Research Foundation of State University of New York

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 950 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 170
950
The Research Foundation of the State University of
New York at Buffalo and Research Foundation
Professional Staff Association, NYSUT, AFT,
AFL–CIO. Case 3–RC–11882
August 27, 2010
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held January 30, 2009, and the attached administrative
law judge’s report recommending disposition of them.
The election was conducted pursuant to a Stipulated
Election Agreement. The tally of ballots shows 35 votes
for and 35 votes against the Petitioner, with no chal-
lenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs1 and, contrary to the judge’s recom-
mendation, finds that the election must be set aside based
on conduct alleged in Petitioner’s Objections 4 and 13.
Objections 4 and 13 allege, collectively, that the Em-
ployer interfered with employees’ protected activity by
“threaten[ing] to have Union agents arrested in or near
the workplace, in such a manner as to interfere with em-
ployees’ rights to organize and support the Union.” In
support of these objections, the Petitioner’s organizer
testified that during her visit to the office of a unit em-
ployee to solicit his support for the Union, an Employer
official told her to leave the building or he would call the
police. The judge found that this incident occurred, but
concluded that it was not objectionable. We disagree.
Consistent with the Petitioner’s exceptions, we find
that the Employer’s conduct, which was witnessed by a
potentially determinative voter, reasonably would tend to
interfere with employee free choice in the election. Ac-
cordingly, we shall set aside the election and direct the
Regional Director to conduct a new election.2

1 The judge was sitting as a hearing officer in this representation
proceeding. The Petitioner has excepted to some of the hearing offi-
cer’s credibility findings. The Board’s established policy is not to
overrule a hearing officer’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have
carefully examined the record and find no basis for reversing the find-
ings.
2 In light of our decision to set aside the election based on the con-
duct encompassed by Objections 4 and 13, we do not pass on the Peti-
tioner’s exceptions to the judge’s failure to sustain its weather-related
objection and its Objections 1, 2, 6–9, 11, and 14.
Background
The Petitioner seeks to represent a unit of postdoctoral
associates at the Buffalo, New York campus of the State
University of New York (SUNY). The associates are
individuals with doctoral degrees who have been hired to
work on research projects funded by private or govern-
mental grants awarded to the Graduate School at SUNY.
The associates are employed by the Research Foundation
of the State University of New York (Employer or Re-
search Foundation). Research Foundation is a private,
not-for-profit educational corporation that serves as a
fiscal agent for SUNY. In this capacity, it administers
and manages the financial research grants awarded to
SUNY, hires the associates to work on the research pro-
jects, and determines their pay and benefits in accord
with the budgetary confines of the award grant.
Yukstl Bukusoglu is a Research Foundation unit em-
ployee who has an office in Sherman Hall on the SUNY
campus. Amy Melton is an organizer for the Petitioner.
In mid-January 2009, Melton telephoned Bukusoglu and
requested to meet in his office. Bukusoglu did not know
that Melton was a representative of the Petitioner, but
agreed to meet with her on January 15. Prior to Melton’s
arrival, Bukusoglu telephoned the Employer’s office
secretary, asked who Melton was, and reported that Mel-
ton was en route to his office. The office secretary in-
formed Andrew Barth, a manager of the Employer, of
Melton’s planned visit with Bukusoglu.
Barth testified that either he or his office secretary
immediately telephoned SUNY’s human resources de-
partment “to check [whether] . . . we were obligated to
allow the meeting” to take place. Specifically, Barth
testified that he “asked if [he] was within [his] rights to
ask [Melton] to leave.” Told that he had that right, Barth
proceeded to Bukusoglu’s office and found Melton there.
He told Melton that she was on private property and or-
dered her to leave or else he would call the police to have
her removed.
DISCUSSION
The general rule under the Supreme Court’s Lechmere
decision is that nonemployee organizers, like Melton, are
not entitled to engage in Section 7 organizing activity on
the private property of others. Lechmere, Inc. v. NLRB,
502 U.S. 527, 533 (1992). However, an employer has no
right under Lechmere to exclude union representatives
engaged in Section 7 activity from areas in which it lacks
a property interest. Bristol Farms, 311 NLRB 437, 438
fn. 6 (1993).3

3 The dissent’s refusal to acknowledge this firmly settled principle
undermines its main argument that, under Lechmere, Melton had no
protected Sec. 7 right to engage in organizing activity in Sherman Hall
RESEARCH FOUNDATION OF THE STATE UNIVERSITY OF NEW YORK AT BUFFALO 951
Therefore, as the judge correctly noted in citing Indio
Grocery Outlet,4 the threshold question in cases such as
this is whether the employer possessed a property interest
entitling it to exclude the union representative(s) from
the area where the proposed organizing activity was to
occur. Whether an employer possesses the requisite
property interest is a question of state property law. Id.
See also Thunder Basin Coal Co. v. Reich, 510 U.S. 200,
217 fn. 21 (1994) (“The right of employers to exclude
union organizers from their private property emanates
from state common law.”). The employer has the burden
of proof of establishing its property interest. If it fails to
meet that burden, its exclusion of union agents from the
property violates Section 8(a)(1).5 As explained below,
under the circumstances here we find that it also consti-
tutes objectionable conduct sufficient to warrant setting
aside the election.
The judge found that the Employer met its burden to
establish a property interest by relying on New York
state guidelines that prohibit, subject to certain excep-
tions not applicable here, organizational activities on
state property by individuals not employed by the State.6
Based on these guidelines and on his finding that the
Employer leases space in SUNY’s Sherman Hall (a state
building), the judge found that the Employer was entitled
to demand that Melton leave Sherman Hall, and in doing
so did not commit objectionable conduct. We disagree.
First, the record is devoid of evidence that the Em-
ployer actually holds a lease or other property interest in
Sherman Hall, and the Employer asserted no such claim.
Such evidence is essential to establish a property interest,
under state law, that would permit the exclusion of oth-
ers. See, e.g., Farm Fresh, Inc., 326 NLRB 997, 1001–
1002 (1998), revd. in part UFCW v. NLRB, 222 F.3d
1030, 1035–1038 (D.C. Cir. 2000) (Board examined
lease language under Virginia law to determine whether

because she was trespassing. Lechmere is not applicable here. The
nonemployee organizers in that case were properly deemed trespassers
because the employer that excluded them from the shopping center
parking lot owned the lot, and therefore possessed an exclusory prop-
erty interest against which the trespass took place. By contrast, as
explained below, the Employer did not have a property interest in
Sherman Hall that entitled it to exclude others. Therefore, as to the
Employer, Melton was not engaged in unprotected trespassing.
Our colleague’s reliance on North Hills Office Services, 345 NLRB
1262 (2005), is likewise inapposite. No property interest issue was
raised in that case as to the parking lot, and the respondent did not eject
the nonemployee organizer from that location. Thus, the Board’s
statement (id. at 1263) that the respondent “could [have told] the non-
employee to leave the property” is merely dicta.
4 323 NLRB 1138, 1141 (1997), enfd. 187 F.3d 1080 (9th Cir.
1999), cert. denied 529 U.S. 1098 (2000).
5 Indio Grocery Outlet, supra at 1141.
6 See fn. 9 of the judge’s decision setting out more fully the relevant
state guidelines.
stores possessed sufficient property interest to exclude
nonemployee union organizers from adjacent sidewalks);
Food For Less, 318 NLRB 646, 649–650 (1995), affd. in
relevant part 95 F.3d 733, 738–739 (8th Cir. 1996)
(Board examined lease under Missouri law to determine
whether store possessed sufficient property interest in
parking lot to exclude nonemployee union representa-
tives). Accordingly, we reject the judge’s finding that
the Employer met its burden of establishing that its ex-
clusion of Melton from SUNY property was based on
authority contained in a lease.
Nor do we agree with the judge that the Employer’s
authority to exclude Melton from Sherman Hall derived
from New York State guidelines prohibiting organizing
activity on state property by outside employee organiza-
tions. Even if we assume that the guidelines validly cov-
ered the organizing activity in this case,7 they explicitly
state that the “State shall take appropriate action to pre-
vent the violation.” (emphasis added). This reference to
the “State” as the holder of the right to exclude others
from state property plainly means SUNY in the instant
case. There is no indication that a nonstate entity like the
Employer can invoke the guidelines independently to
expel individuals from state property.
Apparently recognizing this omission, the judge noted
that, under Lechmere, a property owner can delegate to
another its right to exclude others from its property, and
found that SUNY did so by authorizing the Employer to
enforce the state guidelines against Melton. Lechmere
actually does not reference the delegation of property
rights, and, more importantly, there is no evidence that
such a delegation occurred between SUNY and the Em-
ployer.8
As set out above, SUNY neither instructed the Em-
ployer to enforce the state guidelines to eject Melton nor
authorized Employer official Barth to act on SUNY’s
behalf. Rather, Barth took the initiative to contact

