First American Enterprises d/b/a Heritage Lakeside

National Labor Relations Board - Board Decisions

Apr 9, 2020

369 N.L.R.B. 54 (N.L.R.B. 2020)

369 NLRB No. 54
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
First American Enterprises d/b/a Heritage Lakeside
and United Food and Commerical Workers Un-
ion Local 1189. Cases 18–CA–211284, 18–CA–
212666, 18–CA–216776, and 18–RC–212417
April 9, 2020
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On February 7, 2019, Administrative Law Judge Arthur
J. Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General Coun-
sel filed an answering brief, and the Respondent filed a
reply brief. The General Counsel also filed cross-excep-
tions and a supporting brief, and the Respondent filed an
answering brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions1 and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions2 only to the extent consistent with
this Decision and Order.
I. BACKGROUND
The Respondent operates a nursing home in Rice Lake,
Wisconsin. On January 2, 2018,3 United Food and Com-
mercial Workers Union Local 1189 (the Union) filed a
1 The Respondent has implicitly excepted to some of the judge’s cred-
ibility findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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.
2 We have amended the judge’s conclusions of law consistent with
our findings herein. We shall also modify the judge’s recommended Or-
der to conform to our findings and to the Board’s standard remedial lan-
guage, and we shall substitute a new notice to conform to the Order as
modified.
3 All subsequent dates are in 2018 unless otherwise indicated.
4 Before July 2017, the Respondent operated two nursing homes in
the Rice Lake, Wisconsin vicinity: Heritage Manor and Heritage
Lakeside. The Union represented the cooks, dietary aides, activity aides,
housekeeping personnel, and certified nursing assistants at Heritage
Lakeside; Heritage Manor employees were not unionized. Between July
and October 2017, the Respondent closed Heritage Manor and trans-
ferred most of the patients and employees from that facility to Heritage
Lakeside. On December 4, 2017, the Respondent withdrew recognition
from the Union, stating that of the 70 bargaining unit employees, 47 were
transferees from the nonunion Heritage Manor facility and only 23 were
from the unionized Heritage Lakeside location. The Union promptly
filed a petition for an election.
representation petition, and the Board conducted an elec-
tion on February 1.4 The ballots were impounded until
March 8, when a tally of the ballots established that 25
votes were cast for and 25 votes were cast against the Un-
ion. On March 15, the Union filed objections to conduct
affecting the results of the election, and the Regional Di-
rector ordered a hearing on two of the objections.5 On
June 27, the General Counsel, pursuant to charges filed by
the Union, issued a consolidated complaint alleging that
the Respondent committed numerous unfair labor prac-
tices both before and during the critical preelection period,
and on July 27, Case 18–RC–212417 was consolidated for
hearing with the unfair labor practice cases. On December
12, a hearing was held before Administrative Law Judge
Amchan. As discussed below, the judge found four of the
alleged violations and dismissed the remaining allega-
tions,6 and he recommended that the election results be set
aside.
II. DISCUSSION
A. Overview
First, we agree with the judge, for the reasons stated in
his decision and as further discussed here, that the Re-
spondent violated Section 8(a)(1) of the Act by promul-
gating, disseminating, and/or enforcing a new policy pro-
hibiting conversations other than those that are “resident-
centered” in working areas;7 threatening employees,
through Director of Nursing (DON) Kristina Taylor, with
unspecified reprisals if they refused to sign or violated the
new policy;8 and maintaining a “Non-disclosure” policy
5 The Regional Director ordered a hearing on Objection 1 (alleging
that the Respondent forced employees to sign a new policy that prohib-
ited them from discussing the Union in the workplace) and Objection 3
(alleging that the Respondent interrogated employees about how they in-
tended to vote in the election and instructed them to vote if they intended
to vote against the Union).
6 There are no exceptions to the judge’s dismissal of allegations that
the Respondent violated Sec. 8(a)(1) of the Act when Dietary Manager
Melissa Kern asked employees how they were going to vote in the elec-
tion and when, after the election, she asked employees how they voted
and subsequently recorded their votes in a notebook.
7 We agree with the judge that the Respondent violated the Act by
promulgating the “resident-centered” conversation policy in response to
union activity, i.e., only 6 days after the filing of the representation peti-
tion. See Lutheran Heritage Village-Livonia, 343 NLRB 646, 647
(2004) (Lutheran Heritage) (“If the rule does not explicitly restrict ac-
tivity protected by Section 7, the violation is dependent upon a showing
of one of the following . . . (2) the rule was promulgated in response to
union activity.”); accord Boeing Co., 365 NLRB No. 154, slip op. at 2–
3 (2017) (leaving undisturbed Lutheran Heritage “prong two,” which
states that a rule promulgated in response to union activity is unlawful).
8 In affirming the judge’s finding as to this violation, we rely on the
fact that DON Taylor, when disseminating the quality care management
form (QCM Form) containing the “resident-centered” conversation pol-
icy, told employees that they could not leave the room or take their
breaks until they signed the QCM Form and that they should not
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in its employee handbook that prohibits employees from
discussing salary or wage information.9
We also agree with the judge, for the reasons stated in
his decision and as further discussed here, that the Re-
spondent did not violate the Act when Administrator
Derek Joswiak and Vice President of Operations Eric
Everson asked employee Carolyn Hafele whether she still
wanted to be in the Union; when Manager Kern repeatedly
told employee Kayla Anderson that employees need to
vote “no” in the election;10 and when Manager Kern, on
the morning of the election, told Hafele and employee Lily
Swanson that voting for union representation is incompat-
ible with having a good relationship with their supervi-
sor.11
However, as discussed below, we reverse the judge and
find that the Respondent violated Section 8(a)(1) of the
Act when Administrator Joswiak told employee Darla
Buesser to keep confidential their discussion about
Buesser’s union-related conversation with Hafele, and
Manager Kern solicited Hafele to “work on” Swanson to
get her to vote against the Union. We also reverse the
judge and find that the Respondent did not violate the Act
when Administrator Joswiak asked Buesser about a union-
related conversation with Hafele.
