Purple Communications, Inc.

PURPLE COMMUNICATIONS, INC. 575 Purple Communications, Inc. and Communications Workers of America, AFL–CIO. Cases 21–CA– 095151, 21–RC–091531, and 21–RC–091584 September 24, 2014 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND SCHIFFER At issue in this case are unfair labor practice allega- tions and election objections related to representation elections at two facilities of Respondent/Employer Pur- ple Communications. On November 28, 2012,1 elections were held for the interpreters at seven of Purple’s call centers; the elections at Purple’s Corona and Long Beach, California facilities are at issue here. The Gen- eral Counsel alleges that Purple violated Section 8(a)(1) by maintaining two overbroad work rules: a rule prohib- iting employees from “[c]ausing, creating or participat- ing in a disruption of any kind during working hours on Company property” and an electronic communications policy prohibiting employees from using Purple’s email system for any nonbusiness reason. The Union objects to the Corona and Long Beach election results based on Purple’s no-disruptions rule and electronic communica- tions policy, as well as campaign speeches given by Pur- ple’s president/chief executive officer.2 We address 1 All dates are in 2012 unless stated otherwise. 2 On October 24, 2013, Administrative Law Judge Paul Bogas issued the attached decision. The Respondent/Employer filed exceptions and a supporting brief, and the General Counsel filed an answering brief. In addition, the General Counsel filed limited exceptions and a supporting brief, the Union filed cross-exceptions and a supporting brief, and the Respondent/Employer filed an answering brief to each. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent con- sistent with this Decision, Order, and Direction of Second Election. In the absence of exceptions, we adopt pro forma the judge’s rec- ommendation to overrule the Union’s Objection 1, which claimed that the Respondent encouraged the preparation and circulation of an anti- union petition and allowed it to be circulated during worktime and in work areas. The Union has implicitly excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the judge’s ultimate credibility findings. We con- clude, however, that the judge erred in treating two employees’ protect- ed, concerted activity as evidence of testimonial bias. Thus, contrary to the judge, we do not rely on employee Ruth Usher’s service as the Union’s election observer or employee Robert LoParo’s status as “one of the proponents of unionization who delivered the representation petition to the Employer” in assessing Usher’s and LoParo’s credibility. those issues here with one exception: consistent with our notice and invitation to file briefs issued on April 30, 2014, we sever and hold for further consideration the question whether Purple’s electronic communications policy was unlawful.3 The judge found that Purple’s no-disruptions rule was overbroad and its maintenance of that rule at Corona and Long Beach was both unlawful and objectionable.4 He further found unlawful a statement at Long Beach by John Ferron, Purple’s president and CEO, that Ferron could not make improvements for employees at facilities where elections were pending but could do so at other facilities, and he sustained the Union’s objection at Long Beach based on that statement. Relying on those find- ings and the close vote (15 for representation, 16 against, and 2 challenged ballots), the judge recommended that the Long Beach election be set aside.5 With respect to the Corona election, however, the judge sustained only the one objection based on the no-disruptions rule and found that the election there, where the vote was “not But the judge also relied on legitimate considerations, including the employees’ demeanor, in making his credibility findings. We rely on only those legitimate considerations in adopting the judge’s credibility determinations. We decline the Union’s requests that we overrule Board precedent in various respects. Regarding the Union’s contention that “captive audi- ence” meetings in the preelection period should be objectionable con- duct, we note the equivocal evidence as to whether the meetings at issue here were in fact mandatory. Regarding our Excelsior list re- quirements, we note the Board’s current consideration of that issue as part of the pending rulemaking process. See “Representation-Case Procedures,” Notice of Proposed Rulemaking, 79 Fed. Reg. 7317 et seq. (Feb. 6, 2014). We also decline the Union’s requests for additional remedies, with one exception: we grant the Union’s request for the inclusion of language in the notice of election in accordance with Lufkin Rule Co., 147 NLRB 341 (1964). See Miller Industries Towing Equipment, Inc., 342 NLRB 1074, 1074 fn. 4 (2004) (holding that “[s]uch language is standard when requested”). We will modify the judge’s recommended Order to conform to the Board’s standard remedial language and in accordance with our deci- sion in Guardsmark, LLC, 344 NLRB 809, 812 (2005), enfd. in rele- vant part 475 F.3d 369 (D.C. Cir. 2007). Finally, we will substitute a new notice in accordance with our decision in Durham School Services, 360 NLRB 694 (2014), and we will direct the Regional Director to include in the notice of election the same language that Durham School Services requires in remedial notices. 3 The judge found the electronic communications policy lawful based on Register Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). The General Counsel argues that Register Guard should be overruled, and our April 30, 2014 notice and invitation to file briefs sought input from the parties and amici on that question. Ac- cordingly, today’s decision does not address Register Guard or Purple’s electronic communication policy on the merits. 4 The parties stipulated that the employee handbook containing the rule has been in effect at the Corona and Long Beach facilities since June 2012. 5 The challenged ballots would have been determinative, but the par- ties have stipulated that the two challenged voters were ineligible. 361 NLRB No. 43 576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD particularly close” (10 for, 16 against, and 1 challenged ballot), should stand. We adopt the judge’s findings on the no-disruptions rule for the reasons he stated, and we agree with the judge’s rationale for finding that Ferron’s statement at Long Beach was objectionable.6 For the reasons explained below, we conclude that certain addi- tional statements by Ferron were objectionable and that the elections at both Long Beach and Corona must be set aside. Facts Purple is in the business of offering sign language in- terpretation services. Purple’s employees, known as vid- eo relay interpreters, provide two-way, real-time inter- pretation of telephone communications between deaf or hard of hearing individuals and hearing individuals. The interpreters typically use an audio headset to communi- cate orally with the hearing participant on a call, leaving their hands free to communicate in sign language, via video, with the deaf participant. The interpreters work at 16 call centers that process calls on a nationwide, around the clock, “first come, first served” basis. During the weeks preceding the elections, Ferron made speeches to large groups of interpreters at each of the seven call centers where an election was to take place. Ferron spoke at both Corona and Long Beach on No- vember 16. Relying on notes that he prepared after con- sultation with the Respondent’s legal counsel and labor relations consultant, he gave a 45–60 minute presentation at each facility, followed by 30–45 minutes of questions and answers. Ferron spoke about a checklist of issues that he considered relevant to the employees’ choice in the upcoming elections, but, as the judge found, Ferron did not read from a script and could not recall exactly what he had said at one facility versus another. The top- ics he covered, however, included Hostess Bakery’s then recent bankruptcy filing;7 Purple’s financial difficulties and its expectation that revenues would soon decrease;8 the company’s priorities in bargaining if the Union won the elections; and the company’s expenditures in oppos- 6 We do not, however, find that statement unlawful, as the judge did, because it was not alleged to be unlawful, only objectionable. 7 Media coverage of the Hostess bankruptcy filing connected it to the bargaining demands of the union that represented its employees. 8 Ferron testified that government reimbursements for Purple’s tele- phone interpretation services account for about 95 percent of the com- pany’s revenue. The reimbursement rates are set by federal administra- tive order. At the time of the union campaigns, a new order was over- due, and it was widely expected that reimbursement rates would be lowered. The reimbursement order then in effect was itself lower than the prior effective rate, and Purple had responded to that reduction by making significant operational changes, including closing and then reopening the Long Beach facility (with reduced pay for interpreters). Ferron testified that he did not intend to close any facilities at the time of the elections. ing the union campaigns. Ferron asked the interpreters to give Purple a chance to address their concerns before they brought in a union. The election campaign focused significantly on productivity standards, which the company had increased in September or early October, shortly before the Union filed its election petitions. The productivity standards affected both the physical demands on the interpreters and their eligibility for bonuses. About November 21, Purple notified interpreters that it was easing its en- forcement of the standards. Even after the adjustment, however, the burden on them remained higher than it had been before the early-fall increase. Ferron’s Speeches at Corona and Long Beach In his speeches at both Corona and Long Beach, Fer- ron asked the interpreters to “give [him] another 12 months” to address their concerns. He expressed the hope that, through improved communication and input, they could “collectively solve” the issues that had caused employees to “turn[] toward a Union vote” and suggested that the employees could evaluate whether conditions improved and “address a Union situation 12 months lat- er.”9 Ferron also discussed interpreters’ concerns over the productivity standards, saying that they were “always fluid” and that the increased standards were in the inter- preters’ “best interest despite how they felt about them” because increased productivity was a way for manage- ment to avoid layoffs and pay cuts. But, Ferron said, “interpreter health and safety . . . had to come first and foremost.” He added that the company might have gone too far and “needed to recalibrate” the productivity standards; they “were looking at that matter.” Ferron also discussed the money that Purple had spent opposing the Union, stating that the money could have been used for other purposes. Ferron credibly testified that he had said at the meetings: And to the degree that we would have communicated better and wouldn’t have incurred the cost to fly around the country and encourage a no-vote to these union call centers, think of how much more money the company would have had from a discretionary standpoint. And then we could have done a lot of things with it. We could have invested in further product develop- ment. We could have given spot bonuses to interpret- ers. A lot of things we could have done that--you know--that money has kind [of] leaked out of the com- pany. 9 As the judge discussed regarding the Union’s Objection 1, about that time interpreters were circulating petitions to cancel the elections and give Purple another chance. PURPLE COMMUNICATIONS, INC. 577 The judge also credited the testimony of Long Beach inter- preters Robert LoParo and Angela Emerson regarding Fer- ron’s statements at that facility. According to LoParo, Fer- ron said either, “We’ve spent so much money on the union- ization issue . . . that we should have just paid out the bo- nus,” or, if not for the campaign costs, Purple could have “possibly paid out bonuses to” the interpreters. According to Emerson, Ferron said that the Respondent had not paid bonuses because employees had not earned them under the new standards and Ferron “didn’t want to have to spend all this money on a union buster, that . . . he should have just used all that money to just pay us our bonuses.” The judge also found that LoParo was “paraphrasing what he took to be Ferron’s message” when LoParo testified: “In effect, he was saying, ‘[f]ighting the union now is taking out the re- sources that I would have normally given to you, but now that you’re going pro-union that . . . means that you can’t earn that money, that bonus. It’s not available for you any- more.’”10 Analysis The Union’s Objections 3, 4, and 5 are based on Fer- ron’s statements at his meetings with Corona and Long Beach interpreters. Collectively, those objections assert that Purple threatened bankruptcy, closure, loss of work, and loss of benefits if the interpreters supported the Un- ion, and offered them benefits for not supporting the Un- ion. Contrary to the judge, we find that Ferron implicitly promised improvements in the productivity standards and implicitly threatened the interpreters by telling them that Purple’s expenditures to oppose the Union could instead have been spent on employee bonuses.11 For the reasons explained below, we find those statements, which were made at both Corona and Long Beach, objectionable. The Board has long held that “[a]n election can serve its true purpose only if the surrounding conditions enable employees to register a free and untrammeled choice for or against a bargaining representative.” General Shoe Corp., 77 NLRB 124, 126 (1948), enfd. 192 F.2d 504 (6th Cir. 1951), cert. denied 343 U.S. 904 (1952). Ac- cordingly, in assessing whether campaign statements are objectionable, we consider whether they “ha[d] the ten- 10 The judge found that LoParo was not reporting Ferron’s exact words in that testimony. Nonetheless, as explained below, we consider the meaning that employees would reasonably take from Ferron’s words in assessing his statements’ effect on the employees’ free choice in the election. 