Executive Mgt. Services

National Labor Relations Board - Board Decisions

May 11, 2010

355 N.L.R.B. 185 (N.L.R.B. 2010)

EXECUTIVE MGMT. SERVICES
355 NLRB No. 33
185
Executive Management Services, Inc. and Service
Employees International Union, Local 3 and
Service Employees International Union, Local 1.
Cases 25–CA–30221 Amended, 25–CA–30223
Amended, 25–CA–30226, 25–CA–30266
Amended, 25–CA–30328 Amended, 25–CA–
30392, 25–CA–30459, 25–CA–30485 Amended,
25–CA–30486 Amended, 25–CA–30487 Amended,
25–CA–30489 Amended, 25–CA–30533 Amended,
25–CA–30537, 25–CA–30690, 25–CA–30692, 25–
CA–30693, 25–CA–30694, 25–CA–30695, 25–
CA–30697, and 25–CA–30698
May 11, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN, MEMBERS SCHAUMBER
AND PEARCE
On June 23, 2009, Administrative Law Judge Arthur J.
Amchan issued the attached decision. The General
Counsel and the Charging Party each filed exceptions
and a supporting brief, and the Respondent filed answer-
ing briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions
except as set forth below, and to adopt the recommended
Order.3

1 The General Counsel excepts to the judge’s statement that the Re-
gional Director implicitly revoked the settlement agreement and to the
judge’s Order that the settlement agreement be “reinstated.” Relying
on Outdoor Venture Corp., 327 NLRB 706 (1999), and Midwestern
Personnel Services, 331 NLRB 348 (2000), enfd. 322 F.3d 969 (7th
Cir. 2003), the General Counsel submits that the Regional Director was
not required to, and did not, revoke the settlement agreement in order to
litigate presettlement conduct in this case because he is not seeking any
additional remedies for the settled allegations, and the reservation of
evidence clause in the settlement agreement permits the litigation of
presettlement conduct where that conduct is determinative of the nature
of a strike. We agree with the General Counsel that the Regional Di-
rector did not implicitly revoke the settlement agreement. Therefore, it
was unnecessary for the judge to “reinstate” it. To the extent that the
judge’s decision is ambiguous as to the status of the settlement agree-
ment, we clarify that the settlement agreement is still in effect and has
not been revoked.
2 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
3 In his brief in support of exceptions, the General Counsel seeks
compound interest computed on a quarterly basis for any make-whole
We agree with the judge that the Respondent did not
violate Section 8(a)(3) and (1) of the Act by refusing to
reinstate certain strikers upon their unconditional offer to
return to work. In reaching this conclusion, we adopt the
judge’s findings that the strike was not an unfair labor
practice strike, and that the Respondent was entitled not
to reinstate the strikers because they engaged in recogni-
tional picketing in violation of Section 8(b)(7)(C) of the
Act.4 As set forth below, however, we do not rely on all
of the judge’s rationale.
1. The General Counsel and the Charging Party con-
tend that the judge, at various points in his decision, mis-
characterized the standard for finding an unfair labor
practice strike by implying that the strikers had to have
been motivated to strike in a “significant manner” by
unfair labor practices, or that unfair labor practices must
have been a “substantial part” of the employees’ decision
to strike. We agree with the General Counsel and the
Charging Party that the judge’s characterization of the
standard did not precisely track extant precedent. See,
e.g., Golden Stevedoring Co., 335 NLRB 410, 411
(2001).5 The judge effectively found, however, that the
unfair labor practices committed by the Respondent did
not in any way motivate the employees to strike. Thus,
the judge found that the strikers were unaware of the
only prestrike unfair labor practice committed by the
Respondent and that there was no evidence that the only
unfair labor practice committed by the Respondent after
the strike began affected the strikers’ decisions to remain
on strike.6 Given the judge’s credibility resolutions in

relief awarded. In light of our disposition of this case, we find it un-
necessary to rule on that request.
4 In adopting the judge’s finding that the Union’s picketing was rec-
ognitional, Chairman Liebman observes that the Charging Party did not
argue that its picketing did not constitute unlawful recognitional picket-
ing under Sec. 8(b)(7)(C) because the purpose of its picketing was
solely to obtain a neutrality/card-check agreement. The Board has
found that picketing to obtain a neutrality/card-check agreement does
not constitute a present demand for recognition within the meaning of
Sec. 9(c)(1)(B). Brylane, L.P., 338 NLRB 538 (2002); New Otani
Hotel & Garden, 331 NLRB 1078, 1082 (2000).
5 In Golden Stevedoring, supra, the Board observed that:
It is well established that a work stoppage is considered an unfair labor
practice strike if it is motivated, at least in part, by the employer’s un-
fair labor practices. . . . It is not sufficient, however, merely to show
that the unfair labor practices preceded the strike. Rather, there must
be a causal connection between the two events. In sum, the unfair la-
bor practices must have “contributed to the employees’ decision to
strike.”
335 NLRB at 411 (citations omitted).
6 Supervisor Audrita Kennedy’s interrogation of then-employee
Darnell Tillman in January 2007 (alleged in par. 5(h) of the complaint)
occurred 8 months before the strike, at a location where none of the
alleged discriminatees worked. The discriminatees were not aware of
the incident, and it was not the stated basis for any of the discrimina-
tees’ decisions to strike. The October 11, 2007 DeJournette incident
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 186
this case, we agree with his conclusion that the evidence
does not support a finding of a causal connection be-
tween any unfair labor practices and the employees’ de-
cision to strike. Accordingly, we agree with the judge
that the strike was not an unfair labor practice strike.
2. In agreeing with the judge that the strike was not an
unfair labor practice strike, we find it unnecessary to pass
on his finding that Sallie Mae project manager, Lucas
Gronas, did not unlawfully interrogate employees about
their union activities in early January 2007 (complaint
par. 5(b)).7 That incident allegedly occurred at the Sallie
Mae building, and there is no evidence that it affected the
strikers (who did not work at that building) or influenced
their decision to strike. No employees testified that they
were aware of this incident, nor did any employees tes-
tify that this incident was among the reasons they went
on strike. Because there is no evidence that this alleged
interrogation was a factor in the employees’ decision to
strike, and the General Counsel is not seeking an addi-
tional remedy for it, it is unnecessary for the Board to
pass on whether it constituted an unfair labor practice.
3. We also find it unnecessary to pass on whether Su-
pervisor Linda DeJournette’s August 2007 conversation
with former employee Star Carnell8 constituted an
unlawful interrogation and threat of surveillance.9 The
conversation allegedly occurred at the Guaranty building,
and no employees testified that they went on strike be-
cause of anything which happened at that building. Even
Carnell did not testify that she went on strike because of
this incident. Nor is there evidence that Carnell reported
the incident to any of the strikers or that it motivated any
of the strikers to engage in the strike. Because there is
no evidence that this incident was a factor in the employ-
ees’ decision to strike and the General Counsel is not
seeking any additional remedy for it, the Board need not
pass on whether the incident constituted an unfair labor
practice.
4. We adopt the judge’s findings that Project Manager
Aurelia Gonzalez and Supervisor Vonda Mathes did not
unlawfully prohibit the wearing of union buttons and
threaten employees with job loss for wearing them.10

