The Avenue Care and Rehabilitation Center

National Labor Relations Board - Board Decisions

Jan 24, 2014

360 N.L.R.B. 152 (N.L.R.B. 2014)

152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 24
Avenue Care and Rehabilitation Center and SEIU
District 1199, WV/KY/OH The Healthcare and
Social Service Workers Union. Case 08–CA–
094941
January 24, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On October 17, 2013, Administrative Law Judge Mark
Carissimi issued the attached decision. The Respondent
filed exceptions and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and brief and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Avenue Care and Reha-
bilitation Center, Warrensville Heights, Ohio, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.

1 No exceptions were filed to the judge’s dismissal of allegations
that management officials violated Sec. 8(a)(1) by announcing changes
to the break periods of its STNA employees, and by making statements
to them that it would not bargain in good faith with the Union and that
it was futile to select union representation.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent argues that in discrediting the testimony of its man-
agerial witnesses, the judge improperly presumed the credibility of
Taquitia McGee and Phondile Biyela’s testimony because they are
current employees. We disagree. The judge credited the testimony of
McGee and Biyela based on their impressive demeanor, the consistency
and certainty of their testimony, and their status as current employees.
Further, to the extent that the judge relied on this last factor, it is well
settled that the testimony of current employees that contradicts that of
their supervisors is “particularly reliable because [the employees] are
testifying adversely to their pecuniary interests.” Advocate South Sub-
urban Hospital, 346 NLRB 209, 209 fn. 1 (2006), quoting Flexsteel
Industries, 316 NLRB 745 (1995), affd. mem. 83 F.3d 419 (5th Cir.
1996). Thus, current employment status may serve as a “significant
factor,” among others, on which a judge may rely in resolving credibil-
ity issues. Id.
Catherine Modic, Esq., for the Acting General Counsel.
Frederick Englehart, Esq., for the Respondent.
Frank Hornick, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was
tried in Cleveland, Ohio, on August 12, 2013. The SEIU Dis-
trict 1199, WV/KY/OH, The Healthcare and Social Service
Workers Union (the Union) filed the charge on December 12,
2012; the first amended charge was filed on January 23, 2013;
the second amended charge was filed on February 14, 2013; the
third amended charge was filed on March 27, 2013; and the
fourth amended charge was filed on May 16, 2013. The Acting
General Counsel issued the complaint on May 29, 2013.
On the entire record, including my observation of the de-
meanor of the witnesses,3 and after considering the briefs filed
by the Acting General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Ohio corporation with an office and
place of business located in Warrensville Heights, Ohio, has
been engaged in the operation of a long- and short-term rehabil-
itation facility. Annually, the Respondent, in conducting its
business operations described above, derives gross revenues in
excess of $100,000 and purchases and receives products, goods,
and services valued in excess of $50,000 directly from points
located 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
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act in the following respects: on or about Sep-
tember 6, 2012, by Christopher Hope, interrogating employees
about their union activities; on various dates in September and
October 2012, the exact dates being unknown, by Christopher
Hope and Annette Woodyard, interrogating employees about
their union activities during employee meetings; on various
dates in September and October 2012, by Christopher Hope,
orally promulgating and maintaining a rule prohibiting its em-
ployees from discussing a union in the Respondent’s facility;
on various dates in September and October 2012, by Christo-
pher Hope, threatening employees with discipline if they vio-

3 In making my findings regarding the credibility of witnesses, I
considered their demeanor, the content of their testimony, and the in-
herent probabilities based on the record as a whole. In certain instanc-
es, I credited some but not all, of what the witness said. I note in this
regard that “nothing is more common in all kinds of judicial decisions
than to believe some and not all” of the testimony of a witness. Jerry
Ryce Builders, 352 NLRB 1262 fn. 2 (2008), citing NLRB v. Universal
Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on other
grounds 340 U.S. 474 (1951). See also J. Shaw Associates, LLC, 349
NLRB 939, 939–940 (2007).
