Regency Heritage Nursing & Rehabilitation Center

National Labor Relations Board - Board Decisions

Feb 27, 2009

353 N.L.R.B. 1027 (N.L.R.B. 2009)

REGENCY HERITAGE NURSING & REHABILITATION CENTER
353 NLRB No. 103
1027
Regency Heritage Nursing and Rehabilitation Center
and SEIU 1199, New Jersey Health Care Union.
Case 22–CA–27992
February 27, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On November 3, 2008, Administrative Law Judge
Mindy E. Landow issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board1 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,2 and conclusions only to the extent consistent with
this Decision and Order. We agree with the judge that
the Respondent violated Section 8(a)(5) of the Act by
refusing to deal with nonemployee Union Representative
Hector Pena3 and that this matter was not deferrable to
arbitration.4 However, for the following reasons, we
reverse the judge’s finding that the Respondent violated
Section 8(a)(5) by unilaterally terminating an alleged

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 In adopting the judge’s finding that the Respondent unlawfully re-
fused to deal with Pena, we rely on her credibility-based finding that
Pena did not, in fact, hold up a sign that said “Fatah.” Accordingly, we
need not pass on her alternative finding that the Respondent would not
have been justified in refusing to deal with Pena even if he had engaged
in such conduct.
We also reject the Respondent’s claim that its refusal to recognize
Pena was justified by the fact that, in mid-2005, he distributed fliers
stating that the Board had found David Gross, the Respondent’s owner,
“guilty of stealing” employees’ money at another of the Respondent’s
facilities. The Respondent continued to deal with Pena in negotiations
for that facility after the incident. Thus, the activity described did not
create “such ill will that good-faith bargaining is virtually impossible or
that [his] participation in bargaining otherwise represents a clear and
present danger to the bargaining process.” Missouri Portland Cement
Co., 284 NLRB 432, 433 (1987).
4 While Member Schaumber agrees that deferral to arbitration would
not be appropriate in this case, he disagrees with the Board’s standard
for deferral and would revisit the issue in an appropriate case.
past practice of granting nonemployee union representa-
tives access to the Respondent’s facility.
The Union and the Respondent’s predecessor were
parties to a collective-bargaining agreement that granted
the Union access to the Respondent’s facility upon noti-
fication to, and permission from, the predecessor. Before
the Respondent began operating the facility on March 1,
2007,5 it notified its predecessor’s employees that it
would not assume the predecessor’s collective-
bargaining agreement and would assume only a limited
list of its predecessor’s past practices. That list did not
include any past practice regarding union access.
Shortly after March 1, Union Representative Pena vis-
ited the facility and met with the facility’s administrator,
Barry Rubin. During their conversation, Pena introduced
himself as the Union’s representative of employees at the
facility. Through the end of May,6 Pena visited the facil-
ity approximately once a week, meeting with employees
outside the facility or in the facility’s cafeteria. He did
not notify the Respondent or seek its permission before
conducting those meetings. On June 21, upon discover-
ing Pena on the facility’s premises, the Respondent in-
formed him that he was not allowed on the property.
The judge found that, by directing Pena to leave the
premises, the Respondent violated Section 8(a)(5) and
(1) by unilaterally terminating an established practice of
granting the Union access to the facility. We disagree.
There is no dispute that the Respondent was not re-
quired to adopt its predecessor’s collective-bargaining
agreement or past practices. Nor is there any dispute that
the Respondent expressly notified prospective employees
that it would not adopt that agreement or those practices,
with certain specified exceptions not relevant here.
Thus, the issue is solely whether, after the Respondent
began operating the facility on March 1, Pena’s visits
created an established condition of employment that the
Respondent could not unilaterally change.
As the party alleging an established past practice, the
General Counsel has the burden of proof. See National
Steel & Shipbuilding Co., 348 NLRB 320, 323 (2006),
enfd. mem. 256 Fed. Appx. 360 (D.C. Cir. 2007). Spe-
cifically, the General Counsel must show that Pena’s
post-March 1 visits occurred “with such regularity and
frequency that employees could reasonably expect
[them] to continue or reoccur on a regular and consistent
basis.” Sunoco, Inc., 349 NLRB 240, 244 (2007). In
addition, “[i]t is implicit in establishing a past practice

5 All dates are in 2007 unless otherwise indicated.
6 Although the Respondent did not ban the Union from the facility
until June 21, Pena testified that he was on his honeymoon for 3 weeks
in June. This indicates that he did not visit the facility that month prior
to June 21.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1028
that the party which is being asked to honor it”—here,
the Respondent—“be aware of its existence.” BSAF Wy-
andotte Corp., 278 NLRB 173, 180 (1986).
We find that the General Counsel has failed to adduce
sufficient evidence to meet this burden. As discussed
above, Pena visited the facility approximately once a
week between March 1 and the end of May. He met with
employees in the cafeteria and outside the facility. Other
than his initial introduction to Rubin shortly after March
1, however, there is no evidence that the Respondent
was, or reasonably should have been, aware of these vis-
its. Although Pena testified that Rubin did not place any
limits on Pena’s access rights when he met with Rubin
shortly after March 1, there is no evidence that they dis-
cussed access rights at all, or that Rubin gave any indica-
tion that Pena was permitted to visit the facility. Thus,
we find that the General Counsel has not provided suffi-
cient proof that there was a regular and consistent past
practice, of which the Respondent was aware, of union
access to the facility after March 1. Accordingly, we
dismiss the complaint allegation that the Respondent
unlawfully terminated such a practice unilaterally.
ORDER
The National Labor Relations Board orders that the
Respondent, Regency Heritage Nursing and Rehabilita-
tion Center, Ewing, New Jersey, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to deal with union representatives duly
appointed by the Union to represent a bargaining unit of
the Respondent’s employees.
(b) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Recognize and deal with Hector Pena as a duly-
appointed representative of the Union for a bargaining
unit of the Respondent’s employees, providing him ac-
cess to the Respondent’s facility to perform his represen-
tative duties in accord with the provisions of the parties’
current collective-bargaining agreement, and, within 10
days of this decision, notify the Union in writing that it
no longer has any objection to dealing with Pena and that
it will do so on request.
(b) Within 14 days after service by the Region, post at
its facility in Ewing, New Jersey, copies of the attached
notice marked “Appendix.”7 Copies of the notice, on

