Northwoods Rehabilitation & Extended Care Facility

National Labor Relations Board - Board Decisions

Jun 30, 2005

344 N.L.R.B. 1040 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 129
1040
Highgate LTC Management, LLC d/b/a Northwoods
Rehabilitation and Extended Care Facility at
Rosewood Gardens and New York’s Health &
Human Service Union 1199/SEIU, AFL–CIO.
Cases 3–CA–23616 and 3–CA–23730
June 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On January 24, 2003, Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel filed cross-exceptions and a supporting
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions,2 and to adopt the recommended
Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The judge found that the Respondent violated Sec. 8(a)(1) of the
Act by promulgating an overbroad restriction on off-duty employee
access to the Respondent’s facility. This allegation, however, was not
included in the complaint. Accordingly, we reverse the judge’s finding
and have deleted the relevant provisions from the Order and notice.
Chairman Battista finds it unnecessary to pass on whether the Re-
spondent violated Sec. 8 (a)(1) by surveilling its employees’ union
activity on April 24, 2002, because any such violation would be cumu-
lative of the finding that the Respondent violated Sec. 8(a)(1) by sur-
veilling its employees’ union activity on April 19, 2002.
No exceptions were filed to the judge’s findings that the Respondent
violated Sec. 8(a)(1) of the Act when (a) Manager Catherine Donato
told employees that they could not engage in protected activities during
nonworking time in nonworking areas of the Respondent’s property;
(b) Supervisor Nancy Nopper told employee Denise King that she
could not talk about the Union while at work; (c) Supervisor Nopper
told employee Ronnie Currie to remove a Union pin from his uniform;
and (d) the Respondent promulgated a rule prohibiting employees from
wearing tags, buttons, or stickers while on duty. Further, no exceptions
were filed to the judge’s findings that the Respondent violated Sec.
8(a)(5) by denying the Union’s request for access to its facility to ob-
serve employees’ working conditions and by failing to provide the
Union with certain requested information.
3 To ensure that the employees are accorded an appropriate period of
representation, we shall amend the remedy so that the one year certifi-
cation period begins on the date that the Respondent remedies the vio-
lations found herein. See Mar-Jac Poultry Co., 136 NLRB 785, 787
(1962).
modified below and orders that the Respondent, High-
gate LTC Management, LLC d/b/a Northwoods Reha-
bilitation and Extended Care Facility at Rosewood Gar-
dens, Rennselaer, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 1(c).
“(c) Promulgating or maintaining work rules prohibit-
ing its employees from wearing tags, buttons, or stickers
while on duty.”
2. Substitute the following for paragraph 2(c).
“(c) Within 14 days of the date of this Order, notify all
employees in the bargaining unit herein, in writing, that
it is rescinding the rule promulgated on April 12 prohib-
iting employees from wearing tags, buttons, or stickers
while on duty, and that they are not prohibited from en-
gaging in union and other protected activities while they
are on the Respondent’s property, as long as they are not
in immediate patient-care areas.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
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 ac-
tivities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting New York's Health &
Human Service Union 1199/SEIU, AFL–CIO (the Un-
ion) or any other union.
WE WILL NOT engage in surveillance of your union or
other protected concerted activities.
WE WILL NOT inform you that you are prohibited from
engaging in union or other protected concerted activities
while on our property.
WE WILL NOT prohibit you from wearing tags, buttons,
or stickers while on duty.
WE WILL NOT refuse to meet in a timely manner with
the Union for the purpose of negotiating a contract.
NORTHWOODS REHABILITATION 1041
WE WILL NOT refuse to give the Union information that
it requested, which information is relevant and necessary
to it as the collective-bargaining representative of certain
of our employees.
WE WILL NOT refuse to bargain with the Union by re-
fusing to grant the Union's request for access to our facil-
ity in order to observe the equipment and working condi-
tions at the facility.
WE WILL NOT in any like or related manner, interfere
with, restrain or coerce you in the exercise of your Sec-
tion 7 rights.
WE WILL offer Denise King immediate and full rein-
statement to her former job or, if that job no longer ex-
ists, to a substantially equivalent position without preju-
dice to her seniority or any other rights and privileges
previously enjoyed, and WE WILL make her whole for any
loss of earnings and other benefits resulting from her
discharge, less any net interim earnings, plus interest.
WE WILL rescind the work rules adopted on April 12,
2002, involving your right to wear tags, buttons, or stick-
ers while on duty.
WE WILL provide the Union with the information it re-
quested in items 3, 4, 5 and 19 of the Union's information
request to us dated June 13, 2002, and
WE WILL, on the Union's request, grant the Union ac-
cess to our facility for reasonable periods and at reason-
able times sufficient to allow the Union to observe your
work.
HIGHGATE LTC MANAGEMENT, LLC D/B/A
NORTHWOODS REHABILITATION AND EX-
TENDED CARE FACILITY AT ROSEWOOD
GARDENS
Alfred Norek, Esq., for the General Counsel.
Matthew DeMarco, Esq. (Schwarz & DeMarco LLP), for the
Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on November 12, 2002, in Albany, New York.
The amended consolidated complaint herein, which issued on
September 18, 2002,1 was based upon unfair labor practice
charges and an amended charge that were filed on May 14, July
24, and August 2, by New York’s Health & Human Service
Union 1199/SEIU, AFL–CIO (the Union). The complaint al-
leges that Highgate LTC Management, LLC d/b/a Northwoods
Rehabilitation and Extended Care Facility at Rosewood Gar-
dens (the Respondent) violated Section 8(a)(3) of the Act by
terminating employee Denise King on about May 10, and vio-
lated Section 8(a)(5) of the Act by refusing to provide certain

1 Unless indicated otherwise, all dates referred to herein relate to the
year 2002.
requested information to the Union on about June 13, and by
failing and refusing to do so in a timely manner, by refusing to
meet with the Union in a timely manner for the purpose of ne-
gotiating a collective-bargaining agreement, and by refusing to
grant the Union access to its facility in order to observe the
employees’ working conditions. In addition, the complaint
alleges numerous 8(a)(1) violations: that it directed its employ-
ees to remove union buttons from their clothing, engaged in
surveillance of its employees’ union activities, and informed its
employees that they were prohibited from engaging in union
activities, or discussing the Union, while on the Respondent’s
premises. It is further alleged that the Respondent violated
Section 8(a)(1) of the Act by promulgating rules stating that
employees were not permitted access to the interior of the Re-
spondent’s facility when they were not on duty and that em-
ployees could not wear badges or stickers in support of any
particular cause or candidate while on duty, and added these
rules to its employee handbook.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that it has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union has been a la-
bor organization within the meaning of Section 2(5) of the Act.
III. FACTS AND ANALYSIS
A. Election and Certification
The Union filed a petition with the Board on April 24 in
Case 3–RC–11224 to represent certain of the Respondent’s
employees. After an election that was conducted on May 31,
the Union was certified by the Board on June 10 as the collec-
tive-bargaining representative of the following employees of
the Respondent:
All full-time and regular part-time and per diem non profes-
sional employees, including all licensed practical nurses, ac-
tivities aides, certified nurse aides, rehabilitation/physical
therapy aides, dishwashers, housekeeping employees, laundry
employees, maintenance employees, and unit secretaries, em-
ployed by the Employer at its Rennselaer, New York facility;
but excluding all business office clerical employees, guards,
receptionists, the dining room supervisor, chefs, and all other
supervisors and professional employees as defined in the Act
and all other employees.
B. Bargaining, Information, and Access Requests
The complaint alleges that on June 13 the Union, by letter,
requested that the Respondent bargain with it in order to nego-
tiate a collective-bargaining agreement, but that the Respondent
failed to respond to this request in a timely manner, in violation
of Section 8(a)(5) of the Act. The complaint also alleges that
by the same June 13 letter, the Union requested that the Re-
spondent provide it with certain information that was relevant
and necessary for it as the collective-bargaining representative
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1042
of certain of its employees. It is alleged that the Respondent
violated Section 8(a)(5) of the Act by not providing any infor-
mation in response to this request until August 9, and never
providing information in response to items 3, 4, 5, and 19 of the
June 13 letter.
By letters dated June 13, Patricia Lippold, the Union’s staff
director, wrote identical letters to the Respondent’s owners,
administrator, and counsel. The first part of the letters re-
quested that the Respondent begin bargaining with the Union
on June 27, and continue negotiations on the next four consecu-
tive Thursdays at the Respondent’s facility and that the mem-
bers of the Union’s bargaining committee be released from
work to attend these sessions. The second part of the letters
requested that the Respondent provide it with twenty items “for
the purposes of bargaining.” The requests that allegedly were
never responded to are:
3. Date and amount of most recent pay raise, if any,
for all employees in the bargaining unit.
4. Date and amount of most recent bonus, if any, is-
sued to all employees in the bargaining unit.
5. Copies of any and all records of discipline for all
employees in the bargaining unit.