11 Ferron’s reference to “invest[ing] in further product development” appears to relate to improving Purple’s proprietary software that inter- preters used for their work. Absent record clarification of that mean- ing, however, we do not address whether Ferron’s reference to invest- ing in product development constituted an additional objectionable threat that the union campaigns had cost the interpreters improvements in their working conditions. dency to interfere with the employees’ freedom of choice.” Cambridge Tool & Mfg. Co., 316 NLRB 716, 716 (1995).12 Whether analyzing alleged unlawful statements or al- leged objectionable conduct, the Board “view[s] employ- er statements from the standpoint of employees over whom the employer has a measure of economic power.” Mesker Door, 357 NLRB 591, 595 (2011) (internal quo- tation and citation omitted). That approach comports with the Supreme Court’s admonition that the Board “take into account the economic dependence of the em- ployees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.” Id. (quot- ing NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969)). Finally, the Board analyzes the employer’s speech as a whole to assess whether particular statements are unlawful or objectionable. Id. We review Ferron’s allegedly objectionable statements under those princi- ples. Offers of Benefits The judge considered it a close question whether Fer- ron promised to improve the productivity standards, as the Union contended. The judge concluded, however, that Ferron had not actually promised anything by stating that the company might have gone too far in increasing the standards and that he was looking into the matter as part of ongoing “recalibrat[ing].” In reaching that con- clusion, the judge relied on Noah’s New York Bagels, 324 NLRB 266, 266–267 (1997) (employer’s “general- ized expressions . . . asking for ‘another chance’ or ‘more time,’ have been held to be within the limits of permissi- ble campaign propaganda” when employer does not “make any specific promise that any particular matter would be improved”) (citing National Micronetics, 277 NLRB 993 (1985)). We find Noah’s New York Bagels and National Micronetics distinguishable, however, be- cause Ferron’s statements were not limited to “general- ized expressions” asking for more time. Rather, his im- 12 “[T]he test of conduct which may interfere with the ‘laboratory conditions’ for an election is considerably more restrictive than the test of conduct which amounts to interference, restraint, or coercion which violates Section 8(a)(1).” Dal-Tex Optical Co., 137 NLRB 1782, 1786–1787 (1962); see also Heartland Human Services v. NLRB, 746 F.3d 802, 804 (7th Cir. 2014) (“Objectionable conduct, though it is a ground for setting aside the results of a representation election if the conduct is found to have interfered with the voters’ free choice, need not be so objectionable as to constitute an unfair labor practice.”) (In- ternal quotations and citations omitted; emphasis in original). In the present case, however, the judge relied on cases addressing whether campaign statements were lawful rather than whether they were objec- tionable. 578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD plied promises of improvements were directly linked to the recently increased productivity standards, which were a central campaign issue and a significant physical and financial concern for interpreters. Ferron acknowledged that the productivity standards might have been raised too high and that he regretted having done so; he then added that Purple was “looking into” “recalibrating” the standards. Although he made no express promise to take specific action on the matter, Ferron’s statements indi- cated that action was being contemplated, and arguably was likely, to respond to the interpreters’ key concern.13 We conclude that Ferron’s implied promises of im- provements in the productivity standards, viewed in con- text and from the standpoint of the employees, had the tendency to interfere with their freedom of choice in the election and thus were objectionable. Statements Regarding the Costs of Purple’s Antiunion Campaign We also find objectionable Ferron’s statements about the money that Purple had spent opposing the union campaign and how it could have been used otherwise, including by giving bonuses to the interpreters. Many Board decisions have found similar statements unlawful. For example, in Mesker Door, 357 NLRB 591, 592–596 (2011), the employer’s plant manager gave a speech in which he stated that the $200,000 the employer had paid to its attorneys because of the union could otherwise have gone into improving life at the plant. In the context of additional statements suggesting there would have been higher bonuses absent the adversarial atmosphere created by employees’ filing of unfair labor practice charges, the Board found the plant manager’s statements threatened employees with economic loss for their pro- tected activity. Similarly, in Pilot Freight Carriers, Inc., 223 NLRB 286, 286 fn. 1 (1976), the Board reversed the 13 In a memo to the interpreters dated November 19 (i.e., 3 days after Ferron’s speeches), and distributed about a week before the election, Purple set forth modifications of the productivity standards intended to reduce the burden on interpreters. Those modifications essentially created a safe harbor for interpreters who met the heightened productiv- ity standards during the first portion of their shifts. The Union had notified Ferron on November 20, that the new stand- ards were causing the interpreters “physical pain” and had stated that it would “take no legal action, including the filing of any unfair labor practice charges,” if Purple lowered those standards. Consistent with that notice, the Union did not file unfair labor practice charges, or even election objections, regarding the modifications. Ferron’s November 16 statements, however, are a separate issue, and the Union’s pledge not to file charges regarding implemented improvements does not pre- clude it from objecting to the implied promises’ effect on the elections. Nor did the actual improvements negate the coercive effect of the im- plied promises, as Purple argues, given that the interpreters’ concerns were not fully resolved by the improvements and in the absence of evidence that they knew the Union had authorized Purple to make improvements. judge’s dismissal of an allegation regarding the presi- dent’s statement that his company had spent $10,000 on attorney fees to counter the union, money that otherwise would have gone to employees. In finding the violation, the Board explained that “[t]he point, and the vice of the statement, is the assertion that but for the Union the em- ployees would have received $10,000 and the implication that further union activities would deprive the employees of pay they might otherwise receive.” Id.14 The Union contends that Ferron’s statements about the antiunion campaign costs were coercive. We agree.15 Ferron’s statements, like those in the precedents cited above,16 would reasonably have communicated to inter- preters that their union campaign had potentially cost them bonuses and might continue to do so.17 Because Ferron was Purple’s president and CEO, his statements about how the company would have spent its money would likely have carried particular weight with employ- ees. We find that Ferron’s statements about the money Purple had spent on its antiunion campaign were objec- tionable. In sum, we find that Purple engaged in the following objectionable conduct: maintenance, and possibly appli- 14 See also Chinese Daily News, 346 NLRB 906, 906–907 (2006) (finding unlawful threat of adverse consequences for engaging in pro- tected activity in newspaper editor’s statements that employee’s note- taking would be used for union lawsuits that would cost the company in lawyer fees and reduce employees’ benefits, including their bonuses); Great Western Produce, 299 NLRB 1004, 1023 (1990) (finding unlaw- ful co-owner’s statement to employees named in unfair labor practice charge that “the charges were costing him money, that only the lawyers were benefitting, and that neither the Union nor he were gaining any- thing from the NLRB proceedings”); Pine Valley Meats, Inc., 255 NLRB 402, 402 fn. 2, 407–408, 410 (1981) (finding unlawful part- owner/president’s statement that money the employer would have to spend on attorneys for contract negotiations if the union succeeded could otherwise be spent on employee benefits; judge explained that statement constituted both promise of benefits and threat of lost bene- fits, depending on whether employees voted to unionize); Transway, Inc., 184 NLRB 50, 53 (1970) (finding unlawful statements of employ- er’s president that most of the $80,000 spent on legal fees in election cases would have gone to employees in pension or profit sharing bene- fits and that money for additional costs “can only come out of the em- ployees’ pockets”). 15 We do not find it significant that the Union addressed Ferron’s statements about campaign costs in its discussion of one objection versus a different one; it suffices that the undisputed statements, which Ferron himself testified to, are within the scope of both the Union’s objections and its arguments in support of its objections and that they would have a tendency to affect employees’ free choice in the elections. 16 Although the cited cases involve unfair labor practices rather than objections, as explained above, conduct that violates Sec. 8(a)(1) is, a fortiori, objectionable. See Dal-Tex, 137 NLRB at 1786. 17 We note that LoParo testified that he understood Ferron’s state- ments to have that meaning. PURPLE COMMUNICATIONS, INC. 579 cation, of an unlawful no-disruptions rule;18 Ferron’s implied promises to improve the productivity standards; Ferron’s implied threat that interpreters’ union campaign and Purple’s response had cost them bonuses; and, at Long Beach, Ferron’s statement that he could make im- provements only at the facilities that did not have elec- tions pending.19 We therefore partially sustain union Objection 2 (with regard to Purple’s no-disruptions rule) and Objections 3, 4, and 5 (with regard to the implied promises and threats by Ferron, as specified).20 We further conclude that the objectionable conduct, considered either in the aggregate or separately, could have affected the election results and thus warrants set- ting aside both the Corona and the Long Beach elections. First, we reject the judge’s conclusion that the unlawful no-disruptions rule was insufficient, standing alone, to require new elections. The rule applied to all Corona and Long Beach employees throughout the critical period, and its extraordinary breadth could have discouraged interpreters from engaging in many types of permissible campaigning.21 As the Board explained in Jurys Boston Hotel, 356 NLRB 927 (2011) (setting aside election based on maintenance of overbroad rules during critical period), “[w]here a representation proceeding and an unfair labor practice case have been consolidated and an unfair labor practice found, . . . the election must be set aside unless ‘it is virtually impossible to conclude that the misconduct could have affected the election results.’” Jurys Boston, 928 fn. 8 (citing Clark Equipment Co., 278 18 The parties stipulated that the employee handbook containing the rule has been “in effect and applied” at the Corona and Long Beach facilities. As stated above, we agree with the judge’s reasons for finding the no-disruptions rule unlawful and objectionable. 19 In adopting the judge’s finding that that statement was objectiona- ble, we reject Purple’s contentions that the judge took portions of Fer- ron’s statement out of context and that precluding Ferron from making such a statement would silence Purple regarding the “hot topic” of productivity standards. As to the latter, the circumstances under which employers may lawfully change wages or benefits during a union cam- paign are well established. See, e.g., Lampi, L.L.C., 322 NLRB 502, 502 (1996). Rather than describing the restrictions on his ability to make changes during the campaign consistently with the Act, Ferron misstated his options in a way that indicated that the interpreters’ pro- tected choice to seek union elections made them ineligible for benefits that they could have had otherwise. 20 As we are setting aside the election on those grounds, we find it unnecessary to pass on other portions of the judge’s findings regarding the Union’s Objections 3–5. Thus, we need not address whether other statements by Ferron, including those regarding Hostess, making Purple an “employer of choice,” and Ferron’s intentions regarding bargaining if the Union became the employees’ representative, constituted addi- tional implied threats or promises of benefits. 21 Although the testimonial evidence of the rule’s dissemination to employees is somewhat limited, Purple stipulated that it had maintained the employee handbook since at least June 19, and the policies in the handbook applied to both facilities’ employees. NLRB 498, 505 (1986)).22 At Corona, changing only three employees’ votes could have reversed the election’s outcome (depending on the challenged ballot); at Long Beach, a single changed “no” vote would have made the difference. In those circumstances, we cannot conclude that it is virtually impossible that the no-disruptions rule affected the election results at either Corona or Long Beach. Similarly, Ferron’s speeches were directed to large groups of each facility’s employees, and the im- plied promises and threats in those speeches were heard by enough employees to affect the outcome of each facil- ity’s vote. Accordingly, we set aside both elections. ORDER The National Labor Relations Board orders that the Respondent, Purple Communications, Inc., Corona and Long Beach, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Maintaining a rule that prohibits employees from “causing, creating, or participating in a disruption of any kind during working hours on Company property” or that otherwise creates an overly broad restriction on disrup- tions that interferes with the Section 7 rights of employ- ees to engage in union and protected concerted activity. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the rule in its employee handbook that prohibits employees from “causing, creating, or partici- pating in a disruption of any kind during working hours on Company property.” (b) Furnish employees with an insert for the current employee handbook that (1) advises that the unlawful provision has been rescinded, or (2) provides a lawfully worded provision on adhesive backing that will cover the unlawful provision; or publish and distribute to employ- ees revised employee handbooks that (1) do not contain the unlawful provision, or (2) provide a lawfully worded provision 22 The judge relied on Delta Brands, 344 NLRB 252 (2005), in find- ing that Purple’s maintenance of the no-disruptions rule did not require a new election. We express no view on whether Delta Brands was correctly decided, but, in any event, we find it distinguishable. The rule in Delta Brands was not alleged to be unlawful, and therefore the Board did not apply the “virtually impossible” standard. Furthermore, it is unclear from the parties’ stipulation whether the present case in- volves the mere maintenance of an unlawful rule, as in Delta Brands. As previously stated, the parties stipulated that the employee handbook containing the rule has been “in effect and applied” at the Corona and Long Beach facilities. 