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-
forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 June 21, 2007.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to deal with duly appointed repre-
sentatives of SEIU 1199, New Jersey Health Care Union
(the Union).
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL recognize and deal with Hector Pena as a
duly-appointed representative of the Union for a bargain-
ing unit of our employees, providing him access to our
facility to perform his representative duties in accord
with the provisions of our current collective-bargaining

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
REGENCY HERITAGE NURSING & REHABILITATION CENTER 1029
agreement with the Union, and, WE WILL, within 10 days
of this decision, notify the Union in writing that we no
longer have any objection to dealing with Pena and that
we will do so on request.
REGENCY HERITAGE NURSING AND
REHABILITATION CENTER
Lisa Pollack, Esq., for the General Counsel.
Morris Tuchman, Esq. (Law Offices of Morris Tuchman), of
New York, New York, for the Respondent.
William Massey, Esq. (Gladstein, Reif & Meginniss, LLP), of
New York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MINDY E. LANDOW, Administrative Law Judge. This case
was heard by me in Newark, New Jersey, on March 19 and 28,
2008. The first amended complaint herein, which issued on
February 20, 2008, was based upon an unfair labor practice
charge and an amended charge that were filed on June 22,
2007,1 and August 2, by SEIU 1199 New Jersey Health Care
Union (the Union). The amended complaint alleges that since
about June 21, Regency Heritage Nursing and Rehabilitation
Center (the Regency Heritage or Respondent), has denied Hec-
tor Pena, and other union officers and representatives, access to
its facility, and since about June 21, has refused to deal with
Pena, in violation of Section 8(a)(1) and (5) of the Act. Re-
spondent filed an answer denying the material allegations of the
amended complaint and raising the affirmative defense that the
matter should be deferred to arbitration. Upon the entire re-
cord,2 and considering the briefs filed by the parties, I make the
following
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 and a health care institution within the mean-
ing of Section 2(14) 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. ALLEGED UNFAIR LABOR PRACTICES
A. The Parties’ Collective-Bargaining Relationship
The Union had a collective-bargaining agreement with the
Respondent’s predecessor, the Central New Jersey Jewish

1 Unless indicated otherwise, all dates referred to herein relate to the
year 2007.
2 Credibility resolutions have been made based upon a review of the
entire record and all exhibits in this proceeding. Witness demeanor and
inherent probability of the testimony have been utilized to assess credi-
bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or because
it was inherently incredible or unworthy of belief.
Home for the Aged, covering its nonprofessional employees.
This agreement was effective for the period August 19, 2004,
through June 30, 2008. The Union’s contractual visitation
rights, at article 7, section 1 of that agreement, provides:
A designated Union representative shall have the right to visit
the Employer’s establishment at reasonable times in order to
investigate matters relative to wages, hours, working condi-
tions and grievances. Such visits, however, shall not be made
at such times or in such manner as shall interfere with the
proper management and operation of the Employer. The Un-
ion representative shall notify the Human Resources Director
in advance to arrange a time and date and describe the nature
of the intended visit.
Respondent began operating the facility on March 1, but did
not assume the predecessor’s contract with the Union. The
name of the facility was changed to Regency Heritage Nursing
and Rehabilitation Center (Regency Heritage). As Owner
David Gross testified, this change was intended to reflect the
nature of the facility and its residents.3 Pena testified that a few
days after the Respondent assumed the operation of the facility,
he introduced himself to Administrator Barry Rubin as the Un-
ion’s representative at the facility, and subsequently, he visited
Regency Heritage about once per week, preparing the employ-
ees for the upcoming bargaining negotiations. Pena testified
that in his meeting with Rubin there were no limitations put on
his visitation rights, he never notified any of the Respondent’s
representatives before going to the facility and, prior to June
21, he never had any problems while at the facility. He usually
met with employees in the cafeteria, or outside the facility as
they were entering or leaving work. As to whether he encoun-
tered any difficulties in any of these visits, he testified: “None
whatsoever.” Gabriel Knight, who is employed at the facility as
a licensed practical nurse, testified that he had seen Pena at the
facility several times per month prior to June, distributing in-
formation about the Union to employees. Gross testified that
union representatives were allowed to be at the facility, but
only if they called first to make an appointment to be there.
B. The 10-Day Strike Notice and Events of June 21 and 22
A bargaining session which was held on June 19, was at-
tended by Pena, Union President Milly Silva, secretary-
treasurer, Marvin Hamilton, Counsel Ellen Dichner, and about
ten employees for the Union. The Respondent was represented
by Gross, Counsel Morris Tuchman and Respondent’s book-
keeper. At some point during this meeting, the Union asked to
caucus. The employee members of the bargaining committee
voted to give Respondent a 10-day strike notice and to engage
in a strike on June 30 and July 1. When the Respondent’s repre-
sentatives returned to the room, Silva handed the strike notice
to the Respondent. Nothing further was said and the meeting
ended.
Pena, whose testimony is corroborated in all material re-
spects by Hamilton, stated that he, and Hamilton, visited the
facility on June 21, to meet with employees and to discuss the

