NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,444, VALLEY SPECIAL NEEDS PROGRAM, INC. ta VALLEY COMMUNITY SERVICES and SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 585, AFL-CIO., (Aug. 29, 1994), National Labor Relations Board, (Aug 29, 1994)

VALLEY SPECIAL NEEDS PROGRAM, INC. ta VALLEY COMMUNITY SERVICES and SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 585, AFL-CIO.

314 NLRB No. 137.Case No. 6-CA-24051 and -24246. August 29, 1994 Robert M. Schwarzbart, Administrative Law Judge..

Before Gould, Stephens and Browning.

Barton A. Meyers and Dalia Belinkoff, for General Counsel. Donald J. Andrykovitch (Cohen & Grisby), Pittsburgh, Pennsylvania, for Respondent. John Haer and Linda Wambaugh, Pittsburgh, Pennsylvania, for Union.

Promise of Benefits--Interference--Undermining Union Support.--By soliciting grievances and making promises of benefits in order to undermine employee support for a union during the union’s organizing campaign, an employer unlawfully interfered with the employees’ right to select a bargaining representative. The employer failed to prove a pattern that it had established those practices in the past and admitted that it did not normally speak directly with employees. Section 8(a)(1).

Back reference: ¶3800.667.

Surveillance--Creating Impression of--Supervisor’s Statements.--A supervisor’s statement made to an employee during a union organizing campaign, to the effect that he would like to find out who was in charge of the union’s effort at another location, unlawfully created the impression that employees’ union activities were under surveillance. Employees would reasonably have been led to conclude from the employer’s comment that it was attempting to discover the identities of union supporters and that certain individuals had already been identified. Section 8(a)(1).

Back reference: ¶3740.035.

Bargaining Orders--Interference--Few Unit Members Affected.--The NLRB determined that an order requiring an employer to bargain with a union was not warranted because, despite the fact that the employer committed several unfair labor practices during a union organizing campaign, only a small percentage of unit employees were affected. The employer maintained numerous facilities that were widely scattered and the unlawful acts did not affect a significant number of employees. Section 10(c).

Back reference: ¶5315.3294.

From Text of Board’s Decision

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings as modified [1] and conclusions as modified [2] and to adopt the recommended Order as modified.

1. The General Counsel excepts to the judge’s finding that the Respondent did not violate Section 8(a)(1) of the Act by soliciting grievances and making promises of benefits in order to undermine support for the Union. We find merit to the exception.

The record shows that the Respondent learned of its employee’s union activities on an unspecified date in June 1991. On September 26, 1991, the Union demanded recognition and also filed a petition for an election. On November 1, 1991, the petition was withdrawn.

According to Executive Director Celeste Emrick, she and other managers met with employees at two houses from August on mid-October 1991, in biweekly meetings. [3] At the first meeting, Emrick apologized for the problems the Respondent was experiencing in providing bonus money and meeting the payroll in August. Emrick reminded employees that the Respondent had experienced similar payroll problems in the previous year. After explaining where the Respondent’s funding came from, she expressed appreciation for the employees’ work, asked for questions, asked what problems the employees were having with delayed paychecks, and asked for suggestions of ways to cut costs and raise funds. Employee Cheryl Smith and other employees brought up complaints such as the disparate treatment in the assignment of overtime, and Emrick promised to look into them. At the end of the meeting Emrick said she would update them on the things that were discussed.

Emrick conducted subsequent meetings in similar fashion and gave the employees progress reports on the topics previously discussed. At one meeting, Emrick asked employees about their problems with health insurance and delayed payments. Emrick asked whether anyone needed any type of individual assistance until they received their paychecks, such as assistance in calling mortgage companies and landlords. At another meeting, she asked if employee complaints had been resolved. Employee Ruth King stated that her complaint about patients being allowed to attend church had been addressed. Employee Linda Christner asked about insurance claims, and Emrick said the Respondent was taking care of them. At one meeting, Emrick told employees that the payroll would be met. At the end of each meeting, Emrick asked the employees if they wanted to meet again.

