RHODE ISLAND PBS FOUNDATION

National Labor Relations Board - Board Decisions

Aug 5, 2019

368 NLRB No. 29 (N.L.R.B. 2019)

368 NLRB No. 29
FNOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Rhode Island PBS Foundation and International
Brotherhood of Electrical Workers, Local 1228.
Case 01–CA–204520
August 5, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On July 23, 2018, Administrative Law Judge David I.
Goldman1 issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs2 and has decided to
affirm the judge’s rulings, findings,3 and conclusions and

1 The Respondent has questioned whether Judge Goldman was val-
idly appointed under Lucia v. SEC, 585 U.S. ___ , 138 S. Ct. 2044
(2018). In WestRock Services, Inc., 366 NLRB No. 157, slip op. at 1–2
(2018), the Board confirmed that it had validly appointed all of its
administrative law judges, including Judge Goldman.
2 We deny the Respondent’s request for oral argument as the record,
exceptions, and briefs adequately present the issues and the positions of
the parties.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondent’s exceptions allege that the
judge’s rulings, findings and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) by withdrawing recognition from the Union, we note the
judge found the Respondent’s withdrawal of recognition unlawful for
several reasons, including that the evidence the Respondent relied on
does not prove the Union’s lack of majority support. In doing so, the
judge disregarded testimony of unit employees Joseph Braithwaite and
Mark Smith because he found that they and the Respondent’s president,
David Piccerelli, had violated his sequestration order. The record,
however, does not establish that the three witnesses discussed their
hearing testimony in a manner contrary to the judge’s order. In any
event, applying extant precedent, the judge also disregarded
Braithwaite’s and Smith’s testimony regarding certain statements they
testified to making in opposition to the Union because the Respondent
was unaware of those statements on the date it withdrew recognition
from the Union. See, e.g., Highlands Regional Medical Center, 347
NLRB 1404, 1407 fn. 17 (2006) (holding that employer may not rely
to adopt the recommended Order as modified and set
forth in full below.4
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 3 and renumber the subse-
quent paragraphs accordingly.
Substitute the following for renumbered Conclusion of
Law 4.
“4. The Respondent violated Section 8(a)(1) of the
Act, in or around late May or early June 2017, by coer-
cively interrogating employee Patrick O’Brien about his
union sympathies.”
ORDER
The National Labor Relations Board orders that the
Respondent, Rhode Island PBS Foundation, Providence,
Rhode Island, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating employees about their un-
ion sympathies, including whether they want the Interna-
tional Brotherhood of Electrical Workers, Local 1228
(Union) to continue as their collective-bargaining repre-
sentative.
(b) Refusing to bargain collectively with the Union by
failing and refusing to meet with the Union to negotiate a
collective-bargaining agreement.

on evidence of incumbent union’s loss of support of which the employ-
er was unaware at the time it withdrew recognition), enfd. 508 F.3d 28
(D.C. Cir. 2007), overruled in part on other grounds Johnson Controls,
Inc., 368 NLRB No. 20, slip op. at 2 fn. 8 (2019). Without passing on
whether the principle expressed in Highlands Regional Medical Center
is correct, we note that even assuming Braithwaite’s and Smith’s testi-
mony regarding those statements were taken into consideration, the
evidence still would be insufficient to prove that the Union had in fact
lost majority support at the time the Respondent withdrew recognition.
We adopt the judge’s findings that the Respondent violated Sec.
8(a)(1) by coercively interrogating Braithwaite and O’Brien. However,
we find it unnecessary to pass on the allegation that the Respondent
coercively interrogated Smith because a finding to that effect would be
cumulative and would not affect the remedy. We also correct the
judge’s statement that a lack of majority support means that “a majority
want the recognized collective-bargaining representative removed.” A
loss of majority support is established where at least 50 percent of the
unit employees no longer want to be represented by the incumbent
union.
In adopting the judge’s finding that the Respondent unlawfully inter-
rogated Braithwaite and O’Brien, we find it unnecessary to rely on the
judge’s observation that the Respondent did not give the employees a
legitimate reason for its inquiries or assure them that no reprisals would
follow regardless of their answers.
4 In agreement with the judge’s analysis applying the balancing test
required by the District of Columbia Circuit in, e.g., Vincent Industrial
Plastics, Inc. v. NLRB, 209 F.3d 727, 738 (D.C. Cir. 2000), we find an
affirmative bargaining order is warranted here.
We shall modify the judge’s recommended Order and substitute a
new notice to conform to our findings and to the Board’s standard
remedial language.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
(c) Withdrawing recognition from the Union and fail-
ing and refusing to bargain with the Union as the exclu-
sive collective-bargaining representative of the unit em-
ployees.
(d) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining
representative of the unit employees.
(e) Changing the terms and conditions of employment
of unit employees by granting wage increases without
first notifying the Union and giving it an opportunity to
bargain.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All full-time and regular part-time Maintenance Engi-
neers, Television/Broadcast/Watch Engineers and Tel-
ecommunications/Television Technicians employed by
the Employer, but excluding all other employees,
guards, and supervisors as defined in the Act.
(b) Furnish to the Union in a timely manner the in-
formation requested by the Union on or about October
31, 2017.
(c) Upon request of the Union, rescind the unilateral
wage increases granted to unit employees Nick Moraites
and Mark Smith on or about December 31, 2017.
(d) Within 14 days after service by the Region, post at
its facility in Providence, Rhode Island, copies of the
attached notice marked “Appendix.”5 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 1, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices in each language deemed appropri-
ate by the Regional Director shall be distributed electron-
ically, such as by email, posting on an intranet or an in-

