Regency Grande Nursing

National Labor Relations Board - Administrative Judge Opinions

May 28, 2009

22-CA-026231 (N.L.R.B. May. 28, 2009)

JD(NY)–20–09
Dover, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
REGENCY GRANDE NURSING &
REHABILITATION CENTER
and Case No. 22-CA-26231
SEIU 1199 NEW JERSEY HEALTH
CARE UNION
Lisa D. Pollack, Esq.,
for the General Counsel
Morris Tuchman, Esq., of New York, New York
for the Respondent
William S. Massey, Esq., (Gladstein Reif &
Meginniss, LLP) of New York, New York
for the Charging Party
SUPPLEMENTAL DECISION
Statement of the Case
MINDY E. LANDOW, Administrative Law Judge. This is a supplemental proceeding to
determine the amounts of money due to employees of Regency Grande Nursing &
Rehabilitation Center (Respondent) based upon the Board’s decision and order issued on
August 30, 2006 (347 NLRB 1143), subsequently enforced by the Court of Appeals on February
20, 2008.1
A hearing was held before me on December 17, 2008.2 Briefs have been filed by the
General Counsel and Respondent and have been carefully considered. Based upon the entire
record I make the following:
I. Findings of Fact
A. The Board’s Decision
The Board found that Respondent violated Section 8(a)(1)(2) and (3) of the Act by
recognizing Local 300S, Production Service & Sales District Council a/w United Food and
Commercial Workers International Union (Local 300S) as the exclusive collective-bargaining
representative of its employees and by entering into, maintaining and enforcing a collective
bargaining agreement containing union-security and dues check-off provisions with Local 300S
at a time when Local 300S did not represent a majority of employees in the following unit:

1 265 Fed. Appx. 74 (3rd Cir. 2008).
2 Unless otherwise stated, all dates herein refer to 2008.
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All full time and regular part time service employees, maintenance employees and LPN’s
employed by Respondent at its Dover, New Jersey facility, but excluding all officers,
managerial and professional employees, confidential employees, temporary employees,
all other employees, guards and supervisors as defined in the National Labor Relations
Act.
The Board ordered that Respondent reimburse former and present unit employees, with
interest, for fees and moneys deducted pursuant to the union-security and dues-checkoff
clauses of the contract, providing, however, that those employees who voluntarily joined and
became members of Local 300S prior to January 8, 2004 are not entitled to reimbursement of
such dues and fees. 347 NLRB 1143 fn. 4; 1144 (citing Dairyland USA Corp., 347 NLRB 310
(2006); Elmhurst Care Center, 345 NLRB 1167 (2005)).
B. The Compliance Specification and Respondent’s Answers Thereto
On September 25, the Regional Director for Region 22 issued a compliance specification
and notice of hearing alleging amounts of reimbursement due to approximately 218 claimants in
the amount of $ 74,392.71, plus interest.3 The reimbursement period began on January 8,
2004,4 the date Respondent entered into the collective-bargaining agreement with Local 300S
and terminated on March 31, 2008, the date Respondent ceased deducting union dues and
initiation fees from the paychecks of bargaining unit members.
After an extension of time to file its answer due to service on an incorrect address,
Respondent filed its answer on October 13. The answer admitted certain paragraphs of the
compliance specification and contained general denials concerning others, in particular
paragraphs 5 and 6.5 The answer further raised the following affirmative defense:
The Board’s Order provides that reimbursement is not due for employees who joined
Local 300S before January 4, 2004, Respondent will show that 68 employees signed
membership cards for Local 300S before January 4, 2008.6
On October 24, Counsel for the General Counsel notified Respondent that inasmuch as
the answer filed neither stated with specificity those 68 employees referred to in its affirmative
defense nor provided alternate computations, its answer was insufficient. Respondent was
granted additional time to file an amended answer. Respondent then submitted a letter, dated
October 28, providing, in pertinent part, as follows:
In amplification of our previously filed answer to the compliance specification, please be
advised that we agree that $20,070 (or 19,980) of the specification is “due.” Since the

