Vista Del Sol Health Services, Inc. dba Vista Del Sol Healthcare

National Labor Relations Board - Administrative Judge Opinions

Jun 5, 2015

31-CA-115318 (N.L.R.B. Jun. 5, 2015)

JD(SF)–24–15
Los Angeles, CA
i
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
VISTA DEL SOL HEALTH SERVICES, INC.
DBA VISTA DEL SOL HEALTHCARE
Cases 31-CA-115318; 31-CA-115332;
31-CA-116089; 31-CA-116096;
31-CA-116481; 31-CA-116483;
and 31-CA-116484; 31-CA-116485;
31-CA-116486; 31-CA-116487;
31-CA-116488; 31-CA-118682;
31-CA-118685; 31-CA-118686;
31-CA-137770; 31-CA-138045;
31-CA-140185
SEIU-ULTCW, SERVICE EMPLOYEES
INTERNATIONAL UNION, UNITED LONG TERM CARE WORKERS
Juan Carlos Ochoa Diaz, Esq.,
Simone Pang Gancayo, Esq., and
Lynn Ta, Esq., for the General Counsel.
Yolanda Flores-Burt, Esq.,for the Respondent.
Sean D. Graham, Esq.,for the Charging Party.
Table of Contents
DECISION ......................................................................................................................................1
Statement of the Case ......................................................................................................................1
Findings of Fact ...............................................................................................................................2
I. Jurisdiction ..............................................................................................................................2
II. Statement of Facts..................................................................................................................2
A. Background and Respondent’s Operations........................................................................2
B. The Union’s Early Organizing Efforts...............................................................................4
C. October Employee Raises ..................................................................................................6
D. October 3 Contract for Housekeeping Services ................................................................6
E. CNAs on the Night Shift and Events of October 6/7.........................................................7
F. Union Authorization Cards ................................................................................................9
G. Events in Mid-October ....................................................................................................11
1. October 14 petition and march .....................................................................................11
2. Meetings and conversations during the week of October 14 ........................................12
3. Valdivia’s distribution of voluntariness forms and inquires to employees,
October 15–22 ..............................................................................................................14
JD(SF)–24–15
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H. October 18 Terminations of Martha Aparicio and Delfina Sanchez ...............................16
I. Discharge of Housekeepers and Maintenance Worker .....................................................18
J. Post-Discharge Events ......................................................................................................19
1. Employee visits to facility in November 2013 .............................................................19
2. CNA raises in December 2013 .....................................................................................19
3. Conversations between CNA Remedios Lopez and
DON Jeri Warner in January 2014 ..............................................................................19
4. October 14 petition and march 20
III. Decision and Analysis ........................................................................................................20
A. Credibility Legal Standards and General Findings..........................................................20
B. The Section 8(a)(1) Allegations.......................................................................................22
1. Alleged instructions not to talk to the Union................................................................22
a. CNAs Remedios Lopez and Marcos Salvador 22
b. Housekeeper Rosa Lopez 24
2. Alleged wage increases—CNA Maria Ramirez and Housekeeper Romana Lopez.....24
3. Alleged interrogation and surveillance—CNA Maria Ramirez ...................................25
a. Interrogation 26
b. Surveillance 27
4. Alleged interrogation—Housekeeper Carmelina Perdomo..........................................28
5. Alleged interrogation and coercion—Maintenance Worker Genaro Meza..................29
6. Alleged interrogation—Maria Ramirez........................................................................30
7. Alleged interrogation—Genaro Meza ..........................................................................31
8. Telling employees to leave the premises......................................................................31
9. Promulgation and enforcement of rules .......................................................................32
a. .Rule Prohibiting Logos 32
b. Rule more strictly enforcing tardiness policy 34
10. Alleged unlawful polling............................................................................................34
11. Interrogation and promise of enhanced job security—Housekeeper Rosa Lopez 36
12. Threat of Facility Closure...........................................................................................37
C. Section 8(a)(3) allegations ...............................................................................................38
1. CNAs Martha Aparicio and Delfina Sanchez ..............................................................38
2. Housekeepers and maintenance employee 42
3. December 2013 wage increase 45
a. Timeliness 45
b. Merits of the allegation 47
D. Request for Bargaining Order..........................................................................................48
E. Section 8(a)(5) Allegations ..............................................................................................49
1. Terminations of CNAs Martha Aparicio and Delfina Sanchez 50
2. Termination of Maintenance Worker Meza 50
3. Discharge of housekeeping employees 50
F. Respondent’s Request for Litigation Fees .......................................................................51
Conclusions of Law.......................................................................................................................51
Remedy..........................................................................................................................................51
Order..............................................................................................................................................53
APPENDIX ...................................................................................................................................56
JD(SF)–24–15
Los Angeles, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
VISTA DEL SOL HEALTH SERVICES, INC.
DBA VISTA DEL SOL HEALTHCARE
Cases 31-CA-115318; 31-CA-115332;
31-CA-116089; 31-CA-116096;
31-CA-116481; 31-CA-116483;
and 31-CA-116484; 31-CA-116485;
31-CA-116486; 31-CA-116487;
31-CA-116488; 31-CA-118682;
31-CA-118685; 31-CA-118686;
31-CA-137770; 31-CA-138045;
31-CA-140185
SEIU-ULTCW, SERVICE EMPLOYEES
INTERNATIONAL UNION, UNITED LONG TERM CARE WORKERS
Juan Carlos Ochoa Diaz, Esq.,
Simone Pang Gancayo, Esq., and
Lynn Ta, Esq., for the General Counsel.
Yolanda Flores-Burt, Esq.,for the Respondent.
Sean D. Graham, Esq.,for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was tried in Los Angeles,
California, on January 21–23 and 26–28, 2015. The Service Employees International Union,
United Long Term Care Workers (Charging Party or Union) filed above-captioned charges on
various dates between October 18, 2013, and November 3, 2014.1 The General Counsel issued
the complaint before me, consolidating all of the charges, on December 15, 2014. Vista del Sol
Healthcare (the Respondent or VDS) filed a timely answer denying all material allegations and
setting forth affirmative defenses.
The complaint alleges that the Respondent violated Sections 8(a)(5), (3), and (1) of the
National Labor Relations Act (the Act) during the course of an organizing drive beginning in
August 2013. The specific allegations, detailed below, concern alleged interrogations, promises

1 All dates are in 2013 unless otherwise indicated.
JD(SF)–24–15
2
of benefits and increases in benefits, threats, and the discharge of nine employees. The General
Counsel contends that because the Union achieved majority support, a bargaining order is
warranted, and alleges the Respondent granted wage increases and terminated employees without
bargaining.
5
On December 12, 2014, the Regional Director filed a petition for a temporary injunction
under Section 10(j) of the Act in federal district court. See Mori Rubin v. Vista Del Sol Health
Serv., Inc., Case 2:14-CV-09534 MMM-FFM. On January 21, 2015, the Honorable Margaret M.
Morrow granted the Regional Director’s petition, finding a likelihood of success on all Section
8(a)(1), (3), and (5) allegations, ordering reinstatement of the discharged employees, and 10
entering a Gissel bargaining order.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent,2 I make the
following15
FINDINGS OF FACT
I. JURISDICTION
20
The Respondent is a corporation that provides skilled nursing care and assisted living to
residents of its facilities in Los Angeles, California. The Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act,
and that it is a health care institution within the meaning of Section 2(14) of the Act. It is
undisputed that the Union is a labor organization within the meaning of Section 2(5) of the Act.325
II. STATEMENT OF FACTS
A. Background and the Respondent’s Operations
30
VDS operates a nursing facility located in Los Angeles, California. One part of the
facility is a 50-bed skilled nursing facility, commonly referred to as “Vista.” The other side is a
30-bed assisted living facility called Case del Mar, commonly referred to as “Casa.” The two
buildings are on the same property. (Tr. 34–35; R Exh. 3.) James Preimesberger is VDS’s
president and owner.35

