at the residence
during the period before the union election Salomon
told him that there had been meetings during which
films had been shown When Margolis asked about the
films, Salomon told him that they had been about unions
Margolis told Salomon that the charges alleged that
there had been threats to close the residence if the Union
came in Although he asked if Salomon had heard this,
he does not recall if she replied
In response to Margolis inquiry Salomon told him
that she had nothing in writing in the way of notes or
statements that would help her to remember more about
the meetings or the films The interview lasted for less
than 5 minutes
Margolis related that Michael Wallace the last em
ployee he met with that day, was brought to the inter
view room by his supervisor, Dempsey, who then left
them alone
When Margolis completed his above described open
ing remarks, including the reassurance against reprisals,
and Wallace declared his willingness to talk to him, Mar
golis asked what Wallace recalled as having happened at
the residence during the period before the election In re
sponse to a series of questions, Wallace said something
about films having been shown at meetings Margolis
asked about the films but did not recall whether Wallace
described them
Margolis asked if Wallace had any notes diaries or
statements that he could read to help him remember
more about these events Wallace replied that he had
given a statement to the Board but did not have a copy
This ended the interview 100
Reviewing the differences between the testimony of
Wallace and Salomon and that of Margolis with respect
to what took place during the interviews contrary to
Margolis neither Wallace nor Salomon testified that
Margolis had given them assurances against reprisal in
connection with the interviews although Wallace did
confirm that Margolis had made clear that Wallace s co
operation was voluntary Salomon too had agreed to
talk to Margolis Also contradictory to Margolis both
employees related that Margolis had asked each if he or
she had signed a union card 101
According to Salomon, she also was told that if the
Board attorney should call her about the movie shown
by the Respondent at the meeting she should say that
she had not seen anything because Margolis wanted to
help Major Leidy Margolis made no reference to the
employees subpoenas Wallace s testimony that Margolis
has asked if he had given a statement to the Board went
100 Margolis denied having asked either Wallace or Salomon if they
had signed union cards The only time that the topic of a union authon
zation card had come up that day was while Margolis was interviewing
another employee not referred to by the General Counsel Roshell Nich
ols Replying to Margolis inquiry concerning what had happened at the
residence before the election Nichols volunteered that he had signed a
union card but had turned around Margolis had not replied to this
101 Salomon testified that she also was asked who had given her the
union card and for information about what she had told the Board s Re
gional Office
SALVATION ARMY RESIDENCE
beyond Margolis' statement that he routinely had asked
all employees spoken to that day whether they had any
statements, notes or other documents that could be used
to refresh their memories Wallace further related that
Margolis had asked for details of Wallace s affidavit to
the Board
I credit the testimony of Wallace and Salomon as to
what occurred during these interviews, except that I do
not accept Salomon's uncorroborated testimony that
Margolis, contrary to ethical standards, had attempted to
influence what she should say to the Board attorney con
cerning the events of this case In so crediting other as
pects of these employees accounts, it is noted that Wal
lace and Salomon appeared to be forthright witnesses
who were mutually corroborative in describing the sub
stance of their respective conversations with Margolis
Both employees testified that there had been no reassur
ance against reprisal regardless of cooperation in the
interview, both had been asked if they had signed union
authorization cards and each employee had been asked
not only about the details of the Respondent's preelec
tion conduct, but what had been said on this topic to the
General Counsel Neither witness agrees with Margolis
testimony that he had spoken to them about their sub
poenas In accepting the testimony of these witnesses, it
is noted that both Wallace and Salomon were employed
by the Respondent when they testified The Board, in
evaluating employee witnesses testimony against the in
terest of their employer at a time when they still are em
ployed, considers this to be one factor supporting the
credibility of their testimony 102
The Board, in Johnnie s Poultry Co ,103 recognized that
in spite of the inherent danger of coercion where an em
ployer has legitimate cause to inquire, he lawfully may
interrogate employees concerning their Section 7 rights
for two purposes without incurring 8(a)(1) liability (a) to
verify a union s claimed majority status so as to deter
mine whether recognition should be extended and (b) to
investigate facts concerning issues raised in a complaint
where such interrogation is necessary in preparing the
employer's defense for trial of the case In allowing this
privilege of interrogation the Board and courts have es
tablished the following safeguards or guidelines designed
to minimize the coercive impact of such employer inter
rogation
[t]he employer must communicate to the employee
the purpose of the questioning assure him that no
reprisal will take place and obtain his participation
on a voluntary basis the questioning must occur in
a context free from employer hostility to union or
ganization and must not be itself coercive in nature
and the questions must not exceed the necessities of
the legitimate purpose by prying into other union
matters, eliciting information concerning an employ
ee s subjective state of mind or otherwise interfer
ing with the statutory rights of employees When an
102 Pittsburgh Press Co 252 NLRB 500 504 ( 1980) Southern Paint &
Waterproofing Co 230 NLRB 429 431 fn 11 (1977) Georgia Rug Mill
131 NLRB 1304 1305 in 2 ( 1962) enfd as modified 308 F 2d 89 (5th
Cir 1962)
103 146 NLRB 770 (1964) enf denied 344 F 2d 617 (8th Cir 1965)
973
employer transgresses the boundaries of these safe
guards, he loses the benefits of the privilege
Here, from the credited evidence, Margolis did not re
assure Salomon and Wallace against reprisal in connec
tion with their respective interviews as required by John
me s Poultry Co ,104 and, in any event, exceeded legiti
mate purpose by asking Salomon from whom she had re
ceived her authorization card, thereby inquiring into the
union activities of other employees, and by interrogating
Wallace concerning the contents of the statement he had
given to the Board Such an inquiry is tantamount to re
garding a copy of an employees affidavit given to the
Board, conduct held unlawful in Dayton Typographical
Service 101 As the Respondent, through Margolis, also
asked each of these employees if they had signed union
authorization cards without first affirming that no repass
al would be taken against them, that inquiry, too, was
unlawful 106
As Margolis did not adhere to the guideline that Wal
lace and Salomon be assured of freedom from reprisal, I
conclude that the Respondents interrogation of these
employees through Margolis as to whether they had
signed authorization cards, as to who had supplied such
cards, and as to the content of Wallace's affidavit given
to the Board all were in violation of Section 8(a)(1) of
the Act 107
While I have credited mutually corroborated areas of
the testimony of Wallace and Salomon concerning their
respective meetings with Margolis, I do not accept Salo
mon's further uncorroborated statement that Margolis
had told her, while she was under subpoena, what to tell
the General Counsel so as to improve the Respondent s
position at the upcoming hearing My observations of
Margolis while he was testifying and his testimony as a
whole convince me that it is most unlikely that he would
engage in such improper conduct
2 Ronald Kreismann
Housekeeping employee Audrey Ga11108 testified that
about 2 years after the election, on 12 May 1985 about
1 15 p in she had just returned from an outside errand
when her new supervisor Ken Kern 109 told her that
Major Leidy wanted to see her in his office
Gall related that the only person in Leidy s office
when she arrived there was the Respondents principal
counsel in this matter Ronald Kreismann When Gall
gave her name Kreismann introduced himself as Major
Leidy s lawyer and asked her to be seated Kreismann
indicating a document on the desk, told Gall that she
104 See Bill Scott Oldsmobile 282 NLRB 1073 (1987)
105 273 NLRB 1205 1206 1214 (1984)
106 Standard Coosa Thatcher Yarn Division Y NLRB 691 F 2d 1133
(4th Cir 1982) enfg 257 NLRB 304 (1981) Also see Products Unlimited
Corp 280 NLRB 435 (1986)
107 Margolis inquiries as to who had supplied the authorization cards
of course was an unlawful inquiry into the union activities of other em
ployees
108 At the time of the hearing Gall had been employed by the Re
spondent for approximately 9 years
109 Kern replaced Blanche Kronnel as housekeeping department super
visor in July 1984
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
could sign the paper if she so desired , but that she did
not have to Gall replied that she did not have eyeglasses
and was not signing anything Gall did not recall wheth
er Kreismann told her that what she had declined to sign
was a statement that had been read aloud to her, from
which she understood that her participation in the inter
view was voluntary However, she did remember that
Kreismann had told her that he was going to write
across the top of the offered statement "Audrey Gall
prefers not to sign , but will answer questions "
Gall avowed that Kreismann told her that he had a
number of questions to ask concerning events that had
taken place during the Union 's organizing campaign at
the Williams Residence in the spring of 1983 and that, if
she did not wish to talk with him, she was free to leave
either then or at any time dunng the interview Gall
agreed to answer Kreismann s questions as long as they
related to matters she knew about
Ronald Kreismann then asked if Gall recalled whether
Major Leidy had said anything about selling the Wil
liams Residence building Gall replied that on occasion,
in meetings , she had heard Leidy say that if the Union
got in, he would close the doors
Kreismann asked if anyone had spoken to Gall about
anything concerning the Union during her worktime
against the background of the then upcoming election
Gall told Kreismann that, a couple of days before the
election , a man who was not in uniform had approached
her workplace and announced that he was a Salvation
Army representative sent from headquarters The man
had then shaken her hand and told her that he knew the
election was coming up and he wanted all the girls to do
their best If the employees voted for the Army, the
Army would be willing after the election, to solve any
difficulties the employees should have They should just
call headquarters
Kreismann asked if any films concerning the Union
had been shown Gall replied that she remembered that
one of the films had shown trucks turning over and a
man taking a gun from his pocket and resting it on a
counter There had been a lot of noise
Kreismann then inquired if Gall had seen any strange
people looking at the building She replied that she had
seen many people come to the building but did not know
what they had been about He then asked if Gall ever
had heard Leidy say that he would sell the building Gall
responded that Leidy had said that before the Union
came in, he would close the doors
Kreismann asked if workers were required to have a
pass to take anything from the building or whether she
had seen any of the workers take items from the prem
ises without a pass Gall told Kreismann that if one of
the guests gave anything to an employee, the employee
should ask for a note because some of the residents are
senile and not responsible and the employees could
avoid trouble by doing this Kreismann agreed that this
was correct Gall continued that the employees were
asking for notes from residents who gave them property
so that they could prove to the door guard that they had
properly received what had been given to them She
went on that employees never previously had had passes
and the reason why they were getting passes then was
because two men had lost their jobs over a piece of car
peting 110
Gall did not recall having been told by Kreismann that
no reprisal would be taken against her in connection
with the interview However, she did tell Kreismann that
she had been subpoenaed and that she was telling him
exactly what she would say at the hearing
The General Counsel contends from the above that
Kreismann 's interview and interrogation of Gall was un
lawful in that he had failed to follow the Johnnie's Poul
try Co guidelines set forth above 111
Kreismann testified that on 10 May 1985, when he
went to the Williams Residence , he met individually
with eight employees in Leidy's office Audrey Gall was
the third to be interviewed Only he and Gall were
present at the time
Kreismann related that when Gall entered the room,
he introduced himself by name as the Respondents attor
ney, telling Gall that he wanted to talk to her about cer
tarn events that occurred during the Union's election
campaign to assist him in preparing the defense for the
upcoming unfair labor practice hearing He told Gall he
wanted to tape their conversation if she had no objec
tion When Gall declared that she had no problem with
this, he turned on a tape recorder located on top of
Leidy s desk 112
Kreismann then read Gall a prepared statement that
reiterated who he was and his reasons for being there
Kreismann asked if Gall would sign the statement, giving
it to her to read Gall declined to sign, explaining that
she did not have her eyeglasses Kreismann then asked if
Gall would have difficulty in answering any questions
that he had of her Gall said no He then informed Gall
that in those circumstances, he was going to write at the
top of the prepared statement that Gall preferred not to
sign but would talk to him, and made an entry to that
effect
At the hearing, Kreismann countered Gall's account
by playing the audiotape made during their interview
Accordingly I then was able to compare the voices on
the tape in the presence of Gall and Kreismann, while
both were participating to conclude on the record that
the recording contains both of their voices Although the
audiotape was received in evidence and the Respondent
was granted leave to furnish a transcript of its content,
these items were not included among the exhibits and
