Chartwells, Compass Group, USA, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 2004

342 N.L.R.B. 1155 (N.L.R.B. 2004)

CHARTWELLS, COMPASS GROUP, USA, INC.
342 NLRB No. 121
1155
Chartwells, Compass Group, USA, Inc. and Civil
Service Employees Association, CSEA Local
1000, AFSCME, AFL–CIO. Case 3–CA–23533
September 22, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On October 1, 2002, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respondent,
the General Counsel, and the Charging Party each filed
exceptions and a supporting brief. The Respondent also
filed an answering 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 decided to
affirm the judge’s rulings, findings,1 and conclusions2
only to the extent consistent with this Decision and Or-
der.3
A. The Facts
1. Background
The Respondent is a contractor providing food service
for public school systems. In the late 1990s, Quality
Food Management (QFM) was awarded a 5-year contract
to provide food service for the Oneonta, New York
school district (the District). In August, 2000, the Re-
spondent purchased QFM and, in early 2001, com-
menced providing food service for the District under the
QFM contract. The Respondent retained many of the
QFM managers and employees. The Respondent’s food
service employees at Oneonta were unrepresented. The
Union represented the District’s custodial and grounds
employees.

1 The Respondent, the General Counsel, and the Charging Party have
excepted to some of the judge’s credibility findings. The Board’s es-
tablished policy is not to overrule an administrative law judge’s credi-
bility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Standard Dry Wall
Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 There were no exceptions to the judge’s findings that the Respon-
dent violated Sec. 8(a)(1) by promulgating an overbroad no-solicitation
rule orally on February 8, 2002, and in writing on March 6, 2002, and
by directing employees by letter on February 14, 2002, to inform the
Respondent of their coworkers’ union activities. There were also no
exceptions to the judge’s dismissal of the allegation that the Respon-
dent violated Sec. 8(a)(1) by threatening employees on February 8,
2002, with a pay reduction.
3 We shall modify the judge’s notice in accordance with our decision
in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354
F.3d 534 (6th Cir. 2004).
The events at issue here occurred in February and
March 2002.4 Becky Morin was the Respondent’s food
service director and the senior respondent official at the
Oneonta location. Mary Jane Harrington was a supervi-
sor at the Oneonta location. Denise Swedish was the
Respondent’s human resources manager; her office was
in Waterford, New York. Cynthia Yonkers was the Re-
spondent’s regional manager with responsibility for the
Oneonta location; her office was in Latham, New York.
Eileen Bramsen was a food service employee. Her
husband was the immediate past president of the Union
and a custodian for the District. Carol Roberts was a
mentally challenged food service employee whom the
Respondent had hired through a local employment ser-
vice that provided Roberts with a job coach. Susan
Hitchcock, Gloria Fink, and Sharon Walker were food
service employees.
2. The union campaign and the Respondent’s response
On February 7, Bramsen, Roberts, Hitchcock, and Fink
met with two union officials in the high school break-
room. The employees decided to undertake a union or-
ganizing campaign. Later that day, Bramsen told Super-
visor Harrington about the meeting. During the next few
weeks, the Union conducted several meetings. Bramsen
and other employees who attended the February 7 meet-
ing encouraged employees to attend these union meet-
ings. Bramsen also wore a union button to work; she
was the only employee who did so. Supervisor Harring-
ton knew, based on kitchen gossip, that Bramsen was a
leading union supporter.
On February 8, Director Morin and Supervisor Har-
rington conducted a mandatory group meeting for all of
the Respondent’s employees. At the meeting, Morin
announced a rule prohibiting all solicitation, specifically
including union discussion, during working hours any-
where on school property. Bramsen spoke up, asking if
the no-solicitation rule constituted a “double standard.”
Previously, the Respondent had no rule prohibiting so-
licitation, and employees routinely solicited for a wide
variety of subjects in kitchen work areas during non-
working time.5
During the February 8 mandatory group meeting,
Morin and Harrington also reminded the employees that
the Respondent’s 5-year contract with the District was up
for renewal the next year, stated that District Business
Manager Tom Austin looked favorably on the Respon-
dent’s employees, said that the Respondent would take

4 All dates are 2002 unless otherwise noted.
5 As found by the judge, the Respondent’s no-solicitation rule is
overbroad and was promulgated in response to the union campaign; for
each of these reasons, the judge found that the rule violated Sec.
8(a)(1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1156
employee concerns to Austin for possible inclusion in the
new contract, and asked the employees what their con-
cerns were.
On February 14, Director Morin distributed a letter to
the employees responding to the union organizing cam-
paign. The letter stated that Morin and the Respondent
did not support the union activity and set forth arguments
against unionization. The letter also stated: “As I
stressed at the [February 8] meeting I held, those of you
who choose not to be involved in this activity have every
right to do so without ANY FEAR for your job. If you
feel pressured or coerced in any way, please report it to
me immediately” (capitalization in original).6
On February 18, the Respondent conducted another
mandatory meeting for all its employees. At that meet-
ing, Human Resources Manager Swedish stated that a
new Respondent-District contract was coming up, asked
what the employees wanted that they did not already
have, and promised to try to do something about the em-
ployees’ concerns. The employees spoke up, mentioning
additional benefits including a 401(k) plan, snow days,
sick days, personal days, and bereavement pay.7
On March 6, Director Morin distributed written work
rules to employees as they left work. These were the
first written rules that the Respondent had ever provided
the employees. Morin told the employees to take the
rules home, read them, and initial and return a cover
sheet affirming that they had read the rules.
Category B of the rules was captioned (emphasis in
original): “B. Examples of Serious Offenses Which Call
for Strong Disciplinary Action and Possible Suspension
or Dismissal.” Rule B3 prohibited: “Threatening, in-
timidating or interfering with fellow associates on Com-
pany and/or client premises.” Rule B18 prohibited: “So-
liciting of any type on Company and/or client premises
during working hours.” As Morin distributed the rules,
she told employee Walker that the employees could not
discuss any union business on school property and that, if
they did, there could be serious consequences.8
3. Bramsen’s warning and resignation on March 7
On February 28, Roberts, the mentally challenged em-
ployee who had attended the initial meeting with the un-
ion officials, came to Director Morin in tears. Roberts

6 As found by the judge, the Respondent, by this letter directing em-
ployees to inform the Respondent of their coworkers’ union activities,
violated Sec. 8(a)(1).
7 The judge found that the Respondent violated Sec. 8(a)(1) by solic-
iting grievances and impliedly promising to remedy the grievances
during the February 8 and February 18 employee meetings. The Re-
spondent excepts to these findings. We affirm the judge’s findings.
8 As found by the judge, Rule B18 was an overbroad no-solicitation
rule that violated Sec. 8(a)(1). Furthermore, as discussed below, we
reverse the judge and find that Rule B3 likewise violated the Act.
told Morin that she did not want to be discharged. After
assuring Roberts that she would not be discharged,
Morin scheduled a meeting later in the day with Roberts
and her job coach. At this second meeting, Roberts told
Morin that Bramsen told her that she (Roberts) would be
discharged if Roberts did not join the Union. Roberts
stated that employees Hitchcock and Fink had also been
“pushing” her about the Union and that District em-
ployee Lee March had made prounion statements to
Roberts. At about the same time, two other employees
complained to Morin that Bramsen’s prounion statements
made them feel uncomfortable; however, they declined
to press complaints against Bramsen.9
After the second meeting with Roberts, Morin decided
to issue Bramsen a verbal warning.
On March 5 or 6, the Respondent showed an antiunion
videotape to the employees in a school classroom.
Bramsen’s husband, the school custodian and former
union president, complained to the school principal and
to the Union about the Respondent’s use of school facili-
ties to show the videotape. On March 7, Director Morin,
Regional Manager Yonkers, two District officials, and
the current union president met to discuss that complaint.
That same day (March 7), after Bramsen had clocked
out, Director Morin and Regional Manager Yonkers
summoned her to Morin’s office. They read the just-
distributed Rule B3 (prohibiting threatening, intimidat-
ing, or interfering with employees) to Bramsen, told her
that she was in violation of that rule, and stated that three
employees had accused Bramsen of intimidating them
and making them feel uncomfortable.10 Bramsen denied
the accusation. She asked who her accusers were and
what her allegedly improper conduct was. Morin refused
to provide the requested information, stating that it
would “polarize” the issues and citing confidentiality
concerns. Bramsen asked “How can I defend myself if I
don’t know who made the complaints?” and started to
leave the office, saying “I’m out of here.” As Bramsen
departed, Yonkers asked if she was resigning; Bramsen
replied “Yes” and angrily left the office.11
The next day, Morin sent Bramsen a letter stating:
“This serves to inform you that Chartwells has accepted

