Crossing Rehabilitation Services

National Labor Relations Board - Administrative Judge Opinions

Sep 25, 2006

29-CA-036943 (N.L.R.B. Sep. 25, 2006)

JD(SF)-46-06
ISLIP TERRACE, NY

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO, CALIFORNIA

CROSSING RECOVERY SYSTEMS, INC. d/b/a
CROSSINGS REHABILITATIVE SERVICES, INC.

and Cases 29–CA–26118
29–CA–26133
AMALGAMATED LOCAL 298, 29–CA–26156
INTERNATIONAL UNION OF ALLIED 29–CA–26166
NOVELTY AND PRODUCTION 29–CA–26167
WORKERS, AFL–CIO 29–CA–26296
29–CA–26298
29–CA–26299
29–CA–26300

Haydee Rosario, Esq., for the General Counsel.
Clifford P. Chaiet, Esq. (Naness, Chaiet & Naness, LLC),
of Jericho, New York, for the Respondent.
Bryan C. McCarthy, Esq., for the Charging Party.

SUPPLEMENTAL DECISION

Statement of the Case

JOSEPH GONTRAM, Administrative Law Judge. This case was tried in Brooklyn,
New York, on August 3–5 and September 20 and 21, 2004. Between February 12, 2004 and
May 12, 2004, Amalgamated Local 298, International Union of Allied Novelty and Production
Workers, AFL–CIO (the Union or the Charging Party) filed charges against Crossing Recovery
Systems, Inc. d/b/a Crossings Rehabilitative Services, Inc. (the Respondent).1 The consolidated
complaint (complaint) was issued May 20, 2004 and was orally amended at the hearing.

In approximately November 2003, the Union began an organizing campaign to represent
certain employees at the Respondent’s Islip Terrace facility. The complaint alleges that, during
the organizing campaign, the Respondent engaged in surveillance and created the impression
of surveillance of its employees’ protected activities; threatened its employees; interrogated its
employees; solicited employee grievances, promised to remedy the grievances, and promised
additional benefits as an inducement to refrain from supporting the Union; directed an employee
to refrain from challenging voters in the representation election; urged an employee not to serve
as an observer for the Union during the election, and then threatened and disparaged the
employee for serving as an observer; harassed an employee for voting in the election; and
discharged three supervisory employees because they had failed to prevent unionization and to
1 All dates are in 2004 unless otherwise indicated.

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discourage employees from engaging in protected activities; all in violation of Section 8(a)(1) of
the National Labor Relations Act (the Act). The complaint also alleges that the Respondent
unlawfully discharged four employees in violation of Section 8(a)(1) and (3) of the Act.

On August 8, 2005, the Administrative Law Judge who presided over the hearing issued
his decision. The Respondent filed exceptions. The National Labor Relations Board (the Board)
remanded the case because the majority of the judge’s decision, both in his factual statement
and his legal discussion, had been taken from the General Counsel’s posthearing brief. The
Board noted that this method of crafting a decision risks the appearance that the judge failed to
conduct an independent analysis of the case’s underlying facts and legal issues. Crossing
Rehabilitation Services, 347 NLRB No. 21 (2006). After the case was assigned to the present
judge, an attempt was made to contact the parties to determine if the parties were inclined to
resolve the matter or if the parties desired to submit additional briefs or submit additional
evidence. The Respondent’s attorney, Clifford P. Chaiet, Esq., advised the Board in a letter
dated June 16, 2006, with a copy to the Respondent, that his firm was no longer representing
the Respondent in this matter. The Respondent has not otherwise responded to the foregoing
inquiries.

In accordance with the Board’s direction, the administrative record of this case has been
carefully reviewed. Moreover, in determining the facts, and in accordance with the Board’s
instruction, the presiding administrative law judge’s demeanor-based credibility determinations
have been accepted and followed to the extent that such determinations are consistent with the
weight of the evidence.

On the entire record, and after considering the briefs filed by the General Counsel and
the Respondent, I make the following

Findings of Fact

I. Jurisdiction

The Respondent, a corporation, provides drug and alcohol rehabilitation and counseling
services from five facilities, including its facility in Islip Terrace, New York. The Respondent’s
principal office and place of business is in Patchogue, New York. During the year immediately
prior to the filing of the complaint, a period representative of the Respondent’s annual
operations, and in the course and conduct of its operations, the Respondent derived gross
annual revenues in excess of $250,000, and it purchased and received at its Islip Terrace
facility supplies and materials valued in excess of $5000 from suppliers located within the State
of New York. These suppliers, in turn, purchased the materials from suppliers located outside
the State of New York. The Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the Act.

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II. Alleged Unfair Labor Practices

A. Background

Frank Buonanotte is the president, chief executive officer, and sole shareholder of the
Respondent. The Respondent is a family business that was cofounded by Buonanotte’s father.
Buonanotte considers the business his father’s legacy, and when anything happens to the
company Buonanotte “take[s] it quite personal.” (Tr. 938.)2

Buonanotte harbors extreme antiunion feelings. His antiunion attitude is apparent in his
testimony. Buonanotte considers the Union’s campaign to organize the Respondent’s workers in
its Islip Terrace facility as a campaign to sabotage his business. (Tr. 914.) He openly states that
he hates unions, and he admits that he says “f— you”3 to Joseph Giovinco, the Union’s
representative, every time he sees Giovinco and without regard to who may be present. There
is no evidence of any reason for Buonanotte’s rudeness and coarseness toward Giovinco
except for Buonanotte’s extreme antiunion attitude.

Sarah Navas is the Respondent’s senior office manager, and she reports to Buonanotte.
As senior office manager, Navas oversees the office managers and is responsible for the office
procedures in the Respondent’s five facilities. Navas has been the Respondent’s senior office
manager since 2002. She is a close personal friend of Buonanotte. Alicia O’Connor is the
Respondent’s executive director and she reports to Buonanotte. O’Connor oversees the clinical
and administrative functions in the Respondent’s five facilities. The offices for Buonanotte,
Navas, and O’Connor are located in the Patchogue facility.

B. Organization Campaign and the Respondent’s Reaction

In November 2003, Buonanotte discharged Pat Russo, a counselor at the Respondent’s
Islip Terrace facility. Several employees were displeased with and concerned about Russo’s
termination and the way it was handled. Heather Dale, a counselor and a Licensed Practical
Nurse (LPN), contacted the Union and arranged a meeting between the Union and interested
employees. The meeting was held in late November at Russo’s residence. Giovinco and Robert
Foxx were present for the Union. The employees included Russo, Dale, Joann Barrett (a
managed care coordinator), Christina Mazzuco (a secretary), Andrea DiFolco (a secretary), and
another employee.

At the time of this meeting, Barrett was a managed care coordinator, a nonsupervisory
position. However, in January 2004, the Respondent promoted Barrett to a senior counselor
position, and she supervised approximately five clinicians. The parties agree that upon Barrett’s
promotion to senior counselor she became a statutory supervisor as defined in Section 2(11) of
the Act. Dale, Barrett, Mazzuco, and DiFolco signed union authorization cards at the meeting.
The next day, Dale told Katheline Hyde, the office manager of the Islip Terrace facility, about the
meeting and presented a union authorization card to Hyde for her signature. Hyde signed the
card because she believed that it would allow her to receive information from and about the
union. The parties agree that Hyde was a statutory supervisor as defined in Section 2(11) of the
Act.

2 References to the transcript of the hearing are designated as Tr.

3 In this decision, “f—“ will be substituted for fuck.

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On December 29, 2003, the Respondent learned of the Union’s organizing campaign
when the National Labor Relations Board (the Board) notified the Respondent that the Union
had filed a petition to represent the employees at the Respondent’s Islip Terrace facility. Before
December 29, 2003, Buonanotte rarely visited the Islip Terrace facility. After he learned of the
Union’s organizing drive, Buonanotte visited the Islip Terrace facility every day, and he
continued his daily visits until the representation election was held on March 9, 2004.

In early January, Buonanotte went into Barrett’s office. He was distressed about the
possibility that the Union might represent the employees. He asked Barrett if she knew which
employees were involved with the Union. He told her he wanted the names of those employees,
and he asked Barrett if she had any other information about the Union. Barrett told Buonanotte
that her only information about the Union came from faxes that had come into the Islip Terrace
office from the Union. Tom Kenney, the director of the Islip Terrace facility, then entered the
office and joined the discussion. Kenney and Barrett both tried to calm Buonanotte. Buonanotte
said that he hates unions and he would rather see the facility closed than to have a union
represent the employees. He said he had already talked to the owners of other treatment
facilities, and that they would work with him if the Union came into his facility. He said that if the
union came in, the only thing the employees could do was to strike, and he already had a plan
on how to deal with a strike.

The next day, Buonanotte came to the Islip Terrace office accompanied by Navas.
Mailbox slots are maintained in the front office for employees in the Islip Terrace facility. The
mailboxes are used for business-related as well as nonbusiness-related matters. For example,
personal notes and items between employees are placed in the mailboxes, as well as
videotapes, invitations, and books. Buonanotte had previously distributed a memo, which was
placed in every employee’s mailbox, in which he warned the employees against having a union
represent them. Buonanotte and Navas went to the Islip Terrace facility and searched every
employee’s mailbox in the front office in reaction to Barrett’s statement to Buonanotte the
previous day about faxes that had been received from the Union. Buonanotte seized and
shredded documents pertaining to the Union that he found in the employees’ mailboxes. These
actions were performed in the presence of Mazzuco, DiFolco, Hyde, Barrett, and other
employees.

After Buonanotte and Navas searched the employees’ mailboxes and shredded some of
the documents they found, they went into the individual offices in the facility. Counselors and
other employees shared these offices. Buonanotte and Navas searched the offices and the
desks in the offices for evidence of any materials from the Union. They also searched through
and seized the employees’ message books. As Buonanotte was reading the employees’
message books, he asked Mazzuco and DiFolco the meaning of some of the notations in the
message books. Buonanotte then searched through old message books that he retrieved from a
closet.

When Buonanotte and Navas finished searching through the employees’ message
books, Buonanotte went over to the fax machine. A copy of every fax that goes through the fax
machine is stored in the machine. Buonanotte unraveled the stored faxes and searched the
entire database in the machine. He then discarded every copy of every fax that he obtained
from the machine. Buonanotte instructed Hyde to send him every fax received by the Islip
Terrace office before the fax was distributed to the intended recipient. Buonanotte told Hyde that
she should shred any document received from the Union and that such documents should not
be placed in the employees’ mailboxes. He told Hyde that she must not allow employees to
have any access to union materials. The frantic nature of Buonanotte’s and Navas’ searches of

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the Islip Terrace facility, driven by Buonanotte’s antiunion sentiments, is indicative of the depth
of his sentiments and his goal to eliminate the employees’ desire for representation, or
alternatively, to eliminate the employees who desired a union.

As Buonanotte and Navas were getting ready to leave the facility, Buonanotte grabbed
some message books and told Hyde that no copies of any faxes from the Union were to be
made, and noted that “this is still my company.” (Tr. 421.) Buonanotte returned to Islip Terrace
later in the day. DiFolco was alone in the front office. Buonanotte again searched the
employees’ mailboxes and discarded more documents. He asked DiFolco if she knew anything
about the Union. She replied that she did not know anything about the Union. He asked her if
anyone had approached her about the Union, and she said, no. Buonanotte asked DiFolco if
she knew the name of the ringleader, and she replied that she did not know. Buonanotte then
asked DiFolco how she would vote in a representation election, and DiFolco replied that she did
not know. Buonanotte told DiFolco that a union had no place at the Respondent, unions were
corrupt, and unions would threaten and harm DiFolco, her boyfriend, and her family. Buonanotte
also told Mazzuco that “people like Heather Dale” were going to try to convince Mazzuco to vote
for the Union. (Tr. 347.)