were not thereafter located by the court reporter None
theless, as the issue concerning the lawfulness of this
interview centered on whether the Respondent had met
the Johnnie s Poultry guidelines, enough of the first part
of the tape, when it first was played is quoted in the
110 The two dischargees referred to by Gall Clarence Greaves and
James N Gibbons are at issue in this proceeding
146 NLRB 770 774-775 (1964)
12 Although Gall testified that she did not recall that Kreismann had
told her that he was going to tape their conversation her stated poor
memory on this point is insufficient to counter Kreismann s clear and un
equivocal testimony Accordingly crediting Kreismann I find that he
had informed Gall in advance that he was going to record what was said
at their interview and that she had consented
SALVATION ARMY RESIDENCE
hearing transcript as to confirm Kreismann 's testimony as
to what he had told Gall in this respect 113
Accordingly, I find that Kreismann properly applied
the above described Johnnie's Poultry safeguards in inter
viewing Gall He informed her that the purpose in talk
ing to her was to assist the Respondent in preparing its
defense at the pending unfair labor practice hearing, that
her participation in the interview was voluntary and that,
regardless of whether she chose to cooperate or what
was said during their talk, no reprisal would be taken
The General Counsel does not contend that, apart from
the issue of compliance with the Johnnie's Poultry safe
guards, the interview went beyond legitimate purpose or
otherwise violated the Act Kreismann's questions, even
as described by Gall, did not probe her subjective state
of mind or interfere with her statutory rights, and Gall
had taken the initiative in discussing the need for passes
permitting employee removal of property from the Re
spondent's premises, in the interest of the two discharges
Noting also that there were no expressions of hostility to
the Union during the interview,' 14 I find that Kreis
mann's 10 May interview of Gall did not violate Section
8(a)(l) of the Act 115
9 Summary of 8(a)(1) violations
It has been found that during its meetings with groups
of employees before and immediately after the represen
tation election, from 13 April to 26 May, in ways dis
closed above, the Respondent violated Section 8(a)(1) of
the Act by
(1) Leidy s statements at the 13 April meeting that the
employees would lose break time and that the rules
around the residence would change
(2) Leidy's warning to employees on 13 April that if
the Union came in, he would not give it a penny, there
by expressing the futility of their selecting a union
(3) Leidy's 13 April statement that the Union belonged
to the Mafia
(4) Leidy s 13 April invitation to employees to talk to
him about their pay instead of going to the Union
(5) Garrel s implied threats on 19 May that as at the
Eventide Nursing Home, if the Williams Residence em
ployees chose the Union as their bargaining agent the
residence would be closed and its building reallocated to
a different Salvation Army program 116
Leidy's threat in May, described by employee Wal
lace that if the Union came in and demanded too much
money the Salvation Army could just close the building
113 Kreismann s precaution in audiotaping his interview with Gall fa
cilitated resolution of the credibility issues ansing from that meeting in a
way that was not possible with respect to Margolis above unrecorded
employee interviews
1 14 Except for Margolis unlawful interrogations of Wallace and Salo
mon which took place approximately 1 year after the election and a year
before Margolis interview with Gall all the Respondents conduct at
issue had occurred approximately 2 years earlier
11 s Conkle Funeral Home 266 NLRB 295 299-301 (1983)
116 As the May preelection meetings were paired so that the same ma
tenals and commentators could be presented to two successive groups of
employees and thereby reach all available unit employees unlawful con
duct found to have occured at the May meetings particularly on 19 May
was repeated creating additional unlawful incidents
975
(7) Leidy s statement to Wallace, after distributing
campaign warranty coupons and wooden nickels at a
meeting with employees, that he knew that there was
going to be a union meeting that night, and suggesting
that Wallace take the warranty coupons to that meeting
on the chance the Union officials might sign them
(8) Leidy's May threats, described by various employ
ees, to close the residence building if the Union should
come in
(9) Leidy s statement to employees at the 26 May post
election meeting blaming the Union's continued presence
for the delay in discussing and implementing a new wage
and benefits program
Apart from what was told to employees during the
preelection and postelection meetings of April and May,
the Respondent further violated Section 8(a)(1) of the
Act by the following statements made to individual em
ployees before the election
(1) Dietary Supervisor Dempsey s April remark to
Wallace while discussing his attendance at the represen
tation case hearing that it was going to be rougher now
for Wallace because the Respondent was going to be
watching him
(2) Dempsey s statement to Wallace about one week
after the foregoing that if the Union came in, there was a
chance that the Salvation Army would sell the Williams
Residence building, in the context of her announcement
during that conversation that she had heard rumors that
the Salvation Army might be selling the building and
that there were people looking to buy it
(3) Leidy s statement to Clarence Greaves in early
May that he could not grant Greaves request for a pay
raise as a union was coming in
(4) Leidy s dining room interrogation, when he asked
Greaves what was going on about the Union
(5) Leidy's April solicitation of Stephen Brown that
Brown attempt to induce other employees to vote
against the Union
(6) Maintenance Supervisor Scales' threats to Jose
Reynoso during two conversations in the course of the
Union s campaign that if the Union should win the elec
tion the Respondent respectively would (i) Take away
the employees jobs by contradicting out the work they
had been doing (u) Close the residence, and (iii) Lay off
the painters
(7) Scales alternative promise to Reynoso during their
mid April conversation that, should the Union lose the
election, the painters would receive a good salary in
crease
(8) Attorney Margolis' 18 May 1984 interrogations of
Josette Salomon and Michael W Wallace, respectively,
regarding whether they had signed authorization cards,
as to who had supplied such cards, and by asking Wal
lace about the content of the affidavit that Wallace had
given to the Board s Regional Office
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C The Discharges of James N Gibbons and Clarence
Greaves
1 The General Counsels evidence
On 28 June, about 1 month after the representation
election, the Respondent terminated two long term main
tenance department employees, James N Gibbons 117
and Clarence Greaves 118 The Respondent asserts that
Gibbons and Greaves were discharged for having stolen
a piece of carpeting which the Respondent claims was
taken from the residence building in violation of an es
tablished policy that employees who remove property
from the residence produce passes or permits for same
The General Counsel and Union denying theft, con
tend that Gibbons previously had received permission to
take the carpeting from his supervisor, Scales, and that
Greaves who coincidentally was working near the rest
dence front door when Gibbons was carrying the carpet
tng to a friend s waiting van, had merely helped Gibbons
with his burden These parties argue that the two men
were terminated because of their union sympathies and
activities The General Counsel points out that the car
peting involved was in such poor condition and of so
little value as to render the Respondents conduct in this
regard suspect The General Counsel also disputes the
Respondents assertion that an effectively enforced
viable policy requiring that employees submit passes for
the removal of property was in existence at the time
Gibbons principal union activity was to sign an au
thorization card on 15 March He had received the card
on the street from Union Representative Joseph Lovell
the previous evening as he was leaving work Gibbons
completed and signed the card in the residence the next
day during his breaktime and on the evening of 15
March, personally delivered it to the union hall He earls
er also had so delivered the card signed by Greaves
As was the case with the other employees Gibbons
and Greaves were required to attend at least two pree
lection meetings 1 1 s and one postelection meeting called
by the Respondent
Greaves preelection job experiences concerning the
Union were the more pronounced as it has been found
above that on two instances the Respondent violated the
Act by its conduct toward him 120
Greaves, too, signed a union authorization card on 11
March, which he had received from a coworker at the
residence Later that day, he gave the card to Gibbons
to deliver to Union Representative Lovell 121
Gibbons testified that in January, about 5 months
before his discharge he spent a week painting apartment
1623 on the top floor of the Williams Residence, occu
pied by the ranking Salvation Army officer in the area-
the commissioner On his first workday in that apart
ment, Gibbons saw a carpet stain which he reported to
Blanche Kronnel the housekeeping department supervi
sor Kronnel replied that it was a water stain from the
radiator and, later that week, told Gibbons that the car
peting was to be removed from the apartment
Gibbons related that on 7 March, while working in an
other 16th floor apartment near apartment 1623, he
heard Kronnel direct employees Victor Simeon and
Walter Craig to take the carpeting from apartment 1623
to the basement incinerator area When, an hour later,
Simeon and Craig had removed the carpeting and had
loaded it onto a trolley, Gibbons rode down with them
on the elevator122 and accompanied them to the inciner
ator area
Gibbons then waited until Simeon and Craig had
dumped the carpeting pieces from the trolley and left the
area 123 Gibbons then while employee Audrey Gall
looked on, cut a 5 by 6 foot piece from the carpeting
and leaving this with Gall, went to Scales office in the
subbasement, where he found Scales alone Gibbons
asked if Scales had any twine, declaring that he had a
piece of the carpeting that had come from apartment
1623 Gibbons told Scales that the carpeting had been
left on the pile and that he would like a piece of twine to
tie it together Scales said yes and gave Gibbons some
twine
According to Gibbons Scales asked if he could take
the carpet away then Gibbons answered no, he wanted
to return to the basement Scales then told Gibbons that
he could leave the carpet on the air conditioner in the
storeroom 124
Gibbons returned to the basement where with Gall
still present he tied up the carpet and took it to the
storage/locker room 125 After leaving the carpeting in
the storeroom, Gibbons returned to work
Gibbons testified that during the early morning of 8
March the day after he had left the carpet on the air
conditioner he had a conversation in the locker/
storeroom with fellow maintenance worker Malcom
Ford
117 Gibbons a painter with the Respondent since January 1970 report
ed to Maintenance Supervisor Charles Scales As a painter Gibbons
duties consisted of painting plastering and checking apartments for
carpet stains and for damaged walls and ceilings He reported such de
fects to Scales
118 Greaves who had worked for the Respondent since May 1978 re
paired burst pipes defective faucets and electrical fixtures Greaves too
worked in the maintenance department under Scales
iii Greaves was obliged to leave his second preelection meeting early
to answer an emergency maintenance call
120 It has been found that the Respondent violated Sec 8 (a)(1) of the
Act about 2 weeks before the election when Leidy approached Greaves
in the cafeteria and in effect asked him what was going on about the
Union On another occasion in that period Leidy unlawfully blamed the
Union for his refusal to grant Greaves request for a pay increase
121 There is no evidence that the Respondent knew that Gibbons and
Greaves had signed authorization cards as such or that Gibbons had de
livered their respective cards to the Union Nonetheless the Employers
knowledge of Greaves union sympathies is found from its above unlaw
ful conduct towards him
122 Gibbons explained that he had taken the elevator to obtain some
plaster from the subbasement in connection with his work in the nearby
apartment Whatever his ultimate intent he did not immediately proceed
to the subbasement but got off with the others at the basement level
121 Trash left in this was customarily was later incinerated by mainte
nance employee Malcolm Ford
124 The basement storeroom referred to also was used in the morning
and evenings by male employees to change their clothes
125 Gall was the recipient of the carpeting after it was removed from
the residence some months later
SALVATION ARMY RESIDENCE
Ford told Gibbons that he had left a piece of carpet
padding for Gibbons on top of Gibbons carpet 126 Ford
then showed Gibbons his own piece of carpeting told
Gibbons that he had gotten it from the incinerator pile,
and that he had obtained underpadding for himself and
for Gibbons Ford announced that he was going to take
his carpeting home
The next day, 9 March, Ford told Gibbons that he had
taken his carpeting home the evening before with the as
sistance of his son in law Had he known that Gibbons
also lived in Brooklyn he could have transported Gib
bons carpeting at the same time Gibbons did not there
after from 7 March to 28 June, attempt to remove his
carpet from the Respondents building
Gibbons related that while on his way to work on the
morning of 28 June, he arranged with a friend identified
only as Bud, ' that Bud would drive his van to the resi
dence that day, pick up Gibbons carpeting and deliver
it as requested by Gibbons
Accordingly, on 28 June at approximately 9 45 am,
Gibbons was called from his work by Personnel Manag
er and Front Desk Supervisor Myrtle Jaynes, who told
him that Bud was waiting to see him at the desk When
Gibbons arrived there Bud told him that he had come to
take his carpeting for him Gibbons retrieved the rolled
carpeting and padding from the storage room, carried
them upstairs through the lounge and past Jaynes at the
front desk He asked Clarence Greaves who then was
using a pole to change light bulbs in the ceiling near the
front doors, to hold open the inside front door for him
As Greaves complied, Gibbons asked Greaves to help
him further, telling Greaves that Bud was waiting out
side Greaves, who also knew and wanted to see Bud,