19. Copies of any and all documents setting forth poli-
cies regarding health and safety in the workplace.2
By letter dated June 28, Matthew DeMarco, counsel for the
Respondent, wrote to Lippold:
We are the attorneys for Northwoods Rehabilitation and Ex-
tended Care Facility at Rosewood Gardens. We are in receipt
of your letter of June 13, 2002 in which you request informa-
tion for the purposes of collective bargaining. We have for-
warded a copy of your request to Rosewood and are review-
ing the same. The requested documentation, as it may exist
and be relevant to collective bargaining, will be forwarded to
you. We will be in further contact with you regarding avail-
able dates and a place, for the commencement of bargaining.
By letter dated July 8, Lippold wrote to counsel for the Re-
spondent, inter alia:
I have reviewed your letter dated June 28, 2002 indi-
cating that you will be representing Rosewood Gardens
Nursing Home Administration in contract negotiations
with 1199 SEIU.
Since the bargaining dates I recommended in previous
letters have now passed, I would like to suggest other
dates. I can be available July 15th, 16th, 18th, 19th or any
day the following week.
By letter dated July 19, Lippold wrote, again, to counsel for the
Respondent, as a “follow up to my letter of June 13, 2002 re-
questing information and bargaining dates.” She asked that the
information requested for the period May 31, 2001, to the pre-

2 At the commencement of the hearing, counsel for the General
Counsel proposed a stipulation that these items were relevant and nec-
essary to the Union as the collective-bargaining representative of cer-
tain of the Respondent’s employees. Counsel for the Respondent,
while refusing to stipulate to the necessity of this requested informa-
tion, did stipulate that they were relevant.
sent be sent to the Union’s office in Albany. The letter also
states:
The Union is anxious to commence negotiations and
we have not received any of the information that we re-
quested nor have we heard back from you concerning the
dates we proposed for bargaining or received any informa-
tion requested in my letter. I have contacted you [sic] of-
fice several times and have received no response.
I would also like to schedule a time for union represen-
tatives to enter the facility to observe employee work
process and working conditions. I propose July 29th, 30th
or 31st of 2002.
Please contact me at (518) 489–4749 to confirm dates
for bargaining and union representative visits.
By letter dated August 9, counsel for the Respondent sent
Lippold documents “. . . in response to your request for infor-
mation . . . as set forth in your letter of June 13, 2002.” As set
forth above, it is alleged that there are two distinct violations
herein: that the 8-week delay in responding to the Union’s June
13 request for information violated Section 8(a)(5) of the Act,
and that the response did not adequately address items 3, 4, 5,
and 19 of the June 13 request.
Counsel for the Respondent’s August 9 letter responded to
items 3, 4, and 5 in the following manner: for item 3, “Date and
amount of most recent pay raises. Rosewood employees receive
annual increases of 0–2.5%, based on merit on their anniversary
date.” For item 4: “Date and amount of most recent bonus.
Rosewood does not provide bonuses for employees. As
needed, Rosewood provides work incentives.” For item 5:
“Disciplinary records. Other than individual write-ups, the
facility does not maintain disciplinary ‘records.’ You do not
specify any time period, nor any particular issue as a basis for
your request. If you wish to provide further information, we
will give your request further consideration.” There was no
specific response to item 19.
By letter dated August 26, Lippold wrote to counsel for the
Respondent, inter alia:
This is in response to your letter of August 9, 2002 and
the information provided with that letter. As detailed be-
low, certain documents requested by me in my June 10,
2002 letter have not been produced and I request that you
provide them at the earliest possible time.
1. Paragraph 4—most recent bonus. You state that
bonuses are not provided but work incentives are pro-
vided. I believe my request for bonuses encompasses
work incentive payments and request that you provide in-
formation reflecting the nature of these incentives and the
date and amount of work incentive(s) paid to each bargain-
ing unit employee.
2. Paragraph 5—disciplinary records: Individual em-
ployee write-ups are generally considered disciplinary re-
cords and we request copies of all write-ups as well as
warning notices, suspension notices and discharge notices
issued to any bargaining unit employee over the past five
years.
. . . .
NORTHWOODS REHABILITATION 1043
5. Paragraph 19—health and safety policies: We re-
ceived no documents in response to this request. I would
assume that Rosewood Gardens has written policies or
guidelines concerning a variety of health and safety mat-
ters, such as exposure to contaminants, infectious diseases,
needle-stick injuries, lifting and other work-related haz-
ards.
We are still awaiting your response regarding schedul-
ing a time for a union representative to obtain access to the
building to observe working conditions as requested in our
July 19th letter.
By letter dated August 28, Lippold wrote again to counsel for
the Respondent stating:
This letter is a follow up to my letter dated August 26,
2002 regarding Rosewood Gardens compliance with the
union’s information request.
I had neglected to include that you had not fully re-
sponded to item number three on our June 10th, 2002 let-
ter. We are seeking the date and amount of the most re-
cent pay raise each individual employee received.
Lippold testified as to why the information requested was
relevant and necessary to the Union. As to item 3, she testified
that she wanted to know what pay raises had been granted in
the prior year to assist in preparing a wage proposal for bar-
gaining. As to item 4, employees were telling her that some
employees received bonuses while others didn’t and she wanted
to know why, and she needed this information to assist her in
preparing a wage proposal for negotiations. For item 5: “we
did need to know what disciplinary actions had been taken
before, in order to formulate a proposal in discipline discharge
grievances.” In addition, in its future representation of these
employees, it was necessary for the Union to know the extent
of each employees’ past discipline in evaluating and prosecut-
ing future disciplinary actions. The Union needed item 19 be-
cause there are a lot of issues and regulations regarding health
and safety in the industry, and the Union needed to know what
information the Respondent was distributing to its employees in
order to bargain effectively about this issue. Since the Respon-
dent’s reply on August 9, the Union has received no further
response to its June 13 request, nor has the Respondent ever
offered the Union an explanation for the delay from June 13 to
August 9.
Terri-Ann-Montanye, Respondent’s corporate director of
human resources for the Respondent’s parent corporation, testi-
fied for Respondent about the reasons for the delay in respond-
ing to the Union’s information request. She testified that she
received Lippold’s June 13 letter prior to receiving the certifi-
cation from the Board. Because of that, she put the letter “on
the side” until she received the certification, about a week later.
She then took the letter to Sandy Condit, Respondent’s HR
payroll coordinator at the facility and told her to “start gather-
ing this information.” She testified that the Respondent
“. . .does not have the most sophisticated software, so most of
this was done manually, which takes a little longer. . . .” For
example, for the Union’s request on health insurance, the Re-
spondent had to manually inspect every insurance bill for the
unit employees. For the request of the names of the bargaining
unit employees, with their addresses, telephone numbers, job
classification, date of hire and social security numbers, this also
had to be performed manually by the human resources em-
ployee at the facility. It was the fact that these requests and
others had to be individually performed that caused the delay
from mid-June until August 9. Montanye testified that, as far
as she is concerned, all the requests have been complied with.
She testified that, in about mid-October, she gave Lippold some
requested information regarding health insurance, and said to
Lippold, “This takes care of everything” and Lippold responded
that it did. She did not respond to Lippold’s letters of August 26
and 28 because, “I thought this was all taken care of.” She
testified further that there is a difference between a bonus and a
work incentive. The Respondent recently offered a sign-on
bonus, additional money to encourage individuals to work for
the Respondent. An example of a work incentive is if it needed
somebody to work an additional shift, they would offer a few
extra dollars if the employee volunteered for overtime work.
As regards the alleged violation of delaying collective bar-
gaining, Lippold testified that when she did not receive a re-
sponse to her June 13 letter, after receiving counsel for the
Respondent’s June 28 letter, she made a number of phone calls
to counsel’s office, but these calls were not returned. By letter
dated August 21, the Respondent notified Lippold that Leroy
Kotary would be its negotiator, and gave the address and tele-
phone number that he could be reached at “. . . to schedule
dates for negotiations.” That was the first time that the Re-
spondent notified the Union who would be negotiating on its
behalf and there had been no negotiations between the parties
prior to that date. The first negotiating session took place on
September 19.
As stated above, Montanye testified that she did not receive
the Board certification until about a week after it issued. After
receiving the certification, she met with Respondent’s owners
to decide whether counsel in this matter would also serve as the
Respondent’s negotiator and before Montanye went on vacation
on August 19, they decided to retain Kotary as their negotiator.
She testified that during the period between Lippold’s June 13
letter and Respondent’s August 21 response, the Respondent’s
owners were away for 2 weeks and Kotary “wasn’t available”
for some unspecified period of time.
In addition to these allegations, it is also alleged that since
about July 19, the Respondent has ignored, or denied, the Un-
ion’s request for access to the facility for the purpose of observ-
ing the employees’ working conditions, which was necessary
for the Union as the bargaining representative of certain of the
Respondent’s employees, in violation of Section 8(a)(5) of the
Act. As stated above, Lippold’s July 19 letter to counsel for the
Respondent requested that the Respondent allow Union repre-
sentatives to enter the facility to observe the employees’ work-
ing conditions, and Lippold’s August 26 letter to counsel stated
that the Union was still waiting for a response to that request.
