Divi Carina Bay Resort

National Labor Relations Board - Board Decisions

Dec 29, 2010

356 N.L.R.B. 316 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 316
Grapetree Shores, Inc. d/b/a Divi Carina Bay Resort
and Virgin Islands Workers Union. Case 24–
CA–10700
December 29, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
On February 8, 2008, Administrative Law Judge Paul
Bogas issued the attached decision.1 The Respondent
filed exceptions, a supporting brief, and a reply brief.
The General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs2 and has decided to
affirm the judge’s rulings, findings,3 and conclusions and
to adopt the recommended Order as modified.4
The judge found that the Respondent violated Section
8(a)(1) of the Act by announcing an improved 401(k)
plan 2 days before a representation election among its
production and maintenance employees. In its excep-
tions, the Respondent argues, among other things, that its
announcement was lawful under the Board’s decision in
Weather Shield of Connecticut, 300 NLRB 93 (1990).
We disagree.
In Weather Shield, the employer announced a new
pension plan 1 day before a representation election. The
Board found no violation because the details of the pen-
sion plan were already known and the plan was to be-
come effective on a date certain, shortly after the elec-
1 This case was originally consolidated with a related representation
case, Case 24–RC–8566. In an unpublished Decision, Order, and Di-
rection, dated July 30, 2008, the Board severed and remanded that case
to the Regional Director for Region 24 for further processing, which
resulted in the Union’s certification as the exclusive collective-
bargaining representative of the unit employees. See 355 NLRB 1169
(2010). The Respondent sought to test that certification by refusing to
bargain. On December 7, 2010, the Board granted the General Coun-
sel’s Motion for Summary Judgment in Case 24–CA–11101. 356
NLRB 273. Accordingly, only Case 24–CA–10700 is now before us.
2 We deny the Respondent’s request for oral argument, as the record,
exceptions, and briefs adequately present the issues and the positions of
the parties.
3 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
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
4 We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). For the reasons stated in his dissenting opinion in J. Picini
Flooring, Member Hayes would not require electronic distribution of
the notice.
tion. In those circumstances, the Board concluded that
the employer’s announcement was more akin to the per-
missible publicizing of an existing benefit than to the
announcement of a new or future benefit. Id. at 96–97.
Here, by contrast, the Respondent had neither estab-
lished the details of the improved 401(k) plan nor settled
on a date for implementation before announcing it. Even
by the date of the hearing, 4 months later, the Respond-
ent had yet to finalize or implement the improved plan.
Given these facts, the Respondent’s reliance on Weather
Shield is misplaced. See Audubon Regional Medical
Center, 331 NLRB 374, 374 fn. 5 (2000) (distinguishing
Weather Shield and finding the employer’s election-eve
announcement of new benefits unlawful, where those
benefits were conditioned on future action by the em-
ployer and critical details, including their effective date,
were not set until months later); KOFY TV-20, 332
NLRB 771, 792–793 (2000) (distinguishing Weather
Shield and finding the employer’s preelection an-
nouncement of a new 401(k) benefit unlawful because
the employer was still negotiating with providers at the
time and did not select a provider until 2 months later).5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Grapetree Shores, Inc. d/b/a Divi Carina Bay Resort,
Christiansted, St. Croix, U.S. Virgin Islands, its officers,
agents, successors, and assigns, shall take the action set
forth in the recommended Order as modified.
Substitute the following for paragraph 2(a).
“(a) Within 14 days after service by the Region, post at
its Christiansted, St. Croix, U.S. Virgin Islands facility,
copies of the attached notice marked “Appendix.”18 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 24, after being signed by the Respond-
5 In affirming the judge’s finding of a violation, we rely, for the rea-
sons explained above and in the judge’s decision, on the fact that the
improved 401(k) plan was not an existing benefit on the date of the
Respondent’s announcement. We therefore find it unnecessary to rely
on the additional reasons cited by the judge, including his finding that
the Respondent never informed employees about the new benefits
before the critical period when it had reached earlier “milestones” in
the process of negotiating them, and the lack of evidence showing that
the Respondent had made such announcements immediately after gov-
ernmental approval of earlier agreements providing for new benefits.
Member Hayes would find that the Respondent’s announcement of a
pending improved benefit, made possible by recently obtained Gov-
ernment approval, was protected speech within the meaning of Sec.
8(c), notwithstanding that all details of the 401(k) plan were not final-
ized at the time of the announcement. He acknowledges that the major-
ity’s finding of a violation is supported by Board precedent, which he
would either overrule, if necessary, or decline to extend to the facts
presented here.
356 NLRB No. 60

DIVI CARINA BAY RESORT 317
ent’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. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since July 11, 2007.”

