Altercare of Wadsworth Center for Rehabilitation

National Labor Relations Board - Board Decisions

Aug 19, 2010

355 N.L.R.B. 565 (N.L.R.B. 2010)

ALTERCARE OF WADSWORTH CENTER FOR REHABILITATION
355 NLRB No. 96
565
Altercare of Wadsworth Center for Rehabilitation
and Nursing Care, Inc. and Service Employees
International Union, District 1199. Case 8–CA–
37436
August 19, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
On September 12, 2008, Administrative Law Judge
Michael A. Rosas issued the attached decision. The
General Counsel filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified and to adopt the recommended Order as modi-
fied and set forth in full below.
The judge found that the Respondent violated Section
8(a)(1) of the Act by promulgating and enforcing rules
prohibiting employees from wearing prounion buttons
and pulleys,1 and prohibiting employees from speaking
with each other about union matters during worktime.
No exceptions have been filed to those findings.2
The judge dismissed, however, the complaint allega-
tions that the Respondent’s verbal directions to employ-
ees to remove prounion buttons and pulleys, and verbal
warnings to employees to refrain from discussing union
matters during worktime, violated Section 8(a)(3) and (1)
of the Act. The General Counsel has excepted to the
judge’s dismissal of these allegations. We find that the
judge properly dismissed the former allegation but we
reverse as to the latter.
Verbal counselings or warnings constitute disciplinary
action sufficient to support a violation of Section 8(a)(3)
where they “are part of a disciplinary process in that they
lay ‘a foundation for future disciplinary action against
[the employee].’” Promedica Health Systems, 343
NLRB 1351, 1351 (2004) (quoting Trover Clinic, 280
NLRB 6, 16 (1986)), enfd. in rel. part 206 Fed.Appx. 405
(6th Cir. 2006), cert. denied 127 S.Ct. 2033 (2007). The
record here does not show that verbal directions are part
of the Respondent’s progressive disciplinary system. As
the judge observed, the parties’ collective-bargaining
agreement specifically provides that “verbal counseling

1 A pulley is a lanyard used for displaying an ID badge.
2 There are also no exceptions to the judge’s findings that the Re-
spondent’s unilateral implementation of those rules violated Sec.
8(a)(5) and (1) of the Act, and that the Respondent violated Sec. 8(a)(1)
by polling and interrogating employees via contest-quizzes and by
telling employees that it would be futile to support the Union.
and coaching shall not count for purposes of progressive
discipline.”
The General Counsel acknowledges that verbal direc-
tions are tantamount to counselings, but maintains in his
exceptions that verbal directions or counselings consti-
tute discipline. In support, he cites a provision of the
Respondent’s employee handbook, which the judge did
not reference in his decision that includes counselings as
part of the Respondent’s progressive discipline system.
The General Counsel, however, has failed to offer any
explanation why that handbook provision is not overrid-
den by the more specific collective-bargaining provision
making clear that verbal directions are not considered
part of the Respondent’s progressive disciplinary system.
In these circumstances, we find that the General Counsel
has not established that the verbal directions in this case
constituted disciplinary action sufficient to support a
violation of Section 8(a)(3) of the Act. See Lancaster
Fairfield Community Hospital, 311 NLRB 401, 403–404
(1993) (Board dismissed 8(a)(3) allegation because the
General Counsel failed to prove counseling was part of
employer’s progressive disciplinary system). The judge
thus properly dismissed this allegation.
A different conclusion is warranted as to the Respon-
dent’s verbal warnings to employees. As the General
Counsel points out, the Respondent’s handbook specifi-
cally includes verbal warnings as part of the Respon-
dent’s progressive discipline system. For example, the
handbook provides that “[i]n some instances it may be
appropriate to repeat the verbal warning before moving
to the next [disciplinary] step.” Moreover, in contrast to
its treatment of verbal counselings, the collective-
bargaining agreement does not exclude verbal warnings
from the Respondent’s progressive disciplinary system.
By providing only that “[v]erbal counseling and coach-
ing shall not count for purposes of progressive disci-
pline,” the agreement clearly indicates that verbal warn-
ings do “count.”
Given that circumstance, we find that the General
Counsel has shown that verbal warnings are part of the
Respondent’s progressive disciplinary system, and may
be taken into consideration by the Respondent in deter-
mining whether discipline is warranted for future infrac-
tions.
That conclusion is further supported by the fact that
the Respondent’s verbal warnings to employees not to
discuss union matters during worktime were adminis-
tered by the Respondent’s highest-level officials: its
chief administrator, Aaron Hetrick, who is in charge of
the facility’s daily operations, and Dale Fryer, the human
resources director at the facility. Director Fryer tele-
phoned employee Jacque Smith at her home and directed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 566
her to report to the facility immediately regarding a dis-
ciplinary matter, i.e., the verbal warning. Hetrick then,
as the judge found, “issued Smith a verbal warning” and
further specifically cautioned Smith against future viola-
tions of the Respondent’s proscription—found in this
proceeding to be unlawful—against discussing union
matters during worktime. We find that these facts but-
tress the serious nature of the verbal warnings and their
potential future implications for the affected employees.
Our dissenting colleague contends, in essence, that the
verbal warnings should not be considered discipline be-
cause (1) they were not accompanied by adverse action
and (2) the Respondent did not, at least in the instances
before us, memorialize the verbal warnings in the af-
fected employees’ personnel folders.3 We disagree with
that reasoning. As stated above, the test is whether the
warnings laid “a foundation for future disciplinary ac-
tion.” Promedica Health Systems, supra, 343 NLRB at
1351. It is clear from the Respondent’s employee hand-
book and collective-bargaining agreement that they do.
The fact that the Respondent had not yet gone beyond
verbal warnings at the time of the hearing in the in-
stances at issue does not undercut that finding. The dis-
sent’s second point, that the verbal warnings were not
memorialized, does not advance its cause. In essence,
the dissent suggests that the verbal warnings are not ver-
bal warnings within the meaning of the progressive dis-
cipline policy because they were not documented. But
the judge finds that the Respondent’s administrator “is-
sued [the two employees] a verbal warning” and no ex-
ception was taken to that factual finding. Moreover, the
Respondent’s human resource director himself character-
ized the issuance of the warnings as “a disciplinary mat-
ter.” Even though they were not memorialized, given the
Respondent’s demonstrated antiunion animus, it is not
likely that the Respondents’ officials who issued the
warnings, for “infractions” such as refusing to refrain
from discussing union matters, would forget about them
the next time the Respondent decided to discipline one of
the affected employees pursuant to its progressive disci-
pline policy.
In sum, we find that the Respondent’s verbal warnings
to employees laid a foundation for future disciplinary
action sufficient to establish a violation of Section
8(a)(3) of the Act. Promedica Health Systems, supra.