AVENUE CARE & REHABILITATION CENTER 153
lated the above noted rule; in October 2012, by Annette Wood-
yard, coercively informing employees that, due to the Union,
the Respondent would change its break policy by assigning
specified break periods for employees and by requiring em-
ployees to sign in and out for breaks; and on or about October
9, 2012, by Shaul Flank, stating to employees the futility of
selecting the Union as their bargaining representative and indi-
cating that the Respondent would not bargain in good faith with
the Union.
The Procedural Issue
The Respondent’s brief contends that the complaint in the in-
stant case must be dismissed on the basis of a United States
district court decision in Hooks v. Kitsap Tenant Support Ser-
vices, 2013 WL 4094344 (W.D. Wash., August 13, 2013). In
Hooks, the district court judge held that Regional Director
Hooks lacked the authority to issue the underlying complaint in
a 10(j) injunction proceeding because President Obama’s recess
appointments to the Board were invalid. The district court
further held that the Regional Director’s authority to issue a
complaint could not derive from Acting General Counsel Sol-
omon because Solomon’s appointment under the Federal Va-
cancies Reform Act was invalid.
With regard to the first argument, I note that in June 2013,
the Supreme Court granted a petition for certiorari in Noel
Canning v. NLRB, 133 S. Ct. 2861 (2013),4 a case involving the
validity of President Obama’s recess appointments to the
NLRB. The Board has held that while this issue remains in
litigation, and pending a definitive resolution, the Board will
continue to fulfill its responsibilities under the Act. Belgrove
Post Acute Care Center, 359 NLRB 633 fn. 1 (2013). Accord-
ingly, I find no merit to the Respondent’s argument that the
complaint in the instant case is deficient because of the continu-
ing litigation over the recess appointments to the Board. Nor
do I find any merit to the Respondent’s argument regarding the
alleged lack of authority for the Acting General Counsel to
issue the complaint in this matter under the Federal Vacancies
Reform Act as the Board also addressed this argument in Bel-
grove and found it unpersuasive. I am, of course, bound to
follow Board precedent unless and until it is reversed by the
Supreme Court. Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984);
Iowa Beef Packers, 144 NLRB 615 (1963), enfd. in part 331
F.2d 176 (8th Cir. 1964).
Background
The Respondent operates a long- and short-term rehabilita-
tion facility in Warrensville Heights, Ohio. During the material
time period, Shaul Flank was one of the owners of the Re-
spondent and the vice president of operations for Progressive
Quality Care, the management company that operates the Re-
spondent. In addition, Carl Holbrook was the Respondent’s
corporate director of operations; Christopher Hope was the
Respondent’s administrator; Shameeka Craig was the human
resources payroll director; and Annette Woodyard was the as-
sistant director of nursing.

4 The underlying decision was reported at 705 F.3d 490 (D.C. Cir.
2013).
In August 2012, the Union began an organizational cam-
paign at the Respondent’s facility. On September 5, 2012, one
of the Union’s organizers and several employees participated in
a “March on the Boss” during which the Union sought volun-
tary recognition from Hope based upon what it claimed was
majority support based on authorization cards. After discussing
the issue with Flank, who was present at the facility that day,
Hope declined to recognize the Union.
Thereafter, pursuant to a petition in Case 08–RC–088734,
filed on September 5, 2012, the parties executed a stipulated
election agreement and an election was held on October 12,
2012. The tally of ballots showed there were 33 votes for and
16 against the Petitioner, with 1 challenged ballot, an insuffi-
cient number to affect the results. Thereafter, the Employer
filed an objection to the election and the Regional Director
issued a report recommending overruling the objection. On
February 12, 2013, the Board adopted the Regional Director’s
findings and recommendations and issued a certification of
representative to the Union in the following appropriate unit:5
All full-time and regular part-time time State Tested Nursing
Assistants, Dietary Aides, Dietary Cooks, Housekeeping em-
ployees, Laundry employees, Restorative Aides, and Activi-
ties Aids employed by the Employer at its facility located at
4120 Interchange Corporate Center Road, Warrensville
Heights, Ohio, but excluding all LPN nurses, RN nurses, PRN
casual employees, office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act.
Thereafter, the Employer refused to bargain with the Union
and is contesting the Board’s certification.
Whether the Respondent, Through Christopher Hope,
Violated Section 8(a)(1) of the Act on September 6, 2012
by Interrogating Employees.