Buonanotte then left the front office area and went to one or more of the inside offices.
DiFolco returned to her duties, which involved filing papers and folders in the filing cabinet.
While she was performing these duties, DiFolco happened to glance behind her and she saw
Buonanotte standing in the doorway to the front office with a knife in his hand as he was
observing DiFolco. DiFolco was startled, and Buonanotte said, “I didn’t mean to scare you, but
we have unstable clients here, and we shouldn’t have knives lying around.” (Tr. 426.)
Buonanotte was still at the facility when DiFolco left at 8:30 p.m., the end of her workday.

In the end of January, Buonanotte and other managers held the first of approximately
four meetings with the employees. Before the meeting started, Buonanotte talked to some
employees separately. He entered Dale’s office and asked her why she felt the need for a
union. She replied that Buonanotte was inaccessible, and she felt a union could better negotiate
on safety issues, benefits, and job security. Buonanotte said he would not allow a union to
“come in and tell him what to do and how to run his father’s, you know, what was his father’s
business.” (Tr. 127.) He said he would not participate in any negotiations with a union. He told
Dale that she would have to go on strike, and others would replace her. He asked Dale how
long she had been working for the Respondent, and she replied 3 years. Buonanotte said that 3
years was the average time people remain in jobs, so he would not have to offer Dale her job
back for 3 years.

Buonanotte conducted the staff meeting, which was held in one of the offices at Islip
Terrace. Present were Buonanotte, O’Connor, Hyde, Mazzuco, DiFolco, Lillian Gouge (a
secretary), Dale, Joanne Macken (a counselor), John Carlson (a counselor), and one or two
additional employees. Buonanotte started the meeting by telling the employees that they do not
and should not want a union, and he wanted to educate the employees about the Union. He
said that the employees did not have a right to have a union and that the Respondent was no
place for a union. He distributed some material about the wages allegedly paid by the Union to
its own staff. He stated that he would never negotiate with the Union. “[I]t was his business” and
“he had the final word. And, under no circumstances would he negotiate.” (Tr. 428.) Buonanotte
said the Respondent was a family business and he would never allow the Union to get in.
Buonanotte added that because he would not negotiate with the Union, the employees would
have to strike, and he would replace every employee who was on strike.

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Several employees voiced concerns. Hyde said that she was forced to second-guess
herself because Navas was continually checking Hyde’s work. Buonanotte replied that Hyde
was doing a good job and that she was one of the best office managers he ever had.

Buonanotte asked the employees to tell him of any concerns they might have and why
they might be in favor of a union. He promised to become more involved with Islip Terrace. He
told the group that a steering committee was already in place to address employee concerns,
and that, although Islip Terrace was on the only facility without a representative on the steering
committee, the employees could nominate someone from Islip Terrace for the steering
committee. He emphasized to the employees that if they had any concerns, they could call him
at his Patchogue office.

Several days later, Buonanotte approached Macken in her office. He said that she might
have misunderstood him in the previous meeting. He assured her that he wanted to be available
to the employees and that they could send him e-mails if they wanted. He repeated that he
would never negotiate with the Union. He said that unions were violent. He asked Macken how
long she had worked for the Respondent. She said 2 years. He said that after she went on
strike, which she would have to do if the Union were elected, he could replace her with
someone who would not have to leave and who would keep Macken’s job for 2 years.

Several days later, O’Connor held a staff meeting at Islip Terrace. O’Connor, Kenney,
Hyde, and Barrett, together with approximately five employees attended. O’Connor assured the
group that if any employee felt uncomfortable bringing any concerns or problems to “Frank”
[Buonanotte], they should come to O’Connor. O’Connor expressed her desire to fix any
problems the employees had without involving the Union. O’Connor also said that if the Union
came in, the current relaxed atmosphere in the office would change and, giving an example, she
said that the employees would have to “punch a clock.” (Tr. 37.) O’Connor asked Barrett how
she felt about a union representing the employees at the Respondent. Barrett replied that she
preferred to stay neutral.

On February 10, the Board’s Regional Director for Region 29 issued his decision in
which he directed that an election be held in the Islip Terrace facility to allow the employees in
the Unit to decide if they wanted to be represented by the Union. The Unit included all
counselors, clerical employees, and managed care coordinators at the Islip Terrace facility, but
excluded nurses, social workers, other professional employees, and supervisors. (GC Exh.
4(c).)

On February 10, Buonanotte held another meeting with management and employees at
Islip Terrace. Buonanotte, O’Connor, Kenney, and Barrett attended for management, and there
were approximately nine employees. Buonanotte told the employees that a union could not
obtain raises for them because he had no money for raises. Buonanotte also told them that a
union could not obtain any other benefits or concessions from the Respondent, so a union could
not be helpful to any of the employees. He then asked the employees to tell him why they
wanted to have a union. Dale and Mazzuco voiced some concerns, and Buonanotte repeated
that a union could not help the employees. He said that if a union were permitted to come onto
the facility, the employees would have to strike. Buonanotte also described material about
unions that he had obtained from the Internet, and he told the employees that he would make
copies for them if they wanted.

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Two days later, Buonanotte went into Barrett’s office in Islip Terrace and told her that he
had heard she was favoring the union. He said, “you’re either with us or you’re against us and I
need to know now, if you’re against us, get out and get out now.” (Tr. 33.) Buonanotte said he
was not questioning Barrett’s clinical abilities, but he wanted to know about her loyalties. Barrett
assured Buonanotte that she was with him.

In January, Kenney proposed to Dale that she should consider doing more medical
screenings than she was currently doing, which would involve different hours and an increase in
pay. Dale eventually agreed and she was doing these duties and had received an increase in
pay by approximately the end of January. On approximately February 4, Kenney told Dale that
she was being switched to the payroll of the Port Jefferson facility. Kenney told Dale that she
was being switched on these payrolls for budgetary reasons. On February 11, Buonanotte
distributed a memo to the Islip Terrace employees advising them that an election would be held
and that he was required to give to the Union the names and home addresses of the employees
in the unit. The memo also stated that only employees on the Islip Terrace payroll would be
eligible to vote in the upcoming election. When Dale received this memo, she told Kenney that
she believed she was transferred to Port Jefferson’s payroll in order to prevent her from voting
in the election and that such actions were illegal. Kenney denied that charge. Dale told Kenney
that the reason he had given her for changing her payroll location was “budgetary bullshit.”

On approximately February 11, Buonanotte went into Dale’s office and asked about the
concerns she had expressed to Kenney. Dale said she was upset that she would not be eligible
to vote because of the recent change in payroll location. Buonanotte said that the change was
done for budgetary reasons. Buonanotte then asked Dale why she wanted a union and what
she thought a union could do for the employees. Buonanotte said that the Islip Terrace
employees had all the benefits and pay raises the Respondent was able to give. Buonanotte
said that when an employee is fired, there are evaluations leading up to and supporting the
firing. He said that the Respondent gives a warning before firing an employee, and only if the
employee fails to adhere to the warning will he fire that person. Buonanotte cited the case of
Russo as an example of the Respondent’s “warning” practice.

Dale asked Buonanotte why he was using Dale’s name in his conversations with other
employees. Buonanotte denied doing this, and Dale said he was lying because other employees
had told her that he did use Dale’s name. Dale called Buonanotte a liar and Buonanotte denied
that he had lied. During this confrontation, Dale became excited and raised her voice, and
Buonanotte also raised his voice. Dale accused Buonanotte of trying to block her vote in the
upcoming election at Islip Terrace. Dale said that Buonanotte had shredded all the memos that
the Union had sent to the employees and that Buonanotte had threatened and harassed the
employees. Dale cited charges that had been filed by the Union to support her statement that
Buonanotte had threatened employees. Buonanotte went into the front office yelling, “Did I
threaten and harass anybody here.” (Tr. 143.) Buonanotte returned to Dale’s office and
repeated that he had not threatened or harassed anyone.

Buonanotte did not warn Dale about her conduct or otherwise indicate that her conduct
was in any way objectionable or improper. However, he did add that with a union, Dale would
have to strike, and if she did, he would replace her. He also said that if there were a strike,
Dale’s clients would have to cross the picket line.

Between the date of this incident and February 19, Dale was working at the Patchogue
office for a day. Buonanotte saw her and asked her to come into his office. He showed Dale a
paper from the Board concerning the eligible voters, and he said that he wanted Dale to vote

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because her job was primarily as a counselor rather than a nurse. Dale apologized to
Buonanotte for previously accusing him of trying to prevent her from voting. Buonanotte replied,
“Apology accepted.” (Tr. 159.)

On February 11, Buonanotte spoke with Gouge while she was working in the front office
at Islip Terrace. He asked her if she had yet made a decision on whether to vote for the Union.
Buonanotte told Gouge, “I will let you know that if you vote in a union on March 9th I will make
sure you strike.” Gouge asked, “what are my options if a strike does happen?” and Buonanotte
replied, “Your options will be that you can cross the picket line and still come to work risking
violence against yourself and being attacked.” Buonanotte then said, “Well look, all I can urge
you is if you want to be safe, I can urge you to vote no for the union.” (Tr. 251–252.)

On February 12, Buonanotte spoke with Gouge and DiFolco in the front office. He again
asked if they had yet made a decision on whether they would vote for or against the Union. He
repeated that he would never negotiate with the Union, and he would never allow a union to
come into the Respondent. At approximately 8:15 p.m., Buonanotte received a telephone call,
which caused him to become upset and he hurriedly left.

On February 12, Navas met with Barrett and Mazzuco in an office at Islip Terrace.
Navas said that she and “Frank” (Buonanotte) were very distressed about the union situation.
Navas acknowledged that her and Buonanotte’s actions, such as going through all the
employees’ message books, must also be stressful for the employees, but “it’s just something
that they [Navas and Buonanotte] had to do.” Navas attributed Buonanotte’s actions to her claim
that “this was a really stressful time for him.” (Tr. 435.)

In the evening of February 12, a second meeting was held between the Union and Islip
Terrace employees. The meeting was held in the back room of the Oconee diner at
approximately 8:30 p.m. Giovinco was present for the Union. Approximately seven employees
attended, including Hyde, Mazzuco, DiFolco, Gouge, Macken, and Dale. As the meeting was
beginning, Navas entered the room accompanied by Buonanotte’s mother, and they sat at a
table next to the table where the employees were seated. Dale went over to Navas’s table and
greeted her and Buonanotte’s mother. Then, Navas arose and went to the table where the
employees were seated. She greeted the employees and stood for a period of time behind
Hyde. Navas and Buonanotte’s mother remained at their table for about an hour while the
employees met with the Union. Buonanotte did not enter the diner during the meeting. However,
he stayed in his car, which was parked outside the diner.

The next day, February 13, Navas instructed Gouge to come into an office at Islip
Terrace for a private meeting. Navas said that she had learned about the employees’ meeting
with the Union at the Diner and she went to see which employees would attend. She said that
she had told Buonanotte about the meeting. Navas said that she felt betrayed when she saw “all
four of her girls” meeting with the Union the previous night. (Tr. 241.)

Also on February 13, Buonanotte, Navas, and Kenney met with Hyde in Kenney’s office.
Buonanotte asked Hyde why she was at the meeting the previous evening between the union
and the employees. Hyde said that she attended the meeting to support the employees, to learn
what the Union was telling the employees, and to get information about the union. She told
Buonanotte that she had asked the union representative how the Union expected to get pay
raises for the employees, and Giovinco had replied that the Union had influence with an
insurance company, which would result in lower premiums, which, in turn, could be used to
obtain wage increases. Buonanotte said that he would fire any supervisor who he felt was not
on the side of the company. Buonanotte asked Hyde for the names of the employees who

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attended the meeting, and she gave him the names. Buonanotte told Hyde to advise the
counselors that he would train certified social workers in his other facilities to replace the
counselors at Islip when the counselors went on strike. (Certified social workers are not within
the Unit; counselors are within the unit.) Buonanotte told Hyde to advise the employees that he
would force the employees to go on strike because he was not going to negotiate, he would
have other people ready to step in when the strike occurred, and that he was already training
replacements for the employees. Buonanotte asked Hyde whether she knew how the
employees would vote, and she said she did not know. Buonanotte then told her to ask the
employees to vote no in the election.