7 On their face, the guidelines appear to cover only organizing activ-
ity directed at state employees. If they did purport to prohibit organiz-
ing activity directed at employees of private-sector employers that
contract with New York State, they would raise a substantial question
whether they were preempted by Federal labor law. See generally San
Diego Building Trades Council v. Garmon, 359 U.S. 236, 243–245
(1959). We need not resolve these issues in light of our conclusion that
the guidelines could not have justified the Employer’s exclusion of the
Union’s representative in the circumstances of this case.
8 The judge cited language, purportedly from Lechmere, that an ex-
clusory property interest may be delegated to an employer based on
proof that “an owner had by express delegation authorized the em-
ployer to stand in its shoes as against trespassers.” The court made no
such statement in Lechmere. The quoted passage was from a judge’s
decision in Farm Fresh, supra, 326 NLRB at 1011, and the Board ex-
pressly did not rely on the passage in affirming the judge’s decision.
See 326 NLRB at 997 fn. 4.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 952
SUNY’s human resources office to ask if he was “obli-
gated to allow the meeting,” and whether he was “within
[his] rights to ask Melton to leave.” There was no dis-
cussion of the existence of the guidelines or Barth’s au-
thority to invoke them on behalf of SUNY. We find,
therefore, that the record fails to establish that SUNY
delegated its exclusory property interest to the Employer.
Further, even assuming that SUNY delegated to the Em-
ployer the authority to enforce the state guidelines
against Melton, the Employer failed to identify any au-
thority suggesting that the delegation was valid under
New York State law. As discussed above, it is state law
that defines the nature and extent of an employer’s prop-
erty interest, and the Employer here made no argument
that it had a sufficient property interest, delegated or oth-
erwise, under state law that entitled it to expel Melton
from Sherman Hall.
In circumstances where such legal authority has not
been established, the Board has held that an employer
violates Section 8(a)(1) by excluding union agents from
the property. Indio Grocery, supra at 1141; United Food
& Commercial Workers v. NLRB, 222 F.3d 1030, 1035
(D.C. Cir. 2000). The lesson of those decisions is that
the denial of access interferes with employees’ Section 7
rights and, where no private property interest has been
shown, there is no conflict between Section 7 rights and
private property rights and, therefore, no need for ac-
commodation of the employer’s property rights under
Lechmere. See Indio, supra at 1141.
Considering these principles in light of the Board’s test
in representation cases, we find that Melton’s ejection
from Sherman Hall constitutes objectionable conduct.
That test, an objective one, evaluates whether a party’s
conduct has the “tendency to interfere with the employ-
ees’ freedom of choice” and “could well have affected
the outcome of the election.” Cedars-Sinai Medical
Center, 342 NLRB 596, 597 (2004); Cambridge Tool &
Mfg. Co., 316 NLRB 716 (1995). The evidence shows
that this test is plainly met here.9

9 Our dissenting colleague contends that we have applied the “wrong
legal standard” by considering the 8(a)(1) decisions discussed above.
He acknowledges that under Dal-Tex Optical Co., 137 NLRB 1782,
1786–1787 (1962), conduct violative of Sec. 8(a)(1) is, a fortiori, con-
duct which interferes with an election. He states, however, that this
standard applies only when the challenged conduct is alleged as both an
election objection and an unfair labor practice in a consolidated pro-
ceeding.
Dal-Tex itself involved only an election objection, and the Dal-Tex
Board flatly rejected the view that conduct should be assessed differ-
ently “depending on the nature of the proceeding in which the issue is
raised before the Board.” 137 NLRB at 1786. Nevertheless the Board
has stated twice recently that Dal-Tex is inapplicable to cases that in-
volve only objections. See NYES Corp., 343 NLRB 791 (2004); Met-
aldyne Corp., 339 NLRB 352 (2003). We need not resolve that tension
As stated above, Melton scheduled a meeting with Bu-
kusoglu during the organizational campaign to explain
“the role of the [Union] and what they could do on behalf
of postdoctoral associates.” When Melton arrived at
Bukusoglu’s office, she gave him her card, and asked “if
he wanted to meet there” or “perhaps go someplace for
coffee.” Bukusoglu gestured for Melton to sit down.
After Melton had explained the organizing campaign for
about 5 minutes, Employer official Barth entered the
office.
As described by Bukusoglu, a “very big argument” en-
sued, during which Barth told Melton that she was “not
allowed to be here and this is not a public place, [and] if
you don’t leave, I’m going to call the police to arrest
you.” Bukusoglu testified that he “was so disturbed be-
cause on the one side there was an official person in my
department [and o]n the other side, there was a lady
[whom] I invited to give me something, idea.” Bukuso-
glu stated that Barth’s “behavior was so offensive” and
because Barth was “threatening . . . to call the police to
arrest [Melton],” he “really felt ashamed and guilt[y].”
By inviting Melton into his office and listening to her
describe the advantages of union representation, Buku-
soglu was exercising an essential Section 7 right to
“learn the advantages of self-organization from others.”
Lechmere supra, 502 U.S. at 532, quoting NLRB v. Bab-
cock & Wilcox, 351 NLRB 105, 113 (1956). We con-
clude that the Employer’s interdiction of this Section 7
activity reasonably would tend to interfere with Bukuso-
glu’s free and uncoerced choice in the election.10
We further find that Barth’s threat of arrest when eject-
ing Melton amplified its coerciveness. Indeed, based on
Bukusoglu’s description of the encounter, we think that
he or any employee would reasonably be coerced by it.
See, e.g., Hopkins Nursing Care Center, 309 NLRB 958,
959 (1992) (coerciveness of employer’s objectionable

here, however, because we need not apply the Dal-Tex standard in
determining whether the conduct here warrants setting aside the elec-
tion. We have merely considered similar employer conduct in Sec.
8(a)(1) cases in examining whether the conduct here interfered with the
election—a common practice in representation cases. See, e.g., Freund
Baking Co., 336 NLRB 847 fn. 5 (2001) (citing a 8(a)(1) case in dis-
cussing whether an employer rule was objectionable); Majestic Star
Casino, 335 NLRB 407, 407–408 (2001) (citing 8(a)(1) cases in dis-
cussing whether solicitation of grievances was objectionable).
10 Our dissenting colleague contends that because Melton could have
met with Bukusoglu elsewhere, her removal from Sherman Hall cannot
be deemed objectionable. We disagree. Where, as here, the Employer
lacked the requisite property interest to exclude Melton from Sherman
Hall, Bukusoglu was entitled to meet her there, in his office, subject
only to her removal by SUNY and as long as the meeting did not occur
during his worktime. See generally Our Way, Inc., 268 NLRB 394
(1983). There is no evidence that Bukusoglu’s meeting with Melton
occurred during his work ime.

RESEARCH FOUNDATION OF THE STATE UNIVERSITY OF NEW YORK AT BUFFALO 953
threat to assign employees less desirable shifts was ac-
centuated by supervisor chasing employees down hall-
way and yelling at them). Finally, the shift of a single
vote could have changed the outcome of the election.
In sum, although Sherman Hall was property that the
Employer may have lawfully occupied, the record fails to
establish that the Employer had a property interest in
Sherman Hall sufficient to lawfully eject Melton. By
barring Melton, in the presence of a potentially determi-
native voter, from organizing activity at Sherman Hall,
the Employer committed objectionable conduct that re-
quires setting aside the election and directing a new one.
[Direction of Second Election omitted from publica-
tion.]