Finally, we agree with the judge, for the reasons stated
in his decision and those set forth below, that the election
should be set aside.
B. Administrator Joswiak’s Conversation with Buesser
In August 2017, Buesser, a certified nursing assistant
and one of two union stewards at Heritage Lakeside, ap-
proached dietary aide Hafele and urged her to sign a union
membership application. Buesser stated that the Union
was the only thing that would save Hafele’s job once the
two facilities merged. She also warned Hafele that be-
cause employees transferring from Heritage Manor had
greater seniority than Hafele, Hafele could lose her job
without the Union. Hafele filled out the application,
disrespect her or there would be consequences. Taylor’s comments con-
stituted a threat of unspecified reprisals and would reasonably tend to
interfere with employee rights under the Act, as she strongly suggested
that the Respondent would take disciplinary action if employees refused
to sign or violated the newly disseminated and illegal rule. See NLRB v.
Long Island Assn. for AIDS Care, Inc., 870 F.3d 82, 87–88 (2d Cir. 2017)
(enforcing Board’s finding of a Sec. 8(a)(1) violation where the employer
summoned an employee to a meeting, demanded that he sign an unlawful
confidentiality agreement “or get fired,” and added that the employee
“just terminated his own employment” because he wrote “under duress”
on the confidentiality statement when he signed it).
9 Specifically, we find that the non-disclosure policy is unlawful un-
der Boeing Category 3. See Boeing Co., supra, slip op. at 4 (“An example
of a Category 3 rule would be a rule that prohibits employees from dis-
cussing wages or benefits with one another.”).
10 We agree with the judge that the Respondent did not violate the
Act because it is unclear from the record what Dietary Manager Kern
including a dues check-off form, and gave the application
to Buesser, who submitted it to the Respondent’s Business
Manager, Jackie Damaske-Frame. Subsequently,
Hafele’s supervisor Sarah Noggler told Hafele that she did
not need the Union and that Hafele should have talked to
her first. Hafele then went to Damaske-Frame and asked
if it was too late to stop her union dues deduction.
About 2 days later, Administrator Joswiak called Hafele
into his office and said he would have to get back to her
about her union dues cancellation inquiry. Hafele told
Joswiak that Buesser had said that only the Union could
save her job. Joswiak replied that Hafele had nothing to
worry about.
A week later, on about August 17, 2017, Joswiak sum-
moned Buesser to an empty room and asked whether
Buesser had told Hafele that Hafele would be fired if she
did not join the Union. Buesser denied the statement.
Joswiak said he believed her and that he had spoken to his
own boss, Vice President of Operations Everson, who
similarly did not believe the statement. Joswiak then
asked Buesser to keep their conversation confidential.
The judge found that Joswiak’s questioning of Buesser
was an unlawful interrogation. Relying on Rossmore
House, 269 NLRB 1176 (1984), affd. sub nom. HERE Lo-
cal 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), the judge
found that it was coercive for Joswiak to summon Buesser
into an empty room, ask her about an unfounded allega-
tion, and tell her that he had discussed that allegation with
his boss. The judge also found that Joswiak’s request for
Buesser to keep their conversation confidential was not
unlawful because the Respondent had not disciplined
Buesser. We disagree on both counts.
In determining whether the questioning of an employee
about union or other protected activity constitutes an un-
lawful interrogation, the Board considers the totality of the
circumstances, including whether the employee is an open
and active union supporter, whether there is a history of
actually said to Anderson. Therefore, the General Counsel did not carry
his burden of proof.
11 The judge found that Kern told two employees that if they voted
for the Union, they were saying she was a bad boss. We agree with the
judge that the General Counsel did not carry his burden of proving that
the statement was objectively threatening. Rather, the statement con-
veyed no actual threat or promise of benefits. See NLRB v. Gissel Pack-
ing Co., 395 U.S. 575, 618 (1969) (“[A]n employer is free to communi-
cate to his employees any of his general views about unionism or any of
his specific views about a particular union, so long as the communica-
tions do not contain a threat of reprisal or force or promise of benefit.”)
(internal quotations omitted); cf. Heritage Nursing Homes, Inc., 269
NLRB 230, 231 (1984) (finding an employer’s statement threatening
where it “conveys the message that support for the [u]nion and continued
employment by the [employer] are incompatible”).
FIRST AMERICAN ENTERPRISES D/B/A HERITAGE LAKESIDE 3
employer antiunion hostility or discrimination, the nature
of the information sought, the position of the questioner in
the company hierarchy, and the place and method of inter-
rogation. See Rossmore House, supra at 1178 fn. 20.
We find that under Rossmore House, supra, Joswiak’s
questioning of Buesser would not tend to restrain, coerce,
or interfere with the exercise of rights guaranteed by the
Act. Buesser was an open and active union supporter,
Joswiak asked Buesser only a single question and assured
her that he believed her denial, and the Respondent did not
have a history of discrimination. Thus, under Rossmore
House’s totality of the circumstances standard, we find the
evidence insufficient to support an unlawful interrogation
violation. Accordingly, we reverse the judge and dismiss
the allegation.