Jose L. Ortiz, Esq., for the General Counsel.
Charles E. Engeman, Esq. (Ogletree, Deakins, Nash, Smoak &
Steward, LLC), of St. Thomas, U.S. Virgin Islands, for the
Respondent.
Charlesworth Nicholas, of Christiansted, St. Croix, U.S. Virgin
Islands, for the Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. I heard these con-
solidated unfair labor practice and representation cases in
Christiansted, St. Croix, U.S. Virgin Islands, on November 6,
2007. The Virgin Island Workers Union (the Union) filed the
charge on July 12, 2007,1 regarding alleged unfair labor prac-
tices by Grapetree Shores, Inc. d/b/a Divi Carina Bay Resort
(the Respondent) in advance of a July 13 representation elec-
tion. Seven of the ballots submitted in that election were chal-
lenged, and that number was sufficient to affect the results of
the election.2 Both the Union and the Respondent filed timely
objections to preelection conduct. On September 19, the Re-
gional Director for Region 24 issued a report and recommenda-
tion on challenged ballots and objections which directed that a
hearing be conducted regarding two of the challenged ballots,
two of the Union’s objections, and four of the Respondent’s
objections. On September 26, the Regional Director issued a
complaint order consolidating the unfair labor practice and
representation cases, and notice of hearing. The Regional Di-
rector issued a supplemental report on October 11, which di-
rected that another one of the Respondent’s objections be con-
solidated for hearing with the other outstanding issues. The
Respondent filed a timely answer in which it denied commit-
ting any of the unfair labor practices alleged in the complaint.
1 All dates are in 2007, unless otherwise indicated.
2 Of the 87 unchallenged ballots, 45 were cast in favor of representa-
tion by the Union, and 42 were cast against representation by the Un-
ion.
The unfair labor practices complaint alleges that the Re-
spondent violated Section 8(a)(1) of the National Labor Rela-
tions Act (the Act) on or about July 11 by: impliedly threaten-
ing its employees with reprisals if the Union was voted in, and
announcing the implementation of a 401(k) plan just prior to
the representation election. The two union objections being
adjudicated in this proceeding are based on the same conduct
alleged in the complaint. As for the Respondent’s objections,
two are based on the allegation that, in the days before the elec-
tion, an employee who acted as the Union’s election observer
told banquet department employees that they were the reason
the Union lost a previous election and that if the Union did not
win the upcoming election “you will see what happens.” Two
other objections made by the Respondent are based on the alle-
gation that, on the day before the election, the same employee,
while in the employee dining room, stated, “I does thank God I
don’t come to work with a gun because I will kill a lot of peo-
ple and they will be sorry.” The Respondent withdrew its fifth
objection after completion of the trial. (R. Br. at 11–12.) One
of the two challenged ballots is that of Matthew Moore. The
Union challenged that ballot and contends that it should not be
counted because Moore did not begin working until after the
May 27 eligibility date. The other challenged ballot was sub-
mitted by Felicia Dixon. The NLRB agent challenged that
ballot and the Respondent contends that Dixon is ineligible to
vote because she is unable to work due to an injury and has no
reasonable expectation of returning to work.3
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and place of
business in Christiansted, St. Croix, U.S. Virgin Islands, oper-
ates a hotel and casino where it annually derives gross revenues
in excess of $500,000 and purchases and receives goods valued
in excess of $50,000 directly from points outside the U.S. Vir-
gin Islands. The Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor organ-
ization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Respondent operates a resort facility that has 140 to 150
employees. On June 1, 2007, the Union filed a representation
petition and on July 13, Region 24 of the National Labor Rela-
tions Board (the Board) conducted a secret-ballot election to
3 Five other ballots were challenged by the Union. The parties
agreed, and the Regional Director found, that two of those ballots were
submitted by ineligible voters—Valmy Thomas and Rosa Aponte—and
should not be counted. The Regional Director found that three of the
challenged ballots were submitted by eligible voters—Ellen Henry,
Karen Nystrom, and Linda Obermann—and should be counted.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 318
determine if a unit of approximately 110 employees of the re-
sort4 wished to designate the Union as the unit’s collective-
bargaining representative. The question of whether the final
tally of votes will be for, or against, representation by the Un-
ion is unresolved at this juncture due to challenges to the voting
eligibility of a number of the individuals who cast ballots.
Henry Meets with Martin: Richard Patrick Henry is the gen-
eral manager of the resort. The Respondent admits that he is its
agent and a supervisor. In the days before the election, Henry
talked to employees, both in groups and individually, about the
upcoming election. On July 12, Henry met individually with
Vitalis Martin, a housekeeper who had been working for the
Respondent since February 2000. Henry and Martin had a
good working relationship and had talked on other occasions.
Martin testified that she considered Henry “a very good per-
son.” The July 12 meeting between the two took place while
Martin was at work and no one else was present. Henry asked
Martin whether “everything” was “all right.” Martin answered,
“No.” She told Henry that “[t]he people that are around here,
they treat people too bad, so this time is different with me; I’ll
be going with the Union.” Henry responded, “Vote for the
hotel, everything would be all right.”5 Martin testified that she
had been having problems with Henry over her failure to arrive
at work promptly, and that she believed Henry’s statement that
“everything would be all right” related to those problems. On
the day after the election, the Respondent terminated Martin’s
employment, citing her tardiness as the reason.6
Announcement Regarding 401(k) Plan: On July 11, Henry
gathered employees together during working hours for two
group meetings about the election. One meeting was held at
about 10 a.m. and the other at about 2 p.m. Each lasted approx-
imately 1 hour and was attended by 25 to 30 employees. Henry
understood these to be the last general meetings regarding the
upcoming vote that he would legally be permitted to conduct
prior to the July 13 election.7 At these meetings, Henry urged
the employees to vote in the upcoming election. He also an-
nounced that employees would be receiving enhanced benefits,
4 The unit is defined as “including all full-time and regular part-time
production and maintenance employees, including food and beverage,
kitchen, housekeeping, maintenance, front desk, communications, bell
and guest services, gift shop, activities and grounds; employed by the
Employer at its facility located in St. Croix, U.S. Virgin Islands; ex-
cluding all other employees, office, clerical employees, guards, and
supervisors as defined in the Act.”
5 This is based on the account of Martin. Henry did not have a spe-
cific recollection of meeting with Martin, however, he did state that if
she was at work he would have talked to her about the election. Henry
did not recall telling Martin “vote for the hotel, everything would be all
right,” but did not claim to recall that he had not made the statement.
In the absence of a denial or contrary account from Henry, I accept
Martin’s credible testimony about their exchange.
6 There is no allegation in this case that the Respondent’s termina-
tion of Martin was discriminatory in violation of Sec. 8(a)(3) and (1).
7 The Board prohibits employers and unions from making election
speeches on company time to massed assemblies of employees within
24 hours before the scheduled time for conducting an election. Peer-
less Plywood Co., 107 NLRB 427 (1953); see also Pearson Education,
Inc., 336 NLRB 979 (2001), enfd. 373 F.3d 127 (D.C. Cir. 2004), cert.
denied 543 U.S. 1131 (2005).
including a new 401(k) retirement plan, a $10,000 life insur-
ance policy, a new education reimbursement plan, and im-
proved health insurance. Henry indicated that the new benefits
were connected to an economic development agreement that
the governor of the U.S. Virgin Islands had signed. In addition
to discussing the new benefits at the July 11 group meetings,
Henry did so during individual meetings with employees, in-
cluding during a July 12 meeting with Bernicedeen Bryan, one
of the Respondent’s room attendants.
The record shows that the Respondent had, since 1996 and
1999, been party to economic development agreements with the
Government of the U.S. Virgin Islands, under which the Re-
spondent received favorable tax treatment in exchange for
meeting certain requirements. The 1996 and 1999 agreements
were set to expire in 2006 and 2009 respectively. In order to
obtain an extension of the tax benefits, the Respondent was
required to negotiate a new agreement with the Economic De-
velopment Commission (EDC) of the U.S. Virgin Islands. Any
agreement that was reached between the Respondent and the
EDC was subject to final approval by the governor of the U.S.
Virgin Islands.8 In 2005, the Respondent began the process of
applying for an extension of the tax benefits. A public hearing
regarding the Respondent’s application was held by the EDC
board in February 2006. The Respondent and the EDC board
subsequently reached an agreement, which was then referred to
the EDC executive committee. On August 11, 2006, the EDC
executive committee met regarding the agreement and voted to
grant continued benefits to the Respondent. It is not clear what
happened with the agreement for the next period of approxi-
mately 9 months, but the record shows that, on May 14, 2007,
the EDC forwarded the agreement to the Respondent, asking
that the Respondent sign and return it to the EDC by May 18.
The Respondent signed the agreement, and on June 1, the EDC
chairman transmitted the agreement to the governor with a
recommendation that he approve it.9 On July 10, the governor
approved/signed the agreement. Henry was informed about the
governor’s action on either July 10 or 11, and first obtained a
copy of the document signed by the governor on the morning of
July 11.
The EDC agreement states that the tax benefits “are to com-
mence at the option of the Applicant”—in this case the Re-
spondent—and continue for a “10-year period.” There are
multiple conditions that the Respondent will be required to
meet in exchange for the tax benefits. For example, the Re-
spondent must have at least 75 full-time employees, and resi-
dents of the U.S. Virgin Islands must comprise at least 80 per-
cent of its employees. The agreement also states that, in order
to qualify for the tax benefits, the Respondent is required to
provide employees with a retirement plan, health insurance
benefits, life insurance, and certain vacation and personal day
benefits. The paragraph regarding the retirement plan reads:

8 According to Henry, it was his understanding that the governor had
sometimes rejected such agreements even after the EDC approved
them.
9 June 1 was also the date on which the Union filed its representation
petition.

DIVI CARINA BAY RESORT 319
4. After one year of employment the Applicant will provide
its full time employees with a 401(k) or similar retirement
plan whereby the employer will contribute up to 2 percent of
the employees’ base salary to the plan whether or not the em-
ployees contributes [sic].

