JD–47–18
Providence, RI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

RHODE ISLAND PBS FOUNDATION,
and

Case 01–CA–204520

INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 1228.

Elizabeth A. Vorro Esq. (NLRB Region 1)
of Boston, Massachusetts, for the General Counsel
Matthew H. Parker, Esq. and Joseph D. Whelan (Whelan, Corrente,
Flanders, Kinder & Siket, LLP)
of Providence, Rhode Island, for the Respondent
DECISION
INTRODUCTION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This case involves an employer that
operates a public broadcasting television station in Providence, Rhode Island. For many years,
the station’s engineers and technicians have been represented for purposes of collective
bargaining by a union. The government alleges that beginning May 11, 2017, the employer
unlawfully refused to meet to bargain with the union, subsequently withdrew recognition from the
union as the employees’ representative, refused the union’s request for information related to the
unit, and instituted unilateral pay changes for certain employees, all in violation of Section 8(a)(5)
and (1) of the National Labor Relations Act (Act). The employer essentially admits the conduct,
but contends, contrary to the government, that it was lawful to do so based upon its contention
that a majority of the unit employees told the employer that they rejected union representation. In
addition, the government seeks to amend its complaint to allege that the employer’s method of
attempting to assay employee support for the union, as explained by the employer’s witnesses at
the hearing, violated Section 8(a)(1) of the Act. As set forth herein, the employer’s defenses on
all these claims are meritless, for multiple independent reasons. I find that the employer violated
the Act, as alleged.
STATEMENT OF THE CASE
On August 15, 2017, the International Brotherhood of Electrical Workers, Local 1228
(Union) filed an unfair labor practice charge alleging violations of the Act by the Rhode Island
PBS Foundation (Foundation), docketed by Region 1 of the National Labor Relations Board
(Board) as Case 01–CA–204520. The charge was amended by the Union on November 1, and a
second time on November 30, 2017.
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Based on an investigation into this case, on November 30, 2017, the Board’s General
Counsel, by the Regional Director for Region 1 of the Board, issued a complaint and notice of
hearing alleging that the Foundation had violated the Act. On April 6, 2018, through the Acting
Regional Director, the General Counsel issued an amended complaint and notice of hearing. The
Foundation filed an answer to both the complaint and the amended complaint denying all alleged
violations of the Act.
A trial in this case was conducted on April 24–25, 2018, in Providence, Rhode Island, at
which time the General Counsel sought and was granted further amendments to the amended
complaint. Another motion to further amend the complaint was filed by the General Counsel on
or about May 7, 2018, which is pending, and opposed by the Respondent.
Counsel for the General Counsel and the Respondent filed posttrial briefs in support of
their positions by June 27, 2018.

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On the entire record, I make the following findings, conclusions of law, and
recommendations.
JURISDICTION
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At all material times, the Foundation has been a private, non-profit Rhode Island
corporation with an office and place of business located at 50 Park Lane, Providence, Rhode
Island, and has been engaged in the business of operating a public broadcasting television
station in Providence, Rhode Island. Annually, the Foundation, in conducting its business
operations, derives gross revenues in excess of $100,000, and operates under a license and
permit of the Federal Communications Commission. Annually, the Foundation, in conducting its
business operations, as described, purchases and receives at its Providence, Rhode Island
facility goods valued in excess of $5,000 directly from points outside the State of Rhode Island.
At all material times, the Foundation has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. At all material times, the Union has been a labor
organization within the meaning of Section 2(5) of the Act. Based on the foregoing, I find that this
dispute affects commerce and that the Board has jurisdiction of this case, pursuant to Section
10(a) of the Act.
UNFAIR LABOR PRACTICES
A. Introduction

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The Foundation operates a public television broadcasting station in Providence, Rhode
Island. David Piccerelli is the Foundation’s president. In that capacity he is the chief operating
officer of the Rhode Island PBS television station, WSBE-TV. Piccerelli reports to the
Foundation’s Board of Directors.
Before October 2012, the television station was operated by a public entity known as the
Rhode Island Public Telecommunications Authority (RIPTA). Around October 12 or 14, 2012, the
station’s broadcast license was transferred from RIPTA to the Foundation, which assumed
ownership of and operating responsibility for the station. Previously, the Foundation existed as
the fundraising arm for the television station. When the Foundation assumed control of the
station it offered the station’s employees employment with the Foundation and a majority
accepted the offer and remained working at the station. In approximately December 2012, the
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Foundation made unilateral changes to employees’ health insurance, pension benefits, and
wages.

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When RIPTA operated the station, the technicians and engineers had been represented
by the Union, at least as far back as the early 1980s. In November 2012, after the Foundation
assumed operation of the station, the Union requested that the Foundation recognize it and also
filed a representation petition with the Board. On February 8, 2013, the Foundation agreed to
recognize the Union as the employees’ collective-bargaining representative and requested dates
for bargaining. The parties stipulated at the hearing that the recognized unit consists of:
All full-time and regular part-time Maintenance Engineers, Television/
Broadcast/Watch Engineers and Telecommunications/Television Technicians
employed by the Employer, but excluding all other employees, guards, and
supervisors as defined in the Act.
From late 2013 until May 23, 2017, there were six employees in the bargaining unit. On
May 23, 2017, Patrick O'Brien became the seventh unit employee, and in September 2017, the
hire of Timothy Smith brought the unit complement to eight. Unit employee Michael Riley left the
unit to become a producer director, in October 2017. In February 2018, three additional
employees were hired, bringing the number of unit employees to ten, which remained the case as
of the time of the hearing in April 2018.
B. 2013–2016
The parties began bargaining for a collective-bargaining agreement in 2013. They met
infrequently, conducting about five bargaining sessions from 2013 through 2015. Some tentative
agreements were reached. The Union did not file any grievances under the terms of the expired
contract from 2011 to 2016.

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In approximately May 2015, Union Representative Fletcher Fischer informed Piccerelli
and the Foundation’s attorney, Joseph Whelan that the Union was going to seek membership
ratification of the Foundation’s latest contract offer. In conjunction with this, Fischer asked the
Foundation’s attorney for a finished “clean” document to show the membership. On June 25,
Fischer sent an email to Piccerelli and Whelan stating:
We are voting on the Contract offer today yet we still have no draft document to
work with. We are working with a markup and our notes so the vote will be based
on those, would really appreciate the draft that you said you were going to
prepare.
Finally we asked for a census of the bargaining unit which we have yet to receive
so far. Please forward both documents ASAP.
In a July 6, 2015 email, Fischer reported to Piccerelli that the members of the unit had
ratified the proposal on June 25. Fischer’s email indicated that he would “be sending . . .
Checkoff forms for them in a separate email and the deductions will be retroactive back to the
effective date of the Agreement of January 1, 2015. The deduction instructions will accompany
that email.” Fischer added that he wanted to meet to discuss “a few issues that came up in that
ratification meeting,” including the Union’s view that “Nick” Moraites, “Mark” Smith, and “Joe”
Brathwaite were regularly performing engineering duties but were “not being fairly compensated.”
Piccerelli responded the next day, July 7, suggesting dates and times for a meeting.
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This meeting did not occur. In December 2015, Whelan sent a draft of the collectivebargaining agreement to Fischer but Fischer never followed up by asking Whelan to sign the
agreement. Fischer never sent dues checkoff forms to the Employer and never asked employees
to sign checkoff forms, which Fischer attributed to the Union’s policy of not collecting dues until
the employees were working under a signed contract—something that, despite the ratification,
never materialized.
In 2016, the Union attempted to schedule a couple of labor-management relations
meetings but they did not occur, although an August 2016 email from Piccerelli to the Union
suggests that the Foundation was amenable to meeting. In May 2016, Shop Steward Andrew
Gannon complained in an email to Director of Engineering Richard Dunn about Dunn’s practice of
texting unit employees on their personal cell phones during working and nonworking hours.
Gannon told Dunn that “All IBEW members are requesting . . . that you cease texting them on
their personal cell phones.” Dunn rejected this, responding that “I think you have exceeded the
scope of your representation. I don’t believe you speak for the shop on this issue.” Dunn testified
that at the time Gannon brought this up to him in the email he was aware that the employees
were union-represented.
C. 2017

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In April 2017, the Foundation participated in an auction of its broadcast frequency. This
meant, effectively, that the Foundation sold its space at channel 21 and received in exchange
broadcast space at channel 2. For participating in this auction and making the switch, the
Foundation was paid over $94 million.
In March 2017, Fischer contacted Piccerelli by phone and discussed negotiating a new
agreement with pay increases based on the anticipated influx of funds from the auction.
Piccerellli told Fischer to provide him with a proposal.

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The union’s shop steward, unit employee Gannon, put together a wage proposal. It was
submitted on May 11, by Fischer, who emailed a proposed collective-bargaining agreement to
Piccerelli with the new wage demands. Later that morning, Piccerelli responded, writing “We will
review and be back to you with comments.”
On May 30, having yet to hear from Piccerelli, Fischer wrote, asking, “Any thoughts on our
proposal yet?”
On June 19, apparently in response to a voicemail message from Fischer, Piccerelli
wrote,

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I have received your voicemail. I have not been able to connect with [Employer’s
attorney] Joe [Whelan] as of yet and he is now on vacation this week. I left him
another message so as soon as I hear back from him I will be back to you.
On July 13, Fletcher wrote Piccerelli, “It[‘]s been close to a month since you said you
would get back to me. This is getting more than a little tiresome.” Piccerelli responded that, “I am
scheduled to speak with my attorney tomorrow morning. I will be in touch shortly.”