However, we find that Joswiak’s instruction to Buesser
to keep their conversation confidential was unlawful. Sec-
tion 7 of the Act protects employees’ rights to discuss the
terms and conditions of their employment with other em-
ployees. The Board recently emphasized that employees
not involved in a disciplinary investigation are free to dis-
cuss discipline or incidents that could result in discipline
without a confidentiality limitation, and employees who
are involved may also discuss them, provided they do not
disclose information that they either learned or provided
in the course of the investigation. See Apogee Retail LLC
d/b/a/ Unique Thrift Store, 368 NLRB No. 144, slip op. at
8 (2019).12 Here, Buesser had the right to discuss the in-
teraction with other employees, especially because she
was neither the subject nor witness in a disciplinary inves-
tigation and Joswiak asked her about a union-related con-
versation.
The Respondent does not dispute that Joswiak in-
structed Buesser to keep their conversation confidential.
Instead, it argues that the confidentiality instruction was
necessary to protect Hafele’s privacy. The Respondent,
12 The specific question in Apogee was whether the employer lawfully
maintained two investigative confidentiality rules. The Board, overrul-
ing its prior approach and applying the test for facially neutral workplace
rules established in Boeing Co., 365 NLRB No. 154 (2017), held that
such confidentiality rules generally are lawful where, by their terms, the
rules are limited to the duration of the investigation. The Board reasoned
that “[i]nvestigative confidentiality rules, by their nature, bind those who
are privy to internal investigations from sharing information that might
bias the investigation.” Apogee Retail LLC, supra, slip op. at. 8 fn. 14.
Here, Joswiak demanded confidentiality from Buesser regarding a single
informal question rather than pursuant to an ongoing disciplinary inves-
tigation. In fact, the Respondent itself asserts in its answering brief that
Joswiak’s conversation with Buesser was not a disciplinary investiga-
tion. Thus, Apogee’s holding regarding investigative confidentiality
rules is not controlling.
13 Chairman Ring would not find that the Respondent violated the Act
when Administrator Joswiak asked employee Buesser to keep their con-
versation confidential. That conversation consisted of Joswiak asking
Buesser whether she told employee Hafele that Hafele would be fired if
however, has not pointed to any evidence suggesting that
Joswiak’s instruction was necessary to protect Hafele’s
privacy or that her privacy was at risk. Cf. SNE Enter-
prises, Inc. v. NLRB, 257 Fed. Appx. 642, 646–647 (4th
Cir. 2007) (employer’s justification did not outweigh em-
ployee’s right to discuss his employment conditions; em-
ployer’s investigation was already complete and its desire
to prevent conflict at the plant was “too general” to out-
weigh employee’s rights); Westside Community Mental
Health Center, Inc., 327 NLRB 661, 666 (1999) (em-
ployer’s general testimony about “conflict and friction”
and its “bare claims” about safety were insufficient to jus-
tify instruction to employee not to discuss her discipline).
We therefore find that Buesser’s right to discuss the inter-
action with her coworkers outweighs the Respondent’s as-
serted business justification.
Contrary to our colleague, we believe that Buesser had
a Section 7 right to discuss Joswiak’s questioning about
her union-related conversation with Hafele, regardless of
any assurances Joswiak made, and therefore that the Re-
spondent could not lawfully request confidentiality with-
out a legitimate business justification. We find that the
Respondent’s business justification—concern about
Hafele’s privacy and rumors being spread on the floor
with wrong information—is unpersuasive given that
Joswiak could have preserved Hafele’s confidentiality by
omitting her name from the conversation if confidentiality
was a concern. Accordingly, we reverse the judge and
find that the Respondent violated Section 8(a)(1) of the
Act when Administrator Joswiak asked Buesser to keep
their conversation confidential.13
C. Dietary Manager Kern’s Statement to Hafele
On the morning of the election, Hafele was alone in the
facility’s kitchen when her boss, Manager Kern, told her,
“You got to help me work on Lily [Swanson] to vote no
she did not join the Union, Buesser denying that she had said that,
Joswiak assuring Buesser that he believed her and so did his boss, and
Joswiak requesting confidentiality. That request did not interfere with,
restrain, or coerce Buesser in the exercise of her Sec. 7 right to discuss
terms and conditions of employment with her coworkers. As the sum-
mary of the conversation shows, Joswiak did not ask Buesser what she
did say to Hafele, and he did not instruct Buesser not to repeat to her
coworkers whatever she said to Hafele. Thus, Buesser was free to say to
others what she said to Hafele, i.e., that only the Union would save their
jobs. And contrary to the majority, Joswiak’s request was not unlawful
on the basis that it interfered with Buesser’s right, in their words, “to
discuss discipline or incidents that could result in discipline” because
there was no discipline, and there was no prospect of discipline. Indeed,
Joswiak had just taken the prospect of discipline off the table by telling
Buesser that he and his boss believed her side of the story, and the ma-
jority acknowledges that Joswiak’s conversation with Buesser was not a
disciplinary investigation. Thus, the Chairman would dismiss this alle-
gation.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for the Union today.” The judge summarily found that this
statement did not violate the Act because, as a general
rule, an employer can lawfully encourage employees to
vote against union representation or seek the help of em-
ployees to convince others to vote against representation.
