Mountain View Health Care and Rehabilitation, LLC

National Labor Relations Board - Board Decisions

Dec 5, 2019

368 N.L.R.B. 128 (N.L.R.B. 2019)

368 NLRB No. 128
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Mountain View Care and Rehabilitation Center, LLC
and Retail, Wholesale, and Department Store
Union. Cases 04–CA–235894 and 04–CA–238216
December 5, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On August 23, 2019, Administrative Law Judge Rob-
ert A. Giannasi issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief. The General Counsel filed
cross-exceptions and a supporting brief, and the Re-
spondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1
and conclusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Moun-
tain View Care and Rehabilitation Center, LLC, Scran-
ton, Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the order as
modified.

1 There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(1) of the Act by interrogating employee Yolanda
Ramos. In adopting the judge’s finding that the Respondent violated
Sec. 8(a)(3) and (1) by suspending and discharging Ramos, we observe
that the judge’s credibility resolutions establish that the Respondent
disparately enforced its no-solicitation policy. While the Respondent’s
policy provides that “collections for charitable purposes” are prohibited
“unless approved by the Administrator [of the Respondent],” the judge
discredited the Administrator’s testimony that she approved all the
assertedly charitable solicitation that occurred at the Respondent. The
Respondent thus ignored its own policy requirements with respect to
charitable solicitation, but strictly enforced the policy with respect to
Ramos’ union activity. We find it unnecessary to rely on the judge’s
additional findings regarding disparate enforcement of the policy, but
we agree with his conclusion that the Respondent’s disparate enforce-
ment of the policy defeats its attempt to establish an affirmative defense
of Ramos’ discharge.
2 We have modified the judge’s recommended Order to reflect the
Board’s standard remedial language and have substituted a new notice
to reflect these modifications.
1. Substitute the following for paragraph 1(c).
“(c) Changing the terms and conditions of employ-
ment of its unit employees, including the paid-time off
policy (PTO), without first notifying the Union and giv-
ing it an opportunity to bargain.”
2. Insert the following as paragraph 2(f) and reletter
the subsequent paragraphs.
“(f) Before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following bargaining unit:
All full-time and regular part-time Certified Nursing
Assistants (CNAs) and Restorative Aids employed by
the Employer at its 2309 Stafford Avenue, Scranton,
PA facility. EXCLUDED: All other employees,
guards, and supervisors as defined in the Act.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. December 5, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
WE WILL NOT coercively interrogate or question you
about your union activities or those of other employees.
WE WILL NOT suspend, discharge, or otherwise dis-
criminate against any of you for supporting the Union or
any other labor organization.
WE WILL NOT change your terms and conditions of
employment, including your paid time-off policy (PTO),
without first notifying the Union and giving it an oppor-
tunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
described above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Yolanda Ramos full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Yolanda Ramos whole for any loss of
earnings and other benefits resulting from her suspension
and discharge, less any net interim earnings, plus inter-
est, and WE WILL also make her whole for reasonable
search-for-work and interim employment expenses, plus
interest.
WE WILL compensate Yolanda Ramos for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file with the Regional Director
for Region 4, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar year.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension and discharge of Yolanda Ramos, and WE
WILL, within 3 days thereafter, notify her in writing that
this has been done and that the suspension and discharge
will not be used against her in any way.
WE WILL restore your paid time-off policy as it existed
before we unlawfully changed it and make you whole,
with interest, for any losses suffered due to our unlawful
changes to that policy, including restoration of accrued
leave balances.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining unit:
All full-time and regular part-time Certified Nursing
Assistants (CNAs) and Restorative Aids employed by
the Employer at its 2309 Stafford Avenue, Scranton,
PA facility. EXCLUDED: All other employees,
guards, and supervisors as defined in the Act.”
MOUNTAIN VIEW CARE AND REHABILITATION
CENTER, LLC
The Board’s decision can be found at
www.nlrb.gov/case/04-CA-235894 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
David Rodriguez, Esq. and Samuel E. Schwartz, Esq., for the
General Counsel.
Brandon Williams, Esq. and Glenn A. Parno, Esq., for Re-
spondent.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania, on July 8, 2019. The
complaint alleges that the Respondent violated Section 8(a)(1)
of the Act by interrogating an employee about her union activi-
ties and those of other employees, and Section 8(a)(3) and (1)
of the Act by first suspending that same employee, Yolanda
Ramos, and later discharging her because of her activities on
behalf of the Charging Party Union (hereafter, the Union). The
complaint, as amended at the hearing, also alleges that Re-
spondent violated Section 8(a)(5) and (1) of the Act by chang-
ing its paid time off policy to a new policy and eliminating
employees’ accrued leave balances under the old policy without
notifying the Union that represents its employees or giving it an
opportunity to bargain over the changes. Respondent denied
the essential allegations in the complaint. After the trial, the
General Counsel and the Respondent filed briefs, which I have
read and considered. Based on the filed briefs and the entire
record, including the testimony of the witnesses and my obser-
vation of their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Pennsylvania limited liability company, pro-
vides rehabilitation services and nursing home care in a nursing
home located in Scranton, Pennsylvania. In conducting its
business operations during a representative 12-month period,
Respondent received gross revenues in excess of $100,000 and
purchased and received at its location goods valued in excess of
$5,000 directly from points outside the Commonwealth of
Pennsylvania. Accordingly, I find, as Respondent admits, that
it is an employer engaged in commerce within the meaning of
MOUNTAIN VIEW CARE AND REHABILITATION CENTER, LLC 3
Section 2(2), (6) and (7) of the Act and a health care institution
within the meaning of Section 2(14) of the Act. I also find, as
Respondent admits, that the Union is a labor organization with-
in the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Background and Ramos’s Union Activity
Respondent took over operation of the nursing home from
the previous owner in March of 2018. There are some 180
people employed by Respondent at the nursing home. On June
14, 2018, the Union was certified by the Board as the exclusive
bargaining representative of the following employees of Re-
spondent:
Included: All full-time and regular part-time Certified Nurs-
ing Assistants
(CNAs) and Restorative Aides employed by the [Respondent]
at its 2309
Stafford Avenue, Scranton, PA facility.
Excluded: All other employees, guards, and supervisors as
defined in the Act.
The parties started negotiations in the fall of 2018 and have
been bargaining ever since. As of the date of this trial, the par-
ties had not reached a completed collective bargaining agree-
ment.
The Respondent also employs a number of dietary aides who
are not part of the bargaining unit described above and are not
represented. Those employees, who prepare food and serve it
to residents, work in the Respondent’s kitchen and dining room.
Among those dietary aides is Yolanda Ramos, who worked for
Respondent and its predecessor from September 2016 to March
5, 2019, when she was fired by Respondent.
In late February 2019, Ramos became interested in the Un-
ion after speaking with a CNA who was represented by the
Union. As a result, she signed a petition authorizing the Union
to represent the signers for collective bargaining. Over the
course of two days, February 28 and March 1, she talked to
fellow dietary aides in support of the Union, asking them to
sign the petition as well. On Friday, March 1, 2019, in the
kitchen, she spoke to fellow dietary aide, Levi Kania, about
signing the petition. Levi said he was not sure about signing it
and that he wanted to talk first to his father. Levi’s father is
Eric Kania, a supervisor, at the time, of the dietary employees.
Eric was no longer employed by Respondent at the time of the
trial.
Respondent’s Reaction to Ramos’s Union Activity
Respondent became aware of the union solicitation between
Ramos and Levi Kania. Human Resources Director Linda
Yaros talked to Levi and took a written statement from him the
same day. Levi’s statement, which is dated March 1, states that
Ramos asked him to sign a union petition and mentioned sever-
al benefits for going with the Union. The statement also notes
that both employees were “clocked in” at the time. GC Exh.
12. Later, Yaros asked Levi to clarify his first statement and
she obtained another written statement from him, which is un-
dated and is written on a separate piece of paper; it sets forth
the time of the union solicitation, that it took place in the kitch-
en, and that neither employee was on break at the time. Tr.
142, 145-146, GC Exh. 13. Respondent’s highest ranking offi-
cial on site, Administrator Donna Molinaro, never spoke with
Levi about the matter, although she read both statements and
apparently directed that the second one be taken. Tr. 166,
173,176, 158.
Yaros testified that Levi came to her “visibly upset” because
he did not want to sign anything having to do with a union. Tr.
136. I do not fully credit Yaros’s testimony on this point. She
was, as I describe later, not generally a reliable witness. More-
over, Levi did not testify in this proceeding and neither of his
written statements reflect the concern attributed to him by Ya-
ros. Indeed, his first one explains in some detail Ramos’s re-
marks about the value of union representation, which suggests
there was not an immediate rejection of the matter by Levi.
Even if it could be found, however, that some kind of complaint
was made, it is not clear what exactly the complaint was or
whether it was encouraged in whole or in part by Yaros. It is
well settled that the Act allows employees, like Ramos, to “en-
gage in persistent union solicitation even when it annoys or
disturbs the employees who are being solicited.” And an em-
ployer’s invitation to employees to report instances of “harass-
ment” by employees engaged in union activity is itself a viola-
tion of Section 8(a)(1) of the Act. Ryder Truck Rental, 341
NLRB 761, 761 (2004), enf’d 401 F.3d. 815 (7th Cir. 2005).
The following work day, Monday, March 4, Ramos was
asked to come in to work 30 minutes before the beginning of
her normal shift and report to Yaros’s office. When she ar-
rived, she was met by Yaros and Administrator Donna Moli-
naro. Molinaro asked whether Ramos had talked to fellow
employees about a union petition. Ramos at first denied that
she had. Molinaro then said she would investigate the matter
and check the work-place cameras. Molinaro also asked Ra-
mos to submit a written statement about the matter. Ramos did
so, but then, within minutes, she admitted that her previous
statement was untrue and that she had indeed asked someone to
sign a union petition. At that point, Molinaro asked why Ra-
mos would lie about the matter. Ramos replied that she was
told, if anyone from management asked her about her union
activity, she should deny her involvement. Tr. 44. Yaros con-
firmed that Ramos said during this meeting that “she was told
not to say anything because she would get in trouble if she said
she was doing it for union purposes.” Tr. 138; see also Tr. 148.
Molinaro then asked who told Ramos to lie about her union
activity and Ramos refused to answer the question.1