2 The Charging Party joined in the General Counsel’s brief.
3 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R Exh.” for the
Respondent’s exhibit; “GC Exh.” for the General Counsel’s exhibit; “GC Br.” for the General Counsel’s
brief; and “R Br.” for the Respondent’s brief. Although I have included several citations to the record to
highlight particular testimony or exhibits, I emphasize that my findings and conclusions are based not
solely on the evidence specifically cited but rather are based my review and consideration of the entire
record.
In its answer, the Respondent did not admit or deny the Union is a labor organization. Based on the
rationale set forth in the Respondent’s brief and supported by record evidence, I find the Union is a labor
organization. (R Br. p. 94, fn. 16.)
JD(SF)–24–15
3
From October 1 until at least October 14, VDS had roughly 60 employees. Rosa
Valdivia (Valdivia) is the administrator, in charge of the overall operation of the facility, and
serves as the top management official at the facility.4 (Tr. 33–34.) Licensed Vocational Nurse
Valorie Hanson is the social services designee and reports to Valdivia.5 (Tr. 639.) The
housekeeping staff, consisting of 6–7 housekeepers, directly reported to Valdivia until late 5
October.6 (Tr. 235.)
The director of nursing (DON), who during the relevant time period was Jeri Warner,
reports to Valdivia. 7 Approximately 5 licensed vocational nurses (LVNs) and 5 registered
nurses (RNs) report to the director of nursing. One of the LVNs or RNs serves as the charge 10
nurse for each shift. Ingrid Castillo worked at VDS as an LVN and charge nurse at night for
about four years prior to her resignation in March 2014. (Tr. 507.) Other charge nurses during
the relevant time period included Jennifer Abaunza and Arcadio DeBorja.
VDS employs roughly 30 certified nursing assistants (CNAs). The charge nurses direct 15
the CNAs’ work. (R Exh. 3.)8
Esther Cuellar, the registered nurse (RN) supervisor, makes the schedule for the nursing
staff. (Tr. 242, 582.) Cuellar also interviews CNAs and makes recommendations about which
applicants VDS should hire. She reports to Vida Zelaya, the staff developer. Zelaya is in charge 20
of educating the nursing staff and conducting training. She and Cuellar instruct staff on
workplace rules and policies. (R Exh. 3.) Cuellar also conducts new employee orientation. (Tr.
584.)
VDS has a dietary department, overseen by Supervisor Rafael Vasquez. He supervises 25
the cooks and dishwashers. VDS employs 2 administrative staff, Esmerelda Valdivia (E.
Valdivia), and Vanessa Valdivia (V. Valdivia), who work as clerical employees.9 (R Exh. 3.)
During new employee orientation, employees receive VDS’s employee handbook. (Tr.
587.) VDS maintains a policy prohibiting sleeping on the job, and the employees are told about 30
this during orientation. The penalty for sleeping on the job is termination of employment. (Tr.
598; R Exh. 2, p. 18.) Employees are permitted to sleep during their breaks when they are off the
clock. (Tr. 616.)
Nurses and CNAs work in three shifts: 7am-3pm (morning), 3pm-11pm (afternoon), and 35
11pm-7am (night). Nurses on each shift are entitled to a ½-hour lunch break and two 10-minute
rest periods. Employees clock out for the lunch break but not for the rest periods.

4 It has come to my attention that, since the time of the hearing, VDS has been sold. Any use of the
present tense in this decision reflects the status at the time of the hearing.
5 Hanson is an admitted supervisor.
6 I state this in the past tense because, as detailed below, the housekeeping function was outsourced in
October 2013.
7 As discussed below, Warner was terminated following the events at issue in the complaint.
8 Though I have cited to parts of R Exh. 3, I do not credit any of the hearsay comments, particularly
those that contradict witness testimony, unless specifically stated herein,
9 Esther and Vanessa are Rosa Valdivia’s daughters. (Tr. 242.) Esther worked full time and Vanessa
worked part time. (R Exh. 3.)
JD(SF)–24–15
4
Under a California law referred to as 3.2, all facilities need to provide 3 hours and 20
minutes of care for each patient each day. To meet this number, employees must work 7.5 hours.
When employees come in late and leave early, this creates a problem. VDS had trouble getting
employees to work enough hours, particularly on the 3-11pm shift. (Tr. 620–622.) 5
Employees were permitted to come late and leave early as long as they punched in or out
within 7 minutes of their scheduled shifts. This 7-minute grace period was not part of the
employee handbook but has been a longstanding policy at VDS. (Tr. 619, 739.) Employees who
were late beyond the grace period were not disciplined.10 On occasion, there were meetings to 10
remind employees about clocking in and working a full shift. (R Exh. 8.)
In mid-May 2013, a binder with employees’ I-9 information was taken from Valdivia’s
office.11 (Tr. 682; R Exh. 3.)
15
B. The Union’s Early Organizing Efforts
Union organizing efforts began in late July/early August 2013. (Tr. 531.) The unit the
Union was seeks to represent consists of:
20
Included: All full-time, part-time, and on-call Certified Nurse Assistants (CNA),
restorative nurse assistants (RNA), caregivers, Housekeeping, Laundry, Cooks, Dietary
aids, maintenance, and activity assistants.
Excluded: All other employees, confidential employees, managers, office, clerical 25
employees, professional employees, guards and supervisors as defined in the [A]ct.
Housekeeper Rosa Lopez first heard of the Union around July of 2013.12 She spoke to
coworkers about the Union and asked whether they would be interested in supporting the Union.
During this time period, Valdivia called Rosa Lopez one evening at approximately 7 p.m. and 30
told her employees had informed her that people were visiting them at their homes. She told
Rosa Lopez not to let them in because they were thieves. (Tr. 235–237.)
Housekeeper Eliza Mayorga first heard of the Union in August 2013. She attended 3–4
meetings and encouraged coworkers to come to the meetings. (Tr. 336.) CNA Martha Aparicio35
heard about the Union from Sandra Cerros in mid-August 2013. She said she would support the
Union, and she attended 5–6 union meetings. (Tr. 127–128.) CNA Marcos Salvador attended
about 5 union meetings. He spoke with two coworkers, Jeanette Aguilera and Zenon Perez, about
the benefits of the Union. (Tr. 474, 478.)
40

10 For example, on July 25, 2013, Hanson was 15 minutes late for her shift. She was not disciplined.
(Tr. 664; GC Exh. 99.) Many more examples appear below.
11 There is no indication the Union was involved in organizing employees at VDS in May, and I make
no presumption that anyone from the Union was involved in this incident.
12 Rosa Lopez attended about 10 union meetings.
JD(SF)–24–15
5
On August 7, CNA Maria Ramirez called Valdivia and asked if VDS had sent someone
to her house. Valdivia responded that she did not send anyone to Maria Ramirez’s house, and
the individual probably knew her address because of a theft from the office. (Tr. 267, 677–678;
R Exh. 3.)
5
Hanson recalled the Union visited her home twice in the early summer of 2013. During
the first visit, at about 8:30 p.m., Hanson answered the door and the individual identified himself
as being from the Union. She found him aggressive because he insisted she needed to talk to
him. The individual came back a couple of days later and left his phone number with Hanson’s
son. She told Valdivia about the incidents, and told her she did not know how the union person 10
had gotten her address. She conveyed that the union representative was aggressive and said she
was scared. Valdivia told her that a booklet containing employee names and addresses was
missing from VDS. (Tr. 652–655.)
According to Valdivia, Hanson called her at about 4:30 the afternoon of August 7, and 15
said a man was at her house. The individual identified himself as being from VDS and said he
had questions about the facility. Hanson reported that and that the individual was pushy and
persistent, and she felt uncomfortable for her family’s safety. (R Exh. 3; Tr. 679).
Valdivia claims she first learned of the Union when Maria Sura, a dishwasher, reported 20
on August 8 that someone from the Union had visited her.13 Valdivia received a report that from
Zeny Tabak that same day, and later received a similar report from Blanca Valle. (Tr. 68, 680–
681; R Exh. 3.) The employees were upset that someone had obtained their addresses.
Housekeeper Carmelina Perdomo first became aware of the Union in August or 25
September 2013. (Tr. 380.) In mid-September, Valdivia asked Perdomo if anyone had visited
her at her home. Perdomo responded she had been visited. Valdivia asked the name of the
individual, and Perdomo told her it was Jose Manzano. (Tr. 383.) According to Valdivia, on or
around October 16, Perdomo asked to speak to her and said she was being harassed and called a
traitor by her coworkers. She said nobody was willing to be her friend if she did not sign with 30
the Union. She did not want to give names. Valdivia told her nobody had the right to harass her.
(Tr. 684–685; R Exh. 3.)14
Housekeeper Romana Lopez learned about the Union in early October and attended a
couple of meetings. (Tr. 354–355.) 35
Yolanda Velasco, who works in the kitchen at VDS, said the Union visited her many
times, but she could not recall any dates, or even the year. She received a telephone call from
someone at the Union named Jose. He asked her if she was interested in supporting her
coworkers, and she replied that she was not. She told him that she could not support the Union 40
because they sometimes take part in strikes, which are inconsistent with her religious values.