(alleged in par. 5(t) of the complaint) occurred after the strike began,
and none of the strikers testified that this incident affected their deci-
sion to continue to strike.
7 Member Schaumber, for institutional reasons, joins his colleagues
in not passing on the judge’s finding that this incident did not constitute
an unfair labor practice.
8 Carnell was a striker, but she is not an alleged discriminatee in this
case.
9 Complaint pars. 5(p)(i) and (ii). Member Schaumber, for institu-
tional reasons, joins his colleagues in not passing on the judge’s finding
that this incident did not constitute an unfair labor practice.
10 Complaint pars. 5(k), 5(n), (o), (q), and (s).
The judge discredited the employees’ testimony concern-
ing those alleged incidents, deeming it “contrived and
unreliable” and inherently improbable. In agreeing with
the judge that no button violations occurred and that but-
ton violations did not motivate the strike, we rely only on
the judge’s discrediting of the employees’ testimony that
the button incidents occurred. We find it unnecessary to
rely on the judge’s alternative rationale, that any button
violations at Market Tower had been “cured” before the
strike, and his related discussion of Passavant Memorial
Area Hospital, 237 NLRB 138 (1978), and Claremont
Resort & Spa, 344 NLRB 832 (2005). Given the finding
that no button violations occurred, we necessarily con-
clude that the button allegations do not demonstrate any
causal connection between any unfair labor practices and
the strike.
5. The judge found that District Manager Richard
Young did not violate the Act when he told employee
Sandra Jones at Sky Bank not to complain to the security
guard about the Respondent’s cleaning supplies.11 Later
in his decision, however, in support of his finding that
unfair labor practices did not motivate the employees to
strike, the judge stated that even if Young’s conduct had
violated the Act, he would find that the General Counsel
did not establish a causal connection between this inci-
dent and the strike. We do not rely on this alternative
rationale. Rather, in agreeing with the judge that this
incident does not provide a causal connection between
any unfair labor practice and the employees’ decision to
strike, we rely solely on the judge’s initial finding that
this incident did not violate the Act.
In sum, we agree with the judge’s conclusion that no
causal connection has been established between any un-
fair labor practices and the employees’ decision to strike.
Accordingly, we adopt the judge’s findings that the strik-
ers were not engaged in an unfair labor practice strike,
and that because of their participation in 8(b)(7)(C) con-
duct, the Respondent was not required to reinstate them.
We shall therefore dismiss the complaint.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

11 Complaint par. 5(j).
EXECUTIVE MGMT. SERVICES 187

Michael Beck and Belinda J. Brown, Esqs., for the General
Counsel.
Gregory W. Guevara and Emily L. Yates, Esqs. (Bose McKin-
ney & Evans LLP), of Indianapolis, Indiana, for the Re-
spondent.
Leslie J. Ward, Esq., Service Employees International Union,
Local 1, of Chicago Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Indianapolis, Indiana, on March 30–April 2, and
April 20–22, 2009. The charges herein were filed between
January 16, 2007, and March 19, 2009. The consolidated com-
plaint before me was issued on January 8, 2009, and was
amended on March 19, 2009.
The General Counsel issued a complaint in those cases listed
above in which SEIU Local 31 was the Charging Party on Feb-
ruary 26, 2008. The parties entered into a settlement of all
these matters in May 2008. Pursuant to the settlement, Re-
spondent agreed to the posting of a notice, but did not admit to
the commission of any unfair labor practice.
While the Regional Director has not explicitly revoked the
May 2008 settlement, I find that in issuing the instant complaint
he has implicitly done so. The General Counsel does not seek
any additional remedy in this matter for the cases previously
settled.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and the Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, Executive Management Services, Inc. (EMS),
provides janitorial services at commercial buildings. It’s corpo-
rate office is in metropolitan Indianapolis, Indiana, and it does
business in many different states, including Indiana. In the 12
months prior to the issuance of the complaint, Respondent, at
its Indiana facilities, purchased and received goods valued in
excess of $50,000 directly from points outside of Indiana. Re-
spondent 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, Service Employees International
Union (SEIU) Local 1,

is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview
The essence of this case is found in complaint paragraph 7.
The General Counsel alleges that 10 of Respondent’s employ-
ees who were on strike against EMS from September 25, 2007

1 SEIU Local 3, which initiated the organizing of EMS, has since
merged with SEIU Local 1.
until May 9, 2008, were refused reinstatement to their jobs in
violation of Section 8(a)(3) and (1) of the Act.
Respondent submits that these employees engaged in picket-
ing which violated Section 8(b)(7)(C) of the Act and that there-
fore they are not entitled to reinstatement or any other remedy.
EMS filed unfair labor practice charges against the Union alleg-
ing violation of Section 8(b)(7)(C) on May 21, 2007, and No-
vember 14, 2007. On April 11, 2008, the General Counsel
issued a complaint alleging that the Union had picketed Market
Tower, an office building in downtown Indianapolis at which
Respondent’s employees worked, since about April 2007, with-
out filing a representation petition within a reasonable period of
time in violation of Section 8(b)(7)(C). In May 2008, the Un-
ion and the General Counsel settled the matter. The Union
posted a notice in which it agreed not to picket EMS in viola-
tion of the requirements of Section 8(b)(7)(C), but did not ad-
mit that it had committed any unfair labor practices.
In May 2008, at approximately the same time that the Gen-
eral Counsel settled the complaints issued to EMS and the Un-
ion, other contractors in Indianapolis signed a collective-
bargaining agreement with the Charging Party. While the rela-
tionship between this contract, the settlement of the charges
against both EMS and the Union and the end of the strike
against EMS is not precisely clear in this record, I infer that all
these events are connected.
The 10 alleged discriminatees picketed Respondent’s work-
site at the Market Tower office building in downtown Indian-
apolis from September 25, 2007, until sometime in January or
February 2008, and possibly thereafter until their strike ended
in May 2008. Their Union, the Charging Party SEIU, never
filed a representation petition with the Board.
The General Counsel and Charging Party allege that the 10
employees were also on strike and picketing to protest unfair
labor practices and that therefore Respondent violated Section
8(a)(3) and (1) in refusing the discriminatees reinstatement.
Thus, the main issue in this case is whether Respondent com-
mitted any unfair labor practices which either caused or pro-
longed the alleged discriminatees’ strike.
B. The SEIU’s Campaign to Organize Janitors in Indianapolis,
Cincinnati, and Columbus
The SEIU embarked upon a campaign to organize the jani-
tors in Indianapolis, Cincinnati, and Columbus. It called this
campaign “three cities, one future.” Organizing in Indianapolis
began in 2004. The SEIU identified the larger janitorial con-
tractors in the city and sought to have them sign a neutrality
agreement. An example of such an agreement is Respondent’s
Exhibit 12 executed in November 2005, by the Union and GSF
Safeway, the largest cleaning contractor in Indianapolis. GSF
signed this agreement after the Union organized a strike by its
employees in June 2005, and after it had settled unfair labor
practices filed against it by the SEIU.
In that agreement the employer agrees not to take any action
or make any statement in opposition to the selection by its em-
ployees of a bargaining representative. The employer agreed to
provide the Union a list of the names and addresses of bargain-
ing unit employees. The employer agreed to waive its right to
file a representation petition in response to a demand for recog-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 188
nition by the Union after the Union had demonstrated majority
support at a commercial office building or group of buildings in
Marion and Hamilton counties in Indiana.
Employers signing this neutrality agreement agreed that once
the Union demonstrated that at least 60 percent of the combined
square footage of commercial office buildings and office parks
over 75,000 square feet were serviced by contractors who had
recognized the Union, they would commence bargaining for a
master collective-bargaining agreement for Marion and Hamil-
ton counties.
In late 2005, David Dingow, the contract administrator for
the Union, contacted David Bego, the CEO of Executive Man-
agement. This led to a meeting in April 2006, in which Din-
gow asked Respondent to sign a neutrality agreement such as
that executed by GFS Safeway.
In an exchange of emails in August 2006, Respondent’s Ex-
hibit 15, Dingow essentially demanded that Bego sign the neu-
trality agreement. In one message Dingow stated:

We will expect to have an Agreement by the end of
this week with EMS. If that is not possible we will target
buildings as we have with other contractors.
Later he added,
The signatories also want us to take action against the
contractors who have not signed. Just as you were con-
cerned about competition they are concerned about you.
We can’t hold off the activity in the face of the other con-
tractors who experienced the campaign.

