River's Bend Health and Rehab Services

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350 NLRB No. 16 184 Extendicare Health Services, Inc. d/b/a River’s Bend Health and Rehabilitation Service and American Federation of State, County and Municipal Em- ployees, AFL–CIO, Local 913. Case 30–CA– 16746–1 June 29, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On June 29, 2005, Administrative Law Judge Arthur J. Amchan issued the attached decision. The Respondent filed exceptions, a supporting brief, an answering brief, and a reply brief. The General Counsel filed cross- exceptions, a supporting brief, and an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions1 and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order. This case involves allegations of violations of Section 8(a)(1) and (5) arising in the context of the parties’ nego- tiations for an initial collective-bargaining agreement. The judge found that the Respondent violated Section 8(a)(1) in the following three respects: (1) threatening employees with termination if they engaged in a strike, “regardless of whether or not the strike was lawful;” (2) soliciting employees to report the protected activities of other employees to the Respondent; and (3) threatening employees with discipline if they engaged in protected activities. The judge dismissed the complaint allegation that the Respondent violated Section 8(a)(5) by increas- ing the cost of employee meals without prior notice to the Union and without affording it an opportunity to bar- gain. For the reasons stated by the judge, we affirm his dis- missal of the 8(a)(5) allegation. For the reasons stated below, we reverse the judge’s findings of three violations of Section 8(a)(1). Accordingly, we shall dismiss the complaint in its entirety. I. FACTS The facts, set forth more fully in the judge’s decision, can be summarized as follows. The Respondent operates nursing homes throughout the United States. The Respondent purchased the River’s Bend nursing home in Manitowoc, Wisconsin, 1 No exceptions were filed to the judge’s dismissal of the complaint allegation that the Respondent violated Sec. 8(a)(1) of the Act by tell- ing employees that they had no obligation to pay union dues. on January 1, 2004.2 The Union had a collective- bargaining relationship with the prior owner of the facil- ity. The Respondent voluntarily recognized the Union, and the parties entered into contract negotiations. On January 15, the Union sent a letter to the Respon- dent and the Federal Mediation and Conciliation Service (FMCS) informing them that the Union may picket, strike, or engage in other concerted refusal to work on or after January 29. On January 19, the Union informed the Respondent and the FMCS that it revised the strike no- tice to indicate that “the strike will commence no earlier than 12:01 on the morning of January 31, 2004.”3 Between January 15 and 21, Candy Gremore, the Re- spondent’s administrator, received a report from an em- ployee that she had been threatened that she would have to go on strike “or else.” Gremore reported the threat to Liz Reiss, the Respondent’s regional director of opera- tions. On January 21, Reiss sent a letter to the employees, stating in pertinent part as follows: It is your decision whether or not to go on strike. What the Union may not tell you is that strikers do not re- ceive a paycheck, strikers immediately lose company- paid medical benefits, and strikers do not get unem- ployment benefits. In a strike the Company would be forced to hire replacements to be sure we can take care of the residents. This puts each striker’s continued job status in jeopardy. Some employees are telling us they are being harassed and threatened because they don’t want to go on strike. We will not tolerate any River’s Bend employee being harassed or threatened for any reason, and ask that you report any such conduct to management so we can en- sure you can continue to work in a non-threatening en- vironment. II. ANALYSIS A. Alleged Threat of Termination if Employees Engaged in a Strike The judge found that the Respondent’s statement that the hiring of replacements “puts each striker’s continued job status in jeopardy” constituted a threat of termination in violation of Section 8(a)(1). We disagree. Eagle Comtronics, 263 NLRB 515 (1982), cited by the judge, is the leading case defining the extent of an em- ployer’s obligation, on informing employees that eco- nomic strikers may be replaced, to provide an accurate 2 All dates are in 2004, unless stated otherwise. 3 The Union thereafter revoked its January 19 strike notice. The judge found that the Union’s strike notices of January 15 and 19 did not comply with the requirements of Sec. 8(g) of the Act. There is no exception to that finding. RIVER’S BEND HEALTH & REHABILITATION SERVICES 185 summary of employee rights under Laidlaw.4 The Board held that “an employer does not violate the Act by truth- fully informing employees that they are subject to per- manent replacement in the event of an economic strike.” Id. (Emphasis in original.) The Board explained that “an employer may address the subject of striker replacement without fully detailing the protections enumerated in Laidlaw, so long as it does not threaten that, as a result of a strike, employees will be deprived of their rights in a manner inconsistent with those detailed in Laidlaw.” 263 NLRB at 516. In sum, “[a]s long as an employer’s statements on job status after a strike are consistent with the law, they cannot be characterized as restraining or coercing employees in the exercise of their rights under the Act.” 263 NLRB at 516.5 The Board’s holding in Eagle Comtronics was prem- ised on Section 8(c) of the Act, which “permits an em- ployer to make predictions about the consequences of union representation, provided its remarks are not ac- companied by a threat of reprisal or force or promise of benefit.” Unifirst Corp., 335 NLRB 706, 707 (2001). As such, absent accompanying threats, Eagle Comtronics “articulates the Board’s policy of resolving in the em- ployer’s favor any ambiguity occasioned by a failure to articulate employees’ continued employment rights when informing them about permanent replacement in the con- text of an economic strike.” Id. Applying these principles here, we find that the Re- spondent’s statement did not constitute an unlawful threat. Significantly, the Respondent did not say that replaced strikers would permanently lose their jobs. In- stead, the Respondent stated that the hiring of replace- ments “puts each striker’s continued job status in jeop- ardy.” This statement is entirely consistent with Laidlaw and therefore lawful. If, at the conclusion of an eco- nomic strike, the strikers’ positions are filled by perma- nent replacements, the employer is legally justified in not reinstating the strikers under Laidlaw and its progeny.6 In a very real sense, then, the hiring of permanent re- 4 Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969). 