took the padding roll and carried it for Gibbons through
the outer front door to the nearby van into which Gib
bons and Greaves, respectively, deposited the carpeting
and the padding Bud then drove off and the two men
returned to the residence
Greaves was the first to reenter the building, with
Gibbons following about 3 feet behind As Greaves was
between the outer and the inner door Leidy opened the
inner door and asked Greaves, Hubert,127 didn t you
just steal my carpet? Greaves replied that he did not
steal any carpet and that Leidy should ask Gibbons
about the carpet Leidy repeated this accusation several
times, referring to Greaves incorrectly as Hubert' each
time Greaves repeated that the carpet concerned Gib
bons and that he had just been helping Gibbons with it
Gibbons interceded telling Leidy that he should talk to
him about the carpet Leidy repeated three times that
Gibbons should be ashamed Gibbons repeatedly denied
having stolen the carpet and told Leidy that Scales had
known about the carpet, discarded from apartment 1623
Leidy persisted that Gibbons had told Greaves to steal
his carpet repeating this too, several times Greaves told
Leidy that they had not taken his carpeting 128 Leidy re
126 Ford had done this on his own initiative
127 As noted Greaves given name is Clarence
128 Leidy apparently also had stored some carpeting in the residence
basement for his own use
977
fused Greaves offer to take him downstairs to prove that
the carpet Leidy had accused them of stealing was still
there telling Greaves repeatedly that he had stolen the
carpet Leidy also repeatedly told Gibbons that he
should be ashamed of himself After declaring that the
matter would not end like this, Leidy returned to his
office which was located near the front doors
Gibbons and Greaves then went to the subbasement
office of their supervisor, Scales, where they found
Victor Luchak, a maintenance employee then substitut
ing as supervisor for Scales who was vacationing at
home Gibbons remained briefly in Scales office and
then returned to his worksite on the 14th floor leaving
Greaves and Luchak in the office
Shortly thereafter, Gibbons and Greaves were called
to Leidy s office Greaves testified that he arrived there
before Gibbons and found Leidy and Luchak awaiting
him As Greaves came in, Leidy told him that he was
being fired for stealing the carpet Greaves asked Leidy
to pay him his vacation pay and for his days work
When Gibons also arrived Leidy called in Betty Pas
ciutti, the bookkeeper Leidy told both men to sit He
then informed the two men that he would accept no ex
cuses, he was going to dismiss both of them for stealing
his carpet Gibbons again asserted that he had not stolen
Leidy s carpet, but that it had been taken from apartment
1623 and put into the garbage Leidy repeated that this
was his property and that Gibbons had stolen it Gibbons
responded that the insurance company had replaced the
carpet Leidy announced that he had spoken to Scales, as
Gibbons suggested, and that Scales had said he did not
know of the carpeting Leidy then told Pascuitti that the
two gentlemen s paychecks should be made ready for
them and again declared that Greaves and Gibbons were
being dismissed for stealing the carpeting Leidy then di
rected Luchak to take the men downstairs to see that
they cleaned out their lockers and, after they were paid,
to escort them out the door
As instructed Luchak accompanied Greaves and Gib
bons to their lockers in the subbasement and then waited
with them in Scales' office until they were called to the
office for their paychecks Gibbons and Greaves then
followed Luchak to bookkeeper Pasciutti's desk where
she gave them their checks and blue forms to sign After
signing the forms, they left the building, less than 30
minutes after their meeting in Leidy s office
Gibbons testified that about 2 30 p in that day he
called Housekeeping Department Supervisor Blanche
Kronnel from his home and asked if Kronnel had heard
what had happened to Greaves and himself 129 Kronnel
replied that she had heard and had spoken to Leidy who
told her that he called what they had done stealing
Kronnel told Gibbons that to ensure privacy he should
call her at home rather than on the number he had used
She gave Gibbons the telephone number in her apart
ment in the residence
Gibbons called Kronnel again at her apartment about
6 20 that evening During this conversation Kronnel re
129 Gibbons had reported to Kronnel during his first 12 1/2 years with
the Respondent ending in the summer of 1982 after which he reported
to Scales
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lated that Leidy had told her that he knew which em
ployees had subpoenas from the Labor Board and that he
wanted to fire those employees because they had given
their addresses at the hearing Kronnel also told Gibbons
that she had reminded Leidy that the carpet had been
covered by insurance which would replace it Leidy re
plied that he called the removal of the carpet stealing
Gibbons testified that between 28 June and February
1984, he called Kronnel many times at her home During
such a conversation in February 1984, Kronnel told Gib
bons that she had said to Leidy that she did not see why
he had had to dismiss Gibbons for having taken that
scrap from the garbage Leidy again answered that Gib
bons had stolen it Kronnel then told Gibbons that Leidy
repeated to her that he knew which employees had re
ceived the subpoenas from the Labor Board and that he
would like to fire those employees because they had
given the Union and the Labor Board their addresses
Gibbons further testified that early on 1 July, a few
days after his discharge, he telephoned his former imme
diate supervisor, Scales Scales told Gibbons that he was
glad to hear from him When Gibbons asked if Scales
had heard what had happened, Scales replied that he had
and was very sorry to learn of it He told Gibbons to
pray, to look for another job, and to not take the Salva
tion Army to court because no one could take the Salva
tion Army to court and win
Gibbons then asked Scales if Leidy had called him at
any time When Scales said yes, Gibbons asked what he
and Scales had said to each other Scales replied that
Leidy, during his call, asked if Scales had known about
the carpet that Greaves and Gibbons had taken out
Scales related that he had told Leidy that he had not
known about the carpet Gibbons asked Scales how he
could have told Leidy that he had not known about the
carpet According to Gibbons, Scales answered that he
had had to say no because Leidy had told him that it
was a serious case and would cost men their jobs He
told Gibbons that he had to clear himself If Gibbons and
Greaves were being fired, then maybe he, too, would
lose his job and to safeguard his position Scales had had
to tell Leidy that he had not known of the carpet
When Gibbons again asked how Scales could tell
Leidy that he did not know about the carpet, Scales
again told him to pray to look for another job and to
not take the Salvation Army to court because he would
lose Any person who takes the residence to court
always loses The conversation ended
2 The Respondents evidence
Scales testified that he first learned that Gibbons and
Greaves had been terminated on 28 June around 10 a m
when he was called at home by Leidy who asked if
Scales had given Gibbons and Greaves permission to
remove carpeting from the building Scales replied that
as far as he could recollect he had not and never had dis
cussed giving the two men carpeting Leidy told Scales
to be sure because if he had not given them permission,
Leidy was considering letting Gibbons and Greaves go
Scales repeated that he could not remember ever having
given them permission to remove carpeting from the
building and that he did not believe that he had When
Leidy repeated that Scales should be sure , Scales again
said that he did not remember ever having given Gib
bons and Greaves permission to remove carpeting from
the building Leidy reiterated that he wanted Scales to
be very sure because if Scales had not given them per
mission , they would be terminated
Scales related that , about 10 minutes later , he called
Leidy and told him that he had thought about Leidy s
question and had concluded that he definitely had not
given the two men permission to remove carpeting from
the building Leidy thanked him
Scales recalled that on 30 June, Gibbons called him at
home and asked if he had heard what had happened on
the job Scales said that he had Gibbons then told Scales
that Leidy had seen him remove carpeting from the
building and asked if they had a pass When they said no,
Leidy asked if they had permission to remove the carpet
ing Gibbons said that he had told Leidy that he thought
that Scales had given him such permission Gibbons re
ported to Scales that when Leidy announced that he was
going to terminate them, Gibbons had offered $50 if
Leidy would let him keep the carpeting Leidy refused
the offer but said that he would call Scales to see if he
had given permission to remove the carpeting Scales
told Gibbons that Leidy had made his decision and that
there was nothing he could do Scales did not answer
Gibbons point that he had given Gibbons permission to
remove the carpeting
Scales initially testified that he could not remember
having spoken to Gibbons concerning the carpeting or
the twine in March or at any other time Later in his tes
timony, Scales related that he had not given any employ
ee permission to remove carpeting from the residence
before 28 June, including Malcom Ford whom, Gibbons
reported, had done so in March
I do not find Scales to be convincing According to
Scales own account he supposedly had resolved his
doubts as to whether he had given Gibbons permission
to remove the carpeting on 28 June when he twice dis
cussed this matter with Leidy while the job futures of
Gibbons and Greaves still were being decided Yet, in
not initially remembering at the hearing whether he had
spoken to Gibbons about the carpeting before June as
was Scales original testimony, Scales brought to this
proceeding the very doubts he was supposed to have set
tied years before, at a time closer to the events in ques
tion and when more was at stake Later in the hearing
Scales again changed his testimony to conform to what
he related he had told Leidy
Accordingly, I credit Gibbons clear consistent testi
mony that, in March, he had requested and received
from Scales both permission to take the carpeting and
the twine with which to bind it I further find from Gib
bons testimony that he had delayed removing the car
peting until he could arrange for its transportation
Leidy testified that during the morning of 28 June,
while he was in his street level office near the front en
trance he saw Greaves and Gibbons carry carpeting and
padding past his window Leidy continued to watch
them and saw them put the carpeting and padding into a
van Leidy then went out the front door where he found
SALVATION ARMY RESIDENCE
kitchen employee Stephen Brown, then substituting for
the door guard 130 Leidy asked if Greaves or Gibbons
had given Brown a pass for what they had gust taken
from the building Brown replied that they had not
Just then, Greaves and Gibbons returned through the
front door Leidy asked the two men what they had
been doing with the carpeting and was told by Greaves
that he had been helping Gibbons Gibbons then told
Leidy that he had been given permission to take the car
peting and had put it in the van to be taken away In re
sponse to Leidy's further questioning, Gibbons and
Greaves admitted that they did not have a pass for the
carpeting
When Leidy asked if anyone had given them verbal
permission, Gibbons told him that he had received per
mission from Scales Leidy told the men that if they did
not have permission to take the carpeting, in his view,
they were stealing Gibbons insisted that Scales had
given him permission to take the carpeting and padding
Leidy asked them to go back to work while he checked
out their story
Accordingly, Gibbons and Greaves reentered the
building and Leidy returned to his office from where he
called Scales
Leidy told Scales of the incident concerning Gibbons
Greaves, and the carpeting and that, even though the
two men did not have a pass , they were claiming that
Scales had given them permission to take the carpeting
Scales answered that he had not given Gibbons and
Greaves permission to take the carpeting Leidy urged
Scales to be very careful and thoughtful because he was
taking this very seriously Scales repeated that he was
sure he had not granted permission to either or both of
these men to take the carpeting and padding Leidy told
Scales if that were true, the end result could be that he
might discharge those two men
Leidy then called the kitchen and summoned Stephen
Brown to his office While Brown was enroute, Leidy
typed the following on residence stationery
TO WHOM IT MAY CONCERN
I, Stephen Brown was at the front door
of The Williams Residence serving as a relief
door guard' when two employees from the mainte
nance department (Mr James Gibbons and Mr
Clarence Greaves) carried carpeting and padding
from the building These employees did not have
the required security/permission slip to remove the
items
This event happened at about 9 30 AM, on Tues
day June 28, 1983
Leidy met alone with Brown when he arrived and
asked again if Gibbons and Greaves had had permission
to take the carpeting Brown replied that there had been
no pass and that he had not asked for one Leidy told
Brown that he intended to dismiss Gibbons and Greaves,
130 Browns regular assignment was as a short order cook in the Re
spondent s dietary department However from January through June he
had been assigned to relieve the door guard during the latter s 15 minute
break periods
979
that he was concerned about the problem the Williams
Residence would have at the unemployment hearing and
that he had prepared a statement for Brown to sign He
asked if Brown would sign it After Brown read and
signed the above document both at the space where his
name appeared in the body and at the bottom, and
Leidy, too, had signed at the bottom as witness, Brown
returned to work 131
Leidy then called Acting Maintenance Supervisor
Victor Luchak and the residence bookkeeper, Betty Pas
ciutti, to his office Leidy told Luchak that he was
making a serious decision with regard to Greaves and
Gibbons and wanted to make sure that they had not been
given permission to take the carpeting and padding
Luchak told Leidy that he had not approved this Leidy
then asked Luchak to bring Greaves and Gibbons to his
office
Leidy related Pasciutti still was in his office when
Luchak returned with the two men Leidy told Gibbons
and Greaves that the carpeting was neither his nor
Scales to give The two men had no pass they had had
no permission and, as Leidy considered what they had