Taquitia McGee, who is currently employed by the Re-
spondent as a housekeeper, testified pursuant to a subpoena as a
witness on behalf of the Acting General Counsel. McGee testi-
fied that she was an active supporter of the Union during the
campaign. In this regard, McGee helped set up employee meet-
ings, solicited authorization cards from other employees and
was one of the employees present with a union organizer on
September 5, 2012, when the Union demanded recognition
from the Respondent. According to McGee, on September 6,
near the end of her shift at 3 p.m., Hope and Shameeka Craig
asked her to come to the human resources office. McGee ac-
companied them to Craig’s office. When they arrived, Hope
said that he had heard that McGee had been passing out union
cards on company property. McGee replied that she did not
know what he was talking about. Hope asked her if she was
sure about that and then told her to keep it that way. Craig did
not say anything during this brief meeting. McGee then left
Craig’s office.
Hope’s testimony conflicts with that of McGee. Hope testi-
fied that on September 6, an employee reported to him that she
had seen McGee in a hallway passing out flyers. He went to

5 I have taken administrative notice of the Board's unpublished deci-
sion in this case.
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
investigate and did not see McGee in the hallway, but did see
her on the way back to his office. Hope asked McGee to come
to the human resources office. Hope and McGee went into
Craig’s office. Hope testified that he did not know that Craig
was in her office when they first entered, but that she was in
fact present during the conversation he had with McGee. Hope
testified that he asked McGee if she was passing out flyers.
McGee replied that she was not and Hope responded “Okay,
thank you” and McGee then left Craig’s office. Craig did not
say anything during this brief meeting. Hope denied saying
anything about union cards.
Although Craig was called as a witness by the Respondent at
the hearing, she was not asked any questions about this meeting
between Hope and McGee.
I credit the testimony of McGee regarding this incident. I
was impressed by her forthright demeanor and the fact that her
testimony was detailed and consistent on both direct and cross-
examination. As a current employee who testified against the
interest of her employer, it is unlikely that her testimony is
false. The Board has noted that when employees testify against
the interest of their employer, they subject themselves to the
possibilities of recrimination and the perils would even be
greater if such testimony was false. Bloomington-Normal Seat-
ing Co., 339 NLRB 191, 193 (203). See also Flexsteel Indus-
tries, 316 NLRB 745 (1995); Federal Stainless Sink Div., 197
NLRB 489, 491 (1972).
In contrast, Hope’s testimony was somewhat vague and his
demeanor while testifying was not as impressive as that of
McGee’s. I also note that while Craig testified on behalf of the
Respondent at the hearing she was not asked any questions
about this incident. Thus, Hope’s testimony is uncorroborated.
The Board has held that the questioning of an employee vio-
lates Section 8(a)(1) of the Act if, under all the circumstances,
the questions reasonably tend to restrain, coerce or interfere
with Section 7 rights. Rossmore House, 269 NLRB 1176,
1177–1178 (1984), enfd. 760 F.2d 1006 (9th Cir. 1985). In
Scheid Electric, 355 NLRB 160, 160 (2010), the Board held
that the factors that may be considered in making a determina-
tion regarding an alleged unlawful interrogation are the identity
of the questioner, the place and method of interrogation, the
background of the questioning, the nature of the information
sought, and whether the employee is an open union supporter.
In the instant case, the interrogation was carried out by
Hope, the highest ranking management official at the facility.
It was also conducted in the presence of another management
official and took place in the human resources office. In addi-
tion the timing of the questioning suggests it was coercive, as it
occurred the day after a union official, McGee and other em-
ployees demanded recognition from the Respondent on behalf
of the Union. While McGee was a known union adherent, this
did not privilege the Respondent to question her about whether
she had been soliciting union authorization cards. In addition,
when McGee denied knowing what Hope was talking about
when he questioned her about soliciting cards, he advised her to
keep it that way, thus implying that she should not solicit au-
thorization cards on behalf of the Union. Under the circum-
stances, I find that Hope’s interrogation of McGee on Septem-
ber 6, 2012, regarding whether she was soliciting employees to
sign authorization cards, violated Section 8(a)(1) of the Act
under the standards set forth above.