3 According to Gross, the facility maintains a mini-museum of Ju-
daica, including religious objects and art work. There are weekly Shab-
bat services and other holiday celebrations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1030
10-day strike notice with them. They stood on the Respondent’s
premises, outside of the facility, near the parking lot and next to
the entrance to the facility, talking to two or three employees at
a time. At about 3, Frank Raccuia, an assistant administrator of
the Regency Heritage, approached the union representatives
and told them to leave the property, otherwise he would call the
police. Hamilton responded that they were not going to leave as
they represented the employees at the facility, and Raccuia said
that he was under orders from Gross to get the union represen-
tatives off the property. Pena and Hamilton remained where
they were situated and about 5 minutes later Gross came out
and, in the presence of employees, told the union representa-
tives to leave since they had no contract. Pena told Gross that
he had heard that some employees had been sent home that day,
and Gross said that the Union did not represent his workers,
and again told the union representatives to leave and that if they
had a problem to call his lawyer. Pena again asked Gross what
happened with the workers, and he said that they had quit.4
Shortly thereafter, the police arrived and Pena and Hamilton
moved to a nearby park where they continued to meet with
employees of the facility.
On cross examination, Gross was asked by counsel for the
Charging Party as follows:
Q. After the Union presented you with a 10 day strike notice
on June 19th, isn’t it true that you banned all Union representa-
tives from your property at Regency Heritage?
A. Yes.
On June 22, Respondent distributed a letter signed by Gross
to its employees stating, inter alia, that “Union representatives,
members and anyone on strike are not employees of Regency
Heritage and are not permitted on our property.” On that day,
Pena went to the facility and stood on the sidewalk, which is
public property adjoining the facility, and distributed flyers to
employees. Facility Managers Raccuia and Al Morris came out
and told him that he would have to leave or they would call the
police. Pena said that he was on public property, and that if
they wanted to call the police, they should do so. The police
were summoned, viewed the situation, and left. Pena was later
joined by Union Representatives Zoe Baldwin and James Mac-
gregor. The police came on two subsequent occasions that day;
on both occasions they said that the union representatives could
remain because they were on public property.
C. Events of June 23 and 24
It is alleged by the Respondent, and denied by Pena and
Hamilton, that while at the facility on June 23, Pena held up a
sign stating “Fatah,”5 which would be offensive to residents of
the Regency Heritage and their families and guests. Respondent
asserts that this is the reason that it has barred Pena from its
facility.

4 Some employees were fired, allegedly for wearing union buttons,
but after a charge was filed with the Board, the matter was settled and
the employees were reinstated.
5 I take administrative notice of the fact that “Fatah” is a reference to
a Palestinian political party which is a constituent member of the Pales-
tine Liberation Organization (PLO).
Pena testified that he arrived at the facility on the morning of
June 23 at about 10:25 a.m.; Hamilton arrived at the facility
about 10 or 15 minutes later. Both men were situated on public
property adjacent to the driveway by which visitors enter and
leave the facility. Various family members were arriving for
Sabbath services and for family visits, and the union agents
planned to use the opportunity to speak with them in order to
obtain their signatures on petitions supporting the facility’s
employees. The petition that they asked the family members to
sign as they were entering and leaving the facility stated:
An unstable workforce would put
Regency Heritage residents at risk!
New Management is causing an Exodus of quality caregivers.
The new operator of the for-profit Regency Heritage nursing
home introduced himself by slashing low wage worker’s pay
by up to $5 an hour. Their actions are causing an exodus of
quality caregivers who have devoted more than 15 years to
serve our loved ones.
Regency Heritage can’t become a revolving door of strange
workers.
Our residents need caregivers they have spent years getting to
know. If management values the continuity of care of our
loved ones, they will pay good wages and benefits to keep
good caregivers who our loved ones know and love.
Count on me
To stand with Regency Heritage workers to
Hold management accountable to
Quality jobs and quality care.
Below was a space for residents’ family members to list their
name, address, and telephone number and to place a check next
to three choices:
I will call David Gross to tell him to do the right thing.
I will stop by the strike line to support our care givers June 30
. . . .
I will stop by the strike line to support our care givers July 1
. . . .
Pena, corroborated by Hamilton,6 testified that during this
period of time he was wearing a purple t-shirt and purple hat
bearing a SEIU Local 1199 logo. He also had, at the time, a full
beard.
Pena denied displaying a sign bearing the word “Fatah” on
this or any other occasion. He further testified, that, at this point
in time, he did not even know what the word signified. Pena
further denied that he made any threats to anyone, and stated
that he was not approached by any representative from man-
agement or by the police that day. He and Hamilton left the
facility together, at approximately 2 p.m.
On the following day, June 24, Pena arrived at the facility at
about noon accompanied by his wife, Adelya Pena. When he
arrived he met with Baldwin and the union representatives
stood on public property and asked residents’ family members

