Manorcare Health Services-Easton

National Labor Relations Board - Administrative Judge Opinions

Jan 23, 2009

04-CA-036064 (N.L.R.B. Jan. 23, 2009)

JD-02-09
Easton, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MANOR CARE OF EASTON, PA, LLC, d/b/a
MANORCARE HEALTH SERVICES—EASTON,
and Cases 4–CA–36064
4–CA–36190
SERVICE EMPLOYEES INTERNATIONAL UNION
HEALTHCARE PA.
Decision and Order
DAVID I. GOLDMAN
Administrative Law Judge
Counsel:
Randy M. Girer, Esq. (Region 4, NLRB)
of Philadelphia, Pennsylvania, for the General Counsel
Clifford H. Nelson, Jr., Esq., and Leigh Elise Tyson, Esq.
(Constangy, Brooks & Smith, LLC)
of Atlanta, Georgia, for the Respondent
Bruce M. Ludwig, Esq. (Willig, Williams and Davidson)
of Philadelphia, Pennsylvania, and
Adam Naill, Esq. (SEIU Legal Department)
of Washington, D.C., for the Charging Party
JD-02-09
Easton, PA
Table of Contents
Statement of the Case .............................................................................................. 1
Jurisdiction................................................................................................................ 2
Findings of Fact ....................................................................................................... 2
Background............................................................................................................... 2
October 2007 questioning of Miechur and Klinger ............................................... 3
October 29 & 30, 2007 small group meetings...................................................... 4
Wage increases and bonuses at the facility....................................................... 11
Transfer of Easton Administrator Seiler and ADNS Kublius............................... 12
Kushnerick finds the Mundy letter; her confrontation with Miechur;
Miechur’s discipline ........................................................................................... 14
Events in 2008 .................................................................................................. 19

Analysis .................................................................................................................. 22
a. October 2007 interrogations of Miechur and Klinger
(paragraphs 5 and 6 of the complaint) ........................................................ 22
b. Soliciting employee grievances and promising they
would be remedied; posting Action Plan as promised
(paragraphs 7 and 10 of the complaint) ...................................................... 25
c. Providing a wage increase or lump sum bonus to employees
(paragraph 14 of the complaint) .................................................................. 29
d. The transfer of Administrator Seiler and ADNS Kublius
(paragraph 9 of the complaint) .................................................................... 31
e. Miechur’s discipline, threatened loss of a job, and
confiscation of the Mundy letter
(paragraphs 8 and 15 of the complaint) ...................................................... 32
1. The Wright Line analysis .................................................................. 34
(including analysis of confiscation of union literature
and threatening Miechur with job loss) ............................................ 36
i
JD-02-09
Easton, PA
Table of Contents (continued)
2. Was Miechur’s alleged conduct protected? ...................................... 42
3. The evidentiary ruling barring the Respondent from
obtaining the identity of employees engaged in union activity .......... 49
f. Unlawful conduct alleged to have occurred in 2008
(paragraphs 11-13 of the complaint)........................................................... 53
Conclusions of Law....................................................................................................... 54
Remedy ........................................................................................................................ 55
Order ......................................................................................................................... 56
Appendix ..................................................................................................................... 58
ii
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DECISION
DAVID I. GOLDMAN, Administrative Law Judge. These cases arise out of a union’s
organizing effort at a nursing home in Easton, Pennsylvania. The chief union activist among the
employees was given a final warning—subject to termination for further misconduct—for
soliciting residents to sign a letter to a Pennsylvania state legislator. The employee denied
soliciting residents to sign the letter, which asserted that the facility was short-staffed in a way
that affected care and asked the legislator to convene a hearing at which there could be
testimony as to the need for more staffing and better care. The Government alleges that the
warning for the solicitation was unlawfully motivated retaliation for the employee’s general union
activism, and that, in any event, the solicitation was protected conduct for which she could not
be disciplined. In addition, the Government alleges that, in fact, the employee did not engage in
the solicitation. The Government also alleges that as part of its effort to combat the organizing
campaign, the employer met with employees and solicited grievances and, in order to
discourage employees from seeking union representation, implied that it would remedy the
grievances, and in certain cases did remedy the grievances. It is also alleged that the employer
transferred disfavored supervisors in order to encourage employees not to support the union. In
addition, the Government alleges that in order to discourage employees from supporting the
union, the employer increased wages and starting rates, and provided bonuses to employees.
Finally, the Government alleges an assortment of unlawful interrogations, directives, and
threats, related to union activity.
STATEMENT OF THE CASE
On March 31, 2008, the Charging Party Service Employee International Union
Healthcare PA (Union or SEIU) filed an unfair labor practice charge, docketed by the
Philadelphia regional office of the National Labor Relations Board (Board) as case no. 4–CA–
36064, against the Respondent Manor Care of Easton, PA, LLC d/b/a ManorCare Health
Services – Easton (Manorcare or Easton). The Union filed an amended charge June 2, 2008.
On June 11, 2008, the Board’s General Counsel issued a complaint alleging violations of the
National Labor Relations Act (Act) by Manorcare. On June 13, 2008, the Union filed an
additional charge, docketed by the Board as 4–CA–36190. On August 25, 2008, the General
Counsel issued an order consolidating the two cases and issued a consolidated complaint.
This dispute was tried in Allentown, Pennsylvania, on September 10–12, and 15, 2008.
Counsel for the General Counsel, the Respondent, and the Charging Party filed briefs in support
of their positions on November 13, 2008. On the entire record, including my observation of the
demeanor of the witnesses and other indicia of credibility, I make the following findings of fact,
conclusions of law, and recommendations.1

1The transcript contains a number of errors and I formally correct the following on my own
motion. On page 358, line 22, “MS. GIRER” is inserted in place of “JUDGE GOLDMAN.” On
page 626, line 28, “(recalled)” is deleted. On page 591, lines 4, 17, 20, 23, and page 592, lines
2, 4, 16, “MR. NELSON” is inserted in place of “MR. LUDWIG.” All references to “MR. GIRER”
are corrected to read “MS. GIRER.” On page 208, line 18, “Lori” is inserted in place of
“Barbara.” The correct spelling of the following names is as follows: Trisha Miechur, Karolyn
Collado; Lorie Heimbach, Paula Kublius, Marionlee Specter, Anne “Pua” Klinger, Ed Schuch.
All references to these individuals are corrected to reflect the correct spelling. At the hearing, at
the close of the General Counsel’s case, the Respondent moved to dismiss certain allegations
of the complaint (Tr. 474). I denied that motion on the record, but the ruling has been omitted
from the transcript. I amend the transcript to add my denial of the motion.
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JURISDICTION
The complaint alleges, the Respondent admits, and I find, that at all material times
Manorcare has been an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and a health care institution within the meaning of Section 2(14) of the
Act. The complaint alleges, the Respondent admits, and I find, that at all material times the
Union has been a labor organization within the meaning of Section 2(5) of the Act.
FINDINGS OF FACT
Background
The Manorcare facility in Easton is one of hundreds of short term post-acute and long-
term care facilities operated in 30 states (primarily in Pennsylvania, Florida, Illinois, Michigan,
and Ohio) by Manor Care, Inc., through its operating group HCR Manor Care (Manor Care). In
July 2007,2 Manor Care Inc. entered into a merger agreement, effective December 21, 2007,
with an affiliate of the private equity investment firm, The Carlyle Group (Carlyle). Pursuant to
this agreement, substantially all of Manor Care, Inc.’s common stock would be purchased by
funds managed by Carlyle. Simply put, Carlyle was purchasing Manor Care, although since the
purchase, Carlyle has not been involved in day-to-day operations of Manor Care facilities and
the operations have not changed as a result of the change in control of the corporation.
The impending purchase of Manor Care figured prominently in a multi-state effort by the
SEIU to organize Manor Care facilities, including the Manorcare in Easton, Pennsylvania. This
national campaign was publicly launched on September 19 in Washington, D.C., at an “action”
and press conference conducted by the Union at Carlyle headquarters.
As part of its campaign the Union highlighted concerns, reported independently in the
national media, about the potentially adverse effect of buyouts by private equity firms on
conditions for employees and residents of affected facilities. These concerns were the subject
of union leafleting, rallies, and events at Carlyle headquarters in Washington D.C., Manor Care
headquarters in Toledo, Ohio, and at a speaking engagement in Philadelphia by a chief
executive of Carlyle. These events generated significant media coverage. In addition, union
officials testified at hearings on the sale of HCR Manor Care convened by a Pennsylvania state
legislator, Phyllis Mundy regarding the sale, a matter that required regulatory approval by the
commonwealth. State approval was secured and the buyout went through on December 21.
These events serve as a backdrop for the events directly at issue in these cases, all of
which occurred at the (approximately) 226-bed Manorcare facility in Easton.
The Easton Manorcare facility is a rectangular building administratively divided into 4
units, with a courtyard in the middle. Units 1–3 are on the first level. Unit 4 is on level two, on
the back side of the building. Trisha Miechur has worked at Manorcare as a certified nurse
assistant (CNA) since December 5, 2005. Her grandmother and aunt are residents of the
facility. She works the 3 p.m. to 11 p.m. shift on unit 2, which is a rehabilitation unit with some
long-term residents, and which is situated on the north and west wing of the first level. Between
4 and 6 CNAs work on unit 2 during each shift. Their direct supervisor is a nursing supervisor
working on the floor. There is also an RN supervisor that is “everybody’s supervisor.” The RN
supervisor, in turn, reports to the Director of Nursing (DON) or the DON’s equivalent, the

2All subsequent dates refer to 2007, unless otherwise indicated.
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Administrative Director of Nursing Services (ADNS). The DON reports to the facility
administrator. A Human Resources (HR) Director also has significant supervisory authority.
On October 7, the SEIU leafleted HCR Manor Care facilities, including Manorcare in
Easton. In late September, and increasingly, in October, Miechur and other employees were
aware of the Union campaign and talked among themselves about the Union. According to
CNA Anne “Pua” Klinger, “all the CNAs were talking about it.”3 In early October, Manorcare
administrator Lynette Seiler played an antiunion video for employees at a mandatory inservice
meeting. Although surely not its intended effect, the video presentation led Miechur to go home
and search for the SEIU’s website devoted to Carlyle/HCR Manor Care. She contacted the
SEIU through the website. This contact led to a meeting in Miechur’s home with Easton
employees on October 18, conducted by SEIU organizer Edgar Arecna. The Union held regular
meetings with Easton employees through December 2007.
October 2007 questioning of Miechur and Klinger
Around the time of the October 18 meeting—the record is unclear, whether it was before
or after—Miechur was approached in the unit 2 clean utility room by Lori Heimbach. At that
time, Heimbach held the positions of Assistant HR Director and Payroll Clerk. A few days later,
on October 24, Heimbach was promoted to HR Director. Heimbach asked if she could speak to
Miechur. Miechur said, yes, and Heimbach “asked me have I heard about SEIU trying to
organize in [the] Easton facility.” Miechur said she had, and said, “I believe in it.” Heimbach
asked her “why do you believe in it” and added, “[t]he Union can’t do nothing for you.” Miechur
replied that “some hope of change” was necessary and then resisted further conversation,
saying “is this conversation over. I have residents to attend to.” That was the end of that
conversation. However, a couple of weeks later Heimbach approached Miechur on the
employee smoking deck and asked Miechur if she had changed her mind about the Union.
Miechur replied “hell no.” That ended the conversation and Heimbach left.4

3“Pua” Klinger was a 17-year employee at Manorcare. I found her a particularly credible
witness to events. However, I think that the weight of the evidence suggests that she erred
slightly in her testimony (to be fair, offered, with uncertainty characteristic of someone seeking
to answer accurately) and that events she attributed to September actually occurred in October.
These include discussions about the Union with Miechur, attendance at a union meeting at a
local diner, and discussion with a supervisor about the Union. Similarly, with regard to when,
prior to October 2007, corporate management had last held meetings with employees, it
appears that such meetings were held in 2004, and not longer than that as estimated by Klinger
at trial. But these are small discrepancies, offered, as I said, with a measure of uncertainty. On
the substance of her testimony, Klinger was an excellent witness. Her memory was sharp, her
recall of events was clear, and she provided a lot of detail in a direct and nontendentious
manner. Unless specifically otherwise noted, her testimony is credited.
4This account of these incidents is based on the credited undisputed testimony of Miechur. I
found Miechur, for the most part, a creditable witness. Her testimony was presented with
honest demeanor, and was free from overstatement or inconsistency. Heimbach on the other
hand had an unfortunate tendency to not recall specifics of many of the conversations she was
asked about, and in regards to much of the questioning appeared eager to take refuge in a
failure to recollect. However, those problems are more relevant in considering other events and
conversations. In the case of the two incidents described in the text here, the credibility of
Heimbach’s testimony is not directly at issue, as she did not attempt to rebut Miechur’s
testimony on these points. Miechur’s undisputed account of these incidents is credited.
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At the time of these conversations, Miechur’s support for the Union had not been publicly
revealed. She had not participated in any of the SEIU’s public events, such as the September
19 trip to Carlyle headquarters in Washington D.C., the October 10 press conference in
Harrisburg and other state capitals, or the October 17 rally at HCR Manor Care headquarters in
Toledo, Ohio, that was followed by a caravan to Washington D.C. the next day. However,
employees were talking about the Union among themselves at the facility on a regular basis,
and the employer had begun a campaign to “educate” the employees about unions. The first
record reference to this is the early October video played for employees by Administrator Seiler.
By mid-October, at the latest, supervisors were being assigned to talk to individual employees
about the Union.
In October, Pua Klinger was approached by Deborah Kushnerick, a Registered Nurse
Assessment Coordinator, who had been specifically assigned to speak to Klinger about unions
as part of the employer’s antiunion campaign.5 Klinger was not an open union supporter. When
Klinger was coming to work one day Kushnerick approached her and told Klinger she wanted to
talk. She ushered Klinger into a small hallway leading to the courtyard and asked if Klinger had
“heard that they’re trying to get a union in.” Kushnerick asked Klinger if she knew anything
about unions. Klinger responded that her husband had been a union member for 30 years, and
“I know there is good things and I know there is bad things.” That was the end of the
conversation.6
October 29 & 30, 2007 small group meetings
On October 29 and 30, Regional Director of Operations Diana Johnston and Regional
Human Resources Director Renee Burns conducted small group meetings, primarily with CNAs,
but also with nurses and some other employees at the Easton facility. The stated purpose of
the meetings was to solicit complaints and problems from the employees from which an “action
plan” was to be created to address the problems raised by employees.
According to Burns, small group meetings have been conducted in the past at various
HCR facilities “in one format or another.” At Easton the last such meetings—indeed, the only
one at Easton shown by the evidence—were conducted in late 2004, and by all evidence,

5Kushnerick’s status as a supervisor and agent of the Respondent is admitted by the
Respondent.
6Kushnerick denied this conversation—sort of. Her denials were unsure and equivocal.
Asked if she had asked Klinger if Klinger knew anything about the Union, Kushnerick answered,
“I don't think in that context, no. No.“ The “context” included “lots of conversations” with
employees, and Klinger, about the Union as part of an effort by management that Kushnerick
characterized as providing “educational” materials to help employees to “choos[e]” on the union
issue. With some effort, on cross-examination Kushnerick admitted that “I suppose you could
say” that the information she was providing about the Union was negative. Of course, an
employer’s distribution of antiunion materials is not suspect, but Kushnerick’s lack of candor
was. Kushnerick’s denials of whether she asked Klinger if she knew anything about the Union
or whether Klinger had mentioned her husband’s union affiliation, were also, decidedly
equivocal. As noted, supra, I found Klinger a very creditable witness. I do not believe she
made up this conversation. Her account is credited over Kushnerick’s denials.
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involved larger groups of employees than in October 2007, but did involve the solicitation of
employee complaints.7
In August 2007, Manor Care established and distributed to managers a policy (R. Exh.
7) providing for small group meetings to be held every other month in specific format and
manner, at facilities across the company. The small group meetings were envisioned as a
component part of HCR Manor Care’s corporate Continuous Employee Communications (CEC)
program (R. Exh. 8) also unveiled to managers in August 2007. The CEC program, among
other things, established small group meetings and set forth with great detail the procedures to
be followed in conducting small group meetings. According to Burns, the CEC document “is
really kind of a process document that details, you know, why we do small group meetings, what
we hope to accomplish with the small group meetings, how we want the minutes taken, what we
want the format of the action plan to look like.”
These two documents—the CEC manual, and the small group meeting policy—instruct
the managers that small group meetings are to be conducted jointly by the facility manager/
administrator and a representative from the facility’s HR department. The new policy also calls
for corporate Regional Directors of Operations and Regional Human Resources managers to
conduct a small group meeting at each of their locations every 12–18 months. The CEC
program designates in great detail the format of the meetings, suggests opening comments, and
establishes the structure and procedures to be followed in the meeting. The document provides
that a flip chart or easel should be used to list employee concerns in order “to provide added
visibility of the commitment to really hear the concerns.” The CEC document further instructs
that it is preferable to use the same flip chart in subsequent meetings, noting that when an “item
is resolved, visibly crossing off that item dramatizes for employees our ability to hear concerns
and resolve the issue.” The small group meeting procedures call for the establishment of
Action Plans which capture all employee concerns and can be posted or referred to in larger
staff meetings to show the status of the issues and “dramatize the fact that issues are heard,
action is taken and the issue is resolved.”
It cannot escape notice that the introductory paragraph of the CEC program document
lists “mak[ing] third-party representation unnecessary” as one of the four benefits (along with
enhanced productivity, improved retention and ultimately better services) of the environment
that Manor Care hopes to create through the CEC program. To that end, the CEC manual
suggests that “in locations with significant employee relations concerns or labor activity” it may
be “more appropriate” for the regional director of operations and regional HR representative to
conduct small group meetings twice yearly. The CEC manual includes as a “key component” of
the overall program “vulnerability assessments” which are a method to assess the “overall
employee relations climate, focusing on vulnerability to union organizing.”
In Easton, on September 29 and 30, Johnson and Burns met with numerous employees,
variously estimated at 70–80 by Burns and 100–120 by Johnson, over the two-day period. The
meetings lasted 10 to 30 minutes depending on the size of the group and the talkativeness of
the employees. For management, Burns did 90 percent of the talking, Johnson said little.
Meetings were conducted on all three shifts. According to Burns, in instituting the meeting she
followed the procedures set forth in the August CEC document.

7Johnson testified that prior small group meetings were “exactly the same,” as the October
2007 meetings, but this must be discounted by a noticeable tendency to adapt her testimony to
the perceived needs of the Respondent’s case.
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Although the CEC manual suggests that the small group meetings be voluntary, at
Easton, employees were led to believe, or were told outright, that the meetings were mandatory.
Miechur and CNA Xavier Cordes were in the same small group meeting, along with one other
unidentified CNA. Cordes, testified that Lori Heimbach announced on the intercom that he was
to attend the meeting, a directive he reasonably understood as mandatory. Klinger testified that
her small group meeting consisted of 8–10 employees, most of whom were CNAs. She too
described having her name announced over a speaker and being told to report to a conference
room for the meeting. Because of this, she assumed the meeting was mandatory. Miechur also
described being paged over the intercom, along with other employees, and testified that she
was told directly by her supervisor that the meeting was mandatory. The CNAs were not told
what the meeting was about beforehand.8
Four employees (Miechur, Cordes, Klinger, and CNA Karolyn Collado) testified about the
small group meetings, as did Burns and Johnson. Even with the caveat that the meeting
Collado was in was not conducted by Burns and Johnson—but by Heimbach—the employees’
accounts of the format and process are largely consistent. Burns and Johnson’s accounts are
also largely consistent with the accounts offered by the employees with two significant
exceptions: first, Burns and Johnson deny that they mentioned the Union (either directly or by
reference to an outside party), in the manner claimed by the employees; and second, Burns and
Johnson’s accounts are dedicated to minimizing or denying any suggestion that they led
employees to believe that their complaints would be resolved—as opposed to merely heard—as
a result of this process. As discussed below, Burns and Johnson are not credible on these
matters.
I will turn to these discrepancies in a moment. However, the bulk of the testimony about
the meetings is undisputed. Burns did most of the talking in the meeting and Johnson wrote
down the employee complaints, using a large flip chart with paper mounted on a stand. Burns
testified that she began the meeting by introducing herself and Johnson, telling the staff that
they do these meetings periodically, but that [i]t had been a while since we’d been there and we
just wanted to get some feedback on how it was going there and if there was anything we could
do to make . . . the building a better place to work.” In the conference room there was a
“painter’s easel” with a large pad of paper on it. Burns said the employees were there “because
she wanted to ask each individual if we had any complaints and what the troubles were.” The
problems cited by employees were written down and “[Burns] said they were going to start
something called an Action Plan and post the results of all the things that she was writing down
. . . so we can see how it’s working.” The bulk of the meeting involved going around the table
and asking each employee individually about their concerns and complaints. Issues raised
included, short staffing, lack of respect from the administration, pay and benefits concerns, lack
of help from nurses, complaints about the administrator Seiler and the Administrative Director of
Nursing Services (ADNS) Paula Kublius.9 According to Miechur, “they said that they would try

