Valerie Manor, Inc.

National Labor Relations Board - Board Decisions

Dec 28, 2007

351 N.L.R.B. 1306 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
351 NLRB No. 94
1306
Valerie Manor, Inc. and New England Health Care
Employees Union, District 1199, SEIU. Cases
34–CA–11162, 34–CA–11236, and 34–RC–2116
December 28, 2007
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS LIEBMAN, KIRSANOW, AND WALSH
On June 23, 2006, Administrative Law Judge Howard
Edelman issued the attached decision. The Respondent
filed exceptions and a supporting brief.1 The General
Counsel filed cross-exceptions and a supporting brief,
and an answering brief to the Respondent’s exceptions.
The Respondent filed an answering brief to the General
Counsel’s cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the judge’s decision and the
record2 in light of the exceptions,3 cross-exceptions,4 and
briefs and has decided to affirm the judge’s rulings, find-
ings,5 and conclusions6 as modified and to adopt the rec-

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The record does not support the judge’s findings that CNA Diana
DuPont testified that during a slide show on March 24 Head Nurse
Nancy Berube told the employees that if Valerie Manor became union-
ized the employer “would have to sell”; and that Acting Administrator
Joseph Colaci told the employees that he “would do anything necessary
to keep the Union out.” These errors, however, do not affect our adop-
tion of the judge’s unfair labor practice findings because the record
contains other evidence that the Respondent threatened employees with
facility closure and unspecified reprisals.
3 There are no exceptions to the judge’s dismissals of the allegations
that the following conduct violated Sec. 8(a)(1): a statement by either
Acting Administrator Joseph Colaci or Athena Healthcare Administra-
tor Joe DeVito that another facility managed by Athena Healthcare had
closed because of the Union; the presence of Supervisors Darryl Davis
and David Steponitis in the break area in back of the facility; and a
statement by Supervisor Linda Orlowski that the Respondent would no
longer be able to “bend the rules” if it was unionized. There are also no
exceptions to the judge’s dismissal of the allegations that the Respon-
dent’s slides 3–8, 11–16, 33, 34, and 51–53 contained statements that
violated Sec. 8(a)(1).
4 The General Counsel has filed cross-exceptions to the judge’s other
dismissals of 8(a)(1) allegations. We find it unnecessary to pass on
these cross-exceptions because any findings of violations based on
these allegations would be cumulative to the violations found and
would not affect the remedy. The General Counsel has also filed cross-
exceptions to the judge’s failure to address and make findings regarding
certain other 8(a)(1) allegations. We also find it unnecessary to pass on
these cross-exceptions, because any findings of violations based on
these allegations would not materially affect the remedy.
5 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
ommended Order as modified and set forth in full be-
low,7 and finds that the election must be set aside and a
new election held.8
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Valerie Manor, Inc., Torrington, Connecti-
cut, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about their
union sympathies.
(b) Threatening employees with facility closure, lay-
offs, job loss, loss of benefits, or other unspecified repri-
sals if they select the New England Health Care Employ-
ees Union, District 1199, SEIU, as their representative.
(c) Soliciting employees to revoke their union authori-
zation cards.

(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
6 We reverse the judge’s finding that Acting Administrator Joseph
Colaci engaged in surveillance of the Respondent’s employees in viola-
tion of Sec. 8(a)(1). No such allegation was contained in the complaint
or litigated at the hearing.
In adopting the judge’s findings that the Respondent engaged in ex-
tensive violations of Sec. 8(a)(1), we find it unnecessary to rely on the
judge’s findings that the “warranty coupons” that the Respondent dis-
tributed to its employees contained a threat to force a strike and a threat
of loss of benefits. We also find it unnecessary to rely on the judge’s
finding that Director of Admissions Lillian Ciesco’s statement that if
the employees unionized, they “would be forced to strike” was a threat
of job loss.
In finding that the Respondent violated Sec. 8(a)(1) by threatening
that unionization would be futile, Member Kirsanow relies on the
judge’s finding that Financial Director of Nursing Home Operations
Bill Thomas stated to employees that if the Union were elected, Valerie
Manor would not negotiate. He finds it unnecessary to pass, as cumula-
tive, on the remaining futility-threat allegations. For the same reason,
Member Kirsanow also finds it unnecessary to pass on the judge’s
finding that Director of Social Services Linda Orlowski’s statement that
“[w]e are a family at Valerie. Give us six months to improve” consti-
tuted an unlawful promise of benefits.
Member Kirsanow finds that the Respondent did not violate Sec.
8(a)(1) by soliciting employees to revoke their union authorization
cards. See Mohawk Industries, 334 NLRB 1170, 1172–1173 (2001)
(Chairman Hurtgen, dissenting in part).
7 We shall modify the judge’s recommended Order to conform to the
violations found and to our standard remedial language, and in accor-
dance with our decisions in Indian Hills Care Center, 321 NLRB 144
(1996), and Excel Container, 325 NLRB 17 (1997). We shall also
substitute a new notice.
The judge recommended a broad cease-and-desist order. We adopt
that recommendation in the absence of exceptions. Member Kirsanow
would issue a narrow cease-and-desist order.
8 The election in this case was held on April 14, 2005, pursuant to a
Stipulated Election Agreement. The tally of ballots shows 51 votes for
and 57 against the Petitioner, with one challenged ballot.
VALERIE MANOR, INC. 1307
(d) Threatening employees that unionization would be
futile.
(e) Threatening employees that a strike would be in-
evitable if they selected the Union as their representative.
(f) Threatening to withhold a wage increase because of
union activity.
(g) Promising to grant employee benefits if the em-
ployees do not select the Union as their representative.
(h) Using employee signatures on an antiunion petition
without their consent.
(i) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Torrington, Connecticut, copies of the at-
tached notice marked “Appendix.”9 Copies of the notice,
on forms provided by the Regional Director for Region
34, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since February
2005.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
[Direction of Second Election omitted from publica-
tion.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively question you about your un-
ion sympathies.
WE WILL NOT threaten you with facility closure, lay
offs, job loss, loss of benefits, or other unspecified repri-
sals if you select the New England Health Care Employ-
ees Union, District 1199, SEIU, as your representative.
WE WILL NOT solicit you to revoke your union authori-
zation cards.
WE WILL NOT threaten you that unionization would be
futile.
WE WILL NOT threaten you that a strike would be inevi-
table if you select the Union as your representative.
WE WILL NOT threaten to withhold a wage increase be-
cause of union activity.
WE WILL NOT promise to grant employee benefits if
you do not select the Union as your representative.
WE WILL NOT use employee signatures on an antiunion
petition without their consent.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights set forth
above.
VALERIE MANOR, INC.
Jennifer F. Dease, Esq., for the General Counsel.
Hugh F. Murray III, Esq. and Michael C. Harrington, Esq., for
the Respondent.
Kevin A. Creane, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. These cases
were tried in Hartford, Connecticut, on November 7−10, 2005.
On August 31, 2005, a complaint and notice of hearing issued
in Case 34–CA–11162, based upon a charge filed by the New
England Health Care Employees Union, District 1199, SEIU
(the Union) alleging that Valerie Manor, Inc. (Respondent) had
committed over 60 violations of Section 8(a)(1), including re-
peated threats of facility closure, job loss, loss of wages and
benefits, futility and the inevitability of strikes. In addition to
the charge, the Union also filed numerous postelection objec-
tions to the conduct of the NLRB election held on April 14,
2005. As the objections raised substantial and material issues
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1308
of fact, and since all but two raised issues identical or similar to
the unfair labor practices contained in the complaint, the objec-
tions were consolidated with complaint of September 14, 2005.
Based upon an additional charge filed by the Union in Case 34–
CA–11236, a second complaint and notice of hearing issued on
September 29, 2005, alleging that Respondent had committed
further violations of Section 8(a)(1) of the Act. On September
29, 2005, an Order Further Consolidating Cases issued consoli-
dating the two complaints and objections in Cases 34–CA–
11162, 34–CA–11236, and 34–RC–2116.
Respondent filed timely answers to the two complaints. In
its answers, Respondent admitted the commerce allegations, the
Union’s labor organization status, the supervisory and/or
agency status of all the below-named individuals. It is also
admitted that it presented certain power point presentations,
meetings wherein slides were shown to employees, and that it
distributed various literature alleged to violate Section 8(a)(1)
of the Act. Respondent generally denied the commission of
any unfair labor practices.
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent, a corporation, with an of-
fice and place of business in Torrington, Connecticut (the facil-
ity), has been engaged in the operation of a nursing care facil-
ity. During the 12-month period ending July 31, 2005, Re-
spondent, in conducting its operations described above, derived
gross revenues in excess of $250,000. During the 12-month
period ending July 31, 2005, Respondent, in conducting its
operations described above, purchased and received at its facil-
ity goods valued in excess of $50,000 directly from points out-
side the State of Connecticut.
At all material times, Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and has been a health care institution within
the meaning of Section 2(14) of the Act.
At all material times, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
At all material times, the following individuals held the posi-
tions set forth opposite their respective names and have been
supervisors of Respondent within the meaning of Section 2(11)
of the Act and agents of Respondent within the meaning of
Section 2(13) of the Act:
Joseph Colaci Acting Administrator
Denise Quarles Administrator
Maureen Markure Assistant Director of Nurses
Lillian Ciesco Director of Admissions
Linda Orlowski Director of Social Services
Darryl Davis Director of Resident Support Services
Davis Stefanitis Chef Manager
Nancy Berube MDS Coordinator, Head Nurse
Susan Maches Registered Nurse
Bonny Hendrick Registered Nurse
Tami Chevrier Charge Nurse
Bill Thomas Financial Director of Nursing Home
Operations, Athena Healthcare
Dee Rosetti Employee Relations Advocate, Athena
Healthcare
Doreen Christiano Admissions Coordinator, Brookview
Health Care Facility
Melissa Moran Social Worker
Respondent’s facility is managed by Athena Healthcare
which manages a number of healthcare facilities including
Brookview Nursing Home, also located in Torrington, Con-
necticut.
II. CREDIBILITY
I credit all of the General Counsel’s witnesses.
I was impressed with the General Counsel’s witnesses’ over-
all demeanor. These witnesses were most responsive and forth-
right during both direct and cross-examination. Moreover, they
made admissions against their interest when their cross-
examination conflicted with their pretrial affidavits. These
differences were restricted to the words “would” or “could,”
which I have found in this case that such differences were im-
material and reflected threats.
Further their testimony, especially during meetings was es-
sentially corroborated by other employees. For example, a
number of employees testified that during the first meetings
conducted by Joseph Colaci as to different large sums of money
he was willing to spend to keep the Union out. I find that the
variance of the different sums of money reflect truthfulness
because over a period of months employees are likely to re-
member different figures. However, the thrust of all of their
testimony was that Colaci would spend any sum of money to
keep the Union out.
