French American School of the Pacific Northwest d/b/a Portland French School

National Labor Relations Board - Administrative Judge Opinions

Dec 27, 2010

36-CA-010711 (N.L.R.B. Dec. 27, 2010)

JD(SF)–56–10
(Portland, Oregon)
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
FRENCH AMERICAN SCHOOL OF
THE PACIFIC NORTHWEST, d/b/a
PORTLAND FRENCH SCHOOL
and Case 36–CA–10711
ASSOCIATED FRENCH SCHOOL EMPLOYEES,
AMERICAN FEDERATION OF TEACHERS –
OREGON, AMERICAN FEDERATION OF
TEACHERS, AFL-CIO
Susannha Merritt, Esq., for the General Counsel.
Eben Pullman, Field Representative, for the Union.
Edwin A.Harnden, Esq. (Barran Liebman Attornies),
of Portland, Oregon, for PFS.
DECISION
STATEMENT OF THE CASE
William G. Kocol, Administrative Law Judge. This case was tried in Portland, Oregon,
on October 19–22, 2010. The charge was filed August 18, 20101 by the Associated French
School Employees, American Federation of Teachers—Oregon, American Federation of
Teachers, AFL–CIO (herein the Union) and the complaint was issued August 27. The complaint
alleges2 that the French American School of the Pacific Northwest, d/b/a Portland French
School (PFS or the school) violated Section 8(a)(1) by telling employees that a union is a stigma
that stigmatizes the school and its principal, threatening and impliedly threatening to close the
school, telling employees that the school had the biggest card to play against the union
organizing campaign, soliciting grievances, promising to remedy grievances, threatening
employees with more severe disciplinary action, and impliedly threatening employees by
referring to the tenuous nature of their employment. The complaint also alleges that PFS
violated Section 8(a)(1) by maintaining rules that restrict employees from complaining about
their job or the school and forbid employees from disclosing confidential and sensitive
information about the school and its employees. Next, the complaint alleges that PFS violated
Section 8(a)(3) by changing the benefits of employees imposing deadline for signing an
employment contract renewal and cancelling the work visa for employee Patricia Raclot and
thereafter failing to renew her employment contract. Finally, the complaint alleges that the PFS

1 All dates are in 2010 unless otherwise indicated.
2 The complaint was originally consolidated for hearing with the objections filed by the Union
in case 34-RC- 6481. On October 7 the Regional Director approved an agreement by the
parties to a set aside the election and conduct a rerun election; the RC case was then severed
from the CA case.
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violated Section 8(a)(3) and (4) by issuing a final warning to employee Massene Mboup. PFS
filed a timely answer that admitted the allegation in the complaint concerning filing and service
of the charge, jurisdiction, labor organization status, and agency status; PFS denied that it
violated the Act.
On the entire record3, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, PFS, and the Union4, I make the
following.
FINDINGS OF FACT
I. JURISDICTION
PFS, a corporation, operates an international French immersion school at its facility in
Portland, Oregon, where it annually derives gross revenues in excess of $1,000,000 and
purchases and receives goods valued in excess of $50,000 directly from points outside the
State of Oregon. The school 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.
II. ALLEGED UNFAIR LABOR PRACTICES
Background
PFS, a primary school, strives to offer a strong multilingual education to children in a
nurturing and culturally diverse environment that hopes to achieve academic excellence, life-
long learning, and global citizenship. Its philosophy is to feature what it believes to be the best
of the French and American educational systems and it is accredited by the French Ministry of
Education. PFS is administered by a Board of Directors. David Rudder is Chair of Board. Bob
Scanlon and David Reichle are members of the Board. Scanlon, a successful businessman, is
former Chair of the Board; he played an important role in dealing with financial issues that FTS
experienced in the past. Elimane Mbengue is Head of School; as such he is in overall charge of
the day to day operations of the school and its employees. Mbengue reports directly to the
chair of the school’s board of directors. Nancy Steensma is the administrative coordinator for
the school. The school actually consists of at least two buildings, the main building and the
annex building which is located near the main building.
Handbook
At all material times PFS has used a handbook that it distributes to employees. The
handbook contains the following provisions:
The No Complaining Rule
Staff and faculty should share their frustrations about their job, the school, parents,
students or anything else, with their coordinator, Head of School or someone who is a
position to address the complaint. However, the employee must share one or two

3 I grant the unopposed portions of the General Counsel’s motion to correct the record,
items 1-8 and10-17. The record is replete with other errors too numerous to correct. I ask the
General Counsel to address these concerns with the reporting service.
4 I grant the Union’s unopposed motion to file a late brief.
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possible solutions with their complaint as well. Mindlessly complaining to a coworker
can be devastating to the moral [sic] of the team and is counterproductive....
Confidentiality and Professionalism
Many employees during the course of their work at Portland French School have access
to confidential and sensitive information. The unauthorized disclosure of information
including that concerning students, siblings, parents, relatives, donors, co-workers,
employees, curriculum, programs, procedures, or any unauthorized information may
have an adverse impact upon the integrity of Portland French School. No employee
may disclose any information pertaining to the organization, its donors, parents,
students, employees, or partners without prior approval from the Head of School.
Violation of confidentiality will be grounds for disciplinary action up to and including
immediate dismissal.
Analysis
The complaint alleges that the foregoing provisions are unlawful under Section 8(a)(1).
I apply Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) to determine whether the
foregoing rules violate the Act. Section 7 of the Act protects the right of employees to talk to
each other and to others about working conditions, including working conditions that they
dislike. This is so because those discussions may lead employees to seek union representation
or otherwise engage in collective action to attempt to change the working conditions. Verizon
Wireless, 349 NLRB 640, 658 (2007); Westside Community Mental Health Center, 327 NLRB
661, 666 (1999). The nocomplaining rule forbids employees from discussing working conditions
with each other and others. The confidentiality and professionalism rule is somewhat less clear.
It begins by discussing “confidential” information but also includes “sensitive” information within
its purview. Sensitive information may have a broader scope that confidential information. But
then the next sentence identifies the unauthorized disclosure of “information,” including
information about employees and coworkers, as the harm the rule is addressing. The third
sentence then forbids that disclosure of “any information” concerning employees without prior
approval of the Head of School. Employees may reasonably read this rule to forbid disclosure
of the working conditions of employees without prior approval. In its brief PFS relies on Head
of School Mbengue’s subjective intent concerning the intent of the rules; but his subjective intent
is simply irrelevant in assessing the legality of the rules. Nor is it relevant that no one has been
formally disciplined for the rules; these unlawful rules, by their very existence, have a chilling
effect on the free exercise of employees Section 7 rights. I conclude that by maintaining work
rules that forbid employees from discussing working conditions with each other and others and
from disclosing working conditions at PFS without prior approval, PFS violated Section 8(a)(1).
Organizing Campaign
In late 2009, the Union began an organizing campaign among the teachers and staff at
PFS. The employees on the Union’s organizing committee were Alice Beauvallet, Martine
Durade, Massene Mboup, Cary Page, Benedicte Ricordel, Rebecca Conant, and Patricia
Raclot. On March 8 members of the organizing committee presented Head of School Mbengue
with the following letter.
To the Administration and Board of Directors of Portland French School:
We, the organizing committee of the employees of the Portland French School believe
It is just and necessary to organize at our school for the following reasons:
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 We should have the right to engage in collective bargaining and have a powerful
voice concerning our working conditions as well as our students’ learning
environment.
 We need salaries on which we can live and that convey to us that we are
respected as professionals by honoring our educational accomplishments
including our degrees and certifications and our years of service.
 We should have the right to be able to respectfully disagree with the
administration of the school in a safe environment.
 We expect accountability when resolving concerns or complaints with the
administration and to that end we should be able to have a representative of our
own choosing present at meetings of the school board of directors.
 We believe professional development and guidance is vital to help all employees
reach their full potential.
 In order to assure fair treatment and protection from unjust discipline and
termination we need quality representation that will make sure that due process
is followed.

Addressing our concerns will have a positive effect on the quality of education, by
improving the ability of the school to attract the highest quality instructors and retain
them for greater stability and consistency for the students and the school. Transparency
will demonstrate that the administrative leadership is open to constructive dialogue with
the staff in order to build a stronger school together.
We expect that as responsible adminstrators and directors you will take the following
actions:
1.) Respect the rights of its employees to choose for themselves whether to form a
union or not by remaininig neutral and refraining from campaigning against union
organizing efforts
2.) Voluntarily recognize our union which is allowed under the National Labor Relations
Act since the majority of employees has chosen to form a union.
3.) After our union is recognized, you will meet us at the bargaining table to negotiate
with us in good faith in order to reach a collective bargaining agreement. This
agreement will ensure that our working conditions will allow us to continue to offer a
high quality education to the students of the Portland French School.