done to be theft, he was discharging them
Gibbons continued to insist that Scales had given him
permission to have the carpeting and Greaves maintained
that he only had been helping Gibbons Leidy told them
again that they were being fired for theft, to clean out
their lockers, to pick up their checks, and to leave the
building Leidy declared that when they returned from
the locker room, the bookkeeper would have their
checks ready The men left
Then, consistent with his stated practice, Leidy pre
pared two memoranda of that date concerning the re
spective discharges of Gibbons and Greaves In these,
131 Brown s testimony was limited by his powers of recall Although
he supposedly had witnessed the confrontation between Leidy and the
two employees outside the front door on 28 June as they were returning
to the building from the van Brown initially testified that he had seen
neither Leidy nor the van Brown s recollection was refreshed by his pre
trial affidavit so that he subsequently could remember having seen the
van but he never recalled having seen Leidy at the time and place in
question Contrary to Leidy Brown also could not remember having
signed the typewritten statement prepared by Leidy on 28 June Al
though Brown identified his signature on Leidy s typescript he could not
recall having signed that document Brown testified that the only state
ment he had signed for the Respondent had been handwritten and given
on about 5 July when he had been interviewed in Leidy s office by
Leidy and the Respondents counsel Ronald Kreismann This discrepan
cy later was clarified when the Respondents former cocounsel Margolis
testified that it had been he not Kreismann who had interviewed Brown
with Leidy in July at which time he had handwritten a transcription of
Brown s statement
Summarizing this aspect I find that in June and July Brown signed
two unworn statements respectively prepared by Leidy and Margolis
While the content of these documents emphasizes the existence of an em
ployer policy requiring that employees who would remove property
from the residence building submit passes permitting same it is noted that
both statements actually were written out by either a member or repre
sentative of management in their language and may well have exceeded
Brown s intent particularly since he had not requested such pass while
on duty at the door This observation is particularly applicable to the
above 28 June statement typed by Leidy which Brown could hardly
have refused to sign
Accordingly in evaluating their significance these documents cannot
be taken completely at face value and must be considered with other evi
dence concerning the status of such a policy
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Leidy noted that the two men were terminated for re
moving carpeting and padding from Respondents prem
ises without authorization and that they acknowledged
that they had not received permission and the authoriza
tion slips used in the Respondents security system
Leidy testified that under the Respondents Employees
Manual, theft of Salvation Army property was expressly
listed as misconduct requiring immediate dismissal Theft,
generally, exacted instant penalty and stood as an excep
tion to the general practice that employees be given
written notice of their deficiencies and opportunity to
improve before dismissal
3 The Respondents pass policy
Leidy testified that when Gibbons and Greaves were
terminated, and for at least 10 years before the Respond
ent had pursued a policy that no employees could
remove property from the residence building unless he
had a permit signed by a Salvation Army officer of su
pervisor authorizing same, t 3 2 and that failure to comply
with that policy was a material factor in the decision to
terminate Gibbons and Greaves Leidy noted that this
rule had been set forth in a notice, copies of which had
been posted permanently in specified places around the
Respondents facility at all times This notice, in relevant
part, provided
II The practice of carrying shopping bags out of
the building must stop If you have purchased some
thing in the neighborhood and have brought it into
the building, be sure you have a receipt from the
store from which you purchased the item
III If a guest has given you something and you
wish to carry it home, you must have the approval
of your supervisor and a note from the guest
IV We may not inspect bags going out every
day but we may inspect on days and at times you
least expect us to do so
If your supervisor has given you a slip to carry
something out either turn it in at the front desk or
to the guard at the door
Scales testified that the above policy not only was
known to both Gibbons and Greaves but that they had
complied with it in the past He related without contra
diction, that approximately 1 year and 7 months before
their discharges respectively, he had given Greaves a
pass to remove a television set from the residence and
Gibbons a permit to remove a television table
In addition to Stephen Brown the General Counsel
principally relies on the testimony of employee Kenneth
Harris and former door guard Earle F R Mabry to
counter the existence of an effective pass policy at the
time in question Harris i 3 3 testified that everyday from
192 At the hearing the Respondent introduced a sample Employees
Package Pass form of the type required of employees who would remove
property from the Respondents premises These passes were small pink
mimeographed slips with a line for the employees name and lines for the
contents of the package the date and the approving department head s
signature Such passes were obtainable from any supervisor
133 Hams employed by the Respondent since January 1979 in its
housekeeping department still was there at the time of the hearing
January to June he too relieved the front door guard for
20 minute periods to enable the guard to go on break
While doing this on 28 June he saw Gibbons and
Greaves in their street clothes leave the building for the
last time Harris related that he had received no instruc
tions concerning a pass policy and that although he had
seen employees take packages from the building he
never had checked the packages or informed the supervi
sor
Harris averred that, later on 28 June after Gibbons and
Greaves had departed, he first saw a notice posted in the
locker room reguiring that residents and employees have
passes to remove packages from the building He did not
see the notice again after 28 June
Earle F R Mabry i 34 testified that when he became a
security guard for the Respondent about 5 months after
starting to work at the residence, Salvation Army Briga
dier G Newton McClements in instructing him in his
duties, told Mabry that he should be aware of all people
entering and leaving the building discouraging the unde
sirables, that he should assist elderly and inform residents
at the front door and that he should check employees
leaving the building with packages claimed as given to
them by residents Such employees were required to
have passes from their supervisors for the packages they
would remove Mabry was to collect these passes and
turn them in to his supervisor Personnel Manager
Myrtle Jaynes at the end of the day
Mabry related that while employees always were re
quired to have passes to remove packages given to them
by residents, they did not have to have passes to take out
discarded items, such as things left by the incinerator As
Mabry s instructions did not enable him to determine
whether an employee was removing a gift from a rest
dent or trash from the pile, he decided this on his own
solely on the basis of whether he earlier had seen the
item by the incinerator If Mabry had not seen the article
involved near the incinerator then as far as Mabry was
concerned, it was not trash and a pass would be re
quired Although Mabry passed by the basement inciner
ator area three times a day during his lunch and break
periods and could then observe what was by the inciner
ator on those occasions, Mabry conceded that he did not
go by a second separate area in the basement apart from
the incinerator where garbage also was left for discard
but not for incineration Accordingly he did not know
what had been dumped there
Mabry described a variety of instances during the
months preceding the discharges of Gibbons and
Greaves when various specifically identified employees
removed items from the residence in the presence of
Jaynes and himself without submitting passes and with
out challenge As Mabry saw this aspect of his work, it
had been his responsibility to seek passes from employees
who sought to remove property that he regarded as sus
picious which he interpreted as items that had to be car
reed with two hands, such as small tables or furniture he
had seen at the residence
i34 Mabry was employed by the Respondent as a door guard from
June 1980 until 1 July 1983 when the Respondent engaged an outside
guard service
SALVATION ARMY RESIDENCE
It would appear from the foregoing that the Respond
ent, as a practical matter experienced difficulties in ad
ministering its pass policy Mabry through whom this
policy was largely run by virtue of his position at the
door had interpreted his duties broadly Not only was
there nothing in Brigadier McClements work instruc
tions that would have justified exempting items that
Mabry believe to have been discarded but there was an
entire second garbage disposal area apart from the incin
erator that Mabry rarely passed Also, in Mabry's ab
sence, his replacements at the door, Brown and Harris,
who had not been instructed in the pass policy had not
enforced it
Since, as Mabry testified, so much of what he did to
enforce the pass program depended on his abilities of ob
servation and recall it is relevant to note that these
qualities were suspect He related that he never saw the
conspicuously posted notices concerning the pass policy
on the bulletin boards throughout the residence and
could not recall important details concerning his separa
tion from employment at the residence, including how he
had received his final paycheck and its amount It is dif
ficult to conclude that, in enforcing the pass policy by
his method, Mabry would have been more attentive to
what was on the incinerator pile than to his final pay
check
Accordingly, noting the rather uneven way in which
Mabry, as the primarily responsible door guard, had en
forced the pass policy, which rule was ignored by his re
placements, and Mabry s testimony that he and Jaynes
had permitted substantial numbers of employees to
remove items from the residence building without chal
lenge I conclude that while the Respondents rule re
quiring passes in fact had been promulgated and posted,
operationally, it had not been uniformly or effectively
enforced
4 The discharges-discussion and conclusions
The General Counsel and the Union contend that Gib
bons and Greaves were unlawfully discharged for their
union sympathies and for activities against a background
of employer conduct violative of the Act, some of which
had been directed specifically against Greaves 135
The Respondent's violations of the Act found above
were numerous important and pervasive including
direct and implied threats to close its facility should the
Union be selected, with attendant job loss Some of the
most serious of these violations which approximated 19,
were deliberately repeated before revolving assemblies of
employees so that the Respondents unlawful statements
would be heard by virtually all the Respondents bar
gaining unit employees These violations have been ex
tensively discussed, listed in summary and need not be
repeated here
Also, in agreement with the General Counsel, it has
been found above that Gibbons had received prior oral
195 It has been found above that in the weeks before the election the
Respondent through Leidy violated Sec 8(a)(1) of the Act by interro
gating Greaves about the Union and on another occasion by denying
Greaves request for a pay increase while blaming the Union for so
doing
981
permission from Scales to remove the carpeting, that the
carpeting which from samples introduced, appeared
stained worn and in poor condition was of dubious
value and that the policy requiring passes had not been
effectively enforced The General Counsel argues from
these considerations including the Respondents overall
pattern of unlawful conduct, that the reasons given for
the two discharges were pretextual and that Greaves and
Gibbons actually were terminated because of their union
activities and/or sympathies 136
Applied here, the threshold issue under Wright
Line, 137 is whether the General Counsel has made a
prima facie showing that the union activities and/or sym
pathies of Gibbons and Greaves were motivating factors
in their termination a month after the representation elec
tion in which the Respondent had been successful I find
that such a prima facie case has not been established
The record contains no evidence that the Respondent
had known of Gibbons' union activities or sympathies
and, as indicated, the union activities of both Gibbons
and Greaves were quite limited Each discreetly had
signed a privately received authorization card, and Gib
bons had delivered his card and that of Greaves to the
Union on separate occasions Neither man otherwise had
been active on behalf of the Union and the Respondent,
for all its infractions found here, did not terminate or un
lawfully discriminate against any of its other employees
whom it had known and addressed as leaders in the
Unions organizational drive, such as Wallace and
Ramos
The Respondent also did not discriminatorily disci
pline any of the other unit employees who also had
signed authorization cards and who were sufficiently nu
merous to comprise a clear majority of the 72 employees,
whom it will be found below, are in the bargaining unit
While the `small plant doctrine138 may be applicable to
a facility with an employee complement of this size, Gib
bons limited union activity is insufficient to warrant
drawing a Wiese Plow inference that such activity had
been brought to the attention of the Respondents man
agement 139 Although Gibbons and Greaves, as indicat
ed by the General Counsel had been required to attend
the Respondents preelection meetings where certain un
lawful conduct occurred, this did not set them apart
from the various other employees all of whom also were
required to attend
The two prior acts of unlawful conduct directed
against Greaves before the election where Leidy reject
ed his raise request because of the Union s presence and
interrogated him about the Union, warranted a finding
that the Respondent had learned that Greaves was
136 Although Gibbons testimony that Kronnel had reported to him
Leidy s stated desire to terminate employees subpoenaed by the Board is
undisputed the General Counsel has not shown that Gibbons or Greaves
