Valerie Manor, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 23, 2006

34-CA-011162 (N.L.R.B. Jun. 23, 2006)

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Torrington, CT

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE

VALERIE MANOR, INC.

and Cases 34-CA-11162
34-CA-11236
34-RC-2116
NEW ENGLAND HEALTH CARE
EMPLOYEES UNION, DISTRICT 1199, SEIU

Jennifer F. Dease, Esq., for the General Counsel.
Hugh F. Murray, III, Esq. and Michael C. Harrington,Esq.,
for the Respondent.
Kevin A. Creane, Esq., for the Charging Party

DECISION

Statement of the Case

HOWARD EDELMAN, Administrative Law Judge. This cases was tried in Hartford,
Connecticut on November 7−10, 2005. On August 31, 2005, a Complaint and Notice of Hearing
issued in Case No. 34-CA-11162, based upon a charge filed by the New England Health Care
Employees Union, District 1199, SEIU, herein called the Union, alleging that Valerie Manor, Inc.,
herein called Respondent, had committed over 60 violations of Section 8(a)(1), including
repeated threats of facility closure, job loss, loss of wages and benefits, futility and the
inevitability of strikes. In addition to the charge, the Union also filed numerous post-election
objections to the conduct of the NLRB election held on April 14, 2005. As the objections raised
substantial and material issues of fact, and since all but two raised issues identical or similar to
the unfair labor practices contained in the Complaint, the Objections were Consolidated with
Complaint of September 14, 2005. Based upon an additional charge filed by the Union in Case
No. 34-CA-11236, a second Complaint and notice of hearing issued on September 29, 2005,
alleging that Respondent had committed further violations of Section 8(a)(1) of the Act. On
September 29, 2005, an Order Further Consolidating Cases issued consolidating the two
Complaints and Objections in Case Nos. 34-CA-11162, 34-CA-11236 and 34-RC-2116.

Respondent filed timely Answers to the two Complaints. In its Answers, Respondent
admitted the commerce allegations, the Union’s labor organization status, the supervisory
and/or agency status of all the below named individuals. It is also admitted that it presented
certain power point presentations, meetings wherein slides were shown to employees, and that
it distributed various literature alleged to violate Section 8(a)(1) of the Act. Respondent
generally denied the commission of any unfair labor practices.

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Findings of Fact

Jurisdiction

At all material times, Respondent, a corporation with an office and place of business in
Torrington, Connecticut, herein called the facility, has been engaged in the operation of a
nursing care facility. During the 12 month period ending July 31, 2005, Respondent, in
conducting its operations described above, derived gross revenues in excess of $250,000.
During the 12 month period ending July 31, 2005, Respondent, in conducting its operations
described above, purchased and received at its facility goods valued in excess of $50,000
directly from points outside the State of Connecticut.

At all material times, Respondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act and has been a health care institution within
the meaning of Section 2(14) of the Act.

At all material times, the Union has been a labor organization within the meaning of
Section 2(5) of the Act.

At all material times, the following individuals held the positions set forth opposite their
respective names and have been supervisors of Respondent within the meaning of Section
2(11) of the Act and agents of Respondent within the meaning of Section 2(13) of the Act:

Joseph Colaci − Acting Administrator
Denise Quarles − Administrator
Maureen Markure − Assistant Director of Nurses
Lillian Ciesco − Director of Admissions
Linda Orlowski − Director of Social Services
Darryl Davis − Director of Resident Support Services
Davis Stefanitis − Chef Manager
Nancy Berube − MDS Coordinator, Head Nurse
Susan Maches − Registered Nurse
Bonny Hendrick − Registered Nurse
Tami Chevrier − Charge Nurse
Bill Thomas − Financial Director of Nursing Home
Operations, Athena Healthcare
Dee Rosetti − Employee Relations Advocate,
Athena Healthcare
Doreen Christiano − Admissions Coordinator, Brookview
Health Care Facility
Melissa Moran − Social Worker

Respondent’s facility is managed by Athena Healthcare which manages a number of
healthcare facilities including Brookview Nursing Home, also located in Torrington, Connecticut.

Credibility

I credit all of General Counsel’s witnesses.

I was impressed with General Counsel’s witnesses overall demeanor. These witnesses
were most responsive and forthright during both direct and cross examination. Moreover, they
made admissions against their interest when their cross examination conflicted with their pre-

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trial affidavits. These differences were restricted to the words “would” or “could”, which I have
found in this case that such differences were immaterial and reflected threats.

Further their testimony, especially during meetings was essentially corroborated by other
employees. For example, a number of employees testified that during the first meetings
conducted by Bill Thomas as to different large sums of money he was willing to spend to keep
the Union out. I find that the variance of the different sums of money reflect truthfulness
because over a period of months employees are likely to remember different figures. However,
the thrust of all of their testimony was that Thomas would spend any sum of money to keep the
Union out.

Moreover, all of General Counsel’s witnesses were employed by Respondent during the
course of the trial. In Conair Corporation, 261 NLRB 1189, 1266, the judge set forth:

As employees of Respondent their testimony was given at considerable risk . . . and is
not likely to be false.

The judge’s credibility findings were upheld by the Board.

If there were any inadvertent specific failures on my part to make a credibility resolution,
such credibility resolutions were implicitly set forth in my resolution and analysis of all of the
complaint violations. Amber Foods, Inc., 338 NLRB 712, 713, fn. 7.

Credibility of Respondent’s Witnesses

I found Respondent’s witnesses not credible.

Respondent witnesses, especially Joe Colaci and Bill Thomas testified in generalities.

The supervisor presenters of the slide shows had virtually no recollection of their
statements to employees between the slides, as contrasted with the specific testimony of
employees. Moreover, virtually no Respondent witness contradicted General Counsel’s
witnesses, especially in the slide show with testimony, with the exception of broad leading
questions which I have totally rejected as relevant evidence. Such leading questions by
Respondent attorneys often they unable to remember any conversations with employees were,
“Did you threaten anyone . . . did you interrogate anyone ?”, etc., to which Respondent
witnesses answered no.

Further, a number of Respondent’s witnesses did not appear at the trial to give relevant
and corroborative testimony. No explanation was given by Respondent why they did not
appear.

Detailed discussions as to the credibility of the witnesses are set forth below:

Facts of the Case

Rena Bailey is employed as a certified nurse’s assistant, CNA. She works the 3:00 p.m.
to 11:00 p.m. shift. She works at the Skyview and Meadowview sections of Valerie Manor.

Some time in late February after the Union began organizing Respondent, Bailey signed
a Union card. Shortly after signing this card she attended a meeting with Joseph Colaci and
Lillian Ciesco in the Plainview dining room. Bailey and three other employees were present.

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Colaci stated that he heard that we signed Union cards and he wished that we would ask
the Union for our cards back. He stated that he didn’t blame us for signing them. He then said
he didn’t want a union at Valerie and that he would spend a million dollars to fight it.

I find Colaci’s solicitation to ask employees for Union signed cards is a violation of
Section 8(a)(1) of the Act. Mohawk Industries, 334 NLRB 1170,1171, (2001) which states that
as a general rule, an employer may not solicit employees to revoke their union cards… in an
atmosphere where employees would tend to feel peril in revoking union cards. Such
atmosphere was created by Colaci’s statements, set forth above and below, to the effect that he
would spend as much money and do whatever was necessary to keep the Union out. I also find
this threat and similar threats described below to be violative of Section 8(a)(1). See, Gravure
Packaging, 321 NLRB, 1296, 1299, (1996), where the employer stated that he would do
everything in his power to keep the union out, also Soltech, Inc., 306 NLRB 269 272 (l992),
where the Employer stated that the company would do everything it could to assure the
company would be nonunion.

Bailey also testified that Ciesco said that in Adams House, managed by Athena, located
in a neighboring town, was down 20 beds because of the Union. She stated that she is an
admission coordinator and the first thing a loved one asks her is whether the facility is a union
facility because the don’t want to put their loved one in a union home because they felt that they
wouldn’t get proper care. General Counsel contends that this is an implied threat of loss of jobs.

General Counsel also contends that Ciesco threatened employees with a loss of
customers if they selected the Union when she informed them that the first thing potential
customers ask is whether the facility is unionized and that customers told her that they would
not put their loved ones in a union home. Ciesco’s statements thereafter linked unionization
with the loss of beds at Adams House, and that union facilities are unstable and are always
changing hands. General Counsel contends that such statements imply that the employees at
Respondent’s facility would experience the same fate. General Counsel thereafter contends
Respondent failed to show that this threat of customer loss had an objective basis indicating
probable consequences of Respondent’s control. I find no violation in view of Stanadyne, 345
NLRB No. 6, slip op at p. 5 (2005).

The Supreme Court described the balance between employer free speech rights as
codified by Section 8(c) and employees’ Section 7 rights in NLRB v. Gissel Packing Co., 396
U.S. 575, 618 (1969).

[A]n employer is free to communicate to his employees any of his general views about
unionism or any of his specific views about a particular union, so long as the
communications do not contain a ‘threat of reprisal or force or promise of benefit.’ He
may even make a prediction as to the precise effects he believes unionization will have
on his company.

In Stanadyne, Binkus, an employee and agent, explained that a striker at another
Stanadyne plant resulted in the death of a guard who was struck in the head during an
altercation with the union employees, stating:

The action we take as individuals does, at times, result in something completely
unplanned. Let’s not let any unplanned action take place here. Violence, threats,
intimidation, and a death are not things that happen just on TV or something you read
somewhere about another company. They happened at UAW locations at former
Stanadyne facilities.

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The Board held that:

To the extent that the Respondent’s message may be construed as a ‘predication’ of the
effects of unionization, in spite of its assurances to the contrary, we find that its
statements were ‘carefully phrased on the basis of the objective fact to convey [the
Respondent’s] belief as to demonstrably probable consequences beyond [its] control.’