Since this language only states that the Respondent will be
required to contribute “up to 2 percent,” and does not set forth a
minimum contribution, it is doubtful that the language of the
agreement actually requires the Respondent to make a contribu-
tion of 2 percent or any other amount. However, Henry testi-
fied to his understanding that the Respondent will be required
to contribute 2 percent. That understanding is lent some cre-
dence by an earlier, January 26, 2007 letter from the Respond-
ent’s attorney to the EDC, which states that the Respondent is
confirming that “[a]fter 1 year of employment, [the Respond-
ent] will make a 2 percent contribution across the board to each
employee’s 401(k) plan . . . whether or not the employee con-
tributes.” On the other hand, that letter predated the agreement
signed by the parties by over 4 months and the record does not
reveal whether the relevant language was modified during that
time.
The record shows that the Respondent’s previous EDC
agreements already provided for the maintenance of a 401(k)
plan benefit, but the Respondent was not required to make any
contributions and did not do so. Despite the Respondent’s July
11 announcement regarding the improved 401(k) benefit, the
Respondent had still not made any contributions at all to em-
ployees’ 401(k) plans as of the time of the trial, 4 months after
the election.10 Henry testified that the Respondent would make
the 2-percent contribution based on employees’ yearend earn-
ings for 2007, but he did not provide a date when this would
occur, other than to say it would be some time before April 15,
2008. The Respondent, he said, was still working with a plan
provider to develop a 401(k) plan that would meet Federal re-
quirements.
At the trial, Henry testified that he had not discussed the new
benefits with employees prior to July 11. He had not, in other
words, discussed those benefits with employees when the EDC
board approved the agreement, when the EDC executive com-
mittee approved it, when the Respondent signed the final
agreement, or when the EDC chairman referred the agreement
to the governor with a recommendation that he sign it. Henry
offered the following explanation for his decision to announce
the yet-to-be-finalized benefits to employees during the July 11
meetings:

I felt it was important for them to understand all—it was a
new benefit. We were excited to get it, I mean, not only from
the ownership of the property. The ownership was glad be-
cause this extension goes to 2019, which guarantees that we
have these benefits from the government until 2019, so it’s a
great benefit for the ownership of the property. I think it’s al-
so a great benefit for the employees and it’s important for the
employees to be informed and know what’s going on. I could
10 At the time of the trial, the Respondent had also failed to imple-
ment the new life insurance benefits and improved sick days benefit,
but had implemented the educational reimbursement plan.
not announce it before I got the governor’s signature. Or I felt
very uncomfortable. I mean, it was not a done deal until we
actually had the governor of the Virgin Islands sign it.

Henry did not explain why he thought that it was “important”
that, during the July 11 meeting regarding the upcoming elec-
tion, employees “be informed” about the new benefits. As of
July 11, the Respondent had not set an implementation date for
the new 401(k) benefit and some elements were yet to be final-
ized. As of the trial date, almost 4 months later, most of the
new benefits, including the improved 401(k) plan, had still not
been implemented. Henry did not specifically deny that the
reason he thought it was important that employees be informed
about the benefits on July 11, rather than on a later date close in
time to implementation, was that he hoped hearing about the
new benefits before the July 13 election would influence how
employees voted.
B. Analysis
The General Counsel alleges that the statements Henry made
to Martin during their July 12 meeting constituted an implied
threat of reprisals, and violated Section 8(a)(1). The Respond-
ent counters that Henry’s conversation with Martin was innoc-
uous and that his comment “vote for the hotel, everything will
be all right” was an acceptable statement of opinion. In decid-
ing whether a remark is threatening in violation of Section
8(a)(1), the Board applies the objective standard of whether the
remark would reasonably tend to interfere with the free exercise
of employee rights, and does not look at the motivation behind
the remark, or rely on the success or failure of such coercion.
Joy Recovery Technology Corp., 320 NLRB 356, 365 (1995),
enfd. 134 F.3d 1307 (7th Cir. 1998); Miami Systems Corp., 320
NLRB 71, 71 fn. 4 (1995), affd. in relevant part 111 F.3d 1284
(6th Cir. 1997). When applying this standard, the Board con-
siders the totality of the relevant circumstances. Mediplex of
Danbury, 314 NLRB 470, 471 (1994).
I conclude, based on the totality of the relevant circumstanc-
es, that Henry did not violate Section 8(a)(1) during the July 12
conversation with Martin. On its face, Henry’s comment that
“everything w[ould] be all right” if Martin voted “for the ho-
tel,” was a simple statement of Henry’s opinion regarding the
advisability of rejecting union representation. The General
Counsel’s argument that the statement was coercive and threat-
ening is based on a supposed connection between the statement
and Martin’s pending discipline problems over tardiness.
However, during the conversation Henry made no mention of
tardiness, performance problems, or the possibility of disci-
pline. Nothing in the record leads me to conclude that, during
the preelection period, Martin had a reasonable basis for believ-
ing that such matters were a subtext of Henry’s facially benign
comment. See Miami Systems Corp., 320 NLRB 71 fn. 4 (“The
test to determine interference, restraint, or coercion under Sec.
8(a)(1) is an objective one, and thus it is not dependent on an
employee’s subjective interpretation of a statement.”).
In reaching my conclusion that Henry’s statements were not
threatening, I considered the fact that Henry and Martin had a
good working relationship, had talked on other occasions, and
that Martin considered Henry a “very good man.” Although,
Martin told Henry that she intended to vote for the Union, Mar-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 320
tin disgorged that information of her own accord, not in re-
sponse to questioning by Henry about her union sentiments or
intentions. Under these circumstances, I conclude that the
General Counsel has failed to show that anything Henry said to
Martin on July 12 was objectively coercive.
For the reasons discussed above, I conclude that the com-
plaint allegation that the Respondent violated Section 8(a)(1)
by threatening employees with reprisals should be dismissed.
The General Counsel alleges that the Respondent interfered
with employees’ Section 7 rights in violation of Section 8(a)(1)
when it announced benefits, including an improved 401(k)
plan, on July 11 and 12—during the final 2 days before the
representation election. As stated in Mercy Hospital Mercy
Southwest Hospital, the Board will infer that an employer’s
announcement or grant of benefits during the critical period
before a representation election is coercive, but the employer
may rebut that inference by establishing an explanation other
than the pending election for the timing of the announcement or
bestowal of the benefit. 338 NLRB 545 (2002), citing STAR,
Inc., 337 NLRB 962 (2002); accord: American Red Cross, 324
NLRB 166 fn. 2 (1997), and Southgate Village, Inc., 319
NLRB 916 (1995). Even when the new benefit has been in the
works and its approval shortly before an election is not itself
unlawful, a violation has been found where the respondent
failed to establish a legitimate reason for timing the announce-
ment before the election, rather than waiting to make the an-
nouncement afterwards. American Red Cross, supra at 166 fn.
2, 170–171.
In the instant case, Henry made the announcement regarding
the new 401(k) benefits and other improved benefits during the
critical period preceding the representation election, thus giving
rise to an inference that the timing of the announcement was
coercive. That inference is particularly strong in this case given
that the initial announcement was made only 2 days prior to the
election, at group meetings that the Respondent convened about
the election, and on the last day that such meetings were per-
mitted. On July 12, the day before the election, Henry dis-
cussed the new benefits with one or more employees during
individual meetings. The U.S. Supreme Court has explained
why such “well-timed” announcements of benefits are coercive,
stating:

The danger inherent in well-timed increases in benefits is the
suggestion of a fist inside the velvet glove. Employees are not
likely to miss the inference that the source of benefits now
conferred is also the source from which future benefits must
flow and which may dry up if it is not obliged.

NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964).
Since the Respondent’s announcement of new benefits raises
an inference of unlawful coercion, the Respondent must estab-
lish that it announced the benefits when it did for some reason
other than the upcoming representation election. The Respond-
ent’s burden is “to show that its announcement was reasonably
timed as a sequential step in, and a byproduct of, a chronology
of conception, refinement, preparation, and adoption, so as to
lead one reasonably to conclude that the announcement would
have been forthcoming at the time made even if there were no
union campaign.” Snap-On Tools, Inc., 342 NLRB 5, 14
(2004), quoting Arrow Elastic Corp., 230 NLRB 110, 113
(1977), enfd. 573 F.2d 702 (1st Cir. 1978). The Respondent
attempts to meet its burden by arguing that the reason it an-
nounced the new benefits on July 11 and 12, was that the gov-
ernor had approved the Respondent’s agreement with the EDC
on July 10. Although this contention has some facial appeal,
for the reasons discussed below, I conclude that the Respondent
has failed to show that the governor’s July 10 action would
have caused it to announce the yet-to-be-finalized benefits to
employees on July 11 and 12, if not for the fact that a represen-
tation election was scheduled to take place on July 13.
First, the governor’s approval of the EDC plan was only one
of multiple milestones along the way to implementation of the
new benefits. The Respondent had not notified employees
when, prior to the filing of the representation petition, the pre-
vious milestones were reached. More specifically, the Re-
spondent did not notify employees when the Respondent and
the EDC reached an agreement regarding new employee bene-
fits, or when the EDC executive committee voted to accept that
agreement on August 11, 2006, or when the Respondent signed
the agreement in May 2007, or when the EDC forwarded the
agreement to the governor in June 2007, with a recommenda-
tion for approval. The fact that the Respondent failed to tell
employees about the new benefits it was developing prior to the
critical preelection period undermines its contention that the
timing of the grant of benefits was governed by factors other
than the election. See Dlubak Corp., 307 NLRB 1138, 1161
(1992), enfd. mem. 5 F.3d 1488 (3d Cir. 1993).
The governor’s approval of the EDC agreement was also not
the final milestone along the way to implementation of the
benefits. The Respondent failed to show any reason, other than
the upcoming election, why yet-to-be-finalized benefits had to
be announced immediately after the governor signed the EDC
agreement. Indeed 4 months after the election, the Respondent
had still not implemented the new 401(k) plan, the new life
insurance benefit, or the improved sick leave that Henry chose
to announce on July 11 and 12. At the trial, Henry was unable
to say with specificity when the new 401(k) plan would be
implemented and he conceded that the Respondent was still
working with a plan provider to develop a 401(k) plan that
would meet Federal requirements. Under similar circumstances
the Board, in Audubon Regional Medical Center, found an
employer’s preelection announcement of benefits was coercive
because, inter alia, there was no date certain for the implemen-
tation of the benefit and critical details were still being worked
out. 331 NLRB 374, 374 fn. 5 (2000). Indeed, according to
Henry’s testimony, the first 401(k) contributions by the em-
ployer might not be made until sometime before April 15,
2008—9 months after the preelection announcement. In Snap-
On Tools, Inc., the Board found a violation of Section 8(a)(1)
after the administrative law judge concluded that the employer
“presented no evidence whatsoever justifying the timing of its
announcement 2 days before the election of a change that was
not going to occur until some 9 months in the future.” 342
NLRB at 14. Similarly, the Respondent’s failure to explain
why it decided to announce the yet-to-be-finalized 401(k) bene-
fit on July 11, rather than waiting until a time close to the im-
plementation, undercuts its defense here. The Respondent has
DIVI CARINA BAY RESORT 321
failed “to show that its announcement was reasonably timed as
a sequential step in, and a byproduct of, a chronology of con-
ception, refinement, preparation, and adoption, so as to lead one
reasonably to conclude that the announcement would have been
forthcoming at the time made even if there were no union cam-
paign.” Snap-On Tools, Inc., supra. Rather the record evidence
leads me to conclude that the Respondent rushed to announce
the yet-to-be-finalized benefits on July 11 and 12 in the hopes
that such knowledge would influence how employees voted on
July 13.
The Respondent’s effort to tie the July 11 announcement to
the governor’s approval of the EDC agreement is further un-
dermined by the fact that the language of the agreement did not
actually trigger an obligation on the part of the Respondent to
implement the new benefits. Although the agreement states
that in exchange for tax benefits the Respondent will provide
certain benefits to employees, it also states that the benefits are
“to commence at the option of the” Respondent. Thus, the
agreement signed by the governor, on its face, did not require
the Respondent to do anything unless and until the Respondent
exercised its option to commence tax benefits under the new
agreement. See Arrow Elastic Corp., 230 NLRB at 113 (“It is
not enough that the employer had previously decided on the
grant of such benefits, if in fact it had not become lawfully
committed to provide such benefits prior to the union cam-
paign.”). The record does not show that the Respondent had
exercised that option as of July 11, or even as of the time of the
trial. Assuming that the Respondent had taken action to com-
mence the benefits as of July 11, it is still not clear that the
newly finalized EDC agreement would mandate any significant
change in the 401(k) benefit since the agreement’s language
only requires employer contributions of “up to 2 percent,” and
does not set forth any minimum contribution level. For this
reason I believe that implementation of the 2-percent contribu-
tion to employees’ 401(k) plans is, at best, rather loosely teth-
ered to the EDC agreement.
The Respondent’s contention that it would have made the
announcement of benefits on July 11 based on the governor’s
action regarding the EDC agreement, even absent the upcoming
election, would be more persuasive if the Respondent had
shown that it made such announcements immediately after the
governor approved the EDC agreements that took effect in
1996 and 1999. However, the Respondent presented no such
evidence. Moreover, I consider it telling that Henry never spe-
cifically denied that he accelerated the announcement of the
yet-to-be-finalized benefits in an effort to influence the election
or that the reason he thought it was important that employees be
informed about those benefits on July 11 and 12, was that such
information might encourage employees to vote against union
representation. Given this, and the other evidence discussed
above, I conclude that the Respondent has failed to rebut the
inference that its preelection announcement of the new benefits
was coercive. Indeed, the evidence persuades me that, to the
contrary, the Respondent rushed to announce the improved
401(k) plan benefit, and other new benefits, on July 11 and 12
in the hopes that doing so would influence how employees
voted in the July 13 election.
For the reasons discussed above, I find that the Respondent
interfered with, restrained, and coerced employees in violation
of Section 8(a)(1) of the Act when it announced the new 401(k)
plan benefit during the final 2 days before the scheduled July
13 representation election.
III. CHALLENGED BALLOTS
Two ballot challenges are before me in this consolidated
proceeding. One challenge was made by the Board agent, and
concerns the ballot that was cast by Felicia Dixon. The other
challenge was made by the Union and concerns the ballot cast
by Matthew Moore. For the reasons stated below, I overrule
the objection made to the ballot of Dixon and sustain the objec-
tion made to the ballot of Moore.
A. Felicia Dixon
1. Facts
Dixon began working for the Respondent as a housekeeping
employee on May 9, 2002. She served as an observer for the
Union during a representation election conducted in 2006.
During her tenure with the Respondent, Dixon experienced at
least two work-related injuries that caused her to miss work.
The first was in 2004. Subsequent to that injury, Dixon re-
turned to work, and she worked on and off until June 27, 2006,
when she experienced another work-related injury. She re-
turned to work from that injury in November 2006, and worked
until December 2006.
In a note dated December 6, 2006, a chiropractor stated that
Dixon was not fully recovered and should avoid “heavy lifting,
excessive bending, pushing and pulling until her condition im-
proves further.” Dixon gave the chiropractor’s note to Henry
before beginning a vacation. In January 2007, Dixon returned
from her vacation, but after she had worked for about 3 hours
she was placed on a leave of absence by the Respondent’s
housekeeping director. The housekeeping director gave Dixon
a letter, dated December 30, 2006, which stated that the Re-
spondent had received the chiropractor’s note, but that the Re-
spondent did not have “light-duty” assignments in the house-
keeping department, and that there were no other openings that
Dixon was qualified to fill. The letter stated that the Respond-
ent was placing Dixon on leave of absence until it received a
physician’s assurance that Dixon was fully recovered and could
return to work without restriction. Dixon has not worked for
the Respondent since that time. However, after the Respondent
placed Dixon on leave of absence, it continued to include Dix-
on’s name on the weekly work schedule that it posted and dis-
tributed to employees. Rather than listing work hours next to
Dixon’s name, the schedule stated, “OUT.” In May 2007, Dix-
on renewed the Virgin Islands Casino Control Commission
card that she was required to have in order to be eligible for
work with the Respondent.
Dixon had an orthopedic evaluation on April 25, 2007, that
was part of the process regarding her workers’ compensation
claim. The physician who completed that evaluation reported
that Dixon could return to work, but that she should not lift
more than 40 pounds. He further stated that he believed Dixon
had “reached maximal medical improvement.” Workers’ com-
pensation authorities subsequently referred Dixon for another
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 322
medical evaluation. The physician who completed the second
evaluation reported, on August 14, 2007, that Dixon was pres-
ently able to perform only light-to-medium duty work, but that
she had not reached “a permanent stationary level of improve-
ment,” and that her level of recovery could be improved
through further treatment. As of the time of trial, Dixon was
receiving workers’ compensation payments for her work-
related injuries.
It is undisputed that Dixon had been on leave of absence for
more than 6 months at the time of the July 13 election. Henry
testified: “Basically, we have a 6-month policy that allows for
anyone that is in excess [of] six months is without employment
any longer.” According to Henry, this policy was part of “the
collective-bargaining agreement.” However, Henry conceded
that the collective-bargaining agreement he was referring to
was a contract proposal that the Respondent itself had never
agreed to. He stated that the Respondent nevertheless followed
some terms of the proposed agreement. The provision in that
proposed agreement that Henry says set the 6-month time limit
on leaves of absence states in relevant part: “Seniority rights
shall terminate for any of the following reasons: . . . c. Failure
to work for the Employer for a period of six (6) consecutive
months.” (R. Exh. 4, at sec. 8.5.) Although Henry testified that
this meant that Dixon’s employment had been terminated by
the date of the election, the evidence showed that the Respond-
ent neither notified Dixon that her employment was being ter-
minated nor placed anything in its records stating that her em-
ployment had ended. Indeed, a work schedule that the Re-
spondent posted and distributed for the week of the July 13
election included Dixon’s name, although it did not list any
work hours for her.11
2. Analysis
Under the well-established Board standard, an employee on
sick or disability leave is presumed to be eligible to vote absent
an affirmative showing that the employee has resigned or been
discharged. Home Care Network, Inc., 347 NLRB 859, 859
(2006), citing Red Arrow Freight Lines, 278 NLRB 965 (1986),
and Pepsi-Cola Co., 315 NLRB 1322 (1995);