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ternet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
in each appropriate language to all current employees
and former employees employed by the Respondent at
any time since May 11, 2017.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 1 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 5, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
RHODE ISLAND PBS FOUNDATION 3
WE WILL NOT coercively interrogate you about your
union sympathies, including whether you want the Inter-
national Brotherhood of Electrical Workers, Local 1228
(Union) to continue as your collective-bargaining repre-
sentative.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to meet with the Union to
negotiate a collective-bargaining agreement.
WE WILL NOT withdraw recognition from the Union
and fail and refuse to bargain with the Union as the col-
lective-bargaining representative of our unit employees.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish the Union with
requested information that is relevant and necessary to
the Union’s performance of its functions as the collec-
tive-bargaining representative of our unit employees.
WE WILL NOT change your terms and conditions of
employment by granting wage increases without first
notifying the Union and giving it an opportunity to bar-
gain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
All full-time and regular part-time Maintenance Engi-
neers, Television/Broadcast/Watch Engineers and Tel-
ecommunications/Television Technicians employed by
the Employer, but excluding all other employees,
guards, and supervisors as defined in the Act.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on or about October
31, 2017.
WE WILL, upon request of the Union, rescind the uni-
lateral wage increases granted to unit employees Nick
Moraites and Mark Smith on or about December 31,
2017.
RHODE ISLAND PBS FOUNDATION
The Board’s decision can be found at
www.nlrb.gov/case/01-CA-204520 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
Elizabeth A. Vorro Esq., for the General Counsel.
Matthew H. Parker, Esq. and Joseph D. Whelan (Whelan, Cor-
rente, Flanders, Kinder & Siket, LLP), of Providence,
Rhode Island, for the Respondent.
DECISION
INTRODUCTION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This case
involves an employer that operates a public broadcasting televi-
sion station in Providence, Rhode Island. For many years, the
station’s engineers and technicians have been represented for
purposes of collective bargaining by a union. The government
alleges that beginning May 11, 2017, the employer unlawfully
refused to meet to bargain with the union, subsequently with-
drew recognition from the union as the employees’ representa-
tive, refused the union’s request for information related to the
unit, and instituted unilateral pay changes for certain employ-
ees, all in violation of Section 8(a)(5) and (1) of the National
Labor Relations Act (Act). The employer essentially admits
the conduct, but contends, contrary to the government, that it
was lawful to do so based upon its contention that a majority of
the unit employees told the employer that they rejected union
representation. In addition, the government seeks to amend its
complaint to allege that the employer’s method of attempting to
assay employee support for the union, as explained by the em-
ployer’s witnesses at the hearing, violated Section 8(a)(1) of the
Act. As set forth herein, the employer’s defenses on all these
claims are meritless, for multiple independent reasons. I find
that the employer violated the Act, as alleged.
STATEMENT OF THE CASE
On August 15, 2017, the International Brotherhood of Elec-
trical Workers, Local 1228 (Union) filed an unfair labor prac-
tice charge alleging violations of the Act by the Rhode Island
PBS Foundation (Foundation), docketed by Region 1 of the
National Labor Relations Board (Board) as Case 01–CA–
204520. The charge was amended by the Union on November
1, and a second time on November 30, 2017.
Based on an investigation into this case, on November 30,
2017, the Board’s General Counsel, by the Regional Director
for Region 1 of the Board, issued a complaint and notice of
hearing alleging that the Foundation had violated the Act. On
April 6, 2018, through the Acting Regional Director, the Gen-
eral Counsel issued an amended complaint and notice of hear-
ing. The Foundation filed an answer to both the complaint and
the amended complaint denying all alleged violations of the
Act.
A trial in this case was conducted on April 24–25, 2018, in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Providence, Rhode Island, at which time the General Counsel
sought and was granted further amendments to the amended
complaint. Another motion to further amend the complaint was
filed by the General Counsel on or about May 7, 2018, which is
pending, and opposed by the Respondent.
Counsel for the General Counsel and the Respondent filed
posttrial briefs in support of their positions by June 27, 2018.
On the entire record, I make the following findings, conclu-
sions of law, and recommendations.
JURISDICTION
At all material times, the Foundation has been a private, non-
profit Rhode Island corporation with an office and place of
business located at 50 Park Lane, Providence, Rhode Island,
and has been engaged in the business of operating a public
broadcasting television station in Providence, Rhode Island.
Annually, the Foundation, in conducting its business opera-
tions, derives gross revenues in excess of $100,000, and oper-
ates under a license and permit of the Federal Communications
Commission. Annually, the Foundation, in conducting its busi-
ness operations, as described, purchases and receives at its
Providence, Rhode Island facility goods valued in excess of
$5000 directly from points outside the State of Rhode Island.
At all material times, the Foundation has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. At all material times, the Union has been a
labor organization within the meaning of Section 2(5) of the
Act. Based on the foregoing, I find that this dispute affects
commerce and that the Board has jurisdiction of this case, pur-
suant to Section 10(a) of the Act.
UNFAIR LABOR PRACTICES
A. Introduction
The Foundation operates a public television broadcasting sta-
tion in Providence, Rhode Island. David Piccerelli is the Foun-
dation’s president. In that capacity he is the chief operating
officer of the Rhode Island PBS television station, WSBE-TV.
Piccerelli reports to the Foundation’s Board of Directors.
Before October 2012, the television station was operated by
a public entity known as the Rhode Island Public Telecommu-
nications Authority (RIPTA). Around October 12 or 14, 2012,
the station’s broadcast license was transferred from RIPTA to
the Foundation, which assumed ownership of and operating
responsibility for the station. Previously, the Foundation exist-
ed as the fundraising arm for the television station. When the
Foundation assumed control of the station it offered the sta-
tion’s employees employment with the Foundation and a ma-
jority accepted the offer and remained working at the station.
In approximately December 2012, the Foundation made unilat-
eral changes to employees’ health insurance, pension benefits,
and wages.
When RIPTA operated the station, the technicians and engi-
neers had been represented by the Union, at least as far back as
the early 1980s. In November 2012, after the Foundation as-
sumed operation of the station, the Union requested that the
Foundation recognize it and also filed a representation petition
with the Board. On February 8, 2013, the Foundation agreed to
recognize the Union as the employees’ collective-bargaining
representative and requested dates for bargaining. The parties
stipulated at the hearing that the recognized unit consists of:
All full-time and regular part-time Maintenance Engineers,
Television/ Broadcast/Watch Engineers and Telecommunica-
tions/Television Technicians employed by the Employer, but
excluding all other employees, guards, and supervisors as de-
fined in the Act.
From late 2013 until May 23, 2017, there were six employ-
ees in the bargaining unit. On May 23, 2017, Patrick O’Brien
became the seventh unit employee, and in September 2017, the
hire of Timothy Smith brought the unit complement to eight.
Unit employee Michael Riley left the unit to become a producer
director, in October 2017. In February 2018, three additional
employees were hired, bringing the number of unit employees
to ten, which remained the case as of the time of the hearing in
April 2018.
B. 2013–2016
The parties began bargaining for a collective-bargaining
agreement in 2013. They met infrequently, conducting about
five bargaining sessions from 2013 through 2015. Some tenta-
tive agreements were reached. The Union did not file any
grievances under the terms of the expired contract from 2011 to
2016.
In approximately May 2015, Union Representative Fletcher
Fischer informed Piccerelli and the Foundation’s attorney, Jo-
seph Whelan that the Union was going to seek membership
ratification of the Foundation’s latest contract offer. In con-
junction with this, Fischer asked the Foundation’s attorney for a
finished “clean” document to show the membership. On June
25, Fischer sent an email to Piccerelli and Whelan stating:
We are voting on the Contract offer today yet we still have no
draft document to work with. We are working with a markup
and our notes so the vote will be based on those, would really
appreciate the draft that you said you were going to prepare.
Finally we asked for a census of the bargaining unit which we
have yet to receive so far. Please forward both documents
ASAP.
In a July 6, 2015 email, Fischer reported to Piccerelli that the
members of the unit had ratified the proposal on June 25.
Fischer’s email indicated that he would “be sending . . .
Checkoff forms for them in a separate email and the deductions
will be retroactive back to the effective date of the Agreement
of January 1, 2015. The deduction instructions will accompany
that email.” Fischer added that he wanted to meet to discuss “a
few issues that came up in that ratification meeting,” including
the Union’s view that “Nick” Moraites, “Mark” Smith, and
“Joe” Brathwaite were regularly performing engineering duties
but were “not being fairly compensated.” Piccerelli responded
the next day, July 7, suggesting dates and times for a meeting.
This meeting did not occur. In December 2015, Whelan sent
a draft of the collective-bargaining agreement to Fischer but
Fischer never followed up by asking Whelan to sign the agree-
ment. Fischer never sent dues checkoff forms to the Employer
RHODE ISLAND PBS FOUNDATION 5
and never asked employees to sign checkoff forms, which
Fischer attributed to the Union’s policy of not collecting dues
until the employees were working under a signed contract—
something that, despite the ratification, never materialized.
In 2016, the Union attempted to schedule a couple of labor-
management relations meetings but they did not occur, alt-
hough an August 2016 email from Piccerelli to the Union sug-
gests that the Foundation was amenable to meeting. In May
2016, Shop Steward Andrew Gannon complained in an email to
Director of Engineering Richard Dunn about Dunn’s practice of
texting unit employees on their personal cell phones during
working and nonworking hours. Gannon told Dunn that “All
IBEW members are requesting . . . that you cease texting them
on their personal cell phones.” Dunn rejected this, responding
that “I think you have exceeded the scope of your representa-
tion. I don’t believe you speak for the shop on this issue.”
Dunn testified that at the time Gannon brought this up to him in
the email he was aware that the employees were union-
represented.
C. 2017
In April 2017, the Foundation participated in an auction of
its broadcast frequency. This meant, effectively, that the Foun-
dation sold its space at channel 21 and received in exchange
broadcast space at channel 2. For participating in this auction
and making the switch, the Foundation was paid over $94 mil-
lion.
In March 2017, Fischer contacted Piccerelli by phone and
discussed negotiating a new agreement with pay increases
based on the anticipated influx of funds from the auction. Pic-
cerellli told Fischer to provide him with a proposal.
The union’s shop steward, unit employee Gannon, put to-
gether a wage proposal. It was submitted on May 11, by Fisch-
er, who emailed a proposed collective-bargaining agreement to
Piccerelli with the new wage demands. Later that morning,
Piccerelli responded, writing “We will review and be back to
you with comments.”
On May 30, having yet to hear from Piccerelli, Fischer
wrote, asking, “Any thoughts on our proposal yet?”
On June 19, apparently in response to a voicemail message
from Fischer, Piccerelli wrote,
I have received your voicemail. I have not been able to con-
nect with [Employer’s attorney] Joe [Whelan] as of yet and he
is now on vacation this week. I left him another message so
as soon as I hear back from him I will be back to you.
On July 13, Fischer wrote Piccerelli, “It[‘]s been close to a
month since you said you would get back to me. This is getting
more than a little tiresome.” Piccerelli responded that, “I am
scheduled to speak with my attorney tomorrow morning. I will
be in touch shortly.”
On July 24, Fischer wrote back to Piccerelli, “do you have an
answer yet? It’s been 11 days since you were supposed to meet
with him.” Piccerelli responded the same day, “No. [W]e have
not been able to schedule something yet.” Fischer never heard
from Piccerelli.
Meanwhile, while Fischer was seeking to bargain with the
Foundation for higher employee wages, the Foundation unilat-
erally provided wage increases to six of the then seven bargain-
ing unit employees in July 2017.1 The Union was not notified
of these wage increases before they were unilaterally provided
to employees by the Foundation. Piccerelli testified that he first
proposed the wage increases to the Foundation’s Board of Di-
rectors around the third week of May 2017, as part of the initial
budget proposal.
On August 15, 2017, the Union filed the first unfair labor
practice charge in the instant case, alleging that the Foundation
had failed and refused to bargain in good faith.
On October 19, 2017, the Foundation asserted in writing that
it was withdrawing recognition from the Union.2
On October 31, 2017, Fischer sent a letter to Piccerelli, stat-
ing:
The Union is making a formal demand to bargain on behalf of
the Technicians bargaining Unit at Rhode Island PBS Foun-
dation. We are available to meet any day the week of No-
vember 18. If you are not available that week, please let us
know what dates you are available.
Fischer’s October 31, 2017 letter also included a detailed in-
formation request, each item of which was a request for infor-
mation concerning the unit employees, their terms and condi-
tions of employment, or the performance of bargaining unit
work. The Union’s letter requested the following information:
1. Name, address, classification, base rate of pay, date of hire
of each Bargaining Unit Employee.
2. Overtime earned (in hours and dollars) for each Bargaining
Unit Employee in the past 12 months.
3. A list of any and all pay increases granted to each Bargain-
ing Unit member over the last 3 years.
4. Copies of current job descriptions for all Bargaining Unit
positions.
5. Copies of all plan documents/financial and other reports

1 One employee, Patrick O’Brien, newly hired in May 2017, did not
receive the wage increase.
2 The Foundation admits that it withdrew recognition from the Un-
ion (GC Exh. 1(m) at ¶14, see also R. Br. at 12). However, it never
clearly states when it did so, instead framing its arguments in terms of
its alleged right to withdraw recognition. As referenced above, as of
July 2017, Piccerelli was still responding to Fletcher’s bargaining re-
quests with promises that the Foundation would get in touch with the
Union shortly. The only direct record evidence on the issue of with-
drawal of recognition is the parties’ stipulation that the first time the
Foundation asserted in writing that it was withdrawing recognition
from the Union was October 19, 2017. Given the Foundation’s admis-
sion, and the evidence, I find that the Respondent withdrew recognition
on or about October 19, 2017. I note that, given my analysis, infra, the
precise date of the withdrawal of recognition matters only for fixing the
date of that violation. In terms of the validity of the Respondent’s
defenses, the precise date of the admitted withdrawal of recognition is
irrelevant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
covering plans for health insurance, life insurance, sick leave,
short and long term disability for all bargaining Unit Employ-
ees.
6. List of Employees enrolled in each benefit plan.
7. A copy of any and all Company policies that relate to Bar-
gaining Unit Employees.
8. Any and all instances of bargaining unit work performed
by non-unit persons in the past 12 months.
Fischer did not receive a response to this letter.
Effective December 31, 2017, the Foundation granted addi-
tional salary increases to two of the bargaining unit employees,
Nick Moraites and Mark Smith. The Union was not notified of
or provided an opportunity to bargain over these wage increas-
es.
D. Interrogation of employees’ union sympathies
Piccerelli
As discussed above, in March 2017, Union Representative
Fischer contacted Piccerelli to discuss negotiating pay increases
for employees in light of the influx of funds expected from the
auction. Piccerellli told Fischer to provide him with a proposal,
which he did on May 11.
Within a couple of weeks of receiving the Union’s May 11
bargaining proposal, Piccerelli made an effort to find out what a
majority of the then seven-person unit felt about the Union.
Piccerelli spoke with employee Mark Smith in Piccerelli’s
office for 5 or 10 minutes. Smith had come to Piccerelli’s of-
fice on his own without being asked to come. The subject of
the conversation was Smith’s desire to be—and belief that he
was not being—”fairly compensated.” Piccerelli testified that
although he could not remember Smith’s exact words, “I can
say that he was not pleased with the representation that he was
getting from the Union in terms of his compensation.” Alt-
hough Piccerelli could not “recall his exact words,” Smith’s
“message was that he did not feel that the Union was providing
him adequate representation towards compensation.”
Piccerelli testified that Smith brought up the Union. Smith
said that “he did not feel like he was being fairly represented by
the Union.” According to Piccerelli, Smith was “not very spe-
cific,” but just expressed “general displeasure.” According to
Piccerelli, Smith “[d]idn’t feel that he needed them to represent
him, felt that, you know, doing his work would merit whatever
increases that he deserves.”
In this meeting, according to Piccerelli, “I specifically asked
Mr. Smith if any other bargaining unit employees felt the way
he did about the bargaining unit.” Smith responded that Sousa
and “Brathwaite both felt the same way that he did in terms of
the representation that they were getting from the Union.”3