Whether the Respondent, through Christopher Hope,
Violated Section 8(a)(1) of the Act at a Meeting Held
in September or October 2012, by Interrogating Employees,
by Orally Promulgating a Rule Prohibiting Employees
From Discussing the Union at the Respondent’s Facility
and by Threatening Employees with Discipline
if They Violated that Rule
McGee testified that she attended four meetings regarding
the union campaign conducted by the Respondent during the
period between the filing of the petition on September 5, and
the election held on October 12. According to McGee, approx-
imately 10 employees attended each of the meetings that she
did.6 McGee testified that at one of the meetings that she at-
tended, Hope asked how the union came about and some em-
ployees answered his question. Hope then said that he did not
want employees talking about the Union in the building and
that if the employees did so and got caught that disciplinary
action would be taken. Hope also made reference to the em-
ployee handbook in this regard, but McGee could not recall
specifically what provision he referred to. On direct examina-
tion, McGee testified she could not recall at which of the meet-
ings she attended that Hope made these statements. However,
on cross-examination, McGee testified that neither Holbrook
nor Flank were present at the meeting at which Hope made
these statements. The record clearly establishes that Holbrook
spoke only on the first day of meetings and that Flank spoke
only on the last day of meetings. I find therefore that McGee’s
testimony was directed to the second or third day of meetings
held by the Respondent regarding the union campaign.
According to the uncontroverted testimony of McGee and
current employee Pamela Glover, employees regularly and
openly spoke to each other during the workday regarding their
families, sports, and television shows and that they had never
been told by a supervisor that these conversations could be
subject to disciplinary action. The record does not contain any
objective evidence that the Respondent maintained a no-
solicitation rule at the facility during the material time. More
specifically, there is no evidence that the employer maintained
a rule prohibiting employees from speaking to each other dur-
ing working time about nonwork related matters.
Hope denied asking employees how the union came about.
Hope further testified that he had received instructions from
counsel regarding what questions were appropriate to ask em-
ployees during the union campaign. According to Hope, he
was advised by counsel that asking employees questions about
their union activity could be a violation of the law.
Hope denied telling employees that they were not allowed to
discuss the Union at the Respondent’s facility. In contending
that Hope’s denial on this issue is credible, the Respondent
relies, in part, on one of its campaign leaflets. (R. Exh. 3.)
This document is dated September 27, 2012, and was distribut-

6 The record establishes that the Respondent would hold essentially
the same meeting three times in 1 day in order to reach all of the em-
ployees.
AVENUE CARE & REHABILITATION CENTER 155
ed to employees after the meetings that were held on that date.
It was also mailed to unit employees and posted on the bulletin
board and at nurses’ stations. The document states in relevant
part:
Q: Some of our coworkers are telling us not to talk to
management or listen to anything management says. Are
we not allowed to talk to you?”
A: Yes, you are allowed to speak with management
just as you allowed to speak with the union representa-
tives. Typically unions do not want you to speak with
management or pay any attention to what we say because
they do not want you to hear our side of the unionization
story. We are different. We urge you to listen all you can
about the subject, listen to the union side and listen to our
side and decide for yourself what to believe.
As I noted above, I find McGee generally to be a credible
witness. Her testimony regarding the statements made by Hope
at this meeting was consistent on both direct and cross-
examination and her demeanor was forthright. In addition,
McGee’s testimony is consistent with her pretrial affidavit
which the Respondent introduced in an attempt to impeach her
testimony. In this connection, the affidavit states, in relevant
part:
At one of the meetings, Hope said that he knew that we were
passing around union cards and that some employees were
getting upset about that and they told him that they were go-
ing to quit if the Union got in the building. Hope said we
could not be caught talking about the Union in the building,
otherwise the disciplinary policy would be enforced. When
he said that one of the employees asked the question about his
statement. I do not presently recall who asked the question or
what they asked specifically. He responded, “you need to
read your handbook because it says you are not supposed to
be having any other conversations other than if you are having
a conversation with a resident.” Hope asked the employees,
“How did this come about. Why do you all feel you need a
Union?” (R. Exh 1, pp. 9–10.)
With respect to the conflict in the testimony of McGee and
Hope regarding the statements allegedly made at this meeting, I
credit McGee’s testimony.