1 The above is based on the credible testimony of Ramos, much of
which is corroborated by the other witnesses in the meeting, Yaros and
Molinaro. To the extent that there were differences, Ramos’s testimony
was the most credible, as I point out later in the credibility section of
this decision. Her testimony also made the most sense considering the
context of the meeting and the documentary evidence associated with
it. As shown below in the credibility section, I did not find Molinaro to
be a reliable witness. She did, however, admit that she asked a question
to initiate the meeting although she was somewhat evasive in describ-
ing it. There is some confusion as to who asked the last questions
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
A one-page document dated March 4, 2019 and in Ramos’s
handwriting is in evidence as GC Exh. 5. It states in its first
paragraph, “I have asked a coworker if they would like to join a
union on Friday, March 1st,” followed by Ramos’s signature.
In the second paragraph, further down the same page, it states,
“I recently told Director and Human Resources that I didn’t
because someone told me if I was asked to completely deny it,”
also followed by Ramos’s signature.
At the March 4 meeting, Ramos was suspended. She was is-
sued a form notice of disciplinary action memorializing her
suspension that stated she was “suspended per Administrator
pending the investigation of the ‘union’ petition.” No other
reason was given on the notice. Nor was any other reason giv-
en orally for the suspension during the meeting by either of the
management representatives. Tr. 46, 159-160. Ramos signed
the notice as did both Yaros and Molinaro. GC Exh. 6.
The next day, March 5, Ramos was asked to come into the
facility for a meeting. At the March 5 meeting, which again
included Molinaro and Yaros, Ramos was told by Molinaro that
she was being terminated for violating Respondent’s no-
solicitation policy. She was presented with the same form no-
tice of disciplinary action she was presented the day before.
This time, the notice set forth her termination. In the section
titled “nature of violation,” a handwritten notation, “solicitation
policy” appeared next to the circled word “other” on the form.
The violation was described as follows in a handwritten nota-
tion:
On 3/1/19, after clocking in, you solicited a fellow employee
who was also on the clock in a work area. In a statement you
provided on 3/4/19, you admitted this violation. Per Mt.
View’s Progressive Discipline Policy, a violation of mt.
View’s Solicitation Policy is a Group IV violation, which
alone results in termination for a first offense. Additionally,
you have a prior discipline from August of 2018 which also
applies, placing you well over the threshold for
termination. GC Exh. 7. 2
At the termination meeting, Ramos asked to see the no-