had been subpoenaed before termination to attend a Board proceeding
Gibbons in fact testified that he had not been subpoenaed
197 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert
denied 455 U S 989 ( 1982) approved in Transportation Management
Corp 462 US 393 (1983)
185 Wiese Plow Welding Co 123 NLRB 616 (1959)
13e W W Grainger Inc 255 NLRB 1106 fn 4 (1981)
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
prounion, particularly in light of his response to that
effect when Leidy interrogated him
Nonetheless, the possibility that Greaves' discharge
was a premeditated result of such unlawful conduct some
6 weeks earlier is diminished by Greaves' testimony that
Leidy, at the moment of confrontation at the front door
on 28 June, had repeatedly called Greaves "Hubie'
rather than by his given name , Clarence It would appear
that if Leidy had been focusing on Greaves over a time
period as someone to be gotten nd of because associated
with the Union, he would have known Greaves' name
This confusion as to identify adds an element of sponta
neity to the Respondent s reaction to the removal of the
carpet, relating its conduct more closely to the events of
that day
Accordingly, noting that Gibbons and Greaves had
not been more active in supporting the Union than were
most other bargaining unit employees, that the Respond
ent did not know that Gibbons had favored the Union,
that known union activists had not been discharged or
otherwise discriminated against by the Respondent, that
the Respondent's violative conduct toward Greaves 6
weeks before, while indicating Employer knowledge of
his union sympathies, for above related reasons, seems
removed in result from his termination, and that the
timing of the discharge a month after the representation
election and 6 weeks after the violative conduct involv
ing Greaves had occurred,140 do not suffice to establish
a prima facie case that Gibbons and Greaves had been
terminated in violation of Section 8(a)(3) and (1) of the
Act because of their union activities and/or sympathies
Although, I also have found that Gibbons, in fact, earlier
had obtained permission from Scales to take the carpet
ing, this approval was not known to Leidy when he ter
minated the two men as Scales specifically denied this to
Leidy when Leidy had called him to verify Gibbons' ac
count before taking disciplinary action Leidy s actions in
terminating Gibbons and Greaves therefor were predi
cated on a good faith belief acquired after an investiga
tion as thorough as the circumstances permitted, that the
two men had removed the carpeting without authonza
tion,141 and I find that these terminations were not in
violation of Section 8(a)(3) and (1) of the Act 142
14° In Zarda Bros Dairy 234 NLRB 93 97 (1978) in which an issue
was the discharge of a known union activist far more militant than
Greaves the Board declined to find a violation In so deciding the Board
relied in part on the fact that as here there had been a lapse of time
between the occurrence of the Respondents other unfair labor practices
and the employees discharge that the affected employees organizational
efforts had been dormant for about 6 weeks by the time of his termina
tion and the Respondent had no reason by then to believe that the em
ployee still was active or interested in the Union Also there was no evi
dence that the Respondent had viewed that employees union activities
with concern at that time Such factors would be even more applicable to
Greaves who had been so much less active for the Union As found the
Respondent had no established knowledge of Gibbons union activities
and/or sympathies
i41 See American Thread Co 270 NLRB 526 532 (1984) Greenhouse
Restaurant 221 NLRB 50 51-52 (1975)
142 In finding no violation it is noted that Leidy before acting had
checked with both Scales and relief door guard Brown As to the pass
policy although it has been found that the policy was ineffectively en
forced it also was concluded that the rule nonetheless existed had been
posted and had been complied with in the past by employees including
Gibbons and Greaves However the amount of weight Leidy attached to
D The Alleged Unlawful Refusal to Bargain
The size and composition of the unit As noted, in his
Board affirmed Decision and Direction of Election in
Case 2-RC-19504, the Regional Director found the fol
lowing unit appropriate for purposes of collective bar
gaining
All full time and regular part time dietary, house
keeping, maintenance and laundry employees em
ployed by The Salvation Army Williams Memorial
Residence at 720 West End Avenue, New
York, New York, but excluding all other employ
ees, clerical/reception employees, doorpersons, pro
fessional employees, guards and supervisors as de
fined in the Act
1 The challenged ballots and unit placement
At the election, the Union Petitioner originally chal
lenged the ballots of Claude Hintzen and Sidney Thomp
son on the ground that they no longer worked for the
Employer, the ballots of Sophia Neibur, Ayn Steele,
Geraldine Luciano, Hyacinth Thompson, Bill Wise,
Betty Pasciutti, Theodore Boyd, Maureen Carroll, Edna
Strasburg, and Teresa DuPont on the ground that they
were excludable as clerical employees, the ballots of
Florence Levy, Anita Hedlund,143 Florence Roberts,
and Bart Burton on the gound that they were not en
compassed as dietary employees because they worked in
the residence dining room, and the ballots of Mary W
Carter and Frederick Manck on the assertion that they
were not the Respondents employees within the mean
ing of the Act, but were volunteers
The Board agent challenged the ballot of Jocelyne
Castillon as her name did not appear on the voting eligi
bility list
Subsequently, the parties stipulated that 65 named em
ployees including challengee Florence Roberts, were
employed within the bargaining unit as found by the Re
gional Director in the period from 1 January to 30 June,
which figure included certain employees whose place
ment had been in issue Beyond these 65 employees
whose inclusion is agreed the Respondent when the
hearing began contrary to the General Counsel and the
Union, would have included Claude Hintzen, Frederick
Manck Bart Burton, Irene Mitchell, Mary Vester Reese
Florence Levy Teresa DuPont and 12 clerical/reception
employees in the unit 144
Subsequently, the parties entered into a series of fur
ther stipulations resolving the unit placement of most of
the pass policy is not crucial as my findings in this area do not rest on
whether the policy was followed but on whether from all evidence the
Respondent had had reasonable cause to believe that the two men had
removed its property without authorization and had acted on that belief
As the evidence resolves these issues affirmatively the fact that the car
peting involved was of small apparent value is a subjective factor unrelat
ed to the lawfulness of the discharges under the Act
i43 The spelling appears as corrected at the hearing
i44 The ballots of Mitchell and Reese were not challenged at the elec
tion but resolution of their unit status is germane to unit size and ac
cordingly as to whether the Union had majority support on 17 March
when it requested recognition and bargaining
SALVATION ARMY RESIDENCE
the employees whose status had been in dispute These
stipulated resolutions include
Jocelyne Castillon Theodore The parties stipulated that
the challenge to Jocelyne Castillon Theodore s ballot be
cause of noninclusion in the voting eligibility list was in
appropriate She had been carried on the voting list
under her unmarried name , Castillon, but had attempted
to vote under her married name, Theodore Accordingly,
in agreement with the parties, I find that Jocelyne Castil
Ion Theodore was a member of the bargaining unit and
was eligible to vote in the representation election There
for, the challenge to her ballot is overruled
Clerical/reception employees The parties stipulated that
the following 12 employees who cast challenged ballots
at the 25-26 May election were employed by the Re
spondent at the times relevant as clerical/reception em
ployees within the meaning of the Board affirmed Deci
sion and Direction of Election in Case 2-RC-19504, in
the positions set forth next to their respective names and,
therefor, under that decision should be excluded from
the bargaining unit
Sophia Niebur
Ayn Steele
Geraldine Luciano
Hyacinth Thompson
Bill Wise
Anita Hedlund
Mary W Carter
Betty Pasciutti
Theodore Boyd
Maureen Carrol
Edna Strasburg
Sidney Thompson 145
Secretary
Secretary
Receptionist
Switchboard
Switchboard/Door
Cashier
Receptionist
Bookkeeper
Office/Switchboard
Office/Switchboard
Office
Switchboard
The parties, while so stipulating, have sought to preserve
their respective positions Accordingly, the Respondent
in agreeing that the above named individuals are
clerical/reception employees and as such, are excluded
from the unit found appropriate in the Decision and Di
rection of Election continues to except to that determi
nation and to contend that the only appropriate unit also
should include the clerical/reception employees in addi
tion to the job categories that were included by the Re
gional Director The General Counsel and the Union of
course, reaffirm the correctness of the unit as found in
the Regional Directors Decision
I of course, am bound by the Board's unit determina
tion in this matter As the clerical/reception status of the
above named employees is unquestioned I find that they
should be excluded from the unit and that the challenge
to their ballots be sustained
Irene Mitchell The Union withdrew its challenge to
the ballot of dining room employee Irene Mitchell at the
hearing and now agrees that Mitchell s ballot shoud be
counted with those of the other dietary department em
ployees
146 Thompson as noted originally was challenged by the Union on
the ground that he no longer was employed The present stipulation re
solves his status Carter and Hedlund also covered by this stipulation
originally too were challenged on other grounds
983
The record shows that Mitchell, who wore the white
dietary department uniform and who reported to that de
partment 's supervisor , Catherine Dempsey , assisted elder
ly and infirm residents in the cafeteria dining section by
carrying their trays from the checkout station to the
tables and by clearing their tables after meals Occasion
ally, these duties also were performed by Burt Burton
and by Burton's part time regular replacement in the caf
eteria, Theresa DuPont, whose unit replacement will be
considered below
In accordance with the parties' agreement , the chal
lenge to Mitchell's ballot is overruled
Florence Roberts The parties, as noted, subsequently
agreed on the unit inclusion of Florence Roberts, de
scribed in the testimony as a part time dining room em
ployee who assisted Irene Mitchell in carrying trays
from the cafeteria checkout line to tables for residents
who needed such assistance and by clearing the tables,
and who filled the salt shakers Roberts is one of the
above referred 65 named employees whose placement
within the unit was stipulated
In accordance with the parties' stipulation, the chal
lenge to Roberts' ballot is overruled
Claude Hintzen and Frederick Manck In accordance
with the parties stipulations at the hearing, I find that
the challenge to the ballot of housekeeping department
employee Claude Hintzen should be overruled and his
ballot counted, but that the challenge to the ballot of
doorperson Frederick Manck be sustained on the ground
that he is in a job category excluded under the Regional
Director's Decision and Direction of Election 146
The parties do not agree on the unit placement of the
following
Mary Vester Reese Although Reese s ballot at the rep
resentation election was not challenged, the General
Counsel opposes the Respondents position that Reese is
properly within the unit, maintaining that she is a super
visor within the meaning of the Act
Reese, with the Salvation Army for more than 25
years has been at the residence since it opened in June
1966 having worked before then at other Salvation
Army facilities During the times relevant Reese as
chief cook at the residence, reported to dietary depart
ment supervisor Catherine Dempsey At the time of the
representation election the dietary department kitchen
crew consisted of two cooks including Reese three
short order cooks, including one who also performed
other tasks as directed by Dempsey three dishwashers
two pots and pans washers three to four food preparers
four to five full time and part time food servers, and an
employee who carried incoming food deliveries from the
trucks to the storage area The dining room complement
consisted of Irene Mitchell and Florence Roberts both of
whom as noted, principally assisted elderly and infirm
residents by carrying their trays and by clearing the
tables, Bart Burton and, in his absence, Teresa DuPont
146 As noted the Union originally had challenged Hintzen s ballot on
the ground that he no longer worked for the Respondent and that of
Manck on the assertion that he was a volunteer and not an employee of
the Respondent
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Reese regularly substituted for Dempsey dunng
Dempsey s absences from the residence, normally replac
ing her as head of the dietary department on Tuesdays
and Wednesdays of each week Dempsey was off, and
dunng the 4 weeks annually when Dempsey was on va
cation Leidy testified that when replacing Dempsey,
Reese did not have all of Dempsey s authority Unlike
Dempsey, Reese could not hire, fire, or evaluate employ
ees Although Dempsey s responsibilities included plan
ning menus for a week in advance, Reese did not do this
during the weeks that Dempsey was on vacation, but in
stead, this function was performed by Mrs Leidy, wife
of the residence administrator , as an unpaid assistant to
her husband Also unlike Dempsey, Reese did not attend
supervisory meetings with Leidy and department heads
where policy matters were discussed, including strategy
concerning the union s organizational drive
Leidy testified that Reese s principal authority while
acting for Dempsey was to assign work to dietary em
ployees and that Leidy had supported her in this regard
Leidy recalled that on one occasion during the summer
following the election, when Reese was filling the same
role and functions at the residence as she had earlier at
the time of the election, Reese reported to him that a
certain kitchen employee had refused to perform an as
signment she had given him Leidy went to see the em
ployee and asked if he had any problem with doing the
task that had been given to him by Reese The employee
agreed to the assignment
Although Leidy testified that the employees in the die
tary department knew their jobs and did not require sub
stantive oversight dunng Dempsey s brief absences from
the residence the record does not support Leidy in this