MEMBER SCHAUMBER, dissenting.
I agree with the judge that the Petitioner failed to es-
tablish that the Employer engaged in objectionable con-
duct when one of its officials informed a trespassing un-
ion organizer, who was on the premises in violation of
state regulations, that the organizer could not meet with
an employee on the property during work hours. It sim-
ply cannot be said that this isolated directive had such a
tendency to interfere with employee free choice that it
could have affected the election results. Rather, as the
judge found, both the employee and organizer had ample
alternative opportunities to discuss the pros and cons of
unionization prior to the election, and the incident was
disseminated to no other employee. Contrary to my col-
leagues, therefore, I would adopt the judge’s overruling
of the Union’s Objections 4 and 13, and certify the re-
sults of the election.
As a preliminary matter, my colleagues apply the
wrong legal standard and analysis to the extent that they
rely on cases in which an unfair labor practice charge has
been filed alleging that an employer violated Section
8(a)(1) by excluding a union agent from property in
which the employer has no interest. If such a violation is
alleged and found in a consolidated representation and
unfair labor practice proceeding, then under the Board’s
decision in Dal-Tex Optical Co.,1 the unfair labor prac-
tice is considered, a fortiori, objectionable conduct. In
this case, however, no unfair labor practice has been al-
leged or found, so the precedent my colleagues rely

1 137 NLRB 1782, 1786 (1962). In Dal-Tex, the Board held that
conduct in violation of Sec. 8(a)(1) that occurs during the critical period
is “a fortiori, conduct which interferes with the exercise of a free and
untrammeled choice in and election.” The Board subsequently backed
away from a per se approach and even under Dal-Tex, now examines
the unfair labor practice conduct to determine whether it was extensive
enough to interfere with the election. See Caron Int’l, 246 NLRB 1120
(1979).
upon, primarily Bristol Farms2 and Indio Grocery Out-
let,3 have no bearing on this case; nor does Dal-Tex Opti-
cal Co.
My colleagues grudgingly concede that the Board has
expressly held that the Dal-Tex unfair labor practice
analysis is inapplicable in cases involving only election
objections, yet they sidestep that analytical and preceden-
tial hurdle and invoke unfair labor practice cases—such
as Bristol Farms and Indio Grocery Outlet—all the
same. They assert that such decisions stand for the
proposition that “the denial of access interferes with Sec-
tion 7 rights and, where no private property interest has
been shown, there is no conflict between Section 7 rights
and private property rights and, therefore, no need for
accommodation of the Employer’s property rights under
Lechmere.” As discussed below, my colleagues err in
their analysis of Lechmere and its principles, but the
more fundamental problem is that Lechmere is irrelevant
to the instant proceeding. There is no assertion here that
the Employer violated the Act by excluding a nonem-
ployee union organizer; thus, whether the Employer es-
tablished a sufficient property interest to justify the evic-
tion is irrelevant.
The sole issue in this case, a representation proceeding
in which no unfair labor practice allegation or finding
exists, is, as the Board set forth in Cambridge Tool &
Mfg. Co., 316 NLRB 716 (1995), whether the alleged
objectionable conduct, taken as a whole, warrants a new
election because it has “the tendency to interfere with the
employees’ freedom of choice” and “could well have
affected the outcome of the election.” Metaldyne Corp.,
339 NLRB 352 (2003).4 My colleagues, focused as they
are on property interests not at issue, fail to explain how
the directive to Melton to leave Sherman Hall could pos-
sibly have affected the election outcome. The record es-
tablishes that Bukusoglu did not even know what Melton
wanted to speak to him about when he agreed to meet
her. Then, when Barth arrived, he did not forbid Buku-
soglu to meet with Melton, he simply told Melton she
could not engage in organizing on the property at that
time. Hence, the instruction to leave, consistent as it was
with state law, could hardly have had a coercive impact

2 311 NLRB 437 (1993) (sole issue was whether the respondent vio-
lated Sec. 8(a)(1) by excluding union agents under threat of arrest from
a sidewalk in front of a grocery store; no representation case impli-
cated).
3 323 NLRB 1138 (1997) (sole issue was whether the respondent
violated Sec. 8(a)(1) by seeking to have union representatives arrested
and removed from property; no representation case implicated).
4 See generally Outline of Law and Procedure in Representation
Cases (2008), Sec. 24–311.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 954
on a reasonable person under the circumstances.5 More-
over, as noted above, the judge found there were ample
alternative opportunities and locations for the two to
have met prior to the election. In light of these circum-
stances, the directive, even if improper, could not realis-
tically have impacted on the election outcome, and my
colleagues err in finding otherwise.
Second, even if the Lechmere, Inc.6/Indio Grocery
Outlet property interest line of cases were implicated in
this objections case, the outcome would remain the same,
as Melton’s conduct was unprotected by the Act. In
Lechmere, the Supreme Court made clear that nonem-
ployee union organizers “cannot claim even a limited
right of access to a nonconsenting employer’s property
until ‘after the requisite need of access to the employer’s
property has been shown.’” 502 U.S. at 534 (quoting
Central Hardware Co. v. NLRB, 407 U.S. 539, 545
(1972)). No right of access exists unless the union meets
its “burden of showing that no other reasonable means of
communicating its organizational message exists,” and
that burden “is a heavy one,” that will be met only where
“unique obstacles prevented nontrespassory methods of
communication with the employees.” Id. at 535 (quoting
Sears, Roebuck & Co., v. Carpenters, 436 U.S. 180,
205–206 (1978)). Simply put, Section 7 “does not protect
nonemployee union organizers except in the rare case
where the ‘inaccessibility of employees makes ineffec-
tive the reasonable attempts by nonemployees to com-
municate with them through the usual channels.’” Id. at
537 (quoting NLRB v. Babcock & Wilcox Co., 351 U.S.
105,112 (1956). In the instant case, there clearly were
alternative means of communicating, as the judge spe-
cifically found. Hence, Melton’s trespassory conduct
was not protected and, therefore, contrary to my col-
leagues, Bukusoglu did not possess a Section 7 right to
“learn the advantages of self-organization” on state prop-
erty to which Melton had no legal right of access at the
time. It necessarily follows that Barth’s directive did not
interfere with protected activity to such a degree that the
election should be set aside.
Finally, even if I were to agree that the Board in an ob-
jections case should proceed to assess an employer’s
property interest before determining whether the trespas-

5 My colleagues attempt to bootstrap their argument with selective
excerpts of Bukusoglu’s testimony, which they interpret as reflecting
Bukusoglu’s subjective negative reaction to the encounter. An equally
reasonable interpretation is that Bukusoglu felt responsible for having
created a problem by agreeing to meet with someone who was not
supposed to be there in the first place. Regardless, the Board does not
rely upon subjective perceptions, and no reasonable employee would be
coerced in the exercise of his or her free choice in a secret-ballot elec-
tion by observation of such an incident.
6 Lechmere, Inc. v. NLRB, 502 U.S. 527, 533 (1992).
sory organizational activity of a nonemployee is pro-
tected by Section 7,7 I would find a sufficient property
interest here. Research Foundation was not a stranger to
SUNY, but a rightful occupant, performing contract ser-
vices for SUNY. Further, it was a Research Foundation
employee, not a SUNY employee, with whom Melton
sought to meet. Knowing that she was trespassing, Barth
instructed Melton to leave Sherman Hall, after receiving
permission from a SUNY official to eject her.
North Hills Office Services, 345 NLRB 1262 (2005),
supports Research Foundation’s ejection of Melton.
There, as here, the respondent performed contract ser-
vices on the property of another company (Pall Corpora-
tion) and was advised by a Pall official “to be ‘very care-
ful’ with nonemployees on the property because the
building was considered a terrorist attack target.’” In
accord with this advisory, and pursuant to its own work
rule that prohibited “unauthorized personnel on the job at
any time,” the respondent told its own employee that she
could not talk to nonemployee union organizers in Pall’s
parking lot, but was free to do so off the property, a few
feet away. The Board found no violation, reasoning that
because the respondent could have lawfully removed the
nonemployees from the parking lot as trespassers, “there
[was] no meaningfully difference” in telling its employee
not to talk to the trespassing nonemployees. “In both
instances, the purpose and effect of the instruction [was]
to obtain compliance with a property restriction, one that
does not impermissibly restrict Section 7 activity.” 345
NLRB at 1263.
Here, Barth instructed nonemployee organizer Melton
to leave property on which she was trespassing, rather
than, as in North Hills, instructing his employee Bukuso-
glu not to speak to her on the property. As in North
Hills, because the “purpose and effect of [Barth’s] in-
struction [was] to obtain compliance with a property re-
striction” imposed by property owner SUNY, his instruc-
tion was lawful.
This result follows even under the “property interest”
rationale applied by my colleagues. Assuming, ar-
guendo, that they are correct that only SUNY possessed
the requisite property interest entitling it to expel Melton
from Sherman Hall, I agree with the judge that SUNY
delegated its expulsion right to Research Foundation
during the phone call between Barth and SUNY’s HR
official. My colleagues do not dispute that SUNY had
the authority to make this delegation; rather, they con-
clude that the delegation was not properly executed be-

7 See Salmon Run Shopping Center LLC v. NLRB, 534 F.3d 108, 114
(2d Cir. 2008) (“Simply put, the Board may not fashion a remedy with-
out first considering whether section 7 rights are at issue and whether a
Babcock exception applies.”).
RESEARCH FOUNDATION OF THE STATE UNIVERSITY OF NEW YORK AT BUFFALO 955
cause the SUNY official failed to expressly reference the
state guidelines governing the proper location for orga-
nizing activities when authorizing Barth to exclude Mel-
ton. This cramped interpretation is unwarranted and falls
well short, as a legal basis, for reversing the judge’s find-
ing that SUNY properly assigned to Research Founda-
tion the right to exclude Melton from Sherman Hall.
In sum, because Melton was trespassing by entering
Sherman Hall, and because there were multiple alterna-
tive means of communication available, her removal
from the building did not interfere with any Section 7
right. Accordingly, I would affirm the judge’s overruling
of the Union’s objections pertaining to Melton, and adopt
his conclusion that the Union did not receive a majority
of the votes in the election.

