Battle Creek Health System

National Labor Relations Board - Board Decisions

May 12, 2004

341 N.L.R.B. 882 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 882
Battle Creek Health System and Local 79, Service
Employees International Union, AFL–CIO.
Cases 7–CA–45473, 7–CA–45515, 7–CA–45830,
and 7–CB–13488
May 12, 2004
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG
On September 2, 2003, Administrative Law Judge Paul
Buxbaum issued the attached decision.1 The Respondent
Union filed exceptions and a supporting brief. The Gen-
eral Counsel and the Respondent Employer filed answer-
ing briefs. The Respondent Union filed a brief in reply.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,3 and conclusions,
and to adopt his recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent Union, Local 79, Service
Employee International Union, AFL–CIO, Detroit,
Michigan, its officers, agents, and representatives; and
the Respondent Employer, Battle Creek Health System,
Battle Creek, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.

Patricia A. Fedewa, Esq., for the General Counsel.
Thomas J. Barnes, Esq. and Kurt M. Graham, Esq., of Grand
Rapids, Michigan, for Battle Creek Health System.
Bruce A. Miller, Esq., of Detroit, Michigan, for Local 79, Ser-
vice Employees International Union, AFL–CIO.

1 In Case 7–RD–3364, the judge, inter alia, sustained several of the
Employer’s objections to the Union’s preelection conduct and directed
a new election. On December 31, 2003, the Petitioner, Joyce R. Ber-
ridge, filed a request to withdraw decertification election petition. On
January 15, 2004, the Board granted the Petitioner’s request to with-
draw her petition and thus severed Case 7–RD–3364 from this proceed-
ing. Member Schaumber dissented from granting this request to with-
draw the decertification petition and would have granted the Em-
ployer’s motion to direct a new election.
2 No exceptions were filed to the judge’s findings that the Respon-
dent Employer violated Sec. 8(a)(1) of the Act by issuing or maintain-
ing a policy requiring employees to report to management prior to
discussing conditions of employment with other employees, and in-
structing employees to report harassment by union members to man-
agement.
3 The Respondent Union has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. 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.
DECISION
STATEMENT OF THE CASE
PAUL BUXBAUM, Administrative Law Judge. This case was
tried in Battle Creek, Michigan, from April 21–24, 2003. The
Union filed the initial charge against the Hospital, ase 7–CA–
45473, on September 24, 2002. It filed another charge, Case 7–
CA–45515, on October 7, 2002, and a third charge, Case 7–
CA–45830, on January 21, 2003. On October 9, 2002, the
Hospital filed a charge against the Union, Case 7–CB–13488.
On October 7, 2002, Joyce F. Berridge filed a petition, case
7–RD–3364, seeking decertification of the Union.1 Pursuant to
this petition, an election was held on December 20, 2002. On
December 27, 2002, the Hospital filed objections to that elec-
tion. The Acting Regional Director issued a fourth order con-
solidating cases, second consolidated amended complaint, re-
port on objections, second order consolidating unfair labor
practice and representation cases for hearing, and notice of
consolidated hearing on March 10, 2003.2 (GC Exh. 1(z).)
The General Counsel alleges that the Hospital committed un-
fair labor practices consisting of forbidding employees from
discussing terms and conditions of employment, asking em-
ployees to report to management regarding the protected, con-
certed activities of other employees, engaging in coercive inter-
rogation of employees, and disciplining an employee because
he engaged in union activities. The Hospital’s conduct is as-
serted to have violated Section 8(a)(1) and (3) of the Act. The
General Counsel also alleges that the Union committed unfair
labor practices consisting of threats of physical harm, property
damage, loss of employment, and imposition of fines against
bargaining unit members who participated in the effort to de-
certify the Union or who crossed any future picket line main-
tained by the Union. This conduct is asserted to have violated
Section 8(b)(1)(A) of the Act. In addition, the Hospital alleges
that this conduct by the Union, coupled with other improper
conduct, compromised the results of the decertification election
held on December 20, 2002. The Hospital’s additional allega-
tions of objectionable conduct by the Union consist of the an-
nouncement of a bounty for the theft or destruction of any de-
certification petition, the theft of such a petition, an assault
upon the Hospital’s counsel during a collective-bargaining
session, threats of bodily harm against an employee and her
family member, harassment of an employee who had voted
against the Union in the election, and misconduct in the polling
area, including engaging in impermissible electioneering and
wearing improper insignia. Both the Hospital and the Union
1 Berridge did not actively participate in this case either as a party or
witness.
2 On April 18, 2003, counsel for the General Counsel advised coun-
sel for the Union that she intended to amend the complaint, adding an
additional paragraph containing further allegations against the Union.
(GC Exh. 2). At the hearing, I granted her motion to amend the com-
plaint, having concluded that there was no prejudice to the Union since
it was on notice as to the need to defend against the substance of the
new allegations because they formed part of the previously alleged
course of improper conduct by a union official and were very similar to
allegations already contained in the Hospital’s objections to the elec-
tion. See: Folsom Ready Mix, 338 NLRB 1172 (2003).
341 NLRB No. 119
BATTLE CREEK HEALTH SYSTEM 883
filed answers to the complaint, denying the respective material
allegations.
After preparation of the transcript of the trial proceedings,
counsel for the Hospital filed a motion to correct the transcript.
This was unopposed, and I grant it with the minor alterations
set forth in the accompanying footnote.3 In addition, two other
errors of transcription require comment. Counsel for the Hos-
pital is reported as telling me that the witness he was examining
suffered from a “mental condition.” (Tr. 907.) Actually, he
informed me that the witness had a “medical condition” that
necessitated the taking of a short recess. On a far lighter note,
at the conclusion of the trial, I am reported to have praised all
counsel for their “professionalism and servility.” (Tr. 1090.)
Perhaps like other presiding judges, it is true that I have occa-
sionally daydreamed about lawyers behaving in such a submis-
sive manner. Notwithstanding, I actually complimented these
lawyers for their “professionalism and civility.” There was
nothing servile in their diligent pursuit of their respective cli-
ents’ interests.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Hospital, and the Union, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Battle Creek Health System, a corporation, provides a
variety of health care services to the public at its facilities in
Battle Creek, Michigan, where it annually has gross revenue in
excess of $250,000 and purchases goods valued in excess of
$50,000 from points located outside the State of Michigan and
causes such goods to be shipped directly to its Battle Creek
facilities. The Hospital admits4 and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. I also find that the Hospital is a health care
institution within the meaning of Section 2(14) of the Act. The
Union admits5 and I find that it is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE EVENTS INVOLVED IN THESE PROCEEDINGS
Battle Creek Health System is a relatively large employer,
having approximately 1600 employees. During the period un-
der consideration, 272 of these employees were members of a
bargaining unit of service and maintenance workers represented
by Local 79 of the Service Employees International Union,
AFL–CIO. Local 79 is an even larger organization, providing
representation for many bargaining units located in Michigan
involved in work settings such as health care, building services,

3 At p. 369, LL.14–15, the testimony should be, “The witness is be-
ing shown Employer’s 5 for identification.” At p. 370, L. 25, the wit-
ness said, “I don’t know what they were.” At p. 516, L. 17, counsel
asks the witness about “conversations.” At p. 627, L. 16, the witness
said, “Sometimes they will say excuse me . . . .”
4 See: Hospital’s answers, pars. 3 and 4 of GC Exh. 1(d), and pars.
2, 3, and 4 of GC Exh. 1(s).
5 See: Union’s answer, par. 5. (GC Exh. 1(q)).
and nursing home care. The local is estimated to have 16,000
members.
The Hospital and the Union have entered into a series of col-
lective-bargaining agreements, including an agreement whose
term ran from December 23, 1999 through September 30, 2002.
(GC Exh. 7.) Among its many provisions, this agreement re-
quired the Hospital to recognize up to 10 union stewards and a
chief steward. It also required recognition of a union bargain-
ing committee.
During the summer of 2002, a number of bargaining unit
members began an effort to obtain the decertification of the
Union as their collective-bargaining representative. This effort
was not organized in any formal manner. Nevertheless, a num-
ber of women assumed leadership roles.6 Among these active
participants were Nancy Fleming, Elizabeth Ramsey, Angelina
Mendez, Shannon Organ, and Joyce Berridge. Proponents of
decertification began circulating a petition to this effect. This
petition, which contained the signatures of supporters of decer-
tification, disappeared. The Hospital contends that it was sto-
len. The evidence does not reveal precisely what happened to
the document. It is, however, noteworthy that a union steward,
Sheri Tyndal, testified that she had a conversation with another
steward, Trudi Mietz, during which Mietz told her that she
knew the petition had been “stolen” and that she had a “pretty
good idea who had it.” (Tr. 930.)
In response to the loss of the petition, the supporters of de-
certification began circulating a replacement. Fleming testified
that, in August 2002, Mietz began making threats against those
who were in favor of decertification. According to Fleming,
Mietz continued making such threats on a daily basis over the
following months. These threats were often made in an outdoor
employee break area known as the “smoke shack.” The intimi-
dating comments consisted of warnings that cars owned by
decertification partisans would be damaged, tires would be
slashed, and homes would be vandalized. Threats were also
made against specific individuals. Mietz stated that “[s]omeone
needs to slap that fat bitch from dietary that has the petition,
and take it, take the petition.” (Tr. 641). Fleming testified that
she understood this to be a reference to Mendez. In addition,
Mietz made threats specifically directed against Organ, warning
that she was “going to slash her tires, key her car and make life
miserable for Shannon.” (Tr. 639.) Beyond discussion of spe-
cific types of adverse actions, Mietz also made generalized
predictions of dire consequences for decertification supporters,
including comments that they would “pay” for their actions,
that persons would “make life hell” for them. (Tr. 637, 641.)
Finally, Fleming reported that Mietz offered a bounty for the
theft or destruction of the renewed decertification petition.
Specifically, she promised a money reward for anyone who
turned the petition over to a member of the union negotiating
committee.
Fleming’s descriptions of Mietz’ threats and pattern of in-
timidation of bargaining unit members were corroborated and
6 In his opening remarks, counsel for the Hospital put it this way—
“this case is the story of a few brave women.” (Tr. 46.) In sharp con-
trast, counsel for the Union characterized them as the “horsewomen of
the anti-union apocalypse.” (U. Br. at fn. 3.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 884
supplemented by an array of other testimony. Patricia Stemali,
a patient care assistant, testified that she spoke to Mietz in Sep-
tember. Their conversation occurred in a break room on the
third floor of the hospital building. As a new employee, Ste-
mali was worried about her job status if the Union went on
strike. She raised this concern with Mietz since she knew Mi-
etz was a steward. She asked Mietz what would happen if the
Union established a picket line. Mietz warned Stemali that if
she crossed such a picket line, “she would personally take care
of me and that the union could fire me for passing the picket
line.” (Tr. 485.) Stemali took this to mean that Mietz “was
going to hurt me if I didn’t be careful.” (Tr. 485.) Mietz’
comment was made in a very loud voice and was overheard by
the other employees in the break room.
On September 30, 2002, Mietz approached Organ. Organ
testified that Mietz told her to rethink her opposition to the
Union. Mietz threatened Organ with loss of her job if she con-
tinued to assist in the decertification effort. Organ also reported
that Mietz informed her of a $450 bounty for recovery of the
decertification petition. She asked Organ to let her know if she
was aware of the person who had possession of the petition.
Organ also testified that several days later, Mietz approached
her and another coworker, Cheryl Bock. In Organ’s presence,
Mietz told Bock that the Union would impose a fine of $1000
on anyone found in possession of the petition on hospital prop-
erty.
According to the testimony of Mendez, in early October Mi-
etz was engaged in another conversation with coworkers in the
smoke shack. Mietz asserted that if the Union became aware of
who had the petition, “we’d be fired or they’d destroy our
homes, our cars.” (Tr. 507.) Mietz warned that the Union
would do what was necessary to stop the decertification effort
and that they would make “our life a living hell.” (Tr. 508.)
Finally, she stated that in the event the Union established a
picket line, they would throw bottles and cans at anyone cross-
ing that line. Mendez testified that later on the same day she
was outside the smoke shack and overheard Mietz speaking to
other employees in the smoke shack. Mietz said that she had
heard a rumor that a dietary department employee had the de-
certification petition.7 She offered to “pay somebody a hun-
dred dollars to slap her and run with it [the petition] just to get
rid of the decert.” (Tr. 510.) She also made other threats in-
volving fines and job loss. Mendez also reported that Mietz’
threats continued on a daily basis until Mietz left the hospital’s
employ in December.8
Because allegations regarding Mietz’ course of conduct in-
volving threats and intimidation of bargaining unit members are
central to any assessment of the parties’ actions in this case, I
will now analyze the credibility of the testimony of those wit-
nesses who accuse Mietz of this misconduct. I begin by noting
that evidence of Mietz’ misdeeds came from various sources.

7 Based on Mietz’ physical description of this employee, Mendez
testified that she assumed that the employee Mietz was discussing was
herself.
8 The circumstances of Mietz’ departure from the Hospital are un-
usual. She was not terminated, nor did she resign. It appears that she
simply disappeared from the work setting in mid-December.
The accounts are highly consistent with each other and reflect
Mietz’ use of a pattern of speech repeatedly focusing on the
same themes. From the demeanor of the witnesses who heard
Mietz’ assertions, I perceived that the threats had a substantial
emotional impact. This impact was consistently observable in
the behavior of the various persons who recounted what they
had heard.9 Finally, I note that the Union failed to present any
evidence whatsoever indicating that the reported threats were
not made. While Mietz no longer works at the Hospital, both
counsel for the General Counsel and counsel for the Union
reported that they had recently been in contact with her. She
was not subpoenaed to testify and her testimony was not pre-
sented by the Union. The Board has referred to the adverse
inference that may be drawn when a party fails to call a witness
who may reasonably be presumed to be favorably disposed to
its position as a “settled” doctrine of law. Daikichi Sushi, 335
NLRB 622 (2001). I find it appropriate to apply this inference
to the failure of the Union to produce Mietz’ testimony. For all
of these reasons, I conclude that the multiple consistent ac-
counts of Mietz’ course of conduct consisting of threats and
intimidation directed at supporters of decertification are credi-
ble and accurate.
Shortly after Mietz began her campaign of threats, another
union steward, Joy Kinney, became embroiled in a minor con-
troversy that would serve as the setting for the Hospital’s first
relevant management interaction with Mietz. Kinney testified
that while on duty, she almost slipped and fell on water that had
spilled from a broken pipe. This occurred on September 2.
Subsequently, Kinney developed back pain and sought permis-
sion to complete an incident report regarding the source of her
pain.10 John Fear, the director of food service, told Kinney that
“you can’t fill out an incident report five days after the fact.”11
(Tr. 222–223.) Faced with Fear’s refusal to allow the filing of
a report, Kinney took the matter to another supervisor, Kathe-
rine Stein. Stein permitted Kinney to file the incident report.
Once he became aware that Stein had accepted the report, Fear
contacted the Occupational Medicine Department to schedule
an evaluation for Kinney. He testified that they told him that
Kinney often filed incident reports late.
Based on what he had learned, Fear testified that he resolved
to meet with Kinney to discuss her compliance with proper
procedures for the filing of incident reports. At approximately
the same time, Fear also received certain information from
Mendez. Mendez told him that she had been in the smoke
shack and heard Mietz tell a group of employees that Fear had
refused to permit Kinney to file an incident report. From his
subsequent actions, I infer that Fear decided to proverbially
9 This appears to have had its greatest impact on Organ. She testi-
fied that she resigned from her job at the Hospital due primarily to what
she characterized as this harassment.
10 Under the Hospital’s procedures, it appears that such an incident
report was necessary in order to trigger medical examination and treat-
ment.
11 Although Fear admitted telling this to Kinney, he maintained that
he did not refuse to permit her to complete an incident report. I do not
credit this assertion as it does not make sense. Kinney’s contention that
Fear denied her request to file a report is consistent with Fear’s own
report of what he told her.