Lippold testified that the Union wanted to observe the employ-
ees working at the facility in order to best formulate their bar-
gaining demands. The Respondent has never responded to
these requests and has never granted the Union the access that it
requested, although the parties are presently negotiating that
issue along with other aspects of a proposed contract. Lippold
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1044
testified that during the summer, she asked one of the Respon-
dent’s owners, Diana Koehler, if the Union could have access
to the facility in order to observe the employees’ working con-
ditions, and the layout and equipment at the facility, and
Koehler responded that the Union would never set foot in the
facility. Koehler, who is not named in the complaint, did not
testify.
Section 8(d) of the Act requires the parties “. . . to meet at
reasonable times. . . .” On June 13, the Union requested that
the Respondent commence bargaining with the Union, which
had been certified by the Board three days earlier. The letter
suggests June 27 as the date for commencement of the negotia-
tions. Despite Lippold’s subsequent calls and followup letter,
the Respondent did not respond to these requests until August
21, when it notified the Union that Kotary would be negotiating
on its behalf. Respondent’s defense to this delay is that it did
not receive the certification for about a week after it issued, its
owners were away for about two weeks during this period, and
that Kotary was not available for some unspecified period dur-
ing this time. Stated bluntly, this is a rather lame and transpar-
ent excuse for failing to respond to the Union’s bargaining
request for a period in excess of 2 months. Respondent never
explained why it took over two months to select an individual
as its chief negotiator, especially when it had been employing
an experienced and capable law firm during the election proc-
ess who, even if they were not chosen to act as the Respon-
dent’s chief negotiator, presumably, could have recommended
others for that position. In addition, even if Respondent were
having difficulty selecting a negotiator, it did not explain why it
did not so notify the Union, rather than waiting almost ten
weeks before replying to the Union’s bargaining request. The
court, in Calex Corp. v. NLRB, 144 F.3d 904, 909 (6th Cir.
1998) stated: “Dilatory and delaying tactics that undermine the
process of collective bargaining are indicative of bad faith bar-
gaining.” I find that the Respondent’s dilatory tactics in failing
to respond to the Union’s bargaining request for over 2 months
violated Section 8(a)(5) of the Act. J & J Towing Co., 307
NLRB 198 (1992).
There are two distinct allegations regarding the Union’s in-
formation request dated June 13 and supplemented on August
26 and August 28. That the Respondent’s delay in responding
to the request violated the Act, and that the Respondent never
properly responded to 4 of the 20 requests. Initially, the four
items in dispute are clearly relevant and necessary to the Union
as the collective-bargaining representative of these employees.
I found Lippold to be an articulate and credible witness and
credit her testimony regarding the Union’s need for the twenty
items requested. Items 3 and 4 relate to the Respondent’s his-
tory of granting wage increases and extra compensation to its
employees, certainly relevant and necessary to the Union in
preparing its wage demands. The Union would need the infor-
mation requested in item 5 for future disciplinary matters in-
volving the unit employees and the information requested in
item 19 in order to learn what safety measures the Respondent
employed in order to determine whether additional safety
measures are needed.
When a union is entitled to requested information, it is enti-
tled to it without unreasonable delay, in a timely manner, or “as
promptly as circumstances allow.” Valley Inventory Service,
295 NLRB 1163, 1166 (1989); Decker Coal Co., 301 NLRB
729, 740 (1991); Providence Hospital, 320 NLRB 790, 794
(1996). In Beverly California Corp., 326 NLRB 153, 157
(1998), the Board stated: “It is well established that when a
union makes a request for relevant information, the employer
has a duty to supply the information in a timely fashion or to
adequately explain why the information was not furnished. The
Respondent, however, never gave an explanation for failing to
comply with the Union’s request for 2 months.” In determining
timeliness, “It is appropriate to consider whether the nature of
information is conducive to rapid response, and whether the
information is readily obtainable in the employer’s files in as-
sessing whether the employer’s delay is great enough to violate
its duty.” Capitol Steel & Iron Co. v. NLRB, 89 F.3d 692, 698
(10th Cir. 1996). Obviously, it is a lesser burden for an em-
ployer to respond to a minor request that can be retrieved from
a computer or a brief search of some files as compared to a
large request that requires substantial manual retrieval. It ap-
pears to me that the Union’s June 13 request falls in the latter
category and that the Respondent has adequately explained the
delay in responding to this request. The Union’s June 13 letter
requested twenty separate items. As credibly testified to by
Montanye, many of these items had to be retrieved manually.
A careful review of the Union’s request convinces me that the
seven week period between the receipt of the request and the
response, was not an inordinate amount of time, considering the
nature and extent of the request. I therefore recommend that
this allegation be dismissed.
It is next alleged that the Respondent never properly re-
sponded to items 3, 4, 5, and 19. The complaint alleges, and
Lippold testified, that the Union never received satisfactory
responses to these items. Montanye testified that in October,
when she gave Lippold some requested information and said,
“This takes care of everything” Lippold agreed that it did.
Although I generally found Montanye to be a credible witness,
I do not credit this testimony. Initially, as stated above, I found
Lippold to be an extremely believable witness. In addition, I
find it significant that the Respondent never responded to Lip-
pold’s letters of August 26 and 28 requesting the information
that the Respondent failed to provide in its August 9 response.
I find Montanye’s attempted explanation for its failure to re-
spond ( she thought that it had been taken care of) disingenuous
since the purported conversation with Lippold did not take
place until October, and there would be no reason for Lippold
to request this information if it had already been provided. Fi-
nally, I agree with Counsel for the General Counsel that these
items were not properly responded to. For example, Item 3
should have been answered by stating the amount of increases
that each employee earned, rather than stating, generally, that
employees receive annual increases of 0–2.5 percent based
upon merit; item 4 should have been responded to by giving the
additional amount of compensation (bonuses or incentive pay)
rather than stating that the Respondent does not provide bo-
nuses, but grants work incentives. These responses, as well as
the responses to items 5 and 19, are not good faith complete
responses to the Union’s request. I therefore find that the Re-
spondent violated Section 8(a)(5) of the Act by not fully re-
NORTHWOODS REHABILITATION 1045
sponding to items 3, 4, 5, and 19 of the Union’s information
request.
The final issue in this area is whether the Respondent refused
the Union’s request for access to its facility, in violation of
Section 8(a)(5) of the Act. In Holyoke Water Power Co., 273
NLRB 1369, 1370 (1985), enfd. 778 F.2d 49 (1st Cir. 1985),
the Board established a balancing test for determining whether
an employer’s denial of access to its facility for the union rep-
resenting some of its employees violates Section 8(a)(5) of the
Act:
Each of two conflicting rights must be accommodated.
Fafnir Bearing Co. v. NLRB, 362 F.2d 716 (2nd Cir.
1966). First there is the right of employees to be responsi-
bly represented by the labor organization of their choice
and, second, there is the right of the employer to control its
property and ensure that its operations are not interfered
with. As noted by the Supreme Court in Babcock & Wil-
cox [Co.,] 351 U.S. [105, 112 (1956)], the Government
protects employee rights as well as property rights, and
“accommodation between the two must be obtained with
as little destruction of one as is consistent with the mainte-
nance of the other.”
Thus, we are constrained to balance the employer’s
property rights against the employees’ right to proper rep-
resentation. Where it is found that proper representation of
employees can be achieved only by the union’s having ac-
cess to the employer’s premises, the employer’s property
rights must yield to the extent necessary to achieve this
end. However, the access ordered must be limited to rea-
sonable periods so that the union can fulfill its representa-
tion duties without unwarranted interruption of the em-
ployer’s operations. On the other hand, where it is found
that a union can effectively represent employees through
some alternative means other than by entering on the em-
ployer’s premises, the employer’s property rights will pre-
dominate, and the union may properly be denied access.
In Hercules, Inc., 281 NLRB 961, 969 (1986), the administra-
tive law judge, as affirmed by the Board, stated:
Thus, it is settled that the relevance of, and need for, the in-
formation does not translate into an absolute or unquestioned
right to access. On the other hand, it is equally clear that, cir-
cumstances permitting, the Union does have a statutory right
to invade Respondent’s property rights in order to obtain live
and direct information of the kind involved in this case and
“that property rights alone will not suffice as a reason for de-
nial of rights guaranteed under the Act.” Fafnir, supra.
It is the Respondent’s burden to establish that its property inter-
ests outweigh the Union’s need for access. Hercules, supra at
970. In the instant matter the Respondent never defended
against the Union’s request based upon safety or proprietary
reasons. In fact, the Respondent never officially responded to
the Union’s request. Its only response was Koehler’s statement
to Lippold that the Union would never set foot in the facility.