Moreover, all of the General Counsel’s witnesses were em-
ployed by Respondent during the course of the trial. In Conair
Corp., 261 NLRB 1189, 1266 (1982), the judge set forth:
As employees of Respondent their testimony was
given at considerable risk . . . and is not likely to be false.
The judge’s credibility findings were upheld by the
Board.
If there were any inadvertent specific failures on my part to
make a credibility resolution, such credibility resolutions were
implicitly set forth in my resolution and analysis of all of the
complaint violations. Amber Foods, Inc., 338 NLRB 712, 713
fn. 7 (2002).
III. CREDIBILITY OF RESPONDENT’S WITNESSES
I found Respondent’s witnesses not credible.
Respondent witnesses, especially Joe Colaci and Bill Tho-
mas testified in generalities.
The supervisor presenters of the slide shows had virtually no
recollection of their statements to employees between the
slides, as contrasted with the specific testimony of employees.
Moreover, virtually no Respondent witness contradicted the
General Counsel’s witnesses, especially in the slide show with
testimony, with the exception of broad-leading questions which
I have totally rejected as relevant evidence. Such leading ques-
tions by Respondent’s attorneys often they were unable to re-
member any conversations with employees were, “Did you
threaten anyone . . . did you interrogate anyone?,” etc., to which
Respondent’s witnesses answered no.
VALERIE MANOR, INC. 1309
Further, a number of Respondent’s witnesses did not appear
at the trial to give relevant and corroborative testimony. No
explanation was given by Respondent why they did not appear.
Detailed discussions as to the credibility of the witnesses are
set forth below:
Facts of the Case
Rena Bailey is employed as a certified nurse’s assistant
(CNA). She works the 3 to 11 p.m. shift. She works at the
Skyview and Meadowview sections of Valerie Manor.
Some time in late February after the Union began organizing
Respondent, Bailey signed a union card. Shortly after signing
this card she attended a meeting with Joseph Colaci and Lillian
Ciesco in the Pineview dining room. Bailey and three other
employees were present.
Colaci stated that he heard that we signed union cards and he
wished that we would ask the Union for our cards back. He
stated that he didn’t blame us for signing them. He then said he
didn’t want a union at Valerie and that he would spend a mil-
lion dollars to fight it.
I find Colaci’s solicitation to ask employees for union signed
cards is a violation of Section 8(a)(1) of the Act. Mohawk In-
dustries, 334 NLRB 1170, 1171 (2001), which states that as a
general rule, an employer may not solicit employees to revoke
their union cards . . . in an atmosphere where employees would
tend to feel peril in revoking union cards. Such atmosphere
was created by Colaci’s statements, set forth above and below,
to the effect that he would spend as much money and do what-
ever was necessary to keep the Union out. I also find this threat
and similar threats described below to be violative of Section
8(a)(1). See Gravure Packaging, 321 NLRB 1296, 1299
(1996), enfd. mem. sub nom. Graphic Packaging Corp., 116
F.3d 941 (D.C. Cir. 1997), where the employer stated that he
would do everything in his power to keep the union out, also
Soltech, Inc., 306 NLRB 269, 272 (l992), where the employer
stated that the company would do everything it could to assure
the company would be nonunion.
Bailey also testified that Ciesco said that in Adams House,
managed by Athena, located in a neighboring town, was down
20 beds because of the Union. She stated that she is an admis-
sion coordinator and the first thing a loved one asks her is
whether the facility is a union facility because they don’t want
to put their loved one in a union home because they felt that
they wouldn’t get proper care. The General Counsel contends
that this is an implied threat of loss of jobs.
The General Counsel also contends that Ciesco threatened
employees with a loss of customers if they selected the Union
when she informed them that the first thing potential customers
ask is whether the facility is unionized and that customers told
her that they would not put their loved ones in a union home.
Ciesco’s statements thereafter linked unionization with the loss
of beds at Adams House, and that union facilities are unstable
and are always changing hands. The General Counsel contends
that such statements imply that the employees at Respondent’s
facility would experience the same fate. The General Counsel
thereafter contends Respondent failed to show that this threat of
customer loss had an objective basis indicating probable conse-
quences of Respondent’s control. I find no violation in view of
Stanadyne Automotive Group, 345 NLRB 85, 89 (2005).
The Supreme Court described the balance between employer
free speech rights as codified by Section 8(c) and employees’
Section 7 rights in NLRB v. Gissel Packing Co., 395 U.S. 575,
618 (1969).
[A]n employer is free to communicate to his employees any
of his general views about unionism or any of his specific
views about a particular union, so long as the communications
do not contain a “threat of reprisal or force or promise of
benefit.” He may even make a prediction as to the precise ef-
fects he believes unionization will have on his company.
In Stanadyne, Binkus, an employee and agent, explained that
a striker at another Stanadyne plant resulted in the death of a
guard who was struck in the head during an altercation with the
union employees, stating:
The action we take as individuals does, at times, result in
something completely unplanned. Let’s not let any unplanned
action take place here. Violence, threats, intimidation, and a
death are not things that happen just on TV or something you
read somewhere about another company. They happened at
UAW locations at former Stanadyne facilities.
The Board held that:
To the extent that the Respondent’s message may be con-
strued as a “predication” of the effects of unionization, in spite
of its assurances to the contrary, we find that its statements
were “carefully phrased on the basis of the objective fact to
convey [the Respondent’s] belief as to demonstrably probable
consequences beyond [its] control.”
In TNT Logistics North America, 345 NLRB 290 (2005), the
Board stated:
With regard to the supervisor’s statement that “if the Union
comes in we wouldn’t have a job with Home Depot,” we note
initially that Haynes told Cook that Home Depot does not do
business with unionized carriers. No party disputes the accu-
racy of Haynes’ comment that Home Depot was not union
friendly and did not have any union carriers, or the testimony
that the Employer’s contract with Home Depot was due to
expire in October 2005. Inasmuch as these statements are un-
controverted, we view them as objective fact. Based on these
circumstances, Haynes predicted that Home Depot would
cease doing business with the employer if the Employer’s
employees selected the Union. Home Depot’s possible ac-
tions were beyond the Employer’s control. Furthermore,
Haynes made no threats, nor were his comments interspersed
with comments against the Union. We find that, in this con-
text, Haynes’ statement would reasonably be understood as
nothing more than an expression of personal opinion as to
what Home Depot, a client of the Employer, might do in the
event of the Employer’s unionization. Making this possibility
known to employees does not constitute objectionable con-
duct. Accordingly, in these circumstances, we find that
Haynes’ statement conveyed his personal “belief as to de-
monstrably probable consequences beyond [the Employer’s]
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1310
control,” based on objective fact, which is permissible under
Gissel.
Counsel for the General Counsel contends that in Stanadyne
the Board stated:
Further, the speakers [of Stanadyne] repeatedly made
clear that they were not making threats or predictions
about the future, but rather, presenting “facts and recollec-
tions about actual events.” By providing ‘concrete exam-
ples[s] of a negative outcome for employees who were
represented by the same union that seeks to represent’ the
Respondent’s employees, the Respondent “made no pre-
diction at all.” Manhattan Crowne Plaza [Town Park Ho-
tel], 341 NLRB 619, 620 (2004).
However this paragraph was merely a further, or moreover
position, and not essential to the Board’s decision.
Accordingly, I find Ciesco’s statements are based upon ob-
jective considerations, and upon a reasonable prediction.
Bailey also testified that Ciesco stated that if we did become
union, the Union would be forced to strike. Ciesco did not
testify as to this conversation. I credit Bailey’s testimony.
I conclude Ciesco’s statement constitutes a threat to strike
and loss of jobs in violation of Section 8(a)(1). See Heartland
of Lansing Nursing Home, 307 NLRB 152, 158 (1992).
A day or so following Colaci’s appointment as administrator
of Respondent, Colaci testified he met with the employees in
the Pineview of Valerie Manor. He had a number of meetings
in the Pineview so that all the employees could appreciate his
position. Colaci testified he told the employees at each meeting
pretty much the same thing. Colaci told the employees that it
was his belief that unions did not belong in health care, and that
we would work hard to keep Valerie Manor nonunion. During
these meetings I would tell the employees that I was willing to
spend $100,000 to keep Valerie nonunion. Colaci testified that
during these meetings, employees asked questions about revok-
ing their union authorization cards. And Colaci responded that
they could go to the Union and ask for their card back.
I find by Colaci’s statement to the effect that he would do
whatever he had to do to keep the Union out, coupled with his
asking his employees to get their union cards back, again
unlawfully solicited his employees at this meeting to get their
signed union cards back in violation of Section 8(a)(1). See
Mohawk Industries, supra.
Colaci’s statement that he would do anything necessary to
keep the union out is also an implied threat of unspecified re-
prisals. See Gravure Packaging and Soltech, Inc., supra.
Colaci also told the employees that other nursing homes
closed because of unions. I do not find this to be a violation.
See Stanadyne, supra.
On or about February 28, Kathy Carey, Tammy Robison,
Dianne Sullivan, and Carolyn Clark attended a meeting con-
ducted by Colaci in the Pineview dining room. About 15 em-
ployees attended the meeting.
Cary testified that Colaci stated that he heard that we were
trying to bring in a union and that if we would stop, they could
talk to us about giving raises. Colaci does not deny this state-
ment. I credit Cary’s testimony.
I find this statement to be an unlawful promise of benefits, in
violation of Section 8(a)(1). K-Mart Corp., 336 NLRB 455,
472 (2001).
Cary also testified that Colaci stated that Respondent would
spend whatever it would take to stop the Union. Clark testified
that Colaci told the employees that he would spend $100,000 to
keep Respondent nonunion. Colaci did not deny this statement.
I credit Cary’s testimony.
I find these statements to constitute a threat of futility and
violative of Section 8(a)(1). Gravure Packaging and Soltech,
supra.
Diane Sullivan, a CNA, testified that Colaci said that he
didn’t blame us for calling the Union, but he would like us to
revoke our cards that we had signed for the Union. He then
stated that he didn’t want Valerie Manor to become a union
facility, and asked us to give the administrator a chance. He
said that he couldn’t talk about money until this business with
the Union was over. Colaci did not deny this statement. I find
Colaci tied his request for employees to revoke union cards
with the statements above. Under these circumstances, I find
that Colaci’s statement to Sullivan about revoking her union
card is a violation of Section 8(a)(1). Mohawk Industries, su-
pra.
I also find Colaci’s statement that he didn’t want Respondent
to be union coupled with the statement that he couldn’t talk
about money constitutes a promise of benefits and is a violation
of Section 8(a)(1). See K-Mart Corp., supra.
Tammy Robison, a CNA, testified that Colaci stated that he
didn’t blame us for calling the Union. He then asked us to give
him a chance and to revoke our signed union cards. He also
said he couldn’t talk about money until after the union. Colaci
did not deny this statement.