BATTLE CREEK HEALTH SYSTEM 885
“kill” two birds with one stone. He scheduled a meeting with
Kinney and invited Mietz to attend as Kinney’s union represen-
tative. While Fear told Mietz about the subject of his proposed
discussion with Kinney, he did not advise her that her own
conduct was under scrutiny.
Fear’s meeting was held on September 17. He testified that
at the outset of the meeting he advised Kinney that this was not
a disciplinary session, but simply a “coaching.” After address-
ing Kinney regarding the proper procedures for the filing of
incident reports, Fear turned to another subject. He testified
that he told Kinney that “I wasn’t very happy to hear that she
was telling people that I had refused to fill out an incident re-
port.” (Tr. 236.) Fear then turned his attention to Mietz, telling
her, “[Y]our conduct as a Union steward is very unprofes-
sional.” (Tr. 108.) He indicated that he was referring to an
incident in the smoke shack where Mietz had told people that
Fear had refused to allow Kinney to file an incident report. He
asserted that this conduct had violated principles of confidenti-
ality. On examination of Fear by counsel for the General
Counsel, the following colloquy took place:

COUNSEL: [I]t was your expectation that if she [Mietz] re-
ceived any future information regarding either you or an-
other—another manager, or an employee in dietary, that you
wanted her to speak with you first?

FEAR: Prior to speaking about it to the general public, yes.

(Tr. 242.) Mietz responded by telling Fear that she could dis-
cuss anything she wished on her breaktime. At trial, Fear ex-
pressed some understanding of the impact of his decision to
address his concerns about Mietz in the meeting regarding
Kinney. He observed that “perhaps I embarrassed Trudy [sic]
by saying that.” (Tr. 238.)
One week after this meeting, the Hospital made its first for-
mal response to Mietz’ threats against employees. This re-
sponse followed management’s receipt of a variety of reports
regarding the misconduct. Fear testified that in early Septem-
ber he had received verbal complaints from Fleming, Ramsey,
Mendez, and Dan Jenks. Among the reported statements by
Mietz were threats to “slap the shit out of that person” who was
circulating the decertification petition, threats to slash tires,
offers of a bounty for the petition, and general warnings that
there would be “hell to pay” for those who supported decertifi-
cation. (Tr. 264, 270.) Fear described his view of the situation
as:

. . . an environment that seemed to be very hostile. And I had
people that were frightened and scared. And people were
coming to managers on a fairly regular basis. For awhile, it
was almost on a daily basis, letting us know what was going
on, things that they were hearing. And they were voicing
their concerns.

(Tr. 272.) By the same token, Chantel Thom, the Hospital’s
employee labor relations specialist, reported that, beginning in
September, management began to receive very frequent reports
of threatening statements and behavior by Mietz.
On September 24, the Hospital issued a memorandum enti-
tled, Union Activity—Questions and Answers. (GC Exh. 4.)
The memo first addressed the status of collective bargaining
and issues regarding possible picketing by the Union. The next
topic was decertification activity. After describing its view of
the decertification process and legal requirements, it posed this
question: “What if Associates [employees] circulating a decer-
tification petition are harassed by Union members?” (Empha-
sis in the original.) The full response to this question was,
“Report it immediately to Human Resources for appropriate
action.” (GC Exh. 4, p. 3.) The document then turned to dis-
cussion of other issues.
On the same day that the Hospital issued this communication
to its employees, the Union filed the first unfair labor practice
charge. This alleged that Fear had unlawfully intimidated and
coerced Mietz during the meeting of September 17.12 (GC
Exh. 1(a).)
Organ testified that on September 30, Mietz solicited Organ
to change her opinion about the decertification effort and to
provide information to her regarding the location of the peti-
tion. She also reported that Mietz threatened her with loss of
employment. Later that day, Organ had a second encounter
with a union official. While eating her lunch in the hospital
cafeteria, she was approached by Linda Darkey, a steward.
Darkey discussed the decertification petition, advising Organ
that “there was quite a bit of money out on it.” (Tr. 763.)
Darkey asked Organ if she knew who had the petition.13
On October 1, the day after the expiration of the parties’ col-
lective-bargaining agreement, the Union held a meeting to de-
cide whether to authorize a strike. Fleming, who was an alter-
nate member of the Union’s negotiating committee, attended
this meeting. She testified that Norbert Przybylowicz, execu-
tive assistant to the president of Local 79, addressed the meet-
ing. He informed the members that a decertification petition
was circulating and stated that “they would make those mem-
bers pay.” (Tr. 645.) Fleming reported that he did not specify
the manner in which this would be accomplished.14
One week after this meeting, two significant steps in this liti-
gation were taken. The Union filed its second charge against
the Hospital, alleging that the Question & Answer memo of
September 24 had restrained and coerced employees engaged in
protected activity and had constituted “aid and assistance to a
campaign to decertify the union.” (GC Exh. 1(c).) On the
same day, Berridge filed a petition seeking decertification of
the Union. (GC Exh. 1(e).) Two days later, the Hospital filed
its unfair labor practice charge against the Union. This alleged
that the Union had participated in the theft and destruction of

12 The charge also alleged a variety of other misconduct that was not
incorporated into any of the General Counsel’s complaints filed in this
case.
13 I have already found that Organ’s testimony about Mietz’ conduct
was credible. I reach the same conclusion regarding her testimony
about Darkey. While this testimony was not corroborated in the same
manner as testimony about Mietz, it was similarly uncontroverted.
Darkey was not called as a witness. Furthermore, since Organ is no
longer employed at the Hospital, she appears to lack any motive to
curry favor with her former employer or anyone else associated with
this case.
14 This account was uncontroverted. Przybylowicz testified about
other matters, but he was not questioned regarding the meeting on
October 1.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 886
the original decertification petition, had offered a bounty for the
second petition, and had engaged in a pattern of threats and
intimidation of supporters of decertification and opponents of
possible picketing activities. (GC Exh. 1(g).)
The evidence reflects that by this time the Union’s leadership
had been made aware of the allegations regarding Mietz’ pat-
tern of threats and intimidation of bargaining unit members.
Ray Murdaugh, the Union’s business consultant,15 testified that
he received a copy of the unfair labor practice charge filed by
the Hospital. He shared this with the bargaining committee and
discussed it with Chief Steward Bob Brunette. Murdaugh testi-
fied that Brunette told him that the charges were “a bunch of
garbage.” (Tr. 392.) Murdaugh reported that he asked several
other people about the charges and they claimed to lack knowl-
edge about them. He also testified that he questioned Mietz
about the charges and that she denied them.
Further allegations of misconduct by Mietz were presented
to Chief Steward Brunette at a meeting on or about October 13.
At that time, Fleming gave Brunette a letter of resignation from
the bargaining committee. The letter cited “personal reasons”
for her resignation. (Emp. Exh. 9.)16 Fleming testified that at
the time she tendered this letter to Brunette, she told him that
she “was not going to be a part of a Union that threatens people
. . . with violence, that these were my coworkers and my
friends.” (Tr. 677.) She also testified that she informed Bru-
nette about the nature of Mietz’ misconduct. Brunette re-
sponded that he had not heard about any threats and did not
believe her account. She told him that he ought to visit the
smoke shack himself. Brunette observed that a decertification
petition should not have been filed while collective-bargaining
negotiations were underway. Fleming responded by noting that
if the first decertification petition had not been stolen, the tim-
ing would not have been so unfavorable.
Further indications of disturbing activity by Mietz came to
the attention of the Union’s leadership on November 15. On
that date the Hospital issued a flyer entitled, “Additional Q &
A[‘]s Regarding Union Negotiations.” (Emphasis in the origi-
nal.) This described the Hospital’s position regarding a variety
of issues. It informed the employees that:

BCHS [Battle Creek Health System] filed charges with the
NLRB because of serious threats by some union representa-
tives against their fellow members who supported a decertifi-
cation petition. BCHS will not tolerate harassment or intimi-
dation of or by any of its associates, which is why we filed a
complaint with the NLRB. We are confident that the BCHS
complaints against the union will be upheld.

(U. Exh. 2, par. 14.) This document also posed a question as to
what employees should do if the union “pressures” them re-
garding decertification. The response advises employees who
feel “pressured or threatened” to “contact their supervisor and

15 Murdaugh testified that as business consultant to Local 79, his du-
ties included the negotiation of contracts, settlement of grievances,
conduct of union meetings, and provision of services to union mem-
bers.
16 As both the Union and the Employer are respondents in this case, I
will designate the Employer’s exhibits as “Emp.” The Union’s exhibits
will be designated as “U.”
file appropriate incident reports.” (U. Exh. 2, par. 16.)17 Bru-
nette testified that he believed that the statements made in this
flyer regarding union misconduct were “all lies” and “propa-
ganda.” (Tr. 348, 364.)
On November 19, Union President Willie Hampton ad-
dressed the membership at a meeting convened to discuss con-
tract negotiations. Numerous witnesses testified that Hampton
also discussed the unfair labor practice charges filed against the
Union. Some witnesses indicated that Hampton read the
charges to the membership. Other witnesses disagreed, report-
ing that he discussed the charges but did not read them verba-
tim. I credit the testimony of Mendez on this issue as it re-
solves these discrepancies in a logical manner. She testified
that Hampton used the written charges as reference material
during his talk, but described the charges in his own words.
Mendez and Fleming testified that some of the union leaders
laughed at the charges.18 Mendez reported that Hampton
“chuckled.” (Tr. 520.) Fleming described Hampton’s conduct
as “making it like it was a big joke that these charges were filed
against the Union.” (Tr. 680.) At this point, Mendez addressed
the meeting, telling those present that she did not think it was
funny that people were being threatened. She stated that she
had been among those who were threatened.19 Steward Darkey
responded that management was also threatening people.
Hampton also stated that management was threatening union
supporters.
On November 26, the Union filed further charges against the
Hospital, alleging that on September 17, Fear had unlawfully
interrogated Mietz about her union activities. (GC Exh. 1(i).)
Additionally, the Union charged that, in its memorandum of
September 26, the Hospital had “requested employees to report
protected conduct to it.” (GC Exh. 1(k).) On December 10, the
Regional Director approved a Stipulated Election Agreement
regarding the decertification petition.20
While the decertification issue progressed, the Union and the
Hospital were also engaged in collective-bargaining negotia-
tions. The parties met on December 10. The two sides were
seated opposite each other with 10 to 15 feet separating the
tables. During this session, a heated discussion took place be-
tween Murdaugh and the Hospital’s attorney, Thomas Barnes.
They traded accusations of attempts to intimidate their respec-
17 This flyer was not exclusively critical of the Union. It noted that
substantial progress had been made in contract negotiations and ob-
served that “we expect to reach a reasonable compromise” resulting in
a new collective-bargaining agreement. (U. Exh. 2, par. 3.)
18 This testimony was at least partially corroborated by Brunette. He
testified that he did not have much recollection of these events, but did
remember Hampton talking about the offer of a bounty for the petition.
He indicated that he thought this was “kind of funny.” (Tr. 374.)
19 This account by Mendez was corroborated by Murdaugh who tes-
tified that he did recall Mendez reporting that people were being threat-
ened.
20 The Regional Director had originally placed the representation
case “in abeyance” until the unfair labor practice charges were re-
solved. (Emp. Exh. 14.) The Hospital requested that the representation
case proceed. (Emp. Exh. 15.) The Regional Director agreed to this
request. (Emp. Exh. 16.)

BATTLE CREEK HEALTH SYSTEM 887
tive bargaining committees.21 Barnes stood up and pointed or
shook his finger at Murdaugh. Given the considerable distance
between the two men, Barnes’ conduct did not invade Mur-
daugh’s personal space and could not have given him any rea-
sonable belief that he was in danger.22 Nevertheless, as Mur-
daugh himself put it, he “lost it.” (Tr. 415.) He moved rapidly
from the center of his table, crossed over to the management
side of the room and brushed past a number of people including
a pregnant woman. Upon reaching the center of the manage-
ment table, he reached out and made physical contact with Bar-
nes. Various witnesses characterized the nature of this touch-
ing differently. Kinney described it as a touch, similar to a
mild push. Fear said that Murdaugh pushed Barnes with both
hands. Brunette described it as a shove. Of greatest probative
value, Murdaugh himself candidly described what he did and
what he had intended. He testified that he went around the
table and:

I was mad, and I made an attempt to hit him [Barnes], and I
don’t know whether I hit him or not because there was some-
body between us. I may have reached out. I can’t remember
whether I did or not. By that time . . . . John McDougal, who
was probably one of the bigger guys there, he comes—he
come[s] from behind me and he grabs me and more or less
pulled me away and so we were separated.

