Valley Community Services

National Labor Relations Board - Board Decisions

Aug 29, 1994

314 N.L.R.B. 903 (N.L.R.B. 1994)

903
314 NLRB No. 137
VALLEY COMMUNITY SERVICES
1 The General Counsel and the Respondent have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all of the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing the
findings.
In sec. III,C,10,f, the judge attributes the threat that ‘‘things would
get rougher’’ to Supervisor McClain. We note that Supervisor
Surrena made the threat.
In adopting the judge’s finding that the Respondent engaged in un-
lawful interrogation of employees, Chairman Gould and Member
Browning find it unnecessary to rely on Sunnyvale Medical Clinic,
277 NLRB 1217 (1985).
In adopting the judge’s finding that the Respondent unlawfully im-
posed an overly broad and discriminatory restriction on union activi-
ties and discussions on company property, Chairman Gould and
Member Browning find it unnecessary to rely on Our Way, Inc., 268
NLRB 394, 395 (1983).
2 The General Counsel has excepted to the judge’s failure to find
meritorious certain of the complaint allegations that the Respondent
interrogated employees, indicated that selecting a union would be fu-
tile, created the impression of surveillance, solicited grievances, and
promised benefits in violation of Sec. 8(a)(1). Without addressing all
the General Counsel’s 8(a)(1) exceptions, we have elsewhere in this
decision reversed the judge and found that the Respondent engaged
in soliciting grievances, promising benefits, and creating the impres-
sion of surveillance in violation of Sec. 8(a)(1). We find it unneces-
sary to pass on the remainder of the General Counsel’s 8(a)(1) ex-
ceptions because finding the additional violations he seeks would be
cumulative and would not affect the Order.
3 The record indicates that representatives from the Mount Pleas-
ant, Ruffsdale, and Belle Vernon houses were present.
Valley Special Needs Program, Inc. t/a Valley Com-
munity Services and Service Employees Inter-
national Union, Local 585, AFL–CIO. Cases 6–
CA–24051 and 6–CA–24246
August 29, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On December 16, 1993, Administrative Law Judge
Robert M. Schwarzbart issued the attached decision.
The Respondent and General Counsel filed exceptions
and supporting briefs, and the Respondent filed an an-
swering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings as modi-
fied,1 and conclusions as modified2 and to adopt the
recommended Order as modified.
1. The General Counsel excepts to the judge’s find-
ing that the Respondent did not violate Section 8(a)(1)
of the Act by soliciting grievances and making prom-
ises of benefits in order to undermine support for the
Union. We find merit to the exception.
The record shows that the Respondent learned of its
employees’ union activities on an unspecified date in
June 1991. On September 26, 1991, the Union de-
manded recognition and also filed a petition for an
election. On November 1, 1991, the petition was with-
drawn.
According to Executive Director Celeste Emrick, she
and other managers met with employees at two houses
from August to mid-October 1991, in biweekly meet-
ings.3 At the first meeting, Emrick apologized for the
problems the Respondent was experiencing in pro-
viding bonus money and meeting the payroll in Au-
gust. Emrick reminded employees that the Respondent
had experienced similar payroll problems in the pre-
vious year. After explaining where the Respondent’s
funding came from, she expressed appreciation for the
employees’ work, asked for questions, asked what
problems the employees were having with delayed
paychecks, and asked for suggestions of ways to cut
costs and raise funds. Employee Cheryl Smith and
other employees brought up complaints such as the
disparate treatment in the assignment of overtime, and
Emrick promised to look into them. At the end of the
meeting, Emrick said she would update them on the
things that were discussed.
Emrick conducted subsequent meetings in similar
fashion and gave the employees progress reports on the
topics previously discussed. At one meeting, Emrick
asked employees about their problems with health in-
surance and delayed payments. Emrick asked whether
anyone needed any type of individual assistance until
they received their paychecks, such as assistance in
calling mortgage companies and landlords. At another
meeting, she asked if employee complaints had been
resolved. Employee Ruth King stated that her com-
plaint about patients being allowed to attend church
had been addressed. Employee Linda Christner asked
about insurance claims, and Emrick said the Respond-
ent was taking care of them. At one meeting, Emrick
told employees that the payroll would be met. At the
end of each meeting, Emrick asked the employees if
they wanted to meet again.
The judge credited Emrick’s claim that the meetings
were called to discuss serious economic problems and
found that the problems discussed were related to or
incidental to her questions about delayed paychecks.
The judge concluded that Emrick’s conduct did not
violate the Act.
We disagree with the judge. It is well settled that
when an employer, who has not previously had a prac-
tice of soliciting employee grievances or complaints,
suddenly embarks on such a course during an organi-
zational campaign, the Board may find that the em-
ployer is implicitly promising to correct those inequi-
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The judge appears to assume that the Respondent’s actions can-
not constitute unlawful solicitations because they occurred during
discussions of serious economic problems. The judge does not cite
any precedent for such a rule, and we know of none.
5 We disavow the judge’s discussion of the bargaining order issue
to the extent he suggests that the number of the General Counsel’s
witnesses testifying at the hearing in support of some of the unfair
labor practices is a significant factor in determining the appropriate-
ness of a bargaining order.
6 Contrary to the General Counsel’s contention, the record does not
support a finding that the violations committed were widely dissemi-
nated among the unit employees.
7 Given our basis for concluding that a bargaining order is not ap-
propriate, we find it unnecessary to pass on the judge’s discussion
of unit scope and majority status issues.
ties discovered as a result of the inquiries, thereby
leading employees to believe that the combined pro-
gram of inquiry and correction will make collective ac-
tion unnecessary. See Reliance Electric Corp., 191
NLRB 44, 46 (1971), enfd. 457 F.2d 503 (6th Cir.
1972).
We find that Emrick, the Respondent’s top official,
at meetings coinciding with the rise and fall of the
Union’s organizing campaign, elicited questions and
complaints from the employees, promised to look into
some complaints (such as the discriminatory assign-
ment of overtime), and promised that fiscal problems
were being attacked and that insurance concerns would
be redressed.4
The Respondent does not contend, nor does the
record establish, that the Respondent had a previous
practice of holding such meetings and soliciting griev-
ances, even though the claimed focus for the meet-
ings—the Respondent’s difficulty in meeting its pay-
roll—had also occurred during the prior year. In fact,
Emrick admitted that she normally did not speak to
employees directly and that she held the meetings be-
cause employees had complained about not receiving
an adequate response to their complaints by lower
level management.
We therefore find, based on Emrick’s testimony,
that Emrick unlawfully solicited grievances and prom-
ised benefits to employees in order to undermine the
employees’ support for the Union. Ring Can Corp.,
303 NLRB 353 (1991); Blue Grass Industries, 287
NLRB 274 (1987).
2. The General Counsel excepts to the judge’s fail-
ure to find that the Respondent engaged in conduct
creating the impression of surveillance in violation of
Section 8(a)(1) of the Act. We find merit to the excep-
tion.
In mid-August, Michael Sauritch, a program assist-
ant at the Belle Vernon house, volunteered to Program
Manager Curt McClain that he had attended a recent
union meeting. About 2 weeks later, McClain told
Sauritch that ‘‘McCarthy [East Operations Director
Michael McCarthy] had been down here today and he
was asking around to see who was the head of the
Union at the Belle Vernon house’’ and that McCarthy
mentioned a few names, including employees Sherri
Zelmore and Lois Sauritch (Michael Sauritch’s moth-
er). McClain made a similar statement in early August
to Lois Sauritch. Finally, McClain in late August initi-
ated a discussion with employee Patrick Sauritch about
the Union, telling him that he knew about a union
meeting and that McCarthy was trying to find out who
was backing the Union.
The judge did not specifically address the General
Counsel’s contention that McClain’s statements to the
Sauritches created an unlawful impression of surveil-
lance. We find that McClain communicated to employ-
ees that the Respondent, through its director, was at-
tempting to ascertain the identities of union supporters
and that certain individuals had already been identified.
We find that such statements reasonably would lead
the employees to believe that their activities were
under surveillance. Accordingly, we find that
McClain’s statements violated Section 8(a)(1) of the
Act. Matheson Fast Freight, 297 NLRB 63, 68 (1989).
3. The General Counsel also excepts to the judge’s
failure to issue a bargaining order under NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969). We find no
merit to the exception.
In agreeing with the judge that a bargaining order is
unwarranted,5 we particularly rely on the judge’s find-
ing that the unfair labor practices ‘‘directly reached but
a small percentage of the nearly 140 unit employees in
but a few of the Respondent’s widely-spread facili-
ties.’’6 We recognize that we have found merit in
some 8(a)(1) complaint allegations that the judge rec-
ommended be dismissed, and we have found it unnec-
essary to pass on whether certain additional 8(a)(1)
violations were committed. Based on our review of the
record, however, we believe that even if all the 8(a)(1)
violations the General Counsel seeks were here found,
the number of facilities involved and the percentage of
the unit affected by the unfair labor practices would
not increase in any significant manner.7 We therefore
find that even if we granted the General Counsel’s
8(a)(1) exceptions, a bargaining order would be unwar-
ranted.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below, and orders that the Respondent, Val-
ley Special Needs Program, Inc. t/a Valley Community
Services, Mount Pleasant, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Interrogating its employees concerning their
union activities, sympathies, and desires; threatening
905VALLEY COMMUNITY SERVICES
1 The relevant docket entries are as follows: The charge in Case
6–CA–20451 was filed on November 8, 1991, and the charge in
Case 6–CA–24246 was filed on January 30, 1992. The complaint in
Case 6–CA–20451 was issued on January 31, 1992, and was amend-
ed and consolidated with the complaint in Case 6–CA–24246 on
April 20, 1992.
its employees with closure of its facilities and/or with
declaration of bankruptcy, discharge and other unspec-
ified reprisals because of their union activities and
sympathies; imposing overly broad and discriminatory
restrictions on union activities and discussions on com-
pany property; telling employees that it would be futile
to select Service Employees International Union, Local
585, AFL–CIO, as their bargaining representative; so-
liciting grievances and promising benefits for the pur-
pose of undermining support for the Union; and cre-
ating the impression that the union activities of em-
ployees are under surveillance.’’
2. Substitute the following for paragraph 2(b) and
delete (b) at the beginning of last paragraph.
‘‘(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate you concerning your union
activities, sympathies, and desires.
WE WILL NOT threaten you with closure of our fa-
cilities and/or with declaration of bankruptcy, dis-
charge, and other unspecified reprisals because of your
union activities and sympathies.
WE WILL NOT impose overly broad and discrimina-
tory restrictions on union activities and discussions on
company property.
WE WILL NOT tell you that it would be futile to se-
lect Service Employees International Union, Local 585,
AFL–CIO, as your bargaining representative.
WE WILL NOT solicit grievances and promise bene-
fits for the purpose of undermining support for the
Union.
WE WILL NOT create the impression that your union
activities are under surveillance.
WE WILL NOT in any like or related manner interfere
with, coerce, or restrain you in the exercise of rights
guaranteed by Section 7 of the Act.
VALLEY SPECIAL NEEDS PROGRAM, INC.
T/A VALLEY COMMUNITY SERVICES
Barton A. Meyers and Dalia Belinkoff, Esqs., for the General
Counsel.
Donald J. Andrykovitch, Esq. (Cohen & Grisby), of Pitts-
burgh, Pennsylvania, for the Respondent.
John Haer, Staff Director, and Linda Wambaugh, Organizing
Director, of Pittsburgh, Pennsylvania, for the Union.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law Judge.
This case was heard in Pittsburgh, Pennsylvania, during 10
days between June 17 and August 13, 1992, on a complaint
issued pursuant to charges filed by Service Employees Inter-
national Union, Local 585, AFL–CIO (the Union or Local
535).1 The complaint alleges that Valley Special Needs Pro-
gram, Inc. t/a Valley Community Services (the Respondent,
the Company, or VCS), violated Section 8(a)(1), (3), and (5)
of the National Labor Relations Act (the Act). A bargaining
order is among the remedies sought. The Respondent’s time-
ly filed answer denies the commission of unfair labor prac-
tices and the propriety of a bargaining order remedy.
The parties were given full opportunity to participate, to
introduce evidence, to examine and cross-examine witnesses,
and to file briefs. Briefs, filed by the General Counsel and
the Respondent, have been carefully considered.
On the entire record, including my observation of the wit-
nesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Pennsylvania not-for-profit corpora-
tion providing residential and educational day care for men-
tally handicapped adults and children at its facilities in the
Pennsylvania counties of Allegheny, Westmoreland, Butler,
and Somerset. In the course and conduct of its business oper-
ations during the 12-month period ending October 31, 1991,
the Respondent had gross revenues in excess of $250,000
and performed services valued in excess of $50,000 for the
Commonwealth of Pennsylvania.
The complaint alleges, the answer admits, and I find that
the Respondent is an employer directly involved in interstate
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Program assistants provided direct client care, including cleaning,
transportation, and other immediate services.
3 Program managers supervised the program assistants at each fa-
cility. Their responsibilities included employee scheduling and dis-
cipline.
4 Quality mental retardation professionals (QMRPs), by the parties’
subsequent agreement, were excluded from the unit because super-
visory. The QMRPs were responsible for ensuring that their houses
were in licensing compliance. They evaluated clients, worked on and
certified client programs and remedial goals, and trained program
managers and program assistants.