8Burns’ testimony that notices were posted at Easton announcing the meetings and that no
individual employees were slotted or scheduled for particular meeting times is not substantiated,
and has a second hand feel to it. The posting was not produced, and no supervisor or manager
involved in the actual logistics of how employees came to attend the meetings testified.
Moreover, Burns’ claim is contradicted by the employee witnesses’ uniform testimony of being
directed by name through loudspeaker announcements to attend a particular meeting.
9The ADNS was the equivalent of the Director of Nursing (DON) and at various points in the
record Kublius is described as the DON.
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to fix” the problems raised. Cordes testified that they said “[t]hey were going to try and solve
them in a timely manner. They were going to come up with solutions for these.” In Klinger’s
meeting, not every employee had an opportunity to speak because they ran out of time for the
meeting. Klinger complained mostly about problems with obtaining supplies. Burns said certain
items, like wages, “had to go through Corporate headquarters . . . they don’t have the authority
to decide . . . to raise anybody’s salary, so that would not be fixed overnight. Other things, they
were going to try to fix like supplies.”
In accordance with the CEC manual, employee complaints were translated into an
Action Plan, typed by Burns, with input from a number of managers, and the Action Plan was
referenced (and displayed in enlarged form) at subsequent staff meetings in December, and
posted by management on a bulletin board in the break room devoted to work-related notices.
After a few weeks, the enlarged version of the Action Plan was replaced in the break room by
standard 8 1/2 x 11 sheets of paper showing the Action Plan. The Action Plan, which was
updated as items were completed, listed issues raised by staff, and showed the response and a
target date for completion of the response, if not already completed.
Burns and Johnson, offered transparently tendentious and implausible claims that
nothing was said to employees at the meetings about what would happen with respect to
problems brought to their attention in the meetings by employees. For example, Burns was the
witness in the following exchange with Manorcare counsel:
Q Was anything said to the employees who attended these meetings about
what would happen with respect to the problems or matters that they brought to
your attention and were written on the flip chart?
A No.
Q Did you say anything about what would happen next, what was, why was this
information being collected?
A No, because we wanted to talk to everybody before we, I
mean, we couldn’t make any promises to anybody because we didn’t know what
everybody was going to say. I mean, we needed the
feedback first.
Q Did you tell employees, how did you end the meeting?
A Thank, we thanked them for coming.
Q And then they left.
A. And then they left.
I find this an extraordinary and implausible account of what was said to employees. If
true it would have made the meetings mysterious indeed, and thoroughly at odds with the CEC
manual format that Burns claims she followed for the meeting, which contains the instruction
under “Small Group meeting tips” that “it is important to let the employees know that their
concern has been or is in the process of being addressed.” The CEC manual also provides that
the meeting format ”inform the employees that after the meetings are completed, the issues will
be categorized . . . and reviewed with others in management who will be charged with validating
and looking into the concerns and making recommendations to address the concerns.” In fact,
later in her testimony Burns conceded that
“I do believe we told them that there would be an action plan and we would
identify ways to fix some of the issues that they were having, but we didn’t tell
them what they were, what those issues were going to, I mean what the, the fixes
were going to be.”
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This latter explanation is more plausible, and more consistent with the accounts provided
by employees, which made clear that Burns and Johnson were not just there to hear complaints
but to get them resolved.
Johnson also went to some lengths to obfuscate any suggestion that she and Burns told
employees that their problems would be resolved, testifying that at this and other similar
meetings in the past,
we let them know that, you know, we’re hear to hear any concerns that they may
have, that we’re not there to solve any problems, but, and we always let them
know what we’re going to do with the information, and trend it, and the
administrator will work on an action plan and review with the staff, and review
progress, you know, over time.
These strike me as litigation-inspired efforts to avoid providing evidence for complaint
allegations that involve offering to resolve issues raised by employees. I do not credit Johnson
or Burns on these points.10
The other discrepancy between the employee and management accounts of the
meetings involved references to the Union. According to Miechur, Burns told the employees
that they “had heard there was a lot of complaints and concerns. And that they’re here to try to
fix it without a second party involved.” Cordes recalled that they stated that “they were looking
for solutions that wouldn’t involve an outside party.” Klinger testified that Burns “mentioned
SEIU . . . and the rumors going through and she also mentioned that if there was a problem in
the facility we can take care of those without outside interest, you know, through a party coming
in.” According to Klinger, Burns said “[s]he heard that [SEIU] ha[d] been contacted.”
Burns denied that she or Johnson brought up unions, the SEIU, or second or third
parties, but conceded that “at that point, I think the staff was already talking about it, and if it
came up we just really, that’s not what we were to talk about.” She added that “there were
some people that said what’s going on with the Union and we just said we were not here to talk
about that, so we didn’t engage in conversation about any Union activity during those meetings.”
Johnson testified about the small group meetings but did not address this subject.
I credit the employees’ testimony that the issue of the Union was, in fact, raised by
Burns, and that she referred in some fashion to an outside, second, or other party—i.e., the
Union—not being necessary. For one thing, all three of these employee witnesses were good
witnesses. Miechur was the most interested, but her testimony rang true. I have noted, supra,
my view that Klinger was an exceptional witness. Cordes testified with a demeanor that
suggested disinterest, precise recall, and no effort to color or alter his testimony to help one side
or the other. The slight variation in how Cordes and Miechur recalled Burns’ description of the
Union (“second party” compared to an “outside party”) does not distract from their credibility. It

10Johnson’s testimony that she and Burns did not tell employees that they would develop an
action plan but that “We told the employees that the administrator would develop that plan,”
cannot be credited. It is a continuation of the effort to distance the small group meetings from
any statements to employees that could be reasonably understood as a suggestion by Burns
and Johnson that they intended to resolve the issues raised. The statement not only was
contradicted by Burns, but by Johnson’s pretrial affidavit which stated, “We said up front that we
would develop an action plan based on the trends that were disclosed at the meeting.” I do not
credit Johnson on this score.
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shows their testimony was unscripted and reflected an honest effort to recount an event that
carried less importance at the time it occurred.
In contrast, as discussed above, Burns and Johnson demonstrated a lack of candor in
their evasions and efforts to make their testimony fit the Respondent’s case. And with regard to
whether the Union was referenced by Burns, Johnson did not offer testimony to dispute the
employees’ accounts, further buttressing their testimony. In addition, with regards to
determining whether Burns referenced the Union in the meetings, it is not insignificant that a
stated purpose of the CEC is to “make third-party representation unnecessary,” an aim that
increases the likelihood that Burns and Johnson mentioned the Union in their presentation and,
indeed, the euphemistic phrasing of which, echoes the testimony of the employees about how
Burns referred to the Union.11
Finally, at least one of the small group meetings were conducted by Lori Heimbach (as
of October 24, the new HR Director of the facility) and another unidentified manager employed
locally at the facility. Karolyn Collado testified that the small group meeting she was told to
attend (which included 3 or 4 other CNA employees), was led by Heimbach and this other
woman. They followed a similar format as the Burns/Johnson meetings and the meeting was
consistent with the CEC manual. They wrote down the employee complaints on “a big
clipboard.” The meeting began with Heimbach stating that “we’re going to try to see what we
can do to make this facility a better place to work” and that she “wanted to know what our
complaints [were] about the facility.” Heimbach told the employees that they weren’t going to
give them answers there, but “she was going to come back with the answers.” The meeting
ended with the unidentified woman saying “that they were going to write everything down and
that was going to be addressed.”

Although the conduct of the meetings was guided by the new small group meeting
policy, that policy was not the proximate cause of the Johnson and Burns’ decision to hold small
group meetings in Easton in October. In this regard it is notable that the policy called for local
administrators to conduct small group meetings every other month. By all evidence this did not
occur at Easton. The only small group meetings occurring since 2004 at Easton were the
October 29–30 meetings conducted by Burns and Johnson, with Heimbach conducting at least
one of those meetings.
Notably, neither Johnson nor Burns described the motive for the meetings as a matter of
compliance with the new policy. Rather, they attributed the meetings to conflict between HR
Director Reitnauer and Administrator Seiler, although their explanations were not entirely
consistent or credible.
Burns testified that she and Johnson decided to have the meetings “around the end of
October” after Reitnauer called “in October and said that the staff wanted to talk [to] Diane and

11Finally, I note that on cross examination Miechur was asked if she referred to Seiler as
“a f’ing bitch” during the small group meeting, a comment she denied. Miechur was also asked,
and denied, if she received counseling for making such a comment during the meeting. Miechur
was then asked, “if Ms. Johnson testified that in fact that all occurred, would she be lying?”
Miechur answered, “Yes.” I note that neither Johnson nor anyone else ever testified that any of
that occurred, an omission which I must conclude demonstrates that the suggestion was
baseless. Miechur’s fortitude in the face of such tactic and can only add to her credibility.
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I.”12 Johnson recalled Burns telling her about Reitnauer’s call in early September, “right after
[Reitnauer] got back from vacation . . . in August.” According to Johnson, she and Burns met
with Reitnauer and Seiler in mid-to-late September (an event not mentioned by Burns), and
thought that the breach between Reitnauer and Seiler had been repaired, until Seiler “called me
in hysterics” over an incident she had just had with Reitnauer. According to Johnson, Seiler’s
call triggered the small group meetings, because of “concern about something that’s going on in
the building”:
“[a]t that point, I talked to Renee Burns about needing to go in and get to the
bottom of what was going on in Easton. I usually rely on the administrator and
the facility human resource manager to give me a good temperature check of
what’s happening in the facility, but it was obvious that that was not going to
happen in this case, so I felt that we needed to go in and meet with the staff.
Although she talked to Seiler on an almost daily basis, Johnson denied knowing
anything about union activity at the time the meetings were scheduled.13
Johnson also testified that she was unfamiliar with Miechur’s name prior to the small
group meetings. However, Burns knew her name well from an October 18 phone call she
received from HR Director Reitnauer. In that conversation Reitnauer conveyed a conversation
she claimed to have had with Miechur. Reitnauer told Burns that Miechur told her that a union
organizer named Edgar had been at her house conducting a meeting the night before with many
of the nurse aides, and they were meeting again after work with the SEIU. Reitnauer told Burns
that Miechur had said that the meetings had been going on since September 1, and that
Miechur had been the anonymous employee quoted in a recent newspaper article (presumably
about the union or about Manorcare). Reitnauer also told Burns that Miechur had said it would
take “45 days to get the paper processed, and that in about two weeks they would see where
they were going to go with this.”14

12Reitnauer testified but did not address any of these matters. There was no corroboration
for the claim that staff sought meetings with Johnson and Burns.
13I note that Marionlee Specter, who reported to Johnson, and did not take over any duties
at Easton until November 14, when she became the administrator, learned of active union
organizing at Easton in September, “probably” from conversations with Johnson.
14Burns’ testimony about this phone call was not offered for the truth of the matters stated in
the phone call by Reitnauer, but rather to establish that Burns was told this and heard of
Miechur’s union activity through it. (Tr. 481–482). Reitnauer testified, and confirmed that she
called Burns, and confirmed some of the contents of the call, albeit in very vague fashion.
Miechur, for her part, retook the stand and denied confiding such details to Reitnauer, and
speculated that Reitnauer may have reported things she overheard Miechur talking about to
other employees on the smoking deck that they shared. I find based on Reitnauer and Burns’
testimony that Reitnauer made this call to Burns, essentially along the lines testified to by Burns.
However, whether Miechur told all of this to Reitnauer is a harder but less relevant question. Its
relevance is limited to any implications it might have for Miechur or Reitnauer’s credibility.
Clearly, based on the call to Burns, Reitnauer knew some of the details of the union campaign
and knew of Miechur’s role. At the same time, some of the details noted by Burns seem off, or
at least uncorroborated, exactly as if it was overheard or the product of hearsay. As discussed,
above, I found Miechur a credible witness. If I found that she did, in fact, disclose this
conversation to Reitnauer, I would discredit only her denial of it, and attribute it to an
Continued
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Somewhat remarkably, Burns testified that she did not mention this telephone call from
Reitnauer to Johnson, although, according to Burns, she and Johnson decided to go to Easton
to hold the small group meetings in late October, after this call had occurred. It was not that
Burns saw the matter as unimportant. After she got the call she quickly called corporate HR
and told them “that I thought our employees might be looking to organize, and that they were
talking about it.”15
Wage increases and bonuses at the facility
Effective November 21, CNAs at Easton had their pay rates adjusted. They received, at
the least, a 2 percent increase, although if an employee was more than 10 percent over the top
of scale, the employee received a 2 percent lump sum payment in lieu of an hourly rate
increase. In addition, as part of this increase, the starting pay rate at the facility was increased
from $10.25 to $11 per hour. Current employees making less than $11 per hour received
increases to and in many cases beyond $11 per hour. This wage increase or payment was
supplemental to the regular anniversary-date wage increases annually received by Easton
CNAs. Many employees received far more than a 2 percent raise.16
The genesis of these wage increases rested with corporate management. Regional HR
manager Burns testified that she had been working on the wage issue since February 22, 2007,
when she requested local market wage averages Manor Care’s corporate compensation
department. According to Burns, such a market analysis is done periodically, as often as every
6–8 months, but sometimes once a year, and wage adjustments made when necessary to
remain competitive. Burns explained that “[t]he goal is not to hire people from the outside for
more than what our existing staff is making.” From February to August, Burns was collecting
competitive data. Her testimony and notes from an August 17, 2007 regional managers
meeting suggest that by August Burns was “about 50% done” on a wage proposal covering
RN’s, LPNs, and CNAs in the Lehigh Valley facilities, which includes Easton.17 She submitted
_________________________
embarrassment at having been revealed to have talked with a management representative
about internal union matters. But the denial of this incident would not, in my view, undermine
what I found to be her general credibility on other events that she did not feel embarrassed or
ambivalent about. Of course, it is long settled that "[i]t is no reason to refuse to accept
everything a witness says, because you don't believe all of it, nothing is more common in all
kinds of judicial decisions than to believe some and not all." NLRB v. Universal Camera Corp.,
179 F.2d 749, 753 (2d Cir. 1950), revd. On other grounds, 340 U.S. 474 (1951); Conley
Trucking, 349 NLRB 308, 316 fn. 18 (2007), enf’d. 520 F.3d 629 (6th Cir. 2008); Daikichi Sushi,
335 NLRB 622, 622 (2001).
15Despite this, Burns claimed that at the time of the small group meetings she and Johnson
“didn’t know at that point that there was any formal labor . . . organizing.”
16The General Counsel and the Respondent stipulated (GC Exh. 32 at ¶13) that the wage
increases and lump sum payments amounted to 2 percent of current pay. However, the
stipulation notwithstanding, this does not appear entirely accurate. The Respondent’s own
evidence suggests that the raises to Miechur and Callodo were 6.4 percent and 5 percent
respectively. (R. Exhs. 27 and 26). Documents produced by the Respondent suggest that in
most cases the across-the-board increases were far greater than 2 percent (see GC Exh. 39).
17The Lehigh Valley facilities include two facilities in Easton, two in Bethlehem, and two in
Allentown. Burns explained that “we generally pay the same . . . in all three markets.”
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the wage proposal for approval to the corporate compensation department in Toledo, Ohio at
Manor Care headquarters in late September or early October. She testified that several
versions were sent back and forth.
Complaints about wages were a significant topic of discussion at the October 29–30
small group meetings conducted by Burns and Johnson. The Action Plan submitted into
evidence states that “a wage proposal is in process” and it is marked “completed.” The wage
hike proposal was approved by the corporate compensation department sometime in November
and definitely by Thanksgiving. Burns testified that the Easton facility, and Old Orchard, another
Manorcare facility in Easton, PA, instituted wage increases in November. They were approved
and implemented at the “Bethlehem campus” a couple of months later.
Transfer of Easton Administrator Seiler and ADNS Kublius
At the small group meetings numerous complaints regarding local management were
registered by employees. The list of employee complaints raised in the meetings (GC Exh. 44)
is wide ranging, and covers many topics from wages and benefits, to staffing, to supplies, to
patient care, to issues of morale generally. Many of the complaints might be viewed generally
as an indictment of management. However, a number of the complaints specifically complained
about the administrator and/or nursing management. These include the following from the list
compiled by Burns:
Administrator is not visible; doesn’t acknowledge or say “hello”; Feel ignored by
Administrator and nurse management team; Administrator, nurse management
team and Department Heads are visible and help out when the DOH and/or
Corporate staff is in the facility—then they disappear again; Staff on 11–7 doesn’t
know who the Administrator is – never see her; Told by nurse management “if
you don’t like it here, you can go to McDonald’s; Feel ignored by Administrator;
Have never seen the ADNS and/or Administrator doing rounds; Need to see the
NHA and ADNS; not just when someone is visiting the facility; Administrator says
she has an open door policy but she just sends you to someone else and she
never follows up; Management doesn’t even say “good morning”; Nurse that
drops pills on the floor and doesn’t pick them up; ADNS is aware[.]
Even prior to the small group meetings, there had been some problems with Kublius. In
June she received a warning (her first) for failing to report to the facility when she received word
that a patient had been injured. According to Burns, beginning in the summer, Kublius had
been on a performance improvement plan, as she was having “difficulty managing labor,
difficulty managing the schedule, getting her ECO room, clinical processes meeting room in
compliance with the company’s standards.” Johnson complained that Kublius, “abdicated the
responsibility for labor management to her scheduler. . . . And that was Paula’s job.” In late
October, Seiler developed an “action plan” for Kublius, that designated her duties and was
updated week by week.
On November 12, Manor Care transferred Easton Administrator Seiler and ADNS
Kublius. The decision to remove Kublius was made by Johnson, along with Burns, after the
small group meetings. Johnson agreed with and adopted a statement in her pretrial affidavit
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that “after the [small group] meeting, it was decided that [Kublius] lacked the confidence of the
staff, and she was transferred to another facility.”18
Seiler’s transfer was also at Johnson’s request, and, in a statement endorsed by
Johnson, made for “essentially similar reasons” as Kublius, an explanation that echoes
Johnson’s assertions that prior to the small group meetings she had been told by Burns that
staff at Easton had concerns with Seiler’s conduct.19
The transfers of Kublius and Seiler constituted two changes in what amounted to a
complete overhaul of management personnel in October and November. On October 23, days
before the small group meetings, HR Director Reitnauer transferred from Easton to a Manor
Care in Allentown, in order to be closer to home. She was replaced by her assistant Heimbach,
who assumed the position of HR Director on October 24. Seiler was replaced as administrator
by Marionlee Specter. Specter had been working as a senior administrator overseeing
administrators in two facilities in Allentown. She was notified by Johnson on November 13 to
report to Easton the next day to serve as the facility’s administrator. Johnson also arranged for
Kate Gieroczynski, who was working at another Manor Care facility, to report to Easton on
November 14, to serve as Assistant Administrator, a position she continues to hold. Specter
and Gieroczynski remained as Administrator and Assistant Administrator in December, when
Jacqueline Stolte transferred from a Manor Care facility in Landsdale, and assumed the position
of Acting Administrator, and worked as another assistant to Specter. Specter took the title of
Executive Director in January 2008 but remained at Easton and overlapped with Stolte, sharing
an office with her, until Specter stopped working at Easton near the end of June. Stolte
remained at Easton until July 8, 2008, when Ed Schuch became the administrator.20 Kublius
was replaced by Cindy Hummel, who began at Easton on November 12. In addition, Dawne

18See Fed. R. Evid. 801(d)(1), Notes Of Advisory Committee On Proposed Rules ("If the
witness admits on the stand that he made the statement and that it was true, he adopts the
statement and there is no hearsay problem"). I specifically discredit Johnson’s declarations at
trial that it was Seiler’s decision to transfer Kublius from Easton. Burns testified that “Diane
Johnson was the decision maker.” Kublius’ transfer papers list as the reason for the transfer
request “Request of Diane Johnson.” And perhaps, most compelling, Seiler attributed the
transfer decision to Johnson and Burns, and rejected the suggestion—in what appeared to be
an unguarded display of surprise that anyone could suggest such a thing—that she had
anything to do with the decision to transfer Kublius. (“I was not involved with her transfer. . . .
That was Renee Burns and Diane Johnson.”) I credit Seiler on this point, which was not
challenged, explained, or even followed-up upon by the Respondent.
19Somewhat inconsistently, Johnson at first claimed that she removed Seiler because of
“challenges” Seiler had managing Kublius and also with Reitnauer, “[a]nd I felt that for her
peace of mind and the betterment of the facility, that it would be best if we transfer her away
from the Easton facility.” Of course, were this accurate, Reitnauer and Kublius’ transfers would
have removed any rationale for Seiler’s removal. I note that Johnson’s April 2007 performance
appraisal of Seiler reflected no problems, contained many complimentary comments, and her
total score fell between “meeting all expectations” and “exceeding expectations.” When Seiler
testified she was not asked about the circumstances of her transfer.
20Stolte testified that, at least as of April 2008, she reported directly to Johnson, and not to
Specter. It is likely this was because, beginning in March, Specter was out on medical leave
from “time to time.”
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Signore was brought in to train Hummel, and they both held the position of ADNS until Hummel
was transferred to a Bethlehem facility in July 2008.
Kushnerick finds the Mundy letter; her confrontation with Miechur; Miechur’s Discipline
The Pennsylvania Department of Health was responsible for approving the transfer of
the ownership license required for Carlyle to assume control of Manor Care. In conjunction with
this, on November 13, Pennsylvania state representative Phyllis Mundy conducted a hearing on
Carlyle’s intended purchase of Manor Care. The hearing addressed concerns about the
potential affect that Carlyle’s control of Manor Care could have on care for the facilities’
residents. Mundy’s press release called on the Pennsylvania Department of Health to “not grant
licenses to the Carlyle Group until a full investigation is completed that will determine whether or
not the Carlyle Group, a private equity firm new to the long-term industry, will be able to take
quality care of seniors.” Representatives from the SEIU, Manor Care, and the Pennsylvania
Department of Health testified at the November 13 hearing.
Miechur was not involved in the November 13 hearing but soon afterward she began to
play a public role in the Union’s national campaign regarding Carlyle and Manor Care, Inc.
On November 16, the Union brought a group of employees and family members to
Carlyle headquarters in Washington D.C. to confront Carlyle representatives. Four employees
from Easton participated in the event, including Miechur. Miechur’s mother (whose own mother,
Miechur’s grandmother, was a resident of the Easton facility) also participated in the D.C. event.
The union group sought to meet with Carlyle CEO David Rubenstein. He was not available and
eventually a Carlyle representative met with the employee/family group. The event, as well as
interviews after the event, were videotaped by the Union. The video included interviews with
Miechur and her mother. The interview was posted on a union website devoted to the
Carlyle/Manor Care buyout. The interview remained posted on the website for a couple of
weeks.
The day after returning from Washington D.C., Miechur was approached by Heimbach at
work. She told Miechur that she had “seen what you did. I’ve seen your video on the SEIU
website.” 21
The Union attempted to generate support for a second hearing with state representative
Mundy. SEIU representative Dennis Short drafted a form letter to representative Mundy asking
for a follow-up hearing on the Manor Care transaction. According to Short, the letter was
designed to generate support for a second hearing in which employees could talk directly to
public officials about staffing issues at the facility and concerns with Manor Care’s antiunion
campaign. In general the Union wanted to keep pressure on the state to examine carefully the
license transfer and, even more generally, to generate publicity for the union activities. The
form letter, addressed to Mundy, stated the following:
My name is ______________ and I am a ____________at the ManorCare
Easton nursing home in Easton PA.