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On July 24, Fischer wrote back to Piccerelli, “do you have an answer yet? It’s been 11
days since you were supposed to meet with him.” Piccerelli responded the same day, “No. [W]e
have not been able to schedule something yet.” Fischer never heard from Piccerelli.
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Meanwhile, while Fischer was seeking to bargain with the Foundation for higher employee
wages, the Foundation unilaterally provided wage increases to six of the then seven bargaining
unit employees in July 2017.1 The Union was not notified of these wage increases before they
were unilaterally provided to employees by the Foundation. Piccerelli testified that he first
proposed the wage increases to the Foundation’s Board of Directors around the third week of
May 2017, as part of the initial budget proposal.
On August 15, 2017, the Union filed the first unfair labor practice charge in the instant
case, alleging that the Foundation had failed and refused to bargain in good faith.

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On October 19, 2017, the Foundation asserted in writing that it was withdrawing
recognition from the Union.2
On October 31, 2017, Fischer sent a letter to Piccerelli, stating:
The Union is making a formal demand to bargain on behalf of the Technicians
bargaining Unit at Rhode Island PBS Foundation. We are available to meet any
day the week of November 18. If you are not available that week, please let us
know what dates you are available.

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Fischer’s October 31, 2017 letter also included a detailed information request, each item
of which was a request for information concerning the unit employees, their terms and conditions
of employment, or the performance of bargaining unit work. The Union’s letter requested the
following information:
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I.

Name, address, classification, base rate of pay, date of hire of each
Bargaining Unit Employee.

2. Overtime earned (in hours and dollars) for each Bargaining Unit
Employee in the past 12 months.
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3. A list of any and all pay increases granted to each Bargaining Unit
member over the last 3 years.
4. Copies of current job descriptions for all Bargaining Unit positions.
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1

One employee, Patrick O’Brien, newly hired in May 2017, did not receive the wage increase.

2

The Foundation admits that it withdrew recognition from the Union (GC Exh. 1(m) at ¶14, see
also R. Br. at 12). However, it never clearly states when it did so, instead framing its arguments
in terms of its alleged right to withdraw recognition. As referenced above, as of July 2017,
Piccerelli was still responding to Fletcher’s bargaining requests with promises that the Foundation
would get in touch with the Union shortly. The only direct record evidence on the issue of
withdrawal of recognition is the parties’ stipulation that the first time the Foundation asserted in
writing that it was withdrawing recognition from the Union was October 19, 2017. Given the
Foundation’s admission, and the evidence, I find that the Respondent withdrew recognition on or
about October 19, 2017. I note that, given my analysis, infra, the precise date of the withdrawal
of recognition matters only for fixing the date of that violation. In terms of the validity of the
Respondent’s defenses, the precise date of the admitted withdrawal of recognition is irrelevant.
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5. Copies of all plan documents /financial and other reports covering plans
for health insurance, life insurance, sick leave, short and long term
disability for all bargaining Unit Employees.
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6. List of Employees enrolled in each benefit plan.
7. A copy of any and all Company policies that relate to Bargaining Unit
Employees.

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8. Any and all instances of bargaining unit work performed by non-unit
persons in the past 12 months.
Fischer did not receive a response to this letter.

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Effective December 31, 2017, the Foundation granted additional salary increases to two of
the bargaining unit employees, Nick Moraites and Mark Smith. The Union was not notified of or
provided an opportunity to bargain over these wage increases.
D.

Interrogation of employees’ union sympathies
Piccerelli

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As discussed above, in March 2017, Union Representative Fischer contacted Piccerelli to
discuss negotiating pay increases for employees in light of the influx of funds expected from the
auction. Piccerellli told Fischer to provide him with a proposal, which he did on May 11.
Within a couple of weeks of receiving the Union’s May 11 bargaining proposal, Piccerelli
made an effort to find out what a majority of the then seven-person unit felt about the Union.

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Piccerelli spoke with employee Mark Smith in Piccerelli’s office for five or ten minutes.
Smith had come to Piccerelli’s office on his own without being asked to come. The subject of the
conversation was Smith’s desire to be—and belief that he was not being—“fairly compensated.”
Piccerelli testified that although he could not remember Smith’s exact words, “I can say that he
was not pleased with the representation that he was getting from the Union in terms of his
compensation.” Although Piccerelli could not “recall his exact words,” Smith’s “message was that
he did not feel that the Union was providing him adequate representation towards compensation.”

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Piccerelli testified that Smith brought up the Union. Smith said that “he did not feel like he
was being fairly represented by the Union.” According to Piccerelli, Smith was “not very specific,”
but just expressed “general displeasure.” According to Piccerelli, Smith “[d]idn’t feel that he
needed them to represent him, felt that, you know, doing his work would merit whatever increases
that he deserves.”

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In this meeting, according to Piccerelli, “I specifically asked Mr. Smith if any other
bargaining unit employees felt the way he did about the bargaining unit.” Smith responded that
Sousa and “Brathwaite both felt the same way that he did in terms of the representation that they
were getting from the Union.”3
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Smith testified but did not recall this conversation, but stated that he has had other
conversations in years past with Piccerelli about the Union and his frustration with his wages.
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Piccerelli testified that he “didn’t think it was fair for me to rely on information that was
coming from Mr. Smith,” so after this meeting with Smith, within a couple of days, Piccerelli called
Brathwaite into his office “so I could hear Mr. Brathwaite’s feelings and opinions for himself and
not second hand from Mr. Smith.” Piccerelli paged Brathwaite to come into his office using a
paging system that can be heard by everyone in the shop. (Piccerelli joked that “I think the
neighbors can hear it too when the garage door’s open.”)4
Once Brathwaite was in Piccerelli’s office, Piccerelli testified that “I specifically asked him
how he felt about the representation he had from the Union. . . . And if he wanted to continue
forward having representation of the Union.” Braithwaite testified that Piccerelli’s exact words
were “What did I think about the Union?”
According to Piccerelli, Brathwaite told him that “he didn’t feel it was necessary to have
representation from the Union.” According to Piccerelli, Brathwaite “reiterated basically what Mr.
Smith said and that he did not feel that they were being fairly represented in terms of their
compensation and other benefits from the Union.” Brathwaite testified that Piccerelli asked him
“what did I think about the Union.” He answered. “No.” Brathwaite further testified that in
response to Piccerelli’s question about what he thought of the Union, he answered, “I’m not
interested in it and that was that.
In this meeting, Piccerelli did not tell Braithwaite that he did not have to speak about how
he felt about the Union, or that the discussion was voluntary, or that he did not have to answer
the questions. Piccerelli did not tell him that whatever his answers, they would not have any
effect on his work, or that nothing would happen to him whether or not he supported the Union.
Piccerelli also summoned employee Patrick O’Brien to his office within a week or two after
O’Brien became a unit employee on May 23, 2017 (O’Brien had worked part-time for five or six
years in a different role).

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According to Piccerelli, “I had invited him in as a new employee to go—to see, you know,
what his interest was in having representation by the Union.” Piccerelli asked O’Brien if he
wanted to be represented by the Union. According to Piccerelli, O’Brien gave him “kind of a
wishy-washy answer.” O’Brien told Piccerelli something to the effect that he did not feel “that he
needed to have Union representation, but he also felt that he didn’t want to go against the friends
___________________________
Piccerelli also testified that he had spoken to Smith “two or three other times over the years,”
specifically recalling once, “probably sometime May of ’16 or earlier . . . definitely more than a
year” or “almost a year” prior to the June 2017 conversation with Smith, when Smith was in tears
and said that “he was looking for more money and that the Union was not doing anything to get
him more money.” Smith recalled this conversation, but was sure it occurred “three years ago,”
i.e., in 2015, where “with tears in my eyes,” he talked to Piccerelli about his frustration with wages
and how he could not afford the Union, but Piccerelli told him that his “hands were tied” because
of the Union. More generally, Smith testified that he had several conversations over the years
with Piccerelli where he “consistently” told Piccerelli that “I didn’t feel a representation from the
Union and I let it be known.”
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In his direct testimony Brathwaite tentatively agreed that he was called into Piccerelli’s office
(“Yes, I think so”) but on cross examination denied it. I credit his direct testimony which was in
accord with Piccerelli’s certain recollection that Piccerelli initiated the conversation by calling
Brathwaite into his office through the paging system in an effort to follow-up on Smith’s
identification of Brathwaite as someone who shared Smith’s views.
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that he had at the station if that [union representation] was something that they wanted. And that
he would, you know, think about it going forward.” Piccerelli testified that O’Brien “told me he was
against it, but he did not specifically say that, you know, he would necessarily—how he would
vote.” O’Brien asked and expressed concern about whether there would be an “open vote” on
the Union, as “he didn’t want to be perceived as going against anybody, specifically those in favor
of the Union.” Piccerelli could not give O’Brien a specific answer because, as he testified, “I was
not certain as to whether or not it was a public vote or a private vote or how it’s conducted.”
Piccerelli did not tell O’Brien that his discussion with Piccerelli about the Union was voluntary or
that nothing would happen to him no matter what O’Brien said.5
Piccerelli also testified that he told Director of Engineering Rick Dunn about Smith’s
comments. Dunn is Smith’s, and the other unit employees’ direct supervisor in the engineering
department. Piccerelli asked Dunn to check with a fourth employee, Joao (Jon) Sousa, “to see
what his feelings were on having representation by the Union.” Dunn told him he would.
Piccerelli testified that when he followed-up with Dunn, Dunn told him that Sousa “was not
interested in having representation by the Union.” Piccerelli testified that unlike the conversations
he had with Smith, Brathwaite and O’Brien, he did not personally have an “official” meeting with
Sousa to discuss his views on union representation.6
Dunn

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Dunn testified that in a conversation with Smith and Brathwaite in the station’s studio they
conveyed to him that they did not feel represented by the Union. O’Brien allegedly told him the
same thing. Dunn testified that he worked closely with and talked regularly with Sousa who
allegedly told him this. As noted, I do not credit this. See fn. 6, supra.