In TNT Logistics North America, 345 NLRB No. 21 (2005), the Board stated:

With regard to the supervisor’s statement that ‘if the Union comes in we wouldn’t have a
job with Home Depot,’ we note initially that Haynes told Cook that Home Depot does not
do business with unionized carriers. No party disputes the accuracy of Haynes’
comment that Home Depot was not union friendly and did not have any union carriers, or
the testimony that the Employer’s contract with Home Depot was due to expire in
October 2005. Inasmuch as these statements are uncontroverted, we view them as
objective fact. Based on these circumstances, Haynes predicted that Home Depot
would cease doing business with the employer if the Employer’s employees selected the
Union. Home Depot’s possible actions were beyond the Employer’s control.
Furthermore, Haynes made no threats, nor were his comments interspersed with
comments against the Union. We find that, in this context, Haynes’ statement would
reasonably be understood as nothing more than an expression of personal opinion as to
what Home Depot, a client of the Employer, might do in the event of the Employer’s
unionization. Making this possibility known to employees does not constitute
objectionable conduct. Accordingly, in these circumstances, we find that Haynes’
statement conveyed his personal ‘belief as to demonstrably probable consequences
beyond [the Employer’s] control,’ based on objective fact, which is permissible under
Gissel.

Counsel for the General Counsel contends that in Stanadyne the Board stated:

Further, the speakers [of Stanadyne] repeatedly made clear that they were not
making threats or predictions about the future, but rather, presenting ‘facts and
recollections about actual events.’ By providing ‘concrete examples[s] of a negative
outcome for employees who were represented by the same union that seeks to
represent’ the Respondent’s employees, the Respondent ‘made no prediction at all.’
Manhattan Crowne Plaza, 341 NLRB No. 90, slip op. at 2 (2004).

However this paragraph was merely a further, or moreover position, and not essential to
the Board’s decision.

Accordingly, I find Ciesco’s statements are based upon objective considerations, and
upon a reasonable prediction.

Bailey also testified that Ciesco stated that if we did become union, Respondent would
be forced to strike. Ciesco did not testify as to this conversation. I credit Bailey’s testimony.

I conclude Ciesco’s statement constitutes a threat to strike and loss of jobs in violation of
Section 8(a)(1). See Heartland of Lansing Nursing Home, 318 NLRB 607, 608 (1995).

A day or so following Colaci’s appointment as Administrator of Respondent, Colaci
testified he met with the employees in the Pine room of Valerie Manor. He had a number of
meetings in the Pine room so that all the employees could appreciate his position. Colaci

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testified he told the employees at each meeting pretty much the same thing. Colaci told the
employees that it was his belief that unions did not belong in health care, and that we would
work hard to keep Valerie Manor non- union. During these meetings I would tell the employees
that I was willing to spend $100,000 to keep Valerie non-Union. Colaci testified that during
these meetings, employees asked questions about revoking their Union authorization cards.
And Colaci responded that they could go to the Union and ask for their card back.

I find by Colaci’s statement to the effect that he would do whatever he had to do to keep
the Union out, coupled with his asking his employees to get their Union cards back, again
unlawfully solicited his employees at this meeting to get their signed Union cards back in
violation of Section 8(a)(1). See Mohawk Industries, supra.

Colaci’s statement that he would anything necessary to keep the union out is also an
implied threat of unspecified reprisals. See Gravure Packaging, Soltech Inc., supra.

Colaci also told the employees that other nursing homes closed because of unions. I do
not find this to be a violation. See Stanadyne, supra.

On or about February 28, Kathy Carey, Tammy Robison, Dianne Sullivan and Carolyn
Clark attended a meeting conducted by Colaci in the Pineview dining room. About 15
employees attended the meeting.

Cary testified that Colaci stated that he heard that we were trying to bring in a union and
that if we would stop, they could talk to us about giving raises. Colaci does not deny this
statement. I credit Cary’s testimony.

I find this statement to be an unlawful promise of benefits, in violation of Section 8(a)(1).
K-Mart Corporation, 336 NLRB 455, 472.

Cary also testified that Colaci stated that Respondent would spend whatever it would
take to stop the Union. Clark testified that Colaci told the employees that he would spend
$100,000 to keep Respondent non union. Colaci did not deny this statement. I credit Cary’s
testimony.

I find these statements to constitute a threat of futility and violative of Section 8(a)(1).
Gravure Packaging and Soltech, supra.

Diane Sullivan, a CNA, testified that Colaci said that he didn’t blame us for calling the
Union, but he would like us to revoke our cards that we had signed for the Union. He then stated
that he didn’t want Valerie Manor to become a Union facility, and asked us to give the
Administrator a chance. He said that he couldn’t talk about money until this business with the
Union was over. Colaci did not deny this statement. I find Colaci tied his request for employees
to revoke Union cards with the statements above. Under these circumstances, I find that
Colaci’s statement to Sullivan about revoking her Union card is a violation of Section 8(a)(1).
Mohawk Industries, supra.

I also find Colaci’s statement that he didn’t want Respondent to be union coupled with
the statement that he couldn’t talk about money constitutes a promise of benefits and is a
violation of Section 8(a)(1). See, K-Mart Corporation, supra.

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Tammy Robison, a CNA, testified that Colaci stated that he didn’t blame us for calling
the Union. He then asked us to give him a chance and to revoke our signed Union cards. He
also said he couldn’t talk about money until after the union. Colaci did not deny this statement.

I find Colaci’s statement about revoking signed union cards is a violation of Section
8(a)(1). Mohawk Industries, supra. I also find his statement that “he couldn’t talk about money
until after the Union”, coupled with his statement about revoking the signed union cards is an
implied promise of raises once the Union is out of the picture and is violative of Section 8(a)(1).
See K-Mart Corporation, supra.

Lillian Ciesco, Director of Admissions, also spoke to a group of employees. Robison
testified that Ciesco stated that family members who were considering placing their loved ones
at Adams House were asking whether the facility was Union before they would make a decision
concerning putting their loved ones. Ciesco also said Adams House had twenty empty beds.

General Counsel contends that Ciesco’s statement clearly implies that what happened to
Adams House, which was Union, would happen to Respondent if the Union was elected. The
loss of beds would equate to the loss of employees I find Ciesco’s statements constitute lawful
predictions. See Stanadyne, supra..

As set forth above, Colaci had similar meetings with different groups of employees
concerning the advent of the Union, during the last week in February. Michelle Hudson, a CNA
testified that Colaci met with Hudson and about 12 employees in the Pineview dinning room.
She testified that Colaci told the employees he knew the employees were signing cards for the
Union and that he didn’t want a union in his building. He stated that he would pay hundreds of
thousands of dollars not to have them in his building. He then told the employees that if they
had signed Union cards they could give them back to the Union and he wouldn’t hold it against
them.

I find Colaci’s statement about his knowledge of employees signing union cards and that
he didn’t want a union in Respondent’s facility , his statement to pay hundreds of thousands of
dollars to keep the Union out constitutes an unlawful solicitation that the employees should not
sign union authorization cards or to revoke an signed cards, and is a violation of Section 8(a)(1).
See Mohawk Industries, supra. I also find Colaci’s statement that he knew about employees
signing Union cards is surveillance in violation of Section 8(a)(1).

I also find that Colaci’s statement about paying hundreds of thousands of dollars to keep
the Union out constitutes an unlawful threat of futility. See, Gravure Packaging and Soltech,
Inc., supra.

Employees Joan Champagne, Marsha Deming and Danielle Robison, kitchen
employees, met with Colaci, Joe DeVito, Administrator at Athena, and Theresa Meyers,
supervisor, sometime in late February. Champagne testified that either Colaci or DeVito said
they didn’t want the Union and that another facility owned by Athena had closed because of the
Union, and they were going to fight it. They said this fight was going to cost a lot of money and
that there wouldn’t be any money for raises. I credit Champagne’s testimony. Her testimony is
corroborative with all of General Counsel’s witnesses above.

I find no violation in connection with Colaci’s or DeVito’s statement concerning another
facility had closed because of the Union. See Stanadyne, supra. However, I do find that the
statement that “this fight,” a reference to the Union campaign, was going to cost a lot of money
and there wouldn’t be any money for raises, constitutes a threat to reduce employee benefits in

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violations of Section 8(a)(1). Pembrook Management, 296 NLRB 1226, 1239 (1989) and
Heartland Lansing Nursing Home, 307 NLRB 152, 158 (1992).

Marsha Deming, an aide, testified that Colaci told employees that he didn’t want a union
in the place and that he would spend $100,000 and that the place would close. He also stated
he would take out a second mortgage on his home to keep the Union out. Again, such
testimony is essentially corroborative with the General Counsel’s witnesses described above.

I find Colaci’s statement to be a threat to close the facility and an implied threat of
unspecified reprisals. Gravure Packaging; Soltech, Inc., supra.

With regards to the threat of closure of the facility, Respondent’s statements regarding
plant closing that might result from unionization are also evaluated within the “total context” in
which they appear, under standards established by the Supreme Court’s Gissel decision. Such
statements have sometimes, but rather seldom, been found to be predictions “based on
objective fact.” Far more commonly, the Board has deemed them coercive threats. In
Sertafilm, Atlas Microfilming Division, for example, the Board found a violation where a
supervisor told all the employees in her department that the plant would close if the employees
selected the union. See also, Highland Yarn Mills, 313 NLRB 193, 206, 209.

Robison testified that Colaci stated he heard a union was coming in and he didn’t want it
in there. He said he had stock in Valerie and if Valerie Manor were to go union his stock would
be no good. It would be devalued. He said he would fight to the end and would pay $80,000 to
$100,000 to prevent the Union from coming in and that the Union would have to start from
ground zero. Again, her testimony is corroborated by the witnesses described above.

I find this statement a threat of futility in violation of Section 8(a)(1).

Deming and Robison also testified that Colaci stated he would spend $100,000 and if
necessary he would take out a second mortgage and he would fight to the end. I find these
statements express a futility of supporting the Union and in violation of Section 8(a)(1). See,
Gravure Packaging; and Soltech Inc, supra. Moreover, Colaci’s statement that the Union would
have to start bargaining from ground zero, also violates Section 8(a)(1) given the multitude of
Section 8(a)(1) violations in this case. See, Superior Emerald Park Landfill, LLC, 340 NLRB
449, 461 (2003). I find this statement a threat of futility in violation of Section 8(a)(1). Gravure
Packaging and Soltech, Inc., supra.

