WOODCREST HEALTH CARE CENTER

National Labor Relations Board - Board Decisions

Feb 27, 2014

360 N.L.R.B. 415 (N.L.R.B. 2014)

WOODCREST HEALTH CARE CENTER 415
360 NLRB No. 58
Woodcrest Health Care Center and 1199 SEIU, Unit-
ed Healthcare Workers East. Case 22–CA–
083628
February 27, 2014
DECISION AND ORDER
BY MEMBERS HIROZAWA, JOHNSON, AND SCHIFFER
On April 2, 2013, Administrative Law Judge William
Nelson Cates issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party each filed an-
swering briefs, and the Respondent filed reply briefs. In
addition, the General Counsel and the Charging Party
each filed cross-exceptions, and the General Counsel
filed a supporting brief, which the Charging Party joined.
The Respondent filed an answering brief to the General
Counsel’s and the Charging Party’s cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,2 and conclusions
except as modified below, and to adopt the recommend-
ed Order as modified below.3
We agree with the judge, for the reasons he states, that
the Respondent violated Section 8(a)(1) of the Act by
coercively interrogating employees both during the Un-
ion’s campaign to organize employees at the Respond-
ent’s rehabilitation and nursing facility and after the Un-
ion’s certification as the employees’ bargaining repre-
sentative.4 We also affirm the judge’s findings, for the

1 The Respondent has set forth certain procedural arguments, in-
cluding that the complaint is ultra vires because the former Acting
General Counsel did not lawfully hold office at the time he directed that
the complaint issue. The Respondent’s argument that the Acting Gen-
eral Counsel lacked the authority to issue the complaint is rejected. The
Acting General Counsel was properly appointed under the Federal
Vacancies Reform Act, 5 U.S.C. § 3345. Thus, the complaint is not
subject to attack based on the Respondent’s arguments concerning the
circumstances of his appointment.
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.
3 We shall modify the judge’s recommended Order to require the
Respondent to compensate employees for the adverse tax consequenc-
es, if any, of receiving lump-sum backpay awards and to file a report
with the Social Security Administration allocating the backpay awards
to the appropriate calendar quarters for each employee. We shall sub-
stitute a new notice to conform to the Order as modified.
4 There are no exceptions to the judge’s dismissal of the allegation
that the Respondent violated Sec. 8(a)(1) by soliciting grievances with
an implied promise to remedy them.
reasons set forth in his decision, that the Respondent vio-
lated Section 8(a)(1) and (3) of the Act by announcing
and implementing a reduction in healthcare premiums
and copays for all employees except those who were
eligible to vote in the representation election. For the
reasons that follow, however, we reverse the judge’s
dismissal of the allegation that the Respondent violated
Section 8(a)(1) by creating the impression that employ-
ees’ union activities were under surveillance.
I.
As fully recounted by the judge, Assistant Director of
Recreation Vladamir Guerrero and certified nursing as-
sistant Jeffrey Jimenez had two conversations about the
union organizing drive.
The first conversation occurred in late July or early
August 2012. Jimenez, an active union supporter, told
Guerrero that the Union was planning several events in
August in connection with the organizing drive, and he
volunteered that “if management would have listened to
their employees, the Union would never be here.” Guer-
rero responded, “I heard your name; your name has been
popping out a lot.”
The second conversation occurred after Jimenez was
quoted in an August 24, 2012, New Jersey Record article
about the union campaign. The newspaper article quoted
Jimenez as stating that he would like to see certain im-
provements in his working conditions and that “the Un-
ion can make things better for the workers and for the
patients.” Shortly after the article was published, Guer-
rero commented as Jimenez passed him in the lunch-
room, “Oh, it’s the famous boy.” Jimenez then followed
Guerrero to an office, where Guerrero informed him that
the director of nursing had removed copies of the news-
paper containing the article from the lobby of the facility,
distributed a memorandum regarding the article to other
members of management, and mentioned Jimenez by
name several times at a management meeting. Jimenez
testified that Guerrero then told him to “just watch [your]
back, be careful, careful about what you say . . . do what
you have to do, come to work early, and then just . . . do
your job and go home.” Guerrero did not deny warning
Jimenez to “watch [his] back” and, in fact, admitted that
he told Jimenez, “friend to friend” to “tone it down a
little bit” and to “keep it under wraps” because he “felt
like it [was] not [Jimenez’] best approach to get extra
attention and put his beliefs on everyone else.”

Member Johnson finds it unnecessary to pass on whether the Re-
spondent violated Sec. 8(a)(1) by interrogating employees Jeffrey
Jimenez and Donna Duggar. In his view, those findings are cumulative
and do not affect the remedy.
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II.
In dismissing the allegation that Guerrero’s comments
created an impression of surveillance, the judge heavily
weighed Jimenez’ status as “a very visible and vocal
supporter of the Union” who “considered his support of
the Union to constitute social activism for all to ob-
serve.” The judge also emphasized that there was no
evidence Jimenez tried to hide his support for the Union.
Reasoning that an employer’s passive observation of
employees engaged in open Section 7 activity does not
violate Section 8(a)(1), the judge found that Guerrero’s
comments that Jimenez’ name had been “popping out a
lot,” that Jimenez was “famous,” that the director of
nursing had reviewed the newspaper article and sent a
memorandum to managers about it, and that Jimenez had
been mentioned several times at a management meeting,
would not cause Jimenez or other employees to reasona-
bly assume that their union activities had been placed
under surveillance. The judge, however, did not address
Jimenez’ uncontradicted testimony that Guerrero warned
him to “watch [his] back, be careful, careful about what
you say . . . do what you have to do, come to work early,
and then just . . . do your job and go home,” or Guerre-
ro’s testimony that he advised Jimenez to “tone it down a
little bit,” and to keep his views about the Union “under
wraps.”
III.
The testimony overlooked by the judge is highly sig-
nificant, and it leads us to a different conclusion. Guided
by precedent, we find that Guerrero’s statements that
Jimenez should “watch [his] back, be careful,” “tone it
down,” and “keep it under wraps,” would reasonably
cause Jimenez to assume that his union activities were
under surveillance by the Respondent. In Golden Steve-
doring Co., 335 NLRB 410, 416 (2001), a supervisor
told an employee, in the context of a discussion about the
union, that the employee should “watch [his] back, to
watch it close, that they will be out to get [him].” The
Board found that this statement created an unlawful im-
pression of surveillance because it implied that the em-
ployer would monitor the employee’s future union activi-
ty and would reasonably be understood as a warning that
if the employee continued to engage in such activity,
“they” would “get him.” Likewise, in Flexsteel Indus-
tries, 311 NLRB 257, 257–258 (1993), the Board found
that a manager’s repeated statements to an employee that
the manager had heard “rumors” of the employee’s pro-
tected activity created an impression of surveillance, as
they indicated that the employer was closely monitoring
the degree and extent of the employee’s union activities.