In balancing the interests pursuant to Holyoke, it is clear that
the Union has a real and substantial interest in visiting the facil-
ity to observe the employees work and the Respondent’s layout
and equipment. Just to cite examples testified to by Lippold,
there is a real danger of employees’ sticking themselves with
needles and incurring back problems caused by lifting heavy
objects. The Union can most intelligently learn of these dan-
gers, and possible ways of avoiding them, by observing the unit
employees at work. As the Board stated in C.C.E., Inc, 318
NLRB 977, 978 (1995):
Likewise, in this case, there can be no adequate substitute for
a union representative’s direct observation of the plant
equipment and conditions, and employee operations and
working conditions, in order to evaluate matters such as job
classifications, safety concerns, work rules, relative skills, and
other matters necessary to develop an informed and reason-
able negotiating strategy. This is particularly true in the cir-
cumstances of this case where the parties are bargaining for
an initial contract.
I therefore find that by denying the Union’s request for access
to the facility, the Respondent violated Section 8(a)(5) of the
Act. New Surfside Nursing Home, 322 NLRB 531 (1996).
C. Events of April 19 and 24
It is next alleged that on April 19, the Respondent, by its
admitted agents Kay Donato, director of nursing, Peter Demer-
evski, executive housekeeper, and Howie Evans, director of
maintenance, engaged in surveillance of its employees’ Union
and other protected concerted activities, and informed its em-
ployees that they were prohibited from engaging in these activi-
ties while on the Respondent’s property at the facility, and that
Evans further engaged in surveillance of the employees’ Union
and protected concerted activities on April 24. The Respon-
dent’s facility is located at the top of a hill adjacent to a parking
lot used by employees and visitors. Access to the Respondent’s
facility is from Route 4. From there you turn and follow a hill
up curving to the right which leads to the parking lot and the
adjacent facility. It is undisputed that because of the curve in
the road and the trees, you cannot see the turn off from Route 4
from the facility. On April 19, Union representatives together
with a number of employees were present at the bottom of the
hill in the morning and the afternoon stopping cars exiting and
entering Route 4 and distributed Union authorization cards to
the occupants of the cars. In the morning they commenced
distributing cards at about 6:15; in the afternoon, at about 2:30.
On each of these occasions they remained for about an hour.
A number of witnesses testified to these events. Denise King,
who was employed by the Respondent as a certified nurses’
assistant (CNA), testified that she was not scheduled to work on
that day. On that morning, she was at the bottom of the hill
leading to the facility with two union representatives, Robin
Ringwood and Ingrid Remkus, and about six or seven employ-
ees handing out union authorization cards to employees just as
they turned off Route 4 on to the road leading to the facility and
to employees who were leaving work and were driving down
the access road prior to turning onto Route 4. She testified that,
a few minutes after they arrived at the bottom of the hill, Do-
nato, Evans and Demerevski appeared at the top of the hill and
were watching them. Shortly thereafter, they moved closer to
the employees and stood about five or six car lengths away
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1046
from the employees. At one point, Donato told the Union rep-
resentatives and employees, “You can’t pass out cards here.”
When the employees and union representatives returned at
about 2:30, Donato, Evans and Demerevski returned as well,
standing about five or six car lengths away from them and
watching them, but in the afternoon they did not say anything
to the employees and union representatives. Amanda Lee, who
is employed by the Respondent as a CNA, testified that she was
also present in the morning and afternoon distributing union
authorization cards to employees coming to and leaving the
facility on that day. In the morning there were about 10 to 15
employees present together with three union representatives. In
the afternoon there were about 23 individuals present. In the
morning, Donato, Evans and Demerevski stood further up the
road from them and did not walk closer. In the afternoon, they
moved to about six or seven car lengths away from them, ob-
serving them. During the afternoon session, Donato said to
them, “You can’t do this here.” She testified that while they
were handing cards to stopped cars, nobody was blocked from
getting to work. Ronnie Currie, who is employed by the Re-
spondent as a CNA, testified that he arrived at the facility at
about 6 a.m. and was distributing union leaflets with about six
or seven employees to people in cars entering and leaving the
facility. During this period Donato, Evans and Demerevski
were watching them from about six car lengths away. He and
the others remained there for about an hour, as did Donato,
Evans and Demerevski. He and other employees returned at
about 2:30 p.m. and Donato, Evans, and Demerevski were there
again, and were standing a little closer than they were in the
morning. He could not recollect how many employees were
present in the afternoon. As they were handing a card to a per-
son who had stopped her car, Donato told them, “You can’t be
handing out cards.”
Remkus testified that she arrived at the bottom of the hill
leading to the Respondent’s facility at about 6 a.m. on April 19.
All of the participants stood on the first 20 feet of the road lead-
ing from Route 4, which the police told them was city property.
There were about 12 to 15 employees with her that morning.
She observed Donato, Evans and Demerevski “standing at the
top of the hill watching what was going on.” She and the em-
ployees handed cards to employees entering the facility and left
at about 7:45 a.m. She returned at 2:45 p.m., this time with 15
to 20 employees. The same three management representatives
were present and, at one point, Donato “. . . was standing six
inches away from a worker who was signing a card in her car
and screaming things at us.”3 Donato said: “You can’t sign
cards here. This will not happen at Rosewood.”
Demerevski, Evans, and Donato each testified that they did
not report for work that day until after the morning leafleting
had been completed although they did observe the union repre-
sentatives and employees stopping cars and giving the occu-
pants cards to sign between 2 and 3 on that day. Demerevski
testified that at a little after 2 he was asked by the Respondent’s
administrator to see what was happening at the bottom of the

3 One of the pictures received in evidence regarding this incident
shows Donato about 6 inches from a union organizer, whom Donato
appears to be yelling at.
hill. He, Evans, and Donato went to a location about 10 to 15
feet from the bottom of the hill to observe the employees “. .
.making sure that they did not come on our property. . . .” There
were between 10 and 15 individuals stopping cars at the bottom
of the hill and handing cards to the occupants. There was “a
little bit” of a blockage of the road due to their stopping the
cars. While they were there, neither he, Evans, nor Donato said
anything to these people. Evans testified that he was told by
the administrator that family members of patients were com-
plaining about a problem at the bottom of the hill that caused
them a delay of a few minutes. He went there with Donato and
Demerevski and stood with them next to a sign that is 15 feet
from Route 4.4 They were standing about 10 to 15 feet from
where the union representatives and the employees were stand-
ing handing cards to the occupants of the cars entering and
leaving. At one point, Donato told one of the Union representa-
tives that they were not allowed to hand out cards on the prop-
erty, that they had to go elsewhere to do it. Donato testified
that when she arrived at the facility at about 7:30 a.m. on April
19, she was told that there had been some activity at the bottom
of the hill earlier that morning that created a problem with peo-
ple getting up and down the hill. At about 2 p.m. somebody
told her that family members of residents said that “the hill was
being obstructed.” She was told to go down the hill to see
“what was occurring and making sure that it was not on our
property.” At one point, she told a union representative, “You
can’t be doing this on our property, you can’t be stopping cars,
talking to people, when you have another car behind them try-
ing to get into the facility.” She may also have said this to em-
ployees.
There is also an allegation that the Respondent, by Evans,
engaged in surveillance of its employees’ union activities on
April 24. Remkus testified that on that day, she and another
union representative met with about ten of the Respondent’s
employees in the parking lot of a closed Grand Union store
across Route 4 from the entrance to the hill leading to the Re-
spondent’s facility. While they were meeting, Evans drove into
the parking lot in Respondent’s van, drove out and then re-
turned a few minutes later. Ringwood spoke to him, and then
he left again. Evans testified that he drove the Respondent’s
van to the bottom of the hill to watch the union representatives
and employees:
. . . everybody left, they walked across Route 4 . . . over the
hill into the parking lot, so I don’t know if they were coming
back over to stand at the bottom of the hill, it was late, I
wanted to go home, so I drove across the street to ask some-
body if they were going to be coming back over and nobody
paid attention to me . . . so I left. Then I went back over and I
parked at the bottom of the hill and I waited for probably ten
minutes, they were still over there, so I wanted to see what
they were going to do, so I drove over and I drove right up to
them . . . and I motioned for somebody to come over to talk to
me. They said that I could not be there and that I was invad-

4 Evans testified that he was told to measure the distance of 15 feet
from Route 4 to determine where the Respondent’s property ended and
the town’s began, and it was at the sign that they were standing adja-
cent to.
NORTHWOODS REHABILITATION 1047
ing their privacy . . . and I just asked a blond hair lady that had
an 1199 shirt on if they were in fact coming back over, be-
cause I had to be there until they left and I wanted to go home
and she said she didn’t know if they were going to be there or
not . . . and I drove back over and parked there again at the
bottom of the hill and they left within five minutes.