Subhash Viswanathan, Esq. and Raymond J.Pascucci, Esq., for
the Employer.
Michael Deely, Labor Relations Specialist, and Anna
Geronimo, Organizer, for the Petitioner.
ADMINISTRATIVE LAW JUDGE’S REPORT AND
RECOMMENDATIONS ON OBJECTIONS
BRUCE D. ROSENSTEIN, Administrative Law Judge. Pursuant
to petitions filed on December 5 and 18, 2008,1 and a Stipulated
Election Agreement entered into by the parties and approved on
December 23, 2008, an election by secret ballot was conducted
under the direction and supervision of the Acting Regional
Director, Region 3 of the National Labor Relations Board (the
Board or NLRB) on January 30, 2009,2 in the following unit of
employees.

INCLUDED: All full-time and part-time postdoctoral associ-
ates and all senior postdoctoral associates.
EXCLUDED: All postdoctoral fellows, clinical investigators,
research scientists, managers, confidential employees, guards,
and supervisors as defined in the Act, and all other employees
not included.

The tally of ballots, which was made available to the parties
at the conclusion of the election showed the following results:

Approximate number of eligible voters 142
Void ballots 0
Votes cast for Petitioner 35
Votes cast against participating labor organization 35
Valid votes counted 70
Challenged Ballots 0
Valid votes counted plus challenged ballots 70

A majority of the valid votes counted have not been cast for
the Petitioner.
On February 6, the Petitioner filed timely objections to con-
duct affecting the results of the election. On March 9, the Re-
gional Director issued an order directing a hearing on the objec-

1 The December 5, 2008 petition was withdrawn and filed again on
December 18, 2008.
2 All dates are in 2009 unless otherwise indicated.
tions designating an Administrative Law Judge to conduct the
hearing.3
I conducted a hearing on the below noted objections in Buf-
falo, New York, on March 25 and 26.4 On the entire record, I
make the following recommendations.
BACKGROUND
The Employer is a private, nonprofit 501(c)(3) educational
corporation that was established in 1951. It has offices at 30
State University of New York (SUNY) locations including
Buffalo, New York, with its central office located in Albany,
New York. The Employer carries out its responsibilities pursu-
ant to a 1977 agreement with SUNY. The Facilities and Ad-
ministration revenue portion of a sponsored project supports the
administrative cost of the Employer and the infrastructure on
campus that supports sponsored research. Each campus, in-
cluding Buffalo, determines how the dollars are best utilized at
their specific location and each Principal Investigator (PI) de-
termines how the dollars awarded to them in a sponsored pro-
ject are best utilized to support their research.5
The parties agreed to hold two-scheduled voting sessions on
January 30, a 3-hour period from 11 a.m. to 2 p.m. and a 3-hour
session from 3 to 6 p.m. They established two polling sites for
the election, one in the Natural Science Center on the Univer-
sity of Buffalo’s (UB) North Campus and one in Harriman Hall
on UB’s South Campus.
In election proceedings, it is the Board’s function to provide
a laboratory in which an experiment may be conducted under
conditions as nearly ideal as possible, to determine the unin-
hibited desires of the employees. It is the Board’s duty to es-
tablish those conditions and to determine whether they have
been fulfilled. General Shoe Corp., 77 NLRB 124, 127 (1948).
It is also the responsibility of the Board to ensure that its elec-
tions are properly conducted; the Board’s role in the conduct of
elections must not be open to question. New York Telephone
Co., 109 NLRB 788, 790 (1954).
Objection Related To Inclement Weather
The Petitioner alleges that during both polling periods, the
weather in the Buffalo area made it extremely difficult to travel
and there was record snowfall in the Buffalo metropolitan area
2 days prior to the election. The Petitioner further argues that
the snow already on the ground along with new snow that fell
on the day of the election, combined with strong persistent
winds, made roads throughout the area very difficult to navi-
gate. Accordingly, the Petitioner contends that due to these

3 The Employer filed a special appeal with the Board challenging the
Acting Regional Director’s decision to direct a hearing on the Peti-
tioner’s objections. By Order dated March 31, the Board denied the
Employer’s special appeal.
4 Posthearing briefs filed by the Petitioner and the Respondent were
duly considered.
5 A PI is a University of Buffalo faculty or staff member who bears
responsibility for the intellectual leadership of a project. The PI accepts
overall responsibility for directing the research, financial oversight, and
compliance with relevant university policies and sponsor terms and
conditions. The PI serves as the supervisor and mentor to the postdoc-
toral associates during their tenure in support of a specific research
project.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 956
extreme conditions less than half of the eligible employees
were able to vote in the election. Many of the eligible voters
worked off campus and until 5 p.m., and on a normal day with-
out the presence of inclement weather the trip to either polling
place would take about 15 minutes. On January 30, the trip to
either of the polling sites, according to the Petitioner, took in
excess of 1 hour with difficult road conditions confronting pro-
spective voters.
Facts
On January 30, the National Weather Service reported that
1.20 inches of snow fell in the Buffalo area. The wind was
measured at 17 miles per hour with average visibility of ap-
proximately 3 miles. There were no weather or travel adviso-
ries in the Buffalo area on that day. The Weather Service re-
ported that on January 28, 2 days prior to the election, that the
snowfall measured 7.10 inches and on January 29, the day be-
fore the election, there was 0.30 inches of snow. On the 3 days
before the election, the Weather service did not measure any
significant snow accumulations (Jt. Exh. 4–8 and 13–19). The
weather on January 30 did not cause UB to close and classes
were in session as usual. The public school districts in the im-
mediate area of the UB’s North and South Campus did not
close nor did any of the neighboring school districts. The re-
cord evidence shows that no eligible voters called in on January
30 to report an absence from work due to inclement weather
conditions.
The Petitioner presented two witnesses to testify about the
weather conditions on the day of the election. Yukstl Bukuso-
glu, a recently hired postdoctoral associate from Turkey and a
medical doctor, lives on the UB campus and normally walks to
work. On the day of the election, after working his normal day,
he walked from his office in Sherman Hall to the polling area
located in Harrison Hall on the South Campus. Bukusoglu
reported no exceptional difficulty in traversing the sidewalks
and voted at approximately 5:45 p.m. He testified that other
then the Board Agent and the two observers he was the only
employee present in the polling area at that time.
David Parisi, a senior programmer analyst for the Employer
who served as the union observer at the North Campus for both
voting sessions, testified that his normal driving commute to
work takes approximately 25 minutes. On the day of the elec-
tion, because of the weather conditions and slow traffic, it took
him approximately 45–55 minutes to arrive at the location for
the preelection conference. He acknowledged, despite the
weather conditions, that all of the Petitioner and Employer
observers were able to attend the preelection conference along
with the two Board Agents and representatives of the Petitioner
and the Employer. Parisi noted that after the election ended at
6 p.m., it took the Board Agent who conducted the election at
the South Campus polling location approximately 1 hour to
arrive at the North Campus polling location where the ballot
count was held.
The Employer, in addition to introducing documentary evi-
dence into the record concerning the weather conditions experi-
enced prior to and on the day of the election, called a number of
witnesses to testify about this issue. Jason Benedict is a post-
doctoral associate and voted in the election. Benedict testified
that his driving commute to work on the day of the election was
fairly ordinary with the roads in pretty good condition. He
lives approximately 6 or 7 miles from the UB campus. His
normal commuting time is 15–20 minutes and on the day of the
election it took him approximately the same amount of time to
arrive at work. He walked to the polling area without difficulty
and voted around 11:30 a.m. Sean O’Brien served as the Em-
ployer’s observer on the South Campus for both polling ses-
sions. He testified that none of the voters who cast a ballot at
his polling location said anything about having difficulties ar-
riving at work because of the weather. Michael Lukasik was
the observer for the Employer at the North Campus and testi-
fied that no voters expressed any problems with getting to the
polls because of the weather conditions.6
Discussion
The Board has issued two significant cases that set forth the
legal principles for setting aside an election due to inclement
weather conditions. In Baker Victory Services, Inc., 331 NLRB
1068 (2000), the Board held that an election should be set aside
where severe weather conditions on the day of the election
denied eligible voters an adequate opportunity to vote and a
determinative number of employees were unable to cast a bal-
lot. In that case, the employer operated early childhood pro-
grams in Buffalo at two school-based facilities and other loca-
tions. The election was scheduled to be held on Thursday,
January 14, 1999. During the 4 days prior to the election, the
Buffalo metropolitan area received 19.7 inches of snow, and
data from the weather service indicated that the City of Buffalo
received a total of 55.8 inches of snow during the first 2 weeks
of January. The mayor of Buffalo and President Clinton de-
clared a state of emergency in Buffalo for the period from
January 11 to 19, 1999, which entitled the city of Buffalo to
Federal Disaster assistance. The evidence disclosed that the
employer’s schools were closed because of the weather which
caused many of the employees in the petitioned for bargaining
units not to report to work and led many of them to believe that
the election would be canceled. Based on the totality of evi-
dence in that case, the Board concluded that the weather condi-
tions reasonably denied a determinative number of eligible
voters to cast their ballots.
In V.I.P. Limousine, Inc., 274 NLRB 641 (1985), the em-
ployer operated a limousine service in the New York metropoli-
tan area. A deauthorization petition election was held on Feb-
ruary 11, 1983. On the day of the election, a snow storm com-
menced that resulted in approximately 20 inches of snow in the
area making navigation of the roads very difficult and danger-