(Tr. 415.) After the men were separated, the police were sum-
moned. The investigating officer discussed the matter with
both men. Apologies and handshakes were exchanged. No
criminal charges were filed.
This incident had an emotional impact on those present.
Kinney testified that a number of members of the union bar-
gaining committee were crying. Fear reported that the man-
agement negotiators were “visibly shaken or upset.” (Tr. 300.)
After the incident, the union negotiating committee made an
internal agreement not to report these events to other people.
Not unexpectedly, the evidence reveals that this agreement was
impossible to keep. Indeed, Mendez testified that Kinney told
her about the incident on the very next day. Her testimony was
supported by the testimony of a union member and supporter,
Ray Reed. Reed also indicated that he learned about the inci-
dent from Kinney.23 Fleming also testified that she learned
about the incident from union members who were discussing it
in the smoke shack.
On the day after this unfortunate episode, the Hospital issued
a document called, “Straight talk about the Decertification
Election.” Among other items, the document reported that:

The negotiation session on December 10, ended early as a re-
sult of a highly inappropriate incident. The union business
agent from Muskegon [Murdaugh] became angry, crossed the

21 There was considerable testimony along the lines of “who started
it.” It simply does not matter in any legal sense. Both men said things
better left unsaid, but Murdaugh chose to convert discussion into physi-
cal misconduct.
22 Murdaugh conceded that when Barnes made the hand gesture, the
two men “weren’t close.” (Tr. 430.)
23 Kinney denied telling Reed about the incident. Given the testi-
mony of both Reed and Mendez, I do not credit this denial.
room, and shoved the BCHS attorney [Barnes]. The union
business agent had to be restrained and local police were
summoned. This type of violent and illegal behavior by the
union will not be tolerated.

(Emp. Exh. 7.) The document concluded by expressing support
for the decertification effort, urging employees to “Vote ‘NO’
this Friday!” (Emphasis in the original.) While this account of
the negotiating session incident was issued on the day follow-
ing the session, it was not the first notice of the incident. Both
Reed and Fleming testified that they heard about the incident
from union members before the Hospital issued this document.
The next union meeting was held on December 17.24 Ap-
proximately 20 members attended, along with various union
officials including Murdaugh and Przybylowicz. Three propo-
nents of decertification, Fleming, Ramsey, and Mendez, arrived
later and sat together. As was to be expected, Murdaugh was
questioned about the incident with Barnes. According to
Kinney, Murdaugh responded to a member’s question by stat-
ing that he “might have gotten out of hand. But at the time, he
was defending his bargaining team.” (Tr. 183.) He indicated
that he was not going to let the Hospital’s lawyer insult his
bargaining committee. Murdaugh, himself, testified that at this
meeting, he described the incident to the membership as a
“slight altercation.” (Tr. 390.) Mendez testified that at this
point, Reed offered the view that “violence was tolerable, ac-
ceptable if that’s what it took.”25 (Tr. 527.) At this point, the
discussion became more general with various employees voic-
ing dissatisfaction about their employer. Ramsey addressed the
meeting, voicing her support for decertification, and observing
that if people did not like working for the Hospital, they should
seek other employment. Reed responded by telling Ramsey
that nobody would hire her.
Fleming testified that Reed’s comments upset her and she
turned to Ramsey and asked, “Who is this asshole?” (Tr. 655.)
Accounts differ as to what happened next. According to Flem-
ing, Reed said, “You just called me an asshole. And I am going
to kick your fucking ass. Nobody calls me an asshole.” (Tr.
657.) He added threats that he would beat her and her husband.
Ramsey testified that Reed said that somebody needed to teach
Fleming a lesson and that her “old man [ought] to have his ass
kicked, to let her out of the house.” (Tr. 899.) Mendez re-
ported that Reed said he would “come over there and show you
an ass hole and then he made the remark that he would whup
her husband’s ass, too.” (Tr. 532.)
By contrast with these accounts, Reed contends that he
merely responded to Fleming by saying, “Don’t call me an
asshole.” (Tr. 62.) Steward Kinney reported that Reed simply
advised Fleming that he did not “appreciate you calling me an
24 By coincidence, on this date the Regional Director filed the first
complaint and notice of hearing against the Union. (GC Exh. 1(m).)
This alleged a pattern of threats by Mietz.
25 Reed denied making this comment. However, he also denied that
there was any discussion of the incident involving Murdaugh and Bar-
nes. Many witnesses, including Murdaugh himself, confirmed that
such a discussion occurred. I credit Mendez’ testimony. As will be
described later, her account on this point is consistent with my findings
regarding Reed’s overall pattern of behavior on this date.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 888
asshole.” (Tr. 114.) A union supporter, Senka Fettig, described
Reed’s response as, “hey, lady, don’t call me asshole, lady.”
(Tr. 446.)
From these varying accounts, it is apparent that Reed re-
sponded to Fleming’s unpleasant remark by telling her not to
refer to him by this epithet. The question is whether he went on
to make threats against Fleming and her spouse. I find that the
threats were made. Testimony of union officials sheds light on
this controversy. Murdaugh reported that Reed responded to
Fleming by telling her that, “Lady, I’m not an asshole.” He
went on to testify that, “I think a few other words were spoken.
I can’t remember exactly what they were . . .”26 (Tr. 383.)
Przybylowicz’s account is somewhat similar. He testified that
Reed said, “Lady, I’m no asshole. And he was going to con-
tinue to say something, but I interrupted.” (Tr. 464.) Indeed,
the consensus of the witnesses was that Przybylowicz, who was
presiding at the meeting, intervened to terminate the discussion.
I find it reasonable to infer that he did so because what Reed
was “continu[ing] to say” was improper.
Shortly after this exchange, the meeting terminated. Przyby-
lowicz testified that at this point, “Ray Reed and Ray Mur-
daugh were standing around joking.”27 By contrast, Przyby-
lowicz noted that the three decertification supporters “couldn’t
wait to get out the door, for whatever reason.” (Tr. 466.) I
credit testimony showing that the reason these women left in
such a hurry was their fear of Reed’s intimidating behavior,
coupled with the fact that, as Mendez put it, “nobody tried to
stop Ray Reed from talking to her [Fleming] like that.” (Tr.
532.) The three women exited the building and walked through
the parking lot. Ramsey got into her auto and drove away.
Mendez had brought Fleming to the meeting. By unfortunate
chance, Mendez had unknowingly parked her auto next to
Reed’s truck. Reed sat in his truck. Mendez and Fleming en-
tered the car. They waited for Reed to drive away.28
Mendez testified that Reed rolled down his window and
started yelling at her. She began yelling back. Two men inter-
vened to halt any further incident. Fleming testified that during
this heated discussion, Mendez asked Reed if he had a problem
and Reed responded that “I’m going to come over there and
give you a fucking problem.” (Tr. 662.) Interestingly, Reed’s
own description of events in the parking lot demonstrates his
provocative behavior. He reports that he got into his truck and
noticed that Mendez was “looking at me out of the corner of
her eye.” Although he started to drive away, he noted that she
was still “giving me a look.” Instead of driving on, he backed
up, rolled down his window and asked Mendez, “Is there a
problem?” (Tr. 65.) Heated words were exchanged and two
interveners broke up the argument.

26 On cross-examination, Murdaugh changed his testimony, claiming
that Reed told Fleming he was not an asshole, but said nothing further.
I do not credit this second version. In my view, it simply reflects Mur-
daugh’s realization that his earlier testimony tended to corroborate the
testimony of the decertification supporters.
27 Murdaugh confirmed that after the meeting broke up, he and Reed
“laughed and talked with each other.” (Tr. 384.)
28 They wanted Reed to leave first, since they were concerned that he
might follow them to Fleming’s home.
As I have described, accounts of the events of December 17
differed. I credit the testimony of Fleming, Mendez, and Ram-
sey for a number of reasons, including those reasons already
mentioned. In addition, I note that their testimony was largely
consistent. Furthermore, the climate and tone they described fit
within the overall context surrounding this meeting. The evi-
dence has established that the decertification effort and the
collective-bargaining difficulties had provoked a hostile and
threatening response and that the Union’s leadership had not
taken meaningful steps to address the situation. All of this is
consistent with the events as recounted by the three women. In
addition, as I have noted, Murdaugh, Przybylowicz, and even
Reed himself, provided evidence that tended to corroborate the
women’s accounts. Lastly, my observations of Reed’s de-
meanor as a witness support this conclusion. Reed came across
as a pugnacious, and even belligerent, individual. From his
observed demeanor, it was easy to imagine him doing what he
described in the parking lot when confronted with what he per-
ceived as a cross look. By the same token, it was also easy to
picture him using profane and threatening language in response
to what was admittedly an insulting and inappropriate comment
by Fleming. I find that, on December 17, Reed repeatedly
threatened Fleming and her husband due to a remark she made
during a heated discussion about the collective-bargaining
process and the decertification effort. I further find that union
officials heard the threats, did nothing to express disapproval of
those threats,29 and, in the case of Murdaugh, engaged in be-
havior that would create an appearance of support for Reed.
In the days following the December 17 union meeting, Ram-
sey, Mendez, and Fleming each reported Reed’s threatening
behavior to hospital managers. On December 18, Ramsey pro-
vided a written statement to Fear. Mendez told Fear about
these events and requested an incident report form. She com-
pleted the form and it was provided to the human resources
department within a week. Fleming also filed an incident re-
port.30 She testified that she took this step:

Because Ray Reed was threatening my family. And I felt that
he was going to follow me home. And I didn’t know what he
would do at work.

(Tr. 742.) The events were also a topic of discussion in the
workplace. For example, Fleming testified that as many as 25
employees discussed the incident with her.
On December 20, 3 days after this contentious union meet-
ing, the decertification election was held. Polling was con-
ducted in a conference room on the second floor of the outpa-
tient center. Voting sessions were scheduled for four blocks of
time: 6:30 to 8 a.m., 10 to 11:30 a.m., 2:30 to 3:30 p.m., and
6:30 to 7:30 p.m. The Board agent responsible for supervising
the election conducted preliminary instructional sessions with
observers for the Union, the Hospital, and the supporters of
decertification.
29 It is true that Przybylowicz cut Reed off, but he did nothing to in-
dicate disapproval of Reed’s behavior.
30 Fleming filed her incident report on December 26, since she had
been on vacation prior to that. Fleming’s report containing her detailed
description of the events is Emp. Exh. 8.

BATTLE CREEK HEALTH SYSTEM 889
The Regional Director reported that there were 272 eligible
voters. Of these, 204 cast ballots, exactly 75 percent of those
eligible. There were 109 votes in favor of continuing represen-
tation by the Union, with 92 opposed. Three ballots were chal-
lenged, an insufficient number to affect the outcome. (GC Exh.
1(z).) On December 27, the Hospital filed objections to the
election, alleging a variety of misconduct by persons affiliated
with the Union. (GC Exh. 1(r).) The facts underlying those
objections that involve conduct alleged to have occurred prior
to the day of the election have already been described.31 I will
now set forth my findings regarding the remaining objections
that involve alleged misconduct on the day of the election.32
These allegations fall into three categories: misconduct by two
union election observers, misconduct by Murdaugh, and mis-
conduct by a member of the Union’s bargaining committee,
Joanne Ciampa.
The Hospital cites two instances of asserted election miscon-
duct by Kinney, who was serving as an observer for the Union.
She chose to wear three union buttons that were each approxi-
mately 4 square inches in area. The buttons bore the Union’s
identifying information and the slogan, “Stronger together.”
She also wore a lanyard around her neck that was imprinted
with union logos. Attached to the lanyard were two ballpoint
pens that also bore the Union’s logo.33 On examination,
Kinney agreed that as voters approached the table, they were
able to read the various union-related materials she was wear-
ing.
Nobody commented on Kinney’s attire until the first two
voting sessions were concluded. In particular, Kinney testified
that the Hospital’s counsel, Barnes, observed her attire early
that morning and did not make any comment. During the inter-
val between the second and third sessions, the Board agent
warned Kinney that Barnes might have objections to her wear-
ing the union-related items. Kinney testified that Barnes heard
this comment and responded by making a dismissive gesture.
Kinney stated that the agent thereupon told her it was her
choice as to whether to continue to wear the items. She elected
not to remove them, and continued to wear them during the
remaining two voting sessions. In addition, Mendez testified
that she observed both Kinney and another union observer,
Darkey, wearing union-related items during the voting. Darkey
was wearing one union button.
The Hospital also cites another aspect of Kinney’s behavior
as an election observer. It is uncontroverted that the Board
agent instructed the observers, including Kinney, not to engage
in any conversations with voters. During the last balloting
session, a voter told Kinney that she was going away on a trip
and wanted to know how she could learn of the results of the
election. Kinney testified that she did not respond. She indi-
cated that one of the Hospital’s observers told the voter that the
results would be available by calling a certain phone number.
Kinney’s account of this incident was contradicted by the tes-
timony of two election observers for the Hospital. These ob-

31 I am referring to Objections 1, 2, 5, and 6.
32 These are Objections 3, 4, 7, and 8. Objection 9 is a concluding
catch-all allegation.
33 Kinney confirmed that she wore these items.
servers, Jan Burdick and Audrey Mort, both reported that the
voter first addressed Kinney, asking her how to learn the elec-
tion’s outcome. They also testified that Kinney answered the
voter’s question, informing the voter of the phone number to
call. The Board agent then instructed Kinney to cease talking.
Union Business Consultant Murdaugh is alleged to have en-
gaged in impermissible electioneering. He attended the Board
agent’s preelection instructional session and testified that the
agent advised that there could be no electioneering in the poll-
ing area. He also testified that he saw posters prohibiting such
electioneering. He stated that one of these posters was placed
at the first floor elevator station. These elevators would take
persons up to the second floor location of the polling place.
The allegations against Murdaugh focus on the third and
fourth voting sessions. Union Steward Sheri Tyndal testified
that she voted in the early afternoon. This would have been
during the voting session from 2:30 to 3:30 p.m. After voting,
she drove away. While in her vehicle, she encountered man-
agement officials, including Thom. She informed them that she
had just seen Murdaugh in the outpatient atrium on the first
floor while the polls were open. She greeted him but he did not
respond. He did not appear to be moving toward the polling
area. Tyndal expressed surprise at his presence since she was
under the impression that no management or union representa-
tives were supposed to be in the area during the voting.
In sharp contrast to Steward Tyndal’s account, Murdaugh
testified that he was not standing by the outpatient building’s
elevators at that time. Furthermore, he denied seeing Tyndal at
any time on the day of the election. Despite this, Tyndal’s
version is corroborated by highly probative nontestimonial
evidence. The Hospital maintained a security camera and
videotaping system focused on the atrium of the outpatient
center. The parties have stipulated that the videotape from that
camera shows Murdaugh on the first floor of the outpatient
center, “walking across the atrium directly to the elevator.”
(Tr. 994.) The time of this activity is recorded as 3:19 p.m.
The Hospital contends that Murdaugh engaged in far more
serious election misconduct during the final voting session. It
is undisputed that, as the final session commenced, Murdaugh
asked the Board agent if he could remain in the physical ther-
apy room located across the hall from the voting place. Mur-
daugh testified that the agent said that he could use the room,
but he decided not to. Kinney testified that the agent told Mur-
daugh that “it would be in the best interests if he left, so that he
wouldn’t be influencing the people to vote.” (Tr. 196.) Bur-
dick testified that the agent told Murdaugh “that he should not
be within the vicinity of the voting area. And that was up to
him, whether or not he did that.” (Tr. 948.) Fleming, who was
serving as an election observer, reported that when Murdaugh
asked the agent if he could use the room across the hall, the
agent told him that it was his choice.
At this point, there is another sharp divergence in the testi-
mony of those involved. Fleming testified that Murdaugh then
walked away and encountered a group of prospective voters.
She observed him to “walk down the line of people, and [he]
was shaking hands, and was talking to them.” (Tr. 686.)
Mendez, who was also serving as an election observer, testified
that at the beginning of the final voting session, she saw Mur-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 890
daugh approach a group of approximately 20 people who were
waiting to cast their ballots. He spoke with a number of them,
and shook hands with 3 or 4. Murdaugh flatly denies this con-
duct. He was asked if there were any voters standing in line at
this time. His response was that “I think I do not remember at
the fourth session any voters standing in line.” (Tr. 1087.) He
was then asked if he ever shook hands with or talked to voters
who were standing in line. He denied any such behavior, not-
ing that “if I were to do that, that is in violation of the election
rules.” (Tr. 1088.) I do not credit Murdaugh’s denials. His
testimony was evasive and his credibility has been greatly
eroded by his lack of candor as to other points in controversy.
By contrast, Fleming and Mendez have been found to be credi-
ble informants for reasons already discussed.
The remaining allegation of misconduct by Murdaugh on the
day of the election concerns the period near the end of the last
voting session. Murdaugh testified that he was:

thinking that the polls [were] supposed to close a[t] seven
o’clock—I’m not sure whether it was seven o’clock or 7:30—
and, when I looked at my watch, it said it was seven o’clock
and so I proceeded in the hospital.