I find Colaci’s statement about revoking signed union cards
is a violation of Section 8(a)(1). Mohawk Industries, supra. I
also find his statement that “he couldn’t talk about money until
after the Union,” coupled with his statement about revoking the
signed union cards is an implied promise of raises once the
Union is out of the picture and is violative of Section 8(a)(1).
See K-Mart Corp., supra.
Lillian Ciesco, director of admissions, also spoke to a group
of employees. Robison testified that Ciesco stated that family
members who were considering placing their loved ones at
Adams House were asking whether the facility was Union be-
fore they would make a decision concerning putting their loved
ones. Ciesco also said Adams House had 20 empty beds.
The General Counsel contends that Ciesco’s statement
clearly implies that what happened to Adams House, which was
Union, would happen to Respondent if the Union was elected.
The loss of beds would equate to the loss of employees I find
Ciesco’s statements constitute lawful predictions. See
Stanadyne, supra.
As set forth above, Colaci had similar meetings with differ-
ent groups of employees concerning the advent of the Union,
during the last week in February. Michelle Hudson, a CNA,
testified that Colaci met with Hudson and about 12 employees
in the Pineview dinning room. She testified that Colaci told the
employees he knew the employees were signing cards for the
Union and that he didn’t want a union in his building. He
VALERIE MANOR, INC. 1311
stated that he would pay hundreds of thousands of dollars not to
have them in his building. He then told the employees that if
they had signed union cards they could give them back to the
Union and he wouldn’t hold it against them.
I find Colaci’s statement about his knowledge of employees
signing union cards and that he didn’t want a union in Respon-
dent’s facility, his statement to pay hundreds of thousands of
dollars to keep the Union out constitutes an unlawful solicita-
tion that the employees should not sign union authorization
cards or to revoke signed cards, and is a violation of Section
8(a)(1). See Mohawk Industries, supra. I also find Colaci’s
statement that he knew about employees signing union cards is
surveillance in violation of Section 8(a)(1).
I also find that Colaci’s statement about paying hundreds of
thousands of dollars to keep the Union out constitutes an
unlawful threat of futility. See Gravure Packaging and Soltech,
Inc., supra.
Employees Joan Champagne, Marsha Deming, and Danielle
Robison, kitchen employees, met with Colaci, Joe DeVito,
administrator at Athena, and Theresa Meyers, supervisor,
sometime in late February. Champagne testified that either
Colaci or DeVito said they didn’t want the Union and that an-
other facility owned by Athena had closed because of the Un-
ion, and they were going to fight it. They said this fight was
going to cost a lot of money and that there wouldn’t be any
money for raises. I credit Champagne’s testimony. Her testi-
mony is corroborative with all of the General Counsel’s wit-
nesses above.
I find no violation in connection with Colaci’s or DeVito’s
statement concerning another facility had closed because of the
Union. See Stanadyne, supra. However, I do find that the
statement that “this fight,” a reference to the union campaign,
was going to cost a lot of money and there wouldn’t be any
money for raises, constitutes a threat to reduce employee bene-
fits in violations of Section 8(a)(1). Pembrook Management,
296 NLRB 1226, 1239 (1989), and Heartland Lansing Nursing
Home, 307 NLRB 152, 158 (1992).
Marsha Deming, an aide, testified that Colaci told employees
that he didn’t want a union in the place and that he would spend
$100,000 and that the place would close. He also stated he
would take out a second mortgage on his home to keep the
Union out. Again, such testimony is essentially corroborative
with the General Counsel’s witnesses described above.
I find Colaci’s statement to be a threat to close the facility
and an implied threat of unspecified reprisals. Gravure Pack-
aging and Soltech, Inc., supra.
With regards to the threat of closure of the facility, Respon-
dent’s statements regarding plant closing that might result from
unionization are also evaluated within the “total context” in
which they appear, under standards established by the Supreme
Court’s Gissel decision. Such statements have sometimes, but
rather seldom, been found to be predictions “based on objective
fact.” Far more commonly, the Board has deemed them coer-
cive threats. In Atlas Microfilming, 267 NLRB 682 (1983), for
example, the Board found a violation where a supervisor told
all the employees in her department that the plant would close
if the employees selected the union. See also Highland Yarn
Mills, 313 NLRB 193, 206, 209 (1993).
Robison testified that Colaci stated he heard a union was
coming in and he didn’t want it in there. He said he had stock
in Valerie and if Valerie Manor were to go union his stock
would be no good. It would be devalued. He said he would
fight to the end and would pay $80,000 to $100,000 to prevent
the Union from coming in and that the Union would have to
start from ground zero. Again, her testimony is corroborated
by the witnesses described above.
I find this statement a threat of futility in violation of Section
8(a)(1).
Deming and Robison also testified that Colaci stated he
would spend $100,000 and if necessary he would take out a
second mortgage and he would fight to the end. I find these
statements express a futility of supporting the Union and in
violation of Section 8(a)(1). See Gravure Packaging and
Soltech, Inc., supra. Moreover, Colaci’s statement that the
Union would have to start bargaining from ground zero, also
violates Section 8(a)(1) given the multitude of 8(a)(1) viola-
tions in this case. See Superior Emerald Park Landfill, LLC,
340 NLRB 449, 461 (2003). I find this statement a threat of
futility in violation of Section 8(a)(1). Gravure Packaging and
Soltech, Inc., supra.
Joan Champagne, a CNA, testified that either Colaci or De-
Vito stated that another facility owned by Athena had closed
because of the Union. I find such statement does not violate the
Act. See Stanadyne, supra.
Darla Jacobs, a CNA, testified that Supervisor Darryl Davis
told her that Colaci wanted to meet with her. Jacobs had
missed the general meetings discussed above. During this
meeting Jacobs testified that Colaci said he knew the employ-
ees were upset; he knew that union cards were being passed
out, and said the Union wasn’t the answer. Colaci then stated
that he would spend $80 to $100,000 to keep the Union out, he
was a shareholder, and had a mortgage, and had bills to pay
himself. There was no money, that’s all they had.
I find Colaci’s statement that he would spend up to $100,000
to keep the Union out, that he had a mortgage and bills to pay
and there was no money, that’s all they had, to be violative of
Section 8(a)(1), an unlawful statement of futility. See Gravure
Packaging and Soltech, Inc., supra.
During the meetings described above neither Colaci, Ciesco,
or DeVito denied any of the statements described above.
Darla Jacobs testified that she had a conversation with Bon-
nie Hendricks, a registered nurse, and an admitted supervisor
within the meaning of 2(11) of the Act, on or about February
26. During this conversation Hendricks told Jacobs, “What do
you think about the Union stuff going on?” Jacobs testified that
she was an adult, that she would hear both sides and that she
would make a decision. Hendricks then stated Athena would
close the place if the Union came in. She then told Jacobs that
when she was younger she worked for a place and the union
came in and they closed it. She did not state why it was closed
or the name of the facility.
Respondent did not call Hendricks as a witness.
However, I find Hendrick’s statement that “Athena would
close the place if the Union came in” is a clear threat to close
the shop and a violation of Section 8(a)(1). See Gissel Packag-
ing, supra, and Highland Yarn Mills, 313 NLRB 193, 206, 207
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1312
(1993). I do not find her testimony concerning closing a facil-
ity where she once worked to be a violation. See Stanadyne,
supra.
Additionally, I find Hendrick’s statement, “What do you
think about the Union stuff going on?” to be an unlawful inter-
rogation. As the General Counsel points out in her brief, such
interrogation was accompanied by an unlawful threat. Accord-
ingly, I find such interrogation a violation of Section 8(a)(1).
See Hoffman Fuel Co., 309 NLRB 327 (1992); Rossmore
House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir.
1985).
Diana DuPont, a CNA, was employed by Respondent for 3
years working the night shift. DuPont testified she had a dis-
cussion with Nancy Berube, an admitted supervisor, in the
Skyview section of Valerie Manor. CNA’s Ellen Dalene and
Irene Pisarcyk were present. DuPont testified that Berube
asked them what they thought about the Union. DuPont recalls
there was some conversation that took place, and then Berube
said “[I]f Valerie Manor became unionized, that Athena would
sell it.” I credit DuPont’s testimony. I find such statement to
be a threat to close Respondent’s facility if the Union came in.
Gissel Packaging and Highland Yarn Mills, supra.
Berube admitted that she had a conversation with Dalene,
Pisarcyk, and DuPont sometime between late February and
March 7. Berube testified that she told them about an instance
where she worked in another building and it became unionized
and eventually it closed down. She did not name the facility. I
find no violation in this connection. See Stanadyne, supra.
Tammy Robison testified that after their general meeting
with Colaci, she, Dianne Sullivan, and Carolyn Clarke met with
Supervisor Tammy Chevrier. Robison testified that Chevrier
stated Valerie Manor would never accept the Union and if the
Union came in they would sell or close the facility and we
could lose our jobs. Sullivan and Clarke corroborated Robi-
son’s testimony. Chevrier could not recall this conversation.
I find Chevrier’s statement is a direct threat to close Respon-
dent’s facility if the Union came in, and a violation of Section
8(a)(1). See Gissel Packaging and Highland Yarn Mills, supra.
Deming testified that the employees would take their breaks
in an area in back of the facility. There is a back doorway and
two small picnic tables where the employees could congregate
and smoke. Deming testified that before the Union filed its
petition on March 7, the employees would sit around the two
picnic tables during their breaktimes. Deming testified that
Darryl Davis and David Steponitis, low-level supervisors,
would usually hang around the doorway area. Deming testified
that every time she took a break it seemed both supervisors
were present and sitting or standing around the picnic tables.
Deming admitted that Davis and Steponitis are smokers, that
the area in the back parking lot where the picnic tables are lo-
cated is the only area where smoking is permitted, and that
Davis and Steponitis would smoke at the tables or by the door-
way. Neither Davis or Steponitis spoke to any of the employ-
ees during these breaks.
Steponitis admitted that he smoked either at the back door or
at the picnic tables and that this practice was the same before
the union campaign and after.
I conclude there is insufficient evidence to establish unlawful
surveillance.
Postpetition
On March 7, the Union filed a petition for an election.
At some point in time after the Union began to organize the
employees, Respondent hired a labor relations consulting firm.
This firm drew up well over 170 slides with short messages as
to why it was better for its employees to remain nonunion, the
aspects of the collective-bargaining process including strikes,
and the repercussions that must be considered. These slide
shows were divided into three presentations called “Power
Points.” Each presentation lasted 1 week. The first presenta-
tion was called “questions and answers,” the second presenta-
tion was called “collective bargaining” the third presentation
was called “Facts.” The slide shows lasted about an hour or so.
These slide shows were conducted by 2, 3, or 4 supervisory
employees who met with small groups of employees, 4 to 15
employees. The slides were projected on a large screen, easily
readable. The presenters read the slides, and between the slides
there would be discussions between the presenters and the em-
ployees; questions and answers. The meetings were manda-
tory. The employees would sign in. The meetings were held
round the clock each week, during working hours. The em-
ployees were paid for the time spent during the meeting.
