Kingsbridge Heights Rehabilitation

National Labor Relations Board - Administrative Judge Opinions

Jul 9, 2007

02-CA-037660 (N.L.R.B. Jul. 9, 2007)

JD(NY)–30–07
Bronx, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
KINGSBRIDGE HEIGHTS REHABILITATION
CARE CENTER
and Case Nos. 2-CA-37660
2-CA-37898
1199 SEIU, UNITED HEALTH CARE
WORKERS EAST
Nancy Slahetka, Esq., New York, NY,
for the General Counsel.
Joel E. Cohen, Esq. (McDermott, Will & Emery),
New York, NY, for the Respondent.
Hanan B. Kolko, Esq. (Meyer, Suozzi, English
& Klein, PC), New York, NY, for the Charging
Party.
DECISION
Statement of the Case
MINDY E. LANDOW, Administrative Law Judge. Based upon charges filed on May 12
and September 25, 2006,1 in Case Nos. 2-CA-37760 and 2-CA-37898 by 1199 SEIU, United
Health Care Workers East (Union), a consolidated complaint was issued against Kingsbridge
Heights Rehabilitation and Care Center (Respondent) on November 30.
The complaint alleges that Respondent violated Section 8(a)(1) of the Act by engaging in
surveillance of employees engaged in union activities by videotaping employees who were
engaged in informational picketing and by threatening to delay employees’ reinstatement to
work after they engaged in a three-day strike and made an unconditional offer to return to work.
Respondent filed an answer denying the material allegations of the complaint. On February 21,
2007, a hearing was held before me in New York, New York.
On the entire record, including my observation of the demeanor of the witnesses and
resolution of other issues regarding their credibility, as discussed below, and after considering
the briefs filed by Counsels for the General Counsel and Respondent, I make the following:
Findings of Fact
I. Jurisdiction
Respondent, a New York corporation, with an office and place of business located at
3400-26 Cannon Place, Bronx, New York, is engaged in the operation of a nursing home

1 All dates herein are in 2006, unless otherwise specified.
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providing residential nursing care to patients. Annually, in the course and conduct of its
business operations, Respondent derives gross revenues in excess of $100,000, and
purchases and receives at its Bronx, New York facility, products, goods and materials valued in
excess of $5,000 from other enterprises located within the State of New York, each of which
enterprises receives these products, goods and materials directly from points outside the State
of New York. 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.
II. Alleged Unfair Labor Practices
Background to the Instant Dispute
The Union has represented Respondent’s employees for a number of years. The most
recent collective-bargaining agreement between the parties (the Agreement) expired on April
30, 2005, and has not been extended. As of the date of the hearing, Respondent was abiding by
the terms and conditions of this expired Agreement, with the sole exception of the arbitration
provision.
It appears from the record that, commencing in about June 2005, Respondent failed to
make timely or complete payments to various benefit funds provided for in the Agreement. On
December 6, 2005, the Union filed an unfair labor practice charge with the Board regarding this
conduct. On January 1, 2006, the Union notified employees that due to Respondent’s failure to
make payments to the benefit funds, their hospital, health, prescription drug, dental and related
benefits would terminate.2
Sometime in early 2006, facility Operator Helen Sieger, together with Assistant
Administrator Solomon Rutenberg, met with Union representatives, including Executive Vice-
President Jay Sackman and Vice-Presidents Neva Shillingford and Isaac Nortey,3 to discuss
these delinquencies. Sieger had asked for a delinquency report and testified that this report
showed that Respondent was more current in its payments to the Union’s funds than other
facilities. She asked why the Union was picketing Respondent but not other facilities more in
arrears to the Union funds.4 According to Sieger, Sackman told her that it was because
Respondent had not executed a contract with the Union, while the other facilities had done so.
Sackman stated that there were contractual remedies for such delinquencies; however, as
Respondent was not bound by any such agreement, the Union’s only recourse was to picket
and strike the facility. According to Sieger’s unrebutted testimony, Sackman also stated that
without a signed contract, the Union would have no remedy but to continue to picket and strike
the facility.
After an investigation of the unfair labor practice charges filed by the Union, on May 1, a
complaint was issued alleging that Respondent violated the Act by failing and refusing to make
timely or complete payments to several contractual benefit funds.5 At the inception of the

2 According to the letter, at the time Respondent was four months in arrears in making payments to
the Union’s benefit, pension and education funds and 37 months behind in payments to the child care and
job security funds. The total amounts owed to the funds were $854,542 with accrued interest of $59,337.
3 Nortey testified herein, Sackman and Shillingford did not.
4 The Union’s picketing activity is discussed below.
5 As Counsel for Respondent noted during the development of this evidence, I had previously been
assigned to serve as a settlement judge in this matter. The parties were asked if they had any objection to
my continuing to hear the instant case. No party voiced an objection.
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hearing, the parties reached a settlement of most of the issues raised by the complaint and
entered into a settlement agreement which was approved by Administrative Law Judge Steven
Fish on June 8.6 The remainder of the case was severed for hearing. The Union and
Respondent thereafter entered into a non-Board settlement of all outstanding matters, and
Judge Fish entered a final Order on June 26.7
The Union’s Plan to Picket and Strike the Respondent
Prior to the effectuation of the above-described settlement, in February 2006, employees
took a strike vote. Shortly thereafter, the Union’s executive council approved a three-day strike,
which was scheduled to take place on May 16-19. The employees further planned to engage in
two instances of informational picketing at Respondent’s facility, on March 15 and on May 15.
On February 27, Nortey sent Rutenberg a letter informing him of the Union’s plan to
engage in informational picketing on March 15, from 2:00 p.m. to 5:00 p.m. The picketing took
place as scheduled. The Union secured a police permit for the event, which took place across
the street from the nursing home.
The evidence establishes that Respondent maintains video surveillance cameras
throughout its facility which monitor the entrances and exits and internal offices and corridors as
well. It is undisputed that, upon instructions from the Respondent, two individuals made
separate video tape recordings of the picketing activity on March 15 throughout its duration.
One individual stood outside the main entrance to the facility, at times holding the camera and
at others placing it on a tripod. Another individual taped the event from a second-floor window.
These cameras were aimed at the picketing activity occurring across the street, rather than at
the entrances and sidewalk adjacent to Respondent’s facility.
According to Sieger, all instances of Union picketing and related activities at
Respondent’s facility have been similarly and openly videotaped for at least the last 15 years
and there has never been any objection from the Union; nor has there been any allegation that
participants in such activities have been subject to retaliation. Upon cross-examination, Nortey
acknowledged that he had long known that Respondent had videotaped the Union’s rallies and
picketing, and the two employees who testified to this issue admitted that they were aware of
this, as well. Noeler Worrell testified that she had observed videotaping at prior rallies and had
concerns about it, but acknowledged that she participated in the March 15 picketing and had
planned to attend the May 15 event as well. Fay Whitter testified that the videotaping had
dissuaded her from taking part in a rally in 2002, before she had become a member of the
Union, but she had participated on March 15. She too, expressed concern about the fact that
the picketing was being videotaped, but admitted that it did not stop her from going forward on
this occasion. Neither of these employees knew of anyone who had been the subject of
reprisals or disciplinary action for their participation in picketing or other Union activity.
Although Sieger testified that two recordings were made of the three-hour event, only
one videotape, of approximately 30 minutes in length, was produced in response to a subpoena
duces tecum issued by Counsel for the General Counsel, seeking all such material. On cross-
examination, Sieger testified that she was certain that another tape existed, and that it would be