Joan Champagne, a CNA, testified that either Colaci or DeVito stated that another
facility owned by Athena had closed because of the Union. I find such statement does not
violate the Act. See, Stanadyne, supra.

Darla Jacobs, a CNA, testified that supervisor Darryl Davis told her that Colaci wanted to
meet with her. Jacobs had missed the general meetings discussed above. During this meeting
Jacobs testified that Colaci said he knew the employees were upset; he knew that union cards
were being passed out, and said the Union wasn’t the answer. Colaci then stated that he would
spend 80 to $100,000 to keep the Union out, he was a shareholder, and had a mortgage, and
had bills to pay himself. There was no money, that’s all they had.

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I find Colaci’s statement that he would spend up to $100,000 to keep the Union out, that
he had a mortgage and bills to pay and there was no money, that’s all they had, to be violative
of Section 8(a)(1), an unlawful statement of futility. See, Gravure Packaging and Soltech, Inc.,
supra.

During the meetings described above neither Colaci, Ciesco or DeVito denied any of
the statements described above.

Darla Jacobs testified that she had a conversation with Bonnie Hendricks, a registered
nurse, and an admitted supervisor within the meaning of 2(11) of the Act, on or about February
26. During this conversation Hendricks told Jacobs “What do you think about the Union stuff
going on?” Jacobs testified that she was an adult, that she would hear both sides and that she
would make a decision. Hendricks then stated Athena would close the place if the Union came
in. She then told Jacobs that when she was younger she worked for a place and the union came
in and they closed it. She did not state why it was closed or the name of the facility.

Respondent did not call Hendricks as a witness.

However, I find Hendrick’s testimony that “Athena would close the place if the Union
came in” is a clear threat to close the shop and a violation of Section 8(a)(1). See Gissel
Packaging, supra and Highland Yarn Mills, 313 NLRB 193, 206, 207 (1993). I do not find her
testimony concerning closing a facility where she once worked to be a violation. See,
Stanadyne, supra.

Additionally, I find Hendrick’s statement “What do you think about the Union stuff going
on?” to be an unlawful interrogation. As General Counsel points out in her brief, such
interrogation was accompanied by an unlawful threat. Accordingly, I find such interrogation a
violation of Section 8(a)(1). See Hoffman Fuel Co., 309 NLRB 327 (1992); Rossmore House,
269 NLRB 1176 (1984), aff’d 760 F.2d 1006 (9th Cir. 1985).

Diana DuPont, a CNA, was employed by Respondent for three years working the night
shift. DuPont testified she had a discussion with Nancy Berube, an admitted supervisor, in the
Skyview section of Valerie Manor. CNA’s Ellen Dalene and Irene Pisarcyk were present.
DuPont testified that Berube asked them what they thought about the Union. DuPont recalls
there was some conversation that took place, and then Berube said “if Valerie Manor became
unionized, that Athena would sell it.” I credit DuPont’s testimony. I find such statement to be a
threat to close Respondent’s facility if the Union came in. Gissel Packaging and Highland Yarn
Mills, supra.

Berube admitted that she had a conversation with Dalene, Pisarcyk and DuPont
sometime between late February and March 7. Berube testified that she told them about an
instance where she worked in another building and it became unionized and eventually it closed
down. She did not name the facility. I find no violation in this connection. See Stanadyne,
supra.

Tammy Robison testified that after their general meeting with Colaci, she and Dianne
Sullivan and Carolyn Clarke met with supervisor Tammy Chevrier. Robison testified that
Chevrier stated Valerie Manor would never accept the Union and if the Union came in they
would sell or close the facility and we could lose our jobs. Sullivan and Clarke corroborated
Robison’s testimony. Chevrier could not recall this conversation.

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I find Chevrier’s statement is a direct threat to close Respondent’s facility if the Union
came in, and a violation of Section 8(a)(1) and (3). See Gissel Packaging and Highland Yarn
Mills, supra

Deming testified that the employees would take their breaks in an area in back of the
facility. There is a back doorway and two small picnic tables where the employees could
congregate and smoke. Deming testified that before the Union filed its petition on March 7, the
employees would sit around the two picnic tables during their break times. Deming testified that
Darryl Davis and David Steponitis, low level supervisors, would usually hang around the
doorway area. Deming testified that every time she took a break it seemed both supervisors
were present and sitting or standing around the picnic tables.

Deming admitted that Davis and Steponitis are smokers, that the area in the back
parking lot where the picnic tables are located is the only area where smoking is permitted, and
that Davis and Steponitis would smoke at the tables or by the doorway. Neither Davis or
Steponitis spoke to any of the employees during these breaks.

Steponitis admitted that he smoked either at the back door or at the picnic tables and
that this practice was the same before the Union campaign and after.

I conclude there is insufficient evidence to establish unlawful surveillance.

Post Petition

On March 7 the Union filed a petition for an election.

At some point in time after the Union began to organize the employees, Respondent
hired a labor relations consulting firm. This firm drew up well over 170 slides with short
messages as to why it was better for its employees to remain non-union, the aspects of the
collective bargaining process including strikes, and the repercussions that must be considered.
These slide shows were divided into three presentations called “Power Points.” Each
presentation lasted one week. The first presentation was called “Questions and Answers”, the
second presentation was called “Collective Bargaining” the third presentation was called
“Facts”. The slide shows lasted about an hour or so. These slide shows were conducted by
two, three or four supervisory employees who met with small groups of employees, four to
fifteen employees. The slides were projected on a large screen, easily readable. The
presenters read the slides, and between the slides there would be discussions between the
presenters and the employees; questions and answers. The meetings were mandatory. The
employees would sign in. The meetings were held round the clock each week, during working
hours. The employees were paid for the time spent during the meeting.

Unlawful 8(a)(1) Statements Made by Supervisors between Slide Show

Respondent held a power point presentation on March 22, 2005 at 1:30 p.m. The
presenters were Linda Orlowski and Theresa (Tree) Meyers. It should be noted that Orlowski
conducted a number of slide show meetings. Pursuant to Respondents direct examination
Orlowski could not recall any of the conversations with employees at any of the meetings she
conducted. Through Respondent attorney’s leading questions, Orlowski simply testified “no” as
to Respondent witnesses’ testimony relating to alleged 8(a)(1) conduct. For example,
Respondent counsel would ask a leading question like “Did you ever threaten any employees?”
The answer was always “No”, etc.

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Meyers did not testify.

Dianne Sullivan credibly testified that Orlowski stated “If we went out on an economic
strike we won’t receive pay, unemployment benefits and our health coverage would end.”
Sullivan further testified that Orlowski also stated “The Union doesn’t care about families or
residents, and that we would lose everything.” I find such statement to be a threat to lose
benefits and wages and a clear violation of Section 8(a)(1). See Pembrook Management, 296
NLRB 1226, 1239 (1989). In Pembrook, the Judge found a statement “If the Union got in all
present benefits might be lost” to be violative of Section 8(a)(1).

Sullivan also testified that Orlowski stated, “We are a family at Valerie (Respondent).
Give us six months to improve.” I find that such statement especially coupled with the above
threat of “losing everything” is an implied promise of improved benefits. See Hubbard Regional
Hospital, 232 NLRB 858, 870 (1977), enfd. in pertinent part, 579 F.2d 1251 (1st Cir. 1978).

Sullivan further testified Orlowski stated “With a Union we won’t be able to bend the
rules.”

General Counsel contends the “bend the rules” statement is violative of Section 8(a)(1).
I do not find such statement to be a violation of Section 8(a)(1). See Pembrook Management, p.
1227, supra, where the Board cited Tri-Cast, Inc., 274 NLRB 377 (1985) involving exactly the
same conduct, and concluded such conduct “is nothing more or less then permissible conduct.”

Jacobs testified that a slide show was conducted on March 23 at 10:00 a.m. and eleven
employees attended. Lillian Ciesco and Melissa Moran took turns reading the slides which were
projected on a screen. Ciesco and Moran made comments between reading the slides. Jacobs
testified that Moran said we can check the financial records with Colaci, that Respondent has no
money, and that Ciesco and Moran said that if there was a strike we “could” lose our jobs.

Moran did not testify and although Ciesco testified, she could not recall any conversation
employees raised concerning the Union or Jacobs’ testimony as set forth and described above.
Pursuant to Respondent attorney’s usual leading questions, Ciesco denied any unlawful activity,
i.e., did you promise raises, “No”, threaten discharges, etc., “No.”

I find the statements by Ciesco and Moran establish a threat of the inevitability of a strike
which would cause the employees to lose their jobs. Heartland of Lansing Nursing Home, 307
NLRB 152, 158 (1992).

In connection with the phrase “if there was a strike we ‘could’ lose our jobs.” it is well
settled that a prediction of plant closure as a possibility rather than a certainty is violative of the
Act. Dai Kichi Corp., 335 NLRB 622, 624 (2001); McDonald Land & Mining Co., 301 NLRB 463,
466 (1991). Indeed in Gissel, 395 U.S. 575, 616-620 (1969) itself, where the standards for
evaluating the lawfulness of predictions of adverse consequences based on the Union’s
appearance were formulated, that if the employer stated that a strike, “could lead to the closing
of the plant.” violated 8(a)(1) as a threat to strike. Id. at 588. Indeed past decisions have
recognized as threats statements using “could” and statements using “would.” Compare, e.g.,
Thayer Dairy Co., Inc., 233 NLRB 1383, 1388 (1977). “Our sincere belief is that if this Union
were to get in here, it . . . could work to your serious harm.” was a threat. W.E. Carlson Corp.,
346 NLRB No. 43 (2006).

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Moreover, in the instant case the alleged threat that “if there was a strike we could lose
our jobs.” was not followed by the Laidlaw reinstatement rights.1

On March 23, a meeting was conducted at 1:30 p.m. Orlowski and Jodie O’Brien
conducted this meeting. Seven employees attended this meeting.