5 All dates hereinafter are within 1991 unless stated to be other-
wise.
6 It was at a meeting in early August that employee Linda Kennel
told McCarthy and Murtha that she thought she had been rep-
rimanded because of her union activities. Although five employees
posted a photograph at the Belle Vernon facility in early August,
which purports to show them holding a sign for Local 585, the sign
is illegible and does not serve to establish company knowledge of
the employees’ activities purportedly depicted.
7 The relevant facts concerning alleged violations of Sec. 8(a)(1)
of the Act will be set forth under the names of the supervisors to
whom the violations are attributed.
II. THE LABOR ORGANIZATION INVOLVED
Local 585 is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE FACTS
A. Background
The Respondent, VCS, began operations in 1976, pro-
viding day care services for children of low income families
in Cheswick, Pennsylvania. The Company expanded into day
care for handicapped children and then opened group homes
providing residential care for severely handicapped children
and adults who required intensive care. The Respondent was
funded by the counties in which it functioned and by the
Commonwealth of Pennsylvania. At the times relevant here-
in, VCS operated 14 or 15 intermediate care and community
living arrangements and day care centers within about 100
square miles encompassing the 4 western Pennsylvania coun-
ties named above.
Celeste Emrick was the Respondent’s executive director
and Regis Murtha the associate executive director. Among
the relevant manager/supervisors were Michael McCarthy,
east operations director; Joyce Geary, nursing supervisor;
Basil Maimone, quality assurance and safety committee di-
rector; Barbara Kocinski and Don Marsh, quality mental re-
tardation professionals (QMRPs); and Program Managers
Karen Surrena, Rhonda McCullough, Curt McClain, and
Diane Kineer. Respondent admits the supervisory and agency
status of all of the aforesaid individuals. The duties of the
QMRPs, program managers, and program assistants will be
described below.
General Counsel alleges the following unit as appropriate
for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All non-professional employees, including program as-
sistants,2 licensed practical nurses, assistant teachers,
teachers’ aides, cooks and maintenance/drivers em-
ployed by the Respondent at its residential home and
day care facilities in Allegheny, Somerset, Butler and
Wesmoreland Counties, Pennsylvania; excluding pro-
gram managers,3 registered nurses, teachers, family day
care providers, office clerical employees and guards,
other professional employees and supervisors4 as de-
fined in the Act.
The parties have agreed to the inclusion of 132 named em-
ployees within the above-described unit. The Respondent,
however, contends that the unit also should contain the em-
ployees of Children’s Learning Services, two categories of
family day care providers who supplied day care and/or food
programs in their own homes under VCS auspices and oth-
ers.
B. Union Activities
The Respondent’s employees began their activities on be-
half of Local 585 with discussions in June 19915 and contin-
ued with weekly and biweekly meetings with union officials
at area hotels and restaurants starting in July. The Union
conducted a large meeting of the Respondent’s employees on
August 12. Union authorization and membership application
cards were distributed at those meetings and elsewhere. Al-
though the Respondent admits having had some knowledge
of the union activity by early August,6 the credited evidence,
discussed below, establishes company knowledge as of about
mid-July. On September 19, executive director Emrick was
given a letter signed by 20 employees to the effect that the
employees, consistent with their legal rights, were engaged in
an organizational campaign and warning that unfair labor
practice charges possibly would be filed.
On September 26, the Union sent the Respondent a de-
mand for recognition, claiming majority support in an appro-
priate unit. VCS did not respond. Later on September 26, the
Union filed the petition for representation election in Case 6–
RC–10668. Withdrawal of that petition was approved on No-
vember 1.
C. The Alleged Unfair Labor Practices7
1. Regis Murtha; Michael McCarthy
On July 15, Linda Kennel, a program assistant in the Mt.
Pleasant house, was called into the basement office at that
facility to discuss a reprimand. This reprimand, in itself, was
not alleged herein as violative. Also present were Michael
McCarthy, Joyce Geary, and Diane Kineer, whose titles and
supervisory status were described above. Kennel, who was
one of the early organizers for the Union, testified that she
was asked if she had any problems with management. When
Kennel replied that she did not, she was told that three of
her fellow employees had written her up for having sat on
the porch for an extended time period while they were work-
ing. Kennel asked who these employees were and, when her
question went unanswered, said that she would ask around
about this herself. Kennel stated that she was told ‘‘that if
I investigated it or talked about my warning to anyone that
I could be fired or transferred to another home.’’ She then
asked whether this was because of her union organizing.
McCarthy told her, ‘‘No, what you do on your own time is
your own business.’’
McCarthy testified that, when Kennel asked who her ac-
cusers were, he replied that he would not tell her because he
907VALLEY COMMUNITY SERVICES
8 McCullough was not available to testify during the final week of
a hearing held during parts of 3 weeks because she was on vacation.
Contrary to the Respondent’s counsel, continuation of this hearing
beyond the date when it otherwise was expected to, and did, close,
was not warranted in order to accommodate a supervisory witness
in the Respondent’s employ and under the Respondent’s control
whom the Company declined to timely produce. In so ruling, it was
noted that no claim was made that McCullough’s unavailability to
testify was occasioned by poor health or other emergency; that all
resumed dates had been previously agreed to by counsel for the re-
spective parties, including for the Respondent, and that inherent in
such agreement was the prospect that, barring emergency or special
circumstances not applicable here, counsel would be prepared to pro-
ceed. This is particularly applicable since the widely spaced hearing
sessions held during segments of 3 summer months had resulted
from efforts to accommodate the parties’ conflicting schedules.
didn’t want this to cause any problems in the house. When
Kennel said that she would pursue the matter herself, McCar-
thy related that he did not threaten any specific penalties but
told her ‘‘that if she pursued or investigated this matter she
would have a real problem with me.’’ He assertedly had
heard no mention of her union activities.
McCarthy’s version of this conversation is somewhat in-
consistent with the recollections of Kineer and Geary. Geary
did not hear Kennel ask who had complained, and did not
hear anyone respond when Kennel said that she would look
into it herself. Kineer recalled no threats in response to Ken-
nel’s statement that she would ask others about the complaint
but did tell Kennel that reprimands were held in confidence.
Neither Geary nor Kineer admitted to having heard any ref-
erence to Kennel’s union activities. Kennel was advised that
she could file a grievance.
Kennel, thereafter, did file a grievance under the Employ-
er’s grievance procedure, and met twice with the Respond-
ent’s then associate executive director, Regis Murtha, on Au-
gust 2 and 9, before succeeding in having the written rep-
rimand revoked. She was accompanied at both sessions by
Cheryl Smith, a fellow employee. During the first of those
meetings, Murtha asked why Smith was there and was told
that she was there at Kennel’s request as a witness. At the
second meeting, where McCarthy also was present, Murtha
asked if Smith was there ‘‘as a member of an organization
or a law firm?’’ When she replied that it was neither, Murtha
told her that she could remain so long as she ‘‘kept her
mouth shut.’’
Murtha, no longer with the Respondent, did not testify and
McCarthy had no recollection of Murtha asking about
Smith’s affiliations. I credit Smith and Kennel.
2. Rhonda McCullough
Mary Jane Anderson, a licensed practical nurse (LPN) pri-
marily assigned to the Bakersfield facility under the super-
vision of Program Manager Rhonda McCullough and Nurs-
ing Supervisor Joyce Geary, assisted the Union’s organizing
campaign by supplying a list of the names and addresses of
the Respondent’s employees at the Bakersville house. How-
ever, there is no evidence that her activity had been overtly
announced.
Anderson was on a medical leave from July until mid-Au-
gust. In late August or early September, after her return, An-
derson spoke generally with McCullough and LPN Kim
Shaffer about what had happened while she was away. An-
derson testified that during that conversation, McCullough
asked if Anderson knew that a union was being organized
(or, as testified to by Anderson on cross-examination,
McCullough merely said that she assumed that Anderson had
heard that union cards were being signed). Anderson replied
that she had heard something to that effect. McCullough was
unavailable at the time of the hearing.8 I credit Anderson’s
testimony.
3. Michael McCarthy
Anderson related that on the same day as the above-de-
scribed conversation with McCullough, she answered a tele-
phone call while at her desk which was situated about 5 feet
from McCullough. McCarthy, the Eastern Operations direc-
tor, was calling for McCullough. Anderson told McCullough
that the call was for her, but, because (she was) busy writing,
Anderson briefly kept the phone on her shoulder. In so
doing, she heard McCarthy tell McCullough ‘‘that union
cards were being turned in. If anyone is caught discussing
anything to do with the union or caught signing cards or any-
thing like that, anything pertaining to the union, they were
to find an excuse to fire them on the spot.’’ McCullough, re-
alizing that Anderson still was on the line, told McCarthy to
wait a moment. Anderson then hung up. McCarthy denied
the conversation and, as noted above, McCullough was un-
available at the time of this hearing.
In mid-September, Anderson was called in to a meeting at
the Mt. Pleasant house with McCarthy, Geary, and
McCullough. McCarthy asked if Anderson had started a
rumor about Celeste Emrick having been being arrested for
embezzlement. Anderson acknowledged that although she
hadn’t started the rumor, she had repeated it, thinking it a
joke. Actually, Anderson had mentioned the rumor to two
others, one of whom was McCullough. McCarthy then asked
why Anderson favored the Union. She explained that her
support resulted from problems she was having with her
scheduling and unpaid insurance claims. In response to
McCarthy’s question, Anderson stated that she had gone to
her immediate supervisor with those problems but that noth-
ing had been done. McCarthy then asked why Anderson had
signed the union card, telling her that because she was a pro-
fessional, she could not do so. Anderson disputed this.
McCarthy told her there was a rumor that, if the Union came
in, there would be a strike. Anderson also disputed this, tell-
ing McCarthy that he did not know the employees very well.
They would not abandon the clients.
Geary did not recall having spoken to Anderson about her
signing a union authorization card. McCarthy denied all of
Anderson’s description of the above mid-September meeting
other than the questions about the Emrick rumor which he
told her not to repeat. Noting that the statements attributed
to McCarthy by Anderson are consistent with statements at-
tributed to him by others and with other conduct engaged in
by Respondent’s supervision, I find Anderson to be a cred-
ible witness. Neither Anderson’s admitted conduct in further
publicizing the Emrick rumor nor the fact that Respondent
had discharged her husband more than a year before warrant
discrediting her testimony.
In mid-October, McCarthy went to the various residential
homes where he showed an antiunion video and answered
questions about the Union’s campaign. At the Mt. Pleasant
house, in the presence of Program Manager Kineer, Program
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Herbert, who had signed a union authorization card on August
13, asked in mid-October that it be returned to him after he had at-
tended the Ruffsdale meeting.
10 Originally retained as a licensed practical nurse (LPN), Sciore
became a graduate nurse in May awaiting certification as a reg-
istered nurse (RN) and, in September, an RN. While the Respond-
ent’s RNs and LPNs essentially did the same work, the RNs could
administer higher level of medication. However, apparently on the
basis of his having become a graduate nurse, Sciore, once in July,
took Geary’s beeper so as to be able to respond to emergencies at
any facility. By the time of the Union’s September 26 demand for
recognition, Sciore was a registered nurse and not within the bar-
gaining unit.
11 Sciore was assigned to the Respondent’s Belle Vernon house
while Geary’s office was at Mt. Pleasant
Assistant Shirley Harusek recalled that McCarthy had stated
that, ‘‘when he thinks of unions he thinks of strikes and, if
a union would come in, there was no doubt in his mind that
the Company would file bankruptcy or completely shut
down.’’ Ruth Ann King remembered that McCarthy repeat-
edly had said that if a union came in they would be forced
to close down . . . if a union came in, it would demand
more money and that there was no more money. When King
raised her hand after McCarthy asked for questions, he
looked at her and asked what she would do if she went to
the well and the well was dry. McCarthy did not respond
when told by employees that the campaign was not strictly
about money.
The Respondent called Carol Dubnansky, an employee at
Mt. Pleasant, to testify about the video meeting after she ear-
lier had testified as General Counsel’s witness. Dubnansky
recalled other employees asking McCarthy whether the Com-
pany would declare bankruptcy or close down if the Union
came in. He replied in response to both questions that he
‘‘could make no promises’’ that those events would not
occur. She also recalled, on cross-examination, that it was
McCarthy who had brought up the subject of strikes, stating
that a strike was likely because there was no money and that
a strike would pose problems for the Company. McCarthy
also spoke of bringing in someone else to care for the cli-
ents. Dubnansky recalled that McCarthy had said that, if that
happened, he ‘‘could make no promises’’ whether that new
service provider would keep or hire the present work force.
At the Ruffsdale house, according to employee Helen
DeForrest, McCarthy, after showing the film about unions to
approximately 13 staff members in October, predicted that if
a union came in, the employees would go on strike at the
Ruffsdale and Mt. Pleasant houses, leaving no one to take
care of the clients. In that event, he said, the Company
would declare bankruptcy. To counter DeForrest, the Re-
spondent called employee Clyde Williams, who also had
been at the Ruffsdale meeting, but he had little recollection
of the details of the meeting other than that he had not heard
anything said about bankruptcy or the closing of the house.
He did not remember McCarthy saying anything about
strikes. William’s recollections were negative in form. Had
he heard anything said about bankruptcy, Williams would
have begun looking for another job. Williams’ testimony,
and that of employee Keith Herbert9 to the same effect, was
not persuasive.