Bego met again with union representatives in September
2006. The Union demanded that EMS sign the neutrality
agreement. Bego declined and suggested that the Union peti-
tion the NLRB for a representation petition. The Union’s cam-
paign to organize EMS began in earnest in January 2007, at the
Sallie Mae building in Fishers, Indiana, in the northeast part of
metropolitan Indianapolis and then spread to other EMS loca-
tions, including several in downtown Indianapolis. The cam-
paign included picketing, handbilling, rallies, public demonstra-
tions, and the filing of unfair labor practices.2 On September
25, 2007, the Union’s lead organizer, Rebecca Maran,3 faxed to
EMS the following notice, R. Exh. 64:

We are writing to inform you that, EMS employees at
10 W. Market St. and Sky Bank, as of September 25, 2007
are participating in an unfair labor practice strike until fur-
ther notice. They are protesting charges of unfair labor
practices including those described in NLRB cases:
25–CA–30221 Amended; 25–CA–30223 Amended;
25–CA–30226; 25–CA–30266 Amended; 25–CA–30328
Amended; 25–CA–30392; 25–CA–30423; 25–CA–30459.

2 While the filing of unfair labor practice charges was certainly part
of the Union’s strategy for pressuring employers to sign a neutrality
agreement, the fact that filing charges was a tactical device does not
mean unfair labor practices were not committed. Each allegation must
be evaluated on the strength of the record evidence.
3 Maran subsequently married another SEIU organizer, Jonathan
Liebowitz, and is referred to in the transcript by both her maiden and
married names.
The notice was signed by the following janitorial employees
of EMS who worked at the Market Tower office building at 10
W. Market St. in downtown Indianapolis, and who are alleged
discriminatees in the instant case:

Shaneka Brown
Christina Stubbs
Desiree Bryant
Harry Webster
Maggie Harwell
Karen Knox

The notice was also signed by employee Neil Miller, who is
not an alleged discriminatee and Sandra Jones, who is an al-
leged discriminatee but worked at EMS’ Sky Bank location in
downtown Indianapolis.

On October 1, 2007, Maran faxed another notice to
EMS, which stated:
This memo is to inform you that EMS employees at 20
N. Meridian and 1 N Penn have joined in the unfair labor
practice strike.

Although not named, two EMS employees who worked at
the Guaranty Building in downtown, Star Carnell and Ronicka
Evans, joined the strikers/picketers who assembled in front of
the Market Tower building regularly and other EMS locations
occasionally for a period exceeding 4 months. Two other EMS
employees from Market Tower, Antonio Gutierrez and Kevin
McClung also joined the picket line outside Market Tower.
Although the Union never notified EMS that that Carnell, Ev-
ans, Gutierrez, and McClung were on strike, EMS was well
aware of their presence on the picket line over a period of
months. Three of these four, Evans, Gutierrez, and McClung
are alleged discriminatees in this case.
Respondent contends that even if I find that it committed un-
fair labor practices, I should find that the strike and picketing
by the Union had little or nothing to do with these violations. It
notes in this regard that except for Charge 25–CA–30423,
which the Union withdrew, none of the charges cited by Re-
becca Maran in her strike notice of September 25 involved
employees at Market Tower. Only, one charge, 25–CA–30392,
involved one of the discriminatees. This charge is covered by
complaint paragraph 5(j) and involves alleged threats made by
EMS District Manager Richard Young to discriminatee Sandra
Jones at the Sky Bank in June.4
C. General Comments Regarding Witness Credibility
As set forth below, I dismiss most of the complaint allega-
tions in this case. Much of the evidence herein is of the “he
said, she said” character. I do not necessarily credit the testi-
mony of Respondent’s witnesses, however, at many points it is

4 The locations of the unfair labor practices in charges cited in Ma-
ran’s September 25 notice are as follows:
25–CA–30221: Sallie Mae location in Fishers, Indiana; 25–CA–
30223: Sallie Mae; 25–CA–30226: Sallie Mae; 25–CA–30266: Indi-
anapolis Power and Light location; 25–CA–30328: Indianapolis Chil-
drens’ Museum; 25–CA–30392: Sky Bank; 25–CA–30423: Market
Tower (withdrawn by the Union, Exh. R-6); 25–CA–30459: Guaranty
Building.
EXECUTIVE MGMT. SERVICES 189
clear to me that the testimony of the General Counsel’s wit-
nesses is contrived and very likely to be untruthful.
The Charging Party was soliciting its supporters to provide
material for unfair labor practice charges from the outset of its
organizing campaign. This solicitation is particularly evident
regarding the many allegations that Respondent prevented or
interfered with its employees’ Section 7 rights to wear union
buttons at work. Alleged discriminatee Ronicka Evans testified
in this regard that in her first meeting with SEIU organizer
Mindy Reichelt:

She gave me a button to say if you are getting treated unfair,
like, say for instance, we wear our buttons and they tell us not
to wear our buttons. . . .

Tr. 642.
Similarly, alleged discriminatee Desiree Bryant testified that
when Reichelt gave her a union button to wear at Market
Tower, Reichelt told her, “we are trying this thing we do with
different buildings to see what they will say . . ., Tr. 671. Rei-
chelt also told Bryant that usually employees are told they can’t
wear union buttons, Tr. 695.
Of course, the fact that the Union was soliciting material
with which to file unfair labor practice charges does not mean
that ULPs were not committed. However, this record indicates
at least several instances of outright fabrication.
Alleged discriminatee Desiree Bryant testified on direct ex-
amination that in July, EMS Supervisor Vonda Mathes told her
she was not allowed to wear a union button to work. Bryant
then testified that she removed the button, threw it in the trash
and never wore a button to work again, Tr. 673. On cross-
examination, Bryant conceded that she wore a union button to
work every day at least from August 24, 2007, to the beginning
of the strike on September 25, Tr. 706–707.
Alleged discriminatee Ronicka Evans testified that her su-
pervisor, Jeanette, told her that she would have to take her un-
ion button off whenever EMS District Manager Richard Young
showed up at her workplace, the Guaranty Building in down-
town Indianapolis. She also testified that Young told her that
she was not supposed to wear a union button to work. Despite
this, Evans wore a union button to work virtually every day at
the Guaranty Building and at 1 North Pennsylvania Avenue. In
an affidavit she gave to the NLRB on October 24, 2007, Evans
told the Board agent that Young never saw her wear a union
button and that Jeanette was the only person who said anything
to her about the union button, Tr. 656–658.
Alleged discriminatee Harry Webster testified that EMS Su-
pervisor Vonda Mathes told him that he could not wear a union
button in the Market Tower building sometime prior to Sep-
tember 2007, Tr. 603–604. However, in an affidavit given to
the NLRB on September 12, 2007, Webster stated:

Shortly after I signed the card stating I wanted the SEIU to be
my representative I began wearing a button that said, ‘Justice
for Janitors.’ I believe I started wearing the button sometime
in June. I have worn the button every day since then. No one
at EMS has told me that I could not wear a button.

Tr. 605–606.
These witnesses are not credible because when testifying
they appeared to be more interested in supporting a litigation
theory than in testifying candidly, see, e.g., In re: Lexus of
Concord, Inc., 330 NLRB 1409, 1412 fn. 9 (2000); Carruthers
Ready Mix, Inc., 262 NLRB 739 (1982). The fact that a party
proffers several witnesses who testify to less than the whole
truth detracts from the credibility of all their witnesses regard-
ing the same subject matters.
D. Allegations of the Complaint5
Complaint paragraph 5(a) (threats of job loss by Kelly Bego
or Robert Guffey): The General Counsel alleges that on about
January 4, 2007, Respondent, by Kelly Bego or Robert Guffey,
threatened employees with job loss because they engaged in
union activities. This allegation is predicated upon the testi-
mony of Larry Brumback, a former EMS employee, who was
fired by Respondent in January 2007, for threatening two of his
supervisors, and Frank Frierson, an ex-employee who was de-
moted from a supervisory position in December 2006.6
Brumback testified that Respondent held a meeting for em-
ployees conducted by Respondent’s then-human resource man-
ager, Kelly Bego, and District Manager Joe Guffey.7 Accord-
ing to Brumback, Guffey did most of the talking and stated that
EMS would lose its contract with Sallie Mae if employees
chose to be represented by the Union. Frierson, however, testi-
fied that Kelly Bego spoke for Respondent and said that if em-
ployees joined the union, “that they would probably lower our
pay and give us the expense of union dues, and they would give
us high health insurance.”
Kelly Bego and Joe Guffey testified that Respondent did
hold a meeting for employees at Sallie Mae on about January 5,
2007 in response to the organizing drive. However, both stated
that Guffey said nothing other than to introduce Bego. Kelly
Bego testified that she distributed a new company handbook
and had employees sign for it. She read the company’s state-
ment on unionism from pages 4–5 of the handbook, R. Exh. 18,
pp. 4–5.