21Heimbach could not recall having any such conversation and denied that it occurred. I
credit Miechur’s account. As discussed, supra, Heimbach’s testimony inspired less confidence
in the accuracy of her account. Miechur also testified that she thought, but could not recall for
sure, that Heimbach had told her during this conversation that she knew that Miechur had
contacted the Union. I do not rely on this portion of Miechur’s testimony.
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I want to thank you for your leadership on the ManorCare/Carlyle buyout and for
holding an Aging and Older Adults Services Committee meeting on November
13th.
At my facility, we are very short staffed and it affects the care for our residents.
For example:
I hope you will do all you can to make sure that the Department of Health officials
live up to their word when they testified in your committee that:
“The Department will pursue all avenues necessary to ensure this change of
ownership does not negatively impact care provided to residents in the
Commonwealth.”
I would like the opportunity to tell my story about the need for more staffing and
better care at my facility and I hope you will have a follow up hearing where I can
do so.
Please contact me if you have any questions and I look forward to hearing from
you.
Sincerely,
Phone Address:
(italics in original).
Copies of these letters were provided to employees at a November 21 union meeting.
They were also provided to employees at a subsequent November 28 meeting attended by
some of the employees’ family members as well as employees. At the November 21 meeting,
the Union asked employees to solicit other employees, but also residents and family members
sign the letters and return them to the Union.
Miechur testified that the Union “told us that we can give these to residents, and
coworkers and family members on break time, but do not do it in resident care areas.” Collado,
who was also at the meeting, took some of the letters. Miechur did not take letters to distribute
because she knew Manorcare was aware of her union activity and she feared retaliation.
Miechur told her coemployees that when they had signed the letters, or obtained signatures,
they could place the letters in her bag, which she kept in the nourishment room at work.22
That evening when she came to work, Miechur placed her bag on the table in the
nourishment room, on the far right corner as she typically did. Two other employees also had
their bags on the table. In addition, there were a lot of papers scattered around on the table, “a
big mess” as described by Collado.

22The nourishment room is a room at the Easton facility on unit 2, next to the nurse’s
stations, and is marked on the door as being for employees only. The room has a refrigerator,
freezer, microwave, charting equipment, and procedure and medical books for nurses and
aides. Residents’ snacks, or food brought by families is kept there. CNAs regularly keep their
personal belongings in this room during shifts.
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At around 4 to 4:30, an hour to an hour and a half into the shift, Collado was in the north
hallway looking down the hall into the nourishment room. She saw Kushnerick in the
nourishment room. Her back was to the nourishment room door and she was looking through
papers on the table and scattering them as she looked. She reached the corner of the table
where Miechur’s bag was and—Collado could only see her back—Kushnerick stood there
reading something and then walked out of the nourishment room with the piece of paper, and
walked to the copy room. Collado went to tell Miechur that Kushnerick “had one of her papers.”
Miechur went to find Kushnerick and approached her at the intersection of the north and west
hallways.
Kushnerick confirmed this account of events, to a certain extent. Kushnerick testified
that she was in the nourishment room looking for a “wanderguard bracelet,” for a resident being
admitted to the facility—an “exit seeking admission.” 23 Normally wanderguards are not kept in
the nourishment room, but in the nursing office down the hall. However, Kushnerick claimed
that someone—she did not identify the person—told Kushnerick that one was in the
nourishment room. Kushnerick testified that in looking through the newspapers, personal items,
and at least one bookbag on the table, “I saw a paper that was a form and it had a . . . resident’s
name on it and I . . . didn’t recognize the paper. I just took it.” According to Kushnerick, she
took the paper “[b]ecause I didn’t recognize it.” She saw it had a resident’s name on it, and that
it was not a typical Manorcare form. However, she also admitted that she had heard a rumor
that residents were being asked to sign such letters by Miechur and other CNAs, and that when
she picked up the paper she “couldn't be certain but I thought maybe it was” connected to that
rumor.24 Kushnerick said that the form was on top of a pile that looked to be the same papers
underneath. Consistent with Collado’s observation, Kushnerick testified that she made a copy.
A few minutes later Miechur approached Kushnerick and asked her, “those papers in
your hand, did you just steal [them] out of my bag?” Kushnerick told Miechur that she had been
in the nourishment room looking for a wanderguard and she handed the paper back to Miechur.
Kushnerick told Miechur, that she “can’t be handing these out on work time.” Miechur denied
handing them out and, pressed by Miechur, Kushnerick admitted that she did not see Miechur
handing out any papers. Kushnerick told Miechur, “stop worrying about the Union and worry
about your job.” Kushnerick then walked away.25

23A wanderguard is a bracelet placed on a wrist or ankle that triggers an alarm should the
wearer exit the building.
24Although uncertain, Kushnerick thought she might have heard that rumor from the
administrator. Heimbach also had heard such a rumor, but could not recall its source.
25This account is based on the credited testimony of Miechur. Kushnerick denied making
any such comments to Miechur. According to Kushnerick, she was approached by Miechur who
“said that I had something of hers.” Kushnerick testified that she gave the letter back to Miechur
and Miechur walked away. Given the charged nature of the incident, along with more general
assessments of the credibility of these two witnesses (discussed above) I doubt that
conversation would be as short, even perfunctory, as that described by Kushnerick.
I note that Miechur’s testimony described seeing Kushnerick with “a bunch of papers,” while
Kushnerick only described taking one, and handing one back to Miechur. Collado testified that
Kushnerick took one paper to copy, and only a copy of one paper was turned into Specter.
However, Miechur’s discipline notice clearly reads that she is being disciplined for soliciting
multiple witnesses. I do not need to and do not resolve this discrepancy.
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Kushnerick returned the solicitation letter to Miechur, but kept a copy she had made and
that same evening turned it over to facility administrator Specter.
Specter had transferred to Easton just one week before. Although she had not met
Miechur, upon coming to the building she was briefed on union matters by Johnson or Burns
and “Trisha Miechur’s name had come up as somebody who had been actively involved in the
organization campaign.” Specter had been made aware of union leafleting at Easton in her
regional meetings, conducted by Johnson, even before being assigned there. Specter recalled
that either Burns or Johnson had told her about Miechur’s appearance on the SEIU website.
By her account, Specter asked few questions of Kushnerick, and her testimony
regarding what they discussed was very unsure. Kushnerick. for her part, and consistent with
the vagueness of her testimony generally, could recall nothing of the conversation she had with
Specter when she provided the copy of the letter to Specter. Specter testified that Kushnerick
came to her with a copy of the solicitation letter and “said that she had Trisha soliciting people,
patients, residents and that she got the letter in the Charting Room.”26
Kushnerick claimed she gave the copy to Specter without having ever read the paper.
Kushnerick could not recall having any further conversations with Specter or anyone else from
management regarding what she found.
Instead, that day or the next Specter reviewed the letter with the corporate Director of
Labor Relations, Barbara Kilmurry, who had come from corporate headquarters in Toledo, Ohio,
and was working onsite in Easton in response to the union organizing. Specter also reviewed
the letter with Heimbach, Gieroczynski, and Stolte “to look at where we were going in terms of
the disciplinary process.” According to Gieroczynski, the Respondent’s attorney Nelson
participated in at least one meeting by phone regarding the Miechur discipline.
Ultimately, in determining the discipline, Specter consulted with and took “direction” from
Burns and Kilmurry. They reached a “consensus” decision that Miechur should be disciplined
under Section B–19 of the Employee Handbook. That provision operates as a catch-all
provision, requiring an employee to “[p]erform your job according to expectations and conduct
yourself properly in other serious instances not specifically listed.”27
Specter was not involved in writing the disciplinary notice, which she testified “came
about through Barbara Kilmurry and Renee Burns in consultation with some others.” For
appearance, or formal purposes, however, the local managerial staff perceived the ultimate
decision on the discipline as Specter’s. The disciplinary notice was actually written by
Gieroczynski, using language drafted by the Respondent’s attorney Nelson, who consulted with
the group by phone and provided the language sometime after this meeting.28

26The testimony showed that the charting room was the same as the room most witnesses
referred to as the nourishment room.
27The Handbook lists A, B, and C work rules. Type A rules are “critical” and “will result in
suspension, subject to termination, pending a final review for the first occurrence.” Type B rules
are “major” and will result in termination based on a progressive disciplinary schema. Type C
rules are “minor” but can also result in termination based on progressive discipline.
28In her testimony Burns did not discuss the disciplining of Miechur. Kilmurry and Nelson
did not testify.
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Specter made clear in her testimony that “[w]e wanted it to be a final written warning
action but not a termination.” As she explained, “we weren’t looking for a discharge decision.”
However, the discipline was issued as “a final written warning.”29 According to Gieroczynski,
“[w]e all agreed that that was an appropriate discipline. . . . We had not had a situation like this
occur before and we decided that it would be appropriate.” They were all “well aware” that
Miechur was a union activist. Kushnerick was not involved in the meetings and the managers
relied upon Specter’s account of events.

There is no express work rule prohibiting solicitation of a resident. There are work rules
involving solicitation, but not of residents, and they were not relied upon. However, in Specter’s
view, “our policy is not to solicit residents”—in any area of the facility at any time. Specter
agreed, however, that this was not written in the handbook. Indeed, by all evidence it was not
written at all, or even orally conveyed at any time prior to the events surrounding this incident.
Gieroczynski asserted that “it's a generally known policy that we do not solicit residents” but
agreed it was not written down, and offered no support for the statement.
At no time did Specter undertake, or direct anyone to undertake an investigation into the
facts of what occurred. She relied on the short exchange with Kushnerick.30 Beyond, this
brief—and not clearly recalled—discussion when Kushnerick reported on the solicitation letter,
by all evidence there was no investigation into the incident. No management witness was
involved in, or knew of anyone else, talking with Kushnerick, or other employees, residents, or
even Miechur about the events underlying the discipline. HR Director Heimbach believed there
had been an investigation, but was not involved in it, did not recall who was. It turned out she
believed there had been one only “[b]ecause it wouldn't have warranted a discipline at that level
without investigating it first.” The only explanation for the lack of an investigation was Specter’s
suggestion that it might “upset” residents for such questions to be asked.
Miechur heard nothing else regarding the incident until November 28. On that evening,
at about 11 p.m., as the work shift was ending, Gieroczynski approached and asked if she could
talk to her. Miechur was heading toward the office when her supervisor advised her she should
not go to the meeting alone. The supervisor and Miechur asked Klinger to go into the meeting
with Miechur. Together they went to HR Director Heimbach’s office, where Heimbach and
Gieroczynski were waiting. At first Gieroczynski and Heimbach resisted Klinger’s presence but
then acceded to allowing her as an observer.
Gieroczynski announced that Miechur was receiving a final write up. Gieroczynski told
Miechur that she had been disloyal to the company, and it was “type B write up.” Miechur
started crying and denied ever passing out the papers, stating “you are accusing me of
something I didn’t do.” Miechur asked Gieroczynski, “did you see me passing out those

29Specter said that in arriving at this level of discipline, she and Burns and Kilmurry
considered a July 2006 suspension given to Miechur for an incident in which Miechur used a
patient’s telephone to make a call. In relying upon this warning Specter did not speak with
anyone involved and did not know that suspension was rescinded and Miechur paid for her time
off work after an investigation vindicated Miechur. In relying on this July 2006 warning, Specter
(and Burns and Kilmurry) also ignored the Handbook’s statement that as a type C violation it
was to “become inactive for the purposes of progressive discipline after one year.”
30Specter denied prior knowledge of rumors of solicitation, something to which Kushnerick
admitted and suggested might have been told to her by Specter.
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papers?” Gieroczynski said “no.” Miechur asked, “did anybody see me pass out those papers.”
Gieroczynski again said, “no.” Miechur refused to sign the paper because she denied
committing the solicitation described in the discipline. Gieroczynski and Heimbach signed the
notice. Gieroczynski said that the next step would be termination. Miechur asked “how do I go
from no write ups to a third and final write up,” and Gieroczynski replied that it was a type B
violation. Gieroczynski mentioned that she was aware that Miechur contacted the Union.
Miechur said, “you are doing this because you know I called the SEIU. Kate [Gieroczynski] said
yes, we know that you called the union.” Miechur said, “this isn’t fair. She said I didn’t do what
you’re accusing me of and they said, well, she’s still getting wrote-up and this is her last write-up
and next time she will be terminated.” Miechur called it harassment, said she wanted to get an
attorney, and asked to call her mother.31
During the meeting, Gieroczynski read the disciplinary notice to Miechur. It
stated:
Your solicitation of Residents to complain about the Center by distributing
pre-printed forms for their signatures constitutes disloyalty towards the company
that is not protected by any Federal or State law. Such action can harm the
Company’s legitimate business interests and is a violation of the HCR Manor
Care standards of business conduct. Among other things, the form you
distributed and asked the residents to sign states:
“At my facility, we are very short staffed and it affects the care of our
residents.”
This kind of comment violates the standards we believe every employee
should follow because it disparages the care MCHS-Easton and its staff strive to
provide. It may also unnecessarily upset residents and raise undue concerns in
the minds of some residents and family members as to the level of care which we
provide at the facility.
The notice stated that if the behavior continues, “you will be subject to Termination.”
Events in 2008
Miechur’s prominence in the Union’s national campaign continued to grow in 2008. On
January 18, along with about 50 other union activists, Miechur attended a conference on private
equity firms in Philadelphia at which Carlyle CEO David Rubenstein was speaking. Three
Easton employees, including Miechur were present. When Rubenstein was introduced, SEIU
supporters entered the room, unfurled a banner saying “Carlyle fix Manor Care now” and
leafleted and chanted. When the chanting stopped Miechur, who had been seated at a table
near the stage, stood and addressed Rubenstein using a megaphone. Miechur introduced
herself as a Manorcare employee and began talking about working conditions and care at the
facility and the efforts to form a union. Rubenstein and she talked back and forth in front of the
audience for about 10 minutes, until the conversation got heated when Rubenstein criticized
Miechur’s diction. This resulted in more chanting. The Union activists were escorted out by

31This account of the discipline meeting is based on the credited and undisputed account of
the meeting provided by Miechur and Klinger. Both Gieroczynski and Heimbach testified, but
neither contradicted or gave much of an account at all about the meeting, which, given the care
with which this case was litigated, I take as an effective admission of the accuracy of Miechur
and Klinger’s testimony. I note further, that on cross examination, Miechur denied saying to
Gieroczynski “I knew you would do this.” I credit her denial of making this statement, which was
never asserted by any witness.
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police. No charges were filed. The incident was covered by the Philadelphia Inquirer, to which
Miechur gave an interview, and the New York Post, as well as other national news outlets.
That evening, Rubenstein contacted Miechur and apologized for the remark he had made, and
this provided a further opportunity for the two to discuss issues relating to the facility.
The next day Miechur went to work and brought the Philadelphia Inquirer article, which
included comments from Miechur’s interview. When she was heading up to the dining room she
left the paper in the nourishment room. Later, a CNA approached her and said that Heimbach
had been in the nourishment room, alone, and that Miechur’s newspaper was now gone.
Miechur paged Heimbach and asked her if she had seen Miechur’s newspaper. Heimbach said
no, and said she did not have time to discuss this, and Miechur should come to her office if she
wanted to discuss it. She then saw Heimbach in the hallway and Heimbach invited Miechur to
her office. In her office Heimbach denied taking the paper, but said to Miechur, “I’ve seen what
you’ve done. I’ve known what you’ve done. You should be ashamed of yourself. . . . [H]ow can
you walk in to this facility with your head high after what you’ve done?”32
The following Monday, January 21, Stolte approached Miechur and told her that Specter
would like to speak to her. Miechur attempted to have a witness come with her to Specter’s
office but Specter said that this did not involve discipline and there was no reason for a witness.
Stolte was also in Specter’s office. Specter had the Philadelphia Inquirer and New York Post
articles on the previous week’s protest in Philadelphia, and told Miechur, “[y]ou know you want
to talk to me.” Then, echoing Heimbach’s words from the previous week, she asked Miechur,
how she could “walk in this facility with my head high.” She said that “I need to stop doing what
I’m doing because we’re not going to get anymore residents in to Manorcare and I should be
ashamed of myself.” Miechur said she would not stop. They agreed the meeting was over and
Miechur left.33
Miechur’s role in the Union’s campaign continued. She traveled to Baltimore to a rally in
support of other Manor Care employees. On February 13, Miechur traveled to Washington D.C.
where the Union was hosting a conference that brought Manor Care workers from across the
country together. As part of this conference, union activists went to the Carlyle headquarters
and attempted to talk to a Carlyle official. Miechur attended this conference in D.C.
On March 10, the Union held an event at the Easton facility called “march on the boss.”
Workers and family members gathered in front of the facility. Then a delegation entered the
facility to provide a list of proposals to management for improving working conditions and
service-related issues. This event was covered in a local newspaper. Quotes from Miechur and
a picture of her (and some family members) were included in the article’s accompanying
photograph.
Around March 22, Miechur was part of a union group that traveled to Japan to talk to
nursing home workers and compare conditions at a chain of nursing homes in Japan bought by

32Although her memory was sketchy, Heimbach admitted the essentials of this conversation
and I credit Miechur’s account. Heimbach recalled Miechur asking if she had taken her
newspaper, recalled denying it, and recalled telling Miechur in reference to a newspaper article
about the facility featuring Miechur, “[i]f I were you I would be ashamed.”
33Both Stolte and Specter testified, but neither disputed Miechur’s account. This was a
thoughtfully defended case. The failure of these witnesses to address these issues was telling.
I credit Miechur’s undisputed account.
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Carlyle. Upon her return Heimbach mentioned that she had heard that Miechur went to Japan.
Miechur told Heimbach she had been on a business trip with her father.
On approximately April 7, Acting Administrator Stolte conducted a series of inservice
meetings. Miechur attended one of the meetings attended by several--Miechur estimated three,
Stolte said six to eight—CNAs. The presentation consisted of a power point presentation. The
first power point slide stated:
You say . . .
. . .MCHS-Easton IS a Good
Place to Work!
The second slide stated:
During the past five months,
we have lived through:
● Attacks in the newspaper on the care we provide;
● Picketing by the SEIU;
● Comments from a few staff that they
will go to the press with problems
instead of working together to solve
them.
During the second slide, Miechur stood up and walked out of the meeting, remarking
“this is bull crap” or “bull shit” a comment that Miechur admitted was inappropriate for her to
have made.34 Miechur returned to her regular work. Later Stolte overheard Miechur from the
hallway repeating her “bull crap” comment. She sent supervisor Alija Johnson, a nurse
supervisor in training, to ask if she could speak to Miechur. They went to the computer room
where they met Stolte. Stolte told Miechur that she left the meeting abruptly, and upbraided her
for her unacceptable conduct and for using foul language in the meeting and in the hall, near
patient rooms. Miechur told Stolte that she felt like she was being “persecuted” and that she felt
that the presentation was attacking her and that she had every right to contact the Union.
Miechur continued: “I’m tired of the meeting [ ] being about me and SEIU. I’m tired of working
in a hostile environment.” Stolte replied, “if you don’t like it you can quit.”35 Miechur told Stolte,
“I’m not going to quit because I’m here working for my residents.” Miechur also told Stolte that
“you are going to have to fire me to get rid of me.” Stolte told Miechur she was not about to fire
her, and she was not going to discipline her for walking out of the meeting.