The meeting ended without recriminations or harsh words. Hyde apologized for not
advising Buonanotte that she was going to the meeting. Buonanotte said that he did not
question Hyde’s abilities as an office manager, just her judgment in going to the meeting.
Kenney supported Hyde by saying that she was a “straight shooter, and that [she] meant what
[she] said.” (Tr. 637.)

Consistent with Buonanotte’s instructions, Hyde told the secretaries that she had been
instructed to tell them that voting against the Union was in their best interest and to vote against
the Union in the election. Hyde also told the secretaries that Buonanotte was not going to
negotiate with the Union and that a strike was inevitable. The secretaries asked Hyde what they
should do, and Hyde simply said, “You have to do what’s best for yourself.” (Tr. 639.)

During this time, Buonanotte asked Evelyn Cabral, the Respondent’s director of
managed care, to come into his office in the Patchogue facility. Buonanotte asked her to talk to
the Islip Terrace staff and try to persuade them to vote against the Union. He told Cabral that
she could not lie or make promises, but that it would be detrimental to the patients if the
employees went on strike and the patients had to cross the picket line. The parties agree that
Cabral was a statutory supervisor as defined in Section 2(11) of the Act.

Later in February, but before February 19, Kenney approached Gouge at her desk in the
front office. Kenney asked Gouge why she wanted a union. As Gouge tried to explain, Kenney
told her, “If you don’t like it here, why don’t you just quit, why do you need to have a union, you
know, represent you, why don’t you just quit?” (Tr. 131.)

On February 19, Dale reported for work at her regular time of 8:30 a.m. Buonanotte
came into her office at 2 p.m. accompanied by six members of the Respondent’s management
team, including Navas, O’Connor, Jerry Smith (the director of the West Hempstead facility), Kia
Gilmore (a case manager in the Patchogue facility), Pam Trifaro (the director of the Patchogue
facility), and another manager. All seven managers, except Buonanotte, sat in chairs and
surrounded Dale. Buonanotte said to Dale, “You are no longer an employee here, please leave
the premises immediately.” (Tr. 148.) Dale told Buonanotte that she was going to gather her
belongings before leaving, and if Buonanotte wanted, he could call the police. With that,
Buonanotte instructed Navas to call “911” and report that there was an intruder on the premises.
This instruction was in accordance with what Buonanotte claims the police department told him.
(Buonanotte called the police department before he and his six managers walked into Dale’s
office.) Navas did as she was instructed, and Dale soon left the building. Buonanotte has never
told Dale why she was discharged. Dale had never received a written or oral warning
concerning her job performance or conduct. Indeed, Buonanotte has labeled Dale as a valuable
employee because of her nursing and counselor degrees.

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After Dale left, Buonanotte went into the front office area where Macken and Mazzuco
were seated. Buonanotte paced back and forth behind Macken’s chair. Suddenly, Buonanotte
slammed his hand onto the desk at which Macken was seated. He banged the desk twice, once
on each side of Macken. Buonanotte then walked out of the facility.

After Dale’s firing, Macken had a discussion with Kenney about the firing. Kenney said
that he did not know why Dale had been fired, and he would not ask Buonanotte for the reason.

On March 2, Buonanotte conducted another staff meeting at Islip Terrace. Buonanotte,
Navas, and Kenney represented management. The employees included DiFolco, Gouge, and
Mazzuco. Buonanotte said that he had received some disturbing news from a source that he
could not divulge that Gouge had volunteered to be an observer for the Union at the upcoming
election. Gouge explained that she had not volunteered; her coworkers had elected her.
Buonanotte told Gouge that she did not have to be an observer for the Union, and she could
withdraw. Gouge replied that she would look into this possibility.

Buonanotte said that he was considering the possibility of moving the facility into a new
building. However, Buonanotte and Kenney had previously mentioned this possibility to the
employees. He asked the employees how they would vote in the upcoming election, and he
urged the employees to vote against the Union. Kenney added that the Respondent was no
place for a union.

Buonanotte said that if the Union came into the Respondent, he would have to strictly
enforce (“by the book”) certain rules, including rules dealing with breaks and dress codes.
Buonanotte looked at Mazzuco, who was wearing jeans, and told her that if the Union came in,
she “would be written up because you have jeans on.” (Tr. 258.) Buonanotte said that if the
Union came in, a timeclock would be installed at the Union’s request, and the employees would
have to punch in and punch out. The employees would not be allowed to go across the street to
the deli and would not be allowed to go outside for a cigarette. He would account for every
minute of the employees’ workday. Buonanotte said “he was fairly lenient and flexible now, but
that would all stop if [the employees] voted in a Union on March 9th.” (Tr. 258.)

On March 5, Buonanotte held another staff meeting at Islip Terrace. Among the persons
present were Buonanotte, O’Connor, Navas, Kenney, Cabral, Barrett, Debra Russo (a part-time
counselor at Islip Terrace), Macken, Gouge, Mazzuco, DiFolco, and other employees. At this
meeting, Buonanotte presented his “Disaster Plan.” Buonanotte explained that the Union would
not get into the Respondent, but if they did, the employees would have to go on strike because
he would not negotiate with the Union. Buonanotte said that he would force the employees to go
on strike. So, the disaster plan was a plan the Respondent would activate when the employees
went on strike. Buonanotte wrote the plan on a blackboard. He wrote the names of employees
and positions. He then explained that his plan involved identifying the employees who could be
replaced at Islip Terrace (everyone) and who would replace them.

Buonanotte said that other facilities would provide employees to help when the strike
occurred. He said that the counselors would be replaced by certified social workers, and that
Navas could handle the front office until replacements for the secretaries were hired. He said
that he knew where to obtain replacements for all the Islip Terrace employees. Buonanotte
emphasized that all unions are bad and that a union cannot come into the Islip Terrace facility.
Buonanotte again discussed the possibility of the Respondent obtaining a new building for the
Islip Terrace facility. Gouge asked Buonanotte if the replacements would be temporary or

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permanent. Buonanotte said “permanent.” Gouge challenged the legality of such an action, and
Buonanotte replied that by “permanent” he meant that the replacements would keep their jobs
until they quit or were fired.

On March 8, Kenney talked to Gouge about whether she would be an observer at the
election. Kenney told Gouge that she could still refuse to be an observer at the election, but she
told him she had decided she would be an observer because her coworkers had elected her.
Kenney then told her, “Do not challenge any votes.” Gouge told him that there were two
prospective voters, who she named, that she had to challenge. Kenney replied, “Your choice.”
(Tr. 260.)

In the days leading up to the election, Buonanotte asked Hyde many times about how
the employees would vote and he continued to pressure her to convince the employees to vote
against the Union. On approximately March 8, Buonanotte spoke with Hyde about the upcoming
election. He told Hyde that he knew that “the girls” would listen to Hyde and he wanted Hyde to
speak to the employees and have them vote no. He warned Hyde “he would know by the turn
out if I [Hyde] did what I was supposed to do.” (Tr. 642.)

C. The Election

On March 9, an election was held in the Islip Terrace facility to determine if the
employees in the unit wanted to be represented by the Union. The employees voted in favor of
the Union. Earlier in the day, Buonanotte called Hyde into the office he was using at Islip
Terrace and asked her again if she had spoken to the employees about their vote. Hyde had
spoken to the employees as Buonanotte had instructed her, but she did not know how the
employees would vote, and she told this to Buonanotte. Buonanotte did not respond.

Dale came to the facility in the afternoon to vote. She was accompanied by her fiancée.
The polling place was a rear office in the facility. The door from the waiting room to the rear
offices is locked, and a person usually gains entry by an employee in the front office depressing
a button, which unlocks the door. No employee admitted Dale. However, as Dale was waiting in
the waiting room, Buonanotte’s brother, who for some unexplained reason was present in the
offices, opened the door and allowed Dale and her fiancée to enter. Dale’s fiancée quickly
departed the front office area and waited for Dale in the waiting room.

Buonanotte met Dale as she walked through the front office area. Buonanotte was
accompanied by his dog and his attorney. Buonanotte asked Dale why she was there, and she
replied that she was going to vote. As Dale walked down the hall to the polling place,
Buonanotte stood in front of her, with his face within one foot of her face, and screamed at her
“f— you, f— you, f— you.” Dale complained to the Board representative, she then voted, and as
she was leaving, Buonanotte’s brother told her to get out. Besides Buonanotte’s brother and
dog, Buonanotte’s mother was also present at Islip Terrace on the election day.

On March 9, Buonanotte went into Macken’s office. He asked her, “Do you have a
problem with me?” to which Macken replied, “Yes, I have a problem with people that come into
my office, and slam a door, and don’t say hello.” Buonanotte said, “Do you think the Union is
going to solve that problem?” Macken said no, and Buonanotte said, “Is that why you’re going to
vote for a union?” Macken then told Buonanotte, “I don’t believe that you can discuss this with
me,” and Buonanotte responded, “I can do what I ever—do whatever I want. I own this place.”
Buonanotte again asked Macken why she was going to vote for the Union, but she again told
him that he should not be asking these questions. Buonanotte said, “Well, I can see I’m not
getting anywhere with you,” and he went out of her office. (Tr. 588–589.)

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D. Post-election

On March 10, Hyde was the first of several Islip Terrace employees who Buonanotte
discharged. Hyde reported for work at her regular time of 8:30 a.m. Four managers came to Islip
Terrace and went into Kenney’s office, including Buonanotte, Navas, the office manager in Deer
Park, and the office manager in Patchogue. At approximately 8:45 a.m., Kenney called Hyde
into his office. Buonanotte said to Hyde, “I guess you know I’m letting you go.” Hyde
sarcastically said, “It took you five people to do it?” and she departed. No reason was given for
Hyde’s discharge. Hyde was promoted to her position of office manager for the Islip Terrace
facility in approximately June 2003. She was given no warning concerning any problems with
her work performance or any other problems.

Cabral arrived at approximately 8:30 a.m. At approximately 9:30 a.m., Buonanotte
entered her office with the managers who were present when Hyde was terminated, plus
O’Connor. Buonanotte, “There’s nothing that you can do to change my mind, you’re fired.”
Cabral replied that she had done nothing wrong, but Buonanotte ignored her and asked if she
had any keys. (Tr. 104.) Cabral gave Buonanotte her keys and she left. No reason was given for
Cabral’s discharge. Cabral was employed at the Respondent since 1996. She was promoted to
her position of director of managed care in April 2003. She was given no warning concerning
any problems with her work performance, her conduct, or any other problems.

Mazzuco reported for work on March 10 at 8:30 a.m. After Hyde and Cabral had been
fired, Buonanotte approached Mazzuco as she was filing papers. He asked her if she was
happy with the way she voted. She continued with her filing. He again asked, “Are you glad you
voted yes? Because now look what happened.” (Tr. 367.) Mazzuco continued with her work, but
Buonanotte began following her around the office. He then told her to start looking for a new job.
Mazzuco shook her head and continued doing her work. Buonanotte repeated, “You know,
really I suggest that you do start looking for a new job.” Mazzuco turned around and faced
Buonanotte and asked if he wanted her to leave. Buonanotte replied, “No, just start looking for a
new job.” Mazzuco understood from Buonanotte’s statement that she was being terminated.
She then went to the back of the office and said goodbye to Carlson and Kenney. Mazzuco
returned to the front office in order to leave, and as she was leaving, Navas asked her, “Does
this mean you’re quitting?” Mazzuco replied, “Call it whatever you want. Then I quit.” (Tr. 392.)
Mazzuco walked by Buonanotte as she was leaving, and she called him an “asshole.” Navas
then screamed at Mazzuco and chased Mazzuco out of the office. No reason was given for
Buonanotte’s statement to Mazzuco that she should start looking for a new job. Mazzuco was
given no warning concerning any problems with her work performance, her conduct, or any
other problems.