In so finding, the Board rejected the argument that the
friendly relationship between the manager and the em-
ployee militated against finding a violation, noting that,
in the context of the friendship, the manager’s statement
“would reasonably convey a warning to [the employee]:
‘Be careful. Management’s watching you.’” Id. at 258
fn. 5.
Similarly, here, Guerrero’s comments would reasona-
bly be understood by Jimenez as a warning that the Re-
spondent was moving from routine observation to closely
monitoring the degree and extent of his union activity,
open or not, and if he continued to engage in such activi-
ty, he could face reprisals.5 Accordingly, we reverse the
judge and find that the Respondent, through Guerrero,
created the impression of surveillance in violation of
Section 8(a)(1).6
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3.
“3. By interrogating its employees about their union
membership, activities, and sympathies; by creating the

5 In the circumstances of this case, contrary to our dissenting col-
league, it is immaterial whether Jimenez initiated the conversations (a
matter about which there is some uncertainty), that Guerrero was not
Jimenez’ immediate supervisor, and that the two men had a friendly
relationship. See Seton Co., 332 NLRB 979, 980, 993 (2000) (judge,
affirmed by the Board, held that supervisor’s well-intentioned advice to
a long-time friend whom he did not supervise created an unlawful
impression of surveillance, explaining that “[i]f anything, such friend-
ship would only add to the weight of the impression” that management
was surveilling employees’ union activities); see also Trover Clinic,
280 NLRB 6, 6 fn. 1, 7 (1986) (finding that supervisor’s advice to
“keep a low profile” and “be quiet with it,” referring to an employee’s
organizing activity, was unlawful, despite the friendly relationship
between the individuals and the fact that it was the employee who first
interjected the union into the conversation). Our dissenting colleague is
correct that cases of this kind turn on the totality of the circumstances,
and, in our view, those circumstances would cause a reasonable em-
ployee to perceive that his protected activities were under close and
hostile scrutiny.
6 Member Johnson would adopt the judge’s dismissal of this allega-
tion. In his view, Guerrero’s comments did not create an unlawful
impression of surveillance because they suggest only routine observa-
tion by the Respondent of Jimenez’ open and public union activity, not
close monitoring. Indeed, Jimenez was an open and active union sup-
porter whose activities (e.g., discussing the Union in a newspaper inter-
view) were well known in the workplace. Further, Guerrero did not
supervise Jimenez, but the two men had a friendly relationship.
Jimenez appears to have initiated with Guerrero the two conversations
concerning the Union, both of which occurred after Jimenez began
openly supporting the Union. Member Johnson disagrees with the
majority’s claim that “it is immaterial whether Jimenez initiated the
conversations . . ., that Guerrero was not Jimenez’ immediate supervi-
sor, and that the two men had a friendly relationship.” The cases cited
by the majority here unremarkably indicate that a supervisor’s state-
ments can still be found coercive within a totality-of-circumstances
analysis that includes these factors, not that the factors are immaterial
to the analysis. See, e.g., Thrashers Furniture, 286 NLRB 547, 547
(1987) (no impression of surveillance where manager “did not threaten
or interrogate or even initiate the conversation” with employee.)
WOODCREST HEALTH CARE CENTER 417
impression that employees’ union and other protected
concerted activities were under surveillance; and by an-
nouncing a reduction of healthcare premiums and copays
to all employees except those who were eligible to vote
in the representation election, the Company violated Sec-
tion 8(a)(1) of the Act.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, 800
River Road Operating Company LLC d/b/a Woodcrest
Health Care Center, New Milford, New Jersey, its offic-
ers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 1(b) and reletter
the subsequent paragraphs:
“(b) Creating the impression that employees’ union
and other protected concerted activities are under surveil-
lance.”
2. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
“(b) Compensate employees for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
and file a report with the Social Security Administration
allocating the backpay awards to the appropriate calendar
quarters for each employee.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively interrogate you regarding
your union membership, activities, and sympathies.
WE WILL NOT create the impression that your union
and other protected concerted activities are under surveil-
lance.
WE WILL NOT announce and implement a reduction in
healthcare premiums and copays that excludes employ-
ees eligible to vote in the representation election.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL implement the January 1, 2012, reduction in
healthcare premiums and copays for our unit employees
who were eligible to vote in the representation election
but were specifically excluded from those benefits.
WE WILL make whole those unit employees who were
eligible to vote in the representation election but were
specifically excluded from the reduction in healthcare
premiums and copays available to our other employees.
WE WILL compensate our employees for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and WE WILL file a report with the Social Securi-
ty Administration allocating the backpay awards to the
appropriate calendar quarters for each employee.
800 RIVER ROAD OPERATING COMPANY, LLC,
D/B/A WOODCREST HEALTH CARE CENTER
Marguerite R. Greenfield, Esq., for the Acting General Coun-
sel.1
Jedd Mendelson, Esq. and James M. Monica, Esq., for the Re-
spondent.2
Katherine H. Hanson, Esq., for the Charging Party.3
DECISION
STATEMENT OF THE CASE
WILLIAM NELSON CATES, Administrative Law Judge. This
case was tried in Newark, New Jersey, on February 5, 2013.4
The Union filed a charge initiating this matter on June 18
(thereafter amended), and the Acting General Counsel issued a
first amended complaint on December 20. The Government
alleges the Company, at various dates from February through
August, engaged in acts of interference with its employees
protected rights in violation of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act).
The Company, in its answer to the complaint, and at trial,
denies having violated the Act, in any manner set forth in the
complaint.
The parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to file briefs. I carefully observed the demeanor of

1 I shall refer to counsel for the Acting General Counsel as counsel
for the Government and to the National Labor Relations Board (the
Board) as the Government.
2 I shall refer to counsel for the Respondent as counsel for the Com-
pany and I shall refer to the Respondent as the Company or coopera-
tive.
3 I shall refer to counsel for the Charging Party as counsel for the
Union and I shall refer to the Charging Party as the Union.
4 All dates are 2012, unless otherwise indicated.
418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the witnesses as they testified and I rely on those observations
in making credibility determinations here. I have studied the
whole record, and based on the detailed findings and analysis
below, I conclude and find the Company violated the Act in
certain of the matters alleged in the complaint.