Tammy Robison testified that Orlowski stated that we would have to pay Union dues,
and they could change the assessment of dues whenever they wanted to; that negotiations with
the Union could take two years and the parties could reach an impasse, and if it went to
impasse you could be forced to strike; you could lose your job, and your house.

Kathy Carey testified that Orlowski said they wouldn’t be able to help us with our jobs if
we had a Union, that we would have to have to start paying dues after the election, that we
would be forced to strike if the Union were elected, and that we would lose our vacations and
seniority.

Orlowski admitted that she conducted the above meeting with O’Brien but had no
recollection as to what she, O’Brien or any of the employees attending the meeting said.
Orlowski was unable to recall any questions put to her or responses she might have made to
employees. Pursuant to the usual leading questions, she denied any unlawful conduct. O’Brien
did not testify.

Robinson and Carey credibly testified negotiations with the Union could take two years
and the parties could reach an impasse. I find this statement to be a threat of futility. See
Airtex, 308 NLRB 1135 (1992). See also, Dai Kichi Corp., supra., as to “could” or “would.”

They also testified Orlowski’s statement about impasse which I found unlawful coupled
with the statement that you could be forced to strike, lose your job and your house constitutes a
clear threat that the employees would have to inevitably strike and lose benefits and their home.
See, Gissel Packaging; Heartland of Lansing Nursing Home, supra.

Hudson testified that Orlowski threatened Hudson and the other employees that “they
would have to start from the beginning.” I find such statement given the multitude of unfair labor
practices to be a threat of futility, in violation of Section 8(a)(1). See, Superior Emerald Park
Landfill, LLC, 307 NLRB 449, 460, 461 (2003).

On March 24, at 10:00 a.m., another slide show was conducted by Orlowski and Ciesco.
Eleven employees were present. Mary Roberts, a CNA, credibly testified that following the slide
show Orlowski stated that “If you vote in favor of the Union on Thursday a Union could2 take us
out on strike on Friday.” I find this a clear threat of the inevitability of strike. See Heartland of
Lansing Nursing Home, supra. Orlowski also stated that if you went on strike the facility could
be sold or closed. I find this statement is an unlawful threat to close the facility in violation of
Section 8(a)(1). See, Gissel Packaging and Sertafilm Atlas, supra. Orlowski also stated you
could lose your benefits or seniority. This threat is virtually the same threat that was made to
Roberts and Carey described above on March 23. Accordingly, I find this statement to be a
threat of loss of benefits in violation of Section 8(a)(1). See Heartland of Lansing Nursing
1 Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. F.2d (7th Cir 1969) cert denied 397
U.S. 920.
2 See discussion on “could” or “would” below.

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Home, supra; Pembrook Management, 296 NLRB 1226, 1239 (1989) and Dai Kichi Corp.,
supra.

Hudson also testified that Orlowski said that if the Union comes in we would lose our
benefits, seniority, our vacation time, and we would have to start from the beginning. I find this
statement to be a threat of loss of benefits in violation of Section 8(a)(1), a threat of futility as to
bargaining with the Union. See, Pembrook Management and Heartland of Lansing Nursing
Home, supra., and as to the threat of futility, a violation of Section 8(a)(1). See Gravure
Packaging, supra.

Employee Marsha Deming testified that Ciesco stated that outside individuals
considering placing their loved ones in Valerie Manor would call the Manor and ask if the facility
was Union and that they did not want to place their loved one in a Union home. I find
insufficient facts to establish a violation.

Ciesco also threatened employees that Union homes went out of business because they
were unionized. Ciesco cited Adams House as an example. In this connection she stated that
20 beds were down at Adams House.

I find such statements not to violative of the Act. See, Stanadyne, supra.

On March 24, at 11:30 a.m. a meeting was conducted by Nancy Berube and Tree
Meyers, three employees were present at this meeting. Diana DuPont testified that at some
point during this slide show Berube stated that if Valerie Manor became unionized the employer
would have to sell.

Berube was not questioned by Respondent’s counsel concerning this meeting. Meyers
did not testify.

I find this a clear coercive threat to close Respondent’s facility. See, Gissel Packaging
and Sertafilm Atlas Microfilming Division, 267 NLRB 682, 687 (1983).

March 28 – April 2 Meetings

During this period Respondent presented its second slide show entitled “Collective
Bargaining.”

On March 29 at 10:00 a.m. Respondent conducted its slide show. The meeting was
conducted by Linda Orlowski and Andy Sebastian, Director of Maintenance. Slides would be
read and in between slides or groups of slides Orlowski and Sebastian would answer questions
and engage in conversations with the employees between slides.

In connection with slides relating to collective bargaining Jacobs testified that during this
meeting Sebastian stated that if we go to negotiations we could lose less then we already went
in with. Orlowski stated that we could lose the benefits that we already have if the Union came
in. These benefits included vacations, sick leave, holidays, pension plans, medical insurance,
and life insurance. Jacobs testified that Orlowski without reading from the slides stated we
could lose all these benefits if the Union came in.

Orlowski testified she was unable to recall questions put to her by employees or any
responses she might have made to employees at any of the slide shows she presented.

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Pursuant to the usual leading questions put to her by Respondent’s attorney she denied that
neither she nor Sebastian made any unlawful statements.

I find Orlowski’s statements concerning the loss of benefits if the Union was elected as
the employees collective bargaining representative are violations of Section 8(a)(1). Pembrook
Management, supra, and Superior Emerald Park Landfill, 340 NLRB 449, 461 2003.

A meeting was scheduled on March 29, 1:30 p.m. and conducted by Ciesco and
O’Brien. Nine employees were present. Mary Roberts testified that this meeting was about
benefits. Both Ciesco and O’Brien read the slides and made comments in between slides.
Roberts testified that O’Brien stated that if you voted for the Union you would lose all your
benefits, for example insurance and health care, and have to start fresh.

Ciesco testified that she did not recall conducting the meetings during the week of March
28 through April 2 and that she did not recall any comments made by her co presenters.
Respondent’s attorney made the usual leading questions and solicited that neither she nor her
co presenters stated anything during these meetings that could be considered unlawful conduct.

O’Brien did not testify. I find Ciesco’s statement constitutes a threat of loss of benefits
and a violation of Section 8(a)(1). See Pembrook Management and Superior Emerald Landfill
LLC, supra.

A formal slide show meeting was held on March 31, 8:00 p.m. The meeting was
conducted by Orlowski and Meyers. Three employees attended. Bailey testified that they had a
slide show, and they talked about Unions, particularly a glass company that was Union. Meyers
said we would lose our benefits that we have now with Valerie and Athena if we decided to go
Union.

As set forth above, Orlowski was unable to recall questions put to her by employees or
any responses she may have made to employees. Again the same leading questions by
Respondent’s Attorney denied any unlawful conduct. Meyers did not testify.

I find Meyer’s statement concerning loss of benefits violates Section 8(a)(1). See
Pembrook Management and Superior Emerald Park Landfill LLC, supra.

Slide Show April 5 – 9

A formal slide meeting was conducted on April 5, 10:00 a.m. by Quarles and Orlowski
and eight employees attended. Jacobs testified that Orlowski stated we were getting wrong
information from the Union. Jacobs also testified Orlowski said 99.9% were economic and we
could lose our pay, our jobs, and all our benefits. I find this statement constitutes a threat of
loss of benefits. See, Pembrook Management, supra. I also find the inclusion of jobs in the
above threat constitutes a threat of loss of jobs in violation of Section 8(a)(1). Heartland of
Lansing Nursing Home, supra.

Orlowski could not recall any statements that she or Meyers made during this slide
show. Quarles did not testify. Pursuant to the usual leading questions by Respondent attorney
Orlowski denied any unlawful conduct.

Carey credibly testified that Sebastian stated that if we joined the Union it would be like
joining a sinking ship. Carey testified that Orlowski said we would go on strike right away and
that we would lose our benefits. I find these statements to constitute a threat to strike and a

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loss of benefits and a violation of Section 8(a)(1). See Pembrook Management and Heartland
of Lansing Nursing Home, supra.

Carey also testified that Thomas stated if the Union came in, they would not negotiate
with the Union. Thomas did not deny this statement. I find this statement is a threat of futility.
See, Superior Emerald Landfill, supra.

On April 6 at 10:00 a.m. another slide show was conducted by Bill Thomas, Doreen
Christiano and Quarles. Twelve employees were present.

Following the slide show Carey testified that Thomas stated that Brookview had laid off
22 employees because they got a Union and that 1199 didn’t care about those employees; he
stated that they had to close a unit in Brookview because they had the Union and could not fill
the beds. General Counsel contends this is an implied threat to close Respondent’s facility if
the Union wins the election. I find such statement is not a threat. See, Stanadyne, supra.

On April 6 a slide show meeting was held conducted by Thomas Christiano and Quarles.

Carey testified that Thomas told the employees at the meeting that Brookview, a nursing
home managed by Athena, laid off 22 workers because they, Brookview, was represented by
the Union. Thomas also stated that Brookview had to close a wing because of the Union and
they couldn’t fill their beds with residents because it was a Union facility. General Counsel
contends that such statements imply that what took place at Brookview would take place at
Respondent’s facility, would take place at Respondent’s facility.

For the reasons set forth above, I find no violation. See, Stanadyne, supra.

On April 6 another slide show meeting was held at 11 p.m. The meeting was conducted
by Thomas, Quarles and Christiano. Thomas told employees at this meeting that Brookview lost
two and a half million dollars since it became unionized; that it lost sick days, and vacation days,
and that Brookview laid off 22 employees and 68 beds were vacant because people did not
want to go to Brookview because it was unionized. I find that by such statements Respondent
was implying that whatever happened at Brookview would happen to Respondent’s employees
if they solicited the Union as their representative to be predictions and not loss of benefits. I find
such statements not violative. See, Stanadyne supra.