The judge credited Emrick’s claim that the meetings were called to discuss serious economic problems and found that the problems discussed were related to or incidental to her questions about delayed paychecks. The judge concluded that Emrick’s conduct did not violate the Act.

We disagree with the judge. It is well settled that when an employer, who has not previously had a practice of soliciting employee grievances or complaints, suddenly embarks on such a course during an organizational campaign, the Board may find that the employer is implicitly promising to correct those inequities discovered as a result of the inquiries, thereby leading employees to believe that the combined program of inquiry and correction will make collective action unnecessary. See Reliance Electric Corp., [1971 CCH NLRB ¶23,091] 191 NLRB 44, 46, (1971), enfd, [67 LC ¶12,571] 457 F.2d 503 (6th Cir. 19722).

We find that Emrick, the Respondent’s top official, at meetings coinciding with the rise and fall of the Union’s organizing campaign, elicited questions and complaints from the employees, promised to look into some complaints (such as the discriminatory assignment of overtime), and promised that fiscal problems were being attacked and that insurance concerns would be redressed. [4]

The Respondent does not contend, nor does the record establish, that the Respondent had a previous practice of holding such meeting and soliciting grievances, even though the claimed focus for the meetings--the Respondent’s difficulty in meeting its payroll--had also occurred during the prior year. In fact, Emrick admitted that she normally did not speak to employees directly and that she held the meetings because employees had complained about not receiving an adequate response to their complaint by lower level management.

We therefore find, based on Emrick’s testimony, that Emrick unlawfully solicited grievances and promised benefits to employees in order to undermine the employees’ support for the Union. Ring Can Corp., [1991-92 CCH NLRB ¶16,704] 303 NLRB 353 (1991); Blue Grass Industries, [1987-88 CCH NLRB ¶19,215] 287 NLRB 274 (1987).

2. The General Counsel excepts to the judge’s failure to find that the Respondent engaged in conduct creating the impression of surveillance in violation of Section 8(a)(1) of the Act. We find merit to the exception.

In mid-August, Michael Sauritch, a program assistant at the Belle Vernon house, volunteered to Program Manager Curt McClain that he had attend a recent union meeting. About 2 weeks later, McClain told Sauritch that “McCarthy [East Operations Director Michael McCarthy] had been down here today and he was asking around to see who was the head of the Union at the Belle Vernon house” and that McCarthy mentioned a few names, including employees Sherri Zelmore and Lois Sauritch (Michael Sauritch’s mother). McClain made a similar statement in early August to Lois Sauritch. Finally, McClain in late August initiated a discussion with employee Patrick Sauritch about the Union, telling him he knew about a union meeting and that McCarthy was trying to find out who was backing the Union.

The judge did not specifically address the General Counsel’s contention that McClain’s statements to the Sauritches created an unlawful impression of surveillance. We find that McClain communicated to employees that the Respondent, through its director, was attempting to ascertain the identities of union supporters and that certain individuals had already been identified. We find that such statements reasonably would lead the employees to believe that their activities were under surveillance. Accordingly, we find that McClain’s statements violated Section 8(a)(1) of the Act. Matheson Fast Freight, [1988-89 CCH NLRB ¶15,893] 297 NLRB 63, 68 (1989).

3. The General Counsel also excepts to the judge’s failure to issue a bargaining order under NLRB v. Gissel Packing Co., [60 LC ¶10,150] 395 U.S. 575 (1969). We find no merit to the exception.

In agreeing with the judge that a bargaining order is unwarranted, [5] we particularly rely on the judge’s finding that the unfair labor practices “directly reached but a small percentage of the nearly 140 unit employees in but a few of the Respondent’s widely-spread facilities.” [6] We recognize that we have found merit in some 8(a)(1) complaint allegations that the judge recommended be dismissed, and we have found it unnecessary to pass on whether certain additional 8(a)(1) violations were committed. Based on our review of the record, however, we believe that even if all the 8(a)(1) violations the General Counsel seeks were here found, the number of facilities involved and the percentage of the unit affected by the unfair labor practices would not increase in any significant manner. [7] We therefore find that even if we granted the General Counsel’s 8(a)(1) exceptions, a bargaining order would be unwarranted.