Although the judge is correct that an employer can, under
certain circumstances, lawfully seek the help of employ-
ees to convince others to vote against representation, we
find that those circumstances are not present here. Rather,
we find that the Respondent violated the Act when Man-
ager Kern asked Hafele to help get Swanson to vote “no.”
It is well established that “an employee has a Section 7
right to choose, free from any employer coercion, the de-
gree to which he or she will participate in the debate con-
cerning representation.” Allegheny Ludlum Corp., 333
NLRB 734, 741 (2001), enfd. 301 F.3d 167 (3d Cir. 2002);
see also Smithfield Packing Co., 344 NLRB 1, 3–4 (2004),
enfd. per curiam 447 F.3d 821 (D.C. Cir. 2006). That right
includes “‘the right to express an opinion or to remain si-
lent.’” Dawson Construction Co., 320 NLRB 116, 117
(1995) (quoting Texaco, Inc. v. NLRB, 700 F.2d 1039,
1043 (5th Cir. 1983)). Accordingly, under Board law, em-
ployers may only request that employees solicit other em-
ployees to vote against a union if such request is “gener-
ally made to all employees through [an] indirect and rather
impersonal medium . . . rather than directly to selected
employees by their supervisors.” Leggett & Platt, Inc.,
230 NLRB 463, 463 (1977) (emphasis added). This rule
prevents an employer from using “the power of manage-
ment to instruct [specific] employees to get other employ-
ees to vote against the Union.” Hendrix Mfg. Co., 139
NLRB 397, 405–406 (1962) (finding a violation where su-
pervisors instructed one employee to “go and tell your
friends not to vote for [the union]” and instructed another
employee to “make [other employees] see the light cause
the union wouldn’t do us any good”), enfd. 321 F.2d 100
(5th Cir. 1963).
Here, the facts establish that Manager Kern’s direct re-
quest to Hafele would reasonably tend to coerce Hafele
and/or interfere with her free choice in the election. Cf.
Leggett & Platt, Inc., supra at 463 (finding no violation
where the employer’s requests and solicitations to em-
ployees to vote “no” in the election were generally made
to all employees through a form letter, “rather than di-
rectly to selected employees by their supervisors”). We
therefore reverse the judge and find that the Respondent
violated Section 8(a)(1) when Kern told Hafele to “work
on” getting Swanson to vote against the Union.
III. SECOND ELECTION
In light of the Respondent’s objectionable conduct dur-
ing the Union’s organizing campaign, we adopt the
judge’s finding that the election should be set aside. In
doing so, we rely on the Respondent’s promulgation of the
“resident-centered” conversation policy, the statements
DON Taylor made when disseminating the policy, and
Manager Kern’s instructions to Hafele to “work on” get-
ting Swanson to vote against the Union. Accordingly, we
will set aside the election held on February 1, 2018, sever
Case 18–RC–212417 from the other cases in this consoli-
dated proceeding, and remand that case to the Regional
Director for further appropriate action.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion of
Law 1:
“1. On August 17, 2017, Respondent, by Administrator
Derek Joswiak, violated Section 8(a)(1) by telling Darla
Buesser to keep their conversation confidential.”
Insert the following as Conclusion of Law 5:
“5. On February 1, 2018, Respondent, by Director of
Nursing Kristina Taylor, violated Section 8(a)(1) by solic-
iting employee Carolyn Hafele to “work on” employee
Lily Swanson to get her to vote against the Union.
ORDER
The National Labor Relations Board orders that the Re-
spondent, First American Enterprises, Rice Lake, Wiscon-
sin, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Instructing employees to keep management’s ques-
tions about their union activity confidential.
(b) Maintaining a policy prohibiting conversations
other than those that are “resident-centered.”
(c) Threatening employees with discipline if they en-
gage in activities on behalf of the Union.
(d) Maintaining work rules that prohibit employees
from discussing salary or wage information.
(e) Soliciting specific employees to help “work on” get-
ting other employees to vote against the Union.
(f) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Rescind the policy prohibiting conversations other
than those that are “resident-centered” and notify employ-
ees that the policy has been rescinded.
(b) Rescind the rule in its employee handbook that pro-
hibits the discussion of salary or wage information.
(c) Furnish all current employees with an insert for the
employee handbook that (1) advises that the unlawful rule
has been rescinded or (2) provides a lawfully worded pro-
vision on adhesive backing that will cover the unlawful
provision, or publish and distribute to all current employ-
ees a revised employee handbook that (1) does not contain
FIRST AMERICAN ENTERPRISES D/B/A HERITAGE LAKESIDE 5
the unlawful provision or (2) provides a lawfully worded
provision.
(d) Within 14 days after service by the Region, post at
its Rice Lake, Wisconsin facility copies of the attached
notice marked “Appendix.”14 Copies of the notice, on
forms provided by the Regional Director for Region 18,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material. If 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 em-
ployees employed by the Respondent at any time since
August 17, 2017.
(e) Within 21 days after service by the Region, file with
the Regional Director for Region 18 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
IT IS FURTHER ORDERED that the election held on Febru-
ary 1, 2018, is set aside, and Case 18–RC–212417 is sev-
ered and remanded to the Regional Director for Region 18
to direct a second election whenever the Regional Director
shall deem appropriate.
Dated, Washington, D.C. April 9, 2020
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
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 vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT instruct you to keep management’s ques-
tions about your union activity confidential.
WE WILL NOT maintain a policy prohibiting conversa-
tions other than those that are “resident-centered.”
WE WILL NOT threaten you with discipline if you engage
in activities on behalf of the union.