13 This was the first time Valdivia claims she heard mention of a Union. (Tr. 680; R Exh. 3.)
14 I do not credit the statements Valdivia attributes to Perdomo about being harassed by coworkers
and called a traitor. They are refuted by Perdomo herself, who testified she was not called a traitor or
threatened by anyone about the Union. (Tr. 381–382.) I note the transcript erroneously states “trader”
instead of “traitor.”
JD(SF)–24–15
6
According to Velasco, Jose told her that a lot of her coworkers were in the Union, and that if she
did not sign, she would have to pay “double the quote.” (Tr. 556–559.)
During August 2013, Valdivia held a series of meetings with employees. Valdivia told
employees a folder containing I-9 information was stolen and she had heard reports of employees 5
being visited at their homes. She told them to be careful, and instructed them not to open their
doors if they did not want to. (Tr. 47.)
During one of these meetings, Valdivia and Cuellar met with Remdios Lopez, Marcos
Salvador, Maria Ramirez, and Reyna Artola, Elfega Lopez, and some other employees by the 10
nurses’ station. Valdivia said that if anyone knocked on their doors, they should not let them in
because someone had gone into her office and stolen personally identifiable information.15 (Tr.
405–406.) She said that there was someone pretending to be from the Union, and she described
him, stating he had a tattoo. She told them not to open the door because they were trying to see
what the employees had so they could come in and rob them. She said to let her know if anyone 15
came to their houses. (Tr.475–476.)
In September 2013, Cuellar told a group of housekeepers and CNAs, including Perdomo
and Mayorga, not to answer the door if they were visited at home because the people visiting
could be thieves. (Tr. 385.) 20
C. October Employee Raises
Employees do not receive regularly scheduled raises. Instead, raises are granted
dependent upon Respondent’s financial ability to authorize any increase in pay. (GC Exh. 85, 25
pp. 1-2.)
On October 2 or 3, Valdivia told Maria Ramirez she was getting a raise. On October 10,
for the pay period ending September 30, Maria Ramirez received a wage increase of 50 cents per
hour, from $8.75 per hour to $9.25 per hour. (GC Exh. 64.) Prior to that time, her last raise was 30
in 2011. (Tr. 266.)
Housekeeper Romana Lopez received a raise at this same time, from $10.00 per hour to
$10.50 per hour. (GC Exh. 64.)
35
D. October 3 Contract for Housekeeping Services
On October 3, Valdivia signed a contract with an outside company called Pro-Clean to
provide housekeeping services for VDS. (GC Exh. 56.) The agreement provided that Pro-Clean
would utilize VDS’s existing housekeeping equipment. The terms of the agreement began on 40
October 3, to continue until canceled by either party.
The decision to discharge housekeeping employees and subcontract out housekeeping to
Pro Clean was made by “corporate,” not by Valdivia. (Tr. 72.) Donna and another person from

15 Remedios Lopez placed this meeting later, but the subject matter of the meeting is more in line with
Valdivia’s recollection of her meetings during this time period.
JD(SF)–24–15
7
VDS’s corporate offices told Valdivia that the housekeeping department was operating over
budget, so they had decided to contract out the department. Valdivia had no input into the
decision.16 (Tr. 704.)
Someone from Pro-Clean called Valdivia toward the end of August/beginning of 5
September and told her they were going to come look at the facility. The individual prepared a
quote and Valdivia sent it to corporate. (Tr. 719.)
For the 8-month period ending August 31, 2013, the housekeeping department was
$8,712 over budget. The other departments over budget were maintenance, by $8,311, nursing 10
by $10,150, and administration, by $47,333. Overall, losses for that time period were $28,703.
(R Exh. 5.) Valdivia reported that housekeeping and maintenance were chosen for
subcontracting because those were the only departments that did not impact patient care. (Tr.
707.) For the last 2 years the company had been operating in the red, and Valdivia had heard
comments from the corporate office that they might need to shut down the facility if financial 15
performance did not improve. (Tr. 711.) The losses in 2012 were $336,562, and the losses in
2013 were $249,193. (R Exh. 6.)
The housekeeping employees were not notified of this contract, and continued to work as
normal. The housekeepers were scheduled into November and their vacation requests were 20
granted into November. (Tr. 60–61, 247, 395; GC Exhs. 61–62.)
E. CNAs on the Night Shift and Events of October 6/7
Typically, three CNAs work the night shift in the main building, and one or two work at 25
the Casas. The employees who work in the Casas come to the main building regularly. (Tr. 125,
161.) During the relevant time period, the charge nurses on the nightshift were Ingrid Castillo
and Jennifer Abaunza.
CNA Martha Aparicio worked at VDS’s main building from June 2007 through October 30
18, 2014, on the night shift. Other CNAs on the night shift included Lerma Davis, who has
worked for VDS for almost 10 years; Maria Lopez, who has worked for VDS since 1990; and
Hermila Negrete, who worked for VDS roughly 5 years. CNA Delfina Sanchez worked on the
nightshift at VDS for 3 weeks, from the end of September until October 18, 2013. (Tr. 123–125,
161, 178, 201.) 35
CNAs working the nightshift make rounds during the first couple hours of their shifts.
This includes checking each room to see what patients needs, and then fulfilling those needs.
During the relevant time period, they usually clocked out after this for their ½-hour break, which
tended to be somewhere between 12:30 and 2 a.m. They generally took their actual breaks later, 40
when things were quieter, which was usually around 3:30-4 a.m.17 (Tr. 126–127, 132, 172–173,

16 At another point during her testimony, Valdivia said she was part of the discussions and
recommended that VDS subcontract housekeeping, but could not recall who at corporate she spoke with
about this. (Tr. 89.)
17 According to Cuellar, Valdivia, and Hanson, it was not a common practice for CNAs to work
through the lunch break and take their actual breaks later. (Tr. 599, 646–647, 701–702.) For the reasons
JD(SF)–24–15
8
191, 203, 523–524.) If there was not time, they would sometimes not take a meal break. The
CNAs would tell the charge nurse when they were going to take their breaks. (Tr. 132–133.)
Patients communicate needs through use of a light system. A patient can activate the
lights, which are at the nurses’ station and were accompanied by a sound, if they need anything 5
in the night. (Tr. 127.) Some patients, however, are not able to move, so it is important for the
nurses on the night shift to check in on them. CNAs on the night shift turn patients who are
unable to move every 2 hours to prevent bedsores. (Tr. 594.)
It is common for CNAs on the nightshift to take naps during their breaks. When there are 10
no lights on, the CNAs routinely sit in four chairs in front of the nurses’ station and close their
eyes when things are not busy. (Tr. 137, 191–194, 210–211, 517.) CNAs check with the charge
nurse before taking naps. Martha Aparicio, Maria Lopez, Lerma Davis, Delfina Sanchez, and
Aurora Rodriguez took naps on the nightshift in view of the charge nurses. Nobody was
previously disciplined for taking naps. (Tr. 138–140, 173–174, 183, 211–212, 517.) 15
Abaunza was the charge nurse for the night shift on October 6–7. Maria Lopez was
scheduled to work the nights shift at Casa, and Martha Aparicio and Delfina Sanchez were
scheduled to work in the main building. Maria Lopez clocked in at 11:07 p.m., clocked out for
her break at 12:33 a.m., and clocked back in at 1:01 a.m. She completed her shift at 7:05 a.m. 20
(Tr. 64, 70.) Aparicio signed in at 11:10 p.m.,18 signed out for her meal break at 1:30 a.m., and
signed back in at 2 a.m. (GC Exh. 44; Tr. 132.) In line with her usual practice, she did not take
actually take her meal break from 1:30–2 a.m. Aparicio asked Abaunza for a break around 4 a.m.
that day. She was with Delfina Sanchez and Maria Lopez. It had been a very heavy night, and
the three CNAs sat on the chairs by the nurses’ station, put up their feet on adjacent chairs, and 25
rested. All three employees were resting in the same manner. She took her break and fell asleep
for about 25 minutes. Delfina Sanchez and Maria Lopez each slept for about 15 minutes. (Tr.
133–134, 184–186, 207–208.)
At about 4:20 a.m. on October 7, Thomas Adelman, the son of a resident, reported seeing 30
employees asleep at VDS. He used his phone to take photographs of the employees. (Tr. 94,
97–100.) One of the individuals picture sleeping was a hospice worker tending to his mother in
her room. (GC Exh. 36.) This individual did not work for VDS. The other employees were by
the nurses’ station. The employees pictured sleeping were Abaunza, Aparicio, and Delfina
Sanchez. In addition to the individuals he photographed, Adelman saw another CNA sleeping 35
off to the left side of the room. (Tr. 103, 135; GC Exhs. 37–39.) This was Maria Lopez, who
had a sweater over her face and had closed her eyes. (Tr. 135, 183–186.) The charge nurse
eventually woke up and raised her head.19 (Tr. 104.) Adelman told Abaunza he had taken the
photographs. Abaunza told the CNAs about the pictures. She instructed the CNAs to just
continue to work as normal. (Tr. 134, 209.) 40