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O’Brien did not testify.

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Director of Engineering Dunn testified that he did not recall Piccerelli asking him to speak to
Sousa, but I credit Piccerelli’s account, which was credibly offered. More generally, I found
Piccerelli a credible witness, who appeared to testify frankly and honestly. Director of
Engineering Dunn, who testified that he was an attorney and member of the Rhode Island and
“Federal” bar, emphasized throughout his testimony that “members of the unit do not feel that
they’re represented by a Union.” Dunn claimed that he told Piccerelli this when Piccerelli called
him into his office in May 2017, and told him he had received a wage proposal from the Union
and “wanted to speak to [Dunn] about the bargaining unit.” Dunn testified that he told Piccerelli
that employees Smith, Brathwaite, Sousa and O’Brien “didn’t feel that there was a union” and that
“there is no Union.” Dunn claimed that Smith, Braithwaite, and Sousa told him this. However, not
a single witness corroborated this odd formula—not Piccerelli, not Smith, not Braithwaite, not
Sousa. Further, it is implausible that O’Brien would tell Dunn this even before he became a
union-represented employee on May 23. I discredit Dunn. The closest to this is Brathwaite’s
testimony that he told Piccerelli—not Dunn—that “I don’t feel a representation from the Union.” I
believe Dunn repeated this odd phrasing about there “being no union” and employees feeling
they were not represented by a union throughout his testimony in service to the Respondent’s
legal theory that its refusal to bargain was justified by a claimed union abandonment of the unit, a
theory not supported by the facts even if his testimony was credited, which it is not. I decline the
Respondent’s invitation (R. Br. at 9) to credit Dunn based on the fact that he is “a licensed
attorney and therefore duty bound to be candid and honest.”
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Dunn described a conversation with Smith and Brathwaite in April or May of 2017, in the
station’s studio where he encountered them and they complained to him that they had been
discouraged by Union Steward Gannon from moving staging equipment. Dunn asserted that
Smith “said to me that you don’t represent me, you don’t tell me what to do. I just want to help
get this done so I can move on with what we have to do.”7 Dunn asserted that Brathwaite
“expressed the same sentiment,” and like Smith, recapitulated the conversation he had with
Gannon for Dunn. He also claimed that Brathwaite told him that “they [the Union] have their own
agenda, they never asked me who I wanted for shop steward.” Dunn claimed that Brathwaite told
him in this conversation, “there is no Union.” Dunn says he told Brathwaite to “speak to [shop
steward] Andy Gannon about that.”8

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Dunn claimed that this was not the first time he had had such conversations with Smith:
“Mr. Smith repeatedly complained about how they didn’t represent him.” He had “ongoing”
conversations where Smith complained to Dunn about his wages and how the Union “they’re not
helping me,” and “there is no Union.” According to Dunn, “it was a narrative that Smith would
repeat over and over again periodically.”9

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Dunn claimed he relayed these conversations to Piccerelli when he met with him in May.
He also testified that he told Piccerelli at this meeting that Sousa “does not feel he’s represented
by the IBEW. He doesn’t like the Union.” Dunn claimed that “from 2016 on” Sousa “would often
say that they don’t represent me” and that “there’s no Union, there’s no contract.”10

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Although this testimony of Dunn’s was phrased as if Smith was telling Dunn that Dunn did
not represent him and doesn’t tell Smith what to do, that was not what Dunn meant to convey.
Rather, he meant to convey in his testimony that Smith said this about Gannon. I believe the
confused way Dunn presented this testimony was attributable to the rehearsed and rote manner
in which it was offered by him.
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Braithwaite testified that he had many conversations with Dunn about the Union over the
years. Braithwaite confirmed that he told Dunn about the incident with Shop Steward Gannon,
and told Dunn, “this is why I can’t be in the Union because I do so many things at the Company
that I can’t have my hands tied.”
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Smith testified that he had spoken to Dunn about the Union “many time,” perhaps “100 times”
in the past two years about the Union and his interest in representation. Smith said that in the
past two years he talked with Dunn about “My interest was not being represented by the Union. I
was displeased as to what was going on. And that was my conversation with him.” Smith
testified that he told Dunn that “financially is the reason why I didn’t [want] the Union to represent
me.” Smith could not say when these conversations occurred, “We work together every day” but
that “all of my conversations were basically the same. I couldn’t afford it.”
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Sousa testified that he has talked with Dunn about the Union “several times a week for the
past couple of years.” According to Sousa, “My main thing is and I always brought it up, and
unfortunately I was a broken record, where like I said I wasn’t—the times of being notified of what
was going on, that I didn’t vote for the person that was elected as the shop steward.” Sousa also
complained to Dunn that he “didn’t see any emails of what was going on” for over a year and a
half. Sousa testified that he talked to Dunn about other things but “I cannot remember at this
moment.” Those were the only things he could remember. Sousa also testified credibly that
Dunn never asked him how he felt about the Union (Tr. 185).
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Dunn also testified that he told Piccerelli that Obrien “told me he wasn’t interested in the
Union, he thought that they promoted people on longevity and not on merit.” Dunn claimed that
O’Brien told him this “in the tech center,” after he became a full-time employee in May 2017.
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In sum, I do not credit Dunn’s testimony to the extent he claimed that he was told by
employees that (or some variant of) “they are not represented,” or “there is no union.” See also
fn. 6, supra.
Analysis

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The General Counsel alleges four violations of Section 8(a)(5) of the Act: (1) that from on
or about May 11, 2107, and on subsequent dates, the Respondent unlawfully failed and refused
to meet with the Union for the purposes of negotiating a collective-bargaining agreement to cover
the unit employees; (2) that on or about October 19, 2017, the Respondent unlawfully withdrew
recognition from the Union as the collective-bargaining representative of the unit; (3) that since on
or about October 31 2017, the Respondent has failed and refused to provide the Union requested
and relevant information; (4) and that on or about December 31, 2017, the Respondent
unilaterally changed the wage rate of employees Smith and Moraites without providing the Union
notice or an opportunity to bargain.
Finally, the General Counsel moved posttrial, and over the opposition of the Respondent,
to amend the complaint to allege that Piccerelli’s interrogation of Braithwaite and O’Brien
regarding their union sympathies, and Dunn’s interrogation of Sousa, constituted independent
violations of Section 8(a)(1) of the Act.
I will consider the alleged violations, and the motion to amend, below.

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The alleged bargaining violations stem directly from the fact that at all times after February
2013, when the Foundation recognized the Union as the unit employees’ collective-bargaining
representative, the Respondent remained legally obligated to bargain with the Union, provide
relevant and requested information, recognize the Union as the collective-bargaining
representative, and maintain the status quo in terms and conditions of employment unless and
until it reached a good-faith bargaining impasse.
The Union was the recognized collective-bargaining representative of the Foundation’s
unit employees as of February 8, 2013. Unless something happened to divest the Union of this
representational status thereafter, the Respondent’s refusal to meet to bargain upon request
beginning May 11, 2017, its assertion on October 19, 2017 that it was withdrawing recognition
from the Union, its refusal to provide information in response to the October 31, 2017 information
request, and its December 31, 2017, unilateral implementation of wage changes, each constitute
fundamental violations of the Section 8(a)(5) duty to bargain.11 In addition, as alleged, each of
11

See, e.g., NLRB v. Katz, 369 U.S. 736, 743 (1962) (“A refusal to negotiate in fact as to any
[mandatory] subject . . . about which the union seeks to negotiate, violates section 8(a)(5)”); J. H.
Allison & Co., 70 NLRB 377, 378 (1946) (employer violates the Act by refusing to engage in
bargaining over a mandatory subject as to which the union requests bargaining), enfd. 165 F.2d
766 (6th Cir. 1948); CoServ Electric, 366 NLRB No. 103, slip op. at 2–3 (2018) (unilateral
withdrawal of recognition from union is Sec. 8(a)(5) violation); Badlands Golf Course, 355 NLRB
251 (2010) (withdrawal of recognition violates Section 8(a)(5)); A-1 Door & Building Solutions,
356 NLRB 499, 500 (2011) (“An employer's duty to bargain includes a general duty to provide
information needed by the bargaining representative in contract negotiations and administration.
10