about why Ramos would lie about engaging in union activity and who
asked Ramos to lie about it, but Molinaro admitted that it was she who
asked these questions. Molinaro’s testimony in this respect was also
evasive because she seemed to go out of her way to avoid any reference
to the union, but it is obvious from the context that these inquiries were,
like the first question, about Ramos’s union solicitation. See Tr. 159,
168-169. Significantly, in her testimony about these questions and
answers, Molinaro did not mention, as Yaros testified, that Ramos
explained, in the meeting, that she lied about her union activity, be-
cause otherwise she would get in “trouble.”
2 The no-solicitation policy set forth at pages 42-43 of the Respond-
ent’s handbook bans, among other things, “[s]olicitation by employees
in non-resident care areas while on working time.” The policy also
states that “[c]ollections for charitable purposes shall be considered
solicitations for the purposes of this policy, unless approved by the
Administrator.” The policy further states that employees who partici-
pate or assist in solicitation that violates the policy are subject to disci-
plinary action up to and including termination. The Respondent’s
handbook states in another section, at pages 63-65, that violation of the
no-solicitation policy permits, but does not require, a discharge for a
first offense.
solicitation policy. Even though Molinaro had a copy of the
handbook containing the policy in her hands, she would not
show the applicable no-solicitation policy to Ramos. At first
Molinaro could not find the no-solicitation policy in the hand-
book, which is 70 pages in length and contains many other
rules and policies. Then, Molinaro said she would have to ask
Respondent’s attorney if Ramos could see the no-solicitation
policy. Ramos never was shown the no-solicitation policy at
this meeting. Nor has she ever been shown the no-solicitation
policy and did not even know that Respondent had such a poli-
cy. Tr. 47-48.3
Respondent’s No-Solicitation Policy in Writing and in Practice
At the end of July or the beginning of August 2018, all of
Respondent’s employees were presented with Respondent’s 70-
page handbook, which contained, among many other rules, the
two-page no-solicitation policy at pages 42 and 43. The effec-
tive date of the handbook was August 1, 2018. Tr. 55, 131-133.
R. Exhs. 1-3.4 But there is no evidence that the two-page no-
solicitation policy was highlighted or separately brought to the
attention of employees, contrary to a specific acknowledgement
that the employees understood Respondent’s non-
discrimination policy (see R. Exh. 3). There is uncontradicted
testimony that, despite management having held many meet-
ings with employees about work-related rules, it never had
meetings about the no-solicitation policy, including any excep-
tions or any required permission. Nor is there evidence that
Respondent sent memos to employees notifying them specifi-
cally about or emphasizing the no-solicitation policy. Tr. 48-
49, 61, 96-97. It is also conceded that Ramos’s discharge was
the only discipline that Respondent ever issued for violation of
the no-solicitation policy. There were no documents submitted
by Respondent in response to a General Counsel subpoena for
documents that showed such discipline. Tr. 126-127, GC Exh.
11.
The evidence shows that Respondent permitted much open
work-time solicitation to sell and actual sales by employees
without any sort of discipline. Four employees, including Ra-
mos, testified in detail that such solicitations and sales were
done openly by employees with the knowledge of, and some-
times the participation by, supervisors on work time and in
work areas after the Respondent took over the facility in March
2018, including after the distribution of the handbook in August
of 2018. No permission was sought or given for these solicita-
tions, some of which were advertised by posted notices. Cash
was exchanged, transactions documented, and, in one case,
tables set up for the sale of items. No one was disciplined for
this activity and the employees testified that they were unaware
of any rule against this activity or solicitation in general. The
items sold and solicited included candy for the school projects

3 The above is based on the credible uncontradicted testimony of
Ramos. Neither Yaros nor Molinaro denied that Ramos asked to see
the no-solicitation policy or the rest of Ramos’s testimony about not
being shown the policy.
4 The handbook may have been distributed to different employees at
different times. The record mentions several dates, including one refer-
ence to August 8 (Tr. 178). For reasons of clarity, however, I will
accept as its distribution date its effective date, August 1, 2018.
MOUNTAIN VIEW CARE AND REHABILITATION CENTER, LLC 5
and trips of children of employees, girl scout cookies, raffle
tickets, and the sale and purchase of purses, scarves and jewelry
items from a business entity called Sophisticated Lady, which
remained at the facility for “[a] few hours” (Tr. 99). See Tr.
49-53, 66-73, 91-92, 95-105, 109-112,115-118.5
I reject testimony from Molinaro, and to a lesser extent from
Yaros, that all the work-time solicitations tolerated by Re-
spondent were treated as charitable contributions and that Mo-
linaro approved them all, as permitted by an exception to the
Respondent’s no-solicitation policy. As indicated below, I
found both generally unreliable witnesses. Their testimony on
this point is contrary the more credible and mutually corrobo-
rated testimony of employee witnesses on the issue. Moli-
naro’s testimony also amounted to a conclusory and general
catch-all answer without any supporting detail. There was no
documentary support for what constituted a charitable contribu-
tion or for Molinaro’s asserted approvals. Moreover, in view of
the extensive examples of tolerated work-time solicitations and
sales described above, one of which lasted a few hours, it is
hard to square Molinaro’s testimony in this respect with her
other testimony that she was concerned only with work-time
solicitations and even conversations that were “deterring [em-
ployees] from their job duties.” Tr. 171. 6
In any event, as I point out in the analysis section of this de-
cision, well settled Board law does not permit employers to
discriminate in their treatment of the solicitations, as described
above, and to discipline only union solicitation. This is true
whether the employer considers them charitable contributions
or not or whether they are approved by management or not.
Credibility
I found Ramos to be an entirely credible witness, whose tes-
timony was consistent with the context of the entire story of her
activity and Respondent’s treatment of that activity. She exhib-
ited complete candor and a lack of guile. Her testimony was
direct and detailed and survived strong cross-examination. Her
testimony about the meetings with Yaros and Molinaro was
often consistent with their testimony, and, in one particular
case—that involving her request for a copy of the no-
solicitation policy at the termination meeting, was uncontra-
dicted. Moreover, her testimony about other work-time solici-
tations tolerated by Respondent was corroborated by other em-
ployee witnesses.