In addition to Reese s authority to independently
assign work, as established by Leidy the testimony of
employee Michael Wallace that Reese when substituting
for Dempsey, could call in employees to work when the
department was shorthanded and could give employees
personal days off is uncontradicted Reese also assigned
employees to work overtime, and has orally reprimanded
Wallace for coming late to work
In Aladdin Hotel 147 the Board held that
[t]he appropriate test for determining the status of
employees who substitute for supervisors is whether
the part time supervisors spend a regular and sub
stantial portion of their working time performing
supervisory tasks or whether such substitutions are
merely sporadic and insignificant [I]n Sewell Inc,
207 NLRB 325, 330-332 (1973), two relief persons
who possessed supervisory authority when they
worked, respectively, 1 day every 2 weeks and 2
out of 8 working days as substitute supervisors,
were deemed to be supervisors within the meaning
of Section 2(11)
Here the record established that Reese substituted for
Dempsey regularly and for substantial periods rather
147 270 NLRB 838 840 (1984)
than irregularly or sporadically 148 Although she did not
have Dempsey s authority to hire, fire or evaluate em
ployees or to plan menus , Reese, when replacing Demp
sey, was expected to assign work and overtime, to call in
employees when extra help was needed and to give per
sonal time off As described by Wallace, she also could
orally reprimand dietary employees for lateness In short,
when substituting for Dempsey, Reese exercised indicia
of supervisory authority within the meaning of Section
2(11) of the Act
Accordingly, noting the substantial number of employ
ees who required supervision in the dietary department,
particularly as the work done there affected health, I
find, contrary to Leidy, that the dietary department was
not self operative and that Reese who replaced Demp
sey for about 40 percent of the standard workweek ex
clusive of Dempsey s vacation time and personal days
off, was a supervisor within the meaning of Section 2(11)
of the Act and should be excluded from the unit
Florence Levy Florence Levy s ballot was challenged
by the Union as a snack bar employee The Respondent
would include Levy in the unit as a dietary department
employee and count her ballot 149
The snack bar which had no dining tables, served
light fare such as cold sandwiches pies, pastries, dough
nuts, soft drinks coffee, and tea The food dispensed in
the snack bar was prepared in the Respondents cafeteria
kitchen and the heavier items were brought to the snack
bar by kitchen employees Lighter items, such as coffee
was moved to the snack counter from the kitchen by
snack bar employees such as Levy and Bart Burton and
by volunteers who helped out at the snack bar Leidy
did not know how many volunteers worked at the snack
bar Snack bar work considered principally of stocking
the area with light foods and beverages and in selling
them over the counter
The record is clear that the snack bar which as noted
sold foodstuffs from the cafatena kitchen was an exten
sion of and related to the cafeteria operation Employee
Bart Burton who during the time in question spent most
of his workday in the cafeteria dining room also was
regularly assigned to the snack bar for 2 hours a day As
Levy sold cafateria food in the same building, transport
ing it from the cafeteria kitchen as necessary her func
tions were well integrated with those of the Respond
ent s other bargaining unit dietary employees In addi
tion, as generally attested to by Leidy, Levy shared with
the other Respondent's employees comparable pay rates
the same job benefits, and other terms and conditions of
employment and her overlapping association there with
Burton, a cafateria dining room employee Noting
Leidy s centralized control of the residence s day to day
operations and the centralized formulation of personnel
policies I find that at the time of the May election, Levy
148 Dempsey s customary work hours during her weekly 5-day sched
ules were for 6 am to 2 p in and accordingly she normally was not
present during the dining hour
149 Levy first employed by the Respondent in August 1974 worked
only in the residence snack bar where she was assigned fulltime until she
left the Respodent s employ sometime after the May representation elec
tion
SALVATION ARMY RESIDENCE
was a member of the bargaining unit and that the chal
lenge to her ballot should be overruled
Burt Burton and Teresa DuPont The Union challenged
the ballots of Bart Burton and Teresa DuPont on the
ground that they were guards The Respondent denies
this, contending that they are dietary department em
ployees assigned to work in the dining room
Leidy testified that Burton originally hired to work in
the kitchen was reassigned in January to the dining
room where he was employed before and during the
May election
Burton s dining room duties consisted of monitoring
the cafeteria line from a desk near the checkout station,
in occasionally helping elderly and infirm residents by
carrying their trays from the checkout line to their tables
and in clearing their tables after meals, as needed Rent
at the residence included two meals daily and a third
meal was available at extra cost Accordingly, Burton
was furnished with a list of residents subscribing to the
meals program many of whom were elderly If a rest
dent did not go through the cafeteria line as expected, it
was Burton s duty to alert the nursing staff so that it
could be determined whether the missing resident was
injured or ill
The monitoring aspect of Burton s job also was to
ensure that no one took a meal for which he had not
paid or took an unreasonably large amount of food with
out making additional payment Burton was expected to
report such infractions to Leidy or to Front Desk Super
visor Jaynes 150 Burton did not serve food
Unlike employees in the dietary maintenance laundry
and housekeeping departments, all of whom were re
quired to wear their respective departments distinctively
colored uniforms 151 Burton wore his own street clothes
at work except that while in the dining room, Burton
would wear a red jacket supplied by the Respondent that
bore the residence emblem on the breast Leidy ex
plained that it was residence policy that all male diners
using the cafeteria whether resident guest, or staff, were
required to wear jackets at meal times Such diners who
did not have their own could borrow a like red jacket
from the residence These red jackets similarly were
worn by the male switchboard operators, by the front
door guards and by personnel from other departments
when relieving the door guards
When not occupied in the cafeteria, Burton, as noted,
also worked 2 hours each day in the snack bar, where he
was free to remove his jacket 152 Although he continued
150 Although Leidy consistent with the Respondents position that
Burton should be included in the unit testified generally that other em
ployees also reported infractions the record is clear that this responsibil
ity belonged most uniquely to Burton and in his absence to his part time
replacement DuPont
16 1 The Respondents housekeeping department employees for exam
pie wore gray uniforms while the dietary employees wore white Main
tenance department employees worked in green Irene Mitchell who also
worked in the dining room with Burton and DuPont his replacement
also wore white
152 The Respondents employees also used the cafeteria but at differ
ent times from the residents As Burton ate with the employees he did
not monitor them as they came through the checkout line
985
his monitoring duties in the dining room, by the time of
the hearing, Burton no longer worked in the snack bar
Burton also had the only key to open and refill coin
operated soda and candy machines on the roof and in the
basement activities room
Teresa DuPont s employment record shows that she
was hired by the Respondent on 27 August 1981, in the
classification of the dining room hostess However in ac
cordance with the parties stipulation at the hearing, I
find that DuPont s duties with the Respondent were the
same as those of Burton when in the dining room where
she replaced Burton, giving him days off The Respond
ent regards DuPont as a part time employee because she
was not assigned elsewhere in the residence when not
substituting for Burton and did not work in the snack
bar Accordingly, while in the cafeteria dining room,
DuPont occupied Burton s desk to monitor the checkout
line She reported rules infractions to management alert
ed the nursing staff to residents who did not come for
meals and assisted those who needed help carrying their
trays Of those employed in the kitchen/dining room
area only Burton and DuPont wore their street clothes
at work
DuPont s personnel employment record shows that
starting 1 October 1981 she received four annual pay in
creases of from 25 to 30 cents an hour By the time of
the representation election DuPont had been Burton s
regular replacement in the dining room for at least 2
years As there is no showing that Burton, alone among
the Respondents employees, worked a 7 day week I
find that DuPont replaced Burton in the dining room
from 1/2 days each week at times when Burton was on
vacation and when he otherwise was away from work
Therefor it is concluded that DuPont was a regular
part time dining room employee of the Respondent
rather than a casual employee
In Cornell University 153 in reviewing the dining serv
ice facilities on a university campus which it considered
analogous to those operated by a hotel residence the
Board found a sufficient community of interest among
the university s cafeteria dining room and kitchen em
ployees, its snack bar employees and the employees who
operate its vending machines as to include them all in a
single unit As Burton was engaged in all of these func
tions his assignments in these areas provide no basis for
excluding him from the unit herein
However a question remains as to whether the specif
is responsibilities of Burton and DuPont in the cafeteria
which include monitoring the checkout line and report
ing to management the infractions of residents and guests
concerning the taking of extra food gave them security
functions that would warrant their exclusions as guards
The record reveals that Burton and Dupont, respective
ly ate with the other employees and did not monitor or
report employee infractions There also is no evidence
that Burton or in his place, DuPont are expected to
personally confront cafeteria patrons found to be break
ing the rules, but merely are required to report such vio
lations to the Respondents officials
153 202 NLRB 290 (1973)
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As the monitoring duties of Burton and DuPont al
though partially directed toward compliance with the
Respondents rule that cafeteria patrons should not take
food for which they had not paid did not extend to
overseeing employee compliance, and as they had no ob
ligation to confront cafeteria patrons found to be in vio
lation, I find that Burton and DuPont did not function as
guards and that, therefor, they should be included in the
unit and that the challenges to their ballots should be
overruled 154
Having sustained and the challenges to the ballots of
the 12 above named clerical/reception employees and
Fredrick Manck and having overruled the challenges to
the ballots of Claude Hintzen, Jocelyne Castillon Theo
dore, Bart Burton, Teresa DuPont, Florence Levy and
Florence Roberts and having determined that Mary
Vester Reese and Irene Mitchell, whose unit replacement
was at issue without regard to challenged ballots, respec
tively, are excluded from and included within the unit, I
find that at the time of the 25-26 May representation
election, the bargaining unit consisted of 72 employees
This number includes the 65 employees to whose inclu
sion the parties have stipulated and the seven employees
named above whom I would include either because the
challenges to their ballots should be overruled or whose
inclusion has been determined in different context
2 Majority status
The General Counsel and Union contend that the
Union has been the majority bargaining representative of
the employees in the above unit since 17 March, when
the Union made its written demand for recognition and
bargaining based on 44 signed authorization cards, that
the Respondents actions to counter the Union involved
conduct so flagrantly unlawful as to cost the Union its
majority support, that a fair election cannot be conduct
ed and that therefor a bargaining order is warranted as
the only effective remedy However in determining
whether the Union had majority employee support on
the date alleged the record shows that 5 of the 44 em
ployees who ultimately signed authorization cards for
the Union did not do so until after the Union s 17 March
request for recognition and that one such employee even
signed her card after the election These include
Employee Date of Card
Basil Blackman 2 April
Thomas F Smith 16 May
Weston Scantlebury 17 May
Stanley Whitaker 18 May
Maudrey Tull 27 May
As the five above named employees signed their au
thorization cards after the critical 17 March date and
Tull signed after the election their cards cannot be
counted to support the Union s claim for majority status
as of that date 155
154 Pedro s Restaurant 246 NLRB 567 578 (1979) Lion Country Safari
225 NLRB 969 970 (1976)
155 Holiday Inn of Perrysburg Ohio 243 NLRB 280 291 enfd in rele
vant part 647 F 2d (6th Cir 1981) A different view of the efficacy of
such cards was expressed by the administrative law judge in Clark Equip
Dolliana Brown In a portion of the record made
before Judge Ohlbaum and incorporated here by stipula
tion, the Respondent objected to receipt of Dolliana
Brown's 156 authorization card, dated 4 March on the
ground that its purpose had been misrepresented to
Brown when she signed the card and that she had not
known to what she was signing at the time
Dolliana Brown testified that she had received the
card from one of two other kitchen employees who
worked a different shift than herself Larry Brown or
Victor Brown, while seated in the residence cafeteria
The employee who gave the card asked her to sign it
When Dolliana Brown asked what the card was for, she
was told that it was for the employees to get more
money, a raise in pay Dolliana Brown explained that she
did not have her spectacles with her and was not able to
read the card for herself Accordingly, she was shown
where to sign the card and did so
In NLRB v Gissel Packing Co 157 in weighing the cir
cumstances under which authorization cards are signed,
the Supreme Court found that
Employees should be bound by the clear language
of what they sign unless that language is deliberate
ly and clearly canceled by a union adherent with