Unlawful 8(a)(1) Statements Made by Supervisors
Between Slide Show
Respondent held a power point presentation on March 22,
2005, at 1:30 p.m. The presenters were Linda Orlowski and
Theresa (Tree) Meyers. It should be noted that Orlowski con-
ducted a number of slide show meetings. Pursuant to Respon-
dents direct examination Orlowski could not recall any of the
conversations with employees at any of the meetings she con-
ducted. Through Respondent’s attorney’s leading questions,
Orlowski simply testified, “no” as to Respondent’s witnesses’
testimony relating to alleged 8(a)(1) conduct. For example,
Respondent’s counsel would ask a leading question like “Did
you ever threaten any employees?” The answer was always
“No,” etc.
Meyers did not testify.
Dianne Sullivan credibly testified that Orlowski stated, “If
we went out on an economic strike we won’t receive pay, un-
employment benefits and our health coverage would end.”
Sullivan further testified that Orlowski also stated, “The Union
doesn’t care about families or residents, and that we would lose
everything.” I find such statement to be a threat to lose benefits
and wages and a clear violation of Section 8(a)(1). See Pem-
brook Management, 296 NLRB 1226, 1239 (1989). In Pem-
brook, the judge found a statement “If the Union got in all pre-
sent benefits might be lost” to be violative of Section 8(a)(1).
Sullivan also testified that Orlowski stated, “We are a family
at Valerie (Respondent). Give us six months to improve.” I
find that such statement especially coupled with the above
threat of “losing everything” is an implied promise of improved
benefits. See Hubbard Regional Hospital, 232 NLRB 858, 870
(1977), enfd. in pertinent part 579 F.2d 1251 (1st Cir. 1978).
Sullivan further testified Orlowski stated, “With a Union we
won’t be able to bend the rules.”
VALERIE MANOR, INC. 1313
The General Counsel contends the “bend the rules” state-
ment is violative of Section 8(a)(1). I do not find such state-
ment to be a violation of Section 8(a)(1). See Pembrook Man-
agement, supra at 1227, where the Board cited Tri-Cast, Inc.,
274 NLRB 377 (1985), involving exactly the same conduct,
and concluded such conduct “is nothing more or less then per-
missible conduct.”
Jacobs testified that a slide show was conducted on March
23 at 10 a.m. and 11 employees attended. Lillian Ciesco and
Melissa Moran took turns reading the slides which were pro-
jected on a screen. Ciesco and Moran made comments between
reading the slides. Jacobs testified that Moran said we can
check the financial records with Colaci, that Respondent has no
money, and that Ciesco and Moran said that if there was a
strike we “could” lose our jobs.
Moran did not testify and although Ciesco testified, she
could not recall any conversation employees raised concerning
the Union or Jacobs’ testimony as set forth and described
above. Pursuant to Respondent’s attorney’s usual leading ques-
tions, Ciesco denied any unlawful activity, i.e., did you promise
raises, “No,” threaten discharges, etc., “No.”
I find the statements by Ciesco and Moran establish a threat
of the inevitability of a strike which would cause the employees
to lose their jobs. Heartland of Lansing Nursing Home, 307
NLRB 152, 158 (1992).
In connection with the phrase “if there was a strike we
‘could’ lose our jobs.” it is well settled that a prediction of plant
closure as a possibility rather than a certainty is violative of the
Act. Daikichi Corp., 335 NLRB 622, 624 (2001); McDonald
Land & Mining Co., 301 NLRB 463, 466 (1991). Indeed in
Gissel, 395 U.S. 575, 616–620 (1969), itself, where the stan-
dards for evaluating the lawfulness of predictions of adverse
consequences based on the Union’s appearance were formu-
lated, that if the employer stated that a strike, “could lead to the
closing of the plant,” violated Section 8(a)(1) as a threat to
strike. Id. at 588. Indeed past decisions have recognized as
threats statements using “could” and statements using “would.”
Compare, e.g., Thayer Dairy Co., 233 NLRB 1383, 1388
(1977). “Our sincere belief is that if this Union were to get in
here, it . . . could work to your serious harm.” was a threat. W.
E. Carlson Corp., 346 NLRB 431 (2006).
Moreover, in the instant case the alleged threat that “if there
was a strike we could lose our jobs.” was not followed by the
Laidlaw reinstatement rights.1
On March 23, a meeting was conducted at 1:30 p.m. Or-
lowski and Jodie O’Brien conducted this meeting. Seven em-
ployees attended this meeting.
Tammy Robison testified that Orlowski stated that we would
have to pay union dues, and they could change the assessment
of dues whenever they wanted to; that negotiations with the
Union could take 2 years and the parties could reach an im-
passe, and if it went to impasse you could be forced to strike;
you could lose your job, and your house.
Kathy Carey testified that Orlowski said they wouldn’t be
able to help us with our jobs if we had a Union, that we would

1 Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th
Cir. 1969), cert. denied 397 U.S. 920 (1970).
have to have to start paying dues after the election, that we
would be forced to strike if the Union were elected, and that we
would lose our vacations and seniority.
Orlowski admitted that she conducted the above meeting
with O’Brien but had no recollection as to what she, O’Brien or
any of the employees attending the meeting said. Orlowski was
unable to recall any questions put to her or responses she might
have made to employees. Pursuant to the usual leading ques-
tions, she denied any unlawful conduct. O’Brien did not tes-
tify.
Robinson and Carey credibly testified that Orlowski stated
negotiations with the Union could take 2 years and the parties
could reach an impasse. I find this statement to be a threat of
futility. See Airtex, 308 NLRB 1135 (1992). See also Daikichi
Corp., supra, as to “could” or “would.”
They also testified Orlowski’s statement about impasse
which I found unlawful coupled with the statement that you
could be forced to strike, lose your job and your house consti-
tutes a clear threat that the employees would have to inevitably
strike and lose benefits and their home. See Gissel Packaging
and Heartland of Lansing Nursing Home, supra.
Hudson testified that Orlowski threatened Hudson and the
other employees that “they would have to start from the begin-
ning.” I find such statement given the multitude of unfair labor
practices to be a threat of futility, in violation of Section
8(a)(1). See Superior Emerald Park Landfill, LLC, 340 NLRB
449, 460, 461 (2003).
On March 24 at 10 a.m., another slide show was conducted
by Orlowski and Ciesco. Eleven employees were present.
Mary Roberts, a CNA, credibly testified that following the slide
show Orlowski stated that “[i]f you vote in favor of the Union
on Thursday a Union could2 take us out on strike on Friday.” I
find this a clear threat of the inevitability of strike. See Heart-
land of Lansing Nursing Home, supra. Orlowski also stated
that if you went on strike the facility could be sold or closed. I
find this statement is an unlawful threat to close the facility in
violation of Section 8(a)(1). See Gissel Packaging and Atlas
Microfilming, supra. Orlowski also stated you could lose your
benefits or seniority. This threat is virtually the same threat
that was made to Roberts and Carey described above on March
23. Accordingly, I find this statement to be a threat of loss of
benefits in violation of Section 8(a)(1). See Heartland of Lans-
ing Nursing Home, supra; Pembrook Management, 296 NLRB
1226, 1239 (1989), and Daikichi Corp., supra.
Hudson also testified that Orlowski said that if the Union
comes in we would lose our benefits, seniority, our vacation
time, and we would have to start from the beginning. I find this
statement to be a threat of loss of benefits in violation of Sec-
tion 8(a)(1), a threat of futility as to bargaining with the Union.
See Pembrook Management and Heartland of Lansing Nursing
Home, supra, and as to the threat of futility, a violation of Sec-
tion 8(a)(1). See Gravure Packaging, supra.
Employee Marsha Deming testified that Ciesco stated that
outside individuals considering placing their loved ones in Val-
erie Manor would call the Manor and ask if the facility was

2 See discussion on “could” or “would” below.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1314
Union and that they did not want to place their loved one in a
union home. I find insufficient facts to establish a violation.
Ciesco also threatened employees that union homes went out
of business because they were unionized. Ciesco cited Adams
House as an example. In this connection she stated that 20 beds
were down at Adams House.
I find such statements not to be violative of the Act. See
Stanadyne, supra.
On March 24 at 11:30 a.m., a meeting was conducted by
Nancy Berube and Tree Meyers, three employees were present
at this meeting. Diana DuPont testified that at some point dur-
ing this slide show Berube stated that if Valerie Manor became
unionized the employer would have to sell.
Berube was not questioned by Respondent’s counsel con-
cerning this meeting. Meyers did not testify.
I find this a clear coercive threat to close Respondent’s facil-
ity. See Gissel Packaging and Atlas Microfilming, 267 NLRB
682, 687 (1983).
March 28–April 2 Meetings
During this period, Respondent presented its second slide
show entitled “collective bargaining.”
On March 29 at 10 a.m., Respondent conducted its slide
show. The meeting was conducted by Linda Orlowski and
Andy Sebastian, director of maintenance. Slides would be read
and in between slides or groups of slides Orlowski and Sebas-
tian would answer questions and engage in conversations with
the employees between slides.
In connection with slides relating to collective bargaining,
Jacobs testified that during this meeting Sebastian stated that if
we go to negotiations we could lose less than we already went
in with. Orlowski stated that we could lose the benefits that we
already have if the Union came in. These benefits included
vacations, sick leave, holidays, pension plans, medical insur-
ance, and life insurance. Jacobs testified that Orlowski without
reading from the slides stated we could lose all these benefits if
the Union came in.
Orlowski testified she was unable to recall questions put to
her by employees or any responses she might have made to
employees at any of the slide shows she presented. Pursuant to
the usual leading questions put to her by Respondent’s attorney
she denied that neither she nor Sebastian made any unlawful
statements.
I find Orlowski’s statements concerning the loss of benefits
if the Union was elected as the employees collective-bargaining
representative are violations of Section 8(a)(1). Pembrook
Management, supra, and Superior Emerald Park Landfill, 340
NLRB 449, 461 (2003).
A meeting was scheduled on March 29, 1:30 p.m., and con-
ducted by Ciesco and O’Brien. Nine employees were present.
Mary Roberts testified that this meeting was about benefits.
Both Ciesco and O’Brien read the slides and made comments in
between slides. Roberts testified that O’Brien stated that if you
voted for the Union you would lose all your benefits, for exam-
ple insurance and health care, and have to start fresh.
Ciesco testified that she did not recall conducting the meet-
ings during the week of March 28 through April 2, and that she
did not recall any comments made by her copresenters. Re-
spondent’s attorney made the usual leading questions and solic-
ited that neither she nor her copresenters stated anything during
these meetings that could be considered unlawful conduct.