5 Yaros confirmed that, during her entire 25-year tenure in the hu-
man relations department at the facility, including under the former
owner, such solicitations took place without any discipline. Tr. 28.
6 Respondent’s position that the tolerated work-time solicitations
described in this record were considered approved charitable contribu-
tions fails even apart from the testimonial evidence. Its no-solicitation
policy makes clear that “collections for charitable contributions” are
considered solicitations unless they are approved by the Administrator.
But, in the absence of documentary evidence defining the term, the
examples of tolerated work-time solicitations described in this record
were not collections for charitable contributions as those words are
ordinarily understood. The solicitations and sales involved transactions
where cash was either promised or exchanged for items passing from
seller to buyer. These were commercial transactions. Even if part of
the proceeds went to a charity that does not bring them into the realm of
collections for charitable contributions.
In contrast, I found Yaros and Molinaro to be unreliable wit-
nesses. Yarros in particular reflected a lack of candor in her
demeanor. I have earlier rejected her testimony about the al-
leged concern Levi reported to her about the union solicitation.
She often could not remember dates and times, the locations of
meetings, or what happened in what meeting. For example, she
testified that the suspension meeting was in Molinaro’s office,
but both Ramos and Molinaro testified that the meeting was in
her office. She also seemed to suggest that Ramos wrote some
of her statement in the second meeting, which is contrary to the
testimony of both Ramos and Molinaro and contrary to uncon-
tested fact and common sense. Most importantly, Yaros sug-
gested that violation of the no-solicitation policy was men-
tioned in the suspension meeting. Tr. 138, 151-152. On this
point, she seemed to have been prodded by a leading question
on the subject earlier put to her by Respondent’s counsel, which
resulted in an objection that was sustained. Tr. 136. But it is
clear from Yaros’s pre-trial affidavit that that policy was not
mentioned at all in the suspension meeting. Tr. 153-155, G.C.
Exh. 14. Indeed, Molinaro conceded that “there was no men-
tion of the solicitation policy” at that meeting. Tr. 159.
Molinaro was also not a reliable witness. I have earlier re-
jected her testimony about the tolerated work-time solicitations.
Significantly, Molinaro’s testimony about her first question to
Ramos in the suspension meeting was somewhat of a circumlo-
cution to avoid mentioning the word “union.” Here is her tes-
timony: “I just said that an employee had some concerns that
you had approached them while they were working and asked
you to sign a petition. I didn’t talk about what the petition was
or what he claimed it was. That’s all I had asked her.” Tr. 159.
But Molinaro signed the suspension notice, which specifically
stated that Ramos was being suspended pending an investiga-
tion about the “union” petition. In addition, Molinaro was
aware prior to the meeting of Levi’s first written statement,
which clearly stated that the solicitation by Ramos was a union
solicitation. Moreover, Ramos’s two statements were clearly
framed in the context of union solicitation. In these circum-
stances, Ramos’s testimony that union solicitation was a specif-
ic part of Molinaro’s admitted first question is far more credible
than what I considered Molinaro’s evasive testimony on the
point. In addition, as indicated above at footnote 1, I also
viewed Molinaro’s testimony about her last questions to Ra-
mos—why she lied about not engaging in union solicitation and
who told her to lie—as evasive.
Not only was Molinaro evasive in some of her testimony, but
she also embellished her testimony beyond what would be ex-
pected from a credible witness. She seemed to be intent on
supporting Respondent’s litigation theory. For example, she
went out of her way to add an additional element to Ramos’s
alleged dereliction—the harm Ramos’s brief union solicitation
in the kitchen caused Respondent, particularly threats to “resi-
dent safety” or “patient safety.” Tr. 166-167, 170. Molinaro’s
testimony about resident safety concerns was unconvincing and
she ultimately admitted that there were no connections to pa-
tient safety in Ramos’s union solicitation. Tr. 171-173. Moli-
naro also conceded that all kinds of conversations go on during
work time, which do not concern her unless they interfere with
work. Tr. 171. But she never mentioned work-time interfer-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
ence with work in the suspension meeting. And she never spoke
to Levi or anyone else in the kitchen about whether the union
solicitation interfered with work even after the suspension
meeting when she was supposedly engaged in an investigation
of the Ramos union solicitation. Moreover, Molinaro initially
testified that she was concerned about Ramos’s alleged lying
(Tr. 160), but she later admitted that, in her view, that was not
important because Ramos corrected the matter within minutes.
Tr. 161. I also found unconvincing Molinaro’s attempt to
blame Yaros for adding a 6-month old verbal unsatisfactory
work warning to Ramos as a reason for the termination in the
termination notice, even though past disciplines were not nec-
essary to support the discharge. Tr. 167-168. Yaros denied
that she added that language. Tr. 150. Molinaro was, after all,
the top Respondent official involved in the discharge. She
presumably made the termination decision and is ultimately
responsible for the decision, as well as the termination notice
and what it contains. Molinaro’s unreliability as a witness
leads me to conclude that I cannot rely on her testimony on any
significant issue in this case, particularly with respect to the
alleged reason for the termination of Ramos.
The Change in Respondent’s Paid Time-Off Policy
Part of the case deals with a change in paid time-off (PTO)
policy that applied to unit employees represented by the Union.
The predecessor employer had a PTO policy that was continued
under Respondent after it took over the nursing home in March
2018. That policy included 4 different types of paid time off:
vacations, personal time, paid holidays, and personal illness.
They were combined to permit employees to bank unused time
off for future use. Employees were also permitted to purchase
back 40 hours at a time of accrued time-off totals on a quarterly
basis. They were also permitted to cash out their totals at
100%. Running totals were provided to employees for each
type of time off periodically by email. Tr. 73-79, Jt. Exh. 1.
On or about August 1, 2018, Respondent distributed its
handbook of applicable rules to all employees. The handbook
included a two-page description of it paid time-off policy; it
was contained at pages 26 to 29 of the 70-page handbook. Jt.
Exh. 2. That policy was different than the existing policy de-
scribed above. But there is no evidence that employees or the
Union were specifically notified that the policy had changed.
Some of the changes in the PTO policy included an inability
to carry over accrued time off, thereby losing it if it was not
used, and a difference in the cash-out feature to 50% instead of
100%. These changes were described in detail by unit employ-
ee Cynthia Young. Tr. 77, 78. Young described the changes in
her own situation at Tr. 79-82, 84-88 and 92-93, and submitted
supporting documents in the form of payroll information that
were received in evidence as GC Exhs. 9 and 10.
Since the changes were to her detriment, Young went to
Human Resources Director Yaros to complain about the chang-
es in the early part of 2019. Yaros told her that there was a
“glitch” in the payroll system and that the matter would be
“straightened out.” Tr. 89. Later, Young had occasion to again
complain about a change the PTO policy to her detriment. On
that occasion, Yaros made a correction to give Young credit for
her deficiency in time-off hours. Tr. 89-90.
Unit employee Danielle Albano described a similar change
and deficiency in her time-off hours. She also brought her
complaints about the changes to the attention of Yaros, who
told Albano, as she had told Young, that there was a glitch in
the payroll system and that “everything would be taken care
of.” Tr. 105-106. But, according to Albano, nothing was taken
care of, despite repeated complaints to Yaros, who never told
Albano that she was not “getting her hours back.” Tr. 106-107.
The unit employees were never told that the PTO policy had
changed even in bargaining after negotiations began in October
of 2018. Tr. 108. Nor was the Union notified of such a
change. According to the Union’s chief negotiator, Danie Tar-
row, she first learned from unit employees, in January of 2019,
that the PTO balances of employees had disappeared from their
pay stubs and that they were told by Respondent that they did
not have any. Tr. 121-122. Before the Union found out about
the changes from the employees, Respondent never notified it
of the changes in the PTO policy, even though, in bargaining,
Respondent submitted a PTO policy proposal of its own, sup-
posedly the one in the handbook, although that is not clear on
this record. Tr. 123. Tarrow also testified that, about a month
before the start of negotiations, she received a copy of the 70-
page handbook from Respondent in response to a Union request
for information. Tr. 124.
The above is based on uncontradicted testimony and support-
ing documentary evidence that Respondent does not dispute.
Although the extent and exact dimensions of the changes in the
PTO policy are not altogether clear on this record, it is clear
that there were significant changes in the policy, all to the det-
riment of unit employees. Respondent also stipulated that the
payroll documents supporting the changes for all unit employ-
ees would show the same changes as reflected in the payroll
documents of employee Young that were received in evidence.
Tr. 128-129.
B. Discussion and Analysis
The Questioning of Employee Ramos
Questioning employees about their union activities or those
of others has long been found to be unlawful “because of its
natural tendency to instill in the minds of employees fear of
discrimination on the basis of the information the employer has
obtained.” NLRB v. West Coast Casket Co., 205 F.2d 902, 904
(9th Cir. 1953). In determining whether an employer’s ques-
tioning of employees about union activity violates Section
8(a)(1) of the Act, the Board considers whether, in all the cir-
cumstances, the questioning would reasonably tend to restrain,
coerce or interfere with the Section 7 rights of employees.
Hard Hat Services, LLC, 366 NLRB No. 106, slip op. 6-7
(2018), and cases there cited, including Bourne v. NLRB, 332
F.2d 47, 48 (2nd Cir. 1964), which lists the following relevant
factors to be considered in determining whether such question-
ing is coercive:
(1) The background, i.e., is there a history of employer hostil-
ity and discrimination?
(2) The nature of the information sought, e.g. did the interro-
gation appear to be seeking information on which to base tak-
ing action against individual employees?
MOUNTAIN VIEW CARE AND REHABILITATION CENTER, LLC 7
(3) The identity of the questioner, i.e. how high was he in the
company hierarchy?
(4) Place and method of interrogation, e.g. was employee
called from work to the boss’s office? Was there an atmos-
phere of “unnatural formality?”
(5) Truthfulness of the reply.
While the Bourne factors are not to be mechanically applied,
the last factor mentioned above—the questioned employee’s
understandable attempt to conceal union activity—has been
cited repeatedly in support of a finding of coercive interroga-
tion. See Hard Hat Services, cited above; Bristol Industrial
Corp., 366 NLRB No. 101, slip op. 2 (2018); Gunderson Rail
Services, LLC, 364 NLRB No. 30, slip op. 36 (2016); Portola
Packaging, Inc., 361 NLRB 1316, 1337-1338 (2014); Camaco
Lorain Mfg. Plant, 356 NLRB 1182, 1182-1183 (2011); and
Sproule Construction Co., 350 NLRB 774, 774 fn. 2 (2007).
An employee’s refusal to answer a question about the subject is
likewise an indicator of coercion. See Grill Concepts Services,
Inc., 364 NLRB No 36, slip op. 16 (2016); and Chipotle Ser-
vices LLC, 363 NLRB No. 37, slip op. 11-12 (2015).
Applying the above principles to the facts set forth in my
credited findings, I find that three aspects of the questioning of
employee Ramos in the suspension meeting were coercive.
Respondent was certainly entitled to get Ramos’s side of the
story in a meeting that focused only on whether Ramos misused
work time or violated the facially valid no-solicitation policy,
although the inquiry had to be done carefully to avoid sugges-
tions or implications of discriminatory reprisals. But neither
the subject of the no-solicitation policy nor the notion that em-
ployees should not be engaged in non-work conversations or
activity on work time was ever raised during the suspension
meeting. Instead, Molinaro opened the meeting by asking Ra-
mos whether she had asked an employee to sign a union peti-
tion. Understandably, Ramos answered the question untruthful-
ly fearing that Respondent would not like a truthful answer,
which, of course, when eventually given, resulted in her termi-
nation. Indeed, Ramos testified that she was “afraid of retalia-
tion and getting fired.” Tr. 60. When Ramos recanted and
admitted she had indeed engaged in union solicitation, Moli-
naro asked why she would lie about the matter. Ramos replied
that she was told, if she was asked about union activity, she
should not say anything about it. Yaros’s version of Ramos’s
reply is more realistically ominous—Ramos was told she would
get in “trouble” if she replied truthfully. Then Molinaro asked
Ramos who told her to conceal her union activity. Because that
answer might have implicated another employee, Ramos under-
standably refused to answer that question. The questions
whether Ramos engaged in union solicitation, why she would
lie about the union solicitation and who asked her to lie about
her union solicitation all went beyond the legitimate bounds of
a proper inquiry about non-work work-time activity. Those
questions were thus coercive. 7