6 The settlement provided for, among other things, a schedule for Respondent to make payments to
the Union funds in order to become current as well as an undertaking that Respondent would make future
payments on a timely basis and post a Notice to Employees.
7 As a result of this settlement, the General Counsel requested that the complaint be dismissed.
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produced if it could be found. From the exhibit which is in evidence, it appears that there were
various points in time when the camera was turned off. The tape shows that, at the inception of
the three hour period, but apparently before any picketing has begun, approximately ten
individuals are standing outside the main entrance to the facility. They are then seen walking
across the street. Nortey is seen consulting with an individual who was identified as facility
Administrator Lawrence Abrams and a police officer stationed in a scooter. After some
discussion, Nortey and Abrams walk across the street together, toward the facility. As they
approach, Nortey is heard telling Abrams, “You can’t tell us where the fuck to be. Only the
police.” Abrams’ reply is that he is not going to argue with him. Nortey is then seen proceeding
to the other side of the street, to join the picketers. The participants are noisy, but contained.
There appear to be approximately 50 individuals marching in a circle on the sidewalk, holding
signs and chanting slogans, some of which contained ad hominem attacks against Sieger.8
Traffic passes by, unimpeded. According to the testimony of General Counsel’s witnesses, the
rest of the picketing similarly proceeded without incident, and Respondent so stipulated.
Informational Picketing Prior to March 15, 2006
The Union had previously engaged in informational picketing at Respondent’s facility.
The last prior occasion occurred on September 28, 2005, and also took place across the street
from Respondent’s facility. Employee Worrell testified that she had participated in two previous
Union rallies, which were held at the same location. Nortey and Worrell testified, without
contradiction, that the prior instances of picketing or other Union activity at Respondent’s facility
in which they had participated was peaceful and did not result in any arrests.
Other Incidents Cited by Respondent
In justifying its decision to record the picketing on March 15, Respondent cites to two
prior incidents allegedly involving Union agents or employees. Sieger testified that at some time
in 2000, an unnamed Union delegate requested to have a conference room made available for
a meeting with the night staff, and Respondent agreed. According to Sieger, “[w]hat they did is
they came into the building, stormed upstairs with cameramen, started taking pictures and video
tapes of residents that objected …They went into a staff bathroom, threw paper all over, took
pictures of that and put it into a newspaper.” Sieger, who was not present at the time, stated that
she found out about this incident when she saw a newspaper article and accompanying
photographs in the New York Daily News, and also received a report from a nurse on the unit. In
an article entitled “Nursing Homes of Shame” the News profiled several local nursing homes
including Respondent. There is a photograph of one unnamed resident, in bed, and of a
bathroom littered with what appears to be paper towels and toilet tissue. The article also makes
reference to the fact that, “[f]ollowing The News’ unannounced visit, seven workers were fired,
including one who helped The News get inside. Under pressure from Local 1199, Helen Sieger
reinstated all but one.” The article further reported that the same night the newspaper visited the
Respondent’s premises, the workers voted in favor of a protest. Sieger did not testify as to the
specific involvement of any Union official in this event, and Respondent offered no corroboration
for her assertion that the Union was responsible for bringing the Daily News into the facility.
Neither General Counsel nor the Union offered any testimony regarding what involvement the
Union may have had in facilitating access to the facility for the newspaper. According to
Sieger’s account, residents were frightened by the commotion, and required both individual and

8 Some of the picket signs said “We are the care givers,” “We need our contract,” “We need our
benefits,” and “Children need medical care.” The chants included “We are the Union, We cannot be
deterred,” “Insulin,” “What do you want? Benefits,” “No Justice, No Peace,” and “Helen Sieger full of shit.”
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group therapy to recover from this traumatizing event.
Sieger additionally testified that, also in 2000, a group of about thirty Union officials
entered Respondent’s facility without permission, proceeded to the office of Administrator
Ernest Regan without an appointment, threw items off his desk and sat on it. Again, Sieger was
not present at the facility, and failed to name any specific agents of the Union who participated
on this occasion. According to Sieger’s testimony, the incident was captured on Respondent’s
internal security cameras. No such evidence was offered by Respondent, and there was no
further evidence presented regarding this incident or supporting Sieger’s assertions of Union
involvement on this occasion.
Sieger further stated that because of issues regarding Union representatives coming
onto the premises and meeting with employees without permission, an arbitration was held
before the Impartial Industry Chairman regarding Union access, which resulted in an award on
May 26, 2005 setting forth comprehensive guidelines for the parties to abide by with regard to
the issue of Union access to the facility. The arbitration decision makes no reference to any
particular dispute; nor does it mention either of the above described incidents. There is no
evidence that either party has failed to comply with the terms of this award.
On January 18, the Union held a demonstration at Resort Nursing Home, located in
Brooklyn, New York, a facility that was, at the time, operated by Sieger. No notice of the
demonstration was provided to the employer, and Resort filed an unfair labor practice charge
regarding the incident with the Boards’ Brooklyn office. Resort had videotaped the
demonstration, and the Region asked to view the videotape to assist it in determining whether
there had been, in fact, a violation of Section 8(g) of the Act.9 After conducting its investigation,
including viewing the videotape of the incident, the Region concluded that the Union had not
engaged in a strike or picketing as such has been interpreted by the Board and the courts and
dismissed the charge.10
Sieger further testified that in May 2006, after the dates of the strike which had been
planned for earlier in the month, (discussed below), employees came forward and complained
that they had been threatened and intimidated by three employees11 in the event they would
have refused to participated in the strike. Sieger discharged them. As a consequence, the
Union filed unfair labor practice charges regarding the terminations, which were dismissed by
the Region. The dismissal was upheld on appeal. Although Sieger stated that the individuals
who were threatened filed police reports, she did not offer any testimony regarding whether
these reports resulted in any action being taken by the police or other law enforcement officials.

9 Section 8(g) of the Act requires that when an employer is a health care institution, a labor
organization must provide the employer and the Federal Mediation and Conciliation Service (FMCS) with
at least ten days written notice of its intent to engage in “any strike, picketing or other concerted refusal to
work.”
10 When cross-examined regarding this occurrence, Sieger claimed she did not know when the
action at Resort occurred and repeatedly stated that she could not recall whether the Union had engaged
in any picketing at any of her facilities between that date and March 15; that it would be “something she
would have to look up.”
11 In questioning Sieger, Respondent’s counsel referred to these employees as “Union delegates.”
Sieger, however, provided no testimony to establish this fact. In its brief, Respondent characterizes these
individuals alternatively as “employees,” “Unionized employees,” or “1199 employees.”
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The Alleged Threats to Delay Reinstatement
On April 27 and May 1, the Union provided Respondent with written notice of its intention
to conduct a rally, leaflet and picket on May 15 and engage in a three-day strike commencing on
6:00 a.m. Tuesday, May 16 and ending at 6:00 a.m. Friday, May 19.12 On the Tuesday during
the week prior to the anticipated strike (May 9), Respondent held a meeting with its employees
on the second floor in the East Wing of Respondent’s facility at about 1:45 p.m., which lasted
approximately 20 minutes. Rutenberg and Abrams were present, among others. According to
Worrell, at this meeting, “Mr. Solomon [Rutenberg] said that if we do go on the strike for three
days, we cannot come back in for the next three weeks. Because he cannot hire workers to be
there for three days. So we will be off for three weeks.” Another employee present, Evelyn Riley
(who is Worrell’s sister) asked Rutenberg to put his statement in writing, and he agreed to do
so.
Respondent subsequently held another meeting with employees on the Friday prior the
strike, (May 12) which Worrell did not attend as she was not working on that date. Employee
Fay Whitter did attend, and testified that, “we were advised that if we went out on strike we
might not be able to return to work when we think we could, within those three days. We were
told that we might have to stay out longer depending on what the contract was that they got for
the people to come and work.” At this meeting, Rutenberg also distributed a letter to
employees. Dated May 12, the letter provides as follows:
The Union has called a 3-day strike for next week as you all know. The strike is
supposed to protest our “unfair labor practices.” For your information, the “unfair labor
practices” are close to being finally settled with the Labor Board and includes a payment
schedule to pay off fund delinquencies, as we have asked the Union for months. This will
include payments to the benefit funds (for health benefits) which the Labor Board says
we are required to make. So exactly what “unfair labor practices” are you striking for?
Also, you should know that because we have a duty to our patients, we will have to hire
temporary replacements for you and we probably will have to keep them on the jobs of
those who strike until the Union agrees not to call further strikes over the next few
months or until a union contract is signed. There are two reasons for this. First, it is hard
to get replacements for only a three day period. Second, since we don’t know when you
might strike again, we have to make sure that we will have continuity of care for patients
until open issues with the Union are resolved. We hope you understand why we have to
protect our patients.
Sieger testified that, in anticipation of the strike she attempted to find replacement
employees for the approximately 250 unit employees and contacted several agencies, naming
three specifically: Town, Big Apple and Juno. Sieger testified that her discussions with these
agencies revealed that, to replace the unit employees, Respondent would have to pay a
significantly higher rate than it typically pays for temporary workers and that she would have to
commit to hire such employees for a period of five weeks to cover the agencies’ expenses in
mass recruitment. Sieger further stated that she was able to “negotiate it down to three weeks
in exchange for having to pay for orientation” for the replacements. Sieger then directed
Rutenberg to advise employees that if there was a strike, Respondent may not be able to bring
them back to work for three weeks, because she wanted employees to be apprised of