see also Hospital
del Maestro, 323 NLRB 93, 95 (1997) (“The party seeking to
exclude an individual from voting has the burden of establish-
ing that the individual is ineligible to vote.”). In this case, Dix-
on was on a leave of absence due to her disability and the Re-
spondent has failed to make the necessary affirmative showing
that she had resigned or been discharged. The Respondent’s
assertion that it terminated Dixon before the election is frivo-
lous. The Respondent’s own witness, Henry, admitted that the
Respondent never informed Dixon that she was being terminat-
ed and did not record Dixon’s supposed termination in its own
files. During the week of the election, the Respondent still
listed Dixon as an employee on a work schedule that it posted
and distributed to employees.
11 The copy of this schedule that was introduced at trial had a line
through Dixon’s name, but there was credible testimony that the line
did not appear when the schedule was posted. Tr. 106. The Respond-
ent subsequently took down the schedule that bore Dixon’s name, and
posted a new version with Dixon’s name excised.
Notwithstanding the above, Henry testified that pursuant to a
provision in a proposed labor contract, Dixon’s employment
would have ended on either June 14 or July 4, 2007, since she
had not worked in 6 months. I find that testimony to be unwor-
thy of credence in light of the facts, discussed above, that the
Respondent never told Dixon she was terminated, never docu-
mented the supposed termination, and continued to list Dixon
as an employee on work schedules. The provision Henry says
triggered Dixon’s discharge was part of a proposed labor con-
tract that the Respondent never ratified, and which even Henry
did not claim the Respondent followed in its entirety. Moreo-
ver, the provision cited by the Respondent does not say any-
thing about the termination of employment after 6 months, but
rather concerns the termination of seniority rights. An individ-
ual without seniority rights may still be an employee. Indeed,
the proposed labor contract relied upon by the Respondent
states that an employee has no seniority rights during the 90-
day probationary period. Respondent’s Exhibit 4, sections 8.6
and 9.1; see also Westlake Plastics Co., 119 NLRB 1434, 1436
(1958) (persons who are probationary employees on the eligi-
bility date and on the date of the election are entitled to vote in
representation election). Seniority rights under the provision
relied upon by the Respondent affect an employee’s treatment
during layoff and recall, see Respondent’s Exhibit 4, section
8.1, but neither layoff nor recall is at issue here. Thus, even
assuming that the Respondent adheres to the provision regard-
ing termination of seniority rights after a 6-month absence from
work, that would not mean that Dixon’s employment had ter-
minated.
In addition, I note that while Henry was generally a confi-
dent witness, he appeared uncertain on the subject of Dixon’s
supposed termination. For example, he did not state that the
Respondent had a clear policy of automatically terminating
anyone who did not work for 6 months, but rather testified,
“Basically, we have a 6-month policy that allows for anyone
that is in excess [of] 6 months is without employment any long-
er.” Even assuming the existence of such a policy, that would
only mean that the Respondent was allowed to terminate Dix-
on, not that the Respondent actually did so. Indeed, the lack of
documentation for Dixon’s supposed termination, and Dixon’s
inclusion on the employee work schedules indicates that any
policy on the subject was not applied to terminate Dixon’s em-
ployment prior to the election. Moreover, if the Respondent
had actually terminated Dixon’s employment prior to the elec-
tion, one would expect that Henry, its general manager, would
be able to say when precisely that termination occurred. How-
ever, Henry could do no better than to provide two dates—June
14 and July 4—on which he said the termination would have
occurred given his understanding of the Respondent’s policy.
Based on Henry’s demeanor and testimony regarding Dixon,
and the record as a whole, I do not credit Henry’s claim that
Dixon’s employment was terminated prior to the election. Any
weight that testimony deserves is outbalanced by the evidence
showing that the Respondent had not actually terminated Dix-
on’s employment.12
12 The Respondent contends that the “correct legal analysis” is
whether Dixon had a “reasonable expectancy of recall.” R. Br. at p. 6–