3 It is for this reason that we do not order expungement, i.e., there is
nothing to expunge.
ORDER4
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Altercare of Wadsworth Center for Reha-
bilitation and Nursing Care, Inc., Wadsworth, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Instituting work rules prohibiting employees from
wearing prounion buttons and pulleys.
(b) Instituting work rules prohibiting employees from
speaking with each other about union-related matters,
and pursuant to those rules verbally warning employees
not to discuss union-related matters, while permitting
employees to speak with others about other nonwork-
related matters.
(c) Conducting contests or quizzes that poll and inter-
rogate employees about their union activities and support
for the Union.
(d) Telling employees that it would be futile to support
the Union as its bargaining representative.
(e) Unilaterally instituting work rule changes regarding
the use of buttons and pulleys, and nonwork-related dis-
cussions between employees during worktime, without
giving notice to and bargaining with the Union.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the work rule prohibiting employees from
talking to each other about union-related matters, while
also permitting employees to talk with each other about
other nonwork matters.
(b) Rescind the work rule prohibiting employees from
wearing buttons and pulleys displaying support for the
Union.
(c) Within 14 days from the date of this Order, notify
Jacque Smith and Diana Martin in writing that the
unlawful verbal warnings issued to them will not be used
against them in any way.
(d) Within 14 days after service by the Region, post at
its facility in Wadsworth, Ohio, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on

4 We have modified the judge’s recommended Order to comport
with the 8(a)(3) violation we have found herein, and to correct certain
inadvertent language errors in the judge’s recommended Order. We
have substituted a new notice to comport with these modifications.
Because no documentation of the warnings were placed in employees’
files, a document expungement remedy is unnecessary. See Jensen
Enterprises, 339 NLRB 877, 891 fn. 19 (2003).
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
ALTERCARE OF WADSWORTH CENTER FOR REHABILITATION 567
forms provided by the Regional Director for Region 8,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, it shall duplicate and mail,
at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since June 4, 2007.
(e) 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.

MEMBER SCHAUMBER, dissenting in part.
I agree with my colleagues that the General Counsel
has not established that the Respondent’s “verbal direc-
tions” to employees to remove prounion buttons and pul-
leys constituted disciplinary action sufficient to support a
violation of Section 8(a)(3) of the Act. Unlike my col-
leagues, however, I would find that the General Counsel
also failed to show that the Respondent’s “verbal warn-
ings” to employees not to discuss the Union constituted
disciplinary actions. In neither situation did the General
Counsel prove that the “direction” or “warning” at issue
laid a foundation for future disciplinary action against the
employee under the Respondent’s progressive discipline
system.
My colleagues find that the “verbal warnings” to em-
ployees Jacque Smith and Diana Martin are disciplinary
because such warnings are specifically referenced in the
progressive discipline system contained in the Respon-
dent’s employee handbook, and, unlike “verbal counsel-
ing and coaching,” the collective-bargaining agreement
does not exclude “verbal warnings” as progressive disci-
pline. But merely characterizing the enforcement of the
rule against union talk as a “verbal warning” does not
transform it into disciplinary action.
Although the judge adopted the employees’ testimony
that they were given “verbal warnings,” he concluded
that those warnings were not disciplinary action.1 The

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.”
1 My colleagues note that the Respondent did not except to the
judge’s finding that the statements to employees were “verbal warn-
ings.” That absence of exceptions is hardly surprising, however, given
judge found no evidence of any adverse action having
been taken against the employees or any change made in
their terms and conditions of employment. Significantly,
the judge found that the “verbal warnings” were not
documented in the personnel folders of employees Smith
and Martin—just as the “verbal directions” to remove the
prounion buttons and pulleys were not documented in the
personnel folders of employees Diane Sams, Sonya Man-
ley, and Cathy Peterson. There are no exceptions to the
judge’s findings in that regard.2
The judge’s finding that the verbal warnings at issue
here were not discipline within the meaning of the Re-
spondent’s progressive discipline policy is consistent
with the express terms of that policy. The policy states
that when an employee is given a “verbal warning,” “[a]
record of this [verbal] warning must be made on the Per-
sonnel Action Form to be kept in the employee’s person-
nel folder.” (Emphasis added.) Yet there is no evidence
that the Respondent’s officials recorded the “verbal
warnings” on personnel action forms, placed them in any
employee’s personnel folder, or that the officials other-
wise treated the enforcement of the no-union-talk rule as
“verbal warnings” under the discipline policy.3
The fact that the collective-bargaining agreement does
not exclude “verbal warnings” from progressive disci-
pline begs the question whether that Respondent’s en-
forcement of the rule actually was a “verbal warning”
within the meaning of that system. Rather, the lack of
documentation of the “verbal warnings” in the employ-
ees’ personnel files is consistent with the lack of docu-
mentation of the verbal directions, and supports the con-
clusion that the “verbal warnings” similarly did not con-
stitute disciplinary action.4

the judge’s conclusion that the statements did not violate Sec. 8(a)(3)
because the statements were not “verbal warnings” within the meaning
of the Respondent’s progressive disciplinary system.
2 Because there are no exceptions, the majority finds it unnecessary
to include an expungement remedy for the verbal warnings.
3 The majority points out that verbal warnings are “specifically” part
of the progressive discipline in the employee handbook. But the hand-
book also “specifically” requires that verbal warnings be documented
in the employee’s personnel folder so that they may be considered in
the future. Here there was no documentation, nor is there a shred of
evidence that the Respondent will treat the undocumented verbal warn-
ings any differently from the nondisciplinary verbal directions. The
majority’s assertion that the Respondent will use the warnings for fu-
ture discipline of these employees is utter speculation.
4 The majority asserts that the serious nature of the warnings sup-
ports their finding. They point out that employee Smith was called at
home to meet with the Respondent’s two highest-level officials at the
facility who gave her the “verbal warning.” However, the fact the
officials who enforced the rule were high ranking does not establish
disciplinary action. Indeed, one of those senior officials, Human Re-
sources Director Fryer, also verbally directed employees to remove the
union buttons and pulleys, and my colleagues agree that those direc-
tions were not discipline.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 568
Accordingly, in agreement with the judge, I would
dismiss the allegation that the Respondent violated Sec-
tion 8(a)(3) by verbally warning employees against talk-
ing about union matters during worktime.
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 vio-
lated 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 institute work rules prohibiting employ-
ees from wearing prounion buttons and pulleys.
WE WILL NOT institute work rules prohibiting employ-
ees from speaking with each other about union-related
matters, or issue verbal warnings to employees who do
so, while permitting employees to speak with others
about other nonwork-related matters.
WE WILL NOT conduct contests or quizzes that poll and
interrogate employees about their union activities and
support for the Union.
WE WILL NOT tell employees that it would be futile to
support the Union as its bargaining representative.
WE WILL NOT unilaterally institute work rule changes
regarding the use of buttons and pulleys, and nonwork-
related discussions between employees during worktime,
without giving notice to and bargaining with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL rescind the work rule prohibiting employees
from talking to each other about union-related matters,
while also permitting employees to talk with each other
about other nonwork matters.