set forth in the analysis section below, I do not credit this testimony.
18 When she was hired, she told Esther Cuellar she would not be able to start until about 11:20 or
11:30 because she had an underage child she could not leave home alone. She was permitted to come in
late, and did so regularly without discipline. (Tr. 151–152.)
19 Adelman mistakenly referred to this individual as the receptionist.
JD(SF)–24–15
9
Later that morning, Adelman came back and showed the photographs to Valdivia. At
Valdivia’s request, he emailed her the photographs. He told Valdivia he saw five individuals
sleeping. (Tr. 106–109.)
DON Warner told Charge Nurse Castillo about the incident and showed her the pictures. 5
Warner told Castillo to make sure the CNAs do not take breaks at the same time and to make
sure Castillo was always at the nurses’ station. Warner said she understood how hard it was to
work the night shift, and it was okay for the CNAs to close their eyes, but to make sure they did
not take breaks at the same time, and that their eyes were open when they were not on break.
Warner did not state the individuals involved would be disciplined. (Tr. 508–509.) 10
Two days after the incident, Castillo spoke with Davis and Negrete. She told them a
family member came to VDS and took pictures of CNAs sleeping. She told them that they were
going to start taking turns taking their breaks. (Tr. 171–172.)
15
Around this same time, Castillo told Martha Aparicio and Delfina Sanchez that she had
spoken to the Warner and was told not to worry. She told them if they needed a nap they just
needed to make sure somebody else could relieve them. (Tr. 136–137, 509-510.) After the
incident and after Castillo's meeting with Warner, Sanchez and Aparicio worked their regularly
scheduled shifts on October 7, 8, and 11–14, 2013, without issue.20
During the week following October 7, CNA Lerma Davis took naps during her break in
view of Charge Nurse Castillo, and was not disciplined. CNAs Delfina Sanchez, Hermila
Negrete, Aurora Rodriguez, and Maria Lopez all napped while on break during this same time
period, in view of Castillo. (Tr. 175–176, 213.)25
F. Union Authorization Cards
During the week of October 7, employees started to sign union authorization cards. The
union authorization cards stated: 30
I hereby authorize SEIU, its agents or assigns, to act for me as my exclusive
representative for the purpose of collective bargaining with my employer regarding
wages, benefits, and other terms and conditions of employment. I understand and agree
that this card may be used to establish majority support among the employees in the unit 35
in which I am employed and obtain voluntary recognition from my employer without an
NLRB election.
(GC Exhs. 2–33.)
40
Rosa Lopez signed a union authorization card the week of October 7. She asked almost
all of her coworkers to sign cards, and collected cards from about 5 of them. (Tr. 237–238.)
Restorative nurse assistant (RNA) Reyna Artola voluntarily signed a union authorization card on
October 10. (Tr. 440; GC Exh. 27.)
45
CNAs Lerma Davis, Martha Aparicio, Marcos Salvador, Delfina Sanchez, Remedios
Lopez, Dafny Cobar, Ivania Rueda, Jeannette Aguilera, Maintenance Worker Genaro Meza, and
JD(SF)–24–15
10
Housekeeper Elisa Mayorga, each voluntarily signed authorization cards on October 11. (Tr.
128, 163–164, 204–205, 290–291, 304–305, 316, 337–338, 403–404, 476–479; GC Exhs. 2, 4, 6,
8, 11, 12, 15, 17, 18, 22, 26.) Delfina Sanchez received her card from Sandra Cerros.20 (Tr.
204–205.) Other employees who signed cards on October 11 were Danely Suazo, Guadalupe
Figueroa, Maria Rodriguez, Mirna Scoovia, Reyna Artola, and Silvia Figueroa. (GC Exh. 3, 9, 5
20, 23, 27, 32.)
Zenon Bernardino, the cook at VDS for the last 26 years, voluntarily signed a union
authorization card on October 12. (Tr. 467–469; GC Exh. 33.) Elfega Lopez, Kiran Singh,
Omela Cuesta, Petrona Davila, Rosalba Salazar, and another employee21 also signed an 10
authorization cards on October 12. (GC Exhs. 5, 14, 21, 24, 25, 30.)
On October 13, the following individuals voluntarily signed Union authorization cards:
CNAs Maria Lopez, Maria Ramirez, and Erika Salguero, and Housekeepers Maria Menjivar22
and Romana Lopez. (Tr. 179–180, 283, 355–356, 367–368, 460–462; GC Exhs. 7, 17–19, 28.) 15
CNA Hermila Negrete voluntarily signed an authorization card on October 14. (Tr. 188–189;
GC Exh. 10.) Juana Navarlete and Sandra Cerros also signed authorization cards on October 14.
(GC Exhs. 13, 31.)
Perdomo did not sign a union card because some friends told her she could lose her job if 20
the Union did not win. Mayorga asked her to sign a card, but Perdomo told her no. Mayorga did
not call her a traitor. She was not threatened about signing a union card, and nobody made
promises to her to get her to sign a card. (Tr. 380–382.)
Velasco signed a card Marcos Salvador gave to her at work. She felt forced to sign 25
because the Union had majority support, and she feared she would have to pay double. (Tr. 562–
563.)
All told, As of October 14, 32 of the 46 employees in the proposed unit had signed union
authorization cards, and designated the Union as their exclusive collective-bargaining 30
representative.23 (GC Exhs. 2-33, 94.)
35

20 Valdivia stated that CNA Sandra Cerros told her around October 17 that she felt forced to sign the
petition. (R Exh. 3; Tr. 685.) Sandra Cerros was not a witness in this proceeding. Given Delfina
Sanchez’s unrefuted testimony that Cerros gave her an authorization card to sign, I find the hearsay
evidence is not reliable and it is insufficient to prove Cerros felt forced to sign the petition.
21 The name on GC Exh. 21 is illegible.
22Maria Menjivar is now married and her surname is Valladares. She is referred to in this decision by
her maiden name.
23 This does not include a card from Velasco, who testified she signed because she feared she would
have to pay double if she didn’t sign a card.
JD(SF)–24–15
11
G. Events in Mid-October
1. October 14 petition and march
5
As Maria Ramirez was punching out at about 3 p.m. on October 14, Valdivia asked if
“they” had been back to look for her. She responded that they had, but her son told them to look
for her at work. Valdivia said she knew who “they” were, and Maria Ramirez responded that she
did too. Valdivia asked what the cards were that they were handing out, and asked Maria
Ramirez to come to her office. Maria Ramirez said that they were going to take her a list, and 10
she had signed it. Valdivia asked why, and Maria Ramirez responded that she liked her job, but
she wanted to be valued and respected. She said that during the in-service meetings with Vida
Zelaya, they were humiliated. Valdivia told her VDS was a good place to work, and that she
could change her mind if she wanted to. Valdivia told Maria Ramirez that if she put her trust in
the Union, the two of them would not be able to speak as they were doing. She also told her not 15
to comment about the raise she had been given because VDS had not done evaluations due to the
losses it was experiencing. (Tr. 269–273.)
A short time later, a group of about 25 off-duty employees and union field organizers
Eduardo Gutierrez, Paul Vellanoweth, and Jose Manzano, met about two blocks away from the 20
hospital. The employees were given T-shirts bearing the Union’s name to wear. They all
proceeded together and approached Valdivia at the nurses’ station at about 3:30–3:45 p.m. (Tr.
141, 239, 481.) Employee Marcos Salvador spoke, and told Valdivia the employees were
marching to communicate the desire for the Union to come to VDS. (Tr. 483.) Salvador
presented Valdivia with a petition signed by 31 employees stating:25
We the undersigned employees of Vista Del Sol Healthcare Services are marching in
support of Union recognition.
An overwhelming majority of the employees have signed cards to join the union. We 30
hereby authorize SEIU–ULTCW, Service Employees International Union—United Long
Term Care Workers, its agents or assigns, to act for as our exclusive representative for
the purposes of collective bargaining with our employer regarding wages, benefits, and
other terms and conditions of employment. We represent a majority of employees who
have signed authorization cards and are requesting Vista Del Sol to sign below to grant 35
card check union recognition upon showing of a majority of authorization cards.
(GC Exh. 34; Tr. 41.)
The following employees participated in the march: Marcos Salvador, Martha Aparicio, 40
Lerma Davis, Delfina Sanchez, Aurora Rodriguez, Reyna Artola, Remedios Lopez, Rosalba,
San, Jeannette, Rosa Lopez, Ivania Rueda, Angelica, Silvia Figueroa, Zenon Perez, Eliza
Mayorga, Maria Ramirez, and Genaro Meza, among others.24 (Tr. 131, 141, 165, 206, 239, 305–
306, 338–339, 407, 480.) They all wore purple shirts bearing the Union’s name. (Tr. 39, 240,
275, 307, 340.) 45

24 Not all of the individuals’ surnames are known.
JD(SF)–24–15
12
Valdivia told Salvador she did not have the authority to sign the form and she would
route it to corporate. She then told them to leave the building. (Tr. 41, 143, 240, 275, 308, 340,
409, 483.) There were no threats of violence or damage to facility. (Tr. 42.) The employees
were not loud and they did not shout, chant, or make aggressive comments.25 (Tr. 483, 350.) 5
Rosa Lopez was the last one to leave. Valdivia approached her and said, “Rosa, we know each
other.” (Tr. 241.)
Yolanda Velasco signed the petition because the Union had majority support and she
feared she would have to pay double if she did not support the Union. (Tr. 563–564; R Exh. 3.)10
CNA Maria Lopez did not sign the petition and did not march, nor did Maintenance
Employee Ramon Lopez. (Tr. 181–182, 274, 307–308, 339–340.)
Valdivia forwarded the petition to Preimesberger. (R Exh. 3.)15
Employees sometimes came to the facility on their days off to visit with residents. They
didn’t stay long and Valdivia did not have a problem with it. (Tr. 45, 241, 341, 410, 484.)
2. Meetings and conversations during the week of October 1420
During the week of October 14, management held meetings with employees about work
rules. She distributed pages of the employee handbook regarding work rules and progressive
discipline, and discussed penalties for tardiness. (Tr. 51; GC Exhs. 66–68.)
25
On October 15, employees Rosa Lopez, Genaro Meza, Eliza Mayorga, Carmelina
Perdomo, Maria Menjivar,26 and Dafny Cobar met with Valdivia, Cuellar and E. Valdivia in
Valdivia’s office.27 (Tr. 242, 318, 341–342.) Valdivia showed the employees a page from the
handbook about employee leave and conduct. She then asked what time their shifts started, and
told them they needed to come in at their scheduled time. (Tr. 243, 294, 319–320, 342–343, 30
369–371, 386–388; GC Exh. 68.) Rosa Lopez asked if there was a grace period, and Valdivia
responded that it was 7 minutes. Valdivia said the third time they were tardy, they would be
terminated. She also told them that they should come appropriately dressed, and they should not
wear shirts with logos on them. (Tr. 244, 294, 320, 343.)
35
Warner and Zelaya conducted another in-service meeting with CNAs on October 15, in
the small dining room. Roughly four employees were present, including RNA Artola and CNAs
Elfega Lopez, Rosalba Salazar, and Maria Ramirez. During the meeting, Warner said that there
would be zero tolerance for tardiness, that she was going to look at each punch-in time, and that