580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (c) Within 14 days after service by the Region, post at its Corona and Long Beach, California facilities copies of the attached notice marked “Appendix.”23 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent’s authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in con- spicuous places, including all places where notices to employees are customarily posted. In addition to physi- cal 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 Re- spondent 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. If the Re- spondent has gone out of business or closed a facility involved in these proceedings, the Respondent shall du- plicate 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 June 19, 2012. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the elections held on No- vember 28, 2012, in Cases 21–RC–091531 and 21–RC– 091584 are set aside and that those cases are severed and remanded to the Regional Director for Region 21 for the purpose of conducting new elections as directed below. The Regional Director shall include in the notices of election the following paragraph: NOTICE TO ALL VOTERS The election conducted on November 28, 2012 was set aside because the National Labor Relations Board found that certain conduct of the Employer interfered with the employees’ exercise of a free and reasoned choice. Therefore, a new election will be held in ac- cordance with the terms of this notice of election. All eligible voters should understand that the National La- bor Relations Act, as amended, gives them the right to cast their ballots as they see fit and protects them in the exercise of this right, free from interference by any of the parties. 23 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” The notices of election shall also contain the following lan- guage, set forth in Durham School Services, 360 NLRB 694 (2014), and QR code: The Board’s decision can be found at www.nlrb.gov/case/21–CA–095151 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Wash- ington, D.C. 20570, or by calling (202) 273-1940. DIRECTION OF SECOND ELECTION A second election by secret ballot shall be held among the employees in the units found appropriate, whenever the Regional Director deems appropriate. The Regional Director shall direct and supervise the election, subject to the Board’s Rules and Regulations. Eligible to vote are those employed during the payroll period ending imme- diately before the date of the Notice of Second Election, including employees who did not work during the period because they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an economic strike that began less than 12 months before the date of the first election and who retained their employee status during the eligibility period and their replacements. Jeld-Wen of Everett, Inc., 285 NLRB 118 (1987). Those in the military services may vote if they appear in person at the polls. Ineligible to vote are employees who have quit or been discharged for cause since the payroll peri- od, striking employees who have been discharged for cause since the strike began and who have not been re- hired or reinstated before the election date, and employ- ees engaged in an economic strike that began more than 12 months before the date of the first election and who have been permanently replaced. Those eligible shall vote whether they desire to be represented for collective bargaining by Communications Workers of America, AFL–CIO. To ensure that all eligible voters have the opportunity to be informed of the issues in the exercise of their statu- tory right to vote, all parties to the election should have access to a list of voters and their addresses that may be used to communicate with them. Excelsior Underwear, PURPLE COMMUNICATIONS, INC. 581 156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accordingly, it is directed that an eligibility list containing the full names and addresses of all the eligible voters must be filed by the Employer with the Regional Director within 7 days from the date of the Notice of Second Election. North Macon Health Care Facility, 315 NLRB 359 (1994). The Regional Director shall make the list available to all parties to the election. No extension of time to file the list shall be granted by the Regional Director except in extraordinary circum- stances. Failure to comply with this requirement shall be grounds for setting aside the election if proper objections are filed. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT maintain a rule that prohibits you from “causing, creating, or participating in a disruption of any kind during working hours on Company property” or that otherwise creates an overly broad restriction on disrup- tions that interferes with your Section 7 rights to engage in union and protected concerted activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL rescind the rule in our employee handbook that prohibits you from “causing, creating, or participat- ing in a disruption of any kind during working hours on Company property.” WE WILL supply you with an insert for the current em- ployee handbook that (1) advises that the unlawful provi- sion has been rescinded, or (2) provides a lawfully word- ed provision on adhesive backing that will cover the un- lawful provision; or WE WILL publish and distribute re- vised employee handbooks that (1) do not contain the unlawful provision, or (2) provide a lawfully worded provision. PURPLE COMMUNICATIONS, INC. The Board’s decision can be found at www.nlrb.gov/case/21–CA–095151 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940. Cecelia Valentine, Esq., for the General Counsel. Robert J. Kane, Esq. (Stradling, Yocca, Carlson & Rauth), of Newport Beach, California, for the Employer. Lisl R. Duncan, Esq. (Weinberg, Roger & Rosenfeld), of Los Angeles, California, for the Charging Party. DECISION STATEMENT OF THE CASE PAUL BOGAS, Administrative Law Judge. I heard these con- solidated unfair labor practices and representation cases in Long Beach, California, on June 10 and 11, 2013. Communi- cations Workers of America, AFL–CIO (the Union, the Charg- ing Party, or the Petitioner) filed the charge on December 18, 2012, alleging that Purple Communications, Inc. (the Employ- er, the Respondent, Purple, or the Company) had committed unfair labor practices by maintaining rules that unlawfully in- terfered with employees’ rights to engage in protected concert- ed activity. Representation elections were held at a number of the Employer’s locations on November 28, 2012, including the locations in Corona, California, and Long Beach, California. At the Corona facility, 10 ballots were cast for the Union and 16 ballots against the Union, with 1 challenged ballot. At the Long Beach facility, 15 ballots were cast for the Union and 16 ballots against the Union, with 2 challenged ballots.1 The Un- ion filed timely objections to preelection conduct at those loca- tions. On April 22, 2013, the Regional Director for Region 21 of the National Labor Relations Board (the Board) issued a com- plaint alleging that the Employer had committed unfair labor practices in violation of Section 8(a)(1) of the National Labor Relations Act (the Act) by maintaining two rules that interfered with employees’ rights under Section 7 of the Act. The Em- ployer filed a timely answer in which it denied that the rules violated the Act. On April 30, 2013, the Regional Director for 1 At the start of trial, the Respondent and the Union stipulated that the challenged ballots at the Long Beach facility were cast by ineligible voters and should not be counted. 582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Region 21 issued a report on challenged ballots and objections and an order consolidating the cases regarding those matters with the unfair labor practices case for purposes of hearing. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, the Union, and the Employer, I make the following findings of fact and conclusions of law FINDINGS OF FACT I. JURISDICTION The Employer, a corporation, provides interpreting services to deaf and hard of hearing individuals, from its facilities in Corona, California, and Long Beach, California, where it annu- ally performs services valued in excess of $50,000 for custom- ers in states other than the State of California. The Employer 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 is a labor organization within the meaning of Section 2(5) of the Act. II. BACKGROUND FACTS The Employer is a provider of communication services for deaf and hard of hearing individuals. The primary service it provides is sign language interpretation during video calls. An employee known as a “video relay interpreter” or “VI” facili- tates communication between a hearing party and deaf party by interpreting spoken language into sign language and sign lan- guage into spoken language. The Employer offers its video call interpretation services 24 hours a day, 7 days a week, from 15 call center facilities across the United States. In 2012, inter- preters at seven of those facilities engaged in campaigns for union representation. The allegations in this case concern two facilities at which union representation elections were held on November 28, 2012. At one of those facilities, located in Co- rona, California, the Employer employs approximately 30 in- terpreters. At the other, located in Long Beach, California, the Employer employs approximately 47 interpreters. III. UNFAIR LABOR PRACTICES A. Facts The Employer’s video relay interpreters “process” calls us- ing company provided computers located at their workstations. The interpreters can use these workstation computers to access the Employer’s intranet system and various work programs, but the computers have limited, if any, access to the internet and nonwork programs. The Employer assigns an email account to each video interpreter, and the interpreters can access these accounts from the workstation computers as well as from their home computers and smart phones. Employees routinely use the work email system to communicate with each other, and managers use it to communicate with employees and other managers. At the Corona and Long Beach facilities, the Em- ployer also maintains a small number of shared computers that are located in common areas and from which employees are able to access the internet and nonwork programs. The Employer has an employee handbook that sets forth its policies and procedures. The unfair labor practices alleged in this case concern two handbook policies that the Employer has maintained since about June 19, 2012, and which the parties stipulate were in effect at all times relevant to this litigation. The first policy provides as follows: The following acts are specifically prohibited and will not be tolerated by Purple. Violations will result in disciplinary ac- tion, up to and including terminations of employment. . . . . Causing, creating, or participating in a disruption of any kind during working hours on Company property. The second handbook policy at issue concerns internet, intra- net, voicemail, and electronic communications. The portions that are alleged to violate the Act provide as follows: Computers, laptops, internet access, voicemail, electronic mail (email), Blackberry, cellular telephones and/or other Company equipment is provided and maintained by Purple to facilitate Company business. All information and messages stored, sent, and received on these systems are the sole and exclusive property of the Company, regardless of the author or recipient. All such equipment and access should be used for business purposes only. . . . . Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities: . . . . 2. Engaging in activities on behalf of organization or persons with no professional or business affiliation with the Company. . . . . 5. Sending uninvited email of a personal nature. The Employer is authorized to punish an employee’s violation of this policy with discipline up to and including termination. Ferron testified that the reason interpreters are prohibited from using their workstation computers for personal use is to prevent computer viruses from contaminating the call center. B. Analysis 1. The General Counsel argues that the Employer’s mainte- nance of the handbook policy prohibiting employees from “[c]ausing, creating, or participating in a disruption of any kind during working hours on Company property” violates Section 8(a)(1) of the Act because it sets forth an overly broad re- striction that interferes with the Section 7 rights of employees to engage in union and/or protected concerted activity. In de- termining whether the maintenance of a rule violates Section 8(a)(1), the appropriate inquiry is whether the rule would “rea- sonably tend[ ] to chill employees in the exercise of their Sec- tion 7 rights.” Knauz BMW, 358 NLRB 1754, 1754 (2012), citing Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). Under this standard, a rule that explicitly restricts Section 7 rights is unlawful. Id., citing Lu- theran Heritage Village-Livonia, 343 NLRB 646 (2004). If a rule does not explicitly restrict Section 7 rights, the General Counsel may establish a violation by showing any one of the PURPLE COMMUNICATIONS, INC. 583 following: (1) that employees would reasonably construe the language to prohibit Section 7 activity; (2) that 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., citing Lutheran Heritage, 343 NLRB at 647. The Employer’s prohibition on “causing, creating, or partici- pating in a disruption of any kind during working hours on Company property” does not explicitly restrict Section 7 activi- ty, however, the General Counsel argues that the policy violates the Act because it would reasonably be interpreted to do so. This argument is supported by Board precedent. In Heartland Catfish Co., the Board found that an employer rule that prohib- ited employees from “engaging or participating in any interrup- tion of work” violated Section 8(a)(1) of the Act because it would reasonably be interpreted by employees “to prohibit participation in a protected strike.” 