3 Smith testified but did not recall this conversation, but stated that
he has had other conversations in years past with Piccerelli about the
Union and his frustration with his wages. Piccerelli also testified that
he had spoken to Smith “two or three other times over the years,” spe-
cifically recalling once, “probably sometime May of ‘16 or earlier . . .
Piccerelli testified that he “didn’t think it was fair for me to
rely on information that was coming from Mr. Smith,” so after
this meeting with Smith, within a couple of days, Piccerelli
called Brathwaite into his office “so I could hear Mr.
Brathwaite’s feelings and opinions for himself and not second
hand from Mr. Smith.” Piccerelli paged Brathwaite to come
into his office using a paging system that can be heard by eve-
ryone in the shop. (Piccerelli joked that “I think the neighbors
can hear it too when the garage door’s open.”)4
Once Brathwaite was in Piccerelli’s office, Piccerelli testi-
fied that “I specifically asked him how he felt about the repre-
sentation he had from the Union. . . . And if he wanted to con-
tinue forward having representation of the Union.” Braithwaite
testified that Piccerelli’s exact words were “What did I think
about the Union?”
According to Piccerelli, Brathwaite told him that “he didn’t
feel it was necessary to have representation from the Union.”
According to Piccerelli, Brathwaite “reiterated basically what
Mr. Smith said and that he did not feel that they were being
fairly represented in terms of their compensation and other
benefits from the Union.” Brathwaite testified that Piccerelli
asked him “what did I think about the Union.” He answered.
“No.” Brathwaite further testified that in response to Piccerel-
li’s question about what he thought of the Union, he answered,
“I’m not interested in it and that was that.
In this meeting, Piccerelli did not tell Braithwaite that he did
not have to speak about how he felt about the Union, or that the
discussion was voluntary, or that he did not have to answer the
questions. Piccerelli did not tell him that whatever his answers,
they would not have any effect on his work, or that nothing
would happen to him whether or not he supported the Union.
Piccerelli also summoned employee Patrick O’Brien to his
office within a week or two after O’Brien became a unit em-
ployee on May 23, 2017 (O’Brien had worked part-time for
five or six years in a different role).
According to Piccerelli, “I had invited him in as a new em-
ployee to go—to see, you know, what his interest was in having
representation by the Union.” Piccerelli asked O’Brien if he
wanted to be represented by the Union. According to Piccerel-
li, O’Brien gave him “kind of a wishy-washy answer.” O’Brien
told Piccerelli something to the effect that he did not feel “that

definitely more than a year” or “almost a year” prior to the June 2017
conversation with Smith, when Smith was in tears and said that “he was
looking for more money and that the Union was not doing anything to
get him more money.” Smith recalled this conversation, but was sure it
occurred “three years ago,” i.e., in 2015, where “with tears in my eyes,”
he talked to Piccerelli about his frustration with wages and how he
could not afford the Union, but Piccerelli told him that his “hands were
tied” because of the Union. More generally, Smith testified that he had
several conversations over the years with Piccerelli where he “consist-
ently” told Piccerelli that “I didn’t feel a representation from the Union
and I let it be known.”
4 In his direct testimony Brathwaite tentatively agreed that he was
called into Piccerelli’s office (“Yes, I think so”) but on cross examina-
tion denied it. I credit his direct testimony which was in accord with
Piccerelli’s certain recollection that Piccerelli initiated the conversation
by calling Brathwaite into his office through the paging system in an
effort to follow-up on Smith’s identification of Brathwaite as someone
who shared Smith’s views.
RHODE ISLAND PBS FOUNDATION 7
he needed to have Union representation, but he also felt that he
didn’t want to go against the friends that he had at the station if
that [union representation] was something that they wanted.
And that he would, you know, think about it going forward.”
Piccerelli testified that O’Brien “told me he was against it, but
he did not specifically say that, you know, he would necessari-
ly—how he would vote.” O’Brien asked and expressed con-
cern about whether there would be an “open vote” on the Un-
ion, as “he didn’t want to be perceived as going against any-
body, specifically those in favor of the Union.” Piccerelli could
not give O’Brien a specific answer because, as he testified, “I
was not certain as to whether or not it was a public vote or a
private vote or how it’s conducted.” Piccerelli did not tell
O’Brien that his discussion with Piccerelli about the Union was
voluntary or that nothing would happen to him no matter what
O’Brien said.5
Piccerelli also testified that he told Director of Engineering
Rick Dunn about Smith’s comments. Dunn is Smith’s, and the
other unit employees’ direct supervisor in the engineering de-
partment. Piccerelli asked Dunn to check with a fourth em-
ployee, Joao (Jon) Sousa, “to see what his feelings were on
having representation by the Union.” Dunn told him he would.
Piccerelli testified that when he followed-up with Dunn, Dunn
told him that Sousa “was not interested in having representation
by the Union.” Piccerelli testified that unlike the conversations
he had with Smith, Brathwaite and O’Brien, he did not person-
ally have an “official” meeting with Sousa to discuss his views
on union representation.6
Dunn
Dunn testified that in a conversation with Smith and
Brathwaite in the station’s studio they conveyed to him that

5 O’Brien did not testify.
6 Director of Engineering Dunn testified that he did not recall Pic-
cerelli asking him to speak to Sousa, but I credit Piccerelli’s account,
which was credibly offered. More generally, I found Piccerelli a credi-
ble witness, who appeared to testify frankly and honestly. Director of
Engineering Dunn, who testified that he was an attorney and member of
the Rhode Island and “Federal” bar, emphasized throughout his testi-
mony that “members of the unit do not feel that they’re represented by
a Union.” Dunn claimed that he told Piccerelli this when Piccerelli
called him into his office in May 2017, and told him he had received a
wage proposal from the Union and “wanted to speak to [Dunn] about
the bargaining unit.” Dunn testified that he told Piccerelli that employ-
ees Smith, Brathwaite, Sousa and O’Brien “didn’t feel that there was a
union” and that “there is no Union.” Dunn claimed that Smith,
Braithwaite, and Sousa told him this. However, not a single witness
corroborated this odd formula—not Piccerelli, not Smith, not
Braithwaite, not Sousa. Further, it is implausible that O’Brien would
tell Dunn this even before he became a union-represented employee on
May 23. I discredit Dunn. The closest to this is Brathwaite’s testimony
that he told Piccerelli—not Dunn—that “I don’t feel a representation
from the Union.” I believe Dunn repeated this odd phrasing about there
“being no union” and employees feeling they were not represented by a
union throughout his testimony in service to the Respondent’s legal
theory that its refusal to bargain was justified by a claimed union aban-
donment of the unit, a theory not supported by the facts even if his
testimony was credited, which it is not. I decline the Respondent’s
invitation (R. Br. at 9) to credit Dunn based on the fact that he is “a
licensed attorney and therefore duty bound to be candid and honest.”
they did not feel represented by the Union. O’Brien allegedly
told him the same thing. Dunn testified that he worked closely
with and talked regularly with Sousa who allegedly told him
this. As noted, I do not credit this. See fn. 6, supra.
Dunn described a conversation with Smith and Brathwaite in
April or May of 2017, in the station’s studio where he encoun-
tered them and they complained to him that they had been dis-
couraged by Union Steward Gannon from moving staging
equipment. Dunn asserted that Smith “said to me that you
don’t represent me, you don’t tell me what to do. I just want to
help get this done so I can move on with what we have to do.”7
Dunn asserted that Brathwaite “expressed the same sentiment,”
and like Smith, recapitulated the conversation he had with
Gannon for Dunn. He also claimed that Brathwaite told him
that “they [the Union] have their own agenda, they never asked
me who I wanted for shop steward.” Dunn claimed that
Brathwaite told him in this conversation, “there is no Union.”
Dunn says he told Brathwaite to “speak to [shop steward] Andy
Gannon about that.”8
Dunn claimed that this was not the first time he had had such
conversations with Smith: “Mr. Smith repeatedly complained
about how they didn’t represent him.” He had “ongoing” con-
versations where Smith complained to Dunn about his wages
and how the Union “they’re not helping me,” and “there is no
Union.” According to Dunn, “it was a narrative that Smith
would repeat over and over again periodically.”9
Dunn claimed he relayed these conversations to Piccerelli
when he met with him in May. He also testified that he told
Piccerelli at this meeting that Sousa “does not feel he’s repre-
sented by the IBEW. He doesn’t like the Union.” Dunn
claimed that “from 2016 on” Sousa “would often say that they
don’t represent me” and that “there’s no Union, there’s no con-
tract.”10