McCarthy acknowledged that he had shown a video and
spoken to employees at the Mt. Pleasant, Ruffsdale, and
other houses. He testified that he had discussed the Respond-
ent’s financial problems on these occasions but denied ever
having mentioning the word ‘‘bankruptcy,’’ having said that
when he thought of unions, he thought about strikes or hav-
ing told the employees that the houses would close down. He
also related that he had discussed union dues and constitu-
tions and had told the employees that he was not opposed
to organizing but merely was encouraging everyone to vote.
McCarthy related that his only mention of a strike was in
reference to what had happened at a hospital in
Cannonsburg.
Given the credible testimony of Marusek and DeForrest, as
essentially corroborated by Dubnansky when called as a Re-
spondent’s witness, and McCarthy’s unconvincing denials, I
credit the General Counsel’s witnesses as to what occurred
at these meetings.
4. Joyce Geary; the Respondent’s no-solicitation rule
On about August 27, graduate nurse Rocco Sciore10 solic-
ited two of his fellow employees to sign union authorization
cards at the Belle Vernon house while they were making
beds. His immediate superior, nursing supervisor Geary,
called him the next day.11 As he recalled their telephonic
conversation, Geary stated that she knew Sciore was a union
supporter; that that did not matter to her but that, ‘‘[Y]ou
know you are not permitted to solicit union materials or ac-
tivities [sic] on company property, company time or in front
of the clients.’’ She also announced that she was aware that
Sciore had solicited cards at the house a day earlier. Admit-
ting to Geary that he had done so, he promised not to do
it again.
Geary recalled that she had learned from another staff
member that Sciore had talked about union activities while
he was working. She testified that she had told Sciore ‘‘that
he could not talk about such activities in front of the clients
and couldn’t do it on working time.’’ On cross-examination,
she corroborated his testimony, acknowledging that she told
him she knew he had been soliciting for the Union and that
he was not allowed to do it on company time or property
or in front of clients. He agreed to comply. She denied that
a policy had been promulgated, insisting that she merely had
responded to an individual situation, a complaint from an-
other employee about Sciore’s activities.
Employee Cheryl Smith recalled that Diane Kineer had
told her on some unspecified date that ‘‘they did not want
them to have union activity on company time.’’ Kineer did
not contradict Smith’s testimony.
Solicitations by staff, employees, and supervisors were
common at the Respondent’s houses. Sciore had sold candy
to benefit his nursing class and the program manager was
among those who had bought from him. Other staff members
sold candy, sandwiches, and cookies as fund raisers. Diane
Kineer had taken orders for Avon products from employees
while they worked.
On or about August 28, Cheryl Smith overheard Geary
talking to unit employee Barbara Stillman by Geary’s desk
in the basement of the Mt. Pleasant house. Although she did
not hear the entire conversation, she did hear Geary say, ‘‘I
know who is responsible for starting the Union.’’ Geary de-
nied having made any such statement to Stillman or to any-
one else. Stillman did not testify.
909VALLEY COMMUNITY SERVICES
12 Lois Sauritch was the mother of two other Respondent’s em-
ployees, Michael and Patrick Sauritch. As will be discussed below,
Michael Sauritch’s discharge is an issue of this proceeding.
Christner, who was terminated at the same time as part of the same
incident, thereafter was reinstated. As noted, her discipline, too, is
at issue.
Sciore testified that on September 4, Geary asked if he
would like more money or would he like benefits? Sciore re-
plied that the employees probably would want both but he
would ask around and get back to her. He never did. Geary
did not mention the Union in this conversation, which alleg-
edly took place by telephone during one of their regular dis-
cussions. Geary denied having asked Sciore any questions
about money or benefits.
Ray Goodwin, a program assistant at Ruffsdale, testified
that on September 23, Geary asked ‘‘if the union we were
trying to get in was the same union they were trying to get
in at Butler.’’ When he replied that he did not know, she told
him that the union in Butler was Local 585. Although the
General Counsel asserted, on brief, that Goodwin was not a
known union supporter, his signature is among the 20 on the
Union’s above September 18 letter to Emrick.
Other than her conversation with Sciore about union ac-
tivities on company time and property or in front of clients,
Geary denies having made all of the above-attributed state-
ments. She claimed not to have discussed the Union’s activi-
ties with any of her staff throughout the entire campaign pe-
riod, stating that she was disinterested and was neither pro
nor antiunion. She, however, admitted being aware of Good-
win’s involvement in union activity from statements made to
her by other members of the staff, and also had seen his
name among those of the other employees who had signed
the Union’s September 18 letter to Emrick. I find her denials
less persuasive than the convincingly detailed testimony of-
fered by the several employees as described above.
5. Diane Kineer
On November 1, shortly after the Union withdrew its peti-
tion for representation election, employees distributed union
flyers outside the Mt. Pleasant house. When employee
Cheryl Smith arrived at work, her program manager, Kineer,
asked why Smith had not given her a copy of the flyer that
was being passed out. Smith replied that they were not sup-
posed to give then to management, only to coworkers.
Kineer then asked her, ‘‘What makes you think that Celeste
[Emrick] won’t continue to fight the Union now that she is
in the black?’’ Smith replied that she did not know.
Although the Union’s house representatives at Mt. Pleasant
had passed out several flyers there prior to this incident,
Smith never had given one to Kineer.
Kineer did not deny this conversation.
6. Beth Kocinski
On June 28, a staff picnic was held at Natrona Heights.
Linda Kennel described a statement made to her by Beth
Kocinski, the QMRP, in Program Manager Diane Kineer’s
presence at the basement of the Mt. Pleasant house about 3
days before that event. Kennel testified that as she was tell-
ing Kineer that she would attend the picnic, Kocinski said
to her, ‘‘If you are going to this picnic to cause trouble, it
will be videotaped.’’ Kocinski did not reply to Kennel’s re-
quest that she define ‘‘trouble.’’ Kocinski and her husband
thereafter videotaped employees at the picnic. There was no
evidence that any union activities took place there.
Kineer that recalled Kocinski had told employees that her
husband would be making videos at the picnic, copies of
which would be given to each house. She was not sure
whether she was present when Kocinski told this to Kennel
but recalled no conversation wherein Kocinski told Kennel
that she would be videotaped if she caused trouble.
7. Curt McClain
Several employees testified to conversations with Curt
McClain, the program manager at Respondent’s Belle
Vernon house, and/or to questions from him concerning the
Union. These employees spoke freely to McClain on the sub-
ject, making no effort to keep their union activities secret ap-
parently because, earlier, while a program assistant (and
Linda Christner, alleged herein as a discriminatee, was his
program manager), McClain had begun a union campaign.
Accordingly, Linda Christner, by June, having reversed
their roles by becoming a program assistant under McClain,
volunteered to him during that month that she was engaging
in organizing activities. According to Christner, McClain’s
reaction had been an unconcerned ‘‘whatever.’’ Initially,
Christner’s testimony concerning conversations with McClain
were general, phrased in terms of what he ‘‘would’’ do dur-
ing as many as five or six conversations, rather than what
he had done. When pressed for more specificity, she testified
that when, in early August, McClain came into the living
room of the house and asked, ‘‘What’s going on with the
Union,’’ she told him that it was moving along and gaining
support every day. On cross-examination, she testified that,
in early August, McClain had asked employee Michael
Sauritch and herself, ‘‘What is going on in your lives?’’ to
which they replied that they were supporting the Union and
going to meetings. She continued to maintain that he also
had asked her ‘‘What was happening with the Union?’’ On
about August 15, while riding in the van, McClain allegedly
asked her, out of the blue, ‘‘Who started the Union at the
Mt. Pleasant house?’’ Christner, surprised, was not certain of
her response.
Christner described a conversation with McClain in the
kitchen of the Belle Vernon house on a Wednesday in early
September in the presence of another assistant, Lois
Sauritch.12 According to Christner, McClain stated that, ‘‘[i]f
the Union came in . . . Mrs. Emrick would close the place
down, open up under a new name and hire all new staff.’’
Christner then left to take clients out to the van and did not
know what else might have been said. On cross-examination,
Christner recalled this conversation as having taken place on
September 25, rather than September 4, and McClain as hav-
ing stated that this was something Mrs. Emrick had said she
would do. She further asserted that McClain had repeated
this statement several times. Similarly, in a conversation on
about November 6 (after Christner’s reinstatement), again in
the kitchen with Lois Sauritch present, McClain assertedly
told her ‘‘out of the blue’’ that, ‘‘[i]f the Union comes in,
he’s going to have to crack down on us and watch our every
move.’’ Christner replied, ‘‘So what.’’ Christner related that
other employees probably were present at this time.
910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Rocco Sciore testified that, in mid-August, McClain told
him that it did not matter whether or not they got a union;
that nothing was going to change; and that they would get
no more money or benefits. Sciore did not reply.
Lois Sauritch testified that, in the same time period,
McClain told both her and Christner that he hoped that he
would benefit from the Union, too, and that, if it did come
in, he would have to crack down and get tough on them. He
purportedly concluded by stating that Celeste (Emrick) would
never give in to the Union.
Similarly in mid-August, 1 or 2 days after an August 12
union meeting, Michael Sauritch volunteered to McClain that
he had attended that meeting. About 2 weeks later, McClain
allegedly told Michael Sauritch that ‘‘Mickey McCarthy had
been down here today and he was asking around to see who
was the head of the Union at the Belle Vernon house . . .
that Mickey mentioned a few names . . . Sherri Zelmore
. . . others . . . Lois Sauritch.’’ Lois Sauritch testified to a
similar conversation with McClain which, she related, had
occurred in early August. So did Patrick Sauritch who testi-
fied that in late August, McClain initiated a discussion about
the Union. McClain told Patrick Sauritch that he knew about
the meeting, that if the Company went union he would have
to stop being friendly with them and start getting tough, and
that McCarthy was trying to find out who was backing the
Union. Patrick Sauritch volunteered that he was a strong sup-
porter of the Union’s campaign. Again, in September, before
the representation case petition was filed, McClain allegedly
told Mike Sauritch, ‘‘If we voted in the Union the Company
would go bankrupt.’’
McClain had no recollection of, and denied, most of the
statements attributed to him. He denied initiating a conversa-
tion with Christner in the van and claimed that she raised the
subject of the Union. In that conversation, he admitted hav-
ing asked her what house had started the campaign (to which
Christner had replied the Mt. Pleasant house had started it)
and what the problems were, but denied having inquired as
to which employees were involved or what was happening
with the union campaign. He also denied having threatened
that he would have to get tougher; that Emrick would never
give in to the Union; that, if the Union came in, Emrick
might close and reopen under a new name; or that the Com-
pany would file for bankruptcy. He admitted having told em-
ployees that it would be harder for everyone if there were
a union, referring to the need to communicate through a
union steward rather than directly. He also admitted having
told Patrick Sauritch that if a union came in, they could not
be as friendly as they were, that he would have to deal with
a steward and not directly with the employees and that
guidelines would be get because he was management and
they were staff.
Given the mutual corroboration by General Counsel’s wit-
nesses, the similarity of themes voiced by the various super-
visors, McClain’s admissions and his inability to recall cer-
tain key conversations, I credit Christner, Sciore and the
three Sauritch family members over McClain. I find that
there was frank discussion of the Union between McClain
and these employees who openly proclaimed their support
for the Union. I further find that, at various times between
August and November, McClain asked what was going on
and who was involved, with the Union. He told several em-
ployees that his superior, McCarthy, wanted to know who
was involved with or leading the union campaign. He also
told them that if a union came in, the relationship between
them would change and he would have to get tougher with
them; that Ms. Emrick would never give in to a union; that
being represented by a union would not get them more
money or benefits, that a union would cause the Company
to go bankrupt; and that, with a union, the Company might
close and then reopen under a new name with new staff.
8. Karen Surrena
On September 24, Cynthia Schlagel, a program assistant at
the West Sunbury house, received a telephone call at home
from her program manager, Karen Surrena. Schlagel testified
that Surrena asked whether she had attended a union meeting
that day; when did Schlagel sign up; if everyone had been
at the meeting; and what had been discussed. Schlagel re-
plied that she had signed up at the meeting and answered
Surrena’s other questions in general terms. After discussing
other matters, Surrena concluded by telling Schlagel that,
‘‘[t]hings are going to get rougher.’’
Later that week, Surrena asked to speak to program assist-
ant Gertrude Jones in the basement of the West Sunbury
house. Jones related that, there, Surrena asked if she had a
problem with Surrena or with working there; if Jones had at-
tended the union meeting and who else had been there. Jones
admitted that she had attended the meeting but declined to
name others who had been there. In response to Surrena’s
question, Jones denied that it had been held at the house of
an employee whom Surrena had named in that connection.
Surrena admitted that, in September, she had called
Schlagel asking if she knew anything about a union meeting,
but denied that she had pursued the subject after Schlagel
said, ‘‘[Y]es.’’ Beyond that conversation, Surrena claimed, it
was Schlagel who had initiated discussions about the Union,
volunteering information about the campaign and its goals.
Surrena denied having told Schlagel that things would get
rougher with a union and asserted that Schlagel volunteered
to tell Surrena anything she wanted to know about the cam-
paign.