358 NLRB 1117, 1117– 17182 (2012). Similarly, in Labor Ready, Inc., the Board held that an employer’s rule that “Employees who walk off the job will be discharged” was overbroad and unlawful. 331 NLRB 1656 (2000). In North Distribution, Inc., the administrative law judge ruled on exactly the same disruption language that is at issue here. 2002 WL 991684 (2002). In that case the judge held that the rule violated Section 8(a)(1) because its language was “overbroad and could be interpreted as barring Section 7 activity, including the right to engage in a work stoppage.” Id. Although I am not bound by the judge’s decision,2 I find his reasoning persuasive. Because the Employer’s prohibition does not define or limit the meaning of “disruption” or state that it is not intended to refer to Section 7 activity, I find that employees would reasonably interpret it to outlaw some such activity. To support its contention that the rule prohibiting employee disruptions is permissible, the Employer relies on the fact that the rule only prohibits disruptions during working hours. The Employer cites Daimler-Chrysler Corp., 344 NLRB 1324 (2005), and argues that the “disruption” language would not interfere with lawful strike activity because strikes are not pro- tected unless they occur on nonwork time. This contention is not persuasive for several reasons. First, I note that the prohibi- tion on “disruptions” is so broad that it can reasonably be un- derstood to apply not only to strike activity, but also to other forms of protected Section 7 activity, including, for example, solicitation. In addition, while the Employer argues in its brief that the Company is entitled to prohibit union activities during working “time,” the rule at issue is not, in fact, limited to work- ing time. Rather the prohibition explicitly extends to the entire “working hours” period. The Board has long held that the phrase “working hours,” unlike the phrase “working time,” encompasses periods that are the employees’ own time such as meal times and break periods, as well as times when employees have completed their shifts but are still on the company premis- es pursuant to the work relationship. Grimmway Farms, 314 NLRB 73, 90 (1994), enfd. in part 85 F.3d 637 (9th Cir. 1996) (table); Wellstream Corp., 313 NLRB 698, 703 (1994); Keco Industries, 306 NLRB 15, 19 (1992). For this reason, the Board has held that a rule prohibiting union solicitation during 2 There is no Board decision reviewing the administrative law judge’s decision in North Distribution, Inc., supra. “working hours” is presumptively invalid, even though a pre- sumption on solicitation during “working time” is generally lawful. Id.; see also Our Way, Inc., 268 NLRB 394, 394–395 (1983), citing Essex International, Inc., 211 NLRB 749 (1974). This distinction is particularly significant here since the Em- ployer operates 24 hours a day, 7 days a week—meaning that the prohibition on disruptions during “working hours” arguably applies to all hours of the day and night. Moreover, the rule does not only prohibit employees from directly participating in a disruption, but also from “causing” or “creating” a disruption that takes place during working hours on company property. Employees could reasonably fear that this would allow the Employer to discipline them for participating in meetings or other Section 7 activities that take place during nonwork time and away from the workplace if those activities are causally linked to a disruption at the facility. Lastly, I note that the Em- ployer incorrectly assumes that any strike that ran afoul of its rule prohibiting disruptions during working hours on company property would be a sit-down strike or slow down and, there- fore, unprotected by the Act. See Respondent’s Brief at p. 14, citing Daimler-Chrysler Corp., supra. This overlooks the sce- nario in which a strike begins when employees walk off the job and exit the facility. Such strikes are generally protected by the Act. See, e.g., Labor Ready, Inc., supra, but would neverthe- less be prohibited by the Employer’s rules since the disruption would begin during working hours on company property. For the reasons discussed above, I conclude that the Em- ployer’s maintenance of the rule prohibiting employees from “[c]ausing, creating, or participating in a disruption of any kind during working hours on Company property” violates Section 8(a)(1) of the Act because it sets forth an overly broad re- striction that interferes with the Section 7 rights of employees to engage in union and/or protected concerted activity. 2. The General Counsel also alleges that the Employer inter- fered with employees’ exercise of Section 7 rights in violation of Section 8(a)(1) by maintaining overly-broad rules that pro- hibit the use of its equipment, including computers, internet, and email systems for anything other than business purposes, and which specifically prohibit the use of that equipment for “engaging in activities on behalf of organizations or persons with no professional or business affiliation with the company.” While the General Counsel makes this allegation, it concedes that finding a violation would require overruling the Board’s decision in Register-Guard, 351 NLRB 1110 (2007), enfd. in part sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). In that decision the Board held that “employees have no statutory right to use the Employer’s email system for Section 7 purposes” and therefore that an employer does not violate Section 8(a)(1) by maintaining a prohibition on employ- ee use of its email system for “nonjob-related solicitations.” The General Counsel argues that Register-Guard should be overruled, inter alia, because of the increased importance of email as a means of employee communication. If the General Counsel’s arguments in favor of overruling Register-Guard have merits, those merits are for the Board to consider, not me. I am bound to follow Board precedent that has not been re- versed by the Supreme Court. See Pathmark Stores, 342 NLRB 378 fn. 1 (2004); Hebert Industrial Insulation Corp., 584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 312 NLRB 602, 608 (1993); Lumber & Mill Employers Assn., 265 NLRB 199 fn. 2 (1982), enfd. 736 F.2d 507 (9th Cir. 1984), cert. denied 469 U.S. 934 (1984). Therefore the allegation that the Employer violated Section 8(a)(1) by maintaining rules that prohibit the use of company equipment for anything but business purposes should be dis- missed. IV. CHALLENGED BALLOTS The Employer challenged the ballots of two individuals— Martin Garcia and LeeElle Tullis—who cast ballots in the rep- resentation election at the Long Beach facility. Those ballots are sufficient in number to affect the outcome of the Long Beach election. The Employer challenged these ballots on the grounds that the individuals had not worked the requisite num- ber of hours to qualify to vote. At trial, the Union and the Em- ployer stipulated that the two challenges should be sustained, and that the ballots of Garcia and Tullis should not be counted. No testimony or documentary evidence was presented on the subject. Given that the parties have stipulated to the validity of the ballot challenges, I conclude that the ballots of Garcia and Tullis should not be opened or counted. V. OBJECTIONS TO THE ELECTION In October 2012, the Union filed petitions for representation elections at the Corona and Long Beach facilities. On October 25, the Union and the Employer entered into stipulated election agreements for elections at both of those facilities to be held on November 28 for bargaining units comprised of all full-time and part-time video interpreters. The elections were held as scheduled and the Union filed postelection objections. The Regional Director for Region 21 directed that a hearing be held on the six objections filed by the Union regarding the election at the Corona facility (Case 21–RC–091531) and the election at the Long Beach facility (Case 21–RC–091584). The Union’s objections, which are identical for both facilities, are as fol- lows: 1. The employer encouraged a decertification petition to be prepared and circulated in the bargaining unit. It furthermore allowed employees to circulate this petition during worktime and in work areas. 2. The employer maintained and enforced unlawful rules in the workplace which interfered with the exercise of rights guaranteed by Section 7 and interfered with the election. 3. The employer made threats of bankruptcy and threatened employees with closure of the facility or loss of work if the workers voted or supported the Union. 4. The employer made offers of benefits and bribes to em- ployees if they would not support the Union. 5. The employer otherwise threatened employees with loss of benefits if the employees supported the Union. 6. The Excelsior List was inadequate. It did not contain email address[es], work shifts, rates of pay, and phone num- bers. These objections are discussed below. OBJECTION 1: The employer encouraged a decertification petition to be prepared and circulated in the bargaining unit. It furthermore allowed employees to circulate this petition during worktime and in work areas. The Board has stated that an employer has no legitimate role in instigating or facilitating a decertification petition and may not solicit employees to circulate or sign it. Armored Transpor- tation, Inc., 339 NLRB 374, 377 (2003); cf. Bridge- stone/Firestone, Inc., 335 NLRB 941, 941–942 (2001) (Em- ployer did not violate the act when employee decided of his own volition to file a decertification petition, and employer did not provide more than ministerial assistance.); Ernst Home Centers, 308 NLRB 358 (1992) (same). Objection 1 refers to the petitions that employees submitted in an effort to cancel the November 28, 2012 representation elections as “decertification petitions.” This is a misnomer inasmuch as the Union was not the certified collective-bargaining representative of interpreters at either facility and therefore could not be “decertified.” Nev- ertheless, I believe it is appropriate to apply the standard quoted above to the question of whether the Employer unlawfully in- volved itself in the petition to cancel the election. I find that under that standard, the Union has failed to show that the Em- ployer instigated, facilitated, circulated, improperly permitted, or otherwise unlawfully involved itself in the petitions at the Corona and Long Beach facilities. The record evidence shows that shortly before the represen- tation elections were held at the Corona and Long Beach facili- ties, interpreters at those facilities circulated identically worded petitions, which stated that the signing employees “wish to withdraw our request to unionize at this time, thereby canceling the vote that is scheduled to occur on November 28, 2012.” The petitions also stated that “[b]y agreeing to withdraw, the undersigned are neither stating support for or against unioniza- tion, rather, we see wisdom in allowing Purple, our employer, to realize that they have been lax in addressing their employ- ees’ concerns and taking supportive action.” After obtaining a number of signatures in support of the petitions, the proponents of the petitions transmitted copies to the Board, the Union, and the Employer. The letter transmitting the Corona petition is dated November 19, 2012, and the letter transmitting the Long Beach petition is dated November 26, 2012. Prior to when the proponents of the petition transmitted it, video interpreters Judith Kroeger and Ruth Usher observed co- workers circulating the petition from work station to work sta- tion at the Corona location during working hours. Kroeger also saw the petition displayed in the Corona breakroom. On No- vember 14, Kroeger sent an email message to facility manager, Sam Farley, stating: I just wanted to touch bas[e] with you as several VIs are ap- proaching me stating that they are being accosted in their sta- tions while working by other VIs not in support of the union. They are telling me they are being bribed with promises and coerced into agreements by these individuals while on com- pany time. Kroeger testified that the persons circulating the petition were rank-and-file interpreters who lacked authority to promise changes in working conditions. Later that day, Farley respond- PURPLE COMMUNICATIONS, INC. 585 ed to Kroeger by email as follows: Thank you for bringing this to my attention. You are correct that I will not stand for any harassment in the workplace espe- cially to the level that people are being accosted in their sta- tions. If you would like to give me more specific information I can look into this further. I understand that you do not want to disclose any specific details in which case I will do my best to keep my eyes and ears open. Also . . . if people are coming to you, please encourage them to come and speak with me as well so I can make sure this is . . . dealt with appropriately. The next day, November 15, Kroeger responded: Thank you Sam, and I have been directing individuals, but not everyone feels comfortable nor wants to contribute to what is going on. I know that the only way for you to effectively handle it would be for them to come to you. Thank you for making the extra effort to be more aware. I and many others are truly appreciative. Kroeger testified that she did not see the petition being circulat- ed again after the above email exchange with Farley. Farley testified that he was not aware that any employees were circulating a petition to cancel the election until he re- ceived the November 14 email from Kroeger and that after- wards he was on the lookout for such conduct. He testified that no one besides Kroeger mentioned the petition to him prior to its submission, and that not a single employee complained to him that they had personally been accosted or offered bribes to sign the petition. Farley further testified that he did not help employees transmit the petition to the Union or other call cen- ters. Although Farley may have been able to see employees walking in the hallways between the interpreters’ work stations, Usher, a witness for the Union, conceded that someone seeing this activity would not necessarily know that the employees were moving between workstations because they “could be coming from anywhere.” I found Farley a generally credible witness based on his de- meanor, testimony, and the record as a whole. Moreover, his testimony was essentially unrebutted. For these reasons, I fully credit Farley’s testimony that he was not involved in any way with the petition. There was no evidence that any other