WE WILL NOT maintain work rules that prohibit you
from discussing salary or wage information.
WE WILL NOT solicit your help to “work on” getting
other employees to vote against the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind our policy prohibiting conversations
other than those that are “resident-centered” and notify
you that the policy has been rescinded.
WE WILL rescind the rule in our employee handbook
that prohibits you from discussing salary or wage infor-
mation.
WE WILL furnish you with an insert for the current em-
ployee handbook that (1) advises that the unlawful provi-
sion has been rescinded, or (2) provides a lawfully worded
provision on adhesive backing that will cover the unlawful
provision; or WE WILL publish and distribute revised em-
ployee handbooks that (1) do not contain the unlawful pro-
vision, or (2) provide a lawfully worded provision.
FIRST AMERICAN ENTERPRISES D/B/A HERITAGE
LAKESIDE
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board’s decision can be found at
https://www.nlrb.gov/case/18-CA-211284 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.
Rachel M. Simon-Miller and Florence Brammer, Esqs., for the
General Counsel.
Robert S. Driscoll and Christopher Schuele, Esqs. (Reinhart
Boerner Van Deuren, S.C.), of Milwaukee, Wisconsin, for
the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Rice Lake, Wisconsin, on December 12, 2018.
UFCW Local 1189 filed the charges in this matter on December
7, 2017, January 8, 2018 and March 19, 2018. The General
Counsel issued the consolidated complaint on June 27, 2018, and
consolidated Case 18–RC–212417 with the unfair labor practice
cases for hearing.
Prior to July 2017, First American Enterprises operated 2
nursing homes in the Rice Lake, Wisconsin vicinity.1 The Union
represented the cooks, dietary aides, activity aides, housekeeping
personnel and certified nursing assistants at one these, Heritage
Lakeside, formerly known as the Rice Lake Convalescent Cen-
ter. The other facility, Heritage Manor, was not unionized.
Between July and October 2017, First American consolidated
the nursing homes, moving most of the patients and employees
from Heritage Manor to Heritage Lakeside. It closed Heritage
Manor. On December 4, 2017, Respondent withdrew recogni-
tion from the Union, stating that 47 of the its then bargaining unit
employees had come from Heritage Manor and only 23 were
from the unionized Heritage Lakeside home.
On January 2, 2018, Local 1189 filed a representation petition.
A Board election was conducted on February 1, 2018. The bal-
lots were impounded until March 8. The tally conducted on that
date established that 25 votes were cast for the Union and 25
votes against it. On March 15, the Union filed objections to con-
duct affecting the results of the election. The Regional Director
ordered a hearing on union objections 1 (Respondent forced em-
ployees to sign a new policy prohibiting discussion of the Union
in the workplace) and 3 (unlawful interrogation and instructing
1 In December 2018 Health Dimensions Group managed Heritage
Lakeside. First American was only a conservator.
employees to vote if they intended to vote against union repre-
sentation). These objections mirror complaint paragraphs 5(c)-
5(h).
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 Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
First American, a Minnesota corporation, operated Heritage
Lakeside, a long-term care facility in Rice Lake, Wisconsin.
Heritage Lakeside is now managed by another business entity.2
Heritage Lakeside annually derives revenues in excess of
$100,000. Heritage Lakeside purchases and receives goods val-
ued in excess of $50,000 directly from points outside of Wiscon-
sin. Heritage Lakeside admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
Complaint Paragraph 5(a) and (b), August 2017 Alleged
Interrogation and Threats
The test as to whether an employer’s statement or conduct vi-
olates Section 8(a)(1) is whether it may reasonably be said that
the conduct or statement tends to interfere with employee rights
under the Act. The employer’s motive in making the statement
or engaging in the conduct is irrelevant to whether it violated
Section 8(a)(1), American Freightways Co., Inc., 124 NLRB
146, 147 (1959).
Darla Buesser, a current employee and activity aide, was one
of 2 union stewards at Heritage Lakeside. In August 2017,
Buesser approached Carolyn Hafele, a dietary aide, and urged
her to sign an application for union membership.3 Buesser told
Hafele that the Union was the only thing that would save her job
when Heritage Manor and Heritage Lakeside merged. Buesser
warned Hafele that employees transferring from Heritage Manor
had greater seniority than Hafele and that as a result, Hafele
might lose her job without the Union.
Hafele was concerned about losing her job in the merger, but
it is unclear whether she had communicated this to Buesser.
Hafele filled out the application, which included authorization
for Respondent to deduct union dues from her paycheck. She
gave the completed application to Buesser who turned it in to
Respondent’s business manager, Jackie Damaske-Frame.
Afterwards, Sarah Noggler, then Hafele’s supervisor, told
Hafele that she did not need to join the Union and that Hafele
should have talked to Noggler before joining. Hafele then went
to Jackie Damaske-Frame and asked if it was too late to stop the
dues deduction.
Two days later, Respondent’s administrator, Derek Joswiak,
called Hafele into his office. He told her that Noggler and Jackie
Damaske-Frame should not have been talking to her about join-
ing the Union. He said he would have to get back to her about
the dues cancellation. Hafele told Joswiak that Buesser had told
2 By Respondent, I mean Heritage Lakeside, regardless of who owned
that facility.
3 Hafele voluntarily left Respondent’s employ in March 2018.
FIRST AMERICAN ENTERPRISES D/B/A HERITAGE LAKESIDE 7
her that only the Union could save her job. Joswiak told Hafele
she had nothing to worry about. There is no credible evidence
that Hafele told anyone that Buesser told her she would be fired
if she did not join the Union.