6 Hamilton’s testimony on this particular issue was adduced through
an offer of proof as stipulated by the parties.
REGENCY HERITAGE NURSING & REHABILITATION CENTER 1031
to sign the petition signifying their support for the Union and
the employees. According to Pena, he again wore a purple T-
shirt and cap bearing union insignia. Pena further testified that,
based upon his efforts on June 23 and 24, he obtained approxi-
mately 20 signatures from residents’ family members in sup-
port of the Union’s petition. He denied displaying a “Fatah”
sign on this occasion.
Later in the day a gentleman, who at the time was unknown
to Pena (this individual was subsequently identified as Steven
Flaks, a family member of one of the facility’s residents) who
was driving a black Mercedes, passed by Pena, who asked him
to sign the flyer. Flaks then asked Pena, “Where is your Fatah
sign?” Pena replied, “What sign?” and Flaks left without an-
swering. Pena asserts that he had never previously seen Flaks.
Hamilton testified that he arrived at Respondent’s facility on
Saturday, June 23, at about 10:35 a.m., about 10 to 15 minutes
after Pena arrived. Their purpose in being at the facility that
day was to distribute flyers to residents’ family members asking
them to support Respondent’s employees. He and Pena were
standing on the sidewalk, Hamilton on the left side of the
driveway, and Pena on the right, passing out leaflets to family
members as they were entering and leaving the facility. He saw
no document containing the word “Fatah,” and he left the facil-
ity with Pena at about 2:30 on that day. Hamilton did not go to
the facility on June 24, or the following week.
Gross testified that Flaks’ father is a resident at the facility
and that he often attends religious services with his father at the
facility’s synagogue on Saturday mornings at 10 a.m. About 1
week after the alleged incident, Gross was approached by a
member of his management staff, along with Flaks, who told
Gross that on Saturday, June 23, at about 10, as he was driving
into the facility, he saw a man standing outside the building
holding a sign that said “Fatah.” When Flaks went into the
facility he approached the first employee that he saw, who has
since been identified as Frank Foray, and asked Foray to go
outside to double check what he had seen. According to Gross,
Foray went outside “. . . and confirmed for him that he saw it.
That, in fact, it was a Union representative that was standing
outside.”
Gross testified further that Flaks told him that as he was
leaving the facility that day or the next day he saw the individ-
ual who had been carrying the sign, but now was requesting his
signature, and Flaks asked him where his sign was. According
to Gross, he also spoke to Foray, who provided a description
which matched Pena’s, and on the basis of these two conversa-
tions, and his knowledge that Pena was at the facility on June
23 and 24, he determined that Pena was the individual who was
carrying the “Fatah” sign.
In answer to various questions from counsel from the Charg-
ing Party, Gross’ memory began to fail him and he became
repeatedly argumentative and unresponsive.7 What can be

7 Examples include Gross’ testimony that he does not know whether
there is a procedure for an employee to follow if he or she receives a
complaint or report of an incident from a family member; that he did
not know whether there were generally more visitors to the facility on
weekends than during the week; that he did not know who had been left
in charge of the facility on Saturday, June 23, or whether he had spoken
with anyone from the facility during that weekend; that he did not know
gleaned from his testimony is that he was not present at the
facility on June 23 or 24, and did not receive a report from
anybody at the facility about the alleged incident until “at some
time after the Fatah sign incident.” Initially Gross testified that
Flaks had told him that the sign he saw was in Arabic; he later
changed his testimony in this regard.8 After Gross decided that
it was Pena who had carried the “Fatah” sign, he resolved that
he would not allow him access to the Regency Heritage to meet
with employees for representational purposes. The record does
reflect however, that Pena did participate in most of the nego-
tiations for a collective-bargaining agreement, which were held
off site. Pena was also allowed on Regency Heritage premises
on one occasion to meet with employees to explain the pro-
posed collective-bargaining agreement and obtain employee
ratification of the contract.
D. The Union’s Investigation of the Alleged Fatah Incident
About 2 weeks after the June 23 leaflet distribution, Union
President Silva told Hamilton that an allegation had been made
that, while at the Regency Heritage on June 23, Pena had dis-
played a sign bearing the word “Fatah.” Silva asked Hamilton
to investigate it. According to Hamilton, his investigation failed
to establish that Pena had engaged in any such misconduct.
Hamilton testified that after Silva instructed him to investi-
gate the situation, he spoke to Pena and Foray in person, and
Flaks by telephone. Flaks told him that as he drove his black
Mercedes to the facility he saw somebody outside the facility
carrying a sign that said “Fatah” and he told Hamilton that he
found it “weird.” He went into the building, got the first em-
ployee that he saw, Foray, and took him outside: “Mr. Foray
said it sounded like it said Allah. And Mr. Flaks, I don’t know
if he told me exactly what it said. He may have said it said Fa-
tah, to the best of my recollection.” Flaks also told Hamilton
that on the following day, “. . . he went up to a guy at the Union
and asked him . . . where was his sign.”
According to Hamilton, Foray told him that when he went
outside he spoke to the person holding the sign and that this
person said that he worked for the Union. Both Flaks and Foray
told Hamilton that while this was going on a blonde woman
was sitting nearby in a beach chair.9 Neither Flaks nor Foray
referred to Hamilton’s presence at the facility at the time. When
he met with Foray, Hamilton asked him to describe the individ-
ual that he saw, and he described him as middle-eastern with a
medium build. He asked Foray if he could differentiate between
a middle-easterner and a Hispanic, and Foray said that he
could. Hamilton, who did not tell Foray that he was with Pena
at the facility on the day in question, asked if he had ever seen
him before, and Foray said that he had not. Hamilton asked