super- visor, manager, or agent of the company was involved in the creation, circulation, or submission of the petition at the Corona facility. Nor was there evidence that any other such individual was aware that the petition was being circulated at the Corona facility during working time. Under the circumstances, I find that the evidence does not show that the Employer encouraged, prepared, instigated, facilitated, or improperly permitted the Corona petition in any way. Evidence to support the Union’s objection is similarly lack- ing with respect to the petition at the Long Beach facility. The Union presented the testimony of Robert LoParo, an interpreter at the Long Beach facility and one of the three prounion indi- viduals who presented the petition for representation to man- agement. On November 18, LoParo received the petition to cancel the vote in an email from a coworker. The following day, a different coworker showed LoParo the petition in the breakroom. That day, LoParo also saw interpreters passing around a piece of a paper, and heard them saying “sign this, please,” but he could not tell whether the paper was the peti- tion, and, at trial, he did not remember who he saw passing it. LoParo stated that the individuals were not on formal, clocked- out, breaks when they were passing the paper. However, the record indicates that this would not necessarily mean that the employees were passing the paper during times when they should have been working since interpreters are allowed 10- minutes of break time per hour and do not clock out for those breaks. Angela Emerson, another Long Beach interpreter, stat- ed that she saw the petition pass at that facility on three occa- sions during a single morning in October or November. Even- tually the petition was passed to her at a time when she was not handling a call, but was not taking an official break. On Friday, November 23, 2012 (the day after the Thanksgiv- ing holiday), LoParo sent an email about the petition to Ty Blake-Holden, the manager of the Long Beach facility. LoParo stated that an interpreter had told him that she was feeling ac- costed at her workstation by people attempting to pass the peti- tion. Blake-Holden responded by email the following Monday, November 26. He stated: “You’re correct. Nobody should feel accosted in their station. This is not appropriate. Please make sure that this person contacts me directly.” There was no com- petent evidence that any employees contacted Blake-Holden to advise him that they personally had been accosted by a propo- nent of the antivote petition. Blake-Holden’s office afforded a view into one or two interpreter workstations, but not into the hallway between the interpreters’ workstations. Even assuming that LoParo’s above-discussed testimony is fully credited, I find that the evidence does not show that the Employer encouraged, prepared, instigated, facilitated, or im- properly permitted the Long Beach petition in any way. The evidence does not substantiate Objection No. 1 with re- spect to either the Corona or Long Beach facility and that ob- jection is overruled. OBJECTION 2: The employer maintained and enforced un- lawful rules in the workplace that interfered with the exercise of rights guaranteed by Section 7 and interfered with the elec- tion. In its brief, the Union bases this objection on the same two employer rules that the General Counsel alleged were viola- tions of Section 8(a)(1) in the unfair labor practices case dis- cussed above. As found above, the Employer’s maintenance of the rule prohibiting employees from “[c]ausing, creating, or participating in a disruption of any kind during working hours on Company property” sets forth an overly broad restriction that interferes with the Section 7 rights of employees to engage in union and/or protected concerted activity. The second rule— the Employer’s prohibition on the use of company equipment for anything other than business purposes—is not, under cur- rent Board law, considered an improper infringement on Sec- tion 7 rights. I see no basis upon which to conclude that that rule is objectionable. Objection 2 is sustained with respect to both the Corona fa- cility and the Long Beach facility to the extent that the Em- ployer’s workplace rule regarding disruptions is overly broad and interferes with the Section 7 rights of employees. The 586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Objection is overruled to the extent that it alleges other objec- tionable conduct. OBJECTION 3: The employer made threats of bankruptcy and threatened employees with closure of the facility or loss of work if the workers voted or supported the Union. OBJECTION 4: The employer made offers of benefits and bribes to employees if they would not support the union. OBJECTION 5. The employer otherwise threatened em- ployees with loss of benefits if the employees supported the Union. 1. Facts The Union’s argument in favor of sustaining Objections 3, 4, and 5, are based on statements allegedly made by Ferron (the Employer’s president and CEO) during his November 16, 2012 presentations to day-shift interpreters at the Corona and Long Beach facilities.3 These meetings were held 12 days before the union election and for the purpose of trying to persuade em- ployees to vote against representation. A bit of background is necessary to provide context for Ferron’s statements during those presentations. For some time prior to the presentations, the Employer had not been profitable. In 2010, the rate at which the FCC reimbursed the Employer for its video interpret- ing services was reduced by approximately 7 percent and the Employer reacted to the loss of revenue by, inter alia, reducing pay for interpreters and managers, and instituting layoffs. That year, the Employer closed approximately four of its facilities, including the Long Beach facility. Ferron’s understanding in 2012 was that the FCC would soon reset the compensation rates for video interpretation services and that the rates would be lowered again at that time. Nevertheless, management was not contemplating closing any facilities. Rather Ferron was plan- ning to expand the company’s operations, in part to take ad- vantage of the lower cost of doing business in other geographic areas and also to add interpreters who were not on the certified interpreters’ registry and therefore could be employed more cheaply. At some point in late 2011 or early 2012, the Em- ployer reopened the Long Beach facility and rehired some of the interpreters who it had laid off there in 2010. The Employer also sought to address its financial situation by increasing interpreter productivity. In early October 2012, shortly before the Union petitioned to represent interpreters at the Corona and Long Beach facilities, the Employer raised the productivity benchmarks that it relied on to, inter alia, deter- mine bonuses. The Employer increased the amount of time interpreters were expected to be logged onto the Employer’s system and the amount of billable time interpreters were ex- pected to generate.4 The record indicates that these changes resulted in interpreters being denied bonuses that they would have obtained under the prior productivity standards. Not sur- prisingly, interpreters disapproved of the new benchmarks and 3 At trial there was also testimony about other meetings conducted by Fran Cummings, vice president of operations, and Tanya Monette, vice president of human resources. The Union’s brief does not identify any conduct by the Respondent at those meetings that it contends was objectionable. 4 The Employer refers to its production standards as “key perfor- mance indicators” or “KPI.” made their disapproval known to the Employer. In a letter to Ferron dated November 20, 2012, the Union noted that the new log-in standards were causing many interpreters “physical pain,” and stated that the Union would not take any legal action if the Employer lowered those rates, regardless of whether the facilities were scheduled for a union election. At some point in November 2012—prior to the representation election—the Employer lowered some of the productivity benchmarks, alt- hough the benchmarks remained higher than they had been before the increases a month earlier. These changes were made at all facilities, regardless of union activity. It is not clear from the record exactly when in November the productivity stand- ards were eased, but one interpreter at the Long Beach facility first found out about the changes in a November 21 email from the Employer. Ferron made his antiunion presentations at the Corona and Long Beach facilities on November 16, and also made such presentations at five or six other facilities. Ferron prepared a set of notes for these presentations and used the same notes in each instance. Before preparing those notes, Ferron consulted with legal counsel and an outside labor relations consultant. He did not read from the notes, but did refer to them during the presentations in order to remind himself to cover certain topics. At each presentation, Ferron talked for 45 minutes to an hour, and then responded to questions for 30 to 45 minutes. Corona Presentation In support of the objections based on Ferron’s presentation at the Corona facility, the Union relies on the account given by Ruth Usher, a former video interpreter at that location. The Employer counters Usher’s testimony with that of Ferron, who disputes Usher’s account in a number of key respects. I do not consider the account of either of these two witnesses to be un- biased or generally more reliable than that of the other regard- ing disputed matters. Usher served as a union observer during the election and at the time of trial her separation from the Em- ployer was the subject of a pending unfair labor practice charge. On the witness stand, she sometimes gave the impres- sion of straining to support the Union’s position. Based on my consideration of Usher’s demeanor, testimony, and the record as a whole, I think that her account was tainted by bias. I note, moreover, that no other interpreter who attended Ferron’s presentation at the Corona facility testified to corroborate Ush- er’s account. Ferron’s testimony was less than fully reliable since he con- ceded that he was generally unable to distinguish what he said during his Corona and Long Beach presentations from what he said at any other of the facilities where he spoke against unioni- zation. In general, his testimony regarding what he said at the Corona and Long Beach facilities was rather vague except when he was asked about certain alleged coercive statements, at which points he became quite certain in his denials and seemed more intent on showing that he had not engaged in objectiona- ble conduct than in searching his recollection for an accurate account of his statements. No other attendee was questioned by the Employer to corroborate Ferron’s account of the disputed aspects of either the Corona meeting or the Long Beach meet- PURPLE COMMUNICATIONS, INC. 587 ing, although Ferron said that several management and supervi- sory employees attended the Long Beach meeting. Some things about Ferron’s presentation at Corona are clear. Ferron discussed: the recent decision of Hostess Brands, a company with union-represented employees, to file for bank- ruptcy; the Employer’s own financial challenges and uncertain financial future; a plea that employees delay bringing in a union and allow management time to address employee concerns; the company’s priorities in the event that the Union won the right to represent interpreters; and the costs the Employer had in- curred to resist the union campaign. Regarding Hostess Brands, the record indicates that Hostess’ situation relative to bankruptcy had been prominent in the news shortly before Ferron gave his presentations at the Corona and Long Beach facilities. Usher testified that, during his Corona presentation, Ferron referenced the Hostess situation and stated that “because of the union, Hostess was filing for bankruptcy,” but that Ferron did not elaborate further. At another point in her testimony, Usher stated that Ferron had said something a bit different—“lot of good the union did in order to keep their jobs . . . at Hostess.” Ferron testified that his discussion of Hostess during the presentations was confined to one or two sentences. According to him, he stated that he knew that employees were scared, but that “unionization isn’t a panacea,” as evidenced by the recent events at Hostess. He also testified that he told em- ployees that having a union “was an added cost and it . . . may or may not produce a favorable or desired result from the standpoint of the interpreter.” He testified that he said “Host- ess, you know—you know, their situation ended in bankruptcy which was disastrous for the company and its employees and nobody was served.” Ferron stated that he was fully aware that “bankruptcy” was a “fearful term” to employees and claimed that he “would never use it” in reference to Purple itself. How- ever, he stated that he considered it acceptable to mention the Hostess bankruptcy because “it was a popular topic in the news.” He denied that he said that “what happened to Hostess would happen at Purple if employees voted in the Union.” Based on the demeanor of the witnesses, the testimony, and the record as a whole, I find that Ferron made the statements re- garding Hostess that he admitted to, but do not find a basis for crediting Usher over Ferron regarding additional statements about Hostess. Regarding the Employer’s overall financial situation and fu- ture, Usher testified that Ferron told employees that the Em- ployer had “not made a big profit from last year to this year” and that the “overall tone” of Ferron’s discussion was that “if we go union, I don’t know what’s going to happen.” She testi- fied that Ferron said, in relation to all employees, that he “couldn’t promise that there would be benefits or anything like that in the future,” and that he “could not make any promises about the future.” For his part, Ferron testified that he told employees that the only promise he could make was that he “was doing his best to grow our company; to . . . increase prof- itability through productivity standards, through diversification of the company . . . but that it was an uncertain outcome be- cause [he] had an uncertain reimbursement rate” for video in- terpretation services. He stated that the Employer was evaluat- ing alternatives for expanding capacity at existing call centers and by opening new call centers. He discussed the possibility that benefits would be eliminated as a way of coping with fur- ther video interpretation rate reductions. According