9 These two employees are not identified in the record.
10 As set forth above, Morin testified that only Roberts had made
such a complaint; the two other employees had declined to press com-
plaints against Bramsen.
11 Bramsen testified that, although she started to leave the office in
anger, she did not say she was quitting and that instead Yonkers told
Bramsen to “turn in your apron”—a food service industry phrase con-
noting discharge. The judge credited the Respondent witnesses’ testi-
mony that Bramsen replied “yes” when Yonkers asked if Bramsen was
resigning. The judge also implicitly credited the Respondent witnesses’
testimony that Yonkers did not tell Bramsen to “turn in your apron.”
CHARTWELLS, COMPASS GROUP, USA, INC. 1157
your verbal resignation that you provided to Cindy
Yonkers on 3/7/02. Your resignation is effective
3/7/02.” Morin also announced to the employees that
Bramsen no longer worked for the Respondent, that
Morin was sorry about Bramsen’s departure because
Bramsen had been a good worker, and that things “had
not gone the way [Bramsen] had hoped.”
B. Rule B3
The judge found that the Respondent did not violate
Section 8(a)(1) by distributing workrule Rule B3 prohib-
iting “threatening, intimidating or interfering with” fel-
low employees. In rejecting the General Counsel’s con-
tention that employees would interpret Rule B3 as pro-
hibiting employees from discussing the Union, the judge
noted that Rule B18, which was simultaneously distrib-
uted, separately prohibited all solicitation. The judge
reasoned that the presence of Rule B18 negated any in-
ference that Rule B3 was intended to prohibit employees
from discussing the Union. We find a violation. More
particularly, we find that the Respondent’s motive in
promulgating Rule B3 was to deter employees from dis-
cussing the Union.
This finding follows directly from Director Morin’s
own testimony. Morin admitted on cross-examination
that, in her opinion, an employee would be subject to
discipline for violating Rule B3 if the employee’s proun-
ion comments caused another employee to “feel uncom-
fortable.” Although an employer may lawfully discipline
an employee for making prounion (or antiunion) state-
ments that threaten fellow employees (for example, with
physical harm), an employer may not lawfully discipline
an employee for making prounion (or antiunion) state-
ments that merely cause another employee to feel un-
comfortable. See Consolidated Diesel Co., 332 NLRB
1019, 1020 (2000), enfd. 263 F.3d 345 (4th Cir. 2001).
Therefore, Director Morin’s testimony that Rule B3 ap-
plied where an employee’s prounion statements merely
caused another employee to “feel uncomfortable” is an
admission of unlawful motive regarding Rule B3.
Our finding—that the Respondent’s motive for prom-
ulgating Rule B3 was the employees’ union activity—is
reinforced by additional evidence.
First, Director Morin explicitly tied the work rules to
the union campaign when, as she distributed the work
rules, she told employee Walker that the employees
could not discuss any union business on school property
and that discussing union business on school property
could result in “serious consequences.”
Second, the timing of the Respondent’s promulgation
of the rules indicates a nexus between the rules and the
union campaign. The Respondent had not issued any
written work rules before the union campaign. However,
just 1 month after it began, the Respondent issued the
work rules, including Rule B3.
For these reasons, we find that the Respondent violated
Section 8(a)(1) by promulgating Rule B3 on March 6.
See Dilling Mechanical Contractors, Inc., 318 NLRB
1140, 1144–1145 (1995), enfd. 107 F.3d 521 (7th Cir.
1997), cert. denied 522 U.S. 862 (1997).12
C. Bramsen’s Resignation
We first address the issue of whether Bramsen quit or
whether the Respondent discharged Bramsen. The judge
concluded, on credibility grounds, that Bramsen quit her
employment when the Respondent issued her a verbal
warning for violating Rule B3. We affirm the judge’s
conclusion that Bramsen quit and that she was not dis-
charged. Thus, Bramsen’s conduct of walking out in the
middle of a meeting with Manager Yonkers, while stat-
ing “I’m out of here,” and affirming that she was quit-
ting, amply supports the judge’s finding that Bramsen
quit her employment.13
We next address, and reject, the General Counsel’s
contention that the Respondent refused to reinstate
Bramsen after she quit on March 7. In this regard, we
note that, although Bramsen telephoned Supervisor Har-
rington’s home the evening of March 7 and appeared
briefly at work the morning of March 8, Bramsen never
requested reinstatement. Accordingly, we find that the
Respondent did not refuse to reinstate Bramsen.
We now turn to the contention of the General Counsel
and the Charging Party that the Respondent construc-
tively discharged Bramsen by presenting her with a
“Hobson’s choice” of obeying the warning to adhere to
Rule B3 or quitting.14
We find that, even assuming the validity of the
“Hobson’s choice” theory of constructive discharge, that
theory has no application to the facts of this case.15

12 Member Walsh concludes that the Respondent violated Sec.
8(a)(1) by promulgating Rule B3 on March 6. However, he does not
reach the issue of the Respondent’s motive for promulgating the rule
and instead bases his conclusion on his finding that the employees
reasonably would have believed that Rule B3 prohibited protected
discussion of the Union. See Greenfield Die & Mfg. Corp., 327 NLRB
237, 237–238 (1998).
13 Accordingly, we reject the General Counsel’s and the Charging
Party’s contention that the Respondent told Bramsen to “turn in her
apron” and thereby discharged Bramsen during the March 7 interview.
This contention is based on testimony that the judge discredited.
14 See Hoerner Waldorf Corp., 227 NLRB 612 (1976); Intercon I
(Zercom), 333 NLRB 223, 224 (2001).
15 Because we find that Bramsen voluntarily resigned her employ-
ment for reasons unrelated to protected Sec. 7 activity, we need not
pass on the validity of the “Hobson’s choice” theory of constructive
discharge posited in the cases cited by our dissenting colleague. Mem-
ber Schaumber notes that in other contexts, Federal courts repeatedly
have insisted on “carefully cabin[ing] the theory of constructive dis-
charge, “[b]ecause [such] claim[s] [are] so open to abuse by those who
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1158
We have found, supra, that the motive for issuing Rule
B3 was unlawful, i.e., that it was intended to reach pro-
tected activity that made employees feel uncomfortable.
However, the motive for reading Rule B3 to Bramsen
was the report that she had intimidated employees. That
motive is not even alleged as unlawful. In this regard,
we agree with the judge that the complaint did not allege
that the March 7 warning was motivated by Bramsen’s
protected activities. Further, even if there were such a
complaint allegation, the judge found no violation as to
the warning, and there were no exceptions to that find-
ing.
Our dissenting colleague, in arguing that the Respon-
dent’s motive for the March 7 warning was unlawful,
notes that Morin did not seek out potential witnesses to
the Bramsen-Roberts incident before disciplining Bram-
sen. However, it is not within the province of the Board
to tell an employer how to investigate allegations of em-
ployee misconduct. The fact that an employer does not
pursue an investigation in some preferred manner before
imposing discipline does not establish an unlawful mo-
tive for the discipline. This is particularly true here
where Bramsen’s conduct was serious enough to reduce
Roberts to tears and where the discipline imposed was a
mere verbal warning. That is, we decline to infer that a
reasonable employer confronted with such evidence of
employee misconduct and contemplating the imposition
of only minor discipline would necessarily have under-
taken a further investigation of the complaining em-
ployee’s allegations and we decline to infer from the
employer’s failure to undertake such a further investiga-
tion that the employer had an alternate unlawful motive
for the discipline.
The dissent also notes that the Respondent refused to
tell Bramsen which employees had complained about her
conduct and specifically what statements Bramsen had
made that violated Rule B3. Again, it is not the province
of the Board to assure that employees can confront their
accusers. An employer’s failure to accord an employee
this asserted “right” does not establish a discriminatory
motive. Furthermore, the Respondent here provided
Bramsen reasonable information regarding the nature of
her misconduct. That is, the Respondent read Rule B3—

leave employment of their own accord.” Honor v. Booz-Allen & Ham-
ilton, Inc., __ F.3d __ (Case No. 03-2076, 4th Cir., September 2, 2004)
(Title VII) (quoting Paroline v. Unisys Corp., 879 F.2d 100, 114 (4th
Cir. 1989)). The dissent would do the opposite, extending what is
already an extension of the constructive discharge theory beyond the
narrow confines previously contemplated by the Board. Cf. ComGen-
eral Corp., 251 NLRB 653, 657–658 (1980) (recognizing Hobson’s
choice doctrine only in the narrow circumstances where an employee is
confronted with a “clear and unequivocal” choice of remaining em-
ployed or foregoing fundamental Sec. 7 rights).
prohibiting “threatening, intimidating or interfering with
fellow associates”—to Bramsen, told Bramsen that sev-
eral employees had complained against Bramsen, ex-
plained to Bramsen that the identity of the complaining
employees was “confidential,” and explained to Bramsen
that identifying the complaining employees would only
“polarize” matters. Plainly, there was a concern that
identifying Roberts to Bramsen would expose Roberts to
potential reprisals and we decline to draw any adverse
inference from the Respondent’s reluctance to do so.
Moreover, even assuming arguendo that the Respon-
dent had an unlawful motive for giving Bramsen the
March 7 warning, this would not prove a “Hobson’s
choice” constructive discharge unless the evidence also
established that Bramsen’s reason for quitting was her
fear that the Respondent would discharge her if she con-
tinued her union activities. The evidence here, however,
does not support such a finding. Instead, it shows that
Bramsen quit due to anger at the Respondent for refusing
to tell Bramsen the names of the complaining employees.
During the March 7 interview, Bramsen did not make
any reference to her union activities but rather denied
that she had engaged in intimidating conduct. Indeed, it
was at this point that the disagreement arose between
Bramsen and the Respondent, and Bramsen became an-
gry. Bramsen wanted to confront her accusers, and the
Respondent did not wish to proceed in that manner, cit-
ing the confidentiality concerns of the complaining em-
ployees. Bramsen stated that, in view of the Respon-
dent’s position on this matter, she was “out of here.”
The Respondent asked if this meant that she was resign-
ing, and she said “yes.” Thus, Bramsen quit because the
Respondent would not let her confront her accusers, not
because of any limitation on her Section 7 rights. In-
deed, Bramsen herself testified that she left the March 7
meeting “because I couldn’t defend myself and I was on
my own time and I figured I did not have to stay there
and be accused of something I couldn’t defend.”
In sum, Bramsen quit because she could not confront
her accuser in an effort to show that she did not intimi-
date anyone. She did not quit because of any refusal by
the Respondent to permit her to engage in protected Sec-
tion 7 activities.
Our dissenting colleague argues that there is an unlaw-
ful constructive discharge, even if there is no unlawful
threat. In his view, the choice before Bramsen was to
refrain from union activity or quit. However, at most,
the choice was to refrain from intimidating conduct or
quit. Further, even if the choice were as our colleague
would have it, Bramsen quit because she thought that the
Respondent was not giving her a fair chance to defend
against the accusation.
CHARTWELLS, COMPASS GROUP, USA, INC. 1159
For these reasons, we find that the evidence does not
support a finding that the Respondent constructively dis-
charged Bramsen in violation of Section 8(a)(3). Ac-
cordingly, we dismiss this allegation.
CONCLUSIONS OF LAW
1. By promulgating, by oral announcement on about
February 8, and by written rules on about March 6, work
rules prohibiting union solicitation of any kind at work,
the Respondent violated Section 8(a)(1) of the Act.
2. By promulgating, by written rules on about March
6, work rules prohibiting employees from discussing the
Union with fellow employees, the Respondent violated
Section 8(a)(1) of the Act.
3. By on about February 8 and February 18, soliciting
grievances from its employees and impliedly promising
to remedy the grievances in order to dissuade employees
from supporting the Union, the Respondent violated Sec-
tion 8(a)(1) of the Act.
4. By on about February 14, in a letter to its employ-
ees, directing them to inform the Respondent of their
union activities and the union activities of their fellow
employees, the Respondent violated Section 8(a)(1) of
the Act.
5. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Specifically, having found that the Respondent prom-
ulgated unlawful rules prohibiting union solicitation and
prohibiting employees from discussing the Union, we
shall order the Respondent to rescind the unlawful rules
and to notify the employees, in writing, that it has done
so.
ORDER
The National Labor Relations Board orders that the
Respondent, Chartwells, Compass Group, USA, Inc.,
Oneonta, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Promulgating work rules prohibiting union solicita-
tion of any kind at work.
(b) Promulgating work rules prohibiting employees
from discussing Civil Service Employees Association,
CSEA Local 1000, AFSCME, AFL–CIO (the Union) or
any other labor organization with fellow employees.
(c) Soliciting grievances from its employees and im-
pliedly promising to remedy the grievances in order to
dissuade employees from supporting the Union.
(d) Directing employees to inform the Respondent of
their union activities and the union activities of their fel-
low employees.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the unlawful rules prohibiting union solici-
tation and prohibiting employees from discussing the
Union and notify the employees, in writing, that it has
done so.
(b) Within 14 days after service by the Region, post at
its facility in Oneonta, New York, copies of the attached
notice marked “Appendix.”16 Copies of the notice, on
forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at the Oneonta facility at any time
since February 8, 2002.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER WALSH, dissenting in part.
My colleagues find that employee Eileen Bramsen’s
resignation from her job did not constitute a constructive
discharge in violation of Section 8(a)(3) and (1) of the
Act. For the following reasons, I find that Bramsen’s
resignation was an unlawful constructive discharge under
the Board’s “Hobson’s choice” doctrine.
“A constructive discharge is not a discharge at all but a
quit which the Board treats as a discharge because of the