whether he was at the facility on the following Monday; that he did
“not want to guess” which member of his management staff approached
him about the “Fatah” incident; and that he did not recall whether he
had received any other reports or complaints about a “Fatah” sign.
8 Initially Gross testified that Flaks told him: “It had Arabic writing.
And he said I found somebody to go out there and just double check
what it is I saw.” Subsequently, when questioned on this matter by
counsel for the Charging Party, Gross replied: “I don’t recall he said it
had Arabic writing or not. I recall he said it had fatah.”
9 Pena’s wife Adelya, is blonde.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1032
Foray whether he reported the incident to anybody, and he said
no. Hamilton asked why he didn’t report it, and Foray stated
that he didn’t know.
Adelya Pena testified that she was not at the facility on June
23.10 She spent the morning shopping, paying a credit-card bill,
and then met her husband for lunch at approximately 3 p.m.
Adelya Pena further testified that, on Sunday, June 24, she
accompanied her husband to Respondent’s facility. Baldwin
was there as well; Hamilton was not present. While there, she
sat in a chair in the shade while Pena spoke to employees. Ad-
eyla Pena denied that her husband carried or displayed a “Fa-
tah” sign on that occasion.
By letter of July 12 to Gross, Hamilton wrote:
Milly Silva asked me to investigate your complaint that Hec-
tor Pena had some involvement with distributing a leaflet at
Regency Heritage that had Fatah on it. I have spoken at length
with Hector and others involved in literature distribution at
Regency Heritage and am confident that Hector did not dis-
tribute the Fatah document or have anything to do with it. He
had distributed another Union authorized leaflet concerning
the workers’ issues at Regency.
The Union takes all allegations of ethnic, cultural, religious
and racial insensitivity very seriously. When I learned of your
complaint concerning Hector, I was very surprised as he has
been on staff here for several years and I have neither ob-
served nor has the Union ever received a complaint concern-
ing his behavior that would suggest any such insensitivity. I
trust that this letter has clarified matters and that you will no
longer bar his access, as he is the Union’s designated repre-
sentative at your facilities.
In response, Respondent’s counsel Tuchman wrote to Hamil-
ton, by letter dated July 16, stating, inter alia:
Your letter does not reflect that you spoke with David Gross
and/or his witnesses to the events surrounding the “Fatah”
sign allegedly held up by Mr. Pena. I believe that your inves-
tigation is clearly incomplete without these witnesses being
followed up on. Since Mr. Pena’s job is on the line, it is
hardly surprising that he would deny holding up such a sign
on a Saturday morning as congregants went into the facility
Synagogue. I am certain that you do not intend to “white-
wash” the events.
E. The November 13 Arbitration
On November 13, the parties held an arbitration regarding
Pena’s explusion from two other facilities owned by Gross, the
Regency Park and the Regency Gardens, where the Union had
extant collective-bargaining agreements. According to Pena’s
unrebutted testimony the arbitration did not involve the Re-
gency Heritage because the position was taken that inasmuch as
there was no collective-bargaining agreement covering that
facility, it could not be compelled to submit to arbitration.
At the arbitration, both Flaks nor Foray were called as wit-
nesses by the Employer. Neither testified at the hearing herein;

10 It does not appear from the record that Hamilton interviewed Ade-
lya Pena in the course of his investigation.
however, counsel for the Charging Party and the Respondent
stipulated that their testimony, which was sworn and subject to
cross-examination, was as follows: 11
At the November 13, 2007 arbitration hearing, Stephen Flaks
(“he”) testified that:
-He drive into the facility around 10 a.m. on Saturday to at-
tend services with his father
-He didn’t stop his car, a black Mercedes, while driving in,
but slowed down and observed a man on the right hand side
with a sign that said “Fatah” in English
-He had no idea of what the man was wearing; the man was
wearing pants and a shirt
-A couple of hours later, around lunchtime, he asked em-
ployee Frank to “go out front and see what’s going on be-
cause something weird is going on.”
-He had known Frank, an employee, for a few months.
-He was not sure when Frank left to go outside. Frank went
outside when asked by Flaks.
-Frank came in and said, “I saw a guy holding a Fatah sign.”
-He said, “Good, I’m not crazy then.”
-When he left the facility around 2:30 p.m., the same man
from the morning was there with a blond lady. The man was
on the opposite side.
-He returned to the facility on Sunday before noon and saw
the same man from Saturday, with at least two others, includ-
ing the same blond lady from Saturday. -He didn’t stop his car
on the way in and didn’t see any signs.
-He left the facility a couple of hours later; he saw no signs
when he drove out. —On his way out he stopped his car and
asked the man, “What’s going on?” He was told that the Un-
ion was trying to accomplish something, and the man asked
him to sign a flyer. He responded, “Where’s your Fatah
sign?” The man replied, “What sign?” He didn’t say anything
after that and drove away.
-He spoke to Gross about the man with the Fatah sign.
-The man had a little bit of a beard; the man was not wearing
a purple t-shirt, purple hat or dark glasses. The man was 5’6”
or 5’8” and had dark hair.
-He never saw Marvin Hamilton.
2) At the November 13, 2004 arbitration hearing, employee
Frank Foray (hereinafter “he”) next testified that:
-He was employed by the Employer for 8 months, worked
from 9 a.m. -5 p.m. with every other weekend off.
-He left the job because of an argument.
-He had known Flaks for a couple of months prior to 6-07.
-Flaks approached him on Sat. at noon and asked, “Do you
know what’s going on? There’s a guy in front. Do you mind
checking it out for me?”
-He and Flaks had this conversation outside the facility. He
walked to the front and saw a man on the right. The man had
a sign that said “Fatah.” The sign was in English; he knew
what the word meant because he understands some Arabic.
-He stayed outside for 5-10 minutes looking at the man.
-He went back inside and told Flaks about the sign and what it
said.