It is our opinion that wherever there are unions, there
is also trouble, strife and discord and that a union would
not work to our employees’ benefit, but to their serious
harm. It is our positive intention to oppose unionism by
every proper and lawful means.
If union representatives should ever approach you, we
would appreciate your seeking advice, counsel, and infor-
mation from your supervisor or the Human Resources De-
partment on any question you may have on this subject.

Kelly Bego and Joe Guffey denied that either of them said
anything about job loss or the potential of EMS losing its con-
tract with Sallie Mae. I conclude that neither Brumback’s nor

5 Complaint pars. 5(i) regarding alleged 8(a)(1) violations at the In-
dianapolis Childrens Museum and 5(l) alleging 8(a)(1) violations by
EMS Supervisor Roberto Solorazano at Market Tower in July 2007,
were withdrawn by the General Counsel at trial.
6 Brumback had been fired several times previously and then rehired.
7 Guffey’s given first name is Robert. Bego, the daughter of Re-
spondent’s CEO, has since married and now goes by her last name,
Simerly.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 190
Frierson’s testimony is more credible than that of Kelly Bego
and Guffey and I therefore dismiss the allegation in complaint
paragraph 5(a). For one thing, the credibility of both ex-
employees is adversely affected by their inconsistency with one
another. Frierson did not testify that Bego threatened job loss
and Brumback did not testify about the alleged threats testified
to by Frierson.
Complaint paragraph 5(b) alleges that Respondent by its
Sallie Mae project manager, Lucas Gronas, unlawfully interro-
gated employees about their union activities on or about Janu-
ary 5 and 9, 2007. These allegations are also predicated on the
testimony of former employee Larry Brumback. Brumback
testified that Gronas called his coworker Dustin Austin to in-
quire about a conversation Austin and Brumback had with un-
ion organizer Maran. Brumback did not talk to Gronas himself
and only knows what Austin told him. Since this is classic
hearsay testimony, I decline to credit it.
Brumback also testified that after another meeting with Ma-
ran he went to work wearing a union button that Maran had
given him. He testified that Lucas Gronas asked him, “how
was the meeting?” He did not testify that Gronas said anything
else to him. Gronas did not testify in this proceeding. Given
that Brumback was openly supporting the Union and that Gro-
nas didn’t ask him anything else, I find that his question did not
rise to the level of an unlawful interrogation. Further, I do not
think the remark would give an employee the impression that
his union activities were under surveillance. It would be a
natural assumption for Gronus to believe that Brumback re-
ceived the union button at “a meeting.”
Complaint paragraphs 5(c), (d), (e), and (g) (prohibiting the
wearing of union buttons, threats of termination): The allega-
tions also rest on the testimony of Larry Brumback. He testi-
fied that the night he wore a union button to work, on about
January 9, 2007, he was approached by Joe Guffey and Donzay
Patterson, one of Respondent’s operations managers. Brum-
back stated that Guffey and Patterson told him to take the but-
ton off, to wear it on his own time, not EMS’ time. Patterson
also allegedly asked him who else was wearing a union button.
Brumback testified further that before he could respond, Patter-
son interrupted him and said, “never mind. I’ll find out for
myself.”
With regard to complaint paragraph 5(g), Brumback testified
that Lucas Gronas told him that he would have been discharged
the night he wore the union button had Brumback not removed
it when asked.8
Neither Patterson nor Gronas testified in this proceeding.
Respondent relies completely on the testimony of Joe Guffey to
rebut Brumback’s allegations. Gronas reported to Guffey; Guf-
fey reported to Patterson. Guffey testified that he and Patterson
encountered Brumback and Dustin Austin when they were
wearing union buttons. Guffey stated that Patterson asked
Brumback to move the union button so that it did not conceal
the EMS logo on his shirt. According to Guffey, Brumback did

8 The Union filed an unfair labor practice charge alleging that Brum-
back’s discharge was discriminatory. The General Counsel did not
issue a complaint with regard to this allegation.
so. Guffey denies that Patterson told Brumback that he was not
allowed to wear a union button.
On cross-examination, Brumback admitted that Patterson
may have asked him to remove the button from covering the
EMS logo, Tr. 853. Given Brumback’s uncertainty as to what
Patterson said to him and since I find Brumback no more credi-
ble than Guffey, I dismiss complaint paragraphs 5(c), (d), and
(e).
I dismiss paragraph 5(g) on the grounds that if the General
Counsel has not established that Respondent ordered Brumback
to remove his union button, it is illogical to conclude that Lucas
Gronas told Brumback he would have been fired if he had
failed to comply.
Complaint paragraph 5(f) (interrogation by Donzay Patter-
son): Former EMS employee Frank Frierson testified that on
the evening of January 11, 2007, he was approached by Donzay
Patterson and Joe Guffey in the mailroom of the Sallie Mae
building. Frierson testified that Patterson asked him if he was
siding with the Union and if he knew anything about a meeting
after work. Joe Guffey, who by Frierson’s account was present,
denies that any of this occurred. Having no basis for deeming
Frierson more credible than Guffey, I dismiss complaint para-
graph 5(f).
Complaint paragraph 5(h) (interrogation, threats by Audrita
Kennedy): These allegations are based on the testimony of
Darnell Tillman who worked for EMS from December 2006
until July 3, 2007, when he was fired.9 Tillman testified that he
met union organizer Becky Maran outside of the Indianapolis
Power and Light Building to which he was then assigned just
before work in January 2007.10
According to Tillman, while he was talking to Maran, his
supervisor, Audrita Kennedy, came out of the building and told
him that it was time for him to come inside to work.11 Tillman
testified that Kennedy repeatedly asked him to whom he was
talking. She asked him if he had been talking to church people
and then if they were union people. Tillman stated that Ken-
nedy then said that employees were not allowed to talk to union
people because EMS could lose its contract.
SEIU organizer Mindy Reichelt testified that she observed a
supervisor telling Tillman and some other employees that they
weren’t allowed to talk to union representatives. Tillman did
not testify to Reichelt’s presence and while Tillman testified the
incident occurred when he was reporting to work, Reichelt
testified that it occurred after Tillman left work and was speak-
ing to her, Maran and another union representative.
Respondent did not call Audrita Kennedy as a witness nor
did it claim that she was unavailable to testify. Thus, despite
the variance between Tillman’s account and Reichelt’s account,
his testimony is uncontradicted by Respondent. Therefore, I
credit Tillman’s account and find that Respondent, by Audrita
Kennedy, violated Section 8(a)(1) of the Act by interrogating

9 The General Counsel did not file a complaint with regard to the
Union’s charge that Tillman’s termination violated Sec. 8(a)(3).
10 Tillman was assigned to several different locations while working
for EMS and was assigned to Market Tower when he was terminated.
11 Respondent has admitted that Kennedy was a supervisor pursuant
to Sec. 2(11) of the Act and its agent, pursuant to Sec. 2(13).
EXECUTIVE MGMT. SERVICES 191
Tillman about his union activities, instructing him not to talk to
union representatives and impliedly threatening him with loss
of his job if employees chose to be represented by the SEIU.
Complaint paragraph 5(j) (interference and threats by Rich-
ard Young): The allegations in paragraph 5(j) are predicated on
the testimony of Sandra Jones, one of the two alleged discrimi-
natees who did not work at Market Tower. Jones worked at a
building then occupied by the Sky Bank, a few blocks from
Market Tower in downtown Indianapolis.
Jones testified that she complained to a security guard named
Darrell at Sky Bank that EMS did not have adequate cleaning
supplies at Sky Bank. Darrell worked for a security contractor
at Sky Bank, not for EMS. Jones testified that the next day
EMS District Manager Richard Young summoned her to a
meeting in the basement of the Sky Bank. She states that
Young told her she was not supposed to be going around telling
people that EMS didn’t have adequate cleaners and that Young
said either that someone had previously been fired for doing
this or that Jones could be fired for doing that.
Young confirmed that he did tell Jones that she should not be
complaining to the security guard about EMS’ cleaning sup-
plies. Young testified that he told her that if she was unhappy
with the supplies she should talk to him. He denied that he told
Jones that someone had been fired for complaining to persons
outside of EMS about cleaning supplies and that this had not
occurred. On this last point, I decline to credit Jones as I deem
her testimony no more credible than that of Young.
I dismiss paragraph 5(j) because to the extent that I have
credited Jones, her testimony does not establish a violation of
Section 8(a)(1). The statements attributed to Young by Jones
did not interfere with, restrain, or coerce her in regard to any
right protected by Section 7 of the Act. These statements did
not pertain to her union activity and there is no evidence that
Jones was engaged in concerted protected activity.12 Thus,
there is no evidence that she was complaining about the clean-
ing supplies on behalf of anyone but herself.