Barrett arrived at approximately 10:30 a.m. Buonanotte, O’Connor, and the other
managers greeted Barrett in the front office area. As she started to take off her coat, Buonanotte
said to her, “You don’t need to take off your coat, you’re not working here anymore.” (Tr. 41.)
Barrett asked Buonanotte to tell her why, but he said he would not. Barrett looked for an
employee to witness what was occurring, but there were no other employees in the front office
area, since they had already been fired. She again asked Buonanotte to tell her why she was
being fired. He replied that she was not the kind of management that “we want around here.”
(Tr. 41.) Barrett then left. Barrett had been promoted to her position of senior counselor in
January 2004. Barrett was given no warning concerning any problems with her work
performance, her conduct, or any other problems.

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Gouge reported for work on March 10 at 4:30 p.m., her usual time. She noticed that
none of her usual coworkers were in the office. The managers who had been with Buonanotte
for the day were still there and were doing some of the work of the fired employees. Gouge
asked Peter Lanza, the manager at the Deer Park facility, about the status of her former
coworkers. Lanza replied, “Have you not been informed? . . . [T]hey are no longer employed
here.” Gouge asked Lanza for an explanation, but Lanza replied, “I cannot discuss that with
you.” (Tr. 267.) While Gouge was still in the front office area, Buonanotte approached her. He
called Gouge a betrayer, a liar, and a deceiver. Buonanotte asked Gouge if she thought it would
be easy for her to come to work. She said no, and Buonanotte replied, “Well if you think this is
rough, you have no idea what you’re in for.” (Tr. 267–268.)

Gouge wore a Union pin to work on March 10. When Navas saw Gouge wearing the pin,
she asked, “How dare you put that Union pin on. How dare you represent the Union. When you
put that pin on I knew who you were loyal to. And for you even to wear that Union pin, how dare
you challenge anybody’s vote.” Gouge said that she was not going to allow an unfair hearing.
Navas replied, “You’re a liar. You’re a liar. You’ve been deceiving us for months. God knows
how long.” Navas told Gouge “to get used to it because if you think this is rough, you have no
idea what you are in store for.” (Tr. 268.) After this treatment, Gouge began to shake and
tremble, and she began to experience chest pains. She told Buonanotte that she needed to go
home, and he said fine. She told Navas that she had to count the money before she left, and
she asked Navas to verify the amount. Navas refused.

On March 11, Gouge reported for work at 4:30 p.m. DiFolco, who does not work on
Wednesdays and therefore was not at work on Wednesday, March 10, also reported for work on
March 11 at 4:30 p.m. Gouge began performing her normal duties of pulling charts, but Navas
intervened and told her that Jason, a secretary from another facility, would perform the duties
that until March 11 Gouge had performed. Navas said to Gouge, “I am your supervisor. You will
do what I tell you to do when I tell you to do it and how I tell you to do it.” (Tr. 270.)

Buonanotte then entered the front office, approached DiFolco, and, while leaning over
her desk, said to her, “Is it safe for me to assume that you were the one that buzzed Heather
[Dale] in the other night during the election?” DiFolco replied that she had not, but Buonanotte
said he did not believe her and added, “I think you and Lillian [Gouge] need to be taught the
rules all over again.” (Tr. 270.) Gouge intervened and said that she and DiFolco did not need to
be taught the rules and that, because of her belief that Buonanotte could not terminate DiFolco
and her, Buonanotte would harass them on a daily basis. Buonanotte responded, “You can
interpret it any way you’d like. I don’t call it harassing or intimidation. But you can interpret it any
way you want. Now shut your mouth.” (Tr. 271.) Navas added that “I am your office manager,
and you will do what I say when I say it.”

Gouge said that she would not be ordered to shut her mouth and would not be treated
like a dog. Buonanotte said, “Part of the executive office manager’s [Navas’s] duties are to order
you around like a dog, and you will obey like a dog like [sic] starting tomorrow night when you
come in to report to work. You and Andrea [DiFolco] will be made to get on your hands and
knees and get under the desk and clean the dirt out.” (Tr. 271.) Gouge repeated that she would
not be treated like a dog, and Buonanotte shouted, “Lillian, shut your mouth.” Gouge again
protested that she would not shut-up, so Buonanotte told her to “get out.” (Tr. 272.) Navas also
shouted to Gouge to get out. By this time, Buonanotte and Navas, on the one hand, and Gouge,
on the other, were shouting at each other. Gouge asked if Buonanotte was firing her, but
Buonanotte repeated his order to “get out.” Gouge said that unless Buonanotte was firing her,
she was not leaving. Buonanotte told Navas that, as of that moment, which was 6 p.m., Gouge

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was no longer being paid by Crossing Recovery Center. Gouge said, “So I guess you’re
terminating me?” and Buonanotte replied, “Take it however you choose.” (Tr. 273, 330.)
Buonanotte then told DiFolco, who had witnessed the entire incident, to leave with Gouge.

III. Analysis

A. Section 8(a)(1)

1. Interrogation of employees

The test of whether an unlawful interrogation has occurred is whether, under all the
circumstances, the alleged interrogation reasonably tends to restrain, coerce, or interfere with
employees in the exercise of rights guaranteed by the Act. Rossmore House, 269 NLRB 1176
(1984), affd. sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In
making this determination, all of the surrounding circumstances must be considered. Either the
words themselves or the context in which they are used must suggest an element of coercion or
interference. Id. Relevant circumstances include the background, the time and place of the
interrogation, the method used, the personnel involved, the nature of the information sought, the
known position of the employer, whether the employee was given assurances that there would
be no reprisals, whether a valid purpose for the interrogation was communicated to the
employee, the truthfulness of the employee’s response, whether the person being questioned is
an open union adherent, and whether the management official doing the questioning had a
casual and friendly relationship with the employee being questioned. Performance Friction
Corp., 335 NLRB 1117 (2001), citing Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964); Rossmore
House, supra; Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). These and other relevant
factors are not to be mechanically applied, but rather serve as a starting point for assessing the
totality of the circumstances. Toma Metals, Inc., 342 NLRB 787 (2004).

In January 2004, as Buonanotte was preparing to leave the Islip Terrace facility after
having searched the employees’ mailboxes, he asked DiFolco if she knew anything about the
Union, if anyone had approached her about the Union, and if she knew the name of the
ringleader of the employees who wanted to unionize. Buonanotte also asked DiFolco how she
would vote in a representation election. DiFolco denied any knowledge of the matters
Buonanotte inquired about. The circumstances of this interrogation include the following:
Buonanotte was the owner and chief executive officer of the Respondent; the information
sought concerned the Union exclusively; Buonanotte had made no attempt to conceal his union
animus; DiFolco was given no assurances against reprisals; a valid purpose for the interrogation
was not communicated to DiFolco; DiFolco’s responses, or at least some of them, were not
truthful; and, DiFolco was not an open union adherent. Under these circumstances, I conclude
that Buonanotte’s interrogation of DiFolco reasonably tended to restrain, coerce, or interfere
with employees in the exercise of rights guaranteed by the Act.

Moreover, questioning an employee about the union sentiments of other employees is
unlawful, Gardner Engineering, 313 NLRB 755 (1994), and interrogation that seeks the identity
of the initiator of the union campaign is also unlawful. Soltech, Inc., 306 NLRB 269 fn. 3 (1992).

In the end of January, Buonanotte entered Dale’s office and asked her why she felt the
need for a union. The circumstances include interrogation by the owner and chief executive
officer who was openly antiunion, interrogation of the employee while she was alone, no
assurances were given against reprisals, and no valid purpose was given. Under the
circumstances of this case, this interrogation violates Section 8(a)(1) of the Act. Ichikoh Mfg.,
312 NLRB 1022 (1993), enf. 41 F.3d 1507 (6th Cir. 1994). In approximately the end of January

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at a staff meeting at Islip Terrace conducted by Buonanotte, he asked the employees to tell him
why they might be in favor of a union. The coercive circumstances were similar to the
circumstances in Buonanotte’s interrogation of Dale with the additional factor that Buonanotte’s
question was framed so that an answer to the question would immediately identify any
employee who responded as a person who favored the union. This interrogation also violated
Section 8(a)(1) of the Act.

Buonanotte’s interrogations of Dale and DiFolco are significantly different from the
interrogation in Toma Metals, Inc., supra, in which the Board held that the question, “You don’t
think a union will help you, do you?” was not unlawful. In Toma Metals, a low-level supervisor
posed the question, and the question was prompted by employees who had asked the
supervisor a question about the union. In addition, the supervisor and the employee were
related and normally engaged in friendly conversations on the plant floor, which is where the
subject question was posed. None of these considerations apply to Buonanotte’s interrogations.
He was the owner, the interrogations occurred in private offices and in meetings initiated by
Buonanotte, he was not friendly with any of the employees, and no employee had prompted his
interrogation.

On February 10, at a staff meeting conducted by Buonanotte, he asked the employees
to tell him why they wanted to have a union. The coercive circumstances in this interrogation
were similar to the coercive circumstances in Buonanotte’s interrogation in the staff meeting at
the end of January.

On approximately February 11, Buonanotte went into Dale’s office and, after discussing
his decision to transfer Dale from the Islip Terrace payroll to the Port Jefferson payroll, asked
Dale why she wanted a union and what she thought a union could do for the employees. The
coercive circumstances in this interrogation were similar to the coercive circumstances in
Buonanotte’s interrogation of Dale at the end of January.

On February 11, Buonanotte spoke with Gouge while she was working in the front office
at Islip Terrace. He asked her if she had yet made a decision on whether to vote for the Union.
On February 12, Buonanotte spoke with Gouge and DiFolco in the front office at Islip Terrace.
He asked if they had yet made a decision on whether they would vote for or against the Union.
The coercive circumstances of these interrogations are similar to the coercive circumstances in
Buonanotte’s interrogation of DiFolco in January.

On March 2, during a staff meeting, Buonanotte asked the Islip Terrace employees how
they would vote in the upcoming election, and he urged the employees to vote against the
Union. On March 9, Buonanotte went into Macken’s office. He asked her, “Do you have a
problem with me?” to which Macken replied, “Yes, I have a problem with people that come into
my office, and slam a door, and don’t say hello.” Buonanotte said, “Do you think the Union is
going to solve that problem?” Macken said no, and Buonanotte said, “Is that why you’re going to
vote for a union?” Macken then told Buonanotte, “I don’t believe that you can discuss this with
me,” and Buonanotte responded, “I can do what I ever—do whatever I want. I own this place.”
Buonanotte again asked Macken why she was going to vote for the Union, but she again told
him that he should not be asking these questions. Buonanotte said, “Well, I can see I’m not
getting anywhere with you,” and he went out of her office. (Tr. 588–589.) By interrogating
employees about their votes in an upcoming election, the Respondent violated Section 8(a)(1)
of the Act. Celtic General Contractors, Inc., 341 NLRB 862 (2004).

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On March 10, Buonanotte asked Mazzuco if she was happy with the way she voted. He
again asked, “Are you glad you voted yes? Because now look what happened.” On March 10,
Navas said to Gouge, “How dare you put that Union pin on. How dare you represent the Union.
When you put that pin on I knew who you were loyal to. And for you even to wear that Union
pin, how dare you challenge anybody’s vote.” Gouge said that she was not going to allow an
unfair hearing. Navas replied, “You’re a liar. You’re a liar. You’ve been deceiving us for months.
God knows how long.” Navas told Gouge “to get used to it because if you think this is rough,
you have no idea what you are in store for.” (Tr. 268.)