DIVI CARINA BAY RESORT 323
For the reasons discussed above, the challenge to Dixon’s
ballot is overruled and her ballot must be opened and counted.
B. Matthew Moore
1. Facts
The election eligibility date is May 27, 2007. Moore, an ac-
tivities attendant, was hired by the Respondent on May 25,
2007, and underwent an unpaid orientation on that date. How-
ever, the uncontradicted evidence showed that Moore’s first
day actually performing his job was May 30, 2007. That was
also the first day for which he was paid by the Respondent.
2. Analysis
To be eligible to vote in a Board-conducted election, the em-
ployee must be employed and working on the eligibility date,
unless the employee is absent for one of the reasons set out in
the direction of election. CWM, Inc., 306 NLRB 495 (1992).
The Board defines “working” under this “requirement as mean-
ing ‘actual performance of bargaining unit work,’ excluding
‘participation in training, orientation or other preliminaries.’”
Id., citing Emro Marketing Co., 269 NLRB 926 fn. 1 (1984),
and Roy Lotspeich Publishing Co., 204 NLRB 517 (1973). In
this case, Moore had undergone an unpaid orientation, but had
not started the actual performance of bargaining unit work as of
the May 27 eligibility date. Therefore, he was ineligible to
vote. In its posthearing brief, the Respondent conceded the
legitimacy of the Union’s challenge to Moore’s ballot. (R. Br.
at p. 2 fn. 1.) Accordingly, I sustain the challenge to Moore’s
ballot.
IV. OBJECTIONS TO THE ELECTION
A. Union’s Objections 1 and 4
The conduct that the Union relies on to support Union Ob-
jections 1 and 4 is the same conduct that was at issue in the
unfair labor practice case.13 As found above, the allegation that
Henry unlawfully threatened Martin during their conversation
on July 12 was not substantiated. Based on the totality of the
relevant circumstances, I concluded that Henry’s statements to
Martin were innocuous statements of opinion and were not
threatening or coercive. For the same reasons, I conclude that
Henry’s statements to Martin were not objectionable election
7. However, as even the Respondent recognizes, the Board recently re-
affirmed its rejection of that legal standard in Home Care Network,
Inc., supra. If the Respondent’s argument in favor of a change to the
Board’s well-established legal standard has merits, those merits are for
the Board to consider, not me. I am bound to follow Board precedent
on the subject. See Hebert Industrial Insulation Corp., 312 NLRB 602,
608 (1993); Lumber & Mill Employers Assn., 265 NLRB 199 fn. 2
(1982), enfd. 736 F.2d 507 (9th Cir. 1984), cert. denied 469 U.S. 934
(1984); Los Angeles New Hospital, 244 NLRB 960, 962 fn. 4 (1979),
enfd. 640 F.2d 1017 (9th Cir. 1981).
13 U. Objections 1 and 4 state:
(1) The Union is objecting that the management of the hotel
interfered with Section 7 rights of the employees to become
members of the Virgin Islands Workers Union.
(4) During the same week of July 9, 2007 management pro-
posed a 401 K Retirement Plan.
conduct. Therefore, the Union’s objection based on that con-
duct (U. Objection 1) is overruled.
As discussed above, I found that the Respondent violated
Section 8(a)(1) when, during the final 2 days before the repre-
sentation election, it announced that it would provide an im-
proved 401(k) plan. “It is well established that ‘[c]onduct vio-
lative of Section 8(a)(1) is, a fortiori, conduct that interferes
with the exercise of a free and untrammeled choice in an elec-
tion.’” Sea Breeze Health Care Center, 331 NLRB 1131, 1133
(2000), quoting Dal-Tex Optical Co., 137 NLRB 1782, 1786–
1787 (1962). “Thus, the Board’s policy is to direct new elec-
tions in cases where unfair labor practices have occurred during
the critical preelection period, unless the conduct is so de min-
imis as to warrant a finding that it did not impact on the elec-
tion results.” Id. In this case, Henry announced a significant
new benefit during the final 2 days before the election. Henry
made this announcement at two group meetings that the Re-
spondent convened on July 11 to discuss the election. Each of
those meetings was attended by 25 to 30 employees, out of the
approximately 110 who were eligible to vote. In addition to
discussing this benefit at the July 11 group meetings, Henry did
so during individual meetings with one or more employees on
July 12. The announcement of a significant new benefit to so
many of the eligible voters during the final 2 days before the
election clearly could have an effect on that election, especially
since the election will be decided by only a few votes. NLRB v.
V & S Schuler Engineering, Inc., 309 F.3d 362, 372 (6th Cir.
2002) (when election is close a party’s misconduct is more
likely to taint the election result). Thus, the Respondent’s con-
duct was not de minimis in the context of this election. The
Union’s objection based on the Respondent’s announcement of
a new 401(k) plan benefit (U. Objection 4) is sustained. In the
event that the Respondent prevails after all valid votes are
counted, the election should be set aside, and a second election
directed.
B. Employer’s Objections 1 and 2
1. Facts
The Respondent is forwarding four objections, all based on
alleged preelection statements by Lucy Edward—an employee
who served as the Union’s election observer. Respondent Ob-
jections 1 and 2 are based on statements allegedly made by
Edward to a group of employees who worked in the Respond-
ent’s banquet department.14 The only witness who testified
14 R. Objections 1 and 2 state:
(1) Petitioner, through its agents and supporters, interfered
with the laboratory conditions necessary for conduct of a secret
ballot election by threatening Banquet Department employee(s)
(which consists of thirteen (13) employees on the Excelsior list),
stating, on repeated occasions during the two (2) week period be-
fore the election, words to the effect of that the Banquet Depart-
ment was the reason that the Petitioner lost the election in 2006
and that, if these employees caused the Petitioner to lose again,
the Banquet Department employee(s) would see what happens.
The Banquet Department employee(s) took this as a threat to their
physical and/or financial well-being.
(2) Petitioner, through its agents and supporters, interfered
with the laboratory conditions necessary for conduct of a secret