5 In Eagle Comtronics the Board provided the following example of a prohibited comment: Warning permanently replaced strikers that they “would permanently lose their jobs.” 263 NLRB at 516 fn. 8 (emphasis in original). Assertions of this nature are impermissible because they are inconsistent with a striker’s Laidlaw right to reinstatement. 6 See NLRB v. International Van Lines, 409 U.S. 48, 50 (1972) (“[A]n employer may refuse to reinstate economic strikers if in the interim he has taken on permanent replacements.”); Zimmerman Plumbing & Heating Co., 334 NLRB 586, 588 (2001) (“The Board has recognized that one legitimate and substantial justification for not im- mediately reinstating former strikers is a bona fide absence of available work for the strikers in their prestrike or substantially equivalent posi- tions.”). placements places strikers’ “job status in jeopardy” be- cause when the strike ends they may not have a job to which they can immediately return. Instead of working and earning a paycheck, they must wait for a vacancy to arise in their prestrike position or a substantially equiva- lent position.7 Moreover, because the Respondent’s statement about “job status” was not accompanied by any threats, any ambiguity in it must be construed in the Re- spondent’s favor. Unifirst Corp., supra. Contrary to our dissenting colleague’s contention, it is immaterial that the Respondent did not provide employ- ees with a detailed explanation of the Laidlaw doctrine. As stated above, Eagle Comtronics expressly holds that an employer is under no obligation to “explicate all the consequences of being an economic striker,” so long as its “statements on job status after a strike are consistent with the law.” 263 NLRB at 516. That is precisely the situation here. Indeed, in subsequent cases, statements similar to the one in issue here have been found to be permissible. For example, in Novi American, 309 NLRB 544 (1992), the Board found that it was unobjectionable for an employer to state that “striking employees can be replaced by per- manent replacements, and may not have a job when the strike is over.” The Board held that the employer “did not threaten that, as a result of a strike, employees would be deprived of their rights in a manner inconsistent with those in Laidlaw.” Id. at 545. Rather, the employer “was simply informing employees that when a strike ends, strikers may not have a job to which they can im- mediately return.” Id. (Emphasis in original.)8 Additionally, in John W. Galbreath & Co., 288 NLRB 876, 877 (1988), the Board found that it was unobjec- tionable for the employer to advise employees that 7 Our dissenting colleague asserts that in making this finding we have gone beyond the issues and arguments raised in the Respondent’s exceptions. We disagree. The complaint allegation, as to which the General Counsel bears the burden of proof, is that the Respondent unlawfully threatened strikers with job loss. To be sure, the primary thrust of the Respondent’s exceptions and brief is that the challenged statement was lawful because it described possible consequences of participating in a strike that violated Sec. 8(g). We do not, however, view the Respondent as having conceded that the challenged statement was unlawful if its 8(g) argument is rejected. To the contrary, the Re- spondent’s exceptions assert that the judge erred in concluding “that in the absence of any discussion of Section 8(g) and the inadequacy of the Union’s strike notices, an employee would reasonably interpret the January 21 letter as threatening employees with job loss in the event of any strike, regardless of its lawfulness . . . . The basis for this excep- tion is that the record fails to support this Conclusion and it is inconsis- tent with relevant Board law.” In our view, this exception is sufficient to place in issue the judge’s application of Eagle Comtronics, supra. 8 Novi American has been cited with approval in subsequent Board decisions, see, e.g., Manhattan Crowne Plaza, 341 NLRB 619 (2004), and has never been overruled. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 186 “strikers can lose their jobs[;] . . . [h]owever, they are not discharged, technically speaking. But they’re not work- ing . . . .” The Board reasoned that “the statement may leave some employees puzzled about how economic strikers can return to work, but it does not imply that they are discharged.” The cases relied on by the judge and the dissent are distinguishable because in each one the employer ex- ceeded the scope of permissible speech delineated in Eagle Comtronics by threatening employees with perma- nent job loss. See the discussion in footnote 5, above. Thus, in Wild Oats Markets, Inc., 344 NLRB 717, 741– 742 (2005), the employer stated that “when Unions go on strike, . . . many have lost their jobs because striking workers are replaced.” Similarly, in Kentucky River Medical Center, 340 NLRB 536, 546 (2003), the em- ployer stated that replaced strikers would be reinstated only if the employer had openings when the strike was over, “but if the [r]espondent did not then have such openings the employees would lose their jobs.” The Re- spondent, in contrast, did not tell employees they would “lose their jobs,” a phrase that the Board has found clearly conveys to the ordinary employee that his or her employment will be terminated.9 Finally, in Superior Emerald Park Landfill, LLC, 340 NLRB 449, 462 (2003), the employer posted campaign literature that in- cluded the assertion that the law “does not require the Company to rehire you if you have been permanently replaced.” This comment also goes well beyond the Re- spondent’s statement regarding strikers’ continued job status, and, unlike that statement, cannot be reconciled with the employees’ right to reinstatement under Laid- law. Based on all of the above, we find that the Respondent did not threaten that, as a result of a strike, employees would be deprived of their rights in a manner inconsis- tent with Laidlaw. Therefore, the Respondent’s state- ment was lawful under Eagle Comtronics. Accordingly, we reverse the judge’s finding that the Respondent unlawfully threatened the employees with job loss in violation of the Act. B. Alleged Solicitation of Employees to Report the Pro- tected Activities of Other Employees As stated above, the judge also found the following portion of the Respondent’s January 21 letter to be unlawful: Some employees are telling us they are being harassed and threatened because they don’t want to go on strike. We will not tolerate any River’s Bend employee being harassed or threatened for any reason, and ask that you 9 Baddour, Inc., 303 NLRB 275 (1991). report any such conduct to management so we can en- sure you can