Under all the circumstances, the Respondent’s interrogations of DiFolco, Dale, Gouge,
and the employees at Islip Terrace were coercive and reasonably tended to interfere with,
restrain, and coerce employees in the exercise of their Section 7 rights. Accordingly, the
interrogations violated Section 8(a)(1) of the Act.

2. Threats

The Board has consistently held that employers who threaten the futility of selecting a
bargaining representative violate Section 8(a)(1) of the Act. Wellstream Corp., 313 NLRB 698
(1994); Outboard Marine Corp., 307 NLRB 1333 (1992), enfd. 9 F.3d 113 (7th Cir. 1993).

At the end of January, Buonanotte told the employees they did not have a right to have a
union; he would never allow the Union to get into the Respondent; he would never negotiate
with the Union; under no circumstances would he negotiate with the Union; and because he
would not negotiate, the employees would have to strike, and he would replace every employee
who was on strike.

On March 5, in the meeting in which Buonanotte presented his disaster plan, he again
told the employees that the Union would not get into the Respondent, but if they did, the
employees would have to go on strike because he would not negotiate with the Union.
Buonanotte said that he would force the employees to go on strike.

The foregoing statements threaten the futility of selecting a union. See also Outboard
Marine Corp.; Equipment Trucking Co., 336 NLRB 277, 283 (2001). Moreover, an employer’s
statement that a union would never get in the company is a threat, and therefore, not protected
as free speech or by Section 8(c). Soltech, Inc., 306 NLRB 269 (1992); see NLRB v. Gissel
Packing Co., 395 U.S. 575, 618 (1969). Also, the Respondent violates Section 8(a)(1) by stating
that he will not negotiate with the union and by threatening employees with the inevitability of a
strike and with replacement if the employees vote for the union. Unifirst Corp., 335 NLRB 706
(2001); Pyramid Management Group, 318 NLRB 607, 608 (1995); Heartland of Lansing Nursing
Home, 307 NLRB 152, 158 (1992).

The threatening nature of Buonanotte’s statements is amplified by his status as the
owner of the Respondent, the presence of other corporate managers at the staff meeting, the
numerous and repeated threatening and coercive statements, and Buonanotte’s unabashed
antiunion attitude. Buonanotte’s statements to the employees unlawfully threatened the
employees with the futility of selecting the Union as their representative.

Immediately prior to the staff meeting, Buonanotte walked into Dale’s office and told her
that he would not allow a union into the Respondent, which was his father’s business, and that
he would not participate in any negotiations with a union. Several days later, Buonanotte told

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Macken that he would never negotiate with the Union. These statements, which were similar to
the statements Buonanotte made at the staff meeting, unlawfully threatened the Respondent’s
employees with the futility of selecting the Union as their representative.

On February 10, Buonanotte conducted a staff meeting at Islip Terrace. He told the
employees that a union could not obtain any benefits or concessions from the Respondent. He
repeated his refrain that if a union came in, the employees would have to strike. On
approximately February 11, Buonanotte told Dale that if the employees voted for the Union,
they, and Dale, would have to strike. On February 11, Buonanotte told Gouge, “I will let you
know that if you vote in a union on March 9th I will make sure you strike.” On February 12,
Buonanotte told Gouge and DiFolco that he would never negotiate with the Union, and he would
never allow a union to come into the Respondent. Each of these statements unlawfully
threatened the Respondent’s employees with the futility of selecting the Union as their
representative.

On February 11, Buonanotte told Gouge, “Your options will be that you can cross the
picket line and still come to work risking violence against yourself and being attacked,” and
“Well look, all I can urge you is if you want to be safe, I can urge you to vote no for the union.”
These statements, when considered in the context of Buonanotte’s many statements of the
inevitability of a strike, together with the failure of Buonanotte to specify who would commit
violence against Gouge (for example, if she wanted to be safe from whom?), renders these
statements threatening, coercive, and tending to restrain, coerce, or interfere with employees in
the exercise of rights guaranteed by the Act. Gold Kist, Inc., 341 NLRB 1040 (2004). Moreover,
the Respondent presented no evidence at the hearing relating to a history of, or propensity for,
violence by the Union. On balance, the Respondent’s statements violate Section 8(a)(1) of the
Act.

On February 13, Hyde told the secretaries in the Islip Terrace facility, pursuant to the
instructions of Buonanotte, that Buonanotte was not going to negotiate with the Union and that a
strike was inevitable. For the reasons set forth above, such statements violate Section 8(a)(1) of
the Act.

An employer who threatens to impose more onerous working conditions on employees if
they vote for a union violates Section 8(a)(1) of the Act. E.g., Fleming Companies, Inc., 336
NLRB 192 (2001) Thus, a threat that employees would have to “punch a clock” if a union were
elected unlawfully coerces and restrains employees in the exercise of their Section 7 rights.
American Sunroof Corp., 248 NBLRB 748, 765 (1980), modified on other grounds 667 F.2d 20
(6th Cir. 1981); Hendrix Mfg. Co., 139 NLRB 397, 406 (1962), enfd. 321 F.2d 100 (5th Cir.
1963).
In approximately February, O’Connor held a staff meeting at Islip Terrace in which she
threatened that if the Union were voted in, the relaxed atmosphere in the office would change
and the employees would have to “punch a clock.” These predictions are not based on
“objective fact to convey an employer’s belief as to demonstrably probable consequences
beyond his control or to convey a management decision already arrived at.” NLRB v. Gissel
Packing Co., 395 U.S. at 618. The statements are threats of retaliation and violate Section
8(a)(1) of the Act.
On March 2, Buonanotte said that if the Union came into the Respondent, he would have
to strictly enforce (“by the book”) certain rules, including rules dealing with breaks and dress
codes. Buonanotte said that if the Union came in, a time clock would be installed at the Union’s
request, and the employees would have to punch in and punch out. The employees would not

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be allowed to go across the street to the deli and would not be allowed to go outside for a
cigarette. He would account for every minute of the employees’ workday. Buonanotte said “he
was fairly lenient and flexible now, but that would all stop if [the employees] voted in a Union on
March 9th.” These statements are threats of retaliation by the owner of the Respondent to
impose more onerous working conditions if the employees voted for the Union. These threats
violate Section 8(a)(1) of the Act.

On February 13, Navas told Gouge that she felt betrayed when she saw the Islip Terrace
employees meeting with the Union. This statement equated union activity with disloyalty to the
Respondent, and implicitly threatened employees with unspecified reprisals in violation of
Section 8(a)(1) of the Act. Hialeah Hospital, 343 NLRB No. 52 (2004).

An employer's invitation to employees to quit in response to their exercise of protected
concerted activity is coercive and unlawful because it conveys to employees that engaging in
concerted activities and their continued employment are not compatible, and implicitly threatens
discharge of the employees involved. McDaniel Ford, Inc., 322 NLRB 956 (1997). In
February, Kenney told Gouge that, “if you don’t like it here, why don’t you just quit, why
do you need to have a union, you know, represent you, why don’t you just quit?” This
threat violates Section 8(a)(1) of the Act.
On February 19, Buonanotte, who was accompanied by six other managers, discharged
Dale. After Dale departed, Buonanotte went into the front office area where Macken and
Mazzuco were seated. Buonanotte paced back and forth behind Macken’s chair. Suddenly,
Buonanotte slammed his hand onto the desk at which Macken was seated. He banged the desk
twice, once on each side of Macken. Buonanotte then walked out of the facility. The General
Counsel charges that Buonanotte’s actions intimidated the employees in violation of the Act.
However, the evidence does not support this claim. Buonanotte’s actions were certainly
intimidating, but the question is whether his intimidating actions restrained the employees’
Section 7 rights. There was nothing in Buonanotte’s violent action in slamming his fist on
Macken’s desk that implicated Section 7 rights, such as statements made in conjunction with
the violence. Thus, although Buonanotte’s action was intimidating, the evidence fails to connect
that action with protected rights. Accordingly, this charge should be dismissed.

On March 8, Kenney talked to Gouge about whether she would be an observer at the
election. After Gouge said that she would be an observer, Kenney told her, “Do not challenge
any votes.” Gouge told him that there were two prospective voters, who she named, that she
had to challenge. Kenney replied, “Your choice.” Kenney’s statements threaten the employees’
free selection of their bargaining representative and violate Section 8(a)(1).

On March 9, Buonanotte screamed at Dale “f— you, f— you, f— you” as Dale entered
the Islip Terrace facility to vote in the election. This rude, coarse, belligerent, and inexcusable
conduct interfered with the Section 7 rights of the employees who were voting that day.
Buonanotte’s actions violate Section 8(a)(1) of the Act.

On March 10, Buonanotte called Gouge a betrayer, a liar, and a deceiver because of her
support for the Union. Buonanotte asked Gouge if she thought it would be easy for her to come
to work. Gouge said no, and Buonanotte replied, “Well if you think this is rough, you have no
idea what you’re in for.” Gouge wore a Union pin to work on March 10. When Navas saw Gouge
wearing the pin, she asked, “How dare you put that Union pin on. How dare you represent the

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Union. When you put that pin on I knew who you were loyal to. And for you even to wear that
Union pin, how dare you challenge anybody’s vote.” These threatening and demeaning
statements violate Section 8(a)(1) of the Act.

3. Surveillance

Surveillance by an employer of its employees’ union or protected activities has
consistently been held to violate Section 8(a)(1) of the Act because such surveillance
reasonably tends to restrain, coerce, or interfere with employees in the exercise of rights
guaranteed by the Act. See 1 Hardin & Higgins, Developing Labor Law 162 (4th ed. 2001).
Similarly, creating the impression of surveillance also violates the Act because the impression of
surveillance also tends to interfere with employees’ statutory rights. Flexsteel Industries, 311
NLRB 257 (1993).

In the evening of February 12, a meeting was held between the Union and Islip Terrace
employees in the back room of the Oconee diner at approximately 8:30 p.m. As the meeting
was beginning, Navas entered the room accompanied by Buonanotte’s mother, and they sat at
a table next to the table where the employees were seated. Navas and Buonanotte’s mother
remained at their table for about an hour while the employees met with the Union. Buonanotte
did not enter the diner during the meeting. However, he stayed in his car, which was parked
outside the diner.

This surveillance occurred in the evening, after normal work hours, and in the back room
of a local diner. There is no evidence that Navas or Buonanotte had frequently been at the
Oconee diner or had ever been at the diner. Moreover, even if they had often been at the diner,
the Respondent offered no explanation for Navas and Buonanotte’s mother sitting at a table
next to the employees and the Union in the back room of the diner. Navas’s conduct, as well as
Buonanotte’s conduct in parking outside the diner during the meeting, “revealed the
Respondent’s intention to observe at close range the Section 7 activities of” the employees.
Ironwood Plastics, Inc., 345 NLRB No. 105 (2005); Dayton Hudson Corp., 316 NLRB 85, 86
(1995). The Respondent’s surveillance of its employees’ protected activities violates Section
8(a)(1) of the Act.

On March 2, Buonanotte told Islip Terrace’s employees that he had received some
disturbing news from a source that he could not divulge that Gouge had volunteered to be an
observer for the Union at the upcoming election. This statement reasonably would leave the
impression among the employees that their union activities had been under surveillance. Peter
Vitale Co., 310 NLRB 865, 874 (1993). Accordingly, the Respondent’s statement is unlawful.

4. Promise of Benefits and Solicitation of Grievances

An employer may not promise benefits to employees in order to influence the outcome of
an upcoming election. NLRB v. Exchange Parts Co., 375 NLRB 405 (1964). In determining
whether a promise is unlawful, an important factor is whether the employer had previously told
the employees of the decision or promise. Another relevant factor is whether the promised
benefit would apply to employees outside the bargaining unit. Town & Country Supermarkets,
244 NLRB 303 (1979), enf. 666 F.2d 1294 (10th Cir. 1981).