DuPont also testified that Thomas told the employees that in the past when Respondent
only received one percent from Medicare they still gave the employees a two percent raise.
Thomas also stated that if Respondent received the four percent in funds from the State of
Connecticut, it wanted to be able to use that money for the employees, instead of spending it on
lawyers and Union litigation fees. Thomas then stated there were a lot of good things that
Athena and Respondent were planning for employees, but could not discuss while the labor
union was negotiating and that if the labor union won the trial election that Athena and
Respondent would not be able to do such things. Thomas did not deny such statements.

I find this promise of benefits if the employees did not select the Union as their
representative to be unlawful and a violation of Section 8(a)(1). See Advanced Mining Group,
260 NLRB 486, 501 (1982) enfd. 701 F.2d 221 (D.C. Cir. 1983) and Toys-R-Us, 300 NLRB 188,
190.

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Carey also testified that Thomas stated if the Union came in they would not negotiate
with Union. Thomas did not deny such statement. I find such statement was a threat of futility,
and a violation of Section 8(a)(1). See Superior Emerald Landfill, supra at 461.

Champagne testified that Thomas did all the talking. Champagne testified that Thomas
said “he had worked in different homes, and they had a union, and they really didn’t make out
you know, and that some places closed where they had unions.” General Counsel contends
that such statement establishes that the employees selected the Union as their representative
Respondent would close its facility, in violation of Section 8(a)(1). I find no violation of Section
8(a)(1). See, Stanadyne, supra.

Hudson credibly testified at a meeting held during the first week in April that Thomas
stated that Respondent could not give you any more money, because they don’t have any
money to give. Thomas did not deny such statement. I find such statement implies that if the
Union was selected as the bargaining representative, bargaining would be futile EBY Brown
Co., L.P., 328 NLRB 496 (1999).

Mary Roberts credibly testified that there was a meeting with Thomas and Christiano
sometime in March or April. About 10 employees were present. Roberts testified that Thomas
stated that there is a Brookview home that got a Union in and had to lay off 22 employees who
lost vacation time. Thomas also stated that families wouldn’t place their relative in this home if it
was a Union home.

General Counsel contends that Thomas clearly implied that what happened at the
Brookview facility because of the Union would happen at Respondent’s facility. I find that
Thomas’ statement was not violative of the Act. See Stanadyne, supra.

At some point in these meetings Christiana admitted discussing the Union’s campaign
generally and told Roberts and the employees attending these meetings, that if the Union came
in they “could” lose their benefits. I find this statement is a threat of loss of benefits, in violation
of Section 8(a)(1). See, Dai Kichi Corp., 335 NLRB 622 (2001); Pembrook Management and
Heartland Lansing Nursing Home, supra.

I find in the instant case, given the vast number of Section 8(a)(1) violations, that there is
no difference between “could” or “would”. See Gissel Packaging, supra; Baddour, 303 NLRB
275 (1991) and Dai Kichi Corp, supra. Accordingly I find Christiano’s admission is a clear threat
of loss of benefits if the Union was elected as the bargaining representative. See, Pembrook
Management; Heartland of Lansing Nursing Home, and Dai Kichi Corp., supra.

On April 7 Respondent conducted another meeting at 1:30 p.m. Six employees
attended. The meeting was conducted by Quarles, Christiano and Thomas. Clarke credibly
testified Thomas stated that if the Union comes in there would be layoffs. I find this to be a clear
threat of layoff in violation or Section 8(a)(1). He also stated we could lose our benefits, sick
time, vacation time and seniority, and we would not get a 4% raise from the State. If find this to
be a clear threat of lose of benefits in violation of Section 8(a)(1). See Pembrook Management
and Heartland of Lansing Nursing Home, supra.

Several days before the election on April 14, the employees were assembled in different
groups over the course of a day. Respondent representatives, Denise Quarles Respondent
Administrator Thomas, Christiano, and Dee Rosetti spoke to the assembled groups by reading
segments of the speech designated under their name. The thrust of these speeches was to
give Denise, the new Administrator, another chance. Quarles once again pleaded to give her a

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chance, and Athena a second chance. Quarles told employees to remember that a “no” vote is
“a vote to give me one chance – 1 year − 12 months − 365 days to work with you directly to
resolve our issues and concerns. If at the end of that time you feel that you made a mistake by
voting ‘No’, you can call this union or any other union that you feel you need. All I ask is that
you give me one shot!”

Christiano told the employees to work it out together and to “Please give Denise a
chance!”

Rosetti also ended her portion of the speech with a plea to give Denise a chance and
Athena a second chance, and telling employees that they have been heard and it did not cost
them a dime.

Thomas ended his presentation by repeating his plea to give “Denise a chance…give
Athena a second chance” and telling employees that they already won, they got Respondent’s
attention and Respondent won’t “blow it again.”

Counsel for the General Counsel contends this plea for a second chance is an implied
promise in violation of Section 8(a)(1). General Counsel cites Reno Hilton Resorts Corp., 319
NLRB 1154, 1156 (1995). In this case the Board stated:

We further agree with the General Counsel that Hughes made unlawful
statements in a series of speeches to employees on November 2 (2 days before the
election). In the speeches, Hughes reminded the employees of the benefits the
Respondent had already granted (including the unlawfully dominated quality action
teams, which we discuss below), and stated:

Hilton has given you all an opportunity to demonstrate your commitment and
value. I’m asking you now to give Hilton a chance to show its commitment to you. Vote
no . . . Remember in a year from now you can bring this union, or any other union, in
here. But right now, give Hilton and give me a chance, and I’ll deliver.

The instant case establishes a constant and extensive anti-union campaign with a
multitude of Section 8(a)(1) violation as in Reno Hilton. The plea for a second chance is almost
identical to that in Reno Hilton.

In Toys R Us, 300 NLRB 188, 190 (1990), wherein the Board stated:

Viewed as a whole, the Respondent’s conduct went beyond the bounds of
acceptable campaign propaganda. Despite its disclaimers that it could not make
promises, the Respondent’s message was clear and its implied promise specific: the
Respondent asked employees to give it another chance to improve wage rates after
which the employees could reevaluate their need for union representation. Accordingly,
we find that under Color Tech Corp., above, the Respondent violated Section 8(a)(1) by
its unlawful implied promise of better wages.

See also, Advanced Mining Group, 260 NLRB 486, 501 (1982), 701 F.2d 221 (D.C. Cir.
1983).

Accordingly, I find an implied promise of benefits in violation of Section 8(a)(1).

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Roberts credibly testified that sometime between the speech, described above and the
election Christiano told CNA Roberts that “you have been here for 20 years, why are you doing
this?” She then went on to elaborate that she could lose her seniority if she selected the Union
and that she should “really think about what she was doing.”

I find these statements constitute an implied threat of loss of seniority, a benefit and
other benefits if she voted for the Union. See Pembrook Management, supra.

Michele Hudson credibly testified that Maureen Markure, Assistant Director of Nursing,
spoke to her on several occasions during the Respondent’s anti-union campaign before the
election. Markure warned Hudson that you don’t know what you are doing, “I used to work at a
union facility and the union came in and people were fired and laid off and I was one of those
people.” She warned Hudson that she should be sure of what she was doing.

Counsel for General Counsel contends Markure statement is an implied threat of
discharge or layoff.

I find such statement to be a lawful prediction. See Stanadyne, supra.

On April 14 the election was held. The Union lost the vote 57 to 51.

Jacobs testified the day after the election, Respondent held a general staff meeting in
the conference room with about 20 to 30 other employees. The meeting was conducted by
Administrator Quarles. Quarles thanked everyone for giving her a second chance and told
employees she posted information that explained that it took 7 days for the NLRB to certify the
election. Quarles said she was waiting to see if the election was going to be certified and she
was checking the fax machine to see if there was any unfair labor practices filed. Director of
Admission Ciesco was present in the meeting and asked Quarles what an unfair labor practice
was, and Quarles told employees that an example would be if Bill Thomas gave an employee
$100 and told them to vote “No”. Ciesco also asked Quarles about employees’ July raises.
Quarles said that she couldn’t talk about wages or raises until the election was resolved and it
could go unresolved for months. Valerie Manor employees normally have not received raised in
July, but normally receive raises in January.

Jacobs testified that a meeting was held on or about July 21, with day shift employees
in the Pineview dining room and was conducted by Quarles and Bill Thomas. Quarles began
the meeting by stating that she had a good news and bad news; that the good news was there
was an ice cream social that day for any staff or residents, and the bad news was that the NLRB
had filed for a hearing, and they were going forward and there was going to be a hearing.

Jacobs testified that Bill Thomas then spoke and he talked to employees about the 4
percent funding increase that would go towards wage increases that Respondent and the
employees were expecting to receive from the State of Connecticut. Thomas told employees
that they were going to get a 4% raise, but since the Union filed charges and a hearing with the
NLRB was scheduled, Respondent couldn’t give employees the raise. Thomas told employees
that he was sure that Respondent would win the hearing and then Respondent could move on
and give employees their wage increases. Thomas then stated that it was too late for
employees to drop the hearing and even if employees called the NLRB they could not stop the
proceedings. Thomas said he wished that the Union could call off the hearing and just have a
re-election next year. Ciesco, a supervisor, who was at the meeting, asked Thomas what would
happen to the 4% Respondent received from the State. Thomas replied “We have to hold onto
it.” Kathy Carey, Michele Hudson and Rena Bailey attended this meeting and heard the same

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message that employees would not receive the 4% wage increase that Respondent was
receiving from the State because of the NLRB hearing resulting from the Union filing post-
election objections and unfair labor practice charges.

Bailey testified she attended the end of this meeting and then another meeting held later
in the evening for night shift employees. At the later meeting, Thomas said that he had called
Athena and that employees were going to get the 4% increase.

About a week after this meeting, Doreen Christiano informed employees that
Respondent was going against their lawyer’s advice and taking a risk and giving employees
their 4% raise in October instead of January. Employees received a 4% wage increase in
October.