words calculated to direct the signer to disregard
and forget the language above his signature
In the present matter, the only testimony concerning
the signing of Dolliana Brown s card was her own
Noting that she incorrectly was told at the time that the
card s purpose solely was to obtain a pay raise, that she
could not read the card without her missing spectacles,
and that she was not advised that the card might be used
in connection with a union, either as a designation of
bargaining agent or as a vehicle for getting an election,
there is no reason for finding the card to be a valid union
designation Accordingly Dolliana Brown s card is not
counted in determining the Union s majority status 158
Kenneth Harass Housekeeping department employee
Kenneth Harris identified his authorization card but in
his early testimony stated several times that notwith
standing the 13 March date shown on his card, he actual
ment Co 278 NLRB 498 (1986) who found that cards signed after the
Union s demands for recognition were valid union designations that
should be counted towards establishing the Union s majority on grounds
that the Union s request for recognition was continuing and as the mdi
viduals named on the cards also appeared on a stipulated voting eligibil
ity list However as the Board in its decision in Clark Equipment Co
supra did not agree that a bargaining order was warranted it specifically
found it unnecessary to address the validity of the authorization cards
used to establish majority support It therefor appears that the Board re
mains unwilling to count such subsequently signed cards toward the
Union s majority status at least as of the critical date when majority was
asserted and recognition requested The present matter also is distinguish
able from Clark Equipment in that here there was no stipulated voting
eligibility list
156 Brown a dietary department employee was assigned to the kitch
en
157 395 U S 575 606 (1969) In Gissel Packing Co the Supreme Court
approved Board law on determining the validity or invalidity of authori
zation cards set forth in Cumberland Shoe Corp 144 NLRB 1268 (1963)
enfd 351 F 2d 917 (6th Cir 1965) and reaffirmed in Levi Strauss & Co
172 NLRB 732 (1968)
16 8 Cf Keystone Pretzel Bakery 242 NLRB 492 493-494 (1979)
SALVATION ARMY RESIDENCE 987
ly had signed it on 11 March Later, before leaving the
witness stand, Harris recalled that he in fact had signed
the card on the date shown, 13 March Although Harris'
difficulty in recalling this and other events, and his self
contradictions rendered his testimony uneven and less re
liable Harris testimony verifying his authorization card
is uncontradicted and his card is accepted as a valid des
ignation as of 13 March
Conclusions as to the Union s majority status
It has been found above that the authorization card
signed by employees Basil Blackman , Thomas F Smith,
Weston Scantlebury, Stanley Whitaker, Maudrey Tull
and Dolliana Brown should not be counted in establish
ing the Union s majority status as of 17 March Howev
er, even with these exclusions the record contains the
signed and dated valid authorization cards of 38 other
employees by that date
Accordingly, I find that by the critical date of 17
March, as of when the complaint alleges that the Union
had achieved majority status and made its written re
quest for recognition and bargaining for the 72 employ
ees in the bargaining unit, 38 employees, a majority, had
freely authorized the Union to represent them by signing
unequivocal authorization cards 159
tices 5 Thus the Court placed its approval on the
Board's us of a bargaining order in less extraordi
nary' cases where the employers unlawful conduct
has a `tendency to undermine [the Union s] majori
ty strength and impede the election processes 6
The Court indicated that when the unfair labor
practices are less flagrant and the union at one time
had a majority support among the unit employees
the Board may consider
the extensiveness of an employers unfair prac
tices in terms of their past effect on election con
ditions and the likelihood of their recurrence in
the future If the Board finds that the possibility
of erasing the effects of past practices and of en
sunng a fair election (or a fair run) by the use of
traditional remedies, though present, is slight and
that employee sentiment once expressed through
cards would, on balance, be better protected by a
bargaining order, then such an order should
issue 7
Gissel supra at 613-614
6 1d at 614
7 Id at 614-615
3 The applicability of a bargaining order
It has been found that on 17 March the Union repre
sented at least 38 of the Respondents 72 bargaining unit
employees-hence a majority-by virtue of the employ
ees execution of authorization cards which, on their
face, duly designated the Union as their exclusive repre
sentative for purposes of collective bargaining with the
Respondent Therefor, it was concluded that the Union
had been validly selected by a majority of the Respond
ent s employees as their exclusive bargaining represents
tive in what the Board has determined to be the appro
priate unit It is not controlling that the Union thereafter
may have lost its majority status for it must be presumed
that but for the Respondent's unfair labor practices, ma
jority status would have been retained
In considering whether a bargaining order was war
ranted to remedy a Respondents unfair labor practices
the Board, in its recent decision in Koons Ford of Annap
ohs, 160 again stated the applicable rule of NLRB v Gissel
Packing Co 161
In Gissel, the Court delineated two types of situa
tions where bargaining orders are appropriate (1)
exceptional cases marked by outrageous and
pervasive unfair labor practices and (2) less ex
traordinary cases marked by less pervasive prac
169 The authorization cards obtained by the Union included blank lines
for the employees name social security number address occupation
wage sex the Employer Employers address and date The cards text
shown below was followed by an employee signature line
I hereby request and accept membership in the Production and
Sales District Council HERE AFL-CIO Local 517-S and des
ignate and authorize it to represent me in collective bargaining in all
matters relating to my wages hours and conditions for employment
All information will be held strictly confidential
160 282 NLRB 506 (1986)
161 395 U S 575 (1969)
In finding that a bargaining order is warranted in the
present matter, I conclude that the Respondents unfair
labor practices would come under the second Gissel cate
gory, described above
From April to the time of the 25 and 26 May represen
tation election, there were approximately 19 instances182
in which the Respondents officials and representative
including Major Leidy, the residence administrator the
deputy administrator, Major Garrel the dietary depart
ment supervisor Catherine Dempsey, and the mainte
nance supervisor Charles Scales and its attorney Ken
neth A Margolis, respectively, either threatened employ
ees with closure and/or sale of the residence facility with
appurtenant job loss, threatened more onerous working
conditions and changes in work rules threatened job loss
by contracting out employees work and the layoff of
certain employees, placed the onus on the Union for re
fusing to grant requested pay increases interrogated em
ployees about their union sympathies and activities, those
of other employees, the content of their Board affidavits,
and the Union s organizational campaign declared the
futility of selecting the Union as bargaining represents
tive created an impression of surveillance of employee
union activities accused the Union of belonging to the
Mafia solicited an employee to induce other employees
to vote against the Union, and solicited employee griev
ances about pay
The most serious of the threats were those of
closure/or sales of the residence facility which threats
were made directly by Leidy, Scales, and Dempsey, and
were implied by Garrel during the height of the Union s
182 The 19 incident figure was derived by counting as two each mci
dent occurring at the May employee meetings that had been repeated for
the next group of employees and by adding such totals to those violations
that happened only once
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
campaign The most ornately detailed of these was Gar
rel s implied threat to close, made during his explanation
of slides illustrating the closing of the unionized Even
tide Nursing Home while he had been in charge and his
further account of how the Salvation Army had recycled
that facility to its nonunion Harbor Light detoxification
program, which employed no Eventide employees To
emphasize this point, Garrel showed slides of the starkly
vacant Eventide buildings, followed by a series of slides
protraying the building under Harbor Light and depict
ing employees who, as Garrel explained, were happy be
cause they were working So that no available relevant
employee should miss this message, Garrel s entire slide
presentation, featuring the Eventide/Harbor Light story,
was repeated at another meeting that same afternoon
before the other half of the unit
Leidy, too, was involved in these threats He not only
assisted Garrel in the Eventide/Harbor Light presenta
tion by operating the projector while Garrel talked but
independently at a different meeting threatened employ
ees that if the Union should come in and demand too
much money the Salvation Army could gust close the
residence building At yet another such meeting, Leidy
simply told employees that if the Union came in , the resi
dence would be closed Consistent with the Respondent s
pattern of pairing its employee meetings to reach all
available unit employees, these statements by Leidy, too,
were repeated so as to be heard by just about all bargain
ing unit personnel
Dietary Department Supervisor Dempsey made a simi
lar threat on a lesser scale when she told an individual
employee that if the Union came in, there was a chance
that the Salvation Army would sell the Williams Resi
dence building Just a week before this, after the employ
ee to whom this remark was made had lost time from
work because of attendance at a Board representation
case hearing, Dempsey unlawfully told the employee
that things were going to be rougher now for him be
cause (the Respondents officials) were going to be
watching him
Maintenance Supervisor Acales as found above,
during two conversations with a painter in his depart
ment, threatened if the Union won the election, the em
ployees work would be taken away and contracted out
that the residence would be closed and the painters
would be laid off Alternatively, it was Scales who
promised that if the Union lost the election the painters
would receive a good pay increase
Other threats of reprisal and coercive statements also
were made Leidy threatened a group of employees that
if the Union came in , the employees would lose break
time and the rules around the residence would change
Before the same group of employees, he accused the
Union of belonging to the Mafia expressed the futility of
bringing in the Union, an intent not to bargain in good
faith by declaring that if the Union became bargaining
representative he would not give it a penny and by so
liciting employee grievances concerning pay by inviting
the employees to talk to him about this rather than by
going to the Union Leidy also interrogated an employee
about the Union's organizational campaign created an
impression that another employees union activities were
under surveillance, and unlawfully solicited an employee
to attempt to get other employees to vote against the
Union In addition Leidy placed the blame on the Union
when he refused an employees request for a pay in
crease
As the Board held in Koons Ford of Anapolis 163
In determining whether a bargaining order is ap
propriate in addition to examining the severity of
the violations committed, the Board also examines
the present effects of the coercive unfair labor prac
tices which would prevent the holding of a fair
election
It is highly significant that many of the violations
present here were of an extremely serious nature
Both the courts and the Board have long recog
nized that threats of job loss (i e , plant closure, dis
charge, and layoff) because of union activity are
among the most flagrant interference with Section 7
rights and are more likely to destroy election condi
tions for a lengthier period of time than other unfair
labor practices Indeed, the natural and likely result
of the threats found here was to reinforce the em
ployees fear that they would lose employment if
they persisted in their union activity
In Midland Ross Corp v NLRB 164 the U S Court of
Appeals, for the Third Circuit agreed with the Board
that a bargaining order was warranted to remedy an em
ployer s implied threat made before a presentation elec
tion to close its plant as it had recently closed a nearby
unionized facility if the employees chose a union to rep
resent them In so concluding, the court noted that
senior employer officials had been involved and that the
threat had been communicated to a significant percent
age of the unit employees
Here, as in Midland Ross the two most senior resident
officials at Williams were involved in making the implied
threat to close and possibly to reallocate the residence's
premises Garrel then deputy administrator as noted,
made this threat while explaining the Eventide/Harbor
Light slides with the participation of Leidy the admin
strator who then was operating the slide projector Gar
rel s words to this effect were deliberately repeated
before the remaining available unit employees at a
second such session that same afternoon so that this mes
sage was heard by virtually the entire elevant employee
complement Accordingly the bargaining order prerequi
sites of Midland Ross could have been met here on the
basis of Garrel s implied threat standing alone
However, more occurred As found above Leidy
made two independent direct threats to close the facility
each before two successive meetings of employees who
had been required by the Respondent to attend and,
thereby also conveyed these threats to perhaps the
entire bargaining unit
After the election was over, the Respondent continued
its unlawful conduct Immediately after the election on
163 Supra at 5080
184 617 F 2d 977 987 (3d Cir 1980) cent denied 449 U S 871 (1980)
enfg 239 NLRB 323 (1978)
SALVATION ARMY RESIDENCE
26 May Leidy called a group of employees together and
told them, in effect, that if it were not for the Union s
continuing presence there would be no delay in discuss
ing and implementing a new wage and benefits program
Just about a year later, the Respondents counsel, Margo
Its, unlawfully interrogated two employees As the Board
noted in Long Airdox Co ,16 5
Such postelection conduct erodes the possibility of
ensuring a fair rerun election See, e g , Chromally