I found Hope’s denial of the statements attributed to him by
McGee to be somewhat perfunctory and not credible. With
respect to the Respondent’s argument that Hope was advised by
counsel not to question employees about their union activity,
while I have no doubt that such advice was given, that does not
necessarily mean it was followed and in this case I find that it
was not.
I also do not find that the campaign literature discussed
above establishes that Hope’s testimony is credible. The mere
fact that the Respondent generally urged employees to listen to
both the union and management sides of the issues and make a
decision, does not establish that Hope did not make the specific
statements attributed to him regarding the right of employees to
speak about the Union at the facility.
Based on the credited testimony of McGee, I find that at the
second or third meeting she attended that was held by the Re-
spondent in September or October 2012,7 Hope asked the ap-
proximately 10 employees present how the Union came about.
Considering all the circumstances, I find that this question con-
stituted an unlawful interrogation and violates Section 8(a)(1)
of the Act under the standards set forth in Rossmore House,
supra, and Scheid Electric, supra. Hope is the highest man-
agement official at the facility on a daily basis and the question
was put to employees at a meeting held by the Respondent in
an attempt to convince them to vote against the Union. By
asking the question to a group of employees, the inquiry was
not directed to only known union adherents. Finally, the ques-
tion is not an isolated one but rather occurred in the context of
other unfair labor practices.
I also find, based on McGee’s credited testimony, that at the
same meeting Hope told employees that he did not want them
talking about the Union in the building and that if they got
caught doing so discipline could result. The uncontroverted
testimony of McGee and Glover establishes that employees
regularly and openly spoke about matters such as their families,
sports, and television shows during working time without ad-
monition. As noted above, there is no evidence in the record
establishing that the Respondent maintained a rule prohibiting
employees from speaking to each other regarding subjects not
associated or connected with their work tasks during working
time.
The oral rule promulgated by Hope completely bars any dis-
cussion of union activity by employees in the Respondent’s
facility. Thus, it prohibits discussions about union activity
between employees at the Respondent’s facility during non-
working time and is therefore overly broad and violative of
Section 8(a)(1) of the Act. Smithfield Packing, 344 NLRB 1, 2
(2004); Our Way, Inc., 268 NLRB 394 (1983).
In addition, I note that an employer may lawfully prohibit
employees from talking about union activity during working
time, if that prohibition also extends to all other subjects not
associated or connected with their work tasks. It is clearly
established, however, that an employer violates Section 8(a)(1)
of the Act when employees are prohibited from discussing a
union during working time, but are free to discuss other sub-
jects unrelated to work, particularly when the prohibition was
announced in response to the employees’ activities during a
union campaign. Altercare of Wadsworth Center for Rehabili-
tation & Nursing Care, 355 NLRB 565, 573 (2010); Willamette
Industries, 306 NLRB 1010, 1017 (1992); Emergency One,
Inc., 306 NLRB 800, 806 (1992); Orval Kent Food Co., 278
NLRB 402, 407 (1986).
In the instant case, employees were free to discuss other sub-
jects unrelated to work during working time prior to the union
campaign, but with the advent of the union campaign were
prohibited from discussing the Union at the facility.
On the basis of the foregoing, I find that by orally promul-
gating a rule prohibiting employees from discussing the Union
at the Respondent’s facility and threatening to enforce this rule
through discipline, the Respondent violated Section 8(a)(1) of
the Act.

7 The record does not indicate the dates the second and third meet-
ings were held.
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Whether the Respondent, Through Assistant Director
of Nursing Annette Woodyard, Violated Section 8(a)(1)
of the Act in September or October 2012,
by Interrogating Employees about Their Union Activity
Phindela Biyela, who is currently employed by the Respond-
ent as a state tested nursing assistant (STNA), testified on be-
half of the Acting General Counsel regarding this allegation.
Annette Woodyard, the assistant director of nursing, is Biyela’s
direct supervisor. Biyela testified that she attended meetings
held by the Respondent regarding the union campaign prior to
the election at which Woodyard participated. These meetings
were held in the “sunroom” at the Respondent’s facility at 2:30
p.m. and approximately 15 employees would normally attend.