O’Brien did not testify. I find O’Brien’s statement consti-
tutes a threat of loss of benefits and a violation of Section
8(a)(1). See Pembrook Management and Superior Emerald
Landfill LLC, supra.
A formal slide show meeting was held on March 31 at 8 p.m.
The meeting was conducted by Orlowski and Meyers. Three
employees attended. Bailey testified that they had a slide show,
and they talked about Unions, particularly a glass company that
was union. Meyers said we would lose our benefits that we
have now with Valerie and Athena if we decided to go Union.
As set forth above, Orlowski was unable to recall questions
put to her by employees or any responses she may have made
to employees. Again the same leading questions by Respon-
dent’s attorney denied any unlawful conduct. Meyers did not
testify.
I find Meyer’s statement concerning loss of benefits violates
Section 8(a)(1). See Pembrook Management and Superior
Emerald Park Landfill LLC, supra.
Slide Show April 5–9
A formal slide meeting was conducted on April 5 at 10 a.m.,
by Quarles and Orlowski and eight employees attended. Jacobs
testified that Orlowski stated we were getting wrong informa-
tion from the Union. Jacobs also testified Orlowski said 99.9
percent were economic and we could lose our pay, our jobs,
and all our benefits. I find this statement constitutes a threat of
loss of benefits. See Pembrook Management, supra. I also find
the inclusion of jobs in the above threat constitutes a threat of
loss of jobs in violation of Section 8(a)(1). Heartland of Lans-
ing Nursing Home, supra.
Orlowski could not recall any statements that she or Meyers
made during this slide show. Quarles did not testify. Pursuant
to the usual leading questions by Respondent’s attorney, Or-
lowski, denied any unlawful conduct.
Carey credibly testified that Sebastian stated that if we joined
the Union it would be like joining a sinking ship. Carey testi-
fied that Orlowski said we would go on strike right away and
that we would lose our benefits. I find these statements to con-
stitute a threat to strike and a loss of benefits and a violation of
Section 8(a)(1). See Pembrook Management and Heartland of
Lansing Nursing Home, supra.
Carey also testified that Thomas stated if the Union came in,
they would not negotiate with the Union. Thomas did not deny
this statement. I find this statement is a threat of futility. See
Superior Emerald Landfill, supra.
On April 6 at 10 a.m., another slide show was conducted by
Bill Thomas, Doreen Christiano, and Quarles. Twelve employ-
ees were present.
Following the slide show Carey testified that Thomas stated
that Brookview had laid off 22 employees because they got a
Union and that 1199 didn’t care about those employees; he
stated that they had to close a unit in Brookview because they
had the Union and could not fill the beds. The General Counsel
contends this is an implied threat to close Respondent’s facility
VALERIE MANOR, INC. 1315
if the Union wins the election. I find such statement is not a
threat. See Stanadyne, supra.
On April 6, a slide show meeting was held conducted by
Thomas Christiano and Quarles.
Carey testified that Thomas told the employees at the meet-
ing that Brookview, a nursing home managed by Athena, laid
off 22 workers because they, Brookview, were represented by
the Union. Thomas also stated that Brookview had to close a
wing because of the Union and they couldn’t fill their beds with
residents because it was a union facility. The General Counsel
contends that such statements imply that what took place at
Brookview would take place at Respondent’s facility.
For the reasons set forth above, I find no violation. See
Stanadyne, supra.
On April 6, another slide show meeting was held at 11 p.m.
The meeting was conducted by Thomas, Quarles, and Chris-
tiano. Thomas told employees at this meeting that Brookview
lost $2-1/2 million since it became unionized; that it lost sick
days, and vacation days, and that Brookview laid off 22 em-
ployees and 68 beds were vacant because people did not want
to go to Brookview because it was unionized. I find that by
such statements Respondent was implying that whatever hap-
pened at Brookview would happen to Respondent’s employees
if they solicited the Union as their representative to be predic-
tions and not loss of benefits. I find such statements not viola-
tive. See Stanadyne, supra.
DuPont also testified that Thomas told the employees that in
the past when Respondent only received 1 percent from Medi-
care they still gave the employees a 2-percent raise. Thomas
also stated that if Respondent received the 4 percent in funds
from the State of Connecticut, it wanted to be able to use that
money for the employees, instead of spending it on lawyers and
union litigation fees. Thomas then stated there were a lot of
good things that Athena and Respondent were planning for
employees, but could not discuss while the labor union was
negotiating and that if the labor union won the trial election that
Athena and Respondent would not be able to do such things.
Thomas did not deny such statements.
I find this promise of benefits if the employees did not select
the Union as their representative to be unlawful and a violation
of Section 8(a)(1). See Advanced Mining Group, 260 NLRB
486, 501 (1982), enfd. 701 F.2d 221 (D.C. Cir. 1983), and
Toys-R-Us, 300 NLRB 188, 190 (1990).
Carey also testified that Thomas stated if the Union came in
they would not negotiate with the Union. Thomas did not deny
such statement. I find such statement was a threat of futility,
and a violation of Section 8(a)(1). See Superior Emerald Land-
fill, supra at 461.
Champagne testified that Thomas did all the talking. Cham-
pagne testified that Thomas said, “[H]e had worked in different
homes, and they had a union, and they really didn’t make out
you know, and that some places closed where they had unions.”
The General Counsel contends that such statement establishes
that the employees selected the Union as their representative
Respondent would close its facility, in violation of Section
8(a)(1). I find no violation of Section 8(a)(1). See Stanadyne,
supra.
Hudson credibly testified at a meeting held during the first
week in April that Thomas stated that Respondent could not
give you any more money, because they don’t have any money
to give. Thomas did not deny such statement. I find such
statement implies that if the Union was selected as the bargain-
ing representative, bargaining would be futile EBY Brown Co.,
L.P., 328 NLRB 496 (1999).
Mary Roberts credibly testified that there was a meeting with
Thomas and Christiano sometime in March or April. About 10
employees were present. Roberts testified that Thomas stated
that there is a Brookview home that got a Union in and had to
lay off 22 employees who lost vacation time. Thomas also
stated that families wouldn’t place their relative in this home if
it was a union home.
The General Counsel contends that Thomas clearly implied
that what happened at the Brookview facility because of the
Union would happen at Respondent’s facility. I find that Tho-
mas’ statement was not violative of the Act. See Stanadyne,
supra.
At some point in these meetings Christiana admitted discuss-
ing the Union’s campaign generally and told Roberts and the
employees attending these meetings, that if the Union came in
they “could” lose their benefits. I find this statement is a threat
of loss of benefits, in violation of Section 8(a)(1). See Daikichi
Corp., 335 NLRB 622 (2001), Pembrook Management, and
Heartland Lansing Nursing Home, supra.
I find in the instant case, given the vast number of 8(a)(1)
violations, that there is no difference between “could” or
“would.” See Gissel Packaging, supra; Baddour, 303 NLRB
275 (1991), and Daikichi Corp, supra. Accordingly I find
Christiano’s admission is a clear threat of loss of benefits if the
Union was elected as the bargaining representative. See Pem-
brook Management, Heartland of Lansing Nursing Home, and
Daikichi Corp., supra.
On April 7, Respondent conducted another meeting at 1:30
p.m. Six employees attended. The meeting was conducted by
Quarles, Christiano, and Thomas. Clarke credibly testified
Thomas stated that if the Union comes in there would be lay-
offs. I find this to be a clear threat of layoff in violation of
Section 8(a)(1). He also stated we could lose our benefits, sick
time, vacation time, and seniority, and we would not get a 4-
percent raise from the state. I find this to be a clear threat of
loss of benefits in violation of Section 8(a)(1). See Pembrook
Management and Heartland of Lansing Nursing Home, supra.
Several days before the election on April 14, the employees
were assembled in different groups over the course of a day.
Respondent’s representatives, Denise Quarles Respondent’s
administrator, Thomas, Christiano, and Dee Rosetti spoke to
the assembled groups by reading segments of the speech desig-
nated under their name. The thrust of these speeches was to
give Denise, the new administrator, another chance. Quarles
once again pleaded to give her a chance, and Athena a second
chance. Quarles told employees to remember that a “no” vote
is “a vote to give me one chance—1 year—12 months—365
days to work with you directly to resolve our issues and con-
cerns. If at the end of that time you feel that you made a mis-
take by voting ‘No,’ you can call this union or any other union
that you feel you need. All I ask is that you give me one shot!”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1316
Christiano told the employees to work it out together and to
“Please give Denise a chance!”
Rosetti also ended her portion of the speech with a plea to
give Denise a chance and Athena a second chance, and telling
employees that they have been heard and it did not cost them a
dime.
Thomas ended his presentation by repeating his plea to give
“Denise a chance . . . give Athena a second chance” and telling
employees that they already won, they got Respondent’s atten-
tion and Respondent won’t “blow it again.”
Counsel for the General Counsel contends this plea for a sec-
ond chance is an implied promise in violation of Section
8(a)(1). The General Counsel cites Reno Hilton Resorts Corp.,
319 NLRB 1154, 1156 (1995). In this case the Board stated:
We further agree with the General Counsel that
Hughes made unlawful statements in a series of speeches
to employees on November 2 (2 days before the election).
In the speeches, Hughes reminded the employees of the
benefits the Respondent had already granted (including the
unlawfully dominated quality action teams, which we dis-
cuss below), and stated:
Hilton has given you all an opportunity to demonstrate
your commitment and value. I’m asking you now to give
Hilton a chance to show its commitment to you. Vote no
. . . Remember in a year from now you can bring this un-
ion, or any other union, in here. But right now, give Hil-
ton and give me a chance, and I’ll deliver.
The instant case establishes a constant and extensive anti-
union campaign with a multitude of 8(a)(1) violations as in
Reno Hilton. The plea for a second chance is almost identical
to that in Reno Hilton.
In Toys-R-Us, 300 NLRB 188, 190 (1990), wherein the
Board stated:
Viewed as a whole, the Respondent’s conduct went beyond
the bounds of acceptable campaign propaganda. Despite its
disclaimers that it could not make promises, the Respondent’s
message was clear and its implied promise specific: the Re-
spondent asked employees to give it another chance to im-
prove wage rates after which the employees could reevaluate
their need for union representation. Accordingly, we find that
under Color Tech Corp., above, the Respondent violated Sec-
tion 8(a)(1) by its unlawful implied promise of better wages.
See also Advanced Mining Group, 260 NLRB 486, 501
(1982), 701 F.2d 221 (D.C. Cir. 1983).
Accordingly, I find an implied promise of benefits in viola-
tion of Section 8(a)(1).
Roberts credibly testified that sometime between the speech,
described above and the election Christiano told CNA Roberts
that “you have been here for 20 years, why are you doing this?”
She then went on to elaborate that she could lose her seniority
if she selected the Union and that she should “really think about
what she was doing.”
I find these statements constitute an implied threat of loss of
seniority, a benefit and other benefits if she voted for the Un-
ion. See Pembrook Management, supra.