I find that on April 19, employees and union representatives
distributed union authorization cards to employees driving to,
and from, work on two occasions: in the morning from about
6:15 to 7:15, and in the afternoon from about 2:30 to about
3:30. On each of the occasions there were two union represen-
tatives and about 10 to 15 employees. Although only King
affirmatively testified that she was not scheduled to work that
day, I believe that it is fair to assume that all of the employees
participating in the leafleting were doing it during nonworking
time. Further, although I found counsel for the General Coun-
sel’s witnesses credible, I believe that they were mistaken in
believing that Donato, Demerevski, and Evans were watching
them in the morning as well as the afternoon. As there would
be no reason to lie about this issue, I credit the testimony of
Respondent’s witnesses that they only observed the afternoon
leafleting. Although it is not crystal clear from the testimony, I
believe that the evidence herein (including the photographs)
supports a finding that the card distributions by the Union was
conducted principally off Respondent’s property, i.e., within
fifteen feet of Route 4. In that regard, it appears to me that
there is a contradiction in Respondent’s arguments herein. It
argues that Donato, Evans, and Demerevski were sent to ob-
serve the solicitations because employees and relatives of resi-
dents were delayed getting to the facility because of the Un-
ion’s activities, although the evidence only establishes very
minor delays while, at the same time, it argues that its actions
were lawful because the solicitations were taking place on its
property. The difficulty with this argument is that if the Union
strictly adhered to the rule that it solicit only on the 15 foot area
adjacent to Route 4, there would be a bigger backup of cars
than if it were allowed to have the cars pull over to the side
further up the road, presumably on the Respondent’s property.
The underlying principal herein, as stated in Milco, Inc., 159
NLRB 812, 814 (1966), is: “Union representatives and employ-
ees who choose to engage in their union activities at the em-
ployer’s premises should have no cause to complain that man-
agement observes them.” Similarly, in Hoschton Garment Co.,
279 NLRB 565 (1986), the Board stated that “. . . an em-
ployer’s mere observation of open, public union activity on or
near its property does not constitute unlawful surveillance.”
See also Roadway Package System, Inc., 302 NLRB 961
(1991). However, if there is more than a happenstance obser-
vation of the union activity, a violation may be established. In
Impact Industries, 285 NLRB 5 (1987), the Board found a vio-
lation because the employer’s “conduct went beyond the ‘mere
observation’ permitted by Hoschton” by engaging in “‘well-
nigh continuous scrutiny of employee hand-billing’ over a sub-
stantial period of time and for discriminatory reasons expelled
employee leafletters from its property.” In Eddyleon Chocolate
Co., 301 NLRB 887, 888 (1991), the Board repeated that mere
observation is not a violation as long as the employer does not
“do something out of the ordinary.” In that case, the Board
found a violation because the employer’s behavior was “well
out of the ordinary. These incidents bear little similarity to the
brief, casual employer observation of union activity found not
to be unlawful in the cases cited by the judge.” In Kenworth
Truck Co., 327 NLRB 497, 501 (1999), the employer’s human
relations manager, Peters, stood outside the plant in close prox-
imity to the employees for about one hour while they hand-
billed employees departing from the facility. The judge, as
affirmed by the Board, citing Roadway and similar cases,
stated:
In general, where as here, employees are conducting protected
activities openly, open observation of such activities by an
employer is not unlawful. However, if the observation goes
beyond casual and becomes unduly intrusive a violation oc-
curs. . . . In these circumstances, I find Peters went beyond
unobtrusive observation of openly conducted protected activ-
ity. His conduct was coercive in that it patently tended to dis-
courage employees from either joining the distribution effort
or receiving the tendered literature.
Parsippany Hotel Management Co., 319 NLRB 114, 126
(1995), stated: “The law is clear that an employer may observe
public union activity, particularly when it occurs on company
premises, without violating the Act. The situation is different,
however, when company officials do something out of the or-
dinary.”
I find that Donato, Evans, and Demerevski’s presence and
actions at the bottom of the hill on the afternoon of April 19
was substantially more than “mere observation.” Their actions
were “well out of the ordinary” and were “unduly intrusive.”
The handbilling was not taking place in front of the facility; it
was down the hill by the public road. In addition, they were not
just observing the activity from a distance; rather, they traveled
to within 10 to 15 feet of the employees and the union represen-
tatives, and sometimes substantially closer, continuously
watching them. In addition, Donato told them that they were
not allowed to distribute cards because they were on the Re-
spondent’s property. I therefore find that the Respondent’s
surveillance of the union handbilling on the afternoon of April
19 violated Section 8(a)(1) of the Act.
It is independently alleged that Donato’s statement, “You
can’t pass out cards here” or “You can’t do that here” violates
Section 8(a)(1) of the Act. This statement was made to all of
those assembled at the bottom of the hill, the employees and
Union representatives. As the Board stated in Materials Proc-
essing, Inc., 324 NLRB 719 (1997):
. . . the union agent and the employees were handbilling to-
gether when Sandor [plant manager] approached them. Thus,
when Sandor addressed the union agent he was in fact ad-
dressing the leader of a group of people that was distributing
union literature. He did not specify, either to the union agent
or the employees, that he was only asking the union agent to
leave. Thus, even accepting Sandor’s account of the handbill-
ing incident, we agree with the judge that it was reasonable
for the employees to believe that Sandor was addressing them
when he told the union agent that he could not distribute un-
ion literature on company property. Accordingly, we agree
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1048
with the judge that the Respondent violated Section 8(a)(1) by
denying access to off-duty employees who were engaging in
activity protected by Section 7 of the Act.
As the employees were engaging in protected activities during
nonworking time, in nonworking areas and principally on pub-
lic property, with only minimal delays in people getting to the
facility, the Respondent had no right to restrict these activities.
Donato’s statement therefore violates Section 8(a)(1) of the
Act. Automotive Plastic Technologies, Inc., 313 NLRB 462
(1993); Pikeville United Methodist Hospital of Kentucky, Inc. v.
NLRB, 109 F.3d 1146 (6th Cir. 1997).
It is also alleged that the Respondent violated Section 8(a)(1)
of the Act by Evan’s actions on April 24. Regardless of his
credible testimony that he drove across the street into the Grand
Union parking lot only because he was anxious to leave, there
could be no valid reason for the Respondent to observe its em-
ployees’ protected activities while clearly off its property.
Seeing the Respondent’s van following them across the street
could clearly chill an employee’s Section 7 rights. I therefore
find that this violates Section 8(a)(1) as well.
D. The Discharge of King
King began working for the Respondent in September 1997
as a CNA. On March 12, as she was leaving work, she took a
leaflet from a union representative outside of the parking lot at
the facility. A few days later she met with some Union repre-
sentatives at a local restaurant. She testified that in about mid-
March, she approached Evans and told him that she thought
that they needed a Union at the facility; he said that he wasn’t
interested. Evans did not testify about this incident. She testi-
fied further that in April she attended a meeting of employees
with Montanye. At this meeting, where Montanye spoke about
the Union and distributed antiunion material to the employees,
King said that the employees “needed some type of order in
order to help out with different situations.” Montanye testified
that she met in April with groups of the Respondent’s employ-
ees about the Union, but, although she assumes that King was
at a meeting, she has no recollection of her at these meetings,
nor does she remember King speaking at the meetings. King
testified further that in April, while she was in a hallway at the
facility, Nancy Nopper, the first floor nursing supervisor, said
to her, “Don’t always believe what you hear. The grass isn’t
always greener on the other side.” Sometime later that month,
while she was talking to a fellow employee in the hallway at
the facility about a union meeting the prior evening, Nopper
walked by and told King that she wasn’t allowed to talk about
that on the unit. Nopper testified that in late April and May
there was a lot of discussions among employees about the Un-
ion, and she told several employees that they were not to dis-
cuss it unless they were on a break and were out of the resident
care areas. King “may have been” one of the employees that
she spoke to.
King was scheduled for a thirty 37-1/2 hours workweek. In
addition, she regularly volunteered to work overtime and aver-
aged 12/14 overtime hours a week. The events that lead to her
discharge occurred on May 5, a day on which she was not
originally scheduled to work. However, on that day, the assis-
tant director of nursing called her and asked her if she would
work from 3 to 7 p.m. and she said that she would. While she
was dressing for work that day, her 4-year old son fell and his
leg was bleeding and he was crying. She cleaned the cut as
much as she could, wrapped it, and left him with her 15 year
old daughter. She arrived at the facility at about 3 and saw
Nopper, Currie, and Pam Townsend, another CNA, and told
Nopper what had happened with her son. She testified that
Nopper told her that she would be working on the second floor5
and that when she got there she should call her son’s father.
She went to the second floor and tried to call him on his cell
phone, but could not get through to him, so she called her home
and spoke to her daughter and heard her son crying. She asked
her daughter to call her son’s father, but she could not reach
him either. King then told the second floor supervisor,
“Diane,” that she had an emergency and had to go home and
she went downstairs, where she met Justin Swain, a registered
nurse and the evening supervisor on the shift. Townsend and
Currie were standing with him at the time. She told Swain
what had occurred with her son and her attempts to contact his
father, and Swain asked her what she was going to do, whether
she was going home to attend to her son. He said that if it were
him, he would attend to his son. She said that she was going
home because she could not contact the boy’s father. Swain
said, “Okay” and she left. Prior to that day, when she had to
leave work early to attend to problems at home, she asked her
supervisor for permission to leave, and she was always told that
she could leave.