3 As will be discussed below, certain individual claimants are listed more than once, under different
names. The recommended order herein will consolidate the claims as is appropriate.
4 The compliance specification sets the date as January 4, 2004. Under all the circumstances, I have
concluded that this is an inadvertent typographical error.
5 Paragraph 5 avers that each discriminatee’s gross backpay calculations are reflected alphabetically
on a summary worksheet attached to the specification and paragraph 6 contains a summary list of
employees due reimbursements and the total amounts owed.
6 Again, I find that Respondent’s answer contains inadvertent typographical errors regarding the
relevant date.
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Board provided no dues reimbursement for employees who had signed up with Local
300S before January 2004 and since a number of employees (see below) had dues
deducted in 2005 and thereafter, we would agree that they likely did not sign cards for
Local 300S before January 2004.
However, we intend to show that as many as 68 employees signed cards for Local 300S
before January 2004 and therefore do not agree that employees who had dues deducted
in 2004 and thereafter should receive reimbursement. We intend to subpoena Local
300S to produce the cards signed by employees before January 2004. . . .
The employees who we acknowledge are due reimbursement are: Abril, Acevedo,
Antunez, Appel, Agron, Arias (Darley and Javier), Arellano, Artigas, Baker, Bell, Best
(Douglas and Kathy), Bonnell, Buitrago, Caamano, Cano, Carreon, Catania, Chavis,
Chavis, Cochran, Cortes, Delgado, Duque (Alberto and Andria), Dale, Escobedo,
Estrada, Estudillo (Estrella), Fitzpatrick, Florez, Forrest, Garderes, Giraldo, Gomez,
Grames, Guida, Gutierrez, Hernandez, Hickenbottom (Tyreese), Hunter, Jimenez,
Kennedy, Laboy, Lascano, Lewis, Lopez (Carolina, Eduardo and Navih), Maidana,
Mantilla, Masson, McLean, Meirelles, Molena (if she did not seek reimbursement under
another name for 2004), Montoya (Ana), Moreira, Munoz (Flor de Maria and Jennifer),
Navarro (Lino, Maria E. and Nino), Orbes, Orihuela, Orozco, Ouldes (Dominique),
Palomino, Posse, Ritzie, Riviera, Roberts (Christine), Rodriguez, Rojas (Marianela),
Ruendes, Ruiz (Morocho), Saavedra, Salazar, Sanchez (Betty), Silva, Soto (Justin and
Maria), Stuber, Suarez, Taylor, Torres, Toussaint, Trujillo, Uddin, Vergera, Villegas,
Wayside, Zabala, Zapata, Zorilla.
The General Counsel accepted the October 28 letter as an amended answer.
C. Relevant Testimony at the Underlying Proceeding
As is more fully set forth in Judge Davis’ opinion in the underlying case, James
Robinson, who in 2003 was the president of Local 300S, testified that the union had obtained a
total of 68 signed authorization cards from Respondent’s employees during the period from
February to April 2003. During that period, only three or four signed cards were obtained in
person at the facility; the remainder had been mailed to Local 300S. Robinson testified that he
had been informed that there were approximately 120 employees in the unit, and on May 5,
2003, he wrote to Respondent, advising that Local 300S represented a majority of employees.
On May 21, 2003, the cards were presented to an arbitrator who compared the signatures on
the cards with W-4 forms supplied by Respondent. The arbitrator found that that Local 300S had
demonstrated its majority status, and Respondent recognized Local 300S on the following day.
Robinson further testified that, in about late-November 2003, he threw the authorization cards
signed by Respondent’s employees away inasmuch as a six-month period of time had elapsed
and he was advised they were no longer needed. Robinson could recall the name of only one
employee who had signed a card.7
In contrast to Robinson’s testimony, evidence was received from 81 unit employees who

7 Robinson further testified that, after he learned of the charge in the underlying case, he did not
attempt to have any employees verify that they had signed cards on or before May 21, 2003. In addition
he had not retained copies of the cards, a list of the card signers or their addresses, notes showing which
employees were contacted who supported the union or those who may have been helpful in organizing
and representing the workers.
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were employed on May 22, 2003, when Respondent recognized Local 300S. In the underlying
proceeding Judge Davis credited the testimony of these employees and, in particular relied
upon the testimony of 74 (out of a unit of approximately 117 employees) who affirmatively stated
that they did not sign a card authorizing Local 300S to represent them before it was recognized,
“or indeed at any time before January 2004.” 8 347 NLRB at 1147. In addition, 38 employees
testified that they were unaware of the presence of Local 300S prior to January 2004. Further,
27 employees, some of whom were the same as those who testified that they were unaware of
Local 300S, stated that they did not see any union organizers outside the building soliciting
membership in a union and 28 employees stated that they did not recall seeing any such
people. Twenty workers heard no conversations in Respondent’s facility about a union trying to
organize employees at the time, and 15 could not recall any such conversations.
Judge Davis concluded that the General Counsel had made a prima facie showing that
Local 300S did not represent a majority of employees at the time it was recognized by
Respondent on May 22, 2003. The judge further found that the Respondent had not met its
burden of proving the majority status of Local 300S. 347 NLRB at 1154. In so finding, Judge
Davis noted that Robinson never inquired of the Respondent the size of the unit to that he could
test whether the cards he testified to receiving constituted a majority of the unit. The judge
further noted that the arbitrator who certified Local 300S as representing a majority did not
identify in his award the number of cards he received, the number of employees in the unit or
which categories of employees were encompassed in the unit. 347 NLRB 1153.
D. The Instant Hearing
At the inception of the instant hearing, the parties entered into a stipulation that that the
employees listed and referred to in paragraphs 5 and 6 of the compliance specification were
employed by Respondent during the relevant period between January 8, 2004 and March 31,
2008. In addition, Respondent stipulated that the “gross pay figures as stated in paragraphs 5
and 6 of the [compliance specification] are accurate and correctly calculated.” Respondent
reserved its right; however, to contest that employees named in paragraphs 5 and 6 of the
compliance specification were due to receive reimbursement.
Neither the General Counsel nor the Charging Party presented witnesses at the hearing.
General Counsel took the position that, based upon the stipulations which had been entered
into by the parties, as described above, no witnesses were necessary. Respondent called one
witness, now former Local 300S President Robinson.9 Robinson had received a subpoena
duces tecum from Respondent seeking production of authorization cards in his possession
signed by employees of Respondent. Robinson asserted at the compliance hearing, as he did in
the underlying case, that he did not have possession of such cards. Robinson further testified
that Respondent had never had access to the cards in question. Robinson offered no testimony
regarding whether any other employee, other than those whose cards had been disposed of,
had joined the Union after May 22, 2003 and prior to January 8, 2004.