12 The strike notice stated, inter alia, “this strike is in protest of your unfair labor practices which,
among other things, have resulted in the loss of the aforesaid employees’ healthcare benefits.”
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everything that was going on. Respondent presented no evidence regarding any written
agreement with any entity named by Sieger.13
With employees gathered for the May 15 rally, Union Executive Vice-President Sackman
announced that due to Respondent’s agreement to make payments to the Union funds both the
rally and strike were cancelled. Union Vice-President Shillingford sent Abrams a letter to such
effect on that date.
Counsel for the General Counsel’s Motion to Amend the Complaint.
After resting subject to rebuttal, but before Respondent presented its case, Counsel for
the General Counsel made a motion to amend the complaint to add an allegation that, by
distributing the May 12 letter to employees, Respondent threatened to delay the reinstatement
of employees, thereby engaging in an additional, independent violation of Section 8(a)(1).14
Respondent opposed the motion fundamentally due to what it contends is a lack of adequate
notice or opportunity to meaningfully litigate the issue.
The issue of the letter was first raised in these proceedings during Respondent’s
opening statement, setting forth the theory of its defense to the allegations of the complaint:
The Employer told – did not tell people that if you go on strike you’re going to be out for
three weeks. What the Employer said was “If you go out on strike and we have to hire
replacements, we may have to make a commitment to keep them for three weeks. So
we will not be able to return you to your jobs until the replacements leave.
Moreover, since there was a history in this industry of 1199 calling two or three day
strikes, which reek (sic) havoc on a healthcare employer, the employees were also told
that if there is going to be continued two and three day strikes, the Employer may, in
essence, have to keep employees out until the Union agrees not to strike again or
agrees to sign a contract. Again the only issue being who the Arbitrator is going to be
under the contract.
All of this that was said was not only said verbally but was put out in a writing to
employees that said exactly what was said verbally and was distributed to employees. It
was not “we are punishing you because you’re going out on strike.” It was “we are doing
what we have to do to make sure we have continuity of coverage.” No one was told that
they were going to be permanently replaced. Nobody was told that they were going to be
fired. It was only a question of these are the things we may have to do –may have to
do—in order to provide continuing coverage for sick, elderly patients. And it was put in
writing.

13 At the hearing, Respondent stipulated that there was no written contract between it and “Town”
regarding replacements for the strike.
14 The relevant paragraph of the complaint (paragraph 6) originally alleged that “Respondent, by
Solomon Rutenberg, at Respondent’s facility, on or about the dates indicated below in 2006, threatened
employees that Respondent would delay their reinstatement to work if those employees engaged in a
strike and then made an unconditional offer to return to work: (a) On various occasions in or around
March and April (b) On or about May 11. In its brief, Counsel for the General Counsel moved for
withdrawal of paragraph 6(a) of the complaint. This motion is hereby granted.
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Respondent then agreed to stipulate the letter into evidence. Subsequently, Respondent
reiterated that the letter had been sent into the Region as part of its defense to the allegations of
the charge.
III. Analysis and Conclusions
The Unlawful Videotaping of Employees – Applicable Legal Standards
The complaint alleges that, by videotaping the March 15 picketing, Respondent violated
Section 8(a)(1) of the Act, a contention Respondent denies. Respondent argues that its actions
are lawful because it is a health care facility with a duty to protect its residents; the surveillance
is necessary due to the Union’s alleged history of trespass and violent behavior; that in taping
the picketing it is merely lawfully seeking to preserve evidence and, further, that there is no
evidence that the videotaping has chilled employees in the exercise of their Section 7 rights.
In F.W. Woolworth Co., 310 NLRB 1197 (1993), the Board reaffirmed the principle that
observation of open, public union activity on or near its property does not constitute unlawful
surveillance. The Board has also held that:
Photographing and videotaping such activity clearly constitute more than mere
observation, however, because such pictorial recordkeeping tends to create fear among
employees of future reprisals. The Board in Woolworth reaffirmed the principle that
photographing in the mere belief that something might happen does not justify the
employer’s conduct when balanced against the tendency of that conduct to interfere with
employees’ right to engage in concerted activity [internal citations omitted]. Rather, the
Board requires an employer engaging in such photographing or videotaping to
demonstrate that it had a reasonable basis to have anticipated misconduct by the
employees.
National Steel & Shipbuilding Co., 324 NLRB 499 (1997), enfd. 156 F.3d 1268 (3rd Cir. 1998
“[T]he inquiry is whether the photographing or videotaping has a reasonable tendency to
interfere with protected activity under the circumstances;” Id; Trailmobile Trailer, LLC, 343 NLRB
95, 96 (2004).
Thus, “the Board may properly require a company to provide a solid justification for its
resort to anticipatory photographing.” NLRB v. Colonial Haven Nursing Home, 542 F.2d 691,
701 (7th Cir. 1976). Although an employer has the right to maintain security measures necessary
to the furtherance of its legitimate business objectives, an employer’s subjective, honest belief
that unprotected conduct may occur does not constitute proper justification for the recording of
protected activity; rather, an employer must show that it had a reasonable, objective basis for
anticipating misconduct. National Steel & Shipbuilding Co., supra at 499 fn. 5; Trailmobile
Trailer, supra at 96 (and cases cited therein).
As noted above, Respondent maintains an extensive security surveillance system at its
facility. This is not alleged to be unlawful. Rather, it is the discrete, separate video surveillance
and recording of the picketing activity which occurred across the street from Respondent’s
facility on March 15 which is the subject of the complaint. In this case, Respondent has failed to
meet its burden of proof to establish that the separate video recording of employees’ protected
conduct was based upon any legitimate security concern or to otherwise show that it had a
reasonable basis to anticipate misconduct by its employees.
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Respondent as a Health Care Employer
As an initial matter, Respondent notes that it is a healthcare facility, and has had a
surveillance system in place for many years, without any protest from the Union. In connection
with this argument, Respondent cites to Jewish Home for the Elderly of Fairfield County, 343
NLRB 1069 (2004). Under the facts of that case, which involved the installation of surveillance
cameras at entrances to the building, near the time clocks, in elevators and in designated
smoking areas, the administrative law judge found that that there was no evidence that the
cameras were being used to record employees engaged in protected activity. Id at 1082. Such
an instance is clearly distinguishable from the instant case, where the surveillance at issue was
precipitated by, and confined to, a specific instance of protected conduct. In Jewish Home,
supra, while finding that no unlawful conduct had occurred, the administrative law judge
specifically drew that comparison: “The situation here is, thus, distinguishable from those cases
where an employer has been found to violate the Act by installing cameras directed at employee
picketing or other activity.” Id. (citations omitted).15 Respondent has cited no authority for the
proposition that, as a health care employer, it is generally exempt from the applicable legal
standards regarding the video surveillance of employees’ protected conduct.
Alleged Instances of Prior Union Misconduct
Respondent further relies upon evidence of what it characterizes as “inappropriate and
unlawful Union conduct” throughout the course of its dealings with the Union and argues that
the Union’s history has “forced [Respondent] to protect its residents by videotaping Union
activities in and around [its] premises” and further, to “take measures to document the activity
around the facility to ensure there is adequate evidence of misconduct if any when resident
health and wellness is disturbed.” There are two issues raised by the evidence proffered by
Respondent in support of these contentions: (1) whether, in the first instance, the evidence of
purported instances of Union misconduct is reliable and otherwise probative of the assertions
put forth and (2) assuming the evidence shows what Respondent suggests, whether
Respondent has met its burden of establishing that there was a reasonable basis for its resort to
the anticipatory videotaping of protected conduct. Here, Respondent has failed on both
accounts. 16
With regard to the first issue, involving the sufficiency of the evidence, I find as a general
matter, that Sieger was neither a reliable nor wholly credible witness with regard to her
descriptions of particular events. As noted above, at significant times, Sieger’s testimony was
not predicated upon first hand knowledge or observation, was uncorroborated by other evidence
and was frequently non-specific and conclusory. I also found her to be an uncooperative and
evasive witness on cross-examination, in particular when questioned about the Union’s activities
at Resort Nursing Home. Thus, as discussed in further detail below, while Sieger sought to