Before the beginning of one of these meetings, Woodyard
asked the assembled employees why they wanted the Union.
When Woodyard asked this question, she was not reading from
a script. According to Biyela, some of the employees respond-
ed to Woodyard’s question.
Woodyard acknowledged that she participated in a series of
meetings held by the Respondent during September and Octo-
ber regarding the union campaign. Woodyard also acknowl-
edged that before the meetings began employees would engage
in conversation with each other. When asked on direct exami-
nation if she ever joined those conversations, Woodyard first
stated that she did not remember doing so. When asked specif-
ically if, before the Respondent’s formal presentation began,
she ever asked employees why they wanted to bring a union
into the Respondent’s facility, she denied doing so. Woodyard
further testified that she was advised by counsel that she was
not to ask questions like that and that she followed that advice.
I credit the testimony of Biyela over that of Woodyard re-
garding this allegation. Biyela testified in a direct and forth-
right manner regarding this issue and her demeanor reflected
certainty regarding this event. As a current employee testifying
about a statement made by her direct supervisor, it is unlikely
that her testimony is false. On the other hand, Woodyard’s
testimony was less detailed and her demeanor reflected a lack
of certainty regarding her testimony on this issue.
In applying the standards set forth above in Rossmore House,
supra, and Scheid Electric, supra, I note that Woodyard is the
direct supervisor of the employees who were questioned about
why they wanted union representation. The questioning took
place immediately before a formal meeting at which Respond-
ent was attempting to convince the employees to vote against
the Union and occurred in the context of other unfair labor
practices. Because the question was directed to a group of
employees, it was not restricted to those who were known un-
ion activists. Accordingly, I find that in September or October,
2012, the Respondent, through Woodyard, violated Section
8(a)(1) of the Act by interrogating employees about their union
activities.
Whether the Respondent, through Woodyard, Violated
Section 8(a)(1) of the Act in October 2012, by
Advising Employees that Because of the Union,
the Respondent was Changing its Break Policy
by Assigning Specified Break Periods and by Requiring
Employees to Sign In and Out for Breaks
STNAs Glover and Biyela testified that prior to the October
12, 2012 election, they did not have specifically assigned break
or lunch periods during their shifts. Both employees testified
that they would take breaks and lunch when the workload per-
mitted and would notify the supervisory nurse when they were
going to take such a break. While Glover testified that prior to
the election she did have to sign in and out for breaks (Tr. 44),
Biyela testified that she did not have to sign in and out for
breaks prior to the election. (Tr. 63.)
Glover testified that after the election, she had a brief con-
versation with Woodyard at the upper level nurses’ station.
According to Glover, Woodyard told her that STNAs would
have assigned breaks because she did not want anybody going
back to the Union saying that they did not get a break. Glover
did not respond to Woodyard’s statement.
Biyela testified that after the election she saw a note posted
at the nurses’ station indicating that as of that day, an employee
would have to fill out a form reflecting the employee’s name,
the time the employee was leaving for break, and the time the
employee returned.
McGee testified that shortly after the election, she was in the
area of the lower level nurses’ station when she overheard
Woodyard call all the STNAs to the nurses’ station. When the
STNAs assembled, Woodyard told them that they would have
to start signing in and out for breaks because she did not want
anyone to report to the Union that they were not getting their
breaks.
Woodyard testified that on October 15, 2012, she conducted
an “in-service meeting” with STNAs that she supervised in
order to discuss an issue involving employees working their
scheduled shifts. According to Woodyard, she conducted this
in-service meeting because she had noticed that some STNAs
walked past her office toward the timeclock more than 15
minutes before the end of the shift at 3 p.m. Woodyard later
determined that some STNAs were sitting in the breakroom
until 3 p.m. and then punching out.
The record of the in-service meeting conducted by Wood-
yard on October 15, 2012 (R. Exh. 4, p. 1), was prepared by her
and lists the following under “objectives”:
1. Per policy—must remain in work areas for the shift
schedule.
2. Allowable to punch in & do rounds up to 15 min.
before start of shift.
3. If leaving work area before end of shift—must
punch out. Not sit in break room until end of shift.