On March 2, Buonanotte told the employees that he was considering the possibility of
moving the facility into a new building. The General Counsel contends that Buonanotte’s
statement constitutes an unlawful promise of benefits made to influence the outcome of the
election held on March 9. However, the Respondent had previously told the employees several

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times about the possibility of moving to a new building. Also, a new building would be a benefit
to all the employees, including employees outside the bargaining unit. Moreover, the statement
that the employer is considering the possibility of moving to a new building is too indefinite to
constitute a promise of benefits, at least under these circumstances. On balance, the evidence
does not establish that the Respondent unlawfully promised benefits when Buonanotte told the
employees that he was considering the possibility of moving the Islip Terrace facility to a new
building.

An employer interferes with the Section 7 rights of employees by soliciting employee
grievances and promising to remedy them during a union organizational campaign. Safety
Kleen Oil Services, 308 NLRB 208, 209 (1992). In addition, when an employer institutes a new
practice of soliciting employee grievances during a union organizational campaign, “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 unnecessary.” Embassy Suites Resort, 309 NLRB
1313, 1316 (1992), citing Reliance Electric Co., 191 NLRB 44, 46 (1971).

In late January, Buonanotte asked the employees to tell him of any concerns they might
have and why they might be in favor of a union. He promised to become more involved with Islip
Terrace. He told the group that a steering committee was already in place to address employee
concerns, and that, although Islip Terrace was on the only facility without a representative on
the steering committee, the employees could nominate someone from Islip Terrace for the
steering committee. He emphasized to the employees that if they had any concerns, they could
call him at his Patchogue office. Buonanotte had little involvement with the Islip Terrace facility
before he learned of the Union’s organizing campaign, and the Respondent did not previously
have any policy or practice in which the employees could voice concerns or grievances to
Buonanotte.

In late January-early February, O’Connor held a staff meeting at Islip Terrace and told
the group that if any employee felt uncomfortable bringing any concerns or problems to
Buonanotte, they should come to O’Connor. O’Connor expressed her desire to fix any problems
the employees had without involving the Union. Again, the evidence demonstrates that the
solicitation of grievances by O’Connor, as well as Buonanotte, involved a new practice that was
instituted after the Respondent learned of the organizing campaign.

Buonanotte’s and O’Connor’s statements soliciting grievances and Buonanotte’s
invitation to place an Islip Terrace representative on the steering committee, whose purpose
was to consider employee concerns, interfere with the employees’ Section 7 rights and violate
Section 8(a)(1) of the Act.

5. Confiscation and destruction of union literature

An employer’s confiscation from employees of union literature violates Section 8(a)(1) of
the Act because it interferes with employees’ protected right of access to the union. Alle-Kiski
Medical Center, 339 NLRB 361 (2003). Searching employee mailboxes and desks for the
explicit purpose of uncovering union literature also violates Section 8(a)(1) of the Act because it
constitutes unlawful surveillance of protected activities. See Eddyleon Chocolate Corp., 301
NLRB 887 (1991).

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In January, Buonanotte and Navas searched for and seized union literature from the
employee mailboxes at Islip Terrace, mailboxes that are used for business-related as well as
nonbusiness-related matters. After Buonanotte and Navas searched the employees’ mailboxes
and shredded some of the documents they found, they went into the individual offices in the
facility. Counselors and other employees shared these offices. Buonanotte and Navas searched
the offices and the desks in the offices for evidence of any materials from the Union. They also
searched through and seized the employees’ message books for indications or notations of
union-related matters. Buonanotte also searched through the fax machine and discarded every
copy of every fax that he obtained from the machine in an effort to destroy any union-related
documents. He told the office manager that she must not allow employees to have any access
to union materials.

The actions of Buonanotte and Navas in searching for and seizing union literature
interfere with the Respondent’s employees’ Section 7 rights and violate Section 8(a)(1) of the
Act.

6. Supervisory Discharges

A supervisor’s discharge is unlawful under the Act when the discharge coerces and
interferes with the right of employees to exercise their rights under Section 7. Accordingly, an
employer violates Section 8(a)(1) of the Act by discharging a supervisor for refusing to prevent
unionization of its employees, because the effect of such a discharge interferes with the
employees’ Section 7 rights. Parker-Robb Chevrolet, 262 NLRB 402, 403 fn. 8 (1982), enf. sub
nom. Automobile Salesmen’s Union Local 1095 v. NLRB, 711 F.2d 383 (DC Cir. 1983).

Barrett was promoted to a supervisory position, senior counselor, in January 2004.
There is no credible evidence that she engaged in any activity that would or did cause the
Respondent to question her loyalty or her job performance. Barrett reported for work the day
after the election, but before she could even take off her coat, Buonanotte said to her, “You
don’t need to take off your coat, you’re not working here anymore.” Buonanotte refused to tell
Barrett why she was being discharged, but he did say that she was not the kind of management
that “we want around here.” Despite Buonanotte’s assurance to Dale on February 11 that he
warns employees and gives them a chance to correct the alleged offending conduct,
Buonanotte provided no warning to Barrett. Under these circumstances, the inference is
warranted and persuasive that Barrett was not the kind of management that Buonanotte wanted
because she had failed to persuade her subordinate employees in the office to vote against the
union. Accordingly, the discharge of Barrett violated Section 8(a)(1) of the Act.

Hyde was also discharged the day after the election. She had been promoted to the
position of office manager in June 2003. She had been given no warning of her discharge. Her
job performance was commendable, which is shown by Buonanotte’s statement in
approximately February that Hyde was doing a good job and that she was one of the best office
managers he ever had. Her discharge was accomplished just as succinctly and inexplicably as
Barrett’s. Buonanotte said to Hyde, “I guess you know I’m letting you go.” Buonanotte gave her
no reason for her discharge.

The Respondent claims that Hyde was discharged because of the disloyalty she
displayed in attending a meeting with union representatives at the Oconee diner, and because
Hyde raised her fist to Navas when Hyde was being questioned about this meeting the following
day. Consistent with the credibility resolutions of the trial judge, this latter claim is rejected
because the credible evidence demonstrates that Hyde did not raise her fist to Navas. The
former claim is also rejected. If the Respondent had actually believed that Hyde was being

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disloyal in attending the diner meeting, the Respondent would likely have fired Hyde
immediately. The convincing, stark, and generally undisputed evidence of the Respondent’s
union animus throughout the Union’s organizing campaign amply supports the determination
that Hyde was discharged because of her failure to prevent the employees from unionizing.
Moreover, the timing of Hyde’s discharge, the day after the election, points to a retaliatory
reason for the discharge. Transportation & Repair Service, 328 NLRB 107 (1999); Equitable
Resources Exploration, 307 NLRB 730 (1992).

Moreover, Buonanotte’s statement to Hyde on March 8, the day before the election,
undercuts the Respondent’s present claim of lawful reasons for Hyde’s discharge. Buonanotte
believed that Hyde was quite influential with the employees. On March 8, Buonanotte told Hyde
that he would know by the turnout in the election if Hyde had done what Buonanotte had told
her to do and what she was supposed to do, viz., to make sure that the employees in the office
did not vote for the Union. Hyde was discharged two days after Buonanotte’s warning to Hyde
and one day after the employees in the office had voted for the Union. Thus, even if the
Respondent had a lawful reason to discharge Hyde, the Respondent also discharged her for an
unlawful reason. Buonanotte expressed this unlawful reason to Hyde, and his unlawful reason is
supported by the timing of the discharge, Buonanotte’s other statements to Hyde, and all of the
circumstances involved in the discharge. Accordingly, since Buonanotte was motivated to
discharge Hyde at least in part, if not totally, because of her failure to prevent the unionization of
the Islip Terrace employees, her discharge violated Section 8(a)(1) of the Act. Oakes Machine
Corp., 288 NLRB 456 (1988).

Cabral had been promoted to her supervisory position of director of managed care in
April 2003. She also was discharged on March 10. When she entered the office, Buonanotte
said to her, “There’s nothing that you can do to change my mind, you’re fired.” She was given
no warning of her discharge. The Respondent had no problems with her performance. However,
on January 17, a worker observed Cabral throwing paper clips and pens at a picture of
Buonanotte in the West Hempstead facility. This was reported to Navas and Buonanotte. The
Respondent claims that Cabral was discharged because of the disloyalty she displayed by her
conduct in West Hempstead.

In considering the Respondent’s defense to this charge, it is important to keep in mind
the timing of Cabral’s discharge, i.e., she was discharged the day after the election and almost
two months after Cabral’s conduct in West Hempstead. Cabral received no warning about her
conduct, nor was she confronted with her conduct or asked about it. Also, Cabral was given no
reason for her discharge. If she was being discharged for such conduct, it would have been
quite easy to tell Cabral of this reason when she was discharged. Indeed, if that were the
reason, or the only reason, for Cabral’s discharge, Buonanotte would likely have told her when
he discharged her. However, no reason was provided. The Respondent uses Cabral’s conduct
in West Hempstead as a pretext to conceal the real, or the other, reason for Cabral’s discharge,
viz., her failure to prevent the unionization of the Islip Terrace employees.

On March 10, the Respondent, having just lost the election in which the employees
voted for the Union, was cleaning house in Islip Terrace. Buonanotte was firing the
management staff, except for Kenney, in Islip Terrace, and Cabral was part of that management
staff. Buonanotte may well have been pleased to discharge Cabral in light of her conduct in
West Hempstead in January. But, the timing of her discharge shows that the West Hempstead
conduct was not the reason for Cabral’s discharge. She was discharged the day after the Union
won the election, long after the conduct cited by the Respondent, thus demonstrating, together
with all the circumstances, that she was discharged for failing to prevent the unionization of the

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employees. Buonanotte may have had two reasons for discharging Cabral, one lawful and one
unlawful. However, the unlawful reason is sufficient to render her discharge unlawful and in
violation of Section 8(a)(1) of the Act. Oakes Machine Corp., supra.

The discharges of Barrett, Hyde, and Cabral are unlawful because their effect is to
coerce and interfere with the right of employees to exercise their rights under Section 7. The
discharges of these managers, and the reasons for the discharges, could not have been lost on
the employees. The employees would feel restrained in exercising Section 7 rights after they
observe or learn that their managers were fired because of the managers’ failure to prevent
unionization in the facility. The discharges of these supervisors interfered with and coerced the
employees in the exercise of their statutory rights, and such discharges violate Section 8(a)(1)
of the Act.

B. Section 8(a)(3) and (1)

When an employer is alleged to have violated Section 8(a)(3) in discharging an
employee, the General Counsel has the burden of proving by a preponderance of the evidence
that union animus was a motivating factor in the discharge. Wright Line, 251 NLRB 1083, enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983). To meet this burden, the General
Counsel must establish four elements. First, the existence of activity protected by the Act.
Second, that the Respondent was aware of such activity. Third, that the alleged discriminatee
suffered an adverse employment action. Fourth, a motivational link, or nexus, between the
employee’s protected activity and the adverse employment action. American Gardens
Management Co., 338 NLRB 644 (2002).

If the General Counsel satisfies his initial burden under Wright Line, the burden then
shifts to the employer, in the nature of an affirmative defense, to demonstrate that the same
action would have taken place even in the absence of the protected conduct. In meeting this
burden, the employer cannot simply state a legitimate reason for the action taken, but rather
must persuade by a preponderance of the evidence that it would have taken the same action in
the absence of the protected activity. T & J Trucking Co., 316 NLRB 771 (1995). Nevertheless,
the employer’s defense does not fail simply because not all of the evidence supports it, or even
because some evidence tends to negate it. Merrilat Industries, 307 NLRB 1301, 1303 (1992).
The ultimate burden of proving discrimination always remains with the General Counsel. Wright
Line, supra.

1. Heather Dale.

Buonanotte knew that Dale was in favor of having a union represent the employees at
Islip Terrace because he asked her this question in January. He also knew that Dale had
engaged in protected activity because Dale attended the Oconee diner meeting with the Union,
which was surveilled by Buonanotte, Navas, and Buonanotte’s mother. The Respondent’s union
animus was virulent and apparent. The Respondent admits the foregoing, except the last factor
is described as “Mr. Buonanotte was clearly not enamoured of the Union.” (R Br. 60.)