Findings of Fact
I. JURISDICTION, SUPERVISORY/AGENCY STATUS,
AND LABOR ORGANIZATION STATUS
The Company is a New Jersey limited liability corporation,
with an office and place of business in New Milford, New Jer-
sey, where it is engaged in the business of operating a rehabili-
tation and nursing facility. During the 12-month period ending
December 20, the Company, in conducting its operations, de-
rived gross revenues in excess of $100,000 and purchased and
received at its New Milford, New Jersey facility, goods and
supplies valued in excess of $50,000 directly from points out-
side the State of New Jersey. The parties admit, and I find, the
Company is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
It is admitted that, at all times material herein, Assistant Di-
rector of Nursing Ansel Vijayan (Assistant Director of Nursing
Vijayan or Vijayan), Assistant Director of Recreation Vladamir
Guerrero (Assistant Director of Recreation Guerrero or Guerre-
ro), and, Supervisor Janet Lewis (Supervisor Lewis or Lewis)
are supervisors and agents of the Company within the meaning
of Section 2(11) and (13) of the Act.
The parties admit, and I find, the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
In addition to calling seven witnesses, the parties stipulated
to the following background and other related facts:
On January 23, 2012, 1199 SEIU, United Healthcare Workers
East (“Union”), filed a petition in Case 22–RC–073078 for an
election for a unit of approximately 200 employees of 800
River Road Operating Company, LLC d/b/a Woodcrest
Health Care Center (“Employer” or “Woodcrest”). An elec-
tion was conducted on March 9, 2012. Respondent filed ob-
jections to the election. On January 9, 2013, the Board issued
a Decision and Certification of Representative, which is re-
ported at 359 NLRB No. 58 [sic] (2013).5
A. Issues and Related Facts
The complaint alleges the Company engaged in various vio-
lations of Section 8(a)(1) and a violation of Section 8(a)(3) of
the Act. I address each allegation, setting out the paragraph
number and allegation(s) as they appear in the complaint.
I note the standard in determining whether employer conduct
violates Section 8(a)(1) of the Act is based on whether state-
ments, found to be made to employees, reasonably tend to in-
terfere with the free exercise of employee rights under the Act.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
In keeping with the above, I first address the specific 8(a)(1)
allegations as set forth below.

5 The correct citation is 359 NLRB 522.
1. Complaint allegations related to Assistant Director
of Nursing Vijayan
It is alleged at paragraph 6 of the complaint the Company
through Assistant Director of Nursing Vijayan, in February and
March, unlawfully interrogated employees about their union
membership, activities, and sympathies; and, in February un-
lawfully solicited grievances from unit employees and implied-
ly promised to remedy those grievances.
a. The Government’s evidence
Certified nursing assistant, Judith Dolcine (Dolcine), was
hired by Assistant Director of Nursing Ansel Vijayan and be-
gan working in October 2004. Dolcine was employed during
the representation election campaign at the Company. She was,
however, discharged after the 2012 union election. Dolcine
testified she was at a nursing station on the third floor in Febru-
ary when Vijayan approached asking to speak with her in a
vacant patient room nearby. Vijayan gave Dolcine a flyer read-
ing “don’t vote union.” Dolcine testified Vijayan asked if
someone from the Union had visited her at her home; she told
him no one had. According to Dolcine, Vijayan then asked if
anyone had telephoned her, and, she again responded no. Dol-
cine told Assistant Director of Nursing Vijayan she was with
the Union. Dolcine testified Vijayan then asked why she need-
ed the Union. She said she needed someone to back her up
when something happened or she was fired. Vijayan told her
that was not going to happen. Dolcine told Vijayan she was
part of a union at her very first job. Vijayan asked Dolcine how
much the union, at that location, took from her paycheck in
dues. Dolcine could not remember and Vijayan walked away.
b. Company evidence
Vijayan has been assistant director of nursing since 2003.
He hired and trained Dolcine as a certified nursing assistant.
Vijayan explained Dolcine needed additional training because
she did not speak much English so he “kept her under [his]
wing,” spoke up for her following her first, not so great, evalu-
ation, and had a good rapport with her.
Vijayan became aware of the union organizing campaign at
the facility around the beginning of 2012. Vijayan said man-
agement trained the managers on what they could do and say
regarding the Union. He explained they could not threaten,
interrogate, make promises to, or spy on employees. Vijayan
distributed, to seven or eight employees, including Dolcine, a
flyer about union dues captioned “Do You Really Want To Pay
1199 SEIU Dues and Assessments?” Vijayan testified that on
the one occasion when he passed out the union-related flyer he
gave a copy to Dolcine. Vijayan said Dolcine then asked to
speak with him. Vijayan testified Dolcine asked what he
thought about the Union. Vijayan told Dolcine he had never
been a union member and if he was voting he would not vote
for the Union. Dolcine asked how much union dues would be.
Vijayan told her he did not know but added he did know there
would definitely be dues payments. Dolcine told Vijayan she
had been in a union at a factory where she previously worked
and asked additional questions about union dues. Vijayan spe-
cifically denied asking Dolcine why she wanted a union. He
said Dolcine did ask if a union would be good for the employ-
WOODCREST HEALTH CARE CENTER 419
ees and he told her he could not answer that question and ended
their conversation.
c. Credibility determinations, analysis, and conclusions
Although Dolcine did not appear fully comfortable testifying
in English, I am nonetheless persuaded she did so truthfully.
She impressed me as a sincere witness attempting to testify
truthfully. I credit her testimony. I do not rely on any testimo-
ny of Assistant Director of Nursing Vijayan that contradicts
Dolcine’s testimony.
The applicable test for determining whether questioning an
employee constitutes unlawful interrogation is the totality-of-
the-circumstances test adopted by the Board in Rossmore
House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employ-
ees Union Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).

In
analyzing alleged interrogations under the Rossmore House
test, it is appropriate to consider what have come to be known
as “the Bourne factors,” so named because they were first set
out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). Those
factors, briefly described, call for an examination or considera-
tion of the background of the interrogation; the nature of the
information sought; the identity of the questioner; the place and
method of the interrogation; and, the truthfulness of any reply.
These and other relevant factors are not to be mechanically
applied in each case. Determining whether employee question-
ing violates the Act does not require a strict evaluation of each
of the Bourne and other factors. Stated differently, the Bourne
criteria are not prerequisites to a finding of coercive question-
ing, but rather are useful indicia that serve as a starting point for
assessing the “totality of the circumstances.” That the interro-
gation might be courteous and/or low keyed instead of boister-
ous, rude, and profane does not alter the case.
The credited testimony establishes a high-level manager,
namely, Assistant Director of Nursing Vijayan, approached unit
employee Dolcine, a certified nursing assistant at her work-
station while she was on duty and asked to speak with her pri-
vately. Vijayan gave Dolcine a “don’t vote union” flyer and
asked if someone from the Union had visited or telephoned her
at her home. Dolcine answered no to both questions, but, said
she was with the Union. Assistant Director of Nursing Vijayan
then asked why she needed the Union. Dolcine explained she
needed someone to back her up when something happened or
she was fired. Vijayan told her that was not going to happen.