(Tr. 409.) Actually, the polls were not scheduled to close
until 7:30 p.m.34 Having decided to enter the outpatient build-
ing at 7 o’clock, he encountered an employee, Cy Lutz, who
was standing by the door. They discussed the weather. Mur-
daugh testified that he then took the elevator up to the second
floor. He saw that the polls were still open. At this point, he
reported that he was escorted away from the area by two secu-
rity guards. He denied having encountered a security guard
while on the first floor.
As has been consistently true regarding the events of this
day, other witnesses and evidence contradict Murdaugh’s ac-
count. Security Officer Carla Jean Berner testified that after
Murdaugh entered the outpatient center, her superior directed
her to stop him. She approached him on the first floor and
asked him to leave. He told her that he wished to go upstairs.
She told him to leave, and he acted as if he were leaving. De-
spite this, he actually got on the elevator to go upstairs. Officer
Berner took the stairs and used her radio to call for assistance.
She and another responding officer met Murdaugh as he got off
the elevator on the second floor. The other officer asked him to
leave and he complied.
It will be recalled that Murdaugh flatly denied having any
encounter or conversation with a security guard while on the
first floor. The videotape of the security camera trained on the
first floor atrium undercuts his account. The parties have stipu-
lated that, at 7:22 p.m., it shows Murdaugh entering the build-
ing and stopping to talk to Lutz. He is then seen walking di-
rectly to the elevator. The tape also shows a female security
guard following him as he goes out of the camera’s line of
sight.

34 Murdaugh’s cavalier attitude to all this is well illustrated by the
fact that he testified that on the morning of election day, the Board
agent suggested that everyone synchronize their watches to her time.
Murdaugh testified that, despite this request, he did not do so.
The Hospital’s third allegation of union misconduct on the
day of the election is based on an incident report filed by an
employee, Teresa Reeve. Reeve is a critical care assistant who
has been employed by the Hospital for approximately 7 years.
On the day of the election, she cast her ballot and was in the
process of returning to her worksite. While in a hallway con-
necting the outpatient center with the inpatient portion of the
facility, she encountered Joanne Ciampa.35 Ciampa is the lead
health unit coordinator. She has been employed by the Hospital
for approximately 24 years and serves on the Union’s bargain-
ing committee. The two women were acquainted, since
Ciampa had training responsibilities involving Reeve. Also
present during their encounter were Senka Fettig and Julie
Swiss. Ciampa and Reeve had not previously discussed the
decertification issue.
Reeve testified that Ciampa asked her how she had voted.
She said she voted against the Union. Ciampa told Reeve that
she did not realize the effect of such a vote. Ciampa also
“grabbed” Reeve’s arm. (Tr. 973.) In her testimony, Reeve
agreed with a characterization of this action as being “pretty
vigorous,” but not painful. (Tr. 977.) Reeve also indicated that
Ciampa was not “attacking” her. (Tr. 980.) Instead, she ex-
pressed her opinion as to Ciampa’s purpose by stating:

I felt that by her grabbing me it was a way for her to try to get
her point across to me, of which my opinion was different
from hers.

(Tr. 981—982.) Afterward, Reeve pulled her arm away and
departed. Reeve acknowledged that during their conversation,
Ciampa had agreed that Reeve had a right to her own opinion
as to the benefits of union representation.
Ciampa also described this incident. She testified that she
asked Reeve how she had voted, noting that she hoped that
Reeve’s vote was for the Union. Reeve responded negatively,
adding in regard to the Union, “screw’em.” (Tr. 1058.)
Ciampa reminded Reeve that she was a member of the negotiat-
ing committee and Reeve repeated her observation,
“screw’em.” (Tr. 1058.) Ciampa testified that she then ob-
served that, “okay, everybody has the right to their own opin-
ion.” (Tr. 1058.) Whereupon, she departed.
Immediately after these events, Reeve filed an incident re-
port with the director of patient care services, Carol DiBiaggio.
(Emp. Exh. 10.) Reeve was interviewed by Thom, telling
Thom that Ciampa had “put her hand on [Reeve’s] arm.” (Tr.
797.) Reeve noted that Ciampa had agreed that Reeve was
“entitled to your own opinion” regarding the Union. (Tr. 797.)
Later that day, a meeting was held among Thom, Ciampa, Di-
Biaggio, Brunette, and Judy Holscher, Ciampa’s immediate
supervisor. According to Thom’s account of the meeting,
Ciampa denied touching Reeve’s arm, but added that she was a
“touchy feely person” and may have “put my arm on her.”36
35 An eyewitness, Senka Fettig, described the location of their en-
counter as “quite far away” from the polling place and on another floor.
This is not controverted.
36 In her testimony, Ciampa confirmed this account, saying that she
told Thom that she “didn’t remember touching her, but then I am a
touchy/feely person and I could have touched her arm. I just could not
remember.” (Tr. 1060.)

BATTLE CREEK HEALTH SYSTEM 891
(Tr. 801.) DiBiaggio testified that as the meeting neared its
conclusion, Ciampa did admit touching Reeve, stating that “she
meant it as a gesture” and demonstrating how she did it.37 (Tr.
1042.) No disciplinary action was taken against Ciampa as a
result of this meeting.
In the testimony of the various witnesses, there was dispute
as to whether Ciampa had touched Reeve. Fetting, who was
present, denied that Ciampa had touched Reeve at all. She also
reported that Ciampa’s hands were full since she was carrying a
purse, coat, and books. Ciampa testified that after the meeting
about the incident, she thought it over. She concluded that she
could not have touched Reeve because her hands were too oc-
cupied with the items she was carrying. Although she made
this determination after rethinking the matter, she never re-
ported her conclusions to DiBiaggio or other management offi-
cials.
In resolving the differences in these accounts, I generally
credit Reeve’s testimony, along with the testimony of the man-
agement witnesses who were present at the meeting. I do so
because those accounts are consistent with Ciampa’s original
statements. Those statements indicated that she could not pre-
cisely remember touching Reeve, but that such a touching was
consistent with her own acknowledgement that she was a
“touchy feely” person. I do not credit her later reconstruction,
since this was an exercise in self-justification. The fact that her
hands were occupied with the items she was carrying would not
preclude the type of brief touch involved in this matter. I find
that she could have, and did, shift the items to permit a brief
outreach with her hand. By the same token, my conclusions
also lead me to find that the touching was of slight duration and
intensity.
Thom testified that, a week after the election, she received an
incident report regarding Reed’s conduct at the union meeting
on December 17. On the same date, the Hospital filed its ob-
jections to the election. (GC Exh. 1(r).) Thom took no action
regarding the allegations against Reed until mid-January. She
indicated that the delay resulted from the intervening Christmas
and New Year’s holidays, her need to discuss the matter with
her superiors, and problems involved in scheduling a meeting
since Reed worked on the night shift. Thom reported that a
meeting was eventually scheduled for January 16.
Reed testified that on the day prior to this meeting, his su-
pervisor, Keith Long, approached him and asked if he had ex-
perienced a problem at a union meeting. Reed replied, telling
Long that he “had a little discussion with somebody” at the
meeting. (Tr. 69.) Long informed Reed that there would be a
meeting concerning this matter on the following day. Reed
requested the presence of a union representative, and Long told
him he would arrange for Brunette to attend in this capacity.
The meeting was held on the next day. Reed, Long, Bru-
nette, Thom, and Paul Ratliff, Reed’s immediate supervisor,
attended. Brunette testified that Thom may have commenced
the meeting by “comment[ing] why we were there, investigat-
ing possible workplace violence.” (Tr. 319.) Thom testified
that she informed Reed that she had received an incident report
concerning threats he made against Fleming during a union

37 At trial, Ciampa denied making such a demonstration.
meeting. She said she “was here to get his side of the story
about what happened.” (Tr. 809.) She then explained the Hos-
pital’s workplace violence policy to Reed, telling him what
steps to take if a coworker threatened him or called him names.
She began reading the contents of the incident report to Reed,
but he interjected in order to explain his side of the story. He
displayed a paper that he asserted contained a list of persons
who could vouch for his conduct at the union meeting. Thom
asked for the list and Reed refused to provide it.38 Thom testi-
fied that she was startled when, during their discussion, Reed
asked her,

So, if she [Fleming] calls me an asshole, I am supposed to fol-
low the [workplace violence] policy, before I snap her little
neck?

(Tr. 811.) Reed’s version of this exchange was somewhat dif-
ferent. He reported that he asked Thom whether, in the event
Fleming came up to him and slapped him, he would have to
consult with Thom before he “retaliate[d],” against Fleming.
(Tr. 75.) I credit Thom’s account, noting that it is consistent
with Reed’s behavior and with my observations of his de-
meanor. I also note that, even if one were to credit Reed’s tes-
timony, it reflects his pugnacious stance. Although phrased
more gently than Thom’s version of his words, Reed’s own
account indicates that during a meeting designed to discuss
serious allegations against him and to explain to him the em-
ployer’s workplace violence policy, he chose to attempt to ridi-
cule that policy.
Thom testified that she never asked Reed for any information
about what took place during the union meeting, except for the
events directly related to his confrontation with Fleming. Reed
confirmed this, agreeing that the discussion involved only the
events concerning Fleming. Thom also testified that there was
no disciplinary action taken against Reed and no formal record
placed in his file.39 Reed confirmed that he was not informed
of any disciplinary consequences arising from the meeting or
the underlying incident.
Thom also testified that she held a meeting with Fleming re-
garding the incident at the union meeting. She told Fleming
that using words such as “asshole” was “completely against our
policy, and that she shouldn’t do that.” (Tr. 814.) She also
informed Fleming about the workplace violence policy, indicat-
ing that “[i]t was basically the same things that I had told Mr.
Reed.” (Tr. 815.) Fleming was not subject to disciplinary ac-
tion and nothing was placed in her file.
On January 21, the Union lodged its remaining unfair labor
practice charge against the Hospital, alleging employer mis-
conduct involving the discipline of Reed. (GC Exh. (1(v).) On
March 10, the Regional Director issued his final complaint,
report regarding the objections to the election, order of consoli-
38 Reed confirmed this. He testified that he showed Thom the paper,
but refused to give it to her. In my view, this is an example of the sort
of behavior that leads to the conclusion that Reed has a pugnacious
attitude and style of presenting himself.
39 Thom acknowledged that she retains a file containing notes from
the meeting made by Long and herself. She agreed that if Reed were
investigated about a later complaint, her file could be retrieved and
considered.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 892
dation, and notice of hearing. (GC Exh. 1(z).) While these
steps in the litigation progressed, the Union and the Hospital
continued their collective-bargaining efforts with the assistance
of a Federal mediator. These efforts were successfully con-
cluded on April 11. On April 17, the parties’ new collective-
bargaining agreement was ratified. Its duration is from April
17, 2003 through April 16, 2004.
III. ALLEGED UNFAIR LABOR PRACTICES
The General Counsel contends that both the Hospital and the
Union engaged in unfair labor practices. I conclude that, in
order to place the conduct of hospital officials in its proper
context, it is necessary to first examine the charges against the
Union.
A. The Unfair Labor Practice Charges Filed Against the Union
The General Counsel contends that the Union, through its
agent Trudi Mietz, engaged in a pattern of threats against bar-
gaining unit members. These threats are alleged to have com-
menced at the end of September 2002 and to have continued
through the middle of December of that year. (GC Exhs. 1(z)
and 2.) The threats were designed to deter two forms of con-
duct, participation in the decertification effort and the crossing
of any future picket line maintained by the Union. The most
serious of the threats included warnings and predictions that
employees would suffer physical injury, and damage to their
vehicles and property. Additional threats included fines im-
posed by the Union and loss of employment. It is also alleged
that more generalized threats were uttered, including a warning
that bargaining unit members would be “taken care of” if they
engaged in an effort to obtain decertification of if they crossed
a picket line. (GC Exhs. 1(z) and 2.) Finally, the General
Counsel asserts that Mietz’ statements made on behalf of the
Union violated Section 8(b)(1)(A) of the Act.
For reasons I have already described, I credit the testimony
of the bargaining unit members, including Fleming, Mendez,
Stemali, and Organ, regarding the threats made by Mietz. Their
testimony showed that, even earlier than alleged by the General
Counsel, Mietz began making threats against those who sup-
ported decertification. Threats were made against specific in-
dividuals and were made in the presence of many bargaining
unit members. Mietz’ intimidating statements formed a fre-
quent accompaniment to her daily visits to the smoke shack, an
employee break area. In addition, she made threats inside the
hospital building at bargaining unit members’ work areas.
Among the more severe threats were warnings of physical as-
sault against Mendez and against anyone who attempted to
cross a picket line, destruction of Organ’s property, damage to
the homes and vehicles of union opponents, and loss of Organ
and Stemali’s jobs. I find that there is overwhelming and per-
suasive evidence that both before and during the period of
months alleged by the General Counsel, Meitz engaged in a
pattern of behavior consisting of daily threats disseminated
widely among bargaining unit members.
In its answer to the complaint and posttrial brief, the Union
does not seriously dispute the fact that Mietz engaged in a pat-
tern of uttering threats against union opponents. Indeed, coun-
sel for the Union candidly concedes that,

[t]here is general agreement that Trudy Meitz was rude, im-
pertinent, insulting, impudent, brazen, ill-mannered, and even
sassy.