6 Due to cumulative testimony presented by the Employer regarding
difficulty in arriving at work on the day of the election, I permitted
counsel to make an offer of proof on behalf of O’Brien and Lukasik.
Both employees would have testified that there was nothing remarkable
about the weather conditions on the day of the election and neither
employee had any problem in arriving at work and attending the
preelection conference. Testimony, in the form of an offer of proof was
also provided by Employer witnesses Donna Scuto and Lynn Manning.
Consistent with the other Employer witnesses, these individuals would
have testified that they were not prevented from attending the preelec-
tion conference due to inclement weather conditions.
RESEARCH FOUNDATION OF THE STATE UNIVERSITY OF NEW YORK AT BUFFALO 957
ous. Because of the blizzard conditions on the day of the elec-
tion, the Board set aside the election.
Based on the totality of circumstances discussed above, I
find that the weather conditions in Buffalo on the day of the
election did not approach the type of conditions found in the
above cited cases for which the Board set aside the elections.
Only 1.20 inches of snow fell in Buffalo on January 30, and the
area did not experience large snowfall accumulation in the days
preceding the election. In comparison to the extreme circum-
stances discussed in the above cited cases, there was no state of
emergency declared on January 30, no travel restrictions were
imposed, and no public schools in the immediate area including
the UB North and South campus were closed due to adverse
weather conditions.
I have carefully considered the testimony of all witnesses
that were called by both parties to discuss this issue. Even the
Petitioner’s witnesses acknowledged that they were able to
report to the polling areas without great difficulty and Parisi
admitted that he arrived at the preelection conference on time
despite his commute to work taking approximately 20 to 30
minutes longer. It is telling, however, that the Petitioner did
not call as witnesses any of the 72 eligible employees that did
not vote in the election to assert that the reason for their ab-
sence was directly related to the weather conditions experi-
enced on the day of the election. There could be many reasons
for less than a 50 percent turnout on the day of the election,
however, the Petitioner failed to carry its burden that the low
turnout was directly related to the adverse weather conditions
experienced on the day of the election.
For all of the above reasons, I recommend that this objection
be overruled.
Objection 1
The Employer created the impression of surveillance, or ac-
tually engaged in surveillance of employees.
The Petitioner alleges that on January 15, the Employer’s
Lab Director Andrew Barth asked Amy Melton, a nonemployee
union organizer, who was meeting with postdoctoral associate
Bukusoglu in his office, what they were doing. According to
the Petitioner, Barth told Melton and Bukusoglu that he had
been instructed by Human Resources to stop any union activity
and report it. In addition, the Petitioner is claiming that Donna
Scuto, the assistant vice president of Policy and Control for UB
sent out emails advising employees to be aware of union organ-
izers and to report any instance of organizers talking to em-
ployees.
Facts
Melton testified that as part of her duties and responsibilities
as an organizer for the Petitioner, she attempted to contact eli-
gible postdoctoral associates in advance of the January 30 elec-
tion, to explain the benefits of forming a union and to answer
any questions that the eligible voters might have. For this pur-
pose, she contacted Bukusoglu by telephone to inquire whether
he would meet with her. Bukusoglu agreed and the meeting
was scheduled for January 15. Melton arrived at Sherman Hall,
the building where Bukusoglu has his office, and walked unac-
companied without having to pass through security to his office
location. They engaged in conversation for approximately 5
minutes before Barth knocked on the office door and entered.
According to Melton, Barth asked her who she was and who do
you work for? Melton responded and asked Barth the same
questions. Barth then informed Melton that you have no right
to be here and would have to leave the building. Melton replied
that she was invited by Bukusoglu to meet with him about the
Union. Barth replied that if you do not leave I will have to call
the authorities. He then stated that this is private property and I
have called Human Resources and will do so again if you do
not leave. According to Melton, Barth also stated that Bukuso-
glu was a new postdoctoral associate and did not know better
when he scheduled the meeting. Melton decided it was best to
leave the premises and no further confrontation occurred. Mel-
ton noted that she did not contact Bukusoglu again before the
scheduled election.
Bukusoglu testified and confirmed that he was contacted by
Melton and agreed to meet with her on January 15 in his office.
Bukusoglu stated that his English was poor and he was uncer-
tain who Melton represented. Since he thought Melton might
be someone who was investigating his status as a new em-
ployee, he contacted the department’s administrative secretary
to inquire if she knew Melton or could find out who she repre-
sented. According to Bukusoglu, the secretary suggested that
he lock his door and pretend that he was not in his office if
Melton arrived for the scheduled appointment. Bukusoglu
decided to go forward with the appointment and confirmed that
Barth came into his office on January 15, shortly after Melton
arrived, and informed her that she was not allowed to be in the
building as it was private property. Barth told Melton that if
she did not leave, he would call the police. Melton replied that
she had a right to be in the building because Bukusoglu had
invited her. Barth and Melton argued back and forth for a short
period with Barth raising his voice above Melton’s. Finally,
Melton decided to leave his office and the meeting ended at that
point.7
Barth testified that on January 15 his secretary informed him
that a union organizer was coming to the Lab to meet with Bu-
kusoglu but that he really did not want to meet with the organ-
izer. Barth instructed his secretary to contact Human Re-
sources to discern if the meeting could take place on SUNY
property. Human resources reported that the meeting should
not occur as all offices in the Lab were private property. On
January 15, Barth was apprised by someone on his staff that
Melton had arrived at Sherman Hall and was in the building
unaccompanied. Since Barth knew that Melton intended to
have a meeting with Bukusoglu in his office, he proceeded to
that location, a distance of less than 5 minutes, and entered the
office. He admits that he informed Melton that she must leave
the premises and if she did not, he would be forced to call the
authorities. He acknowledged that he raised his voice and was
adamant about Melton leaving the building.

7 Ana Geronimo, one of the lead organizers for the Petitioner, testi-
fied that around 4:30 p.m. on January 15, she telephoned Barth to con-
front him about ordering Melton to end her meeting with Bukusoglu
and leave the building. Barth admitted that he instructed Melton to
leave the building and would do it again because the building was
private property. Geronimo informed Barth that he could be violating
Federal Labor Law. Barth hung up on Geronimo.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 958
On January 12, Scuto sent an email to all postdoctoral asso-
ciates informing them that this would be the first in a series of
communications that they would receive concerning the Un-
ion’s organizing efforts (Pet. Exh. 2).8
During the course of the hearing, the Petitioner withdrew the
portion of the objection that alleges that Scuto sent out emails
advising employees to be aware of union organizers and to
report any instance of organizers talking to employees.
Discussion
The Petitioner’s primary allegation in this objection is that
the Employer, by Barth’s actions and conduct, created the im-
pression of surveillance or engaged in surveillance of em-
ployee’s union activities.
Based on the evidence discussed above, I am not convinced
that Barth engaged in objectionable conduct as alleged by the
Petitioner. In this regard, Barth only became aware of the
scheduled meeting between Bukusoglu and Melton due to Bu-
kusoglu’s inquiry to the administrative secretary to determine
who Melton represented and worked for. Thus, Barth was not
engaging in surveillance when he was informed that Melton
had arrived at the Sherman building. Since Barth knew that
Melton was planning on meeting with Bukusoglu he immedi-
ately left his work area and arrived at the meeting place in less
than 5 minutes.
For all of the above reasons, I find that the Employer did not
create the impression of surveillance or engage in surveillance
as alleged by the Petitioner. However, the underpinnings of
this objection must be examined further as the evidence estab-
lishes that Barth threatened to call the authorities to have Mel-
ton removed from the Sherman building while she was engaged
in organizing activities. As a result of Barth’s actions, Melton
was placed in the untenable position of either being escorted
from the building by the authorities or leaving the premises
without completing her meeting with Bukusoglu.
The Employer defends its conduct based on the guidelines
for organizational activities and Campaigns set forth in the
Governor of New York State’s Manual on Employer Relations
that applies to State facilities and State employees. A section
of that document titled Employee Relations Manual was made
part of the record in the subject case (Emp. Exh. 6). The Man-
ual states in pertinent part that the State of New York’s position
is one of neutrality during organizational campaigns, preelec-
tion periods and the election process.9