We would like to meet with you on March 11 or 12th to discuss this matter fully. Please
let us know by contacting us via our professional email addresses if you are available to
meet.
The letter was signed by each of the seven members of the organizing committee. Mbengue
accepted the letter and agreed to meet with the committee on March 11. However, on March 9
Mbengue notified the organizing committee that he was rescheduling the meeting to March 22.
He asked for a list of issues the committee wished to discuss in advance of the meeting so that
he could inform the board of directors and speak to legal counsel. The organizing committee
replied on March 10:
Dear Ellimane,
We received your email request to reschedule our meeting from Thursday, March 11
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to Monday, March 22. We are formally asking you to voluntarily recognize our union.
While we understand your need to think about our request, we need a meeting much
sooner than March 22 because we need to start this process more promptly.
We will be filing a petition to request recognition as a union with the National Labor
Relations Board on Thursday, March 11.
Please let us know if you are available at another time on Thursday or Friday of this
week. If not, please tell us if there is time early next week when you can meet with us.
The message was again signed by each of the seven members of the organizing committee.
During the organizing campaign the Union also distributed leaflets to employees. These leaflets
contained the names of the seven members of the organizing committee.
On March 12 the Union filed a petition to represent all full-time and regular part-time
employees of the School. The parties stipulated to an election that was held on April 16. The
results were that challenged ballots were determinative. On May 27 a hearing was held on the
challenged ballots.
March 22 Meeting
On March 22 the Union’s organizing committee met with Mbengue in his office.
Mbengue attempted to reach members of the board of directors to join the meeting, but he was
unsuccessful. He did, however, summon Nancy Steensma who took notes of the meeting.
Mbengue quickly got angry and raised his voice. He said that the union organizers had
dehumanized the school. He continued saying that a union at the school was a stigma, that it
was stigma on the principal and on the school itself. Mboup, who had known Mbengue for 20
years, asked Mbengue not to take it personally, that they just wanted to be legally represented.
Mbengue said that bringing a union in the school would lead to the closing of the school. The
organizers asked why and Mbengue explained that a union would scare away parents. The
organizers again asked why. Mbengue gave two reasons. He said that most parents bring their
children to the school to get away from the Portland public schools, that the Portland public
schools suck, and the Portland schools suck because of the employee unions. He also said
that parents would take their kids from the school because they would not want to be around the
conflict. He pushed a copy of the union’s organizing principles, described above, towards the
employees and said that they should show it to the parents and they will learn that what he was
saying was correct, that if they have a union at the school the parents will take their children out
of the school. On two occasions Mbengue used a card game metaphor, but he prefaced those
comments by saying that he had to be very careful how he said this. He said that in this
situation the union organizers do not have the biggest card and the parents do not have the
biggest card. Mbengue said that he had the biggest card to play and that everyone in the room
was smart enough to know what that means. At some point Mbengue said that his purpose in
the meeting was to talk them out of their union organizing efforts at the school. Beauvallett
responded that a majority of the employees had already signed cards for the Union. Mbengue
replied that he only saw six employees in front of him and only seven that had signed the letter.
The facts concerning the March 22 meeting are based on a composite of the credible
testimony of Cary Page, Massene Mboup, Alice Beauvallett, and Patricia Raclot. Page has
worked at PFS for over seven years and was still employed there at the time of the hearing.
Her demeanor was impressive; she struck me as a person who was in the habit of being precise
and accurate. Likewise, Mboup has worked at PFS since 1999 and was employed there when
he gave his testimony. His demeanor was convincing as he remembered details of the meeting
that seemed important to him. Alice Beauvallet has worked for the school as teacher since
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2006. Her testimony corroborated that of the others. I have also considered the testimony and
notes of the meeting of Nancy Steensma. Steensma is director of admissions and
administrative services for PFS; she has worked there for almost nine years. Based on my
observation of her demeanor and assessed against the testimony of the other witnesses, I do
not credit her testimony to the extent that it is inconsistent with the facts described above.
I conclude the notes are a somewhat sanitized version of what Mbengue actually said at the
meeting. Even so, the notes indicate that Mbengue said that he holds the cards and will play
them and that he had heard from parents that they were not in favor of a union and they would
unenroll their children if there is a union at the school. I have also considered Mbengue’s
testimony. He basically testified that Steensma’s notes were an accurate reflection of what
occurred at the meeting. Mbengue’s attempt to explain how the discussion of him having “the
biggest card” arose during the meeting seemed palpably untrue, especially in light of the version
he gave in his pretrial affidavit. I do not credit his testimony to the extent it is inconsistent with
the facts described above.
Analysis
The complaint alleges that at this meeting Mbengue unlawfully coerced employees by
telling them that a union is a stigma that stigmatizes the principal and the school, threatened
school closure by telling employees that a union will scare away parents and cause the school
to close, and impliedly threatened employees by telling them that he had the biggest card to
play concerning the union and that the employees were smart enough to know what that means.
I have described above how Mbengue made each of these statements at the meeting. By
telling employees that the union was a stigma and stigmatized the school and its principal, PFS
was equating unionization with disloyalty. Doing so is unlawful and PFS violated Section
8(a)(1). House Calls, Inc. 304 NLRB 311, 313 (1991). In assessing whether Mbengue’s
comments concerning the school closing violate the Act, I apply NLRB v. Gissel Packing, Co.,
295 U.S. 575, 618 (1969). There is no objective evidence in this record to support the assertion
that parents would withdraw students from the school simply because of unionization. Nor is
there objective evidence that even if students left the school that other students would not
replace them; presumably turnover to some degree occurs at the school for a variety of
reasons. So that even if some parents did withdraw their children from PFS because the
employees decide to be represented by a union, there is no objective evidence that school
closure would follow. By threatening employees that the school would close if employees
decided to be represented by a union, PFS violated Section 8(a)(1). Finally, Mbengue told the
employees that he had the biggest card to play in the organizing effort, and that the employees
understood what he was saying. Remember, Mbengue has the authority to discharge and
discipline employees. Mbengue’s statement amounted to a threat of unspecified reprisals if the
employees continued to support the union, and it thereby violated Section 8(a)(1).
March 26 Meeting
On March 25 Mbengue notified employees that a “captive audience meeting was to be
held the next day and everyone was required to attend.” The next day the meeting began as
scheduled at 2 p.m. but lasted well beyond the scheduled 2-hour period. Present for
management were Mbengue, Chairman of the Board David Rudder, Board Members Bob
Scanlan and David Reichle, among others, and all employees and some parents. Rudder
started the meeting by introducing himself and the other members of the Board. Rudder told the
assembled employees that they were not required to stay and could leave if they wanted.
Rudder also stated that they were not allowed to make any promises because that would be
seen as illegal because there was a pending election.
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Scanlan then took the floor and described the financial and other contributions he had
made to PFS. Scanlan stated that by organizing a union they were jeopardizing everything he
had done for the school over the last seven years. He stared at a group of the union organizing
committee members who were sitting together. He said “You don’t scare me. I’ve been up
against much tougher unions than you.” Becky Conant replied that she did not see why this has
to be confrontational. Scanlan answered that it was already confrontational and “You have
threatened us and threats cut both ways.” At one point Alice Beauvallet spoke and said that the
teachers’ salary was not adequate. Scanlan responded angrily by asking where did she think
the money was going to come from, from her union? This caused Beauvallett to cry and she left
the room for a time. Scanlan also said that if they succeed in bringing a union to the school he
was afraid they were running the genuine risk of destroying the school. He said that if they
succeeded in bringing a union to the school, the school would close within a year. When
Scanlan was asked why that would happen and what he meant by that, Scanlan explained that
he would no longer be around, that he would resign from the school board, that Mbengue would
probably resign as principal, that Board Member David Reichle would resign from the school
board and take his children out of the school and at that point parents will start taking their
children out of the school until the school has to close. Scanlan also stated that PFS attracts
families that are wealthy and that in his experience those families tend to be antiunion. Scanlan
described how there was small margin of students whose enrollment allowed PFS to operate
without incurring debt. Scanlan stated that If there is ever a time not to raise a union, it is now,
because the economy was down, and if there was a union, and the school lost enrollment, there
would be a possibility the school would not survive. Scanlan continued, saying that there were
generally two reasons people formed unions, one was to get more money and the other was to
keep from being fired. He then looked directly at the group of union organizers and said “Do
any of you think that a union can keep you from being fired?” Scanlan was speaking loudly in a
challenging manner, leaning towards the organizers. Some of the organizers shook their heads
and other said no. At one point Scanlan said that it was a matter of miscommunication and
miscommunications cause wars, divorces, bankruptcies, and unions. Scanlan said that if the
employees were to withdraw the petition for the union they could resubmit it in six months. He
asked what harm would it do to withdraw the petition and learn more about the union and then
resubmit it if they still wanted a union.