(U. Br. at p. 19.) While the extent of Mietz’ threats cannot be
seriously doubted, the Union raises a variety of other defenses
to the unfair labor practice charges. First and foremost, it as-
serts that Mietz was not “acting within the scope of her agency
and that such remarks were ultra vires of her agency.” (Un-
ion’s answer to complaint, GC Exh. 1(q).) It is further alleged
that the Union “never authorized or ratified such conduct.”
(GC Exh. 1(q).) Finally, the Union claims that Mietz’ state-
ments were merely “hyperbole” and that bargaining unit mem-
bers understood them to be such. (GC Exh. 1(q).) In particu-
lar, it is noted that the Union lacked the power to terminate any
employee and that Mietz’s warnings in this regard could not
have restrained or coerced anyone.
In order to find the Union legally responsible for Mietz’ mis-
conduct, I must determine whether she was its agent. In
Kitchen Fresh, Inc. v. NLRB, 716 F.2d 351, 355 (6th Cir. 1983),
the Court provided a comprehensive outline of the principles of
agency applicable under the Act. It noted that the existence of
an agency relationship must be analyzed as a question of fact
within the general framework of common law agency princi-
ples, including the doctrine of apparent authority. Agency is
established if the evidence shows that the union “instigated,
authorized, solicited, ratified, condoned or adopted” the state-
ments at issue. Kitchen Fresh, supra at 355, citing NLRB v.
Miramar of California, 601 F.2d 422, 425 (9th Cir. 1979). The
Court concluded its discussion by observing that,

[a]t the minimum, the party seeking to hold the union respon-
sible for an employee’s conduct based upon the theory of ap-
parent authority must show that the union cloaked the em-
ployee with sufficient authority to create a perception among
the rank-and-file that the employee acts on behalf of the union
. . . and that the union did not disavow or repudiate the em-
ployee’s statements or actions.

Kitchen Fresh, supra at 355. (Citations omitted.)
The Union’s chief steward for this bargaining unit, Brunette,
testified that Mietz held two positions within the organization.
She was a member of the bargaining committee and a steward.
Her role as a member of the bargaining committee is significant
since this is an elected position.40 The Board has observed that
the holding of such an elective office is “persuasive and sub-
stantial evidence” of agency. Penn Yan Express, 274 NLRB
449 (1985). By the same token, the Board has placed great
probative value on an alleged agent’s position as steward. In a
decision whose venerability is underscored by its outdated use

40 Ordinarily, the position of steward is also elective. It appears that
the Union had difficulty in recruiting sufficient stewards. As a result,
members who volunteered were accepted as stewards. In this manner,
Mietz volunteered and was appointed. Brunette testified that upon such
appointment, a form is sent to the Union’s headquarters in Detroit. All
of this appears consistent with the Union’s constitution and bylaws,
which do not require that stewards be elected. See: Constitution and
bylaws, art. XV, sec. 3 (GC Exh. 5). There is nothing to suggest that
Mietz’ appointment as a steward was in any way irregular.

BATTLE CREEK HEALTH SYSTEM 893
of gender-specific language, the Board noted that a steward is
“the first union representative the members look to, and the
man from whom they take their cues insofar as union policy is
concerned.” Teamsters Local 886, 229 NLRB 832 fn. 5 (1977),
enf. 586 F.2d 835 (3d Cir. 1978), quoting Carpenters Local
2067, 166 NLRB 532, 540 (1967).
Beyond any generalized presumption arising from the title of
steward, I note that the Union’s constitution and bylaws spe-
cifically address key aspects of the authority vested in its stew-
ards. Tellingly, the constitution states that, “[t]he steward-
worksite leader is the most important leader of the Union at the
worksite.” (Constitution and bylaws, art. XV, sec. 6, GC Exh.
5.) Among the enumerated duties of stewards is the necessity
to keep members informed about union activities and plans. Of
particular relevance here, stewards are charged with the respon-
sibility to:

educate and inform employees who are working at their
worksite and covered by the collective bargaining agreement
regarding the advantages of becoming and remaining mem-
bers of the Union.

(Constitution and bylaws, art. XV, sec. 6, GC Exh. 5.) I find
that the Union’s constitution and bylaws specifically authorized
Mietz to represent the Union in its effort to defeat the decertifi-
cation effort by persuading bargaining unit members to con-
tinue to support their current collective-bargaining representa-
tive. Of course, I recognize that, while the Union vested Mietz
with actual authority to represent it in the campaign against
decertification, there was no evidence that higher union offi-
cials directed her to employ threats in this cause. Nevertheless,
principles of agency do not require this quantum of evidence.
As another administrative law judge noted in a case affirmed by
the Board,

the fact that the Respondents did not specifically authorize the
issuance of threats does not preclude the existence of Respon-
dent’s responsibility. “[R]esponsibility attaches if, applying
the ‘ordinary law of agency,’ it is made to appear the union
agent was acting in his capacity as such.”

Boilermakers Local 5, 249 NLRB 840, 848 (1980), vacated
without opinion 690 F.2d 1060 (D.C. Cir. 1982). (Internal
citations omitted.) See also: Teamsters Local 886, supra at
832–833 (“It is enough if the principal actually empowered the
agent to represent him in the general area within which the
agent acted.”) When she uttered her threats, Mietz was acting
in her capacity as the worksite leader responsible for persuad-
ing bargaining unit members as to the advantages of remaining
members of the Union. Her threats are properly held against
the Union by application of principles of actual authority.
In addition to possessing actual authority, Mietz was also
clothed with apparent authority. Such apparent authority arises
from the fact that the Union knew of Mietz’ pattern of threats
and failed to take meaningful action to either disavow her con-
duct or prevent its continuation. The evidence demonstrates
that the Union became aware of Mietz’ threats in a number of
ways. For example, on October 13, Fleming presented Bru-
nette with her resignation from the bargaining committee. She
testified credibly that she told Brunette about Mietz’ threats.
He responded that he did not believe her. She suggested that he
visit the smoke shack himself to investigate. There is no evi-
dence to indicate that he did so.
The Union was also placed on notice through the filing of the
Hospital’s unfair labor practice charges. Murdaugh testified
that he showed these charges to Brunette who told him they
were “a bunch of garbage.” (Tr. 392.) Murdaugh reported that
he asked several other people about the charges and they told
him they did not know anything. He also asked Mietz, who
denied making any threats. Nevertheless, he testified that he
did recall that during the November 19 union meeting, Mendez
reported being the victim of threats. He also testified that a
bargaining unit member, Gary Crow, told him that someone
had called his spouse and threatened her.
Union President Hampton was also aware of the allegations
contained in the unfair labor practice charges. He discussed the
charges at a union meeting and made light of them. Despite
this, Mendez took this occasion to tell Hampton that she was
among those who had been threatened. Hampton expressed no
concern and took no investigatory action.
Steward Tyndal testified that Organ complained to her that
Mietz was issuing threats against her. Mietz herself told Tyn-
dal that people were saying that she was threatening to vandal-
ize cars. Tyndal told Mietz that “if it was actually going on,
that she needed to back off.” In response, Tyndal reported that
Mietz “really didn’t say much.” (Tr. 938.) Despite this, Tyndal
made no reports to her superiors and took no additional action.
I conclude that numerous union officials were aware of the
serious allegations against Mietz. They received troubling
information from a variety of sources. They made no signifi-
cant effort to investigate these reports, nor did they take the
opportunity to communicate with bargaining unit members
regarding the allegations. In a classic example of a missed
opportunity to do so, the Union’s president was present during
a meeting with bargaining unit members when Mendez raised
the issue. Neither he nor any of the officials present made any
effort to learn more or to express disapproval of conduct de-
signed to coerce bargaining unit members. Furthermore, this
apparent acceptance of Mietz’ misconduct was mirrored in the
Union’s response to misconduct by others. The Union’s offi-
cials remained similarly silent in the face of Reed’s threats to a
bargaining unit member made in their presence during a union
meeting. Murdaugh’s attempted assault on the Hospital’s law-
yer, also made in the presence of union officials, similarly
failed to elicit any condemnation. These repeated failures to
express disapproval of misconduct sent an implicit yet powerful
message to bargaining unit members that the Union condoned
and ratified the misconduct. As a result, the Union’s behavior
manifested to bargaining unit members that Mietz possessed
apparent authority to engage in her pattern of threats against
union opponents. As the Third Circuit has observed while af-
firming the Board’s finding of unfair labor practices,

[w]hen union officers knowingly stand passive in the face of
flagrant misconduct by a body of their members . . . without
taking affirmative action to repudiate that misconduct, and
when, as here, that passivity amounts to silent approbation,
the Union may not escape liability by claiming the miscon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 894
duct was that of its individual members and not of the Union
itself.

NLRB v. Bulletin Co., 443 F.2d 863, 867 (3d Cir. 1971), cert.
denied 404 U.S. 1018 (1972). For these reasons, I conclude
that Mietz possessed both actual and apparent authority as an
agent of the Union when she issued her threats against bargain-
ing unit members.
The Union also defends itself by asserting that bargaining
unit members understood that Mietz’s threats were simply “hy-
perbole” and that she lacked the means to carry out those
threats. Counsel for the Union contends that “Trudy Mietz’s
continuous stream of banter flowed off employees like water
from a duck’s back.” (U. Br. at 13.) The Board has held that
the test to be applied is “whether a remark can reasonably be
interpreted by an employee as a threat,” regardless of the actual
effect upon the listener. Smithers Tire, 308 NLRB 72 (1992). I
have no difficulty in concluding that threats to “slap the shit”
out of the person holding the decertification petition and to
“slap that fat bitch from dietary that has the petition” were nei-
ther hyperbole nor banter. (Tr. 257, 641.) They were quite
clearly threats of bodily harm directed at persons opposed to
the Union. By the same token, statements expressing an inten-
tion to throw bottles and cans at employees crossing a picket
line or to vandalize cars41 or homes are readily understood as
threats. In addition, warnings of economic penalties such as
fines or loss of employment were also coercive statements.42
More general comments about making union opponents’ lives
“hell” and making life “miserable” for union opponents were
also threats, given the context of their utterance as part of a
stream of more specific predictions of harm.43 (Tr. 641, 637.)
Counsel for the Union suggests that the threats were not
taken seriously since no written reports were made to manage-
ment officials. I have already noted that the test for evaluation
of the statements is objective. Thus, the effect upon a particular
listener is not dispositive.44 In this regard, I also note that it is
a common experience of those associated with the justice sys-
tem that victims of threats often fail to report them. Such fail-
ure to make reports is a foreseeable and frequently intentional

41 In Smithers, supra at 73, the Board noted that threats against em-
ployees’ automobiles can have “particular significance” given their use
as transportation to and from the workplace.
42 While Organ did testify that she did not credit Mietz’ threat to
cause her to lose her job, Stemali took the same threat seriously. Mietz
was aware that Stemali was a recently hired probationary employee and
I find that the threat to cause her to lose her job was coercive in these
particular circumstances. See: Lyon’s Restaurants, 234 NLRB 178,
179 (1978).
43 For example, see: Double D Construction Group, 339 NLRB 303,
303 (2003), where, in the context of other coercive misconduct, the
statement, “Remember your bills,” was found to be an unlawful threat.
The Board held that “[t]he test of whether a statement is unlawful is
whether the words could reasonably be construed as coercive, whether
or not that is the only reasonable construction.”
44 To the extent that the subjective effect on listeners is probative, I
note that I was struck by the visible and impressive emotional impact of
the threats as described by several witnesses during their testimony.
Organ, Stemali, Mendez, and Fleming clearly conveyed the significant
subjective impact of these threats through their demeanor and presenta-
tion while describing these events in their testimony.
byproduct of the intended intimidation. In any event, many of
Mietz’ threats were, in fact, reported. Management officials
testified regarding a stream of such reports. For example, Fear
testified that he received such complaints “almost on a daily
basis.” (Tr. 272.) The evidence demonstrates that Mietz’
statements regarding her intent to assault union opponents,
destroy their property, subject them to economic harm, and
otherwise make their lives miserable were threats intended to
restrain and coerce bargaining unit members in the exercise of
their rights under Section 7 of the Act. I conclude that Mietz’
statements, made as an agent of the Union, violated Section
8(b)(1)(A) of the Act.
B. The Unfair Labor Practice Charges Filed
Against the Hospital
The General Counsel alleges that the Hospital violated the
Act in four instances. I find that three of these asserted viola-
tions are directly connected to the Union’s unlawful conduct
and must be assessed in this context. The remaining allegation
bears little or no such connection. I will analyze this contention
first.
On September 17, 2002, Director of Food Service Fear con-
vened a meeting for the ostensible purpose of counseling
Kinney regarding her failures to file timely incident reports.
Mietz was invited to attend, supposedly to provide union repre-
sentation to Kinney. In fact, I conclude that Fear arranged Mi-
etz’ presence, in part, to create an opportunity to discuss his
displeasure that she had spoken to other employees about his
criticism of Kinney’s request to file an incident report several
days after she claimed to have suffered a work-related injury.
During this meeting, Fear chastised Mietz, calling her conduct
“very unprofessional.” (Tr. 108.) He informed her that her
discussion of Kinney’s problems in filing an incident report
violated the employer’s confidentiality policies. In speaking
about this to Mietz, he articulated a policy that would require
her to report to him before speaking about such matters to the
public.45
The General Counsel contends that Fear’s instructions to
Mietz interfered with the exercise of rights protected by Section
7 of the Act. I agree. Mietz’ conversation that Fear claimed
was improper took place in the employee break area among
employees who were on break. It involved issues directly re-
lated to the terms and conditions of their employment. At least
two important terms and conditions of employment were in-
volved. First, Mietz raised concern that management was pre-
venting Kinney from obtaining medical evaluation and treat-
ment for an alleged work-related injury by denying her the
opportunity to file an incident report. Second, her conversation
involved discussion of the parameters of an important work
rule, the requirement that employees document unusual occur-
rences by filing timely incident reports. I find that both aspects
of Mietz’s conversation involved terms and conditions of em-
ployment. In this connection, I note that the Board has not
taken a narrow view that discussion of terms and conditions of
45 It is apparent from the context that when Fear told Mietz not to
speak to the “public,” he meant that she should not speak to fellow
bargaining unit members. (Tr. 242.)