16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1160
circumstances which surround it. Such situations may
arise when an employer confronts an employee with the
Hobson’s choice of either continuing to work or forego-
ing rights protected by the Act.” Intercon I (Zercom),
333 NLRB 223 (2001), citing Multimatic Products, 288
NLRB 1279, 1348 (1988). Under the Hobson’s choice
line of cases, an employee’s voluntary resignation will be
considered a constructive discharge when an employer
conditions the employee’s continued employment on the
employee’s abandonment of his or her Section 7 rights
and the employee quits rather than comply with that con-
dition. Intercon I (Zercom), supra; Hoerner Waldorf
Corp., 227 NLRB 612 (1976).
Here, the Respondent gave Bramsen a discriminato-
rily-motivated verbal warning on March 7, 2002, that
effectively threatened Bramsen with discharge if she
continued her union activities. Thus, the Respondent
caused Bramsen to reasonably believe that her continued
employment was conditioned on her abandonment of her
Section 7 activities, and she quit her employment rather
than comply with that condition. Her resignation under
these circumstances constitutes a constructive discharge
in violation of Section 8(a)(3) and (1) of the Act.
Although the March 7 warning itself was not alleged to
be unlawful, the critical issue is whether Bramsen rea-
sonably would have understood that she faced the pros-
pect of discharge if she continued her union activities. If
the Respondent placed Bramsen in this position, and if
she quit in response to this discharge threat, then the Re-
spondent constructively discharged Bramsen in violation
of Section 8(a)(3) regardless of whether the March 7
warning was itself separately alleged or found to be
unlawful.1
Here, the Respondent threatened Bramsen with dis-
charge if she engaged in union activities. The verbal
warning issued to Bramsen on March 7 was imposed
under Rule B3 which subjected employees to “Strong
Disciplinary Action and Possible Suspension or Dis-
missal” and which reasonably would lead employees to
believe that their protected union activity was prohibited.
Faced with a no-solicitation rule apparently applicable to
protected union activities and the prospect of suspension

1 The complaint allegations encompassed the Hobson’s choice con-
structive discharge violation. The complaint alleged that the Respon-
dent threatened Bramsen with discharge if she engaged in union activi-
ties, that the threat caused Bramsen’s termination, and that Bramsen’s
termination violated Sec. 8(a)(3). Furthermore, although the majority
notes that neither the General Counsel nor the Charging Party specifi-
cally excepted to the judge’s failure to find that the March 7 warning
violated Sec. 8(a)(1), this absence of exceptions is not equivalent to a
concession that there was no violation. The General Counsel and the
Charging Party did except to the judge’s finding that the March 7 warn-
ing was not discriminatorily motivated.
or discharge if she continued her protected union activi-
ties, Bramsen reasonably would have perceived that her
choice was either to eschew her Section 7 rights or quit.
The evidence shows that the March 7 warning was mo-
tivated by Bramsen’s protected union activities rather
than, as the majority suggests, by unprotected harassment
of employee Roberts. Bramsen was the leading union
organizer and the Respondent was aware of her strong
support for the Union. The Respondent’s union animus
is amply demonstrated by its swift and unlawful opposi-
tion to the union campaign, including its immediate an-
nouncement of an unlawfully overbroad ban on all union
solicitation. The timing of the March 7 warning—only 1
month after the start of the union campaign and only 1
day after Bramsen’s husband, the former union president,
had complained to the District about the Respondent’s
use of District facilities to show an antiunion video-
tape—is further evidence of unlawful motive for the
warning.
Moreover, the Respondent’s asserted justification for
the warning—Bramsen’s alleged harassment of em-
ployee Roberts—is pretextual. The Respondent refused
Bramsen’s requests for information regarding what she
had done to harass other employees or whom she had
allegedly harassed. Even assuming arguendo that, as the
majority suggests, the Respondent wished to maintain the
confidentiality of the allegedly complaining employees,
one would expect that an employer, when imposing a
verbal warning for harassment, would give the disci-
plined employee at least a general description of the na-
ture of the conduct triggering the discipline. The Re-
spondent’s refusal to provide any information to Bram-
sen regarding the nature of her alleged misconduct is
strong evidence that the March 7 warning was directed at
Bramsen’s union activities, not her alleged harassment of
employee Roberts.
There is additional evidence suggesting pretext. Al-
though Bramsen testified that she did not harass Roberts,
the Respondent did not call Roberts as a witness and in-
stead relied solely on the testimony of the Respondent’s
food service director, Becky Morin, regarding the allega-
tions that Roberts allegedly made to Morin. Further-
more, although Morin knew that Roberts was mentally
challenged and that there were witnesses to Bramsen’s
alleged harassment of Roberts, Morin made no effort to
investigate Roberts’ allegation by speaking to the wit-
nesses. Although Morin decided on February 28 to give
Bramsen a verbal warning, Morin delayed an entire week
before giving Bramsen the March 7 warning. Morin’s
testimonial explanation for the week-long delay—that
Morin needed a management witness for the disciplinary
interview—is itself evidence of pretext; Morin admitted
CHARTWELLS, COMPASS GROUP, USA, INC. 1161
on cross-examination that Supervisor Harrington was at
work throughout the entire intervening week and Morin
offered no explanation for not using Harrington as a wit-
ness. Finally, given that Bramsen’s alleged harassment
of Roberts occurred on February 28, and that the Re-
spondent did not issue Rule B3 until March 6, the Re-
spondent’s March 7 warning to Bramsen for violating
Rule B3 suspiciously accused Bramsen of violating a
rule that had not existed at the time of Bramsen’s alleged
misconduct.
The majority also finds that Bramsen quit out of anger
at the Respondent’s refusal to provide her with specifics
regarding the allegations against her, rather than because
of restrictions on her Section 7 activity. I reject this ef-
fort to artificially parse out aspects of the March 7 meet-
ing. It ignores the very background against which Bram-
sen was disciplined on March 7, and the fact that Bram-
sen quit because the Respondent threatened her with dis-
charge if she continued her union activities.
In this regard, the record shows that the union cam-
paign was very important to Bramsen. She attended the
first meeting with the union officials and she attended
each subsequent union meeting. She encouraged other
employees to attend the union meetings. She was the
only employee to wear a union button to work. She
spoke up to challenge Director Morin when Morin an-
nounced the unlawful no-solicitation rule to the assem-
bled employees. And, she was married to the former
union president who protested the Respondent’s anti-
union activity immediately before Bramsen’s March 7
warning. Further, during that interview, the Respondent
officials implicitly threatened Bramsen with discharge if
she continued her union activities. In these circum-
stances, I conclude that an employee, who felt as
strongly about the union campaign as Bramsen did, rea-
sonably would be angered by such a threat and would
decide to quit rather than discontinue her union activities.
Moreover, the anger cited by the majority as the reason
for Bramsen’s decision to quit (her anger at the Respon-
dent for refusing to provide her with specifics regarding
the allegations against her) was itself based, at least in
part, on the Respondent’s unlawful response to Bram-
sen’s union activities. When the Respondent officials
interviewed Bramsen on March 7, Bramsen knew that
she had not been harassing her fellow employees and
also knew that she had been speaking out strongly on
behalf of the union campaign. When the Respondent
officials accused Bramsen of violating Rule B3, which
rule unlawfully proscribed protected union activity,
Bramsen would have immediately suspected that this
rule was being directed at her union activities. These
suspicions would have been reinforced when the Re-
spondent refused Bramsen’s request for specifics regard-
ing her alleged violation. Accordingly, even assuming
arguendo that Bramsen’s decision to quit was triggered
by her anger at the Respondent’s refusal to provide her
with specifics regarding the allegations against her,
Bramsen’s decision ultimately would still be based on
the Respondent’s unlawful discharge threat.
I also reject the majority’s reliance on Bramsen’s tes-
timony that she left the March 7 meeting because she
“could not defend herself” against the Respondent’s alle-
gations, as support for its finding that her quit resulted
from anger, not impeded Section 7 rights. This cited
testimony is part of a larger block of testimony that must
be read in context. In this regard, the judge found that, at
the end of the March 7 meeting, Bramsen got up to leave
the meeting after the Respondent officials informed her
that she was disciplined for violating Rule B3 and re-
fused her requests for specifics regarding the allegations
against her. In these circumstances, Bramsen’s testi-
mony cited by the majority—that she left the meeting
because she could not defend herself—should not be read
as an explanation by Bramsen of why she quit; at most, it
should be read as an explanation of why she left the
meeting.
The Respondent contends that, assuming arguendo the
March 7 warning was unlawfully motivated, the March 7
warning did not give Bramsen reason to fear discharge
and that therefore Bramsen acted unreasonably in quit-
ting. I reject this contention and find that the Respondent
threatened Bramsen with suspension and discharge.
Regional Manager Yonkers read Rule B3 to Bramsen
during the March 7 verbal warning interview. The pref-
ace to Rule B3 explicitly states that violation of the rule
will subject the employee to “strong disciplinary action
and possible suspension or dismissal.”
Furthermore, the internal structure of the Respondent’s
work rules suggests that violation of Rule B3 will subject
the employee to discharge rather than to progressive dis-
cipline. In this regard, the introduction to the Respon-
dent’s work rules identifies three categories of offenses
(A, B, and C), states that category A offenses will “nor-
mally result in immediate dismissal,” states that category
B offenses will “normally result in strong disciplinary
action and possible suspension or dismissal,” and states
that category C offenses will “not normally result in im-
mediate dismissal, but . . . will generally be subject to
progressive counseling.” Given this internal structure, an
employee who had been disciplined for an alleged cate-
gory B offense reasonably would conclude that he or she
likely would face suspension or dismissal for a repeat
offense. Indeed, in this case, having already been issued
a “strong” verbal warning under Rule B3, Bramsen rea-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1162
sonably would have concluded that she was subject to
suspension or dismissal if she again violated Rule B3 by
continuing to encourage her fellow employees to support
the Union. These circumstances would have led Bram-
sen to reasonably believe that her continued employment
was conditioned on her abandonment of her Section 7
rights. “The right of an employee to protect his Section 7
rights without having to relinquish them or suffer loss of
employment due to an employer’s discriminatory con-
duct, is a choice the Board has unfailingly sustained.”
Hoerner Waldorf Corp., supra at 613.2
For all these reasons, I find that the Respondent vio-
lated Section 8(a)(3) and (1) by constructively discharg-
ing Bramsen during the March 7 interview.