The totality of the circumstances surrounding the questioning
here persuades me it constituted unlawful interrogation. A
high-level manager takes an employee away from her work
duties to give her an antiunion flyer while asking about her
union activities including why she needed a union. This en-
counter is one, among other, unlawful actions by supervisors
and agents of the Company at about the same timeframe. I find
the Company, through Assistant Director of Nursing Vijayan
unlawfully interrogated employee Dolcine about her union
activities, sympathies, and desires in violation of Section
8(a)(1) of the Act.
I find a lack of evidence in the exchange between Vijayan
and Dolcine that would constitute an unlawful solicitation of
grievances with an implied promise to remedy same. I dismiss
this portion of this complaint allegation.
2. Complaint allegations related to an unnamed
company attorney
It is alleged at paragraph 7 of the complaint the Company, in
March, through its unnamed attorney unlawfully interrogated
its employees about their union membership, activities, and
sympathies, and the union membership, activities, and sympa-
thies of other employees. At trial the unnamed company attor-
ney was acknowledged to be James Monica.
a. The Government’s evidence
Certified nursing assistant Jeffrey Jimenez testified that
about 2 weeks after the March 9 representation election at the
Company, his supervisor, Margarita (not further identified),
told him, while he was doing patient care, the director of nurs-
ing wanted to see him in her office. After finishing patient
care, Jimenez went to the director of nursing’s office; however,
she was not there, but, Company Attorney Monica was. Mon-
ica told Jimenez he was a lawyer for the Company and was
investigating whether there had been objectionable conduct by
supervisors who may have engaged in activities in favor of the
Union. Monica told Jimenez his participation in the investiga-
tion was completely voluntary. According to Jimenez, Monica
gave him a document asking him to read and sign it, which
Jimenez did. Monica first asked Jimenez how long he had
worked for the Company and then continued to question him
further. Jimenez testified Monica asked if he knew certain
supervisors, namely; Israel DeDios from housekeeping, Benita
Thorton and Janet Lewis from night shifts and former adminis-
trator, Lorri Senk. Jimenez acknowledged knowing each of
them. Monica asked if supervisors were involved with the
Union; if they passed out union cards; and, if any influenced
him in any way to change his vote during the election. Jimenez
answered no to each of the questions. Jimenez testified Attor-
ney Monica then asked, “[I]f any union representative came to
knock on your house” and “[I]f I knew any employees who
were involved in a union or passing out cards as well.”
Jimenez told Monica, “[H]e knew employees who had but,
could not give their names for confidential reasons.” Accord-
ing to Jimenez, Monica then asked if he (Jimenez) signed a
card for the Union. Jimenez could not recall anything else
being said and that he left the meeting. After walking toward
the building’s front lobby, Jimenez returned to the room where
he had met with Attorney Monica and asked for the document
he had, at Monica’s request, signed at the beginning of their
meeting. According to Jimenez, Monica first said he could not
give it to him but then did. Jimenez tore up the document and
threw it in the garbage.
The form type document Jimenez signed and later destroyed
follows:
TO: ALL WOODCREST HEALTH CARE CENTER
EMPLOYEES
I am James M. Monica, the Center’s attorney.
The only purpose I have in interviewing you is to in-
vestigate whether any objectionable conduct occurred in
connection with the election held here at Woodcrest on
March 9, 2012 and the events leading to that election dur-
ing the previous weeks and months.
420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Your participation in this investigation is strictly vol-
untary.
Your participation or lack of participation in this in-
vestigation will not in any way affect your job or your
rights as an employee.
We are not interested in determining whether you are
for or against the Union or if, or how, you voted in the
election.
We positively assure you that you have the right to
join or not to join any labor organization without fear of
reprisals.
We are interested only in the truth.
If you agree to participate in this investigation, would
you please sign your name below to show that you have
read this page.
Name: _____________________________________
Date: ______________________________________
Jimenez acknowledged he read and understood the document
before signing it and never at any time advised Attorney Mon-
ica he wanted to stop the interview or no longer wished to
speak with Monica. Jimenez said his conversations with Mon-
ica were cordial with no raised voices.
Jimenez could not recall Monica saying he was not interested
in how Jimenez had voted, or that he was not interested in the
names of employees who might have engaged in conduct in
support of the Union, nor, of Monica saying whatever opinion
he had about a labor union at the Company was of no im-
portance.
Approximately 5 days after his first meeting with Company
Attorney Monica, Jimenez again met with him. On this occa-
sion, Jimenez was again performing patient care when his su-
pervisor informed him Attorney Monica wanted to see him
again in the conference room. The two met alone. According
to Jimenez, Monica said he did not believe Jimenez’ answers
during their first exchange and wanted to give him a second
chance. Jimenez testified Monica asked some of the same
questions as before, namely, if he knew former administrator,
Lorri, and Supervisors Israel, Janet, and Bonita. Monica then
asked if Jimenez knew what a union authorization card was,
and, told Jimenez he was interested in whether supervisors
distributed union authorization cards. Jimenez testified Monica
then asked why he wanted to form a union. Jimenez told Mon-
ica for better benefits, insurance, wages, less patient load, and a
voice in the Company. Jimenez also told Monica that whatever
Monica had asked management to do, they were doing it, that
they did their jobs, and that management representatives had
told employees “not to vote for the union” that “the union is
bad” and “when we go, vote no.” Jimenez told Monica he
made $8.25 an hour cleaning up after people and could make
that at Burger King and that the Company should be spending
its money to help their employees rather than paying lawyers
like him. Jimenez told Monica other institutions paid their
certified nursing assistants more than the Company and it was
hard for families to make ends meet on the money the Compa-
ny paid its certified nursing assistants.
b. Company’s evidence
Company Attorney Monica testified he visited the company
facility sometime after the union representation election “to
investigate whether any objectionable conduct occurred in con-
nection with the election.” Monica personally interviewed
about 40 to 60 of the 100 to 150 employees interviewed and
explained some of those he interviewed were election unit em-
ployees. Monica testified that before he interviewed each em-
ployee, including Jimenez, he explained their rights under
Johnnie’s Poultry Co., 146 NLRB 770 (1964), and had each
sign a statement acknowledging their rights. Jimenez signed
such a statement. Monica said that about 5 of the 10 minutes
he spent with Jimenez, in their first interview, was taken up
explaining Jimenez’ rights to him. Monica said he did not use a
script when explaining employee rights and in conducting his
interviews. Monica testified he gave Jimenez, and every em-
ployee he interviewed, an assurance he would assume any in-
formation they provided was based on something they had
heard from other employees and he would specifically assume
it was not anything the employee had said or participated in
themselves.