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 324
about these statements was Phyllis Blackman, an assistant cap-
tain in the banquet department. Blackman testified that, during
the final 2 weeks before the election, when the banquet depart-
ment employees went to lunch, a number of other employees
made statements to them regarding the upcoming election.
According to Blackman, “They would tell us the Union is com-
ing back and we—should we with the Union didn’t get in the
first time and if we don’t let them in this time, we will see.”
Blackman also testified that these employees stated: “The Un-
ion is coming back and they know the last—we’s the one that
get the Union not to be there and if we get them there this time,
we will see. They kept telling us that.” Blackman testified that
she considered these statements threatening.
Blackman consistently attributed the comments to a group of
other employees—none of whom she identified by name. She
never testified that Edward made the comments that the Re-
spondent argues were objectionable. In fact, Blackman testi-
fied that she never had a conversation with Edward regarding
the Union and never found out Edward’s position regarding the
Union. She said that Edward was present at the polling place
during the election, distributed “paper” to the banquet employ-
ees, and gave the banquet employees a “strange look,” but she
did not say that Edward said anything to the banquet workers at
that time. Blackman did not claim that she knew that the rea-
son Edward was present at the polling place was to serve as a
union observer.
Based on the above, I conclude that the evidence does not
show that Edward, or anyone else the Respondent claims was
the Union’s agent, made the statements that Blackman says she
considered threatening. At any rate, I found Blackman’s recol-
lection about the specifics of the supposed threats to be a bit of
a muddle. For example, first she testified that the other em-
ployees had said that if the Union did not get in this time “we
will see.” Then she testified that what the other employees said
was that if the Union did get in this time “we will see.” Black-
man’s recollection of the specifics of the allegedly threatening
statements was not, in my view, reliable. To the extent em-
ployees other than Edward made comments to the banquet de-
partment workers as they went to lunch, the record does not
establish with any certainty the specific language that was used.
2. Analysis
It is well settled that when an employer objects on the basis
of conduct engaged in by employees who are supporters, but
not agents, of the Union, the objecting party must establish that
the conduct “was so aggravated as to create a general atmos-
phere of fear and reprisal rendering a fair election impossible.”
Cal-West Periodicals, 330 NLRB 599, 600 (2000). As the
Board has noted, courts are hesitant to overturn elections based
ballot election by telling Banquet Department employee(s), on re-
peated occasions, words to the effect of that the Banquet Depart-
ment was the reason that the Petitioner lost the election in 2006
and that, if these employees caused the Petitioner to lose again,
the Banquet Department employee(s) would see what happens.
The Banquet Department employee(s) took this as an indication
that the Union had a way of knowing how individual employees
voted and that their votes would not be secret further interfering
with the conduct of a free and fair election.
on statements that cannot be attributed to the parties because
there generally is less likelihood that statements by nonparties
affected the outcome. Id., quoting NLRB v. Eskimo Radiator
Mfg. Co., 688 F.2d 1315, 1319 (9th Cir. 1982), and NLRB v.
Mike Yurosek & Sons, 597 F.2d 661, 663 (9th Cir.), cert. denied
444 U.S. 839 (1979).
As stated above, I do not consider Blackman’s testimony re-
liable regarding the specifics of what other employees said to
the banquet workers. Assuming for purposes of discussion that
employees told the banquet workers something along the lines
of what Blackman recounted—i.e., that banquet department
workers were responsible for the Union’s defeat in the previous
election and that if the Union did not win this time (or if the
Union did win this time) “we will see” what happens—I con-
clude that such statements were not threatening, much less so
aggravated as to create a general atmosphere of fear and repris-
al rendering a fair election impossible. On its face, “we will
see” is a benign statement and Blackman did not report any
actions or comments linking the statement to violence or other
forms of retaliation. It was not shown that any employee who
has made such statements had evidenced a propensity for vio-
lence or had the ability to negatively affect the employment of
the banquet department employees. The record does not, in my
view, provide a reasonable basis for believing that the state-
ment “we will see” what happens after the election, meant any-
thing more than that employees would see how working condi-
tions were affected by the election outcome. Such a statement,
especially when made by a nonagent, is even more innocuous
than Henry’s comment that “everything would be all right” if
employees voted against the Union.
I conclude that the evidence does not substantiate Respond-
ent Objections 1 and 2, and those objections are overruled.
C. Respondent’s Objections 3 and 4
1. Facts
Respondent Objections 3 and 4 concern a threatening state-
ment allegedly made by Edward in the employee dining hall on
July 12—the day before the election.15 The Respondent did not
present any live testimony at the trial to show that Edward
15 R. Objections 3 and 4 state:
(3) Petitioner, through its agent and supporter, interfered
with the laboratory conditions necessary for conduct of a secret
ballot election by making a statement in the Employee Dining
Room in front of a number of potential voters, the night before the
election, to the effect of that it was a good thing that Petitioner’s
agent and supporter did not walk with her gun because if she had
walked with her gun a lot of people would be in trouble. The em-
ployees who heard this statement interpreted it to mean that she
wanted to shoot openly anti-representation employee(s) and/or
those she assumed did not support the Petitioner.
(4) Petitioner interfered with the laboratory conditions neces-
sary for conduct of a secret ballot election by making the individ-
ual who had made the threatening comments about the gun (and
other threatening statements) the Petitioner’s observer at the elec-
tion the following day causing intimidation and fear of harm for
those voters who had heard the threatening comments or about
those comments, which had spread to numerous employees, par-
ticularly in light of the statements that inferred that the Petitioner
and/or its agents knew how employees had voted.

DIVI CARINA BAY RESORT 325
made the statement. Instead it relies on the written declara-
tions, made pursuant to 28 U.S.C. § 1746, by Melissa Pereira
and Brandy Pereira—both of whom were employees of the
Respondent at the time they signed the declarations.16 The two
declarations use identical language to describe Edward’s al-
leged conduct. Both read in relevant part:

The day before the Union election, Thursday July 12,
2007 at approximately 4:28 or 4:29 p.m., Ms. Lucy Ed-
wards, a strong union supporter, came into the Employee
Dining Room (“EDR”) and stood in the middle of the
EDR and raised her hands in the air and said “I does thank
God I don’t come to work with a gun because I will kill a
lot of people and they will be sorry.”
I firmly believe that she meant that she wanted to
shoot openly anti-Union employee(s) and/or those she as-
sumed did not support the Union.