to Ferron, he also told employees that where the Employer “may have failed” was “in communicating” to employees that the state of their industry had rendered interpreters’ expectations about wages and benefits unreasonable. He testified that he told em- ployees: “We are in an uncertain time . . . with declining rates and what I’m trying to do is preserve what all of you have. . . . I can’t sit here and give you an expectation of pay increases, increased benefits, things like that. We’re all lucky to have a job and I’m trying to preserve what we have.” In Ferron’s ac- count, he also stated that he wanted the Company to remain the “employer of choice” for video interpreters, but that the inter- preters would have to measure what the Company was offering against the FCC reimbursement rate and what competitors were offering. “Employer of choice” was a term that the Employer had used in the past to mean that the Company respected and valued the interpreters’ work and provided competitive wages and benefits. The testimonies of Usher and Ferron about Fer- ron’s statements regarding the Employer’s overall financial situation are not contradictory, and I accept that Ferron made the statements recounted by both witnesses on that subject and which are recounted above in this paragraph. Usher also testified that Ferron told employees that he “would give more or less preferential treatment to the non- union employees because they were willing to work with him.” I do not credit Usher’s testimony in this regard. On the face of it, her use of the phrase “more or less” renders this testimony uncertain and/or unclear. Moreover, as stated above, I believe that Usher’s testimony was tainted by bias. Usher also testified that Ferron said that if some of the facilities became unionized he would “play hardball with the Union” but that he would “treat” the nonunion facilities “differently.” Ferron denied that he said anything about giving less preferential treatment to facilities that voted to unionize. He did, however, testify that one of his basic talking points was that if employees “did not trust” him “it would become a different ballgame.” In that case, he told the interpreters, he would have to negotiate in good faith and also “have to get the best deal for the company with the respect to the Union.” He testified that he told em- ployees that his focus during such negotiations would be “on the shareholders, the deaf and hard of hearing community, and looking after all of our employees—union, non-union and cor- porate.” Based on the demeanor of the witnesses, the testimony and the record as a whole I do not find a basis for crediting Usher over Ferron regarding the question of whether Ferron made statements threatening to treat employees who unionized worse than employees at nonunion facilities. I do, however, credit Ferron’s uncontradicted testimony that he made the statements discussed above with respect to “a different ball- game” and how he would negotiate if the employee’s elected union representation. Ferron also testified that he asked employees to “give” him “another 12 months” to address their concerns without a union. He discussed improving communications by having additional meetings and forums and placing a priority on the issuance of monthly newsletters. He testified that he said: 588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD [T]here were things that we could hopefully collectively solve . . . if given an opportunity over the next 12 months [to] eval- uate whether, you know, conditions in their mind relative to what is controllable versus that which is not controllable has improved or has not improved and you could always address a Union situation 12 months later. But give us an opportunity to bridge that divide. Ferron discussed employees’ concern about the heightened productivity benchmarks. According to him, he stated that the productivity standards were “always fluid” and that the increas- es were in the interpreters’ “best interest despite how they felt about them” because improved productivity allowed manage- ment to avoid layoffs and pay cuts. He testified he told em- ployees that, nevertheless, “interpreter health and safety . . . had to come first and foremost” and that the company might have gone too far and “needed to recalibrate” production standards and “were looking at that matter.” The portion of Ferron’s testimony that is set forth in this paragraph is not directly con- tradicted as it regards to the Corona facility and I credit that testimony. Regarding costs associated with the union campaign, Ferron testified that he said the following: And to the degree that we would have communicated better and wouldn’t have incurred the cost to fly around the country and encourage a no-vote to these union call centers, think of how much more money the company would have had from a discretionary standpoint. And then we could have done a lot of things with it. We could have invested in further product development. We could have given spot bonuses to the inter- preters. A lot of things we could have done that—you know—that money has kind [of] leaked out of the company. I credit this testimony by Ferron, which was not contradicted by any other witness to his presentation at the Corona facility. Long Beach Presentation In support of its objections based on Ferron’s presentation to the Long Beach facility interpreters, the Union relies on the testimonies of LoParo and another Long Beach interpreter, Angela Emerson. The Employer again relies on the testimony of Ferron—which generally did not distinguish what he said at the Long Beach presentation from what he said any of the other “vote no” presentations he made around the same time. A number of management and supervisory officials of the Em- ployer were present at the Long Beach talk (including Blake- Holden according to Emerson’s account, and Tanya Monette according to Ferron’s account)—but Ferron was the only repre- sentative of the company who testified about the meeting. It is undisputed that Ferron mentioned the Hostess bankrupt- cy at his presentation. He testified that he said that he knew that employees were scared, but that unionization was not a panacea, as evidenced by the bankruptcy at Hostess. He stated further that having a union adds costs and that it might lead to results that employees would not consider favorable. He cited the experience of Hostess, which “ended in bankruptcy which was disastrous for the company and its employees and nobody was served.” I credit Ferron’s testimony that he made these statements. His testimony was consistent with that of Emerson, who testified that Ferron “brought up . . . the correlation be- tween what our fears were, and Hostess, and what they went through.” LoParo testified that Ferron went further and directly stated that the union at Hostess had caused that company to go bankrupt. I do not credit LoParo’s testimony that Ferron made that explicit connection over Ferron’s contrary testimony. I do not consider LoParo an unbiased witness. He was one of the proponents of unionization who delivered the representation petition to the Employer. Moreover, LoParo’s accounts of what Ferron said regarding Hostess varied over the course of his testimony—becoming increasingly damning as the questioning went on.5 I was left with the impression that LoParo was not so much trying to recount what Ferron had actually said about Hostess, as trying to convey what he believed was Ferron’s implicit message on the subject. In addition, his memory ap- peared faulty. For example, he testified that Ferron made cer- tain statements about councils and committees, but when con- fronted with his own notes, he conceded that those statements were made by someone other than Ferron at a different meet- ing, or possibly only in a company newsletter, and possibly not until after the November 28 elections. Emerson testified at one point that the “feel” of what Ferron was saying was “almost like” “if you vote union, this is going to happen to you,” “Un- ion equals, you know, what happened to Hostess.” However, after reviewing Emerson’s testimony as a whole, I find that at these points in her testimony she was conveying her subjective impressions of Ferron’s presentation, not attempting to report his actual statements.6 At his Long Beach presentation, as at Corona, Ferron dis- cussed the Company’s difficult financial situation, and the chal- lenges posed by rate reductions. LoParo testified that Ferron told the employees that “with some of the requests the Union might [make], it could possibly lead to closing of certain cen- ters or the non-viability of certain centers that decided to go union.” After his recollection was refreshed with notes that he prepared several days after the presentation—LoParo quoted Ferron as stating that “depending on the vote, he could either expand [the Long Beach operation], or not.” LoParo also testi- fied that Ferron discussed the possibility of eliminating benefits for interpreters in order to address the Company’s financial situation. For his part, Ferron testified that he had not talked about closing any facilities or linked the viability of facilities or a reprioritization of facilities to whether those facilities union- ized. According to Ferron, he told employees that there was the possibility of expanding the Long Beach operation, “but that a lot of variables went into that,” including the “cost of labor” and “the outcome of collective bargaining relative to the pay rate of those interpreters.” Ferron stated that he told employees 5 For example, at one point LoParo recounted that Ferron said: “Did you see the news recently about Hostess? They went union. See what happens there.” Later LoParo recounted that what Ferron said about Hostess was: “It was the union that caused Hostess to have to close down and declare bankruptcy.” 6 The test of whether an employer’s conduct is objectionable “is not a subjective one, but an objective” one, and “the subjective reactions of employees are irrelevant to the question of whether there was in fact objectionable conduct.” Lake Mary Health & Rehabilitation, 345 NLRB 544, 545 (2005). PURPLE COMMUNICATIONS, INC. 589 that as a result of declines in the industry, it might be necessary to reduce pay or eliminate certain benefits at all call centers. I find that Ferron made the statements discussed above regarding the Employer’s difficult financial situation, the variables that would affect a possible Long Beach expansion, and the possi- bility of reduced pay and benefits, but do not find a basis for crediting LoParo’s testimony over Ferron’s denials regarding statements Ferron allegedly made warning that decisions about whether to close, expand, or give preferential treatment to par- ticular facilities would be based on whether employees voted to unionize. At Long Beach, Ferron also made a plea that employees re- frain from bringing in a union and give the Employer a chance to improve matters. As with the Corona talk, I credit Ferron’s testimony that at Long Beach he told the interpreters: “There were things we could hopefully collectively solve. . . . If given the opportunity over the next 12 months evaluate whether, you know, conditions in their mind relative to what is controllable versus that which is not controllable has improved or has not improved and you could always address a Union situation 12 months later. But give us an opportunity to bridge that divide.” I also find that he told employees “From the standpoint that you’ve turned towards a union vote, obviously there’s things that we as a company could have done better; first and foremost being communication” and that he discussed various steps to improve communication. I also credit his admission that he referenced the heightened productivity standards, stating the changes might have gone “too far,” that he would not have made the same changes knowing what he knows now, and that to the extent that the changes were not consistent with the health and well being of interpreters, the company would have to “adjust” as part of “a constant process of recalibration.” That testimony was essentially uncontradicted and, to a signifi- cant extent, corroborated by LoParo and Emerson. LoParo also testified that Ferron said: “I’ve heard you about your needs, but I’m in purgatory. I can’t give you anything. . . . Those centers that haven’t filed—I can change things for them, [productivity standards] and expectations. For those that filed for unionization, I can’t do anything. My hands are tied.” Lo- Paro’s testimony regarding the language used by Ferron on this subject was confident and detailed. Emerson testified less con- fidently and in less detail on this subject, but indicated that Ferron had said that he would not be able to take action to ad- just productivity standards if the Union was voted in; however, Emerson did not appear to be claiming that Ferron said he could not take such action because the vote was pending. Fer- ron testified that he did not “talk about changes to the [produc- tivity standards] based on the Union vote.” I consider Ferron’s testimony on this subject unclear. Although I think Ferron’s testimony is fairly understood as denying that he told employ- ees he would decide whether or not to make favorable changes based on the outcome of the Union vote, it is not clear at all that he was also denying that he told employees that the scheduled union election prevented him from making changes. Additional questions were not posed to elicit a clear response from Ferron on the question of whether he told employees that he could not make changes at facilities where a union election was sched- uled, but could do so at other facilities. I considered LoParo’s testimony on this subject quite credible. He testified confident- ly and recounted colorful language—e.g., “I’m in purgatory”— that stood out from LoParo’s own manner of speech during his testimony and had the ring of truth. Based on the above, I find that Ferron made the statements recounted by LoParo regarding the company’s ability to make changes at facilities where no election was scheduled, but not where an election was sched- uled. On the subject of addressing employee complaints discussed immediately above, LoParo claims that Ferron went further and stated that the employees who did not want the union “would become his priority” and “pretty much that those who were for the union would be have-nots and those who were against the union would be haves.” However, in other testimony he stepped back from this claim, stating that Ferron did not explic- itly say who were the “haves” and the “have-nots.” Elsewhere in his testimony, LoParo claimed