7 Respondent turns the coercive questioning on its head by calling
Ramos’s initial response—an attempt to conceal her union activity—a
lie. But calling her response a lie does not diminish the coercive effect
of questioning that results in an understandable concealment of activity
that might well result in retaliation. As Judge Posner has observed, “a
Other circumstances confirm the coercive nature of the ques-
tions. The setting of the questioning was a meeting in the offic-
es of the Human Resources Director and the questioning was
done by Respondent’s highest ranking official, the Administra-
tor. The purpose of the meeting was to inquire into what was
described by Respondent, in writing, as an incident of “union”
solicitation. Moreover, as shown above, Ramos gave one un-
truthful response and declined to answer another question. The
case law cited above recognizes that such responses are not
only normal because of employee fears that a truthful response
might reveal information useful for subsequent retaliation, but
also recognizes that an untruthful response or a non-response is
itself an indication of coercion. Nor was the questioning lim-
ited or isolated; there were 3 different probing questions in the
meeting. Indeed, the meeting resulted in the discriminatory
suspension of Ramos, as shown below, an independent unfair
labor practice. Accordingly, I find that, in all the circumstanc-
es, the questioning of Ramos about her union activities and
those of others was coercive and violative of Section 8(a)(1) of
the Act.
The Suspension and Discharge of Employee Ramos
It is unlawful for an employer to punish an employee for en-
gaging in union activity. Section 8(a)(3) of the Act specifically
prohibits such discrimination that tends to discourage union
activity. Radio Officers v. NLRB, 347 U.S. 17, 42-43 (1954).
Although a discriminatory motive is usually part of the proof of
a violation in these cases, there is some conduct that carries
with it “unavoidable consequences which the employer not
only foresaw but which he must have intended” and thus bears
“its own indicia of intent.” In those cases, the employer is re-
quired to prove that the conduct is something different than
what it appears on its face. NLRB v. Great Dane Trailers, 388
U.S. 26, 33-34 (1967), citing and discussing NLRB v. Erie Re-
sistor Corp., 373 U.S. 221 (1963), where the Court found un-
lawful the grant of super-seniority for non-strikers. A docu-
ment that on its face admittedly penalizes employees for engag-
ing in union activity surely falls within this category of viola-
tions.
Where a lawful reason is offered in support of an employer’s
adverse employment action alleged to be unlawful, an inquiry
into motive is necessary and the Board applies the mixed mo-
tive analysis set forth in Wright Line, 251 NLRB 1083 (1980),
enf’d on other grounds 662 F.2d 899 (1st Cir. 1981), cert. de-
nied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). Under Wright Line,
the General Counsel must satisfy an initial burden of showing
by a preponderance of the evidence that the employee’s pro-
tected or union activity was a motivating factor in a respond-
ent’s adverse action. If the General Counsel meets that initial
burden, the burden shifts to the respondent to show that it
would have taken the same action even absent the employee’s