The declarations are both dated July 25, 2007.
Edward testified that she comes to the employee dining room
at about 4:29 or 4:30 p.m. to use the timeclock and that the
employees there “joked around.” However, Edward emphati-
cally denied that she ever made any comments about bringing a
gun or killing people. She also testified that she did not speak
to Melissa Pereira or Brandy Pereira on July 12, and denied that
she raised her hands over her head and made a statement in the
employee dining room.
I considered Edward to be a somewhat, but not highly credi-
ble witness. She testified confidently and with certainty about
the matters at issue. On the other hand, she had an affected,
even theatrical, demeanor that made her testimony seem at
times a bit rehearsed. In addition, in at least one instance she
gave testimony that could be seen as evasive. She was asked
on direct examination whether she recalled meeting Melissa
and Brandy Pereira in the employee dining room on July 12,
and she responded, “I doesn’t go to the [employee dining room]
for lunch.” However, on cross-examination she conceded that
she went to the employee dining room at about 4:30 p.m. every
day to use the timeclock. Nevertheless, nothing that occurred
during Edward’s cross-examination shook her certainty regard-
ing the matters at issue or impeached her denial of the alleged
threat in a significant way.
Turning to the written declarations of Melissa and Brandy
Pereira—I did not have the opportunity to observe the demean-
or of the declarants and do not have the benefit of knowing how
they would have responded to questioning. However, the fact
that the two declarations use exactly the same language, word-
for-word, detracts somewhat from their weight. It gives the
impression that the declarations are not in the declarants’ own
voices, but rather were prepared for them without meticulous
attention to the details of how each declarant described what
she had seen and heard. In addition, although both declarants
state that they believed Edward “meant that she wanted to shoot
openly anti-Union employee(s),” neither was shown to have
taken any action consistent with such a belief. For example it
16 The Respondent and the Union reached a stipulation that Melissa
Pereira and Brandy Pereira would have testified consistently with their
written declarations had they appeared as witnesses in the proceeding.
was not shown that either individual reported Edward to the
employer or law enforcement authorities, or took steps to avoid
her or protect themselves. Finally, since neither witness took
the stand, there was no opportunity to address the possibility
that, as employees of the Respondent, they felt pressured to
sign declarations that were favorable to the Respondent.
In short, I am presented with two conflicting accounts, nei-
ther of which in my view is highly credible. Having considered
this evidence, I cannot find a basis for crediting the account in
the declarations over the one Edward provided during her live
testimony. Therefore, it has not been shown, by a preponder-
ance of the evidence, that Edward engaged in the conduct al-
leged to be objectionable, and Respondent’s Objections 3 and 4
are overruled.
2. Analysis
Even had I concluded, contrary to the above, that Edward
made the statement alleged, that statement would not warrant
overturning the election results. The first question is whether
Edward’s conduct was that of an agent of the Union, or of a
third party. If Edward was not acting as an agent of the Union
when she made the alleged statement, the Respondent’s objec-
tion can be sustained only if the statement “was so aggravated
as to create a general atmosphere of fear and reprisal rendering
a fair election impossible.” Cal-West Periodicals, 330 NLRB
at 600. Under applicable Board precedent, I conclude that Ed-
ward was not shown to be an agent of the Union. There was no
evidence that she was a union officer or had been asked by the
Union to serve as its organizer, or spokesperson. Although
Edward was a union election observer on July 13, her alleged
conduct on July 12 did not occur while she was serving in that
capacity and was outside her responsibilities as an observer.
Under such circumstances, the Board has found a prounion
employee’s service as a union election observer insufficient to
render that employee an agent of the union. For example, in
Windsor House C & D, 309 NLRB 693 (1992), an individual
who served as a union election observer was found not to be an
agent of the union and the third-party standard was applied to
evaluate conduct that was outside the individual’s responsibili-
ties as an observer. See also Dunham’s Athleisure Corp., 315
NLRB 689, 690 (1994) (although individual was union’s elec-
tion observer, “no evidence in the record that he was a general
agent for [the union]”); Advance Products Corp., 304 NLRB
436 (1991) (same). Therefore, Edward’s alleged statement
must be evaluated under the standard applicable to conduct by
third parties.
I find that the conduct described in the declarations does not
approach the standard of being “so aggravated as to create a
general atmosphere of fear and reprisal rendering a fair election
impossible.” To start with, the declarations do not show that
Edward’s alleged statement had anything to do with the elec-
tion or the Union. Even according to the accounts in the decla-
rations, Edward never mentioned, or alluded to, the upcoming
election or the Union. Neither declarant claimed that Edward
was talking to persons who were known to oppose the Union or
that she appeared to intend for the statement to be heard by
such persons. Therefore, even assuming that Edward made the
statement described in the declarations, there is insufficient

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 326
record evidence to link that statement to the representation
election. The proximity of the election, and Edward’s support
for the Union, are not enough to show that Edward’s alleged
expression of anger would reasonably be understood by other
employees to relate to the election, rather to any one of the
many other subjects about which individuals become angry at
work. A single statement, even one threatening violence, that
did not mention or allude to the Union or the upcoming elec-
tion, and which was not shown to be made to persons because
of their views regarding the upcoming election, cannot reason-
ably be seen as conduct that “create[d] a general atmosphere of
fear and reprisal rendering a fair election impossible.”
In addition, there was nothing in the record to suggest that
employees would have a reasonable basis for believing that
Edward meant that she was actually prepared to engage in gun
violence against other employees. She was not shown to have
taken part in violence of any kind in the past, nor was it shown
that she carried or owned a gun. Although both declarants, in
identical language, stated a belief that Edward meant that she
wanted to shoot openly antiunion employees such a subjective
interpretation by employees is irrelevant to the question of
whether the statement was objectionable conduct. “The test is
not a subjective one, but an objective” one, and “the subjective
reactions of employees are irrelevant to the question of whether
there was in fact objectionable conduct.” Lake Mary Health &
Rehabilitation, 345 NLRB 544, 545 (2005). At any rate, the
record here undercuts the declarants’ claim that they felt sub-
jectively threatened or coerced by Edward. There was no evi-
dence, for example, that either declarant reported Edward to
company officials or law enforcement authorities, sought to
protect themselves, or took steps to avoid Edward. Moreover,
neither of the declarants stated that they had any reason to be-
lieve that Edward would know how employees voted on July
13.
The accounts of the declarants were also lacking in details
that would be necessary, under the circumstances present here,
to find that Edward’s alleged statements were coercive. Ed-
ward testified that she and other employees “joked around” in
the employee dining room. The declarants do not state whether
Edward was laughing or otherwise “joking around” when she
made the alleged statement. Although the declarants report that
they overheard Edward’s statements, they do not reveal who
Edward was actually talking to. There is no way of knowing
whether Edward was addressing a friend, a group of friends, a
person or persons known to oppose the Union, or everyone in
the employee dining room.
For the reasons discussed above I conclude that, even assum-
ing the record showed that Edward engaged in the conduct
described in the declarations submitted by the Respondent, the
conduct would not be a sufficient basis upon which to sustain
Respondent Objections 3 and 4.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent interfered with, restrained, and coerced
employees in violation of Section 8(a)(1) of the Act when it
announced a new 401(k) plan benefit during the final 2 days
before the scheduled July 13, 2007 representation election.
4. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
5. The Respondent was not shown to have violated Section
8(a)(1) of the Act on or about July 11, 2007, by threatening
employees with reprisals if the Union was voted in.
6. Felicia Dixon was eligible to vote in the July 13, 2007
representation election and the Board agent’s objection to her
ballot is overruled.
7. Matthew Moore was ineligible to vote in the July 13,
2007 representation election and the Union’s objection to his
ballot is sustained.
8. Union Objection 1 is overruled.
9. Union Objection 4 is sustained.
10. Respondent’s Objections 1, 2, 3, and 4 are overruled.
11. The objectionable conduct engaged in by the Respond-
ent during the critical preelection period had an impact on the
election, and that impact was more than de minimis.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended Order and
Direction17
ORDER
The Respondent, Grapetree Shores, Inc. d/b/a Divi Carina
Bay Resort, Christiansted, St. Croix, U.S. Virgin Islands, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Announcing any new employee benefit in a manner in-
tended to influence the outcome of a representation election.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Christiansted, St. Croix, U.S. Virgin Islands, copies of
the attached notice marked “Appendix.”18 Copies of the notice,
on forms provided by the Regional Director for Region 24,
17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
18 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.”

DIVI CARINA BAY RESORT 327
after being signed by the Respondent’s authorized representa-
tive, 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. Reasona-
ble steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since July 11, 2007.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
DIRECTION
It is directed that, within 14 days from the date of this Deci-
sion, Order and Direction, the challenged ballot of Felicia Dix-
on in Case 24–RC–8566 be opened and counted by the Region-
al Director, along with the other valid ballots cast, and that a
revised tally of ballots be issued.
IT IS FURTHER ORDERED that if the revised tally of ballots re-
veals that the Virgin Islands Workers Union (the Petitioner) has
received a majority of the valid ballots cast, the Regional Direc-
tor shall issue a certification of representative. If, however, the
revised tally shows that the Petitioner has not received a ma-
jority of the ballots cast, the Regional Director shall set aside
the election and conduct a new election when he or she deems
the circumstances permit a free choice.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT announce any new employee benefit(s) in a
manner intended to influence the outcome of a representation
election.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.

GRAPETREE SHORES, INC. D/B/A DIVI CARINA BAY
RESORT