8 Two other employees stated that they could not recall signing a card for Local 300S prior to its
recognition. Five employees who testified were not asked directly whether they had signed a card for
Local 300S. One employee, Aida Basualto, stated that she had in fact signed a card, but the judge found
it was unclear whether the card had been signed prior to the date of recognition. The General Counsel is
not seeking remuneration for this employee.
9 At the time of his testimony in this hearing, Robinson was no longer president of Local 300S. The
record does not establish when he ceased serving in this capacity.
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Counsel for Respondent then proffered certain testimony going to an issue, first raised at
the hearing, of whether the reimbursement remedy sought by the General Counsel was unduly
burdensome. I accepted Robinson’s testimony, over the objections of General Counsel and the
Charging Party, in the form of an offer of proof. In this regard, Robinson further testified that
during the time he was president he was familiar with the finances of Local 300S, but that now
his understanding of the union’s finances was “minimal.” He then testified that if a judgment
were to be rendered against the union for approximately $100,000 it would bankrupt the union.
Respondent presented no further witnesses or evidence in support of its case. At the
close of Respondent’s case, Counsel for the General Counsel submitted a Motion for Summary
Judgment, which I denied by order dated December 23.10
E. The Contentions of the Parties
Respondent contends that, inasmuch as the Board’s order requires reimbursement for
dues only to those employees who had not signed cards for Local 300S prior to January 2004, it
is incumbent on the General Counsel to establish eligibility for reimbursement. Thus,
Respondent asserts that the General Counsel bears the burden of showing that those
employees that it seeks reimbursement for did not sign membership cards for Local 300S prior
to January 8, 2004. Respondent asserts that the General Counsel presented no evidence that
reflected on the eligibility of such employees in this proceeding, and, moreover, that the
evidence adduced in the underlying case is insufficient for me to conclude that such employees
are eligible for reimbursement.
Respondent now seems to have retreated from its apparent concession, as set forth in
its amended answer, that certain employees, in particular, those who “had dues deducted in
2005 and thereafter” are owed reimbursement of dues and fees. Respondent argues in its brief
as follows:
The letter sent to amplify the answer in this case, dated October 28, 2008, conceded
that the [General Counsel] did not have to offer evidence that employees who first came
to work at [Respondent] after the ’04 date did not sign with [Local 300S] before they
came to work. It did not concede liability to pay. (It noted the amount “due” with word
“due” in quotes.)
As Respondent currently asserts, there are three categories of employees at issue here:
(1) employees who came to work after January 8, 2004; (2) employees who testified in the
underlying proceeding that they had not signed an authorization card for Local 300S prior to the
date of recognition and (3) “employees that a claim is being made for but which there is no
evidence about their underlying eligibility for reimbursement at all.”
Respondent further contends that due to “changed circumstances” liability as to the first
two groups of employees should be extinguished on the basis that such liability would be
“unduly burdensome.” With regard to the third category of employees, Respondent contends

10 In that ruling I stated that “[t]he judge considered no evidence and made no specific finding
regarding whether any other employee may have voluntarily signed a card for or joined Local 300S prior
to January 4, 2004. . . “ In addition to the obvious typographical error, I was incorrect insofar as such a
statement implies that Judge Davis made no finding regarding whether the employee witnesses had
signed cards prior to January 2004. I hereby correct that error.
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that there is no liability because the General Counsel has not met its burden of establishing that
such employees are, in fact, eligible for reimbursement.

The General Counsel, to the contrary, argues that Respondent has the burden of
establishing its affirmative defense that 68 employees were not entitled to back pay because
they had voluntarily signed cards for Local 300S prior to January 8, 2004, and that Respondent
has the burden to establish with specificity any amounts it claims would mitigate back pay
liability.11 General Counsel further argues that Respondent is merely attempting to relitigate
issues raised in the underlying unfair labor practice proceeding. The General Counsel
additionally contends that Respondent’s argument that changed circumstances have rendered
the remedy sought herein unduly burdensome is irrelevant.
II. Analysis and Conclusions
A. The Burden of Proof
Here, it is not disputed that the employees named in the compliance specification were,
in fact, employed by Respondent during the relevant period: that is, between the dates of
January 8, 2004 and March 31, 2008. Moreover, it is not disputed that the method by which the
reimbursement amounts were calculated is an accurate one. The General Counsel and the
Respondent each contend that the other party has the burden of proof on the issue of whether
any of the employees listed in the compliance specification voluntarily joined Local 300S prior to
January 8, 2004, rendering them ineligible for reimbursement.
Respondent argues that the testimony of those employees who testified in the
underlying proceeding cannot be relied upon inasmuch as it is not evidence presented in the
instant proceeding and, further, that there is no evidence in the record that other employees
named in the compliance specification had not voluntarily joined the Union prior to January
2004. The General Counsel asserts, to the contrary, that it is well-settled that the burden of
proof is upon a respondent to establish affirmative defenses that mitigate its liability. General
Counsel further argues that a respondent carries the burden of establishing with specificity any
amounts it claims would mitigate liability.
As an initial matter, for the purposes of this proceeding, I take administrative notice of
and rely upon Judge Davis’ findings as regards the testimony of those employees who testified
in the underlying case about whether they had signed cards for Local 300S either prior to
recognition or January 2004. 12 See e.g. Stark Electric, Inc., 327 NLRB 518, 518 fn. 1 (1999).
Thus, I find that of a unit of approximately 117 employees, at least 74 employees did not
voluntarily join Local 300S prior to January 8, 2004. In agreement with the General Counsel, I
find that this was an issue, litigated in the underlying case, which may not be relitigated here.
See e.g. Convergence Communications, Inc. 342 NLRB 918, 919 (2004); Paolicelli, 335 NLRB