Mbengue also addressed the employees at this meeting. He told the employees that if
they were even five minutes late he had the right to fire them and so long as he had
documentation no one could stop him from doing so, not the union or anyone. Mbengue said
that they cannot promise anything but that the employees should give the school 6 months.
It was then David Rudder’s turn to speak again. He said that the Board was now
listening to the staff and was aware of the problems. Rudder asked what if the employees
waited six months before forming a union and see what the school was able to do and then see
if the employees still wanted to form a union.
Scanlan announced that he wanted everyone to break up into small groups to continue
the discussion. Mbengue followed by saying that no one was to leave until all the problems had
been discussed. The meeting then broke apart and discussions continued in small groups. At
one point Page commented to Scanlan that two teachers had been told that their contracts
would not be renewed and two other employees had received written warnings and they had
been active in the Union. Scanlan answered that this would not be the first time that people
who were all ready going to be fired form a union to prevent that from happening. Beauvallett
began talking with David Reichle. Reichle asked why she wanted a union, and Beauvallett
explained that they had tried to find solutions for problems and were unsuccessful and they
were actually scared of losing their jobs. Reichle answered that they were not aware of what
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was going on and now that they knew they needed time to work and find solutions but they were
going to find solutions.
My factual findings concerning the March 26 meeting are based on a composite of the
credible testimony of Page, Beauvallett, Mboup, Raclot, Benedicte Ricordel, and Malika Smaini,
a teacher assistant who has worked at PFS since 2001 and remained employed at the time she
gave her testimony. Smaini’s recollection of the meeting was not as detailed as Page’s; she
nonetheless corroborated Page’s testimony to a significant degree. Ricordel has worked for the
school as a teacher since 2006. Her testimony likewise corroborated to some degree the
testimony of the others. I have also taken into account admissions that Scanlan, Rudder,
Mbengue, and Steensma made concerning this meeting. Also relevant to my findings is a five-
page message Scanlon sent on March 31 on the subject of “PFS Teachers and Staff Seeking to
Join AFT, AFL–CIO.” Among other things, Scanlan indicated:
It has been said by some that “no good deed goes unpunished”. I have not subscribed
to this cynical approach to life, however the latest turn of events at PFS did bring it to
mind.
Some of the parents may not be aware that a number of faculty members have
petitioned for an election to be conducted by the National Labor Relations Board to
determine if the schools employees (teachers and staff) wanted to be represented by
AFT, AFL–CIO.
In my opinion, lack of communications causes divorces, bankruptcies, wars and–unions.
This seems to fit the motivation of the petitioners.
…
The law is very clear as to what the Administration and Board can and can’t do during
the current election process. PFS can not make any threats or promises regarding the
teachers’ attempt to organize and be represented going forward by a union. It is their
right and the Board and Administration believes it has and will abide by the law as
enforced by the National Labor Relations Board.
I heard the comments of last Friday’s meeting as primarily the teachers wanting to have
more of a voice in those matters of concern to them and to a lesser, but yet vocal extent,
higher salaries. As stated, neither the board members nor Ellimane made any promises
at the meeting, indeed we repeated several times since filing their petition, we are
prohibited from doing anything but listening and/or stating facts relative to the school.
We could also state our opinions as to what may or may not happen to PFS it the
teachers organize for the purposes of collective bargaining.
PFS tuition requires $20,000+ of pre-tax income for a parent to send a child to PFS
elementary, $38,000 for two, etc. This requires significant disposable income. It is my
opinion that parents in this income bracket are more likely to be anti-union than pro-
union. If true, we may lose students whose parents oppose some of their tuition being
forwarded to the union by the teachers. If only 10% of our parents meet this definition,
enrollment could go down by as much as 24 students—or a decrease in tuition level
proceeds of $294,000. The current budget, which now pays 57% of gross revenue from
all sources to salaries and—benefits assumes a surplus of $40,000—a too thin margin of
safety. This potential change in enrollment would result in a deficit in 2010-11 of
$254,000.
…
PTS tuition is set up in response to the market $12,250 and $13,050 per year … .Tuition
accounts for 92% of PFS’s gross revenues. Statewide bankruptcies the last three years
were 9,386 in 2007, 12,373 in 2008 and 18,380 in 2009. It is anticipated 2010 will be
some 24,000.
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I suggested at the meeting that if the teachers withdrew their petition for Union
representation, they could re-file in six months. As this would include the summer
months, they could re-file in September. In the meantime they could seek whatever
information they desire from the Administration and the Board between now and then to
allow them to make the most informed decision they can in their best interests.
Let me start this compilation of their research by advising them that as someone who
started out life to be a teacher, I strongly disagree that PFS, its faculty, students and
parents would be best served by the teachers and staff bringing in an outside third part
to communicate on their behalf. Give the Board a chance to listen to your legitimate
concerns without their inability to respond because of the legal restrictions you have
placed on them.
Finally, as someone who has had to lay off 35% of my employees since January of
2008, who also voted to approve your 7% average increase for next year without any lay
offs at PFS, I am hereby submitting my resignation from the Portland French School
Board of Trustees. And, no, I didn’t get $200,000 per year from PFS. I never received
one cent from PFS (nor has any other board member), have given the school more in
the last 8 years than I gave to my college alma mater, and indeed sent $2,000 to PFS
two weeks ago.
…
A young man on the faculty told me I had no data to suggest that parents might take
their children out of PFS if it became union. I did not claim I had data—I do have
decades of dealing with high net-worth individuals, which formed my opinion. I asked
him how long he planned to stay there. He said “one year.” I suggested that if he was
wrong and I was right—PFS might very well close—and I was staying in Portland. I
resented his cavalier risking of its possible closure. He claimed more people would send
their children to PFS because it was unionized. Given that there are 120 schools in the
eight Pacific Northwest Association of Independent Schools and none are unionized, I
trust my lack of data more than his lack of data.
…
At the very least, it would seem voting in the union would pose a threat to the 8% of PFS
gross revenues not from tuition, i.e. $224,000. This is money donated to the school by
parents and friends of PTS who by virtue of their economic ability to do so, tend to be
more anti-union than the general population. A 50% drop in the amount without any loss
of enrollment, would produce a 201-2011 deficit of $75,000. An 18% drop would wipe
the budgeted 2010-2011 surplus of $40,000.
…
As the first school of PNAIS’ 120 schools in 8 states to become unionized, in addition to
risking students being withdrawn, you also risk Ellimane resigning. This, in my opinion,
would be a great injustice.
…
I make several observations about this letter. The anger and sense of betrayal felt by Scanlan
at the employees because they chose to exercise their rights protected by law are apparent.
And even though I conclude that Scanlan was more direct at the meeting, as the employees
testified and as he revealed in his pretrial affidavit, the letter nonetheless corroborates some of
that testimony. I have again considered the testimony of Nancy Steensma and notes of the
meeting that she made. Among other things, her notes confirm that Rudder asked the
employees what problems led them to seek union representation, and that Scanlan said that
threats go both ways and the employees had threatened the school with the union and that he
felt that parents were antiunion and would remove their children from the school. According to
the notes Scanlan said “It’s risking eight or nine years of my life out of business.” The notes
also indicate that Scanlan suggested that the employees withdraw the petition and that if the
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petition was meant to get the school board’s attention then the school board “has heard the
message loud and clear and within the law.” But otherwise I do not credit Steensma’s
testimony; her demeanor was not convincing. For example, after I overruled an objection made
by the General Counsel to a question posed by PFS’s counsel, I asked Steensma whether she
heard anything during the meeting that sounded like a threat other than the reference that
threats go both ways. She answered “No, I did not—I do not recall.” Her discomfort in
answering my question was palpable. Yet in her pretrial affidavit she stated that at the meeting
Scanlan stated something like “If there is ever a time not to raise a union, it is now, because the
economy was down, and if there [was] a union, and the school lost enrollment, there would be a
possibility the school would not survive.” For his part, Mbengue admitted that Rudder said that
the school board did not know what was going on and wanted to know why they wanted a
union, to listen although they could not promise anything. But Mbengue’s testimony about this
meeting was sometimes vague and conclusory and his demeanor again was not persuasive. I
do not credit his testimony to the extent it is inconsistent with the facts described above.
Similarly, Rudder’s testimony about this meeting lacked detail and he was evasive; his
demeanor too was unpersuasive. Rather, I conclude that his pretrial was more credible; it
corroborates to some degree my factual finding concerning the meeting.