Respondent’s witnesses did not contest the testimony of General Counsel’s witnesses,
General Counsel contends Respondent violated Section 8(a)(1) when Quarles implied in the
first meeting, the day after the election, that employees would not receive wage increases
unless the election was resolved by the Union not filing objections or charges. When, Ciesco
asked about “July raises” in a meeting where Quarles was explaining that that the election
results would not be certified if the Union filed objections or unfair labor practice charges, it
provided a very public platform for Quarles to ensure that she communicated to employees that
their wages and raises were on hold unless the Union did not file objections or charges. The
fact that employees’ had not received July raises in several years makes it clear that
Respondent intended to give employees the message that no raise would come unless the
Union did not dispute the election. General Counsel cites Laidlaw Waste Systems, 307
NLRB 52.

In Laidlaw:

The complaint alleges that ‘Respondent . . . at its Rolling Meadows facility, told
employees that they would not receive a wage increase because of their union
activities.’

In or around October 1990 various employees asked members of Laidlaw’s
management whether the employees would be getting their annual pay increase. In
response, management told the employees that ‘we could not change the compensation
because it was in litigation,’ or that the wage increase ‘was tied up in court.’ Explicitly on
some occasions, and implicitly on all others, management indicated that the litigation
and court battles that it was referring to were between Laidlaw and the Union. (As noted
earlier, Laidlaw contended before both the Board and the court of appeals that the Union
should not be certified.)

Those statements by management constitute a violation of Section 8(a)(1). As
discussed in the previous part of this decision, the law by no means prohibited Laidlaw from
granting a pay increase to the employees in October 1990. By erroneously claiming that the law
did forbid such an increase, and by linking that circumstance to the Union’s presence at the
facility, Laidlaw coerced, restrained, and interfered with the employees in the exercise of the
Section 7 rights. Gupta Permold Corp., 289 NLRB 1234, 1250 (1988).

Accordingly, I find Respondent impliedly threatened to withhold wage increases because
of the Union’s filing unfair labor practices and objections.

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General Counsel further contends in July, when Respondent knew it would be receiving
a 4% funding increase from the State that would go towards employees’ raises, it again
threatened employees that it was withholding the wage increase in retaliation for the Union filing
unfair labor practice charges. In this connection Thomas clearly stated that because there was
going to be an unfair labor practice hearing, employees would not get their expected wage
increases. General Counsel contends the fact that Respondent later changed its mind and
gave employees their raises does not remedy the fact that Respondent unlawfully blamed the
Union and Union supporters for the fact that expected wage increases were being withheld.
Laidlaw, supra; Wellstream Corp., 313 NLRB 698, 707 (1994).

Accordingly, I find this to be a second implied threat to withhold wages because of the
Union activities set forth above.

It is not alleged that granting this raise is an unfair labor practice. Respondent did not
contest General Counsel’s contention in its brief.

Flyers and Slides

Section 8(c) of the National Labor Relations Act establishes that:

The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or visual form,
shall not constitute or be evidence of an unfair labor practice under any of
the provisions of this Act, if such expression contains no threat of reprisal
or force or promise of benefit. 29 U.S.C. § 158.

According to the Supreme Court, this provision establishes that in the context of an
election campaign for union certification, an employer can state to employees a prediction,
whether explicit or implied, of the effect of unionization if it is:

[C]arefully phrased on the basis of objective fact to convey an employer’s
belief as to demonstrably probable consequences beyond his control or to
convey a management decision already arrived at to close the plant in
case of unionization. If there is any implication that an employer may or
may not take action solely on his own initiative for reasons unrelated to
economic necessities and known only to him. The statement is no longer
a reasonable prediction based on available facts but a threat of retaliation
based on misrepresentation and coercion. NLRB v. Gissel Packing Co.,
395 U.S. 575, 618 (1969).

Counsel for Respondent contends that only the wording of a slide or flyer can be
considered to determine lawfulness. I find as described below that the lawfulness of a slide
must be taken in context with Respondent’s unlawful conduct.

In the instant case the credible evidence establishes that threats, express or implied, of
futility of bargaining, or plant closure, or layoffs and discharges, of losing benefits and wages,
and inevitable strikes, were taking place throughout the Respondent’s intense anti-union
campaign. Moreover, most of the threats took place during Respondent’s slide show meetings,
where the presenters would show a slide and then verbally utter clear unlawful threats to
establish what the slide really meant. Its real message, as Counsel for General Counsel puts it
so eloquently, "The power of supervisors’ direct words to employees, instead of a dry recitation

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of slide after slide, has a more powerful, long lasting and coercive effect on employees.” The
same is true for the flyers.

The Board has consistently held that in the context of alleged threats, in writing or verbal
one must consider the background of other unlawful conduct which represents a significant
context for evaluating the lawfulness of an employee’s statements through slides or flyers. See,
Mediplex of Danbury, 314 NLRB 470, 471 (1994). See also, Southern Pride Catfish, 331 NLRB
618, 619 (2002) and Reno Hilton, supra. In Mediplex the Board stated:

More generally, a significant component in the analysis of an employer’s remarks to
employees which involve protected activity is ‘the context of its labor relations setting,’
Gissel, supra, 395 U.S. at 617. In other words, the Board considers the totality of the
relevant circumstances, Id., at 589; NLRB v. Virginia Electric & Power Co., 314 U.S. 469,
477-479 (1941); see also, e.g., Harrison Steel Castings Co., 293 NLRB 1158, 1159 fn. 4
(1989) (a background of other unlawful conduct or union animus represents significant
context for evaluating the lawfulness of an employer’s statements).

And in Southern Pride the Board stated:

Moore testified that he had discussed with employees the ‘possibility’ that the
Respondent would close down if the employees chose the Union. The judge found, and
we agree, that Moore made his statements about the closings of other facilities after
unionization in the context of coercive threats, and conveyed to employees the message
that if they chose the Union they would lose their jobs.

To consider only the wording of a flyer or slide without oral or other written statements
relating to the slide or flyer would be totally unrealistic.

The slides Counsel for General Counsel would be violations are set forth in Joint
Exhibits 4 and 6:

J E 4 Slide 3

• If the union wins the election, it simply starts the bargaining
process. Proposals are exchanged and negotiated until
there is either an agreement or impasse (deadlock).

• There are many uncertainties with this process. The end
result may be that you have fewer or less benefits than you
have right now.

• But one thing is certain. By law, the union cannot force
Valerie Manor to accept a contract, or any proposal, that is
not in the facility’s best interest.

J E 4 Slide 4

The Law States…

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“The obligation does not, however, compel either party to agree to
a proposal by the other, nor does it require either party to make a
concession to the other.”

J E 4 Slide 5

The duty to bargain is only the duty
to talk – not the duty to agree.

There is no obligation to reach an
agreement.

J E 4 Slide 6

Look at what these court
cases say in support of the
National Labor Relations Act.

J E 4 Slide 7

817. For reasons to be stated we hold that while the Board does
have power under the Labor Management Relations Act, 61 Stat.
136, as amended, to require employers and employees to
negotiate, it is without power to compel a company or a union to
agree to any substantive contractual provision of a collective
bargaining agreement.

vision of their terms. It must be stressed that the duty to bargain
collective does not carry with it the duty to reach an agreement,
because the essence of collec-

“The Act does not compel agreements between employers

J E 4 Slide 8

Collective Bargaining Can result in Loss of Benefits

just as surely as an employer may increase benefits, in
bargaining, he may take them away.

J E 4 Slide 11

In view of what the law says,
what might you be will to give up
at the bargaining table?

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J E 4 Slide 12

Benefits You Have Now

• Vacation

1-4 years of service = 2 weeks paid
5-10 years of service = 3 weeks paid
10-15 years of service = 4 weeks paid
15= yeas of service = 5 weeks paid

• Sick Says – 6 days
• Personal Days – 2 days
• Holidays – 7 days
• Bereavement – 3 days

J E 4 Slide 13

Benefits you Have Now

• Jury Duty
• Pension/401K – Facility pays 1% annual W-2 gross
earnings
• Partial benefit program (Part time employees)
• No benefit program (higher hourly rate option)
• Medical Insurance
• Vision Insurance
• Dental Insurance
• Life Insurance
• Short Term Disability
• Shift Differentials

J E 4 Slide 14

Benefits You Have Now

• Annual Wage Adjustments
− July 2001 − 2.0%
– January 2002 –1.5%
– January 2003 – 3.5%
– January 2004 – 2.0%
– January 2005 – 2.0%

Total – 11%

• Recruitment Bonus
• CNA’s Sign On Bonus
• Tuition Reimbursement
• Uniform Discount

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• Annual Holiday Party

J E 4 Slide 15

Benefits You Have Now

• Cookouts
• Holiday Meals
• Personal Life Insurance
• Softball Tournament
• Holiday Gift Certificates
• Gourmet Holiday Chocolates
• Coffee Wednesdays
• Pizza/Bagel/Candy/Sunday passed out during
certain seasons
• Employee Suggestion Box

J E 4 Slide 16

You know what you have now…

So what kind of things may be on
the union’s agenda for a labor
contract?

J E 4 Slide 33

When an Employee who has left the bargaining unit returns to a
bargaining unit job, the Employer will resume deductions. This
provision, however, shall not relieve any Employee of the
obligation to make the required dues and initiation payment
pursuant to the Union by-laws in order to remain in good standing.

J E 4 Slide 34

What could a union bargain
away in order to get these
clauses in its contracts?

J E 4 Slide 51

Think about it…

Are you ready to pay union dues
in exchange for possibly the
same, or less, in wages and
benefits than you already have?

J E 4 Slide 52

And while bargaining goes on…

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What about future changes in
wage rates?

J E 4 Slide 53

Future wage rates and benefit
changes await the result of the
bargaining process.

I find each individual slide or slides put together merely express how the collective
bargaining process works, what you can gain in benefits and what you could lose, that you
would have to pay union dues for the union’s services in representation, and that future benefit
and wage rate changes assist the result of the bargaining. I find no threats or other unfair labor
practices in these slides.

J E 4 Slide 54

How long does the bargaining process take?

Weeks?
Months?
Years?
How long could you wait?