12 Sec. 8(a)(1) provides that it is an unfair labor practice to interfere
with, restrain, or coerce employees in the exercise of the rights guaran-
teed in Sec. 7. Sec. 7 provides that, “employees shall have the right to
self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection. . . .” (Emphasis added.)
In Myers Industries (Myers I), 268 NLRB 493 (1984), and in Myers
Industries (Myers II), 281 NLRB 882 (1986), the Board held that “con-
certed activities” protected by Section 7 are those “engaged in with or
on the authority of other employees, and not solely by and on behalf of
the employee himself.” However, the activities of a single employee in
enlisting the support of fellow employees in mutual aid and protection
is as much concerted activity as is ordinary group activity. Individual
action is concerted so long as it is engaged in with the object of initiat-
ing or inducing group action, Whittaker Corp., 289 NLRB 933 (1988);
Mushroom Transportation Co., 330 F.2d 683, 685 (3d Cir. 1964).
Additionally, the Board held in Amelio’s, 301 NLRB 182 (1991),
that in order to present a prima facie case that an employer has dis-
charged an employee in violation of Sec. 8(a)(1), the General Counsel
must establish that the employer knew of the concerted nature of the
activity.
Complaint paragraph 5(k) (threats of job loss for wearing
union buttons): In very garbled testimony, Tr. 246–248, Anto-
nio Gutierrez stated that EMS’ project manager at Market
Tower, Aurelia Gonzalez, threatened to fire him if he did not
remove a union button at some unspecified occasion prior to
the beginning of the strike. Gonzalez denies this, Tr. 1029–
1030. I have no reason to credit Gutierrez as opposed to Gon-
zalez.
Karen Knox, who worked as a janitor at the Market Tower
building testified that in June 2007, she wore a union button to
work. She further testified that Aurelia Gonzalez told Knox
that she could not wear a union button at work and that Gon-
zalez would fire her if she wore it again. Knox stated she did
not wear a union button to work afterwards. Knox’s testimony
is somewhat confusing in that she stated that during her first
contact with the Union she told organizer Mindy Reichelt that
Gonzalez had threatened to fire her for wearing a button and
also testified that Reichelt gave her the button.
Gonzalez denies having any conversation with Karen Knox
concerning union buttons. She testified that her supervisor,
Brian Wyatt, told her that employees could wear union buttons
so long as the button was not covering the EMS logo on their
shirts. Gonzalez did not testify as to when Wyatt informed her
of this policy. I credit Gonzalez’ testimony that she communi-
cated this policy to a number of employees, including alleged
discriminatees Maggie Harwell, Antonio Gutierrez, Shaneka
Brown, Knox, Christina Stubbs, Desiree Bryant, and Kevin
McClung prior to the start of the strike which began on Sep-
tember 25, 2007.
Gonzalez’ testimony was corroborated by alleged discrimi-
natee Desiree Bryant, Tr. 696–700. Bryant confirmed that
Gonzalez told a group of employees that they could wear union
buttons so long as they didn’t cover the EMS logo in July.13
The testimony of several of the discriminatees establishes that
by early August 2007, EMS employees at Market Tower wore
union buttons in front of Gonzalez and other supervisors and
were never told to remove the buttons or threatened with disci-
pline or discharge for wearing a button.
Alleged discriminatee Kevin McClung testified that shortly
after he signed a union authorization card on July 30, 2007, he
began wearing a union button to work every day, Tr. 624.
McClung saw Gonzalez approximately once a week and saw
his immediate Supervisor Roberto Solorazano virtually every
day. Neither of them said anything to McClung about his union
button.
Alleged discriminatee Christina Stubbs testified that she
wore a union button to work every day in the 2 weeks prior to
the strike and was never asked to remove it, Tr. 550. Stubbs’
supervisor, Vonda Mathes, saw her wearing the button on many
occasions and I infer Gonzalez saw Stubbs wearing the button
on some occasions as well, Tr. 551.

13 Bryant was uncertain as to whether Stubbs and Webster were pre-
sent and testified that Shaneka Brown was not present when Gonzalez
told employees that they could wear union buttons. However, it is quite
clear that all the discriminatees who worked at Market Tower were well
aware that Respondent would not interfere with their wearing of union
buttons at work weeks, if not months before the start of the strike on
September 25.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 192
I dismiss complaint paragraph 5(k) in part because I deem
much of the General Counsel’s testimony regarding union but-
tons to be contrived and unreliable. I also conclude, as dis-
cussed later in this decision, that by her conversation with em-
ployees at the timeclock in July 2007, Gonzalez cured whatever
unfair labor practices may have been committed with regard to
the wearing of union buttons at Market Tower prior to that date.
Complaint paragraph 5(m) (interrogation by Richard
Young): This allegation is apparently based on the testimony
of Damon Morrow, who worked at the Guaranty Building as an
acting supervisor for EMS. Morrow testified that on July 9, he
left work despite contrary instructions from EMS Manager
Richard Young. Young, he said, tried to talk Morrow into
working that night, but Morrow declined citing grievances he
had with EMS. Then Morrow stated that Young asked him, “if
he was screaming union.” The General Counsel asserts that
this was an unlawful interrogation. Young denies that he made
the statements attributed to him by Morrow. Having no basis
for crediting Morrow’s testimony over that of Young, I dismiss
complaint paragraph 5(m).
Complaint paragraphs 5(n), (o), (q), and (s) (prohibition of
union buttons; threats of job loss by Vonda Mathes): The Gen-
eral Counsel alleges in paragraphs 5(n) and (o) that in July
2007, Supervisor Vonda Mathes instructed employees at Mar-
ket Tower not to wear union buttons. These allegations are
supported by the testimony of Desiree Bryant.14
Paragraph (q), predicated on the testimony of Shaneka
Brown, alleges similar threats by Mathes in September. Para-
graph(s) predicated on the testimony of Harry Webster alleges
similar threats by Mathes in October after the strike began.
I am unable to credit any of the discriminatees’ testimony
regarding statements by Vonda Mathes due to its inherent im-
probability and instances in which their testimony was contra-
dicted on cross-examination and/or by sworn affidavits given
during the investigation of the Union’s charges.
Shaneka Brown testified that Mathes told her that she was
not permitted to wear a union button and could be written up or
terminated if she did so. However, Brown continued to wear
the button without being written up or disciplined.
Karen Knox wore a visible union bracelet to work every day.
Christina Stubbs testified that she wore a visible union but-
ton and a union bracelet to work every day for a month before
the strike and was never told to remove either one by anyone,
including Vonda Mathes.
Harry Webster testified that Mathes told him he could not
wear a union button in August 2007, but neglected to mention
this in an affidavit given to the Board on September 12.
Desiree Bryant also continued to wear a union button to
work every day for a month prior to the strike.
Mathes denied these allegations under oath and I conclude
that it is highly improbable that she threatened some employees
with discipline or discharge over their union button but did and
said nothing to others who wore the button to work every day.