11 In support of these contentions, the General Counsel relies upon Atlantic Limousine, 328 NLRB
257, 258 (1999); Hacienda Hotel & Casino, 279 NLRB 601, 603 (1986) and Ryder System, Inc. 302
NLRB 6087 (1991). These cases involve situations where employees are owed backpay and stand
generally for the proposition that once the General Counsel has shown the gross amounts of backpay
due, the respondent bears the burden of establishing those facts which would mitigate its liability.
12 Although, in making such a finding, Judge Davis did not specify the precise date the contract was
entered into, i.e. January 8, I conclude that is what he intended. If there had been some variance in the
proof on this issue, I find that Judge Davis, who the Third Circuit noted “assiduously laid out the
evidence,” would have discussed such a discrepancy.
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881, 883 (2001)(citing Arostook County Regional Ophthalmology Center, 332 NLRB 1616, 1617
(2001). I further find, contrary to the assertions contained in Respondent’s brief, that the
amended answer filed on October 28 constitutes an admission, unamended by any subsequent
stipulation, that approximately 94 employees named in the compliance specification, who had
dues deducted beginning in 2005 and thereafter, are due reimbursement. Nevertheless, even if
I were to find this not to be the case, and were to accept Respondent’s contention that its
amended answer somehow reserved its right to contest reimbursement for all named
employees, for the reasons discussed below, I find that reimbursement is due to those
employees named in the compliance specification, as amended at the hearing.
As a general matter, the General Counsel ultimately bears the burden of proof in a
compliance case. See e.g. Triple A Fire Protection, 353 NLRB No. 88 (2009). Here, I find that
the stipulations entered into by the parties as described above, are sufficient for the General
Counsel to meet its initial burden of establishing that the amounts sought for employees are
accurate. Thus, the record establishes that the employees named in the compliance
specification were employed by the Respondent during the relevant period for purposes of
computing their reimbursement, and that the figures set forth are accurate calculations of
monies which would be due to employees pursuant to the Board’s Order which provides that
Respondent be directed to:
Reimburse, with interest, all of its former and present unit employees for fees and
moneys deducted from their back pay pursuant to the union-security and dues-checkoff
clauses of the contract dated January 8, 2004. However, reimbursement does not
extend to those employees who voluntarily joined and became members of Local 300S
prior to January 8, 2004.
This language echoes that which is contained in numerous cases where the Board has
held that reimbursement is not available to those employees who “voluntarily” joined a union
prior to the effective date of an unlawful contract. See e.g. Control Services, 319 NLRB 1195,
1196 (1995); Katz’s Deli, 316 NLRB 318, 334 (1995) enfd. in pert. part 80 F.3d 755 (2d Cir.
1996); Polyclinic Medical Center, 315 NLRB 1257 (1995) enfd. 79 F.3d 139 (D.C. Cir 1996);
Cascade General, 303 NLRB 656, 657 fn. 14 (1991), enfd. 9 F.3d 731 (4th Cir. 1993). 13 In my
view, such language contemplates that the proof to be adduced at any subsequent compliance
proceeding would be in the form of mitigation of Respondent’s liability. There is no clear
suggestion in such cases that the General Counsel would be obliged to prove the negative, i.e.,
that individual employees had not voluntarily joined the unlawfully recognized union, to render
them eligible for a reimbursement remedy.
The issue of which party bears the burden of proof on such matters at the compliance
stage was more fully explicated in Freeman Decorating Co., 336 NLRB 1 (2001), enf. denied on
other grounds 334 F.3d 27 (D.C. Cir. 2003). In that case, it was held that the respondent
employers had unlawfully withdrawn recognition from a union following the expiration of their