Analysis
The complaint alleges that several agents of PFS violated the Act during the course of
the March 26 meeting. First, the complaint alleges that Mbengue unlawfully solicited grievances
regarding working conditions and safety issues and threatened employees with more severe
disciplinary action. As set forth above, during the meeting Mbengue said that they cannot
promise anything but that the employees should give the school six months. In the context of
other statements made at the meeting, and notwithstanding the explicit disclaimer that Mbengue
included, it was nonetheless clear that Mbengue was asking the employees to forego their union
for 6 months to give the school an opportunity to address their concerns. By implying that it
would remedy employee grievances if the employees stopped their union activities, PFS
violated Section 8(a)(1). Reliance Electric Co., 191 NLRB 44, 46 (1971). I have described
above how Mbengue said that if employees were even 5 minutes late he had the right to fire
them and so long as he had documentation no one could stop him from doing so, not the union
or anyone. By threatening employees with more severe discipline because they supported a
union, PFS violated Section 8(a)(1). Metro One Loss Prevention, 356 NLRB No. 20 (2010).
Next, the complaint alleges that Rudder unlawfully solicited grievances regarding their
opinions and issues, solicited grievances and made promises to remedy grievances regarding
the PFS Board and Mbengue’s approach to issues, and impliedly threatened employees by
referring to the tenuousness of the employment. As set forth above, I have concluded that
Rudder said that the Board was now listening to the staff and was aware of the problems.
Rudder asked what if the employees waited 6 months before forming a union and see what the
school was able to do and then see if the employees still wanted to form a union. By implying
that the school would remedy employees grievances if the employees stopped their union
activity, PFS violated Section 8(a)(1). The counsel for General Counsel argues in her brief that
PFS violated the Act when either Scanlan or Rudder told employees at the meeting that it was
not the first time that employees who were about to be terminated sought union representation.
However, the General Counsel does not support that assertion with legal authority and it seems
to me that the statement was merely an effort to describe why some employees might seek
union representation. I dismiss this allegation of the complaint.
Continuing, the complaint alleges that Scanlan unlawfully threatened and also impliedly
threatened that the school would close due to the organizing campaign, threatened employees
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with unspecified reprisals by saying that threats go both ways and threatened employees by
tying the organizing effort to the destruction of the school. I have concluded that Scanlan told
the employees that the school could close within a year as a consequence of PTS board
members and head of school resigning and antiunion parents taking their students from the
school as a result of unionization. Scanlan also stated that If there ever was a time not to raise
a union, it was now, because the economy was down, and if there was a union, and the school
lost enrollment, there would be a possibility the school would not survive. For reasons
previously stated, these statements were unlawful threats of school closure and violated Section
8(a)(1). I have concluded above that Scanlan told the employees that the union organizing
efforts had threatened the school and that threats go both ways. This statement was an
unlawful threat of unspecified reprisals and violated Section 8(a)(1).
Finally, the complaint alleges that Reichle unlawfully promised prompt remedy of
employee grievance by the PFS Board of Directors. As described above, Reichle asked why
Beauvallet why she wanted a union and Beauvallett explained that they had tried to find
solutions for problems and were unsuccessful and they were actually scared of losing their jobs.
Reichle answered that they were not aware of what was going on and now that they knew they
needed time to work and find solutions but they were going to find solutions. By again implying
that PFS would remedy employees grievances if the employees stopped their union activities,
PFS violated Section 8(a)(1).
Contract Renewal Deadline
The 2009–2010 contracts between PFS and the teachers contained the following
provision:
This contract may be renewed in the sole discretion of the Head of School acting on
behalf of the School by written agreement between both parties no later than April 15 of
the school year in progress.
Similar deadlines appeared in earlier contracts. However, these deadlines were not strictly
enforced. For example, on one occasion Cary Page forgot to sign and return her contract by
the due date. She apologized to Mbengue for returning her contract late and there were no
repercussions. On April 9 Mbengue distributed renewal contracts for the 2010–2011 school
year to the teachers. As he gave teachers their new contract he required them to first sign the
following form:
I, the undersigned, acknowledge that I have received the 2010–2011 teaching contract
and that I understand that I have to review it, sign it and return it to the Head of School
no later than Friday, April 16 at 12 pm. Failing to do so may be understood as declining
the contract offer. You can still request a meeting with the Head of School to discuss the
terms prior to the due date.
Mbengue admitted that in the past, teachers had not adhered to the April 15 deadline and that it
was an effort to require stricter adherence to the deadline. And remember that April 16—the
deadline date—was the date of the union election. This was the first time the teachers were
required to sign this form before they received their renewal contracts; it was also the first time
that there was an explicit acknowledgement that failure to meet the deadline could be
understood by the school as a declination of the contract offer.
Analysis
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The complaint alleges that PFS imposed the contract renewal deadline because
employees supported the Union. Mbengue testified that problems are created when the
teachers failed to submit their contracts on time, but he did not credibly provide testimony
concerning why PFS decided at this time to require strict adherence to a deadline or why it was
necessary to create an explicit and tough consequence for the failure to meet the deadline. The
consequence for the failure to sign—the termination of employment—is, contrary to PFS’s
argument in its brief, clearly a term and condition of employment. Recall that Mbengue had
earlier unlawfully threatened employees with reprisals by telling them that he had the biggest
card and then later that he would be stricter in giving discipline to the employees. And the due
date for signing the contracts was the day of election; this timing was certainly apparent to the
employees. Nor is there any credible reason as to why this strict of a measure was needed at
all. By imposing a contract renewal deadline because the employees supported a union, PFS
violated Section 8(a)(3) and (1).
Final Warning to Mboup
As previously indicated, Massene Mboup has been a teacher for PFS since 1999.
Although not part of an official school program, since about 2003 Mboup voluntarily coached
soccer for students after school and on weekends; of course, parents were also involved.
Mboup was not initially compensated by the PFS for this after school activity; indeed, Mbengue
specifically indicated that Mboup’s coaching was not part of the school activities. French
American International School, or FAIS, like PFS is a French immersion school located in
Portland, Oregon. Mboup has been coaching soccer for students at FAIS after school for about
five years. Mbengue was long aware of the fact that Mboup had been coaching soccer for
FAIS. In fact, Mbengue attended soccer matches held at PFS between the teams from PFS,
FAIS, and other schools; at those matches Mboup openly acted as coach for the FAIS team.
FAIS competes with PFS for students. Article 10 of the contract between Mboup and
PFS provides:
Without the prior written authorization of the Head of School, Teacher shall not, during
the term of this agreement:
(a) Render services of a business, professional or commercial nature to any other
person or firm, whether for compensation or otherwise, which would interfere with the
fulfillment of his/her obligations at the School; or
(b) Engage in activity competitive with or adverse to the School’s interest and welfare.
On May 14 Mbengue called Mboup and asked him to come to the office. Mboup
inquired as to the purpose of the meeting and Mbengue explained that it concerned FAIS.
Mboup asked for an email message explaining the purpose of the meeting and Mbengue
indicated he would send a message. After Mboup arrived at the Mbengue’s office, Mbengue
summoned Emilie Gerts to be a witness. Mboup then called Alice Beauvallet to the office to be
his witness. Mbengue then said that Mboup was working as a soccer coach at FAIS. Mbengue
produced brochures from FAIS that pictured Mboup as a coach. Mboup responded that he had
been working there as a soccer coach since 2006 and that Mbengue knew this. Mbengue
asked whether Mboup had asked for written authorization to work as a coach at FAIS and
Mboup said no and that the only authority he needed to work there was from the Immigration
Service. Mbengue indicated that in his opinion Mboup’s coaching at FAIS violated his contract
with PFS and he was officially asking Mboup to stop. Mboup protested that because he was
involved in union activities, Mbengue was trying to intimidate him. Mboup said that the effort
would be futile and that Mbengue could not intimidate him. Later Mboup and Mbengue
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exchanged email messages recounting this incident; Mbengue, for his part, denied knowing all
along that Mboup had been coaching for FAIS. At the hearing Mbengue testified that he had
only recently discovered that Mboup had been coaching at FAIS when he coincidentally saw
brochures at a coffee shop from FAIS containing pictures of Mboup coaching soccer. I do not
credit this testimony. Mbengue’s demeanor was entirely unconvincing. Mbengue admitted that
he had attended the soccer matches between the schools and that Mboup participated. But
Mbengue’s testimony that Mboup’s participation was limited to that of a referee and not as a
coach is simply not believable.
As indicated above, on May 27 a hearing was held to resolve the challenged ballots.
Mboup testified at that hearing on behalf on the Union.
On June 10 Head of School Mbengue issues Mboup a “Final Warning.” The warning
included the following:
FAIS is a direct competitor with PFS and your working for it is a material breach of your
contract. But for the fact that we are so close to the end of the school year and
termination of your employment would, in my opinion, be detrimental to the pupils who
you teach, I would terminate your contract immediately as provided in Article 8.
Should you work for FAIS during the term of your 2010-2011 contract without written
authorization by Head of School, or otherwise violate your contract, PFS will terminate
your contract.