The majority implies that Fryer testified that the issuance of the
warnings was a “disciplinary matter.” He did not. The judge’s finding
in that regard is derived from Smith’s testimony. Despite accepting her
characterization, the judge concluded that no disciplinary action was
taken against her.
WE WILL rescind the work rule prohibiting employees
from wearing buttons and pulleys displaying support for
the Union.
WE WILL, within 14 days from the date of this Order,
notify Jacque Smith and Diana Martin in writing that the
unlawful verbal warnings issued to them will not be used
against them in any way.

ALTERCARE OF WADSWORTH CENTER FOR
REHABILITATION AND NURSING CARE, INC.

Rudra Choudhury, Esq., for the General Counsel.
Scott Salsbury, Esq. (Salsbury & Salsbury), of Hudson, Ohio,
for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Cleveland, Ohio, on May 28–29, 2008. The charge
was filed October 3, 2007, an amended charge was filed De-
cember 21, 2007, a second charge was filed February 26,
2008,1 and the complaint issued February 29, 2008. The com-
plaint, as amended, alleges the Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act): (1) on or
about June 4 by promulgating a rule prohibiting employees
from wearing prounion buttons while working; on or about
June 4 and July 9,2 10, and 11 by enforcing the rule through
verbal warnings to employees against wearing prounion but-
tons; on or about June 26, by promulgating a rule prohibiting
employees from engaging in union-related discussion during
worktime and then issuing verbal warnings to two employees
for violating such a rule; in or around early June by unlawfully
polling and interrogating its employees about their union mem-
bership, activities, and sympathies through weekly “contest-
quizzes” distributed to employees; and in or around July by
posting answers to the “contest-quizzes” in the employee
breakroom suggesting it would be futile for employees to con-
tinue to support the Union as their bargaining representative.
The amended complaint further alleges that the aforementioned
warnings to employees violated Section 8(a)(3). Finally, the
amended complaint further alleges that the Respondent’s prom-
ulgation of rules prohibiting employees from wearing union
insignia and discussing the Union during worktime, and grant-
ing benefits to employees in July through the contest-quizzes,
all without prior notice to the Union and affording it an oppor-
tunity to bargain, violated Section 8(a)(5). In its answer, filed
March 14, 2008, denied the material allegations in the com-
plaint.
Upon the conclusion of the trial, I directed that posthearing
briefs be filed by July 3, 2008. The General Counsel transmit-
ted its posthearing brief by overnight mail on July 2 and it was

1 All dates are in 2007, unless otherwise indicated.
2 Upon motion of the General Counsel and over the objection of the
Respondent, the complaint was amended at trial to add a paragraph
8(g), charging a verbal warning by Unit Manager Loretta Heath on July
9. (Tr. 16–24.)
ALTERCARE OF WADSWORTH CENTER FOR REHABILITATION 569
received by the Judges Division on July 3. The Respondent
transmitted its posthearing brief to the Judges Division by fac-
simile transmission on July 3 and sent another copy by regular
mail on that date. The Respondent was notified by the Judges
Division on July 7 that facsimile transmission is not an ac-
cepted method of filing posthearing briefs. On that date, the
Respondent re-filed, submitting its brief through the Board’s
electronic filing system. Subsequent to receipt of posthearing
briefs, the General Counsel moved pursuant to Section 102.24
of the Board’s Rules and Regulations to strike the Respondent’s
posthearing brief on the ground that it was not timely filed be-
cause it was sent improperly by facsimile transmission on July
3. The Respondent opposes the motion, acknowledges its pro-
cedural error, and requests that the resubmitted version of its
brief be accepted in substitution of the earlier-filed brief.
Section 102.11(b) requires that briefs be received “before the
official closing time of the receiving office on the last day of
the time limit.” Therefore, filing by regular mail on the due
date renders the filing untimely. In addition, Section
102.114(g) prohibits the filing of posthearing briefs by facsim-
ile. Finally, Section 102.111(c) authorizes acceptance of late-
filed briefs upon good cause shown based on a showing of ex-
cusable neglect and when no undue prejudice would result.
The Respondent improperly filed its posthearing brief by the
due date, thus rendering it late. This was due to an inadvertent
error, as counsel failed to take note of the applicable Board
Rules as noted in my closing instructions. Nevertheless, coun-
sel electronically filed the brief the next business day upon
learning of his mistake. Furthermore, there is no prejudice to
the General Counsel, as the electronically filed brief is identical
to the one transmitted by facsimile on the due date. Recent
Board decisions indicate a reluctance to impose the harsh pen-
alty of forfeiture under such circumstances. See Barstow Com-
munity Hospital, 352 NLRB 1052, 1055 fn. 4 (2008) (judge
accepted brief improperly filed by due date with Regional Of-
fice instead of Judges Division due to “inadvertent errors, their
diligent attention to them, and the fact that no undue prejudice
has resulted to any party”); WGE Federal Credit Union, 346
NLRB 183 (2005) (Board accepted brief electronically with the
Board on the due date, but after office closing time, as “no one
was prejudiced by the delay”). Accordingly, I deny the General
Counsel’s motion to strike the Respondent’s posthearing brief,
and have accepted the Respondent’s posthearing brief for con-
sideration.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Ohio corporation, engaged in the opera-
tion of a long-term care facility in Wadsworth, Ohio, where it
annually derives gross revenues in excess of $100,000 and
purchases and receives products valued in excess of $50,000
directly from points outside the State of Ohio. The Respondent
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Parties
The Schroer Group, Inc. (Schroer Group) owns numerous
long-term nursing care facilities in Ohio and Michigan, includ-
ing the Altercare of Wadsworth Center for Rehabilitation and
Nursing Care, Inc. (the Respondent or Altercare of
Wadsworth). Another subsidiary, Altercare of Ohio, Inc. (Al-
tercare of Ohio), serves as the management company and issues
the rules, regulations, policies, and procedures for all of the
Schroer Group’s long-term care facilities.3
The Respondent employs approximately 115 employees at
its facility in Wadsworth, Ohio. Aaron Hetrick is the Respon-
dent’s administrator and in charge of the facility’s daily opera-
tions. Dale Fryer is the facility’s human resource director.
Diane Geis is the Schroer Group’s executive vice president for
human resources. The facility has several departments, includ-
ing a nursing department. The nursing department consists of
four nurses’ stations or units. Each nurse unit is managed by a
care coordinator. Loretta Heath is a care coordinator and unit
manager who is responsible to supervise, evaluate, and disci-
pline the State-tested nursing assistants (nursing assistants) on
her unit.4 Diane Sams, Cathy Peterson, Sonya Manley, Dianna
Morris, Diana Martin, and Jacque Smith are nursing assistants.
Nursing assistants assist the facility’s residents with all activi-
ties of daily living, including bathing, dressing, and toileting.
The Respondent and the Union are parties to a collective-
bargaining agreement with a term of August 31, 2007, to Au-
gust 31, 2009.5 The bargaining unit is defined to include “all
full-time and regular laundry aides, dietary aides, cooks, nurses
aides,6 porters, restorative aides, housekeeping aides, and stu-
dents working more than 16 hours a week, but excluding all
office clerical employees, guards and supervisors as defined in
the Act.” Manley and Sams currently serve as union delegates.
Smith served as a union steward until January 2008.7 This
controversy relates to the period between May 30, 2007, when