BATTLE CREEK HEALTH SYSTEM 895
employment is limited to such obvious items as wages and
salaries. For example, in Lockheed Martin Astronautics, 330
NLRB 422 (2000), it held that an employer’s warning that em-
ployees could not discuss the impact of a coworker’s disability
on their own working conditions was unlawful as a prohibition
of protected activity.
I have also considered the relatively informal nature of
Fear’s admonition to Mietz. His instructions were not reduced
to writing and were unaccompanied by any disciplinary action.
Nevertheless, the Board has not hesitated to find violations of
the Act in similar circumstances. In affirming the Board’s find-
ing of a violation where an employer verbally instructed em-
ployees not to discuss wages, the Sixth Circuit noted that the
fact that the prohibition was “unwritten and routinely unen-
forced” did not alter the result. Indeed, the Court observed that
“verbal warnings from a supervisor, who has the authority to
discipline and to discharge, may be perceived by an employee
as particularly coercive.” NLRB v. Main Street Terrace Care
Center, 218 F.3d 531, 538, 539 (6th Cir. 2000). In mounting an
otherwise vigorous defense of Fear’s conduct, counsel for the
Hospital candidly conceded that “John Fear may have made an
overbroad comment to Trudi Mietz about her smoke shack
discussion with other employees.” (Emp. Br. at 81.) This is
precisely the problem. Fear’s instructions to Mietz regarding
employee discussions was so overbroad that it interfered with
the employees’ Section 7 rights. As a consequence, I find that
the Hospital violated Section 8(a)(1) of the Act.
The General Counsel contends that the Hospital also violated
Section 8(a)(1) of the Act by issuing a written communication
to employees on September 24, 2002. That document was
phrased as a series of questions and answers about a wide vari-
ety of labor relations topics. Among the questions was one
asking what would happen if employees participating in decer-
tification activities “are harassed by Union members?” (Em-
phasis in the original.) The complete response was that em-
ployees should “[r]eport it immediately to Human Resources
for appropriate action.” (GC Exh. 4, p. 3.)
In defending this language, counsel for the Hospital notes
that consideration of the context reveals no union animus. He
further asserts that the Hospital’s sole purpose in making these
statements to bargaining unit members was to protect them
from coercion by others. I am entirely sympathetic to these
arguments. The tone of the complete document confirms coun-
sel’s assessment that it is free of expressions of animus. In fact,
it is generally fair minded, promising to negotiate with the Un-
ion in good faith, informing employees that the Union has the
right to engage in picketing, and warning that decertification
activities must not be undertaken on worktime. I also agree
with counsel for the Hospital that it is apparent from the context
that the purpose of the discussion of harassment was to offer
assistance to employees who were encountering coercive con-
duct by union agents and supporters. I note that this memoran-
dum was written during the period when management was re-
ceiving numerous reports of threats being made against propo-
nents of decertification.
Having agreed with counsel for the Hospital about these at-
tendant circumstances and motivations, I am, nevertheless,
constrained to find a violation of the Act. The Board’s prece-
dents establish a clear and easily followed guidepost for such
employer communications. In Automotive Plastic Technolo-
gies, 313 NLRB 462 (1993), it found a violation of Section
8(a)(1) where the employer told employees to inform manage-
ment if they were being “bothered” or “harassed” by union
supporters. The Board held that this broad language would
suggest to employees that they could report “lawful attempts by
union supporters to persuade employees to sign union cards.”
313 NLRB at 462. See also: Greenfield Die & Mfg. Corp., 327
NLRB 237, 238 (1998). In fact, the case cited by the Hospital
in support of its position, S.E. Nichols, Inc., 284 NLRB 556
(1987), illustrates the Board’s clear and easily understood dis-
tinctions regarding permissible employer language. In that
case, the General Counsel objected to language in the em-
ployer’s handbook that told employees to report to management
if “you are threatened.” The General Counsel also objected to
verbal statements from the employer, telling employees to re-
port “harassment” to management officials. The Board ap-
proved the language of the handbook, noting that it was not
reasonably subject to an interpretation that would violate the
Act. By contrast, it held that instructions to report harassment
were “vague and ambiguous in the context of union organizing
and reasonably could encompass perfectly lawful union efforts
to persuade or even merely to inform employees about the as-
serted benefits of unionization.” 284 NLRB at 557.
Although I find that the Hospital’s purpose and motivation in
issuing its instructions regarding harassment were not im-
proper, it’s choice of language contravened the clear require-
ments enunciated by the Board over a period of many years.
The Hospital’s failure to conform to this easily understood legal
standard resulted in a violation of Section 8(a)(1) of the Act.
The General Counsel’s two remaining allegations involve
events that took place during a meeting on January 17, 2003.
The purpose of the meeting was to address allegations that
employee Reed had engaged in improper conduct. It is alleged
that during this meeting supervisors coercively interrogated
Reed46 and discriminatorily disciplined him for engaging in
union activities.
Turning first to the alleged coercive interrogation aspect, all
parties agree that the standard to be applied is set forth in the
leading case, Rossmore House, 269 NLRB 1176 (1984), affd.
760 F.2d 1006 (9th Cir. 1985). It must be recognized that alle-
gations of improper interrogation typically arise when man-
agement officials question employees regarding their union
sympathies, the union sympathies of coworkers, or the timing,
location, attendance, and contents of union meetings. This
case, arising during the course of an investigation of complaints
of threats reported by three coworkers, poses a significantly
different context. Fortunately, the Board in Rossmore took

46 The General Counsel’s complaint refers to improper interrogation
of “employees.” (GC Exh. 1(z).) Use of the plural refers to Reed and
Chief Steward Brunette who was present as Reed’s union representa-
tive. Brunette had not attended the union meeting at which Reed was
alleged to have misbehaved. He had no personal knowledge of these
events and was not asked about them. I assume that his inclusion in the
complaint is based on the theory that he would have witnessed and been
affected by any management coercion of Reed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 896
pains to emphasize the breadth of its “totality of circumstances”
standard. It observed:

Experience convinces us that there are myriad situations in
which interrogations may arise. Our duty is to determine in
each case, whether, under the dictates of Sec. 8(a)(1), such in-
terrogations violate the Act. Some factors which may be con-
sidered in analyzing alleged interrogations are: (1) the back-
ground; (2) the nature of the information sought; (3) the iden-
tity of the questioner; and (4) the place and method of interro-
gation. . . .These and other relevant factors are not to be me-
chanically applied in each case. Rather, they represent some
areas of inquiry that may be considered in applying the. . . test
of whether under all the circumstances the interrogation tends
to restrain, coerce, or interfere with rights guaranteed under
the Act.

269 NLRB at fn. 20. (Citations omitted.) With this broad
mandate, I will not view the questioning of Reed in isolation
from the turbulent events taking place in this worksite.
Consideration of the background must begin with recogni-
tion that the Hospital maintained a preexisting written policy
regarding violence. This policy was promulgated in August
2001. It defined violence in the workplace to include threats.
In addition, it defined workplace violence in a manner that
included threats “that occur outside of the workplace, but may
impact the work environment at BCHS [Battle Creek Health
System].” (GC Exh. 3, p. 2.) This document enunciates zero
tolerance for misconduct, including even such misbehavior as
“joking” about violence. Employees are instructed not to ig-
nore threats or harassment and are told to report any potentially
dangerous situation. Indeed, failure to do so could result in
disciplinary action. When a report is made, the policy directs
that an investigation be conducted. This is to include inter-
views with the complainant, any witnesses, and the alleged
violator. If a violation is established, disciplinary sanctions can
include termination of employment. (GC Exh. 3, p. 3.)
It must next be recalled that the work environment was en-
meshed in a contentious decertification campaign and difficult
collective-bargaining negotiations. These had been marked by
a pattern of threats of violence and by an actual attempted as-
sault upon the Hospital’s attorney during a bargaining session.
In this polluted atmosphere, it was reasonable and necessary for
the Hospital’s management to maintain vigilance regarding any
potential for further workplace-related violence.
With this background, it is appropriate to consider the events
at issue. There is no dispute that a public argument between
Reed and Fleming took place during a union meeting on De-
cember 17, 2002.47 On the following day, Ramsey provided

47 I have previously explained my reasons for finding that the testi-
mony of Fleming, Ramsay, and Mendez regarding these events was
credible and that Reed’s account and the accounts of others that sup-
ported his version were not. I note that for purposes of assessing the
Hospital’s conduct in questioning Reed regarding these events, resolu-
tion of the conflicting stories is immaterial. It is not contended that the
Hospital’s misconduct consisted of investigating or disciplining an
innocent employee. As I understand the General Counsel’s theory, the
Hospital committed an unfair labor practice by coercively interrogating
Reed irrespective of whether he threatened Fleming or not. Counsel for
management with a written statement alleging that Fleming had
been threatened. Eight days later, Fleming herself filed an
incident report claiming that Reed had repeatedly told her that
he was going to “kick your fucking ass” and made similar
threats against her spouse. (Emp. Exh. 8, pp. 4 and 5.) Her
account went on to describe a potentially explosive encounter
between Reed and Mendez in the parking lot, an incident that
portended violence had it not been broken up by two other em-
ployees. Her report concluded by expressing that she was
“afraid for me & Angie [Mendez] and family, that he [Reed]
was going to follow me home.” (Emp. Exh. 8, p. 7.) In addi-
tion, Mendez informed Fear about this alleged threatening be-
havior by Reed.
Both the General Counsel and the Union are critical of the
Hospital’s procedural response to these reports. In particular,
they object to the failure to interview Fleming and the signifi-
cant delay between receipt of the reports and the scheduling of
the meeting with Reed. Employee Labor Relations Specialist
Thom testified that she received the incident report regarding
Reed on December 27. Thom contended that she did not inter-
view Fleming since Fleming’s written account was sufficiently
detailed to obviate the need for further questioning. While I
agree that it would have been wiser to comply with the written
policy and conduct such an interview, I accept Thom’s explana-
tion as reasonable, at least to the extent that I decline to infer
any animus from the failure to interview Fleming. In reaching
this conclusion, I have considered the fact that Fleming’s ac-
count was not only detailed, but was supported by accounts
from two other employees.48
Thom testified that there were a variety of reasons for the de-
lay in scheduling a meeting with Reed. She conceded that she
did not examine the incident report immediately, having just
returned from the Christmas holidays. Further delay was occa-
sioned by her need to discuss this admittedly thorny issue with
her supervisors. Finally, she reported that it was difficult to
schedule the meeting since Reed worked on the third shift. I
credit Thom’s explanations. This is not to suggest that I ap-
prove of the delay in resolving what appears to me to have been
an urgent issue. Nevertheless, there is nothing in the record to
suggest that the delay was motivated by any improper purpose.
Nor do I find any ground to infer from the delay that the Hospi-
tal was not serious in enforcing the workplace violence policy
and was simply using that policy as a pretext for a coercive
interrogation of Reed. My conclusions in this regard are un-
dergirded by examination of what actually occurred during this
meeting.

the General Counsel asserts that the reason for the interrogation was “to
learn what happened at the Union meeting and to let Reed know that
his Union activities were subject to Employer scrutiny.” (GC Br. at
13.)
48 I must also observe that the General Counsel is attempting to have
it both ways. Both Reed and Fleming were bargaining unit members
who attended the union meeting in question. The General Counsel
contends that management’s decision to have an investigatory meeting
with Reed to inquire as to the events at issue was an unfair labor prac-
tice, while the decision to forego an investigatory meeting for the same
purpose with Fleming was also an impropriety.

BATTLE CREEK HEALTH SYSTEM 897
Thom, along with Reed’s two supervisors, Keith Long and
Paul Ratliff, attended the January 17 meeting. In addition to
Reed, Chief Steward Brunette was present. Reed had requested
a union representative and Long arranged for Brunette to ap-
pear in this capacity. Thom asked Reed to provide his side of
what had happened between himself and Fleming. She ex-
plained the workplace violence policy to Reed. Reed displayed
a paper that he claimed contained a list of employees who
would support his version of events. When Thom requested the
list, Reed refused to provide it. Reed then subjected the work-
place violence policy to scorn, observing that,

So, if she [Fleming] calls me an asshole, I am supposed to fol-
low the [workplace violence] policy, before I snap her little
neck?

(Tr. 811.) Significantly, Reed testified that he was not disci-
plined as a result of this meeting. Counsel for the Hospital
asked Reed the following questions regarding the content of the
discussions:

COUNSEL: And did anyone at that meeting ask you
about the names of people that attended the Union meet-
ing?
REED: They didn’t ask me for names, no.
COUNSEL: Okay. Did anyone ask you what went on at
that Union meeting, other than your confrontation, if I
could just put it in those terms, with the three females
[Fleming, Ramsey, and Mendez]?
REED: No, they did not.

(Tr. 83.) From this, I conclude that the extent of the question-
ing of Reed was carefully tailored to meet the legitimate objec-
tive of conducting an investigation into allegations from three
employees that a fourth employee had violated the workplace
violence policy.
Having examined the background of the interrogation and
the nature of the information sought, I will now examine the
remaining factors specifically mentioned in Rossmore. These
factors address the identity of the questioner and the place and
method of the questioning. Once again, I conclude that the
Hospital’s conduct in these regards supports the legality of the
interrogation. The questioner was the personnel official re-
sponse for investigating this alleged violation of the workplace
violence policy. It is true that Reed’s two supervisors also
attended. I find that their presence was not for the coercive
purpose of intimidating Reed. Instead, their attendance re-
flected the Hospital’s concern regarding the serious nature of
the allegations and the potential for a future violent interaction
between Reed and Fleming in the workplace.49 In my view, the
presence of Reed’s supervisors was appropriately directed at
the goal of impressing him with the need to conform his con-
duct to the requirements of the workplace violence policy. The
importance of such a strong and united presentation by man-
agement was underscored by Reed’s dismissive attitude toward

49 Thom testified that she recognized that Fleming and Reed did not
work in the same department. However, she feared that they could
have a chance encounter in the workplace, for example, in the Hospi-
tal’s dining room.
that policy as expressed during the meeting. Finally, I note that
the method of interrogation was entirely consistent with a de-
sire to enforce the workplace violence policy and inconsistent
with a design to intimidate union supporters. Reed was given
advance notice of the timing and purpose of the meeting. The
Union’s chief steward attended the meeting as Reed’s union
representative. Reed was given an opportunity to present his
side of the story. Even when Reed became belligerent, manag-
ers uttered no threats and imposed no sanctions. In fact, the
delay in scheduling the meeting supports the lack of any intent
to coerce. The Hospital became aware of the allegations
against Reed before the date of the decertification election. It
conducted the meeting almost one month after that election.
Surely, if the Hospital wished to coerce Reed into submission it
would have desired to do so before he had the opportunity to
vote and to discuss his opinions with other prospective voters.
In a recent case, the Board has expressed understanding of
the need for employers to have the latitude to conduct investi-
gations of alleged employee misconduct toward coworkers in
order to preclude the creation of a hostile work environment.
In PPG Industries, 337 NLRB 1247 (2002), a male union sup-
porter addressed a female coworker as to her supposedly inade-
quate pay. He said, “They’re f—ing you. They’re screwing
you. You need to sign one of my [union authorization] cards.”
Ibid. The female employee complained to management. This
complaint was investigated and minor discipline was imposed.
The Board affirmed the administrative law judge’s finding of
no illegality. The judge observed that,

Clearly, the employer otherwise was obligated to seriously
consider an employee’s complaint regarding a matter related
to sexual harassment and it acted in a nondiscriminatory man-
ner with a reasonable investigation, evidence of a supporting
witness, and in accordance with its handbook and regular dis-
ciplinary policies.