15 Moreover, in that case, there were no exceptions filed to the administrative law judge’s dismissal
of the allegations relating to the alleged unlawful surveillance. Id at fn. 1. It is well settled that the Board's
adoption of a portion of a judge's decision to which no exceptions are filed is not precedent for any other
case. ESI, Inc., 296 NLRB 1319 fn. 3 (1989); Anniston Yarn Mills, 103 NLRB 1495 (1953).
16 Again, this argument fails to acknowledge that both the perimeter and interior of Respondent’s
facility are continually monitored by a video surveillance system which would record and preserve
evidence of trespass or other instances of misconduct at any time, including those times when its
employees are engaged in protected conduct. In fact, Sieger acknowledged that at least one of the
instances cited by Respondent (where Union agents allegedly stormed the office of administrator Regan),
had been captured on videotape.
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blame the Union for various acts of prior misconduct, I find that Respondent has generally failed
to come forward with probative evidence or specific detail to establish Union culpability or,
alternatively, to explain why it could not do so.
This is particularly apparent when considering the two occurrences which took place in
2000. In the first such instance, personnel from the New York Daily News were escorted into the
nursing home and pictures were taken of at least one resident and elsewhere in the facility. The
intrusion was then documented in an article in the newspaper. Although Sieger sought to place
the blame on the Union, there is no probative evidence that this is the case. In fact, the
newspaper article states that access was facilitated by an employee of the facility, not by any
agent or official of the Union.17 I further note that Sieger testified that she first learned of this
unauthorized visit upon reading the article in the newspaper. I find it inherently improbable that
an act of trespass such as Sieger described would not have been brought to her attention
immediately and in the first instance by a member of her staff,18 which leads me to question
whether Sieger has a reliable memory of this event, to the extent she may have had knowledge
of it at the time. I further note that Respondent’s existing security system cameras would have
been in position to record at least some portion of the incident, which clearly involved
unauthorized entry to the facility. Thus, there would be no logical reason for Respondent to rely
upon additional videotaping of events occurring outside its facility to protect itself from an
intrusion of this sort, or to preserve evidence of what clearly was a circumstance of trespass.
The second 2000 incident, by Sieger’s account, involved a group of some thirty
individuals who entered the nursing home without an appointment, went to administrator
Regan’s office and threw items off his desk and sat on it. Again, Sieger was not present during
this incident, there was no testimony from any individual who was or who witnessed what
occurred. Further, no specific details were offered to substantiate Respondent’s claim that the
Union was responsible for this act of trespass. Moreover, the facility’s existing security system
would have, and in this case did, capture this occurrence. I note that the tape of this episode
would have provided direct evidence of what had occurred. It was not produced herein, and no
explanation was proffered for Respondent’s failure to do so. I thus infer that either it was not
preserved (which, of course, undermines Respondent’s assertion regarding its intention to
preserve evidence) or that it would have not corroborated Sieger’s testimony regarding what
actually took place on this occasion.
In any event, even if I were to assume that the Union, or its employee agents, were
involved in these two incidents, I find that such events, which occurred six years prior to the
videotaping in question, are too remote in time to provide a sufficient justification for
Respondent’s decision to record the protected picketing activity of its employees. The Board
has found anticipatory videotaping to be lawful when there is some meaningful temporal
relationship between prior misconduct and the acts being recorded. For example, in Smithfield
Foods, 347 NLRB No. 109, slip op. at 4 (2006), the Board concluded that the videotaping of
protected conduct was permissible after union organizers engaged in repeated instances of
trespass and the employer called the police who asked the handbillers to remain on public

17 Although Sieger prefaced her testimony about this incident with a reference to a delegate’s
request for the use of a conference room to meet with employees, she provided no evidence to link the
two occurrences. Moreover, there was no evidence presented from which an appropriate inference could
be drawn that the two occurrences were more than circumstantially related or that employee delegates or
Union officials used the facility for anything more than their stated purpose.
18 Inasmuch as the article makes reference to employee discharges, apparently in connection with
the event, it appears as though Sieger did have prior knowledge of the News’ unauthorized visit.
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property. The employer’s redirection of its security cameras to monitor the union organizers
outside the facility had a reasonable basis, “in light of the physical proximity of the handbilling to
the Respondent’s property and the temporal proximity of the previous trespassing incident.” By
contrast, in Trailmobile Trailer LLC, supra at 96, the Board found that an employer’s security
concern was not a sufficient justification for videotaping employees where the employer did not
install surveillance cameras until eight months after vandalism occurred. I further note that there
is no evidence that the police were called to investigate either of the 2000 events, which has
been a factor duly considered by the Board in determining whether an employer has
demonstrated sufficient justification for recording its employees’ protected conduct. See
Smithfield Foods, supra; Saia Motor Freight Line, 333 NLRB 784 (2001)(employer lawfully
videotaped handbilling activity when it became dissatisfied with efforts of police to control
situation). Berton Kirschner, 209 NLRB 1081 (1974), enfd. 523 F.2d 1046 (9th Cir. 1975)
(discussed infra).19
Respondent additionally argues that it is aware of unlawful disruptions that the Union
has engaged in at other local healthcare institutions, notably at Staten Island University Hospital
(reported as Service Employees District 1199 (Staten Island University Hospital), 339 NLRB
1059 (2003), where the Board found that an admitted Union agent violated Section 8(b)(1)(A) by
subjecting employees to abusive tactics such as profanity, racial and sexual slurs and threats of
physical harm). With regard to this matter, Sieger testified only that the decision was brought to
her attention by counsel. She failed to testify however, as to any specific knowledge she might
have had of acts of Union misconduct in connection with that matter, how that might have some
relevance to any event which has occurred at Respondent’s facility or the picketing in question
herein, or how that may have influenced her decision to videotape the March 15 picketing
activity.
Respondent further relies upon the termination, in May 2006, of three of Respondent’s
employees allegedly for making intimidating threats made to employees who were not planning
to join the Union’s strike, Characterizing this conduct as the “Union’s” threat, Respondent
argues that the fact that the threats post-dated the specific videotaping at issue misses the
point. Respondent notes that these threats occurred prior to the issuance of the instant
complaint and argues that they must be considered as part of a continuing pattern that impacts
the propriety of an order the General Counsel seeks in this case – one which would prohibit
future videotaping of Union picketing and demonstrations.20
As an initial matter, Respondent failed to identify the employees in question in this
record, and further failed to show their affiliation, if any, with the Union, other than presumed
Union membership. There is no evidence, either direct or circumstantial, that the Union
initiated, condoned or ratified these actions. Moreover, Respondent has failed to show how
videotaping Union rallies or other activity would have conceivably either prevented or captured
evidence of such conduct. It appears, rather, that the matter was handled in an appropriate

19 Moreover, as noted above, Respondent’s legitimate security concerns regarding trespass
protected by its existing system of video cameras. See National Steel and Shipbuilding Co, 324 NLRB at
500-501 (employer’s installation of a tripod mounted video camera trained on the situs of union rallies not
justified by security concerns due, in part, to continuing operation of existing security system).
20 Respondent further argues that all the foregoing instances of Union misconduct occurred while the
Union knew it was being videotaped and invites me to speculate as to what sort of misconduct might
occur if the Union knew its conduct could not be established through video evidence. This argument
ignores the obvious fact that not one of the above-cited instances of alleged misdeeds would have been
depicted and preserved by video cameras trained across the street from Respondent’s facility.
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manner – by contacting law enforcement personnel and taking disciplinary action with regard to
the employees in question.
Respondent’s Contentions Regarding the Preservation of Evidence
In further defense to the allegations of the complaint, Respondent points to the fact that
the Board has asked for its video evidence in its investigation of alleged picketing at Resort
Nursing Home and argues that an employer who is asked to submit such evidence by the Board
itself cannot then be accused of engaging in unlawful surveillance when it documents evidence
in an analogous situation.21
In support of the above contention, and more generally, Respondent argues that by
videotaping Union picketing, it was merely legitimately seeking to preserve evidence.
Respondent notes that the Board has upheld defenses to surveillance charges based upon an
employer’s need to preserve proof. In Concord Metal, Inc., 295 NLRB 912 (1989), cited by
Respondent, the Board, agreeing with the administrative law judge, found that limited
photography of picketing was lawful where (1) the union was picketing the employer at two
locations; (2) the signs did not identify the union by name; (3) there was a common situs for the
picketing; thus secondary boycott charges were a “distinct possibility” and (4) there was
evidence that the picketers blocked an entrance to the employer’s facility thereby delaying a
delivery. Id. at 921. None of these circumstances obtain in the instant case. Similarly, Karatjas
Family Lockport Corp., 292 NLRB 953, 956 (1989), also cited by Respondent, is inapposite
insofar as that case involved a situation where the employer took photographs of non-employee,
paid pickets in order to preserve evidence of alleged trespass.
Respondent additionally relies upon Roadway Express, Inc., 271 NLRB 1238 (1984),
where the Board found that photography of protected activity to preserve or collect evidence of
illegal picketing was lawful. In that instance the administrative law judge, affirmed by the Board,
based his decision in part on the fact that employer proved a colorable basis for seeking
injunctive relief under Boys Markets, Inc., v. Retail Clerks Local 770, 398 U.S. 235 (1970). The
Respondent here, however, has not claimed any colorable basis for the initiation of legal
proceedings against the Union, or the picketing employees, for which the videotapes of
picketing could or would have been evidence. Furthermore, in Roadway Express the employer
demonstrated its intent to use those tapes for the purposes of litigation by showing that it had
catalogued and preserved its photographs. Here, by contrast, in response to a subpoena
seeking all videotapes of the event, Respondent could produce only 28 minutes of videotape
relating to the picketing, notwithstanding the fact that it is undisputed that two video cameras
were stationed to record the entire three-hour event. I find that Respondent’s unexplained failure
to produce this subpoenaed material demonstrates that it failed to preserve it and conclude that
such a failure undermines its contention that it was legitimately seeking to preserve evidence in
the event of future litigation. Thus, Respondent has failed to preserve and has not otherwise