continue to work in a non-threatening en- vironment. According to the judge, employees receiving the letter could reasonably believe that the Respondent was asking them to report to management protected union activity that they viewed as unwelcome. We disagree. As stated above, before sending the January 21 letter to employees, the Respondent received a report from an employee that she was told that she must go on strike “or else.” Thus, in this case, there is evidence that an em- ployee actually had been threatened. Under similar cir- cumstances, the Board has held that an employer may lawfully assure employees that it will not allow them to be threatened by anyone and that it may ask them to re- port such threats. Liberty House Nursing Homes, 245 NLRB 1194, 1196–1197 (1979).10 Accordingly, in the circumstances of this case, there was nothing unlawful in the Respondent’s request that employees report “threat[s]” by other employees. Therefore, we now turn to the Respondent’s request that employees report instances of harassment. In Lu- theran Heritage Village-Livonia, 343 NLRB 646, 646– 647 (2004), the Board held that in determining whether an employer’s maintenance of a work rule is unlawful, the Board will give the rule a reasonable reading and refrain from reading particular phrases in isolation. Un- der this standard, the Board first looks to “whether the rule explicitly restricts activities protected by Section 7.” Id. at 646. (Emphasis in original.) If it does, then the Board will find the rule unlawful. If it does not, the vio- lation is dependent upon a showing of one of the follow- ing: “(1) employees would reasonably construe the lan- guage to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Id. at 647. In Stanadyne Automotive Corp., 345 NLRB 85, 86–87 (2005), the Board applied the Lutheran Heritage stan- dard to an employer statement prohibiting “[h]arassment of any type.” The Board found initially that the state- 10 Cf. Winkle Bus Co., 347 1203, 1204 (2006) (employer’s letter ask- ing employees to report union threats or coercion found unlawful where no record evidence that the company had in fact received reports of union misconduct or that any such misconduct had taken place); New Haven Register, 346 NLRB 1131 fn. 2 (2006) (employer’s memoran- dum asking employees to report union threats or coercion found unlaw- ful where no evidence that any employee had engaged in such threats or coercion). Chairman Battista dissented in Winkle Bus and would have found that employer’s letter to be lawful. However, he agrees with Member Schaumber that the facts in Winkle Bus are distinguishable from the instant case. RIVER’S BEND HEALTH & REHABILITATION SERVICES 187 ment did not explicitly restrict protected activity. Under the three-factor test set forth above, the Board further found that employees would not reasonably construe the statement to prohibit Section 7 activity, nor was the statement promulgated in response to protected union activity. Rather, the employer issued the statement in response to unsolicited reports it received of unprotected conduct during an organizational campaign. Finally, the statement was not applied to restrict the exercise of Sec- tion 7 rights. Accordingly, the Board concluded that the employer’s statement did not violate Section 8(a)(1). Applying the Lutheran Heritage standard here, we find that the Respondent’s January 21 letter did not explicitly restrict activity protected by Section 7. As we stated in Lutheran Heritage, “some instances of harassment are not protected by the Act.” 343 NLRB at 648. Therefore, a request that employees report instances of harassment to management is not tantamount to a request that em- ployees report protected activity.11 Under the three-factor test described above, we find, first, that employees would not reasonably construe the Respondent’s January 21 letter as requesting reports on the protected activities of other employees, particularly where, as here, the Respondent assured employees in the letter that “[i]t is your decision whether or not to go on strike.” In addition, the Respondent described its con- cern as the limited one of ensuring that all employees “can continue to work in a non-threatening environ- ment.” Giving the Respondent’s letter a reasonable in- terpretation and reading it as a whole, we cannot find that employees would reasonably construe the Respondent’s message as requesting reports on conduct protected by Section 7. Second, contrary to the dissent, the Respondent’s January 21 letter was not promulgated in response to protected union activity. Rather, as in Stanadyne, supra, the Respondent issued the letter in response to unpro- tected conduct (the employee who complained to man- agement that she had been threatened that she must go on strike “or else”). Third, there is no evidence that the Respondent’s Janu- ary 21 letter was applied to restrict the exercise of the employees’ protected conduct. Rather, as stated above, the evidence shows that the Respondent issued the Janu- ary 21 letter in response to reports of unprotected con- duct. 11 The dissent contends that because “harassment” is an “elastic” term that may include protected activity, the Respondent’s January 21 letter was unlawful. We disagree. Considering the context in which the letter arose, and the letter as a whole, we find it lawful under Stan- dadyne, where the challenged statement also referred to “harassment.” In conclusion, for all the foregoing reasons, we reverse the judge and find that the Respondent’s January 21 let- ter did not solicit employees to report the protected ac- tivities of other employees in violation of Section 8(a)(1). C. Alleged Threat of Discipline if Employees Engaged In Protected Activities Finally, the judge found that the portion of the Re- spondent’s January 21 letter analyzed in the preceding section also constituted a threat of unspecified discipli- nary action in violation of Section 8(a)(1). The judge reasoned that employees inclined to engage in protected activities could reasonably believe that such activities might be reported to the Respondent and that they could be disciplined as a result. However, we have found, con- trary to the judge, that employees would not reasonably construe the Respondent’s January 21 letter as requesting reports on the protected activities of other employees. Consequently, employees inclined to engage in protected activities would have no reasonable basis for believing that their conduct would be reported to the Respondent or that they would be disciplined as a result. Accord- ingly, we shall dismiss this complaint allegation as well. ORDER The complaint is dismissed. MEMBER WALSH, dissenting in part. Relying on a rationale not advanced by the Respon- dent, the majority erroneously reverses the judge’s find- ing that the Respondent unlawfully threatened employees with termination if they engaged in a strike. The major- ity also errs in reversing the judge’s additional findings that the Respondent (1) unlawfully solicited employees to report the protected activities of other employees to management and (2) unlawfully threatened employees with discipline if they engaged in protected activities. For the reasons stated by the judge and the additional reasons set forth below, I would adopt the judge’s deci- sion in its entirety.1 I. FACTS The material facts are essentially undisputed. On January 1, 2004,2 the Respondent purchased the River’s Bend nursing home. The Union had a collective- bargaining agreement with the prior owner of the facility that was in effect through June 30. The Respondent de- clined to adopt that agreement, but did agree to recognize 1 I join the majority in affirming the judge’s dismissal of the 8(a)(5) allegation of the complaint. 