8 The email states in pertinent part some of the reasons that the Em-
ployer believes that having a unionized work force in a sponsored pro-
gram environment would not be beneficial for employees or research-
ers. It also informed the associates that the Office of Postdoctoral
Scholars has worked with the Administration at UB and the Postdoc-
toral Association to develop a policy which sets the ground rules for
postdoc scholars and faculty mentors regarding postdoctoral appoint-
ments.
9 Portions of the Manual relevant to the subject case include the fol-
lowing. Organizational activities by employee organizations must be
conducted so as not to interfere with the safe and efficient conduct of
State operations and the discharge of work responsibilities by State
employees. The State shall take appropriate action to prevent the viola-
tion of these guidelines by any person acting on behalf of an employee
organization. The State will not make meeting space in buildings or
The case therefore presents the issue of whether the Em-
ployer established a sufficient property interest to exclude Mel-
ton from Bukusoglu’s work location (owned by SUNY) and in
which the Employer leases space for its laboratory and adminis-
trative offices. The Employer, by virtue of the Employee Rela-
tions Manual from the New York State Governor’s office, ar-
gues that it acted under delegated authority and under the pro-
tection of the Supreme Court’s decision in Lechmere Inc. v.
NLRB, 502 U.S. 527 (1992), in which the Court held that an
employer can meet its burden of establishing a property interest
entitling it to exclude individuals from property by showing,
inter alia, that “an owner had by express delegation authorized
the employer to stand in its shoes as against trespassers.”
In Indio Grocery Outlet, 323 NLRB 1138 (1997), the Board
reaffirmed that “in cases in which the exercise of Section 7
rights by nonemployee union representatives is assertedly in
conflict with a respondent’s private property rights, there is a
threshold burden on the respondent to establish that it had, at
the time it expelled the union representatives, an interest which
entitled it to exclude individuals from the property.” To deter-
mine the property interest, the Board looks at the law that cre-
ated and defined the Employer’s property interest, which is
State, rather than Federal law.
Based on the forgoing, and particularly noting that the Em-
ployer herein leases space in a SUNY building that prohibits
the use of its space for employee organizations for campaign
purposes, I find that the actions of Barth in demanding that
Melton leave the Sherman building is not violative of the Act.
Likewise, I conclude that the Petitioner did not fall within any
of the exceptions listed in the manual since there were numer-
ous public areas available on the campus that Melton could
have met Bukusoglu, no offer to reimburse the State was made,
and no request was made by Melton in advance to meet with
Bukusoglu in his Sherman building office.
In summary, I find that the Employer did not create the im-
pression or engage in surveillance nor did it engage in objec-
tionable conduct when it directed Melton to leave Bukusoglu’s
office and exit the building. Therefore, I recommend that Ob-
jection 1 be overruled.

areas which it owns or leases available to an employee organization for
campaign purposes except under the following conditions (a) suitable
space is not reasonably available elsewhere in the area, (b) the em-
ployee organization reimburses the State for any costs which the State
incurs as a result of making such space available, and (c) the organiza-
tions requests the use of such space in advance, pursuant to the rules of
the department or agency concerned. Organizational activities by per-
sons not employed by the State are permissible for the purpose of solic-
iting membership, distributing literature, obtaining signatures on au-
thorization cards, and other organizational activities in parking lots,
entrances to buildings, and other areas to which members of the public
are admitted, provided that such activities do not inhibit the movement
of people or vehicles, impair the safe and efficient conduct of opera-
tions, or interfere with work duties or work performance.
RESEARCH FOUNDATION OF THE STATE UNIVERSITY OF NEW YORK AT BUFFALO 959
Objection 210
The Employer threatened to and/or did reduce wages, hours,
or other terms and conditions of employment, in order to influ-
ence the outcome of the election.
The Petitioner alleges that at two captive audience meetings
held on January 21 and 27, Scuto advised eligible voters in
attendance that a union victory would result in loss of work or
the termination or reduction of other grants.
Facts
By memorandum dated January 17, Co-Presidents of the
Postdoctoral Association, Jurgen Bulitta and Silvia Brown in-
vited faculty and staff to attend several town hall meetings at
both the UB North and South Campuses to discuss the pros and
cons of unionization (Emp. Exh. 1). The memorandum noted
that the Postdoctoral Association would like to be impartial and
provide the postdoctoral associates a balanced summary of pros
and cons to enable them to make an informed decision concern-
ing the upcoming union election.11
The first meeting occurred on January 21 and was attended
by Geronimo, Melton, Scuto, faculty, and staff members along
with seven or eight postdoctoral associates. The second meet-
ing was held on January 27, and was attended by the same indi-
viduals along with faculty and staff and approximately the same
number of postdoctoral associates.
Geronimo gave a presentation to the attendees concerning
the benefits of having the Union serve as the collective-
bargaining representative of the postdoctoral associates. This
presentation was followed by a power-point presentation by
Scuto that summarized the pros and cons of a labor organiza-
tion in the research environment (Pet. Exh. 9). It specifically
noted that while unionization may be appropriate in some envi-
ronments, the Employer does not believe it would be appropri-
ate in a sponsored programs research environment such as is
present here. Following the formal presentations of Geronimo
and Scuto, the meeting was opened up for a general question
and answer session.
Geronimo testified that during Scuto’s power-point presen-
tation she informed the attendees that the Employer’s funding is
not entirely controlled by them but rather by external sources.
Therefore, any kind of union that came in would really not be
able to have any impact at all and it would be useless to join a
union. Additionally, Geronimo asserts that Scuto stated that if
a Union is selected to represent the postdoctoral associates
there would be no ability to bargain a raise and therefore it
would be a futile effort, it could diminish the Employer’s work
load, it would reduce jobs for lab staff and postdoctoral associ-
ates, and it could prove more difficult to obtain grants for re-
search projects. Geronimo further testified that Scuto stated