3 Diane Geis, the Schroer Group’s principal human resource official,
with authority explained that Altercare of Ohio is the “management
entity” and not the parent company for Altercare of Wadsworth, lead-
ing me to conclude that the Schroer Group is the parent company, while
Altercare of Ohio and Altercare of Wadsworth are its subsidiaries. (Tr.
396–397.)
4 It is not disputed that care coordinators, including Heath, disci-
pline, evaluate and supervise nursing assistants. (Tr. 61, 63–65, 71–73,
168–170, GC Exhs. 16–17.)
5 The parties stipulated to amend par. 7(b) of the complaint, which
stated the term of the most recent agreement as January 1, 2006, to
August 31, 2007, to reflect the newer period. (Tr. 10–11, 361–362; GC
Exh. 28.)
6 Nurses aides, as referred to in the bargaining unit’s description, is
the functional equivalent of the State-licensed position of nursing assis-
tant. I adopted the latter, as it is the term generally referred to by the
parties.
7 Smith left the bargaining unit and her position as a union steward
in January 2008 when she transferred to the nonbargaining unit position
of activity aide. (Tr. 341–342.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 570
a decertification petition was filed in Case 8–RD–2083, and
August 10, 2007, the date of the decertification election (decer-
tification campaign period).
B. The Respondent’s Policies and Practices
Upon being hired, every employee is given a copy of the Re-
spondent’s handbook (handbook). In addition, any time any
policy in the handbook changes, the entire handbook is re-
printed and employees are given a copy of the new one. The
Respondent’s handbook was developed by Diane Geis, the
Schroer Group’s executive vice president of human resources.
The handbook includes several policies relevant to this contro-
versy. It has one provision relating to the uniform policy and
another policy addressing personal appearance. The handbook
also lists 44 specific instances of prohibited conduct by em-
ployees. It further states, in pertinent part, that commission of
any of the listed prohibited actions “will be grounds for disci-
plinary action in the form of a written warning, suspension or
discharge.”8 Discipline is also addressed in the collective-
bargaining agreement, which states in pertinent part, that
“[v]erbal counseling and coaching shall not count for purposes
of progressive discipline.”9
The personal appearance policy requires direct care workers
to wear name badges, but forbids them from wearing jewelry
while working. The badges are fastened to employees’ uni-
forms by pulleys. Pulleys are not, however, mentioned in the
handbook.10 Nevertheless, nursing assistants, based upon in-
struction at employee orientation and during periodic in-
services, have always been mindful to avoid wearing anything
that “might get tangled up with” the frail residents that they
serve. Hetrick, the facility administrator, has on occasion asked
employees to remove buttons, whether union-related or not.
With the exception of offensive or political campaign buttons,
employees have always been permitted to wear buttons, includ-
ing union buttons, in nonpatient care areas such as the break-
room.11
As a general practice, however, neither Hetrick nor other any
supervisors have enforced a policy of prohibiting employees
from wearing buttons, pins, or pulleys displaying insignia other
than their names, in resident care areas. Prior to May 2007,
when the decertification election petition was filed, several
employees wore nonunion buttons and pulleys in resident care
areas without any objection or comment by supervisors with
whom they frequently interacted and encountered, including
Fryer, Heath, and nursing director Marge Carrey. Sams wore
numerous buttons, pins, pulleys, and lanyards. The objects
displayed insignias such as national and religious holidays, and

8 R. Exh. 1, pp. 60–61, 64–67.
9 GC Exh. 28, p. 18.
10 There was no dispute that name badges were affixed to employee
uniforms by a pulley. (GC Exhs. 23, 25–27.)
11 Hetrick conceded that the Respondent did not have a written pol-
icy against the use of buttons. (Tr. 123–132.) On the other hand, Sams
confirmed his assertion that direct care providers need to be concerned
about anything, including a name badge, which could cause a skin tear.
(Tr. 196–197.) She also confirmed that employees have been permitted
to wear prounion buttons in the breakroom. (Tr. 162.)
others paying homage to her son’s service in the Iraq War.12
Manley wore a large button, attached by a pin, displaying her
daughter’s high school basketball picture. In fact, upon seeing
the pin, Heath and Nursing Director Carrey remarked about
how much Manley’s daughter had grown. Peterson wore, and
continues to wear, a pulley bearing a “Purrell” logo. Morris has
worn and continues to wear a pulley with a pink breast cancer
ribbon logo. She has also worn a pin with a Cleveland Indians
logo on her name badge.13
The 44 listed rules include prohibitions against neglect of
residents, intimidation of other employees, and disruptive or
distracting behavior while working. The list does not, however,
include a rule prohibiting employees from speaking about non-
work matters while working. In fact, the Respondent does not
have such a rule in writing. The Respondent has, however,
instructed nursing assistants that they are to limit discussion
with other employees about nonwork-related matters while
working with residents or are in resident care areas. The “di-
viding line” is when the conversation distracts nursing assis-
tants from taking care of the resident. This policy is communi-
cated to employees at orientation and reinforced during peri-
odic in-service training. Employees are permitted to discuss
nonpatient care issues, including those concerning the Union, in
noncare areas.14
Prior to May 2007, employees, including discriminatees
Smith and Martin, regularly engaged in conversations with
other employees about nonwork matters during worktime. As
such, they would speak with other employees about personal
matters in work areas such as the hallway and resident dining
room. Prior to the decertification campaign, Smith, as a union