Monica testified he asked Jimenez “about union representa-
tives visiting election employees at their homes,” “about union
representatives telling employees prior to the election that the
election was cancelled and that they would not need to report to
vote.” Monica also asked questions about any union attempts
to suppress the vote. Monica said he asked Jimenez about any
campaign activities by Supervisors Bonita Thorton, Israel
DeDios, Jane Cordero, and Janet Lewis. Monica denied asking
Jimenez about his own union activities or even if he engaged in
such activities or what kind of union activity other employees
engaged in. Monica denied asking Jimenez to identify employ-
ees who signed union authorization cards or asking any em-
ployee how he or she voted.
Monica testified Jimenez appear very comfortable speaking
with him and that Jimenez viewed Monica as someone that had
good rapport with company management. Monica said Jimenez
volunteered he made $8.25 an hour “to wipe people’s butts,
except he didn’t use the word butts, and that he could make that
kind of money working at Burger King. And that it was his
opinion that the Company should spend its resources on its
employees and not on paying lawyers such as myself.”
c. Credibility determinations, analysis, and conclusions
I credit certified nursing assistant Jimenez’ testimony that af-
ter Company Attorney Monica asked him about any involve-
ment by supervisors passing out union signature cards and try-
ing to influence Jimenez’ vote in any way Monica then turned
to questions regarding union representatives coming to
Jimenez’ home and if he knew any employee who had been
involved with the Union or passing out cards as well. Jimenez
told Monica he could not give him the employees’ names for
confidential reasons. Company Attorney Monica then asked
Jimenez if he signed a card for the Union.
While Monica’s initial purpose for meeting with Jimenez
may have been for permissible reasons and I note, Monica even
gave Jimenez certain assurances, both verbally and in writing
WOODCREST HEALTH CARE CENTER 421
about his rights, he went beyond the permissible into unlawful
interrogation of Jimenez. Based on Monica’s stated purpose
for the meeting with Jimenez, he had no valid justification or
permissible basis for asking Jimenez about his personal union
activities or the union activities of other unit employees. I so
find such questioning by Monica violates Section 8(a)(1) of the
Act.
At his second meeting with Jimenez, Monica told Jimenez he
was not satisfied with Jimenez’ answers at their first meeting
and was giving him a second chance by asking a number of the
same questions regarding supervisors as he had asked before
and then proceeded to go further. Monica asked Jimenez why
he wanted to form a union. This inquiry crossed the line from
permissible investigation of any possible supervisory miscon-
duct during the union election to an unlawful inquiry into
Jimenez’ union activities and I so find.
3. Complaint allegations related to Assistant Director
of Recreation Guerrero
It is alleged at paragraph 8 of the complaint the Company
through Assistant Director of Recreation Guerrero created an
impression among its employees their union activities were
under surveillance by the Company.
a. The Government’s evidence
Certified nursing assistant Jimenez testified about various
union activities at the facility in August. He explained union
“tee” shirts were distributed across the street from the Compa-
ny; union flyers were given out; prounion marches and rallies
were held; and, various articles appeared in the online New
Jersey Record newspaper. On August 24, an online article in
the Record addressed the Union’s push for bargaining rights at
the Company. In the article Jimenez was quoted, “Jeffery
Jimenez, a certified nursing assistance who has worked at . . .
Woodcrest . . . in New Milford for three years, said he would
like to see a boost in his $10-an-hour wage, better benefits and
a lighter case load.” Jimenez was also quoted as saying he
thought “the Union can make things better for the workers and
for the patients.”
Jimenez said he viewed his activities on behalf of the Union
as social activism and was pleased to give an interview to the
New Jersey Record reporter about his activities. Jimenez said
he openly supported the Union at the time of the newspaper
article. Additionally, he said he participated in union rallies at
New York University (NYU) as well as in a march from NYU
to the corporate headquarters. Jimenez testified he “assisted a
representative of the Union in giving out tee shirts before the
article was published” and established the date of that activity
as “early August, perhaps late July.” Jimenez said both of his
conversations with Assistant Director of Recreation Guerrero
occurred after he had already openly supported the Union at the
facility. Jimenez said he knew management may well have
been aware of his open support for the Union at the time.
Jimenez had two conversations with then-Assistant Director
of Recreation Vladamir Guerrero in August. Jimenez told
Guerrero that “if management would have fixed the problem
already, if management would have listened to their employees,
the union would never be here and this mess will never hap-
pen.” According to Jimenez, Guerrero said, “I heard your
name; your name has been popping out a lot.” Jimenez told
Guerrero he knew his rights, and, nobody could do anything to
him just because he supported of the Union. Jimenez testified,
on direct examination, that at the time of his first conversation
with Guerrero he had not participated in passing out union fly-
ers or T-shirts at or near the company facility. On cross-
examination, Jimenez said he helped give out T-shirts for the
Union in late July or early August.
Jimenez said that near the end of August he came into the
recreation department at the Company to bring his sister, a
fellow employee, lunch when Guerrero entered the department
and said, “Oh, it’s the famous boy” and proceeded on to his
office. Jimenez followed Guerrero. Guerrero told Jimenez
management had seen the newspaper article quoting Jimenez
and “they’re pretty pissed about it.” Jimenez testified Guerrero
said Director of Nursing Eileen went to the front lobby and
“grabbed all the newspapers” and put them in her office. He
said the director of nursing and the company administrator sent
a memorandum to management personnel inviting them to
review Jimenez’ newspaper comments and then held a man-
agement meeting. Jimenez testified Guerrero told him his
name was mentioned a couple of times in the meeting and ad-
vised Jimenez; “just to watch my back, be careful, careful about
what you say, you know, do what you have to do, come to work
early, and then just, you know, do your job and go home.”
Jimenez told Guerrero okay and left Guerrero’s office.
b. The Company’s evidence
Assistant Director of Recreation Guerrero testified he and
Jimenez were friendly coworkers and added he never super-
vised Jimenez; however, he supervised Jimenez’ sister. Guer-
rero said he had two conversations, probably in August, with
Jimenez about the union organizing drive. Guerrero testified
Jimenez was having a conversation with his sister during her
lunchtime when he (Guerrero) walked into the area in route to
his office. Guerrero said Jimenez followed him into his office
and asked his thoughts about the union situation. Guerrero told
Jimenez he had always been neutral as far as the Union and the
Company were concerned. Guerrero told Jimenez he was
aware Jimenez had been quoted in a newspaper article about
the Union and talked to Jimenez on a “person-to-person” basis
and as “friend-to-friend” rather than as a “manager to employ-
ee.” Guerrero testified, “So I basically shared with him my
sentiments as far as him just trying to not get as much attention
as he is getting. And that was basically my part in the conver-
sation.” Guerrero said he “felt like it was not his [Jimenez’]
best approach to get extra attention and put his beliefs on eve-
ryone else.” Guerrero said he was not involved in the represen-
tation election at the Company and was never included in train-
ing for managers about the campaign and was not involved in
pamphleting adding “basically, I was left out.” Guerrero testi-
fied he did not tell Jimenez the views of other managers con-
cerning Jimenez.