14 In its posttrial brief, at p. 20, the General Counsel withdrew the al-
legation in complaint par. 5(n)(ii) that Mathes also threatened employ-
ees with loss of their jobs if they engaged in union activities, including
wearing union buttons.
Complaint paragraph 5(p)(i) alleged interrogation and (ii)
threat of surveillance by EMS Supervisor Linda DeJournette:
Former EMS employee Star Carnell had a conversation with
Linda DeJournette, her supervisor at the Guaranty Building, in
August 2007.15 DeJournette asked Carnell about the Union.
The two women had a discussion about the Union and DeJour-
nette indicated that she wasn’t interested in being in a union.
A week later, DeJournette told Carnell that, “she felt like she
was there to be Richard’s [Young] eyes and ears. He asked her
to be his eyes and ears and she said that he had his own eyes
and ears, and she felt like she was there to do his dirty work,
and that she said she didn’t see anything wrong with the union,
but it just wasn’t for her.”
Regarding paragraph 5(p)(i), the applicable test for determin-
ing whether the questioning of an employee constitutes an
unlawful interrogation is the totality-of-the-circumstances test
adopted by the Board in Rossmore House, 269 NLRB 1176
(1984), affd. sub nom. Hotel Employees Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985). In analyzing alleged interrogations
under the Rossmore House test, it is appropriate to consider
what have come to be known as “the Bourne factors,” so named
because they were first set out in Bourne v. NLRB, 332 F.2d 47,
48 (2d Cir. 1964). Those factors are:

(1) The background, i.e. is there a history of employer
hostility and discrimination?
(2) The nature of the information sought, e.g., did the
interrogator appear to be seeking information on which to
base taking action against individual employees?
(3) The identity of the questioner, i.e. how high was
he in the company hierarchy?
(4) Place and method of interrogation, e.g. was em-
ployee called from work to the boss’s office? Was there
an atmosphere of unnatural formality?
(5) Truthfulness of the reply.

These and other relevant factors “are not to be mechanically
applied in each case.” 269 NLRB at 1178 fn. 20, Medicare
Associates, Inc., 330 NLRB 935, 939 (2000).16 DeJournette
was a low-level supervisor, who did not appear to be seeking
information on which to take action against employees. Also,
given the informal setting (by the security guard’s desk) and
nature of the conversation, I conclude that DeJournette’s ques-
tions to Carnell did not violate Section 8(a)(1).
With regard to paragraph 5(p)(ii), it is clear that DeJournette
did not violate the Act when she told Carnell that she was not
going to be Richard Young’s “eyes and ears.” Moreover, I also
conclude that the General Counsel has not established that
Young’s instructions to DeJournette violated the Act. It may be
that he was asking no more of DeJournette than, “to keep him
informed, as any supervisor would be expected to, of what was

15 I credit Carnell’s uncontradicted account of her conversations with
DeJournette. DeJournette did not testify. Richard Young did not tes-
tify that he did not tell DeJournette that he wanted DeJournette to be
“his eyes and ears.”
16 Medicare Associates is frequently cited by the name Westwood
Health Care Center.
EXECUTIVE MGMT. SERVICES 193
happening with the union organizing campaign,” Wayne J.
Griffin Electric, 335 NLRB 1362, 1384 (2001).17
Complaint paragraph 5(r) (Aurelia Gonzalez threatens em-
ployees with job loss). This allegation is predicated on the
testimony of former EMS janitor Antonio Gutierrez. Gutierrez
testified with the assistance of an interpreter and even so, his
testimony is extremely difficult to understand and it is not ap-
parent at times whether Gutierrez understood what he was be-
ing asked (e.g., Tr. 247).
Gutierrez testified that on one occasion in early October, 2
weeks after the strike began at Market Tower, he encountered
his Supervisor Aurelia Gonzalez when leaving a Subway res-
taurant. He testified that in response to his greeting, Gonzalez
said, “we’re crazy.” According to Gutierrez, Gonzalez pro-
ceeded to tell him that some strikers had already returned to
work, that the materials they were handing out were being
thrown away and that “actually all of us [who] were out there
were fired.”
On cross-examination Gutierrez testified that Gonzalez told
him, “we were fired, but if we wanted to return to go to the
office.” He again stated that Gonzalez told him that other strik-
ers had returned to work.
Aurelia Gonzalez confirmed that she ran into Gutierrez at a
Subway. She testified that she asked Gutierrez when he was
coming back to work and did not tell Gutierrez that he’d been
fired. I find Gonzalez’ account of the conversation at least as
credible as that of Gutierrez and dismiss paragraph 5(r) of the
complaint.18
Complaint paragraph 5(t) (Supervisor Linda DeJournette
threatens unspecified reprisals): I credit Star Carnell’s uncon-
tradicted testimony that on October 11, 2007, several strikers
were waiting outside the Guaranty Building waiting for an
EMS employee to leave work. When the employee approached
the strikers, Linda DeJournette, the EMS supervisor at Guar-
anty, “pulled at her shirt and pointed at us, and ran he[r] finger
across her neck, like to not talk to us.” DeJournette’s gesture
constitutes a threat of reprisal which violates Section 8(a)(1),
Joseph Victori Wines, 294 NLRB 469, 472–473 (1989).
Complaint paragraph 5(u) (Supervisor Lena Armour threat-
ens job loss): Dana Wilson worked for EMS for 1 day, No-
vember 11, 2007, at Market Tower. The Union’s strikers were
outside the building when Wilson arrived. Wilson testified that
Lena Armour, a statutory supervisor, told her that the employ-
ees who were on strike were not getting their jobs back. Wil-
son got locked in a stairwell on her way out of work that night
and joined the picket line outside Market Tower the next day.