Surrena recalled that she had spoken to Jones about Jones’
assertedly rude behavior in not talking with her. She asked
what Jones’ problem was. When Jones denied that there was
a problem, Surrena stated, ‘‘Ever since the union started
around here, you have a really bad attitude.’’ Jones said
something about having problems at home and denied that
her attitude was related to the union campaign.
I find improbable Surrena’s testimony that, having re-
ceived a positive response from Schlagel when she called to
ask if Schlagel knew anything about a union meeting,
Surrena did not inquire further but just dropped the matter.
I find that both Schlagel and Jones, who no longer is em-
ployed and, therefore, was a comparatively disinterested wit-
ness, were credible. Noting the improbability of Surrena’s
testimony concerning her interrogation of Schlagel, Jones’
disinterest in the proceeding when she testified, and the com-
monality of themes voiced by the various managers, I credit
the testimony of Schlagel and Jones over that of Surrena.
9. Celeste Emrick
From August to about mid-October, Emrick held a series
of biweekly meetings at the Mt. Pleasant facility which the
911VALLEY COMMUNITY SERVICES
13 269 NLRB 1176, 1177–1178 (1984), enfd. 760 F.2d 1006 (9th
Cir. 1985).
14 277 NLRB 1217 (1985).
15 See Fontaine Body Co., 302 NLRB 863, 865 (1991).
16 Whether Kennel’s version or that of McCarthy is credited, Mur-
tha’s threat of reprisal to Kennel should she investigate the com-
plaints that led to her reprimand, while not alleged as an independent
unfair labor practice, evidenced a hostility to protected concerted ac-
tivity.
employees voluntarily attended, without compensation. While
employees from each of the Respondent’s homes were at
these meetings, including some who testified in this pro-
ceeding, the General Counsel called only one, Cheryl Smith,
concerning the meetings with Emrick.
Smith testified that, starting in mid-August, Emrick con-
ducted those meetings every other Thursday. During the mid-
August meeting, Emrick asked what were the employees’
concerns or complaints. In response, the employees raised
various topics relating both to themselves and the clients. On
their own behalf, employees asked about the unpaid insur-
ance bills, scheduling of holidays and overtime and overtime
pay. Emrick said that the insurance problems, holiday sched-
uling, and matters concerning overtime would be looked into
and that the employees would be paid for any overtime
worked. With respect to the clients, the employees asked
about the possibility of getting more wheelchairs and wheth-
er they could take the clients to church. Emrick told them
that there was no money for wheelchairs but that she saw no
problem with taking clients to church. She stated that a pur-
pose of the meeting was to discuss cost-cutting and to re-
ceive suggestions directed to that purpose. Emrick asked the
employees if they had any ideas for fund raising. The em-
ployees were requested to tell the other employees at the
homes where they worked what had been discussed.
After this meeting, Smith was paid for her overtime and
the project manager passed out index cards for the employees
to designate the holidays when they preferred to be off.
According to Smith, at the next meeting, Emrick asked the
employees if their complaints, like the the church issue, had
been resolved and was told that they had been. Christner
asked about insurance claims and was told that they were
being taken care of. When the matter of wheelchairs again
was mentioned, Emrick reiterated that there was no money
for them and asked if the employees were interested in rais-
ing funds for such equipment. Smith testified that Emrick’s
third meeting with employees essentially was a repetition of
the second.
These meetings were discontinued after the November 1
withdrawal of the pending petition for representation election
and were not thereafter resumed.
According to Emrick, as corroborated by Geary, two meet-
ings were held at Cheswick and five or six at Mt. Pleasant
to explain and discuss the Employer’s money problems, in-
cluding the difficulties in meeting the payroll in August and
the problems with a health insurance carrier who was not
paying medical bills. For a time during the summer, the em-
ployees had worked without pay. State funding had been de-
layed and some employees had called state offices with ques-
tions which later were related to Emrick.
Emrick testified that, at the first meeting, she apologized
for the problems, explained where the Respondent’s funding
came from, expressed appreciation for the employees’ work,
and took questions. She asked what problems the employees’
were having with respect to their health insurance and de-
layed pay because the Respondent was calling lenders and
landlords on their behalf to request patience and forbearance.
Emrick related that she had asked about employee problems
only in this context. Wheelchairs, fund raising, church-going
for the clients, cost-cutting, and disparate treatment in the as-
signment of overtime all were discussed.
At a later meeting, the employees were told that payroll
would be met. Emrick recalled that one employee asked
whether the Respondent was going to file for bankruptcy.
She told him, ‘‘Absolutely not,’’ that bankruptcy would cost
them the licensing they had worked for 3-1/2 years to ac-
quire. The closing of facilities was not discussed and there
was no mention of the Union or its campaign.
10. Discussion of the 8(a)(1) allegations
a. Interrogation
In Rossmore House,13 the Board eschewed a per se ap-
proach and held that ‘‘an employer’s questioning of open and
active union members about their union sentiments, in the
absence of threats or promises [did not] necessarily’’ inter-
fere with, restrain, or coerce employees in violation of Sec-
tion 8(a)(1) of the Act. The Board stated that each case
would be determined on its facts. Factors to be considered
included the background, the nature of the information
sought, the identity of the questioner and the place and meth-
od of the interrogation. In Sunnyvale Medical Clinic,14 the
Board described the Rossmore House test as ‘‘whether under
all the circumstances the interrogation reasonable tends to re-
strain, coerce, or interfere with’’ statutory rights. That test,
it was stated, applied whether or not the employee was an
open and active union supporter. Rossmore House and its
progeny remain the controlling precedents.15
The earliest incident of interrogation alleged by the Gen-
eral Counsel is Murtha’s August 2 questioning of Cheryl
Smith during a grievance meeting concerning a reprimand
given to Linda Kennel. Smith, present at Kennel’s request as
a witness, was asked if she represented an organization or a
law firm. Smith was an open union adherent and the Re-
spondent apparently had sought to clarify the reason for her
presence. There was no reference to the union campaign.
Under these circumstances, I find no violation of Section
8(a)(1).16
Similarly innocent, I find, is McCullough’s mid-August
question to Anderson concerning whether she had heard that
there was union activity underway. This essentially rhetorical
statement by her program manager, a first-line supervisor,
did not call for an answer that would reveal Anderson’s ac-
tivity or sympathies. It was not followed by any antiunion
statements or more probing questions when Anderson ac-
knowledged that she was aware of the that activity.
McCarthy’s mid-September questioning of Anderson, how-
ever, was more coercive. There, Anderson, who was not a
known or open union supporter, in the context of a discipli-
nary-type inquiry, was confronted by three levels of super-
vision, the east operations director, the nursing supervisor,
and her program manager. Anderson was asked why she fa-
vored the Union and why she had signed an authorization
card. When she answered the last question, she was told, er-
912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Liquitane Corp., 298 NLRB 292, 293 at fn. 4 (1990); Resolute
Realty Management Corp., 297 NLRB 679 fn. 3, 685 (1990);
Raytheon Co., 279 NLRB 245 (1986); Dependable Lists, Inc., 239
NLRB 1304, 1305 (1979).
18 This more properly should have been alleged as a solicitation
of grievances/implied promise of benefits.
19 An employer’s conduct in photographing employees in neutral
circumstances is innocuous and not violative of the Act, even in the
context of a jocular ‘‘threat.’’ Bardcor Corp., 270 NLRB 1083
(1984).
20 The complaint alleged acts of interrogation by Kocinski on Sep-
tember 4 and 23. As the record contains no evidence supporting
these allegations, they are dismissed.
21 Hudson Oxygen Therapy Sales Co., 264 NLRB 61, 69 (1982),
citing Schrementi Bros., 179 NLRB 853 (1969), and South Shoe
Hospital, 229 NLRB 363 (1977).
roneously, that it was improper for her to have signed one
because she was a professional. Moreover, prior to this con-
versation, as noted above, Anderson had heard McCarthy tell
McCullough that an excuse should be found to discharge em-
ployees found to have signed authorization cards. Accord-
ingly, I find that the Respondent, in putting these two ques-
tions to Anderson, respectively violated Section 8(a)(1) of
the Act.
Linda Christner was an open union supporter, having vol-
unteered as much to McClain in June. Thus, his later ques-
tion to her, merely asking what was happening with the
Union, cannot be deemed coercive in violation of Section
8(a)(1) of the Act. On the other hand, McClain’s query of
Christner in the van, concerning who had started the union
activity at another house went beyond legitimate banter.
McClain’s inquiry in this regard sought information about
the union activities of other employees, never a permissible
subject of inquiry,17 and occurred in the context of
McClain’s various threats to other employees, which will be
discussed below. Among the things McClain had told em-
ployees was that McCarthy was asking around about the the
Union’s campaign leadership.
Nursing Supervisor Geary’s questions to two employees
are alleged as violative interrogations. The first was her
question to graduate nurse Sciore concerning his preference
for more money or greater benefits. This query did not delve
into his already known union sympathies.18 The second,
asked of Goodwin, who had signed the September 18 orga-
nizing notice letter to Emrick, similarly did not require that
he divulge either his own or anyone else’s union proclivities.
It merely asked a known union adherent whether the same
union was involved in organizing the Employer’s various fa-
cilities. I find neither question to have crossed the line into
impermissible interrogation.
Finally, in this regard, there is the September 24 telephone
call by Surrena to Schlagel where Schlagel was asked about
her own union activities and about the union activities of
other employees. This interrogation was concluded with an
amorphous threat that ‘‘things are going to get rougher.’’
The coercive nature of such interrogation, to an employee
with no demonstrated open union proclivities, is patent and
violative of Section 8(a)(1) of the Act, respectively with re-
gard to the interrogation concerning Schlagel’s union activi-
ties, the union activities of other employees, and the afore-
said threat.
b. Solicitation of grievances; promises and grants
of benefits
The complaint alleges that Emrick, during the meetings
she conducted, solicited the employees’ grievances and
promised them increased benefits and improved terms and
conditions of employment if they refrained from supporting
the Union.
Weighing the General Counsel’s failure to adduce avail-
able corroborating testimony against the thoroughness of
Emrick’s recollection of these meetings, as corroborated by
Geary, I credit Emrick and find that the meetings were called
to discuss serious economic problems. Emrick’s questions
about problems the employees were having related to the de-
layed paychecks and management’s efforts to assist the em-
ployees adversely affected by them. Questions raised by the
employees only were incidental to this and the Union was
not mentioned at any of the meetings. I do not conclude that
Emrick’s conduct during these sessions amounted to unlaw-
ful solicitation of grievances or the promises of benefit in-
tended or likely to result in lessened support for the Union.
Similarly, I do not find that the correction of some of the
problems related by the employees, coincidental with im-
provement in the Employer’s financial situation, constituted
a granting of benefits to dissuade the employees from sup-
porting the Union.
c. Surveillance and creating impressions of surveillance
General Counsel alleged the videotaping of ‘‘any union
activities . . . occurring at’’ the June 28 staff picnic as coer-
cive surveillance. When the picnic was held, the campaign
was incipient, little more having occurred in that regard than
some telephone contacts. There was no evidence that man-
agement knew of union activities at that time or that employ-
ees engaged in conduct on the Union’s behalf at the picnic.
Therefore, noting the absence of evidence of company
knowledge, the ambiguous nature of the statement attributed
to Kocinski, the frequent practice of video-taping social
events,19 and the absence of any evidence that the employees
were engaged in union activities at the picnic, I find that
Rocinski did not violate Section 8(a)(1) of the Act merely by
telling employee Kennel, 3 days before the company picnic
that, if she was going to that even to cause trouble, it will
be videotaped.20
The test of whether an employer has unlawfully created an
impression of surveillance of its employees’ union activities
is ‘‘whether the employees could reasonably assume from
the actions or comments of a respondent that their union ac-
tivities had been placed under surveillance.’’21 General
Counsel alleges that Geary’s late August statement regarding
Sciore’s inhouse solicitations; her comment to Stillman, over-
heard by Cheryl Smith, to the effect that she knew who was
responsible for starting the union activities; and Surrena’s
questions to Schlagel and Jones, in late September, con-
cerning whether they had attended, or knew anything about,
a union meeting, created such impressions.
As previously noted, certain Respondent’s employees en-
gaged openly in their union activities; some volunteering to
their immediate supervisors information concerning the meet-
ings and their participation. In these circumstances, merely
telling employees that a supervisor is aware of a union meet-
ing, knows when it was held, and believes (erroneously) that
913VALLEY COMMUNITY SERVICES
22 Jakel Motors, 288 NLRB 730 fn. 2 (1988).
23 Working hours’’ connotes periods from the beginning to the end
of the work shift, including the employees’ own time. Contemporary
Guidance Services, 291 NLRB 50, 66–67 (1988); Our Way, Inc.,
268 NLRB 394, 395 (1983); Essex International, 211 NLRB 749
(1974).
24 Litton Systems, 300 NLRB 324 (1990); Cannon Industries, 291
NLRB 632, 634 (1988).
25 Aquatech, Inc., 297 NLRB 711 fn. 1 (1990).
26 295 NLRB 347, 351 (1989).
27 297 NLRB 698, 702 (1990).