King worked the 7 a.m. to 3 p.m. shift on the following day.
At about 9:30 that morning Nopper told her that Donato wanted
to see her. She went to Donato’s office, and Donato asked her
what happened on the prior day. She told her about what hap-
pened, and what she told Swain, and Donato said, “That’s not
what Justin said.” King told her that Currie and Townsend
were present and she said that she would investigate the matter
and get back to her, and King returned to work. King worked
her regular hours, and some overtime hours on May 6, 7, 8, and
9. On the afternoon of May 10, Nopper told her that Donato
wanted to speak to her, so she went to Donato’s office. Donato
told her that she had completed the investigation, and that she
was being terminated. King asked what did she mean that she
was being terminated, and Donato said, “You left the facility
without letting your supervisor know and that’s called aban-
donment.” King asked Donato if she questioned Currie and
Townsend, but she didn’t respond and King left the facility. By
letter dated September 12, Donato wrote to King offering “to
unconditionally reinstate your former position as CNA at the
same rate of pay and benefits. Report to work on or before
September 20, 2002 to accept this reinstatement. If you do not

5 King testified on cross-examination that on her way downstairs
prior to speaking to Swain, she met Shift Supervisor Patricia Jablonski,
and asked her if she could work on the first, rather than the second
floor, that day. Jablonski said that she didn’t know. This testimony is
confusing for a number of reasons, principally that King had already
decided to go home and was on her way downstairs to tell Swain that
she was leaving. There would therefore be no reason for her to ask
Jablonski about working on the first, rather than the second floor that
day. Further, King testified that there is no real difference between
working on the first and second floor.
NORTHWOODS REHABILITATION 1049
return on that date, the offer will be deemed withdrawn.” By
letter dated September 20, Donato notified King that “all forms
and documentation pertaining to your May 2002 termination
have been removed from your personnel file.” On September
23 King wrote that she has accepted the per diem position, and
since that time she has worked for the Respondent one Saturday
and one Sunday every month as a per diem employee.
On May 21, the Respondent posted the following notice at
numerous locations at the facility:
To: ALL ROSEWOOD STAFF
From: Kay Donato, Director of Nursing
Date: May 21, 2002
On Friday, May 10, I terminated Denise King’s em-
ployment. I understand that some of you disagree with my
decision. As in all situations, I fully investigated this inci-
dent and I assure you that my decision was fair and right.
Denise admitted that she intentionally left the facility
without permission. That is job abandonment.
JOB ABANDONMENT IS SERIOUS.
Job abandonment is a serious violation of the rules and
has the real potential to cause serious injury to the resi-
dents, and, frankly, to the other staff members who are left
to get all the care done.
In my thirteen years in Administration, I have always
accommodated the family needs of the staff when I could.
I recall many times when Denise needed to adjust her time
for personal and family reasons- and I always did the best
I could.
I have always taken my responsibilities as Director of
Nursing seriously, and have made decisions in a profes-
sional manner. I am shocked that over the past week I
have been personally attacked by the Union and its sup-
porters for doing my job. I believe that the vast majority
of you- if you were in my position, would have made the
same decision. I understand that the Union is confusing
the issue and trying to use Denise’s job abandonment as a
political ax. Don’t make the mistake of letting the Union
use this to get control over your lives.
VOTE NO UNION ON 5/31/02
During her employment at the Respondent, King never re-
ceived any warnings about her work and her work was never
criticized. On May 14, 2001, she was voted CNA of the year
by the Respondent’s employees and received the award at a
banquet that she attended with Donato.
CNA Amanda Lee testified that she received a telephone call
from Swain at about 4:40 p.m. on May 5 asking her if she could
come in to work that day because somebody had to go home.
She said that she could be there at about 7; he asked if she
could be there at 6. She said okay, and she got there at 6 and
worked until 11 p.m. At about 8, as she was going on a break,
Swain told her, “Make sure you are going on a break, not going
home” and he and Jablonski started to laugh. When she has
needed to leave work early she spoke to her supervisor and has
always received permission to leave. Currie worked two con-
secutive shifts on May 5: 7 to 3 p.m. and 3 to 11 p.m. He testi-
fied that he and Townsend were in the area with Swain when
King came to speak to Swain at about 3 p.m. Currie could not
tell whether she was coming from upstairs or from the outside.
She told Swain that her son was hurt, but that she was unable to
get in touch with his father and that she was still trying to con-
tact him. Swain said that his priority would be with his son,
and “if you got to go, you got to go.” King said that she had to
go, but she was going to try once more to contact the boy’s
father. She stepped away for a few minutes, and when she
returned, Swain asked her what she was going to do. On direct
examination, he testified: “[S]he said, well I am going to check
with you then I am going to leave and then he said, OK and
walked away and she walked away, I don’t know what hap-
pened after that.” On cross-examination, he testified: “[S]he
said, I can’t get in touch with him I am going to leave and he
said, OK and he walked into the office, didn’t say nothing else
and she went her way and I just went on.” None of the Re-
spondent’s representatives has ever questioned him about this
incident. When he has had to leave work early, he tells his
supervisor of the problem; these requests have never been de-
nied.
May Hulick, who began her employment with the Respon-
dent as a staff RN at the end of April, testified that she was the
charge nurse on the second floor for the 3 to 11 p.m. shift at the
facility on May 5. At about the start of the shift, King, whom
she had not previously met, approached her and said that she
was leaving. Hulick asked her who she was and she identified
herself. Hulick asked her if the supervisor was aware that she
was leaving, she said that he was, and she left. About a half
hour later, Hulick called Swain and asked him if she was going
to get a replacement: “He sounded surprised, like he didn’t
realize she had left.” On the following day she got a phone call
from Donato saying that she was investigating the prior day’s
situation with King, and Hulick wrote a statement for her. The
statement says that King “. . . was on the 2nd floor telling other
CNAs she was going home. She said the ‘supervisor was
aware’ and then left.” Nopper testified that she worked the 7
a.m. to 3 p.m. shift that day. As she was getting ready to leave,
King came to her and told her about her son and said that she
had not been able to get in touch with somebody to care for
him. Nopper said that she really needed her and told her to use
the telephone to contact the person she was trying to reach.
Before King returned, Nopper left for the day. She testified
that 3 to 7 p.m. is a “critical period” at the facility because of
the work that takes place caring for, and feeding, the residents
during those hours.
Swain, an RN who is employed by the Respondent as a per
diem generally 2 days a week, was the evening supervisor at
the facility on May 5. He testified that prior to speaking with
King on that day, Jablonski told him that “there was an issue
regarding Denise going to the second floor to work.” Since
King was assigned to work on the second floor that day, he
approached her and asked her if there was a problem with her
assignment that day. She told him that there was no problem
with the assignment, but that there was an issue about a family
member, and she was not sure whether she was going to stay.
He told her: “If there is an issue all you have to do is tell me
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1050
. . . . all she had to do is say, I got to go and my exact words to
her were, if there’s a problem, do what you have to do, but if
not I expect you to work and go upstairs. . . .” King said,
“Okay, I’ll go upstairs” or “Okay, I’ll stay.” About an hour
later, Hulick called him and asked if he was going to send her a
replacement. He went upstairs to speak with Hulick, who told
him that King left, and said that it was OK with Swain. That
was the first that he knew that she left. He then wrote a report
of the incident in the nursing supervisor book. On May 8,
Swain was requested by Donato to give a statement regarding
the May 5 incident. In this statement he stated that he told her
that if she had to leave because there was an emergency, “you
can do what you have to do. If the situation is not an emer-
gency then you will be expected to work.” Both statements say
that King’s response was that she would stay and work. He
testified that at no time on May 5 did King ask for permission
to leave nor did he give her permission to leave. He testified
further that he does not specifically remember any other em-
ployees being present when he spoke to King that afternoon,
but it is possible since he was in a common area.
Donato testified that when she reported for work on May 6
she learned of the prior day’s incident involving King from
Nopper, and by reading Swain’s entry in the nursing supervi-
sors’ book. She called King into her office: “it was our intent
to find out what was her side of the story.” King said that her
child was hurt, she could not get hold of the father, and Swain
gave her permission to leave. Swain, on the other hand, told
her that King said, that she would go upstairs and that she went
upstairs and that he assumed she was going on duty. Swain,
Hulick and Jablonski each gave her written statements of what
occurred. Jablonski’s statement states that King asked her to
speak to Swain about whether she could work on the first floor.