34Miechur testified that she said “bull crap.” Stolte testified that she said “bull shit.” I have
no reason to resolve this minor inconsistency. Either would be considered inappropriate under
the circumstances.
35Stolte’s slightly different admission was that she said “I told her that no one was making
her work here.” I do not believe it necessary to resolve the discrepancy. In context, the
difference between the comments is inconsequential. However, if it mattered to the analysis, I
would credit Miechur’s version over Stolte’s, as her recollection of this incident was more
persuasive.
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ANALYSIS
a. October 2007 interrogations of Miechur and Klinger
(paragraphs 5 and 6 of the complaint)
The General Counsel alleges in paragraph 5 of the complaint that Miechur was
interrogated about her union sympathies. Paragraph 6 of the complaint alleges that Klinger was
similarly interrogated. The General Counsel alleges that these interrogations violated Section
8(a)(1) of the Act.
Section 7 of the Act grants employees, among other rights, “the right to self-organization,
to form, join, or assist labor organizations.” 29 U.S.C. § 157. Pursuant to Section 8(a)(1) of the
Act, it is “an unfair labor practice for an employer to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in section 7.” 29 U.S.C. § 158(a)(1).
The applicable test for determining whether the questioning of an employee constitutes
an unlawful interrogation is the totality-of-the-circumstances test. Sunnyvale Medical Clinic, 277
NLRB 1217 (1985); Rossmore House, 269 NLRB 1176 (1984), enfd. 760 F.2d 1006 (9th Cir.
1985). While the Board has identified a number of factors that are “useful indicia”36 in making
this determination, there are no particular set of factors that are to be “to be mechanically
applied in each case.” Rossmore House, supra at 1178 fn. 20; Westwood Health Care Center,
330 NLRB at 939. Rather, the Board has explained that “[i]n the final analysis, our task is to
determine whether under all the circumstances the questioning at issue would reasonably tend
to coerce the employee at whom it is directed so that he or she would feel restrained from
exercising rights protected by Section 7 of the Act.” Westwood, supra at 940; Sunnyvale
Medical Clinic, supra. This is an objective standard, and it does not turn on whether the
“employee in question was actually intimidated.” Multi-Ad Services, 1226, 1228 (2000), enfd.
255 F.3d 363 (7th Cir. 2001). Generally, it is unlawful for an employer to inquire as to the union
sentiments of its employees. President Riverboard Casinos of Missouri, 329 NLRB 77 (1999).
In this instance, Heimbach’s questioning of Miechur was violative of the Act.
Heimbach’s inquiry of Miechur was neither casual nor accidental. She isolated Miechur for the
purpose of making the initial inquiry. It came in the context of an ongoing antiunion campaign
by management—a perfectly lawful response by an employer to concerns about unionization,
but one that necessarily impacts the likelihood that an interrogation is coercive. In such a
context, the interest is unlikely to be casual. The questioner is not indifferent to the response.
This was true here. Heimbach directly approached Miechur, asked if she could speak with her,
and “pulled [her] in” the clean utility room, presumably to keep others from overhearing their
conversation. Her question—had she “heard about SEIU trying to organize in [the] Easton
facility—directly tested Miechur’s personal knowledge of union activity in the facility. Heimbach
“was clearly seeking information from [Miechur], not conveying well-known information to
h[er].”37 And when Heimbach’s questioning led to an acknowledgement of Miechur’s “belief” in

36Perdue Farms, Inc. v. NLRB, 144 F.3d 830, 835 (D.C. Cir. 1998), quoted approvingly in
Westwood Health Care Center, 330 NLRB 935, 939 (2000).
37Smithfield Packing Co., 344 NLRB 1, 2 (2004), enfd. 447 F.3d 821 (D.C. Cir. 2006);
Amcast Automotive of Indiana, 348 NLRB 836, 837 (2006) (no violation where no evidence that
supervisor’s general question about rumors of union activity was designed or reasonably
perceived as effort to uncover the union activities or sympathies of any employee).
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the Union, Heimbach questioned the reasonableness of that belief by suggesting the futility of
unionization—“[t]he Union can’t do anything for you”—itself (an unalleged but) arguably an
independent unfair labor practice. Miechur made clear that the questioning was unwelcome,
she curtly sought to end the conversation, but this did not end the matter. A couple of weeks
later Heimbach approached Miechur and asked if she had changed her mind on her support for
the Union. That it had not is irrelevant. There was no valid reason for these inquiries. Nor is
there evidence that Heimbach had friendships with Miechur or other rank-and-file employees.
See, Smithfield Packing, supra. There is no evidence that Miechur was comfortable talking with
Heimbach about personal matters. Amcast Automotive of Indiana, 348 NLRB 836, 837 (2006).
To the contrary, the questioning was obviously unwelcome. Further it should not be forgotten
that Heimbach was not a low-level supervisor. At least by the time of the follow-up questioning
she was HR Director at the facility, making her one of the top three officials at the facility,
according to Heimbach’s testimony. Although the date of the initial interrogation is unsettled in
the record, it was likely before October 24, at a time that Heimbach was still the assistant HR
director. However, she was still a well known, and prominent part of facility’s leadership.38

38I conclude that the General Counsel has proven that Heimbach was an agent of the
employer at the time she interrogated Miechur, even assuming, as is likely, that during the first
interrogation Heimbach was an Assistant HR Director/Payroll Clerk and had not yet assumed
the position of HR Director. The Board articulated its rule for establishing agency in Pan-Oston
Co., 336 NLRB 305, 305–307 (2001):
The Board applies the common law principles of agency in determining
whether an employee is acting with apparent authority on behalf of the employer
when that employee makes a particular statement or takes a particular action.
Cooper Industries, 328 NLRB 145 (1999); Hausner Hard Chrome of KY, Inc., 326
NLRB [426], 428 [(1998)]. Apparent authority results from a manifestation by the
principal to a third party that creates a reasonable belief that the principal has
authorized the alleged agent to perform the acts in question. Southern Bag
Corp., 315 NLRB 725 (1994) (and cases cited therein). Either the principal must
intend to cause the third person to believe the agent is authorized to act for him,
or the principal should realize that its conduct is likely to create such a belief.
Service Employees Local 87 (West Bay Maintenance), 291 NLRB 82 (1988)
(citing Restatement 2d, Agency, § 27 (1958, Comment a)).
The Board's test for determining whether an employee is an agent of the
employer is whether, under all of the circumstances, employees would
reasonably believe that the employee in question was reflecting company policy
and speaking and acting for management. Waterbed World, 286 NLRB [425],
426–427 [1987] (and cases cited therein). The Board considers the position and
duties of the employee in addition to the context in which the behavior occurred.
Jules V. Lane, 262 NLRB 118, 119 (1982).
In short, “[i]t is well established that where an employer places a rank-and-file employee in a
position in which employees would reasonably believe that the employee speaks on behalf of
management, the employer has vested that employee with apparent authority to act as the
employer's agent, and the employee's actions are attributable to the employer.” Mid-South
Drywall Co., Inc., 339 NLRB 480 (2003).
I find that employees would reasonably believe that Heimbach represented and spoke for
management in personnel related matters, including when asking Miechur about her union
sympathies. Indeed, other supervisors and managers were engaged in a campaign, directed by
management, to “educate” specific employees about the Union. Moreover, Heimbach regularly
spoke for management: she spoke for management to groups of current employees, and new
employees going through orientation (including employees hired at other Manor Care facilities)
Continued
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Finally, Miechur’s disclosure of her Union activity to HR Director Reitnauer on October
18 did not make Miechur an “open” union supporter, a factor that may, depending on
circumstances, mitigate the coerciveness of questioning. The fact is, as Reitnauer admitted,
Miechur talked to her in confidence, and what is more, Reitnauer “always” told employees that
they could talk to her in confidence. I pass no judgment on Reitnauer’s swift betrayal of that
confidence, as HR Director surely she had competing obligations to her employer. But
Miechur’s decision to confide, even in a supervisor, to someone “she talked to [ ] all the time,”
to someone “she would come to [ ] when she had problems or issues,” hardly makes her an
“open” union supporter, and hardly swings a door open to unwelcome interrogation of her
knowledge of union activity and declarations about the futility of unionization, followed up two
weeks later by inquiry as to whether her sentiments had changed. The fact is, by all evidence,
at this point in time Miechur was not open about her union activity. She did not wear union
buttons. She was not involved in Union protests or demonstrations. She was not featured in
newspapers.
Kushnerick’s interrogation of Klinger was less egregious, and a closer call. In this
instance there was no follow-up to the interrogation, no suggestion that supporting a union
would be futile, and Kushnerick was not as highly placed, or on track to be as highly placed, as
Heimbach. However, Klinger was not an open union supporter, and the inquiry was not casual.
Kushnerick was specifically assigned to “educate” Klinger about unions, “grabbed her” and took
her to an area of the facility in which they could talk alone. The questioning of her knowledge of
the union campaign, and if she “knew anything about unions” (i.e., probing her views of
unionism) came in the context of spreading the employer’s antiunion message. An interrogation
that is part and parcel of an employer’s antiunion campaign is more likely coercive because the
supervisor’s hostility to unionism, which is not personal but a manifestation of employer policy,
raises the stakes for the employee put in the position of answering questions about union
_________________________
on issues relating to payroll and time clock issues. She performed the payroll portion of the
orientation for new employees on average every other week. She created postings regarding
the new time clock procedures. She coordinated ceremonial awards for employees. As an
“employee advocate” she was charged with investigating and answering questions for
employees regarding pay and benefits, and spoke for management when she got back to the
employees with the answer or resolution to their problems. Specifically, on employee questions
related to payroll Heimbach resolved the issues with employees on her own, without
consultation with others in management. Heimbach regularly contacted employees over the
intercom system. She posted announcements of HR policy. She substituted for the HR
Director (indisputably an agent and managerial employee) on an irregular but repeated basis,
although did not perform the full range of HR Director tasks while substituting. She was part of
the two person HR “team” along with the HR Director. She interviewed applicants. She had
access to personnel files, which were maintained in her office, an office in which she was the
sole occupant. Whether or not she possessed the indicia of a statutory supervisor, the
reasonable employee would consider her a management representative when she spoke on
human resource matters, including her interrogation of Miechur. Accordingly, Heimbach was an
agent of the Respondent for purposes of this allegation. Notably, Section 2(13) of the Act
states: “In determining whether any person is acting as an ‘agent’ of another person so as to
make such other person responsible for his acts, the question of whether the specific acts
performed were actually authorized or subsequently ratified shall not be controlling.”
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activity or what she knows of unions. Given the totality of circumstances, Kushnerick’s
interrogation was reasonably likely to be coercive and violated Section 8(a)(1) of the Act.39
b. Soliciting employee grievances and promising they would be remedied;
posting Action Plan as promised (paragraphs 7 and 10 of the complaint)
The General Counsel alleges (¶7 of the complaint) that the Respondent violated Section
8(a)(1) of the Act by soliciting employee grievances in the October 29 and 30 small group
meetings and, in order to discourage unionization, implying that it would remedy the grievances.
In a related allegation, the General Counsel further alleges (¶10 of the complaint) that the
posting of the Action Plans constituted an actual remedying of many of the grievances mooted
in the small group meetings, also in violation of Section 8(a)(1).
“Section 8(a)(1) prohibits employers from soliciting employee grievances in a manner
that interferes with, restrains, or coerces employees in the exercise of Section 7 activities.”
American Red Cross Missouri-Illinois, 347 NLRB 347, 351 (2006). That manner includes the
implied or explicit promise during a union organizing drive to correct the solicited grievances: “it
is not the solicitation of grievances itself that is coercive and violative of Section 8(a)(1), but the
promise to correct grievances . . . that is unlawful.” Uarco, Inc., 216 NLRB 1, 2 (1974).
“The solicitation of grievances alone is not unlawful, but it raises an inference that the
employer is promising to remedy the grievances.” Amptech, Inc., 342 NLRB 1131, 1137 (2004),
enfd. 165 Fed. Appx. 435 (6th Cir. 2006); Blue Grass Industries, 287 NLRB 274 fn. 4 (1987);
Uarco, Inc., 216 NLRB at 2. “The solicitation of grievances in the midst of a union campaign
inherently constitutes an implied promise to remedy the grievances.” Capitol EMI Music, 311
NLRB 997, 1007 (1993), enfd. 23 F.3d 399 (4th Cir. 1994).
In this case, it is clear that Manorcare’s October 29 and 30 small group meetings were
for the precise purpose of and did, in fact, involve the solicitation of grievances, and occurred
during an organizational campaign of which the employer was well aware. What is more, there
is no reason to consider whether Manorcare implied that it would remedy the solicited
grievances, as the evidence shows that the promise to remedy the complaints was expressly
made during the meetings. Conveying an intent to fix the problems raised by employees was
an integral part of the small group meetings. According to the credited testimony of employee
witnesses, “they said that they would try to fix” the problems raised, and “solve them in a timely
manner. They were going to come up with solutions.” Burns said certain items, like wages,
“had to go through Corporate headquarters . . . they don’t have the authority to decide . . . to
raise anybody’s salary, so that would not be fixed overnight. Other things, they were going to
try to fix like supplies.” Burns told employees, “they were going to start something called an
Action Plan and post the results of all the things that she was writing down. . . so we can see

39The Respondent’s contention (R. Br. at 64–65) as to all alleged interrogations—that “there
is simply no showing of harm here, and thus no violation”—is meritless. A violation of Section
8(a)(1) does not depend on the subjective reaction of the employee, or on whether the
interference succeeded or failed. Rather, the Board’s test is whether the conduct reasonably
tends to interfere with the free exercise of the employee rights under the Act. KSM Industries,
336 NLRB 133 (2001). The Respondent’s citation to Yellow Ambulance Service, 342 NLRB
804, 810 (2004) is misplaced. That case involved the dismissal of an 8(a)(3) and (5) allegation
(and a derivative 8(a)(1) allegation) because the employer’s discriminatory and unilateral
changes had no material adverse effect on employees. However, a showing of adverse affect is
unnecessary, indeed, irrelevant to an independent 8(a)(1) violation for unlawful interrogation.
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how it’s working.” Consistent with this, subsequent to the small group meetings, Manorcare
began posting “Action Plans,” which, as promised, showed Manorcare’s progress in remedying
the grievances solicited in the small group meetings.
Indeed, this was all in accord with the format set forth in the CEC manual. The entire
point of telling employees that the Action Plans would be drawn up was, as set forth in the CEC
manual, to “dramatize the fact that issues are heard, action is taken and the issue is resolved.”
The CEC manual that Burns followed in conducting the meetings tells presenters that “it is
important to let the employees know that their concern has been or is in the process of being
addressed.” The CEC manual also provides that that presenters ”inform the employees that
after the meetings are completed, the issues will be categorized . . . and reviewed with others in
management who will be charged with validating and looking into the concerns and making
recommendations to address the concerns.”
Moreover, the Respondent did not just solicit grievances and state that the problems
would be redressed, but also made clear that discouraging union representation was the reason
for the promises to remedy the grievances. According to Miechur, Burns told the employees
that they “had heard there was a lot of complaints and concerns. And that they’re here to try to
fix it without a second party involved.” Cordes recalled that Burns and Johnson stated that “they
were looking for solutions that wouldn’t involve an outside party.” Klinger testified that Burns
“mentioned SEIU . . . and the rumors going through and she also mentioned that if there was a
problem in the facility we can take care of those without outside interest, you know, through a
party coming in.” And the CEC manual makes clear that in making these statements, Burns
was being candid about the meeting’s purpose: the CEC manual states that “mak[ing] third party
representation unnecessary” is a stated purpose of the small group meetings and the CEC
directs corporate labor relations officials such as Burns to increase the frequency of their
participation in small group meetings when faced with “labor activity.”
Given, this the Respondent’s small group meetings—involving the solicitation of
grievances and the explanation that the grievances would be remedied, offered as a reason to
reject unionization—are straightforward violations of the Act.
In this context, the Respondent’s “past practice” defense is entirely misplaced. “An
employer who has a past policy and practice of soliciting employees' grievances may continue
such a practice during an organizational campaign” without an inference being drawn that the
solicitations are an implicit promise to remedy the grievances. Wal-Mart, Inc., 339 NLRB 1187,
1187 (2003). However, it is also the case that “an employer cannot rely on past practice to
justify solicitation of grievances where the employer ‘significantly alters its past manner and
methods of solicitation.’” Id. (quoting, Carbonneau Industries, 228 NLRB 597, 598 (1977)). In
any event, without regard to the similarity of the new solicitations to past ones, “it must be
borne in mind that the issue is not whether there has been a change in method of solicitation,
but rather whether the instant solicitation implicitly promised a benefit.” American Red Cross,
supra at 352.
Manorcare argues that its small group meetings held in Easton on October 29 and 30
merely represented the continuation of a past practice and policy of soliciting grievances. The
Respondent also offers a further, related, defense. The Respondent contends that the small
group meetings were conducted in accordance with a policy—the CEC manual and small group
meeting policy—adopted in August of 2007, before there was any union organizing campaign.
These defenses are unavailing under the circumstances of this case.
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The Respondent’s contention is based on a misapprehension of Board policy. A past
practice of soliciting grievances does not immunize an employer from Board sanction for
soliciting grievances and promising to remedy them for the purpose of discouraging
unionization. “[I]t must be borne in mind that”—past practices notwithstanding—“the issue is . . .
whether the instant solicitation implicitly promised a benefit.” American Red Cross, supra. “[I]t
is not the solicitation of grievances itself that is coercive and violative of Section 8(a)(1), but the
promise to correct grievances . . . that is unlawful.” Uarco, Inc., 216 NLRB 1, 2 (1974).
The Board will not draw an inference of implicit promise where solicitations are simply a
continuation of an ongoing established practice of soliciting employee grievances. However, an
employer is not free during a union campaign—regardless of its past solicitation practice—to
solicit new grievances and tell employees as to their grievances, “they would try to fix them;”
“[t]hey were going to try and solve them in a timely manner”; “[t]hey were going to come up with
solutions for these”; that some issues “would not be fixed overnight” but “[o]ther things, they
were going to try to fix.” That is what the Respondent did here. Regardless of its past practice
of soliciting complaints, an employer is not free during a union campaign to solicit new
grievances and tell employees that we are “here to try to fix it without a second party involved,”
and that we are “looking for solutions that wouldn’t involve an outside party,” and that “if there
was a problem in the facility we can take care of those without outside interest, you know,
through a party coming in.” That is what the Respondent did here. A past practice of soliciting
grievances can protect an employer from an inference that its solicitations include an implicit
promise to remedy the grievances. But in the midst of a union campaign, a past practice of
solicitation does not sanction express promises to remedy newly solicited grievances in a direct
effort to discourage employees from choosing representation. Similarly, as a factual matter,
routine implementation of the CEC/small group meeting policy was not the motivation for the
October 29–30 meetings. Indeed, neither Burns nor Johnson claimed this. In any event, it is
not lawful to establish a policy of soliciting and remedying employee grievances and implement
it during a union organizing campaign with explicit assurances to employees that union
representation is unnecessary. House of Raeford Farms, 308 NLRB 568, 569–570 (1992)
(“Further, the Respondent explicitly promised to remedy numerous grievances in these
meetings and, as the judge found, the Respondent did in fact make good on some of these
promises,” which is unlawful unless the grant of benefits was decided upon prior to onset of
union activity). Here, the solicitation of grievances and promise to remedy them during the
union campaign violated the Act.
The General Counsel also takes issue with the premise of the Respondent’s contention
that there was a past practice of soliciting grievances, and that, if there were, that the current
small group meetings were conducted in the same way. I agree, although, as indicated in the
text, I do not believe that such a past practice could immunize the Respondent’s present
conduct of promising to remedy grievances to discourage employees from choosing union
representation. The Respondent’s witnesses testified that small group meetings had been a
longstanding practice and policy and recalled a handful of meetings over the years at Manor
Care facilities. Despite this general assertion, the evidence uncovered only one remotely similar
meeting at Easton and that was, as best the record reveals, in 2004, and involved larger groups
of employees than in the October 2007 small group meetings, and no evidence of specific
questioning of employees as was utilized in 2007. Further, the 2004 meeting was a follow-up to
an employee survey, a feature missing from the 2007 meetings. Thus, there was no ongoing
practice of small group meetings at Easton—one instance three years ago does not a practice
make—and, by all evidence, its manner and methods in the past solicitation meeting was
altered for the 2007 union-inspired meetings.
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Moreover—and perhaps this is just another way to approach the point made above—the
2007 meetings differed in a very important way from prior meetings: the 2007 meetings involved
express references by the corporate representatives to the unionization efforts and the
assurance that they had come “to try to fix [problems] without a second party involved.” This
would seem to be the precise opposite of what must be shown if an employer is to rely on a past
practice of solicitation as grounds for the Board to permit it to carry on with solicitations in the
midst of a union campaign.40

Here, the referencing of the desire to avoid a union put the October 2007 meetings on a
wholly different footing from past meetings. The point of the “past practice” exception for
solicitation of grievances is that the solicitation is not reasonably perceived as an implied
promise to remedy grievances to discourage union representation when it is merely the
continuation of business as usual for employer and employee. In other words, because it is an
ongoing practice, and would be expected to have occurred without regard to the union
campaign, the solicitations will not reasonably be perceived as a change in practice and policy
designed to interfere with employees’ choice of whether or not to select union representation.
See, Yale New Haven Hospital, 309 NLRB 363, 365 (1992) (no violation where in reestablishing
employee grievance committees to recommend changes management “Respondent did what it
had done in the past and in all likelihood would have done in the absence of any union activity”).
That defense is not satisfied where, as here, in the midst of a union campaigning, the employer
holds meetings where it explains to employees that they don’t need a union and that we can
“fix” your problems without a union. Indeed, the reference to avoiding union representation
goes to the heart of what the Board is trying to prevent when it posits its general rule against
solicitation of grievances and implies a promise of their remedy during a union campaign. In
this case, the expressed antiunion rationale for the promise to remedy employee grievances
makes the 2007 meetings fundamentally different from anything conducted by the Respondent
in the past. For this reason alone, the Respondent cannot rely on its alleged past practice of
soliciting employee grievances to justify the October 2007 small group meetings.
Finally, I reject the contention by the General Counsel (GC Br. at 83) that the posting of
the Easton Action Plans, promised in the small group meetings and posted a few weeks later,
constituted an independent unfair labor practice. The posting of the Action Plans was clearly
part and parcel of the employer’s solicitation and promise of redress. The Action Plans support
the case against Manorcare. However, the substance for the Action Plans was developed in the
small group solicitation meetings. The Action Plans highlight the issues solicited in the small