28 Camvac International, 288 NLRB 816, 820 (1988).
it was held at a particular employee’s home does not rise to
the level of a violation under the test set forth above. Where
there is open union activity, such knowledge could have been
attained by the supervisor without need for surveillance. In
Sciore’s case, the record reflects that another employee had
reported his solicitation to Geary and, as will be discussed
below, she told him of this in the course of admonishing him
about solicitations during working time. However inhibiting
such a statement might be, it does not necessarily convey an
impression that management is encouraging employees to
make such reports or is trying to observe employee union ac-
tivities.
Accordingly, I shall recommend that complaint allegations
concerning surveillance and creating the impression of sur-
veillance be dismissed.
d. No-solicitation rules
The record establishes that after Sciore had been reported
as having solicited for the Union while at work, Nursing Su-
pervisor Geary told him that he was ‘‘not permitted to solicit
union materials or activities on company property, company
time or in front of the clients.’’ The record also establishes
that other solicitations, particularly for charitable fundraisers
but also for personal business ventures such as the sale of
Avon products, had been permitted at work during working
time with the knowledge and participation of supervisors.
General Counsel attacks the restrictions Geary placed upon
Sciore as both overly broad and discriminatory. The Re-
spondent contends that the restriction was limited to ‘‘work-
ing hours’’ and that Geary’s intention was that Sciore not so-
licit in front of clients and while he and the other employees
were working.
In agreement with the General Counsel, I find that the lim-
itation placed upon Sciore, while generally not widely ap-
plied, was unlawful. An employer may not single out union
solicitations or distributions for prohibition while, at the
same time, permitting employees to solicit for their private
enterprises and favorite charities.22 Neither may it prohibit
employees from engaging in such solicitations and distribu-
tions on its property during their own, nonworking time.
Geary’s direction to Sciore to not engage in such activities
on company property and during ‘‘working hours’’ would
preclude him from engaging in union activities on his own
time.23 Clearly, when employees are permitted to talk freely
among themselves while working, an employer may not pro-
hibit them from talking about their union activities, at least
when those discussions do not rise to the level of a solicita-
tion or distribution.24 Accordingly, the Respondent’s no-so-
licitation rule enunciated by Geary is violative of Section
8(a)(1) of the Act because it is too broad and discriminatorily
applied.
e. Futility of union representation
The General Counsel contends that the Respondent vio-
lated Section 8(a)(1) of the Act when Kineer asked Cheryl
Smith, ‘‘What makes you think Celeste won’t continue to
fight the Union now that we’re in the black?’’ and when
McClain told employees that ‘‘Mrs. Emrick would never
give in to the Union.’’ Such remarks, it is contended, inform
the employees that it would be futile for them to select the
Union as their bargaining representative.
Statements by which an employer tells its employees that
it will refuse to bargain in good faith are violative because
they suggest that it would be futile for employees to select
a union as representative.25 Similarly, statements which con-
vey a sense that it would be futile to pursue organizational
efforts violate Section 8(a)(1) of the Act. For example, in
Ideal Elevator Corp.,26 the employer’s statement that he
would fight the union to his last penny and that that Com-
pany always had been, and always would be, nonunion was
found violative. Similarly, in Money Radio,27 the employer’s
remark that he ‘‘would sooner die than let the Union in’’
was deemed violative of Section 8(a)(1). On the other hand,
a statement to the effect that the Employer would continue
to operate, reviewing and granting benefits, as it always had,
was deemed permissible campaign rhetoric within the ambit
of Section 8(c) of the Act.28 In Rossmore House, supra, the
employer’s remark that it would ‘‘fight [the union’s organi-
zational efforts] to the hilt’’ did not warrant a conclusion that
interrogation contemporaneous with that statement was coer-
cive.
The statements of Kineer and McClain, both low level su-
pervisors, were similarly permissible campaign rhetoric. An
employer is permitted to campaign against a union’s efforts
to secure representational rights; it is similarly free to engage
in hard bargaining with a union that has won such rights. It
is not obligated to concede victory to the union or to ‘‘give
in’’ to its demands for either recognition or benefits. These
statements by Kineer and McClain do no more than assert
that the Respondent would exercise its legal rights and were
not violative of the Act.
However, McClain’s mid-August comment to Sciore that
whether the employees got a union or not, nothing would
change, they would get no more money or benefits, clearly
falls among those cases holding that suggestions of future
bad faith bargaining are violative of Section 8(a)(1) of the
Act.
Complaint paragraph 10(f) alleges a similar violation at-
tributable to McCarthy, occurring about October 15,
unreferenced in the General Counsel’s brief. The record,
however, indicates that McCarthy merely had told employees
that the Union would demand more money and there was no
more money. Given the Employer’s recent and continued fi-
nancial travails, in contrast to McClain’s above conclusionary
statement that bargaining would have no result, McCarthy’s
statement was but a lawful expression of his opinion and
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 See Telex Communications, 294 NLRB 1136, 1139–1140
(1989).
30 Capitol Transit, 289 NLRB 777, 783 (1988).
31 Nemacolin Country Club, 291 NLRB 456, 460 (1988).
32 It is not unreasonable, when viewed from a distance, that some-
one would mistake the van wheelchair lift for a cage.
constituted no more than a realistic appraisal of the give and
take of collective bargaining.29
f. Threats
I have found above that Anderson had overheard McCar-
thy directing McCullough to find excuse to discharge anyone
speaking about or otherwise having anything to do with the
Union. Such a threat violates Section 8(a)(1)30 whether or
not it was intended for the employee’s ears and whether or
not it was carried out. The violation turns on the tendency
of the employer’s conduct to interfere with the free exercise
of statutory rights, not on the employer’s motives.31
I also have found that both McCarthy and McClain told
employees that the advent of the Union would cause the Re-
spondent to declare bankruptcy or close down, reopen under
a new name, and that McClain told employees that, if the
Union got in, ‘‘things would get rougher’’ or that he would
have to ‘‘crack down and watch’’ every move the employees
made. No citation of authority is required to establish such
threats as respective violations of Section 8(a)(1) of the Act.
11. The alleged discriminatory discharges—facts
and conclusions
Linda Christner, Michael Sauritch, and Monika Welsh
were program assistants at the Delle Vernon house. Christner
and Sauritch were openly supportive of the Union’s cam-
paign and the undisputed evidence is that management was
aware of their prounion sympathies and activities. Christner
had been a signatory to the above September 18 letter from
the Union to Emrick. Sauritch’s union activities principally
had consisted of signing an authorization card for himself
and, with authorization, for his brother, Patrick, at a union
meeting. Except that she had signed a union authorization
card on September 1, the record is silent on Welsh’s union
activities. No charge was filed on her behalf.
On September 30, Christner, Sauritch and Welsh took six
or seven Belle Vernon house residents for a drive through
Round Hill Park in a Respondent’s van. Christner drove the
van while Welsh occupied the front passenger seat and
Sauritch the bench seat in the back of the van, between two
residents. Four residents, in wheelchairs, were between him
and both the driver and the doors. Sauritch was responsible
for watching the residents, some of whom had behavioral
problems and others who were subject to seizures.
As they entered the park, Welsh observed a pond with
ducks. She asked to get out to better observe the ducks. Ac-
cordingly, Christner stopped the van, Welsh got out and the
van proceeded through the park. When the van returned to
the pond, Welsh was holding a mallard drake in her arms
which she wanted to show the residents. Christner opened
the van doors so that the residents could see the duck. After
a couple of minutes, Welsh insisted on getting into the van
with the duck, declaring that she was going to take it home
to breed with some ducks she owned. Christner insisted that
she release the duck; that they would not leave the park with
the duck in the van. Christner told Welsh that she would turn
her in at the park office unless the duck was released. When
Welsh did not give up the duck as requested, Christner drove
to the park office. After Christner repeated the threat to turn
Welsh in, Welsh released the duck. The van, with all occu-
pants, returned to the house. Nothing was said or reported by
the three program assistants.
On the following day, the secretary at the Respondent’s
main office phoned Michael McCarthy and told him of a re-
ceived call from a police officer concerning the alleged theft
of a duck by persons in a Respondent’s van. Purportedly, the
officer told her that it had been reported that a man and a
woman had grabbed a duck from the park and thrown it in
a cage in the back of a van, later identified as the Respond-
ent’s van assigned to Belle Vernon, and had driven off while
citizens yelled at them to stop. The officer alluded to the
possibility that the van could be confiscated by the Fish and
Game Department. McCarthy reported the call to Emrick,
who said she would notify the appropriate state and county
officers that an investigation was underway. He also called
McClain at the Belle Vernon house and asked him to arrange
a meeting with the staff. Sauritch and Christner met with
McCarthy on October 1.
At the October 1 meeting, according to the employees,
McCarthy laughed about the incident. However, he also told
Sauritch that the incident was serious as the van might be
impounded and he warned that Sauritch might be suspended
as a result. Each employee was questioned individually and
each described the incident as set forth above. Sauritch told
McCarthy that he had not been in position to do anything,
having been blocked in the back of the van by the wheel-
chairs. McCarthy asked why Sauritch had not reported the
incident.
After speaking with the employees, McCarthy met with
the complaining police officer at the park. The officer related
that the duck-napping had been reported by a couple from
Ohio who stated that a man and woman had taken the duck
and thrown it in a cage in the back of the van.32 McCarthy
was told that the missing duck was a tame park pet named
‘‘Daffy’’ and, if Daffy was not found, the van could be con-
fiscated and the occupants fined. When McCarthy asked that
a search be made for Daffy, the park supervisor called out
the duck’s name and Daffy came flying or waddling in to
them. At that point, the police officer said that the matter
would be pursued no further.
McCarthy returned to the house and prepared a report of
the incident. He also told Emrick that, as Daffy had been
found, no police action was being contemplated. He con-
vened a meeting of the safety committee.
The Respondent’s safety committee, consisting of McCar-
thy, Maimone, Geary, and Marsh, reviewed the incident and
recommended that all three employees be discharged. Welsh
was to be discharged for leaving her post, Christner for driv-
ing without an aide in the front seat and for not reporting
the incident and Sauritch for not reporting the incident al-
though he had not been positioned to prevent it.
Emrick received a copy of the safety committee’s report
on the following day and told McCarthy that she would sup-
port its disciplinary recommendations. Emrick explained that,
under the Respondent’s personnel policies, termination for
‘‘gross misconduct’’ required no prior record of discipline.
915VALLEY COMMUNITY SERVICES
33 Sauritch’s disciplinary record with the Respondent is that he was
discharged first, reinstated and later reprimanded for other offenses.
Specifically, in about June 1988, Sauritch was reinstated by the Re-
spondent after having been terminated for refusing to change soiled
diapers. In April and May 1989, he received written reprimands for
failure to document goal plans (client training programs) for two
residents, and for failure to report unsafe equipment and to perform
job duties. The April reprimand had been accompanied by a 1-day
suspension.
She testified that Christner had acted irresponsibly, placing
the clients in jeopardy in an abusive situation. In particular,
she noted that Christner had allowed a staff person to leave
the van, reducing the ratio of clients to staff from seven to
three to seven to two. Emrick testified that both Christner,
who had been a program manager, and Sauritch knew that
this was an unusual incident which should have been re-
ported, adding that she had considered that bringing a wild
animal into contact with the clients raises risk of infection.
Emrick alluded to the illegality of the employees’ conduct
and pointed out that Christner, the most senior assistant, was
driving the van and could have refused to comply with
Welsh’s request to stop. Emrick stated that the decision to
discharge Sauritch was not based upon prior discipline he
had received.33
All three employees were called and told that they were
discharged. Christner and Sauritch filed grievances; Welsh,
as a probationary employee, was not allowed to do so.
Christner gave her grievance to McClain who told her that
there was no reason for the discharge other than the attor-
ney’s recommendations and that she and the employees
should have filed an incident report. Christner told both
McClain and Emrick that she had not filed a report because
she did not want to ‘‘rat’’ on her fellow employee.
Christner’s grievance, dated October 9, related that she had
tried to prevent the incident, that her actions had resulted in
the release of the duck and that her responsibility was care
of the residents, not supervision of the staff.
Emrick replied to Christner on October 14, stating that
Christner had not explained why she did not file an unusual
incident report and, when such explanation was received, a
decision would be made on her grievance.
On October 16, Christner wrote back that she did not file
a report because the incident was resolved before they had
left the park. Christner questioned why she had been dis-
charged and stated that a reprimand or 1-day suspension
would have been appropriate. On October 21, Emrick replied
in writing that Christner’s October 16 letter was insufficient.
On October 24, Christner amplified her earlier letter, point-
ing out that she had worked for 3 years without a single rep-
rimand. She requested a meeting to discuss her termination.
Christner met with Emrick on October 28. As indicated in
Emrick’s October 29 letter, Christner was reprimanded for
poor judgment and ‘‘gross misconduct in violation of Valley
Community Services’ Personnel Policies’’ in failing to report
the unusual incident. However, Christner, because of her dis-
cipline-free employment record, then was reinstated. Her lost
time treated as disciplinary suspension.
Sauritch was not so fortunate. He had explained that he
believed that there was nothing to report and that he had not
been in a position to prevent the incident from occurring. On
October 29, Emrick notified him that his discharge for failure
to report an unusual incident would stand. Her letter noted
that Sauritch had been trained to report unusual incidents and
‘‘had two other reprimands in your personnel file that will
not allow me to consider your reinstatement.’’ Those prior
disciplines, as noted, issued in April and May 1989, had
been for failure to collect data and, again, for failures to re-
port unsafe equipment and to perform job duties.