13 In Local 60 Carpenters v. NLRB, 365 U.S. 651 (1961), the Court reversed the Board’s award of
reimbursement of dues and fees where the union and the company enforced and maintained an illegal
closed-shop clause. The Court noted that there was no evidence that any employee was coerced to join
or to remain a member of the union and that; in fact, all affected employees were already union members.
In such circumstances, the Court concluded that the Boards’ order was punitive. Based upon this
decision, and its reasoning, the Board began to except from its reimbursement remedy those employees
who were not coerced into joining a union, e.g. those who “voluntarily” joined or supported an unlawfully
assisted union, prior to the effective date of an unlawful contract.
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collective-bargaining agreement because the union had previously obtained 9(a) status prior to
the expiration of the contract. The Board majority found that the employers and another union
had violated Section 8(a)(2) and 8(b)(1)(A) of the Act by entering into a collective bargaining
agreement. Part of the remedy sought by the General Counsel involved the disgorgement of
monies paid by employees and the Board agreed, as follows:
We find merit in the General Counsel’s exceptions seeking disgorgement of dues, fees
and contributions made by or on behalf of employees [performing work for respondent
employers falling within the respondent union’s jurisdiction] to the extent that such
payments are not shown by the Respondent Employers to have been noncoercive. We
defer this issue to the compliance stage. 14
336 NLRB at 14 (citing Polyclinic Medical Center, supra at 1257).
Thus, in that instance the Board stated that, at the compliance stage, it would be the
Respondent’s burden to adduce evidence of noncoercion. Similarly, here, I find it appropriate to
assign the burden of proof on the issue of voluntariness to the Respondent.
Respondent claims a particular disability in this regard inasmuch as the cards which
were allegedly obtained by Local 300S were disposed of and unavailable at the hearing. It is
also the case that the record here establishes that Respondent did not have access to the
authorization cards in question. Nevertheless, it is a basic tenet of Board law that an employer
extends voluntary recognition to a union at its own peril. International Ladies’ Garment Workers’
Union, AFL-CIO (Bernhard-Altman Texas Corp.) v. NLRB, 366 U.S. 731 (1961). In particular,
an employer who relies upon authorization cards to support a claim of majority status bears the
risk that such cards may have a disability which would preclude a finding that a valid majority
existed. In such situations an employer is not exonerated from its conduct in recognizing a
minority union.15 In a similar vein, it stands to follow that such a party would not be relieved from
its subsequent liability in a compliance proceeding based upon an inability to come forward with
valid cards or other evidence to support a claim of mitigation. Moreover, it is well-established
that when ambiguities or uncertainties exist in compliance proceedings, doubts should be
resolved in favor of the wronged party rather than the wrongdoer, see e.g. Paper Moon Milano,
318 NLRB 962, 963 (1995), United Aircraft Corp., 204 NLRB 1068 (1973).
I additionally note that while Respondent has argued that the General Counsel failed to
call witnesses to confirm that they had not signed cards, the converse is also true: Respondent
could have availed itself of an opportunity at the hearing to establish mitigation through
testimonial evidence. In this regard, Respondent was in a position to readily identify those
employees who were employed during the relevant period, and has presented no evidence that
it unsuccessfully attempted to do so or that Respondent would have been unable to contact
them to testify in this proceeding. Nor did Respondent seek to adduce testimony from Robinson
about whether any employee, other than those whose cards had been disposed of, had
voluntarily joined the Union prior to January 8, 2004. Thus, Respondent failed to avail itself of
the opportunity to present relevant evidence going to the issue of whether employees had
voluntarily joined the Union prior to the effective date of the contract.

14 The Board’s Order reiterated this burden allocation and required the respondents to: “[j]ointly and
severally disgorge all dues, fees and benefit contributions made by or on behalf of employees . . . to the
extent that such payments are not shown by the Respondent to have been noncoercive.” 336 NLRB at
16.
15 See generally Le Marquis Hotel, 340 NLRB 485, 492 (2003) and cases cited therein.
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Based upon the foregoing, I find that Respondent has failed to meet its burden of
establishing that any employee named in the compliance specification voluntarily joined and
became a member of Local 300S prior to January 8, 2004.
B. The Claim that an Order Requiring Reimbursement of Employees is “Unduly Burdensome”
At the hearing, and in its post-hearing brief, Respondent claimed that it would be unduly
burdensome to assess responsibility for the dues reimbursement to Respondent alone. In
support of this contention, Respondent argues that there was never any finding in the underlying
case that Respondent coerced employees to sign cards for Local 300S, nor was there any
dispute that the arbitrator had concluded that that union represented a majority of employees.
Respondent further argues that it was Local 300S who received the benefit of the dues, and that
Respondent derived no benefit from them. Such arguments raise matters which have been
previously considered by the Board and the Third Circuit and will be discussed in further detail
below. With regard to the evidence developed in the instant case, Respondent relies upon
Robinson’s testimony that any attempt to seek subrogation from Local 300S by Respondent
would bankrupt that union.
As an initial matter, Respondent failed to raise the claim that the Board’s remedy is
unduly burdensome, tantamount to an affirmative defense, in its answer to the compliance
specification.16 At the hearing, however, Respondent entered into stipulations with the General
Counsel and the Charging Party which, in essence, amended its answer with regard to
paragraphs 5 and 6 of the compliance specification and in the course of doing so specifically
stated that it was reserving its right to contest that the amounts set forth in the compliance
specification were due to employees named therein. Although a fair argument can be made that
Respondent’s amended answer, as again amended at hearing, does not meet the Board’s
requirements for specificity,17 affording the Respondent the benefit of the doubt on this issue, I
will consider the evidence proffered by the Respondent in support of its argument that “changed
circumstances” have rendered the Board’s remedy “unduly burdensome.”
The only evidence adduced in support of this defense is Respondent’s claimed inability
to seek contribution from Local 300S. As an initial matter, there is no finding as against Local
300S, so the issue of that union’s liability is not properly before me. Further, any purported right
of subrogation held by Respondent is irrelevant to any issue in this case, where a Board Order,
enforced by the Third Circuit, has found that Respondent is liable for the reimbursement of the
employees involved herein.18
Moreover, there is no evidence to support the general claim of “changed circumstances”