25 In her affidavits, Valdivia stated that the man who was with the employees yelled, “we’re in, we’re
in” as they were leaving the building. (R Exh. 3; GC Exh. 89.) During the hearing, Valdivia testified,
“They were all chanting —‘we’re in, we’re in,’” but did not say this was as they were leaving. (Tr. 41–
42.)
26 Meza and Mayorga referred to Menjivar’s first name as Isabel. (Tr. 318, 342.)
27 Cobar recalled the meeting was October 16. (Tr. 292.)
JD(SF)–24–15
13
employees arriving seven minutes late would receive a warning. Warner said she would give the
employees paperwork the following day. (Tr. 276–278.)
Valdivia, Warner, and Zelaya held another meeting on October 16, in the lobby of
Valdivia’s office. About six employees were present, including RNA Artola and CNAs 5
Salvador, Kiran Singh, Elfega Lopez, and Maria De Fatima Rosa. (Tr. 485–486; GC Exh. 66.)28
Warner asked the employees what positions they held. She said they were doing a good job, but
from this point forward there would be zero tolerance for tardiness. Warner began by stating
there was a new arrival time. The 7-minute grace period was being change to a 5-minute grace
period, and they would receive warnings if they were tardy. She also said uniforms with logos 10
would not be permitted. (Tr. 484–486.)
Warner held another meeting on October 17, with CNAs Lerma Davis, and Hermila
Negrete. She said she was going to look at the punch-in time for each employee. Warner showed
a entry for Davis showing that she had clocked in at 11:06. Davis responded that she was within 15
the 7-minute grace period. Warner responded that she didn’t know anything about that, and said
she would be monitoring their clock-in times. Davis was never given discipline about tardiness.
(Tr. 167–170.)
Warner and Valdivia conducted another meeting on October 18 in Valdivia’s office.20
RNA Artola was presented, as were CNAs Ivania Rueda and Anabela Gamez. Warner gave
them a piece of paper and told them they could not arrive late. (Tr. 308–310; GC Exh. 67.) 29
Prior to this meeting, Rueda was not aware of a policy stating employees would be disciplined
for being more than seven minutes late. The employees were provided with a copy of the policy.
(GC Exh. 68.)25
In the past, if they employees were late, they could make up the time. Rosa Lopez, Meza,
Mayorga, Menjivar, Perdomo, and Cobar were not aware of a rule stating an employee would be
fired the third time she was tardy. (Tr. 245, 295, 321, 344, 388–389.) Rosa Lopez was typically
tardy beyond the grace period once or twice a week, and had not been disciplined for it. (Tr. 30
246.) Cobar was tardy once or twice a month, but had not been disciplined for it. (Tr. 295.)
Mayorga was tardy about twice per week and was not disciplined. (Tr. 345.) Perdomo was also
tardy about twice per week and was not disciplined. (Tr. 390.) Maria Ramirez would typically
stay about 30–40 minutes after her shift 2–3 times per week to wait for Petrona or Miguel30 to
show up and relieve her. (Tr. 277–279.) Salvador had been late before without repercussions. 35
(Tr. 486–487.) None of the employees were aware of a rule stating employees could not wear
shirts with logos. (Tr. 246, 295–296, 345, 372, 390, 486–487.)
Valdivia denied there was a change in the rule, stating that tardiness was a recurring
problem she regularly addressed with the staff. She has not disciplined anyone for coming in 40
late. (Tr. 702–703.)

28 It is clear that GC Exh. 66, the notes from the in-service meeting, reflect more than one meeting, as
multiple times are reflected on the document.
29 It is clear that GC Exh. 67 likewise represents notes from more than one meeting, as multiple times
are reflected on the document.
30 The surnames of these employees is not a matter of record.
JD(SF)–24–15
14
3. Valdivia’s distribution of voluntariness forms and inquires to employees,
October 15-22
Valdivia, in consultation with Preimesberger, prepared the following document, which 5
will be referred to as the voluntariness form:
To:
From: Vista Del Sol Care Center10
Re: Union Affiliation by means other than Voluntary
Dear:
15
It has come to our attention by several of you that you have been recently approached at
your homes or within our premises seeking your signatures in support to a certain
Petition. Some of you have expressed concern with Intimidation tactics by which your
signatures were forced into a form. Concurrently with your concerns, we have received a
sheet signed by a number of employees apparently in support to a certain petition to 20
affiliate to a Union.
We need you to know that while you have the right to participate in any legal association
however, you are not obligated to do so especially as a result of illegal or intimidating
tactics. As such, this Memorandum is intended to allow you the opportunity to either 25
affirm your voluntary participation or to decline it if you desire. As your employer, we
will be dealing with these issues making sure that your free will, whichever it is, is
respected. Please know that your employment with our company will not be altered. In
any manner as a result of any decision which you choose to express but only based on
your performance under our exiting guidelines and company policy.30
Please sign and return this form by no later than October 22, 2013
I, _ ,VOLUNTARILY signed the petition seeking
Print Name35
affiliation with (SEIU-United long Term Care Workers)
I, DID NOT voluntarily signed the petition
Print Name
seeking affiliation with (SEI U-United Long Term Care workers)40
Dated:
Signature
45
(GC Exh. 82; Tr. 694.) Forms with pre-typed names were prepared for and given to Reyna
Artola, Maria Ramirez, Romana Lopez, Hermila Negrete, Remedios Lopez, Rosa Lopez, Mirna
JD(SF)–24–15
15
Segovia, Danely Suazo, Kiran Singh, Rosalba Salazar, and Dafny Cobar. (GC Exhs. 71–81.)
Forms without employee names on them were left for employees to pick up and fill out. (GC
Exh. 82; Tr. 86.)
Valdivia created the form in response to the employee concerns. (Tr. 688.) Valdivia said 5
that she was worried about the employees and wanted to know whether they had been forced to
sign union cards. Valdivia made the return date October 22 because she had heard there was to
be a vote on October 23. (Tr. 691.)
On or about October 15, Valdivia told Menjivar to come to her office. Valdivia 10
explained the document, said she was not against the Union, but wanted to know if they had been
forced to sign cards. Menjivar said she would take the letter home. She did not sign it. (Tr. 373–
374.)
The Union filed a petition for representation with Board on October 17, 2013. (GC Exh. 15
35.)
On October 18, Valdivia told Rosa Lopez she was going to allow her to take her vacation.
Valdivia asked Rosa Lopez what had happened on Monday, and she responded, “You know
ma’am because you saw me.” Valdivia then said, “I don’t know what the persons offer you, 20
those that you trust in.” Rosa Lopez responded that “the human being is like a child. That if you
have one candy you are happy.” Valdivia replied that the economy was very bad and they did
not have enough patients to give a raise. (Tr. 248–249.)
Valdivia gave Maria Ramirez a copy the voluntariness form when she was punching out 25
on or around October 18–20. She told her to read it. Ramirez did not sign it. (Tr. 296; GC Exh.
72.)
Around October 19, at about 3:15 p.m.,Valdivia asked Perdomo if someone had given her
a card to sign. Perdomo responded that Mayorga had given her a card but she had not signed it. 30
Valdivia told her to let her know if she was forced to sign a card. (Tr. 390–391.)
Around October 20, during break time, Charge Nurse Arcadio DeBorja and Maria Lopez
were in a small room referred to as the utility room. DeBorja asked Maria Ramirez whether she
was a member of the Union. Maria Ramirez was quiet in response, and DeBorja said, “Tell me.” 35
She responded yes, and said she was prepared to be fired. (Tr. 280–281.)
Romana Lopez met with Valdivia in her office the morning of October 21. Valdiva
showed her the voluntariness form and asked whether she understood it. Romana Lopez said she
did not understand the form. Valdivia asked whether she was being forced by the Union, and 40
Romana Lopez responded that she was not being forced. Valdivia told Romana Lopez to sign
the letter and she would have no problems. She showed her where sign, pointing to the line
indicating that she did not voluntarily sign the petition seeking to affiliate with the Union. (Tr.
357–358.)
45
On October 21, Valdivia asked Rosa Lopez to come to her office. She gave Rosa Lopez
a copy of the voluntariness form, with her name pre-typed on it. (GC Exh. 76.) Valdivia read
JD(SF)–24–15
16
the letter to Rosa Lopez in English and explained it to her in Spanish. She told Rosa Lopez to
sign the letter if she had felt forced to sign a union card. Valdivia said that if Rosa Lopez signed
the letter stating that she had been forced, she would have her job as long as she liked. Rosa
Lopez said she had not been forced, and she wanted the Union. (Tr. 251–252, 256.)
5
Cobar received the voluntariness form from Valdivia at about 4 p.m. on October 21.
Valdivia told her to read it and sign it. (Tr. 296; GC Exh. 81.)
That same day, Valdivia called Velasco into her office and asked her if she had signed
the petition voluntarily. Velasco responded that she had been pressured to sign. Valdivia gave 10
Velasco a copy of the form, with her name typed in, and Velasco signed, stating that she did not
sign the petition voluntarily. (Tr. 564–566; R Exh. 1.) Velasco believed that if she signed this
document, she would not be part of the Union. (Tr. 572–574.)
Around this same time, Valdivia and Meza met in Valdivia’s office. Valdivia asked 15
Meza if he knew what he had done, and asked if they had forced him to sign. She handed him a
copy of the letter and told him he could sign it if he had felt the Union had forced him to sign.
He did not respond, and Valdivia said she did not trust him anymore. She asked what the Union
was offering them. He said he was in favor of the Union because when he would go to the office
to speak with her, she would not give him attention. (Tr. 322–325.)20
Later that day, Meza spoke with Cuellar. She asked him if he was going on vacation, and
he replied that Valdivia had not approved it. Cuellar said she felt sorry for them because
Valdivia was well prepared. (Tr. 325–326.) The conversation took place between Cuellar’s
office and the laundry room. Mayorga overheard it. (Tr. 346.) 25
H. October 18 Terminations of Martha Aparicio and Delfina Sanchez
CNAs Martha Aparicio and Delfina Sanchez were issued notices of termination on
October 18.31 (GC 45–46.) That morning, at about 8 a.m. Aparicio met with the Warner and 30
Cuellar in Warner’s office. Warner spoke and Cuellar translated. Warner told Aparicio she was
not needed at VDS anymore. When Aparicio asked why, Warner mentioned the pictures
Adelman took and said she knew she was not permitted to sleep at work. Aparicio asked why
they waited so long to terminate her if what she did was so bad. Warner responded that the order
came from Valdivia. Aparicio said to Warner, “Well, you're the one that told us not to worry, to 35
just continue work as normal and if that someone fell asleep, just to make sure there was
someone that could relieve her.” Aparicio mentioned that she was on a break when she was
sleeping. She also mentioned that the nurses always sleep. (Tr. 615.) Warner again said there
was nothing she could do because the order came from Valdivia. Warner gave Aparicio her
check and told her to sign a notice of employee reprimand, but Aparicio refused to sign it. (Tr.40
146–150; GC Exh. 45.) Prior to this meeting, no supervisor had questioned her about the events
of October 7. (Tr. 150.)