The job descriptions for program assistants required that
‘‘Incident/Unusual Incident Reports are [required to be] sub-
mitted to Program Manager or Weekend Supervisor before
going off duty.’’ Christner, as a former program manager,
was expected to know this. Both Christner and Sauritch had
been ‘‘inserviced’’ with respect to incident reporting proce-
dures and, on July 17, had signed a staff training report to
that effect. Those procedures required that reports be filed
both in ‘‘unusual incident’’ and more ‘‘usual’’ incident situa-
tions. Unusual incidents involved such things as outbreaks of
communicable diseases, loss of a client’s money or other
property, injuries requiring hospitalization or resulting in the
death of a client, missing clients, and incidents requiring the
services of the fire department or an enforcement agency.
Usual incidents were defined to include ‘‘any other incident
or occurrence that does not fall into Class I or Class II Un-
usual Incidents.’’ Described were such things as minor inju-
ries to residents.
McCarthy explained that one consideration in Sauritch’s
discharge was his failure to say anything to stop Christner
from letting Welsh out of the van. He claimed that the pro-
gram assistants’ job description held them responsible for su-
pervising one another when the program manager was ab-
sent. That job description and the relevant evaluation form,
however, provided only that program assistants assume su-
pervisory duties in the absence of the program manager or
weekend supervisor, ‘‘as delegated.’’
At first impression, this appears to be a preposterous inci-
dent culminating in unwarrantedly heavy discipline. From the
employees’ perspective, nothing of significance had occurred
and, to the extent that there was an incident, unusual or oth-
erwise, it had been concluded before they left the park with-
out harm to anyone. None of the criteria of an unusual inci-
dent were present at that point in time; no one had been hurt;
and when Christner and Sauritch returned to the house, they
were unaware that law enforcement personnel would become
involved.
From management’s perspective, however, this incident
was more serious. The Respondent, entrusted by the Com-
monwealth of Pennsylvania with the care of clients who were
fragile, physically and/or emotionally, was required to report
to appropriate state authorities any matter of significance af-
fecting these clients.
Because of the intensive care requirements for its clients,
some of whom had potential for violence, the Respondent’s
policies mandated a strict numerical ratio between staff and
clients at all times. This ratio was at least three staff mem-
bers for eight clients, except when LPNs were on duty when
there could be four staff persons to eight clients. Manage-
ment was concerned with respect to the duck incident not
only that the ratio of staff to employees be maintained on the
van, but that the passenger seat next to the driver be occu-
pied by an employee. This was because approximately two
months before the incident concerning the duck, a client had
tried to choke Christner while she was driving the van, after
which Christner had refused to operate the van unless the
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), ap-
proved in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
35 The record shows that the Respondent had trained its employ-
ees, including Christner and Sauritch, in the need to report unusual
incidents.
front passenger seat was attended. The Respondent, in this
context, also was concerned that Sauritch had so wedged
himself inside the van as to be unable to react had there been
difficulty. Accordingly, when Christner permitted Welsh to
leave the van, not only was the ratio of staff to clients below
the Respondent’s requirements, with the clients placed at
risk, but the front passenger seat again was left unattended
leaving Christner, as driver, vulnerable as before. As noted,
Sauritch, awkwardly positioned, would not have been situ-
ated to readily assist Christner or any clients on the van had
the need arose. It is not contended that Sauritch could have
prevented Welsh from exiting the van.
Management’s greater concern, however, was these em-
ployees’ failure to report this incident. While the Respondent
categorized this incident as ‘‘unusual,’’ this occurrence did
not rise to the level of unusual incidents is defined in Em-
ployer’s instructional materials. However, applying a com-
mon dictionary meaning, the incident would have to be con-
sidered sufficiently distinctive as to come within the report-
ing requirements for more usual incidents. Given the Em-
ployer’s demanding responsibility to the clients and its obli-
gation to formally record client care, I find that management
was within its legitimate prerogatives in requiring that these
employees report the incident and in applying discipline for
failure to comply. A defense of not wishing to ‘‘rat’’ on a
fellow employee was neither adequate nor consistent with a
concurrent claim that the employee did not know of the need
to report this incident.
As to the Employer’s motivation in discharging Christner
and Sauritch, under the governing Wright Line34 analysis, the
General Counsel first must ‘‘make a prima facie showing
sufficient to support the inference that protected conduct was
a ‘motivating factor’ in the employer’s decision. Once ac-
complished, the burden shifts to the employer to demonstrate
that the same action would have been taken notwithstanding
the protected conduct.’’
I am satisfied that General Counsel, because of these em-
ployees’ union activities and the Respondent’s knowledge
thereof and union animus, has established a prima facie case
of discrimination. However, I also conclude that the Re-
spondent has met its burden of showing that the discharges
would have occurred even in the absence of union activities.
As found above, the Respondent had a legitimate state-driven
interest in requiring that its employees formally report un-
usual incidents affecting clients, including events such as
this.35 The Respondent also was entitled to enforce its policy
at the houses and in the vans that an appropriate numerical
ratio be maintained between clients and attending staff and
that, in the van, the front passenger seat be guarded—particu-
larly when Christner, in the absence of that safeguard, nearly
had been choked by a client while driving the van only 2
months before. Christner’s actions in allowing Welsh to
leave the van while she continued for a time to drive through
the park placed both Christner and the clients at risk by up-
setting this ratio and by leaving the front passenger seat unat-
tended.
Moreover, the Respondent’s subsequent actions in rein-
stating Christner, but not Sauritch, reflect substantive judg-
ments as to their respective merits as employees rather than
retaliation for union activities. Of the two, Christner, whose
work record theretofore was unblemished, had been markedly
the more active and open union supporter. Yet, in consider-
ation of her prior work history, she was reinstated. On the
other hand, Sauritch, who had been disciplined on three oc-
casions in the not-too recent past, penalties which included
discharge, suspension, and written reprimands, was not rein-
stated although his union activities were comparatively mar-
ginal. While Emrick seemingly was inconsistent in testifying,
in the first instance, that these employees’ prior work record
had played no role in the initial decisions to terminate them,
but later that those records had provided the basis for deter-
mining whether to reinstate them, such judgments actually
represent two separate concepts. Having determined that
these employees had knowingly and seriously violated its
above policies, the Respondent, in such circumstances, found
that they had engaged in ‘‘gross misconduct’’ and discharged
them. The Respondent, in thereafter deciding whether to
grant leniency, did take their prior records for discipline into
account and, as noted, reinstated Christner as the employee
with the favorable work history although, as General Counsel
emphasizes, the Respondent knew that she had been a prin-
cipal union activist, certainly in comparison to Sauritch. Ac-
cordingly, even in consideration of the Respondent’s dem-
onstrated union animus as evidenced by the multiple viola-
tions of Section 8(a)(1) of the Act as found above, it is noted
that these employees were terminated for knowingly vio-
lating significant company policies and that leniency there-
after was applied inversely to their known union activities
and sympathies. Therefore, a preponderance of the evidence
does support a finding that Christner and Sauritch were dis-
ciplined because of their support for the Union and I con-
clude that Section 8(a)(3) and (1) of the Act was not violated
by their treatment.
12. The alleged refusal to bargain
a. Unit—family day care and food providers
The Respondent, contrary to the General Counsel, would
include within the collective-bargaining unit 14 family day
care providers. Of these, five (referred to herein as the
FDCPs) provided both food and care in their own homes to
children of qualifying parents, placed by and under the Re-
spondent’s supervision. The nine others—here termed food
providers—provided day care independently of the Respond-
ent but participated in a food program of which the Respond-
ent was the local administrator. Under this program, sub-
sidized meals were served to children in their care.
The FDCP program stemmed from the Respondent’s con-
tracts with agencies designated by the State to manage day
care programs, such as the Young Women’s Christian Asso-
ciation (YWCA) in Allegheny County. The Respondent, in
turn, subcontracted with the FDCPs, individuals who were
registered with the State to provide day care in their homes
for up to six unrelated children. Those subcontracts set the
minimum hours of operation per day (6 a.m. to 6 p.m.), the
day care must be provided (Monday through Friday) and the
917VALLEY COMMUNITY SERVICES
36 298 NLRB 434 (1990).
37 See NLRB v. United Insurance Co., 390 U.S. 245, 256 (1968),
Air Transit, 271 NLRB 1108, 1110 (1984), and News Syndicate Co.,
164 NLRB 422, 423–424 (1967).
38 In that case, the Board distinguished Rosemount Center, 248
NLRB 1322, 1324 (1980), cited by the Respondent to establish that
all 14 of the FDCPs and food providers are its employees. The facts
in Rosemount Center were similar except that, there, the employer
exercised greater control over the FDCPs than did either Cardinal
McCloskey Services or VCS. That employer determined the com-
pensation levels, required the providers to attend weekly training ses-
sions, and limited the number of children the FDCPs could care for
to levels lower than otherwise would have been permitted by the
District of Columbia.
39 NLRB v. Browning-Ferris Industries, 691 F.2d 1117, 1124 (3d
Cir. 1982), enfg. 259 NLRB 148 (1981), citing Boire v. Greyhound
Corp., 376 U.S. 473 (1964).
maximum number of days per year for such service (250).
They set the rates at which the FDCPs were paid for part-
time and full-time care. The Respondent inspected the
FDCPs’ homes, interviewed them, paid a set price per
child/day, received and monitored reports on attendance and
meals served, and invoiced the State for payment. The Re-
spondent’s family day care coordinator visited each FDCP
about every other month, monitored the facilities and food
service for compliance with state regulations, and offered
some training. The FDCPs providers were expected to attend
monthly VCS training programs. The Respondent could ter-
minate the contract with a care provider for the FDCPs’ fail-
ure to meet the State’s or VCS’s higher care standards.
The family day care providers maintained their own
homes, and the Respondent was not responsible for damage
done in a home by a child. The providers could accept or
reject a child referred by the Respondent and choose to care
for less than the maximum number of children, six, set by
the State. For tax purposes, the FDCPs were treated as inde-
pendent contractors. No deductions were made from the
money they received from VCS for taxes or social security.
They did not receive health insurance, life insurance, or paid
vacations. The Respondent, however, did provide liability in-
surance. Either the FDCPs or the Respondent could arrange
for substitute care while the FDCPs were on vacation.
In addition to the five family day care providers were the
nine individuals who cared in their homes for children who
had not been placed by the Respondent. These providers, in
turn, were not responsible to the Respondent with regard to
their child care, having merely participated in a state-run
food program locally administered by the Respondent. Actual
food purchasing, selection, and preparation was done by the
providers who submitted forms indicating the number of
meals served and the menu items. The Respondent then re-
imbursed them with moneys received from the State, the Re-
spondent having been separately compensated for its admin-
istrative costs. The food providers were visited less often by
the Respondent’s family day care coordinator, about three or
four times per year. On those visits, the coordinator reviewed
the menus, observed the children being served, provided
some training, and distributed forms. These providers were
welcome at the monthly training programs but were not re-
quired to attend.
In Cardinal McCloskey Services,36 the Board applied the
right-of-control test37 to a factual situation so consistent with
the instant case that it would be redundant to set forth that
matter’s details. In Cardinal McCloskey Services, it was con-
cluded that the family day care providers were independent
contractors rather than employees and, thus, not entitled to
the protections of the Act. In fact, the providers in that case
were found to be independent contractors notwithstanding
that they enjoyed more employer and city-paid benefits (holi-
days and medical insurance) and were monitored more
‘‘closely and frequently’’ than were the Respondent’s family
day care and food providers. I find that Cardinal McCloskey
Services, which governs the instant situation, requires that
independent contractor status also be found here.38 Accord-
ingly, it is concluded that the FDCPs and food providers
were not the Respondent’s statutory employees within the
bargaining unit.
b. Children’s learning services
Valley Child Development Center d/b/a Children’s Learn-
ing Services (CLS) was a for-profit child day care center that
shared space and office facilities and services with the Re-
spondent’s not-for-profit child care center in the Cheswick
Shopping Center in Cheswick, Pennsylvania. CLS once had
been part of the Respondent but, pursuant to certain state re-
quirements, had been split off in 1976. However, since 1986,
CLS was managed by the Respondent. Each facility was sep-
arately licensed with their own employees and boards of di-
rectors. Each served children in identical age groups, provid-
ing them with a single-integrated program. Both the staff and
the children from the Respondent and CLS were commingled
in the programs, with the separate agencies charged accord-
ing to the number of children from each in a given class. In
a single classroom, an aide of one entity might have worked
under the direction of a supervising teacher employed by the
other. The staffs of both basically had identical compensation
and other benefits and worked under identical personnel poli-
cies, developed by Deborah Lanzo, the Respondent’s western
operations director. They shared common lounge, kitchen,
and restroom facilities and attended joint training and social
functions. While vacation requests were processed separately
by each concern, approvals were coordinated to assure proper
coverage. On October 1, 4 days after the Union’s September
26 claim of majority and demand for recognition, CLS was
dissolved and absorbed back into Respondent.
From the above facts, the General Counsel contends that
CLS was a separate legal entity when the Union made its de-
mand for recognition and that its employees, at that time,
were outside the relevant unit of Respondent’s employees.