Michele Hudson credibly testified that Maureen Markure,
assistant director of nursing, spoke to her on several occasions
during the Respondent’s antiunion campaign before the elec-
tion. Markure warned Hudson that you don’t know what you
are doing, “I used to work at a union facility and the union
came in and people were fired and laid off and I was one of
those people.” She warned Hudson that she should be sure of
what she was doing.
Counsel for the General Counsel contends Markure’s state-
ment is an implied threat of discharge or layoff.
I find such statement to be a lawful prediction. See
Stanadyne, supra.
On April 14 the election was held. The Union lost the vote
57 to 51.
Jacobs testified the day after the election, Respondent held a
general staff meeting in the conference room with about 20 to
30 other employees. The meeting was conducted by Adminis-
trator Quarles. Quarles thanked everyone for giving her a sec-
ond chance and told employees she posted information that
explained that it took 7 days for the NLRB to certify the elec-
tion. Quarles said she was waiting to see if the election was
going to be certified and she was checking the fax machine to
see if there was any unfair labor practices filed. Director of
Admission Ciesco was present in the meeting and asked
Quarles what an unfair labor practice was, and Quarles told
employees that an example would be if Bill Thomas gave an
employee $100 and told them to vote “No.” Ciesco also asked
Quarles about employees’ July raises. Quarles said that she
couldn’t talk about wages or raises until the election was re-
solved and it could go unresolved for months. Valerie Manor
employees normally have not received raises in July, but nor-
mally received raises in January.
Jacobs testified that a meeting was held on or about July 21,
with day-shift employees in the Pineview dining room and was
conducted by Quarles and Bill Thomas. Quarles began the
meeting by stating that she had good news and bad news; that
the good news was there was an ice cream social that day for
any staff or residents, and the bad news was that the NLRB had
filed for a hearing, and they were going forward and there was
going to be a hearing.
Jacobs testified that Bill Thomas then spoke and he talked to
employees about the 4-percent funding increase that would go
towards wage increases that Respondent and the employees
were expecting to receive from the State of Connecticut. Tho-
mas told employees that they were going to get a 4-percent
raise, but since the Union filed charges and a hearing with the
NLRB was scheduled, Respondent couldn’t give employees the
raise. Thomas told employees that he was sure that Respondent
would win the hearing and then Respondent could move on and
give employees their wage increases. Thomas then stated that
it was too late for employees to drop the hearing and even if
employees called the NLRB they could not stop the proceed-
ings. Thomas said he wished that the Union could call off the
hearing and just have a reelection next year. Ciesco, a supervi-
sor, who was at the meeting, asked Thomas what would happen
to the 4 percent Respondent received from the State. Thomas
replied, “We have to hold onto it.” Kathy Carey, Michele Hud-
son and Rena Bailey attended this meeting and heard the same
VALERIE MANOR, INC. 1317
message that employees would not receive the 4-percent wage
increase that Respondent was receiving from the State because
of the NLRB hearing resulting from the Union filing postelec-
tion objections and unfair labor practice charges.
Bailey testified she attended the end of this meeting and then
another meeting held later in the evening for night-shift em-
ployees. At the later meeting, Thomas said that he had called
Athena and that employees were going to get the 4-percent
increase.
About a week after this meeting, Doreen Christiano informed
employees that Respondent was going against their lawyer’s
advice and taking a risk and giving employees their 4-percent
raise in October instead of January. Employees received a 4-
percent wage increase in October.
Respondent’s witnesses did not contest the testimony of the
General Counsel’s witnesses, the General Counsel contends
Respondent violated Section 8(a)(1) when Quarles implied in
the first meeting, the day after the election, that employees
would not receive wage increases unless the election was re-
solved by the Union not filing objections or charges. When,
Ciesco asked about “July raises” in a meeting where Quarles
was explaining that that the election results would not be certi-
fied if the Union filed objections or unfair labor practice
charges, it provided a very public platform for Quarles to en-
sure that she communicated to employees that their wages and
raises were on hold unless the Union did not file objections or
charges. The fact that employees’ had not received July raises
in several years makes it clear that Respondent intended to give
employees the message that no raise would come unless the
Union did not dispute the election. The General Counsel cites
Laidlaw Waste Systems, 307 NLRB 52 (1992).
In Laidlaw:
The complaint alleges that “Respondent . . . at its Roll-
ing Meadows facility, told employees that they would not
receive a wage increase because of their union activities.”
In or around October 1990 various employees asked
members of Laidlaw’s management whether the employ-
ees would be getting their annual pay increase. In re-
sponse, management told the employees that “we could
not change the compensation because it was in litigation,”
or that the wage increase “was tied up in court.” Explic-
itly on some occasions, and implicitly on all others, man-
agement indicated that the litigation and court battles that
it was referring to were between Laidlaw and the Union.
(As noted earlier, Laidlaw contended before both the
Board and the court of appeals that the Union should not
be certified.)
Those statements by management constitute a violation of
Section 8(a)(1). As discussed in the previous part of this deci-
sion, the law by no means prohibited Laidlaw from granting a
pay increase to the employees in October 1990. By erroneously
claiming that the law did forbid such an increase, and by link-
ing that circumstance to the Union’s presence at the facility,
Laidlaw coerced, restrained, and interfered with the employees
in the exercise of the Section 7 rights. Gupta Permold Corp.,
289 NLRB 1234, 1250 (1988).
Accordingly, I find Respondent impliedly threatened to with-
hold wage increases because of the Union’s filing unfair labor
practices and objections.
The General Counsel further contends in July, when Re-
spondent knew it would be receiving a 4-percent funding in-
crease from the State that would go towards employees’ raises,
it again threatened employees that it was withholding the wage
increase in retaliation for the Union filing unfair labor practice
charges. In this connection Thomas clearly stated that because
there was going to be an unfair labor practice hearing, employ-
ees would not get their expected wage increases. The General
Counsel contends the fact that Respondent later changed its
mind and gave employees their raises does not remedy the fact
that Respondent unlawfully blamed the Union and union sup-
porters for the fact that expected wage increases were being
withheld. Laidlaw, supra; Wellstream Corp., 313 NLRB 698,
707 (1994).
Accordingly, I find this to be a second implied threat to with-
hold wages because of the union activities set forth above.
It is not alleged that granting this raise is an unfair labor
practice. Respondent did not contest the General Counsel’s
contention in its brief.
Flyers and Slides
Section 8(c) of the Act establishes that:
The expressing of any views, argument, or opinion, or the dis-
semination thereof, whether in written, printed, graphic, or
visual form, shall not constitute or be evidence of an unfair
labor practice under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise of
benefit. 29 U.S.C. § 158.
According to the Supreme Court, this provision establishes
that in the context of an election campaign for union certifica-
tion, an employer can state to employees a prediction, whether
explicit or implied, of the effect of unionization if it is:
[C]arefully phrased on the basis of objective fact to convey an
employer’s belief as to demonstrably probable consequences
beyond his control or to convey a management decision al-
ready arrived at to close the plant in case of unionization. If
there is any implication that an employer may or may not take
action solely on his own initiative for reasons unrelated to
economic necessities and known only to him. The statement
is no longer a reasonable prediction based on available facts
but a threat of retaliation based on misrepresentation and co-
ercion. [NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969).]
Counsel for Respondent contends that only the wording of a
slide or flyer can be considered to determine lawfulness. I find
as described below that the lawfulness of a slide must be taken
in context with Respondent’s unlawful conduct.
In the instant case the credible evidence establishes that
threats, express or implied, of futility of bargaining, or plant
closure, or layoffs and discharges, of losing benefits and wages,
and inevitable strikes, were taking place throughout the Re-
spondent’s intense antiunion campaign. Moreover, most of the
threats took place during Respondent’s slide show meetings,
where the presenters would show a slide and then verbally utter
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1318
clear unlawful threats to establish what the slide really meant.
Its real message, as counsel for the General Counsel puts it so
eloquently, “The power of supervisors’ direct words to employ-
ees, instead of a dry recitation of slide after slide, has a more
powerful, long lasting and coercive effect on employees.” The
same is true for the flyers.
The Board has consistently held that in the context of alleged
threats, in writing or verbal one must consider the background
of other unlawful conduct which represents a significant con-
text for evaluating the lawfulness of an employee’s statements
through slides or flyers. See Mediplex of Danbury, 314 NLRB
470, 471 (1994). See also Southern Pride Catfish, 331 NLRB
618, 619 (2002), and Reno Hilton, supra. In Mediplex, the
Board stated:
More generally, a significant component in the analysis of an
employer’s remarks to employees which involve protected ac-
tivity is “the context of its labor relations setting,” Gissel, su-
pra, 395 U.S. at 617. In other words, the Board considers the
totality of the relevant circumstances, id., at 589; NLRB v.
Virginia Electric & Power Co., 314 U.S. 469, 477–479
(1941); see also, e.g., Harrison Steel Castings Co., 293 NLRB
1158, 1159 fn. 4 (1989) (a background of other unlawful con-
duct or union animus represents significant context for evalu-
ating the lawfulness of an employer’s statements).
And in Southern Pride, the Board stated:
Moore testified that he had discussed with employees the
“possibility” that the Respondent would close down if the
employees chose the Union. The judge found, and we agree,
that Moore made his statements about the closings of other
facilities after unionization in the context of coercive threats,
and conveyed to employees the message that if they chose the
Union they would lose their jobs.
To consider only the wording of a flyer or slide without oral
or other written statements relating to the slide or flyer would
be totally unrealistic.
The slides counsel for the General Counsel would be viola-
tions are set forth in Joint Exhibits 4 and 6:
J E 4 Slide 3
• If the union wins the election, it simply starts
the bargaining process. Proposals are ex-
changed and negotiated until there is either
an agreement or impasse (deadlock).
• There are many uncertainties with this proc-
ess. The end result may be that you have
fewer or less benefits than you have right
now.
• But one thing is certain. By law, the union
cannot force Valerie Manor to accept a con-
tract, or any proposal, that is not in the facil-
ity’s best interest.
J E 4 Slide 4
THE LAW STATES . . .
“The obligation does not, however, compel either party
to agree to a proposal by the other, nor does it require ei-
ther party to make a concession to the other.”
J E 4 Slide 5
The duty to bargain is only the duty
to talk—not the duty to agree.
There is no obligation
to reach an agreement.
J E 4 Slide 6
Look at what these court
cases say in support of the
National Labor Relations Act.
J E 4 Slide 7
817. For reasons to be stated we hold that while the
Board does have power under the Labor Management Re-
lations Act, 61 Stat. 136, as amended, to require employers
and employees to negotiate, it is without power to compel
a company or a union to agree to any substantive contrac-
tual provision of a collective bargaining agreement.
[sic] vision of their terms. It must be stressed that the
duty to bargain collective does not carry with it the duty to
reach an agreement, because the essence of collec-[sic]
“The Act does not compel agreements between employers[.”]