2 All subsequent dates are in 2004. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 188 the Union and commence collective-bargaining negotia- tions. On January 15, the Union sent a letter to the Respon- dent and the Federal Mediation and Conciliation Service (FMCS) informing them that the Union may picket, strike, or engage in other concerted refusal to work on or after January 29. The Respondent replied on January 19, stating that the Union’s notice did not comply with Sec- tion 8(g) of the Act. On January 19, the Union informed the Respondent and the FMCS that it revised the strike notice to indicate that “the strike will commence no ear- lier than 12:01 on the morning of January 31, 2004.” On January 21, the Respondent sent a letter to the bar- gaining unit employees criticizing the Union for “push- ing you to go on strike.” The letter stated that the Union attended just one bargaining session with the Company, that “the Company responded to every one of the Un- ion’s first proposals,” but that the Union failed to “re- spond[ ] to any of the Company’s first proposals. . . . This is no way to negotiate a contract. . . .” (Emphasis in original.) Specifically in issue are the following two paragraphs of the Respondent’s letter: It is your decision whether or not to go on strike. What the Union may not tell you is that strikers do not re- ceive a paycheck, strikers immediately lose company- paid medical benefits, and strikers do not get unem- ployment benefits. In a strike the Company would be forced to hire replacements to be sure we can take care of the residents. This puts each striker’s continued job status in jeopardy. Some employees are telling us they are being harassed and threatened because they don’t want to go on strike. We will not tolerate any River’s Bend employee being harassed or threatened for any reason, and ask that you report any such conduct to management so we can en- sure you can continue to work in a non-threatening en- vironment. The Respondent’s letter made absolutely no mention of any legal deficiency in the Union’s strike notices. In a letter dated January 19, but transmitted to the Respon- dent on January 28, the Union revoked its January 19 strike notice. II. ANALYSIS A. The Respondent Threatened Employees with Termi- nation if they Engaged in a Strike The complaint alleges that the Respondent’s statement that the hiring of replacements “puts each striker’s con- tinued job status in jeopardy” constituted a threat of ter- mination in violation of Section 8(a)(1). The judge found that the issue posed by this complaint allegation was “complicated by the fact that the Union’s strike no- tices of January 15 and 19 did not comply with the re- quirements of Section 8(g) of the Act.”3 The judge rea- soned that if a strike had actually occurred, it would have been unlawful, and the strikers could have been legally discharged. However, the judge emphasized that the Respondent’s letter did not even discuss Section 8(g) or the inadequacies of the Union’s strike notices. In these circumstances, the judge found that “an employee would reasonably interpret the January 21 letter as threatening employees with the loss of their jobs in the event of any strike, regardless of its lawfulness.” Accordingly, he concluded that the January 21 letter violated Section 8(a)(1). The Respondent’s exceptions and supporting brief ad- vance only one narrow argument for reversing the judge’s unfair labor practice finding: the Respondent’s January 21 statement that the hiring of replacements “puts each striker’s continued job status in jeopardy” did not violate Section 8(a)(1) because it was made in the context of the Union’s threat to strike in violation of the notice requirements of Section 8(g). According to the Respondent, the “January 21 letter unmistakably re- sponded to the Union’s imminent threat to engage in an unlawful strike. It is too far a stretch to suggest it per- tained to [a protected] strike.” The majority does not find merit in the Respondent’s limited contention. Instead, the majority makes a very different and much broader argument for the Respondent, i.e., that the January 21 letter did not violate Section 8(a)(1) when analyzed in the context of a threat to en- gage in a protected strike. This argument is conspicu- ously absent from the Respondent’s brief, which cites none of the cases relied on by the majority. Like a court, the Board’s general practice is not to raise arguments on a party’s behalf. E.g., Perdue Farms, Inc. v. NLRB, 144 F.3d 830, 837 (D.C. Cir. 1998) (“Our dissenting colleague . . . criticizes the Board’s case law. . . . Perdue, however, makes no such argument, and nor- mally we do not address issues the parties fail to raise.”); Goer Mfg. Co., 341 NLRB 732 fn. 2 (2004) (“We find it unnecessary to address our dissenting colleague’s con- tentions because they were not raised by any party to this proceeding and are therefore not procedurally before the Board.”) (citing, inter alia, Avne Systems, Inc., 331 NLRB 1352, 1354 fn. 5 (2000) (“We recognize that Re- spondent Avne raised a 10(b) defense. Our point is sim- ply that Respondent Avne did not make the dissent’s arguments in support of that defense.”)). The Board should exercise similar judicial restraint here and limit its 3 There is no exception to the judge’s 8(g) finding. RIVER’S BEND HEALTH & REHABILITATION SERVICES 189 review of the judge’s decision to the issues and argu- ments raised by the parties.4 As the majority has raised the broader issue, however, I shall address it as well. In Eagle Comtronics, 263 NLRB 515 (1982), the leading case in this area, the Board reviewed the Laidlaw rights of strikers with regard to reinstatement.5 The Board reiterated the principle that an employer does not violate the Act by truthfully in- forming employees that they are subject to permanent replacement in the event of an economic strike. The Board held that an employer may address the subject of striker