31 On an undetermined date, Valdivia told Cuellar she was ready to terminate Sanchez, Abaunza, and
Aparicio. Cuellar agreed that VDS should follow their policy and terminate them. Jennifer Abaunza was
issued a notice of termination on October 28, 2013. (Tr. 607–608; GC Exh. 48.)
JD(SF)–24–15
17
That same day, at around 11 a.m., Sanchez met with Warner and Cuellar in Warner’s
office. Cuellar provided translation from English to Spanish. (Tr. 612.) Warner told Sanchez
that someone had taken pictures of her asleep, and that she was being terminated. Sanchez asked
why this was happening 2 weeks after the incident. Warner apologized, but said that because of
the pictures, she had to take action.32 Sanchez asked if she was firing all of them, and Warner 5
responded that she was terminating “all three.” Sanchez told Warner that there were four
individuals sleeping, including Maria Lopez. Warner said she did not know anything about that
but she would continue to investigate to see if someone else had fallen asleep. Sanchez was not
questioned prior to this meeting. (Tr. 215–217.)
10
Final checks issued for Martha Aparicio and Delfina Sanchez on October 15, 2013. (Tr.
70; GC 47.)
The decision to terminate Martha Aparicio and Delfina Sanchez was a joint decision by
Warner, Cuellar, and “corporate.” Valdivia said there was a “little bit of an investigation” 15
because they had the pictures. (Tr. 695–697.) She did not speak with Aparicio or Sanchez or
question them prior to their terminations. (Tr. 89–90, 735.) The reason Valdivia gave for
retaining Maria Lopez was that she was not on the schedule and was working in a different
building, so Valdivia did not believe she was involved in the incident. (Tr. 697–698.)
20
After the CNAs were terminated, cameras were installed but CNAs continued to sleep
during their breaks. (Tr. 195.)
On October 22, Castillo ran into Cuellar in the parking lot as she arrived for her shift a
little before 3 p.m. She asked why they were hiring so many nurses. Cuellar said Valdivia was 25
going to get rid of the people who joined the Union, and remarked that she was glad she was
going on vacation with everything that was happening. (Tr. 512.) At around 5 p.m. that day,
Castillo and Zelaya were at the nurses’ station. Zelaya said some people tried to talk Valdivia
out of firing people.33 (Tr. 513.)
30
At Valdivia’s request on either October 30 or 31, Adelman wrote a statement regarding
what he observed on October 7. His statement, dated October 31, stating that he saw Sanchez
and Aparicio “deeply asleep” on some chairs. He further noted that when he turned to the nurse
at the desk, she was also asleep. He did not mention the hospice worker because he was not a
VDS employee. Adelman did not mention the other nurse in the reception area because he wrote 35
the statement to support the photographs, and he did not have a photograph of this other CNA.
(Tr. 111, 114–115; GC Exh. 40.)
40

32 Cuellar denied that Warner apologized or showed sympathy. (Tr. 614.)
33 Castillo memorialized her recollection of these conversations, as well as the conversation with
Warner about the nurses who were sleeping in statements dated October 21 and October 24, 2014. (GC
Exhs. 41, 42.)
JD(SF)–24–15
18
I. Discharge of Housekeepers and Maintenance Worker
All six housekeepers and maintenance worker Genaro Meza received their notices of
terminations between October 25–27. (Tr. 74; GC Exhs. 49–55.) All of the discharged
employees, except Perdomo, openly supported the Union.5
Meza was scheduled to work on October 25. Valdivia called him into her office in the
afternoon. E. Valdivia and Cuellar were also present. Valdivia told Meza they would no longer
need his services because people from the outside would be performing his job. (Tr. 328–329.)
Mayorga and Menjivar also worked October 25, and were let go in a similar manner. (Tr. 348, 10
374–375.)
On October 26, Valdivia met with Cobar, told her the company had decided to contract
with a cleaning agency to do the housekeeping, and told her she would give her a reference if she
needed one. (Tr. 297.) 15
On October 27, VDS’s housekeeping employees came to work as scheduled. Ramon
Lopez approached Rosa Lopez and told her she needed to train a new employee. The new
employee wore a red apron that said “Pro-Clean.” Rosa Lopez trained the employee and, as she
was walking to the parking lot, she ran into Romana Lopez who said she had just been fired. 20
Rosa Lopez then saw Valdivia, who asked to speak to her. They went to Valdivia’s office and
Valdivia told her that the corporation decided to have another company do the housekeeping, and
she was being laid off. Valdivia gave Rosa Lopez a check for the week and for her vacation.
(Tr. 257–259.) Romana Lopez and Carmelina Perdomo were let go in a similar manner.
Perdomo asked whether the CNAs were being let go, and expressed her belief that the 25
housekeepers were being let go because of the Union. Valdivia responded that she could not let
the CNAs go if they were keeping the rules. (Tr. 358, 392–394.)
The housekeeping employees saw their names on the schedule for November 2013 posted
shortly before they were discharged. (GC Exh. 60; Tr. 262, 349, 361, 376, 396.)30
The contract noted a monthly savings of $831. The annual amount to be paid under the
contract was 184,872, in monthly installments of $15,406. (GC Exh. 56.) From July–October
2013, the monthly amount VDS paid to Pro-Clean was $16,387.36. (GC Exh. 98.)
35
At the time of the discharges, there were two maintenance employees, Genaro Meza and
Ramon Lopez. Meza, who was discharged, had signed the union petition and participated in the
march. Ramon Lopez, who was retained, did not sign the union petition or participate in the
march. (Tr. 75.) Valdivia said Ramon Lopez was retained because he worked the evening shift
and doubled as a security guard, and Pro-Clean does not provide services in the evening.34 (Tr. 40
720–721.) Meza, who had worked at VDS since 1993, had more seniority than Ramon Lopez.
At the time of their discharges, Maria Menjivar had worked for VDS since 1980,
Carmelina Perdomo had worked for VDS since November 3, 1983, Elisa Mayorga had worked