I find this slide is a threat of futility. See Airtex, 308 NLRB 1135 fn.2.

Given the slide coupled with unlawful threats in violation of Section 8(a)(1) see Casa
Duramax Inc., supra and Mediplex of Danbury, Southern Pride Catfish, supra and Reno Hilton
Resorts Corp., 319 NLRB 1154 – 1156 (1995). I find a violation of Section 8(a)(1).

The General Counsel alleges that during “Round Three” of the slide shows Respondent
presented employees the following slides, which Counsel for General Counsel contends to be
violative of Section 8(a)(1).

J E 6 Slide 75

We informed you earlier that
first contracts can take a long
time to agree upon. What
happens if the union and Valerie
Manor cannot reach an
agreement?

J E 6 Slide 76

STRIKE!

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J E 6 Slide 81

Nursing Homes Claim Sabotage
Hartford Courant 3/30/01

Records allege incidents of sabotage inside a number of facilities where union members
walked off the job on March 20.
− Critical ID bracelets removed from patients’ wrists
− Photos removed from Alzheimer’s unit
− “Do Not Resuscitate” stickers removed
− Door to oxygen tank room glued shut
− Feces smeared on a bathroom wall
− Chocolate given to diabetic residents
Residents at the Olympus Home in Waterbury allege they were told they would be
“poisoned, killed, beaten, given the wrong meds, not receive personal care and would
not have their laundry done by the replacement workers.”

J E 6 Slide 82

[Newspaper article – headline reads]
Second Nursing Home to Close

J E 6 Slide 86

If there is a strike, will you still
have your job?

Slides 75 and 76 arguably make the sort of prediction that the Board and the Supreme
Court have held constitutes an unlawful threat. The sequence of slides states that if the
Respondent and the union cannot come to an agreement in negotiations, there will be a strike.
Note the bold attention of “STRIKE” indicates there will be a strike. This message is similar to
one the employer in Gissel conveyed by means of a pamphlet. The pamphlet reminded
employees of a past strike at the company. The pamphlet stated that the employees, in
considering unionization, were “forgetting the lessons of the past.” Id. at 587-588. The
employer also circulated a pamphlet that read, “Do you want another 13-week strike?” Id. at
588. The pamphlet went on, “We have no hopes that the Teamsters Union Bosses will not call
a strike.” Id. The Court held that it was reasonable for the Board to find that these and similar
statements constituted threats. Id. at 619. It pointed out that the employer had no objective
support for the assumption that the union, which had not even begun to bargain, would have to
go on strike to achieve its goal. Id.

The Board has followed this reasoning in finding 8(a)(1) violations in cases like L.S.F.
Transportation, Inc., 330 NLRB 1054 (2000). A manager told employees that if they joined a
union he would replace them when they went on strike. Id. at 1066. The Board held that
because the employer used the term “when,” rather than “if,” the employees could reasonably
have inferred the employer was threaten is to act in such a way that would encourage a strike.
Id. While the statement might ambiguous, the Board resolved this ambiguity against the
manager. Id.

By contrast, in General Electric Company, 332 NLRB 919 (2000), the employer
circulated a flyer which, according to the Board, more clearly indicated that a strike would be a
possibility, rather than an inevitability. Id. at 919. The flyer read:

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THE REAL QUESTION

You know of the union’s position on 12-hour shifts, wages, benefits…

You know the company’s position on these very same issues…

The company and the union organizers are MILES APART!

Are you willing to see this Site possibly become another victim in long, bitter
negotiations?

VOTE NO! [Emphasis in original]

The Board had first agreed with the ALJ that the above language was threatening but
changed its ruling after the United States Court of Appeals for the District of Columbia Circuit
disagreed and remanded the case. Id. Quoting the Court, the Board noted that “the judge erred
by converting a statement of possibility into a statement of certainty.” Id. Thus, where
management discusses strikes in the context of a union election, it needs to make clear that
strikes are merely a possibility, not a certainty.

The Board’s most recent decision invoking the Supreme Court’s Gissel standard is
Stanadyne Automotive Corp., 345 NLRB No. 6 (2004). In that case, the employer held
meetings in which the CEO and two managers spoke about, among other issues, the potential
for strikes and possible consequences of such strikes if the employees were to vote to join a
union. Id. at 3-6. The Board concluded that the managers’ statements did not constitute
threats. Id. at 5-6. The employer did not imply that a strike was inevitable, since it mentioned
that there was an option apart from a strike – union could accept management’s offer. Id. at 3.
Moreover, the official who made this statement qualified it by saying that these were the only
two options that he knew of, implying that perhaps other options – options that he simply did not
know of − existed as well. Id.

By contrast, in the instant case, slide 76 gives an unqualified answer to the question of
what would occur if there were no agreement: There would be a strike. The slides fail the
Gissel test because that they present no objective facts to support the assertion that the only
option if the union and management fail to come to an agreement is a strike. As the managers
in Stanadyne admitted, going on strike is not the only option in such a case; the union could,
after all, choose to accept the management offer, even if it does not agree that the offer is fair.
One might argue that a union will not, by definition, accept an offer that it has not agreed to.
However, this is the kind of ambiguity that, as per L.S.F. Transportation, Inc. should be
resolved against the party that made the questionable statement. It would be reasonable for
employees to infer from the sequence of slides 75 and 76 that a strike is the only option if the
union and management cannot reach agreement during negotiations. And, since the
Respondent did not present objective considerations to support this prediction, it would be
reasonable for employees to conclude that the Respondent was not merely stating a possible
outcome of negotiations but, rather, threatening employees with the spectre of a forced strike
caused by surface bargaining on the part of the Respondent.

Given this threat of a forced strike, in slides 75 and 76, in light of Gissel, take on a cast
that also constitutes a threat. The Court wrote in Gissel:

[The employer’s] speeches, pamphlets, leaflets, and letters conveyed the following
message…that the ‘strike-happy’ union would in all likelihood have to obtain it potentially

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unreasonable demands by striking, the probable result of which would be a plant
shutdown, as the past history of labor relations in the area indicated . . . the Board could
reasonably conclude that the intended and understood import of that message was not
to predict that unionization would inevitably cause the plant to close but to threaten to
throw employees out of work regardless of the economic realities.

Thus I find slides 75 and 76 constitute a threat to force employees to strike and are in
violation of Section 8(a)(1).

The Flyers

Counsel for General Counsel argues in her brief that 5 flyers distributed throughout this
intense anti-Union campaign are violative of Section 8(a)(1) of the Act.

The first flyer is entitled “Brookview Facts”. As set forth above, Brookview is a nursing
home managed by Athena and located in Torrington, the same town as Respondent.

1. Brookview Facts

The flyers states that, “Brookview Employees DID NOT give the new administrator one
year to resolve issues, nor did they give Athena a second chance.” It then describes how the
census at Brookview was down since the Union organized Brookview and that one unit had
been closed. It stated, “Anyone can spin what the reason for the unit closure is, but THE FACT
is there are only 125 Residents in a facility that is a 180 bed facility! Please give DENISE a
chance and give Athena a second chance.”

With respect to the major portion of the flyer, it clearly intends to establish that what
happened at Brookview, organized by the Union, will happen at Respondent’s facility. As set
forth above, I do not find this portion of the flyer to be in violation of Section 8(a)(1). See
Stanadyne, supra.

However, with respect to that portion of the flyer which states: “please give DENISE a
chance, and give Athena a second chance.” I find that portion to be an implied promise of
benefits in violation of Section 8(a)(1). See Reno Hilton, Toys-R-Us, Advanced Mining Group
and Keystone Lamp, supra.

Counsel for General Counsel contends that a flyer entitled “Collective Bargaining” is an
implied threat of loss of jobs and/or benefits:

2. Collective Bargaining

The second flyer states in bold print next to a pair of rolling dice:

“Nothing to lose? NO . . . You have everything to lose.”

Everything goes on the bargaining table, not just what you hope to gain, but what
you have now as well.

Everything is negotiable.

There is absolutely no law that prohibits Valerie Manor from offering less than
what the employees currently have, and absolutely no law which prohibits the

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union from accepting an offer of less. It happens all the time. It’s called
collective bargaining and it’s a two-way street. Wages and benefits could go up
or down. No one knows, least of all the union pushers.

Are you ready to accept the risks of Collective Bargaining?

See Liquitane Corp., 298 NLRB at 297 (1990).

I find no violation as to that part of the flyer.

However, I do find the phrase in the bold lettering “Nothing To Lose? NO . . . You
have everything to lose.” as a threat of unspecified reprisal.

In L.W.D., Inc., 335 NLRB 241 (2001), 76 Fed. Appx. 73 (6th Cir. 2003), a letter went out
to employees stated in part:

We intend to give you many facts and opinions about unions during the next several
weeks. This is a very serious matter for you and your families, so please thing about it
carefully. Then, on the day of the election, vote as if your job depends on it.

The Board found the phrase “to vote as if your job depended on it” constituted an
unlawful threat linking the election outcome with job security. See also Casa Duramax, Inc. 307
NLRB 213, 218 (1992). In Engineered Comfort Systems Inc., 346 NLRB No. 62 (2006). The
Board held that a threat “I can’t believe you’re going Union. You want to bring the whole fucking
world down with you,” to be a threat in violation of Section 8(a)(1). Accordingly, I find
Respondent’s flyer, on its face constitute an implied threat of jobs and other unspecified
benefits, and a violation of Section 8(a)(1).

Moreover, taken together with express and implied threats of loss of jobs and benefits
throughout the entire election , the phrase “Nothing to lose? You have everything to lose.” is a
clear threat to loss of jobs and/or benefits which I find to be a violation of Section 8(a)(1). See
Mediflex of Danbury and Southern Pride Catfish, supra, and Reno Hilton Resorts Corp., 319
NLRB 1154, 1154-56 (1995).