replacement without fully detailing the protections enumerated in Laidlaw, “so long as it does not threaten that, as a result of a strike, employees will be deprived of their rights in a manner inconsistent with those detailed in Laidlaw.” Id. at 516. Here, the Respondent went beyond a mere announce- ment of its right to replace striking employees. The Re- spondent elaborated on the meaning of the phrase “to hire replacements.” This elaboration consisted of the Respondent’s statement that the phrase meant that each striker’s “continued job status” would be “in jeopardy.” In so stating, the Respondent implied that it was within its discretion to terminate its employment relationship with the strikers, thereby eliminating all rights to rein- statement. Under Laidlaw, however, the “continued job status” of replaced strikers is not “in jeopardy;” to the contrary, Laidlaw squarely holds that they “retain their 4 The majority denies that it has ventured beyond the issues and ar- guments advanced by the Respondent. The majority claims that its decision is anchored in the Respondent’s exception 34, which reads as follows: 34. To the ALJ’s Conclusion that in the absence of any discussion of Section 8(g) and the inadequacy of the Union’s strike notices, an em- ployee would reasonably interpret the January 21 letter as threatening employees with job loss in the event of any strike, regardless of its lawfulness. (J.D. p.4, ll. 38-41) The basis for this exception is that the record fails to support this Conclusion and it is inconsistent with rele- vant Board law. This exception cannot bear the weight the majority places on it. The excep- tion clearly places the Respondent’s argument in the context of “the absence of any discussion of Section 8(g) and the inadequacy of the Union’s strike notices.” Then, citing the judge’s decision, the Respondent merely asserts that his finding of an unlawful threat lacks support in the record and in Board law. The Respondent does not specifically articulate, either in its exceptions or its brief, the argument advanced by the majority. Under these circumstances, the Respondent has waived the grounds for reversing the judge on which the majority relies. See Sec. 102.46(b)(2) of the Board’s Rules. (“Any exception . . . not specifically urged shall be deemed to have been waived.”) 5 Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969). “Specifically, striking employees retain the right to make unconditional offers of reinstatement, to be reinstated upon such offers if positions are available, and to be placed on a preferential hiring list upon such offers if positions are not available at the time of the offer.” Eagle Comtronics, supra, 263 NLRB at 515. status as employees” and that they have important rights to reinstatement upon the departure of the replacements. 171 NLRB at 1369–1370. In short, the Respondent’s statement constituted a threat that “as a result of a strike, employees will be deprived of their rights in a manner inconsistent with those detailed in Laidlaw.” Eagle Comtronics, supra, 263 NLRB at 516. The majority attempts to justify the Respondent’s statement by arguing that, in a practical sense, the hiring of permanent replacements places strikers’ “job status in jeopardy” because when the strike ends they may not have a job to which they can immediately return, but must instead wait for a vacancy to arise. The problem with this explanation is that it was never offered to the employees. The January 21 letter told them only that in a strike “the Company would be forced to hire replace- ments” and this “puts each striker’s continued job status in jeopardy.” As the judge recognized, “an employee would reasonably interpret the January 21 letter as threatening employees with the loss of their jobs in the event of a strike. . . .”6 In sum, under Eagle Comtronics, the Respondent could have limited its remarks to the truthful statement that economic strikers are subject to permanent replace- ment. Instead, it went further and starkly raised the spec- ter of job loss. In so doing, it crossed the line carefully drawn by the Board in Eagle Comtronics and thereby violated Section 8(a)(1).7 6 The majority also argues that the Respondent’s “job-status-in- jeopardy” statement is entitled to a benign interpretation because it was not accompanied by any other threats. I disagree. In the very next paragraph of the January 21 letter, the Respondent unlawfully threat- ened employees with unspecified discipline if they engaged in pro- tected activities. See the discussion in sec. II,C, infra. 7 See, e.g., the following cases cited by the judge: Wild Oats Mar- kets, Inc., 344 NLRB 717, 741–742 (2005) (employer violated Sec. 8(a)(1) by stating that “when Unions go on strike, . . . many have lost their jobs because striking workers are replaced”); Kentucky River Medical Center, 340 NLRB 536, 546 (2003) (employer violated Sec. 8(a)(1) by stating that replaced strikers would be reinstated only if the employer had openings when the strike was over, “but if the [r]espondent did not then have such openings the employees would lose their jobs”); and Superior Emerald Park Landfill, LLC, 340 NLRB 449, 462 (2003) (employer violated Sec. 8(a)(1) by stating that “if [employees] go on strike, they might not have a job to return to because the Company would not be required to rehire them if they had been permanently replaced”). The cases relied on by my colleagues are not persuasive authority to the contrary. With respect to Novi-American, 309 NLRB 544 (1992), a split panel decision, I agree with former Member Oviatt’s dissent that the majority’s decision departed from the letter and the spirit of Eagle Comtronics. John W. Galbreath & Co., 288 NLRB 876, 877 (1988), can be distinguished on the ground that the employer explicitly dis- claimed any intent to discharge the strikers. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 190 B. The Respondent Solicited Employees to Report the Protected Activities of Other Employees to Management As stated above, the judge also found the following portion of the Respondent’s January 21 letter to be unlawful: Some employees are telling us they are being harassed and threatened because they don’t want to go on strike. We will not tolerate any River’s Bend employee being harassed or threatened for any reason, and ask that you report any such conduct to management so we can en- sure you can continue to work in a non-threatening en- vironment. The judge reasoned that employees receiving the letter could reasonably believe that the Respondent was asking them to report to management protected union activity that they viewed as unwelcome. The judge is correct. “It is well settled that the Act allows employees to en- gage in persistent union solicitation even when it annoys or disturbs the employees who are being solicited.” Ry- der Transportation Services, 341 NLRB 761 (2004), enfd. 401 F.3d 815 (7th Cir. 2005). Employers interfere with this right, and therefore violate Section 8(a)(1), “when they invite their employees to report instances of fellow employees’ bothering, pressuring, abusing, or harassing them with union solicitation . . . .” Greenfield Die & Mfg. Corp., 327 NLRB 237, 238 (1998). Such employer statements have the “potential dual effect of encouraging employees to report to Respondent the iden- tity of union . . . solicitors who in any way approach em- ployees in a manner subjectively offensive to the solic- ited employees, and of correspondingly discouraging . . . solicitors in their protected . . . activities.” Arcata Graphics, 304 NLRB 541, 542 (1991) (quoting W. F. Hall Printing Co., 250 NLRB 803, 804 (1980)). Here, the Respondent asked employees to report to management if they were being “harassed” because they did not want to engage in a union-sponsored strike. “Harassment” is an “elastic” term that “may include pro- tected . . . activity.” Bloomington-Normal Seating Co. v. NLRB, 357 F.2d 692, 697 (7th Cir. 2004). Nothing in the Respondent’s letter served to limit employees’ under- standing of what constitutes harassment; employees rea- sonably could conclude that encouraging fellow employ- ees to participate in an economic strike was tantamount to “harassment.” For these reasons, I would adopt the judge’s finding that the Respondent violated Section 8(a)(1) by soliciting employees to report the protected activities of other employees to management. Relying on Lutheran Heritage Village-Livonia, 343 NLRB 646, 646–647 (2004), in which Member Liebman and I dissented, and Stanadyne Automotive Corp., 345 NLRB 85, 86–87 (2005), in which Member Liebman dissented, the majority finds (1) that the Respondent’s January 21 letter was not promulgated in response to union activity, and (2) that employees would not rea- sonably construe the letter as requesting reports on the protected activities of other employees. The majority is wrong on both counts. First, the Respondent’s letter states that the Respon- dent has received reports of employees being harassed “because they don’t want to go on strike.” Thus, the Respondent’s letter was expressly promulgated in direct response to union activity and violates Section 8(a)(1) under Lutheran Welfare for that reason alone. Second, the Respondent’s letter states that it “will not tolerate” harassment of any employee “for any reason.” This is essentially the same rule against “[h]arassment of other employees, supervisors and any other individuals in any way” in Lutheran Heritage, which I would have found unlawful. As in Lutheran Heritage, nothing in the Respondent’s letter limits the breadth of the prohibition. Thus, it would be reasonable for employees to under- stand the prohibition as reaching protected (but unwel- come) union solicitation. Such an overbroad prohibition violates Section 8(a)(1) because it would reasonably tend to interfere with, restrain, or coerce employees in the exercise of their Section 7 right to solicit support for the Union. C. The Respondent Threatened Employees with Unspeci- fied Discipline if they Engaged in Protected Activities Finally, the judge correctly found that the portion of the Respondent’s January 21 letter analyzed in the pre- ceding section also constituted an unlawful threat of un- specified discipline. The judge reasoned that employees inclined to engage in protected activities could reasona- bly believe that such activities might be reported to the Respondent and that they could be disciplined as a result. I agree with the judge’s analysis on this issue as well. Consequently, I would adopt his conclusion that the Re- spondent violated Section 8(a)(1) by threatening employ- ees with unspecified discipline if they engaged in pro- tected activities that other employees may subjectively regard as “harassment.” Ryan E. Connolly, Esq., for the General Counsel. Cynthia K. Springer, Esq. (Baker & Daniels), of Indianapolis, Indiana, for the Respondent. DECISION STATEMENT OF THE CASE ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Milwaukee, Wisconsin, on May 5, 2005. The Un- RIVER’S BEND HEALTH & REHABILITATION SERVICES 191 ion filed the charge in this matter February 23, 2004, and the General Counsel issued his complaint on April 20, 2004. The General Counsel alleges that Respondent, Extendicare Health Services, Inc., violated Section 8(a)(1) of the Act by coercing employees regarding support for the Union by issuing a memorandum on January 2, 2004, stating that employees had no obligation to pay union dues. The General Counsel also alleges that Respondent violated Section 8(a)(1) by issuing a letter to unit employees on January 21, 2004, threatening them with termination if they engaged in a strike; threatening un- specified discipline if employees engaged in protected activity and soliciting employees to report the protected activities of other employees to management. Finally, the General Counsel alleges that Respondent violated Section 8(a)(5) and (1) by increasing the cost of employee meals without prior notice to the Union and without affording the Union an opportunity to bargain with respect to this conduct and/or it effects. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, Extendicare Health Services, Inc. d/b/a River’s Bend Health and Rehabilitation Center, operates nursing homes at various locations throughout the United States, including one in Manitowoc, Wisconsin. During calendar year 2003, Respon- dent had gross revenue exceeding $100,000 and purchased and received at its Manitowoc facility goods and materials valued in excess of $5000 from points outside the State of Wisconsin. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union, Local 913, American Federation of State, County and Municipal Employees (AFSCME), is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES Alleged 8(a)(1) Violations For a number of year prior to January 1, 2004, the Union has represented a bargaining unit that includes full-time and regular part-time certified nurse aides/nursing assistants/med techs/restorative aides, housekeepers, laundry aides, dietary aides, activities aides, office clericals, and cooks, at Respon- dent’s Manitowoc facility. On January 1, 2004, Respondent became the owner of this facility. The Union had a collective-bargaining agreement with the prior owner of the facility that ran from July 1, 2001, through June 30, 2004. Respondent declined to adopt that agreement, but rather commenced bargaining with the Union for a new contract. On January 2, 2004, Extendicare, by lo Schug, its human resource director, issued a memo to its employees, ad- vising them that Respondent had informed the Union that it recognized it as the collective-bargaining representative of unit employees and that Respondent was available and