Id at 1248. Similarly, I conclude that the Hospital’s question-
ing of Reed was for a legitimate purpose, was not motivated by
animus, was done in substantial compliance with pre-existing
policy, and was carefully tailored to avoid invasion of Section 7
rights or coercion of a union supporter. In reaching this con-
clusion, I grasp the nature of the General Counsel’s concern
that union meetings be clothed in the Act’s protective embrace.
However, I am convinced that the unique circumstances of this
case, involving a history of threats and violence and multiple
complaints of threats by Reed, justified the carefully limited
actions undertaken by management in this instance.
Having concluded that management behaved lawfully in its
interrogation of Reed, it largely follows that its decision to
counsel Reed about the workplace violence policy was also
lawful. In considering this additional allegation, I have applied
the standard set forth in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F. 2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1983). Under Wright Line, in
order to meet its initial burden of showing unlawful discrimina-
tion, the General Counsel must demonstrate by preponderance
of the evidence that Reed engaged in protected activity, that the
Hospital knew he had done so, and that the Hospital took an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 898
adverse employment action against Reed. Finally, “the General
Counsel must establish a motivational link, or nexus, between
[Reed’s] protected activity and the adverse employment ac-
tion.” American Gardens Management Co., 338 NLRB No. 76,
slip op. at 2.
It is evident that Reed engaged in the protected activity of at-
tending and participating in the union meeting on December 17.
It is equally apparent that the Hospital knew of Reed’s atten-
dance and participation. Indeed, Fleming’s detailed incident
report informed management that Reed spoke out at the meet-
ing in favor of violence against the employer. According to
Fleming’s report, in discussing the Hospital’s negotiating team,
Reed opined that “[w]e need to kick all their fucking asses.”
(GC Exh. 8, p. 3.)
The third prong of the General Counsel’s burden poses a
more difficult question. Reed and Brunette both testified that
Reed was not given any formal disciplinary sanction at the
January 17 meeting or thereafter. In today’s work environment,
the absence of formal sanction is not completely dispositive.
As illustrated by the Hospital in this case, employers display a
fondness for euphemisms50 designed to sugarcoat a sometimes
bitter pill. In this instance, the Hospital characterizes its activi-
ties at the January 17 meeting as an investigation into alleged
violation of the workplace violence policy and a “coaching” of
Reed regarding the requirements of the policy. As befits a
euphemism, the precise impact of such coaching is somewhat
unclear. Generally speaking, the Hospital’s managers took the
position that coaching did not rise to the level of an adverse
disciplinary action. Nevertheless, a high management official,
Director of Patient Care DiBiaggio, testified that it is typical for
management to make “personal notes” regarding a coaching
session. (Tr. 1025.) These notes do not become part of the
employee’s personnel file. However, the notes may be used in
the future if need should arise. Furthermore, DiBiaggio agreed
with counsel for the Union that “coaching is a preliminary to
what may be a disciplinary procedure.” (Tr. 1028.) She also
characterized coaching as,

[e]ssentially it is a warning that if, indeed, you know that you
have done these [inappropriate] behaviors we are letting you
know that this type of behavior per policy is inappropriate in
the organization. Do you understand that, and if you do un-
derstand that, please acknowledge.

(Tr. 1041.) Adding to the uncertainty about the meaning and
import of coaching, Fear testified that the Hospital has a pre-
printed coaching form that can be used to document a coaching
session. He also testified that a coaching session can start the
process that ultimately results in discipline.
By its choice of language and by the lack of a precise under-
standing of the contours of the concept of coaching among its
managers, the Hospital has created an ambiguity. I cannot say
with assurance that the coaching session with Reed could not
be used against him in the future. To the extent that it could
constitute a blot on his employment record, it bears characteris-
tics of an adverse action. On balance, I conclude that the more

50 In another example, the Hospital refers to its employees as “Asso-
ciates.”
prudent course is to find that the General Counsel has met its
burden of establishing that the coaching session bore sufficient
resemblance to a disciplinary warning to merit consideration as
an adverse employment action.51
For reasons already enunciated in my discussion of the al-
leged coercive interrogation of Reed, I conclude that the Gen-
eral Counsel has failed to meet its burden of establishing a
nexus between Reed’s protected activity and the employer’s
adverse coaching action. I find that the Hospital coached Reed
due to its genuine belief that this was required in the impartial
implementation of its preexisting workplace violence policy.
There is simply no evidence that management showed the
slightest concern or irritation that Reed attended the union
meeting, spoke out against management at that meeting, or
otherwise participated in activities and conversations as a
strong union supporter. The timing, procedural safeguards, and
carefully limited nature of the coaching session all support this
conclusion. Indeed, given Reed’s less than satisfactory expres-
sion of his comprehension and acquiescence in the workplace
violence policy, the management response can only be de-
scribed as mild.52
Although I have found that the General Counsel has failed to
show a nexus between Reed’s union activities and sympathies
and his coaching during the January 17 meeting, in the interest
of decisional completeness, I will address the remaining aspect
of the Wright Line standard. If one assumes, arguendo, that the
General Counsel’s initial burden has been met, the evidence
directs a conclusion that the Hospital has demonstrated that it
would have taken the same action even in the absence of
Reed’s protected activities. In evaluating this question, the
starting point must be the Hospital’s preexisting workplace
violence policy. That published policy defines workplace vio-
lence to include threats made outside the workplace. It directs
that investigation of a reported violation include an investiga-
tory interview with the alleged perpetrator. The policy further
provides that disciplinary sanctions can be imposed for viola-
tion of the policy. As a result, management’s actions regarding
Reed conformed to its previously promulgated procedures.
In addition to conforming to the theoretical procedures of the
written policy, I find that management’s actions did not deviate
significantly from past practices. Chief Steward Brunette was
asked what the Hospital should do if allegations were made that
an employee had engaged in violent conduct. He responded
that, “[t]hey would notify me and have an investigation just like
we did in the Dan Steward and the Mose case.” (Tr. 336.) This
closely tracks the Hospital’s conduct upon receiving the allega-
tions against Reed. The only evidence indicating a departure
from this past practice of conducting investigations of allega-
51 For another view of the perplexities associated with evaluation of
an employer’s euphemistic terminology, see the Board’s opinion and
Member Devaney’s dissent in Lancaster Fairfield Community Hospital,
311 NLRB 401 (1993). In that case, the employer, another hospital,
issued something called a “conference report” to employees found to
have potential performance or behavior problems.
52 One must wonder about the effectiveness of what was done. Reed
testified that, although he was given a copy of the workplace violence
policy at the meeting, he has never bothered to read it since he didn’t
“need this procedure to tell me how to act.” (Tr. 74.)

BATTLE CREEK HEALTH SYSTEM 899
tions of violence concerns similar allegations made against
Mietz. In this instance, the Hospital did not follow the re-
quirements of the workplace violence policy. The official re-
sponsible for conducting these investigations, Thom, testified
regarding the failure to conduct such an investigation of Mietz.
She noted that the proper response to reports of Mietz’ miscon-
duct was discussed with the Hospital’s attorneys. She went on
to explain that,

[t]he reason that we didn’t investigate Trudy [sic] Mietz’s
threats was because legal counsel’s advice was not to at that
point. We had already received [i.e. been charged with] a[n]
unfair labor practice regarding Trudy [sic].

(Tr. 874.) As a result, Thom testified that the workplace vio-
lence policy had been “suspended” so far as Mietz was con-
cerned. (Tr. 874.) I credit Thom’s testimony that the failure to
implement the policy as to Mietz was a solitary exception to the
rule.53 Implementation of the policy as to Reed was consistent
with prior practice.54
In attacking the Hospital’s treatment of Reed, I find that the
General Counsel and the Union fail to accord sufficient weight
to the importance of the workplace violence policy. In fact, the
Hospital and the Union had enshrined the goals of that policy in
their collective-bargaining agreement. In that agreement, the
Hospital promised that:

[t]he Employer will use its best efforts to provide a safe and
healthful workplace.

(Collective-bargaining agreement, sec. 33.02, GC Exh. 7, p.
35.) The carefully limited actions taken with regard to the alle-
gations against Reed were consistent with established policy
and past practice. I find that the Hospital would have taken
(and did, in fact, take) these steps regardless of Reed’s union
sympathies and activities.
I conclude that the General Counsel has established that the
Hospital violated the Act by enunciating an overbroad rule
prohibiting employee discussions of terms and conditions of
employment and by directing employees to report harassment
by union supporters. I do not find that the Hospital engaged in
any unlawful conduct by interrogating and coaching Reed in
furtherance of its policy designed to prevent workplace vio-
lence.
IV. THE OBJECTIONS TO THE DECERTIFICATION ELECTION
The Hospital asserts that the Union fatally compromised the
integrity of the decertification election by engaging in the con-
duct that resulted in the filing of the General Counsel’s unfair

53 Thom’s contentions are corroborated by testimony from DiBiag-
gio that Mietz was coached on several occasions regarding the com-
plaints against her. These coaching sessions took place prior to the
filing of the unfair labor practice charges. This supports a conclusion
that the subsequent suspension of normal procedures relating to Mietz
resulted from fear of further entanglement with the Board’s processes.
54 In reaching this conclusion, I do not mean to suggest that I con-
done the Hospital’s failure to follow its policy regarding Mietz. While
I understand that the employer wished to avoid additional unfair labor
practice charges during the decertification campaign, its tactical choice
was inconsistent with the worthy principles enunciated in the work-
place violence policy.
labor practice charge55 and by other improper behavior. I have
already concluded that the General Counsel has established that
the Union, through its agent Mietz, unlawfully restrained and
coerced bargaining unit members. The misconduct occurred
before and during the critical period under consideration.56
This finding of unlawful conduct directly attributable to the
Union carries considerable weight in assessing the Hospital’s
objections to the election. In Clark Equipment Co., 278 NLRB
498, 505 (1986), it was noted that, “it is the Board’s usual pol-
icy to direct a new election whenever an unfair labor practice
occurs during the critical period” prior to an election. The only
exception to this policy is for cases in which “it is virtually
impossible to conclude that the misconduct could have affected
the results of the election.” The evidence of the Union’s mis-
conduct relied upon to establish the unfair labor practice find-
ing is too serious to permit any determination that it could not
have impacted the results of the election. Far from such a con-
clusion being “virtually impossible,” I find that the unlawful
conduct manifestly produced a deleterious effect on the fairness
of the election.
I recognize that two former Board Members recently criti-
cized the standard set forth in Clark. While affirming its con-
tinued existence, they proposed an alternate approach. Safe-
way, Inc., 338 NLRB 525 fn. 3 (2002).57 Therefore, I have also
considered the evidence in light of the Board’s general standard
for assessment of conduct by a union that is alleged to have
interfered with employees’ free choice in an election. In Avis
Rent-A-Car System, 280 NLRB 580 (1986), the Board listed
relevant factors, including the number of incidents of miscon-
duct, their severity, the number of victims of the misconduct,
the timing of the events, the extent of dissemination of informa-
tion about the misconduct, and its impact on employees. Mi-
etz’ threats were very frequent and were widely disseminated.
They ranged in severity from unpleasant to highly disturbing,
including threats of bodily harm. The threats were persistent
and produced clear impact on bargaining unit members. In my
view, the evidence establishes that the Union’s unfair labor
practices reasonably tended to interfere with the bargaining unit
members’ ability to make a free and uncoerced choice in the
decertification election.
Having reached this result, consideration of the Hospital’s
remaining allegations of objectionable conduct is not strictly
necessary. Given the importance of these allegations to the
55 I am referring to the Hospital’s Objections 1 and 2. All of the al-
legations contained in these two objections have been proven, with the
exception of the contention that “the Union and its agents stole and
destroyed a decertification petition.” (GC Exh. 1(r).) While the cir-
cumstances surrounding the disappearance of this petition are certainly
suspicious, the evidence is insufficient to support the Hospital’s accusa-
tion.
56 I have considered conduct in the weeks prior to the critical period
since it was part of the ongoing effort to intimidate union opponents
and “adds meaning and dimension to related postpetition conduct.”
Dresser Industries, 242 NLRB 74 (1979). See also: Buedel Food
Products Co., 300 NLRB 638, fn. 2 (1990).
57 For an indication that this issue continues to be a subject of dis-
cussion by current Board Members, see Metaldyne Corp., 339 NLRB
352, fn. 4 (2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 900
parties and my recommendation that a new election be held, I
will assess the additional objections.
By its third objection, the Hospital contends that Kinney and
Darkey, while acting as election observers, engaged in im-
proper behavior by wearing various items containing union
insignia. The idea that such conduct could reasonably be seen
as interfering with voters’ freedom of choice strikes me as
somewhat farfetched.58 Longstanding Board precedent persua-
sively explains the fallacy of such a fragile view of voters’
independence. In Western Electric Co., 87 NLRB 183, 184–
185 (1949), the Board explained that:

the wearing of buttons or similar insignia at an election by
participants therein in not prejudicial to the fair conduct of the
election. As the identity of election observers, as well as the
fact that they represent the special interests of the parties, is
generally known to employees, we do not believe that the fact
that the [union] button was worn by an observer prejudiced
the result of the election.