Analysis
The complaint alleges that PFS gave Mboup the final warning because he supported the
Union and because he testified in the representation case hearing. I apply Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S.989 (1982),
approved in NLRB v. Transportation Management, 462 U.S. 393 (1983). Mboup was a member
of the Union’s organizing committee and PFS knew this. PFS demonstrated its hostility to this
lawful activity by violating the Act as described above. I have also concluded that Mbengue was
aware of the fact that Mboup had been coaching soccer after school for FAIS for some time and
had never disciplined or even warned Mboup about that matter until after he showed his support
for the Union. I conclude that the General Counsel has established a strong initial showing that
the warning was motivated by Mboup’s union activity. I turn now to examine whether PFS has
shown it would have issued the warning even if Mboup had not supported the Union. In this
regard PFS argues that it did not know that Mboup had been coaching until Mbengue
serendipitously noticed a brochure with Mboup’s picture coaching soccer at FAIS. But I have
discredited this testimony. Without this factual support PFS fails to meet its burden. By issuing
a final warning to Massene Mboup because he supported the Union, PFS violated Section
8(a)(3) and (1). I dismiss the independent Section 8(a)(4) allegation because there is no
evidence that PFS was hostile to the fact that Mboup gave testimony before the Board; this is
distinct from the hostility it showed concerning Mboup’s support for the Union.
Patricia Raclot
Patricia Raclot had worked as a teacher for PFS for 6 years when her contract with the
school was not renewed at the end of the 2009–2010 school year. Like other teachers at PFS,
Raclot is a French citizen and an employee of the French government as well. She has worked
for PFS pursuant to an H-1B visa sponsored by PFS. By all accounts Raclot was a good
teacher of the students and Mbengue received compliments concerning Raclot’s work from
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parents of students in her classes. Raclot and Mboup are in a relationship and live together and
Mbengue was aware of their relationship.
The parties litigated an event that occurred in June 2007. During that time Nancy
Steensma’s son was a student in Raclot’s 3rd grade class. According to Raclot the student had
behavioral problems with other teachers at the school. Steensma admitted that other teachers
had discussed her son’s classroom behavior with her. Apparently the son misbehaved in
Raclot’s class and she gave him a written exercise as punishment. Raclot noted the matter in
the student’s school book that his parents were to sign. The Steensmas, however, refused to
have their son do the exercise. They protested that the punishment was excessive, but the next
school day Raclot gave their son another punishment: a written assignment to assess his
comportment in school. The Steensma then reacted by removing their son from Raclot’s class.
In the classroom in front of the class Raclot also said something to the effect that if it were in
France then the son would end up in prison in three years. This all lead to a meeting between
Steensma, Raclot, and Mbengue. Raclot was not issued any written discipline over this
incident. At the hearing Mbengue attempted to explain why he did not take serious disciplinary
action against Raclot at that time, but his testimony seemed to me to have been created after
the fact for trial purposes. At the hearing Raclot denied she made the “end up in prison”
comment in front of the class but instead claimed she said that in the meeting with Steensma
and Mbengue, but I do not credit this testimony. In other words I conclude Mbengue sought to
magnify the importance of this event while Raclot sought to discount the nature of her conduct.
In any event, although I consider this entire event as background, I note that it was not
mentioned as a reason for terminating Raclot’s contract, Raclot was not issued any written
discipline over this incident and Raclot’s contract was renewed twice after it occurred.
On April 18, 2008, Mbengue gave Raclot her written evaluation for the 2007–2008
school year. Raclot received a 17 out of a possible 20; Mbengue commented that Raclot
displayed very good initiative and had good relations with her colleagues. There apparently was
no written evaluation by Mbengue of Raclot for the 2008–2009 school year. However, during
that school year Mbengue brought several matters of concern to Raclot’s attention. On
January 27, 2009, Mbengue issued Raclot and another teacher a “Written Warning” for the
same matter. Raclot’s warning reads as follows:
This is a written warning for your refusal to execute my instructions regarding the
tutoring of Joseph and Negesti. On December 9th I sent you an email to ask you to help
Joseph and Negesti in French. On December 18, I sent you another email to instruct
you to start the tutoring last week. I have noticed that nothing have been done despite
these two messages.
I find such a behavior unacceptable and strongly invite you to start the tutoring. As Head
of School I reserve the right to use any corrective action including immediate dismissal.
This written warning will be placed in your file.
This was the only written discipline Raclot ever received from PFS. That same day, January 27,
2009, Mbengue sent Raclot a “Written Reminder” as follows:
This is to let you know that attending school committee meetings is a part of working at
PTS as stated in this section of the Employee Handbook.
Committee Service
All school employees may be asked to serve from time to time on committees that are
constituted to benefit the school. These committees will meet to the extent possible
during business hours.
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I therefore strongly urge you to actively participate in the Association Process
committee. Failing to do that is in stark violation of school policy.
Thereafter Raclot attended meetings are required. During that school year Mbengue also spoke
to Raclot about fifth-grade evaluations that Raclot refused to correct. Raclot had completed the
evaluations for her class but she and a second teacher were asked to assist the fifth grade
teacher correct her students’ evaluations. Both Raclot and the second teacher declined to help
the fifth grade teacher. Raclot indicated to Mbengue a reluctance to do so because the fifth-
grade teacher was difficult to work with and no one had assisted Raclot in doing her student’s
evaluations. During that school year Raclot also angrily left a teachers’ meeting. This meeting
concerned a discussion of a school event that Raclot used to organize but then it was organized
in a different manner by another teacher. At the meeting Raclot criticized the event and angrily
[left] the meeting. During that school year Mbengue also discussed with Raclot how she told
another teacher that the teacher did not have to complete two surveys that PFS asked the
teachers to complete. Although Raclot explained at trial that she had completed the surveys
and the other teacher asked Raclot how she had completed them and Raclot told the teacher
that she (Raclot) simply indicated on the survey that she and the other teachers were all doing
their jobs and they did not judge each others performance because that was for the
administration to do, in her pretrial affidavit Raclot stated that she told the teacher that if she
was not at ease answering the survey she did not have to do it. I credit the pretrial affidavit and
Mbengue’s testimony that Raclot told the teacher that the teacher did not have to complete the
survey if she did not feel comfortable doing so. During that school year Mbengue had occasion
to discuss with Raclot a wine bar and jazz bistro named Vinideus. Raclot was part owner of
Vinideus. Mbengue told Raclot that he had received a complaint from two parents wanted to
unsubscribe from email messages they had been receiving about Vinideus but Raclot had failed
to do so. The message from the parents, dated May 27, 2009, is as follows:
We would like to make you aware that one of the teachers at school continues to send
us emails about her business outside of school after we requested last year to be
excluded from the business’ email list.
I imagine you know who we are talking about. We aren’t necessarily trying to get her in
trouble, but it bothers us that a school employee continues to use our email account for
non-school related purposes a full two years after Henry was in her class. Our
impression has been that emails are to be used only for school communications unless,
of course, friendships and relationships are established that extend outside of school.
We ask that you tell your employees that emails should be used only for school-related
purposes, unless otherwise approved by families. Her business’ most recent email did
not give us an option to unsubscribe to emails, so this is why we brought this matter up
to you. We appreciate your attention to this matter.
For several days thereafter the parents continued to receive emails from Raclot’s business
advertising events such as French classes and spa days. These messages did not give the
parents the option, now frequently contained in emails of this sort, to unsubscribe from the email
list. At the hearing Raclot explained that the parents had asked to be placed on the email list
but later asked to be removed; Raclot was unable to remove them from the list. The record
does not clearly indicate how the matter was resolved, but the parents stopped sending
Mbengue messages on this issue.
Near the end of that school year there was a meeting on June 4, 2009, between Raclot
and Mbengue. During that meeting Mbengue told Raclot that she was too negative that school
year and he recited the events described above. Mbengue also told Raclot that he was giving
her a last chance and that he would let her go if she continued like that. The facts in this
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paragraph are based on a composite of the credible testimony of Mbengue and his notes and
credible portions of Raclot’s testimony. Raclot denied that Mbengue told her that he was giving
her a last chance, but in this instance I conclude Mbengue’s testimony is more credible than
Raclot’s denial. That comment appears in Mbengue’s notes made near the time of the meeting
and I find nothing to persuade me that those notes are not an accurate reflection of what
occurred at the meeting. And remember that during that school year Mbengue found it
necessary to give Raclot both a written reminder and a written warning.
On July 8, 2009, before the new school year began, Raclot informed Mbengue that she
would be arriving three days late to start of the school year due to personal reasons. The first
week of the school year is “training week” for the teachers. On July 23, 2009, Mbengue replied:
It is absolutely necessary that the entire team be present for the 1st week of training.
Since you are a teacher, you have had 2 months of vacation to plan and take care of all
your personal business. Therefore, except in cases of extreme necessity, an absence
during this week cannot be authorized. However, I remain available to discuss the
situation if you wish.
On July 31, 2009, Raclot responded:
I have no option than to be there September 3rd at the earliest. I have never before
asked for such a thing, but I have an emergency situation and can do nothing to change
it. I will have no problems repeating any trainings I miss, if necessary, or to miss being
paid for those 3 days, but I am asking you for this permission as a favor, having no other
solution. I am sorry for this (my problem) has fallen on these days.