11 There was no official transcript of this proceeding.
REGENCY HERITAGE NURSING & REHABILITATION CENTER 1033
-He never saw the sign again.
-He had seen this man once before, outside the facility earlier
that same day at 6:40 a.m. when he drove into the facility with
his mother. There was no blond at 6:40 a.m.
-He was not sure what the man was wearing.
-The third time he saw the man outside was around 1:30 p.m.;
the man was with the blond lady; the man had the same sign,
but it was folded up.
-He asked the man, “What are you doing?” The man said he
worked for the Union. He did not ask the man about the sign.
-He did not report this “Fatah sign” incident to anybody (be-
sides S. Flaks). David Gross later approached him to talk
about it. He never saw the man again.
-The man had a goatee; the man was not wearing a purple t-
shirt, purple hat or dark glasses.
-He did not see Marvin Hamilton at any time.
The stipulation further provides that, at the arbitration hear-
ing, both Flaks and Foray identified Hector Pena as “the man.”
Pena was present in the hearing room when both witnesses
made their respective identifications.12
F. The Standstill Agreement and Subsequent Collective-
Bargaining Agreement
On July 2 (that is, prior to the arbitration referenced above)
under the auspices of Arbitrator Martin F. Scheinman, the Re-
gency Heritage and the Union entered into a standstill agree-
ment which was applicable while the parties negotiated a com-
prehensive collective-bargaining agreement. It was effective by
its terms until November 15, 2007, and subject to extension by
mutual agreement.
The record establishes that, pursuant to this standstill agree-
ment, the Union withdrew its strike notice and agreed to nego-
tiate to reach a comprehensive agreement with the Regency
Heritage, and the Employer agreed to reinstate several employ-
ees, maintain coverage of certain employees in the union bene-
fit fund, and maintain current posted standards, with the excep-
tion of certain enumerated terms. The standstill agreement fur-
ther provided as follows:
The parties acknowledge each of them has experienced re-
ports from co-workers, supervisors and family members of
residents relaying accounts of comments that are unaccept-
able. Racial, ethnic and cultural slurs are unacceptable and
each party, upon notice of such complaints from the other
party, shall investigate and use their best efforts to stop such
behavior, if found to be true. It is expressly understood that
comments and slurs have no place in these parties’ relation-
ships. Employees found to have engaged in these unaccept-
able behaviors shall be removed from their positions working
for the Home or servicing the employees working at the
Home.
This agreement further provided that the arbitrator “shall be
available to mediate, as requested by either side.”

12 The Union’s request that witnesses be sequestered was denied by
the arbitrator.
On November 13, the parties extended the standstill agree-
ment until December 31, 2008. The extension to the standstill
agreement provides that: “Disputes concerning the terms of this
extension agreement shall be resolved by binding arbitration it
being understood that the arbitrator shall have no authority to
set the actual terms for a comprehensive agreement.”
Thereafter, the Regency Heritage and the Union entered into
a collective-bargaining agreement, which is effective by its
terms from March 1, 2008, through February 28, 2011. This
agreement contains a grievance arbitration provision, but de-
fines a grievance as a dispute arising during the term of the
agreement. There is a visitation clause in the agreement, which
is similar to that which was contained in the predecessor
agreement, requiring that the union representative seeking ac-
cess to the facility notify the human resources director in ad-
vance to arrange a time and date for and describe the nature of
the intended visit. There is no evidence that any union repre-
sentative, other than Pena, is currently barred from Respon-
dent’s facility.13
IV. ANALYSIS AND CONCLUSIONS
A. Pena Did Not Display a Sign Bearing an Offensive Message
on June 23
There is a clear credibility issue herein regarding the allega-
tion that Pena carried a “Fatah” sign at the facility, a home that
caters mainly to people of the Jewish faith and heritage. Pena
denies having such a sign and Hamilton, who was with him
virtually all day on June 23, also denies seeing any such sign
displayed. The only testimony supporting the existence of such
a sign was from Gross, whose sole sources of information re-
garding this matter were the after-the-fact accounts offered by
Flaks and Foray.
I found both Pena and Hamilton to be credible and believ-
able witnesses, who appeared to be testifying in an honest and
forthright manner on both direct and cross examination. In
addition to finding them to be credible witnesses, the surround-
ing facts and circumstances tend to support their account of
events. In particular, I find that the Respondent’s allegation
(and Flax and Foray’s testimony at the arbitration) defies logic.
Pena and Hamilton were at the facility on June 23, specifically
to obtain the signatures and support of the residents’ families to
“stand with” the workers. It is difficult to believe that with that
purpose in mind, Pena would display a “Fatah” sign at a facility
with a Jewish population and tradition, which clearly could be
construed as offensive to the residents and their family mem-
bers and other guests. If Pena had displayed such a sign, it is
highly unlikely that he would have been able to obtain signa-
tures from resident’s family members. As counsel for the
Charging Party states in his brief: “It is illogical and incredible
that he would display a sign that would likely offend the very
same individuals whose support he was soliciting.”
Further, although I cannot make a determination regarding
demeanor so as to credit or discredit unseen witnesses, I note
that both Flaks and Foray were unable to describe what the sign