Guerrero testified about the second occasion, in front of the
Company facility, when Jimenez spoke with him about the
union organizing campaign. Guerrero was taking a smoke
break and observed a union representative in the residence
422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
parking lot across the street giving out union T-shirts. Guerrero
testified Jimenez approached and “asked me do you think I
should go over there?” Guerrero replied, “I said you can do
what you want. And once again reiterated to him just don’t get
extra attention.” Guerrero denied saying anything to Jimenez
about other managers’ impressions of him.
The Board’s test for determining whether an employer has
created an impression of surveillance of its employee’s activi-
ties is whether an employee would reasonably assume from the
statement(s) in question his or her union activities have been
placed under surveillance. The Board does not require employ-
ees to attempt to keep their activities secret before an employer
can be found to have created an unlawful impression of surveil-
lance. Additionally, the Board does not require that an em-
ployer’s words on their face reveal the employer acquired its
knowledge of the employee’s activities by unlawful means.
The idea behind finding an impression of surveillance as a vio-
lation of Section 8(a)(1) of the Act is that employees should be
free to participate in union organizing campaigns without the
fear that members of management are peering over their shoul-
ders, taking note of who is involved in union activities, and in
what particular ways. Tres Estrellas de Oro, 329 NLRB 50, 51
(1999), Flexsteel Industries, 311 NLRB 257 (1993).
c. Credibility determinations, analysis, and conclusions
As indicated elsewhere in this decision, I find Jimenez gen-
erally to be credible. I am persuaded, however, the credited
evidence here fails to establish Guerrero created an impression
Jimenez’, or other employees, union activities were under un-
lawful surveillance by the Company. First, Jimenez was a very
visible and vocal supporter of the Union. He participated in
rallies, and marched for the Union to the Company’s headquar-
ters. The level of participation by Jimenez in union activities
does not, on this record, appear to have been exceeded by other
unit employees. In fact, Jimenez considered his support of the
Union to constitute social activism for all to observe and for
which he was proud. There is no evidence Jimenez tried to
hide his support for the Union. Management may observe open
union activity on its promises by its employees, such as
Jimenez here, without engaging in unlawful surveillance.
Second, I do not find the Company, and specifically Assis-
tant Director of Recreation Guerrero’s statements to Jimenez to
demonstrate Guerrero was more closely monitoring or observ-
ing Jimenez’ actions such as to constitute an unlawful impres-
sion of surveillance. Finally, what happened here in the first
conversation between Jimenez and Guerrero is Jimenez spoke
with Guerrero about the Union telling him that if the Company
had listened to its employees and fixed the problems the Union
would never have been at the Company and “this mess” would
never have happened. Guerrero had observed, heard, and read
of Jimenez’ open union activities and told Jimenez his name
was popping up a lot, which Jimenez could not deny. In the
second meeting between Jimenez and Guerrero, Guerrero’s
comment to Jimenez that he was famous does not establish
Guerrero was observing or monitoring him or his activities
more closely, he was just stating an observation. The fact the
Company reviewed a newspaper article that made reference to
Jimenez and sent a memorandum to managers about Jimenez
and the newspaper article, or that management mentioned a
self-described social activists at a management meeting, does
not establish the Company, or Guerrero in particular, engaged
in actions that would cause employees to reasonable assume
their union activities were under unlawful surveillance. I shall
dismiss this complaint allegation.
4. Complaint allegations related to Supervisor Lewis
At the beginning of the trial, I granted the Government’s mo-
tion to amend the complaint to add an allegation that between
January 23 and March 9, Supervisor Janet Lewis unlawfully
interrogated employees about their union membership, activi-
ties, and sympathies.
a. The Government’s evidence
At trial the Government introduced portions of the official
transcript in a related underlying representation case, Case 22–
RC–073078. The portion of transcript received in evidence
contains Lewis’ testimony given on May 12. Counsel for the
Government, here, relies exclusively on Lewis’ representation
testimony in support of the amendment to the complaint. Lew-
is’ representation testimony reflects she and Donna Duggar,
were friends as well as coworkers, and that Lewis mentored and
trained Duggar. The transcript reflects Lewis, after being pro-
moted to management on February 5, attended company man-
agement meetings at which the Union was discussed generally
and whether certain employees supported the Union specifical-
ly. The record reflects Lewis was told by a company lawyer
that Duggar supported, or was in favor of, the Union. Lewis
was surprised by the comment and following the meeting locat-
ed Duggar asking her, “[A]re you in favor of the union?” Dug-
gar replied she was not. Lewis explained she knew Duggar
well enough to “ask her directly” about her support for the Un-
ion. The transcript further reflects Lewis attended the next
company management meeting, at which the Union was dis-
cussed, and reported she had contacted Duggar and Duggar was
not supporting the Union. Lewis stated some managers were
surprised while others did not seem to believe it.
b. The Company’s evidence
Supervisor Lewis testified for the Company and traced her
employment with the Company, namely, that she started as a
part-time (weekend) licensed practical nurse in 1997 and,
thereafter, became a registered nurse and was promoted in Feb-
ruary to a supervisory nurse position. Lewis trained licensed
practical nurse Duggar in “one-on-one” training, and taught
Duggar “the ropes of being a nurse.” Lewis testified she and
Duggar telephoned each other outside of work and are friends.
Lewis stated that prior to the union representation election the
Company conducted supervisor and management meetings
which she attended. She said that at one such meeting some-
one, perhaps a company attorney, Pat, mentioned Duggar was
in favor of the Union. Lewis was in “shock” and could not
believe Duggar was a member of the Union knowing what she
did about Duggar. Lewis later spoke with Duggar telling her
that her name had been brought up at the supervisors and man-
agers meeting. Lewis told Duggar, “I heard you are a member
of the—you are in favor of the Union.” Duggar responded she
WOODCREST HEALTH CARE CENTER 423
was not. Lewis said she asked Duggar about the Union, “be-
cause she is my friend and I heard she was in the Union, she
was in favor of it, so, I wanted to find out.” Lewis said no one
from management asked her to find out Duggar’s union status
and she never thereafter asked Duggar about her union senti-
ments. Lewis said she never asked any other employee about
his or her union sentiments but did report, at a company super-
visors meeting, prior to the election, that Duggar was not sup-
porting the Union.
c. Analysis and conclusions
The facts related to this allegation are not disputed. It is
clear Nursing Supervisor Lewis asked Duggar, sometime after
February 5, but before the representation election, if she was in
favor of the Union. It is clear the Company had an interest in
knowing which of its employees supported or favored the Un-
ion. It was even discussed at supervisory/management meet-
ings. A company attorney even told management representa-
tives Duggar supported the Union. Upon learning this, Super-
visor Lewis determined to specifically ascertain, if in fact,
Duggar supported the Union. After asking Duggar, point
blank, if she favored the Union, Lewis reported her findings to
management at the next supervisors meeting at which union-
related matters were discussed. Although Lewis was not a top-
level manager, she did specifically report her findings to all
management at a management meeting. It appears Duggar’s
response was truthful in that there is no showing on this record
to the contrary. The fact Supervisor Lewis may have conversed
with Duggar in a friendly manner does not somehow make her
inquiry lawfully or protected. The totality-of-the-circumstances
persuades me the interrogation was unlawful and reasonably
tends to interfere with the free exercise of employee rights un-
der the Act, and I so find.