After Raclot arrived at school on September 3 Mbengue informed her that she would not be paid
for the three days. And on a Saturday morning Raclot then made up some of the training she
missed.
Due to the school’s layout, children had to pass through Raclot’s classroom if they
needed to use the bathroom facilities in that annex building; otherwise the students would have
to use the bathroom facilities in the main building. On September 11 Mbengue advised the
teachers that the students in the annex building were allowed to pass through the classrooms to
use those bathroom facilities any time they needed and that the students knew to be quiet as
they passed through the teaching areas. On about September 16 students passing through
Raclot’s class apparently failed to adhere to the expectation that they should pass quietly
through the teaching areas and instead disrupted Raclot’s class. Raclot scolded them and
forbid them to pass through her class again. Mbengue was informed of this incident by a
message from Steensma, who did not herself witness the event. Mbengue then advised Raclot
that she had to let the children pass through her class to use the bathrooms. Raclot replied that
the children had been disruptive. Mbengue replied that he heard what she was saying, but she
nonetheless had to allow them to pass through her class. Raclot accepted this instruction and
apparently the problem did not occur again. To the extent that Steensma’s testimony and
message about this event conflicts with Raclot’s, I credit Raclot. It was apparent from the
message and from her demeanor that Steensma continued to harbor ill will against Raclot for
the incident that had occurred several years earlier; Steensma sought to magnify the incident to
trigger a heightened response from Mbengue against Raclot. And, more importantly,
Mbengue’s muted reaction to the event signals to me that he too sensed a measure of
exaggeration in Steensma’s message.
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On September 21, 2009, Raclot sent Mbengue a message asking to meet with him
concerning the extension of her H-1B visa that was set to expire on September 14, 2010.
Mbengue advised her to remind him in January because the school begins the visa process at
that time.
During a “back to school night” in late September at which parents come to the school to
meet the teachers, parents of students in Raclot’s class decided to purchase and keep a
refrigerator and microwave oven in Raclot’s classroom. This was so that the students would not
have to walk through the playground to the main building to retrieve their milk, juice, and snacks
that the school provides. This was against the school’s safety and health rules and Mbengue
had reminded teachers of this in a message on September 11. In other words, Raclot allowed
the parents to circumvent the school’s express policy prohibiting such devices in the classroom.
When in November Mbengue discovered that Raclot had a refrigerator and microwave in the
classroom he told Raclot that he was not happy and Raclot should have first asked his
permission. Raclot explained to him that she did not make that decision, the parents did, and
she did want to have to call them and tell them to remove those items. Raclot asked that the
school deal with those parents. Later the refrigerator and microwave were removed from the
classroom.
On January 22 Raclot sent Mbengue the reminder and PFS at some point thereafter had
its attorney begin the process for renewing Raclot’s visa, a financially costly process for PFS.
On March 9, the day after the Union’s organizing committee, including Raclot, presented
Mbengue with the letter requesting recognition, Mbengue called the attorney that PFS was
using to prepare the documents to renew Raclot’s visa. Mbengue instructed the attorney to stop
work on procuring the visa for Raclot.
On March 24, two days after his meeting with Raclot and the other members of the union
organizing committee described above, Mbengue sent Raclot the following email message “I
would like to meet with you today to discuss: curriculum mapping, scope and sequences and
distribution of union paper during work time.” By way of explanation of the reference to “scope
and sequence” in the message, PFS had been seeking accreditation from the Pacific Northwest
Association of Independent Schools, or PNAIS. As part of the accreditation process PFS had to
complete the scope and sequences of the classes taught at the school. Teachers were
assigned to create the scope and sequence of what was taught in their class. This was done
under the guidance of Anne Robins, the English Coordinator for PFS. Apparently the scope and
sequence document contemplated a description of what was being taught in class on a week by
week basis. This did not square well with the method the classes were actually taught at PFS
as directed by the French Ministry of Education. Also, that curriculum was in French while the
teachers were to write the scope and sequence in English, so French-speaking teachers
encountered translation problems. On May 29, 2009, Robins sent a message indicating that the
PNAIS documents should be submitted to her by June 1, 2009. On June 3, 2009, she sent
another message to ten persons, including Raclot, stating that they had not yet submitted their
scope and sequence documents and to submit them so that she might work on the PNAIS
documents over the summer break. On June 18, 2009, Raclot submitted some documents to
Robins, but they were inadequate. On October 5, 2009, Robins sent another message to a
large number of employees indicating that the PNAIS accreditation documents, including the
scope and sequence documents, were due October 9, 2009. On November 12, 2009, Mbengue
met with Raclot and told her that the scope and sequence material was important and she had
to complete it. Raclot replied that she had prepared something but it was wrong. Raclot finally
submitted the scope and sequence documentation on about November 18, 2009. Although
Raclot was apparently the last teacher to submit these documents, Mbengue acknowledged that
teachers were having problems creating the scope and sequences because the French
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curriculum functioned by “period” whereas the American curriculum functioned by “units.”
Returning back to March 24, Raclot met with Mbengue that same day. Anne Robins also
attended the meeting. Mbengue announced that PFS was not going to work on getting her visa
extended. Mbengue also stated that some teachers had told him that Raclot was distributing
union papers during work time. After Raclot denied that she was doing so on work time
Mbengue dropped the matter. Mbengue then said that Raclot’s curriculum mapping was not
online when he checked at some point earlier. Raclot replied that it was on the UBS key that
she worked with. Mbengue then said that when he did examine her curriculum mapping that
she had posted online he found terms such as “TERC” and “place value” and other things that
he did not remember in the French curriculum. Mbengue said that the curriculum mapping is
meant to reflect what is actually being taught in class. Mbengue then raised the subject of
scope and sequences; remember that Raclot had submitted those documents months ago.
According to Mbengue, he said he spoken with Anne Robins and discovered that Raclot had
failed to complete those documents as they pertain to the social studies section and the math
section had the same unfamiliar terms as were in Raclot’s curriculum mapping. According to
notes of the meeting that Mbengue prepared he told Raclot “You were the only one not
respecting the deadline in October. Even Rozenn who took a new class did a very thorough
job. You are still trying to sabotage the PNAIS accreditation as I already told you.”
I pause now in the recitation of the facts to discuss what I make of this meeting. It
seems apparent to me that Mbengue was now attempting to justify after the fact his decision to
cancel the extension of the Raclot’s visa. But the effort smacks more of scouring Raclot’s past
work record to find fault rather than criticisms that would have surfaced in the normal course of
business. This is especially so because Benedicte Ricordel credibly testified that the scope and
sequence documents that she submitted did not reflect what actually was being taught in class
but no one complained about that to her. And about three years ago Beauvallett participated in
the accreditation process for a French school in another city. She was part of a team sent by
PNAIS to assess the conformity of that school with their standards. Beauvallett credibly testified
that the specific details of the scope and sequence documents were not something that the
PNAIS assessed in reviewing a school for accreditation. I point this out not to substitute
Beauvallett’s judgment for that of PFS, but rather to show that PFS sought to magnify the
shortcoming in Raclot’s documents after she revealed herself to be a union supporter.
Remember, PFS did not find the shortcomings in those documents significant enough to have
them corrected. After all, the PNAIS team visited PFS the week of March 28 and apparently
examined PFS’s scope and sequence documents, including Raclot’s, and PNAIS granted PFS
conditional accreditation. I have also considered the testimony of Anne Robins, who has been a
teacher at the school for about 19 years. As indicated, Robins was charged with assembling
the paperwork created by the teachers to submit. She testified that when Raclot submitted her
scope and sequence material in November the portion on social studies was missing but she
chose not to say anything about it because it had been so difficult to get the material in the first
place. Robins testified that she later discovered that the language portion of Raclot’s scope and
sequence documents was almost identical to the second grade scope and sequence instead of
the third grade that she taught and that the math portion used phrases that were not used in at
PFS. Robins claimed that she brought this matter to Mbengue’s attention when she showed
him the final package for approval in early March, probably around March 5 or 6. Robins also
testified concerning the March 26 meeting. Her testimony was summary in nature and devoid of
anything that could be construed as negative against PFS; her demeanor was unpersuasive.
I conclude that Robins’ testimony was designed to help PFS’s litigation chances rather than an
attempt to accurately relate facts. I do not credit any testimony that recent events, other than
the union organizing effort, prompted Mbengue to have this meeting with Raclot.
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After this meeting with Mbengue on March 24 Raclot called the office of the lawyer hired
by PFS who had been working on her visa extension. Raclot was able to speak with an
assistant. Raclot asked if the assistant had all the paperwork that Raclot had earlier sent. The
assistant indicated that she had all that paperwork but that PFS had instructed them to stop
work on Raclot’s visa.