willing to meet to negotiate a new contract. The memo also stated: Until a new contract between Extendicare and Local 913 is negotiated, there is no Union contract at River’s Bend . . . . Until a contract with the Union is settled, Extendicare will not withhold Union dues from employee’ paychecks. There is no obligation for Extendicare’s employees to pay dues to Local 913. It is unknown how long it will take to negotiate a contract with Local 913. It is likely it could take several months . . . . On January 15, 2004, Neil Rainford, the union staff repre- sentative servicing Respondent’s Manitowoc facility, sent a notice to Respondent and the Federal Mediation and Concilia- tion Service (FMCS) informing them that the Union may picket, strike, or engage in other concerted refusal to work. His letter stated that “the above-referenced activities may com- mence on or after January 29, 2004.” Respondent’s counsel sent a letter to Rainford on January 19, opining that Section 8(g) of the Act required the Union to specify whether it in- tended to picket or strike. The Union responded the same day, by fax and email, informing Respondent, its counsel and the FMCS that “the Union will hereby revise its strike notice as follows: the strike will commence no earlier than 12:01 on the morning of January 31, 2004.” On January 21, 2004, Liz Reiss, Respondent’s regional di- rector of operations sent a letter to employees, which set forth Extendicare’s position on the merits of the Union’s strike no- tice. The letter stated in pertinent part: Dear Employee: On January 16, 2004, the Union sent Extendicare a strike no- tice, telling us it plans to strike on January 29, 2004, if we have not reached a contract by that date. This was after the Union had met with the Company just one time! Then, on January 19, 2004, the Union told us that it would not go on strike before January 31, 2004. To push you to go on strike, the Union is saying you lost wages and benefits when Exten- dicare took over. But the Union hasn’t been totally honest about that . . . . It’s important when you think about whether going on strike is a good idea, you look at all the facts . . . . Yet the Union is pushing you to accept nothing less than the same Union con- tract that led this facility into receivership. That just makes no sense. . . . The Union is pushing you to go on strike even though the Company responded to every one of the Union’s first propos- als, accepting more than 40 of them in writing. Your Union representatives are pushing you to go on strike even though they have not responded to any of the Company’s first pro- posals in writing . . . . This is no way to negotiate a contract . . . . It is your decision whether or not to go on strike. What the Union may not tell you is that strikers do not receive a pay- check, strikers immediately lose company-paid medical bene- fits, and strikers do not get unemployment benefits. In a strike the Company would be forced to hire replacements to be sure we can take care of the residents. This puts each striker’s con- tinued job status in jeopardy. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 192 Some employees are telling us they are being harassed and threatened because they don’t want to go on strike. We will not tolerate any River’s Bend employee being harassed or threatened for any reason, and ask that you report any such conduct to management so we can ensure you can continue to work in a non-threatening environment. In a letter dated January 19, but transmitted to Respondent on January 28, the Union revoked its January 19 strike notice. Alleged 8(a)(5) Violation Prior to May 2003, Respondent’s predecessor charged em- ployees the follow amounts for meals: $1.75 for breakfast and supper; $2.25 for lunch. In May 2003, the prior management changed the prices to $2.25 for breakfast and supper; $3 for lunch. On January 22, 2004, Respondent posted a notice (R. Exh. 9) announcing that effective February 16, 2004, all three meals would cost employees $3. Respondent did not give the Union prior notice of this change, nor did it offer to bargain about the change. On April 30, 2004, upon being notified by the Regional Of- fice that it was filing a complaint in this matter, Respondent notified employees that it would agree to rescind the January increases. On May 11, 2004, Extendicare rescinded the increase and offered employees reimbursement for any breakfast or supper meals purchased at the $3 rate after February 16. On May 14, Respondent reimbursed CNA Susan Hagenow $2.25 for amounts paid for three breakfast or supper meals. Analysis Compliant Paragraph 7: Alleged Coercion in Informing em- ployees that they had no Obligation to Pay Union Dues. I dismiss complaint paragraph 7 on the grounds that the General Counsel did not establish that Respondent’s employees had any obligation to pay union dues. Therefore, there is no evidence that Respondent’s assertion, that they had no such obligation, was false. Whether there was such an obligation may turn on the provisions of the Union’s constitution and bylaws, which are not in the record, Andal Shoe Inc., 197 NLRB 1183 (1972). Moreover, the General Counsel’s only witness, Union Staff Representative Neil Rainford, testified that he did not know whether or not Respondent’s assertion was accurate. Given the fact that Respondent’s statement has not been shown to have been false, I conclude that it has not been estab- lished that it is coercive or violative of Section 8(a)(1). Alleged Threat of Termination in the Event of a Strike (Complaint Paragraph 8 (b)(i)) The Board has, in a number of cases, addressed the issue of the degree of detail required of an employer, who informs em- ployees that they are subject to replacement in the event of an economic strike. In Eagle Comtronics, Inc., 263 NLRB 515 (1982), the Board held that an employer may address the sub- ject of striker replacement without fully detailing the reinstate- ment rights set forth in Laidlaw Corp., 171 NLRB 1366 (1968), so long as it does not threaten that, as a result of a strike em- ployees will be deprived of their rights, such as the right to be reinstated if and when their permanent replacements are termi- nated. A statement, such as the one made by Respondent, that the hiring of replacements “puts each striker’s continued job status in jeopardy,” would therefore violate Section 8(a)(1) if the employer’s comments were made in the context of a threat- ened economic strike, Kentucky River Medical Center, 340 NLRB 536, 546–547 (2003); Wild Oats Markets, Inc., 344 NLRB 717, 741–742 (2005); Superior Emerald Park Landfill, LLC, 340 NLRB 449, 462 (2003). The issue in the instant matter, however, is complicated by the fact that the Union’s strike notices of January 15 and 19, did not comply with the requirements of Section 8(g) of the Act, as interpreted by the Board in Alexandria