About a week later, Joswiak approached Buesser and took her
into an empty room. Joswiak told Buesser that Hafele had told
him that Buesser had told Hafele that she would be fired if she
did not join the Union. Buesser denied this. Joswiak told Buesser
that he believed her. Joswiak also told Buesser that he had spo-
ken to his boss, Eric Everson, and that Everson also did not be-
lieve that Buesser had told Hafele that she would be fired if she
did not join the Union.4 Joswiak asked Buesser to keep their
conversation confidential.
A week later, Buesser met with Joswiak, Everson and Carolyn
Hafele. Either Joswiak or Everson or both asked Hafele if she
still wanted to belong to the Union; Hafele said that she did and
would leave her union application alone.
The lead Board case regarding the legality of interrogations is
Rossmore House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006
(9th Cir. 1985). Pursuant to the Rossmore test,
[I]t is [well established] that interrogations of employees are
not per se unlawful but must be evaluated under the standard
of “whether under all the circumstances the interrogation rea-
sonably tended to restrain, coerce, or interfere with rights guar-
anteed by the Act.”
In making that determination, the Board considers such fac-
tors as the background, the nature of the information sought, the
identity of the questioner, the place and method of interrogation,
and whether or not the employee being questioned is an open and
active union supporter, Norton Audubon Hospital, 338 NLRB
320, 320–321 (2002).
I find the violation alleged in complaint paragraph 5(a) (i), but
not the allegations in 5(a)(ii) and 5(b). There is no evidence that
Carolyn Hafele told Administrator Derek Joswiak that Darla
Buesser told her that she would be fired if she did not join the
Union. Thus, I find that it was highly coercive for Joswiak to
summon Buesser into an empty room by herself and pass that
accusation along to Buesser. It was also highly coercive for
Joswiak to tell Buesser that he had discussed this unfounded al-
legation with his boss, Erik Everson. Regardless of the fact that
Joswiak told Buesser that he believed her denial and that Everson
also gave no credence to the allegation, this conversation would
necessarily inhibit Buesser from advocating union membership
to fellow employees. Thus, I find that Respondent, by Joswiak,
violated Section 8(a)(1) in this conversation with Buesser.
However, I do not find that Joswiak violated the Act by telling
4 There is no evidence as to how Buesser’s conversation with Hafele
came to Erickson’s attention.
5 The two other employees, high school students who apparently
worked part time, did not testify. Due to the lack of corroboration of
Hafele’s testimony by Anderson and Swanson, I also decline to credit
her testimony regarding Kern’s alleged inquiries to the 2 high school stu-
dents.
6 While it is unclear as to whether Respondent’s awareness of the
Stevens-Buesser conversation precipitated the new rule discussed herein,
I infer its promulgation was related to the union organizing drive and the
upcoming election. I specifically discredit the testimony of Director of
Buesser to keep their conversation confidential. He had not dis-
ciplined Buesser which distinguishes this case from those cited
by the General Counsel.
I also find that Respondent did not violate the Act in asking
Hafele whether she still wanted to be a union member. Hafele
had asked Respondent not to deduct union dues. It was reason-
able and not coercive for Joswiak under the circumstances to ask
Hafele what she wanted him to do about the dues deduction.
Complaint Paragraph 5(c) & (d) & (f)(i) and (ii)
Kayla Anderson was employed as a dietary aide and cook at
Heritage Manor from about July 2014 until August 2017, when
she was transferred to Heritage Lakeside. She quit her employ-
ment voluntarily in October 2018. Several times after the repre-
sentation petition was filed on January 2, 2018, Dietary Manager
Melissa Kern came into the home’s kitchen and told employees
that Respondent needed them to vote against union representa-
tion. Anderson told Kern that she had taken off for February 1,
did not really care about the outcome of the election and did not
want to come into work. Kern pressed Anderson about coming
to work to vote on February 1 to the point that Anderson thought
Kern was threatening her job.
Carolyn Hafele testified that in early January, Kern asked An-
derson and Lilly Swanson how they planned to vote and that
Kern asked 2 other employees on election day how they voted.
Hafele also testified that Kern immediately recorded this in a
notebook she was carrying. Kern denies this. Both Anderson
and Swanson testified and neither stated that Kern asked them
how they planned to vote. On account of this, I decline to credit
Hafele and decline to find that Kern asked any employees how
they planned to vote or how they voted.5 I dismiss all allegations
regarding interrogations by Kern or surveillance of union activi-
ties by Kern.
Complaint Paragraph 5(e,), (g) and (h): Implementation of New
Policy Prohibiting Other Than “Resident-Centered” Conversa-
tions in Working Areas and Accompanying Threats.