J E 4 Slide 8
Collective Bargaining Can result in Loss of Benefits
just as surely as an employer may increase benefits,
in bargaining, he may take them away.
J E 4 Slide 11
In view of what the law says,
what might you be will[ing] to give up
at the bargaining table?
J E 4 Slide 12
BENEFITS YOU HAVE NOW
• Vacation
1–4 years of service=2 weeks paid
5–10 years of service=3 weeks paid
10–15 years of service=4 weeks paid
15+ yea[r]s of service=5 weeks paid
• Sick Says[sic]—6 days
• Personal Days—2 days
• Holidays—7 days
• Bereavement—3 days
J E 4 Slide 13
BENEFITS YOU HAVE NOW
• Jury Duty
• Pension/401K—Facility pays 1% annual
W-2 gross earnings
VALERIE MANOR, INC. 1319
• Partial benefit program (Part time employ-
ees)
• No benefit program (higher hourly rate op-
eration)
• Medical Insurance
• Vision Insurance
• Dental Insurance
• Life Insurance
• Short Term Disability
• Shift Differentials
J E 4 Slide 14
BENEFITS YOU HAVE NOW
• Annual Wage Adjustments
—July 2001—2.0%
—January 2002—1.5%
—January 2003—3.5%
—January 2004—2.0%
—January 2005—2.0%
Total—11%
• Recruitment Bonus
• CNA’s Sign On Bonus
• Tuition Reimbursement
• Uniform Discount
• Annual Holiday Party
J E 4 Slide 15
BENEFITS YOU HAVE NOW
• Cookouts
• Holiday Meals
• Personal Life Insurance
• Softball Tournament
• Holiday Gift Certificates
• Gourmet Holiday Chocolates
• Coffee Wednesdays
• Pizza/Bagel/Candy/Sunday passed out dur
ing certain seasons
• Employee Suggestion Box
J E 4 Slide 16
You know what you have now . . .
So what kind of things may be on
the union’s agenda for a labor
contract?
J E 4 Slide 33
When an Employee who has left the bargaining unit returns to
a bargaining unit job, the Employer will resume deductions.
This provision, however, shall not relieve any Employee of
the obligation to make the required dues and initiation pay-
ment pursuant to the Union by-laws in order to remain in
good standing.
J E 4 Slide 34
What could a union bargain
away in order to get these
clauses in its contracts?
J E 4 Slide 51
Think about it . . .
Are you ready to pay union dues
in exchange for possibly the
same, or less, in wages and
benefits than you already have?
J E 4 Slide 52
And while bargaining goes on . . .
What about future changes in
wage rates?
J E 4 Slide 53
Future wage rates and benefit
changes await the result of the
bargaining process.
I find each individual slide or slides put together merely ex-
press how the collective bargaining process works, what you
can gain in benefits and what you could lose, that you would
have to pay union dues for the union’s services in representa-
tion, and that future benefit and wage rate changes assist the
result of the bargaining. I find no threats or other unfair labor
practices in these slides.
J E 4 Slide 54
How long does the bargaining process take?
Weeks?
Months?
Years?
How long could you wait?
I find this slide is a threat of futility. See Airtex, 308 NLRB
1135 fn. 2 (1992).
Given the slide coupled with unlawful threats in violation of
Section 8(a)(1) see Casa Duramax Inc., supra, and Mediplex of
Danbury, Southern Pride Catfish, supra, and Reno Hilton Re-
sorts Corp., 319 NLRB 1154–1156 (1995). I find a violation of
Section 8(a)(1).
The General Counsel alleges that during “Round Three” of
the slide shows Respondent presented employees the following
slides, which counsel for the General Counsel contends to be
violative of Section 8(a)(1).
J E 6 Slide 75
We informed you earlier that
first contracts can take a long
time to agree upon. What
happens if the union and Valerie
Manor cannot reach an agreement?
J E 6 Slide 76
STRIKE!
J E 6 Slide 81
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1320
Nursing Homes Claim Sabotage
Hartford Courant 3/30/01
Records allege incidents of sabotage inside a number of facili-
ties where union members walked off the job on March 20.
—Critical ID bracelets removed from patients’ wrists
—Photos removed from Alzheimer’s unit
—”Do Not Resuscitate” stickers removed
—Door to oxygen tank room glued shut
—Feces smeared on a bathroom wall
—Chocolate given to diabetic residents
Residents at the Olympus Home in Waterbury allege they
were told they would be “poisoned, killed, beaten, given the
wrong meds, not receive personal care and would not have
their laundry done by the replacement workers.”
J E 6 Slide 82
[Newspaper article—headline reads]
Second Nursing Home to Close
J E 6 Slide 86
If there is a strike, will you still
have your job?
Slides 75 and 76 arguably make the sort of prediction that
the Board and the Supreme Court have held constitutes an
unlawful threat. The sequence of slides states that if the Re-
spondent and the union cannot come to an agreement in nego-
tiations, there will be a strike. Note the bold attention of
“STRIKE” indicates there will be a strike. This message is
similar to one the employer in Gissel conveyed by means of a
pamphlet. The pamphlet reminded employees of a past strike at
the company. The pamphlet stated that the employees, in con-
sidering unionization, were “forgetting the lessons of the past.”
Id. at 587–588. The employer also circulated a pamphlet that
read, “Do you want another 13-week strike?” Id. at 588. The
pamphlet went on, “We have no hopes that the Teamsters Un-
ion Bosses will not call a strike.” Id. The Court held that it
was reasonable for the Board to find that these and similar
statements constituted threats. Id. at 619. It pointed out that
the employer had no objective support for the assumption that
the union, which had not even begun to bargain, would have to
go on strike to achieve its goal. Id.
The Board has followed this reasoning in finding 8(a)(1) vio-
lations in cases like L.S.F. Transportation, Inc., 330 NLRB
1054 (2000). A manager told employees that if they joined a
union he would replace them when they went on strike. Id. at
1066. The Board held that because the employer used the term
“when,” rather than “if,” the employees could reasonably have
inferred the employer was a threat is to act in such a way that
would encourage a strike. Id. While the statement might be
ambiguous, the Board resolved this ambiguity against the man-
ager. Id.
By contrast, in General Electric Co., 332 NLRB 919 (2000),
the employer circulated a flyer which, according to the Board,
more clearly indicated that a strike would be a possibility,
rather than an inevitability. Id. at 919. The flyer read:
THE REAL QUESTION
You know of the union’s position on 12-hour shifts,
wages, benefits. . . .
You know the company’s position on these very same
issues. . . .
The company and the union organizers are MILES
APART!
Are you willing to see this Site possibly become an-
other victim in long, bitter negotiations?
VOTE NO! [Emphasis in original.]
The Board had first agreed with the ALJ that the above lan-
guage was threatening but changed its ruling after the United
States Court of Appeals for the District of Columbia Circuit
disagreed and remanded the case. Id. Quoting the court, the
Board noted that “the judge erred by converting a statement of
possibility into a statement of certainty.” Id. Thus, where man-
agement discusses strikes in the context of a union election, it
needs to make clear that strikes are merely a possibility, not a
certainty.
The Board’s most recent decision invoking the Supreme
Court’s Gissel standard is Stanadyne Automotive Corp., 345
NLRB 85 (2004). In that case, the employer held meetings in
which the CEO and two managers spoke about, among other
issues, the potential for strikes and possible consequences of
such strikes if the employees were to vote to join a union. Id. at
3–6. The Board concluded that the managers’ statements did
not constitute threats. Id. at 5–6. The employer did not imply
that a strike was inevitable, since it mentioned that there was an
option apart from a strike—union could accept management’s
offer. Id. at 3. Moreover, the official who made this statement
qualified it by saying that these were the only two options that
he knew of, implying that perhaps other options—options that
he simply did not know of—existed as well. Id.
By contrast, in the instant case, slide 76 gives an unqualified
answer to the question of what would occur if there were no
agreement: There would be a strike. The slides fail the Gissel
test because that they present no objective facts to support the
assertion that the only option if the union and management fail
to come to an agreement is a strike. As the managers in
Stanadyne admitted, going on strike is not the only option in
such a case; the union could, after all, choose to accept the
management offer, even if it does not agree that the offer is fair.
One might argue that a union will not, by definition, accept an
offer that it has not agreed to. However, this is the kind of
ambiguity that, as per L.S.F. Transportation, Inc., should be
resolved against the party that made the questionable statement.
It would be reasonable for employees to infer from the se-
quence of slides 75 and 76 that a strike is the only option if the
union and management cannot reach agreement during negotia-
tions. And, since the Respondent did not present objective
considerations to support this prediction, it would be reasonable
for employees to conclude that the Respondent was not merely
stating a possible outcome of negotiations but, rather, threaten-
ing employees with the spectre of a forced strike caused by
surface bargaining on the part of the Respondent.
VALERIE MANOR, INC. 1321
Given this threat of a forced strike, in slides 75 and 76, in
light of Gissel, take on a cast that also constitutes a threat. The
Court wrote in Gissel:
[The employer’s] speeches, pamphlets, leaflets, and letters
conveyed the following message . . . that the ‘strike-happy’
union would in all likelihood have to obtain it potentially un-
reasonable demands by striking, the probable result of which
would be a plant shutdown, as the past history of labor rela-
tions in the area indicated . . . the Board could reasonably
conclude that the intended and understood import of that mes-
sage was not to predict that unionization would inevitably
cause the plant to close but to threaten to throw employees out
of work regardless of the economic realities.
Thus, I find slides 75 and 76 constitute a threat to force em-
ployees to strike and are in violation of Section 8(a)(1).
The Flyers
Counsel for the General Counsel argues in her brief that five
flyers distributed throughout this intense antiunion campaign
are violative of Section 8(a)(1) of the Act.
The first flyer is entitled “Brookview Facts.” As set forth
above, Brookview is a nursing home managed by Athena and
located in Torrington, the same town as Respondent.
1. Brookview facts
The flyers state that, “Brookview Employees DID NOT give
the new administrator one year to resolve issues, nor did they
give Athena a second chance.” It then describes how the cen-
sus at Brookview was down since the Union organized Brook-
view and that one unit had been closed. It stated, “Anyone can
spin what the reason for the unit closure is, but THE FACT is
there are only 125 Residents in a facility that is a 180 bed facil-
ity! Please give DENISE a chance and give Athena a second
chance.”
With respect to the major portion of the flyer, it clearly in-
tends to establish that what happened at Brookview, organized
by the Union, will happen at Respondent’s facility. As set forth
above, I do not find this portion of the flyer to be in violation of
Section 8(a)(1). See Stanadyne, supra.
However, with respect to that portion of the flyer which
states: “please give DENISE a chance, and give Athena a sec-
ond chance.” I find that portion to be an implied promise of
benefits in violation of Section 8(a)(1). See Reno Hilton, Toys-
R-Us, Advanced Mining Group, and Keystone Lamp, supra.