She testified that other than Swain, Hulick and Jablonski:
“There were no other witnesses that came forward.” She does
not recall that Currie and Townsend were witnesses to the event
or that King told her that they were witnesses. The only disci-
plinary notice previously given to King was dated March 23,
1999. It is a step 1 “Progressive Discipline” notice. It states
that she was absent on January 4 and 5, with a doctor’s excuse,
and on February 14 and 23 and March 23. She testified that
King is an “exceptionally good CNA” and “a very kind young
lady, she certainly knows her business.” As regards King’s
activities on behalf of the Union, she testified: “I have no
knowledge of who was for the Union or who was not for the
Union.” She also testified: “I had an idea that there was union
activity going on, but whether or not that Denise was part of
that, I couldn’t tell you for sure” and she does not recall
whether King was one of the employees involved in the April
19 leafleting.
There are some credibility determinations that must be made
herein before discussing the burdens set forth in Wright Line,
251 NLRB 1083 (1980). King testified that she told Swain that
she was going home, and he said okay. Swain testified that she
said, “Okay, I’ll go upstairs’ or “okay, I’ll stay” and that was
the last he heard of the situation until Hulick called him to ask
if he was going to give her somebody to replace King. Currie’s
testimony is not as clear cut; he first testified that King told
Swain, “I am going to check with you then I am going to leave”
and Swain said okay, and then he testified that King said, “I
can’t get in touch with him and I am going to leave” and Swain
said okay. This is a difficult credibility determination because I
found neither King nor Swain clearly more credible than the
other. Although I found King to be a generally credible witness,
a “wrinkle” in her credibility was the testimony about her re-
quest to work on the first, rather than the second, floor which,
as stated above, was difficult to understand as she had already
decided that she was going to leave to care for her son. On the
other hand, her testimony was mostly supported by Currie,
whose testimony I found credible and believable, although a
little confused. Based upon Currie’s testimony, I credit King’s
testimony over Swain and find that she told him that she was
going home and he said “okay.”
I find that counsel for the General Counsel has clearly satis-
fied his burden under Wright Line. Initially, I find that the
Respondent knew of King’s support for the Union. The uncon-
tradicted testimony is that King told Evans that she thought that
the employees needed a Union. In addition, King was one of
about fifteen employees who were handing Union cards to cars
entering the road leading to the facility on April 19. Donato,
Evans, and Demerevski were from 5 to 15 feet from the em-
ployees (and sometimes even closer as the photograph shows)
for a period of about 1 hour. I do not credit Donato’s testimony
that she was not aware of King’s union sympathies. Rather, I
find that for the 1 hour that she was watching the employees
distribute union cards, she had to be aware that King was one of
the employees distributing cards and supporting the Union. In
addition, Donato never satisfactorily explained why she did not
interview Currie and Townsend while investigating the events
on May 5. She obtained statements from Swain, Hulick, and
Jablonski, but not Currie and Townsend. Based upon the cred-
ited testimony, I find that Currie and Townsend were present
when King spoke to Swain, and it is reasonable to assume that,
on May 6, when Donato challenged King on the events of the
prior day, King would give her the names of the witnesses who
would support her. I therefore find that the failure of Donato to
interview Currie and Townsend about the May 5 incident is
further evidence of the Respondent’s discriminatory intent.
Further support for finding that counsel for the General Counsel
has satisfied his initial burden is the uncontradicted evidence
that King was an excellent employee who, the prior year, had
been voted the CNA of the year at the facility. Finally, on May
21, the Respondent posted a notice throughout the facility de-
fending its termination of King. At the end of this notice, in
bold letters, is the statement: “VOTE NO UNION ON
5/31/02.” This cements the connection between King’s dis-
charge and the union campaign.
Having found that the counsel for the General Counsel has
satisfied his initial burden under Wright Line, it must next be
determined whether the Respondent has satisfied its burden that
it would have fired King even absent her union activity. I find
that it has not. King, who had been employed by the Respon-
dent for five years, was, admittedly, an excellent employee who
had to leave work early on May 5 to care for her son. She came
to work that day, on a day that she was not originally scheduled
to work, because she received a call from Respondent asking
her to work that day. She arrived for work in a timely manner
NORTHWOODS REHABILITATION 1051
and left only after determining that her son was hurt and that
there was nobody home to properly care for him. Considering
her work history with the Respondent, the worst that can be
said for King’s actions on May 5 was that it may have been
caused by a misunderstanding with Swain. She told Hulick that
she had permission to leave that day, and considering the situa-
tion, she may have been mistaken in her belief in what she told
Swain. Even if I had credited Swain, Respondent’s actions
appear to be inappropriately harsh toward King’s possible mis-
deed. If Donato’s investigation had included obtaining state-
ments from Currie and Townsend, and had determined that she
believed Swain, Hulick and Jablonski, I would have more con-
fidence in the bona fides of the investigation than I do when the
investigation specifically excluded witnesses who might have
supported King. Having found that the Respondent has not
satisfied its burden that it would have terminated King even
absent her union activity, I find that by discharging her on May
10, the Respondent violated Section 8(a)(3) of the Act.
E. April 12 Handbook Restrictions
The complaint alleges that on about April 12, the Respon-
dent promulgated the following rules as an addendum to the
employee handbook:
Employees are not permitted access to the interior of
the facility, and other working areas, during their off-duty
hours.
Employees shall not wear any other tags, buttons,
stickers, or other items of identification or in support of
any particular cause or candidate while on duty.
It is alleged that the Respondent promulgated these rules in
response to the Union’s organizing campaign and to discourage
employees from engaging in Union and protected concerted
activities, in violation of Section 8(a)(1) of the Act.
The parties stipulated that on about April 12, the Respondent
distributed to its employees an addendum to its Employees’
Handbook. The cover sheet, from Montanye, states that the
Respondent “has adopted and expanded our policies on identi-
fication and non-solicitation effective April 1, 2002. Please
review the attached and add the attached policies to your hand-
book.” Attached are three pages of “General Regulations”
covering identification, solicitation, errands, good housekeep-
ing, illness, lockers, smoking, telephone courtesy, and transpor-
tation. The only restrictions that are alleged to violate the Act
are the two quoted above.
King testified that prior to April 12 she was not aware of re-
strictions on going to the facility on days off. She used to go to
the facility to pick up her paycheck and to visit residents. In
addition, prior to April 12 employees were allowed to wear pins
and buttons on their uniform while at work. She has had an
American flag pin, as well as a CNA pin and a hospice pin on
her uniform. She received a copy of the new rules with her
paycheck on April 12, and has never been told that these rules
are no longer in effect. When she began her employ with the
Respondent she was given a copy of the Respondent’s hand-
book, but does not know if it contained any provision about
employee access during off-hours. Lee testified that prior to
April 12, “there was no issue about. . .” wearing pins or buttons
on your uniform: “You could wear them.” Employees wore
CNA buttons, hospice pins, and American flags pins and stick-
ers. Also, prior to April 12, off-duty employees were allowed to
be on the property. She has only been at the facility during
nonworking time to pick up her paycheck. Currie testified that
prior to April 12, he was not aware of any restrictions on em-
ployees wearing any tags or pins on their uniform. Some em-
ployees wore flags or CNA pins. Also, prior to April 12, he
was not aware of any restriction of employees coming to the
facility when they were not scheduled to work. He has come to
the facility to pick up his pay check, and to visit the residents
and play his keyboard for them. When he was hired, he was
given a copy of the Respondent’s handbook, but does not recall
whether it referred to employee access to the facility during
nonworking time. The handbook did state that the employees
were required to wear their uniforms while working, but he
does not recall whether it said anything about whether employ-
ees could wear pins and buttons.
Nopper, who has been employed at the facility since May
2001, testified that at some unspecified date she saw that Currie
and another employee were wearing union pins, “and since we
had a no pin policy,” she told them to remove the pins. As to
the Respondent’s policy prohibiting the wearing of buttons,
pins or badges: “As far as I know it’s always been in effect.”
She has seen employees wearing American flag pins on occa-
sion, and did not tell them to remove them. Montanye, who
began her employment with the Respondent in October 2000,
testified that, at that time, the Respondent was still operating
under old handbooks created in August 1999. She created
some revisions in March 2001. These revisions include the
following under the classification of “Solicitation. Solicitation
or distribution of literature for any purpose by employees on
facility premises is prohibited . . . Solicitation, distribution of
literature or trespassing by non-employees is prohibited any-
where on the premises of the facility.” She testified that in
about March, in a Board proceeding involving another of Re-
spondent’s facilities in Cortland, New York, “I found that the
solicitation policy that we had written in our book, was a very
broad solicitation policy, it was just broad. So, my focus here
was to narrow it to give a little bit clearer definition.” In other
words, she changed the prior rule in order to comply with what
she felt were the Board’s requirements for rules of this kind.
She went on vacation in about March 20 and returned on about
April 1. She returned a little too late to include the revision in
the employees’ March 29 paycheck, so it was given to the em-
ployees with their pay on April 12. At the time, she had no
knowledge that the Union was attempting to organize the Re-
spondent’s employees.