7 Although this testimony of Dunn’s was phrased as if Smith was
telling Dunn that Dunn did not represent him and doesn’t tell Smith
what to do, that was not what Dunn meant to convey. Rather, he meant
to convey in his testimony that Smith said this about Gannon. I believe
the confused way Dunn presented this testimony was attributable to the
rehearsed and rote manner in which it was offered by him.
8 Braithwaite testified that he had many conversations with Dunn
about the Union over the years. Braithwaite confirmed that he told
Dunn about the incident with Shop Steward Gannon, and told Dunn,
“this is why I can’t be in the Union because I do so many things at the
Company that I can’t have my hands tied.”
9 Smith testified that he had spoken to Dunn about the Union “many
time,” perhaps “100 times” in the past 2 years about the Union and his
interest in representation. Smith said that in the past 2 years he talked
with Dunn about “My interest was not being represented by the Union.
I was displeased as to what was going on. And that was my conversa-
tion with him.” Smith testified that he told Dunn that “financially is the
reason why I didn’t [want] the Union to represent me.” Smith could
not say when these conversations occurred, “We work together every
day” but that “all of my conversations were basically the same. I
couldn’t afford it.”
10 Sousa testified that he has talked with Dunn about the Union
“several times a week for the past couple of years.” According to Sou-
sa, “My main thing is and I always brought it up, and unfortunately I
was a broken record, where like I said I wasn’t—the times of being
notified of what was going on, that I didn’t vote for the person that was
elected as the shop steward.” Sousa also complained to Dunn that he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Dunn also testified that he told Piccerelli that O’Brien “told
me he wasn’t interested in the Union, he thought that they pro-
moted people on longevity and not on merit.” Dunn claimed
that O’Brien told him this “in the tech center,” after he became
a full-time employee in May 2017.
In sum, I do not credit Dunn’s testimony to the extent he
claimed that he was told by employees that (or some variant of)
“they are not represented,” or “there is no union.” See also fn.
6, supra.
ANALYSIS
The General Counsel alleges four violations of Section
8(a)(5) of the Act: (1) that from on or about May 11, 2017, and
on subsequent dates, the Respondent unlawfully failed and
refused to meet with the Union for the purposes of negotiating a
collective-bargaining agreement to cover the unit employees;
(2) that on or about October 19, 2017, the Respondent unlaw-
fully withdrew recognition from the Union as the collective-
bargaining representative of the unit; (3) that since on or about
October 31, 2017, the Respondent has failed and refused to
provide the Union requested and relevant information; (4) and
that on or about December 31, 2017, the Respondent unilateral-
ly changed the wage rate of employees Smith and Moraites
without providing the Union notice or an opportunity to bar-
gain.
Finally, the General Counsel moved posttrial, and over the
opposition of the Respondent, to amend the complaint to allege
that Piccerelli’s interrogation of Braithwaite and O’Brien re-
garding their union sympathies, and Dunn’s interrogation of
Sousa, constituted independent violations of Section 8(a)(1) of
the Act.
I will consider the alleged violations, and the motion to
amend, below.
The alleged bargaining violations stem directly from the fact
that at all times after February 2013, when the Foundation rec-
ognized the Union as the unit employees’ collective-bargaining
representative, the Respondent remained legally obligated to
bargain with the Union, provide relevant and requested infor-
mation, recognize the Union as the collective-bargaining repre-
sentative, and maintain the status quo in terms and conditions
of employment unless and until it reached a good-faith bargain-
ing impasse.
The Union was the recognized collective-bargaining repre-
sentative of the Foundation’s unit employees as of February 8,
2013. Unless something happened to divest the Union of this
representational status thereafter, the Respondent’s refusal to
meet to bargain upon request beginning May 11, 2017, its as-
sertion on October 19, 2017, that it was withdrawing recogni-
tion from the Union, its refusal to provide information in re-
sponse to the October 31, 2017 information request, and its
December 31, 2017, unilateral implementation of wage chang-
es, each constitute fundamental violations of the Section 8(a)(5)

“didn’t see any emails of what was going on” for over a year and a half.
Sousa testified that he talked to Dunn about other things but “I cannot
remember at this moment.” Those were the only things he could re-
member. Sousa also testified credibly that Dunn never asked him how
he felt about the Union (Tr. 185).
duty to bargain.11 In addition, as alleged, each of these 8(a)(5)
violations is a derivative violation of Section 8(a)(1) of the Act.
Tennessee Coach Co., 115 NLRB 677, 679 (1956), enfd. 237
F.2d 907 (6th Cir. 1956). See, ABF Freight System, 325 NLRB
546 fn. 3 (1998).
The Respondent’s defenses to the 8(a)(5) allegations
The Respondent offers two separate defenses to the alleged
violations, each of which purportedly severs the Respondent’s
duty to recognize, bargain, and otherwise act in accordance
with the 8(a)(5) statutory obligations required of an employer
with a union-represented work force. However, each of the
defenses is meritless.12
The good-faith-doubt defense
First, the Respondent contends that it had a good-faith doubt
as to the Union’s majority status, and that this justified its re-
fusal to bargain. (R. Br. at 12, 15.) At the hearing, I permitted
the Respondent’s counsel to make an offer of proof on this
claim (see, Tr. 110–113), but did not permit him to elicit testi-
mony towards it, as the argument is a nonstarter under Board
precedent.
The good-faith doubt standard for unilateral withdrawal of
recognition was rejected by the Board in Levitz, 333 NLRB 717
(2001). Since 2001, it has not been a viable basis for an em-
ployer’s unilateral withdrawal of recognition. Rather, to justify
a unilateral withdrawal of recognition, an employer must have
objective proof of a union’s lack of majority support. Levitz,

11 See, e.g., NLRB v. Katz, 369 U.S. 736, 743 (1962) (“A refusal to
negotiate in fact as to any [mandatory] subject . . . about which the
union seeks to negotiate, violates section 8(a)(5)”); J. H. Allison & Co.,
70 NLRB 377, 378 (1946) (employer violates the Act by refusing to
engage in bargaining over a mandatory subject as to which the union
requests bargaining), enfd. 165 F.2d 766 (6th Cir. 1948); CoServ Elec-
tric, 366 NLRB No. 103, slip op. at 2–3 (2018) (unilateral withdrawal
of recognition from union is 8(a)(5) violation); Badlands Golf Course,
355 NLRB 251 (2010) (withdrawal of recognition violates Section
8(a)(5)); A-1 Door & Building Solutions, 356 NLRB 499, 500 (2011)
(“An employer’s duty to bargain includes a general duty to provide
information needed by the bargaining representative in contract negoti-
ations and administration. Generally, information concerning wages,
hours, and other terms and conditions of employment for unit employ-
ees is presumptively relevant to the union’s role as exclusive collective-
bargaining representative”) (citations omitted); Liberty Bakery Kitchen,
Inc., 366 NLRB No. 19, slip op. at 11 (2018) (unilateral grant of wage
increase without providing union notice and opportunity to bargain
violates Sec. 8(a)(5)).
12 At the hearing, the Respondent suggested a third defense would
be that the Union had abandoned the unit, thus eliminating Respond-
ent’s bargaining obligations to the Union. I note that the Respondent
did not advance this defense in its brief, and I, therefore, consider the
defense—there is no better word—abandoned. In any event, I note that
whatever the employer could say about the vigor of the union’s repre-
sentation, the record does not support the claim that the Union was
either unwilling or unable to represent the employees. Moreover, the
Union’s May 11, 2017 bargaining demand “negated any inference to be
drawn from [any] preceding period of inactivity.” Kentucky River
Medical Center, 340 NLRB 536, 543 (2003); see Pioneer Inn & Pio-
neer Inn Casino, 228 NLRB 1263, 1264 (1977), enfd. 578 F.2d 835
(9th Cir. 1978). Accordingly, had it been pursued, the abandonment
defense would not have succeeded.
RHODE ISLAND PBS FOUNDATION 9
supra at 725.
An employer’s good-faith doubt of a union’s majority sup-
port entitles the employer to invoke the Board’s “preferred
method of testing employees’ support for unions”—an election.
Assuming, arguendo, that the Foundation had a good-faith
doubt about the union’s support, it could have filed an RM
petition and an election could have been conducted on the mat-
ter. But any doubt it had as to the union’s support did not enti-
tle it to make the decision for employees and act unilaterally to
reject union representation for its employees.
The Respondent contends that Levitz should not apply be-
cause it claims that in 2013 when it was a successor employer,
it recognized the Union only because it had “a gun to its head.”
By a “gun to its head” the Respondent means (R. Br. at 2) an
unfair labor practice charge and representation petition filed by
the Union after the Respondent initially resisted recognizing the
Union.
The Foundation’s argument suggests that a successor seeking
to unilaterally reject union recognition on behalf of its employ-
ees should be held to a lower standard than Levitz, and that this
lower “good faith doubt” standard should remain in place for
years (here, four) after the successor employer recognized the
union. This is beyond meritless.
Putting aside that the Supreme Court has recognized that the
rationale for the presumption of majority support is “particular-
ly pertinent in the successorship situation” (Fall River Dyeing
Corp. v. NLRB, 482 U.S. 27, 41 (1987)), and thus, any sugges-
tion that the standard for overcoming the presumption should
be lowered in a successorship situation is indefensible, succes-
sor status has come and gone for the Foundation. It took over
the TV station in 2012 and recognized the Union in February
2013. It is, of course, far too late for the Respondent to argue
that its 2013 recognition of the Union was illegitimate or mis-
taken.13
The Levitz lack-of-majority-support defense
The Respondent also contends that even applying Levitz, its
refusal to deal with or recognize the union was justified by its
claim that the union did not have majority support within the
unit. This argument is unavailing, for four independent rea-
sons.
While “[a]n employer can generally withdraw recognition,