34 Valdivia said Ramon Lopez worked 3-7 p.m. both before and after the switch to Pro-clean but the
evidence shows he worked more. (Tr. 779; GC Exh. 100.)
JD(SF)–24–15
19
for VDS since December 20, 1988, Dafny Cobar had worked for VDS since April 4, 1999, Rosa
Lopez had worked for VDS since August 4, 2000, and Romana Lopez had worked for VDS since
2007. (Tr. 234, 288, 335, 352, 366, 379.)
J. Post-Discharge Events 5
1. Employee visits to facility in November 2013
In November 2013, Rosa Lopez, Elisa Mayorga, Romana Lopez, and Genaro Meza
returned to VDS with union organizer Eduardo Gutierrez to request their files. Valdivia said she 10
could not provide them, and they would need to officially request the files. She told them to
leave. (Tr. 261–263, 329–330, 350, 362.)
2. CNA raises in December 2013
15
For the pay period beginning December 1, 2013, VDS gave a 50-cent across-the-board
wage increase to all CNAs. (Tr. 18–19.) Lerma Davis, Ivania Rueda, and Remedios Lopez’s
most recent raises had been 5 years prior. (Tr. 176, 312, 410.) The wage increase was
discretionary and unscheduled. (GC Exh. 85.)
20
3. Conversations between CNA Remedios Lopez and DON Jeri Warner in January 2014
Remedios Lopez received a series of text messages from Warner, who had since been
terminated from VDS, between January 1 and January 21, 2014. They stated, in relevant part:
25
Rosa did get rid of house keeping and laundry because she said the CNA will need 50%
vote. I did not agree with her practices so she has to fire me too.
. . .
30
What is the name of your local union and the local number? I am writing corporate to let
them know that Rosa was retaliating against the CNA formation of the union. I will tell
your union if the (sic) want 2 know. I also told Dion this same thing so I am not a
disgruntled employee!
35
. . .
Of course I said all along but she was so mad about this union business Rosa did (sic)
even want 2 do employee of the month which I said should be u and Marcos. Nope she
wAs 2 mad. 40
. . .
I know that the people rosa fired have a case with the labor board. I need to find out
information about that. I think rosa is gonna blame things on me & I need to make sure 45
she does not & I do need to let the labor board know that rosa fired them as retaliation. If
u know anything let me know.
JD(SF)–24–15
20
(GC Exh. 92; Tr. 412–413; 418.) Remedios Lopez also spoke with Warner the day she was
terminated. Warner told him that “she wanted us to continue with the Union and she wanted to
help us. And if we needed anything to call her and she would give us good advice.” (Tr. 419.)
5
4. October 9, 2014 letter
On October 9, 2014, the Respondent’s attorney sent a letter to the Region regarding
settlement. The letter was copied to the Union’s attorney and states, in relevant part:
10
Please accept the following as a reply to both the proposals for settlement as well as the
warnings if settlement fails. . . . We strongly suggest that the Board ensure that the
employees are made aware of these offers and that they have a say in the decision. They
may not like the alternative. . . . the only alternative VDS [Vista Del Sol/Respondent]
will have is to close down its facility. In such a situation, . . . the remaining of the 60 15
employees will lose their employment. . . . This letter is been [sic] sent to the Union’s
Counsel as well in the hope that she makes the Claimants [discriminatees] aware of all
alternatives so they have the opportunity to make informed selfless decisions.
(GC Exh. 83.) On November 3, 2014, Paul Vellanoweth from the Union showed Remedios 20
Lopez, Rosa Lopez, and Reyna Artola the letter when they met at a McDonald’s. (Tr. 414–415,
441–442.).
On July 14, 2014, Valdivia sent an email to Luis Torres at Pro-Clean services suggesting
that they keep Ramon Lopez as maintenance supervisor in the afternoons, and she would 25
supervise the housekeepers in the morning. (Tr. 744; GC Exh. 95.)
III. Decision and Analysis
A. Credibility Legal Standards and General Findings30
Many of the disputes at issue rest on witness credibility. A credibility determination may
rest on various factors, including “the context of the witness' testimony, the witness' demeanor,
the weight of the respective evidence, established or admitted facts, inherent probabilities and
reasonable inferences that may be drawn from the record as a whole.” Hills & Dales General 35
Hospital, 360 NLRB No. 70, slip op at 7 (2014), citing Double D Construction Group, 339
NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001). In making credibility
resolutions, it is well established that the trier of fact may believe some, but not all, of a
witness’s testimony. NLRB v. Universal Camera Corp., 179 F.2d 749 (2d Cir. 1950).
40
The Board has agreed that “when a party fails to call a witness who may reasonably be
assumed to be favorably disposed to the party, an adverse inference may be drawn regarding any
factual question on which the witness is likely to have knowledge.” International Automated
Machines, 285 NLRB 1122, 1123 (1987), enfd. 861 F.2d (6th Cir. 1988). This is particularly
true where the witness is the Respondent’s agent. Roosevelt Memorial Medical Center, 348 45
NLRB 1016, 1022 (2006). Moreover, an adverse inference is warranted by the unexpected
failure of a witness to testify regarding a factual issue upon which the witness would likely have
JD(SF)–24–15
21
knowledge. See Martin Luther King, Sr., Nursing Center, 231 NLRB 15, 15 fn. 1 (1977)
(adverse inference appropriate where no explanation as to why supervisors did not testify);
Flexsteel Industries, 316 NLRB 745, 758 (1995) (failure to examine a favorable witness
regarding factual issue upon which that witness would likely have knowledge gives rise to the
“strongest possible adverse inference” regarding such fact).5
Where there is inconsistent evidence on a relevant point, my credibility findings are
incorporated into my legal analysis below. My general observation, however, was that
Valdivia’s testimony was contradictory at times. For example, she testified both that she gave
input into the decision to subcontract the housekeeping department, and that she was not 10
involved in the decision. Her testimony was also inconsistent with other reliable evidence of
record. For example, she said she was not at any of the October meetings with employees
regarding tardiness and uniforms, but this is contradicted by the corroborative testimony of
multiple witnesses. Valdivia gave further inconsistent testimony about the level of investigation
she conducted prior to terminating Martha Aparicio and Delfina Sanchez. She testified that she 15
did a “little bit” of an investigation, but did not speak with either employee prior to terminating
them. For the first time at the hearing, Valdivia said she called them on the phone and neither
answered. (Tr. 90.) This simply lacks credence, given that minimal effort would have been
required for her to reach Martha Aparicio and Delfina Sanchez to speak to them.
20
Valdivia was at times evasive in her testimony. For example, she testified about a stricter
policy regarding employees visiting VDS off duty until she was presented with her affidavit. (Tr.
43–45.) Valdivia was also evasive when it came to identifying decision-makers. She referred to
“corporate” during her testimony but, even when pressed, was reluctant to provide names of the
individual decisionmakers comprising “corporate.” 25
The testimony of the employees and former employees was generally corroborative and
credible, as discussed below. Testimony from current employees tends to be particularly reliable
because it goes against their pecuniary interests. Gold Standard Enterprises, 234 NLRB 618, 619
(1978); Georgia Rug Mill, 131 NLRB 1304, 1304 fn. 2 (1961); Gateway Transportation Co.,30
193 NLRB 47, 48 (1971); Federal Stainless Sink Div. of Unarco Industries, 197 NLRB 489, 491
(1972).
The Respondent asserts that the employee and former employee witnesses were coached
to provide the exact same testimony about the events of October 2013. (R Br. 16–17.) The 35
record belies this, however, and it is readily apparent that the witness’ testimony, while generally
corroborative, is not exactly the same. The Respondent also argues that the witness’ recollection
of the events at issue does not square with their failure to recall receiving and signing for the
employee handbook. First, I note that most employees were not asked about their receipt of the
employee handbook. In any event, many of the witnesses had worked for VDS for a very long 40
time, and therefore failure to recall receipt of a document ostensibly given to them during
orientation long ago is not suspicious. For these reasons, I reject the Respondent’s arguments
about witness coaching.
JD(SF)–24–15
22
B. The Section 8(a)(1) Allegations
The complaint alleges numerous violations of Section 8(a)(1) of the Act. Under Section
8(a)(1), it is an unfair labor practice for an employer to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7 of the Act. The rights guaranteed 5
in Section 7 include the right “to form, join or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection . . .”
The basic test for a violation of Section 8(a)(1) is whether under all the circumstances the 10
employer's conduct reasonably tended to restrain, coerce, or interfere with employees’ rights
guaranteed by the Section 7 of the Act. Mediplex of Danbury, 314 NLRB 470, 472, (1994);
Sunnyside Home Care Project, 308 NLRB 346 fn. 1 (1992), citing American Freightways Co.,
124 NLRB 146, 147(1959).
15
It is the General Counsel’s burden to prove Section 8(a)(1) allegations by a
preponderance of the evidence.
1. Alleged instructions not to talk to the Union
20
a. CNAs Remedios Lopez and Marcos Salvador
The complaint alleges, at paragraph 9(a), that in or around August 2013, Valdivia, by the
nurses’ station, instructed employees not to talk to the Union, in violation of Section 8(a)(1).
25
Valdivia, Remedios Lopez, and Salvador, all agree that Valdivia conducted meetings
about individuals visiting employees at their homes during this time period. Valdivia’s
testimony does not reference the Union, and is couched more in terms of warning employees in
light of the theft of the I-9 binder. Salvador recalled Valdivia stating that a man with a tattoo was
pretending to be from the Union and was looking to rob the employees. Remedios Lopez 30
recalled Valdivia stating that if “any men came to knock on our door at home to not let them in,
because she had lost some document that someone had gone into her office to steal that and they
could do something with that personal information of ours.” (Tr. 406.) A similar meeting took
place around this same time period with Esther Cuellar and a group of housekeepers.
35
I find the employees’ accounts of the meeting to be credible and reliable.35 First, as
current employees, Remedios Lopez and Salvador were testifying against their pecuniary
interests. They responded to open-ended questions in a straightforward manner, and appeared to
be genuinely attempting to recall what occurred. Moreover, their testimony is generally in line
with Valdivia’s testimony that she held meetings during this time period, and with the similar 40
meeting Cuellar conducted. It is also more in line with the events that were unfolding in
August 2013.