16 Section 102.56(c) of the Board’s Rules and Regulations sets forth the effect of a respondent’s
failure to answer or plead specifically and in detail to allegations in a compliance specification.
17 In this regard I note that Respondent did not seek to amend that paragraph of its amended answer
where it was acknowledged that certain employees were due reimbursement.
18 Moreover, as to the asserted financial circumstances of Local 300S, as noted above, I note
that Respondent has not supported its factual assertions with competent evidence. Robinson is no longer
president of that union and there is no evidence to suggest that he is currently familiar with the state of its
finances. In fact, he admitted that his current knowledge was “minimal.” Parenthetically, I note that even if
the Respondent and Local 300S had been held jointly and severally liable for the reimbursement remedy
ordered herein, any purported inability of one respondent to pay its share does not relieve the obligation
of any other party. See e.g. Regional Import and Export Trucking Co., Inc., 323 NLRB 1206, 1207 (1997).
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advanced by the Respondent. No evidence has been adduced to support the assertion that an
order requiring reimbursement of employees for unlawfully withheld dues and fees would be
“unduly burdensome” as that standard has been applied by the Board. In particular, Respondent
has presented no evidence in this compliance proceeding regarding any limitation on its
financial resources, threat to its continued viability, negative impact on employees or consumers
or any other purported hardship which would be caused by compliance with the Board’s order.
In this regard, as a matter of law, the authority relied upon by Respondent in support of
its contentions is unpersuasive. In United Association of Journeymen, etc. (Lummus Corp.), 125
NLRB 1161 (1959), the respondent union contended by way of defense in an unfair labor
practice proceeding that the application of the Brown-Olds remedy19 sought by the General
Counsel would be punitive. In support of this contention, the respondent, among other things,
sought to make an offer of proof that because of the respondent union’s limited financial
resources, enforcement of a reimbursement order against it would jeopardize its existence and
deprive its members of vested rights to certain benefits. The Board held that proof respecting
the respondent’s financial inability to comply with a reimbursement order should be reserved for
consideration in the compliance stage of the proceeding.
Lummus Corp. appears to have been last cited in a published decision by Justice
Harlan in his concurrence in Local 60 Carpenters v. NLRB, supra, and not for the point of law
urged by the Respondent here.20 Nevertheless, Respondent has drawn my attention to a
January 31, 2007 unpublished Board order in Elmhurst Care Center, Case Nos. 20-CA-22674,
2-CB-10843. In the underlying case the Board had ordered the respondent employer and union
to reimburse employees for union dues and initiation fees. In response to the respondents
motions for reconsideration and rehearing, the Board, relying in part on Lummus Corp., stated
that, consistent with the Board’s policy on remedial matters, it would permit the parties to
introduce, at the compliance stage of the proceeding, evidence relevant to whether the remedy
ordered was unduly burdensome. Although I do not find that the Board’s unpublished order has
precedential value with respect to the instant case, I note that the issues involved there are
similar to ones under consideration here. Thus, it appears from the order in Elmhurst Care
Center that the Board remains amenable to allowing respondents to assert and litigate through
relevant evidence claims that a reimbursement remedy would be unduly burdensome. In any
event, however, I find Lummus Corp. does not compel the result sought by the Respondent
inasmuch as I have concluded, as discussed above, that the evidence adduced by Respondent
on this issue is irrelevant to any matter properly before me and that Respondent has otherwise
failed to support its claims herein.
Lear Siegler, Inc., 295 NLRB 857, 861 (1989), also relied upon by Respondent, dealt
with an order to restore a manufacturing operation that had been moved to another location

19 Prior to the Court’s decision in Carpenters Local 60, discussed above, the Board required unions
to reimburse employees for all dues and assessments received under unlawful union-security
agreements. Plumbers & Pipe Fitters Local 231 (Brown-Olds Plumbing & Heating Corp.), 115 NLRB 594
(1956). In Carpenters Local 60, the Court invalidated such a remedy as “punitive” and found that the
Board erred in compelling the respondent union, under the so-called Brown-Olds rule to refund dues,
assessments and work permit fees collected from employees who had been members of that union at the
time they had been employed on the job in question.
20 Lummus Corp. was cited by Justice Harlan as standing for the proposition that, at that time, Board
law found an illegal closed shop or discriminatory hiring practices to create an irrebutable presumption of
coercion. In the context of this case, I note that Justice Harlan characterized evidence that employees
had voluntarily made dues or assessment payments as “defensive.” 365 U.S. at 657.
JD(NY)–20–09
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because the employer did not want to deal with the Union. The administrative law judge ordered
the respondent to reestablish and resume production of its operations as they had been prior to
the unfair labor practices and to reinstate all discriminatorily laid-off unit employees. As a result
of the respondent’s exceptions to the judge’s order, the Board directed that the employer be
permitted to introduce evidence at the compliance hearing that the restoration remedy was
unduly burdensome. In that case, the Board additionally announced that it would henceforth
apply the “unduly burdensome” standard to any respondent challenging the appropriateness of
such a restoration remedy. Notwithstanding the foregoing, I am mindful that this case was also
cited by the Board in its unpublished January 31, 2007 order as has been described above.
However, in my view this case is inapposite to the present circumstances where the sole
remedy sought by the General Counsel is monetary, and, as noted above, there is no evidence
to prove that such a remedy would be unduly burdensome, in any event.21
III. Conclusion
On these finding of fact and conclusions of law and on the entire record, I issue the
following recommended22
SUPPLEMENTAL ORDER
It is hereby ordered that Respondent Regency Grande Nursing & Rehabilitation Center,
and its officers, agents, successors and assigns, shall make whole those individuals named in
the compliance specification, as amended herein and set forth below23 plus interest as