12 I found Sams quite credible and reject the Respondent’s conten-
tion that she attempted to exaggerate the items that she claimed to
attach to the lanyard. It was quite obvious that she was not claiming
that all of the pins and buttons attached to the lanyard were on it at one
time at work. Upon more specific questioning, she clarified that she
attached them all to the lanyard for demonstrative purposes at the hear-
ing. (Tr. 154–157, 159, 163–165, 190–194, 215–219, 222–227; GC
Exhs. 22–23.)
13 Testimony by Manley, Morris, and Peterson that they wore but-
tons or pins prior to the period leading up to the decertification election,
without any objection by management, was credible and unrefuted by
the Respondent. (Tr. 242–245, 264–265, 284–286, 294–296, 298, 310–
315; GC Exhs. 24, 24(a), 26, 27.) In addition, Morris provided de-
tailed, credible testimony concerning permission she received a year
earlier from Deb Lougheed, the previous facility administrator, as to
union or political buttons. (Tr. 290–291.)
14 Hetrick’s testimony regarding the Respondent’s policy on em-
ployees’ talking while working was ambiguous and less than credible.
It was also glaring that the Respondent’s handbook, upon which the
Respondent relied as a foundation for its rules, failed to mention talking
amongst employees while they work. There can be no doubt that the
Respondent’s primary mission, as a regulated long-term nursing care
facility is to ensure that the needs of its residents are taken care of. (Tr.
136–138.) However, it was also clear from Hetrick’s testimony that it
was not a rule prohibiting absolutely all nonwork conversations while
employees were in resident care areas—“I mean, we just want to limit
all discussion, you know, and that’s not centered around the resident
. . . . If it’s a brief reference [to the Union or some union activity] and
it’s not, you know, intended, you know, for residents to hear, be disrup-
tive, and those type of things. . . .” (Tr. 138–139.)
ALTERCARE OF WADSWORTH CENTER FOR REHABILITATION 571
steward, also spoke to employees about the Union and potential
grievances.15
In addition to issuing a handbook governing employee con-
duct at its managed facilities, Altercare of Ohio, Inc. also con-
ducts an employee recognition and motivation program, com-
monly referred by the acronym “RAMP.” At the Respondent’s
facility, the RAMP has resulted in “fun” events for employees,
including drawings, ice cream socials, gifts, and prizes. Occa-
sionally, RAMP events are tied to facility initiatives, such as
getting employees to respond to call lights in a timelier manner.
The Respondent’s prizes have included small cash prizes and
turkeys. Since 2000, the Respondent has also conducted
anonymous employee satisfaction surveys every 6 months.
Employees completed the surveys and the results are tabulated
and analyzed. The Respondent has never provided notice of
RAMP to, or bargained with respect any of its activities with,
the Union.16
C. Employee Use of Buttons and Pulleys During the Campaign
At various times during the decertification campaign period,
issues arose over prounion buttons worn by several employees
on their uniforms. The standard button promoting the Union
displayed the words “District 1199” and “SEIU Stronger To-
gether” (SEIU button).17
On June 4, Sams had just completed caring for a resident
when Fryer directed her to remove an SEIU button that she was
wearing. Fryer explained that the only place that she could
wear the button was in the employee breakroom. On July 9,
Heath directed Sams to remove an SEIU pulley that attached
her name badge to her uniform. At the time Heath issued this
directive, Sams was not performing direct care to residents.
Sams responded by covering the SEIU logo with tape and
wrote the word “yes” and placed a black checkmark across the
pulley. Sams continued to wear the pulley, as modified, and
received no further directives about it. Upon comparison, the
SEIU pulley worn by Sams was similar to or smaller in size
than nonunion buttons and pulleys previously worn by Sams,
Manley, Martin, and Peterson. In any event, the incident was
not documented in Sams’ personnel file.18
On July 10, Peterson wore a name badge attached to her uni-
form by an SEIU pulley as she worked in a resident care area.

15 I found the spontaneous and detailed testimony of Smith and Mar-
tin to be credible and indicative of a work environment in which super-
visors, with whom employees came in contact frequently, were aware
of the nonwork-related discussion that would take place. (Tr. 327,
329–332, 334, 343–344.) Significantly, there was no testimony offered
by the Respondent suggesting they were unaware that employees en-
gaged in nonwork-related conversation while in resident care areas.
16 Geis’ testimony regarding the development of the RAMP program
and its continued implementation at the Respondent’s facility, was not
disputed. The photographs of winners of such contests are frequently
posted in the facility. (Tr. 372–375, 395–396; GC Exhs. 3–4.) Sams
also corroborated that the Respondent conducted such activities, includ-
ing drawings, and awarded prizes in the past. (Tr. 419–420.)
17 GC Exhs. 20–21.
18 Sams did not refute Fryer’s testimony regarding the June 4 inci-
dent. On the other hand, Fryer did not refute Sams’ assertion as to the
circumstances of the July 9 directive. (Tr. 135, 160–162, 164–166,
171, 176–177, 200–204; GC Exhs. 20–21.) Heath did not testify.
As she prepared to go to lunch, Fryer approached her and asked
her to remove the pulley and to refrain from wearing it in resi-
dent care areas. This encounter was not documented in Peter-
son’s personnel file.19
During late June 2007, Manley and Sams were greeting a
new resident at the facility when Carrey ordered Manley to
remove the SEIU button from her uniform and not wear it in
resident care areas.20 On July 11, as Manley prepared to leave
for lunch, Fryer ordered her to remove an SEIU pulley she was
wearing. This incident, like the others, was not documented in
Manley’s personnel file. Like Sams, Manley responded by
covering the union logo with tape bearing the word, “Yes.”
She wore that pulley until the decertification election was held.
After the election, she replaced the tape on the pulley with one
bearing the word, “Alright.” The SEIU button was signifi-
cantly smaller than the basketball pin worn by Manley prior to
the decertification campaign.21
D. Employees Prohibited from Discussing the Union
While Working
During the decertification campaign, issues arose concerning
conversations between employees while they worked. Some-
time in late June, Smith engaged in discussion about the decer-
tification election with other employees while working. On
June 25, Fryer called Smith at home and told her to come in
immediately and meet with Hetrick regarding a disciplinary
matter. Smith was, however, caring for her disabled husband,
and could not report to work until the next day. On June 26,
Smith, accompanied by Carol Wolf, a union representative, met
with Fryer and Hetrick in Hetrick’s office. During the meeting,
Hetrick issued Smith a verbal warning for talking about the
Union while working. She responded that she was simply re-
sponding to questions by other employees about the Union and
the decertification petition. At that point, Hetrick cautioned her
to make sure that, in the future, she only spoke about the Union
during her break or outside the facility. Smith then inquired as
to why she was being admonished if other people were talking
about the Union while working. Hetrick concluded with a re-
mark that others were also being issued verbal warnings for the
same conduct. The warning was not, however, documented in
Smith’s personnel file.22