that Ferron clearly warned that he would prefer the nonunion employees, stating that “he considered [the Employer] a family and a business and that, if certain centers decided to go union, he would have to repriori- tize and focus on his family.” Ferron unequivocally denied telling employees that the nonunion employees would be treat- ed as “haves” or otherwise become his priority, or that he would reprioritize based on whether a facility was unionized. In addition, Emerson, the Union’s other witness regarding the Long Beach presentation, did not recount the additional state- ments alleged by LoParo regarding giving priority to some facilities, or treating them as “haves” because they did not sup- port the Union. I do not find a basis for crediting LoParo’s testimony over Ferron’s on this subject. Ferron testified about a number of statements he says he made regarding his plans in the event that the facility rejected his plea for more time and voted for the Union. He testified that he told employees that his “first and foremost attention” would be to “our shareholder base . . . the people who own the company” and that he had to be concerned about the “deaf and hard of hearing consumers [that] rely upon [the Employer] for communication.” He testified that he said that if employees voted in favor of union representation he would have to bargain in good faith and “would negotiate to get the best possible out- come that [he] could on behalf of all those constituents” and would want “to have the non-Union and Union centers be aligned with regards to, you know, economic incentives, the productivity standards, and the general, you know, care and maintenance of being an employer to all of them.” I credit this testimony by Ferron, which was not directly contradicted by other witnesses to the Long Beach presentation. The witnesses for both sides are in agreement that Ferron made some remarks about the money that the company had expended campaigning for a “no vote” on unionization. In Ferron’s account, he told employees that if he had communi- cated with employees more effectively in the past, and thereby avoided the costs of campaigning for a no-vote, the company would have had more discretionary money to use for things such as product development and employee bonuses. In Lo- Paro’s account, Ferron said “We’ve spent so much money on the unionization issue, traveling around, et cetera, that we should have just paid out the bonus” or that if they had not 590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD expended that money they could have “possibly paid out bo- nuses to [the interpreters].”7 Emerson gave a slightly different account. She stated that when people asked about their bonus- es, Ferron stated that they had not reached the new benchmarks for receiving them. Then, Emerson recounts, Ferron went on to state that “he didn’t want to have to spend all this money on a union buster, that . . . he should have just used all that money to just pay us our bonuses.” The various accounts about what Ferron said regarding the costs of the Employer’s antiunion campaign are not clearly contradictory and I find that he made all the statements discussed in this paragraph. 2. Analysis The Union argues that Objection No. 3 is substantiated by the statements that Ferron made regarding the Hostess bank- ruptcy, the Employer’s financial issues and lack of profitability, and the possibility that the Union’s demands might lead to the closing or nonviability of facilities that elected union represen- tation. I find that this objection is not substantiated for either the Corona facility or the Long Beach facility. As discussed above, I find that Ferron discussed the recent bankruptcy of Hostess, and the presence of a union at that com- pany, as evidence that “unionization is not a panacea,” and that it would not necessarily be a solution to the interpreter’s prob- lems, but could, instead, have an outcome unfavorable to the interpreters and the Employer. Contrary to the Union’s conten- tion, this statement is not an unlawful threat of bankruptcy. In Parts Depot, Inc., the Board found that a similar statement by a manager was not impermissibly coercive. 332 NLRB 670 fn.1 (2000), enfd. 24 Fed. Appx. 1 (D.C. Cir. 2001). The manager in that case stated: “Remember what happened to Eastern Air- lines. Because they let the union in they went bankrupt.” The Board held that the statement was at most “a misrepresentation as to what caused Eastern to go bankrupt, not an implicit state- ment that the [employer] would take action on its own to de- clare bankruptcy if the Union won the election.” Id.; cf. Eldo- rado Tool, 325 NLRB 222, 223 (1997) (employer unlawfully threatened plant closure when it displayed a series of tomb- stones with the names of closed union factories, culminating, on the day prior to the representation election, with a tombstone bearing the name of the employer itself and a question mark). If anything, Ferron’s statement was marginally less threatening than the one in Parts Depot since in that case the manager ex- plicitly stated that unionization had caused the bankruptcy of Eastern Airlines, whereas I find that Ferron noted a correlation, but did not explicitly claim causation. Moreover, Ferron did not suggest that Hostess purposely chose to declare bankruptcy rather than deal with a union, but rather suggested that Hostess was forced into bankruptcy for economic reasons that unioniza- 7 LoParo further testified: “In effect [Ferron] was saying, ‘Fighting the union now is taking out the resources that I would have normally given to you, but now that you’re going pro-union that makes you have nots again. It means that you can’t earn that money, that bonus. It’s not available for you anymore.’” I do not understand LoParo to be testifying that Ferron actually made these statements. Rather given LoParo’s statement that this was “in effect” what Ferron was saying, I understand LoParo to be paraphrasing what he took to be Ferron’s message, not reporting his exact words. tion was either unable to ameliorate or negatively influenced. Thus Ferron’s reference to Hostess cannot in my view be rea- sonably viewed as a threat that the Employer would choose to declare bankruptcy, or close union facilities, in order to avoid dealing with a union. I do not doubt that Ferron was hoping that the interpreters would see Hostess’ experience not only as evidence that unionization was not a “panacea,” but also as cause to fear that bringing in the Union at Purple would nega- tively affect the economic future of the facility. Indeed, Ferron conceded he was aware that the use of the word “bankruptcy” was frightening to employees. However, based on Parts Depot, I find that his statement did not impermissibly cross the line between a statement about the experience at one unionized employer and a threat that the Employer would choose to file for bankruptcy or close down facilities rather than deal with a union.8 I conclude that the evidence does not substantiate Objection 3 at either the Corona or the Long Beach facility, and that ob- jection is overruled. The Union argues that Objection 4 is substantiated by Fer- ron’s statements that, if the employees gave him a year he would try to fix things without a Union, and that he would be able to change productivity standards for facilities that had not unionized or filed for unionization, but could not make such changes for those facilities that had done so. The Union argues further that this objection is substantiated by Ferron’s state- ments that he wished to return to being the “employer of choice” for video interpreters. An employer unlawfully coerces employees when it promis- es improvements in wages, benefits, and other terms and condi- tions of employment if employees vote against a union. DTR Industries, 311 NLRB 833, 834 (1993), enf. denied on other grounds 39 F.3d 106 (6th Cir. 1994); see also Curwood Inc., 339 NLRB 1137, 1147–1148 (2003), enfd. in pertinent part 397 F.3d 548 (7th Cir. 2005) (promise to improve pension benefits violated Section 8(a)(1) where the respondent was reacting to knowledge of union activity among its employees). I find that in this case the Employer did not make an improperly coercive promise. Ferron asked the employees to give the company another year to see whether by improving communication, and working together, they could address employees’ concerns. The evidence showed not only that Ferron did not promise increases in wages or benefits, but that he specifically stated that he could not promise improved wages and benefits or even guarantee that there would not be decreases. Although it is a closer question, I also conclude that Ferron did not make an unlawful promise regarding productivity 8 In its brief, the Union notes that Emerson believed that the message that Ferron was conveying about Hostess was “If you vote for the Un- ion, this is going to happen to you . . . the company would cease to exist or we wouldn’t have jobs anymore.” However, the subjective impres- sion of Emerson is not determinative since “[t]he test is not a subjective one but an objective” one, and the “subjective reactions of employees are irrelevant to the question of whether there was in fact objectionable conduct.” Lake Mary Health & Rehabilitation, 345 NLRB at 545. In this case, Ferron’s statements regarding Hostess cannot objectively be seen as a threat that he would choose to close the facility or declare bankruptcy rather than deal with the Union. PURPLE COMMUNICATIONS, INC. 591 standards. During both his Corona and Long Beach presenta- tions to employees, Ferron asked the employees to give the Company 12 months to improve communications and work with employees to address their concerns. He allowed that the Employer might have gone too far in raising productivity standards, that setting productivity standards involved an ongo- ing process of recalibration, and that he was looking into the matter. I conclude that these statements at Corona and Long Beach did not constitute a coercive promise. At the outset I note that the evidence does not show that he made any promise at all. He did not describe specific new productivity standards or promise that any changes he made in the future would neces- sarily be ones that the employees would approve of. He simply asked for another chance, conceded that the company might have gone too far with productivity standards and stated that the Company was looking into the matter as part of an ongoing process of recalibration. In Noah’s New York Bagels, 324 NLRB 266 (1997), the Board considered circumstances very similar to these and found that the employer’s president did not violate the Act during a captive audience speech the day before a union election by: asking employees to give “us a second chance to show what we can do,” admitting that the company had made mistakes, stating that the best way to overcome the mistakes was to work together without the involvement of a third party, and stating that the presence of a third party creates costs for both the company and employees and does not guar- antee “job security, fair treatment good wages and benefits, and a warm friendly work environment.” The Board noted that an employer’s“[g]eneralized expressions . . . asking for ‘another chance’ or ‘more time,’ have been held to be within the limits of permissible campaign propaganda” when the employer does not “make any specific promise that any particular matter would be improved.” Noah’s Bagels, 324 NLRB at 266–267, citing National Micronetics, 277 NLRB 993 (1985). Nor did Ferron violate the Act by stating that Purple wanted to be the “employer of choice” for interpreters. This, too, was not a promise of any specific changes, but no more than propaganda about what the Company claimed would be its generally re- spectful and favorable treatment of interpreters. I find, however, that Ferron did engage in objectionable con- duct by stating to the Long Beach interpreters that he could not make changes to address employees’ discontents given that a union election was scheduled, although he could make such changes at those facilities where a union vote was not sched- uled. That characterization of the situation is clearly at odds with Federal law. In Lampi, LLC, 322 NLRB 502 (1996), the Board stated: “As a general rule, an employer's legal duty in deciding whether to grant benefits while a representation pro- ceeding is pending is to decide that question precisely as it would if the union were not on the scene.” As was observed in First Student, Inc., 359 NLRB 103, 106 (2013), employers misstate the law when they tell employees that because they are awaiting a scheduled union election “they are caught between a proverbial ‘rock and a hard place.’” Neither granting nor with- holding improvements is illegal unless “the employer is found to be manipulating benefits in order to influence his employees’ decision during the union organizing campaign.” Id. In this case, I find that Ferron unlawfully coerced employees by blam- ing the upcoming union election for his purported inability to make changes to address employees’ discontent. Objection 4 is sustained with respect to Ferron’s speech at the Long Beach facility and overruled with respect to Ferron’s speech at the Corona facility. The Union argues that Objection 5, which states that the Employer threatened interpreters with loss of benefits if the employees supported the Union, is substantiated at the Corona facility by Ferron’s statement that he could not make any prom- ises that the Company would continue to provide benefits for full-time and part-time interpreters. The statement that the Union relies on does not attach the possible discontinuation of benefits to the union vote or its outcome. In fact, Ferron men- tioned discontinuing benefits in the context of a discussion of the financial challenges facing the Employer and the various actions being contemplated to address those challenges. The actions he mentioned included expanding some facilities, creat- ing new facilities, diversifying the company and increasing productivity—not just eliminating employee benefits. I find that the record does not show that these statements by Ferron at the Corona facility were improperly coercive as alleged in Ob- jection 5. The Union argues that Objection 5 is supported with respect to the Long Beach facility by evidence that Ferron said he was considering eliminating benefits as a means of saving money and that he would be unable to help those interpreters at union- ized facilities. As discussed above, I found that the evidence did not show that Ferron told employees that he would be una- ble to make positive changes