The Respondent, in turn, argues that it and CLS were joint
employers whose employees constituted a single integrated
bargaining unit. Contrary to the General Counsel, the Re-
spondent would include the CLS employees in any appro-
priate bargaining unit.
Based upon the foregoing, I conclude that CLS and the
Respondent ‘‘exert[ed] significant control over the same em-
ployees . . . they share[d] or co-determine[d] those matters
governing essential terms and conditions of employment,’’
and therefore were joint employers within the meaning of the
Act.39 I further find that the employees in question shared
a close community of interest and should be included within
the same bargaining unit. Therefore, it is appropriate to in-
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
40 Tammy White, Barbara Grabowski, and Michelle Mallonee were
employed as teachers’ aides by CLS from July 1990 until October
1, 1991. When CLS dissolved on that date, they became employees
of VCS. They were within the unit here appropriate. Jennifer
Kushner had been employed as a substitute teacher for both entities,
but has not worked since January 1991, and had earned less than
$50 in that month. Given the infrequency of her work for either enti-
ty, her inclusion in the unit would be inappropriate. The Respondent
does not appear to contend otherwise.
41 Apex Paper Box Co., 302 NLRB 67, 68 (1991).
42 Red Arrow Freight Lines, 278 NLRB 965 (1986), and cases
cited in fn. 4. Romal Iron Works Corp., 285 NLRB 1178 fn. 1,
1185–1186 (1987), was cited by the General Counsel for the con-
trary position. In that case, the judge found that two employees
whom the Union contended were on leaves of absence but whom the
Employer claimed had been discharged were ineligible to vote in the
absence of evidence that they had manifested intention of returning
to work. However, reliance on this finding, at 1186, was inappro-
priate because the Board, at fn. 1, had expressly adopted this finding,
pro forma, in the absence of appropriate exceptions.
43 ‘‘It is the General Counsel’s burden to establish the Union’s ma-
jority status if it seeks a bargaining order remedy predicated on that
status.’’ Gourmet Foods, 270 NLRB 578 fn. 4 (1984).
44 Northern California Visiting Nurses Assn., 299 NLRB 980
(1990); Sisters of Mercy Health Corp., 298 NLRB 483 (1990).
45 Amoco Oil Corp., 289 NLRB 280 (1988). In Amoco, an em-
ployee on terminal leave on the date of the election still was eligible
to vote.
46 Apex Paper Box Co., 302 NLRB, supra at 68 fn. 2, and 69 fn.
10 (1991).
clude CLS’s employees in the bargaining unit of Respond-
ent’s employees.40
c. Unit—individuals alleged to be included in
bargaining unit
1. James Henry was a substitute van aide, hired by the Re-
spondent in November 1990. He went on part-time status in
April and last worked for VCS in June. At that time, he was
told that he was being laid off because of a reduction in the
number of children requiring transportation and that he
would be recalled if the situation changed. Since then, the
transportation program in which he worked was phased out
and discontinued.
A laid-off employee may be eligible to vote (or be counted
as within the unit for purposes of determining majority) if he
or she has a reasonable expectation of recall as of the payroll
eligibility period (critical date).41 Given the length of time
that has passed since Henry last worked for VCS and the dis-
continuation of his previous work, I find that Henry had no
reasonable expectation of recall.
2. Laurel Pyle was hired by the Respondent in February
1990 as a licensed practical nurse (LPN) on a regular part-
time basis. She became a substitute LPN in May 1990 and,
on January 20, 1991, requested and was granted a 1-year
leave of absence pursuant to the Employer’s policy which al-
lowed leaves of absence of that duration. Pyle was termi-
nated on January 31, 1992, because she had not returned
when her leave of absence expired.
An employee on sick or maternity leave presumably re-
mains eligible to vote until that presumption is rebutted by
an affirmative showing that the employee has resigned or
been discharged.42 Here, on September 26, Pyle was on
leave of absence for a fixed period not yet expired. Absent
evidence of a change in either the Employer’s or the employ-
ee’s position regarding continued employment, or evidence
from the General Counsel whose burden it was43 to show
that the employee’s situation was such as to affect her em-
ployment status, I believe that a like presumption must be
applied. Moreover, an on-call employee who is on leave is
entitled to vote if that employee regularly averaged 4 hours
per week during the quarter prior to her leave.44 Noting, too,
that the General Counsel has not met the burden of estab-
lishing that Pyle did not work with that degree of regularity,
I find Laurel Pyle was appropriately included in the bar-
gaining unit when the Union’s September 26 demand for rec-
ognition was made.
3. Susan Hudak, employed by the Respondent on August
30, 1991, as a kindergarten teacher at the Cheswick Center,
holds a B.A. degree and was certified in elementary edu-
cation by the Commonwealth of Pennsylvania. She volun-
tarily terminated her position on October 1.
General Counsel contends that Hudak’s ‘‘voluntary termi-
nation’’ coincided with the end of the monthly pay period
and her employment on September 26, 1991, was in effect
‘‘a serendipitous occurrence.’’ Accordingly, General Counsel
argues, she should be excluded from the appropriate unit.
Contrary to the General Counsel, the Board has held that
even if an employee, prior to a representation election, has
given notice of intent to quit her employment at some time
shortly after the election, that employee remains eligible to
vote if still employed on the date of the election.45 The same
rule pertains to the inclusion within the unit of employees
working on the date of a union’s demand for recognition.
Accordingly, I find that Hudak was within the bargaining
unit.
4. Jack Simak began his employment with the Respondent
in February 1988 as an administrative assistant, acquiring the
additional position of personnel manager in September 1989.
In 1991, when Simak and Emrick discussed a contemplated
Respondent reorganization, he was offered and declined
downgrade to a maintenance position. When laid off in June,
Simak was told that the Respondent would like to have him
in the maintenance position and would be in touch with him.
In July, not having found other employment, Simak commu-
nicated to the Respondent a willingness to accept the mainte-
nance position, if offered, but was told that budgetary con-
straints precluded his being hired at that time. Simak’s reiter-
ated request for such a position was rejected in August and
there has been no further communication between VCS and
Simak since that time.
The record does not support the Respondent’s contention
that Simak ‘‘was subject to recall in a maintenance position’’
as of September 26. He had ceased his nonunit employment
relationship in June and, even if he could be considered as
being on layoff, there was no job opening for him to assume
by the September 26 eligibility date. Notwithstanding
Emrick’s vague assurances that he would be considered for
future employment in maintenance, Simak had been perma-
nently laid off from a position outside the bargaining unit,
had never been employed in a bargaining unit job and had
no reasonable expectancy of being brought back to work in
a unit position.46
5. Karen Varrato began as the Respondent’s food service
coordinator in 1986 and held the title of director of food
services from July 1991 until her termination in April 1992.
919VALLEY COMMUNITY SERVICES
47 While these individuals are included among the ‘‘other’’ alleged
employees on Jt. Exh. 2, the Respondent has not made any argu-
ments in its brief concerning them.
48 Northern California Visiting Nurses Assn., supra; Sisters of
Mercy Health Corp., supra.
49 The cards unambiguously authorized the Union to represent the
signers as their collective-bargaining representative. Cumberland
Shoe Corp., 144 NLRB 1268, 1269 (1963).
50 A third individual in this group, Sechrengost, had signed an au-
thorization for payroll deduction but had failed to sign her last name
on the application for membership.
51 NLRB v. General Wood Preserving Co., 905 F.2d 803, 810–813
(4th Cir. 1990), enfg. 288 NLRB 956 (1988).
She possessed a bachelor’s degree in food service manage-
ment, prepared the menus, did some of the shopping, mon-
itored the use of the client’s food stamps, helped and/or
filled in for the cook, was responsible for ensuring that the
centers met state requirements for food service, and, on the
Respondent’s behalf, signed the relevant required forms.
Varrato also monitored the food service provided by the fam-
ily day care providers; directed and evaluated the work of the
cook and the maintenance man; and had authority to effec-
tively recommend wage increases and discipline, including
termination. However, she could not take such actions on her
own.
Given Varrato’s educational background, her title, and du-
ties, it is clear that she was a member of the management
team with supervisory responsibilities, and not within the
bargaining unit.
6. Varity Sipes was the secretary to the west operations di-
rector. In September, she was employed at the Cheswick of-
fice on Pillow Avenue where there were no client or client
service facilities. Until July, before it was moved, her office
had been at the Cheswick Center office. Sipes performed
secretarial, receptionist, and other clerical functions, having
been trained in automatic data processing and degreed in sec-
retarial and finance work. Sipes helped the cook by sorting
and delivering food; with the program manager, she did food
purchasing; regularly brought cleaning supplies, blankets, and
pillows; and was authorized to bring supplies to the employ-
ees in the client service end of the business. A few times per
year, when her office was at the Cheswick Center and when
that Center was shorthanded, Sipes assisted teachers as an
aide. Her contacts with employees engaged in the preschool
and residential programs consisted of talking to them to see
what was needed and to bring them supplies. At the time of
the hearing, Sipes no longer was employed by Respondent.
The Respondent contends that Sipes had substantial con-
tacts with acknowledged unit employees, shared a commu-
nity of interest with them, and was more like a plant than
an office clerical employee. However, I find that it would not
be appropriate to include this salaried office clerical em-
ployee in a bargaining unit of hourly paid client-serving
workers. Sipes was an office clerical employee who had few
contacts with the other workers and less with the clients.
What connections she did have generally were in the nature
of sporadic deliveries which did not involve working with
unit employees in any meaningful way. I find no basis for
including Sipes in the bargaining unit.
7. James Brown and Debra Lohr were licensed practical
nurses (LPNs).47 It was stipulated that Brown worked 12
hours in January, 18 hours in February, 10 hours in March,
and 10 more hours in July 1991; he has not worked since
then. Lohr, it was stipulated, was employed as a substitute
LPN in 1991, working 43 hours in January and 12 hours in
December, with no hours worked in the intervening months.
Neither averaged 4 hours per week in the quarter preceding
the date of the Union’s September 26 demand. Neither
Brown nor Lohr should be included in the unit as of that
date.48
d. Majority status
Joint Exhibit 2 contains the names of 132 employees
whom the parties agreed should be within the bargaining
unit. It also named 14 family day care providers who I have
determined fall outside of that unit as independent contrac-
tors, and 12 others. I have determined that five of those oth-
ers, CLS aides White, Grabowski, and Mallonee, LPN Pyle,
and Cheswick Center kindergarten teacher Hudak were ap-
propriately included in the unit. Accordingly, I find that the
unit consisted of 137 employees on September 26, the date
of the Union’s demand for recognition.
General Counsel adduced union authorization and/or mem-
bership application cards signed by 89 employees. The Re-
spondent, while generally denying the propriety of relying on
authorization cards to prove majority status,49 has disputed
16 of these cards. Even assuming, arguendo, the validity of
Respondent’s 16 challenges, the Union still would have ma-
jority status with signed authorization cards from 73 of 137
unit employees. Virtually all the cards were signed between
mid-August and mid-September.
However, for completeness, I shall treat with the 16 chal-
lenged cards. The Respondent challenged six cards, those
purportedly signed by employees Tracey Keill, Cynthia
Macko, Carol Maloy, Melody Sechrengost, Mack Skaggs,
and Sherri Zelmore, on the ground that they had been inad-
equately authenticated by Union Business Representative
John Haer. Haer testified that these cards had been signed at
an August 12 meeting he had conducted with the Respond-
ent’s employees. Although Haer had not known all employ-
ees personally prior to the meeting and had not specifically
witnessed the various acts of card signing, he had seen em-
ployees apparently sign their cards and pass them back to
him, singly and in group. Haer’s information as to who had
been at the meeting and who had signed cards came by ref-
erence to the attendance roster for that session. The cards of
Keill and Macko were challenged for the additional reason
that these employees only had signed the authorizations for
payroll deduction but had failed to sign the applications for
membership and authorizations for representation.50
Authorization cards may be sufficiently authenticated
through the testimony of the union representative who had
conducted the meeting at which they were signed, where he
saw cards signed and where the cards were returned to him
by the signers, particularly where the signatures corresponded
to the names of employees who had attended the meeting,
as shown on the attendance roster.51 The signed payroll de-
duction authorizations of Keill, Macko, and Sechrengost also
may be considered in determining the Union’s majority sta-
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
52 Grey’s Colonial Boarding Home, 287 NLRB 877 (1987),
quoting Lebanon Steel Foundry, 33 NLRB 233, 239 (1941), enfd.
130 F.2d 404 (D.C. Cir. 1942), cert. denied 317 U.S. 659 (1942).
53 Amoco Oil Corp., supra.
54 La Mousse, Inc., 259 NLRB 37, 42 fn. 10 (1981).
55 Limpert Bros., 276 NLRB 364, 370 (1985) (card of Carmen
Rodriguez).
56 Before closing the hearing in this matter, pursuant to the parties’
stipulation, I left the record open solely to receive specific data con-
tained in the Respondent’s payroll records relating to four employ-
ees, Barbara Grabowski, Michelle Mallonee, Tammy White, and Jen-
nifer Kushner, who, on September 26, had been employed as aides
by CLS. This was to enable introduction of further evidence con-
cerning the unit placement of these four individuals. Jt. Exh. 2
which, as noted, listed 132 employees whom the parties stipulated
were in the unit, also identified all employees in other categories
whose status within the unit was in dispute, including the four
above-named individuals. However, after the hearing the Respondent
filed a motion for a more specific stipulation wherein, over the Gen-
eral Counsel’s objection, he sought to expand my stipulation-based
ruling that payroll information concerning the four be subsequently
received by submitting, as proffered R. Exh. 24, analogous payroll
data for a list of 28 employees on CLS’ payroll as of September 26.