19 Peterson’s testimony on this issue also went unchallenged. (Tr.
315–319.)
20 This incident was not included in the charges, but was considered
as background evidence. (Tr. 246–247.)
21 This finding is based on Manley’s credible and unrefuted testi-
mony. (Tr. 247–254, 265–267; GC Exhs. 20, 21, 24, 24(a), 25.) How-
ever, in the absence of testimony indicating otherwise, I also find that
the incident was not documented in Manley’s personnel file.
22 Again, I found Smith’s version of the meeting to be more credible
than Hetrick’s contention that there was no meeting or warning issued.
(Tr. 345–352.) Hetrick denied counseling Smith and insists he merely
had a discussion with her about intimidating and being “gruff” with a
housekeeping employee, Barbara Tachitie, about how to vote in the
upcoming election. (Tr. 139–142, 146–148.) However, Hetrick did not
witness the incident, Trachitie did not testify and, even though intimi-
dation would have violated rule 5 in the employee section of the Re-
spondent’s handbook, the alleged incident was not even documented.
(R. Exh. 1, p. 61.) Moreover, Fryer testified as a 611(c) witness during
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 572
During the morning of June 26, Martin was approached by
several coworkers while working in a resident area and asked
her if she had signed a letter calling for decertification of the
Union. Martin told the employees that, “if it ain’t broke don’t
fix it.” Later that day, Martin was summoned to meet with
Hetrick and Fryer. At the meeting, Hetrick issued Martin a
verbal warning for discussing the union during company time.
Hetrick did not explain to Martin or offer testimony explaining
the underlying circumstances for the warning to Martin. In any
event, there was no written warning placed in Martin’s person-
nel file as a result of this encounter.23
E. The Respondent’s Contest-Quiz
During the decertification campaign period, and without giv-
ing notice to the Union,24 Hetrick implemented a RAMP con-
test focusing on the issues relevant to the impending election.25
The contest consisted of “contest-quiz” forms containing ques-
tions,26 which were placed in the employee breakroom on
Mondays, along with a box for the voluntary submission of
contest entries.27
The questionnaires, prepared by Altercare of Ohio, were ac-
tually statements by the Respondent regarding its views of the
Union. The first contest-quiz asked whether the Respondent
provided health insurance a few years earlier and gave employ-
ees turkeys at Thanksgiving time because the Union required it.
The second contest-quiz asked whether the Union uses its

the General Counsel’s case, but was not called on rebuttal to refute
Smith’s testimony that he contacted her on June 25 and was present at
the June 26 meeting. As such, Smith’s contention stands essentially
unchallenged.
23 This finding is based on Martin’s credible and unrefuted testi-
mony. (Tr. 328–336.)
24 It is not disputed that Respondent did not give the Union notice of
this contest and an opportunity to bargain over its implementation. (Tr.
357–358.)
25 Hetrick’s lack of credibility regarding the circumstances leading to
his placing the contest-quizzes in the employee breakroom strongly
suggests that it was not disseminated in the regular course of the Re-
spondent’s past practice of holding contests for “fun.” His vague and
evasive explanation as to how he got the form from an employee at the
Respondent’s parent company concluded with the admission that the
Respondent’s labor counsel, in addition to the parent company’s presi-
dent and in-house counsel, told him what to do with the flyer. (Tr. 77–
85, 110–112.)
26 Given the objective standard applied in determining whether the
quiz tended to be coercive, the Respondent’s assertions as to its inten-
tions in not eliciting information from participants, its intentions to
“provide information in a fun atmosphere like past contests, and its
assertion that it did not review who responded and their responses are
irrelevant. (Tr. 142, 377, 394.) Similarly, in the absence of evidence
that the Respondent actually told employees that it did not care what
their responses were, Sams’ testimony that management “didn’t care
what our answers were” is purely subjective. (Tr. 210.)
27 As the forms, as well as the box for submitting the entries, were
placed in the employee breakroom, it is reasonable to assume that the
contest was effectively limited to the employees who used that room.
Furthermore, although the contest-quiz forms did not refer to an actual
gift prize, consistent with past practice, employees reasonably expected
that a winner would receive a gift of some type. (Tr. 76, 87–88, 95,
105–107, 116, 181–189, 211–213, 259–264, 269–276, 376–378, 393–
394, 405–408.)
members’ dues to pay for political contributions and whether
union members have control over how the Union spends mem-
bers’ dues. The third contest-quiz asked whether members’
dues directly improve their wages and benefits or are used for
extravagant expenses, and whether the Union “buys American”
and has enough funds to pay members’ bills during a strike.
The fourth contest-quiz asked whether a member’s vote at the
decertification election could be discovered, the Union could
make the Respondent change its values, and whether the Union
would be more responsive to workers’ concerns if it won the
election.28
Each contest-quiz form stated at the bottom that providing
one’s names was “optional” and “no participant is required to
sign his or her name.” However, in order to be eligible to win
the weekly drawing and get a gift cards, employees had to iden-
tify themselves on the questionnaire.29 Bargaining unit em-
ployees submitted entries for all four contest-quizzes. The
Respondent retained eight entries for contest-quiz 4, which was
held during the week of the decertification election, and dis-
carded entries for the other contest-quizzes.30 Each of these
entries identified the participant by name and their responses to
the questions.31
Hetrick collected the questionnaires each Friday and con-
ducted a random drawing of the winning entry. In addition to
awarding employees gift cards for the contest-quiz, Hetrick
posted an announcement of the name and photograph of the
winning employee, with whom he posed, in the elevator and
next to the timeclock in the breakroom. Of particular note,
Manley won the contest drawing for the week of July 27. Each
announcement remained posted for a week until the next con-
test-quiz winner was announced. Along with each announce-
ment of a winner, Hetrick would also post its “quiz answers” in
the employee breakroom.32
The answer checked off by the Respondent to every question
was “no” and was followed by narrative responses that included
direct statements about the Union such as: the Respondent “was
there to help when the union let these employees down;” the
Union “absolutely uses dues money to pay lobbyists and make
contributions to political campaigns and candidates;” the Union
spends dues money on whatever its leadership in Columbus
wants;” members’ dues are spent in “a variety of places far
from Ohio for purposes unrelated to your wages and benefits;”
the Union spend members’ dues on extravagant expenses such