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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT promulgate work rules prohibiting union
solicitation of any kind at work.
WE WILL NOT promulgate work rules prohibiting you
from discussing Civil Service Employees Association,
CSEA Local 1000, AFSCME, AFL–CIO (the Union) or
any other labor organization with your fellow employees.
WE WILL NOT solicit grievances from you and impli-
edly promise to remedy the grievances in order to dis-
suade you from supporting the Union.
WE WILL NOT direct you to inform us of your union ac-
tivities or the union activities of your fellow employees.

2 Contrary to the judge’s suggestion, Bramsen was not required to
continue working and pursue other remedies—such as seeking the
Union’s advice and/or filing an unfair labor practice charge with the
Board—rather than resign in response to the Respondent’s March 7
conduct. The Board has explicitly held that the Act protects an em-
ployee in Bramsen’s position who, in the face of an unlawful discharge
threat, chooses to quit rather than continue to work while pursuing
other remedies. See Hoerner Waldorf Corp., supra at 613.
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the unlawful rules prohibiting union
solicitation and prohibiting you from discussing the Un-
ion and WE WILL notify you, in writing, that we have
done so.

CHARTWELLS, COMPASS GROUP, USA, INC.

Alfred Norek, Esq., for the General Counsel.
Brian Oppeneer, Esq., for the Respondent.
William Herbert, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on August 5, 2002,1 in Oneonta, New York.
The complaint herein which issued on May 24, was based upon
an unfair labor practice charge and an amended charge that
were filed on March 26 and April 9, by Civil Service Employ-
ees Association, CSEA Local 1000, AFSCME, AFL–CIO, (the
Union). The complaint alleges that Chartwells, Compass
Group, USA, Inc. (the Respondent), engaged in the following
conduct in violation of Section 8(a)(1) and (3) of the Act be-
tween February 8 and March 6: promulgated and maintained
work rules prohibiting union solicitation at any time and di-
rected its employees to refrain from discussing the Union at any
time, threatened to reduce its employees’ pay if they unionized,
solicited grievances from its employees and impliedly promised
to remedy the grievances in order to dissuade its employees
from supporting the Union, directed its employees to inform
Respondent of their union activities as well as the union activi-
ties of their coworkers, interrogated its employees about their
union activities and threatened to discharge them if they en-
gaged in union activities, promised its employees improvement
in terms and conditions of employment in order to discourage
them from supporting the Union, and promulgated and distrib-
uted work rules that prohibited employees from engaging in
lawful union solicitation and from discussing unions while at
work and from soliciting on behalf of the Union during non-
working time. It is further alleged that the Respondent violated
Section 8(a)(1) and (3) of the Act by discharging, or construc-
tively discharging, Eileen Bramsen on March 7, 2002 because
of her union activities.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that it has been engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.

1 Unless indicated otherwise, all dates referred to herein relate to the
year 2002.
CHARTWELLS, COMPASS GROUP, USA, INC. 1163
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union has been a la-
bor organization within the meaning of Section 2(5) of the Act.
III. THE FACTS
The employees involved are food service employees em-
ployed by the Respondent, which provides food services for the
Oneonta, New York school system. The Respondent purchased
and took over this operation from the predecessor employer,
Quality Food Service, in about August 2000, or September
2001, and continued the operation under Quality’s 5-year con-
tract with the Oneonta school district. The Respondent’s repre-
sentatives herein are Becky Morin, food service director, Cindy
Yonkers, district manager, although not employed by the Re-
spondent at the time of the hearing herein, Mary Jane Harring-
ton, supervisor, and Denise Swedish, human resources man-
ager, each of whom were admittedly supervisors and agents of
the Respondent at the time of the events herein.
A. Union Activity
Bramsen testified that on February 7, she and three fellow
employees, Susan Hitchcock, Gloria Fink, and Carol Roberts,
were approached by Frank Antonucci, a union representative at
about 9:30 a.m. in the breakroom at the high school. Bill Han-
sen, the president of the union representing the custodial work-
ers and groundsmen at the school district, was with him and he
introduced them to Antonucci. Antonucci told them that he
wanted to see if they were interested in forming a union and
they said that they would listen to what he had to say. He asked
them to contact some of the other employees and that they
would set up a meeting for a later time. After that brief meet-
ing, Bramsen spoke to a number of the other employees about
the Union. Later that day she told Harrington about the meet-
ing with Antonucci, and Harrington told her that she had al-
ready heard about it, but wasn’t interested. Bramsen and 10
other employees next met with Antonucci on February 14 at a
place away from the workplace, where they spoke about the
possibility of organizing. Bramsen, Hitchcock, and one or two
of the other employees notified the others of this meeting.
Hitchcock testified that she spoke to Harrington on February 7
about the Union, and Harrington told her that Bramsen had told
her that Antonucci was coming to the facility to talk to the em-
ployees. Harrington testified that she did not know ahead of
time that Antonucci was going to speak to the employees about
the Union. Her knowledge of the Union came from a remark
that Bramsen made to her while in the kitchen: “I think we need
a union.” Harrington’s answer was: “I don’t.” She was aware
that Bramsen was one of the employees who was for the union.
Beginning on February 14, Bramsen wore two union buttons to
work; she was the only person who did so. In 2001 Bramsen’s
husband was the president of a local union of the Union.
B. February 8 Meeting
Morin presided over a mandatory meeting of all the employ-
ees on February 8 at about 1:30 p.m. Bramsen testified that
Morin described the meeting as a human resources meeting and
said that there was a rule against solicitations, but that she had
never enforced it, but the rule was there, so there could be no
solicitations; no Avon sales, Girl Scout cookies, raffle tickets,
or union pamphlets could be brought into the kitchen area. She
said that these matters couldn’t even be discussed on their
breaktime, because they were still on the clock. Bramsen asked
if this applied to everyone or whether there was a double stan-
dard. Morin said that there were no double standards. Harring-
ton then said that “if we had any request,” the employees could
take them to Tom Austin, the business manager for the school
district, who “. . . was very good at handling things for the
kitchen and for the school district.” Prior to this, the employees
had never been told that they could bring their workplace con-
cerns to the school board. Bramsen also testified that she be-
lieves that Harrington said that: “. . . if another company took
over, even if the union was in, that we could go back to a lower
pay and maybe even base pay . . . .” Bramsen, who had been
employed by Quality and the Respondent for 9-1/2 years, testi-
fied that she had never previously attended a mandatory meet-
ing other than the meetings customarily held at the beginning of
the school year, where the new employees are introduced and
employees are given their schedules. Prior to February 8, they
had never been informed of a rule against solicitations, and
employees regularly sold cookbooks, Girl Scout cookies, raffle
tickets, and other items, and were free to talk amongst them-
selves at the workplace without restriction. After this meeting,
the employees took all sale items from the kitchen and put them
in the custodian’s office, which they used as a breakroom, but
is not otherwise used by the Respondent, and stopped talking
about the Union on the school premises.
Hitchcock testified that all of the employees attended this
meeting after regular working hours. Morin told the employees
that she didn’t want them soliciting on the job: “she didn’t want
us even doing it on our break and that we should not even bring
it into school . . . .” Harrington said, “. . . something about a
pay rate and with a union and I’m not sure exactly what about
our pay rate could be dropped . . . .” Harrington said that “. . .
if we had any concerns, like if we were interested in . . . 401(k)
plan or bereavement days, snow days that we should talk to
either one of Mary Jane or Becky Morin and . . . they would
take it to Tom Austin.” Other than the orientation meetings the
employees had at the beginning of the school year, she had
never previously attended a mandatory meeting for the Re-
spondent in her 10 years of employment at the facility. In addi-
tion, prior to that time there was no restriction on soliciting
during working hours. Gloria Fink, who has been employed at
the school district for 3 years, testified that she was told by
Morin that there was to be a mandatory meeting at 1:40 that
day; all the employees as well as Morin and Harrington were
present. At the meeting, Morin said that soliciting would no
longer be allowed; she had previously permitted it, but that
since the Respondent took over at the facilities, she had to en-
force the rule. That was the first time that she was told of a no-
solicitation rule and, in the past, employees had been allowed to
sell Avon products, books, raffles, and Girl Scout cookies.
After Morin spoke, Harrington said that if the employees had
any problems, or were not satisfied, she would be willing to
take their concerns to Austin. That was the first time that the
Respondent had made such an offer to the employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1164
Sharon Walker, who has been employed as a food service
employee at the school district for 18 years, was notified by
Morin on February 8 that there was a mandatory meeting after
work that day. At the meeting Morin said that soliciting would
no longer be allowed. Previously anybody could sell Avon
products, Girl Scout cookies, or other items, but after February
8, it was no longer allowed in the building. Glen Adore Super,
who has been employed as a food service employee at the
school district for 35 years, testified that at the February 8
meeting Morin said: “. . . there was to be no more soliciting, no
bringing in of raffle tickets, Avon books, Girl Scout cookies, in
fact Becky had said this is something she should have taken
care of before but let it slide.” Harrington said: “. . . that if we
had any problems or needed any help, she could go to Tom
Austin, who would be very willing to help us out.” Prior to this
meeting, employees had brought Girl Scout cookies, Avon
books, and raffle tickets to work. After February 8, “It was
over.” Prior to this meeting, she was never told by the Respon-
dent that if they had any problems or something that they were
interested in, they could take it to the school district.
Morin testified that she conducted the meeting on February 8
because the Respondent’s human resources department notified
her that as part of the “transition” from Quality to the Respon-
dent she should notify the employees that the human resources
people would be coming to the facility to obtain information for
an associate satisfaction survey. She notified all the employees
at the facility that a meeting would take place that day. At the
meeting she told the employees that she wanted them to know
that human resources would be conducting a survey, and she
wanted them to know the subjects that would be discussed: a
harassment policy, an EEOC policy, an open communications
policy, and a no-solicitation policy. As to the latter, she said
that the Respondent had a no-solicitation policy that encom-
passed the sale of magazines, Girl Scout cookies, raffle tickets,
and union solicitation, and that the policy prohibited these so-
licitations on school property while they were on the clock and
being paid, including breaktime. As to the harassment policy,
she said that every employee was entitled to a workplace free of
harassment and intimidation and the open communication pol-
icy meant that if employees had employment concerns they
could always come to see her. Bramsen asked if the no-
solicitation policy applied to everybody, and Morin replied that
it did. Harrington asked her what effect a union would have on
their pay, and she said that when a union comes in, “. . . all
benefits and pay are renegotiated by a third party and nothing
was guaranteed.” She also said: “The possibility of losing any
benefits or pay would be extremely slim were we to unionize
because Mr. Austin always looks out . . . for the employees’
best interest.” Harrington also stated that since the contract
with the school district was coming up for renewal, if any of the
employees had “any concerns or whatever,” Austin would al-
ways listen to any complaints that the employees had. She
testified that in New York State contracts with school districts
are awarded to the lowest responsible bidder for 5-year periods.
In the past, she has discussed with the employees what they
wanted in a new contract prior to the expiration of prior con-
tracts. As far as she knows, the only solicitation that occurred
after this meeting at the facility were in the breakroom. Morin
testified that beginning in about October 2001, she heard “dis-
cussions,” “quips and gossip” about a union, but nothing defi-
nite about union meetings or employees soliciting until after the
February 8 meeting.
Harrington testified that at this meeting, Morin stated that the
contract with the school district would be coming up for re-
newal in about another year, and “. . . that she was open for
questions or concerns or anything. She does that every time a
contract comes up.” The last time that Morin did that was
about 4 years earlier, when the prior contract with Quality was
about to expire. Employees mentioned snow days and be-
reavement days as items that they would like to have, and
Morin said that they should tell her of their concerns and she
would discuss them with Austin at contract time. She testified
as well that at this meeting:

I asked Becky Morin a question that, being that we were a
contract company and that I knew that Tom Austin wrote up
the contract, that, if these things weren’t in the contract, with a
third party coming in, whether it was union or anybody else, if
it wasn’t in the contract, could we go back to minimum wage
with no rights or anything.

Morin responded that “It very well possibly could be, but
highly irregular . . .” because Austin was very much for the
employees and wouldn’t let that happen. She testified that she
never threatened to reduce the employees’ wages, nor did she
promise to obtain benefits for the employees.
C. February 14 Letter To Employees
On about February 14, the Respondent distributed to its em-
ployees a one-page letter from Morin to all employees; it was
prepared by Morin between February 8 and February 14. This
eight-paragraph letter makes numerous statements indicating
her opposition to the Union. The portion that is alleged to vio-
late the Act states:

As I stressed at the meeting I held, those of you who choose
not to be involved in this activity have every right to do so
without ANY FEAR for your job. If you feel pressured or
coerced in any way, please report it to me immediately . . .
Frankly, what bothers me the most is that our whole team has
not been included in what certain individuals are proposing as
a “team effort.” Some of you have been selectively left out of
the “informational network”, and you have expressed your
concerns to me. Unfortunately, that is not the “team spirit”
that I have worked 15 years to build, and for that, I am ex-
tremely disappointed in those of you have been willingly cho-
sen to compromise your coworkers trust.

It is alleged that the second sentence violates the Act because it
directed its employees to inform the Respondent of their union
activities and the union activities of coworkers. Each of the
employees who testified, testified that the Respondent never
explained what this paragraph meant, and never rescinded or
altered that policy. Morin testified that this was in the letter to
employees in order that they be aware that they “. . . not be
intimidated by anything they had no reason to fear a loss of
their job.” She testified further that the purpose of this letter
was not to have employees report on the union activities of
CHARTWELLS, COMPASS GROUP, USA, INC. 1165
fellow employees, but that employees would be aware that they
were entitled to be free from harassment—”Harassment about
anything . . . Anytime that an employee feels uncomfortable in
a work place, it becomes my obligation if they bring it to my
attention, to address it.”
D. February 18 Meeting
Denise Swedish, Respondent’s human resources manager,
spoke at a meeting of all the Respondent’s employees at the
school district on February 18. It is alleged that what she said
during this meeting violated Section 8(a)(1) of the Act by solic-
iting grievances from its employees and impliedly promising to
remedy the grievances in order to dissuade the employees from
supporting the Union. Bramsen testified that Swedish said that
a new contract was coming up soon “. . . and she was there to
find out if there was anything that we’d be interested in, if there
is something that we wanted that we didn’t have, that she
would listen and see . . . what we wanted and she’d try to do
something about it.” Employees then stated that they wanted
snow days, bereavement pay, and personal leave, none of
which they had, and an employee mentioned 401(K) plans.
Swedish said that the 401(K) plan was already in effect, but
that she would “. . . see what she could do . . .” about the other
items. Prior to this meeting, the Respondent had never asked
employees for their input on benefits. Hitchcock testified that
Swedish introduced herself as being from the human resources
department and “. . . she was there to talk to us about if we had
any concerns or questions . . . .” “Everybody” then asked ques-
tions about 401(K) plans, bereavement days, snow days, sick
days, and insurance plans. In response, Swedish said that she
would look into the issues for the employees. At that time, the
employees were not receiving snow days, sick days, or be-
reavement pay, and prior to this meeting the Respondent had
never asked the employees for their input on what benefits they
would like to have. Fink testified that Morin introduced Swed-
ish by saying that the human resources department was going to
listen to what the employees would like added to their contract,
and Swedish asked: “Do you have anything that you would like
added to your contract that you don’t have?” Fink asked about
insurance and other employees brought up snow days, be-
reavement days, and personal days, and Swedish said that she
would look into it and see what they could do about it with the
new contract. The Respondent had never previously asked the
employees what benefits they would like to receive. Walker
also testified that Swedish asked the employees “. . . if there
was anything that we wanted in the contract that we didn’t have
. . .” and some employees mentioned sick days, snow days,
bereavement pay, and insurance, and Swedish said that she
would check into it and would let them know what she could
do. That was the first time that the Respondent asked the em-
ployees for their input on benefits that they would like to re-
ceive. Super testified that Swedish said that the “. . . contract
would be coming up and if we had any wishes, she would like
to know what they were.” The employees mentioned snow
days, bereavement days, and personal days, and she said that
she would look into it for them. That was the first time that the
Respondent asked the employees what benefits they would like
to receive.
Swedish testified that she has been employed by the Com-
pass Group since June 2001; the Respondent is a division of the
Compass Group. In February, she went to meet with the em-
ployees as part of an “assessment” of the facility, which is an
all inclusive “. . . learning tool that covers questions from re-
cruitment and staffing, associate relations, training and safety
and H.R. administration.” The choice of February 18 to meet
with the employees was a random date as she was attempting to
meet with the employees of the former Quality accounts. That
was the first time that she was at the Oneonta facility. Prior to
this meeting she was not aware that some of the Respondent’s
employees had been discussing the Union. She began the meet-
ing by telling the employees about the Respondent and its poli-
cies, including its open door policy and harassment policy, and
then asked if there were any questions. Employees asked ques-
tions about snow days and funeral leave and Swedish re-
sponded that she would look into it. She testified that she
didn’t promise to remedy complaints that came up at the meet-
ing, nor did she imply that she would remedy any of the com-
plaints. Morin testified that in the past she has spoken to em-
ployees about benefits before the contract with the school board
was about to expire. She also testified that even though the
Respondent took over from Quality almost a year earlier, the
choice of mid-February to do the human resources evaluation
was just a coincidence.
E. March 6 Rules Restricting Solicitation
On March 6, the Respondent distributed a list of its work
rules to the employees as they were leaving work. Among the
work rules are two which the complaint alleges violates Section
8(a)(1) of the Act because they prohibit employees from engag-
ing in lawful union solicitation and prohibit employees from
discussing unions while at work and from soliciting on behalf
of unions during nonworking time. The introduction to these
work rules states that violations of the rules may result in some
form of disciplinary action, depending upon the seriousness of
the offense involved. The two work rules involved herein are:

B. Examples of Serious Offenses Which Call for Strong Dis-
ciplinary Action and Possible Suspension or Dismissal:
3. Threatening, intimidating or interfering with fellow
associates on Company and/or client premises;
18. Soliciting of any type on Company and/or client
premises during working hours.