13 Red Coats Inc., 328 NLRB 205, 206–207 (1999) (an employer
may not defend against a refusal-to-bargain allegation on the basis that
the original recognition of the union was unlawful, where that recogni-
tion occurred more than 6 months before the charges raising the issue
had been filed); Route 22 Toyota, 337 NLRB 84, 85 (2001) (“The
Board has held, in light of the Supreme Court’s decision in Local
Lodge 1424 IAM (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411 (1960), that
a respondent may not defend against a refusal-to-bargain allegation on
the ground that the underlying original recognition of the union was
unlawful, if it occurred more than 6 months before charges had been
filed in the proceeding raising the issue”). Any such defense is barred
by Section 10(b), which, as the Court explained in Bryan, was specifi-
cally intended by Congress to stabilize bargaining relationships”) (cita-
tion omitted). The Respondent claims that a nonprecedential decision
in Merit House, LLC, 08–CA–099622 (January 6, 2014) (2014, WL
65756), supports its claim. It does not, for the reasons I explained at
trial. See, Tr. 111–113.
where it can prove a loss of majority status . . . . [t]his doctrine
is, however, limited ‘to cases where an employer has commit-
ted no unfair labor practices tending to undermine employees’
support for unions.’” CoServ Electric, 366 NLRB No. 103, slip
op. at 10 (2018), quoting Levitz, 333 NLRB 717 fn. 1 (2001)
(citation to Levitz omitted).
Significantly, the Board holds that “an unlawful refusal to
recognize and bargain with an incumbent union will be pre-
sumed to taint any subsequent loss of support for the union,
without any particularized demonstration of a causal relation-
ship.” Lee Lumber & Building Material Corp., 322 NLRB 175,
177 (1996), affirmed in relevant part, 117 F.3d 1454 (D.C. Cir.
1997).
Here, the Respondent’s refusal to bargain began May 11,
2017, before the Respondent even claims to have amassed evi-
dence of a lack of majority support for the Union in late May
and early June. Beginning May 11, the Respondent evaded and
then ignored the Union’s repeated entreaties to bargain for five
months before the Employer withdrew recognition on grounds
of lack of majority support. Without more, the Union’s alleged
loss of majority support is presumptively tainted and cannot be
a basis for the Respondent’s withdrawal of recognition. Lee
Lumber, supra.14
In addition, it is notable that the employee complaints about
the Union solicited by Piccerelli focused on the lack of wage
hikes, the very subject the Union was seeking to bargain as
Piccerelli went about soliciting the evidence on which he based
the withdrawal of union recognition. Soliciting employees to
engage in decertification activities has long been held to be
“antithetical to good-faith bargaining” (Haymarket Bookbind-
ers, Inc., 183 NLRB 121, 121 (1970)) and a “per se violation of
Section 8(a)(5) of the Act.” Alle Arecibo Corp., 264 NLRB
1267, 1274 (1982). As discussed below, the Respondent and
Piccerelli skipped the step of unlawfully soliciting employees
to decertify—they simply took it upon themselves to gauge
employees’ union sympathies and withdraw recognition from
the Union on behalf of the employees. Still, Piccerelli’s inter-
rogation efforts were the basis for the Employer’s withdrawal
of recognition, and thus, just as would an unlawfully solicited
decertification effort, add to the 8(a)(5) refusal to bargain viola-
tion.
The second reason to reject the Respondent’s claim that it
was privileged to withdraw recognition from the Union is that
interrogating employees about their union sympathies is not an
option under Levitz for amassing evidence that a union lacks
majority support.
The Levitz unilateral withdrawal doctrine applies when em-
ployers are presented with proof that a union lacks majority
support. The doctrine may not be invoked where, as here, an

14 No evidence rebuts the presumption. Nor could it, as the Re-
spondent never resumed bargaining and the Board’s presumption is
rebuttable only by an employer’s showing that employee disaffection
arose after the employer resumed its recognition of the union and bar-
gained for a reasonable period of time without committing any addi-
tional unfair labor practices that would detrimentally affect the bargain-
ing. Only such a showing of bargaining for a reasonable time will rebut
the presumption. Lee Lumber, 322 NLRB at 178; see also Lee Lumber,
117 F.3d at 1458.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
employer unilaterally seeks out and solicits evidence of em-
ployees’ lack of support for the union. See Levitz, 333 NLRB
at 725 (considering as persuasive evidence the “unsolicited
views of employees regarding representation matters”).
As the Board recognized in Levitz, “the selection or rejection
of union representation unavoidably requires some degree of
effort and organization on the part of employees, regardless of
the type of petition (including those that are simply presented to
employers and are not filed with the Board.” 331 NLRB at
727. There is “no reason to allow employers to make the em-
ployees’ choice for them by withdrawing recognition from
majority unions.” Id.
Here, there was no employee effort to remove the Union as
representative. There was not even a decertification campaign
for the employer to unlawfully assist or unlawfully instigate,
because there simply was no employee effort to remove the
Union.15
Here, the employer ferretted out employee dissatisfaction,
through interrogation, found what it considered (wrongly) to be
enough, and on that basis unilaterally withdrew recognition.
The employees did not seek to remove their Union. The Re-
spondent did. An employer’s unilateral withdrawal of recogni-
tion must be based on an employee effort to reject unionization
that proves lack of majority support, not based on an employ-
er’s unilateral decision that it would be in the employees’ inter-
est to reject the Union.16
Under Levitz, and, assuming arguendo that the employer had
a good-faith doubt about the union’s support, it could have filed
an election (RM) petition with the Board. It did not. It is not
free to withdraw recognition based on evidence of employee
lack of support for the Union purportedly uncovered by its own
investigation into employee sympathies.
Third, and quite apart from the foregoing, the Respondent’s
questioning of employees about their union sympathies (and
with Smith, of the union sympathies of others) under the cir-
cumstances presented was patently unlawful. This provides an
independent basis why the evidence cannot be relied upon to

15 I note that the fact that a decertification petition appears to have
been initiated nearly a year later in April 2018 (Tr. 210–211), just be-
fore trial of these cases, is irrelevant to consideration of the Respond-
ent’s 2017 withdrawal of recognition. Anderson Lumber Co., 360
NLRB 538, 544 (2014) (“In any event, this evidence was acquired long
after withdrawal of recognition, was not relied on by Respondent in
withdrawing recognition, and is not relevant for that reason”); enfd. 801
F.3d 321, 333-334 (D.C. Cir. 2015); Pacific Beach Hotel, 356 NLRB
1397, 1398 fn. 9 (2011), enfd. 693 F.3d 1051 (9th Cir. 2012).
16This case is a textbook reason why (Levitz, supra at 724 fn. 45):
Employers’ invocation of employee free choices as a rationale for
withdrawing recognition has, with good reason, met with skepticism.
As the Supreme Court observed in Auciello Iron Works v. NLRB, [517
U.S. 781 (1996),] “The Board is accordingly entitled to suspicion
when faced with an employer’s benevolence as its workers’ champion
against their certified union, which is subject to a decertification peti-
tion from the workers if they want to file one. There is nothing unrea-
sonable in giving a short leash to the employer as vindicator of its em-
ployees’ organizational freedom.” 517 U.S. at 790. See also NLRB v.
Cornerstone Builders, Inc., 963 F.2d at 1078 (“unilateral withdrawal
is based on the subjective belief of an inherently biased party”).
prove lack of majority support.
Of course, not every interrogation is unlawful. Whether the
questioning constitutes an unlawful coercive interrogation must
be considered under all the circumstances and there are no par-
ticular factors “to be mechanically applied in each case.”
Rossmore House, 269 NLRB 1176, 1178 (1984), enfd. 760
F.2d 1006 (9th Cir. 1985); Westwood Health Care Center, 330
NLRB 935, 939 (2000). The test is an objective one that does
not rely on the subjective aspect of whether the employee was,
in fact, intimidated. Multi-Ad Services, Inc., 331 NLRB 1226,
1227–1228 (2000), enfd. 255 F.3d 363 (7th Cir. 2001).
However, in general it is unlawful for an employer to inquire
as to the union sentiments of employees. President Riverboard
Casinos of Missouri, 329 NLRB 77 (1999). As the Board has
explained, “In our view any attempt by an employer to ascer-
tain employee views and sympathies regarding unionism gener-
ally tends to cause fear of reprisal in the mind of the employee
if he replies in favor of unionism and, therefore, tends to im-
pinge on his Section 7 rights.” Struksnes Construction Co., 165
NLRB 1062, 1062 (1967).17
In this case, considering all the circumstances, the unlawful
nature of the questioning is not open to serious question. Here,
the top official of the Respondent had what he described as
“official” meetings, one-on-one, with three different employees
in his office, outside of regular work routines, for the purpose
of inquiring directly of them their views on union representa-
tion, and in Smith’s case, the views of other employees on un-
ionization. None of the employees were open union supporters
or activists. This was decidedly not casual questioning—
Piccerelli wanted to know the employees’ union sympathies—
he pointedly asked Smith, asked Dunn to find out about Sosa’s
sympathies, and called O’Brien and Brathwaite into one-on-one
meetings for the purpose of questioning them about their views
on the Union. And two of three employees made clear that
their concern was with obtaining higher wages, notable as Pic-
cerelli’s questioning occurred at the same time that the Re-
spondent was evading the Union’s entreaties to bargain for
higher wages in light of the anticipated auction proceeds. In-
stead of honoring the duty to bargain, Piccerelli set out to quiz
employees on their union sympathies and relied upon it in a
misguided effort to free the Respondent from its duty to bar-
gain. Finally, Piccerelli did not give the employees a legitimate
reason for the inquiry or assure them that no reprisals would
follow regardless of their answers. NLRB v. Champion Labora-
tories, 99 F.3d 223, 230 (7th Cir. 1996) (calling these clarifica-
tions “important considerations” in determining whether an
interrogation about union sentiments is coercive). These inter-
rogations do not pass muster under 8(a)(1).
While it is not necessary to find an independent violation of
the Act in order for the illegitimate interrogation of employees
to preclude a withdrawal of recognition based on the interroga-

17 In a sense, what the Respondent did here was to conduct a poll,
among a few employees, but it was a poll that lacked almost every
procedural safeguard required by the Board. See, Struksnes Construc-
tion Co., 165 NLRB 1062 (1967). The Respondent does not claim that
it conducted a lawful poll of employees. To the extent Piccerelli’s
questioning is considered polling, it is plainly an unlawful interrogation
under Struksnes.
RHODE ISLAND PBS FOUNDATION 11
tions, it is appropriate to find such independent violations here.
Notwithstanding 10(b)’s restrictions, “[i]t is well settled that the
Board may find and remedy a violation even in the absence of a
specific allegation in the complaint if the issue is closely con-
nected to the subject matter of the complaint and has been fully
litigated.” Pergament United Sales, 296 NLRB 333, 334
(1989), enfd. 920 F.2d 130 (2d Cir. 1990).
And that is particularly so where, as here, “the finding of a
violation is established by testimonial admissions of the Re-
spondent’s own witnesses.” Id. In this case, the interrogations
of employees Smith, Brathwaite, and O’Brien, were raised at
the trial by the Respondent. These interrogations formed its
defense to the 8(a)(5) bargaining violations alleged by the Gen-
eral Counsel. The Respondent raised the interrogations as the
grounds for justifying its withdrawal of recognition and refusal
to bargain. The Respondent, on direct examination of its own
witnesses, explained the process of these interrogations. There
is no issue of due process as the Respondent independently, and
purposely, raised the entire subject for its own purposes.
Thus, I find that the Respondent, through Piccerelli, violated
Section 8(a)(1) of the Act by “specifically” asking Smith in or
around late May 2017, “if any other bargaining unit employees
felt the way he did about the bargaining unit,” by “specifically”
asking Braithwaite in or around late May 2017, “how he felt
about the representation he had from the Union . . . . [a]nd if he
wanted to continue forward having representation of the Un-
ion,” and by asking employee O’Brien into his office in late
May or early June 2017, to gauge “what his interest was in
having representation by the Union” which led to Piccerelli
asking him if he wanted to be represented by the Union.18