17 I conclude that the context of Young’s instructions are materially
distinguishable from those in Teksid Aluminum Foundry, 311 NLRB
711 fn. 2, 713 (1993), in which the employer’s human resources direc-
tor instructed supervisors and statutory employees to keep our eyes and
ears open because Teksid would not allow a union. The statement in
Teksid indicated a desire to interfere with employees Sec. 7 rights and
invited statutory employees to spy on other statutory employees.
18 Assuming that this incident transpired as testified to by Gutierrez,
there is no evidence that he discussed it with other strikers. Thus, it
could not be a factor in prolonging the strike. Moreover, Gutierrez did
not testify that this incident convinced him to remain on the picket line
rather than returning to work.
Armour denies making the statements attributed to her by
Wilson. I find Armour to be at least as credible as Wilson and
dismiss paragraph 5(u).
Complaint paragraph 6 (discriminatory 1-day delay in issu-
ing strikers’ paychecks): Several alleged discriminatees (San-
dra Jones, Harry Webster, Ronicka Evans) and witness Star
Carnell testified that EMS employees were normally paid on
Thursday evening but that on October 4, 2007, the first payday
after their strike began, they were required to wait until Friday
evening, October 5, to receive their paychecks.
Respondent’s witnesses testified that EMS normally pays its
employees on Friday and that the strikers were paid at the same
time as nonstrikers. There is a discrepancy between the testi-
mony of Respondent’s witnesses Shelton Jones (between 8 and
10 p.m.) and Aurelia Gonzalez (at 11:45 p.m.) as to the time the
strikers’ checks were passed out. However, EMS’s witnesses’
testimony that the strikers were paid at the same time as non-
strikers is uncontroverted. Thus, I find that payment to the
strikers on Friday was not discriminatory and did not violate
the Act. Therefore, I dismiss the allegations in paragraph 6.
Complaint paragraph 7 (alleged refusal to reinstate the
strikers): On May 9, 2008, the Union faxed to Respondent
unconditional offers to return to work signed by alleged dis-
criminatees Sandra Jones, Harry Webster, Desiree Bryant,
Shaneka Brown, Christina Stubbs, Ronicka Evans, Antonio
Gutierrez, and Kevin McClung. Alleged discriminatee Maggie
Harwell appeared at Respondent’s corporate office in order to
offer to return to work. Alleged discriminatee Karen Knox
appeared in person at Market Tower to attempt to return to
work.
On May 15, Respondent sent each of the alleged discrimina-
tees a letter refusing to reinstate them on the grounds that their
strike was not an unfair labor practice strike and that they had
engaged in picketing which was unprotected because it violated
Section 8(b)(7)(C) of the Act.
E. Legal Analysis with Regard to Complaint Paragraph 7
1. Participation in picketing which violates Section 8(b)(7)(C)
is, as a general proposition, a valid reason for refusing to
reinstate strikers
Unfair labor practice strikers who make unconditional offers
to return to work are entitled to immediate reinstatement to
their former positions. They are entitled to reinstatement
whether or not replacements for them have been hired, Grinnell
Fire Protections Systems Co., 335 NLRB 473, 475 (2001).
On the other hand, the Board held as long ago as 1972, that
an employer may refuse to reinstate economic strikers who
engage in picketing that violates Section 8(b)(7)(C), Local 707,
Motor Freight Drivers (Claremont Polychemical Corp.), 196
NLRB 613, 627–630 (1972). It is also true that an otherwise
economic or recognitional strike becomes an “unfair labor prac-
tice strike” if an employer’s unfair labor practices “had any-
thing to do with causing the strike,” Decker Coal Co., 301
NLRB 729, 746 (1991); Domsey Trading Corp., 310 NLRB
777, 791 (1993). Moreover, the Board will not “calculate the
degree of importance, or weight to be attached to” the em-
ployer’s unfair labor practices in characterizing the nature of a
strike, Cal Spas, 322 NLRB 41, 60 (1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 194
However, the General Counsel must prove that the em-
ployer’s unfair labor practices were causally related to either
the employees’ decision to strike or remain on strike to estab-
lish their status an unfair labor practice strikers, C-Line Ex-
press, 292 NLRB 638 (1989), Post Tension of Nevada, Inc.,
353 NLRB 826, fn. 2, 835–836 (January 30, 2009). While
substantial weight may be given to the strikers’ characterization
of their motives, the Board must be wary of self-serving rheto-
ric which is inconsistent with the factual context of the strike,
Soule Glass Co. v. NLRB, 652 F.2d 1055, 1080 (1st Cir. 1980);
C-Line Express, supra.
Conversely, a causal connection between a strike and an em-
ployer’s unfair labor practices may be inferred even without
testimony from the strikers citing the unfair labor practices as
motivating their strike, Child Development Council of North-
eastern Pennsylvania, 316 NLRB 1145 (1995). Thus, the fac-
tual context of the strike and the ULPs must be examined re-
gardless of the strikers’ testimony. In Child Development
Council, the fact that a serious unfair labor practice occurred 3
days before the strike began was critical in the Board’s decision
to infer a causal connection. In Domsey Trading, the serious-
ness of the unfair labor practices and their temporal relationship
to the strike (two discharges of organizing committee members
within 3 weeks of the strike) were also critical to the Board’s
determination. In Cal Spas, supra, the employer had engaged
in illegal video surveillance of employees’ protected activities
just 14 days prior to the strike. Moreover, union organizers
mentioned this unfair labor practice in exhorting employees to
strike on the day of the walkout.
The strike and the picketing by the alleged discriminatees in
this case was primarily, if not exclusively, motivated by their
desire and the Union’s desire to pressure EMS into recognizing
and bargaining with the Union.19 By doing so for more than 30
days without the filing of a representation petition by the Un-
ion, the discriminatees and the Union violated Section
8(b)(7)(C), which provides that:

. . . it shall be an unfair labor practice for a labor organization
or its agents:

(7) to picket or cause to be picketed, or threaten to
picket or cause to be picketed, any employer where an
object thereof is forcing or requiring an employer to
recognize or bargain with a labor organization as the
representative of his employees, or forcing or requiring the
employees of an employer to accept or select such labor
organization as their collective-bargaining representative,
unless such labor organization is currently certified as the
representative of such employees:
(C) where such picketing has been conducted without
a petition under section 9(c) [section 159(c) of this title]
being filed within a reasonable period of time not to
exceed thirty days from the commencement of such

19 See, e.g., R. Exh. 192; testimony of discriminatees Gutierrez at Tr.
257–258, 263–264; Jones at Tr. 419–420; Brown at Tr. 472–473; Knox
at Tr. 523–524; Stubbs at Tr. 542–543, 549, 554–555; Harwell at Tr.
567; 576; Webster at Tr. 595–595; McClung at Tr. 627, 631; Evans at
Tr. 665–666; Bryant at Tr. 679–680, R. Exh. 171.
picketing: Provided, That when such a petition has been
filed the Board shall forthwith, without regard to the
provisions of section 9(c)(1) [section 159(c)(1) of this
title] or the absence of a showing of a substantial interest
on the part of the labor organization, direct an election in
such unit as the Board finds to be appropriate and shall
certify the results thereof: Provided further, That nothing
in this subparagraph (C) shall be construed to prohibit any
picketing or other publicity for the purpose of truthfully
advising the public (including consumers) that an
employer does not employ members of, or have a contract
with, a labor organization, unless an effect of such
picketing is to induce any individual employed by any
other person in the course of his employment, not to pick
up, deliver or transport any goods or not to perform any
services.
Nothing in this paragraph (7) shall be construed to
permit any act which would otherwise be an unfair labor
practice under this section 8(b) [this subsection].