 JD–47–18
these 8(a)(5) violations is a derivative violation of Section 8(a)(1) of the Act. Tennessee Coach
Co., 115 NLRB 677, 679 (1956), enfd. 237 F.2d 907 (6th Cir. 1956). See, ABF Freight System,
325 NLRB 546 fn. 3 (1998).
5

The Respondent’s defenses to the 8(a)(5) allegations

10

The Respondent offers two separate defenses to the alleged violations, each of which
purportedly severs the Respondent’s duty to recognize, bargain, and otherwise act in accordance
with the 8(a)(5) statutory obligations required of an employer with a union-represented work force.
However, each of the defenses is meritless.12
The good-faith-doubt defense

15

20

25

30

First, the Respondent contends that it had a good-faith doubt as to the Union’s majority
status, and that this justified its refusal to bargain. R. Br. at 12, 15. At the hearing, I permitted the
Respondent’s counsel to make an offer of proof on this claim (see, Tr. 110–113), but did not
permit him to elicit testimony towards it, as the argument is a nonstarter under Board precedent.
The good-faith doubt standard for unilateral withdrawal of recognition was rejected by the
Board in Levitz, 333 NLRB 717 (2001). Since 2001, it has not been a viable basis for an
employer’s unilateral withdrawal of recognition. Rather, to justify a unilateral withdrawal of
recognition, an employer must have objective proof of a union’s lack of majority support. Levitz,
supra at 725.
An employer’s good-faith doubt of a union’s majority support entitles the employer to
invoke the Board’s “preferred method of testing employees’ support for unions”—an election.
Assuming, arguendo, that the Foundation had a good-faith doubt about the union’s support, it
could have filed an RM petition and an election could have been conducted on the matter. But
any doubt it had as to the union’s support did not entitle it to make the decision for employees
and act unilaterally to reject union representation for its employees.
The Respondent contends that Levitz should not apply because it claims that in 2013
when it was a successor employer, it recognized the Union only because it had “a gun to its
head.” By a “gun to its head” the Respondent means (R. Br. at 2) an unfair labor practice charge
___________________________
Generally, information concerning wages, hours, and other terms and conditions of employment
for unit employees is presumptively relevant to the union's role as exclusive collective-bargaining
representative”) (citations omitted); Liberty Bakery Kitchen, Inc., 366 NLRB No. 19, slip op. at 11
(2018) (unilateral grant of wage increase without providing union notice and opportunity to
bargain violates Section 8(a)(5)).
12

At the hearing, the Respondent suggested a third defense would be that the Union had
abandoned the unit, thus eliminating Respondent’s bargaining obligations to the Union. I note
that the Respondent did not advance this defense in its brief, and I, therefore, consider the
defense—there is no better word—abandoned. In any event, I note that whatever the employer
could say about the vigor of the union’s representation, the record does not support the claim that
the Union was either unwilling or unable to represent the employees. Moreover, the Union’s May
11, 2017 bargaining demand “negated any inference to be drawn from [any] preceding period of
inactivity.” Kentucky River Medical Center, 340 NLRB 536, 543 (2003); see Pioneer Inn &
Pioneer Inn Casino, 228 NLRB 1263, 1264 (1977), enfd. 578 F.2d 835 (9th Cir. 1978).
Accordingly, had it been pursued, the abandonment defense would not have succeeded.
11

 JD–47–18
and representation petition filed by the Union after the Respondent initially resisted recognizing
the Union.
5

10

15

The Foundation’s argument suggests that a successor seeking to unilaterally reject union
recognition on behalf of its employees should be held to a lower standard than Levitz, and that
this lower “good faith doubt” standard should remain in place for years (here, four) after the
successor employer recognized the union. This is beyond meritless.
Putting aside that the Supreme Court has recognized that the rationale for the
presumption of majority support is “particularly pertinent in the successorship situation” (Fall River
Dyeing Corp. v. NLRB, 482 U.S. 27, 41 (1987)), and thus, any suggestion that the standard for
overcoming the presumption should be lowered in a successorship situation is indefensible,
successor status has come and gone for the Foundation. It took over the TV station in 2012 and
recognized the Union in February 2013. It is, of course, far too late for the Respondent to argue
that its 2013 recognition of the Union was illegitimate or mistaken.13
The Levitz lack-of-majority-support defense

20

The Respondent also contends that even applying Levitz, its refusal to deal with or
recognize the union was justified by its claim that the union did not have majority support within
the unit. This argument is unavailing, for four independent reasons.

25

1. While “[a]n employer can generally withdraw recognition, where it can prove a loss of
majority status . . . . [t]his doctrine is, however, limited ‘to cases where an employer has
committed no unfair labor practices tending to undermine employees' support for unions.’”
CoServ Electric, 366 NLRB No. 103, slip op. at 10 (2018), quoting Levitz, 333 NLRB 717 fn. 1
(2001) (citation to Levitz omitted).

30

35

Significantly, the Board holds that “an unlawful refusal to recognize and bargain with an
incumbent union will be presumed to taint any subsequent loss of support for the union, without
any particularized demonstration of a causal relationship.” Lee Lumber and Building Material
Corp., 322 NLRB 175, 177 (1996), affirmed in relevant part, 117 F.3d 1454 (D.C. Cir. 1997).
Here, the Respondent refusal to bargain began May 11, 2017, before the Respondent
even claims to have amassed evidence of a lack of majority support for the Union in late May and
early June. Beginning May 11, the Respondent evaded and then ignored the Union’s repeated
entreaties to bargain for five months before the Employer withdrew recognition on grounds of lack
of majority support. Without more, the Union’s alleged loss of majority support is presumptively
13

Red Coats Inc., 328 NLRB 205, 206–207 (1999) (an employer may not defend against a
refusal-to-bargain allegation on the basis that the original recognition of the union was unlawful,
where that recognition occurred more than 6 months before the charges raising the issue had
been filed); Route 22 Toyota, 337 NLRB 84, 85 (2001) (“The Board has held, in light of the
Supreme Court's decision in Local Lodge 1424 IAM (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411
(1960), that a respondent may not defend against a refusal-to-bargain allegation on the ground
that the underlying original recognition of the union was unlawful, if it occurred more than 6
months before charges had been filed in the proceeding raising the issue”). Any such defense is
barred by Section 10(b), which, as the Court explained in Bryan, was specifically intended by
Congress to stabilize bargaining relationships”) (citation omitted). The Respondent claims that a
nonprecedential decision in Merit House, LLC, 08–CA–099622 (January 6, 2014) (2014, WL
65756), supports its claim. It does not, for the reasons I explained at trial. See, Tr. 111–113.
12

 JD–47–18
tainted and cannot be a basis for the Respondent’s withdrawal of recognition. Lee Lumber,
supra.14
5

10

15

In addition, it is notable that the employee complaints about the Union solicited by
Piccerelli focused on the lack of wage hikes, the very subject the Union was seeking to bargain
as Piccerelli went about soliciting the evidence on which he based the withdrawal of union
recognition. Soliciting employees to engage in decertification activities has long been held to be
“antithetical to good-faith bargaining” (Haymarket Bookbinders, Inc., 183 NLRB 121, 121 (1970))
and a “per se violation of Section 8(a)(5) of the Act.” Alle Arecibo Corp., 264 NLRB 1267, 1274
(1982). As discussed below, the Respondent and Piccerelli skipped the step of unlawfully
soliciting employees to decertify—they simply took it upon themselves to gauge employees’ union
sympathies and withdraw recognition from the Union on behalf of the employees. Still,
Piccerelli’s interrogation efforts were the basis for the Employer’s withdrawal of recognition, and
thus, just as would an unlawfully solicited decertification effort, add to the 8(a)(5) refusal to
bargain violation.
2. The second reason to reject the Respondent’s claim that it was privileged to withdraw
recognition from the Union is that interrogating employees about their union sympathies is not an
option under Levitz for amassing evidence that a union lacks majority support.

20

The Levitz unilateral withdrawal doctrine applies when employers are presented with proof
that a union lacks majority support. The doctrine may not be invoked where, as here, an
employer unilaterally seeks out and solicits evidence of employees’ lack of support for the union.
See Levitz, 333 N.L.R.B. at 725 (considering as persuasive evidence the “unsolicited views of
employees regarding representation matters”).

25

As the Board recognized in Levitz, “the selection or rejection of union representation
unavoidably requires some degree of effort and organization on the part of employees, regardless
of the type of petition (including those that are simply presented to employers and are not filed
with the Board.” 331 NLRB at 727. There is “no reason to allow employers to make the
employees’ choice for them by withdrawing recognition from majority unions.” Id.