21 To the extent Respondent appears to argue that it engages in videotaping of Union rallies and
picketing to protect itself against violations of Section 8(g), the evidence demonstrates that the Union
provided Respondent with all required notices pursuant to Section 8(g) of the Act both before and after
the informational picketing on March 15. Respondent makes the point that the Union changed the location
of the May 15 planned demonstration. In fact, this change was minor and, in any event, notification of
such a change is not required by Section 8(g) which requires notification only of the date and time that
picketing will commence; there is no requirement that a union provide notice of the locations at which it
intends to picket. Hospital and Institutional Workers Union, Local 250, SEIU, SFL-CIO, 255 NLRB 502,
505 (1981).
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shown that its videotapes could have been evidence in any litigation, theoretical or real.
In Berton Kirschner, supra, also cited by Respondent, the Board concluded that the
photographing of union representatives while handbilling employees did not violate the Act
where the union representatives had been asked to leave the employer’s property, and
thereafter returned and where the police were called because the union representatives
continued to engage in acts of trespass. The Board found that “[i]n these circumstances,
including the fact that Respondent promptly called the police on this one date as well as the fact
that there were several later handbillings by the Union without incident, we cannot conclude that
respondent, by taking pictures of handbillings which in part were on its property engaged in
surveillance, or engaged in conduct that would have created the impression of surveillance.”
209 NLRB at 1081.
Thus, as Respondent correctly observes, an employer may photograph handbillers or
pickets to support a legal trespass claim. 22 However, the Employer must have more than a
mere belief that something might happen; rather, an employer must demonstrate a reasonable
basis to expect misconduct. National Steel & Shipbuilding Co., supra; cf. Saia Motor Freight
Line, supra, where the Board found no violation in the employer’s photographing of striking
employees because the employer showed that (1) those employees had actually impeded
traffic; (2) it did not begin photographing the employees until the impeding of traffic began; and
(3) it photographed employees only after failure of appeals to police to take action to minimize
dangerous traffic congestion (including at least one near-miss of a rear end collision.)
All of the foregoing only underscores Respondent’s failure to adduce any evidence of
violence, trespass or the blocking of ingress or egress during those instances where the Union
has picketed Respondent’s facility, all of which have been recorded for at least the past 15
years. Further, there is no evidence of misconduct as employees picketed on the sidewalk
across the street from Respondent’s facility on March 15. Rather, the only probative evidence in
this record is of peaceful and lawful conduct during picketing or other group activities. Thus, I
conclude that the forgoing instances of alleged Union misconduct cited by Respondent, either
singly or in the aggregate, fail to meet Respondent’s burden to establish a “solid justification” for
its resort to anticipatory videotaping of the March 15 informational picketing. See e.g. National
Steel & Shipbuilding Co., supra at 502 (even where there is a history of violence or misconduct
associated primarily with strikes at an employer’s facility, such history did not justify the
surveillance of peaceful union rallies conducted during non-strike periods.) Moreover, to the
extent Respondent is relying upon Sieger’s subjective reaction to what she perceived as Union
transgressions, this does not constitute sufficient cause to warrant the recording of protected
activity. Rather, Respondent is obliged to prove a reasonable, objective basis for anticipating
that misconduct will occur, id. at 499, fn. 1. Here, Respondent has failed to prove that it
videotaped the March 15 informational picketing due to any legitimate security concern or
reasonable basis to conclude that the Union would be engaging in unlawful or unprotected
conduct. The evidence rather, “establishes a clear connection between union activity and the
installation of the cameras, which would have been apparent to employees.” Trailmobile Trailer,
LLC, supra at 96.

22 See e.g. Washington Fruit and Produce Co., 343 NLRB 1215, 1217 (2004) (no violation where an
employer monitors protected activity because of a reasonable concern about a recurrence of
trespassing); cf. Snap-On Tools, Inc. 342 NLRB 5 (2004) (repositioning of security camera to monitor
handbilling violated Act where there were no previous incidents of trespassing); Robert-Orr Food Service,
334 NLRB 977 (2001) (same).
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Respondent’s Contentions Regarding the Absence of a Chilling Effect on Protected Conduct
Finally, Respondent argues that employees continue to engage in protected activity
despite their knowledge of the surveillance. It is asserted that because Respondent’s unionized
employees do not fear reprisals for their union activity, the type of surveillance engaged by
Respondent is lawful. In support of this argument, Respondent relies upon evidence that
employees continued to participate in protected activity notwithstanding their knowledge that
their activities were being videotaped. Moreover, it is undisputed that there has been no
allegation of retaliation against employees for their participation in rallies or picketing activities.
The standard for determining an 8(a)(1) violation is whether the employer engaged in
conduct that reasonably tends to interfere with the free exercise of employees’ Section 7 rights.
This standard is objective; the subjective perceptions of individual employees are not taken into
account. Moreover, the test of interference, restraint and coercion under Section 8(a)(1) of the
Act does not turn on an employer’s motive or on whether the coercion actually succeeded or
failed. American Freightways Co., 124 NLRB 146, 147 (1959); Curwood Inc., 339 NLRB 1137,
1140 (2003).
Thus, in the instant case the fact that employees continue to engage in protected
conduct notwithstanding Respondent’s surveillance of their activities is not determinative of
whether there has been a violation of Section 8(a)(1) of the Act.23 Rather, the appropriate focus
for inquiry is “whether the photographing or videotaping has a reasonable tendency to interfere
with protected activity under the circumstances of each case.” Washington Fruit & Produce Co.,
supra at 1217 (quoting National Steel & Shipbuilding Co., supra). Moreover, a lack of retaliation
against participants will not, in and of itself, mitigate the reasonable tendency of an employer’s
videotaping to interfere, restrain or coerce employee’s rights to engage in protected concerted
activity. National Steel & Shipbuilding Co., supra at 502. Employees do not need to be actually
intimidated by videotaping for it to be unlawful. See Center Construction Co., Inc., 345 NLRB
No. 45, slip op. at 17 (2005).
In summary, the Respondent has not met its burden of proving a “solid justification” for
its videotaping of the peaceful picketing of its employees. I therefore find and conclude that by
videotaping picketing employees, without proper justification, thereby engaging in surveillance
of employees engaged in protected conduct, the Respondent has violated Section 8(a)(1) of the
Act, as alleged in the complaint.
The Threat to Delay Reinstatement
General Counsel’s Motion to Amend the Complaint
As noted above, after resting, but prior to the presentation of Respondent’s case-in-
chief, Counsel for the General Counsel moved to amend the complaint to add the allegation
that, by distributing the above-described May 12 letter to employees, Respondent engaged in
an independent violation of Section 8(a)(1). Respondent objected to the proposed amendment,
claiming a lack of notice and due process.24