5. Complaint allegations related to healthcare
premiums and copays
It is alleged at paragraph 9 of the complaint the Company, on
March 5 announced, and on March 23 implemented, a reduc-
tion of healthcare premiums and copays to all employees except
those who were eligible to vote in the upcoming representation
election.
In addition to stipulations set forth elsewhere herein, the par-
ties also stipulated:
Woodcrest is managed by HealthBridge Management, LLC
(“HealthBridge”). In New Jersey, HealthBridge manages
four centers. Those centers are Woodcrest, 1621 Route 22
West Operating Company, LLC d/b/a Somerset Valley Reha-
bilitation and Nursing Center (“Somerset Valley”), 600 Kin-
derkamack Road Operating Company LLC (“Oradell”), and 2
Cooper Plaza Operating Company, LLC (“South Jersey”).
Each of the 4 companies referenced in paragraph 2 provides a
common health insurance plan for its employees, which is ar-
ranged through HealthBridge. Effective January 1, 2012,
there were changes in that health insurance coverage that re-
sulted, among other things, in reduced benefits and increased
costs for all employees at Woodcrest, Oradell, and South Jer-
sey. Employees at Somerset Valley in classifications that had
not been eligible to vote in an election held on September 2,
2010 were subject to the same cost and benefit changes. As a
result of these changes, some employees of those 4 companies
changed their coverage or dropped their coverage.
In response to complaints about these changes, HealthBridge
arranged certain improvements to the common health insur-
ance plan, including a reduction in employee premiums.
These improvements applied to all employees except those
involved in a union representational campaign. At each of the
4 companies, a common memorandum announcing these im-
provements was distributed to all employees who were not el-
igible to vote in a union election. At facilities with no union
campaign, the memorandum was distributed to all employees.
The improvements were subsequently implemented, retroac-
tive to January 1, 2012, for the employees to whom the mem-
oranda were distributed.
On March 5, 2012, Lorri Senk, who was then the Administra-
tor for the Employer, directed the distribution of a memoran-
dum to all Woodcrest employees, except those eligible to vote
in the March 9, 2012 election, announcing the improvements
in the health insurance plan. A copy of that memorandum is
marked Joint Exhibit 1. The classifications identified on the
memorandum were those classifications at Woodcrest that
were not part of the election unit to which the Union and Em-
ployer had stipulated and, therefore, were not eligible to vote
in the March 9 election. The memorandum was distributed at
the Employer’s facility solely to employees who held the po-
sitions identified on the memorandum. The improvements
were implemented retroactive to January 1, 2012 only as to
the employees to whom the memorandum was distributed.
To date, the improvements referenced in Paragraph 4 have not
been implemented as to the employees within the Woodcrest
election unit.
The Employer did not announce or raise the matter of the
health insurance improvements to the election eligible em-
ployees either at communication meetings with them or oth-
erwise. When election eligible employees asked about the
health insurance improvements being applied to them, man-
agers or supervisors responded on behalf of the Employer “we
cannot discuss this matter at this time.”
Certified nursing assistant Jimenez, a self-described social
activists for the Union, and one who would like to be a shop
steward or contract negotiator for the unit employees, gave
testimony regarding changes in health insurance coverage for
all employees except those eligible to vote in the March 9 rep-
resentation election at the Company. Jimenez learned of the
changes in March when he observed a memorandum, in the
breakroom from then-Administrator Senk, dated March 5, an-
nouncing changes to the health insurance coverage for all em-
ployees except those eligible to vote in the representation elec-
tion and professional employees. Jimenez stated that “right
after the election” he attended a general monthly meeting of
employees (approximately 40–50) presided over by Senk.
Jimenez said that at the end of the meeting Senk did, as she
usually did, and asked if there were any grievances or concerns
that could be addressed. Jimenez said an employee, whom he
did not further identify, asked Senk about the insurance memo-
424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
randum applicable to those not eligible to vote in the represen-
tation election and asked if those eligible to vote could have
their health insurance coverage “looked upon” and whether
“there might be changes” on the insurance plan. Jimenez said
Senk answered that “we cannot negotiate your contract, your
benefits, your insurance because right now you are in the criti-
cal period with the Union.”
Acting Director of Nursing Chereece Steele, who served in
that capacity from the beginning of February until mid-April,
testified she attended communication sessions at which Admin-
istrator Senk spoke. Steele testified Senk did not raise with the
election-eligible employees the health benefits package for
nonelection-eligible employees, announced in March. Steele
testified that the matter of the improvement of benefits for the
nonelection-eligible employees arose when one of the election-
eligible employees mentioned they had heard the health bene-
fits were changing and wanted to know how it would affect
them. Steele testified, “Lisa Crutchfield, one of our [Company]
lawyers, told her in front of the whole audience that we were
not allowed to discuss that matter at this time.”
a. Analysis and conclusions
The facts, as fully set for above and summarized here, are
stipulated and/or un-contradicted and undisputed. The Compa-
ny is one of four nursing facilities operating in New Jersey and
managed by HealthBridge Management, LLC. All four of the
HealthBridge managed facilities are provided a common health
insurance plan arranged by HealthBridge and applicable to
employees at the four facilities. HealthBridge on January 1
made changes in the provided health insurance plan that,
among other things, reduced benefits and increased costs for all
employees including the facility at issue here. Employee dis-
satisfaction with the changes resulted in some employees drop-
ping coverage altogether with others changed their coverage.