30

Here, there was no employee effort remove the Union as representative. There was not
even a decertification campaign for the employer to unlawfully assist or unlawfully instigate,
because there simply was no employee effort to remove the Union.15
14

No evidence rebuts the presumption. Nor could it, as the Respondent never resumed
bargaining and the Board’s presumption is rebuttable
only by an employer's showing that employee disaffection arose after the employer
resumed its recognition of the union and bargained for a reasonable period of time
without committing any additional unfair labor practices that would detrimentally
affect the bargaining. Only such a showing of bargaining for a reasonable time will
rebut the presumption.
Lee Lumber, 322 NLRB at 178; see also Lee Lumber, 117 F.3d at 1458.
15
I note that the fact that a decertification petition appears to have been initiated nearly a year
later in April 2018 (Tr. 210–211), just before trial of these cases, is irrelevant to consideration of
the Respondent’s 2017 withdrawal of recognition. Anderson Lumber Co., 360 NLRB 538, 544
(2014) (“In any event, this evidence was acquired long after withdrawal of recognition, was not
relied on by Respondent in withdrawing recognition, and is not relevant for that reason”); enfd.
13

 JD–47–18

5

10

15

20

25

Here, the employer ferretted out employee dissatisfaction, through interrogation, found
what it considered (wrongly) to be enough, and on that basis unilaterally withdrew recognition.
The employees did not seek to remove their Union. The Respondent did. An employer’s
unilateral withdrawal of recognition must be based on an employee effort to reject unionization
that proves lack of majority support, not based on an employer’s unilateral decision that it would
be in the employees’ interest to reject the Union.16
Under Levitz, and, assuming arguendo that the employer had a good-faith doubt about the
union’s support, it could have filed an election (RM) petition with the Board. It did not. It is not
free to withdraw recognition based on evidence of employee lack of support for the Union
purportedly uncovered by its own investigation into employee sympathies.
3. Third, and quite apart from the foregoing, the Respondent’s questioning of employees
about their union sympathies (and with Smith, of the union sympathies of others) under the
circumstances presented was patently unlawful. This provides an independent basis why the
evidence cannot be relied upon to prove lack of majority support.
Of course, not every interrogation is unlawful. Whether the questioning constitutes an
unlawful coercive interrogation must be considered under all the circumstances and there are no
particular factors “to be mechanically applied in each case.” Rossmore House, 269 NLRB 1176,
1178 (1984), enfd. 760 F.2d 1006 (9th Cir. 1985); Westwood Health Care Center, 330 NLRB 935,
939 (2000). The test is an objective one that does not rely on the subjective aspect of whether
the employee was, in fact, intimidated. Multi-Ad Services, Inc., 331 NLRB 1226, 1227–1228
(2000), enfd. 255 F.3d 363 (7th Cir. 2001).
However, in general it is unlawful for an employer to inquire as to the union sentiments of
employees. President Riverboard Casinos of Missouri, 329 NLRB 77 (1999). As the Board has
explained, “In our view any attempt by an employer to ascertain employee views and sympathies
regarding unionism generally tends to cause fear of reprisal in the mind of the employee if he
replies in favor of unionism and, therefore, tends to impinge on his Section 7 rights.” Struksnes
Construction Co., 165 NLRB 1062, 1062 (1967).17
___________________________
801 F.3d 321, 333-334 (D.C. Cir. 2015); Pacific Beach Hotel, 356 NLRB 1397, 1398 fn. 9 (2011),
enfd. 693 F.3d 1051 (9th Cir. 2012).
16

This case is a textbook reason why (Levitz, supra at 724 fn. 45):

Employers’ invocation of employee free choices as a rationale for withdrawing
recognition has, with good reason, met with skepticism. As the Supreme Court
observed in Auciello Iron Works v. NLRB, [517 U.S. 781 (1996),] “The Board is
accordingly entitled to suspicion when faced with an employer's benevolence as its
workers' champion against their certified union, which is subject to a decertification
petition from the workers if they want to file one. There is nothing unreasonable in
giving a short leash to the employer as vindicator of its employees' organizational
freedom.” 517 U.S. at 790. See also NLRB v. Cornerstone Builders, Inc., 963 F.2d
at 1078 (“unilateral withdrawal is based on the subjective belief of an inherently
biased party”).
17
In a sense, what the Respondent did here was to conduct a poll, among a few employees,
but it was a poll that lacked almost every procedural safeguard required by the Board. See,
Struksnes Construction Co., 165 NLRB 1062 (1967). The Respondent does not claim that it
14

 JD–47–18

5

10

15

20

25

30

35

40

In this case, considering all the circumstances, the unlawful nature of the questioning is
not open to serious question. Here, the top official of the Respondent had what he described as
“official” meetings, one-on-one, with three different employees in his office, outside of regular
work routines, for the purpose of inquiring directly of them their views on union representation,
and in Smith’s case, the views of other employees on unionization. None of the employees were
open union supporters or activists. This was decidedly no casual questioning—Piccerelli wanted
to know the employees’ union sympathies---he pointedly asked Smith, asked Dunn to find out
about Sosa’s sympathies, and called O’Brien and Brathwaite into one-on-one meetings for the
purpose of questioning them about their views on the Union. And two of three employees made
clear that their concern was with obtaining higher wages, notable as Piccerelli’s questioning
occurred at the same time that the Respondent was evading the Union’s entreaties to bargain for
higher wages in light of the anticipated auction proceeds. Instead of honoring the duty to bargain,
Piccerelli set out to quiz employees on their union sympathies and relied upon it in a misguided
effort to free the Respondent from its duty to bargain. Finally, Piccerelli did not give the
employees a legitimate reason for the inquiry or assure them that no reprisals would follow
regardless of their answers. NLRB v. Champion Laboratories, 99 F.3d 223, 230 (7th Cir. 1996)
(calling these clarifications “important considerations” in determining whether an interrogation
about union sentiments is coercive). These interrogations do not pass muster under 8(a)(1).
While it is not necessary to find an independent violation of the Act in order for the
illegitimate interrogation of employees to preclude a withdrawal of recognition based on the
interrogations, it is appropriate to find such independent violations here. Notwithstanding 10(b)'s
restrictions, “[i]t is well settled that the Board may find and remedy a violation even in the absence
of a specific allegation in the complaint if the issue is closely connected to the subject matter of
the complaint and has been fully litigated.” Pergament United Sales, 296 NLRB 333, 334 (1989),
enfd. 920 F.2d 130 (2d Cir. 1990).
And that is particularly so where, as here, “the finding of a violation is established by
testimonial admissions of the Respondent's own witnesses.” Id. In this case, the interrogations
of employees Smith, Brathwaite, and O’Brien, were raised at the trial by the Respondent. These
interrogations formed its defense to the 8(a)(5) bargaining violations alleged by the General
Counsel. The Respondent raised the interrogations as the grounds for justifying its withdrawal of
recognition and refusal to bargain. The Respondent, on direct examination of its own witnesses,
explained the process of these interrogations. There is no issue of due process as the
Respondent independently, and purposely, raised the entire subject for its own purposes.
Thus, I find that the Respondent, through Piccerelli, violated Section 8(a)(1) of the Act by
“specifically” asking Smith in or around late May 2017, “if any other bargaining unit employees felt
the way he did about the bargaining unit,” by “specifically” asking Braithwaite in or around late
May 2017, “how he felt about the representation he had from the Union . . . . [a]nd if he wanted to
continue forward having representation of the Union,” and by asking employee O’Brien into his
office in late May or early June 2017, to gauge “what his interest was in having representation by
the Union” which led to Piccerelli asking him if he wanted to be represented by the Union.18
___________________________
conducted a lawful poll of employees. To the extent Piccerelli’s questioning is considered polling,
it is plainly an unlawful interrogation under Strucknes.
18
I note that the General Counsel moved posthearing to amend the complaint to allege that
Piccerelli unlawfully interrogated Brathwaite and O’Brien, and that Dunn unlawfully interrogated
Sousa. The Respondent opposes the motion on two grounds: first, that the allegations the
General Counsel seeks to add are “unsubstantiated,” in that the Respondent argues that the
15

 JD–47–18
Unlawful interrogations such as those conducted here necessarily cannot provide the
basis for a withdrawal of recognition, as withdrawals of recognition must be based on “the free
and uncoerced act of the employees concerned.” See Eastern States Optical Co., 275 NLRB
371, 372 (1985). Accordingly, I reject the Respondent’s withdrawal-of-recognition defense.
5

10

4. Fourth, the Employer’s withdrawal of recognition was illegitimate under Levitz
because, apart from how it was procured, the evidence that the Respondent is relying on does
not prove the Union’s lack of majority support.
Under Levitz, it is the employer’s burden to prove a loss of majority support by the
preponderance of the evidence. Levitz, 333 NLRB at 725. “Thus, in order to rebut the continuing
presumption of majority status, the employer bears the burden of showing, through objective
evidence, an actual loss of the union's majority status at the time of the withdrawal of
recognition.” Wurtland Nursing & Rehabilitation Center, 351 NLRB 817, 817–819 (2007); Levitz,
supra at 725. As the Board in Levitz, supra at 725, explained:

15

20

25

[A]n employer with objective evidence that the union has lost majority support—for
example, a petition signed by a majority of the employees in the bargaining unit—
withdraws recognition at its peril. If the union contests the withdrawal of
recognition in an unfair labor practice proceeding, the employer will have to prove
by a preponderance of the evidence that the union had, in fact, lost majority
support at the time the employer withdrew recognition. If it fails to do so, it will not
have rebutted the presumption of majority status, and the withdrawal of recognition
will violate Section 8(a)(5).
Under Levitz, “In analyzing the adequacy of an employer's defense to a withdrawal of
recognition allegation, the Board will only examine factors actually ‘relied on’ by the employer.
RPT Co., 334 NLRB 466, 469 (2001), enfd. 315 F.3d 951 (8th Cir. 2003), quoting Holiday Inn of
Dayton, 212 NLRB 553, 553 fn. 1 & 556 (1974). “Conduct of which the employer may have been
aware, but on which the employer ‘did not base’ its decision to withdraw recognition from the
___________________________
evidence shows the interrogations were not coercive; and second, that the amendments are
“futile” based on the claim that a petition for decertification was filed with the Board by employees
as of April 20, 2018, and if the Board changes its blocking-charge policy the decertification
petition “could very well render the whole [unfair labor practice] proceeding moot.” Objections of
RI PBS Foundation to General Counsel’s Motion to Further Amend Complaint at 3.
Given my finding of violation in the text based on Pergament, supra, I deny the portions of the
General Counsel’s motion to further amend relating to the interrogation of Brathwaite and O’Brien
as moot. Absent the Pergament-based finding of violation, I would grant the motion to amend the
complaint to plead the new allegations. And I would find a violation as to the interrogation of
Brathwaite and O’Brien. The new allegations are closely related to the current litigation, are
based on evidence that the Respondent advanced, and the motion was made more than 7 weeks
before the parties filed posthearing briefs. I do not believe there would be any prejudice to the
Respondent in the granting of the motion. At least as to interrogation of Brathwaite and O’Brien,
for the reasons stated in the text, I reject the Respondent’s assertion that the allegations of
unlawful interrogation are unsubstantiated. As to the Respondent’s futility argument, it is a non
sequitur. A decertification petition, with or without a change in the Board’s blocking-charge rule,
cannot render moot the unfair labor practice proceeding. I do, however, deny the General
Counsel’s motion to amend the complaint to include the allegation that Dunn unlawfully
interrogated Sousa. Based on my crediting of Sousa’s testimony that Dunn never asked him his
views of the Union, the amendment is futile, and I deny it on those grounds.
16

 JD–47–18

5

Union, is of ‘no legal significance.’ Id.; In Re Narricot Industries, L.P., 353 NLRB 775, 791 (2009)
Highlands Regional Medical Center, 347 NLRB 1404, 1407 fn. 17 (2006) (“We need not address
the sufficiency of the hearing testimony . . . because this evidence was not before the
Respondent when it withdrew recognition”), enfd. 508 F.3d 28, 32 (D.C. Cir. 2007). See also
Anderson Lumber Co., 360 NLRB at 544; Pacific Beach Hotel, 356 NLRB at 1398 fn. 9.
Under these standards, and quite apart from the illegitimacy of the Respondent’s method
of assaying employee support for the Union, the evidence relied upon by the Respondent does
not prove that the Union did not have majority support.

10

15

20

The fact is, the Respondent is relying upon the frustrated, intermittent, and random
complaints of employees about the quality of union representation, or the lack of necessity of a
union, or negative encounters with a shop steward related to or solicited by management, for its
claim that employees are rejecting union representation. Perhaps, although I do not decide, this
is the stuff of “good faith doubt” (albeit it not “good faith disbelief”19), but it is not proof of a lack of
majority support.
The unilateral withdrawal of recognition based on a lack of majority support is a
substitute—a proxy for—a Board election (based on either an RM or an RD petition) where
employees have an opportunity to vote to express their desire to remove the union as the
bargaining representative. Without regard to the question of the format or method by which
employees may provide the employer with objective proof of a lack of majority support, whatever
method is used must be sufficient to prove by a preponderance of evidence that a majority of
employees want to reject union representation, as they would if the matter were put to a vote.

25

30

This is what a lack of majority support means—that a majority want the recognized
collective-bargaining representative removed as the employees’ bargaining representative. This
is more than an employee who individually wants nothing to do with the Union, while failing to
objectively provide the employer with evidence that he or she wants the Union removed as the
unit employees’ bargaining representative. This is more than frustration or anger at the union, or
feelings that the union is not doing the job that the employees want it to do. To permit an
employer to unilaterally withdraw recognition on such a showing would be to allow the
reintroduction of withdrawal of recognition based on a good-faith doubt standard that was rejected
in Levitz.

35

40

45

Citing, Wurtland Nursing & Rehabilitation Center, 351 NLRB 817, 817–819 (2007), the
Respondent points out that Levitz does not require that the evidence proving loss of majority
support be “unambiguous.” But the evidence must, at least ambiguously, and then by a
preponderance of the evidence, prove that the Respondent knew from objective evidence that the
union lacked majority of support—i.e., that the employees wanted the union removed as the unit
employees’ bargaining representative.
In Wurtland, a majority of employees signed a petition saying they wanted “a vote to
remove the Union.” The Board majority reasoned that this language was ambiguous: it could be
read to mean that the employees merely wanted a vote on decertification, or, the Board found
that, more reasonably, it could be read that to mean that the employees wanted a vote in order to
and so that they could “remove the Union.” On this basis, the Board in Wurtland found it “more
probable than not that the employees rejected union representation.” 351 NLRB at 819.
19

See, Allentown Mack Sales, 316 NLRB 1199, 1206, 1208 (1995), enfd. 83 F.3d 1483 (D.C.
Cir. 1996), revd. 522 U.S. 359 (1998).
17

 JD–47–18

5

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By contrast, in the instant case, the credited evidence of what employees told Dunn and
Piccerelli cannot be read as stating a desire to not have the Union as the bargaining
representative. The credited testimony of Dunn and Piccerelli does not say that, even
ambiguously. The Levitz standard means that complaints about the Union, even a lot of them,
that never and under no reading evince an intention to reject union representation and a desire to
remove the union as representative, cannot cross the threshold set by Levitz for an employer to
successfully claim it possessed proof of a lack of majority support for the Union.
Here, the Levitz standard has not been met. Indeed, one of the four—out of a unit of
seven—O’Brien, literally told Piccerelli, in answer to the question of his interest in having a union,
that he did not know “how he would vote” if the issue came to a vote. While he did not feel “that
he needed to have Union representation . . . he also felt that he didn’t want to go against the
friends that he had at the station if [union representation] was something that they wanted. And
that he would, you know, think about it going forward.” Piccerelli characterized this answer as
“wishy-washy,” and that is fair, because this employee affirmatively expressed that he was
undecided as to whether he wanted to reject the Union.
This fails to meet the Levitz standard, and without O’Brien, the Respondent’s lack-ofmajority-support defense fails. But the problem is not just with O’Brien.

20

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Piccerelli’s account of his discussion with Smith involved nothing that can be held out as
objective proof that he did not want to be represented. Unhappy with the Union, yes. But proof
that he wanted the union removed as the representative—it is not there. Piccerelli testified that
the subject of the conversation was Smith’s desire to be “fairly compensated.” Piccerelli testified
that although he could not remember Smith’s exact words, “I can say that he was not pleased
with the representation that he was getting from the Union in terms of his compensation.”
Although Piccerelli could not “recall his exact words,” Smith’s “message was that he did not feel
that the Union was providing him adequate representation towards compensation.” According to
Piccerelli, Smith said that “he did not feel like he was being fairly represented by the Union.”
According to Piccerelli, Smith was “not very specific,” but just expressed “general displeasure.”
According to Piccerelli, Smith “[d]idn’t feel that he needed them to represent him, felt that, you
know, doing his work would merit whatever increases that he deserves.” Piccerelli also testified
that he had spoken to Smith “two or three other times over the years,” specifically recalling once,
“probably sometime May of ’16 or earlier . . . definitely more than a year” or “almost a year” prior
to the June 2017 conversation with Smith, when Smith was in tears and said that “he was looking
for more money and that the Union was not doing anything to get him more money.
Nor does Dunn’s testimony—at least not the portion of Dunn’s testimony that I have
credited—prove that Dunn obtained evidence that Smith did not want union representation.20
Dunn’s credited testimony is that in April or May of 2017, Smith relayed to Dunn an argument he
had with Shop Steward Gannon over moving staging equipment, in which Smith told Dunn that he
(Smith) told Gannon in the middle of an argument that “you don’t represent me.” Dunn claimed
that over the years Smith repeatedly complained about his wages and said that the Union was
not helping him.

20

As explained, supra, for the reasons stated, I do not credit Dunn’s mantra-like testimony that
employees told him “there is no union,” or they “didn’t feel that there was a union,” or that the
employees told him they “do not feel that they’re represented by a Union.”
18

 JD–47–18

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Piccerelli testified that Brathwaite told him that “he didn’t feel it was necessary to have
representation from the Union.” According to Piccerelli, Brathwaite “reiterated basically what Mr.
Smith said and that he did not feel that they were being fairly represented in terms of their
compensation and other benefits from the Union.” Dunn testified that Brathwaite “expressed the
same sentiment” as Smith after the dust-up with Shop Steward Gannon and further complained to
Dunn that the Union has “their own agenda, they never asked me who I wanted for shop
steward.”21
As to Sousa, Piccerelli asked Dunn to check with Sousa and see what his feelings were
on having representation by the Union. According to Piccerelli, Dunn said he would do so and
subsequently told Piccerelli that Sousa “was not interested in having representation by the
Union.” However, Levitz requires proof of lack of majority support. What Piccerelli testified that
Dunn told him that Sousa said is not reliable evidence. The issue is not what Dunn told Piccerelli,
but what the Respondent can prove it knew from objective evidence. Dunn did not recall
Piccerelli asking him to speak to Sousa about how he felt about union representation, or following
up with a report on it to Piccerelli, thus further rendering what Piccerelli says Dunn told him, proof
of nothing. Moreover, Sousa testified credibly that Dunn never asked him how he felt about the
Union (Tr. 185). Thus, Piccerelli’s source for his information on Sousa, Dunn, misled Piccerelli.
As to the credited portions of Dunn’s testimony, Dunn testified that “from 2016 on” Sousa “would
often say . . . there’s no contract.” That proves nothing.