I find that there is insufficient evidence to establish that the
Respondent issued its modified no-solicitation rule on April 12
in response to the Union’s organizational campaign “in order to
stifle and interfere with the employees’ exercise of their Section
7 rights.” Youville Health Care Center, Inc., 326 NLRB 495
(1998). The sole evidence of early union activity at the facility
is King’s testimony that on March 12 she was given a leaflet by
a union representative outside the parking lot at the facility and
that, in about mid-March, she told Evans that she thought that
the employees needed a union. However, I found Montanye to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1052
be a generally credible witness and credit her testimony that she
was on vacation from about March 20 to April 1 and was un-
aware of the Union’s organizational activities prior to the issu-
ance of the modified rules. However, I find that the no-
solicitation rule issued on April 12 violates Section 8(a)(1) of
the Act because it is overbroad. In Heartland of Lansing Nurs-
ing Home, 307 NLRB 152, 159 (1992), the administrative law
judge, as affirmed by the Board, stated:
The Board has established a specific policy covering health
care facilities. Springfield Hospital, 281 NLRB 643, 665
(1986). This policy requires that such an employer’s “ban on
employee solicitation be limited to immediate patient care ar-
eas.” Eastern Maine Medical Center, 253 NLRB 224, 226
(1980). The Respondent’s rule is not so limited and is pre-
sumptively invalid. There has been no showing that union so-
licitation in working areas of the Respondent’s facility which
are not immediate patient care areas would either disrupt care
or disturb residents. Accordingly, I find that the Respondent’s
no solicitation rule is overly broad and violates Section
8(a)(1).
See also Health Care & Retirement Corp, 310 NLRB 1002
(1993). In Lafayette Park Hotel, 326 NLRB 824 (1998), one of
the respondent’s rules that the Board examined required the
employees to leave the premises immediately after the comple-
tion of their shift and not to return until their next scheduled
shift. The Board, citing Tri-County Medical Center, 222
NLRB 1089 (1976), stated that a rule that denies employees
access to nonworking areas will be found invalid unless the
employer can justify the rule for business reasons. The Board,
in Lafayette Park also said that any ambiguity in the rule must
be construed against the employer, who promulgated the rule.
The rule herein denies off-duty employees “access to the inte-
rior of the facility, and other working areas.” This could be
construed to cover hallways and other areas that are not consid-
ered immediate patient care areas. As the Respondent has
failed to justify these restrictions, I find that this rule violates
Section 8(a)(1) of the Act.
The final allegation involves the addendum to the handbook
prohibiting tags, buttons, stickers, or other items “in support of
any particular cause . . . while on duty.” The evidence estab-
lishes that prior to the advent of the Union, the employees were
allowed to wear pins with American flags or CNA buttons
while at the facility. Even Nopper testified that she never asked
employees to remove American flag pins on their uniform; it
was only the union pin that she told Currie and another em-
ployee to remove.
The Board has long recognized the right of employees to
wear union insignia on their uniforms while at work as a le-
gitimate form of union activity. An employer may not prohibit
such activity, absent a showing of “special circumstances.”
Evergreen Nursing Home, 198 NLRB 775, 778 (1972). In
hospitals and nursing homes, an employer can establish “spe-
cial circumstances” by adducing evidence of a potential adverse
effect that such buttons would have upon patients at the facility.
Other relevant factors in making this determination would be
the extent of the prohibition, the condition of the patients or
residents, and the size and visibility of the insignia. London
Memorial Hospital, 238 NLRB 704, 708 (1978). The Respon-
dent’s prohibition herein must fall for a number of reasons.
Principally, as was true in George J. London, the rule is not
restricted to patient-care areas. It prohibits employees from
wearing the insignia “while on duty,” which would include
hallways and cafeterias, as well as patient-care areas. In addi-
tion, the Respondent has produced no evidence to establish that
“special circumstances” exist herein justifying the rule. I there-
fore find that the restriction on wearing tags, buttons, stickers
or other items while at work violates Section 8(a)(1) of the Act.
Finally, in April, while King was talking to a fellow em-
ployee in a hallway of the facility about a union meeting the
prior evening, Nopper told her that she was not allowed to talk
about that on the unit, and on May 17, Nopper told Currie that
he had to remove the small union pin that he was wearing. For
the reasons discussed above, I find that both of these incidents
violate Section 8(a)(1) of the Act as unlawful infringements
upon the employees right to engage in their Section 7 rights in
nonpatient care areas.
CONCLUSIONS OF LAW
1. The Respondent has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act in the
following manner:
(a) Engaging in surveillance of its employees’ union activi-
ties on April 19 and 24.
(b) Informing its employees that they were prohibited from
engaging in union and other protected activities while on the
Respondent’s property.
(c) Promulgating and distributing rules on April 12 denying
its employees access to the interior of the facility during their
off-duty hours.
(d) Prohibiting its employees from wearing tags, buttons,
stickers, or other items while on duty.
4. The Respondent violated Section 8(a)(1) and (3) of the
Act by discharging Denise King on May 10, 2002.
5. The Respondent violated Section 8(a)(1) and (5) of the
Act in the following manner:
(a) Failing and refusing to meet with the Union in a timely
manner for the purpose of negotiating a collective-bargaining
agreement.
(b) Failing and refusing to provide the Union with informa-
tion that it requested, which information was relevant and nec-
essary to the Union as the collective-bargaining representative
of certain of its employees.
(c) Failing and refusing to allow the Union access to its facil-
ity, which is necessary for the Union as the collective-
bargaining representative of certain of its employees.
6. The Respondent did not violate the Act as further alleged
in paragraph 13(c) of the consolidated amended complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
NORTHWOODS REHABILITATION 1053
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. As the Respondent discriminatorily
discharged King on May 10, it must offer her reinstatement to
her former position and make her whole for any loss of earn-
ings and other benefits that she suffered as a result of the dis-
crimination, computed on a quarterly basis from the date of
discharge to the date of a full offer of reinstatement to her for-
mer position and hours, less any net interim earnings as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). Although the Respondent, by letter dated
September 12, offered her reinstatement, the fact that she is
only employed by the Respondent 2 days a month as a per diem
employee makes it unclear whether that reinstatement offer was
a full and unconditional offer. As the Respondent unlawfully
promulgated rules restricting employee access to the facility
during off-duty hours, and prohibiting employees from wearing
tags, buttons, or stickers while on duty, the Respondent shall
notify its employees, in writing, that these rules have been re-
scinded and, in addition, that they are not prohibited from en-
gaging in Union, or other protected concerted activities while
on the Respondent’s property, as long as they are not in imme-
diate patient-care areas. As the parties are engaged in negotia-
tions, there is no affirmative remedy necessary for its delay in
responding to the Union’s request to commence negotiations.
In addition, the Respondent shall provide the Union with the
information it requested in items 3, 4, 5, and 19 of the Union’s
June 13, 2002 request. And finally, upon request, the Respon-
dent shall provide the Union with reasonable access to its facil-
ity, as requested by the Union on July 19, 2002.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, Highgate LTC Management, LLC d/b/a
Northwoods Rehabilitation and Extended Care Facility at
Rosewood Gardens, Rennselaer, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Engaging in surveillance of its employees’ Union and
protected concerted activities.
(b) Informing its employees that they are prohibited from
engaging in union or other protected concerted activities while
on the Respondent’s property.
(c) Promulgating or maintaining work rules prohibiting de-
nying its employees access to the interior of its facility during
their off-duty hours, or prohibiting its employees from wearing
tags, buttons or stickers while on duty.
(d) Discharging or otherwise discriminating against any em-
ployee for supporting the Union or any other union.
(e) Failing and refusing to meet in a timely manner with the
Union for the purpose of negotiating a collective-bargaining
agreement.

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(f) Failing and refusing to provide the Union with the infor-
mation that it requested, which information was relevant and
necessary to the Union as the collective-bargaining representa-
tive of certain of its employees.
(g) Failing and refusing to allow the Union access to its facil-
ity, necessary for the Union as the collective-bargaining repre-
sentative of certain of its employees.
(h) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Denise
King full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges previ-
ously enjoyed, and make her whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
her, in the manner set forth above in the remedy section of this
Decision.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge, and within 3
days thereafter notify her, in writing that this has been done and
that the discharge will not be used against her in any way.
(c) Within 14 days of the date of this Order, notify all em-
ployees in the bargaining unit herein, in writing, that it is re-
scinding the rules promulgated on April 12 regarding employee
access to the facility during their off-duty hours and the wear-
ing of tags, buttons, or stickers while on duty, and that they are
not prohibited from engaging in Union and other protected
concerted activities while on the Respondent’s property, as long
as they are not in immediate patient-care areas.
(d) Upon the Union’s request, grant access to its facility for
reasonable periods and at reasonable times sufficient to allow
the union representatives to fully investigate, inspect and ob-
serve the equipment and working conditions at the facility.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cility in Rennselaer, New York, copies of the attached notice
marked “Appendix.”7 Copies of the notice, on forms provided
by the Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1054
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since April 12, 2002.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the consolidated amended com-
plaint is dismissed insofar as it alleges violations of the Act not
specifically found.