21 As noted above, in its post-hearing brief Respondent has also argued that the remedy sought
herein is unduly burdensome because there was never any finding in the underlying case that
Respondent coerced employees to sign cards for Local 300S, that the arbitrator had concluded that that
union represented a majority of employees, that Local 300S received the benefit of the dues, and that
Respondent derived no benefit from them. Respondent has cited no case which stands for the proposition
that such circumstances constitute an undue burden which would obviate the imposition of the Board’s
remedy, and I find that they do not. I additionally note that Respondent’s contentions as set forth above
echo arguments raised before the Board and the Third Circuit which have been duly considered and
rejected. For example, Judge Davis, affirmed by the Board, found Respondent’s defense that it honored
the arbitrator’s award in good faith to be unwarranted based upon the facts of the case as well as
applicable Board law. Respondent then argued before the court that the Board erred in not deferring to
the arbitrator’s award. The court rejected that argument, finding that based upon the evidence adduced in
the record, the Board did not abuse its discretion in declining to follow the arbitrator’s decision.
Respondent additionally argued to the Third Circuit that requiring it, but not Local 300S, to refund dues
was tantamount to a penalty and not a proper make-whole relief. Although the Board had previously
rejected this argument on the ground that it had not been timely raised in exceptions, the Third Circuit
found that the Respondent’s statement of exceptions was “minimally sufficient” to warrant its
consideration of the remedy. The court found that the remedy ordered by the Board was proper inasmuch
as it restored the status quo ante and did not exceed the Board’s discretion. Thus, even if I were to find
Respondent’s arguments to be compelling, which I do not, such matters have been previously litigated in
the underlying unfair labor practice proceeding. Scepter Ingot Castings, Inc., 341 NLRB 997 (2004) (citing
Fire Protection Systems Co., 337 NLRB 141, 142 (2001)); Triple A Fire Protection, 353 NLRB No. 88, slip
op. at 3 (citing Convergence Communications, Inc., 342 NLRB 918, 191 (2004)).
22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings conclusions and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
23 As noted above, pursuant to stipulation of the parties the compliance specification was amended
Continued
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prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Employee Name
Grand
Total
Abril, Jamie 190.00
Acevedo, Maria 290.00
Antunez, Isabel 30.00
Agrinsoni, Claudia 20.00
Aguado, Nora 140.00
Angel, Jaime 100.00
Appel, Ricardo 590.00
Agron, Lilibeth A. 20.00
Arias, Angie 120.00
Arias, Darley 50.00
Arias, Javier 170.00
Arellano, Elizabeth 100.00
Armstrong, Kelly 940.00
Artigas, Lucrecia 280.00
Artigas, Pablo 750.00
Atehortua, Diego 10.00
Augustine, Elma 280.00
Ayala, Nilsa 940.00
Baker, Dorothy 130.00
Balbuena, Carlos 940.00
Basulato, Aida 0.00
Bell, Kelly 170.00
Best, Jr., Douglas 170.00
Best, Kathy 0.00
Betancourth, Sylvia 200.00
Bojkovic, Hajrije 940.00
Bojkovic, Ilira 401.00
Bonnell, Janet 560.00
Buitrago, Diana 180.00
Caamano, Aida 60.00
Camacho, Ana 940.00
Canepa, Andrea 120.00
Cano, Victoria 140.00
Carmona, Maria 940.00
Carreon, Maria E 780.00
Castro, Francisco 940.00
Castro-Richards, Rosa 950.00
Catania, Noemi 140.00
Celentano, Ashley 100.00
_________________________
as follows: claimant Maria Carrion (also listed as Maria Oulds) is owed a total sum of $780; claimant Lino
Navarro (also listed as Nino Navarro) is owed a total sum of $510; claimant Rosita Fitzpatrick (also listed
as Rosita Romero) is owed $940. In addition, General Counsel has made the uncontested claim that
Fanny Maria Zapata (also listed as Fanny Marie Ruendes) is owed $750.
JD(NY)–20–09
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30
35
40
45
50
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Chavis, Fabiola 50.00
Chavis, Cornell 670.00
Cochran, Krystle L. 270.00
Conklin, Minnie 100.00
Cornier, Inocencio 940.00
Correa, Gricelda 100.00
Cortes, Debora 100.00
Crosby, Gwendolyn 940.00