On March 25 the assistant sent Mbengue and Raclot an email message as follows:
I wanted to let you know that Patricia Raclot called me again today asking if we had
begun or filed an H-1B extension for her yet with USCIS. I asked her to check with you
since we were asked to put this project on hold on March 9th. She said she would check
with you on this.
On April 8 Raclot again met with Mbengue. Mbengue proceeded to describe a list of
issues that he had with Raclot’s work that lead to the announcement of his decision not renew
Raclot’s contract for the coming school year. Mbengue first mentioned the incident when Raclot
had refused to tutor two students that lead to Raclot’s written warning in the prior school year,
described above. Mbengue then mentioned the fifth grade evaluations that Raclot refused to
correct during the prior school year, also described above. In the 2009-2010 school year, unlike
the earlier school year, Raclot assisted the 5th grade teacher in correcting the evaluations.
Mbengue mentioned how Raclot angrily left the teachers’ meeting, how Raclot told another
teacher that the teacher did not have to complete two surveys, and the complaint from parents
over the emails they received from Raclot concerning Vinideus. All these events also occurred
during the prior school year and have been described above. At the April 8 meeting Mbengue
also mentioned the scope and sequence matter, described above. He next referred to the
incident at the start of the school year when Raclot missed the first 3 days. Mbengue testified
that he was upset by the fact that Raclot had not shown up on those days in September
“Because anyway, prior to that I had just fired a teacher for doing the same thing.” I do not
credit this testimony. Upon cross-examination it became clear that the teacher he had fired for
“doing the same thing” did not call in or send any explanation as to why he was not going to
show up; Raclot had informed Mbengue of her personal situation almost two months in
advance. Returning to the April 8 meeting, Mbengue referred the time during the school year
when Raclot refused to allow children to pass through her classroom to use the bathroom.
Mbengue then complimented Raclot on her classroom performance. He also said she had a
good relationship with the parents and with the other teachers. Mbengue concluded by telling
Raclot that he was not going to renew her contract even though she had done some good
things for the school
On June 10, 2010, Mbengue gave Raclot her written evaluation. Mbengue wrote that
Raclot had good relationships and communications with parents, her class preparations are well
done, and the classroom is nicely decorated. However, Mbengue indicated that Raclot had a
very negative attitude despite the recommendations of the administration in the 2008–2009
annual evaluation; unauthorized absence, documents that were given late and repeated
insubordination.
In late June there was a meeting with the teachers and staff that is held at the end of
every school year. At this meeting, Mbengue discussed the concluded school year and the
challenges brought by the union organizing effort. Mbengue then said that now that the toxins
or poisons of the school are gone there will be a smoother year ahead. These facts are based
on the credible testimony of Mboup, Raclot, and Beauvallett. I have considered Mbengue’s
denial that he made the comments ascribed to him. He testified that he did use the word
“poisonous” but it was made with reference to a matter that was brought to his attention by
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teacher Helene Brier. Mbengue claimed that he told the teachers a lengthy story about this
matter and described it as poisonous. However, in the notes made of the meeting there is no
reference to this lengthy story. I conclude this testimony was simply created to explain how
discussion of “poisons’ may have arisen at the staff meeting.
At some point PFS announced that it was hiring two assistant heads of school to work
under Mbengue. On about September 3 another teacher told Mboup that Mbengue wanted to
talk to him. That teacher reached Mbengue using his own telephone and then handed the
telephone to Mboup. Mboup and Mbengue discussed settlement of the unfair labor practice
charges. Mbengue said that Mboup was the only “big fish” there and if Mboup dropped out
there would not be a union at the school. Mbengue also said that with the “new configuration” at
the school it would be hard to bring in the union.
PFS’s employee handbook provides for three levels of discipline: verbal counseling,
written warnings, and dismissal. Unlike the previous school year, Raclot did not receive any
written warnings during the 2009–2010 school year.
Analysis
The complaint alleges that PFS cancelled its renewal of Raclot’s work visa and failed to
renew her employment contract because Raclot supported the Union. I again apply Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S.989
(1982), approved in NLRB v. Transportation Management, 462 U.S. 393 (1983). I first assess
whether the General Counsel has met his initial burden. Raclot was a member of the Union’s
organizing committee and PFS was well aware of that fact. PFS was hostile to the union
activities and, as described above, repeatedly violated the Act in an effort to stifle those
activities. Moreover, the decision to stop work on the visa came the day after PFS learned of
the Raclot’s union support. And at the same meeting that Mbengue announced to Raclot that
PFS would not renew her visa he questioned her about her union activity. I have considered
Mbengue’s testimony concerning the reasons why he decided to begin the process to renew
Raclot’s visa only to terminate it so abruptly, but I find that explanation thoroughly unconvincing
and his demeanor while giving that testimony was hesitant and uncomfortable and likewise
unconvincing. In the absence of any other credible explanation this timing offers compelling
support that the motivation was Raclot’s support for the Union. The General Counsel has easily
met his initial burden under Wright Line.
I now address whether PFS has met its burden of showing that it would not have
renewed Raclot’s visa and contract even if she had not engaged in union activity. As for the
incidents that occurred prior to the beginning of the 2009–2010 school year, I consider those
only as background to assess Raclot’s conduct during that school year. After all, Mbengue had
decided to renew Raclot’s contract albeit with a warning that he was giving her a last chance not
to repeat such conduct. Focusing on the events of the 2009–2010 school year, as more fully
described above Raclot arrived at the school three days late. She was not paid for those days
and she made up some training she had missed; she was not disciplined for the incident. There
was also the incident where Raclot informed unruly students that they could no longer pass
through her classroom to use the restrooms. And Raclot allowed parents to place a microwave
and refrigerator in her classroom, thereby skirting the school’s prohibition of such items in the
classroom based on safety concerns. In its brief PFS also raises scope and sequence materials
and related documents prepared by Raclot, but I have already concluded above that this matter
became a concern of Mbengue’s only after he learned of Raclot’s support for the union. Rather
than supporting PFS’s case it actually serves to undermine it; it shows that Mbengue was
trolling Raclot’s record in an effort to undercover problems to support a decision previously
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made to terminate Raclot’s visa. Moreover, I have concluded above that Mbengue went
through a similar process to create a reason to unlawfully discipline Raclot’s fellow union
supporter and companion Mboup. So I am left with three events: the late reporting for school,
the unruly students’ use of the restroom, and the microwave and refrigerator in the classroom.
All occurring months before Mbengue decided to terminate Raclot’s contract; she was not
formally disciplined for any of them. This is unlike the previous year and to this extent at least
was an improvement from that year. Importantly, she was not told at those times that Mbengue
had decided not to renew her contract; rather, Mbengue took initials steps to have Raclot’s visa
renewed after they occurred. It was only after Mbengue learned that Raclot was a supporter of
the union that he abruptly decided to terminate her contract and inform her of that fact.
Remember, PFS’s burden is to show not only that Raclot’s work performance was flawed; it
must show that PFS would have failed to renew her contract because of such flawed
performance. I also take into account the very strong nature of the General Counsel prima facie
case. Even keeping in mind that Raclot had been given a last chance to improve her
performance, under all of these circumstances I conclude that PFS had failed to meet its burden
of showing that it would not have renewed Raclot’s visa and contract even if she had not
supported the union. By cancelling its renewal of Raclot’s work visa and failing to renew her
employment contract because Raclot supported the Union, PFS violated Section 8(a)(3)
and (1).
June 16 Message
On June 16 Mbengue sent an email message addressed to the Union organizing
committee that, in pertinent part, follows.
Since the beginning of this whole union issue you have deliberately chosen to violate
repeatedly the school confidentiality policy:
-our parents home addresses have been given to the AFT-Oregon (a third party) to send
unsolicited emails (twice).
-our parents email addresses have been used to invite them to a Solidarity Night and
without even the decency to bcc them. Their email addresses are exposed to everyone.
Some of you are even trying to get the parents data base.
-a 4th grade student’s confidential incident report filled in by Mathias has been taken by
Patricia Raclot and given to the AFT lawyer after a shameful setup to prove that Anne
Robins was a supervisor therefore cannot vote.
-emails to / from the head of school about confidential personal matters have been
bcced to parents by two of you.
-during the last school council all of you came without warning to deliver a petition. Even
though only two of you are members of the school council I let you all stay with the
condition that you would not participate in the discussion. Most of you ended up
participating in the debate and we left the meeting at 11 pm. And you still claim you do
not have a voice in this school.
To try to pressure the administration with a smear campaign with the help of the AFT-
Oregon members in order to get a union will never work. It is absolutely disrespectful
toward those faculty and staff (whatever the number) who do not share your views and
voted on April 16 against having a union at PFS.