It is clear from the record, including the testimony of the dis-
criminatees that they went on strike to pressure EMS into rec-
ognizing the Union and signing the Union’s master collective-
bargaining agreement. It is uncontroverted that all of the dis-
criminatees picketed EMS for several months. It is also uncon-
troverted that the Union never filed a representation petition.
Thus, the only issue in this case is whether the discriminatees’
strike was in substantial part an unfair labor practice strike, as
well as a strike for economic and recognitional purposes. I
conclude that the General Counsel has failed to meet his burden
of proving that the strike was causally related to any unfair
labor practice committed by Respondent.
F. The General Counsel Failed to Prove a Causal
Connection Between any Unfair Labor Practice and the Strike
1. Alleged ULPs occurring in January 2007
There is simply no reason to believe that the alleged dis-
criminatees in this case were motivated to strike, or remain on
strike by Respondent’s unfair labor practices, or even the al-
leged unfair labor practices I have dismissed. Several of these
alleged ULPs occurred 8 months before the strike began at
locations other than those at which any of the strikers worked.
None of the strikers appeared to be at all familiar with these
incidents.
With regard to other prestrike alleged ULPs, there is no evi-
dence that the strikers were motivated to strike or even were
aware of the allegation that Richard Young interrogated Damon
Morrow in July at the Guaranty Building.
2. Alleged ULPs occurring at the Sky Bank in June
At a union meeting at the home of former EMS employee
Darnell Tillman, shortly before the strike, Sandra Jones appar-
ently told some other strikers that Young told her not to com-
plain to the security guard at Sky Bank about her cleaning sup-
plies and that he threatened to fire her if she did so. Ignoring
for the moment the fact that I declined to find that Young vio-
lated the Act, I find that if he did so, the General Counsel has
not established a causal connection between this incident and
the strike.
EXECUTIVE MGMT. SERVICES 195
I have credited Jones only to the extent that Young told her
not to complain about cleaning supplies to the security guard. I
have not credited Jones’s testimony that Young impliedly
threatened to fire her. Young’s discussion with Jones occurred
3 months before the strike and there are no other alleged pre-
strike ULPs either at Sky Bank or involving Jones. Even as-
suming that Jones discussed Young’s admonition with other
strikers, it defies credulity to believe that it had anything other
than a de minimis effect on the decisions of the strikers. My
reasons for declining to draw any casual connection between
Jones’ interaction with Young and the strike are as follows:
Union literature distributed during the strike contained a full
page regarding Sandra Jones’ dissatisfaction with working con-
ditions at EMS. The Union made no mention of her interaction
with Young regarding Jones’ conversation with the security
guard in June, Tr. 447–449, R. Exh. 86.
Several of the strikers, Gutierrez, Knox, Brown, McClung,
Evans, and Bryant were not present at the meeting at Darnell
Tillman’s house and there is no other evidence that they were
familiar with Jones’ interaction with Young or that they went
on strike due to anything that occurred at Sky Bank.
Christina Stubbs attended the meeting at Darnell Tillman’s
house but could not recall any specific incidents that were dis-
cussed, Tr. 540. Stubbs testified that she did not go on strike
due to anything that occurred at Sky Bank, Tr. 554.
Maggie Harwell similarly did not testify to recalling any
conversation about Jones’ experience and testified that she was
not motivated to go on strike by anything that occurred at Sky
Bank, Tr. 565, 577–578. The same holds true for Harry Web-
ster, Tr. 591–593, 610.
3. Alleged ULPs re: union buttons
Even assuming that Vonda Mathes and Aurelia Gonzalez
told employees that they were not allowed to wear union but-
tons at work prior to July, it also defies credulity that the strik-
ers were motivated by these incidents since Gonzalez made it
clear to them in July that they were free to wear union buttons
so long as they didn’t cover the EMS logo.
4. There is no evidence that alleged ULPs after
September 25 prolonged the strike
Similarly, there is absolutely no evidence that any of the al-
leged unfair labor practices occurring after September 25, pro-
longed the strike. For example, none of the strikers alleged that
they remained on strike because Respondent delayed paying
them their last check for 1 day. Assuming Gonzalez told Anto-
nio Gutierrez that all the strikers were fired in October, there is
no evidence that he told any other strikers about the incident
and no evidence that it motivated Gutierrez to stay out on strike
as opposed to returning to work. Indeed, if the incident oc-
curred, one would expect it to have motivated Gutierrez to go
back to work.
There is no evidence that Dana Wilson told other strikers
that Lena Armour told her in November that all the strikers had
been fired or any evidence that it had any impact on the strik-
ers’ motivation to remain on strike. Finally, while several
strikers may have witnessed Linda DeJournette draw her finger
across her throat in October, there is no evidence that this inci-
dent had any impact on the duration of any employee’s strike.
5. The Colonial Haven decision relied on by the General
Counsel and Charging Party is distinguishable from
the instant case
In Colonial Haven Nursing Home, Inc., 218 NLRB 1007
(1975), enf. denied 542 F.2d 691 (7th Cir. 1976), the Board
reversed its judge, who had dismissed a complaint allegation
regarding Colonial Haven’s refusal to reinstate strikers. The
judge had found that the strikers had violated Section
8(b)(7)(C) and thus the employer did not violate the Act in
refusing to reinstate them. The Board found, contrary to the
judge, that the employees’ strike and picketing were motivated
in substantial part by Colonial Haven’s unfair labor practices.
Thus, the Board concluded that the employees did not lose their
right to reinstatement upon their unconditional offer to return to
work because an object of the strike may also have been to
obtain recognition or an expedited election, id. at 1011.
The Colonial Haven case is easily distinguishable from the
instant matter. First of all, the strike and picketing in that case
lasted 34 days, which the Board indicated was a “technical
violation” of Section 8(b)(7)(C). In the instant case, the recog-
nitional picketing went on for many months and only ceased
when the General Counsel threatened to seek an injunction and
then filed a complaint against the Union.
Secondly, the employer in Colonial Haven did not rely on
picketing beyond 30 days without filing a petition as a reason
for denying its employees reinstatement. In the instant case,
EMS stated this was the reason for its denial of reinstatement.
Finally and most importantly, the Board found that Colonial
Haven’s unfair labor practices contributed to the employees’
motivation to strike. I find that not to be the case herein. A
strike is not an unfair labor practice strike simply because the
strikers or their union say it is, Soule Glass Co. v. NLRB, 652
F.2d 1055, 1080 (1st Cir. 1981); C-Line Express, supra.
Out of all the unfair labor practice charges filed by the Union
herein, I have concluded that the General Counsel has estab-
lished a very few ULPs. One was committed by Audrita Ken-
nedy, a low-level supervisor at the Indianapolis Power and
Light Building, who in January interrogated and threatened
Darnell Tillman. This occurred 8 months prior to the strike.
None of the strikers worked at this location and none of them
testified that they were aware of this incident. I find that none
of the strikers were motivated by this ULP and the extent to
which their Union may have so motivated, this ULP was in the
immortal words of Justice Cardozo, not a “proximate cause” of
the strike.
The only other unfair labor practice established by the Gen-
eral Counsel is the one committed by another low-level super-
visor, Linda DeJournette, on October 11, 2007, 3 weeks into
the strike. DeJournette drew her finger across her throat when
pointing at several strikers outside the Guaranty Building.
There is no evidence that this incident in any way motivated the
strikers to continue their recognitional picketing for months
afterwards. Thus, I reject the allegation at the end of the com-
plaint that presettlement unfair labor practices prolonged the
discriminatees’ strike.
Even assuming that the General Counsel had established the
many alleged violations pertaining to the wearing of union
buttons, I would find that Respondent cured these violations at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 196
least with respect to Market Tower, when in July, Project Man-
ager Aurelia Gonzalez informed a group of employees, includ-
ing many who would go on strike 2 months later, that they were
free to wear union buttons so long as they did not obscure the
EMS logo.
EMS did not necessarily meet all the criteria set forth in Pas-
savant Memorial Area Hospital, 237 NLRB 138 (1978), for
curing past unfair labor practices. However, in Claremont Re-
sort & Spa, 344 NLRB 832 (2005), two of the three Board
members stated that they “do not necessarily endorse all the
elements of Passavant.” In any event, by its terms the Passa-
vant decision indicates that what an employer must do to cure a
violation may depend on the nature of the violation. The Pas-
savant case concerned a threat, which was communicated to
30–40 employees, that they would be fired if they engaged in
an economic strike. In such a case, the Board found that repu-
diation must be (1) timely, (2) unambiguous, (3) specific to the
coercive conduct, and 4) free from other prescribed illegal con-
duct. The Board distinguished the facts in Passavant from
those in Kawasaki Motors Corp., USA, 231 NLRB 1151, 1152
(1978). In Kawasaki, it dismissed an allegation of a single
incident of supervisor surveillance based upon the employer’s
simple disavowal of the supervisor’s conduct.
Assuming, as I have found, that no button-related violations
occurred afterwards, Gonzalez effectively cured any unfair
labor practice violations relating to union buttons that may have
occurred prior to her talk with employees who supported the
Union, River’s Bend Health & Rehabilitation Center, 350
NLRB 184, 193 (2007).
Finally, Respondent established that the striking employees
were not in any significant manner motivated by the alleged
unfair labor practices in going on strike or picketing its facili-
ties. Each one of the alleged discriminatees conceded on cross-
examination that the reasons they went on strike had nothing to
do with alleged unfair labor practices at locations other than
those at which they worked: Gutierrez, Tr. 250, 257; Jones, Tr.
419, 428; Brown, Tr. 472, 479–480; Knox, Tr. 522–525;
Stubbs, Tr. 548–549, 553–554; Harwell, Tr. 567, 576–578;
Webster, Tr. 610; McClung, Tr. 627; Evans, Tr. 647, 665, and
Bryant, Tr. 703–704.
CONCLUSION OF LAW
I have found that the alleged discriminatees were not en-
gaged in an unfair labor practice strike and that Respondent
was entitled to deny them reinstatement due to their participa-
tion in picketing which violated Section 8(b)(7)(C). Therefore,
I find that Respondent’s refusal to reinstate these employees did
not constitute a valid basis for the Regional Director’s revoca-
tion of the settlement agreement and dismiss the consolidated
complaint in its entirety, Abell Engineering & Mfg., 338 NLRB
434, 435 (2002).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended20
ORDER
The complaint is dismissed and the settlement agreement ap-
proved by the Regional Director on May 7, 2008 is reinstated.21

20 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
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
21 The General Counsel requested that the Board make findings of
fact and conclusions of law that Respondent engaged in the unfair labor
practices alleged in pars. 5(a)–(u) and 6(a)–(b) without ordering a rem-
edy for any presettlement unfair labor practices.