10 The underpinnings of this Objection are also alleged in Objections
4, 7, and 13. In Objection 13, the Petitioner during the course of the
hearing withdrew the portion of that Objection that alleged “Threatened
to have employees arrested.”
11 The Postdoctoral Association is a voluntary organization open to
membership for all postdoctoral associates at UB including those em-
ployed by the Employer. The Association was formed in June 2007,
and operates under policy documents that were finalized at that time.
Bulitta became co-president of the Association in June 2008.
that if the Union won the election the relationship between the
PI and the postdoctoral associates would likely be damaged
especially if a grievance was filed against the PI who controls
the grants and would be the author of any letter of recommen-
dation.
The Employer called three witnesses who attended either one
or both of the town hall meetings in which the power-point
presentation was presented.
Scuto testified that she closely followed the power-point
presentation outline and did not deviate from its content. She
vigorously denied that she threatened to reduce wages, hours,
or working conditions of the postdoctoral associates if they
selected the Union as their collective-bargaining representative.
Indeed, Scuto noted that on December 19, 2008, she sent a
memorandum to the faculty on what they could do or say dur-
ing a union organizing campaign and was very aware that
threats to take away or withhold benefits from employees
would be violative of the law (Emp. Exh. 7).
Bulitta, who helped organize the town hall meetings and at-
tended both sessions, denied that Scuto threatened the postdoc-
toral associates with the loss of any benefits or that she implied
that if the Union won the election, there could be less money to
obtain grants or hire faculty. Additionally, Bulitta denied that
Scuto stated that forming a union is useless. He also confirmed
that Scuto faithfully followed the power-point presentation
during the course of her remarks.
Benedict testified that he attended the January 27 town hall
meeting and heard both Geronimo and Scuto’s presentations.
He has no recollection of Scuto stating or implying that there
would be a reduction in postdoctoral opportunities if the Union
wins the election or that Scuto made any other threatening re-
marks about relationships being damaged if the employees
voted to unionize.
Discussion
I am not convinced that Scuto threatened employees with
loss of wages, hours, or working conditions during the course
of the town hall meetings held on January 21 and 27, for the
following reasons.
First, Scuto impressed me as a sincere and grounded witness
whose testimony had a ring of truth to it. I have closely re-
viewed the power-point presentation materials and while the
Employer gives its firm position against unionization, it does so
without threatening employees with loss of benefits if the Un-
ion wins the election. The slides used in the presentation fol-
low the written materials introduced into the record and I am
convinced that Scuto faithfully followed the script without
adding comments to undermine the Union’s status or threaten
employees with loss of benefits.
Second, I find that Scuto was well versed in what could be
said to employees during the course of an organizing campaign
and shared such information with faculty and staff immediately
after the petition was filed in the subject case. Therefore, it is
unlikely that Scuto would deviate from these instructions dur-
ing the course of the town hall meetings with eligible voters
present.
Third, I find that the other witnesses proffered by the Em-
ployer that attended either both or one of the town hall meet-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 960
ings did not support the assertions of the Petitioner that Scuto
threatened employees with loss of benefits.
Fourth, the evidence establishes that Melton attended both
town hall meetings as one of the two union representatives and
participated in the question and answer sessions. Despite Mel-
ton being called as a witness for the Petitioner during the course
of the hearing, no questions were presented to her about what
Scuto said at the town hall meetings. Therefore, I must con-
clude that not asking Melton about what Scuto stated during the
course of her power-point presentation would not have sup-
ported Geronimo’s testimony that Scuto threatened employees
with loss of wages, hours, or working conditions. Lastly, I note
that the Petitioner did not call any of the postdoctoral associates
that attended either of the two town hall meetings that could
have supported Geronimo’s testimony regarding this objection.
Accordingly, I recommend that Objection 2 be overruled in
its entirety.
Objection 3
The Employer promised to and/or did put into effect favor-
able changes in wages, hours, or other terms and conditions of
employment, in order to influence the outcome of the election.
The Petitioner alleges that during the critical period, Scuto
announced a favorable change in the vesting period for the
postdoctoral associates at the two town hall meetings.
Discussion
During the course of the hearing, the Petitioner withdrew
Objection 3. Accordingly, I have not made a finding concern-
ing this objection.
Objection 4
The Employer interfered with employees engaged in pro-
tected activity.
Discussion
The Petitioner is relying on the facts previously discussed in
Objection 1 to support this objection. Based on my finding
concerning Objection 1, I recommend that Objection 4 be over-
ruled.
Objection 5
The Employer permitted employees who oppose the Union
to campaign against the Union on working time or enjoy other
privileges, while denying union supporters the same privileges.
Discussion
During the course of the hearing, the Petitioner withdrew
Objection 5. Accordingly, I have not made a finding concern-
ing this objection.
Objection 6
The Employer suggested that employees form a committee
to deal with problems or grievances.
The Petitioner asserts that the Employer and UB allowed the
Postdoctoral Association to act as a bargaining agent for the
employees. It further contends that the Employer, UB, and the
Postdoctoral Association acted in collusion by sending out a
series of joint emails commencing on January 12 that describe
the partnership between these three groups. Lastly, the Peti-
tioner alleges that the “Postdoctoral Scholar Policy” is effec-
tively a grievance procedure to which postdoctoral associates
have access.
Facts
As previously discussed, the Postdoctoral Association is a
voluntary organization open to membership for all postdoctoral
associates at UB including those employed by the Employer.
On January 12, Scuto sent the first in a series of email’s to
all Employer postdoctoral associates concerning the Peti-
tioner’s efforts to form a Union at the Employer (Pet. Exh. 2).
In addition to explaining the Employer’s position on unioniza-
tion, it stated in pertinent part that “The Office of Postdoctoral
Scholars has worked with the Administration at UB and the
Postdoctoral Association to develop a policy which sets the
ground rules for postdoc scholars and faculty members regard-
ing Postdoctoral appointments. This includes, but is not limited
to appointments and hiring practices, dispute resolution, and
compensation minimums.”
On December 3, 2008, prior to the filing of the representa-
tion petition in the subject case, the Office of Postdoctoral
Scholars created an informational document designed to inform
both postdoctoral scholars and their faculty mentors of policies
unique to individuals with the title of Postdoctoral Associate or
Postdoctoral Fellows (Pet. Exh.11).12 The Postdoctoral Associa-
tion was sent a printout of the document in August 2008, and
submitted a number of comments and suggested changes. That
was the only input they had in the development of the docu-
ment. Likewise, Scuto received an advanced copy of the
document but limited her comments to suggested editing
changes and had no input in its development or distribution.
The second, third, and final email was sent to the postdoc-
toral associates on January 16, 23,13 and 2914 respectively (Pet.

12 The policy statement includes appointments of a Postdoctoral
Scholar, Designated Titles, Recruitment and Hiring, Compensation,
Leaves, Dispute Resolution, and a Responsibility Section. The Dispute
Resolution Procedures are more fully set forth in Appendix D. The
process is an internal grievance procedure that prohibits members of the
bar from participating, does not use a neutral third-party arbitrator and
the final decision rests with the Dean of the Graduate School with no
other appeals permitted.
13 This email states in pertinent part that: “The RF (Employer) is
pro-employee rather than anti-union. We recognize and respect the
rights of Postdocs to learn about the union, but we also believe that
Postdocs should have access to all information including reasons why
unionization may not be a good decision. Our main goal is to provide
reliable and honest information to Postdocs as they consider the very
important issue of unionization. During the campaign the Employer is
committed to following all laws and regulations regarding union elec-
tions. The Employer believes that you already receive the potential
benefit of unionization without having to pay dues. Lastly, it points out
that Employer graduate students at three other SUNY locations at Al-
bany, Buffalo, and Syracuse ESF voted “no” to unionization. In all
three elections, informed Employer graduate students voted “no” so
they could continue to work directly with the Employer on all issues.”
14 This email states in pertinent part that: “We place a high value on
the direct working relationship between managers and Employer staff
and we would like to continue that relationship. We believe that insert-
ing a union between management and staff would have a negative
impact on job satisfaction for all of us. A section on Employer funding
points out that all funds awarded to the Employer for grants and con-
RESEARCH FOUNDATION OF THE STATE UNIVERSITY OF NEW YORK AT BUFFALO 961
Exh. 3–5). They were authored by Paul Kelly, a member of the
UB Human Relations Department that has human resource
responsibility and oversight for the Employer.
On January 30, the Postdoctoral Association sent an email to
all postdoctoral associates urging them to vote and make their
voices heard (Pet. Exh. 6). The Association also provided an
overview of the pros and cons of unionization for the postdoc-
toral associates (Pet. Exh. 10). The document apprises postdoc-
toral associates of what a union can do and possibly improve at
the Employer, sets forth what is available for postdoctoral asso-
ciates including existing policies, and compares salary and
hiring for postdoctoral associates. While the outline presents
the facts in a neutral fashion and urges all eligible employees to
vote and be heard, it does state that in the opinion of the Asso-
ciation, the relationship between a postdoc and his/her mentor
may be permanently destroyed if a postdoc takes steps against
his/her PI.15 The outline also discusses the Associations
thoughts about union’s in general and the benefits a postdoc-
toral associate can receive from a mentor.
Discussion
I find that the Petitioner has not sustained the allegations in
this objection for the following reasons.
First, the evidence does not establish that the Postdoctoral
Association is a bargaining agent for the employees. Rather,
the organization which is open to membership for all postdoc-
toral associates at UB including those employed at the Em-
ployer, does not possess the indicia of a labor organization
under Section 2(5) of the Act. It is merely a professional or-
ganization that attempts to further the interests of postdoctoral
associates during their tenure at UB. The Postdoctoral Associa-
tion has no authority to negotiate over wages, hours, or working
conditions and has never held itself out for this purpose. Mem-
bership is voluntary and no dues or membership fees are col-
lected.
The Petitioner notes that the Scuto January 12 email states
that the Postdoctoral Scholars has worked with the Administra-
tion at UB and the Postdoctoral Association to develop a policy
which sets forth the groundrules for postdoc scholars and fac-
ulty mentors regarding postdoctoral appointments. They argue
that the policy effectively contains a grievance procedure that
the postdoctoral associates have access to. The policy was
established on December 3, 2008, a time period prior to the
filing of the representation petitions in the subject case, and sets
forth general guidelines for the compensation, hiring, and per-
sonnel practices of postdoctoral associates. While the policy