An in-service attendance record (R. Exh. 4, p. 2), reflects
that Biyela was in attendance at the meeting held on October
15. (Tr. 84.) Finally, a portion of the Respondent’s attendance
and absentee policy from its handbook (R. Exh. 4, p. 3), states
in relevant part:
AVENUE CARE & REHABILITATION CENTER 157
You are expected to be at your work station, in your work ar-
ea and ready to work, at the start of your scheduled shift. You
are expected to remain in your work area until the end of your
scheduled shift and either you are relieved by your replace-
ment for the next shift or your supervisor tells you that you
may leave your work area at the end of your shift.
Woodyard testified that when she conducted the in-service
meeting on October 15, she did not say anything about punch-
ing in and out for breaks. She further testified that she never
mentioned anything to employees about changing the break
policy.
I find that the Acting General Counsel has not produced suf-
ficient credible evidence to sustain this allegation of the com-
plaint. In the first instance, McGee testified that she overheard
Woodyard tell STNAs that they would have to start signing in
and out for breaks because she did not want anyone to report to
the Union that they were not getting their breaks. As noted
above, however, Glover admitted that she had to sign in and out
for breaks prior to the election. While Biyela testified that she
did not have to sign in and out for breaks prior to the election,
as I will discuss later, I do not find Biyela’s testimony regard-
ing this complaint allegation to be reliable. If, as Glover states,
STNAs were already signing in and out for breaks, McGee’s
testimony appears implausible. I do not believe that McGee,
who was a bystander to the meeting and not a participant, accu-
rately heard what Woodyard said.
Glover’s testimony that Woodyard told her in a brief indi-
vidual conversation that employees would have assigned break
times because she did not want anyone going back to the Union
saying they did not get a break, is uncorroborated and conflicts
with what McGee claimed that she overheard Woodward say
about the alleged change in break policy.
As noted above, Biyela testified that after the election she
saw a note posted at the nurses’ station indicating that, as of
that date, employees had to fill out a form indicating their
name, the time they went on break, and the time they returned.
Biyela’s testimony is refuted, however, by objective evidence
which establishes that the in-service training she attended on
October 15, and the document that was posted at the nurses’
station memorializing that meeting (R. Exh. 4, p. 1), did not
deal with break periods at all, but rather dealt with the require-
ment of employees to work a scheduled shift. Accordingly, I
do not find Biyela’s testimony on this issue to be reliable.
Unlike the conflicting and unreliable accounts of what the
Acting General Counsel’s witnesses claimed they heard Wood-
yard say about changing the break policy or what they saw
posted about it, Woodyard explained the in-service meeting that
Biyela misconstrued and credibly denied that she made any
statements to employees about changing the Respondent’s
break policy. I also note that there was no objective evidence
produced by the Acting General Counsel to indicate there was,
in fact, any change in the Respondent’s break policy after the
election. On the basis of the foregoing, I conclude that the
Acting General Counsel has not sustained this allegation of the
complaint and I shall dismiss it.
Whether the Respondent, through Shaul Flank, Violated
Section 8(a)(1) of the Act on October 10, 2012, by
Advising Employees that it was Futile to Select the Union
as Their Bargaining Representative by Indicating that
the Respondent Would not Bargain in Good Faith
McGee testified that she attended one of the Respondent’s
final meetings a couple of days before the election at which
Flank spoke to approximately 10 employees. According to
McGee, Flank stated that the “Union couldn’t make him do
anything, he would have to agree to it.” She further testified
that Flank stated that “they could drag it out for a year . . . if
they put in the paperwork, we will have another election and
they could vote the Union out the building.” (Tr. 19.) On
cross-examination, however, when asked if Flank said anything
about how long negotiations might take, McGee testified that
she did not recall.
Flank testified he was present at the last series of meetings
held by the Respondent during the union campaign on October
10. The Respondent conducted three separate meetings that
day in order to reach all of the employees and Flank spoke at
each one. He further testified that he read a speech prepared by
counsel (R. Exh. 6), at each meeting. According to Flank, he
did not deviate from the script of the speech. He further testi-
fied that while he took some questions from the employees he
could not recall the specific questions. He denied, however,
telling employees that he would stall negotiations for a year or
that it would be futile for employees to have a union. Flick
acknowledged telling employees that voting for the union could
be risky and that neither the Respondent nor the Union could
guarantee employees anything through collective bargaining.