The Respondent claims that Dale was discharged for her abusive behavior on February
11 when (1) she told Kenney that his reason for moving her payroll location from Islip Terrace
was “budgetary bullshit” and (2) she yelled at Buonanotte, called Buonanotte a liar, accused him
of attempting to block her vote in the upcoming election, and accused him of threatening
employees. These reasons are plausible and might, absent the Respondent’s animus, alone

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explain and justify the Respondent’s action in discharging Dale. Although the question is not
free from doubt, I conclude that the General Counsel has not sustained his burden of proof
relating to Dale’s discharge. This conclusion is based on the following considerations.

First, the General Counsel, not the Respondent, has the burden of proving the
motivation for Dale’s discharge. Second, Dale’s discharge occurred approximately 1 week after
her confrontations with Kenney and Buonanotte. This timing is distinguished from the
discharges of the supervisors, considered above, and the discharges of the secretaries,
considered below, all of which occurred immediately after the election. Moreover, Dale was
discharged after the Board notified the Respondent that the unit did not include nurses. Dale
was a nurse and at least part of her duties with the Respondent included nursing duties. Dale’s
exclusion from the bargaining unit would likely decrease Buonanotte’s incentive to discharge her
because of her union activities.

Nevertheless, the evidence demonstrates that Buonanotte was motivated to discharge
Dale because of her support for the Union. However, before Buonanotte acted on that
motivation, Dale’s conduct on February 11 occurred. The fact that Dale was discharged on
February 19, rather than March 10 or 11, tends to prove that her conduct on February 11 was
the reason for her discharge. On balance, I conclude that the General Counsel has failed to
sustain his burden of proving that Dale was discharged for unlawful reasons.

2. Christine Mazzuco.

Mazzuco attended the Oconee diner meeting and was seen at the meeting by Navas.
Accordingly, the Respondent knew of Mazzuco’s protected activity. On the day following
Mazzuco’s meeting with the Union and other employees, Navas said that she felt betrayed
when she saw “her girls” meeting with the Union. Accordingly, the Respondent knew that
Mazzuco had engaged in protected activity. The motivation for Mazzuco’s discharge is
demonstrated by the Respondent’s union animus, which, in turn, is buttressed by Buonanotte’s
statement to Mazzuco on March 10, “Are you glad you voted yes? Because now look what
happened.”

The test for determining whether an employer’s statements constitute an unlawful
discharge depends on whether the statements would reasonably lead the employee to believe
that she had been discharged. Ridgeway Trucking Co., 243 NLRB 1048 (1979), enf. 622 F.2d
1222 (5th Cir. 1980); NLRB v. Hilton Mobile Homes, 387 F.2d 7, 9 (8th Cir. 1967). Whether a
discharge has occurred does not depend on the use of formal words of firing, discharge, or
termination, but whether the employer’s conduct would reasonably lead a prudent person to
believe she had been discharged. Ridgeway Trucking Co., 243 NLRB 1048, 1048–1049 (1979),
enf. 622 F.2d 1222 (5th Cir. 1980); NLRB v. Trumball Asphalt Co. of Delaware, 327 F.2d 841,
843 (8th Cir. 1964).

On March 10, Buonanotte twice told Mazzuco to start looking for another job. Mazzuco
believed that these statements meant she was being discharged, and this belief was
reasonable. Mazzuco asked Buonanotte if he wanted her to leave, and he replied, “No, just start
looking for a new job.” Despite Buonanotte’s reply to Mazzuco’s question, Mazzuco reasonably
believed she was being discharged. After being told, twice, to look for a new job, Mazzuco
demonstrated her reasonable belief by getting up, leaving the front office, and going to the back
room in order to say good-bye to two coworkers, Kenney and John Carlson. Moreover, as she
left the front office to say good-bye to her coworkers, Buonanotte said nothing to her nor did he
try to stop her from leaving or tell her that she was not discharged.

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When the owner and president of the Respondent tells a secretary two times to look for
a new job, under the circumstances in this case, which include Buonanotte’s many unlawful
threats to the employees and his having already fired three managers and a counselor,
Mazzuco properly and reasonably understood that she also was being discharged. See Oceania
Floating Restaurant, 208 NLRB 828 (1974) (employer discharged an employee by telling him to
“find another job”); North American Dismantling Corp., 331 NLRB 1557 (2000) (employer
conditionally discharged employee by telling him that if he did not accept the lower wages being
offered, he should leave and find another job)

Mazzuco returned to the front office after saying good-bye to her coworkers in the back
room. She returned to the front office in order to leave and as she was leaving Navas asked her,
“Does this mean you’re quitting?” Mazzuco replied, “Call it whatever you want. Then I quit.” She
then walked by Buonanotte, called him an “asshole,” and Navas chased Mazzuco out the door.
The circumstances of these “parting shots” do not support the Respondent’s claim that Mazzuco
chose to quit. The credible evidence shows that Buonanotte had already discharged Mazzuco.
Thus, it was too late to quit because she had already been fired. Moreover, Buonanotte had
provoked these comments from Mazzuco by his unlawful threat, “Are you glad you voted yes?
Because now look what happened.”

In addition, Mazzuco had just said good-bye to her coworkers and she was upset. After
her flippant remark about quitting, she called Buonanotte a coarse name. She no more meant
the former remark than the latter remark. These remarks were said in the heat of the moment by
a secretary who had just been fired from her job, whose supervisors had just been fired, who
had received no notice or warning about being discharged, and whose work performance was
unimpeached.

Buonanotte’s discharge of Mazzuco was immediately preceded by his question, “Are you
glad you voted yes? Because now look what happened.” Thus, Buonanotte told Mazzuco why
she should look for a new job—because she had voted for the Union. Under all the
circumstances, Mazzuco was discharged for engaging in protected activity, and her discharge
violates Section 8(a)(3) and (1) of the Act.

3. Lillian Gouge and Andrea DiFolco

Buonanotte’s discharges of Gouge and DiFolco were accomplished with less indirection
than his discharge of Mazzuco. Moreover, the discharges of Gouge and DiFolco were
accompanied by such substantial threats of retaliatory action and changed working conditions
that Gouge and DiFolco were constructively discharged without regard to the sufficiency of
Navas and Buonanotte’s remarks in securing the discharges.

When Gouge reported for work on March 10, she saw that her usual coworkers were no
longer in the office. She asked a replacement employee about the absences, but she was told
that it could not be discussed with her. Before Gouge had even begun working, Buonanotte
called her a betrayer, a liar, and a deceiver. Buonanotte asked Gouge if she thought it would be
easy for her to come to work. She said no, and Buonanotte replied, “Well if you think this is
rough, you have no idea what you’re in for.”

Gouge wore a Union pin to work on March 10. When Navas saw Gouge wearing the pin,
she asked, “How dare you put that Union pin on. How dare you represent the Union. When you
put that pin on I knew who you were loyal to. And for you even to wear that Union pin, how dare
you challenge anybody’s vote.” Gouge said that she was not going to allow an unfair hearing.
Navas replied, “You’re a liar. You’re a liar. You’ve been deceiving us for months. God knows

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how long.” Navas told Gouge “to get used to it because if you think this is rough, you have no
idea what you are in store for.” After this treatment, Gouge began to shake and tremble, she
began to experience chest pains, and she went home for the rest of the day.

On March 11, Gouge began performing her normal duties of pulling charts, but Navas
intervened and told her that Jason, a secretary from another facility, would perform the duties
that until March 11 Gouge had performed. Navas said to Gouge, “I am your supervisor. You will
do what I tell you to do when I tell you to do it and how I tell you to do it.”

Buonanotte then entered the front office, and told DiFolco, who had come to work with
Gouge, that she and Gouge needed to be taught “the rules all over again.” Buonanotte told
Gouge to shut her mouth and Navas added that “I am your office manager, and you will do what
I say when I say it.”

Buonanotte also told Gouge and DiFolco that “Part of the executive office manager’s
[Navas’s] duties are to order you around like a dog, and you will obey like a dog like [sic] starting
tomorrow night when you come in to report to work. You and Andrea [DiFolco] will be made to
get on your hands and knees and get under the desk and clean the dirt out.” Buonanotte again
told Gouge to “shut your mouth.” Gouge protested that she would not shut-up, so Buonanotte
told her to “get out.” Navas also shouted to Gouge to get out. Gouge asked if Buonanotte was
firing her, but Buonanotte repeated his order to “get out.” Gouge said that unless Buonanotte
was firing her, she was not leaving. Buonanotte told Navas that, as of that moment, which was
6 p.m., Gouge was no longer being paid by Crossing Recovery Center. Gouge said, “So I guess
you’re terminating me?” and Buonanotte replied, “Take it however you choose.” Buonanotte
then told DiFolco to leave with Gouge. Gouge and DiFolco understood that they had been
discharged, and they departed.

Buonanotte’s statements in discharging Gouge and DiFolco include (1) telling Gouge to
get out, (2) telling Navas that, as of that moment, Gouge was no longer being paid, (3)
responding to Gouge’s question about whether she was being terminated by saying “Take it
however you choose,” and (3) telling DiFolco to leave with Gouge. Evaluating these statements
leads one to conclude that the statements would reasonably lead Gouge and DiFolco to believe
that they had been discharged. Ridgeway Trucking Co., 243 NLRB 1048–1049. Indeed, the
statements alone are sufficient to lead prudent employees to conclude that they have been
discharged. Id. Moreover, when the statements are considered in conjunction with the
Respondent’s many unlawful threats and interrogations, Buonanotte’s open dislike of unions
and hatred of the Union, the Respondent’s recent loss of the election to the Union, and
Buonanotte’s discharge, one day earlier, of three managers and one secretary, his statements
to Gouge and DiFolco take on a more firm and convincing character of discharge.

The Respondent’s motivation for discharging Gouge and DiFolco is shown by Navas and
Buonanotte’s statements and actions from the beginning of the Union’s organizing drive until
after they lost the election, including Navas’s threats against Gouge on March 10 for wearing a
union pin. Also, Buonanotte’s motivation is shown by his discharges of supervisors and
secretary on March 10, the day after the election. On balance, the Respondent’s motivation on
March 10 and 11 in discharging its supervisors and bargaining unit employees was to retaliate
against its employees for voting for and allowing the Union to represent its employees by virtue
of the election on March 9. The evidence confirming this motivation is abundant and apparent.

The Respondent does not contend that it would have taken the same action in
discharging Gouge and DiFolco even in the absence of those employees’ protected activity.
Rather, the Respondent contends that Gouge and DiFolco abandoned their jobs by walking out

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of the Islip Terrace facility on March 11 and failing to return. This claim has been rejected
above. Gouge and DiFolco did not abandon their jobs because they were discharged and they
reasonably believed they were discharged. Gouge and DiFolco were discharged because they
supported the Union and they were among the unit employees who had voted for the Union.
Accordingly, Gouge and DiFolco were discharged for unlawful reasons and in violation of
Section 8(a)(3) and (1) of the Act.

Alternatively, the discharges of Gouge and DiFolco were accompanied by such
substantial threats of retaliatory action and changed working conditions that Gouge and DiFolco
were constructively discharged without regard to the sufficiency of Navas and Buonanotte’s
statements in discharging them. A constructive discharge occurs when an employee quits
because her employer has made her working conditions unbearable and “(1) the burden
imposed on the employee caused, and was intended to cause, a change in the employee’s
working conditions so difficult or unpleasant that the employee is forced to resign, and (2) the
burden was imposed because of the employee’s union activities.” Intercon I (Zercom), 333
NLRB 223, 226 fn. 3 (2001).