18 I note that the General Counsel moved posthearing to amend the
complaint to allege that Piccerelli unlawfully interrogated Brathwaite
and O’Brien, and that Dunn unlawfully interrogated Sousa. The Re-
spondent opposes the motion on two grounds: first, that the allegations
the General Counsel seeks to add are “unsubstantiated,” in that the
Respondent argues that the evidence shows the interrogations were not
coercive; and second, that the amendments are “futile” based on the
claim that a petition for decertification was filed with the Board by
employees as of April 20, 2018, and if the Board changes its blocking-
charge policy the decertification petition “could very well render the
whole [unfair labor practice] proceeding moot.” Objections of RI PBS
Foundation to General Counsel’s Motion to Further Amend Complaint
at 3.
Given my finding of violation in the text based on Pergament, supra,
I deny the portions of the General Counsel’s motion to further amend
relating to the interrogation of Brathwaite and O’Brien as moot. Ab-
sent the Pergament-based finding of violation, I would grant the motion
to amend the complaint to plead the new allegations. And I would find
a violation as to the interrogation of Brathwaite and O’Brien. The new
allegations are closely related to the current litigation, are based on
evidence that the Respondent advanced, and the motion was made more
than 7 weeks before the parties filed posthearing briefs. I do not be-
lieve there would be any prejudice to the Respondent in the granting of
the motion. At least as to interrogation of Brathwaite and O’Brien, for
the reasons stated in the text, I reject the Respondent’s assertion that the
allegations of unlawful interrogation are unsubstantiated. As to the
Respondent’s futility argument, it is a non sequitur. A decertification
petition, with or without a change in the Board’s blocking-charge rule,
cannot render moot the unfair labor practice proceeding. I do, however,
deny the General Counsel’s motion to amend the complaint to include
Unlawful interrogations such as those conducted here neces-
sarily cannot provide the basis for a withdrawal of recognition,
as withdrawals of recognition must be based on “the free and
uncoerced act of the employees concerned.” See Eastern States
Optical Co., 275 NLRB 371, 372 (1985). Accordingly, I reject
the Respondent’s withdrawal-of-recognition defense.
Fourth, the Employer’s withdrawal of recognition was ille-
gitimate under Levitz because, apart from how it was procured,
the evidence that the Respondent is relying on does not prove
the Union’s lack of majority support.
Under Levitz, it is the employer’s burden to prove a loss of
majority support by the preponderance of the evidence. Levitz,
333 NLRB at 725. “Thus, in order to rebut the continuing pre-
sumption of majority status, the employer bears the burden of
showing, through objective evidence, an actual loss of the un-
ion’s majority status at the time of the withdrawal of recogni-
tion.” Wurtland Nursing & Rehabilitation Center, 351 NLRB
817, 817–819 (2007); Levitz, supra at 725. As the Board in
Levitz, supra at 725, explained:
[A]n employer with objective evidence that the union has lost
majority support—for example, a petition signed by a majori-
ty of the employees in the bargaining unit—withdraws recog-
nition at its peril. If the union contests the withdrawal of
recognition in an unfair labor practice proceeding, the em-
ployer will have to prove by a preponderance of the evidence
that the union had, in fact, lost majority support at the time the
employer withdrew recognition. If it fails to do so, it will not
have rebutted the presumption of majority status, and the
withdrawal of recognition will violate Section 8(a)(5).
Under Levitz, “In analyzing the adequacy of an employer’s
defense to a withdrawal of recognition allegation, the Board
will only examine factors actually ‘relied on’ by the employer.
RPT Co., 334 NLRB 466, 469 (2001), enfd. 315 F.3d 951 (8th
Cir. 2003), quoting Holiday Inn of Dayton, 212 NLRB 553, 553
fn. 1 & 556 (1974). “Conduct of which the employer may have
been aware, but on which the employer ‘did not base’ its deci-
sion to withdraw recognition from the Union, is of ‘no legal
significance.’ Id.; In Re Narricot Industries, L.P., 353 NLRB
775, 791 (2009) Highlands Regional Medical Center, 347
NLRB 1404, 1407 fn. 17 (2006) (“We need not address the
sufficiency of the hearing testimony . . . because this evidence
was not before the Respondent when it withdrew recognition”),
enfd. 508 F.3d 28, 32 (D.C. Cir. 2007). See also Anderson
Lumber Co., 360 NLRB at 544; Pacific Beach Hotel, 356
NLRB at 1398 fn. 9.
Under these standards, and quite apart from the illegitimacy
of the Respondent’s method of assaying employee support for
the Union, the evidence relied upon by the Respondent does not
prove that the Union did not have majority support.
The fact is, the Respondent is relying upon the frustrated, in-
termittent, and random complaints of employees about the qual-
ity of union representation, or the lack of necessity of a union,

the allegation that Dunn unlawfully interrogated Sousa. Based on my
crediting of Sousa’s testimony that Dunn never asked him his views of
the Union, the amendment is futile, and I deny it on those grounds.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
or negative encounters with a shop steward related to or solicit-
ed by management, for its claim that employees are rejecting
union representation. Perhaps, although I do not decide, this is
the stuff of “good faith doubt” (albeit it not “good faith disbe-
lief”),19 but it is not proof of a lack of majority support.
The unilateral withdrawal of recognition based on a lack of
majority support is a substitute—a proxy for—a Board election
(based on either an RM or an RD petition) where employees
have an opportunity to vote to express their desire to remove
the union as the bargaining representative. Without regard to
the question of the format or method by which employees may
provide the employer with objective proof of a lack of majority
support, whatever method is used must be sufficient to prove by
a preponderance of evidence that a majority of employees want
to reject union representation, as they would if the matter were
put to a vote.
This is what a lack of majority support means—that a major-
ity want the recognized collective-bargaining representative
removed as the employees’ bargaining representative. This is
more than an employee who individually wants nothing to do
with the Union, while failing to objectively provide the em-
ployer with evidence that he or she wants the Union removed as
the unit employees’ bargaining representative. This is more
than frustration or anger at the union, or feelings that the union
is not doing the job that the employees want it to do. To permit
an employer to unilaterally withdraw recognition on such a
showing would be to allow the reintroduction of withdrawal of
recognition based on a good-faith doubt standard that was re-
jected in Levitz.
Citing, Wurtland Nursing & Rehabilitation Center, 351
NLRB 817, 817–819 (2007), the Respondent points out that
Levitz does not require that the evidence proving loss of majori-
ty support be “unambiguous.” But the evidence must, at least
ambiguously, and then by a preponderance of the evidence,
prove that the Respondent knew from objective evidence that
the union lacked majority of support—i.e., that the employees
wanted the union removed as the unit employees’ bargaining
representative.
In Wurtland, a majority of employees signed a petition say-
ing they wanted “a vote to remove the Union.” The Board
majority reasoned that this language was ambiguous: it could
be read to mean that the employees merely wanted a vote on
decertification, or, the Board found that, more reasonably, it
could be read that to mean that the employees wanted a vote in
order to and so that they could “remove the Union.” On this
basis, the Board in Wurtland found it “more probable than not
that the employees rejected union representation.” 351 NLRB
at 819.
By contrast, in the instant case, the credited evidence of what
employees told Dunn and Piccerelli cannot be read as stating a
desire to not have the Union as the bargaining representative.
The credited testimony of Dunn and Piccerelli does not say
that, even ambiguously. The Levitz standard means that com-
plaints about the Union, even a lot of them, that never and un-
der no reading evince an intention to reject union representa-

19 See, Allentown Mack Sales, 316 NLRB 1199, 1206, 1208 (1995),
enfd. 83 F.3d 1483 (D.C. Cir. 1996), revd. 522 U.S. 359 (1998).
tion and a desire to remove the union as representative, cannot
cross the threshold set by Levitz for an employer to successfully
claim it possessed proof of a lack of majority support for the
Union.
Here, the Levitz standard has not been met. Indeed, one of
the four—out of a unit of seven—O’Brien, literally told Pic-
cerelli, in answer to the question of his interest in having a un-
ion, that he did not know “how he would vote” if the issue
came to a vote. While he did not feel “that he needed to have
Union representation . . . he also felt that he didn’t want to go
against the friends that he had at the station if [union represen-
tation] was something that they wanted. And that he would,
you know, think about it going forward.” Piccerelli character-
ized this answer as “wishy-washy,” and that is fair, because this
employee affirmatively expressed that he was undecided as to
whether he wanted to reject the Union.
This fails to meet the Levitz standard, and without O’Brien,
the Respondent’s lack-of-majority-support defense fails. But
the problem is not just with O’Brien.
Piccerelli’s account of his discussion with Smith involved
nothing that can be held out as objective proof that he did not
want to be represented. Unhappy with the Union, yes. But
proof that he wanted the union removed as the representative—
it is not there. Piccerelli testified that the subject of the conver-
sation was Smith’s desire to be “fairly compensated.” Piccerel-
li testified that although he could not remember Smith’s exact
words, “I can say that he was not pleased with the representa-
tion that he was getting from the Union in terms of his compen-
sation.” Although Piccerelli could not “recall his exact words,”
Smith’s “message was that he did not feel that the Union was
providing him adequate representation towards compensation.”
According to Piccerelli, Smith said that “he did not feel like he
was being fairly represented by the Union.” According to Pic-
cerelli, Smith was “not very specific,” but just expressed “gen-
eral displeasure.” According to Piccerelli, Smith “[d]idn’t feel
that he needed them to represent him, felt that, you know, doing
his work would merit whatever increases that he deserves.”
Piccerelli also testified that he had spoken to Smith “two or
three other times over the years,” specifically recalling once,
“probably sometime May of ‘16 or earlier . . . definitely more
than a year” or “almost a year” prior to the June 2017 conversa-
tion with Smith, when Smith was in tears and said that “he was
looking for more money and that the Union was not doing any-
thing to get him more money.
Nor does Dunn’s testimony—at least not the portion of
Dunn’s testimony that I have credited—prove that Dunn ob-
tained evidence that Smith did not want union representation.20
Dunn’s credited testimony is that in April or May of 2017,
Smith relayed to Dunn an argument he had with Shop Steward
Gannon over moving staging equipment, in which Smith told
Dunn that he (Smith) told Gannon in the middle of an argument
that “you don’t represent me.” Dunn claimed that over the
years Smith repeatedly complained about his wages and said