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The foregoing does not demonstrate by the preponderance of the evidence that the
Respondent knew based on its discussions with the four employees that they did not want the
unit to be represented by the Union. That is not what Piccerelli was told—by his own account—
when he interrogated Smith, Brathwaite, and O’Brien. Dunn told Piccerelli that he asked Sousa
and Sousa did not want union representation—but the credited evidence suggests that Dunn did
not really follow Piccerelli’s instructions and put the question to Sousa. Rather, Dunn just told
Piccerelli that he had checked with Sousa and that Sousa did not want the Union. Dunn’s
credited testimony consists of random, vague, mostly undated conversations with the four
employees, from which he decided from their negative and frustrated comments about the Union,
that they rejected union representation. (That Dunn may have formed an opinion over years of
lunches with Sousa, and contact with other employees, that they did not want Union
representation, cannot stand-in for the claim that in late May/early June 2017, the Respondent
had proof that Sousa or the others specifically said they do not want union representation. See,
Port Printing Ad and Specialties, 344 NLRB 354, 357 (2005) (dated conversations with
employees do not prove current lack of majority support at time employer withdrew recognition),
enfd. 192 Fed. Appx. 290 (5th Cir. 2006)).
Notably, the Respondent withdrew recognition based on its discussions with these four
employees who were part of a seven-person unit. If the statements of even one do not qualify as
proof that they wanted to reject union representation, the Respondent’s defense fails. I find that

21

Brathwaite’s remark to Piccerelli is slightly stronger than Smith’s comments, as it was in
response to Piccerelli asking him “if he wanted to continue forward having representation of the
Union.” But again, even putting aside for the moment the remarkable context in which an
employee is publicly paged to come into the company president’s office to ask him about his
union sympathies, Braithwaite’s guarded construction fails to prove that he wanted to reject union
representation. He merely and literally said, when quizzed by the top manager of the Employer,
that “he didn’t feel it was necessary”—there is much space between that and proof that he wants
to remove the union as representative.
19

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the statements of these employees relied upon by the Respondent are inadequate to prove
objectively that any one of the four wanted to reject union representation.
I would add that the employees’ testimony about what they told Dunn and Piccerelli must
be separated from what Dunn and Piccerelli testified that they were told. While the employees’
testimony could have corroborative value, it is not independent relevant objective evidence of
employees’ lack of support for the Union. As referenced above, under Levitz, “In analyzing the
adequacy of an employer's defense to a withdrawal of recognition allegation, the Board will only
examine factors actually ‘relied on’ by the employer.” RPT Co., 334 NLRB 466, 469 (2001), enfd.
315 F.3d 951 (8th Cir. 2003), citing Holiday Inn of Dayton, 212 NLRB 553, 553 fn. 1 & 556 (1974).
“Conduct of which the employer may have been aware, but on which the employer ‘did not base’
its decision to withdraw recognition from the Union, is of ‘no legal significance.’ Id; In Re Narricot
Industries, L.P., 353 NLRB 775, 791 (2009) Highlands Regional Medical Center, 347 NLRB 1404,
1407 fn. 17 (2006) (“We need not address the sufficiency of the hearing testimony . . . because
this evidence as not before the Respondent when it withdrew recognition”), enfd. 508 F.3d 28, 32
(D.C. Cir. 2007); Anderson Lumber Co., 360 NLRB at 544; Pacific Beach Hotel, 356 NLRB at
1398 fn. 9.
5

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Thus, to the extent an employee made statements to the employer tending show lack of
support for union representation but neither Dunn nor Piccerelli testified to knowing about it, much
less rely upon it, such statements are of no legal significance under Levitz.
I note that in addition to disregarding this employee testimony to the extent it was not
relied upon by Dunn or Piccerelli in credited evidence, I disregard it (at least with regard to Smith
and Braithwaite) for a completely different reason: Braithwaite admitted that he, Smith, and
Piccerelli met together the morning of their testimony to discuss their testimony. Tr. 221–223.
This is a flagrant violation of the sequestration order entered in this case at the
commencement of the hearing the day before. I note that the taint is severe, without regard to
their intentions. At least in the Respondent’s view, the outcome of this case turns on what its
employee witnesses and its managers testified that they talked about with each other in
conversations where no one else was present in late May or early June 2017. Thus, the violation
of the sequestration rule, in which these same employees met with Piccerelli before testifying to
discuss their testimony about those very conversations, strikes at the heart of the credibility of the
Respondent’s case.22
In sum, the evidence proffered does not constitute proof by a preponderance of evidence
that a majority of employees do not want union representation. It proves only that the
Respondent solicited and seized upon the employees’ negative comments about the Union to
22

At the commencement of the hearing I granted counsel for the General Counsel’s motion for
a sequestration order and identified on the record (Tr. 9) that the rule to be in effect in the hearing
was to be the Board’s model sequestration rule set forth in Greyhound Lines, 319 NLRB 554
(1995). Counsel were instructed to familiarize themselves with the rule and ensure that any
witnesses not present at the time the order was entered were informed of their obligations under
the rule. Throughout the hearing I reminded witnesses, and thereby reminded counsel, that we
were operating under a sequestration rule and that they should not discuss their testimony with
any potential witness. See, e.g., Tr. 61, 177, 187, 211. I further note that the Respondent’s
violation of the sequestration rule was elemental. If a sequestration order means anything, it
means that witnesses should not discuss their testimony with each other before all of them have
finished testifying.
20

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claim the outcome it wanted. Accordingly, the Respondent’s defense to the 8(a)(5) allegations
fails.23
CONCLUSIONS OF LAW
5
1. The Respondent Rhode Island PBS Foundation is an employer within the meaning of
Sections 2(2), (6), and (7) of the Act.
10

2. The Charging Party International Brotherhood of Electrical Workers, Local 1228, AFL-CIO
(Union) is the exclusive collective-bargaining representative of the following appropriate unit
of the Respondent’s employees (the Unit):
All full-time and regular part-time Maintenance Engineers, Television/
Broadcast/Watch Engineers and Telecommunications/Television Technicians
employed by the Employer, but excluding all other employees, guards, and
supervisors as defined in the Act.

15

3. The Respondent violated Section 8(a)(1) of the Act, in or around late May 2017, by coercively
interrogating employee Mark Smith about the union sympathies of his co-employees.
20
4. The Respondent violated Section 8(a) (1) of the Act, in or around late May 2017, by
coercively interrogating employee Joseph Braithwaite about his union sympathies.
25

5. The Respondent violated Section 8(a)(1) of the Act, in or around late May or early June 2017,
by interrogating employee Patrick O’Brien about his union sympathies.
6. The Respondent violated Section 8(a)(5) and (1) of the Act by, beginning on or about May 11,
2017, failing and refusing to meet with the Union for the purposes of negotiating a collectivebargaining agreement for the employees of the Unit.

30
7. The Respondent violated Section 8(a)(5) and (1) of the Act, on or about October 19, 2017, by
unilaterally withdrawing recognition from the Union as the exclusive collective-bargaining
representative of the employees of the Unit.
35

8. The Respondent violated Section 8(a)(5) and (1) of the Act, on or about October 31, 2017, by
failing and refusing to furnish the Union with requested and relevant information necessary to
the Union’s performance of its duties as the exclusive collective-bargaining representative of
the employees of the Unit.

40

9. The Respondent violated Section 8(a)(5) and (1) of the Act, on or about December 31, 2017,
by unilaterally granting a wage increase to unit employees Nick Moraites and Mark Smith
without providing the Union with notice and an opportunity to bargain over the wage increase.

45

10. The unfair labor practices committed by Respondent affect commerce within the meaning of
Section 2(6) and (7) of the Act.
23

I do not reach a final issue raised by the General Counsel (GC Br. at 17–18)—i.e., that even
assuming, arguendo, the Respondent had evidence of lack of majority support for the Union in
May/June 2017, such dated evidence could not be a basis for an October 19, 2017 withdrawal of
recognition, nearly five months later. Given my findings that the evidence on which the
Respondent based its withdrawal of recognition was invalid for multiple independent reasons, I
need not and decline to reach this final issue.
21

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REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
5

10

15

The Respondent having violated Section 8(a)(5) and (1) of the Act by failing and refusing
to meet with the Union for the purposes of negotiating a collective-bargaining agreement, and by
withdrawing recognition from the Union as the collective-bargaining representative of the unit
employees, shall be ordered recognize the Union and, upon request, bargain for a reasonable
period of time (as set forth in Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), enfd.
310 F.3d 209 (D.C. Cir. 2002)) with the Union as the bargaining representative of the unit
employees with respect to wages, hours, and other terms and conditions of employment and, if
an understanding is reached, embody the understanding in a signed document.
The Board has previously held that an affirmative bargaining order is “the traditional,
appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective-bargaining
representative of an appropriate unit of employees.” Caterair International, 322 NLRB 64, 68
(1996). For the reasons set forth in Caterair, and applying this Board precedent, an affirmative
bargaining order is warranted as a remedy here.