Those included in this enlarged list previously had not been identi-
fied except that three of the above four employees who had been
the subject of my ruling also were included among the 28 in Re-
spondent’s motion. While it is undisputed that the remaining 25 were
on the CLS payroll on September 26, and received the remunerations
indicated, there is no showing as to the capacities in which these in-
dividuals were employed, where they were employed, their duties or
other information relevant to their unit placement. Also, the Re-
spondent’s proffered exhibit reveals that 4 of these 25, unlike vir-
tually all the hourly rated unit employees, were salaried. The payroll
data concerning the four employees covered by the original ruling,
Grabowski, Mallonee, White, and Rushner, has been received and
considered above. As stated by the General Counsel in opposition
to the Respondent’s motion, it much exceeds the specific and limited
purpose for which the parties had agreed to hold open the record,
and attempts to do so without established basis. As the General
Counsel indicates, Sec. 102.48(d)(1) of the Board’s Regulations pro-
vides that a motion to reopen the record, which the Respondent in
effect now seeks to do, must be based on newly discovered evidence
or evidence which has become available only since the close of the
hearing. Here, the Respondent’s newly offered evidence is drawn
from the Respondent’s own business records within its possession
and control and is neither newly discovered nor previously unavail-
able. The General Counsel also correctly further points out that re-
ceipt of the Respondent’s proffered evidence would be a posthearing
derogation of the parties’ stipulation underlying Jt. Exh. 2 which
contained the names of those employees whom the parties agreed
were in the unit and all the additional employees whose unit place-
ment was in dispute. The exhibit defined the outer parameters of the
unit. The Respondent’s failure to mention or seek to include these
additional 25 ‘‘employees’’ at the hearing also serves to preclude
that party from so doing after the hearing has closed. For the above
reasons, the Respondent’s motion for a more specific stipulation is
denied and the R. Exh. 24 in support thereof is placed in the rejected
exhibit file.
57 395 U.S. 576, 603 (1969).
tus as the Board long has held that implicit in the signing
of a dues-deduction authorization is authorization for rep-
resentation.52
The Respondent challenged the cards of Rae Barron,
Diana Hileman, Larry Rice, and Linda ‘‘Lesnowski’’ on the
ground that on September 26 they no longer were employees.
As argued by the Respondent, the names of Barron, Diana
(or ‘‘D.’’) Hileman, and Rice were not listed on Joint Exhibit
2 as among those whom the parties had stipulated to be em-
ployees on that date and they, therefore, must be excluded.
The name of Linda Lesnioski, however, was included on that
list and her card was among those submitted by the General
Counsel. Accordingly, Lesnioski’s card should be included in
determining the Union’s majority status.
The Respondent would exclude the authorization cards
signed by Rocco Sciore and Nina Stepoli on the ground that
both were registered nurses (RNs) on September 26. The
record supports the Respondent’s contention with respect to
Sciore. Stepoli’s card, authenticated by Christner, was re-
ceived in evidence over Respondent’s objection with the un-
derstanding that her status, undescribed in the record, would
be resolved. The parties did not revisit this issue and Stepoli
was not on the Joint Exhibit 2 listing of unit employees. On
that basis, I conclude that General Counsel has failed to es-
tablish that Stepoli was a unit employee.
The Respondent correctly challenged the authorization
cards of Michele Pushkarich and Donna Sleasman on the
ground that the cards were signed on November 18 and De-
cember 20, respectively, after the September 26 demand date.
Since cards executed after the demand date cannot be used
to establish majority status as of that date, the Respondent’s
challenges to the cards of Pushkarich and Sleasman are sus-
tained.
The Respondent contends that Mary Joe Dalasio’s card
should not be counted in determining the Union’s majority
status as of September 26 because she had given notice of
her intention to quit her job at the end of September. This
is the obverse of the General Counsel’s above argument
against counting the card of Susan Hudak who had volun-
tarily terminated her employment on October 1. As in the
case of Hudak, Dalasio must be included in the unit on the
critical date.53
Patrick Sauritch testified that he had authorized his brother
to sign an authorization card on his behalf and his card was
introduced through that brother, Michael. Patrick Sauritch’s
testimony conflicted with a pretrial affidavit wherein he had
sworn that he had signed the card himself. He explained that
when he gave that affidavit he was unsure of whether an au-
thorization to another person to sign the card was proper. In
fact, there is no impropriety in such an authorization54 and
the Board previously accepted a card under virtually identical
circumstances.55 I find Patrick Sauritch’s explanation to be
credible and conclude that his card should be counted in de-
termining of the Union’s majority status.
From the foregoing, I conclude that on September 26,
when it demanded recognition, the Union possessed valid au-
thorizations for representation from 82 of 137 unit employ-
ees, a clear majority.56 In so finding, the above unit descrip-
tion alleged as appropriate by the General Counsel is left un-
changed, except that it now also should include kindergarten
teachers by virtue of former employee Susan Hudak’s inclu-
sion within the unit on September 26.
e. Applicability of a bargaining order
In NLRB v. Gissel Packing Co.,57 the Supreme Court held
that authorization cards, ‘‘though admittedly inferior to the
election process, can adequately reflect employee sentiment
when that process has been impeded.’’ The Court further
921VALLEY COMMUNITY SERVICES
58 Id. at 614–615.
59 Uniontown Hospital Assn., 277 NLRB 1298, 1300 (1985).
60 Bankruptcy and closure of business are sometimes, but not al-
ways, synonymous.
61 272 NLRB 243 (1984).
62 NLRB v. Jamaica Towing, 632 F.2d 208, 212–213 (2d Cir.
1980).
63 M. O’Neil Co., 211 NLRB 150, 152 (1974).
64 Compare Uniontown Hospital Assn., supra (where the employ-
er’s supervisors, at all levels, committed numerous unfair labor prac-
tices, albeit none at the hallmark level, and where no bargaining
order was deemed warranted) and Chosun Daily News, 303 NLRB
901, 905 (1991) (where a bargaining order was found warranted in
view of numerous unfair labor practices committed by management
at the highest levels, including discriminatory reductions in hours;
threats to close; and grants of benefits to all the employees in a
small unit where all worked in close proximity). See also Inter-
national Door, 303 NLRB 582 (1991), where numerous hallmark
violations committed by the highest corporate officers, directed at all
Continued
stated that it is appropriate to rely on such cards to establish
union majority status cases.58 It, beyond question, would be
proper to grant bargaining orders based upon a card majority
‘‘in ‘exceptional’ cases marked by ‘outrageous’ and ‘perva-
sive’ unfair labor practices,’’ where the unfair labor practices
are of ‘‘such a nature that their coercive effects cannot be
eliminated by the application of traditional remedies, with the
result that a fair and reliable election cannot be had.’’
The second category approved by the Court were those
‘‘less extraordinary cases marked by less pervasive prac-
tices’’ which nonetheless still tended to undermine majority
strength and impede the election processes. In such cases, the
Court said:
the Board can properly take into consideration the ex-
tensiveness of an employer’s unfair practices in terms
of their past effect on election conditions and the likeli-
hood of their recurrence in the future. If the Board
finds that the possibility of erasing the effects of past
practices and of ensuring a fair election (or a fair rerun)
by the use of traditional remedies, though present, is
slight and that employee sentiment once expressed
through cards would, on balance, be better protected by
a bargaining order, then such an order should issue.
The Court went on to:
emphasize that under the Board’s remedial power there
is still a third category of minor or less extensive unfair
labor practices, which, because of their minimal impact
on the election machinery, will not sustain a bargaining
order.
It is necessary to here determine in which of the Gissel
categories the immediate case falls. There are no per se rules
as to when the commission of unfair labor practices will re-
sult in an 8(a)(5) violation.59
I have found above that three instances of interrogation
had occurred—two in August and one in late September—
only one of which was committed above the first level of su-
pervision. I have determined that a midlevel supervisor,
Geary, had placed an unduly broad and discriminatory re-
striction on solicitations or union discussions upon a nonunit
employee, Sciore. I have concluded that, in mid-August, a
low-level supervisor, McClain, had told a single employee
that selection of the Union would be futile and that several
threats were uttered. McCarthy, a high-level supervisor, was
overheard by one employee telling another supervisor to un-
cover and discharge union supporters. He also told employ-
ees at one of the houses, in mid-October, that selection of
the Union would cause the Employer to close or declare
bankruptcy. At another house, he merely referred to the pos-
sibility of bankruptcy in the event of a strike, without threat-
ening to close.60 McClain, I found, made a similar threat of
bankruptcy and/or closing and also threatened that with the
presence of a union, things would get rougher. These unfair
labor practices occurred in, or were directed at, the employ-
ees who worked at only 4 of Respondent’s approximately 15
facilities. Although there is some evidence that the alleged
unfair labor practices were discussed among the employees
of the various facilities at the union meetings, they directly
affected, at most, between 20 and 30 of Respondent’s 137
unit employees. I have recommended dismissal of the re-
maining 8(a)(1) and all the 8(a)(3) allegations.
Without underestimating the seriousness of the above-de-
scribed conduct, it is obvious that the Respondent’s unfair
labor practices do not reach the first category under Gissel,
that of outrageous and pervasive conduct such as is found
only in exceptional cases. The question is where in the spec-
trum between categories two and three does this case fall.
In Horizon Air Services,61 the Board adopted the Second
Circuit’s characterization of certain unfair labor practices as
‘‘hallmark’’ violations, the presence of which would ‘‘sup-
port the issuance of a bargaining order unless some other
mitigating circumstances exist.’’62 Those hallmark violations
include plant closures, discrimination, and grants of benefit
as well as threats of adverse action. Such serious conduct,
often representing completed actions as distinguished from
‘‘mere statements, interrogations or promises,’’ may justify a
finding that Section 8(a)(5) of the Act had been violated
without extensive explication as to lasting inhibitive effect
upon the work force.
Here, the proven unfair labor practices include two that
approach hallmark status, i.e., the threats of business closure
attributed to McCarthy and McClain. None of the unfair
labor practices, however, reached the level of completed co-
ercive action such as discriminatory discharge or a grant of
benefit. Noting that these unfair labor practices merely in-
volved oral communications that directly reached but a small
percentage of the nearly 140 unit employees63 in but a few
of the Respondent’s widely spread facilities; were (with re-
spect to the alleged hallmark violations) supported by the tes-
timony of very few of the General Counsel’s witnesses not-
withstanding that presumably all of them attended the meet-
ings where the videos were shown and where McCarthy had
spoken; were committed primarily by low- or mid-level su-
pervisors and not at all by the highest level of management
(Emrick), I am constrained to conclude that this case falls
within the third Gissel category. Unlike those cases wherein
the Board has found the possibility of a fair election to have
been precluded, this case presents a situation of less exten-
sive unfair labor practices, that would not so affect the elec-
toral process as to preclude its efficiency. In these cir-
cumstances, a bargaining order would not be appropriate.64
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the employees in a small unit, were held to warrant a bargaining
order remedy.
65 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
66 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.’’
From the foregoing, I find that the Board’s traditional rem-
edies will make probable a free and unimpaired election. The
record does not indicate a likelihood that the Respondent will
commit additional unfair labor practices should the employ-
ees or this, or any other union, undertake another organiza-
tional campaign. Accordingly, I shall recommend dismissal
of the allegation that the Respondent violated Section 8(a)(5)
of the Act.
CONCLUSIONS OF LAW
1. Valley Special Needs Program, Inc., t/a Valley Commu-
nity Services, is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Service Employees International Union, Local 585,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By interrogating its employees concerning their union
activities, sympathies, and desires; by threatening its employ-
ees with closing of its facilities and/or with declaration of
bankruptcy, with discharge, and other unspecified reprisals
because of their union activities and sympathies; by imposing
an overly broad and discriminatory restriction on union ac-
tivities and discussions on company property and by telling
employees that selection of the Union would be futile, the
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
4. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Except as found hereinabove, the Respondent has not
engaged in unfair labor practices alleged in the consolidated
complaint.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be required
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended65
ORDER
The Respondent, Valley Special Needs Program, Inc., t/a
Valley Community Services, with facilities in the Pennsyl-
vania counties of Allegheny, Westmoreland, Butler, and
Somerset, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees concerning their union ac-
tivities, sympathies, and desires; threatening its employees
with closure of its facilities and/or with declaration of bank-
ruptcy, with discharge and other unspecified reprisals be-
cause of their union activities and sympathies; imposing
overly broad and discriminatory restrictions on union activi-
ties and discussions on company property; and telling em-
ployees that it would be futile to select Service Employees
International Union, Local 585, AFL–CIO, as their bar-
gaining representative.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facilities in the Pennsylvania counties of Al-
legheny, Westmoreland, Butler and Somerset, copies of the
attached notice marked ‘‘Appendix.’’66 Copies of the notice,
on forms provided by the Regional Director for Region 6,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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, de-
faced, or covered by any other material.
(b) IT IS FURTHER ORDERED that the consolidated com-
plaint herein be dismissed insofar as it alleges violations of
the Act not specifically found herein.