The employees were told to read the rules, sign them and re-
turn them to the Respondent. Neither of the above-mentioned
rules were ever rescinded or further explained by the Respon-
dent. In addition, that was the first time that work rules were
distributed to the employees. Walker testified that when Morin
handed her the work rules, she told her that the employees
could not discuss union business on school property and, if they
did, there could be serious consequences. Morin testified that
she received the work rules in question sometime between Feb-
ruary 8 and March 6; as to Rule B-3: “I would say that it would
probably restrict work place harassment or intimidation.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1166
F. Bramsen’s Termination
Morin testified that on about February 28, she was ap-
proached by employee Carol Roberts,2 who was in tears saying
that she was fearful of losing her job. She said that Bramsen
had told her that if she didn’t join the Union she would lose her
job, that she would be “. . . right out of the door.” Morin told
her not to worry, that she (Morin) was the only person who
could affect her job, and that she had no intention of firing her.
After Roberts left, Morin decided that she would meet with
Bramsen to discuss this matter, but Yonkers, Morin’s boss, was
not available until March 7, so on that date (with Yonkers pre-
sent) she called Bramsen into her office at the conclusion of
work that day.
Bramsen testified that after she signed out for the day on
March 7, Morin and Yonkers stopped her as she was leaving
the facility and said that they would like to speak to her and
asked her to come into the office. They walked into Morin’s
office, the door was closed and Yonkers asked her if she had
received the work rules and Bramsen said that she received
them, but had not yet read them. Yonkers asked her if she was
familiar with Rule B-3 and Bramsen said that she didn’t know
and when Yonkers handed her the rules, Bramsen asked her to
read it to her, which she did. Yonkers or Morin asked her if she
was familiar with anyone violating the rule and one of them
said, “Are you aware that you are in violation of this?” Bram-
sen said “no” and Morin said that she had three complaints
against her, that she had been intimidating her coworkers and
making them feel uncomfortable. Bramsen said that she wasn’t
aware of it, and asked who the employees were. Morin said
that was privileged information and that she didn’t have to tell
her the names of the employees who filed the complaints and
Bramsen said: “Well, if I don’t know who filed the complaint,
what was I supposed to have done, what did I say?” Yonkers
responded that was also privileged information and they would
not tell her. Bramsen said: “You mean to tell me that I am
sitting here being told that I said something and I can’t defend
myself?” Yonkers said, “That is exactly what I am saying.”
Bramsen then said, “Well, if I can’t defend myself, I am out of
here.” Yonkers then asked: “Does this mean you’re quitting?”
Bramsen responded: “Anything you want to say. I am out of
here.” Yonkers stood up and said, “Well, hand your apron in.”
She testified: “I left because I couldn’t defend myself and I was
on my own time and I figured I did not have to stay there and
be accused of something I couldn’t defend.” When Bramsen
got home that day, because of the uncertainty of the situation,
she called Harrington’s home and spoke to her husband, who
said that she wasn’t home; Harrington never called her back.
The next morning Bramsen reported to work at the regular time
wearing her usual outfit and had her apron with her. She
walked into the facility with some of her fellow employees. On
a few occasions that morning, when she saw Harrington, she
(Harrington) walked in a different direction. Bramsen stayed
for about 15 minutes “to see if she [Harrington] would tell me
to start doing my work or if I was done or what was going on.”

2 Roberts is a mentally compromised individual who was referred to
employment at the Respondent by a local employment service, which
provides job coaches for these employees.
Because Harrington avoided her that morning, Bramsen left.
The Respondent never offered to take her back after that. In
addition, she testified that she never spoke to Roberts about the
Union. As to Yonkers’ statement to her on March 7 to hand in
her apron, she testified that in her experience that meant that
you are fired. Hitchcock, Fink, and Walker each testified that
on March 8, Morin told the other employees that Bramsen was
no longer working for the Respondent, and that she was sorry
to see her go because she was a good worker. By letter dated
March 8, Morin write to Bramsen, inter alia: “This serves to
inform you that Chartwells has accepted the verbal resignation
that you provided to Cindy Yonkers on 3/7/02. Your resigna-
tion is effective 3/7/02.”
Morin testified that she asked Bramsen to come into her of-
fice because she and Yonkers wanted to speak to her. Morin
told her that she called her into the office to give her a verbal
warning because several employees had approached her and
said that Bramsen had intimidated them and made them feel
uncomfortable in the workplace. Bramsen demanded to know
the names of the employees and Morin said that it was not nec-
essary for her to know the names, because she felt that it was
confidential, and giving the names would polarize the issue.
Bramsen became agitated and said, “How can I defend myself
if I don’t know who made the complaints?” Morin told her that
it was not necessary for her to know who made the complaints.
They then asked Bramsen if she remembered seeing the work
rules and she said that she didn’t. They asked if she wanted to
read them and she asked to have them read to her. Yonkers
read her the work rules and Bramsen stood up and said: “I’m
out of here” and walked toward the door. As she opened the
door, Yonkers asked her if she was resigning and she answered
either “Yes” or “yeah,” slammed the door and left.
Morin testified that, in addition to Roberts, other employees
had told her that they were pressured about the Union and
didn’t like it. Morin told them that unless they wanted her “. . .
to formally do something about it” she could not do anything
about their complaints. They replied that they felt strong
enough to deal with it; Roberts told her that she was not strong
enough to deal with it. Morin testified that Bramsen was gen-
erally a very good employee; Harrington testified that Bramsen
was a good employee who followed orders.
Yonkers testified that between the end of February and the
beginning of March she was called by Morin, who said that
Roberts had come to her crying and upset and that she (Morin)
had arranged to meet that afternoon with Roberts and her job
coach. Prior to the afternoon of March 7, Yonkers was aware
that Morin intended to give Bramsen a verbal warning for vio-
lation of work Rule B-3. At about 1:30 on March 7, as the
employees were leaving, she and Morin asked Bramsen to
come into Morin’s office to speak for a few minutes. Morin
told her that she was issuing her a strong verbal warning.
Yonkers asked her if she was familiar with the Respondent’s
work rules and Bramsen expressed uncertainty about it.
Yonkers showed her the rules and asked her if she was familiar
with them, and Bramsen asked Yonkers to read them to her,
which she did. Yonkers told her that they had received a num-
ber of complaints from employees that she was making the
workplace uncomfortable for them. Bramsen became irate and
CHARTWELLS, COMPASS GROUP, USA, INC. 1167
demanded to know who the employees were and what they
said. They told her that they need not tell her the employees’
names, that they wanted to “. . . discuss her creating a poten-
tially hostile work environment for fellow employees.” Bram-
sen then stood up and said, “I don’t need this, I’m out of here.”
As she was walking out of the door Yonkers asked her if she
was resigning, “. . . and I believe her reply was ‘yes’ and the
door slammed behind her . . . .” She testified that she does not
recall saying, “Turn in your apron.” She testified that the Re-
spondent does not have a formal policy requiring that hourly
employees’ resignations be in writing.
There was testimony of prior situations where Bramsen re-
signed or indicated an interest in resigning. In about 1996,
Bramsen got another job and quit her employment with Qual-
ity, although she continued to work for Quality at the facility as
a replacement worker, but with, apparently, fairly regular work
hours. When a regular position became available, Morin told
Bramsen about the position, she said that she was interested and
Morin rehired her. Morin testified that in about 1999, Bramsen
expressed dissatisfaction with her working conditions and
wrote a letter of resignation to Morin. Morin asked her why
she wanted to resign and Bramsen said that she didn’t really
want to go. After some further conversation, she said, “I’ll stay
and I’ll try it.” Morin testified that sometime in about 2001,
Bramsen “. . . was upset about something” and told Morin she
wanted to quit. Morin told her to think it through slowly, be-
cause she had resigned in the past and she had taken her back,
but “. . . she could no longer continue to operate like this.” She
told Bramsen that if she quit, she could not take her back, and
Bramsen reconsidered and did not leave. Morin testified that
the normal procedure is that she asks all employees who resign
to give her a letter of resignation. However, she never got a
resignation letter from Bramsen: “I had no time, Mrs. Bramsen
was out the door.” Bramsen testified that on one of the earlier
occasions when she told Morin that she was quitting, Morin
told her: “Eileen, we cannot ask you to stay, but I can ask you
to reconsider.” Morin never told her that if she was going to
quit she should be certain about it because if she did quit again,
the company would not take her back.
IV. ANALYSIS
There are three distinct 8(a)(1) allegations regarding the Feb-
ruary 8 meeting: that the Respondent unlawfully instituted a no-
solicitation rule, that it, by Harrington, threatened to reduce the
employees’ pay if they unionized and, again by Harrington,
solicited grievances from the employees and impliedly prom-
ised to remedy the grievances in order to dissuade the employ-
ees from supporting the Union.
The evidence is clear that prior to February 8, either there
were no restrictions on solicitations by the Respondent’s em-
ployees or, if there were, they were not enforced. There was
credible testimony of numerous solicitations that occurred prior
to February 8; the sale of Avon products, Girl Scout cookies,
and raffle tickets by the Respondent’s employees at the
schools’ facilities. The evidence establishes that at the Febru-
ary 8 meeting Morin told the employees that no solicitations
would be allowed, that the restriction included union solicita-
tions, and that it applied for the entire time that they were on
the clock, including their breaktime.
I find that the no-solicitation rule announced by Morin on
February 8 is unlawful for two reasons: initially, the restriction
was in effect even while the employees were on their break.
Because of this, it is not necessary to discuss Our Way, Inc.,
268 NLRB 394 (1983), which discusses the difference between
“working time” and “working hours.” Because it applied even
during the employees’ breaktime, the rule herein is clearly an
unwarranted infringement upon the employees’ Section 7
rights. Hilton Environmental, Inc., 320 NLRB 437 (1995). In
addition to the facial invalidity of the rule, it is also unlawful
because of its timing, one day after a number of the employees
first met with the Union. I credit Bramsen and Hitchcock’s
testimony that they told Harrington about the meeting, and this
testimony is reinforced by the timing of the announcement of
the rule—the day after the Union meeting. In Youville Health
Care Center, 326 NLRB 495 (1998), the Board stated:

There is no evidence that any rule restricting employee dis-
cussions of working conditions was previously imposed or
made known to the employees. Nor does the Respondent ar-
gue that prior to the advent of the employees’ protected con-
certed activities involved in this case there were any restric-
tions on employee discussions concerning working condi-
tions. Thus, the record supports a finding that Poster precipi-
tously adopted a new rule restricting employee discussions of
working conditions in response to the employees’ protected
concerted activity. We find that this conduct supports the
conclusion that the rule was established in order to stifle and
interfere with the employees’ exercise of their Section 7
rights. Because the rule was adopted for a discriminatory
purpose, we find that its promulgation violated Section
8(a)(1).