lie related solely to one’s union affiliation or unionizing intentions” is
not a subject that warrants employer probing where, as here, that sub-
ject is not a proper inquiry in the circumstances. Hartman Brothers v.
NLRB, 280 F.3d 1110, 1113 (7th Cir. 2002) (lying about union affilia-
tion in an employment interview not germane to a legitimate inquiry
into qualifications for employment).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
protected activity. The respondent does not meet its burden
merely by showing that it had a legitimate reason for its action;
it must persuasively demonstrate that it would have taken the
same action in the absence of the protected conduct. And if the
respondent’s proffered reasons are pretextual—either false or
not actually relied on—the respondent fails by definition to
meet its burden of showing it would have taken the action for
those reasons absent the protected activity. See Pro-Spec Paint-
ing, Inc., 339 NLRB 946, 949 (2003); and BHC Northwest
Psychiatric Hospital, 365 NLRB No. 79, slip op. 6 (2017).
A showing of pretext also supports the initial showing of an-
imus and discrimination. See Wright Line, supra, 251 NLRB at
1088 n.12, citing Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466, 470 (9th Cir. 1966) (where a respondent’s reasons are
false, it can be inferred “that the [real] motive is one that the
[respondent] desires to conceal—an unlawful motive—at least
where . . . the surrounding facts tend to reinforce that infer-
ence.”). Moreover, a trier of fact may not only reject a wit-
ness’s testimony about his or her reasons for an adverse action,
but also find that the truth is the opposite of that testimony.
Pratt (Corrugated Logistics), LLC, 360 NLRB 304, 314 (2014),
citing NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962).
Applying the above principles, I find that Respondent dis-
criminatorily suspended employee Ramos for union solicitation
and thereafter discharged her for the same reason.
It is clear that the suspension of Ramos on March 4, 2019,
which was accompanied by the unlawful interrogation de-
scribed above, was itself discriminatory. The Respondent’s
own notice stated that Ramos was being suspended for her
“union” solicitation. No other reason was given for her suspen-
sion on the notice, even though there was an option for giving
other reasons on the form notice. And no other reason was
offered orally by either of the management representatives at
the meeting they conducted during which Ramos was suspend-
ed. Significantly, the alleged violation of Respondent’s no-
solicitation rule that was mentioned for the first time in the
subsequent termination meeting was not an issue raised or dis-
cussed in the suspension meeting. Since the admitted unlawful
reason was the only reason for the action taken, there is no
mixed motive associated with the suspension and no occasion
to engage in a Wright Line analysis. Accordingly, I find that
Respondent’s suspension of Ramos constituted a violation of
Section 8(a)(3) and (1) of the Act.8
Moreover, the discriminatory suspension colored Respond-
ent’s decision made the next work day—to discharge Respond-
ent for the same act of union solicitation that resulted in her
suspension. But, here, after a so-called investigation, Respond-
ent added other reasons for her discharge, most notably a viola-
tion of Respondent’s no-solicitation rule. Thus, consideration
of the discharge case calls for a Wright Line analysis. Because
of the discriminatory suspension in the context of an unlawful