tracts are made available to campus PIs for performance of the re-
search, teaching/training or community service project for which fund-
ing was sought. Funds awarded cover project related direct costs such
as salaries, benefits, travel, equipment and supplies. The Employer
does not keep any direct cost funds. All direct costs are allocated and
expended on sponsored projects in accordance with the approved
budget and at the discretion of the PI.”
15 Bulitta credibly testified that he inserted this bullet based on his
past experience as a postdoctoral associate. He believed that challeng-
ing a supervisor/mentor could negatively impact the receipt of a favor-
able letter of recommendation. He confirmed in his testimony that no
one from the Employer including Scuto ever suggested that he include
this bullet in the outline.
does contain an informal grievance procedure that can be util-
ized by postdoctoral associates, the policy does not preclude the
Petitioner from attempting to negotiate a binding third-party
procedure if it is selected as the collective-bargaining represen-
tative of the postdoctoral associates.
Additionally, I find that the content of the emails sent to the
postdoctoral associates during January 2009, in no way threat-
ened loss of benefits or denigrated the status of the Petitioner in
any way. Rather, the emails authored by Scuto and Kelly set
forth facts and in certain instances gives the opinion of the Em-
ployer regarding unionization, all of which is protected by Sec-
tion 8 (c) of the Act.
Under these circumstances, and particularly noting that the
Postdoctoral Scholars Policy was created outside the critical
period with limited assistance from the Employer and the Post-
doctoral Association, I recommend that Objection 6 be over-
ruled.
Objection 7
The Employer threatened the closure of the Research Foun-
dation, relocation, going out of business, transfer, or loss of
work (other harmful economic consequences) if the Union won
the election.
Discussion
The Petitioner is relying on the facts previously discussed in
Objection 2 to support this objection. Based on my finding
concerning Objection 2, I recommend that Objection 7 be over-
ruled.
Objection 8
The Employer created an impression of futility, by suggest-
ing that it would not bargain in good faith if the Union won the
election.
Discussion
The Petitioner is relying on the facts previously discussed in
Objections 2 and 6 to support this objection. Based on my
finding concerning Objections 2 and 6, I recommend that Ob-
jection 8 be overruled.
Objection 9
The Employer threatened to end its “open door policy,” or
stated that individual employees would not be able to talk to
management, if the Union won the election.
Discussion
The Petitioner is relying on the facts previously discussed in
Objection 2 to support this objection. Based on my finding
concerning Objection 2, I recommend that Objection 9 be over-
ruled.
Objection 10
The Employer told employees to report to management
about employees soliciting authorization cards, “bothering”
them about the Union, or engaging in protected activity.
Discussion
During the course of the hearing, the Petitioner withdrew
Objection 10. Accordingly, I have not made a finding concern-
ing this objection.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 962
Objection 11
The Employer prevented employees from voting on Election
Day.
The Petitioner asserts that employees were prevented from
voting because the election notices did not sufficiently identify
the polling locations. In this regard, it asserts that there are
actually six conference rooms in the National Science Center,
and what was supposed to be a conference room in the Harri-
man building was actually a classroom. It further argues that
employees were not notified of the actual polling sites until the
Employer put up its own homemade notices the day before the
election.16
Facts
Deely testified that he informed the Board that their Notice
of Election posted by the Employer did not contain the correct
room numbers for the scheduled January 30 election (Pet. Exh.
1). To correct this oversight, as the Board indicated the Notices
could not be corrected in time before the scheduled election, the
Petitioner mailed the corrected room numbers for the election
to all postdoctoral associates in its January 25 newsletter (Pet.
Exh. 12).
On January 23, the Employer in its third email to all postdoc-
toral associates set forth the corrected room numbers for the
January 30 election (Pet. Exh. 4).
On the morning of the election, January 30, the Employer
placed a stick-on-notice on every postdoctoral associate’s pay-
check that confirmed the election would take place on that day
and contained the specific room numbers where the voting
would take place (Emp. Exh. 5).
Discussion
Based on the forgoing, and particularly noting that all post-
doctoral associates were informed of the correct room numbers
in sufficient time prior to the January 30 election (at least 7 and
not less then 5 days), I find that this objection has not been
substantiated. Moreover, I note that all 70 employees who cast
ballots in the election at either the North or South Campus loca-
tions had no problem in finding the correct room locations.
Accordingly, I recommend that Objection 11 be overruled.
Objection 12
The Employer maintained a separate list of employees, or
took notes, as employees voted in the election.
Discussion
During the course of the hearing, the Petitioner withdrew
Objection 12. Accordingly, I have not made a finding concern-
ing this objection.

16 The Petitioner, in its posthearing brief, raises for the first time the
issue that the Board’s election notices were not posted in a timely man-
ner prior to the election. Since this issue was not included as part of the
Petitioner’s objections filed after the election on February 6, the
Board’s Case Handling Manual (Sections 11392.2(a)(2) and 11392.5)
and the Rules and Regulations (Section 102.69(a) precludes there con-
sideration. Thus, I have not considered this allegation as part of the
Petitioner’s Objections.
Objection 13
The Employer threatened to have employees and/or union
agents arrested in or near the workplace, in such a manner as to
interfere with employees’ rights to organize and support the
Union.
Discussion
The Petitioner withdrew the portion of objection 13 that
states “Threatened to have employees” arrested in or near the
workplace.
The Petitioner is relying on the facts previously discussed in
Objection 1 to support the remaining portion of the objection.
Based on my finding concerning Objection 1, I recommend that
Objection 13 be overruled.
Objection 14
The Employer promoted or acquiesced in the illegal or coer-
cive activity of a third party directed against unionization.
The Petitioner asserts that the Employer allowed and en-
dorsed administrators from UB to lead its campaign and the
actions of Scuto created the impression that UB was the Em-
ployer. It further alleges that the Employer allowed and en-
dorsed the Postdoctoral Association to participate in the Em-
ployer’s antiunion campaign.
Facts
Scuto testified that the first contact she ever had with Bulitta
was the receipt of two emails inviting her to participate in town
hall meeting sessions to discuss the pros and cons of unioniza-
tion in front of faculty, staff, and postdoctoral associates’ eligi-
ble to vote in the election. It was not until January 21, the date
of the first town hall meeting, that Scuto first met Bulitta in
person. Prior to the receipt of the emails on or about January
13 and 17, and the first town hall meeting on January 21, Scuto
had never discussed the union campaign with Bulitta or any
other official of the Postdoctoral Association (Pet. Exh. 7 and
Emp. Exh. 1).
Bulitta testified that the Postdoctoral Association took all
precautions not to take a position about the election and merely
organized the town hall meetings to serve as an information
forum for all postdoctoral associates to receive the presenta-
tions of both Employer and union representatives. Bulitta also
confirmed that he had never met Scuto before the January 21
town hall meeting and neither he nor any official of the Post-
doctoral Association had any meetings or discussions about the
union campaign with Scuto or any other Employer representa-
tive prior to January 21. Likewise, Bulitta testified that no
representatives of UB or the Employer were involved in re-
searching, organizing, or putting together the information that
the Postdoctoral Association distributed to postdoctoral associ-
ates in advance of the town hall meetings (Pet. Exh. 10). Like-
wise, neither Bulitta nor the Postdoctoral Association was in-
volved in the development or dissemination of the Postdoctoral
Scholars policy statement that was created on December 3,
2008, a period prior to the filing of the representation petitions
in the subject case. Rather, Dr. Marilyn Morris, the associate
dean of the Graduate School, Office of Postdoctoral Scholars,
coordinated the creation and distribution of the policy statement
RESEARCH FOUNDATION OF THE STATE UNIVERSITY OF NEW YORK AT BUFFALO 963
with limited editing and input from the Postdoctoral Associa-
tion and the Employer.
Discussion
Based on the forgoing, I find that the Employer did not coor-
dinate, endorse, or allow administrators from UB or the Post-
doctoral Association to lead the campaign against the Union.
In fact, the emails distributed to the postdoctoral associates in
January 2009 prior to the scheduled election, all clearly state
that the Research Foundation (RF) was the Employer rather
than UB. Both Scuto and Bulitta credibly testified that they
had no contact by telephone or personal meetings to discuss the
union campaign prior to their email exchange on or about Janu-
ary 13 or 17, and their first face to face meeting on January 21.
Under these circumstances, and particularly noting that the
Petitioner’s allegations in this objection are based primarily on
speculation without concrete evidence being presented, I find
that the underpinnings of this objection have not been sus-
tained. Accordingly, I recommend that Objection 14 be over-
ruled.
Objection 15
The Employer engaged in disruptive and disorderly conduct
and such conditions were permitted at the polling area.
Discussion
During the course of the hearing, the Petitioner withdrew
Objection 15. Accordingly, I have not made a finding concern-
ing this objection.
CONCLUSIONS AND RECOMMENDATIONS TO THE BOARD
Based on my findings and conclusions above, I recommend
that the Board overrule all of the Petitioner’s objections that
were not withdrawn during the course of the hearing. Further, I
recommend that the results of the election be sustained estab-
lishing that the Petitioner did not receive a majority of the bal-
lots cast.17

17 Pursuant to the provisions of Sec. 102.69 of the Board’s Rules and
Regulations, Series 8, as amended, within 14 days from the date of
issuance of this Recommended Decision, either party may file with the
Board in Washington D.C. an original and eight copies of exceptions
thereto. Exceptions must be received by the Board in Washington by
May 8, 2009. Immediately upon the filing of such exceptions, the party
filing same shall serve a copy upon the other parties and shall file a
copy with the Regional Director. If no exceptions are filed thereto, the
Board may adopt this rcommended Decision.