20 As explained, supra, for the reasons stated, I do not credit Dunn’s
mantra-like testimony that employees told him “there is no union,” or
they “didn’t feel that there was a union,” or that the employees told him
they “do not feel that they’re represented by a Union.”
RHODE ISLAND PBS FOUNDATION 13
that the Union was not helping him.
Piccerelli testified that Brathwaite told him that “he didn’t
feel it was necessary to have representation from the Union.”
According to Piccerelli, Brathwaite “reiterated basically what
Mr. Smith said and that he did not feel that they were being
fairly represented in terms of their compensation and other
benefits from the Union.” Dunn testified that Brathwaite “ex-
pressed the same sentiment” as Smith after the dust-up with
Shop Steward Gannon and further complained to Dunn that the
Union has “their own agenda, they never asked me who I want-
ed for shop steward.”21
As to Sousa, Piccerelli asked Dunn to check with Sousa and
see what his feelings were on having representation by the Un-
ion. According to Piccerelli, Dunn said he would do so and
subsequently told Piccerelli that Sousa “was not interested in
having representation by the Union.” However, Levitz requires
proof of lack of majority support. What Piccerelli testified that
Dunn told him that Sousa said is not reliable evidence. The
issue is not what Dunn told Piccerelli, but what the Respondent
can prove it knew from objective evidence. Dunn did not recall
Piccerelli asking him to speak to Sousa about how he felt about
union representation, or following up with a report on it to Pic-
cerelli, thus further rendering what Piccerelli says Dunn told
him, proof of nothing. Moreover, Sousa testified credibly that
Dunn never asked him how he felt about the Union (Tr. 185).
Thus, Piccerelli’s source for his information on Sousa, Dunn,
misled Piccerelli. As to the credited portions of Dunn’s testi-
mony, Dunn testified that “from 2016 on” Sousa “would often
say . . . there’s no contract.” That proves nothing.
The foregoing does not demonstrate by the preponderance of
the evidence that the Respondent knew based on its discussions
with the four employees that they did not want the unit to be
represented by the Union. That is not what Piccerelli was
told—by his own account—when he interrogated Smith,
Brathwaite, and O’Brien. Dunn told Piccerelli that he asked
Sousa and Sousa did not want union representation—but the
credited evidence suggests that Dunn did not really follow Pic-
cerelli’s instructions and put the question to Sousa. Rather,
Dunn just told Piccerelli that he had checked with Sousa and
that Sousa did not want the Union. Dunn’s credited testimony
consists of random, vague, mostly undated conversations with
the four employees, from which he decided from their negative
and frustrated comments about the Union, that they rejected
union representation. (That Dunn may have formed an opinion
over years of lunches with Sousa, and contact with other em-
ployees, that they did not want Union representation, cannot
stand-in for the claim that in late May/early June 2017, the

21 Brathwaite’s remark to Piccerelli is slightly stronger than Smith’s
comments, as it was in response to Piccerelli asking him “if he wanted
to continue forward having representation of the Union.” But again,
even putting aside for the moment the remarkable context in which an
employee is publicly paged to come into the company president’s office
to ask him about his union sympathies, Braithwaite’s guarded construc-
tion fails to prove that he wanted to reject union representation. He
merely and literally said, when quizzed by the top manager of the Em-
ployer, that “he didn’t feel it was necessary”—there is much space
between that and proof that he wants to remove the union as representa-
tive.
Respondent had proof that Sousa or the others specifically said
they do not want union representation. See, Port Printing Ad
and Specialties, 344 NLRB 354, 357 (2005) (dated conversa-
tions with employees do not prove current lack of majority
support at time employer withdrew recognition), enfd. 192 Fed.
Appx. 290 (5th Cir. 2006).
Notably, the Respondent withdrew recognition based on its
discussions with these four employees who were part of a sev-
en-person unit. If the statements of even one do not qualify as
proof that they wanted to reject union representation, the Re-
spondent’s defense fails. I find that the statements of these
employees relied upon by the Respondent are inadequate to
prove objectively that any one of the four wanted to reject un-
ion representation.
I would add that the employees’ testimony about what they
told Dunn and Piccerelli must be separated from what Dunn
and Piccerelli testified that they were told. While the employ-
ees’ testimony could have corroborative value, it is not inde-
pendent relevant objective evidence of employees’ lack of sup-
port for the Union. As referenced above, under Levitz, “In
analyzing the adequacy of an employer’s defense to a with-
drawal of recognition allegation, the Board will only examine
factors actually ‘relied on’ by the employer.” RPT Co., 334
NLRB 466, 469 (2001), enfd. 315 F.3d 951 (8th Cir. 2003),
citing Holiday Inn of Dayton, 212 NLRB 553, 553 fn. 1 & 556
(1974). “Conduct of which the employer may have been
aware, but on which the employer ‘did not base’ its decision to
withdraw recognition from the Union, is of ‘no legal signifi-
cance.’ Id; In Re Narricot Industries, L.P., 353 NLRB 775, 791
(2009) Highlands Regional Medical Center, 347 NLRB 1404,
1407 fn. 17 (2006) (“We need not address the sufficiency of the
hearing testimony . . . because this evidence was not before the
Respondent when it withdrew recognition”), enfd. 508 F.3d 28,
32 (D.C. Cir. 2007); Anderson Lumber Co., 360 NLRB at 544;
Pacific Beach Hotel, 356 NLRB at 1398 fn. 9.
Thus, to the extent an employee made statements to the em-
ployer tending show lack of support for union representation
but neither Dunn nor Piccerelli testified to knowing about it,
much less rely upon it, such statements are of no legal signifi-
cance under Levitz.
I note that in addition to disregarding this employee testimo-
ny to the extent it was not relied upon by Dunn or Piccerelli in
credited evidence, I disregard it (at least with regard to Smith
and Braithwaite) for a completely different reason: Braithwaite
admitted that he, Smith, and Piccerelli met together the morn-
ing of their testimony to discuss their testimony. (Tr. 221–
223.)
This is a flagrant violation of the sequestration order entered
in this case at the commencement of the hearing the day before.
I note that the taint is severe, without regard to their intentions.
At least in the Respondent’s view, the outcome of this case
turns on what its employee witnesses and its managers testified
that they talked about with each other in conversations where
no one else was present in late May or early June 2017. Thus,
the violation of the sequestration rule, in which these same
employees met with Piccerelli before testifying to discuss their
testimony about those very conversations, strikes at the heart of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
the credibility of the Respondent’s case.22
In sum, the evidence proffered does not constitute proof by a
preponderance of evidence that a majority of employees do not
want union representation. It proves only that the Respondent
solicited and seized upon the employees’ negative comments
about the Union to claim the outcome it wanted. Accordingly,
the Respondent’s defense to the 8(a)(5) allegations fails.23
CONCLUSIONS OF LAW
1. The Respondent Rhode Island PBS Foundation is an em-
ployer within the meaning of Sections 2(2), (6), and (7) of the
Act.
2. The Charging Party International Brotherhood of Electri-
cal Workers, Local 1228, AFL–CIO (Union) is the exclusive
collective-bargaining representative of the following appropri-
ate unit of the Respondent’s employees (the Unit):
All full-time and regular part-time Maintenance Engineers,
Television/ Broadcast/Watch Engineers and Telecommunica-
tions/Television Technicians employed by the Employer, but
excluding all other employees, guards, and supervisors as de-
fined in the Act.
3. The Respondent violated Section 8(a)(1) of the Act, in or
around late May 2017, by coercively interrogating employee
Mark Smith about the union sympathies of his co-employees.
4. The Respondent violated Section 8(a) (1) of the Act, in or
around late May 2017, by coercively interrogating employee
Joseph Braithwaite about his union sympathies.
5. The Respondent violated Section 8(a)(1) of the Act, in or
around late May or early June 2017, by interrogating employee
Patrick O’Brien about his union sympathies.
6. The Respondent violated Section 8(a)(5) and (1) of the
Act by, beginning on or about May 11, 2017, failing and refus-
ing to meet with the Union for the purposes of negotiating a
collective-bargaining agreement for the employees of the Unit.
7. The Respondent violated Section 8(a)(5) and (1) of the
Act, on or about October 19, 2017, by unilaterally withdrawing