On March 10, Buonanotte told Gouge, “Well if you think this is rough, you have no idea
what you’re in for.” Also on March 10, Navas demeaned and threatened Gouge by calling her a
liar, accusing her of deceiving the Respondent, and again telling Gouge to “get used to it
because if you think this is rough, you have no idea what you are in store for.” On March 11,
Buonanotte told Gouge that “Part of the executive office manager’s [Navas’s] duties are to order
you around like a dog, and you will obey like a dog like [sic] starting tomorrow night when you
come in to report to work. You and Andrea [DiFolco] will be made to get on your hands and
knees and get under the desk and clean the dirt out.”

Telling secretarial employees that they will be treated like dogs, that they are required to
obey like dogs, and, as an example, they will be made to get down on the floor on their hands
and knees and clean out dirt under the desk, is a substantial change in the working conditions of
those employees. The Respondent’s additional threats that the employees have no idea what
they are in store for corroborate this change in working conditions.

In addition, the changed working conditions were unbearable. Indeed, it is difficult to
imagine any employee who would find such conditions tolerable and who would not resign upon
the imposition of such changed working conditions. Moreover, the changed conditions were
imposed because of Gouge and DiFolco’s union activities. This motivation is further shown by
the timing of the changed conditions as well as Navas and Buonanotte’s statements about the
Union and the election when the changed conditions were imposed.

Accordingly, without regard to whether the Respondent’s statements could reasonably
be understood to constitute a discharge, the Respondent imposed changed and unbearable
working conditions on Gouge and DiFolco because of their union activities. In doing so, the
Respondent constructively discharged Gouge and DiFolco in violation of Section 8(a)(3) and (1)
of the Act.

Conclusions of Law

1. The Respondent, Crossing Recovery Systems, Inc. d/b/a Crossings Rehabilitative
Services, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.

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2. Amalgamated Local 298, International Union of Allied Novelty and Production
Workers, AFL–CIO (the Union) is a labor organization within the meaning of Section 2(5) of the
Act.

3. The Respondent violated Section 8(a)(1) of the Act by unlawfully interrogating
employees if they knew anything about the Union; if anyone had approached them about the
Union; if they knew the name of the ringleader of the employees who wanted to unionize; how
they would vote in a representation election; why they wanted a union; whether they had made
a decision on how they would vote in a representation election; whether they felt a union would
help or solve problems in the workplace; if they were glad they voted for the Union; and why
they were wearing union pins.

4. The Respondent violated Section 8(a)(1) of the Act by unlawfully threatening
employees by telling them that having a union was futile; that they did not have a right to have a
union; that he would never allow the Union to get into the Respondent; that the Respondent
would never negotiate with the Union; that, because the Respondent would not negotiate, the
employees would have to strike, and the Respondent would replace every employee who was
on strike; that a union could not obtain any benefits or concessions from the Respondent; that
the Union would cause violence to the employees or their families; that the Union would require
the employees to punch a clock when they reported for work at the Respondent; that the
Respondent would retaliate against the employees by more strictly enforcing its employment
rules; that the Respondent felt betrayed after observing the employees meet with the Union; that
employees would be subject to discharge if they voted for the Union; that the employees should
quit their jobs rather than vote for the Union; that the employee who served as the union
observer at the representation election should not challenge any votes; by threatening an
employee for wearing a union pin; and, by screaming coarse belligerent, and vindictive
language at an employee who had come to vote in the election.

5. The Respondent violated Section 8(a)(1) of the Act by unlawfully surveilling meetings
between employees and union representatives; and by telling employees that the Respondent
knew from an undisclosed source information about the employees’ union activities.

6. The Respondent violated Section 8(a)(1) of the Act by unlawfully soliciting grievances
from, promising to remedy those grievances, and promising benefits to employees in order to
influence the outcome of the upcoming representation election.

7. The Respondent violated Section 8(a)(1) of the Act by unlawfully searching for and
confiscating union literature that the Union had sent to the employees.

8. The Respondent violated Section 8(a)(1) of the Act by unlawfully discharging Joann
Barrett, Katheline Hyde, and Evelyn Cabral.

9. The Respondent violated Section 8(a)(3) and (1) of the Act by unlawfully discharging
Christine Mazzuco, Lillian Gouge, and Andrea DiFolco.

10. The foregoing violations constitute unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.

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Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

The Respondent having discriminatorily discharged employees, it must offer them
reinstatement and make them whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended4

ORDER

The Respondent, Crossing Recovery Systems, Inc. d/b/a Crossings Rehabilitative
Services, Inc., Patchogue, New York, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Coercively interrogating any employee about union support or union activities;
interrogating employees if they know anything about the Union; if anyone had approached the
employees about the Union; if the employees know the name of the ringleader who wants to
unionize; how the employees would vote in a representation election; why the employees want
a union; whether the employees had made a decision on how they would vote in a
representation election; whether the employees felt a union would help or solve problems in the
workplace; if the employees were glad they voted for the Union; and why they were wearing
union pins.

(b) Threatening employees by telling them that having a union was futile; that the
employees did not have a right to have a union; that the Respondent would never allow the
Union to get into the Respondent; that the Respondent would never negotiate with the Union;
that, because the Respondent would not negotiate, the employees would have to strike, and the
Respondent would replace every employee who was on strike; that a union could not obtain any
benefits or concessions from the Respondent; that the Union would cause violence to the
employees or their families; that the Union would require the employees to punch a clock when
they reported for work at the Respondent; that the Respondent would retaliate against the
employees by more strictly enforcing its employment rules; that the employees are disloyal to
the Respondent if they meet with union representatives; that employees would be subject to
discharge if they vote for the Union; that the employees should quit their jobs rather than vote
for the Union; that union observers in a representation election should not challenge any votes;
threatening employees for wearing union pins; and, disparaging and threatening employees
who vote in a representation election.

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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(c) Surveilling or creating the impression of surveilling meetings between employees and
union representatives; and telling employees that the Respondent knows from undisclosed
sources information about the employees’ union activities.

(d) Soliciting grievances from, promising to remedy grievances, and promising benefits
to employees in order to influence the outcome of a representation election.

(e) Searching for and confiscating union literature sent to its employees.

(f) Discharging or otherwise discriminating against any employee for supporting the
Union or any other union.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of the Board’s Order, offer Joann Barrett, Katheline
Hyde, Evelyn Cabral, Christine Mazzuco, Lillian Gouge, and Andrea DiFolco full reinstatement
to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed.

(b) Make Joann Barrett, Katheline Hyde, Evelyn Cabral, Christine Mazzuco, Lillian
Gouge, and Andrea DiFolco whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner set forth in the remedy section of the
decision.

(c) Within 14 days from the date of the Board’s Order, remove from the Respondent’s
files any reference to the unlawful discharges, and within 3 days thereafter notify the employees
in writing that this has been done and that the discharges will not be used against them in any
way.

(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.

(e) Within 14 days after service by the Region, post at its facilities in Patchogue and Islip
Terrace, New York copies of the attached notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
5 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

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involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since January 7, 2004.

(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C., September 25, 2006.

____________________
Joseph Gontram
Administrative Law Judge
JD(SF)-46-06
APPENDIX

NOTICE TO EMPLOYEES

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

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

FEDERAL LAW GIVES YOU THE RIGHT TO

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

WE WILL NOT interrogate our employees about their membership in, support for or against, or
activities on behalf of the Union or any other union.

WE WILL NOT interrogate our employees about their knowledge of the Union or any other
union.

WE WILL NOT interrogate our employees about the ringleaders or leaders of union organizing
efforts.

WE WILL NOT interrogate our employees about how they intend to vote in a union
representation election.

WE WILL NOT interrogate our employees about whether anyone had approached them or
talked to them about the Union or any other union.

WE WILL NOT interrogate our employees because of their membership in, or activities on
behalf of the Union or any other union.

WE WILL NOT threaten our employees that it would be futile to select the Union, or any other
union, as their collective-bargaining representative.

WE WILL NOT threaten our employees that they do not have a right to be represented by the
Union or any other union.

WE WILL NOT threaten our employees that we will not allow a union to get into our facilities.

WE WILL NOT threaten our employees that we will not negotiate with the Union or any other
union.

WE WILL NOT threaten our employees that we would force a strike because we would not
negotiate, and that we would replace every employee who was on strike.
JD(SF)-46-06

WE WILL NOT threaten our employees by telling them that a union could not obtain any
benefits or concessions from us.

WE WILL NOT threaten our employees with more stringent work rules, including installing a
timeclock, or more onerous working conditions because of their membership in, or activities on
behalf of the Union or any other union.

WE WILL NOT threaten our employees to eliminate benefits because of their membership in or
activities on behalf of the Union or any other union.

WE WILL NOT threaten our employees that they would be disloyal if they met with union
representatives.

WE WILL NOT threaten our employees that they would be subject to discharge if they vote for a
union.

WE WILL NOT threaten our employees for wearing union pins.

WE WILL NOT threaten or otherwise discourage employees from acting as union observers in a
National Labor Relations Board election.

WE WILL NOT solicit grievances from our employees prior to an election with the express or
implied promise of remedying them.

WE WILL NOT confiscate union literature from our employees.

WE WILL NOT surveil our employees, or give the impression of surveilling our employees,
when they engage in protected activities, including meetings with union representatives.

WE WILL within 14 days from the date of the Board’s Order, offer Joann Barrett, Katheline
Hyde, Evelyn Cabral, Christine Mazzuco, Lillian Gouge, and Andrea DiFolco full reinstatement
to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed.

WE WILL make Joann Barrett, Katheline Hyde, Evelyn Cabral, Christine Mazzuco, Lillian
Gouge, and Andrea DiFolco whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner set forth in the remedy section of the
decision.

JD(SF)-46-06
WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharges, and within 3 days thereafter notify the employees in
writing that this has been done and that the discharges will not be used against them in any
way.

CROSSING RECOVERY SYSTEMS, INC. d/b/a
CROSSINGS REHABILITATIVE SERVICES, INC.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
One MetroTech Center (North), Jay Street and Myrtle Avenue, 10th Floor
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862.
JD(SF)-46-06
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO, CALIFORNIA

CROSSING RECOVERY SYSTEMS, INC. d/b/a
CROSSINGS REHABILITATIVE SERVICES, INC.

and Cases 29-CA-26118
29-CA-26133
AMALGAMATED LOCAL 298 29-CA-26156
INTERNATIONAL UNION OF ALLIED 29-CA-26166
NOVELTY AND PRODUCTION 29-CA-26167
WORKERS, AFL-CIO 29-CA-26296
29-CA-26298
29-CA-26299
29-CA-26300

TABLE OF CONTENTS

Page
DECISION………………………………………………………………………... 1
Statement of the Case………………………………………………………….. 1
Findings of Fact………………………………………………………………….. 2
I. Jurisdiction……………………………………………………………………. 2
II. Alleged Unfair Labor Practices…………………………………………...... 3
A. Background………………………………………………………………….. 3
B. Organization Campaign and the Respondent’s Reaction………………. 3
C. The Election………………………………………………………………….. 11
D. Post-election…………………………………………………………………. 12
III. Analysis………………………………………………………………………. 14
A. Section 8(a)(1)……………………………………………………………….. 14
1. Interrogation of employees…………………………………………………. 14
2. Threats………………………………………………………………………... 16
3. Surveillance…………………………………………………………………... 19
4. Promise of Benefits and Solicitation of Grievances……………………… 19
5. Confiscation and destruction of union literature………………………….. 20
6. Supervisory Discharges…………………………………………………….. 21
B. Section 8(a)(3) and (1)……………………………………………………… 23
1. Heather Dale…………………………………………………………………. 23
2. Christine Mazzuco…………………………………………………………… 24
3. Lillian Gouge and Andrea DiFolco…………………………………………. 25
Conclusions of Law……………………………………………………………... 27
Remedy…………………………………………………………………………… 29
ORDER…………………………………………………………………………… 29
APPENDIX