3. Warranty Coupons

During the course of the election campaign “Warranty Coupons” were created by
Respondent and directed employees to get “guarantees” in writing from the Union. Each
coupon was a guarantee that employees were to ask the Union to sign. One guarantee coupon
said, “My union will pay for the support of you and your family and all of your family’s expenses
if you are thrown out of work because of union strikes.” Of course, the clear message was that
the Union would not be able to support the employee and his or her family if the Union called a
strike and replacements were hired. I find the statement described in the coupon is an implied
threat of job loss in the event of a strike. See Casa Duramax Inc., supra. I also find that
Respondent’s implied threat is also reinforced by Respondents anti-Union campaign. See
Mediflex of Danbury, Southern Pride Catfish and Reno Hilton Resorts Corp., supra.

Respondent’s sole contention is that the warranty “lawfully asks employees whether the
Union will pay their expenses if a strike is called.” There are no discussion or cases cited by
Respondent to support its contention.

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Accordingly I find the coupon to be a threat to force a strike and for a threat to lose
benefits in violation of Section 8(a)(1).

4. Kamikaze Election

A flyer was distributed to all employees shortly before the election. The entire flyer
states:

A kamikaze was a WW II Japanese pilot whose sole purpose was to make a
suicidal crash into his target.

A kamikaze was willing to die in his effort to somehow injure the enemy.

A kamikaze obviously had no concern about the future of himself or his family.

Out of anger and frustration, some Valerie Manor employees seem to be taking
this same attitude. But Valerie Manor’s future is your future.
Don’t be a kamikaze…Vote NO Union

The Counsel for General Counsel contends the flyer is a threat of unspecified reprisals
and cites Gilbert Woods Products Inc., 170 NLRB 1049, 1060, 1061 (1968). In Gilbert Woods, a
speech to assembled employees Gilbert stated:

When you walk into that voting booth on March 10…

That voting is kind of like a man jumping out of a building to commit suicide. In
that split second when he jumps out of the window he starts on a course from
which he can’t turn back…The same thing can happen to you when you vote in
the election…

The Board further stated:

It is also clear that coupling their voting for a union to a man committing suicide was
intended to coerce employees into voting against the Union.

The Board found these statements in violation of Section 8(a)(1).

In Reno Hilton, supra:

The judge found that Hughes’ communication was not unlawful. He cited Airporter Inn
Hotel, 215 NLRB 824 (1974), in which the Board found that the employer’s
communication, which contained language similar to the second paragraph of Hughes’
memo, was lawful.

We disagree with the judge’s conclusion. The Board has held that although
employers’ warnings of ‘serious harm’ that may befall employees who choose union
representation are not unlawful in and of themselves, they may be unlawfully coercive if
uttered in a context of other unfair labor practices that ‘impart a coercive overtone’ to the
statements. Community Cash Stores, 238 NLRB 265, 269 (1978), citing Greensboro
Hosiery Mills, 162 NLRB 1275, 1276 (1967), enf. denied in relevant part 398 F.2d 414
(4th Cir. 1968). We find such a context here. The Respondent violated the Act
repeatedly. Its unlawful acts included threatening an employee that the hotel would

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close before the Union could come in, stating that union supporters could be fired,
promising to grant benefits if the Union was rejected, threatening to withhold or take
away benefits if the Union was certified, granting benefits during the union organizing
campaign, and indicating that it would reject any union demands in order to show how
‘stupid’ unions are. The coercive effect of Hughes’ memo is apparent when it is read
against the backdrop of those unfair labor practices, which give both specificity and force
to Hughes’ otherwise vague assertions that the Union would not benefit employees,
could hurt them seriously, and might jeopardize their jobs.

In both Reno Hilton and Gilbert, the Board noted strong anti-union campaigns with lots of
8(a)(1) violations.

I find Respondent’s flyer is a threat of unspecified reprisals.

5. Unauthorized Employer Petition

In support of the Union, employees signed a petition, stating: “We’re Voting 1199 ‘YES’
pm Thursday April 14th.” The Union petition states that the employees who signed the petition,
using their first and last names support the Union and are voting “YES.” Underneath the Union
petition three rows of employee signatures appear, 25 employees in each row.

The day before the election, Respondent posted its own purported petition.
Respondent’s “petition” set forth that the employees who signed their leaflet, “be sure your voice
is heard…Vote Thursday!! For the majority of the names on this list who have rethought their
decision, we want to say THANK YOU for giving Denise ONE chance. Vote NO!”
Respondent’s leaflet had the same three rows of employee signatures appearing on the Union
“Vote Yes” petition superimposed underneath their leaflet. Respondent admitted that without
the consent of the employees, it took their signatures from the Union “Vote Yes” petition and
reproduced them on the Respondent’s “Vote No” petition.

General Counsel contends that Respondent’s failure to receive the employees
authorization or consent to use their signatures on Respondent’s flyer is a violation of Section
8(a)(1) citing Sony Corp. of America, 313 NLRB 420, 428 (1993), wherein the Board stated:

Thus, without consent, unit employees had their pictures used to give seeming approval
to the Company’s antiunion message. The employees were not asked whether they
wished to subscribe to the antiunion message and were presented with a fait accompli
after the video was shown to them and to the other unit employees. In essence, the
tape was the visual equivalent of placing the employees’ names on a written antiunion
document and circulating it to all the other unit members. The unit employees here had
the right to assist and support the Union if they so desired; Respondent interfered with
that right by using their pictures without their consent to convey an antiunion message.

The Board found similar violations of Section 8(a)(1) in Sony and L.W.D., Inc., supra. See also
Allegheny Ludlum Corp., 334 NLRB 734, 745 part 5, (2001).

Respondent contends that the employees’ use of their signature without consent on their
flyer was simply intended and understood as a parody of the Unions poster. I find that any
slide, or flyer that was shown to or distributed to employees was well calculated for employees
to abandon support for the Union and to cast their vote for Respondent. I find such contention
by Respondent that the flyer was a “parody” is certainly without merit.

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Respondent also contends that there was no testimony that was offered by General
Counsel to prove employees have given their consent for the Union’s flyer. I find such
contention irrelevant and ludicrous.

Accordingly, I find that Respondent admittedly did not get the consent of employees on
its flyer, and accordingly find a violation of Section 8(a)(1).

Petitioner’s Objection

The petitioning union filed objections to the conduct as it relates setting the election
aside. These objections were much the same as the allegations set forth in the complaint.

I find that Respondent threatened its employees with loss of benefits, loss of jobs,
threats that strikes would take place and threats of unspecified reprisals. These threats were
made during slide show meetings, other meetings with employees, all of which required
employee attendance. In addition, the employees were subjected to unlawful slides during
these meetings. Additionally, Respondent distributed unlawful flyers to all employees. Further
still, employees were threatened individually with unlawful reprisals. I find these threats
sufficient to require the election to be set aside. See Alpha Cellulose Corporation, 265 NLRB
177, 178 and 179 (1982).

In view of the multitude of threats throughout the election campaign, I find it unnecessary
to rule on two objections not covered by the complaint. One objection was the day before the
election, April 13, the alleged presence of a security guard parked by the main entrance of
Respondent’s facility gave some employees the feeling that the security was present because
there was going to be violence. The second objection was that during the election a supervisor
escorted an employee to the room where the election was taking place and opened the door so
that the employee could enter.

I find it is unnecessary to decide these objections.

Accordingly, I conclude that the election should be set aside.

Conclusions of Law

1. Respondent Valerie Manor, Inc. is an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.

2. New England Health Care Employees Union, District 1199 SEIU is a labor
organization within the meaning of Section 2(5) of the Act..

3. Respondent violated voluminous allegations of Section 8(a)(1) described below in the
Order.

Remedy

With respect to the voluminous Section 8(a)(1) violations, I shall recommend an Order
requiring Respondent to cease and desist the conduct described below.

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A petition for an election was filed by the Union on March 7, 2005 and an election was
held on April 14, 2005. The Union lost the election by a tally of ballots of 57 to 51.

Given the voluminous Section 8(a)(1) violations and the closeness of the election, I
recommend a second election be held at an appropriate time.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3

ORDER

The Respondent, Valerie Manor, Inc., its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Interrogating its employees concerning their Union sympathies.

(b) Expressly and\or impliedly threatening to sell its facility, close its facility, threatening
employees expressly and\or impliedly with more onerous working conditions, loss of benefits
including wages, seniority, loss of jobs, threatening employees, expressly and\or impliedly that
they would be forced to go on strike, threatening employees with stricter enforcement of job
rules, threatening expressly or impliedly that it would be futile to select the Union as its
bargaining representative, threatening expressly or impliedly with future wage increases and
expressly and or impliedly threatening unspecified reprisals.

(c) Soliciting its employees to revoke their signed Union cards.

(d) Making promises, express and implied of improved benefits, including wage
increases, if they abandoned their Union activities.

(e) In any other manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.

2. Within 14 days after service by the Region, post at its facility in Torrington,
Connecticut, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 34, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 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 National 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.”

JD(NY)−28−06

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involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent.

Dated, Washington, D.C., June 23, 2006.

____________________
Howard Edelman
Administrative Law Judge

JD(NY)−28−06
APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

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

FEDERAL LAW GIVES YOU THE RIGHT TO

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

WE WILL NOT interrogate our employees concerning their Union sympathies.

WE WILL NOT expressly and/or impliedly threaten to sell our facility, close our facility, threaten expressly
and/or impliedly with more onerous working conditions, loss of benefits including wages, seniority, loss of
jobs, threaten employees, expressly and\or impliedly that they would be forced to go on strike, threaten
employees with stricter enforcement of job rules, threaten expressly or impliedly that it would be futile to
select the Union as its bargaining representative, threaten expressly or impliedly with future wage
increases and expressly and\or impliedly threaten unspecified reprisals.

WE WILL NOT solicit our employees to revoke their signed Union cards.

WE WILL NOT make promises, express and implied of improved benefits, including wage increases, if
they abandoned their Union activities.

VALERIE MANOR, INC.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
280 Trumbull Street, 21st Floor
Hartford, Connecticut 06103-3503
Hours: 8:30 a.m. to 5 p.m.
860-240-3522.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 860-240-3528.