Respondent defends that the no-solicitation rule does not
violate the Act (through its promulgation at the February 8
meeting or in the March 6 letter setting forth Rule B-18) based
upon Morin’s testimony that the policy was never enforced and
was rescinded. I reject this defense. It is one thing to testify
that a no-solicitation rule announced to all the employees has
not been enforced, but that doesn’t mean anything if the em-
ployees were never told that it was not going to be enforced.
Further, counsel for the Respondent, in his brief, quotes Morin
as testifying that the no-solicitation rule was rescinded. How-
ever, the full sentence from that testimony is: “The solicitation
policy was rescinded, but my letter wasn’t.” Although it is not
clear from this testimony what she means by “. . . but my letter
wasn’t,” it makes no difference as there is no record evidence
that she informed the employees that the no-solicitation rule
was rescinded. I therefore find that Respondent’s promulgation
and announcement of the no-solicitation rule violated Section
8(a)(1) of the Act.
It is next alleged that Harrington threatened the employees
that their pay would be reduced if they unionized, in violation
of Section 8(a)(1). The only testimony supporting this allega-
tion was Bramsen’s testimony that Harrington said: “. . . if
another company took over, even if the Union was in, that we
would go back to a lower pay, and maybe even base pay . . .”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1168
and Harrington’s testimony that something was said about the
pay rate and the Union and that the pay rate could drop. On the
other hand, Morin testified that Harrington asked her what af-
fect a union would have on their pay and she said that all pay
and benefits were subject to negotiation, and nothing was guar-
anteed, but that the possibility of losing pay or benefits was
“extremely slim” because Austin always looked out for the
employees’ best interest. Harrington testified that she asked
Morin if they could go back to minimum wage in negotiations
and Morin answered that it was possible, but highly irregular
because Austin was for the employees and wouldn’t let it hap-
pen. In Taylor-Dunn Mfg. Co., 252 NLRB 799, 800 (1980),
enfd. 679 F.2d 900 (9th Cir. 1982), the Board stated:

It is well established that “bargaining from ground zero” or
“bargaining from scratch” statements by employer representa-
tives violate Section 8(a)(1) of the Act if, in context, they rea-
sonably could be understood by employees as a threat of loss
of existing benefits and leave employees with the impression
that what they may ultimately receive depends upon what the
union can induce the employer to restore. On the other hand,
such statements are not violative of the Act when other com-
munications make it clear that any reduction in wages or
benefits will occur only as a result of the normal give and take
of negotiations.

Bramsen and Hitchcock’s testimony in support of this allega-
tion is unclear and confusing. Because Harrington is an admit-
ted supervisor and agent of the Respondent and is clearly op-
posed to the Union, I find it likely that Harrington and Morin’s
statements were prepared and staged. However, I would still
credit their testimony on this allegation. In Mediplex of Con-
necticut, Inc., 319 NLRB 281 (1995), the Board stated: “The
Respondent’s message to its employees that union representa-
tion was no guarantee of better benefits and might result in less
desirable benefits, is legitimate campaign propaganda, which
employees are capable of evaluating.” The same is true herein,
and I recommend that this allegation be dismissed.
The final allegation regarding this meeting is that the Re-
spondent, by Harrington, solicited grievances from the employ-
ees and impliedly promised to remedy them, in order to dis-
suade them from supporting the Union. Bramsen, Hitchcock,
Fink, Walker, and Super each testified that this was the first
time that the Respondent had asked for their input on what
benefits they would like to receive or what problems or con-
cerns they had working for the Respondent.3 Bramsen, Hitch-
cock, Fink, and Super each testified that Harrington said at this
meeting that if the employees had any “requests,” “concerns,”
or “problems” she could take them to Austin. Bramsen and
Super testified that she also said that Austin was very willing
to, or was good at, helping the kitchen employees. Morin testi-
fied that she told the employees that since the contract was
coming up for renewal, if any of the employees had “any con-
cerns or whatever,” Austin would listen to their complaints, and
Harrington testified that Morin said that since the contract expi-

3 Actually this testimony relates to both this incident and the Febru-
ary 18 meeting with Swedish.
ration was coming up, “that she was open for questions or con-
cerns or anything.”
I found the employees herein to be credible and believable
witnesses who were attempting to recollect the events of Febru-
ary as best as they could and credit their testimony over that of
Morin and Harrington. I find it significant that these employ-
ees, who had worked at the facility for periods of from 3 to 35
years, had never previously been asked for their input on what
benefits they would like to have. And yet, on the day after
some of them met with the Union for the first time, the Re-
spondent asked them for their opinion on what benefits or re-
quests they had for the next contract with the school board.
Although the Respondent had taken over the operation from
Quality only about a year or two earlier, Morin had been the
food service director at the facility for 16 years and had never
previously surveyed the employees on problems or preferred
benefits.
In Reliance Electric Co., 191 NLRB 44, 46 (1971), the
Board stated:

Where, as here, an employer, who has not previously had a
practice of soliciting employee grievances or complaints,
adopts such a course when unions engage in organizational
campaigns seeking to represent employees, we think there is a
compelling inference that he is implicitly promising to correct
those inequities he discovers as a result of his inquiries and
likewise urging on his employees that the combined program
of inquiry and correction will make union representation un-
necessary.

In Pikeville United Methodist Hospital of Kentucky, Inc., 109
F.3d 1146, 1154 (6th Cir. 1997), the court stated:

It is undisputed that Dr. Tummons conducted regular discus-
sions with employees to solicit their input on working condi-
tions at Pikeville United Methodist Hospital. Nevertheless,
the breadth and scope of the SESCO survey, coming eight
years after the most recent similar grievance solicitation and
only after hospital administrators learned of the employees’
desire to organize was clearly a substantive change in the na-
ture of the hospital’s responsiveness to grievances. Further-
more, the timing of that change, coming as it did only a week
after communication of the employees’ desire for union repre-
sentation, leads to the natural inference that the increased con-
cern was improperly precipitated by the threat of union activ-
ity.

Similarly, in the instant matter, the solicitation of grievances
and work problems occurred a day after the first union meeting
and at a mandatory meeting of the employees where they were
told, for the first time, that no solicitations, including union
solicitations, would be allowed. Even though neither Morin nor
Harrington made any promises to improve the employees’
wages or other working conditions at this meeting, by asking
for their input on benefits, for the first time in the employees’
memory, they were soliciting the employees’ grievances, and
impliedly promising to remedy these grievances in violation of
Section 8(a)(1) of the Act. Orbit Lightspeed Courier Systems,
Inc., 323 NLRB 380 (1997). When an employer solicits griev-
ances from its employees during a union organizational cam-
CHARTWELLS, COMPASS GROUP, USA, INC. 1169
paign, even if the employer carefully phrases its statements so
as not to promise anything, that “. . . does not cancel the em-
ployees’ anticipation of improved conditions if the employees
oppose or vote against the unions.” Reliance Electric Co., su-
pra. The inference that an employer is impliedly promising to
correct grievances is rebuttal. Uarco, Inc., 216 NLRB 1
(1974). However, the Respondent has produced no credible
evidence to rebut this inference. I therefore find that these
statements violated Section 8(a)(1) of the Act.
It is next alleged that, through its February 14 letter to its
employees, the Respondent directed its employees to inform it
of their union activities as well as the union activities of their
coworkers, in violation of Section 8(a)(1) of the Act. The tar-
geted section of the letter states: “As I stressed at the meeting I
held, those of you who choose not to be involved in this activity
have every right to do so without ANY FEAR for your job. If
you feel pressured or coerced in any way, please report it to me
immediately.” In Eastern Maine Medical Center, 277 NLRB
1374, 1375 (1985), the Board stated:

. . . a statement by an employer urging its employees to report
if they have been “harassed” or, as here, “pressur[ed] . . . into
signing cards,” is overly broad and unlawful. Such a state-
ment has a potential dual effect on employees. It both en-
courages employees to report to the employer any union card
solicitor who approaches them in a manner subjectively of-
fensive to the solicited employees, and correspondingly dis-
courages union card solicitors in their protected organizational
activities.