I find the testimony of both McGee and Flank to have defi-
ciencies regarding this issue. While McGee testified on direct
examination about how “they” could drag it out for a year,
apparently making an implicit reference to the Respondent
intentionally prolonging negotiations, on cross-examination,
she specifically testified that she did not recall Flank saying
anything about how long negotiations may take. I therefore
cannot credit this aspect of her testimony because of the incon-
sistency between her direct and cross-examination testimony on
this important point. I credit McGee to the extent that I find
that Flank said another election could be held and the union
voted out, but I do not find that such a statement was linked to
negotiations. I also credit her testimony that Flank stated the
Union could not make him do anything, but rather he would
have to agree to it, as such a statement is generally consistent
with the text of the speech given by Shaul.
Flank’s recollection of what he said on October 10 was not
precise, but rather was somewhat vague and generalized.
While he testified that he read the speech verbatim, he admitted
that he took questions from employees, but did not recall what
the questions were. Thus, while the text of the speech does
contain statements regarding the negotiation process, it does not
contain anything about the process of voting the union out. I do
not believe that McGee would invent her testimony regarding
Flank saying something about the process of voting the Union
out and I note that Flank’s testimony does not contain a specific
denial of that statement. Thus, I find that the topic of having
another election held and the Union voted out was addressed by
Flank pursuant to a question asked by an employee, after he
had given his prepared speech.
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing, I find that on October 10 Flank
stated that another election could be held and the Union voted
out. He also stated that the Union could not make him do any-
thing, but rather he would have to agree to it. I find there is no
credible evidence linking Flank’s statement that another elec-
tion could be held and the Union voted out to the Respondent
prolonging negotiations for a year. Thus, I find that his brief
statement that another election could be held and the Union
voted out, does not violate Section 8(a)(1) of the Act. Since it
is true that, under certain circumstances, another election could
be held and the Union voted out, the statement that Flank made
is protected by Section 8(c) of the Act. I also find that Flank’s
statement that the Union could not make him do anything, but
rather he would have to agree to it, is also protected by Section
8(c) of the Act in that it does not contain a threat or promise of
benefit. Accordingly, on the basis of the foregoing I shall dis-
miss this allegation of the complaint.
CONCLUSIONS OF LAW
1. The Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act.
(a) Interrogating employees about their union activities.
(b) Orally promulgating and maintaining a rule prohibiting
employees from discussing a union at any time at the Respond-
ent’s facility.
(c) Threatening employees with discipline if they violated
the orally promulgated rule prohibiting employees from dis-
cussing a union at any time at the Respondent’s facility.
2. The above unfair labor practices affect commerce within
the meaning of Section 2 (2), (6), and (7) of the Act.
3. The Respondent has not otherwise violated the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, The Avenue Care and Rehabilitation Cen-
ter, Warrensville Heights, Ohio, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activities on
behalf of SEIU District 1199, WV/KY/OH, The Healthcare and
Social Service Workers Union, or any other labor organization.
(b) Orally promulgating and maintaining a rule prohibiting
employees from discussing a union at any time at the Respond-
ent’s facility.

8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(c) Threatening employees with discipline if they violated
the orally promulgated rule prohibiting employees from dis-
cussing union activities at any time at the Respondent’s facility.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Warrensville Heights, Ohio, copies of the attached
notice marked “Appendix.”9 Copies of the notice, on forms
provided by the Regional Director for Region 8, 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 post-
ing of paper notices, the notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customar-
ily communicates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since September 6, 2012.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
AVENUE CARE & REHABILITATION CENTER 159
WE WILL NOT interrogate employees about their union activi-
ties on behalf of SEIU District 1199, WV/KY/OH, The
Healthcare and Social Service Workers Union, or any other
labor organization.
WE WILL NOT orally promulgate and maintain a rule prohibit-
ing employees from discussing a union at any time at our facili-
ty.
WE WILL NOT threaten employees with discipline if they dis-
cuss a union at any time at our facility.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
AVENUE CARE AND REHABILITATION CENTER