28 Geis and Hetrick conceded that the “answers” were intended to
convey the Respondent’s views about the Union. (Tr. 99, 377; GC
Exhs. 3, 6, 9, 12.)
29 Geis’ testimony that employees could submit valid contest-quiz
entries with their names on them, but without completing the answers,
is not supported by the evidence. (Tr. 378, 411–412.)
30 The General Counsel noted that he served a subpoena duces tecum
on the Respondent requesting production of all entries to its weekly
contest-quizzes. (GC Exh. 2, Request 9.) The Respondent produced
only the entries for contest quiz 4 and Hetrick testified, in less than
credible fashion, that he may have discarded the responses to the other
contests: “I don’t recall. I think I threw them away.” (Tr. 121.) In any
event, it is not disputed that the employees submitted completed ques-
tionnaires for contests 1 through 3 as well.
31 GC Exh. 15.
32 GC Exhs. 5, 8, 11, 14.
ALTERCARE OF WADSWORTH CENTER FOR REHABILITATION 573
as Merrill Lynch ($51,102), Embassy Suites ($256,716), the
Radisson Hotel ($23,569), Columbus Convention Center
($30,624), Busca Di Beppo ($6,407), a “Promotion Products”
company ($46,617) and the Sunburst Travel Agency ($22,634);
the Union has less than $4 available for each member in the
case of a strike; in 2006, the Union’s largest investment of
$225,000 was in an Asian currency company; and “the union
has no incentive to change its ways. The revolving door of
union representatives will continue.” One answer went as far
as strongly suggesting that the Respondent would not negotiate
with the Union regarding wages, benefits, and working condi-
tions because they were “consistent throughout its facilities.”
As to those terms and conditions of employment, the Respon-
dent proclaimed: “We’re not changing because our residents
and employees depend on us.”33
Legal Analysis
A. The 8(a)(1) Charges
1. The Respondent’s prohibition against the use of prounion
buttons during worktime
Prior to the decertification election campaign period, the Re-
spondent occasionally ordered employees to remove buttons
that could cause injury to its elderly clients. However, it did
not generally enforce a policy prohibiting employees from
wearing nonwork-related buttons or pulleys. It took a decid-
edly different tack, however, on June 4, when Hetrick directed
an employee to remove a prounion button attached to her uni-
form. The Respondent then enforced this newly-enforced rule
on at least three other occasions during the decertification elec-
tion campaign period—July 9, 10, and 11—when its supervi-
sors directed employees to remove prounion buttons or pulleys.
The buttons and pulleys at issue were mostly smaller in size,
but certainly no larger than the pulleys used to attach name tags
to uniforms or other personal buttons worn previously by em-
ployees as they worked.
Union members’ Section 7 rights generally entitle them to
wear union insignia in the workplace. Washington State Nurses
Assn. v. NLRB, 526 F.3d 577 (9th Cir. 2008); Mt. Clemens
General Hospital v. NLRB, 328 F.3d 837 (6th Cir. 2003); and
London Memorial Hospital, 238 NLRB 704, 708 (1978). As
applied to health care facilities, however, employers’ restric-
tions on the wearing of union insignia in “immediate patient
care” areas are presumptively valid. On the other hand, restric-
tions on union insignia in nonworking areas of such a facility
are presumptively invalid. Casa San Miguel, 320 NLRB 534,
540 (1995). A complete restriction on the use of union insignia
may be validated, however, where the employer demonstrates
the existence of “special circumstances” that are “necessary to
avoid disruption of health-care operations or disturbance of
patients.” Beth Israel Hospital v. NLRB, 437 U.S. 483, 507
(1978); and NLRB v. Los Angeles New Hospital, 640 F.2d
1017, 1020 (9th Cir. 1981). In such an instance, the employer
bears the burden of proving an adverse impact on patient care.
Washington State Nurses Assn., 526 F.3d at 581; NLRB v. Bap-