40See, Aldworth Company, Inc., 338 NLRB 137, 179, 186, 191 (2002) (solicitation meeting
during union campaign differed from past practice in, among other ways, that in solicitation
meeting during union campaign management tied solicitation of grievances to the union
organizing effort); Edward A. Utlaut Memorial Hospital, 249 NLRB 1153, 1156 (1980) (employer
“contends that it previously solicited employees' complaints . . . . by having a suggestion box, by
holding meetings with employees and asking what, if any, problems they had, and by having
voluntarily imposed a grievance procedure in its policy book which encouraged the filing of the
complaints. Respondent is correct up to the point, that point being that the solicitation of
grievances complained of herein was specifically geared to finding out what brought out the
interest in the Union and how to discourage that interest. What was a legal act prior to the
commencement of the union campaign switched to an attempt to induce the employees not to
exercise their right to self-organization”).
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group meetings and announce the (often the already accomplished) promised remedy. But I
see no grounds to frame the posting as an independent unfair labor practice.41
c. Providing a wage increase or lump sum bonus to employees
(paragraph 14 of the complaint)
The General Counsel alleges that the November wage increase and bonuses to
employees, and an increase in the starting rate for CNAs, unlawfully interfered with, restrained
and coerced employees in the exercise of their rights, in violation of Section 8(a)(1). The
General Counsel further alleges that wage and rate increase and bonus payments were a
discriminatory effort to discourage employee from supporting the Union, in violation of Section
8(a)(3) of the Act.
An allegation that an employer has violated Section 8(a)(1) by granting benefits in
response to union organizational activity is analyzed under NLRB v. Exchange Parts, 375 U.S.
405 (1964). In NLRB v. Exchange Parts, the Supreme Court held that "the conferral of
employee benefits while a representation election is pending, for the purpose of inducing
employees to vote against the union," interferes with the employees' protected right to organize.
"Similarly, an employer cannot time the announcement of the benefit in order to discourage
union support, and the Board may separately scrutinize the timing of the benefit announcement
to determine its lawfulness." Mercy Hospital Mercy Southwest Hospital, 338 NLRB 545 (2002).
Notably, the rule set out in Exchange Parts is also applicable to promises or conferral of benefits
during an organizational campaign but before a representation petition has been filed. Hampton
Inn NY—JFK Airport, 348 NLRB 16, 17 (2006).
“Although 8(a)(1) allegations are typically analyzed under an objective standard, and
motive is irrelevant, see American Freightways Co., 124 NLRB 146, 147 (1959), the 8(a)(1)
analysis under Exchange Parts is motive-based.” Network Dynamics Cabling Inc., 351 NLRB
No. 98, slip op. at 2 (2007), citing Hampton Inn NY—JFK Airport, 348 NLRB 16, 18 fn. 6 (2006).
In other words, the motive for the conferral of the benefit during the organizational campaign
must be to interfere with—i.e., an effort to influence—the union organizing.
Under settled Board precedent, “[a]bsent a showing of a legitimate business reason for
the timing of a grant of benefits during an organizing campaign, the Board will infer improper
motive and interference with employee rights under the Act.” Yale New Haven Hospital, 309
NLRB 363, 366 (1992); Kanawha Stone Co., Inc., 334 NLRB 235 fn. 2 (2001), citing Mariposa
Press, 273 NLRB 528, 544 (1984).
In this case, the wage increases and lump sum payments were granted in November,
and received by employees in their pay in December, dates by which the Respondent was well
aware of the organizing campaign, and by which it had made its opposition to the campaign
well-known. The wage increases and lump sum payments were in addition to the individual
increases typically received by employees on the anniversary date of their hire. They were
received just weeks after the small group meetings at which employee complaints about pay
had been a significant feature. Many promises were made at the small group meetings.
Employees receiving these “extra” wage increases after the small group meetings, and in the
middle of the union campaign, would reasonably view the wage increases and bonuses as
related to the union campaign, and an attempt to interfere with the employees’ choice in the

41The cases cited by the General Counsel, The Register Guard, 344 NLRB 1142, 1143
(2005), and Carbonneau Industries, 228 NLRB 597, 599 (1977) are not to the contrary.
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campaign. The employees would reasonably view the wage increases as remedying the wage
complaints made at the small group meetings. Thus, absent the employer’s showing of a
legitimate reason for the wage increase and lump sum payments, a violation must be found.
The Respondent maintains that it did have a legitimate business reason for the
increases: in granting the pay changes it was just following through on an analysis of market
wage conditions and the appropriateness of a market-driven pay adjustment that it had begun in
February of 2007, long before the advent of the union campaign. While the Respondent admits
that the pay adjustments were “approved, and instituted in November. . . . [t]hat increase,
however, reflected the many months of work that had come before, and simply had no
connection to the Union whatsoever.” (R. Br. at 60).
The difficulty with the Respondent’s argument—in addition to its inapplicability to the
lump sum bonuses—is that while it admits that the increases were first approved in November,
well after the commencement (and after the Respondent’s knowledge) of the organizing
campaign, it offers nothing to show that the wage increases were likely, much less planned, or a
foregone conclusion, or “essentially decided on prior to the commencement of any union
activity.” International Baking Co., 342 NLRB 136, 142 (2004), aff’d. 185 Fed. Appx. 691 (9th
Cir. 2006); LRM Packaging Co., 308 NLRB 829 (1992) (“granting of medical benefits was
promised and set into motion months before the union campaign began”). At most, the
Respondent has proven that prior to the union campaign it was looking into the possibility that it
would give a wage increase.
I accept that Burns started looking at wage issues in February 2007, many months
before the commencement of the union campaign. By her own testimony this was done
periodically, at least yearly, ideally more often, and it did not mean that a wage adjustment was
in the offing. The record evidence of the Respondent’s deliberations or decisionmaking on the
wage increase was very limited. Burns collected data from February to August. By August 17,
Burns was “about 50% done” with a “wage proposal,” but this represented a proposal to be
submitted to individuals at corporate headquarters whose approval was needed for any wage
adjustment. There is no claim, or record evidence, that Burns was the effective decisionmaker
or that her views were predictably followed by the relevant officials at headquarters. I recognize
that Burns testified that, based on her review of data, by July “I knew we had to” have a wage
adjustment. If that was her view, the thrust of her testimony was that the decision was not in her
hands but in the hands of the corporate compensation department at Manor Care headquarters
in Toledo. Burns first submitted a wage proposal to her boss and to the corporate
compensation department in late September or early October, and after that “it bounced back
and forth a few times.” And although Respondent’s elucidation of the issue was murky, it
appears (compare GC Exh. 55 to GC Exh. 39) that the increases proposed early in the process
were miniscule compared to the significant increases actually granted. The decision to grant
the increases was made, of course, after the small group meetings exposed the importance of
the issue to the employees, and, it appears, to the employer’s antiunion efforts.
Notably, no one from corporate compensation testified. No one who made the decision
to implement or approve the wage increase testified. It was the Respondent’s burden to show
that the decision to give the wage increase when it did was the product of a legitimate business
decision unrelated to the union campaign. The Respondent has failed to shoulder that burden.
Mercy Hospital, 338 NLRB 545, 545–546 (2002) (employer failed to meet its burden of showing
legitimate basis for wage increase when its only witness on the subject had no knowledge of or
participation in the timing of the wage increase announcement). What the Respondent has
shown is that prior to the union campaign it was considering the possibility of giving employees
a wage increase, a process it engages in on a yearly basis. The decision to give an increase
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was not explained by any witness in a position to know why the wage adjustment was finally
approved when it was. On this record the inference of improper motive that attaches to a wage
increase granted during the union campaign must stand. The Respondent’s implementation of
the wage and rate increase, and lump sum bonus, was violative of Section 8(a)(1) of the Act.
The complaint also contends that the wage increase was violative of Section 8(a)(3) of
the Act. There is some support for this in Board precedent,42 but most of the relevant cases find
the unlawful grant of an across the board benefit during an organizing campaign to be an 8(a)(1)
violation—i.e., an interference with the Section 7 right of employees to choose whether or not to
join and support a union. I find it unnecessary to reach the 8(a)(3) allegation as the remedy for
the additional violation is the same as the remedy for the 8(a)(1) violation. In Home Health Inc.,
334 NLRB 281, 284 (2001).
d. The transfer of Administrator Seiler and ADNS Kublius
(paragraph 9 of the complaint)
The General Counsel also contends (paragraph 9 of the complaint) that the transfers of
Kublius and Seiler were an unlawful effort by Manorcare to discourage unionization. The
General Counsel contends (GC Br. at 84) that the decision to transfer Kublius and Seiler “arose
directly out of the small group meetings and Johnson’s perception after the meetings, that they
had lost the confidence of the staff.”

It is clear that the removal of an unpopular supervisor is viewed by the Board as a
conferral of a benefit, and, like the conferral of more traditional benefits during an organizing
campaign, absent a showing of a legitimate business reason for the granting of the benefit
during an organizing campaign, the Board will infer improper motive and interference with
employee rights under the Act. An employer may rebut this inference by establishing an
explanation for its action other than the union campaign. The Inn at Fox Hollow, 352 NLRB No.
127, slip op. at 2 (2008); Ann Lee Sportswear, 220 NLRB 982, 993 (1975).
The General Counsel recognizes, and I agree, that the decision to transfer Kublius and
Seiler was part of an overall response to the Union campaign. Between October and November
the management structure at Easton was completely overhauled and augmented. There is
nothing unlawful about an employer replacing managers as a reaction to a union drive or
bolstering management personnel in order to oppose a union drive, but it is problematic to make
managerial changes in order to remedy grievances solicited from employees. Had the
Respondent’s witnesses testified persuasively that Seiler and Kublius were transferred because
they had not been effective in opposing the Union, or because the Respondent thought others
would be better at it, this allegation of the complaint would have to be dismissed. But the
Respondent’s witnesses did not claim any such thing.
Johnson first claimed that she removed Seiler because of “challenges” Seiler had
managing Kublius and also with Reitnauer, “[a]nd I felt that for her peace of mind and the
betterment of the facility, that it would be best if we transfer her away from the Easton facility.”
This certainly did not ring true given that both Reitnauer and Kublius were transferred. Johnson
first claimed that the decision to transfer Kublius was made by Seiler, a shifting of responsibility

42See, In Home Health Inc., 334 NRLB 281, 284 (2001) (referencing Cooper Industries, 328
NLRB 145, fn. 4 (1999) (8(a)(3) found), but also referencing Perdue Farms, Inc. v. NLRB, 144
F.3d 830, 833 (D.C. Cir. 1998), refusing to enforce Cooking Good Division of Perdue Farms,
Inc., 323 NLRB 345, 352 (1997) on this point).
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at odds with the documentary evidence and credibly disavowed by Seiler. In addition to these
discredited motives for the Kublius and Seiler transfer, when confronted with her pretrial
affidavit, Johnson agreed with and adopted the affidavit’s claim that “after the [small group]
meeting, it was decided that [Kublius] lacked the confidence of the staff, and she was
transferred to another facility” and that Seiler’s transfer was made for “essentially similar
reasons.” Thus, the essentially admitted (and I conclude, the real) reason for Seiler and
Kublius’ transfers was that, based upon meetings with employees for the purpose of soliciting
employee complaints and remedying those complaints, Johnson decided that Seiler and Kublius
“lacked the confidence of the staff.” As discussed, those meetings were for the purpose of
soliciting grievances and remedying the concerns raised in an effort to discourage unionization.
In this instance, in accordance with Johnson’s admission, the complaints about Seiler and
Kublius were redressed. The redress of a grievance unlawfully solicited during a union
campaign violates the Act. Carbonneau Industries, 228 NLRB at 599 (unlawful to take action
against supervisor where chief cause was solicited employee sentiment, even where employer
had grounds for taking action against supervisor that predated union campaign). See, Aldworth
Company, Inc., 338 NLRB at 189, 191 (announcement by employer that it had taken action on
solicited employee grievances regarding supervisors violated Act).43
e. Miechur’s discipline; threatened loss of a job, and confiscation
of the Mundy letter (paragraphs 8 and 15 of the complaint)
The General Counsel alleges that the Respondent’s issuance of a final written warning
to Miechur on November 28 violated Section 8(a)(1) and (3) of the Act. Section 8(a)(3) of the
Act provides, in relevant part, that it is “an unfair labor practice for an employer by discrimination
in regard to hire or tenure of employment or any term or condition of employment to encourage
or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3). An employer’s
discharge or discipline of an employee for the purpose of thwarting pr retaliating against union
activity violates Section 8(a)(3). As any conduct found to be a violation of Section 8(a)(3) would
also discourage employees' Section 7 rights, any violation of Section 8(a)(3) is also a derivative
violation of Section 8(a)(1). Chinese Daily News, 346 NLRB 906, 933 (2006), enfd. 224 Fed.
Appx. 6 (D.C. Cir. 2007).
Section 8(a)(1) of the Act states that it is an unfair labor practice for an employer “to
interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7
[of the Act]. 29 U.S.C. § 158(a)(1). Rights guaranteed by section 7 include the right to engage
in “concerted activities for the purpose . . . of mutual aid or protection.” 29 U.S.C. § 157. An
employee’s discipline independently violates Section 8(a)(1) of the Act, without regard to the

43The Respondent asserts (R. Br. at 58) that “the events underlying the transfers were
already in motion long before the Union campaign started, and Respondent was not required to
ignore a major and ongoing personnel issue simply because the Union had appeared.” But
while there is evidence that Seiler and Kublius had some personnel problems prior to the union
campaign (although, also, positive performance reviews), there is no evidence prior to the small
group meetings of even a suggestion of a transfer. The Respondent ignores the evidence—
admitted to by Johnson—that it was the employees’ reaction in the small group meetings that
resulted in the transfer. In other words, even if previous problems with these supervisors
factored into the decision, nothing was done until the employer confronted the employee
sentiment against the supervisors. Carbonneau, 228 NLRB at 599. I note that, even assuming,
arguendo, that action would eventually have been taken against Seiler or Kublius, a violation is
made out because the facts do not show that Seiler and Kublius would have been transferred
when they were absent union activity. Burlington Times, 328 NLRB 750, 755 (1999).
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employer’s motive, and without regard to a showing of animus, where "the very conduct for
which employees are disciplined is itself protected concerted activity." Burnup & Sims, Inc., 256
NLRB 965, 976 (1981). Moreover, Section 8(a)(1) of the Act is independently violated when an
employee is disciplined for engaging in concerted protected activity, even where the employer
honestly and in good faith, but wrongly, believes that the employee has engaged in misconduct
in the course of that protected activity. NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964).
In this case, the Government advances three theories in support of its position that the
discipline of Miechur violated the Act.
First, applying the Board’s decision Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the General Counsel contends that the
motivating factor in Manorcare’s decision to discipline Miechur was not—as claimed by the
Respondent—the Respondent’s belief that Miechur had engaged in solicitation, but rather, her
overall union activity, rendering the discipline violative of Section 8(a)(3) of the Act. Manorcare
disputes this, and contends that it was motivated solely by its good faith belief that Miechur
solicited residents.
Second, the Government contends, even assuming that Manorcare disciplined Miechur
for solicitation of residents with the Mundy letter, that is a violation of Section 8(a)(1) of the Act.
In this regard, the Government contends that the solicitation was protected activity for which
Miechur may not be punished.
Third, the Government contends that—apart from whether or not solicitation of a resident
with the Mundy letter was protected activity—Miechur did not, in fact, engage in such
solicitation. Rather, she simply served as the person who collected and held the signed Mundy
letters solicited by others. Thus, contends the Government, Miechur was disciplined for conduct
in which she did not engage, and the employer’s mistaken belief that she solicited residents is
not a defense to disciplining her for conduct which she did not undertake.
Given the Government’s various theories of violation, each of which, if sustained,
independently establishes a violation, there are a number of ways to approach the issue.
I will first use Wright Line to analyze the motivation for Miechur’s discipline. If the
General Counsel meets his initial burden and shows that Miechur’s union activity (apart from
any conduct involving the November 21 solicitation of residents) was a motivation for the
discipline, the burden will shift to the Respondent to show that in the absence of Miechur’s union
activity it would still have disciplined Miechur, as it claims, for the incident involving the
solicitation letters. If the Respondent’s contention is found to be a pretext, or if it is found to be
a motive, but the Respondent failed to meet its burden to prove that it would have taken the
same action against Miechur in the absence of her union activity, then a violation will be found.
In that case, the question of whether Miechur, in fact, engaged in solicitation as accused, and
whether such conduct is protected or unprotected, is irrelevant.44

44Ben Franklin Plumbing, 352 NLRB No. 71, slip op. at 1 fn. 1, 14 (2008) (unnecessary to
reach question of protected nature of conduct for which employer claimed it terminated
employee where employer failed to meet its Wright Line burden of showing that employee would
have been terminated in the absence of other protected activity that was shown to have
motivated discharge); New York University Medical Center, 261 NLRB 822, 824 (1982)
(unnecessary to reach question of whether activity was protected where employer failed to meet
its Wright Line burden of showing that employee would have been discharged for allegedly
Continued
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1. The Wright Line analysis
The General Counsel’s first theory of a violation puts at issue the employer’s motivation
for disciplining Miechur. As referenced, the Supreme Court-approved analysis in 8(a)(3) cases
turning on employer motivation was established in Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). See NLRB v. Transportation
Management. Corp., 462 U.S. 393, 395 (1983) (approving Wright Line analysis). In Wright Line
the Board determined that the General Counsel carries the burden of persuading by a
preponderance of the evidence that employee protected conduct was a motivating factor (in
whole or in part) for the employer’s adverse employment action. Proof of such unlawful
motivation can be based on direct evidence or can be inferred from circumstantial evidence
based on the record as a whole. Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184
(2004), enfd. mem. 179 LRRM (BNA) 2954 (6th Cir. 2006); Embassy Vacation Resorts, 340
NLRB 846, 848 (2003). This includes proof that the employer’s reasons for the adverse
personnel action were pretextual. Rood Trucking Co., 342 NLRB 895, 897–898 (2004), citing
Laro Maintenance Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir. 1995) ("When the employer
presents a legitimate basis for its actions which the factfinder concludes is pretextual . . . . the
factfinder may not only properly infer that there is some other motive, but that the motive is one
that the employer desires to conceal—an unlawful motive . . . .") (internal quotations omitted)).
Under the Wright Line standards, the General Counsel meets his initial burden by
showing “’(1) that the employee was engaged in protected activity, (2) that the employer was
aware of the activity, and (3) that the activity was a substantial or motivating reason for the
employer’s action.’” Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999) (quoting FPC Holdings,
Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995), enf. 314 NLRB 1169 (1994)).
Such a showing proves a violation of the Act subject to the following affirmative defense
available to the employer: the employer, even if it fails to meet or neutralize the General
Counsel’s showing, can avoid the finding that it violated the Act by demonstrating by a
preponderance of the evidence that the same adverse employment action would have taken
place even in the absence of the protected conduct. Williamette Industries, 341 NLRB 560, 563
(2004); Wright Line, supra. For the employer to meet its Wright Line burden, it is not sufficient
for the employer simply to produce a legitimate basis for the action in question or to show that
the legitimate reason factored into its decision to take action against the employee. T. Steele
Construction, Inc., 348 NLRB 1173, 1183 (2006). In the face of the General Counsel’s meeting
of its initial burden, in order for the employer to avoid a finding of violation, it must persuade by a
preponderance of the evidence “that the same action would have taken place even in the
absence of the protected conduct.” Wright Line, supra at 1989; T. Steele Construction, supra
(“the Respondent must show that the legitimate reason would have resulted in the same action
even in the absence of the employee’s union and protected activities”); Carpenter Technology
Corp., 346 NLRB 766 (2006) (“The issue is, thus, not simply whether the employer ‘could have’
disciplined the employee, but whether it ‘would have’ done so, regardless of his union
_________________________
unprotected activity in the absence of other protected activity that was a motivating cause of
discharge), enf’t. denied on other grounds, 702 F.2d 284 (2d Cir. 1983). See, Waste
Management of Arizona, 345 NLRB 1339, 1340 (2005) (applying Wright Line to determine
whether employer would have terminated employee for his unprotected conduct in the absence
of his protected activity); Mountain Shadows Golf Resort, 330 NLRB 1238 (2000) (remanding
case for the judge to determine under Wright Line whether a disloyal flyer would have caused
employer to discharge employee in the absence of other protected activity).
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activities”); Yellow Ambulance Service, 342 NLRB 804, 805 (2004) (“Once a discharge has
been show to be unlawfully motivated, an employer must establish not merely that it could have
discharged the employee for legitimate reasons, but also that it actually would have done so,
even in the absence of the employee’s protected activity”).
With regards to Miechur’s discipline, the first two elements of the Wright Line analysis—
that Miechur engaged in protected activity and that Manorcare was aware of it—are not
seriously contested. Miechur was the lead union activist at Easton, involved in discussing the
Union with other employees, contacting the Union, arranging a meeting in her home, and by
November 16 she had traveled with the Union to a rally in front of Carlyle headquarters in DC,
an event that was videotaped and put on the SEIU website, and included an interview with
Miechur. At least by the time of the event for which she was disciplined on November 21, she
had told Heimbach, in response to her questioning that she “believed in” the Union, and
reaffirmed it two weeks later. Moreover, Heimbach told her on November 17 that she had seen
Miechur on the SEIU website. In addition, as of October 18, Manorcare was well aware of
Miechur’s role in the organizing campaign, as Reitnauer had contacted Burns and provided
significant detail to her on this score. Burns, in turn, reported this to corporate HR, and at that
time Miechur was the only employee at Easton she knew to be involved in union organizing.
Thus, by the time of the November 21 solicitation incident, Miechur had been engaging in
significant protected activity and the Respondent had knowledge of it.
The third element of Wright Line requires the General Counsel to show that Miechur’s
union activity was a motivating factor for the employer’s action against Miechur. This factor can
be proved “based on direct evidence or can be inferred from circumstantial evidence based on
the record as a whole.” Embassy Vacation Resorts, 340 NLRB 846, 848 (2003). “To support
an inference of unlawful motivation, the Board looks to such factors as inconsistencies between
the proffered reasons for the discipline and other actions of the employer, disparate treatment of
certain employees compared to other employees with similar work records or offenses,
deviations from past practice, and proximity in time of the discipline to the union activity.” Id.;
Robert Orr/Sysco Food Services, supra.
In this case the evidence strongly supports the finding that Miechur’s union activity was a
motivating factor for the discipline meted out to her.
There is direct evidence of animus by Manorcare that supports the General Counsel’s
case. There are the prediscipline episodes of interrogation. There is the unlawful effort to
discourage employees from choosing union representation through the small group meetings
and promises to remedy complaints. These provide some direct evidence of animus towards
union activity, and in the case of the interrogation, toward Miechur’s union activity. However,
even more powerful than this direct evidence is the inferences that may be drawn from the
record evidence regarding Miechur’s discipline.
First, it is notable, that the discipline occurred just days after Miechur publicly supported
the Union for the first time, traveling to Carlyle headquarters with the SEIU and being featured in
a video on the SEIU website that discussed the trip. Manorcare management knew before this
November 16 trip that Miechur was a union supporter. But her first foray into public advocacy
for the Union did not go unnoticed. The day she returned from the trip HR Director Heimbach
approached Miechur and told her that I “seen what you did. I’ve seen your video on the SEIU
website.” Specter admitted she was “probably” briefed by Johnson or Burns about Miechur and
the union activity at the building upon her arrival to the building as administrator on November
14. Specter specifically testified that within her first week at Easton she learned of Miechur’s
appearance on the SEIU website video from Johnson or Burns and attempted (unsuccessfully)
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to view the video. Thus, Miechur’s appearance on the SEIU video heightened concern about
her activities and drew attention to her now open role as a union supporter. The incident for
which she was discipline occurred just a few days later, on November 21.
Second, the genesis of the incident is suspect. I am not convinced one way or the other
about Kushnerick’s claim that she entered the nourishment room looking for a wanderguard.
Normally they are not kept in the nourishment room, but Kushnerick, asserted that an unnamed
person told her she would find one in the nourishment room that evening. I will assume that is
true and she entered the nourishment room in search of a wanderguard. But I do not believe
that she was looking for a wanderguard—a grey device packaged in bubblewrap when she was
rifling through the papers on the table in the nourishment room, particularly an area of the table
where employees kept personal belongings. There is no evidence, or testimony, or reasonable
likelihood, that anyone told Kushnerick that this is the area of the room—the tabletop where
employees keep personal belongings—that she would find a packaged wanderguard.45 As
Collado testified, Kushnerick was “looking through papers.” I do not believe she was looking
through them, in the precise area where Miechur kept her personal belongings, in search of a
wanderguard. It should be remembered that Kushnerick admitted that she had heard “rumors”
that Miechur was asking residents to sign letters and she admitted that when she saw the
Mundy letter thought it might be ”connected to that rumor.” The Respondent’s contention is that
this was all coincidence. I do not accept that. Kushnerick found what she was looking for and—
and took it. It is not proven (although it is possible) that Kushnerick knew or suspected the
materials were in Miechur’s possession. I am unsure (although it is possible) that the Mundy
letter was removed from Miechur’s bag. But it hardly matters. In any event, Kushnerick knew
she was taking a union-related paper. She knew she was taking it from an area of the table
where individuals kept personal belongings. It was not laying open and unclaimed for her to
take. She looked for it. She knew it did not belong to her and she took it. I agree with the
General Counsel that this is confiscation of union literature—it literally was a letter created by
the Union, for use in the organizing campaign—and a violation of the Act. Alle-Kiski Medical
Center, 339 NLRB 361, 366 (2003); NCR Corp., 313 NLRB 574, 577 (1993). (unlawful to
confiscate union literature from employee; “Even if the Company’s no-distribution rule were
valid, the Company had no legitimate basis for taking such action”).
Third, in an adumbration of the antiunion animus that motivated the coming discipline,
when confronted by Miechur, Kushnerick warned Miechur to “stop worrying about the Union and
worry about your job.” This directive is clearly unlawful, as alleged by the General Counsel. It
is a very thinly veiled threat, positing, as it does, a conflict between union activity and job
security. See, Fieldcrest Cannon, 318 NLRB 470, 488 (1995), enfd. in relevant part, 97 F.3d 65
(4th Cir. 1996) (unlawful threat of job loss for supervisor to tell employee he “had a right to go to
the Board, but that it was his job he should worry about”). And it provides pointed evidence of
animus directly threatening Miechur’s job because of her union activity. Brandt-Airflex Corp.,
316 NLRB 315, 315–316 (1995) (evidence that subsequent discharge of union steward was
unlawfully motivated supported by prior statement to steward that he should “worry more about
his job than about [employer’s delinquent] benefit payments”).