On January 7, 2018, Certified Nursing Assistant (CNA) Lee-
Ann Stevens and Darla Buesser had a brief conversation near a
nurse’s station. They discussed the need to make all employees
aware of an upcoming union meeting. Patti Urmanski, a charge
nurse, was nearby when this conversation occurred.6
The next day, January 8, 2018, Kristina Taylor, Respondent’s
Director of Nursing (DON), required employees to attend a brief
meeting. At this meeting she told them that she did not want to
hear any talk in the facility unless it was resident-related. Taylor
then required the employees to sign a QCM Form stating, “The
only conversation that needs to be heard/discussed on the floor,
Nursing Kristina Taylor that the rule dissemination was precipitated by
her learning that 2 CNAs were discussing their boyfriends in front of a
resident. If that were the case, there would be no need to have the entire
nursing staff acknowledge the rule in writing and no need for a rule that
was so broadly worded. Moreover, Taylor did not mention this “inap-
propriate” conversation to employees when meeting with them the next
day. The fact that Respondent did not offer employees any explanation
for the promulgation of this rule or its timing, a week after the represen-
tation petition was filed, gives rise to an inference that promulgation was
unlawful and intended to interfere with employees’ Sec. 7 rights, Shore
and Ocean Services, 307 NLRB 1051 (1992).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in resident’s rooms, dining rooms is resident-centered. Any
other topics are not appropriate and can be discussed on your
breaks or your own time.” Approximately 50 of the approxi-
mately 70-unit employees were required to sign a QCM Form
either by Taylor or other managers (GC Exhs. 4(a)-4(e)).
There is no evidence that any Heritage Lakeside employee
was aware of the “resident- centered conversation” rule prior to
January 8, 2018. LeeAnn Stevens, Carolyn Hafele and Amber
Morgan credibly testified that they had never seen such a written
rule, were unaware of any company policy regarding what could
be discussed at the nurses’ station or, of such a rule being en-
forced previously.
Respondent was strongly opposed to having the Union repre-
sent Heritage Lakeside employees. In January 2018, it posted a
flyer that said as much (GC Exh. 3). Respondent also held 3
mandatory meetings for employees in which it encouraged them
to vote against union representation. For these reasons I con-
clude that the new conversation rule was precipitated by the up-
coming union election, not any inappropriate conversations
amongst nurses in front of residents. As such I find that this
change in policy was a violation of Section 8(a)(1), Dayton Hud-
son, 316 NLRB 477 (1995), at 478 and 486, Nashville Plastic
Products, 313 NLRB 462 (1993). Even if I were credit DON
Taylor that this rule or policy predated the filing of the represen-
tation petition, it is apparent that the rule was widely dissemi-
nated to employees for the first time and enforced only after the
filing of the representation petition of January 2. Therefore, the
rule was established and/or broadly disseminated and/or en-
forced for the purpose of interfering and restraining employees
in the exercise of their Section 7 rights. As alleged in complaint
paragraph 5(g) and (h), promulgation of the rule therefore vio-
lated Section 8(a)(1) of the Act,
In addition, Taylor’s statements to employees when promul-
gating or disseminating the rule violated the Act as alleged in
complaint paragraph 5(e) per the long-standing principles enun-
ciated in American Freightways. By requiring the majority of
the bargaining unit to sign the QCM form, and her verbal state-
ments, Taylor was strongly suggesting that disciplinary action
would be taken if employees violated the newly disseminated
and illegal rule.
The illegality of the rule and Taylor’s statements are not in
any way negated by the admission of former employee Kayla
Anderson that she was aware that having inappropriate conver-
sations in front of residents was part of an employee’s role as a
health care provider. That a nurse might understand that he or
she should not talk about the employee’s sex life or the resident’s
medical condition in front of the patient does not mean that an
employee could not talk about wages, hours and working condi-
tions (including the desirability or not of union membership) in
front of residents so long as it did not interfere with the quality
of care rendered.
The Promulgation of Respondent’s “Resident-Centered” Con-
versation Rule, in of Itself, Warrants Ordering a New Election.
The Board’s usual policy is to direct a new election whenever
an unfair labor practice occurs during the critical period. How-
ever, the Board has departed from this policy in cases where it is
virtually impossible to conclude that the misconduct could have
affected the election results. In determining whether the miscon-
duct could have affected the election result, the Board has con-
sidered the number of violations, their severity, the extent of dis-
semination, the size of the unit and other relevant factors, Clark
Equipment Co., 278 NLRB 498, 505 (1986).
In this instant case, there are many factors supporting an order
for a second election: the timing of the unfair labor practice,
starting a little more than 3 weeks before the election and con-
tinuing throughout the critical period; the closeness of the elec-
tion result (25–25); the dissemination of Respondent’s illegal
policy to about 70 percent of the bargaining unit; and the identity
of the officials committing the violation, i.e., the director of nurs-
ing and the dietary department manager.
Complaint Paragraph 5(f) (iii)
Melissa Kern told Lily Swanson and Carolyn Hafele that if
they voted for the Union, they were saying that she was a bad
boss. Kern testified that she told a group of employees that if
she was a fair boss, there was no need for a union. The General
Counsel alleges that Kern’s remark to Hafele, Swanson and oth-
ers is an illegal threat that a vote for the Union is incompatible
with having a good relationship with their supervisor. I do not
find any precedential support for the proposition that Kern’s
statements violate Section 8(a)(1). Therefore, I dismiss com-
plaint paragraph 5(f)(iii).
Complaint Paragraph 5(i)
Respondent’s employee handbook contains the following
rule:
Rice Lake Convalescent Center has various types of confiden-
tial business information which must be protected. Such con-
fidential information includes, but is not limited to, the follow-
ing examples…All personnel file information, employee
names, addresses, home phone numbers, salary or wage infor-
mation, medical data and any other information about our em-
ployees.