23 Moreover, as Counsel for the General Counsel argues, even though Respondent had engaged in
videotaping of employee demonstrations for years and there was no evidence of retaliatory action, there
is evidence that employees did have concerns about being recorded while engaging in protected conduct.
24 In particular, Respondent appears to argue that because I deferred ruling on whether I would grant
the motion to amend the complaint until after the parties had briefed that issue, it was precluded from
Continued
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Rule 102.17 of the Board’s Rules and Regulations allows for the amendment of a
complaint before, during or after a hearing upon such terms as may be just. Folsom Ready Mix,
Inc., 338 NLRB 1172, fn. 1 (2003). Whether it is just to grant such a motion depends upon
whether the new allegations are closely related to the allegations of the complaint, and whether
the amendments are so late that the respondent will be prejudiced by them. See Payless Drug
Stores, 313 NLRB 1220, 1221 (1994); New York Post, 283 NLRB 430, 431 (1987).
In the instant case, I find that the new allegation proposed by the General Counsel in her
motion to amend the complaint arises from the same factual circumstances and course of
conduct that forms the basis for certain of the other allegations of the complaint, and relies upon
the same legal theory. I also find that the motion was not too late as the issue was fully and
fairly litigated. At the hearing, Respondent was the first to raise the issue of the letter, apparently
citing it as part of its proffered defense to the allegations the complaint. The letter was thereafter
stipulated into evidence. The General Counsel then adduced testimony regarding the context in
which the letter was distributed to employees, and Respondent had the opportunity to cross-
examine her witnesses on such issues. Moreover, the document speaks for itself. Further, the
motion to amend the complaint was made prior to the presentation of any evidence by
Respondent in its case-in chief and Respondent adduced testimony regarding why it had been
distributed to employees from its own witness. In this regard, by Respondent’s own admission,
the distribution of the letter is part and parcel of the same course of conduct alleged to be
unlawful, and Respondent’s proffered defense to such allegations is predicated upon the same
legal theory. While it would have been preferable for Counsel for the General Counsel to have
made the motion to amend the complaint at an earlier point in these proceedings, I find that the
issue was fully and fairly litigated, and the Respondent was not denied due process. I therefore
grant Counsel for the General Counsel’s motion to amend the complaint.
The Unlawful Threat to Delay Reinstatement
The complaint alleges that Respondent violated the Act by threatening employees that,
Respondent would delay their reinstatement if they went on strike and then made an
unconditional offer to return to work. Respondent asserts that employees were informed that
their reinstatement might be delayed for three weeks if they went out on strike and that this was
due to the difficulty of hiring replacements en masse for a period of three days. Respondent
further contends that it had a legitimate business justification for replacing the employees for
this period of time, and for explaining this to its employees.
Under Section 8(c) of the Act, an employer may lawfully furnish accurate information,
especially in response to employees’ questions, if it does so without making threats or promises
of benefits. Lee Lumber and Building Material Corp., 306 NLRB 408 (1992). See also Eagle
Comtronics, 263 NLRB 515 (1982). In Sutter Health Center, 348 NLRB No. 29 (2006), the
Board, affirming the administrative law judge, found among other things, that Respondent had
_________________________
litigating the issue on the merits. In its brief, Respondent cites several transcript references in support of
this argument. Most of them are inapposite, dealing with other issues entirely. On one occasion cited by
Respondent there was, in fact, a discussion of my decision to defer ruling on the General Counsel’s
motion. As the transcript makes plain, at that time the parties were cautioned that they were “on notice
that this is an issue.” At that time, there did not appear to be any misunderstanding regarding the fact
that, if I found it appropriate to grant the General Counsel’s motion, I would proceed to consider the merits
of the proposed amendment to the complaint. To argue to the contrary would suggest that I was
contemplating reopening the record to consider the issue on its merits, a request which was not made by
any party and under the circumstances of the case, a contention which cannot be given serious credence.
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violated Section 8(a)(1) by notifying certain unit employees that their reinstatement to work after
a strike would be delayed. In that case, it was also found that the respondent violated Section
8(a)(1) and (3) by delaying the reinstatement of those employees, and the administrative law
judge found that the independent 8(a)(1) violation was “entirely derivative of and dependent on
the allegation that the delayed reinstatement was improper.” Id. slip op. at 11. In the instant
case, of course, there was no strike, and therefore no unconditional offer to return to work or
any delay in the reinstatement of striking employees.
The Board has found that an employer’s communications to employees which are not
compatible with their legal rights and remedies under the Act are independent violations of
Section 8(a)(1). For example, as General Counsel notes, when an employer informs unfair
labor strikers that they have been permanently replaced, such a statement violates the Act.
Grinnell Fire Protection Systems, 328 NLRB 585 (1999). Similarly, it has been held that, while
an employer need not inform economic strikers of the full scope of their legal entitlements under
Laidlaw Corp. 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S.
920 (1969), it may not describe a consequence of such a strike which is inconsistent with such
rights. In Eagle Comtronics, supra at 516, a situation involving economic strikers, the Board
stated:
[A]n employer may address the subject of striker replacement without fully detailing the
protections enumerated in Laidlaw so long as it does not threaten that, as a result of a
strike, employees will be deprived of their rights in a manner inconsistent with those
detailed in Laidlaw… [.] As long as an employer's statement on job status after a strike
are consistent with the law, they cannot be characterized as restraining or coercing
employees in the exercise of their rights under the Act.
Similarly, the Board has found that, while an employer has a right to permanently
replace employees engaged in an economic strike, in the event it fails to do so, its false
communication to employees to such effect violates Section 8(a)(1) of the Act. See e.g. Noel
Corp., 315 NLRB 905, 907 (1994) (manager’s statement to employees that striking employees
would be permanently replaced and that the respondent had hired such replacements at a time
when “the task of marshalling a measurably complete replacement program was not yet even
under way” was an unlawful threat of termination.)
Based upon the foregoing precedent, therefore, it would appear that the question of
whether Respondent’s communications to its employees were violative of the Act or protected
by Section 8(c) hinges upon whether, at the time the statements were made, they were an
accurate (even if incomplete) reflection of employees’ legal rights and remedies given the extant
circumstances.
General Counsel presented evidence relating to three instances where the issue of
delayed reinstatement was presented to employees. This evidence is wholly unrebutted. In the
first, occurring on or about May 9, employees were told, “if we do go on the strike for three days,
we cannot come back in for the next three weeks. Because he cannot hire workers to be there
for three days. So we will be off for three weeks.” Later that week, on Friday, May 12, another
meeting was held for employees and the message conveyed was, “we were advised that if we
went out on strike we might not be able to return to work when we think we could, within those
three days. We were told that we might have to stay out longer depending on what the contract
was that they got for the people to come and work. “ On that date, Respondent additionally
issued a letter to its employees, which in salient detail states:
Also, you should know that because we have a duty to our patients, we will have to hire
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temporary replacements for you and we probably will have to keep them on the jobs of
those who strike until the Union agrees not to call further strikes over the next few
months or until a union contract is signed. There are two reasons for this. First, it is hard
to get replacements for only a three day period. Second, since we don’t know when you
might strike again, we have to make sure that we will have continuity of care for patients
until open issues with the Union are resolved. We hope you understand why we have to
protect our patients.
Thus, in meetings with employer representatives employees were told, respectively, that
they either “will” or “might” be out for a three week period should they strike. In its letter,
Respondent goes further and states that employee reinstatement “probably will” be delayed until
the Union agrees not to call further strikes or until a new agreement is reached.
Counsel for the General Counsel argues that the statements made in the employee
meetings and set forth in the letter to employees are unlawful because they do not accurately
reflect the law. In this regard, Counsel for the General Counsel argues that the parties
anticipated that the strike would have been an unfair labor practice strike.25 In such an
instance, it is contended, the strikers would have been entitled to full reinstatement upon an
unconditional application, even if the employer would have been required to dismiss other
employees who were hired as replacements. Relying upon Pennant Foods Co., 347 NLRB No.
41, Grinnell Fire Protection Systems Co., supra and Cagle’s Inc., 234 NLRB 1148 (1978),
General Counsel argues that it is an unfair labor to tell unfair labor practice strikers that their
reinstatement will be delayed, as that is an incorrect statement of an employer’s obligations with
regard to such employees.
In the alternative, Counsel for the General Counsel argues that even if the strike had
been an economic strike, Rutenberg’s statements were unlawful because Respondent has not
presented evidence that it had a legitimate and substantial business justification for delaying its
employees’ reinstatement after the strike and an unconditional offer to return to work; therefore
Respondent’s statement to such effect tended to interfere, restrain or coerce employees in the
exercise of their Section 7 rights.
Respondent contends that the evidence fails to support General Counsel’s assertion that
employees were threatened with a delay in reinstatement. Rather, it is asserted that the
evidence shows that Rutenberg “explained to Union members that, if the Union went on strike,
the Center may not be able to reinstate them for three weeks because the temporary agencies
would not agree to send such a large number of employees for a shorter period of time.” Thus, it
is argued, Rutenberg simply explained why reinstatement might have to be delayed due to
Respondent’s need to replace workers en masse. Relying upon Sociedad Espanola de Auxilo
Mutuo y Beneficiencia, 342 NLRB 458 (2004), Respondent further argues that employers who
engage in defensive lockouts may utilize temporary employees to replace striking workers
where there is a legitimate or compelling reason to do so. Respondent claims that, in making