Mining & Minerals v NLRB, 620 F 2d 1120, 1131
fn 8 (5th Cir 1980) (postelection violations are
always relevant because they demonstrate that the
employer is still opposed to unionzation '), Laird
Printing 264 NLRB 369, 371 (1982) (postelection
violations suggest likelihood of a respondent again
engaging in illegal conduct )
The serious and extensive other violative conduct, de
scribed above, repeatedly and persistently engaged in by
the Respondents officials suggest a carefully orchestrat
ed general campaign to destroy employee support for the
Union The success of the Respondent's campaign is it
lustrated by the visible diminution of union support
during the period of the Respondents most flagrant vio
lations By 17 March, the Union had obtained at least 38
valid authorization cards out of a total of 72 bargaining
unit employees Between 2 April and 18 May 4 addition
al employees named above signed cards, raising the
Unions total preelection support to 41 employees 166
Yet at the 25-26 May election, the Union received only
30 votes 167
The impact of the Respondent's unlawful conduct
upon the Union s margin of support was such that, by
pothethically, even if all 6 ballots where the challenges,
however derived, were overruled to be opened and
counted in the Union's favor and added to the Union's
30 received votes, the Union still could not obtain the
numerical majority necessary for certification as repre
sentative
Although several years have passed since the Re
spondent s principal pattern of unlawful activity and at
least 3 years since Attorney Margolis unlawfully interro
gated two employees the Board and the court have
found that where as here, the Respondent's unfair labor
practices have been serious and pervasive and have con
tinued even after the representation election the lasting
effects of such conducts cannot be eradicated by the
mere passage of time, and that while passage of time is
regrettable, it is unavoidable and not a sufficient basis for
denying a bargaining order 168
186 277 NLRB 1157 (1985)
166 The record shows that one more employee signed an authorization
card on 27 May the day after the election had ended
167 Of the 19 ballots challenged at the election 18 challenges were by
the Union and 1 by the Board agent It has been determined that 13 of
the Union s challenges should be sustained and that the remaining 5
Union challenges and the 1 challenge by the Board agent be overruled
One of two other employees whose ballots had not been challenged but
whose unit status was indispute also was included in the unit The other
was excluded
168 Quality Aluminum Products 278 NLRB 338 (1986) Exchange Bank
264 NLRB 822 824 (1982) enfd 732 F 2d 60 (6th Cir 1984) Hedstrom
Co v NLRB 629 F 2d 305 (3d Cir 1980)
989
In Hedstrom Co supra where, as here earlier threats
of closure subsequently were exacerbated by further
unfair labor practices, the court of appeals supported the
Board s finding that the passage of time did not improve
the prospects of a fair second election The court noted
that the later unfair labor practices indicated the Re
spondent's continued vigorous opposition to the Union
and provided no reason to diminish the employees con
cern that they would lose their jobs if the Union should
win the election In the present matter, as well, the Re
spondent's acts constitute a pattern of flagrant and perva
sive coercion with lingering effects not readily dispelled
From the many serious violations found I conclude
that the possibility of ending the effects of the Respond
ent s unfair labor practices and of conducting a fair elec
tion by use of traditional remedies is slight Requiring the
Respondent simply to refrain from such conduct will not
eradicate the lingering effects of the violations and an
election would not reliably determine genuine, un
coerced employee sentiment Therefor, I find that the
employees representation sentiments expressed here
through authorization cards, would be better protected
by issuance of a bargaining order than by traditional
remedies
Accordingly, the Respondent should be required to
bargain with the Union as the duly designated represent
ative in the unit found appropriate, effective 17 March
1983 the date that the Union acquired authorization
cards from a majority of bargaining unit employees and
requested recognition 169
E Objections to the Election in Case 2-RC-19504
The Union s objections to the election closely parallel
certain of the unfair labor practice allegations set forth in
the complaint where violations have been found, includ
mg, in effect, that the Respondent at various preelection
meetings where attendance was mandatory had told em
ployees that the Respondent would lose the residence if
the Union won the election, that a Salvation Army offs
cer while showing employees pictures of a nursing
home had explained that the Salvation Army had closed
that facility after a union had won an election there and
that a Respondents officer had advised employees that if
they voted for the Respondent, the Salvation Army
would meet with them to work out their grievances
These unfair labor practices precluded the exercise of a
free and uncoerced choice in the election 170
189 Clark Equipment Co 278 NLRB 498 (1986) prominently cited in
the Respondents brief is inapplicable to whether the election here
should be set aside As described in Baton Rouge Hospital 283 NLRB 192
(1987)
170 No merit is found to the Unions further objection raised under
Peerless Plywood Co 107 NLRB 427 429 (1954) that the election should
be set aside because the Respondent had conducted a mandatonly attend
ed meeting of employees to campaign against the Union less that 24
hours before he start of the election In Peerless Plywood supra the Board
established that an election shall be set aside where an employer or
union alike has made an election speech on company time to a massed
assembly of employees within 24 hours before the scheduled time for
conducting an election However as the record shows that the last such
preelection meeting conducted by the Respondent on 24 May ended be
tween 10 15 and 10 30 a in while the election did not commence on 25
May until 1 p in there was compliance with the 24 -hour rule in Peerless
Plywood
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In view of the bargaining order found applicable, it is
recommended that the election in Case 2 -RC-19504 be
set aside and that that representation proceeding be dis
missed
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the Respond
ent s operations described in section I above have a
close intimate and substantial relationship to trade, traf
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing ccom
merce and the free flow thereof
(n) Soliciting employees to attempt to induce other
employees to abandon their support for the Union
4 The following unit appropriate for purposes for col
lective bargaining with in the meaning of Section 9(b) of
the Act
All full time and regular part time dietary, house
keeping, maintenance and laundry employees em
ployed by The Salvation Army Williams Mermorial
Residence, at 720 West End Avenue New York
New York, but excluding all other employees,
clerical/reception employees doorpersons, profes
sional employees guards and supervisors as defined
in the Act
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in com
merce within the meaning of Section 2(2), (6), and (7) of
the Act, and that the Board s exercise of jurisdiction in
this matter will effectuate the purposes and policies of
the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 The Respondent violated Section 8(a)(1) of the Act
by
(a) Directly threatening its William Memorial Rest
dence employees repeatedly with closure of that facility
if they chose the Union as their bargaining agent
(b) Impliedly threatening its Williams Memorial Rest
dence employees with closure of that facility and layoff
should they choose the Union as bargaining agent
(c) Threatening employees that, if the Union won the
election, the Respondent would take away the employ
ees jobs by contracting out their work
(d) Threatening persons employed as painters that if
the Union won the election the painters would be laid
off
(e) Threatening employees with loss of breaktime and
changes of work rules if they supported the Union
(f) Promising employees that if the Union lost the rep
resentation election employees employed in their job
classification would receive a good pay increase
(g) Telling employees that if they supported the
Union, bargaining would be futile
(h) Telling its employees that the Union belongs to the
Mafia
(i) Soliciting grievances concerning pay from its em
ployees and implying offers to adjust them in order to
induce its employees to abandon the Union
0) Creating an impression that it has engaged in sur
veillance of the union activities of its employees
(k) Blaming the Union s presence for its refusal to
grant requested pay increases and for delay in discussion
and implementing a new wage and benefits program for
its employees
(1) Coercively interrogating its employees about their
union activities, sympathies desires, the activities of
other employees, the content of their affidavits given to
the Board, and the Union's organizing campaign
(m) Threatening employees who attended Board pro
ceedings and/or who supported the Union with surveil
lance and with nonspecific reprisals
5 On or about 17 March 1983, and at all times materi
al the Union represented a majority of the employees in
the above described appropriate unit, and has been the
exclusive representative if all employees for purposes of
collectively bargaining within the meaning of Section 9
of the Act
6 The unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6)
and (7) of the Act
7 The Respondents urlawful conduct interfered with
the representation election held on 25 and 26 May
1983 171
THE REMEDY
Having found that the Respondent has engaged in cer
tarn unfair labor practices I shall recommend that it be
required to cease and desist and to take certain affirma
tive action designed to effectuate the policies of the Act
For the reasons set forth above, I shall recommend that
the Respondent be ordered on request, to bargain collec
tively with the Union as the exclusive collective bargain
ing representative of the employees in the above de
scribed bargaining unit
As a bargaining order has been found appropriate it is
recommended that the election held in Case 2-RC-19504
be set aside and that the petition in that matter be dis
missed
ORDER
The Respondent, Salvation Army Williams Memorial
Residence , New York New York its officers agents
successors , and assigns shall
1 Cease and desist from
(a) Directly threatening its Williams Memorial Rest
dence employees with closure of that facility if they
choose Local 517-S, affiliated with Production Service
and Sales District Council , Hotel Employees and Restau
rant Employees , AFL-CIO, CLC as their bargaining
representative
(b) Impliedly threatening its Williams Memorial Rest
dence employees with closure of that facility if they
should choose the Union as bargaining agent by describ
171 As noted the six challenged ballots to which the challenges have
been overruled if opened and counted were not numerically sufficient to
change the outcome of the 25-26 May election
SALVATION ARMY RESIDENCE 991
ing to them how the Salavation Army had closed and re
allocated another of its facilities after that other location
had become unionized
(c) Threatening employees that, if the Union won a
representation election, the Respondent would take away
the employees jobs by contracting out their work
(d) Threatening employees that, if the Union won a
representation election, the employees employed in their
job classifications would be laid off
(e) Threatening employees with loss of breaktime and
changes in work rules if they supported the above named
Union
(f) Telling employees that if they chose the Union to
represent them, bargaining would be futile
(g) Promising employees that, if the Union lost a rep
resentation election, workers employed in their job clas
sifications would get pay increases
(h) Telling its employees that the Union belongs to the
Mafia
(i) Soliciting grievances from its employees and imply
ing offers to adjust them in order to induce its employees
to abandon the Union
(1) Creating an impression that it was engaged in sur
veillance of the union activities of its employees
(k) Blaming the Union for its own refusal to grant re
quested pay increases and for delay in discussing and im
plementing a new wage and benefits program for its em
ployees
(1) Interrogating its employees about their union activi
ties sympathies desires, those of other employees, the
content of their affidavit given to the Board and the
Union s organizing campaign
(m) Threatening surveillance and unspecified reprisals
by telling employees who have a attended representation
hearings and who otherwise support the Union that it is
going to be rougher for them now because the Respond
ent's officials were going to watch them
(n) Soliciting employees to induce other employees to
abandon their support for the Union
(o) Refusing to recognize and, upon request, bargain
with the above named Union as the exclusive collective
bargaining representation of its employees in the follow
ing unit
All full time and regular part time dietary, house
keeping maintenance and laundry employees em
ployed by The Salvation Army Williams Mermorial
Residence, at 720 West End Avenue New York,
New York, but excluding all other employees,
clerical/reception employees, doorpersons, profes
sional employees, guards and supervisors, as defined
in the Act
(p) In any like or related manner interfering with, re
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Upon request, recognize and bargain with Local
517-S, affiliated with Production, Service, and Sales Dis
trict Council, Hotel Employees and Restaurant Employ
ees, AFL-CIO, CLC as exclusive collective bargaining
representative of its employees in the bargaining unit set
forth above, with respect to wages, hours, and other
terms and conditions of employment and, if an under
standing is reached, embody such understanding in a
signed agreement
(b) Post at its New York, New York residential facility
copies of the attached notice marked Appendix 173
Copies of the notice, on forms provided by the Regional
Director for Region 2, after being signed by the Re
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS ORDERED that the complaint be dismissed insofar
as it alleges violations of the Act not specifically found
herein
IT IS FURTHER ORDERED that the election held on 25-
26 May 1983 in Case 2-RC-19504 is set aside and that
the petition in that matter is dismissed
113 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 Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board