8 Respondent’s contention (R. Br. 9) that the General Counsel has
failed to demonstrate union animus is absurd. Even apart from the
unlawful interrogation of Ramos, which Respondent did not even ad-
dress in its brief, the suspension notice itself not only admits the anti-
union animus but also admits the causation for Respondent’s adverse
action.
interrogation, the General Counsel has easily established the
initial burden of proving improper motivation for the discharge.
And, as shown below, the Respondent has not rebutted that
initial showing by showing that it would have discharged Ra-
mos in the absence of her union activity.
With respect to Respondent’s assertion that it discharged
Ramos for violating its no-solicitation policy, it is settled law
that rules prohibiting solicitation on working time are presump-
tively lawful, but that presumption may be rebutted by a show-
ing that the employer permitted something more than isolated
non-union solicitations during work time and enforced its rule
only against union solicitation. Thus, imposing discipline only
against an employee for union solicitation where there has been
disparate application of a valid rule is a violation of Section
8(a)(3) and (1) of the Act. Verizon Wireless, 349 NLRB 640,
642 (2007). See also Hammary Mfg. Corp., 265 NLRB 57
(1982); W.D Mechanical Manor Contractors, 357 NLRB 1526,
1526 n. 1 (2011); and Wal-Mart Stores, 350 NLRB 879, 881
(2007). The disparate treatment in Verizon Wireless was pun-
ishing union solicitation while tolerating the work-time solicita-
tion and sale of items such as candy, meals and Girl Scout
cookies. 349 NLRB at 641. With respect to tolerating similar
sales and solicitations while punishing union solicitation, see
also SNE Enterprises, Inc., 347 NLRB 472, 473-474 (2006);
and Our Way, Inc., 268 NLRB 394, 394-395, 402, 411 (1983).
Turning to the asserted violation of the no-solicitation policy
for the discharge of Ramos, it is noteworthy, as I have men-
tioned, that the suspension that immediately preceded her dis-
charge did not mention violation of the no-solicitation policy.
It appears that that reason was dredged up during the post-
suspension investigation, which consisted only of an internal
deliberation about facts already known and considered in the
unlawful suspension. The investigation did not address any
non-discriminatory concern for misuse of work-time, which
would be a legitimate reason for the no-solicitation policy’s ban
on work time solicitation. Molinaro did not inquire of Levi or
any other dietary aide or even a supervisor about whether Ra-
mos’s union solicitation caused problems in “resident safety”, a
concern she specifically expressed about the union solicitation.
Nor did she investigate how much time away from work the
union solicitation consumed, even though she conceded that
employees could engage in whatever conversations on work
time they wanted, so long as they are “not deterring from their
job duties.” Tr. 171. The investigation apparently was ad-
dressed to finding some reason to terminate Ramos that did not
sound discriminatory, as did the suspension notice.
I find that the asserted violation of the no-solicitation policy
was not the real reason for the discharge not only because it
was an afterthought—not mentioned in the earlier suspension,
but because the policy was discriminatorily applied to Ramos.
Significantly, the suspension and discharge of Ramos constitut-
ed the only discipline of any employee for the violation of its
no-solicitation policy. And it was applied only to discipline
someone for union solicitation. Moreover, the evidence shows
a disparate enforcement of the policy because employees re-
peatedly and openly engaged in other non-union solicitation on
work time, including solicitation for the sale and the actual sale
of candy, other items, including jewelry, scarves and purses,
MOUNTAIN VIEW CARE AND REHABILITATION CENTER, LLC 9
and Girl Scout cookies—all without discipline. Thus, the as-
serted violation of the no-solicitation policy was a pretext and
cannot overcome the initial showing of discrimination in the
termination of Ramos. Rather use of this pretext strengthens
the finding of discrimination. See St. Margaret Mercy
Healthcare Centers, 350 NLRB 203, 203-204 (2007).
Accordingly, I find that the discharge of Ramos for engaging
in union solicitation violated Section 8(a)(3) and (1) of the Act.
The Unilateral Changes
It is well settled that an employer who makes substantial and
material changes to existing terms and conditions of employ-
ment of represented employees without first notifying the union
that represents them and giving it an opportunity to bargain
over the changes violates Section 8(a)(5) and (1) of the Act.
NLRB v. Katz, 369 U.S. 736 (1962). The changes in the com-
putation of paid time off for the employees in the unit repre-
sented by the Union are set forth in the factual statement. The
changes obviously involved terms and conditions of employ-
ment and Respondent does not deny that changes were made in
the existing PTO policy and that the Union was not notified or
given an opportunity to bargain about the changes. Respond-
ent’s only defense to this part of the case is that the relevant
complaint allegation should be dismissed because a charge was
not filed within 6 months of the alleged change in violation of
Section 10(b) of the Act. Tr. 7-9. As shown below, Respond-
ent’s defense is without merit. Accordingly, Respondent’s
unilateral change violated Section 8(a)(5) and (1) of the Act.9
Respondent’s Section 10(b) defense is based on its conten-
tion that the Union should have filed its unilateral change
charge within 6 months of the distribution to unit employees of
the handbook that set forth Respondent’s new policy on paid
off time. Tr 82-83. The handbook was distributed to unit em-
ployees on August 1, 2018, but there is no evidence that the
employees were alerted to the PTO policy that appears over the
course of two pages in the middle of the handbook or that the
employees were told that that policy was an actual change to
existing PTO policy. The handbook was not provided to the
Union at that time; it was provided to the Union shortly before
bargaining began in October of 2018. But there was no specific
notification to the Union at that time of any change in the PTO
policy. Nor is there any other evidence that the Union had
actual knowledge of the change until January of 2019 when it
learned from unit employees that they had found changes in
their paid time off in their payroll information. The charge was
filed shortly thereafter, on February 13, 2019, well within 6
months of the Union’s actual notification and knowledge of the
alleged violation. Respondent apparently contends that, since
the handbook containing the PTO policy was distributed to the
employees on August 1, 2018, that distribution constituted
constructive knowledge of a change in policy attributed to the
Union. According to Respondent, the Union should have filed
its charge within 6 months of August 1, which would have been
February 1, 2019, 12 days before the charge was actually filed.

9 Respondent did not raise a Section 10(b) defense in its answer, but
I am permitting it to, in effect, amend its answer to make that assertion
because it was done at the beginning of the hearing and there is no
prejudice to the General Counsel.
See Tr. 123-124.
It is settled law that the Section 10(b) period begins only af-
ter a party has “clear and unequivocal notice of a violation.”
Leach Corp., 312 NLRB 990, 991-992 (1993), enfd. 54 F.3d
802 (D.C. Cir. 1995). It is also settled that a respondent urging
a Section 10(b) defense bears the burden of establishing that the
charging party had such notice more than 6 months before fil-
ing the charge. Nursing Center of Vineland, 318 NLRB 337,
339 (1995). In that case, the Board also stated that a union
bargaining representative is not presumed to have constructive
knowledge of all changes in the wages and benefits of unit
employees whether or not employees expressly notified the
union of those changes. It further stated:
The concept of constructive knowledge incorporates the no-
tion of “due diligence,” i.e., a party is on notice not only of the
facts actually known to it but also facts that with “reasonable
diligence” it would necessarily discovered. Ibid.
The Board continued by stating that there is no strict rule that
imputes employee knowledge to a union bargaining agent.
Rather, “whether unit employees’ knowledge is imputed to
their bargaining representative for purposes of determining
when the 10(b) limitations period commences depends of the
factual circumstances.” Ibid.
The Respondent has not met its burden of proving that the
Union had actual or constructive notice of the unilateral change
more than 6 months prior to its filing of the relevant charge.
There is no evidence that Respondent ever notified the Union
of the unilateral change and certainly none until well within the
Section 10(b) period. Nor did the employees notify the Union
of the changes until January of 2019, again well within the
Section 10(b) period. The notion that distribution of the hand-
book to the employees on August 1, 2018, without more, was
constructive notice to the Union is without merit. The employ-
ees themselves did not realize that the handbook even contained
a change in the PTO policy, and they were not specifically
notified of such a change by Respondent. Indeed, there is evi-
dence that, when employees noticed the change in their
paycheck stubs—and that was well within the 6-month period,
they brought the matter to the attention of Human Resources
Director Yaros, who told them that the change was a technical
“glitch” that would be resolved. It never was, but the employ-
ees were led to believe that the problem was not a substantive
one and that there was no change in policy. Thus, Respondent
actually concealed the actual changes, which would have tolled
the limitations period in any event. See Burgess Construction,
227 NLRB 765, 766 (1977), enfd. 596 F.2d. 378 (9th Cir. 1979),
cert. denied 444 U.S. 940 (1979).
Respondent’s position would require a finding that the Union
had clear and unequivocal notice of the violation on August 1,
when the handbook was distributed to employees, notwith-
standing that its own director of human resources was telling
employees, well after that date, not to be concerned because
their loss of hours was only a payroll glitch that would be re-
solved. That does not make sense. In any event there certainly
was no way for the Union—or even the employees—to know,
from what Yaros was telling employees, that there had been a
change of benefits. The Union did not know for sure that there
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
was a change until it learned from employees what was hap-
pened to their paid time off hours in their payroll data. That
occurred in January 2019. The Union then rather quickly filed
the applicable charge, well within the Section 10(b) period.
Accordingly, the charge in this case was timely filed and Re-
spondent’s Section 10(b) defense is rejected.
CONCLUSIONS OF LAW
1. By coercively interrogating an employee about union ac-
tivities, Respondent violated Section 8(a)(1) of the Act.
2. By discriminatorily suspending and thereafter discharging
employee Yolanda Ramos because of her union activities,
Respondent violated Section 8(a)(3) and (1) of the Act.
3. By unilaterally changing its paid time-off (PTO) policy
without first notifying the Union and giving it the opportunity
to bargain over the change, Respondent violated Section 8(a)(5)
and (1) of the Act.
4. The above violations constitute unfair labor practices
within the meaning of the Act.
Remedy
Since Respondent has engaged in certain unfair labor prac-
tices, it must be ordered to cease and desist from its unlawful
conduct and take certain affirmative action designed to effectu-
ate the policies of the Act, including the posting of an appropri-
ate notice.10
Having unlawfully suspended and discharged Yolanda Ra-
mos, Respondent must offer her reinstatement to her former job
or, if that job no longer exits, to a substantially equivalent posi-
tion without prejudice to her seniority of any other rights or
privileges previously enjoyed. The Respondent shall also make
Ramos whole for any loss of earnings and other benefits she
may have suffered as a result of the unlawful discrimination
against her. The make whole remedy shall be computed in
accordance with F.W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB No. 8 (2010). In accordance with
King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in pertinent
part 859 F.3d 23 (D.C. Cir. 2017), Respondent shall compen-
sate Ramos for search-for-work and interim employment ex-
penses regardless of whether those expenses exceed her interim
earnings. Respondent shall also compensate Ramos for the
adverse tax consequences, if any, of receiving a lump sum back
pay award and file a report allocating backpay to appropriate
years in accordance with AdvoServ of New Jersey, Inc., 363
NLRB No. 143 (2016).
Respondent, having unilaterally and unlawfully changed the
terms and conditions of employment of unit employees in the