for employees if they elected to be represented by the Union. He did make reference to the possi- bility of cutting benefits, but as at Corona, this was in the con- text of a discussion of a variety of ideas that the company was contemplating to address its financial challenges and was not linked to the results of the union vote. Objection 5 is overruled with respect to both the Corona fa- cility and the Long Beach facility. OBJECTION 6: The Excelsior List was inadequate. It did not contain email address[es], work shifts, rates of pay, and phone numbers. By letters dated October 25, 2012, the Acting Regional Di- rector for Region 21 of the Board notified the managers of the Corona and Long Beach facilities of the Employer’s obligation, pursuant to the terms of the election agreement, to provide “an election eligibility list containing the full names and complete addresses (including postal zip codes) of all the eligible voters who were on the Employer’s payroll for the period ending Sun- day, October 14, 2012.” Similarly, the election agreement that the parties executed for each facility stated that the Employer had agreed to provide “an election eligibility list containing the full names and addresses of all eligible voters” and cited Excel- sior Underwear, Inc., 156 NLRB 1236 (1966), and North Ma- con Health Care Facility, 315 NLRB 359 (1994). Neither doc- ument imposes on the Employer an obligation to include email addresses, work shifts, rates of pay, or phone numbers, as part of the election eligibility lists. There is no dispute that the Em- ployer provided election eligibility lists containing all of the information required by the October 25 letters from the Board and by the election agreements between the parties. The Union 592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD did not even present evidence establishing that, prior to the election, it notified the Employer that the Union considered the election eligibility list to be deficient. In its brief, the Union presses its claim that the Employer en- gaged in objectionable conduct by failing to include employ- ees’ email addresses on the election eligibility list, but makes no argument that it was objectionable not to include infor- mation about work shifts, rates of pay, or phone numbers. Even regarding the subject of email addresses, the Union con- cedes that “the Board has not yet required an employer to pro- vide employees’ email addresses in order to fulfill its Excelsior duty.” The fact is that the Board has specifically held that an employer’s obligation under Excelsior, supra, does not extend to providing email addresses for the eligible employees, even when the union made a specific preelection request for such information. Trustees of Columbia University, 350 NLRB 574 (2007). The Union makes a conclusory assertion that “in the particular circumstances of this case” additional information should have been provided, but it does not identify any special circumstances that would justify departing from the established standards. I conclude that the evidence does not show that the election eligibility lists provided by the Employer were inade- quate under either Board law or the election agreement between the parties. Objection 6 is not substantiated and is overruled. VI. ANALYSIS OF THE SUSTAINED OBJECTIONS At both the Corona and Long Beach facilities, the Employer maintained an overly broad rule that violated Section 8(a)(1) and constituted objectionable conduct. In addition, the Em- ployer engaged in objectionable conduct when, at the Long Beach facility, Ferron told employees that because a union election was scheduled there he could not make changes to address employees’ discontents, but that he could make chang- es at others facilities where a union election was not scheduled. The question is whether these objections are sufficient to war- rant setting aside the election at either facility. The Board has stated that “[r]epresentation elections are not lightly set aside.” Safeway, Inc., 338 NLRB 525 (2002). “[T]he Board sets aside an election and directs a new one when unfair labor practice violations have occurred during the critical period,9 unless the violations are de minimis.” PPG Aerospace Industries, 355 NLRB 103, 106 (2010). “In determining whether misconduct is de minimis, the Board considers such factors as the number of violations, their severity, the extent of their dissemination, the number of employees affected, the size of the bargaining unit, the closeness of the election, and the violations’ proximity to the election.” Id., citing Bon Appetit Mgt. Co., 334 NLRB 1042 (2001); see also First Student, Inc., 359 NLRB 1090, 1093 (2013) (when election results are close, objections must be carefully scrutinized); Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995) (same). Turning first to the Corona facility, I find that the circum- stances there do not warrant setting aside the election. Only a 9 The “critical period” is the interval from the date of the filing of the petition to the time of the election. Goodyear Tire & Rubber Co., 138 NLRB 453 (1962). single objection was sustained with respect to that facility—the maintenance of an overly broad rule regarding employee in- volvement in “disruptions.” The Board has found that the mere maintenance of an invalid rule may be an insufficient basis on which to overturn election results. See, e.g., Delta Brands, Inc., 344 NLRB 252, 253 (2006); Safeway, Inc., 338 NLRB 525, 525–526 (2002). I note, moreover, that the evidence in the instant case did not show that the Employer enforced this rule at all during the critical period, much less that it enforced the rule against employees for engaging in union or protected con- certed activity. Nor did the evidence suggest that any employee refrained from protected activity because of the rule. In any event, the Corona vote was not particularly close—16 ballots were cast against union representation, and only 10 in favor of it, with 1 challenged ballot. I conclude that the employer en- gaged in only de minimis misconduct which, under the circum- stances here, did not affect the outcome of the election at the Corona facility. With respect to the Long Beach facility, the situation is dif- ferent. At that facility the Employer acted unlawfully both by maintaining the overly broad rule and also when Ferron told the interpreters that he could not make changes to address their discontents given that a union election was scheduled, but that he could make such changes at those facilities where a union vote was not scheduled. This statement was made less than 2 weeks before the election and was broadly disseminated at a meeting held for all the interpreters present at the facility. In First Student, Inc., the Board required that an election be set aside where, during the critical period, the employer told em- ployees that it was not granting wage increases because Federal law prohibited them from making unilateral changes to the current pay scale when there is a union election pending. 359 NLRB 1090, 1094. Like the speaker in that case, Ferron was essentially blaming the union campaign for the Employer’s refusal to make changes favorable to employees. In the instant case the misconduct is similar, but in certain respects both more severe and less severe than in First Student. It is more severe in that Ferron not only stated that he could not address the Long Beach employees’ concerns because the union election was upcoming, but also contrasted that with the situation that would pertain if a vote was not scheduled and he could make changes. Those statements would certainly provide fuel for the efforts at Long Beach to persuade interpreters to petition for cancellation of the upcoming election. Although the election was not, in fact, cancelled, it is reasonable to infer that at least some of the antiunion sentiment generated or harnessed during the effort to cancel the election would carry over when the union vote was held. On the other hand, the misconduct here was less severe than in First Student, because it was not shown that the Em- ployer, in fact, withheld any benefit because a union vote was upcoming or in order to influence that vote. On balance, I conclude that Ferron’s statement that he could make changes to address employee discontent at facilities where a union vote was not scheduled, but could not do so at those where a union vote was scheduled, interfered with em- ployees’ free choice in the election and warrants setting aside the November 28, 2012 election at the Long Beach facility. In reaching this conclusion, I rely not only on the nature of the PURPLE COMMUNICATIONS, INC. 593 misconduct, the fact that Ferron’s statement was disseminated to a large group of employees, and the temporal proximity of that statement to the election, but also on the extremely close margin by which the election at Long Beach was decided. Fifteen valid ballots were cast in favor of union representation, and 16 against it. Thus, if Ferron’s misconduct caused even a single eligible voter to cast a ballot against, rather than for, union representation, then the outcome of the election was al- tered by that misconduct. For the reasons discussed above, I recommend that the November 28, 2012 election at the Long Beach facility be set aside, and that a new election be held. CONCLUSIONS OF LAW 1. The Employer is an employer engaged in commerce with- in the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Employer has violated Section 8(a)(1) of the Act since June 19, 2012, by maintaining a rule prohibiting employ- ees from “[c]ausing, creating, or participating in a disruption of any kind during working hours on Company property” because that rule creates an overly broad restriction that interferes with the Section 7 rights of employees to engage in union and/or protected concerted activity. 4. Objection 2 is sustained with respect to the Corona facili- ty and the Long Beach facility. 5. Objection 4 is sustained with respect to the Long Beach facility. 6. Objections 1, 3, 4, 5, and 6 are overruled with respect to the Corona facility. 7. Objections 1, 3, 5, and 6 are overruled with respect to the Long Beach facility. 8. The objectionable conduct engaged in by the Employer at the Corona facility during the critical election period did not have a more than de minimis impact on the election. 9. The objectionable conduct engaged in by the Employer at the Long Beach facility during the critical election period had an impact on the election, and that impact was more than de minimis. REMEDY Having found that the Employer has engaged in certain un- fair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended Order and Direction.10 ORDER The Employer, Purple Communications, Inc., Corona and Long Beach, California, its officers, agents, and representa- tives, shall 10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. 1. Cease and desist from (a) Maintaining any rule that prohibits employees from “causing, creating, or participating in a disruption of any kind” or that otherwise creates an overly broad restriction that inter- feres with the Section 7 rights of employees to engage in union and/or protected concerted activity. (b) 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 effec- tuate the policies of the Act. (a) Delete the unlawful workplace rule that prohibits em- ployees from “causing, creating, or participating in a disruption of any kind” from the current version of its employee handbook and notify employees that this has been done. (b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Employer has taken to comply. IT IS FURTHER ORDERED that the election held on November 28, 2012, in Case 21–RC–091584 is set aside and that this case is severed and remanded to the Regional Director for Region 21 for the purpose of conducting a new election. DIRECTION OF A SECOND ELECTION A second election by secret ballot shall be held among the employees in the unit found appropriate, whenever the Region- al Director deems appropriate. The Regional Director shall direct and supervise the election, subject to the Board's Rules and Regulations. Eligible to vote are those employed during the payroll period ending immediately before the date of the Notice of Second Election, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an economic strike that began less than 12 months before the date of the first election and who retained their employee status during the eligibility period and their replacements. Jeld-Wen of Everett, Inc., 285 NLRB 118 (1987). Those in the military services may vote if they appear in person at the polls. Ineligi- ble to vote are employees who have quit or been discharged for cause since the payroll period, striking employees who have been discharged for cause since the strike began and who have not been rehired or reinstated before the election date, and em- ployees engaged in an economic strike that began more than 12 months before the date of the first election and who have been permanently replaced. Those eligible shall vote whether they desire to be represented for collective bargaining by Communi- cations Workers of America, AFL–CIO. To ensure that all eligible voters have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses that may be used to communicate with them. Excelsior Underwear, 156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accord- ingly, it is directed that an eligibility list containing the full names and addresses of all the eligible voters must be filed by the Employer with the Regional Director within 21 days from 594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the date of the Notice of Second Election. North Macon Health Care Facility, 315 NLRB 359 (1994). The Regional Director shall make the list available to all par- ties to the election. No extension of time to file the list shall be granted by the Regional Director except in extraordinary cir- cumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objec- tions are filed. 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 be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT maintain any rule that prohibits you from “causing, creating, or participating in a disruption of any kind” or that otherwise creates an overly broad restriction that inter- feres with your Section 7 rights to engage in union and/or pro- tected concerted activity. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL delete the unlawful workplace rule that prohibits you from “causing, creating, or participating in a disruption of any kind” from the current version of our employee handbook and notify you that this has been done. PURPLE COMMUNICATIONS, INC.