22 At the commencement of the hearing I granted counsel for the
General Counsel’s motion for a sequestration order and identified on
the record (Tr. 9) that the rule to be in effect in the hearing was to be
the Board’s model sequestration rule set forth in Greyhound Lines, 319
NLRB 554 (1995). Counsel were instructed to familiarize themselves
with the rule and ensure that any witnesses not present at the time the
order was entered were informed of their obligations under the rule.
Throughout the hearing I reminded witnesses, and thereby reminded
counsel, that we were operating under a sequestration rule and that they
should not discuss their testimony with any potential witness. See, e.g.,
Tr. 61, 177, 187, 211. I further note that the Respondent’s violation of
the sequestration rule was elemental. If a sequestration order means
anything, it means that witnesses should not discuss their testimony
with each other before all of them have finished testifying.
23 I do not reach a final issue raised by the General Counsel (GC Br.
at 17–18)—i.e., that even assuming, arguendo, the Respondent had
evidence of lack of majority support for the Union in May/June 2017,
such dated evidence could not be a basis for an October 19, 2017, with-
drawal of recognition, nearly 5 months later. Given my findings that
the evidence on which the Respondent based its withdrawal of recogni-
tion was invalid for multiple independent reasons, I need not and de-
cline to reach this final issue.
recognition from the Union as the exclusive collective-
bargaining representative of the employees of the Unit.
8. The Respondent violated Section 8(a)(5) and (1) of the
Act, on or about October 31, 2017, by failing and refusing to
furnish the Union with requested and relevant information nec-
essary to the Union’s performance of its duties as the exclusive
collective-bargaining representative of the employees of the
Unit.
9. The Respondent violated Section 8(a)(5) and (1) of the
Act, on or about December 31, 2017, by unilaterally granting a
wage increase to unit employees Nick Moraites and Mark
Smith without providing the Union with notice and an oppor-
tunity to bargain over the wage increase.
10. The unfair labor practices committed by Respondent af-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent having violated Section 8(a)(5) and (1) of
the Act by failing and refusing to meet with the Union for the
purposes of negotiating a collective-bargaining agreement, and
by withdrawing recognition from the Union as the collective-
bargaining representative of the unit employees, shall be or-
dered recognize the Union and, upon request, bargain for a
reasonable period of time (as set forth in Lee Lumber & Build-
ing Material Corp., 334 NLRB 399 (2001), enfd. 310 F.3d 209
(D.C. Cir. 2002)) with the Union as the bargaining representa-
tive of the unit employees with respect to wages, hours, and
other terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a signed doc-
ument.
The Board has previously held that an affirmative bargaining
order is “the traditional, appropriate remedy for an 8(a)(5) re-
fusal to bargain with the lawful collective-bargaining repre-
sentative of an appropriate unit of employees.” Caterair Inter-
national, 322 NLRB 64, 68 (1996). For the reasons set forth in
Caterair, and applying this Board precedent, an affirmative
bargaining order is warranted as a remedy here.
While the Board applies Caterair, in several cases, the U.S.
Court of Appeals for the District of Columbia Circuit has re-
quired the Board to justify on the facts of each case the imposi-
tion of an affirmative bargaining order. See, e.g., Vincent In-
dustrial Plastics, Inc. v. NLRB, 209 F.3d 727, 738–739 (D.C.
Cir. 2000); Lee Lumber & Building Material Corp. v. NLRB,
117 F.3d 1454, 1462 (D.C. Cir. 1997); Exxel/Atmos, Inc. v.
NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In view of this,
the Board analyzes the facts in accordance with the D. C. Cir-
cuit cases which, as summarized by the Court in Vincent, supra
at 738, require that an affirmative bargaining order “must be
justified by a reasoned analysis that includes an explicit balanc-
ing of three considerations: (1) the employees’ § 7 rights; (2)
whether other purposes of the Act override the rights of em-
ployees to choose their bargaining representatives; and (3)
whether alternative remedies are adequate to remedy the viola-
RHODE ISLAND PBS FOUNDATION 15
tions of the Act.”
Adhering to the Board’s approach, and analyzing the facts of
this case under the three-factor balancing test outlined by the
D.C. Circuit, I find that the facts warrant an affirmative bar-
gaining order here.
(1) An affirmative bargaining order in this case vindicates
the Section 7 rights of the unit employees who were denied the
benefits of collective bargaining through their designated repre-
sentative by the Respondent’s refusal to meet to bargain and
then by the Respondent’s withdrawal of recognition. As dis-
cussed above, the Respondent’s refusal to recognize and bar-
gain with the Union occurred at a time when the Union was
repeatedly requesting bargaining, during a time when the em-
ployer was providing unilateral wage increases to employees,
but also during a time when there was no employee effort to
decertify the Union.
(2) At the same time, an affirmative bargaining order, with
its attendant bar to raising a question concerning the Union’s
continuing majority status for a reasonable time, does not undu-
ly prejudice the Section 7 rights of employees who may oppose
continued representation by the Union because the duration of
the order is no longer than is reasonably necessary to remedy
the ill effects of the violation. Since the Union was unfairly
deprived of an opportunity to reach an agreement with the Re-
spondent, it is only by restoring the status quo ante and requir-
ing the Respondent to bargain with the Union for a reasonable
period of time that the employees will be able to fairly assess
the Union’s effectiveness as a bargaining representative in an
atmosphere free of the Respondent’s unlawful conduct. The
employees can then determine whether continued representa-
tion by the Union is in their best interest. This is particularly
important here, as the record demonstrates that the Respondent
exploited employees’ frustrations with the Union, which, in
part, resulted from the Respondent’s refusal to collectively
bargain for higher wages, to justify its unlawful conduct.
(3) An affirmative bargaining order also serves the policies
of the Act by fostering meaningful collective bargaining and
industrial peace. It removes the Respondent’s incentive to
delay bargaining in the hope of further discouraging support for
the Union. It also ensures that the Union will not be pressured
by the possibility of a decertification petition or by the prospect
of an imminent withdrawal of recognition to achieve immediate
results at the bargaining table following the Board’s resolution
of its unfair labor practice charges and the issuance of a cease-
and-desist order.
(4) A cease-and-desist order, without a temporary decertifi-
cation bar, would be inadequate to remedy the Respondent’s
withdrawal of recognition and refusal to bargain with the Union
because it would permit another challenge to the Union’s ma-
jority status before the taint of the Respondent’s previous un-
lawful withdrawal of recognition has dissipated. Such a result
would be particularly unfair in circumstances such as those
here, where the Respondent’s unfair labor practices precluded
effective bargaining representation and rendered it difficult if
not impossible for the Union to win back employee support that
it had lost. Allowing another challenge to the Union’s majority
status without a reasonable period for bargaining would be
unjust given that the Respondent’s withdrawal of recognition
would likely have a continuing effect, thereby tainting any
employee disaffection from the Union arising during that peri-
od or immediately thereafter. In these circumstances, permit-
ting a decertification petition to be filed immediately might
very well allow the Respondent to profit from its own unlawful
conduct. I find that these circumstances outweigh the tempo-
rary impact the affirmative bargaining order will have on the
rights of employees who oppose continued union representa-
tion.
For all the foregoing reasons, I find that an affirmative bar-
gaining order with its temporary decertification bar is necessary
to fully remedy the violations in this case.
The Respondent, having unlawfully failed and refused to
furnish the Union with requested and relevant information,
shall provide the Union with the information requested in its
October 31, 2017 information request.
The Respondent, having violated Section 8(a)(5) and (1) of
the Act by unilaterally granting employee wage increases shall
be ordered, upon the Union’s request, to rescind these unilateral
changes and restore the status quo ante.
The Respondent shall post an appropriate informational no-
tice, as described in the attached appendix. This notice shall be
posted at the Respondent’s facility wherever the notices to em-
ployees are regularly posted for 60 days without anything cov-
ering it up or defacing its contents. In addition to physical post-
ing of paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. 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 May 11, 2017. When the notice is issued to the Respond-
ent, it shall sign it or otherwise notify Region 1 of the Board
what action it will take with respect to this decision.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended24
ORDER
The Respondent Rhode Island PBS Foundation, Providence,
Rhode Island, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their union
sympathies or the union sympathies of other employees, includ-
ing whether they want the International Brotherhood of Electri-
cal Workers, Local 1228 (Union) to continue as their collec-
tive-bargaining representative.
(b) Refusing to bargain collectively with the Union by fail-
ing and refusing to meet with the Union to negotiate a collec-
tive-bargaining agreement for the following appropriate unit:

24 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
All full-time and regular part-time Maintenance Engineers,
Television/ Broadcast/Watch Engineers and Telecommunica-
tions/Television Technicians employed by the Employer, but
excluding all other employees, guards, and supervisors as de-
fined in the Act.
(c) Refusing to bargain collectively with the Union by with-
drawing recognition from the Union and failing and refusing to
recognize and bargain with the Union as the exclusive collec-
tive-bargaining representative of the bargaining unit employees.
(d) Refusing to bargain collectively with the Union by fail-
ing and refusing to furnish it with requested information that is
relevant and necessary to the Union’s performance of its func-
tions as the collective-bargaining representative of the Re-
spondent’s unit employees.
(e) Refusing to bargain collectively with the Union by uni-
laterally granting wage increases to employees without first
notifying the Union and giving it an opportunity to bargain.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Upon request of the Union, bargain with the Union for a
reasonable period as set forth in the remedy portion of the fore-
going decision as the exclusive collective-bargaining repre-
sentative of the employees in the above-described unit concern-
ing terms and conditions of employment and, if an understand-
ing is reached, embody the understanding in a signed agree-
ment.
(b) Furnish to the Union in a timely manner the information
requested on or about October 31, 2017.
(c) Upon request of the Union, rescind the unilateral wage
increases granted to unit employees Nick Moraites and Mark
Smith on or about December 31, 2017.
(d) Within 14 days after service by the Region, post at its
facility in Providence, Rhode Island, copies of the attached
notice marked “Appendix.” 25 Copies of the notice, on forms
provided by the Regional Director for Region 1, 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. In addition to physical
posting of paper notices, notices in each language deemed ap-
propriate shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these

25 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice in each appropriate language,
to all current employees and former employees employed by
the Respondent at any time since May 11, 2017.
(e) Within 21 days after service by the Region, file with the
Regional Director for Region 1 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply
Dated, Washington, D.C. July 23, 2018
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT coercively interrogate you about your union
sympathies or about other employees’ union sympathies, in-
cluding whether you want the International Brotherhood of
Electrical Workers, Local 1228 (Union) to continue as your
collective-bargaining representative.
WE WILL NOT refuse to bargain collectively with the Union
by failing and refusing to negotiate a collective-bargaining
agreement for the following appropriate unit of employees:
All full-time and regular part-time Maintenance Engineers,
Television/ Broadcast/Watch Engineers and Telecommunica-
tions/Television Technicians employed by the Employer, but
excluding all other employees, guards, and supervisors as de-
fined in the Act.
WE WILL NOT refuse to bargain collectively with the Union
by withdrawing recognition from the Union and failing and
refusing to recognize and bargain with the Union as the collec-
tive-bargaining representative of our unit employees.
WE WILL NOT refuse to collectively bargain with the Union
by failing and refusing to furnish the Union with requested
information that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining repre-
sentative of our unit employees.
WE WILL NOT refuse to bargain collectively with the Union
by unilaterally granting wage increases to employees without
first notifying the Union and giving it an opportunity to bar-
gain.
WE WILL NOT in any like or related manner interfere with, re-
RHODE ISLAND PBS FOUNDATION 17
strain, or coerce you in the exercise of the rights listed above.
WE WILL, upon request of the Union, bargain with the Union
as the collective-bargaining representative of our unit employ-
ees concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed
agreement.
WE WILL furnish the Union with the information requested
by it on or about October 31, 2017.
WE WILL, upon request of the Union, rescind the unilateral
wage increases granted to employees Nick Moraites and Mark
Smith on or about December 31, 2017.
RHODE ISLAND FOUNDATION
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/01–CA–204520 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.