33 GC Exhs. 4, 7, 10, 13.
tist Hospital, 442 U.S. 773, 781 (1979); Mesa Vista Hospital,
280 NLRB 298, 299 (1986).
The Respondent’s policy as to what employees could attach
to their uniforms while working in patient care areas was so
vague and, for the most part, unenforced that it could hardly be
considered a rule at all. Moreover, the Respondent’s acquies-
cence to the use of other buttons and pulleys by employees that
were larger than those at issue here negates its special circum-
stances allegation—that the prounion buttons and pulleys posed
a danger to the facility’s residents. As such, the Respondent’s
refinement and enforcement of its vague policy so as to prohibit
employees from wearing prounion buttons in the midst of a
decertification election campaign period was clearly discrimi-
natory and calculated to restrain union activity. Under the cir-
cumstances, the implementation and enforcement of such a
prohibition violated Section 8(a)(1). Mt. Clemens General
Hospital v. NLRB, 335 NLRB 48 (2001).
2. The Respondent’s prohibition against employees
discussing the Union during worktime
Prior to the decertification election, the Respondent in-
structed nursing assistants to limit discussion with other em-
ployees about nonwork-related matters that may distract them
from caring for the facility’s residents. It did not have a rule
prohibiting employees from speaking about nonwork matters
while working. As a result, nursing assistants regularly en-
gaged in such conversation and were not disciplined or other-
wise prohibited from doing so. Such a rule, however, was en-
acted and enforced against two employees—Martin and
Smith—during the midst of the decertification election cam-
paign on June 26. There was no credible evidence that they
were distracted from performing their responsibilities at the
time.
An employer violates Section 8(a)(1) when it permits em-
ployees to discuss nonwork-related subjects during worktime,
but prohibits employees from discussing union-related matters.
Orval Kent Food Co., 278 NLRB 402, 407 (1986); Olympic
Medical Corp., 236 NLRB 1117, 1122 (1978), enfd. 608 F.2d
762 (9th Cir. 1979); Williamette Industries, 306 NLRB 1010,
1017 (1992); and Larid Printing, Inc., 264 NLRB 369, 374, 376
(1982). This is especially the case when the prohibition is an-
nounced during a union organizing campaign. In re Teledyne
Advanced Materials, 332 NLRB 539 (2000); and Olympic
Medical Corp., 236 NLRB 1117, 1122 (1978) enfd. 608 F.2d
762 (9th Cir. 1979). Under the circumstances, by promulgating
and enforcing a policy allowing employees to discuss nonwork-
related subjects, but forbidding Martin and Smith from discuss-
ing union matters during the decertification election campaign
period, the Respondent violated Section 8(a)(1).
3. The Respondent’s implementation of a contest-quiz
The Respondent’s implementation of a contest in June and
July was not a new concept. It had held such events before.
However, the contest-quizzes at issue consisted of questions
relating to the upcoming union decertification election and
sought to elicit the views of bargaining unit members regarding
the Union. In order to be eligible to win the weekly drawing,
employees had to identify themselves on their entries. The
Respondent also posted its answers to the contest-quiz ques-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 574
tions in the employee breakroom. Each answer was “no,” fol-
lowed by a narrative as to the merits and ramifications of union
representation, and clearly reflected an antiunion bias.
Just as in the “Union Truth Quiz” used in the controlling
case of Sea Breeze Health Care Center, Inc., 331 NLRB 1131,
1132–1133 (2000), the Respondent’s contest-quizzes here were
placed by supervisors in the sanctuary of the employee break-
room, reflected an antiunion bias and required entrants to iden-
tify themselves in order to be eligible for a cash prize. Citing
earlier decisions finding such contests objectionable under the
Act, the Board in Sea Breeze found such a contest or quiz “tan-
tamount to effectively polling employees about their union
sentiments” and violated Section 8(a)(1). See Melampy Mfg.
Co., 303 NLRB 845 (1991); Houston Chronicle Publishing
Co., 293 NLRB 332 (1989); and National Gypsum Co., 280
NLRB 1003 (1986).
Similarly, the contest-quizzes at issue here were unlawful
mechanisms for the polling and interrogation of employees
about their union membership, activities, and sympathies. Such
a strategy was calculated to apprise the Respondent as to which
employees were familiar with its campaign material. It also
enabled the Respondent to ascertain where to focus its addi-
tional campaign tactics. Sea Breeze Health Care Center, Inc.,
supra at 1132–1133. In addition, one of the Respondent’s an-
swers published to employees in the breakroom suggested it
would be futile for them to continue to support the Union as
their bargaining representative. Such communication to em-
ployees violated Section 8(a)(1). Goya Foods, 347 NLRB 1118,
1135 (2006); and Wellstream Corp., 313 NLRB 698, 706
(1994).
B. The 8(a)(3) Charges
The amended complaint further alleges that the Respondent’s
aforementioned directives to employees constituted warnings in
violation of Section 8(a)(3). The evidence revealed four in-
stances in which the Respondent unlawfully directed employees
to remove prounion buttons from their uniforms while work-
ing—on June 4 and July 9, 10, and 11. In addition, on June 26,
the Respondent warned two employees to refrain from discuss-
ing matters involving the Union during worktime.
In assessing the evidence under the analytical framework of
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), it is irrefutable that employees engaged in protected
concerted activity by wearing prounion buttons and discussing
union matters while working. It is also clear the Respondent
was aware of that activity. Its antiunion animus is established
through the warnings, directives, and questions and answers
provided in the four contest-quizzes. Whether the warnings
constitute the requisite adverse action under the analysis, how-
ever, leads to a different result.
The Respondent’s handbook defines disciplinary action to
include written warning, suspension, or discharge. Furthermore,
the collective-bargaining agreement states that “[v]erbal coun-
seling and coaching shall not count for purposes of progressive
discipline.” As previously stated, the directives and/or warn-
ings were coercive in nature and constituted violations of Sec-
tion 8(a)(1). Nevertheless, there is no indication that any of the
employees received adverse action as a result. No documenta-
tion was placed in any employee’s file. Nor was there any
indication of a change to the terms and conditions of any of the
warned or counseled employees. Under the circumstances, the
Section 8(a)(3) charges are dismissed.
C. The 8(a)(5) Charges
The amended complaint further alleges that the Respondent’s
promulgation of rules prohibiting employees from wearing
union insignia and discussing the Union during worktime, and
granting benefits to employees in July through the contest-
quizzes, all without prior notice to the Union and affording it an
opportunity to bargain, constituted unilateral changes in viola-
tion of Section 8(a)(5). The Respondent denies that such events
constituted changes and contends that such contests and rules
were long in place and never objected to by the Union.
Section 8(a)(5) requires employers to provide the Union with
notice and an opportunity to bargain before instituting changes
in any matter that constitutes a mandatory bargaining subject.
Pepsi-Cola Bottling Co., 330 NLRB 900 (2000); NLRB v. Katz,
369 U.S. 736 (1962). A mandatory bargaining matter is one that
is “material, substantial, and significant” and an employer’s
failure to provide notice of such a change to the appropriate
bargaining agent is a violation of Section 8(a)(5). Crittenton
Hospital, 342 NLRB 686 (2004).
Contests at the Respondent’s facility were not new. The Re-
spondent periodically, and since 2000, conducted a voluntary
employee recognition and motivation program known as
RAMP. RAMP included a wide variety of events, ranging from
ice cream socials to contests in which gifts and small cash
prizes were awarded to the facility’s employees. The Respon-
dent has also periodically conducted anonymous employee
satisfaction surveys. However, it has never provided notice of
RAMP to the Union or bargained about any of the activities
involved. As noted above, RAMP was utilized during the de-
certification election campaign for the commission of 8(a)(1)
violations discussed above. That development does not change
the fact, however, that such contests and social events were
voluntary. As such, they were not a term or condition of bar-
gaining unit members’ employment. Under the circumstances,
the Section 8(a)(5) allegation regarding the contest-quizzes is
dismissed.
The Respondent’s rule changes regarding the use of buttons
and pulleys, and nonwork discussions between employees dur-
ing worktime, however, are a different story. Before the decer-
tification election campaign period, employees were generally
permitted to engage in personal conversation and wear personal
buttons while working in resident care areas. Such restrictions,
which clearly affected how they were to behave and what they
could wear in those instances, thus constituted material, sub-
stantial, and significant changes to bargaining unit members’
terms and condition of employment. See United Rentals, Inc.,
350 NLRB 627, 628 (2007) (uniform rule change); and San
Luis Trucking, Inc., 352 NLRB 211, 228–229 (2008) (rule pro-
hibiting employees from talking to one another). Accordingly,
the Respondent’s unilateral changes violated Section 8(a)(5)
and (1).
ALTERCARE OF WADSWORTH CENTER FOR REHABILITATION 575
CONCLUSIONS OF LAW
1. The Respondent, Altercare of Wadsworth Center for Re-
habilitation and Nursing Care, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Service Employees International Union, District 1199
(the Union) is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The Union is the exclusive representative of the following
employees of the Respondent, which constitutes a unit appro-
priate for the purposes of collective bargaining: All full-time
and regular laundry aides, dietary aides, cooks, nurses aides,34
porters, restorative aides, housekeeping aides, and students
working more that 16 hours a week, but excluding all office
clerical employees, guards and supervisors as defined in the
Act.
4. The Respondent violated Section 8(a)(1) of the Act by
promulgating and enforcing a rule prohibiting employees from
wearing prounion buttons and pulleys in the midst of a decerti-
fication election campaign.
5. The Respondent violated Section 8(a)(1) of the Act by
promulgating and enforcing a rule allowing employees to dis-

34 See fn. 6, supra.
cuss nonwork-related subjects, but prohibiting them from dis-
cussing union matters during a decertification election cam-
paign.
6. The Respondent violated Section 8(a)(1) of the Act by
polling and interrogating bargaining unit members as to their
union membership, activities, and sympathies through the use
of four contest-quizzes, one of which included a statement indi-
cated that it would be futile to retain the Union as their bargain-
ing representative.
7. The Respondent violated Section 8(a)(5) and (1) of the
Act by instituting work rule changes regarding the use of but-
tons and pulleys, and nonwork-related discussions between
employees during worktime, without giving notice to and bar-
gaining with the Union.
8. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
9. All other charges not specifically referred to above are
dismissed.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]