25 At the hearing, Counsel for the General Counsel stated that she was not intending to prove that
the strike would have been an unfair labor practice strike but, merely that the parties were anticipating
that the strike would have been an unfair labor practice strike. General Counsel further stated that she
was putting forth this theory in response to Respondent’s anticipated defense that it had a sufficient
business justification to delay reinstatement to employees. Respondent disputed this characterization of
the anticipated strike, asserting that the strike was an economic strike in support of the Union’s demand
that the Respondent agree to the selection of the Impartial Chairman as the arbitrator for disputes arising
under the Agreement.
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the disputed statements to employees, it was providing its employees prior to the anticipated
strike with information about why a lockout might have to ensue based upon a legitimate need
for temporary workers to provide coverage during the strike. As Respondent argues, its
explanation (provided both verbally and in the letter) demonstrates a legitimate business reason
for the delay of reinstatement at a healthcare institution because there was no other way to
bring in over 250 temporary employees without a minimum term of three weeks. Thus, neither
the statements made at the meetings or in the letter constituted a threat of reprisal for engaging
in Union activity.
As an initial matter, I make no finding about whether a strike which never materialized
would or would not have been an unfair labor strike, especially in light of the fact that there is no
such allegation set forth in the complaint. Here, the General Counsel has neither pled nor
proven the existence of unfair labor practices prior to the strike vote taken in February 2006,
and has further failed to meet its burden to show how any of the subsequent unfair labor
practices alleged and found herein might have been a contributing cause for the decision to
strike. See Tufts Bros., 235 NLRB 808, 810-811.26
I assume, therefore, for purposes of the instant analysis, that the strike, had it occurred,
would have been an economic strike. There is a separate issue of whether Rutenberg framed
his discussion of the anticipated strike in any particular manner, which might possibly have
some arguable relevance in assessing the legality of his statements. I find, however, that the
evidence is at best equivocal regarding this matter, and cannot draw any particular conclusion
about whether Rutenberg was articulating his comments in the context of an anticipated unfair
labor practice or economic strike.27 Based upon the comments attributed to Rutenberg by
employee witnesses, I do find, however, that he was discussing their reinstatement under the
assumption that employees would have made an unconditional offer to return to work, after the
strike had concluded.
In any event, it is apparent from the record that Respondent planned to temporarily,
rather than permanently, replace its striking employees. An employer may hire permanent
replacements for economic strikers. NLRB v. McKay Radio & Tel. Co., 304 U.S. 333, 345-346;
NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 379 (1967). However, where an employer fails to
show that economic strikers have been permanently replaced prior to their unconditional offer to
return to work, an economic striker is entitled to immediate reinstatement, absent a
demonstrated business justification. Teledyne-Stillman, 298 NLRB 982, 985 (1990), enfd. 938
F.2d 627 (6th Cir. 1991), Harvey Mfg., 309 NLRB 465, 470 (1992). The burden of proof in this
regard is on the employer. NLRB v. Fleetwood Trailer Co., supra at 378; Laidlaw Corp. 171
NLRB at 1368 If an employer fails to establish such a “legitimate and substantial business
justification” it violates Section 8(a)(3) and (1) of the Act, regardless of intent. NLRB v.
Fleetwood Trailer Co., supra at 380; See also Laidlaw Corp., supra at 1368.
In the present case, Respondent proffers two asserted business justifications: (1) that it
could not contract for temporary employees for any period of time less than three weeks and (2)
that it was entitled to lockout its employees and utilize temporary workers to continue

26 To the extent the General Counsel is relying upon the fact that the Regional Director of Region 29
had previously issued a complaint against Respondent, such reliance is misplaced. The allegations
contained therein do not establish the existence of any unfair labor practices. Moreover, I note that
pursuant to the parties’ settlement, General Counsel requested dismissal of the complaint.
27 While Rutenberg clearly made reference to (and disputed) the existence of unfair labor practices,
he also addressed the fact that there were “open issues” between the parties.
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operations.
Respondent’s contention that the exigencies of replacing approximately 250 employees
on a temporary basis necessitated contracting with agencies for a longer period than the
anticipated three-day strike is compelling; it is, however, not supported by adequate evidence. It
is apparent from the record that during the week prior to the date of the strike, when the
comments at issue were made to employees, Respondent had not yet entered into any
agreement with any particular agency or group of agencies to provide temporary workers during
the anticipated strike. Sieger’s testimony regarding her discussions with three named
replacement agencies was non-specific, as if negotiations with all three had been exactly the
same, a situation which I find to be highly improbable, absent some further explanation or
factual development. I further note that Sieger failed to testify that she agreed to such terms.
Moreover, there is no evidence of any written agreement, or proposal to such effect. There is
also a lack of evidence to show that, at any relevant time, Respondent was under a binding
commitment to pay for such services.
Further, the statements made to employees during the meeting held the Friday prior to
the strike tend to show that Respondent had no definite plans regarding replacement
employees, (“we might not be able to return to work when we think we could, within those three
days … depending on the contact was that they got for the people to come and work”).
Similarly, the assertions in the letter issued to employees fail to indicate the existence of a
binding obligation, (“we will have to hire temporary replacements for you and we probably will
have to keep them on the jobs of those who strike. . .” ) (Emphasis supplied). The conditional
nature of such communications to employees tends to refute Respondent’s assertion that there
was a plan, or any commitment, based upon requirements from supplier agencies, for
temporary replacements to be hired for a defined period of three weeks.
Therefore, while I credit Sieger’s testimony to the extent that I find that she had
discussions with various agencies to replace striking employees, and that there was discussion
of hiring employees for a period of time exceeding that of the anticipated strike, I find from the
record that during the time Respondent was issuing statements to employees regarding their
reinstatement after a strike, Respondent’s plans to replace its employees in the event of a strike
were inchoate. Sieger’s testimony is by itself insufficient to prove the existence (or necessity) of
a three-week commitment for replacement employees.28
Respondent has cited no authority to convince me that given the incomplete evidence
regarding the apparently undeveloped nature of its plans as late as the Friday prior to the strike,
it has carried its burden of showing that it had a sufficient business justification to assert its right
to delay the reinstatement of employees after an unconditional offer to return to work had been
made.29 I find therefore, under the circumstances established by the record herein, that when