Why can’t we all wait until the voting process is over and that the NLRB publish the
results? If a union is voted in, so be it. If not you have to accept it and stop this
damaging campaign. If the NLRB determines that Patricia Raclot and Becky Conant
should be taken back, they will be taken back. However, if the NLRB determines that
the school is right not to renew their contracts, a million signatures or one thousand
marches will not sway our decision. You have also requested that the election be
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canceled and another vote be organized. If the NLRB follows you and orders a new
election then so be it. The only thing you will accomplish is to further damage the
reputation of the school in the community. We do not need that specially in these tough
economic times.
We cannot continue to tolerate this unprofessional destructive behavior. It needs to stop
now.
Analysis
The complaint alleges that on June 16 PFS violated Section 8(a)(3) and (1) by enforcing
the rules disparately and selectively by applying them only to employees who supported the
Union. In his brief, the General Counsel argues the email is unlawful because it “is an unlawful
enforcement of Respondent’s confidentiality rule, as it disparately applied that rule to employees
who were using the email list for Union activity[.]” In this regard the General Counsel points out
that PFS allowed Scanlan to use its email addresses to send out the antiunion message,
described above, shortly after the March 26 meeting with employees. However, Scanlan was
still on PFS’ board of directors at the time. Certainly PFS may use its resources to
communicate with employees and parents without having to allow employees to do the same.
The General Counsel cites Emergency One, Inc., 306 NLRB 800 (1992) and similar cases. But
those cases involve situations where an employer prohibited employees from talking about a
union while at the same time it allowed employees to talk about other matters. There is no
evidence in this case that PFS allowed use of its email information for nonwork related matters.
E.I du Pont & Co., 311 NLRB 893, 919 (1993), also cited by the General Counsel, makes this
point. In that case the employer allowed use of its email for a wide range of nonwork related
purposes. This is precisely the type of evidence that is missing in this case. I emphasize the
narrowness of the complaint allegation and the argument in support of it – disparate treatment.
While the June 16 message may have violated the Act in other respects, I will not supply a legal
theory to find a violation on another basis when then theory is neither alleged in the complaint
nor argued in a brief. Because the evidence does not show that PFS allowed its employees to
use confidential information for nonwork related matters I dismiss this allegation.
Conclusions of Law
1. Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act by:
(a) Maintaining work rules that forbid employees from discussing working conditions
with each other and others and from disclosing working conditions at PFS without prior
approval.
(b) Telling employees that the union was a stigma and stigmatized the school and
the principal.
(c) Threatening that the school would close if employees decided to be represented
by a union.
(d) Threatening employees with unspecified reprisals if they continued to support the
union.
(e) Implying that it would remedy employee grievances if the employees stopped
their union activities.
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2. Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act by:
(a) Issuing a final warning to Massene Mboup because he supported the Union.
(b) Imposing a contract renewal deadline because the employees supported a union.
(c) Cancelling the renewal of Raclot’s work visa and failing to renew her employment
contract because Raclot supported the Union.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Having found that the Respondent unlawfully maintained
certain work rules, I shall require it to emend those rules as described in Guardsmark, LCC, 344
NLRB 809, 812 fn. 8 (2005). Having found that the Respondent unlawfully gave a final warning
to Massene Mboup, I shall require it to rescind the warning. Having found that Respondent
cancelled its effort to have Raclot’s work H-1B visa renewed, I shall require that Respondent
resume its efforts to obtain an appropriate visa for Patricia Raclot. Hafadal Beach Hotel, 321
NLRB 118, 120–121, enfd. 116 F.3d 485 (9th Cir. 1997, cert. denied 522 U.S. 1107 (1998). The
Respondent having discriminatorily failed to renew Raclot’s employment contract, it must renew
that contract and offer her reinstatement and make her whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173
(1987), plus daily compound interest as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010). Because Raclot’s reinstatement may have to await the issuance of an
appropriate visa, I shall amend the traditional 14-day reinstatement order upon the condition
that such reinstatement occur within 14 days after it is lawful to do so. In his brief the General
Counsel requests that the Notice to Employees be posted in French as well as English. I deny
that request; there is no evidence the employees are not fully conversant in English. The
General Counsel also requests that Respondent be ordered to real aloud the Notice due to the
impact of the captive audience meeting on employees. I deny that request also. Although the
unfair labor practices committed by PFS are indeed serious, I conclude traditional remedies are
adequate to remedy them.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended5
ORDER
The Respondent, French American School of the Pacific Northwest, d/b/a Portland
French School, Portland, Oregon, its officers, agents, successors, and assigns, shall
1. Cease and desist from:

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended 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.
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(a) Maintaining work rules that forbid employees from discussing working conditions
with each other and others and from disclosing working conditions at PFS without prior
approval.
(b) Telling employees that the union was a stigma and stigmatized the school and
the principal.
(c) Threatening employees that the school would close if employees decided to be
represented by a union.
(d) Threatening employees with unspecified reprisals if they continued to support the
union.
(e) Implying that it would remedy employee grievances if the employees stopped
their union activities.
(f) Imposing a contract renewal deadline because the employees supported a union.
(g) Disciplining employees because they support a union.
(h) Cancelling efforts to obtain work visas for employees because those employees
supported a union
(i) Failing to renew employment contracts, discharging or otherwise discriminating
against any employee for supporting the Union or any other union.
(j) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the unlawful handbook rules furnish all current employees with inserts for
the current employee handbook that (1) advise that the unlawful rules have been rescinded, or
(2) provide the language of lawful rules; or publish and distribute revised handbooks that (1) do
not contain the unlawful rules, or (2) provide the language of lawful rules.
(b) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discipline issued to Massene Mboup, and within 3 days thereafter
notify him in writing that this has been done and that the discipline will not be used against him
in any way.
(c) Within 14 days from the date of the Board’s Order, resume efforts to obtain an
appropriate visa for Patricia Raclot.
(d) Within 14 days of the time that it may lawfully do so, offer an employment
contract and full reinstatement to her former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or any other rights or privileges previously
enjoyed.
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(e) Make Patricia Raclot whole for any loss of earnings and other benefits suffered
as a result of the discrimination against her in the manner set forth in the remedy section of the
decision.
(f) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discrimination against Patricia Raclot, and within 3 days thereafter
notify her in writing that this has been done and that this will not be used against her in any way.
(g) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.
(h) Within 14 days after service by the Region, post at its facility in Portland, Oregon,
copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided by
the Regional Director for Region 36, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
March 9, 2010. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, or other electronic
means, if the Respondent customarily communicates with its employees by such means.
(i) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of
the Act not specifically found.
Dated, Washington, D.C. December 27, 2010
____________________
William G. Kocol
Administrative Law Judge

6 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.”
JD(SF)–56–10
(Portland, Oregon)
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 behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT maintain work rules that forbid employees from discussing working conditions
with each other and others and from disclosing working conditions at PFS without prior
approval.
WE WILL NOT tell employees that a union is a stigma and stigmatized the school and the
principal.
WE WILL NOT threaten employees that the school would close if employees decide to be
represented by a union.
WE WILL NOT threaten employees with unspecified reprisals if they continued to support the
Associated French School Employees, American Federation of Teachers—Oregon, American
Federation of Teachers, AFL–CIO, or any other union.
WE WILL NOT imply that we will remedy employee grievances if the employees stopped their
union activities.
WE WILL NOT impose a contract renewal deadline because the employees supported a union.
WE WILL NOT discipline employees because they support a union.
WE WILL NOT cancel our efforts to obtain appropriate visas for employees because those
employees support a union.
WE WILL NOT discharge or otherwise discriminate against any of you for supporting Associated
French School Employees, American Federation of Teachers—Oregon, American Federation of
Teachers, AFL–CIO, or any other union.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
JD(SF)–56–10
(Portland, Oregon)
WE WILL supply all of you with inserts for the current employee handbook that (1) advise you
that the unlawful rules have been rescinded or (2) provide the language of lawful rules; or WE
WILL publish and distribute revised handbooks that (1) do not contain the unlawful rules or (2)
provide the language of lawful rules.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discipline issued to Massene Mboup, and within 3 days thereafter
notify him in writing that this has been done and that the discipline will not be used against him
in any way.
WE WILL, within 14 days from the date of the Board’s Order, resume our efforts to obtain an
appropriate visa for Patricia Raclot.
WE WILL, within 14 days of the time that we may lawfully do so, offer an employment contract
to Patricia Raclot and full reinstatement to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her seniority or any other rights or
privileges previously enjoyed.
WE WILL make Patricia Raclot whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her, with interest.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discrimination against Patricia Raclot, and within 3 days thereafter
notify her in writing that this has been done and that this will not be used against her in any way.
French American School of the Pacific Northwest,
d/b/a Portland French School
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
915 2nd Avenue, Federal Building, Room 2948
Seattle, Washington 98174-1078
Hours: 8:15 a.m. to 4:45 p.m.
206-220-6300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 206-220-6284.