In Automotive Plastic Technologies, Inc., 313 NLRB 462
(1993), the Board stated that the gravamin of these messages is
that, “Such a request could be interpreted by employees to in-
clude lawful attempts by union supporters to persuade employ-
ees to sign union cards.” That is precisely the problem with
Morin’s February 14 letter to the employees. It asks the em-
ployees to report to her “if you feel pressured or coerced in any
way.” Some employees, such as Roberts, may feel pressured
by a solicitation from a more senior employee, while others
would not feel pressured at all. That is one of the dangers of
Morin’s message, and I therefore find that it violated Section
8(a)(1) of the Act.
As was true of the February 8 meeting, I credit the testimony
of the employees regarding the February 18 meeting. Swedish
told them the contract was coming up for renewal and asked
them if there was anything that they did not have that they
would like to have in the new contract. Employees mentioned
401(K) plans, snow days, sick days, bereavement pay, and per-
sonal days and Swedish said that she would look into it and see
what she could do about it. Although I did not find Swedish to
be an incredible witness, I find incredible the Respondent’s
assertions that the timing of this meeting and the February 8
meeting were a mere coincidence. As stated above, the em-
ployees credibly testified that prior to February 8, the Respon-
dent had never asked for their input on benefits or what they
would like to have in a contract. It is too much to believe that
beginning the day after the Union’s first meeting, and soon
after the Respondent learned of the Union’s organizational
attempt, the Respondent all of a sudden took an interest in the
employees’ contractual desires. For the reasons stated above
for the February 8 meeting, I find that Swedish’s statements at
the February 18 meeting violated Section 8(a)(1) of the Act.
It is next alleged that work Rules B-3 and B-18, distributed
on March 6, violate Section 8(a)(1) of the Act. Rule B-18 pro-
hibits: “Soliciting of any type on Company and/or client prem-
ises during working hours.” In Our Way, supra, the Board
decided that rules banning solicitation during working time are
presumptively lawful because they imply that solicitations are
permitted during nonworking time. However, the Board also
stated that, as stated in Essex International, 211 NLRB 749
(1974), rules restricting solicitations during working hours are
presumptively invalid because that term connotes periods from
the beginning to the end of the workshift, which includes the
employees own time. These rules were never further explained
or rescinded by the Respondent, and Walker testified that when
Morin gave her the rules, she told Walker that the employees
could not discuss union business on school property. I find that
the Respondent has not rebutted the presumption that this rule
is invalid, and I therefore find that the implementation of the
rule violates Section 8(a)(1) of the Act.
Rule B-3 prohibits: “Threatening, intimidating or interfering
with fellow associates on Company and/or client premises.”
Counsel for the General Counsel alleges that this rule violates
the Act because, in effect, it prohibits employees from solicit-
ing for, or discussing, the Union during nonworktime. I note
that Rule B-2 prohibits swearing or the use of other abusive
language, Rule B-4 prohibits the making of false or harmful
statements concerning the company, its product, or any com-
pany associate, and Rule B-5 prohibits sexual harassment. I
find insufficient evidence to establish that Rule B-3 was meant
to stifle union solicitation among the Respondent’s employees.
It wasn’t really necessary for that purpose as the Respondent
promulgated Rule B-18 for that purpose. I therefore recom-
mend that this allegation be dismissed.
The final allegation is that the termination of Bramsen’s em-
ployment on March 7, either by discharge or constructive dis-
charge, violated Section 8(a)(1) and (3) of the Act. It is clear
that at the conclusion of her workday Bramsen was called into
Morin’s office to speak to Morin and Yonkers. It is also clear
that Morin was prepared to give her a verbal warning because
of what she had learned from Roberts and other employees.
Either Morin or Yonkers asked Bramsen if she was familiar
with Rule B-3, and after it was read to her, Morin told her that
she had received complaints from some employees saying that
she had intimidated them and made them uncomfortable.
Bramsen denied it, and asked for the names of the complaining
employees, but Morin said that the names were privileged, and
that she would not tell her the names of the complaining em-
ployees. Bramsen then said that she had no way of defending
herself if she didn’t know who made the complaints, and she
got up, said, “I’m out of here” and left the room. Before she
left, Yonkers asked, “Does this mean you’re quitting?” The
credibility issues arise at that point. Bramsen testified that she
answered: “Anything you want to say, I’m out of here” and
Yonkers responded, “Well, hand your apron in.” Morin testi-
fied that when Yonkers asked her if she was resigning, she
answered either “yes” or “yeah.” Yonkers testified that she
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1170
believes that Bramsen’s reply to her question was “yes” and
that she does not recall telling her to turn in her apron. Bram-
sen testified that she left the office for two reasons: because
Morin would not give her the names of the complaining wit-
nesses, she couldn’t defend herself, and because she was on her
own time as the workday had ended.
Counsel for the General Counsel initially alleges that this
constitutes a constructive discharge. Two elements must be
proven to establish a “traditional” constructive discharge:

First, the burdens imposed on the employee must cause, or be
intended to cause, a change in his working conditions so diffi-
cult or unpleasant as to force him to resign. Second, it must
be shown that those burdens were imposed because of the
employee’s union activities.

Crystal Princeton Refining Co., 222 NLRB 1068, 1069 (1976);
Algreco Sportswear Co., 271 NLRB 499, 500 (1984). Taking
the second requirement first, there can be no question that
Morin was aware that Bramsen was one of the chief supporters
of the Union. She told Harrington of the Union’s organizing
drive, wore union buttons to work, spoke to other employees
about the Union, and her husband had been the president of
another local of the Union representing other area employees.
However, there were no anti-Union statements made to her, nor
were there any statements indicating any animus to her because
of her union activities. I therefore find that counsel for the
General Counsel has not proven the second requirement of
Crystal, supra. I also find that he has not proven the first re-
quirement either. Morin told Bramsen that she was giving her a
verbal warning for intimidating employees; when Morin re-
fused her request to name the employees, Bramsen left, saying
that she could not defend herself. The test of “so difficult or
unpleasant as to force him to resign” is an objective one. The
receipt of a verbal warning, while unpleasant, especially when
the employer refuses to tell you of the underlying facts, does
not meet this standard. Board cases have found constructive
discharges in situations where an employer reduces an em-
ployee’s wages or benefits to an extent that it knows that he/she
cannot afford to continue at that rate, or where an employer
changes an employee’s shift knowing because of child care or
similar obligations the employee will have to quit. The facts
herein do not come close to these requirements.
The other variety of constructive discharge is often referred
to as the “Hobson’s Choice” constructive discharge. These
involve situations wherein an employer, rather than simply
affecting the employee’s economic conditions by lessening the
employee’s hours, wages, benefits, or work shift, restricts an
employee’s right to engage in Section 7 rights, causing the
employee to quit rather than having to work without being al-
lowed to engage in his/her statutory rights. In Hoerner Waldorf
Corp., 227 NLRB 612 (1976), the employer disparately and
discriminatorily enforced a no-solicitation rule in order to pre-
vent its employees from discussing union topics, and told an
employee that he would have to comply with this rule and re-
frain from such discussions in order to return to work. He re-
fused and quit, rather than complying with this unlawful condi-
tion. The Board found that this constituted a constructive dis-
charge because the employer conditioned continued employ-
ment upon the employee abandoning his right to engage in
Section 7 activity and the employee was compelled to quit
rather than relinquish these rights. In Intercon I (Zercon), 333
NLRB 152, 153 (2001), the Board found a constructive dis-
charge, stating:

We find that the Respondent’s conduct led Witha to reasona-
bly believe that she was compelled to choose between aban-
doning her union support or being terminated. When the Re-
spondent told Witha that she had 4 days to improve her
“negative attitude,” a euphemism for prounion activity, the
Respondent effectively told Witha that she had 4 days to
abandon her prounion attitude if she wanted to preserve her
job. As a result, Witha was presented with a Hobson’s choice
of relinquishing her statutory rights or facing termination.
She resigned rather than abandon her union support.

In Alpine Log Homes, Inc., 335 NLRB 885 (2001), the em-
ployer issued the employee two disciplinary notices and two
suspensions because of his union activity, and one of these
notices stated that further solicitations would result in his ter-
mination. Within days of returning to work from a 5-day sus-
pension, without pay, he was suspended for an indefinite period
of time for “continued harassment of coworkers.” After this
suspension, he quit. The Board stated:

The Respondent, however, presented no evidence that Leh-
man engaged in any behavior that would constitute harass-
ment of his coworkers sufficient to deny him the protection of
the Act. It was reasonable for Lehman to conclude that, if he
returned to the Respondent’s employ, he would continue to
suffer repeated loss of earnings as a result of the Respondent’s
conduct. In these circumstances, we find that Lehman’s deci-
sion not to return constituted a constructive discharge.

These cases are distinguishable from the instant matter,
where Bramsen was told that she was receiving a verbal warn-
ing for intimidating other employees. It is not alleged, and
there is no evidence that, this verbal warning was discriminato-
rily motivated. Morin testified that Roberts told her of the in-
timidation, Bramsen denied it, and Roberts did not testify. Al-
though this was clearly an unpleasant situation for Bramsen,
she was not asked or told to relinquish any statutory rights in
return for remaining in the Respondent’s employ. Quitting
wasn’t her only reasonable response; she could have contacted
the Union for advice and/or filed a charge with the Board. I
therefore find that the situation does not reach the level of a
“Hobson’s Choice” constructive discharge.
In the alternative, counsel for the General Counsel alleges
that Bramsen was terminated because of her union activities.
This theory relies upon the fact that the Respondent refused to
allow Bramsen to rescind her resignation of the prior day.
Bramsen attempted to call Harrington after she left on March 7,
and appeared at the facility on March 8 ready to work, but
when Morin and Harrington refused to speak to her, she left. I
find this allegation without merit as well. Initially, I find that
she did quit on March 7. I credit the testimony of Yonkers that
when she asked Bramsen, on her way out the door, whether she
was quitting, she said that she was. In addition, even if I didn’t
credit that testimony, Bramsen’s actions left little doubt that she
CHARTWELLS, COMPASS GROUP, USA, INC. 1171
was quitting. She walked out of the office in the middle of a
meeting with the words: “I’m out of here.” Considering the
circumstances, a reasonable interpretation of those words were:
“I quit.” Additionally, when Yonkers asked her if she was
quitting, she could have answered “no,” rather than, “Anything
you want to say. I am out of here.” Furthermore, the evidence
establishes that on two or three occasions over the past 6 years
Bramsen had quit or threatened to quit. Because of this past
history, I find reasonable Morin’s testimony that about a year
earlier she told Bramsen to be certain about quitting, because
the next time she quit she would not take her back, and I credit
this testimony. I therefore find that when Bramsen returned to
the facility on March 8, Morin and Harrington decided not to
rehire her, but that this decision did not violate Section 8(a)(1)
and (3) of the Act under Wright Line, 251 NLRB 1083 (1980),
and I recommend that this allegation be dismissed.
CONCLUSIONS OF LAW
1. At all material times, the Respondent has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. At all material times, the Union has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act in the
following manner
(a) Promulgating, by oral announcement on about February
8, and by written rule on about March 6, work rules prohibiting
union solicitation of any kind at work.
(b) On about February 8 and February 18, soliciting griev-
ances from its employees and impliedly promising to remedy
the grievances in order to dissuade employees from supporting
the Union.
(c) On about February 14, in a letter to its employees, direct-
ing them to inform the Respondent of their union activities and
the union activities of their coworkers.
4. The Respondent did not further violate the Act as alleged
in the complaint.
THE REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices in violation of Section 8(a)(1) of the Act, I shall
recommend that it be ordered to cease and desist therefrom and
that it take certain affirmative action designed to effectuate the
policies of the Act. In that regard, I shall recommend that the
Respondent be ordered to rescind its unlawful no-solicitation
rule and to notify its employees, in writing, that it has done so.
[Recommended Order omitted from publication.]