As a result of employee dissatisfaction and complaints with the
changes to their health insurance plan, HealthBridge arranged
certain improvements to the common health plan including a
reduction in employee premiums. The cost savings and im-
provements were implemented retroactively to January 1 and
applied to all HealthBridge employees in New Jersey except
employees involved in a union representation campaign. A
common memorandum announcing the improvements was
distributed to all employees who were not or, had not been,
eligible to vote in a union election. Specifically, Company
Administrator Senk directed the common memorandum be
distributed, on March 5, to all employees at the facility here
except those eligible to vote in the March 9 union representa-
tion election. Election eligible employees at the facility here
became aware of their exclusion from the improved health in-
surance plan benefits and asked management about their exclu-
sion. Employee Jimenez testified, without contradiction, that
Company Administrator Senk told employees at a communica-
tion meeting, right after the election, regarding their health
insurance coverage “we can not negotiate, your contract,”
“your benefits,” “your insurance” “because right now you are
in the critical period with the Union.” Acting Director of Nurs-
ing Steele testified Company Attorney Crutchfield told election
eligible employees, at a communication meeting, at which non-
election employees were also present, that “we were not al-
lowed to discuss that matter at this time.”
The unit employees, to date, have not received the improved
health insurance benefits including the reduction in employee
premiums.
Did the Company violate the Act by announcing on March 5,
a reduction of healthcare premiums to all employees, sys-
temwide, except those who were eligible to vote in the upcom-
ing representation election set for March 9? Further, did the
Company violate the Act by, on March 23, implementing the
reduction of healthcare premiums to all employees, sys-
temwide, except those who were eligible to vote in the repre-
sentation election? The answer to both questions is yes. As a
general rule, an employer, in deciding whether to grant benefits
while a representation election is pending, should decide that
question as it would if a union was not in the picture. Great
A&P Tea Co., 166 NLRB 27 fn. 1 (1967). Here, the Company
addressed concerns raised by its employees, systemwide, relat-
ed to its decision to change its employees health insurance
premiums and coverage. The Company announced to all its
employees, systemwide, favorable changes to its health care
benefits except it did not announce the changes to its election-
eligible employees. The evidence establishes the Company
took the action it did, toward certain employees, because they
were not involved in a representation campaign and failed to
take action toward other of its employees specifically because
they were involved in such a campaign. The Company here did
not proceed, as the law required it to do, as though there was no
ongoing union campaign.
The withholding of systemwide benefits from employees in-
volved in union representation proceedings, as was the case
here, while granting the same benefits systemwide to employ-
ees not involved in such proceedings violates Section 8(a)(3)
and (1) of the Act. Noah’s Bay Area Bagels, LLC, 331 NLRB
188 (2000). There is an exception to this rule; however, the
Company did not avail itself of the exception. The Board de-
tailed the exception in KMST-TV, Channel 46, 302 NLRB 381,
382 (1991), citing Atlantic Forest Products, 282 NLRB 855,
858 (1987), as follows:
. . . An exception to this rule, however, is that an employer
may postpone such a wage or benefit adjustment so long as it
“[makes] clear” to employees that the adjustment would occur
whether or not they select a union, and that the “sole purpose”
of the adjustment’s postponement is to avoid the appearance
of influencing the elections outcome.
The Company’s failure to inform its unit employees its with-
holding the improved health insurance benefits from them,
benefits it had granted to its other employees systemwide that
were not in the midst of a union campaign, was temporary and
would be provided retroactively, deprived the Company of a
defense here to its failure to provide the benefits to its unit em-
ployees. The failure by the Company to grant the benefits to its
unit employees and failure to advise them the withholding was
only temporary and would be later provided leaves its unit em-
ployees with a clear impression they were deprived of these
systemwide benefits because of their Section 7 rights.
WOODCREST HEALTH CARE CENTER 425
I find the Company’s silence with respect to its denial of the
improved health insurance premiums and benefits to unit em-
ployees does not negate the unlawful discriminatory impact of
its conduct. Medical Center at Bowling Green, 268 NLRB 985
(1984).
In summary, I conclude and find the Company’s announce-
ment on March 5 and the implementation on March 23 of the
reduction of healthcare premiums and copays to all employees
except those eligible to vote in the representation election vio-
lates Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. The Company, Woodcrest Health Care Center, is an em-
ployer engaged in commerce with the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union, 1199 SEIU, United Healthcare Workers East,
is a labor organization within the meaning of Section 2(5) of
the Act.
3. By interrogating its employees about their union member-
ship, activities, and sympathies; and, by announcing a reduction
of healthcare premiums and copays to all employees except
those who were eligible to vote in the representation election,
the Company violated Section 8 (a)(1) of the Act.
4. By implementing a reduction of healthcare premiums and
copays to all employees except those who were eligible to vote
in the representational election, the Company violated Section
8(a)(1) and (3) of the Act.
REMEDY
Having found the Company has engaged in certain unfair la-
bor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act. I recommend the Company be ordered,
within 14 days after service by the Region, to post an appropri-
ate “Notice to Employees” in order that employees may be
apprised of their rights under the Act, and the Company’s obli-
gation to remedy its unfair labor practices. Having found the
Company violated Section 8(a)(1) and (3) of the Act by with-
holding the implementation of a reduction of healthcare premi-
um and copays to its unit employees effective January 1, 2012,
I recommend the Company be ordered to implement the
changed healthcare benefits and reimburse its unit employees
for losses they suffered as a result of the Company’s decision
not to provide the changed healthcare benefits to its unit em-
ployees. This recommended make-whole order shall include
out-of-pocket losses, if any, suffered by any unit employee that
had to drop health coverage because of the failure of the Com-
pany to provide the new reduced premiums and copays to its
unit employees. The amount paid to each unit employee shall
include interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6

6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
ORDER
The Company, Woodcrest Health Care Center, New Milford,
New Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their union member-
ship, activities, and sympathies; and, announcing a reduction of
healthcare premiums and copays to all employees except those
who were eligible to vote in the representation election.
(b) Implementing reductions in healthcare premiums and co-
pays that specifically excludes employees eligible to vote in the
representation election.
(c) 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) Implement the changed healthcare benefits for the unit
employees effective January 1, 2012, and make whole its unit
employees for losses they may have suffered as a result of the
Company’s failure to implement the changed healthcare bene-
fits for the unit employees in the manner set forth in the remedy
section of this decision.
(b) Within 14 days after service by the Region, post at its
New Milford, New Jersey facility, copies of the notice marked
“Appendix.”7 Copies of the notice, on forms provided by the
Regional Director for Region 22, after being signed by the
Company’s authorized representative, shall be posted by the
Company and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as
email, posting on an intranet or an internet site, or other elec-
tronic means, if the Company customarily communicates with
its employees by such means. Reasonable steps shall be taken
by the Company to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Company has gone
out of business or closed the facility involved in these proceed-
ings, the Company shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former em-
ployees employed by the Company at any time since January 1,
2012.
(c) 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
Company has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleged violations of the Act not specifically found.

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.
7 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 the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”