Cuellar, Jeison 160.00
Culleny, Marion 60.00
Delgado, Roman J. 50.00
Duque, Alberto 270.00
Duque, Andrea 70.00
Dale, Patti 100.00
Easton, Warren 940.00
Enriquez, Brenda 950.00
Escobedo Pro, Rames 50.00
Estrada, Rosana E 240.00
Estudillo, Cristal 920.00
Estudillo, Estrella 380.00
Fauste, Jose Omar 800.00
Ferreira, Ana Maria 940.00
Ferreira, Mariela 0.00
Figueroa, Elizabeth 20.00
Figueroa, Manuela Erika 920.00
Finlayson, Alnora 100.00
Fitzpatrick, Rosita 940.00
Florez, Diana M. 170.00
Forrest, Doreth 510.00
Foster, Katrina 30.00
Francis, Dorie 60.00
Franco, Alba 940.00
Fudriai, Claudia 340.00
Garcia, Elvira 940.00
Garcia, Raul 120.00
Garderes, Virginia 170.00
Garnder, Carole 940.00
Gatling, Leatha 900.00
Gibbons, Michael 940.00
Giraldo, Leidy 50.00
Gomez, Natalia P 20.00
Gonzalez, Jose A 120.00
Gonzalez, Mauricio 200.00
Grames, Charles 10.00
Groman, Nancy 60.00
Guida, Silvia 630.00
Gutierrez, Jennifer 310.00
Hall, Jahmad 291.31
Harvey, Norma 920.00
Hernandez, Leidi 90.00
Hickenbottom, Kerry Ann 600.00
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30
35
40
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50
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Hickenbottom, Tyreese 170.00
Hidalgo, Miguel 940.00
Hunter, Barbara 510.00
Hunter, Desmond 150.00
Jackson, Melouise 340.00
Jasso, Cristina 160.00
Jiminez, Dulce 170.00
Kaur, Amarjeet 210.00
Kaur, Kulwinder 180.00
Kennedy, Shannon 670.00
Laboy, Alex Leoner 90.00
Lasaga, Matias 340.00
Lascano, Filomena 80.00
Lewis, Sylvia 310.00
Lopez, Carolina 230.00
Lopez, Eduardo 510.00
Lopez, Navih 50.00
Maidana, Valeria 80.00
Mantilla, Arlyn 50.00
Martinez, Nubia 110.00
Masini, Ana 40.00
Massari, Anthony 40.00
Masson, Jorge 510.00
McClanahan, Grethel 260.00
McLean, Velma 20.00
McCord, Robin 340.00
Meikle, Michele 940.00
Meirelles, Marcelo 70.00
Mella, Paola 940.00
Mendez, Ruth 120.00
Mendez, Sol M. 470.00
Miraflores, Gelia 10.00
Modafferi, Michelle -60.00
Mohamed, Swalaha 940.00
Molena Oyola, Isela* (Same) 90.00
Moncaleano, Adela 850.00
Montanez, Carmen 260.00
Montenegro, Victoria 940.00
Moraga, Juan 510.00
Muneton, Eliana 30.00
Montoya, Ana 130.00
Montoya, Claudia 40.00
Moreira, Julio Cesar 90.00
Munoz, Claudia 460.00
Munoz, Flor de Maria 30.00
Munoz, Jennifer 130.00
Myers, Amy 0.40
Navarro, Lino 510.00
Navarro, Maria E. 310.00
Newell, Joan 600.00
Noel, Rita 940.00
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10
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20
25
30
35
40
45
50
15
Orbes, Diana 270.00
Orihuela, Ana M. 80.00
Orozco, Diana 190.00
Ortiz, Jasmin 80.00
Ospina, Ofelia 950.00
Oulds, Dominique N. 230.00
Palomba, Frieda 40.00
Palomino, Greyssi 230.00
Parks, Laureen Anne 600.00
Pasion, Juanito 180.00
Pafez, Nestor E. 780.00
Pedraza-Rodrigu, Samaris 100.00
Phelan, Helen 860.00
Pizano, Monserrat 50.00
Portilla, Gloria 40.00
Posse, Cindy 120.00
Richards, Joyce 940.00
Ritzie, Omar Antony 150.00
Riveria, Elvira 40.00
Roberts, Christine M. 80.00
Roberts, Marion 160.00
Rodriquez, Miquel Hernand 310.00
Rohde, Kathy Patricia 920.00
Rojas, Ivonne 360.00
Rojas, Marianela 490.00
Rosario, Kimberly 90.00
Ruiz Morocho, Yessica 160.00
Ruiz, William 80.00
Saavedra, Veronica 550.00
Sadick, Zahira 940.00
Salazar, Melida 290.00
Saldarriaga, Nathalia 40.00
Sanchez, Betty 330.00
Sanchez, Jose 940.00
Sanchez, Tecza 480.00
Secola, Patricia 140.00
Shann, Steven 360.00
Siepierski, Karina 240.00
Silva, Nancy B. 550.00
Silveira, Nestor 180.00
Smith, Harry 940.00
Soto, Justin 310.00
Soto, Maria Lenor 310.00
Stuber, Miriam 70.00
Studivant, Alnora 40.00
Suarez, Gabiela 0.00
Tavera, Elvira 900.00
Taylor, Donna 70.00
Terry, Mary 940.00
Thomas, Mattie 300.00
Torres, Stephanie 190.00
JD(NY)–20–09
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10
15
20
25
30
35
40
45
50
16
Toussaint, Edythe M. 170.00
Toxqui, Jose 40.00
Trujillo, Wilfer 490.00
Tuballes, Amado Bart B 600.00
Uddin, Katijha 50.00
Valentin, Francisco 440.00
Vergara, Brenda 80.00
Villegas, Viviana 120.00
Walker, Mary Delores 940.00
Walling, Belinda 130.00
Wayside, Jessica 230.00
Waysome, Vivienne 940.00
Witto, Paola 760.00
Zabala, Liberato 50.00
Zapata, Fanny Marie 750.00
Zaretskie, Angela 40.00
Zelada, Flores R 370.00
Zorilla, Nancy 80.00
Total 74,792.71
Dated: May 28, 2009.
______________________
Mindy E. Landow
Administrative Law Judge