See also Electric Wheel Co., 120 NLRB 1644, 1647 (1958)
(wearing of union button by election observer “did not consti-
tute interference with employee freedom of choice”). I do not
find that the wearing of union attire materially affected the
fairness of the decertification election.
The Hospital’s fourth objection also concerns behavior of
Kinney. It is contended that Kinney’s conversation with a voter
constituted improper electioneering. I do not agree. The evi-
dence showed that Kinney did not initiate the conversation at
issue. Rather, a voter asked Kinney how to learn of the election
results. Kinney simply responded to this inquiry. In its leading
case on the issue of impermissible electioneering, the Board
directly addressed this type of situation, noting that a “chance,
isolated, innocuous comment” to a voter is not improper. Mil-
chem, Inc., 170 NLRB 362, 363 (1968). Kinney’s innocuous
remark to a voter had no impact upon the fairness of the elec-
tion.
The fifth objection arises from the physical altercation be-
tween Murdaugh and Barnes at the collective-bargaining ses-
sion on December 10. I agree that Murdaugh’s conduct on this
occasion could reasonably have affected the voters’ freedom of
choice. Viewed in the context of the other misconduct by Mi-
etz and the Union’s ratification of her behavior through willful
inactivity, Murdaugh’s aggressive conduct materially contrib-
uted to a climate of coercion directed at supporters of decertifi-
cation. The evidence also established that Murdaugh’s action
took place shortly before the election and was widely dissemi-
nated among the prospective voters. Applying the factors set
forth in Avis Rent-A-Car, supra, I find that the conduct alleged
in this objection reasonably tended to interfere with the fairness
of the election.
In its sixth objection, the Hospital alleges that “[t]he Union”
threatened an employee and her spouse with bodily harm on
December 17. The reference is to Reed’s threats of bodily

58 It must be recalled that the Board holds that the wearing of union
insignia while at work ordinarily constitutes protected activity under
Section 7 of the Act. USF Red Star, 339 NLRB No. 54, slip op. at 3
(2003).
harm directed against Fleming and her husband. While Reed
was an active union supporter, there is no evidence that he was
acting as an agent of the Union.59 As a consequence, Reed’s
threats may only be considered under the standard for granting
a new election based on misconduct by third parties. That test
requires a finding that the misconduct was “so aggravated as to
create a general atmosphere of fear and reprisal rendering a fair
election impossible.” Cal-West Periodicals, 330 NLRB 599,
600 (2000). There is no need to reach this issue given the
abundance of evidence establishing that conduct by Union
agents did reasonably tend to interfere with the employees’ free
and uncoerced choice in the election.
The Hospital next cites Murdaugh’s conduct on the day of
the election as grounds for setting aside the result. The evi-
dence shows that Murdaugh placed himself at the polling place
during the balloting on three occasions. In the first and third
instances, there is no evidence that he did anything beyond
being present in the proximity of the voting. Without suggest-
ing approval of this behavior, I find that it was not coercive. As
the Sixth Circuit has noted, “[p]resence alone, in the absence of
evidence of coercion or other objectionable conduct, is insuffi-
cient to warrant setting aside an election.” Harlan #4 Coal Co.
v. NLRB, 490 F.2d 117, 121–122 (6th Cir. 1974), cert. denied
416 U.S. 986 (1974). By contrast, on the remaining occasion,
Murdaugh appeared in the polling area during the voting proc-
ess and proceeded to accost persons preparing to vote. Wit-
nesses observed him speaking to prospective voters and shak-
ing hands with several of them.
The Board has recently reiterated the factors to be considered
in determining whether conduct constitutes improper election-
eering. Among the factors to be assessed are whether the con-
duct occurred at or near the polling place, the nature and extent
of the alleged misconduct, whether the misconduct was com-
mitted by a party to the election, and whether the conduct took
place in a designated area where electioneering was prohibited.
American Medical Response, 339 NLRB 23 fn. 1 (2003), citing
Boston Insulated Wire & Cable Co., 259 NLRB 1118, 1119
(1982), enfd. 703 F.2d 876 (5th Cir. 1983). Murdaugh’s mis-
conduct took place at the polling place and involved persons
waiting to cast their votes. It was in the area designated to be
free of electioneering. Murdaugh was an official of a party to
the election. His conduct consisted of talking to and shaking
hands with persons waiting to vote. In addition, I have consid-
ered the fact that, shortly before the election, Murdaugh en-
gaged in assaultive conduct against the Hospital’s counsel, an
event that was widely discussed among the employees. I find
that his presence and conduct in these circumstances reasonably
tended to interfere with the voter’s freedom of choice. I further
find that Murdaugh’s conduct violated the rule enunciated in
Milchem, Inc., supra., since he engaged in sustained conversa-
tion with prospective voters waiting to cast their ballots,
59 I am not prepared to find that the Union’s failure to denounce
Reed’s behavior constituted ratification of his conduct. Unlike Mietz’s
threats, Reed’s conduct involved an improper response to a personal
insult. He was responding as an individual and his behavior should not
be chargeable to the Union. This is not to suggest that I approve of the
Union’s officials failure to intervene on Fleming’s behalf.

BATTLE CREEK HEALTH SYSTEM 901
thereby contravening the Board’s policy ensuring that “[t]he
final minutes before an employee casts his vote should be his
own, as free from interference as possible.” Milchem, Inc., 170
NLRB at 362.
The Hospital’s final specific objection concerns the ex-
change between Chiampa and Reeve on the day of the election.
It will be recalled that, at a location relatively remote from the
polling place, Chiampa asked Reeve if she had voted. On being
informed that Reeve had voted against the Union, Chiampa
grabbed Reeve’s arm and expressed dismay. While expressing
her displeasure, she also conceded that Reeve had the right to
her own opinion. As Chiampa was an elected union official,
her conduct may be attributed to the Union.
I have concluded that Chiampa’s physical contact with
Reeve consisted of a brief, almost involuntary, touching consis-
tent with Chiampa’s general style of interaction with others. It
was not intended to be intimidating, and I find that it was not
coercive.60 As Chiampa’s conduct did not reasonably tend to
interfere with the freedom of choice of employees, it cannot
serve as the basis for a proper objection to the election.
In sum, I find that the Union’s commission of unfair labor
practices through the behavior of its agent, Mietz, constituted
conduct that reasonably tended to interfere with the employees’
freedom of choice in the decertification election. Additional
conduct by another union official, Murdaugh, consisting of an
assault upon the Hospital’s counsel shortly before the election
date and electioneering among persons standing in line to vote
on the day of the election also reasonably tended to interfere
with the employees’ right to make a free choice regarding their
representation. Finally, I conclude that the Hospital’s other
allegations do not rise to the level required in order to find co-
ercion or interference with the voters’ ability to participate
freely in the election.
CONCLUSIONS OF LAW
1. By threatening employees with bodily harm, destruction
of their property, loss of employment, and other improper ad-
verse consequences if they supported decertification of the
Union or if they crossed a picket line, the Union has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act.
2. By engaging in the misconduct set forth above and other
misconduct consisting of an assault upon the Hospital’s counsel
and improper electioneering, the Union interfered with the em-
ployees’ ability to make a free and uncoerced choice in the
decertification election held on December 20, 2002.
3. By imposing a verbal policy requiring employees to report
to management prior to discussing conditions of employment

60 I recognize that Reeve felt that Chiampa’s conduct constituted
harassment. I cannot agree with her subjective interpretation. Realisti-
cally, the Board has recognized that hotly contested elections will be
accompanied by “a certain measure of bad feeling.” Cal-West Periodi-
cals, Inc., 330 NLRB 599, 600 (2000), citing Nabisco, Inc. v. NLRB,
738 F.2d 955, 957 (8th Cir. 1984). Chiampa’s expression of such feel-
ings toward Reeve was within the bounds of reasonable dialogue.
Nothing in Chiampa’s comments or behavior suggested any threat and
Chiampa explicitly conceded Reeve’s right to her own negative opinion
about the Union.
with other employees, the Hospital engaged in an unfair labor
practice affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
4. By distributing a memorandum advising employees to re-
port harassment by union members to management, the Hospi-
tal engaged in an unfair labor practice affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and (7)
of the Act.
5. The Hospital did not violate the Act in any other manner
alleged in the complaint.
REMEDY
Having found that the Union has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. In particular, I recommend that the Union
be ordered to post notices in the usual manner and endorse
sufficient copies to permit posting at the worksite by the Hospi-
tal, if it so chooses.
Having found that the Hospital has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. I recommend that it be ordered to rescind
its verbal policy requiring that employees report to manage-
ment prior to discussing conditions of employment with other
employees and that it be ordered to rescind its directive that
employees report harassment by union members to manage-
ment as set forth in its memorandum dated September 24, 2002.
(GC Exh. 4, p. 3.) I also recommend that it be ordered to post a
notice.
For the reasons discussed earlier in this decision, I also rec-
ommend that the election held on December 20, 2002, be set
aside and that a new election be held on the terms set forth
immediately below. I note that the Hospital requests that the
notice of second election include an explanation of why the
original election was set aside. As indicated by the Board’s
decision in Lufkin Rule Co., 147 NLRB 341 (1964) and the
NLRB Casehandling Manual (Part Two) Representation Pro-
ceedings, Sec. 11452.3, this requested relief is appropriate.
Counsel for the Hospital also requests that the Lufkin notice
include “specific examples of the Union’s unlawful conduct.”
(Emp. Br. at p. 64.) No authority is cited in support of such an
addition to the Lufkin language. I recommend that the standard
format be employed as set forth in the Casehandling Manual.
Prospective voters will certainly have access to additional in-
formation about the Union’s conduct both through the posted
notice regarding the unfair labor practice findings and through
the ability of both the Hospital and the decertification support-
ers to address the voters regarding the issues involved in the
second election.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended61 Direction of
Second Election and Order.
61 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 902
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among the
employees in the unit found appropriate whenever the Regional
Director deems appropriate. The Notice of Second Election
shall include the following language:

The election conducted on December 20, 2002 was set aside
because the National Labor Relations Board found that certain
conduct of the Union interfered with the employees’ exercise
of a free and reasoned choice. Therefore, a new election will
be held in accordance with the terms of this notice of election.
All eligible voters should understand that the National Labor
Relations Act, as amended, gives them the right to cast their
ballots as they see fit and protects them in the exercise of this
right, free from interference by any of the parties.

The Regional Director shall direct and supervise the election,
subject to the Board’s Rules and Regulations.
Eligible to vote are those employed during the payroll period
ending immediately before the date of the Notice of Second
Election, including employees who did not work during that
period because they were ill, on vacation, or temporarily laid
off. Also eligible are employees engaged in an economic strike
that began less than 12 months before the date of the election
directed and who retained their employee status during the
eligibility period and their replacements. Those in the military
services may vote if they appear in person at the polls. Ineligi-
ble voters are employees who have quit or been discharged for
cause since the payroll period, striking employees who have
been discharged for cause since the strike began and who have
not been rehired or reinstated before the election directed, and
employees engaged in an economic strike that began more than
12 months before the election directed and who have been per-
manently replaced. Those eligible shall vote whether they de-
sire to be represented for collective bargaining by Local 79,
Service Employees International Union, AFL–CIO.
To ensure that all eligible voters have the opportunity to be
informed of the issues in the exercise of their statutory right to
vote, all parties to the election should have access to a list of
voters and their addresses that may be used to communicate
with them. Excelsior Underwear, 156 NLRB 1236 (1966);
NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accord-
ingly, it is directed that an eligibility list containing the full
names and addresses of all the eligible voters must be filed by
the Employer with the Regional Director within 7 days from
the date of the Notice of Second Election. North Macon Health
Care Facility, 315 NLRB 359 (1994). The Regional Director
shall make the list available to all parties to the election. No
extension of time to file the list shall be granted by the Re-
gional Director except in extraordinary circumstances. Failure
to comply with this requirement shall be grounds for setting
aside the election whenever proper objections are filed.
ORDER
IT IS ORDERED that the Respondent, Local 79, Service Em-
ployees International Union, AFL–CIO, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Threatening employees with bodily harm, destruction of
their property, loss of employment, or other improper adverse
consequences if they support decertification of the Union or if
they cross a picket line.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
union offices in Detroit, Lansing, and Muskegon, Michigan,
copies of the attached notice marked “Appendix A.”62 Copies
of the notice, on forms provided by the Regional Director for
Region 7, after being signed by the Union’s authorized repre-
sentative, shall be posted by the Union immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the Union
to ensure that the notices are not altered, defaced, or covered by
any other material.
(b) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by Battle Creek Health System, if
willing, at all places where notices to employees are customar-
ily posted.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Union has taken to comply.
IT IS FURTHER ORDERED that the Respondent, Battle Creek
Health System, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Promulgating or maintaining a policy requiring employ-
ees to report to management prior to discussing conditions of
employment with other employees.
(b) Instructing employees to report harassment by union
members to management.
(c) In any like or related manner restraining or coercing you in
the exercise of the rights guaranteed you by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind its
verbal policy requiring employees to report to management
prior to discussing conditions of employment with other em-
ployees.
(b) Within 14 days from the date of this Order, rescind its
written policy dated September 24, 2002, instructing employees
to report harassment by union members to management.
(c) Within 14 days after service by the Region, post at its fa-
cility in Battle Creek, Michigan, copies of the attached notice
marked “Appendix B.”63 Copies of the notice, on forms pro-

62 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.”
63 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-

BATTLE CREEK HEALTH SYSTEM 903
vided by the Regional Director for Region 7, after being signed
by the Hospital’s authorized representative, shall be posted by
the Hospital immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Hospital to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Hospital has gone out of business or closed the facility involved
in these proceedings, the Hospital shall duplicate and mail, at
its own expense, a copy of the notice to all current employees
and former employees employed by the Hospital at any time
since September 17, 2002.
Within 21 days after service by the Region, file with the Re-
gional Director a sworn certification of a responsible official on
a form provided by the Region attesting to the steps that the
Hospital has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

APPENDIX A
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board had 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 on your behalf with
your employer
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties

WE WILL NOT threaten members or other employees with
bodily harm, destruction of their property, loss of employment,
or other improper adverse consequences if they support decerti-
fication of the Union or if they cross a picket line.
WE WILL NOT in any like or related manner restrain or coerce
you in the exercise of the rights guaranteed you by Section 7 of
the Act.

LOCAL 79, SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL–CIO
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
The National Labor Relations Board had 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 on your behalf with
your employer
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties

WE WILL NOT issue or maintain a policy requiring employees
to report to management before they discuss conditions of em-
ployment with other employees.
WE WILL NOT instruct employees to report harassment by un-
ion members to management.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
rescind the requirement that employees report to management
before discussing conditions of employment with other em-
ployees.
WE WILL, within 14 days from the date of the Board’s Order,
rescind that portion of our memorandum dated September 24,
2002, that directs employees to report harassment by union
members to management.

BATTLE CREEK HEALTH SYSTEM