The legality of Respondent’s confidentiality rule is governed
by the Board’s recent decision in The Boeing Company, 365
NLRB No. 154 (2017). In Boeing, the Board delineated 3 cate-
gories of “rules.” Category 1 rules are those which are lawful
because they either (1) do not prohibit or interfere with employee
Section 7 rights when reasonably interpreted, or (2) the em-
ployer’s justification for the rule outweighs the potential adverse
impact on protected rights. Category 2 rules are those which
warrant individualized scrutiny as to whether they prohibit or in-
terfere with section 7 rights and whether legitimate justifications
outweigh any adverse impact on these employee rights. Cate-
gory 3 rules are those which are unlawful because the justifica-
tion for their maintenance does not outweigh their adverse im-
pact on employee Section 7 rights. A rule which is not unlawful
to maintain, may be unlawful as applied. However, application
of Respondent’s rule is not an issue in this case.
Don Kristina Taylor testified that the rule is intended to insure
that the business office not divulge personal information. I do
not find that explanation credible because if that was Respond-
ent’s concern, it would not have put the rule in a handbook ap-
plicable to all employees. Moreover, it never informed employ-
ees that the rule was applicable only to office personnel. Finally,
FIRST AMERICAN ENTERPRISES D/B/A HERITAGE LAKESIDE 9
the rule is not limited to personnel file information, it prohibits
disclosure of “any other information about our employees.”
Respondent argues in its brief at page 7 that no employee
would reasonably interpret this rule to prohibit discussion of
wages. It contends that since employees would not conclude that
it violated the rule to tell each other their names or phone num-
bers, they would not reasonably believe they were prohibited
from discussing wages. I find this argument unpersuasive. The
likely understanding of this rule would be that employees are not
to discuss their wages or other employees’ wages regardless of
whether they are free to exchange names, addresses and phone
numbers. Finally, Respondent has no legitimate business justi-
fication to prohibit employees from discussing salary or wage
information, thus the rule, as written, violates Section 8(a)(1).
Alleged Illegal Threats to Employees that Respondent Needed
Them to Vote Against Union Representation (Complaint
Paragraph 5(d) and 5(f)
As a general rule, an employer does not violate the Act by
encouraging employees to vote against union representation or
seeking the help of employees to convince others to vote against
union representation. The Board has on at least on one occasion
found such encouragement or solicitation of “no” votes to violate
the Act in the context of other unfair labor practices, Modern
Manufacturing Company, 261 NLRB 534–535 (1982). I see
no reason to depart from the general rule in this case and there-
fore dismiss complaint paragraphs 5(d) and 5(f) insofar as they
allege that such solicitation for “no” votes was illegal.7
SUMMARY OF CONCLUSIONS OF LAW
I find that Respondent violated the Act in the following re-
spects and no others:
1. On August 17, 2017, Respondent, by Administrator Derek
Joswiak, violated Section 8(a)(1) by interrogating Darla Buesser
about a union-related a conversation with Carolyn Hafele.
2. On or about January 8, 2018, Respondent, by Director of
Nursing, Kristina Taylor, violated Section 8(a)(1) by threatening
employees not to engage in union activity.
3. On January 8, Respondent violated Section 8(a)(1) by
promulgating, or for the first time, disseminating and/or enforc-
ing a rule forbidding conversations in work areas other than
those that are “resident-centered.”
4. Respondent’s “Non-disclosure” policy in its Employee
Handbook violates Section 8(a)(1) in so far as it prohibits em-
ployees from discussing salary or wage information.
Recommendations Regarding Objections
I recommend that the election be set aside and remanded to
the Regional Director for the purpose of conducting a second
election since the Respondent committed a significant unfair la-
bor practice during the critical period. By this I mean its
7 Thus, while I credit Carolyn Hafele’s testimony that Melissa Kern
tried to get her assistance in convincing Lily Swanson to vote “no,” I find
this did not violate the Act.
8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der 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.
promulgation, dissemination and enforcement of the “resident-
centered” conversation rule. Additionally, during the critical pe-
riod, Respondent impliedly threatened employees with disci-
pline if they violated this rule.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, Heritage Lakeside, Rice Lake Wisconsin, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) impliedly threatening employees with discipline if they
engage in union or otherwise protected discussions in work ar-
eas.
(b) promulgating and/or disseminating and/or enforcing a rule
in reaction to a union organizing campaign that forbids union or
other protected conversations in work areas.
(c) interrogating employees as to their conversations solicit-
ing support from other employees for the Union.
(d) maintaining a rule in its employee handbook that can rea-
sonably be read to prohibit employees from discussing salary and
wage information.
(e) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Rescind its rule prohibiting any conversations in work ar-
eas that are not “resident-centered.”
(b) Rescind or revise its employee handbook rule to clarify
that employees are not prohibited from discussing salary and
wage information with each other—unless that information had
been obtained as a result of their access to official personnel files.
(c) Within 14 days after service by the Region, post at its Rice
Lake, Wisconsin facility copies of the attached notice marked
“Appendix.”9 Copies of the notice, on forms provided by the Re-
gional Director for Region 18, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper notices,
the notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken by the
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by the Respondent at any time since August 17, 2017.
(d) 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.
Dated, Washington, D.C. February 7, 2019
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 impliedly threaten employees with discipline if
they engage in conversations that are not “resident-centered” in
work areas.
WE WILL NOT interrogate employees about their conversations
in which they seek to encourage other employees to support
United Food and Commercial Workers Local 1189 or any other
union.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL, rescind our rule forbidding conversations in work
areas that are not “resident-centered.”
WE WILL, rescind or revise our employee handbook so as to
make clear that employees are allowed to discuss salary and
wage information unless they have acquired such information
from their access to other employees’ personnel files.
FIRST AMERICAN ENTERPRISES D/B/A HERITAGE
LAKESIDE
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/18-CA-211284 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.