10 The General Counsel requests that the cease and desist order in-
clude specific language prohibiting Respondent from discriminatorily
applying its no-solicitation rule. G.C. Br. 31. But, although the matter
was litigated as part of the Ramos discrimination matter, discriminatory
application of the rule was not specifically alleged as a separate unfair
labor practice. Thus, I will not include that specific language in the
cease and desist order. General Counsel also suggests (G.C. Br. 34-35)
that the notice be read to assembled employees. I do not believe that
the unfair labor practices in this case, although serious, warrant this
additional remedy.
bargaining unit represented by the Union, shall rescind the
changes it made in its existing PTO policies and make the af-
fected employees whole for any losses they have suffered as a
result as a result of the unilateral changes. The make whole
remedy shall be computed in accordance with Ogle Protection
Service, Inc., 183 NLRB 682 (1970), enfd 444 F.2d 502 (6th
Cir. 1971), with interest as prescribed above. Adverse tax con-
sequences or proper allocation of backpay, if any, are to be
handled as set forth above.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended11
ORDER
Respondent, Mountain View Care and Rehabilitation Center,
LLC, its officers, agents, successors and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their union ac-
tivities or those of other employees.
(b) Suspending, discharging or otherwise disciplining em-
ployees because of their union activity.
(c) Unilaterally changing existing wages, hours or terms and
conditions of employment, including the existing paid time-off
policy, of employees represented by Retail, Wholesale, and
Department Store Union in the appropriate bargaining unit
without first notifying the Union and offering it an opportunity
to bargain over the changes.
(d) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Within 14 days from the date of this order, offer Yolanda
Ramos reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice
to her seniority or any other rights and privileges previously
enjoyed.
(b) Make Yolanda Ramos whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her, in the manner set forth in the remedy section of
this decision.
(c) Compensate Yolanda Ramos for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and
file with the Regional Director for Region 4, within 21 days of
the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the ap-
propriate calendar years.
(d) Within 14 days from the date of this order, remove from
its files any reference to the unlawful suspension and discharge
of Yolanda Ramos, and, within 3 days thereafter, notify her in
writing that is has been done and that neither of the unlawful
actions will be used against her in any way.
(e) Restore the PTO policy as it existed before the unlawful
unilateral change and make whole any unit employees adverse-

11 If no exceptions are filed, as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be waived for all purpos-
es.
MOUNTAIN VIEW CARE AND REHABILITATION CENTER, LLC 11
ly affected by or who suffered losses due to the unlawful uni-
lateral changes to the PTO policy, including restoration of ac-
crued leave balances, made by Respondent in accordance with
the remedy section of this decision.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records, including an electronic copy of such records
if stored in electronic form, necessary to analyze the amount
of back pay due under the terms of this Order.
(g) Within 14 days after service by the Region, post, at its
Scranton, Pennsylvania facility, copies of the attached notice
marked “Appendix.”12 Copies of the notice, on forms provid-
ed by the Regional Director for Region 4, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. In addition to physical
posting of paper notices, the notices shall be distributed elec-
tronically, such as email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent custom-
arily communicates with employees by such means. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since March
4, 2019.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible offi-
cial on a form provided by the Region attesting to the steps
that the Respondent has taken to comply.
Dated at Washington, D.C., August 23, 2019.
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half

12 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted pursuant to a
Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.”
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interrogate or question employees about their
union activities.
WE WILL NOT suspend, discharge or otherwise discipline em-
ployees because of their union activities.
WE WILL NOT unilaterally change existing wages, hours or
terms and conditions of employment of employees in the
bargaining unit represented by the Retail, Wholesale, and De-
partment Store Union without giving it prior notice and an op-
portunity to bargain over the change.
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce employees in the exercise of the rights
listed above.
WE WILL offer Yolanda Ramos immedia te and fu l l
r e instatement to her former job, or if that job no longer ex-
ists, to a substantially equivalent position, without prejudice
to her seniority or any other rights and privileges previously
enjoyed.
WE WILL make Yolanda Ramos whole, with interest, for
any loss of earnings and other benefits suffered as a result of
our discrimination against her, less net interim earnings, plus
reasonable search-for-work and interim employment expenses.
WE WILL remove from our files any references to the unlaw-
ful actions taken against Yolanda Ramos, notify her that this has
been done, and those unlawful actions will not be used against
her in any way.
WE WILL compensate Yolanda Ramos for the adverse tax
consequences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 4, within 21
days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
award to the appropriate calendar years.
WE WILL restore the paid time-off policy as it existed before
we unlawfully changed it and make whole, with interest, any
employees who may have suffered losses by our unlawful
changes to that policy, including restoration of accrued leave
balances.
MOUNTAIN VIEW CARE AND
REHABILITATIONCENTER, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/04-CA-235894 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12