13 At the November 13 arbitration, Respondent’s counsel, Ari Weiss,
stated that Respondent would deal with other union representatives, but
not with Pena.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1034
holder was wearing. I find that a bright purple t-shirt and hat
bearing union insignia would be memorable under these cir-
cumstances.14 In addition, although Hamilton was present at
the facility with Pena on June 23, neither Flaks nor Foray iden-
tified him as being present on that day. Moreover, Foray testi-
fied at the arbitration that he first saw the sign holder when
reporting for work at about 6:40 a.m. This is several hours prior
to the time when Pena first arrived at the facility. I further note
that there is no evidence that Foray reported this incident to any
superior on that day or that any incident report was filed.15
Moreover, no other family member or other visitor to the facil-
ity reported any individual holding a sign bearing an offensive
message.
As stated above, I found Pena and Hamilton to be credible
and believable witnesses. On the other hand, I found Gross to
be an evasive and argumentative witness whose testimony
lacked reliability. An additional factor that detracts from the
Respondent’s defense herein is that, admittedly, Gross had
previously banned the union representatives from the facility
after the Union gave him the 10-day strike notice on June 19,
and issued a notice reiterating that ban on June 22. Again, this
was prior to Pena’s alleged misconduct, and well before Gross
received any such report.
On the basis of all of the above, I find that the record as a
whole, including the credible testimony, in conjunction with the
inherent probabilities of the situation, establishes that Pena did
not carry a “Fatah” sign at the Respondent’s premises on June
23, as Respondent has alleged. I further conclude that Respon-
dent’s decision to bar union representatives from its facility
stemmed from the issuance of the strike notice and the impend-
ing threat of a strike.
B. Respondent Unilaterally Changed its Past Practice of Allow-
ing Union Representatives Access to its Facility, in Violation of
the Act
The predecessor’s contract with the Union provided that
prior to visiting the facility, the Union would notify the em-
ployer in advance to arrange for the visit. Other than Gross’
nonspecific testimony, which I do not credit, there is no evi-
dence that this contractual requirement continued to be adhered
to by the parties after Respondent assumed operation of the
facility. There is, to the contrary, unrebutted evidence of a past
practice whereby Respondent, for a period of approximately 4
months, allowed union representatives to have access to its
facility notwithstanding any prior contractual requirement that
they first seek and receive permission. I credit Pena’s uncontra-
dicted testimony that in his meeting with Rubin, there were no
limitations put on his visitation rights to the facility, and that
subsequently he visited the facility on a weekly basis without
requesting or obtaining prior approval. This testimony is sup-
ported by Knight’s credible testimony that he saw Pena distrib-
uting literature at the facility several times per month prior to

14 Moreover, in such an instance, Foray would not have had to have
a conversation with the sign holder to discern that he was affiliated with
the Union.
15 I note that Foray, who had been terminated for engaging in an ar-
gument, was rehired shortly after the arbitration. He worked for a short
time before his name was, unexplainedly, removed from the payroll.
June. The evidence therefore establishes that there was a past
practice for the 4-month period after Respondent began operat-
ing the facility.
Union visitation is a mandatory subject of bargaining.
American Commercial Lines, 291 NLRB 1066, 1072 (1988);
The Sacramento Union, 291 NLRB 540, 550 (1988), Ernst
Home Centers, 308 NLRB 848–849, 865 (1992). Inasmuch as,
beginning on June 21, Respondent unilaterally altered the Un-
ion’s visitation rights at its facility without prior notice to, or
bargaining with, the Union, this change violated Section 8(a)(1)
and (5) of the Act.16 The Sacramento Union, supra. Ernst
Home Centers, supra.
C. Respondent Unlawfully Banned Pena from its Facility and
Refused to Deal with Him
Moreover, Respondent has presented no legally cognizable
defense for its continuing refusal to deal with Pena regarding
the terms and conditions of unit employees. As the Board has
held:
Section 7 of the Act encompasses the right of employees, act-
ing through their union, freely to select their representatives
for the processing of grievances and discussion of workplace
matters. . . Although a party may, under certain circum-
stances, refuse to meet with another party’s bargaining repre-
sentatives, the party making such a refusal must establish that
the representatives which whom it refuses to meet have cre-
ated by their own actions an atmosphere of such ill will that
good-faith bargaining is virtually impossible or that their par-
ticipation in bargaining otherwise represents a clear and pre-
sent danger to the bargaining process.
Missouri Portland Cement Co., 284 NLRB 432, 433 (1987).
See also KDEN Broadcasting Co., 225 NLRB 25, 35 (1976)
(requiring persuasive evidence that the presence of the banned
representative would create ill-will and make good faith bar-
gaining impossible) (emphasis in original).
In those situations where the Board has sanctioned an em-
ployer’s refusal to deal with a particular union representative,
the conduct at issue is generally violent and/or threatening, or
of a similarly egregious nature. For example, in King Scoopers,
Inc., 338 NLRB 269 (2002), the Board found that an employer
had not violated the Act when it condoned an employer’s re-
fusal to deal with a union representative who had previously
been discharged for misconduct including throwing a meat
hook at an employee, throwing a 40-pound piece of meat into a
saw, thereby breaking its blade, throwing a knife into a box,
and threatening a supervisor. The Board found that, in light of
this individual’s apparent propensity to react violently during
confrontations, employer agents assigned to deal with him
might be reasonably apprehensive and preoccupied with their
safety if they did not agree during adversarial meetings. See
also Fitzsimmons Mfg. Co., 251 NLRB 375, 379 (1980), enfd.