28 In this regard I note that the first thing Sieger mentioned when asked about her discussions with
temporary agencies was the fact that the “rate we were paying for replacement people would be much
higher.” This testimony tends to show that, while it would have been more costly to replace employees for
a shorter period that remained an option.
29 In those situations where the Board has concluded that a substantial business justification existed
for a delay in reinstatement, the quantum of evidence has been more substantial than that proffered by
the Respondent herein. For example, in Pacific Mutual Door Co., 278 NLRB 854, 856 (1986), the
employer lawfully delayed reinstating strikers for 30 days pursuant to its contract with a company
providing strike replacements where the contract was in evidence and the record showed that the 30-day
Continued
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Rutenberg told employees that “if [they] do go on strike for three days, [they] cannot come back
in for the next three weeks. Because he cannot hire workers to be there for three days. So [they]
will be off for three weeks,” he was falsely communicating to employees that a delay in their
reinstatement was a fait accompli based upon contractual arrangements which, at the time,
failed to exist. Thus, by making these statements to employees, Respondent violated Section
8(a)(1) of the Act. Eagle Comtronics, supra; Noel Corp., supra.
By contrast, the unrebutted testimony is that by the following Friday, Respondent
couched its communication to employees in significantly different terms, advising them that they
“might not be able to return to work . . . depending on the contract [that Respondent obtained
for replacement workers]. Here, I agree with Respondent that it was truthfully advising
employees of a possible outcome of the strike and find its communications to employees were
not inconsistent with their rights under the Act and therefore not violative of the Act.
The letter distributed to employees states that the employer “probably will” have to keep
temporary replacement employees on the job until the Union agrees not to call strikes or until a
contract is signed for two reasons: (1) the difficulty of obtaining replacements for a three-day
period and (2) uncertainty over when other strikes might be called. Thus, the letter goes beyond
what was verbally conveyed to employees and advises them that their reinstatement may be
delayed, not for a period of three weeks, but for some indefinite period either until the Union
agrees not to call further strikes or until an agreement is reached.
General Counsel contends that this statement is unlawful because it does not furnish
employees accurate information about their reinstatement rights and because it threatens a
lockout of employees. With regard to this latter contention, General Counsel argues that
Respondent never informed the Union that it intended to enforce its bargaining demands by
locking out employees, as the Board requires. In support of this position, General Counsel relies
upon Eads Transfer, 304 NLRB 711 (1991), enfd. 989 F.2d 373 (9th Cir. 1993). In that case, the
Board found an employer’s claimed economic lockout was violative of Sections 8(a)(1) and (3)
of the Act because it had not notified the union that its refusal to reinstate economic strikers was
in fact due to a lockout. Instead, the employer, without making any reference to a lockout or to
its bargaining demands, refused without explanation to reinstate seven economic strikers when
they made an unconditional offer to return to work. The Board held that if the employer wanted
to invoke its rights under Harter Equipment, 280 NLRB 597, enfd. sub nom. Operating
Engineers Local 825 v. NLRB, 829 F.2d 458 (3rd Cir. 1987),30 it had to declare the lockout either
before or immediately after the strikers made their unconditional offers to return to work. Here,
as noted above, there was no strike or unconditional offer to return to work. Thus, Respondent’s
obligation to formally declare a lockout had not yet matured.31
_________________________
cancellation provision was a necessary condition of the employer getting temporary employees from the
referring company. See also Encino-Tarzana Regional Medical Center, 332 NLRB 914 (2000) and Sutter
Roseville Medical Center, supra, slip op. at 10, where it was specifically noted that the General Counsel
had not alleged an unlawful delay in the reinstatement of economic strikers where there were specific
contractual obligations to guarantee temporary replacements from staffing agencies a minimum period of
employment. Cf. Harvey Mfg., supra at 470 (employer’s private contractual arrangement with an agency
providing temporary strike replacements requiring a 10-day termination notice did not privilege the
employer to continue hiring replacement employees after the union’s unconditional offer to return to
work.)
30 In Harter Equipment, supra the Board held that an employer’s use of temporary replacements
during a lockout in support of its legitimate bargaining demands does not violate the Act.
31 Nevertheless, an argument can be made that employees were so informed. See Ancor Concepts,
Inc., 323 NLRB 742, 744 (1997), enf. denied on other grounds, 166 F.3d 55 (2d Cir. 1999), discussed
Continued
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General Counsel further argues that there is no evidence that there were lawful reasons
for an anticipated lockout. While it would be unfounded, on this record, to assess whether a
lockout, had it occurred, ultimately would have been lawful, in its letter to employees
Respondent posits two circumstances where employer lockouts of striking employees have
been found to be lawful: to secure a commitment from a union to refrain from further strikes and
in support of an employer’s bargaining demands.
With regard to the former, Sieger testified, without contradiction, that in early 2006 she
met with Union representatives Sackman, Shillingford and Nortey. Her unrebutted testimony is
that, at this time, Sackman told her that, as it had no contractual recourse for Respondent’s
continuing fund delinquencies, the Union would continue to engage in picketing and strikes
unless Respondent entered into a contract. General Counsel urges that I not credit Sieger in
this regard. I find however, in contrast to certain of her other testimony, discussed above, that
Sieger’s account of this meeting was presented with corroborating detail and in a forthright
manner. I further note that either the General Counsel or the Union could have presented a
witness to rebut this testimony, including Nortey, who testified herein, and failed to do so. I find
therefore, that the Union informed Respondent that it could anticipate further strikes and there is
no evidence that the Union ever retracted that statement, or provided Respondent with
assurances to the contrary.
Under certain circumstances, the Board has held that where a union would not agree to
refrain from additional strike activity, an employer has established that it possesses a
substantial business justification for a lockout and for placing restrictions on the reinstatement of
economic strikers. See Bali Blinds Midwest, 292 NLRB 243, 246 (1988)(partial lockout lawful
where in anticipation of possible repetition of strike); General Portland, Inc., 283 NLRB 826, 826
fn.2, 838, 840 (1987)(partial lockout lawful where employer reasonably feared and sought
assurances against “quickie strikes” and employees still on strike failed to give such
assurances).
Further, when Respondent alternatively informed employees that their reinstatement
would probably be delayed until the parties reached agreement on a contract, Respondent was
arguably asserting its legal right to lock out its employees in support of its bargaining demands.
See e.g. Ancor Concepts, Inc., supra at 744, where the Board explained that an employer’s
timely announcement of a lockout does not depend on the use of “formal words” to describe its
bargaining tactics. The Board thus held that the employer’s assertion that it would not reinstate
strikers until the parties reached a new agreement was sufficient to inform striking employees
that the employer had locked them out in support of its bargaining position.
Respondent further argues that it could lawfully lock out its employees due to its duty to
care for the residents of the nursing home. In this regard, the Board has held that where a
health care employer has legitimate concerns about maintaining continuous quality patient care,
it may be entitled to lock out its regular employees and operate with replacements. See
Sociedad Espanola de Auxillo de Puerto Rico, supra at 460-461. In that case, the Board found
that a hospital’s decision to lock out employees following the union’s announcement that it
intended to conduct two two-day strikes did not violate the Act, even after the union cancelled
the first planned strike, as the hospital’s decision was based upon its legitimate concern that it
could not find enough replacements during the Christmas holiday season.
_________________________
infra.
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Again, while it is neither warranted nor possible to for me to assess whether, under any
of the above cited theories, a lockout of Respondent’s employees would have been deemed
lawful had it come to pass, I cannot conclude that Respondent’s statements to employees in this
regard were either false or inconsistent with their rights under the law. I find therefore, that the
distribution of the May 12 letter to employees does not violate Section 8(a)(1) of the Act, as
alleged. Accordingly, I shall recommend that this allegation of the complaint be dismissed.
IV. Conclusions of Law
1. The Respondent is, and has been at all material times, an employer within the
meaning of Section 2(2), (6) and (7) of the Act.
2. By engaging in surveillance of its employees by videotaping employees who engaged
in informational picketing, without proper justification, and by threatening to delay the
reinstatement of employees after they engaged in a strike and made an unconditional offer to
return to work, Respondent has interfered with, restrained and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the
Act.
3. Respondent has thereby engaged in unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that Respondent has engaged in conduct violative of Section 8(a)(1) of the
Act by (1) engaging of surveillance of employees by videotaping the picketing activities of its
employees without proper justification, and by (2) threatening to delay the reinstatement of
employees if they engage in a strike and make an unconditional offer to return to work, I shall
recommend that it be ordered to cease and desist from such behavior and to take certain
affirmative action designed to effectuate the policies of the Act, including the posting of a notice
to employees assuring them it will not commit violations of the type found herein or any like or
related violations of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended32
ORDER
The Respondent, Kingsbridge Heights Rehabilitation and Care Center, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Engaging in surveillance of its employees union activities with video cameras, without
proper justification.

32 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
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(b) Threatening to delay the reinstatement of employees if they engage in a strike and
make an unconditional offer to return to work.
(c) In any like or related manner interfere with, restrain or coerce employees in the
exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its facility in Bronx, New York
copies of the attached notice marked “Appendix.”33 Copies of the notice, on forms provided by
the Regional Director for Region 2, 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.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the 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
March 15, 2006.
(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 be dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., July 9, 2007.
____________________
Mindy E. Landow
Administrative Law Judge

33 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(NY)–30–07
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT engage in surveillance of you while engaged in union activity by videotaping
such activity without proper justification.
WE WILL NOT threaten to delay your reinstatement to work if you engage in an strike and make
an unconditional offer to return to work.
WE WILL NOT, in any like or related manner interfere with, restrain or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
KINGSBRIDGE HEIGHTS REHABILITATION CARE
CENTER
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 212-264-0346.