45Kushnerick was very vague in her testimony. She claimed she found the wanderguard, but
could not recall if it was before, after, or at the same time that she noticed the Mundy letter. She
could not recall providing the wanderguard to anyone, and no one testified that they received a
wanderguard from her. Her story relies on the wanderguard to justify her presence and her
search but it disappears from her recollection after that.
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Fourth, it is very troubling that in the disciplinary meeting, when Miechur accused the
Respondent of disciplining her because “you know I called the SEIU,” Gieroczynski did not take
the opportunity to deny it, but rather, responded, “yes, we know that you called the Union.” This
comment, testified to by Klinger and Miechur, and undenied by any management witness,
amounts to more than inferential evidence of animus—it is a direct explanation of motive.
Stripped from context, Gieroczynski’s bare comment—that the Respondent knows that Miechur
called the Union—is bad enough. It is a suspicious and inappropriate comment to make in an
allegedly nondiscriminatory disciplinary meeting of the lead union activist. But in context, it is
worse. Miechur voiced her suspicion that the discipline was attributable to her union activity.
Gieroczynski did not deny it, but appears to endorse that suspicion. The message was sent.
Fifth, it is obviously suspect that in order to determine the discipline for Miechur, the
Respondent involved nearly its entire management team, including its outside labor counsel and
the head of corporate labor relations Kilmurry, who was at the plant to advise on the antiunion
campaign, and whose involvement in plant disciplinary actions was admitted by Heimbach to be
atypical.
Sixth, in the face of the Respondent’s claim that it was motivated to discipline Miechur
solely for her role in soliciting residents to sign a letter complaining, inter alia, of staffing
shortages, it is most striking that the Respondent’s process for disciplining Miechur
demonstrated a total lack of interest in what she did or did not do, or the extent of the solicitation
“problem,” or who else might have been involved in committing this “offense.”46
While the preparation of Miechur’s discipline notice involved the entire management of
the facility, as well as the head of corporate labor relations, and outside labor counsel who
drafted the disciplinary language, this frenzy of activity involved zero investigation or interest in
the underlying events. It must be remembered that, according to Kushnerick, she saw had seen
“a stack” of Mundy letters, which suggests that the solicitations at issue may have been
extensive. Nonetheless, after Kushnerick reported to Specter that “she had Trisha soliciting
people,” the case was closed. This short conversation, which neither Specter nor Kushnerick
could recall much of, exhausted the employer’s interest in the underlying events.
There was no attempt to find out which, if any, residents had been solicited. There was
no effort to talk to any residents about it. There was no effort to find out whether the “stack” of
solicitation letters indicated that many residents had been solicited. There was no effort to talk
to other employees to find out what if anything they knew. There was no effort to talk to
Miechur, to get her side of it, or to find out what she knew about the incident. There were no
announcements to employees, residents, families, or anyone else, indicating concern. There
was no written internal documentation or written discussion of these matters introduced into
evidence.
Under the circumstances, the Respondent’s actions are extremely suspect, for a couple
of reasons. First, they are suspect because the lack of due process in disciplining Miechur was

46That is, until the hearing in this matter, when the Respondent suddenly declared it to be
vital to its interests that it be permitted to question employees about their union activities and
their involvement in the solicitation campaign. I will return to this issue below, and the
evidentiary ruling I made barring such inquiries. For now, the point that must be drawn is that
contemporaneous with Miechur’s discipline and its discovery of the solicitation issue, the
Respondent evinced no interest in these matters.
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an unexplained departure from the Respondent’s normal practices, and bespeaks of interest in
“getting” Miechur rather than a concern with her conduct in soliciting residents. As Heimbach,
the HR Director at the time explained, discipline at the level meted out to Miechur—a final
warning with termination promised for a subsequent offense—“ wouldn't have [been] warranted .
. . without investigating it first.” This was not the HR Director’s musings about her personal
views of fairness in the workplace. This was an admission that at Easton people are not
typically disciplined to the edge of termination “without investigating it first.”47 This bespeaks of
an effort to “get” Miechur, as opposed to a legitimate concern with her conduct. That Miechur
had denied to Kushnerick that she solicited any of the letters, and denied it again in her
disciplinary hearing, makes ever clearer that the lack of interest in Miechur’s side of the story—
or any information at all—is highly suspect.48
The Respondent’s lack of interest in the facts surrounding Miechur’s discipline calls into
question the Respondent’s motives in a second way as well. On brief the Respondent knows
no limit to the damage it claims that the dissemination of the Mundy letter could cause. It
contends (R. Br. at 41) that the dissemination of the letter could cause residents “unnecessary
distress, thereby hampering their treatment, or interfering with their medical care,” and that the
letter “sought to threaten its entire operation by preventing—or at least impeding—the grant of
the license necessary to operate in Pennsylvania.” This is grandstanding. We know it is
grandstanding because the Respondent’s response at the time the letter was discovered—

47Notably, Miechur’s July 2006 suspension for using a resident’s telephone was reduced to
a warning—Miechur was paid for her time off—after the Respondent’s investigation revealed
that the resident had permitted Miechur to use the telephone.
48Windsor Convalescent Center of North Long Beach, 351 NLRB 975, 984 fn. 40 (2007)
(“Enforcement of rules against employees without sufficient prior investigation of their alleged
misconduct, including withholding from the accused details of the accusation and denying them
an opportunity to explain or deny their alleged misconduct, is evidence of unlawful motive”); All
Pro Vending, Inc., 350 NLRB 503, 514 (2007); (Diamond Electric Mfg, 346 NLRB 857, 860
(2006) (“the failure to conduct a meaningful investigation or to give the employee [who is the
subject of the investigation] an opportunity to explain may, under appropriate circumstances,
constitute an indicia of discriminatory intent. The Board has considered this factor in several
recent cases to find discharges unlawful where employees were denied the opportunity to
provide a potentially exculpatory explanation prior to being discharged, and to dismiss
allegations of unlawful discharge where such an opportunity was provided”) (Board’s bracketing)
(footnotes omitted) (quoting K&M Electronics., 283 NLRB 279, 291 fn. 45 (1987) (“failure to
conduct a meaningful investigation or to give the employee an opportunity to explain has been
regarded as an important indicia of discriminatory intent”); Amptech, Inc., 342 NLRB 1131, 1146
(2004) (failure to inquire of [disciplined employee] as to what had occurred constituted a rush to
judgment attributable to Respondent's unlawful motivation to take adverse action against the
leading pro-union employee on the premises”), enfd. 165 Fed. Appx. 435 (6th Cir. 2006);
Southern Electronics Co., Inc., 175 NLRB 69, 72 (1969), enfd. 430 F.2d 1391 (6th Cir. 1970)
(investigation . . . was a one-sided affair with the purpose not being to determine precisely what
occurred in the stockroom that morning, but rather to secure sufficient reasons to justify a
discharge”).
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none, with the exception of the swift convening of management and counsel to find a basis to
discipline Miechur—belies such claims.49
Seventh, in revealing contrast to the lack of interest in the actual facts of the matter at
hand, stands Manorcare’s vigorous interest in disciplining Miechur. This interest was
paramount, and overshadowed the professed interest in the offense of solicitation. This may be
gleaned in a number of ways. It is not just the extent of the involvement of corporate
management and even outside counsel in determining the discipline that was extraordinary, but
the manner in which the discipline was determined. One can see the emphasis on discipline,
and not the offense, from Specter’s explanation that the management group came to a decision
on the discipline, “We wanted it to be a final written warning action but not a termination” and
the clear suggestion in Specter’s testimony is that the work rule violation was determined after
the group decided on the appropriate penalty. The point was to penalize Miechur. Indeed,
finding an appropriate work rule violation was a challenge. There is no work rule against what
Miechur did. No work rule against soliciting residents. No rule against asking employees to sign
a letter to a political figure. With regard to Miechur, the “offense” was an afterthought, even a
prop, the point was to take the opportunity to discipline Miechur.
Notably, Specter testified that Miechur’s July 2006 warning had been considered in
determining the appropriate level of discipline. It is troublesome, and unexplained by the
Respondent, that Specter (and Burns and Kilmurry) did not speak with anyone involved in the
July 2006 suspension and did not know that an investigation had largely vindicated Miechur and
that she had been paid for the time she was suspended. Moreover, Specter, Burns, and
Kilmurry apparently paid no attention to the Manorcare policy that would render the July 2006
suspension too dated to be relied on for a November 2007 incident. This unexplained deviation
from Manorcare’s disciplinary policy is highly suspect and supports an inference of
discrimination. In fact, I suspect, based on the record as a whole, that Specter’s reliance on the
past discipline was perfunctory. The larger picture is of an employer determined, without much
regard to the facts or the offense, to punish, albeit short of discharge, the leading union activist
who had recently taken her activism to a new public national level. The larger picture is of an
employer bent on putting Miechur on notice that she could be retaliated against and that she
needed to step out of the limelight with her union activism. Indeed, such a suggestion would be
made to Miechur in coming months.
Based on what I find was a transparent effort to “get” Miechur revealed by the
Respondent’s conduct, the General Counsel has amply satisfied his burden under Wright Line.
There is a strong basis on which to infer that Miechur’s discipline was motivated in significant
part by her union activities.

49Specter, at the hearing, and the Respondent, on brief (R. Br. at 44), defend the lack of
investigation on the grounds that “it had already been acknowledged where the letter came
from.” The Respondent knew all it wanted to know. The letter had been found among
Miechur’s belongings. It did not have any interest in learning more. Specter suggested that
residents were not asked about the solicitations because Manorcare did not want to “upset” the
residents. This was hard to accept. With regard to allegations of far more serious breaches,
such as matters of patient abuse, neglect, or substandard care, Manorcare undertakes—indeed,
is required by state authorities to undertake—investigations that involve interviewing residents
about the allegations. If the potential to upset a resident was the reason for the lack of an
investigation into the allegations against Miechur, then, clearly, Manorcare was not particularly
concerned with the solicitation.
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As explained, supra, under Wright Line, a discharge motivated even in part by unlawful
considerations is unlawful, subject to the employer’s demonstration that in the absence of
protected activity the adverse employment action would have been taken anyway. The
question, then, is whether the Respondent has proven that, even in the absence of Miechur’s
union activity, it would have taken the same action against Miechur.
The Respondent has not met its burden on this record. I accept that the Respondent
contends that the soliciting of residents is a punishable offense unprotected by the Act.50 I will
assume that it might have taken (lawfully, or unlawfully) some form of action against any
employee that it found to be soliciting a resident. But the Respondent’s burden is to prove by a
preponderance of evidence that it would have taken the same action against Miechur had she
been otherwise uninvolved in protected activity. The Respondent has proven no such thing.
As to comparing other instances of discipline with that issued to Miechur, I agree, to
some extent, with the Respondent’s argument that the solicitation at issue in this case is
different from soliciting a resident to buy hospital scrubs. Thus, the fact that CNA Shah
apparently sold scrubs openly at the facility—to employees, residents, and even a supervisor—
without triggering much of a response (when finally “caught” in April 2008, she was given a
nondisciplinary “coaching” form reminding her that this was not allowed), does not shed much
light on how the Respondent could be expected to respond to the solicitation here, were it acting
without regard to Miechur’s union activity. But, with the caveat that this action was unique, or at
least considered unique by the Respondent, still the overall picture of discipline at the facility
raises a question as to whether, in the absence of protected activity, a final warning would have
been issued. Counsel for the General Counsel placed into evidence, without objection, all
disciplinary warnings she found (based on a search pursuant to a subpoena duces tecum
issued to the Respondent) that related to abuse, communications with residents, or
inappropriate comments or communications by CNAs to residents. A summary of these
disciplinary warnings is included in Counsel for the General Counsel’s brief (G.C. Br. at 29 fn.
39), and my independent review of the record establishes that it is an accurate reflection of the
record evidence. That summary is as follows:51
Date Employee Warning Misconduct
4-22-03 Employee 1 1st
written
CNA yelled at resident, grabbed and pulled resident,
resulting in bruises
7-18-03 Employee 1 2nd
written
CNA released confidential medical information
12-26-
03
Employee 2 1st
written
CNA refused to provide care for a resident (putting
splints on resident)
9-17-04 Employee 3 Action
Plan
CNA was rude to resident; complained to a resident
about her supervisor
10-23-
05
Employee 4 1st
written
CNA required resident to say “please;” and made fun of
resident

50I do not accept this view, but for purposes of Wright Line analysis I accept that the
Respondent so contends.
51I have deleted the names of the employees cited. None of the cited employees otherwise
appears in the transcript and inclusion of their names is unnecessary. The disciplinary warnings
on which this summary is based is included in the record as General Counsel’s Exhibit 35.
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1-22-06 Employee 5 Coaching CNA raised voice; argued with resident, shook finger in
resident’s face
4-11-06 Employee 6 Coaching CNA used threatening tone of voice with resident
9-7-06 Employee 7 Coaching CNA says inappropriate things in front of residents and
families
3-14-07 Employee 8 Coaching CNA told resident she was not here to wait on you hand
and foot
5-27-07 Employee 9 1st
written
CNA had poor attitude toward residents and did not
provide necessary care
12-12-
07
Employee 10 Coaching CNA told resident that he could not “pull resident’s brief
out of rear end””
2-27-08 Employee 11 Coaching Pointing at patient and needs to use more soothing tone
with patients
7-7-08 Employee 12 3rd Final Failure to report abuse (resident’s wife slapped resident
in face)

Miechur received a third and final warning for soliciting residents with the Mundy letter.
The only third and final warning in the record was given to an employee who failed to report a
resident being slapped in the face. An incident in which a resident was yelled at, pulled, and
bruised, resulted in a 1st written warning, as did the failure to provide necessary care, making
fun of a resident, and refusing to provide care to a resident. Three months after the employee
received a written warning for yelling, pulling, and bruising a resident, she received a second
written warning for releasing confidential medical information. Rudeness, threatening tones,
and inappropriate comments warranted an action plan, or a nondisciplinary coaching citation, as
did Shah’s selling of hospital scrubs to residents in the spring of 2008.
In deference to the Respondent’s contention that soliciting residents to sign the Mundy
letter is different than other solicitations, and other disciplinary events, I did not (and do not) rely
on a finding of disparate disciplinary penalties as evidence in support of the General Counsel’s
initial burden under Wright Line. As demonstrated above, there are other indicia that amply
satisfy that burden. But I have included this review of other disciplinary actions taken by the
Respondent because it is clear that—even if not relied upon to advance the General Counsel’s
initial Wright Line burden—the disciplinary history of the facility is also not supportive in the least
of an effort by the Respondent to claim that it would have disciplined Miechur with the same
severity had she not been a union activist. Putting aside the procedural irregularities in
Miechur’s discipline, it is impossible for the Respondent to show that, on this record, Miechur’s
penalty for asking residents to sign a letter fits within the typical punishments provided to
employees. The assertion (and I hasten to add that the Respondent does not actually make the
argument) that asking a resident to sign a letter equates with watching a resident be slapped in
the face would be, to put it mildly, not self-evident. In sum, one does not review the list of
disciplinary warnings for resident-related issues and conclude that it aids the Respondent in
meeting its burden of showing that it would have taken the same action against Miechur for
soliciting the Mundy letter even in the absence of her protected activity.

At bottom, Respondent’s claim is a bald appeal that in its judgment the solicitation was
so egregious an offense that (assuming, a good faith belief that Miechur committed it) it would
have taken the same action against Miechur even in the absence of her protected activity.
However, the record leads me to disbelieve this defense. The claim is contradicted by
some of the same factors from which the inference of discrimination arise. Kushnerick found “a
stack” of the Mundy letters. Yet Manorcare seemed willing, without investigation, to attribute
everything to Miechur, and showed no interest in whether other employees were involved in the
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activity. If Manorcare sincerely believed that the solicitation of the Mundy letter, without regard
to Miechur’s union activism, warranted such a harsh response it would not have been indifferent
to the potential scope of the solicitation or the potential involvement of other employees. But the
Respondent was indifferent to the potential involvement of other employees—other employees
without a record of union activity. This suggests that Manorcare’s interest was in punishing
Miechur, not in punishing the offense of soliciting residents without regard to union activism.
Similarly, the Respondent brazenly ignored, without explanation, its own disciplinary policies in
its zeal to discipline Miechur. It has not proven that it ignores its disciplinary rules with regard to
other employees. It has not offered an explanation for doing so here. The obvious conclusion
is that it has failed to prove that it would have acted the same way in the absence of Miechur’s
union activity.52
2. Was Miechur’s alleged conduct protected?
Utilizing a Wright Line analysis, I have found that Manorcare has failed to persuade by a
preponderance of the evidence that it would have given Miechur a third and final warning in the
absence of her protected union activities. This makes it unnecessary to determine whether, as
asserted by the General Counsel, the conduct for which the Respondent disciplined Miechur
was protected activity. However, as an alternative to the Wright Line analysis, I conclude that
the activity for which Miechur was disciplined was protected by the Act. Therefore, assuming
that the Respondent disciplined Miechur only for the motivations it asserts—i.e., because it
believed she solicited residents with the Mundy letter—this provides an independent basis for
finding a violation, without regard to my findings pursuant to the Wright Line analysis. Nor-Cal
Beverage Company, Inc., 330 NLRB 610, 611 (2000) (Wright Line analysis inappropriate where
causal connection between protected activity and discipline is undisputed, the only issue is
whether that activity lost its protection under the Act because of conduct by employee).
According to the Respondent, Miechur was disciplined for soliciting residents, but, in
particular, for soliciting them to sign the Mundy letter, a form letter intended to be sent to a state
representative to seek a legislative hearing. The Respondent contends that the letter disloyally
disparages the Respondent in a manner that renders the solicitation unprotected activity.