16 In this regard, I note that Respondent made clear to the Union and
its employees and, reiterated at the hearing, that it did not adopt the
predecessor’s collective-bargaining agreement which contained a visi-
tation clause with notice restrictions. Moreover, Respondent did not try
to limit the Union’s access or visitation rights but unilaterally stopped
all access.
REGENCY HERITAGE NURSING & REHABILITATION CENTER 1035
670 F. 2d 663 (6th Cir. 1983) (employer lawfully refused to
deal with union representative who physically assaulted em-
ployer’s personnel director at grievance meeting); Sahara Da-
tsun, 278 NLRB 1044 (1986), enfd. 811 F.2d. 1217 (9th Cir.
1987) (conduct outside the bargaining process justified an em-
ployer’s refusal to deal with a union representative where that
individual disseminated a newsletter accusing company owners
of involvement in prostitution and the use and sale of cocaine;
union representative also made unsubstantiated accusations to
employer’s bank that certain management officials, including
those expected to be involved in bargaining, had engaged in
fraudulent financial practices).
Here, as I have found, Pena engaged in no such improper
conduct. Moreover, even if I were to find that he had, in fact,
displayed the “Fatah” sign, I would be obliged to conclude that,
as a matter of law, this would not excuse Respondent from its
continuing refusal to deal with him, based upon the standards as
set forth above. In this regard, I note that while a display of the
word “Fatah” might well have been deemed offensive by resi-
dents of the Regency Heritage and their family members, and
do not condone such conduct, the sign was, by all accounts,
displayed on public property. Moreover, it contained no threat
of violence; nor did it contain any specific reference to the Re-
gency Heritage, or any of its managers.
Further, Respondent has not shown that Pena’s alleged mis-
conduct would have impeded the bargaining process. In fact,
the record shows to the contrary, that notwithstanding the alle-
gations of misconduct, Pena attended the majority of the collec-
tive-bargaining sessions between Respondent and the Union,
and, moreover, was instrumental in having the proposed
agreement ratified by the bargaining unit. Thus, Respondent
has failed to establish a legitimate basis for its continuing re-
fusal to deal with Pena. Accordingly, I find that by refusing to
deal with Pena, a union representative duly appointed to repre-
sent Respondent’s employees, Respondent has violated Section
8(a)(1) and (5) of the Act. KDEN Broadcasting Co., supra.
D. This Matter is Not Appropriate for Deferral
In its answer to the complaint, and again in its brief Respon-
dent contends that this matter is appropriate for deferral. There
are two prongs to this argument. As an initial matter, Respon-
dent argues that the instant dispute is covered by the standstill
agreement which, it contends, is a bilateral solution to the issue
of Pena’s rights to represent employees. In addition, Respon-
dent cites to the parties’ collective-bargaining agreement which
contains a broad grievance arbitration provision.
It is well settled that the Board has “considerable discretion
to defer to the arbitration process when doing so will serve the
fundamental aims of the Act.” Wonder Bread, 343 NLRB 55,
55 (2004) (citations omitted). As the Board has held, deferral is
appropriate when the following factors are present:
[T]he dispute arose within the confines of a long and produc-
tive collective-bargaining relationship; there is no claim of
employer animosity to the employees’ exercise of protected
statutory rights; the parties’ agreement provides for arbitration
of a very broad range of disputes; the arbitration clause clearly
encompasses the dispute at issue; the employer has asserted
its willingness to utilize arbitration to resolve the dispute; and
the dispute is eminently well suited to such resolution.
Id. (citing United Technologies Corp., 268 NLRB 557, 558
(1984)).
The standstill agreement states that employees of either the
Respondent or the Union who have been found to have engaged
in racial, ethnic, or cultural slurs shall be removed from their
positions. Here, there is, at best, a continuing dispute over
whether Pena had engaged in such misconduct. No party has
brought any formal determination in this regard to my attention.
Respondent points to the fact that the extension to the standstill
agreement provides for binding arbitration. Respondent’s ar-
gument ignores the obvious fact that on the very date that this
extension agreement was entered into, an arbitration on Pena’s
expulsion from Respondent’s other facilities was conducted
before the very same arbitrator who supervised the standstill
agreement. Clearly, Respondent could have agreed to submit
the issue of Pena’s access to the Regency Heritage to arbitra-
tion but declined to do so, notwithstanding the congruence of
the issues presented to the arbitrator and those raised here. In
my view, this does not indicate a willingness to utilize arbitra-
tion to resolve the dispute, but suggests precisely the opposite.17
Finally, and in any event, it is too late to rely upon the stand-
still agreement to provide a vehicle to arbitrate the dispute at
issue here. 18
Respondent further argues that the matter should be deferred
to arbitration based upon the collective-bargaining agreement
which has since been entered into by the parties. As noted
above, however, the applicable grievance arbitration provision
pertains only to those disputes arising during the term of the
agreement. Thus, the collective-bargaining agreement does
not, by its terms, provide a mechanism either to resolve the
underlying statutory issue or to provide an appropriate remedy
for the alleged violations herein.
Accordingly, I conclude that deferral is not appropriate in
this instance.
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, and a health care institution within the meaning of Section
2(14) of the Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.

17 Moreover, Respondent has pointed to no provision in either the
standstill agreement or the extension thereto which would provide for
the arbitration of or a remedy for Respondent’s alleged unilateral
change of union visitation rights. The Board has long held that it will
not defer on an issue if it closely related to another issue that is not
deferrable. Everlock Fastening Systems, 308 NLRB 1018, 1018 fn. 8
(1982); 15th Avenue Iron Works, 301 NLRB 878, 879 (1991), enfd. 964
F.2d 1330 (2d Cir. 1992).
18 Although the extension to the standstill agreement is effective by
its terms until December 31, 2008, it is clearly superseded by the col-
lective-bargaining agreement which was subsequently entered into by
the parties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1036
3. By barring union representatives from its facility since on
or about June 21, Respondent has violated Section 8(a)(1) and
(5) of the Act.
4. By refusing to deal with Hector Pena, a union representa-
tive duly appointed to represent Respondent’s employees, at its
facility since on or about June 21, Respondent has violated
Section 8(a)(1) and (5) of the Act.
THE REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, I recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. The standard remedy to
correct an employer’s unilateral changes is to return to the
status quo which existed prior to the institution of the changes
in question. However, as noted above, the parties have since
entered into a collective-bargaining agreement containing a
union visitation clause which differs in certain material respects
from the status quo as it existed prior to Respondent’s unlawful
unilateral change. In this circumstance, the standard remedy is
no longer appropriate, since the matter has been bargained and
agreed upon by the parties.19 Accordingly, I recommend that the
Respondent be ordered to rescind the restrictions that it im-
posed upon the access of union representatives to its facility as
well as those it imposed upon its dealings with Pena, and his
rights to be at its facility, consistent with the undertakings con-
tained in the parties’ collective-bargaining agreement and that it
notify the Union, within 14 days of the date of this decision,
that it has done so.
[Recommended Order omitted from publication.]

19 See Essex Valley Visiting Nurses Assn., 343 NLRB 817, 843
(2004) (and cases cited therein).