Clinic, P.A., 339 NLRB 1262 (2003). In that case, the Board held that the health care employer was entitled to terminate nurses who engaged in a strike 4 hours later than the time specified in the union’s strike notice. Thus, had any of Respondent’s employees engaged in a strike pursuant to the Union’s strike notices of January 15 and/or 19, Respondent could have legally discharged them. The General Counsel, however, argues that Respondent’s January 21 letter, violates Section 8(a)(1) because the threat to employees’ “continued job status” is not tied to the inadequacy of the Union’s strike notice and is broad enough to encompass lawful strike activity. Given the fact that there is no evidence that employees receiving the January 21 letter were aware of the shortcomings of the Union’s strike notice, I agree with the General Counsel and find that the January 21 letter violated the Act. In the absence of any discussion of Section 8(g) and the inadequacy of the Union’s strike notices, an employee would reasonably interpret the January 21 letter as threatening em- ployees with the loss of their jobs in the event of any strike, regardless of its lawfulness. This is particularly true since the paragraphs preceding the discussion of employee status are confined to a discussion of the reasonableness of the Em- ployer’s bargaining position vis-a-vis the Union’s. In this con- text the letter is most naturally read as referring to any strike activity, not just that which may be unlawful. Alleged Solicitation of Employees to Report the Protected Ac- tivities of Other Employees to Respondent and Threat of Un- specified Disciplinary Action (Complaint Pars 8(b) (ii) & (iii)) It is well settled that the Act allows employees to engage in persistent union solicitation and other protected activity, includ- ing encouraging fellow employees to engage in an economic strike, even when it annoys or disturbs the employees who are being solicited. To that end Respondent’s invitation to employ- ees to report to management if they are being “harassed or threatened for any reason” is violative of Section 8(a)(1). Em- ployees receiving Respondent’s January 21, 2004 letter could reasonably believe that Respondent was asking them to report any unwelcome union activity, Ryder Transportation Services, 341 NLRB 761 (2004). Additionally, those inclined to engage in lawful union activity could reasonably have been discour- aged from doing so. These employees could reasonably believe that their lawful activities might be reported to Respondent and that they could be subjected to discipline as a result, Arcata RIVER’S BEND HEALTH & REHABILITATION SERVICES 193 Graphics, 304 NLRB 541, 542 (1991).1 I therefore find that Respondent violated Section 8(a)(1) as alleged in complaint paragraphs 8(b)(ii) and (iii). Alleged 8(a)(5) Violation: Change in Employee Meal Prices (Complaint Paragraph 9) I dismiss complaint paragraph 9 on the grounds that assum- ing that Respondent violated Section 8(a)(5), it cured this viola- tion by posting the memoranda of April 30 and May 7, and by reimbursing the only employee who paid the extra 75 cents for meals. On April 30, 2004, Respondent posted a memo entitled “Un- fair Labor Practices.” The memo stated that the NLRB had rejected the Union’s unfair labor practice charges in most cases. However, in listing the Regional Office’s findings, it stated, “The 50 cent price increase in meals was not legal. River’s Bend will agree to cancel the price increase and reimburse em- ployees.” On May 7, Respondent posted another memo entitled “Meal Prices.” The memo stated: We have been advised by the Regional Director for the Na- tional Labor Relations Board that River’s Bend improperly increased meal prices on February 16, 2004, because we changed the meal price without negotiating with the union. The Regional Director has requested that we return meal prices to the prices that were in effect prior to February 16, 2004, and reimburse any bargaining unit employees who paid the increased price. We are honoring the Regional Director’s request, effective immediately, by returning meal prices to $2.25 for dinner and $3.00 for lunch, and reimbursing the price difference to any bargaining unit employees who pur- chased meals since February 16. The General Counsel argues that Respondent has not cured the violation because it failed to meet all the criteria set forth in Passavant Memorial Area Hospital, 237 NLRB 138 (1978). Recently, in Claremont Resort & Spa, 344 NLRB 832 (2005), two of the three current Board members stated that they “do not 1 Chairman Battista dissented in Ryder because the employer’s so- licitation was limited to three employees who came to management with a complaint. He distinguished Ryder from Arcata Graphics which concerned an invitation to any employee to report “harassment.” necessarily endorse all the elements of Passavant.” In any event, by its terms the Passavant decision indicates that what an employer must do to cure a violation may depend on the nature of the violation. The Passavant case concerned a threat, which was communicated to 30–40 employees, that they would be fired if they engaged in an economic strike. In such a case, the Board found that repudiation must be (1) timely, (2) unam- biguous, (3) specific to the coercive conduct, and (4) free from other prescribed illegal conduct. The Board distinguished the facts in Passavant from those in Kawasaki Motors Corp., USA, 231 NLRB 1151, 1152 (1978). In Kawasaki, it dismissed an allegation of a single incident of supervisor surveillance based upon the employer’s simple disavowal of the supervisor’s con- duct. I conclude that given the relatively minor importance of the 75 cent price increase, Respondent’s April 30 and May 7 memoranda are sufficient to cure the violation of Section 8(a)(5) despite the fact that the repudiation does not completely accord with the Passavant criteria with regard to timeliness and lack of ambiguity. Moreover, I find that the memoranda, at least implicitly, concede that the price increase violated the Act due to Respondent’s failure to bargain with the Union and im- plicitly provides assurance that Respondent will not increase meal prices in the future without bargaining. SUMMARY OF CONCLUSIONS OF LAW Respondent’s January 21, 2004 letter to employees violated Section 8(a)(1) of the Act, as alleged in paragraphs of 8(b)(i), (ii), and (iii) in threatening employees with termination if they engage in a strike, regardless of whether or not the strike was lawful; soliciting employees to report the protected activities of other employees to Respondent and threatening employees with unspecified discipline if they engage in protected activities that other employees may subjectively regard as “harassment.” REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. [Recommended Order omitted from publication.]