Counsel for the General Counsel contends that a flyer enti-
tled “collective bargaining” is an implied threat of loss of jobs
and/or benefits:
2. Collective bargaining
The second flyer states in bold print next to a pair of
rolling dice:
“Nothing to lose? NO . . . You have everything to
lose.”
Everything goes on the bargaining table, not just what
you hope to gain, but what you have now as well.
Everything is negotiable.
There is absolutely no law that prohibits Valerie
Manor from offering less than what the employees cur-
rently have, and absolutely no law which prohibits the un-
ion from accepting an offer of less. It happens all the
time. It’s called collective bargaining and it’s a two-way
street. Wages and benefits could go up or down. No one
knows, least of all the union pushers.
Are you ready to accept the risks of Collective Bar-
gaining?
See Liquitane Corp., 298 NLRB 292 (1990).
I find no violation as to that part of the flyer.
However, I do find the phrase in the bold lettering “Nothing
To Lose? NO . . . You have everything to lose.” as a threat of
unspecified reprisal.
In L.W.D., Inc., 335 NLRB 241 (2001), 76 Fed. Appx. 73
(6th Cir. 2003), a letter went out to employees stated in part:
We intend to give you many facts and opinions about unions
during the next several weeks. This is a very serious matter
for you and your families, so please thing [sic] about it care-
fully. Then, on the day of the election, vote as if your job de-
pends on it.
The Board found the phrase “to vote as if your job depended
on it” constituted an unlawful threat linking the election out-
come with job security. See also Casa Duramax, Inc., 307
NLRB 213, 218 (1992). In Engineered Comfort Systems, 346
NLRB 661 (2006). The Board held that a threat “I can’t be-
lieve you’re going Union. You want to bring the whole fucking
world down with you,” to be a threat in violation of Section
8(a)(1). Accordingly, I find Respondent’s flyer, on its face
constitute an implied threat of job loss and other unspecified
reprisals, and a violation of Section 8(a)(1).
Moreover, taken together with express and implied threats of
loss of jobs and benefits throughout the entire election, the
phrase “Nothing to lose? You have everything to lose.” is a
clear threat to loss of jobs and/or benefits which I find to be a
violation of Section 8(a)(1). See Mediflex of Danbury and
Southern Pride Catfish, supra, and Reno Hilton Resorts Corp.,
319 NLRB 1154, 1154–1156 (1995).
3. Warranty coupons
During the course of the election campaign “Warranty Cou-
pons” were created by Respondent and directed employees to
get “guarantees” in writing from the Union. Each coupon was
a guarantee that employees were to ask the Union to sign. One
guarantee coupon said, “My union will pay for the support of
you and your family and all of your family’s expenses if you
are thrown out of work because of union strikes.” Of course,
the clear message was that the Union would not be able to sup-
port the employee and his or her family if the Union called a
strike and replacements were hired. I find the statement de-
scribed in the coupon is an implied threat of job loss in the
event of a strike. See Casa Duramax Inc., supra. I also find
that Respondent’s implied threat is also reinforced by Respon-
dents antiunion campaign. See Mediflex of Danbury, Southern
Pride Catfish, and Reno Hilton Resorts Corp., supra.
Respondent’s sole contention is that the warranty “lawfully
asks employees whether the Union will pay their expenses if a
strike is called.” There is no discussion or cases cited by Re-
spondent to support its contention.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1322
Accordingly, I find the coupon to be a threat to force a strike
and for a threat to lose benefits in violation of Section 8(a)(1).
4. Kamikaze election
A flyer was distributed to all employees shortly before the
election. The entire flyer states:
A kamikaze was a WW II Japanese pilot whose sole
purpose was to make a suicidal crash into his target.
A kamikaze was willing to die in his effort to some-
how injure the enemy.
A kamikaze obviously had no concern about the future
of himself or his family.
Out of anger and frustration, some Valerie Manor em-
ployees seem to be taking this same attitude. But Valerie
Manor’s future is your future.
Don’t be a kamikaze . . . Vote NO Union
The counsel for the General Counsel contends the flyer is a
threat of unspecified reprisals and cites Gilbert Woods Prod-
ucts, 170 NLRB 1049, 1060, 1061 (1968). In Gilbert Woods, a
speech to assembled employees Gilbert stated:
When you walk into that voting booth on March 10. . . .
That voting is kind of like a man jumping out of a building to
commit suicide. In that split second when he jumps out of the
window he starts on a course from which he can’t turn back
. . . . The same thing can happen to you when you vote in the
election. . . .
The Board further stated:
It is also clear that coupling their voting for a union to
a man committing suicide was intended to coerce employ-
ees into voting against the Union.
The Board found these statements in violation of Sec-
tion 8(a)(1).
In Reno Hilton, supra:
The judge found that Hughes’ communication was not
unlawful. He cited Airporter Inn Hotel, 215 NLRB 824
(1974), in which the Board found that the employer’s
communication, which contained language similar to the
second paragraph of Hughes’ memo, was lawful.
We disagree with the judge’s conclusion. The Board
has held that although employers’ warnings of “serious
harm” that may befall employees who choose union repre-
sentation are not unlawful in and of themselves, they may
be unlawfully coercive if uttered in a context of other un-
fair labor practices that “impart a coercive overtone” to the
statements. Community Cash Stores, 238 NLRB 265, 269
(1978), citing Greensboro Hosiery Mills, 162 NLRB 1275,
1276 (1967), enf. denied in relevant part 398 F.2d 414 (4th
Cir. 1968). We find such a context here. The Respondent
violated the Act repeatedly. Its unlawful acts included
threatening an employee that the hotel would close before
the Union could come in, stating that union supporters
could be fired, promising to grant benefits if the Union
was rejected, threatening to withhold or take away benefits
if the Union was certified, granting benefits during the un-
ion organizing campaign, and indicating that it would re-
ject any union demands in order to show how “stupid” un-
ions are. The coercive effect of Hughes’ memo is appar-
ent when it is read against the backdrop of those unfair la-
bor practices, which give both specificity and force to
Hughes’ otherwise vague assertions that the Union would
not benefit employees, could hurt them seriously, and
might jeopardize their jobs.
In both Reno Hilton and Gilbert, the Board noted strong anti-
union campaigns with lots of 8(a)(1) violations.
I find Respondent’s flyer is a threat of unspecified reprisals.
5. Unauthorized employer petition
In support of the Union, employees signed a petition, stating:
“We’re Voting 1199 ‘YES’ pm Thursday April 14th.” The
union petition states that the employees who signed the peti-
tion, using their first and last names support the Union and are
voting “YES.” Underneath the union petition three rows of
employee signatures appear, 25 employees in each row.
The day before the election, Respondent posted its own pur-
ported petition. Respondent’s “petition” set forth that the em-
ployees who signed their leaflet, “be sure your voice is heard
. . . . Vote Thursday!! For the majority of the names on this list
who have rethought their decision, we want to say THANK
YOU for giving Denise ONE chance. Vote NO!” Respon-
dent’s leaflet had the same three rows of employee signatures
appearing on the Union “Vote Yes” petition superimposed
underneath their leaflet. Respondent admitted that without the
consent of the employees, it took their signatures from the Un-
ion “Vote Yes” petition and reproduced them on the Respon-
dent’s “Vote No” petition.
The General Counsel contends that Respondent’s failure to
receive the employees authorization or consent to use their
signatures on Respondent’s flyer is a violation of Section
8(a)(1) citing Sony Corp. of America, 313 NLRB 420, 428
(1993), wherein the Board stated:
Thus, without consent, unit employees had their pictures used
to give seeming approval to the Company’s antiunion mes-
sage. The employees were not asked whether they wished to
subscribe to the antiunion message and were presented with a
fait accompli after the video was shown to them and to the
other unit employees. In essence, the tape was the visual
equivalent of placing the employees’ names on a written anti-
union document and circulating it to all the other unit mem-
bers. The unit employees here had the right to assist and sup-
port the Union if they so desired; Respondent interfered with
that right by using their pictures without their consent to con-
vey an antiunion message.
The Board found similar violations of Section 8(a)(1) in Sony
and L.W.D., Inc., supra. See also Allegheny Ludlum Corp., 333
NLRB 734, 745 part 5 (2001).
Respondent contends that the employees’ use of their signa-
ture without consent on their flyer was simply intended and
understood as a parody of the Union’s poster. I find that any
slide, or flyer that was shown to or distributed to employees
was well calculated for employees to abandon support for the
Union and to cast their vote for Respondent. I find such con-
VALERIE MANOR, INC. 1323
tention by Respondent that the flyer was a “parody” is certainly
without merit.
Respondent also contends that there was no testimony that
was offered by the General Counsel to prove employees have
given their consent for the Union’s flyer. I find such contention
irrelevant and ludicrous.
Accordingly, I find that Respondent admittedly did not get
the consent of employees on its flyer, and accordingly find a
violation of Section 8(a)(1).
Petitioner’s Objection
The petitioning union filed objections to the conduct as it re-
lates setting the election aside. These objections were much the
same as the allegations set forth in the complaint.
I find that Respondent threatened its employees with loss of
benefits, loss of jobs, threats that strikes would take place and
threats of unspecified reprisals. These threats were made dur-
ing slide show meetings, other meetings with employees, all of
which required employee attendance. In addition, the employ-
ees were subjected to unlawful slides during these meetings.
Additionally, Respondent distributed unlawful flyers to all
employees. Further still, employees were threatened individu-
ally with unlawful reprisals. I find these threats sufficient to
require the election to be set aside. See Alpha Cellulose Corp.,
265 NLRB 177, 178, 179 (1982).
In view of the multitude of threats throughout the election
campaign, I find it unnecessary to rule on two objections not
covered by the complaint. One objection was the day before
the election, April 13, the alleged presence of a security guard
parked by the main entrance of Respondent’s facility gave
some employees the feeling that the security was present be-
cause there was going to be violence. The second objection
was that during the election a supervisor escorted an employee
to the room where the election was taking place and opened the
door so that the employee could enter.
I find it is unnecessary to decide these objections.
Accordingly, I conclude that the election should be set aside.
CONCLUSIONS OF LAW
1. Respondent Valerie Manor, Inc. is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. New England Health Care Employees Union, District
1199 SEIU is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent violated voluminous allegations of Section
8(a)(1) described below in the Order.
REMEDY
With respect to the voluminous 8(a)(1) violations, I shall
recommend an Order requiring Respondent to cease and desist
the conduct described below.
A petition for an election was filed by the Union on March 7,
2005, and an election was held on April 14, 2005. The Union
lost the election by a tally of ballots of 57 to 51.
Given the voluminous 8(a)(1) violations and the closeness of
the election, I recommend a second election be held at an ap-
propriate time.
[Recommended Order omitted from publication.]