52The Respondent cites Tom Rice Buick, 334 NLRB 785 (2001) in support of the claim that it
has met its burden of proving it would have disciplined Miechur in the absence of union activity.
However, Tom Rice Buick, a case in which an employee was discharged for leaving work early,
is a very different case from that at bar here. In Tom Rice Buick, the General Counsel’s prima
facie case rested on a compelling array of earlier unlawful actions involving the discharged
employee. While the inference of unlawful motivation was compelling, none of the evidence
supporting the General Counsel’s case concerned the employer’s conduct in the disciplining of
the employee for leaving early. The employer’s conduct in the discharge did not involve
improprieties, a rush to judgment, or other suspicious conduct that itself provided the basis for
the inference of unlawful motivation. Here, by contrast, it is the Respondent’s process of
disciplining Miechur that is a large part of the case against the Respondent. It therefore cannot
reasonably equate itself to the employer in Tom Rice Buick, which convinced the ALJ, and a
Board majority, that, notwithstanding its earlier unlawful conduct, the discipline taken against the
employee would have occurred notwithstanding the employee’s unrelated protected activities.
Here, by contrast, the actual process of disciplining suggests an effort to “get” Miechur, thus
fatally undermining the Respondent’s bald claim that it would have similarly treated anyone
accused of soliciting a resident with the Mundy letter.
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First, putting aside for the moment the claims of disparagement and disloyalty, the fact of
soliciting residents cannot be a basis for disciplining Miechur in this case. "Employees have a
statutorily protected right to solicit sympathy, if not support, from the general public, customers,
supervisors, or members of other labor organizations." NCR Corp., 313 NLRB 574, 576 (1993).
“[T]he Board has found employee communications to third parties seeking assistance in an
ongoing labor dispute to be protected where the communications emphasized and focused
upon issues cognate to the ongoing labor dispute.” Allied Aviation Service Co., 248 NLRB 229,
230–231 (1980), enfd. w/o op. 636 F.2d 1210 (3d Cir. 1980); Five Star Transportation, 349
NLRB 42, 45 (2007) (“employees do not lose their Section 7 protection simply because they
seek ‘to improve terms and conditions of employment or otherwise improve their lot as
employees through channels outside the immediate employee-employer relationship’”) (quoting
Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978), enfd. 522 F.3d 46 (1st Cir. 2008)).
In Misercordia Hospital Medical Center v. NLRB, 623 F.2d 808, 812 (2d Cir. 1980), the
Court of Appeals upheld the Board’s finding of a violation53 where a hospital discharged a nurse
for providing information about “serious deficiencies in the quality of care” to a body charged by
law with determining the hospital’s state and Medicare accreditation. The Court explained:
The Supreme Court has [ ] rejected the view that employees lose their § 7
protection “when they seek to improve terms and conditions of employment or
otherwise improve their lot as employees through channels outside the
immediate employee-employer relationship.” Eastex, Inc. v. NLRB, 437 U.S.
556, 565 (1978). The Court noted in Eastex that § 7 repeatedly has been
interpreted as protecting employees who “seek to improve working conditions
through resort to administrative and judicial forums” or through “appeals to
legislators.” Id. at 566 (citing cases).
In the instant case, the Easton employees were seeking to improve working conditions
through, “appeals to legislators.” They did so through letters to Representative Mundy and they
solicited, at least in one or more instances, patients to send letters to Mundy as well. It is clear
that in health care settings, employers may impose more “stringent prohibitions” on solicitations,
but absent special circumstances, employees’ retain substantial rights to communicate with
other employees and third parties:
In recognition of the fact that a hospital's primary function “is patient care and that
a tranquil atmosphere is essential to carrying out that function,” the Board has
permitted health care facilities to impose somewhat more “stringent prohibitions”
on solicitation and distribution than are generally permitted. A hospital may
prohibit solicitation and distribution at any time in immediate patient care areas
(such patients' rooms, operating rooms, X-ray areas, therapy areas), even during
nonworking time. However, a hospital may not ban solicitation and distribution in
other areas to which patients and visitors have access (such as lounges and
cafeterias) unless the evidence shows that such a ban is necessary to avoid a
disruption of patient care.
The Carney Hospital, 350 NLRB 627, 643–644 (2007) (citations and footnote omitted).

53Misercordia Hospital Medical Center, 246 NLRB 351 (1979).
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In The Carney Hospital, the Board specifically rejected the employer’s contention that a
total prohibition on solicitation of patients could pass muster under the Act (absent a showing
that such a ban is necessary to avoid disruption of patient care). In The Carney Hospital, the
Board found that the employer violated Section 8(a)(1) by maintaining a rule barring employee
solicitation of patients. As the ALJ explained, in reasoning adopted by the Board:
The Respondent contends that its rule is permissible because employees only
have the right to solicit and distribute to "other employees, not clients of the
institution." It is unsurprising that the Respondent cites no authority for this
proposition since it is contrary to applicable law. In UCSF Stanford Health Care,
335 NLRB 488, 535-536 (2001), enfd. 325 F.3d 334 (D.C. Cir. 2001), cert denied
[ ], the Board affirmed that a hospital violated the Act when it maintained a
policy that prohibited solicitation and distribution to nonemployees. The United
States Court of Appeals for the D.C. Circuit upheld the Board's decision, stating:
[N]either this court nor the Board has ever drawn a substantive
distinction between solicitation of fellow employees and solicitation of
nonemployees. To the contrary, both we and the Board have made clear
that [National Labor Relations Act] sections 7 and 8(a)(1) protect employee
rights to seek support from nonemployees.
Stanford Hospital & Clinics v. NLRB, 325 F.3d 334, 343 (D.C. Cir. 2001).
Similarly, in NCR Corp., 313 NLRB 574, 576 (1993), the Board stated that
"Employees have a statutorily protected right to solicit sympathy, if not support,
from the general public, customers, supervisors, or members of other labor
organizations" by distributing union literature to them. See also Santa Fe Hotel &
Casino, 331 NLRB 723, 730 (2000) ("[T]he fact that off-duty employee
distributions . . . were to customers rather than to other employees . . . is an
irrelevant consideration.") Therefore, the Respondent's argument based on the
nonemployee status of patients and visitors fails.
Thus, Respondent’s position that it can absolutely prohibit solicitation of residents, their
families, or the public is at odds with Board precedent.
No considerations have been shown that would justify a total ban on solicitation to avoid
disruption of patient care or to avoid disturbance of patients. Specter relied upon the fact that
the facility is a permanent “home” to many patients as grounds for claiming they should be
insulated from all solicitation in all areas of the facility. I do not think that follows, or that it may
be assumed that all solicitation is upsetting to patients. Certainly, no evidence was offered to
support this view. Indeed, as the Union points out, the Commonwealth of Pennsylvania takes a
decidedly different view of efforts to insulate nursing home residents from those who would
encourage the residents to agitate for change. Respondent’s employees are (by virtue of state
law) trained to comply with Pennsylvania regulations, including 28 Pa Code § 201.29, which
states that residents of nursing homes:
“shall be encouraged and assisted throughout the period of stay to exercise
rights as a resident and as a citizen and may voice grievances and recommend
changes in policies and services to the facility’s staff or to outside representatives
of the residents’ choice.”
I do not suggest that the Pennsylvania regulations directly govern the employees’ right to
solicit residents. But the regulations reflect a considered and different view of the best interests
of residents, at odds with the Respondent’s unsubstantiated view that the solicitation of a
resident to complain to a state representative about facility conditions should be banned on
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grounds that it will “upset” the resident. In the absence of any evidence to support Specter’s
assertion, it cannot justify a total ban on solicitation.54
Thus, the Respondent has failed to demonstrate circumstances that would justify a total
prohibition on solicitation to families or residents. Accordingly, Gieroczynski and Specter’s
claims that there was an unwritten, undocumented rule barring all solicitation of residents could
not justify Miechur’s discipline, were it true. In fact, I do not believe there was any such rule.55
That there is no rule prohibiting solicitation of patients and the public would call into
question the ability of the Respondent to discipline an employee for soliciting a resident even in
a patient care area. However, that distinction is not at issue. Miechur’s discipline was not
predicated, at any time, or in any manifestation of Respondent’s explanation of its actions, on
the claim that Miechur solicited a patient in a patient care area. There is no evidence that she

54I note that the fact that the facility is a longterm home to some patients renders more not
less important the distinction between patient care areas—where solicitation can be restricted—
and nonpatient care areas—the veritable neighborhood of the residents—where solicitation may
not be restricted absent a showing of a likelihood of disturbance to patients or interference with
patient care. When a patient goes out to sit in common sitting area, open to families and
patients alike, or when the patient walks through the lobby to the hair salon or cafeteria, or to do
laundry, the presumption cannot be that they want Manorcare to insulate them from noncoerced
conversation, including with an employee, about matters of common concern. The Respondent
suggests (R. Br. at 41–42) that the presence in its facility of patients suffering from dementia
provides a basis to prohibit and punish the solicitation of all residents. This is an untenable and
quite objectionable suggestion. The evidence is limited on the number of residents or patients
afflicted with dementia, or the extent of this disability, but CNA Xavier Cordes estimated that at
least half of the residents of Unit 2, where Miechur worked, were “alert and oriented.” Limiting
the solicitation of patients who are disoriented would be appropriate, as are many limitations
with regard to infirm patients. However, this does not justify the banning of the solicitation of all
patients. The Section 7 right of an employee to seek support from third parties, and, just as
important, the desire of an alert and oriented patient or resident to receive information and make
a decision to send a letter to a state representative, cannot so easily be jettisoned. The
prospect of Manorcare barring the right of all residents to receive information and to sign a letter
to a public official is no less frightening, and no less an incursion on their dignity, than the
prospect alluded to by the Respondent of an infirm patient being pressured by an employee to
sign or adopt a statement or position. Neither need nor should be tolerated. In this case, the
Respondent offers no evidence, makes no claim, and, indeed, made no effort to find out, that an
infirm resident was asked to review, much less asked to sign the Mundy letter. But the
presence of the infirm in the patient population cannot satisfy the employer’s burden to show
circumstances warranting a total ban on solicitation that would sweep away of the rights of
employees to discuss with any patient matters of mutual concern, including, and perhaps,
particularly, the right to petition the government.
55I recognize that Gieroczynski testified that it was “a generally known policy that we do not
solicit residents,“ and Specter testified that “[o]ur policy is not to solicit residents.” I reject and
discredit this testimony. Nothing substantiates either claim. There is no evidence that anyone
was told of such a rule, it is not included in or alluded to in the multiple written work rules
(including those limiting solicitation of other employees), and there is no evidence that
managers ever had discussions with employees, or among themselves to this effect. At best,
Gieroczynski and Specter were testifying as to their view of what the rule on solicitation should
be. However, their preferred rule would be unlawful and an unlawful basis to discipline Miechur.
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did this, and the Respondent has never expressed concern with that delineation. Miechur was
disciplined for soliciting a resident with the Mundy letter—without regard to where it happened.
A prohibition on such solicitation is unlawful unless in its particulars this solicitation had some
characteristic—in the manner in which it was carried out or in its content—that caused the
employee soliciting to lose the protections of the Act.
In this case the nub of the Respondent’s claim is that the contents of the Mundy letter
places the soliciting employee beyond the protection of the Act. As indicated in Miechur’s
disciplinary notice, the Respondent maintains that the Mundy letter is disparaging and its
distribution constituted disloyalty on the part of Miechur. In the Respondent’s view, the
offensive part of the Mundy letter was its statement that “[a]t my facility, we are very short
staffed and it affects the care of our residents,” and its exhortation to representative Mundy that
she make sure that Pennsylvania Department of Health officials ensure that the change of
ownership of Manor Care to Carlyle “does not negatively impact care provided to residents in
the Commonwealth.”
I do not agree that a Manorcare employee distributing the Mundy letter would lose the
protections of the Act.
First, subject of the Mundy letter squarely concerned issues of working conditions that
had already been a prominent feature of SEIU’s labor dispute with Manor Care. That the letter
expressed concern with patient welfare does not contradict this conclusion. The Board has
recognized that “[i]n the health care field, patient welfare and working conditions are often
inextricably intertwined. In this connection, employees’ statements regarding patient care
and/or staffing levels have been found protected where it was clear from the context of the
statements that they related to a labor dispute and/or employees’ terms and conditions of
employment.” Valley Hospital Medical Center, Inc., 351 NLRB 1250, 1252 (2007) (citations
omitted); Misercordia Hospital Medical Center v. NLRB, 623 F.2d 808, 813 (2d Cir. 1980)
(discussing relationship between welfare of patients and working conditions of hospital staff). In
this case, the Mundy letter statements about staffing and care were very much a part of both the
Union’s labor dispute with the employer and the employees’ demonstrated concern with terms
and conditions of employment. The Mundy letter added to concerns with staffing and other
terms and conditions of employment that had already been part of the SEIU organizing
campaign,56 had previously been voiced in hearings convened by representative Mundy in
November, and repeatedly raised by employees to management in the small group meetings
held at the end of October. The letter urged that state officials ensure that Carlyle’s assumption
of the company did not negatively affect care—a goal that Manor Care, the SEIU, and the state
officials all claimed in hearings to share. At the November 13 hearings before the Pennsylvania
House Aging & Older Adult Services Committee, Stephen L. Guillard, Executive Vice President

56See e.g., GC Exh. 27 (SEIU “white paper” released October 10 at press conference in
Harrisburg, Pennsylvania, raising concerns about potential affect on staffing and other issues
affecting employees and patients of the Carlyle purchase of Manor Care); GC Exh. 26
(September 20 Washington Post article “Union Protests Carlyle’s Bid for Manor Care,” quoting
SEIU official: “Its not that we are against private equity, but we believe companies like Carlyle,
because of their huge size, have to match that size with responsible actions in terms of the
impact of their deals on workers and seniors.”); GC Exh. 18 (November 16 SEIU press release,
“‘There are not enough certified nurse assistants at this facility and Carlyle needs to do
something about that,’ said Josephine Miechur [Trisha Miechur’s mother] whose mother lives in
a Manor Care nursing home in Easton, Pennsylvania”).
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and Chief Operating Officer of HCR Manor Care pledged that “[w]e will not reduce staffing of
caregivers in our nursing centers or assisted living centers and our staffing levels are well above
requirements set by the Commonwealth of Pennsylvania.” Concern over staffing issues was
very much a part of the previous hearings chaired by representative Mundy. Thus, this is a
case where the Board’s recognition that “[i]n the health care field, patient welfare and working
conditions are often inextricably intertwined” is particularly apt.
However, even an otherwise protected statement will be found unprotected if the Board
evaluates the communication and determines that it is “so disloyal, reckless, or maliciously
untrue as to lose the Act’s protection.” Endicott Interconnect Technologies, 345 NLRB 448, 450
(2005), enf’t. denied, 453 F.3d 532 (D.C. Cir. 2006). As the Board recently explained, “[i]n
determining whether employee conduct falls outside the realm of conduct protected by Section
7, we consider whether ‘the attitude of the employees is flagrantly disloyal, wholly
incommensurate with any grievances which they might have, and manifested by public
disparagement of the employer’s product or undermining of its reputation . . .” Five Star
Transportation, supra at 46 (quoting Vandeer-Root Co., 237 NLRB 1175, 1177 (1978)).
In evaluating the alleged disloyalty and disparagement of employee solicitation with the
Mundy letter, the case of Professional Porter & Window Cleaning Co., 263 NLRB 136, 139
(1982), enfd. 742 F.2d 1438 (2d Cir. 1983) is instructive. In that case, a maid worked for a
cleaning company that provided maid services to a nursing home. She and coworkers wrote to
the nursing home complaining that her employer was using poor products, had taken necessary
supplies away from the maids and that because of this “the floors are not really being cleaned”
and “this facility is deteriorating.” The letter urged the nursing home to "take a good long look at
what [Respondent] is doing to your facility" and stated that “we feel that it is our duty to inform
you of the situation before it is too late.” The cleaning service discharged the employee who
instigated the letter. The Board found that the discharge violated the Act. In doing so, the
Board specifically rejected the contention that the letter constituted disparagement removing the
employee from the protections of the Act. The Board explained that it “has traditionally been
careful to distinguish between disparagement of an employer’s product and the airing of what
may be highly sensitive issues. We have observed that ‘absent a malicious motive, [an
employee’s right to appeal to the public is not dependent on the sensitivity of [an employer] to
his choice of forum.” 263 NLRB at 139 (footnotes omitted) (Board’s bracketing) (quoting
Richboro Community Mental Health Council, Inc., 242 NLRB 1267, 1268 (1979)). Reviewing
the letter sent by the cleaning maid, the Board found that the “purpose of the letter was not to
injure Respondent by impugning its operation. On the contrary, by urging [the nursing home] to
take a “good long look” at the facility and by stating that it was their duty to inform him of the
situation ‘before it is too late,’ [the employee] and the other employees demonstrated that their
purpose was to encourage [the nursing home] to remedy the various problems they were
encountering in their working conditions.” Id.
In this case too, the Mundy letter’s concern with patient care was not intended to
disparage or harm the Respondent. Rather, it added to the already well-established efforts by
the Union and the employees to ensure that their terms and conditions of employment, including
staffing levels, would not suffer as a result of the Carlyle takeover. Its goal was to protect
employees from adverse changes to terms and conditions of employment such as staffing
issues. Contrary to the suggestion of the Respondent, the letter, and the employees’ efforts, did
not seek to block, or advocate that state officials block, Carlyle from taking over Manor Care.
The letter and the employees’ efforts, were not directed at harming the Respondent, but rather,
by all evidence constituted an effort to push the Respondent to redress problems at the facility
and advocate for unionization. Those are lawful and protected goals. That the forum was
political, and therefore, in a democracy, public, does not militate against this conclusion. As in
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Professional Porter & Window Cleaning, “the sensitivity of [an employer] to [employees’] choice
of forum” does not control the employees’ rights to appeal to the public.
Notably, there was nothing “maliciously untrue” about the Mundy letter. To the contrary,
the employees’ sincere concerns with short-staffing could hardly be news to Manorcare
management: the employees had complained of staffing issues at the small group meetings and
resolution of staffing issues was the lead item on the Easton Action Plan introduced into
evidence at the hearing. The employees testified at the hearing about their personal
experiences with and concerns about staffing issues. There is not the slightest evidence that
the concerns were not sincerely held, or not based on employees’ personal experiences. See,
Valley Hospital, supra at slip op. at 4 (statements, including statements regarding staffing cuts,
not “maliciously false” when based on employees’ own observations and conversations with
other employees).
Nor can the Mundy letter be said to be inflammatory. It is a soberly written letter, entirely
free of reckless, coarse, or even arch rhetoric. Moreover, it is worth noting that while the letters,
once signed were intended to be sent to representative Mundy, and could lead to public
testimony, the solicitations at issue were not publicly and indiscriminately distributed to the
broader public. The solicitation for which Miechur was disciplined was made to residents,
presumably also to family members, and employees. The letters were made public only once
the resident (or other signatory) had signed the letter—in essence, converting it to their own.
The Board has recognized that in assessing whether arguably disloyal or disparaging conduct
loses the protection of the Act, the extent of the publicity and extent of the public nature of the
communication is significant. See, Mountain Shadows Golf Resort, 338 NLRB 581, 583 (2002)
(pointing out that public nature of flyer, among other factors, increased justification for discipline
of employee compared to private document criticizing employer that employee had previously
authored). Thus, the solicitations at issue were not made by employees to the public at large,
but were provided to more narrowly interested parties—that is, parties vitally interested in the
issue of staffing at this facility. Whatever else staffing is, it is, undeniably, a core term and
condition of employment, the discussion of which is entitled to the Act’s protection.
On this record, even assuming that Miechur engaged in the conduct for which she was
disciplined—soliciting a resident to sign the Mundy letter—the conduct is protected activity in
support of better working conditions. Although I do not believe I need to reach the issue, were it
necessary, I would find that if, as the Respondent claims, it would have disciplined Miechur with
a final warning in the absence of her other union activity, then the discipline was violative of the
Act. Burnup & Sims, Inc., 256 NLRB 965 (1981).57