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While the Board applies Caterair, in several cases, the U.S. Court of Appeals for the
District of Columbia Circuit has required the Board to justify on the facts of each case the
imposition of an affirmative bargaining order. See, e.g., Vincent Industrial Plastics, Inc. v. NLRB,
209 F.3d 727, 738–739 (D.C. Cir. 2000); Lee Lumber & Building Material Corp. v. NLRB, 117
F.3d 1454, 1462 (D.C. Cir. 1997); Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir.
1994). In view of this, the Board analyzes the facts in accordance with the D. C. Circuit cases
which, as summarized by the Court in Vincent, supra at 738, require that an affirmative
bargaining order “must be justified by a reasoned analysis that includes an explicit balancing of
three considerations: (1) the employees' § 7 rights; (2) whether other purposes of the Act override
the rights of employees to choose their bargaining representatives; and (3) whether alternative
remedies are adequate to remedy the violations of the Act.”
Adhering to the Board's approach, and analyzing the facts of this case under the threefactor balancing test outlined by the D.C. Circuit, I find that the facts warrant an affirmative
bargaining order here.
(1)
An affirmative bargaining order in this case vindicates the Section 7 rights of the
unit employees who were denied the benefits of collective bargaining through their designated
representative by the Respondent's refusal to meet to bargain from and then by the Respondent’s
withdrawal of recognition. As discussed above, the Respondent’s refusal to recognize and
bargain with the Union occurred at a time when the Union was repeatedly requesting bargaining,
during a time when the employer was providing unilateral wage increases to employees, but also
during a time when there was no employee effort to decertify the Union.
(2)
At the same time, an affirmative bargaining order, with its attendant bar to raising a
question concerning the Union's continuing majority status for a reasonable time, does not unduly
prejudice the Section 7 rights of employees who may oppose continued representation by the
Union because the duration of the order is no longer than is reasonably necessary to remedy the
ill effects of the violation. Since the Union was unfairly deprived of an opportunity to reach an
agreement with the Respondent, it is only by restoring the status quo ante and requiring the
Respondent to bargain with the Union for a reasonable period of time that the employees will be
22

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5

10

able to fairly assess the Union's effectiveness as a bargaining representative in an atmosphere
free of the Respondent's unlawful conduct. The employees can then determine whether
continued representation by the Union is in their best interest. This is particularly important here,
as the record demonstrates that the Respondent exploited employees’ frustrations with the Union,
which, in part, resulted from the Respondent’s refusal to collectively bargain for higher wages, to
justify its unlawful conduct.
(3)
An affirmative bargaining order also serves the policies of the Act by fostering
meaningful collective bargaining and industrial peace. It removes the Respondent's incentive to
delay bargaining in the hope of further discouraging support for the Union. It also ensures that
the Union will not be pressured by the possibility of a decertification petition or by the prospect of
an imminent withdrawal of recognition to achieve immediate results at the bargaining table
following the Board's resolution of its unfair labor practice charges and the issuance of a ceaseand-desist order.

15

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(4)
A cease-and-desist order, without a temporary decertification bar, would be
inadequate to remedy the Respondent's withdrawal of recognition and refusal to bargain with the
Union because it would permit another challenge to the Union's majority status before the taint of
the Respondent's previous unlawful withdrawal of recognition has dissipated. Such a result
would be particularly unfair in circumstances such as those here, where the Respondent’s unfair
labor practices precluded effective bargaining representation and rendered it difficult if not
impossible for the Union to win back employee support that it had lost. Allowing another
challenge to the Union's majority status without a reasonable period for bargaining would be
unjust given that the Respondent's withdrawal of recognition would likely have a continuing effect,
thereby tainting any employee disaffection from the Union arising during that period or
immediately thereafter. In these circumstances, permitting a decertification petition to be filed
immediately might very well allow the Respondent to profit from its own unlawful conduct. I find
that these circumstances outweigh the temporary impact the affirmative bargaining order will
have on the rights of employees who oppose continued union representation.

30
For all the foregoing reasons, I find that an affirmative bargaining order with its temporary
decertification bar is necessary to fully remedy the violations in this case.
35

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The Respondent, having unlawfully failed and refused to furnish the Union with requested
and relevant information, shall provide the Union with the information requested in its October 31,
2017 information request.
The Respondent, having violated Section 8(a)(5) and (1) of the Act by unilaterally granting
employee wage increases shall be ordered, upon the Union’s request, to rescind these unilateral
changes and restore the status quo ante.
The Respondent shall post an appropriate informational notice, as described in the
attached appendix. This notice shall be posted at the Respondent's facility wherever the notices
to employees are regularly posted for 60 days without anything covering it up or defacing its
contents. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means. In the
event that during the pendency of these proceedings the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at any time since May 11, 2017. When the notice is issued to the Respondent, it
23

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shall sign it or otherwise notify Region 1 of the Board what action it will take with respect to this
decision.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended24
5
ORDER
The Respondent Rhode Island PBS Foundation, Providence, Rhode Island, its officers,
agents, successors, and assigns, shall
10
1. Cease and desist from:
(a) Coercively interrogating employees about their union sympathies or the union
sympathies of other employees, including whether they want the International
Brotherhood of Electrical Workers, Local 1228 (Union) to continue as their
collective-bargaining representative.

15

(b) Refusing to bargain collectively with the Union by failing and refusing to meet with
the Union to negotiate a collective-bargaining agreement for the following
appropriate unit:

20

All full-time and regular part-time Maintenance Engineers, Television/
Broadcast/Watch Engineers and Telecommunications/Television
Technicians employed by the Employer, but excluding all other
employees, guards, and supervisors as defined in the Act.

25

(c) Refusing to bargain collectively with the Union by withdrawing recognition from the
Union and failing and refusing to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the bargaining unit employees.
30
(d) Refusing to bargain collectively with the Union by failing and refusing to furnish it
with requested information that is relevant and necessary to the Union's
performance of its functions as the collective-bargaining representative of the
Respondents' unit employees.
35
(e) Refusing to bargain collectively with the Union by unilaterally granting wage
increases to employees without first notifying the Union and giving it an opportunity
to bargain.
40

(f) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:

45

(a) Upon request of the Union, bargain with the Union for a reasonable period as set
forth in the remedy portion of the foregoing decision as the exclusive collective24

If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
24

 JD–47–18
bargaining representative of the employees in the above-described unit concerning
terms and conditions of employment and, if an understanding is reached, embody
the understanding in a signed agreement.
5

(b) Furnish to the Union in a timely manner the information requested on or about
October 31, 2017.
(c) Upon request of the Union, rescind the unilateral wage increases granted to unit
employees Nick Moraites and Mark Smith on or about December 31, 2017.

10
(d) Within 14 days after service by the Region, post at its facility in Providence, Rhode
Island, copies of the attached notice marked "Appendix." 25 Copies of the notice,
on forms provided by the Regional Director for Region 1, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. In addition to physical
posting of paper notices, notices in each language deemed appropriate shall be
distributed electronically, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy
of the notice in each appropriate language, to all current employees and former
employees employed by the Respondent at any time since May 11, 2017.

15

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25

(e) Within 21 days after service by the Region, file with the Regional Director for
Region 1 a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has taken to comply

30

Dated, Washington, D.C. July 23, 2018

ht,
,t CIL
35

David I. Goldman
U.S. Administrative Law Judge

25

If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
25

 JD–47–18

APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT coercively interrogate you about your union sympathies or about other employees’
union sympathies, including whether you want the International Brotherhood of Electrical
Workers, Local 1228 (Union) to continue as your collective-bargaining representative.
WE WILL NOT refuse to bargain collectively with the Union by failing and refusing to
negotiate a collective-bargaining agreement for the following appropriate unit of
employees:
All full-time and regular part-time Maintenance Engineers, Television/
Broadcast/Watch Engineers and Telecommunications/Television Technicians
employed by the Employer, but excluding all other employees, guards, and
supervisors as defined in the Act.
WE WILL NOT refuse to bargain collectively with the Union by withdrawing recognition
from the Union and failing and refusing to recognize and bargain with the Union as the
collective-bargaining representative of our unit employees.
WE WILL NOT refuse to collectively bargain with the Union by failing and refusing to furnish the
Union with requested information that is relevant and necessary to the Union's performance of its
functions as the collective-bargaining representative of our unit employees.
WE WILL NOT refuse to bargain collectively with the Union by unilaterally granting wage
increases to employees without first notifying the Union and giving it an opportunity to
bargain.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights listed above.

 JD–47–18

WE WILL, upon request of the Union, bargain with the Union as the collective-bargaining
representative of our unit employees concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed agreement.
WE WILL furnish the Union with the information requested by it on or about October 31, 2017.
WE WILL, upon request of the Union, rescind the unilateral wage increases granted to employees
Nick Moraites and Mark Smith on or about December 31, 2017.
RHODE ISLAND PBS FOUNDATION
(Employer)
Dated

By

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the
Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional
Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
10 Causeway Street, 6th Floor, Boston, MA 02222–1072
(617) 565-6700, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/01–CA–204520 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (617) 565-6700.