57Given my findings, I decline to consider the General Counsel’s third claim, which is based
on the Supreme Court’s decision in NLRB v. Burnup & Sims : I decline to consider the General
Counsel’s contention that Miechur did not engage in soliciting of a resident, that the mere
possession of the signed Mundy letters was protected activity (even if the solicitation was not),
and therefore that the disciplining of Miechur for conduct she did not engage in, occurring in the
course of protected activity, violated the Act. See, NLRB v. Burnup & Sims, Inc., 379 U.S. 21,
23 (1964) (Ҥ 8 (a)(1) is violated if it is shown that the [disciplined] employee was at the time
engaged in a protected activity, that the employer knew it was such, that the basis of the
discharge was an alleged act of misconduct in the course of that activity, and that the employee
was not, in fact, guilty of that misconduct”).
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3. The evidentiary ruling barring the Respondent from obtaining
the identify of employees who engaged in union activity
At the hearing I sustained the General Counsel and Union objections to the
Respondent’s effort to inquire into the identity of employees—other than Trisha Miechur—who
were engaged in union activity (Tr. 73–81). Inquiry into Trisha Miechur’s union activity was
permitted.
In its brief, the Respondent has renewed its objection to my ruling. I have considered
the additional argument set forth in the Respondent’s brief. However, upon consideration, I
renew my ruling.
Board precedent is clear that in considering this issue, I must balance the confidentiality
interests of employees to engage in union activity—interests the Board views as an “overriding
concern”—against the Respondent’s right to full and effective cross examination. In this case,
the confidentiality rights of employees to not have their union activity disclosed to the
Respondent far outweighs the largely irrelevant—if we stretch to make a point we can call it
marginally relevant—facts concerning the union activity of employees other than Miechur.
National Telephone Directory Corp., 319 NLRB 420 (1995), involved a strikingly similar
situation to that at bar here. In that case, as here, the General Counsel alleged that an
employee was unlawfully disciplined (discharged in National Telephone Directory) for engaging
in union activity. Similar to here, a union organizer in National Telephone Directory testified that
the discharged employee assisted in organizing employee support for the union and arranged
meetings between the union organizer and the employees. On cross-examination, the
employer sought to have the union organizer reveal the names of employees who attended
these union meetings, and demanded production of notes and cards signed at the meeting that
would reveal those in attendance. Here too, the issue arose when Manorcare’s counsel asked
union organizer Dennis Short about Easton employees who were involved in union activities.
In National Telephone Directory, the Board rejected the employer’s effort to compel
testimony (and quashed subpoenas seeking information) revealing the identity of employees
engaged in union activity. The Board explained:
The confidentiality interests of employees have long been an overriding concern
to the Board. Generally, an employer who seeks to obtain the identities of
employees who sign authorization cards and attend union meetings violates the
Act. Indeed, an employer may not surveil its employees to obtain such
information, and may not give its employees the impression that it has surveilled-
-or will surveil--them to obtain such information. Further, an employer violates the
Act if it questions its employees about this information.
* * * * * * * * *
In addition to the employees' confidentiality interests, the other concern raised
here is the Respondent's right to cross-examine the General Counsel's witnesses
about events testified to on direct examination. Generally, all parties are afforded
an opportunity for full cross-examination of witnesses in unfair labor practice
proceedings. See the Board's Statements of Procedure Section 101.10(b)(2)
("Every party has the right . . . to conduct such cross-examination as may be
required for a full and true disclosure of the facts."). A full cross-examination
includes the right to test the credibility of the General Counsel's witnesses by
asking legitimate questions about subjects brought out on direct examination.
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In balancing these two legitimate interests, we are guided by the policies set forth
in NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978). There, the
Supreme Court balanced the confidentiality interests of employee affiants who
had not testified in a hearing, with an employer's interest in obtaining their
affidavits for the purpose of preparing its defense of unfair labor practice
allegations. The Court, in holding that the investigatory affidavits are protected
from disclosure under the Freedom of Information Act, recognized that such
disclosure would create a risk that recipients of the affidavits would intimidate
employees "to make them change their testimony or not testify at all." Id. at 239.
The Court further suggested that potential witnesses might "be reluctant to give
statements to NLRB investigators at all" without assurances of confidentiality
because of the "all too familiar unwillingness [of employees] to 'get too involved'
[in formal proceedings] unless absolutely necessary." Id. at 240–241.
As our discussion above concerning employee confidentiality interests shows, we
take very seriously the possibility of intimidation of employees by employers
seeking to learn the identity of employees engaged in organizing. We conclude
that the danger of employee intimidation would be severely heightened if an
employer could obtain the names of employees who signed cards or attended
meetings.
Therefore, we believe the policies of the Act are best effectuated by prohibiting
the Respondent from obtaining on cross-examination the names of the
employees who attended union meetings and signed authorization cards. That
the Respondent has sought this information through cross-examination, rather
than through surveillance or interrogation of employees, does not reduce the
potential chilling effect on union activity that could result from employer
knowledge of the information. (footnotes omitted).
With this precedent, and within this framework, I must consider the Respondent’s
demand to know the identities of employees engaged in union activity. The most salient fact is
the utter marginality if not complete irrelevance of this information to the allegations of the
complaint of this inquiry. Only one employee’s union activity is placed at issue by the complaint.
That is, of course, the union activity of the only alleged discriminatee, Trisha Miechur. As to her
union activity, the Respondent was allowed free range without limitation to ask her, and all other
witnesses questions about Miechur’s union activity.
But what is the relevance of other employees’ union activity? The answer is very little or
none. The Respondent contends that employees’ union activity is relevant because it will aid in
determining the truth of Miechur’s assertions that she did not, in fact, engage in solicitation. And
whether Miechur, in fact, engaged in solicitation, was an element of one of the General
Counsel’s alternative theories.
This is not compelling. In the first place, given that my decision in this case does not
turn on whether, in fact, Miechur engaged in solicitation, the issue has turned out to be
irrelevant to the outcome in this case. As discussed above, my conclusion that Miechur’s
discipline violated the Act is based on my conclusion, utilizing a Wright Line analysis, that
antiunion animus motivated the discipline and she would not have been similarly disciplined in
the absence of her union activity. That ruling renders wholly irrelevant the truth of the matter of
whether Miechur actually engaged in the solicitation for which she was disciplined. Similarly,
my alternative ruling is that, even assuming, arguendo, that Miechur engaged in the solicitation
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for which she was disciplined, that conduct was protected activity. Again, whether Miechur, in
fact, engaged in solicitation is irrelevant.58
Having said, that, even were the issue of whether the Miechur actually engaged in the
solicitation still at issue, the relevance of other employees’ union activity would still be of
extremely marginal relevance, at best. It is indeed, a fishing expedition, and one with potentially
insidious purpose and effect. If permitted to learn the identities of employees who engaged in
union activity, the most that the employer would gain would be a pool of employees who might
be better situated, by virtue of their own union activity, to corroborate or contradict Miechur’s
claim that she did not engage in solicitation. But there is no guarantee that these other union
activists could shed light on whether Miechur actually engaged in solicitation. At the great cost
of exposing union activity at the facility, what is netted is a pool of employees whose shared
interest in the Union might make them knowledgeable witnesses about Miechur’s activity. And if
the Respondent’s questions were more pointed—if, as it sought to, it could ask which
employees engaged in solicitation, this is more problematic still. The Respondent has made
clear that it considers the solicitation of residents to be a punishable act. The pressure on an
employee accused of soliciting to contradict Miechur to protect his or her own employment is an
unseemly and unsettling prospect.
Such an outcome cannot seriously be contemplated, particularly when the relevance to
the complaint is of such marginal relevance. In light of the Board’s ruling in National Telephone
Directory, with its explicit recognition that “the danger of employee intimidation would be
severely heightened if an employer could obtain the names of employees” engaged in union
activity, I cannot accept the perversity that Board proceedings should become a forum for
employer investigation into union activity, using questioning that would be unlawful outside the
hearing room, and, perhaps unlawful in a hearing room, an issue I need not reach only because
my ruling foreclosed the questioning. Guess?, Inc., 339 NLRB 432, 434 (2003) (unlawful for
employer’s counsel to ask employee in a workers compensation deposition about identity of
those attending union meetings).59 “That the Respondent has sought this information through
cross-examination, rather than through surveillance or interrogation of employees, does not

58The Respondent’s contention on brief (R. Br. at 51) that knowledge of other employees’
union activity would have helped its Wright Line defense is meritless. The Respondent claims
that it could have used the information to show that others who engaged in union activity were
not disciplined, thus allegedly giving credence to its claim that it was not motivated by antiunion
animus when it disciplined Miechur. This does not merely miss the point, it makes the General
Counsel’s point. That point, of course, is that when the Respondent disciplined Miechur, it was
aware of her union activity, but not others. That is, I have concluded, why the Respondent
disciplined Miechur and was indifferent to the potential participation of any other employees in
the solicitation it claims it was punishing. It does not advance the Respondent’s Wright Line
defense to show that of all the employees engaged in union activity, the Respondent disciplined
only the employee of whose union activity it was aware. In any event, even if the Respondent
knew of other employees’ union activity and disciplined only Miechur, “[t]he Board and the
courts have long held that a finding of discriminatory motive ‘is not disproved by an employer's
proof that it did not weed out all union adherents.’” All Pro Vending, Inc., 350 NLRB 503, 515
(2007) (quoting Nachman Corp. v. NLRB, 337 F.2d 421, 424 (7th Cir. 1964)).
59See, Chinese Daily News, 353 NLRB No. 66 (2008) (not reaching issue of lawfulness of
asking deponent in federal court lawsuit about attendance at union meetings and involvement in
union activities, where such finding would be cumulative, given finding that questioning of how
deponent voted in union election was unlawful).
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reduce the potential chilling effect on union activity that could result from employer knowledge of
the information.” (footnotes omitted). National Telephone Directory, supra.
The Respondent’s only effort to distinguish National Telephone Directory from the
instant case is to point out that some of the union activity it was foreclosed from inquiring into
involved employee union activity that was conducted in public settings. The Respondent
contends that employees who engage in union activity in public settings have waived their right
to confidentiality. There is no force to this contention. First, it is important to note that the
identity of employees participating in public events constituted only some of the information
sought by the Respondent. It also sought the identities of employees attending private union
meetings and those engaged in solicitation. As to those inquiries, the Respondent offers not
even an argument to distinguish National Telephone Directory. But even as to employees who
increased the risk of disclosure of their union activity by participating in more public events, I do
not accept that they have “waived” their rights. No doubt, by engaging in a public rally, an
employee increases the risk that the employer will learn of their involvement in union activity.
That is the employee’s risk to take. But if the employer does not learn of their involvement (and,
of course, that is the situation, else the issue would not exist), by no sound logic is the employee
obligated thereafter to disclose his union activity and by no logic is the employer free to demand
an accounting of who participated in the public event. There is no rationale for the Board to
abet that process through its enforcement proceedings. And the point is reinforced by the fact
that in this case, the more public and more removed the union activity from the solicitation
events at Easton, the less and less conceivable relevance the employee’s identity could have to
any issue in this case.
Miechur testified three times in this hearing. Her union activity was open for inquiry and
questioning in each instance. Other employees testified, and there was no limitation on the
Respondent’s right to ask them about Miechur’s union activity. The only area that the
Respondent was barred from asking questions, of Miechur or other witnesses, was as to other
employees’ union activity. I reject the contention that this burdened the Respondent’s defense
in any meaningful way. In sum, when the employee confidentiality rights are balanced against
the marginal (at best) interests of the employer in learning the identity of employees engaged in
union activity, this is not a close case. Indeed, I question how seriously the Respondent takes
its position.60

60I say this because I could not help but notice that when CNA Collado testified and
admitted her own activity in support of the Union, the Respondent did not take the opportunity to
ask her anything regarding Miechur’s union activity. In other words, presented with a witness
providing the precise type of information it claims it needed to defend its discipline of Miechur,
the Respondent asked no questions regarding Miechur. Rather, it simply attempted to pry
further into Collado’s activities on behalf of the Union and attempt to have Collado reveal
additional employees engaged in union activity. At best, this demonstrates the
disingenuousness of the employer’s claim that it has been hindered by an inability to inquire into
employees’ union activities. At worst, it raises the specter that its inquiries are unrelated to the
defense of this case.
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f. Unlawful conduct alleged to have occurred in 2008
(paragraphs 11–13 of the complaint)
The General Counsel alleges three 8(a)(1) violations occurring in 2008.
The first two are appropriately considered together. As described above, the day after
the Friday, January 18 confrontation with Carlyle CEO Rubenstein in Philadelphia, Miechur
returned to work. She brought a copy of the Philadelphia Inquirer containing an article about the
protest. Miechur believed that Heimbach had taken the paper out of the nourishment room and
confronted her about it. Heimbach denied taking the paper, but said to Miechur, “I’ve seen what
you’ve done. I’ve known what you’ve done. You should be ashamed of yourself. . . . [H]ow can
you walk in to this facility with your head high after what you’ve done?.” That Monday, on
January 21, Stolte called Miechur into Specter’s office. With news articles about Heimbach’s
activities out in her office, and in front of Stolte, Specter admonished Miechur to “stop doing
what [she was] doing because we’re not going to get anymore residents in to Manorcare and I
should be ashamed of myself.” She asked Miechur how she could “walk into this facility with
[her] head high.”
I find that the comments of Heimbach and Specter together, the similarity of which I do
not believe to have been coincidental, were coercive. If either comment was an impromptu
response, indicating distaste for the Heimbach’s public and confrontational appearance on
behalf of the SEIU campaign, a different analysis might be appropriate. But these comments
were calculated and coordinated. They appeared, in fact, to be literal efforts to “shame” and
denigrate Miechur for her activities, as opposed to mere criticism of the campaign tactics.
Indeed, both Heimbach and Specter asked Miechur how she could “walk into this facility with
[her] head high.” These comments from two (and in front of another) of the highest ranking
members of local management come very close to containing a suggestion that—had she the
appropriate shame—she would not have returned to the facility and would have quit. While not
an explicit request that Miechur quit, these comments would reasonably be understood as
coercive, threatening, and an unlawful response to Miechur’s protected activity. See, Legget
Department Store, 137 NLRB 403, 404 (1962) (finding 8(a)(1) when on day of newspaper article
about Board trial examiner’s decision, supervisor asked employee-witness “did you read the
morning paper?" and then "Weren't you ashamed to come through that door this morning?").61

61Heimbach suggested in her testimony that her comments were motivated by what she
perceived as Miechur’s criticism of care given by coworkers and not by anything that could be
considered protected activity, but I do not believe she spelled that out to Miechur. It is settled,
of course, that in determining the coerciveness of remarks, the Board applies an objective
standard and evaluates whether the remarks reasonably tend to interfere with the free exercise
of employee rights. The Board does not consider the motivation behind the remarks. Miller
Electric Pump & Plumbing, 334 NLRB 824, 825 (2001); Joy Recovery Technology Corp., 320
NLRB 356, 365 (1995), enfd. 134 F3d. 1307 (7th Cir. 1998). See, United States Postal Service,
350 NLRB 441, 445 (2007). A reasonable and objective understanding of Heimbach’s
comments would be that it was in response to Miechur’s participation in January 18 protest and
the comments attributed to her in the Philadelphia Inquirer. That article did not contain remarks
by Miechur criticizing her coworkers for poor care. Rather, the article attributed to Miechur the
comment that Manor workers were worried that Carlyle would be tempted to make spending
cuts and the comment that coworkers had asked the SEIU to help form a union because they
were worried Carlyle could not afford to improve both profits and patient care.
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The final 8(a)(1) alleged by the General Counsel concerns Stolte’s comments to Miechur
after Miechur stormed out of the April 22, 2008 slide show conducted by Stolte. As Miechur
admitted, she acted inappropriately in response to the slide show’s reference to the SEIU and
implicit reference to her. When Stolte spoke with Miechur after the meeting Miechur complained
that “I’m tired of the meeting [ ] being about me and SEIU. I’m tired of working in a hostile
environment.” Stolte replied, “if you don’t like it you can quit.”62 Miechur told Stolte, “I’m not
going to quit because I’m here working for my residents.” Miechur also told Stolte that “you are
going to have to fire me to get rid of me.” Stolte told Miechur she was not about to fire her, and
she was not going to discipline her for walking out of the meeting.
The suggestion to Stolte that “if you don’t like it you can quit” (or, in Stolte’s version, “no
one is making [you] work here”), was in direct response to Miechur’s complaint that she did not
like her union activity and the SEIU being the focus of meetings. Manorcare does not violate
the law by having meetings in response to union activity. It does violate the Act by suggesting
that employees that do not like it are free to work elsewhere. Chinese Daily News, 346 NLRB
906, 906, 919 (2006) (violation of 8(a)(1) to tell employee to resign if she was not happy with her
job); McDaniel Ford, Inc., 322 NLRB 956, 956 fn. 1 and 962 (1997) (“It is well settled that an
employer's invitation to an employee to quit in response to their exercise of protected concerted
activity is coercive, because it conveys to employees that support for their union or engaging in
other concerted activities and their continued employment are not compatible, and implicitly
threaten discharge of the employees involved.”). Intertherm, Inc., 235 NLRB 693, 693 fn. 6
(1978) (unlawful to tell employee that if "he was not happy with the Company, he should look
elsewhere for a job"). Stolte’s comment violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent Manor Care of Easton, PA, LLC d/b/a Manorcare Health Services—
Easton is an employer within the meaning of Section 2(2), (6), and (7) of the Act, and
a health care institution within the meaning of Section 2(14) of the Act.
2. The Charging Party Service Employee International Union Healthcare PA is a labor
organization within the meaning of Section 2(5) of the Act.
3. In October 2007, the Respondent violated Section 8(a)(1) of the Act by interrogating
employees concerning their union sympathies.
4. On or about October 29 and 30, 2007, the Respondent violated Section 8(a)(1) of the
Act by soliciting employee complaints and grievances and, in order to discourage
employees from seeking union representation, promising to remedy the complaints
and grievances.
5. On or about November 12, 2007, the Respondent violated Section 8(a)(1) of the Act
by transferring supervisors Lynette Seiler and Paula Kublius in order to discourage
employees from seeking union representation.

62I have credited Miechur’s account. I note that Stolte’s slightly different admission was that
she said “I told her that no one was making her work here.” I find that in context, whether Stolte
or Miechur’s version of the comment was credited would make no difference to the analysis.
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6. On or about November 21, 2007, the Respondent violated Section 8(a)(1) of the Act
by instituting a wage increase and/or lump sum bonus to CNAs and increasing the
starting hourly wage for CNAs, in order to discourage employees from seeking union
representation.
7. On or about November 21, 2007, the Respondent violated Section 8(a)(1) of the Act
by threatening employee Trisha Miechur with job loss if she continued her union
activities.
8. On or about November 21, 2007, the Respondent violated Section 8(a)(1) of the Act
by confiscating union literature.
9. On or about November 28, 2007, the Respondent violated Section 8(a)(1) and (3) of
the Act by disciplining employee Trisha Miechur in retaliation for her activities in
support of the Union.
10. On or about January 19 and again on January 21, 2008, the Respondent violated
Section 8(a)(1) of the Act by admonishing an employee for her activities in support of
the Union and directing her to stop engaging in such activities.
11. On or about April 7, 2008, the Respondent violated Section 8(a)(1) of the Act by
telling an employee that she could quit if she did not like the employer’s meetings
regarding the Union.
12. The unfair labor practices committed by the Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having unlawfully disciplined employee Trisha Miechur on November
28, 2007, shall rescind the discipline and remove from its files, including Miechur’s personnel
file, any reference to the discipline, and shall thereafter notify Miechur in writing that this has
been done and that the discipline will not be used against her in any way.
The Respondent shall post an appropriate informational notice, as described in the
Appendix, attached. This notice shall be posted in the Respondent’s facility or wherever the
notices to employees are regularly posted for 60 days without anything covering it up or
defacing its contents. When the notice is issued to the Respondent, it shall sign it or otherwise
notify Region 4 of the Board what action it will take with respect to this decision.
In its brief (CP Br. at 55), the Union has indicated that it will not be requesting rescission
of the wage increase or the return of Kublius and Seiler. Accordingly, the remedy in this case
will not include an order to take such action at the request of the Charging Party.
The Union (but not the General Counsel) also requests a broad range of what the Board
refers to as ”extraordinary remedies.” These include a broad cease and desist order covering
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all Manor Care facilities within the Easton region, a posting at all such facilities, a reading of the
posting to employees, access to the names and addresses of Easton employees and access to
the facility for two years, equal time to respond at the facility to meetings held by the employer
regarding unionization, recognition upon attainment of a card majority, and reimbursement from
the Respondent for the Union and General Counsel’s litigation expenses and for the Union’s
organizing expenses. While the unfair labor practices the Respondent has found to have
engaged in are serious matters, I do not find the Respondent's conduct in violation of the Act
supports such extraordinary remedies under current Board precedent. I therefore decline to
direct them. As to the requested reimbursement of expenses, I note that, as the General
Counsel pointed out (GC Br. at 37), “[t]his case turns to a large degree on credibility.” Because
that is the case, and because I do not believe that the Respondent’s defenses were frivolous, I
decline to order reimbursement as requested by the Union.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended63
ORDER
The Respondent, Manor Care of Easton, PA, LLC d/b/a ManorCare Health Services—
Easton, Easton, Pennsylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating any employee regarding his or her union sympathies.
(b) Soliciting complaints and grievances and, in order to discourage employees
from selecting union representation, promising to remedy the complaints and
grievances.
(c) Transferring supervisors in order to discourage employees from selecting
union representation.
(d) Instituting wage increases/lump sum bonuses and/or increasingly hourly
rates in order to discourage employees from selecting union representation.
(e) Threatening any employees with job loss for continuing their union activities.
(f) Confiscating union literature.
(g) Disciplining any employee in retaliation for their union activity.
(h) Admonishing any employee for engaging in activities in support of the Union
and directing any employee from continuing to engage in union activity.
(i) Inviting union supporters to resign employment.

63If 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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(j) 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 effectuate the policies of the Act:
(a) Within 14 days from the date of this Order, rescind the November 28, 2007
discipline issued to Trisha Miechur, remove from its files, including Trisha
Miechur’s personnel file, any reference to the discipline, and within three days
thereafter notify Trisha Miechur in writing that this has been done and that the
discipline will not be used against her in any way.
(b) Within 14 days after service by the Region, post at its facility in Easton,
Pennsylvania, copies of the attached notice marked “Appendix.”64 Copies of the
notice, on forms provided by the Regional Director for Region 4, after being
signed by the Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted.
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 October 18, 2007.
(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 Respondent has taken to comply.
Dated, Washington, D.C. January 23, 2009.

____________________
David I. Goldman
Administrative Law Judge

64If 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.”
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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 coercively question you about your union sympathies.
WE WILL NOT solicit complaints from you and promise to remedy them in order to discourage
you from selecting union representation.
WE WILL NOT transfer supervisors in order to discourage you from selecting union
representation.
WE WILL NOT institute wage increases in order to discourage you from selecting union
representation.
WE WILL NOT threaten you with job loss for continuing to engage in union activities.
WE WILL NOT confiscate union literature.
WE WILL NOT discipline you in retaliation for engaging in union activity.
WE WILL NOT admonish you for engaging in union activity or direct you to stop continuing to
engage in union activity.
WE WILL NOT invite union supporters to resign employment.
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 National Labor Relations Act.
WE WILL, within 14 days from the date of this Order, rescind the unlawful discipline issued to
Trisha Miechur and remove from our files any reference to the discipline, and WE WILL, within
three days thereafter, notify Trisha Miechur in writing that this has been done and that the
discipline will not be used against her in any way.
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Manor Care of Easton, PA, LLC d/b/a ManorCare
Health Services—Easton,
(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.
615 Chestnut Street, One Independence Mall, 7th Floor
Philadelphia, Pennsylvania 19106-4404
Hours: 8:30 a.m. to 5 p.m.
215-597-7601.
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, 215-597-7643.