35 Though Remedios Lopez had the date wrong, considering the events occurred more than a year
prior to the hearing, I do not find this renders his memory of the meeting’s content unreliable. See
Dorothy Shamrock Coal Co., 279 NLRB 1298 (1986); Sheet Metal Workers Local 224, 297 NLRB 528,
535 (1990).
JD(SF)–24–15
23
I find that Valdivia’s instructions would tend to restrain and interfere with employees in
the exercise of their Section 7 rights. Though motivation is not a requirement to establish an
8(a)(1) violation, the timing of events is important. Valdivia reported the alleged theft of the I-9
binder to the police on May 15. Had she truly been concerned about protecting her employees, it 5
is curious that she waited until August, when the union organizers started visiting employees, to
warn employees about the potential consequences of the binder’s theft. Any claim that Valdivia
did not know, or at least suspect, that it was union organizers visiting the employees is belied by
the reports from employees that union organizers visited them at their homes.36 (See, e.g., GC
Exh. 89, p. 2.) From the employees’ standpoint, as Union organizing efforts were getting 10
underway, the highest management official at the facility was instructing them that the
individuals claiming to be from the Union were thieves, and saying the employees should not
open their doors to them.
Valdivia easily could have told employees about the potential breach of their personally 15
identifiable information and warned them to take precautions without implicating the Union and
stating that the individuals visiting them were thieves.37 In her affidavit, Valdivia stated that she
posted a notice of the theft by the employee time clock “sometime later in May,” and that she
had a copy of the notice. (R Exh. 3.) The notice was not attached to her affidavit or provided at
the hearing. In its response in the Sec. 10(j) proceedings, the Respondent said Valdivia “filed a 20
police report that same day and notified employees of the theft . . . .” (GC Exh. 88.) The record is
devoid, however, of any employee meetings at or around the time the binder went missing. In
fact, the record contains examples of Valdivia informing employees of the binder’s
disappearance during these meetings.
25
In short, it was not until Valdivia received reports of employees being visited by the
Union that she decided to hold meetings warning employees not to answer their doors.
Particularly when coupled with other evidence of coercion herein, I find the meeting violated
Section 8(a)(1) as alleged.
30

36 Valorie Hanson testified that, on October 7, she reported the Union’s visits to her home to Valdivia.
She specifically testified that the individual identified himself as being from the Union. Valdivia, in her
affidavit, recalled that Hanson told her the individual who visited her identified himself as being from
VDS. When she testified Valdivia could not recall whether Hanson had reported the individual was from
VDS. I do not credit Hanson’s testimony for the reasons discussed below regarding Aparicio and
Sanchez’s terminations, and because I find it unlikely that the Union would have visited her because she
is a supervisor. Instead, I find this testimony, like her discredited testimony at the hearing that she
regularly worked on the nightshift, was fabricated, and was an attempt to bolster an argument that the
Union was harassing employees. I do not credit Valdivia’s recollection because it is inconsistent, and as
discussed herein, I find she was motivated to thwart the Union’s efforts on behalf of her superiors. Even
with these accounts discredited, however, Valdivia admittedly had heard about the Union visiting
employees at home as of August 8.
37 Indeed, there is no evidence that employees were instructed to freeze their credit files or place fraud
alerts on their files.
JD(SF)–24–15
24
b. Housekeeper Rosa Lopez
Paragraph 9(b) of the complaint alleges that, in or around August 2013, Valdivia
instructed employees by telephone not to talk to the Union.
5
Rosa Lopez provided unrefuted testimony that in or around August 13, Valdivia called
her on the phone at about 7 p.m. and told her employees were being visited at home, and she
should not let the visitors in because they were thieves. Lopez confirmed nobody had visited her
at home.
10
I credit Rosa Lopez’s testimony because it is unrefuted, and note that her recollection was
buttressed by the fact that a call at home from Valdivia was unusual.38 For the reasons stated
above, I find the telephone call would tend to coerce Rosa Lopez, particularly considering she
was one of the employees who spoke to coworkers about the Union to solicit their support.
15
2. Alleged wage increases—CNA Maria Ramirez and Housekeeper Romana Lopez
Paragraph 9(c) of the complaint alleges that the Respondent violated Section 8(a)(1)
when, on October 10, 2013, it granted a wage increase.
20
CNA Maria Ramirez and Housekeeper Romana Lopez each received wage increases of
50 cents per hour beginning with the pay period ending September 30.
The Supreme Court, in Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 686 (1944),
stated that the “action of employees with respect to the choice of their bargaining agents may be 25
induced by favors bestowed by the employer as well as by his threats or domination.” As the
Court explained in NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964):
The danger inherent in well-timed increases in benefits is the suggestion of a fist inside
the velvet glove. Employees are not likely to miss the inference that the source of benefits 30
now conferred is also the source from which future benefits must flow and which may
dry up if it is not obliged.
(Footnote omitted.) It held that that “the conferral of employee benefits while a representation
election is pending, for the purpose of inducing employees to vote against the union,” interferes 35
with the employees' protected right to organize. It is well-settled that the Exchange Parts
principles apply to promises and/or granting of wage increases or other benefits, if they are made
in response to union organizational activity, regardless of whether a representation petition has
been filed. Network Dynamics, 351 NLRB 1423, 1424 (2007); Hampton Inn NY-JFK Airport,
348 NLRB 16, 17 (2006).40
Unlike most 8(a)(1) allegations, analysis of a claim that benefits were promised,
announced, or granted to coerce employees in their choice of bargaining representative is

38 The General Counsel requests an adverse inference because Valdivia, who testified at the hearing,
did not refute this allegation. (GC Br. 12.) I find an adverse inference is warranted. Flexsteel Industries,
316 NLRB 745, 758 (1995).
JD(SF)–24–15
25
motive-based. Network Dynamics Cabling, Inc., 351 NLRB 1423, 1424 (2007). The granting of
benefits to employees during union organizational activity “is not per se unlawful where the
employer can show that its actions were governed by factors other than the pending election.”
American Sunroof Corp., 248 NLRB 748, 748 (1980), modified on other grounds 667 F.2d 20
(6th Cir. 1981). 5
To establish such a claim, the General Counsel must first prove, by a preponderance of
the evidence, “that employees would reasonably view the grant of benefits as an attempt to
interfere with or coerce them in their choice on union representation.” Southgate Village Inc.,
319 NLRB 916 (1995). If the General Counsel meets this burden, the employer must 10
demonstrate a legitimate business reason for the timing of the benefit. One way to do this is to
show the benefit was “part of an already established Company policy and the employer did not
deviate from the policy upon the advent of the union.” American Sunroof, supra at 748; see also
Real Foods Co., 350 NLRB 309, 310 (2007); Holly Farms Corp., 311 NLRB 273, 274 (1993),
enfd. 48 F.3d 1362 (4th Cir. 1995), affd. 517 U.S. 392 (1996); Jewish Home for the Elderly of 15
Fairfield County, 343 NLRB 1069, 1087–1090 (2004).
Both CNA Maria Ramirez and Housekeeper Romana Lopez received 50 cents-per-hour
raises, which, while relatively small on their own, were a relatively large percentage of their
respective wage rates. The increase was only provided to two employees: a housekeeper and a 20
CNA.
Turning to the General Counsel’s burden, it is unclear how employees would view the
benefit. Neither employee was asked how they viewed the raise, and there is no evidence either
employee shared her raise with coworkers.39 In fact, Valdivia told Maria Ramirez not to tell her 25
coworkers about her raise. While the timing of the raises coincided with organizing activity,
Romana Lopez admittedly did not become involved with the Union until October, yet the pay
raise was effective the pay period ending September 30. Moreover, there was no evidence that,
as of this time, either individual was a union supporter or was likely to steer her fellow
employees in one direction or the other. Admittedly, wage increases were not given pursuant to 30
any set schedule, so there was no deviation from an established past practice. Under these
circumstances, I find the pay raises to these two individuals were not coercive at the time they
were effected.40 I therefore recommend dismissal of this complaint allegation.
3. Alleged interrogation and surveillance—CNA Maria Ramirez35
Paragraph 9(d) of the complaint alleges that on or about October 14, Valdivia
interrogated employees about their union activities and sympathies and the union activities and
sympathies of other employees. Paragraph 9(e) alleges that at this same time and place, Valdivia
created an impression of surveillance by telling employees about cards being circulated. 40

39 Romana Lopez was not asked about the raise at all.
40 Though I have found these raises not to be unlawful in and of themselves, I do consider the
increases to be relevant evidence with regard to the pre-printed voluntariness forms Valdivia presented to
them, and to the interrogation surveillance of Maria Ramirez, discussed directly below.
JD(SF)–24–15
26
The exchange between Maria Ramirez and Valdivia on October 14 is detailed above in
the statement of facts. In sum, Valdivia asked if “they” had been back to visit her, and said she
knew who “they” were. Valdivia also asked about the cards that were being handed out. Maria
Ramirez admitted that she had signed a list the employees would be taking to Valdivia, and told
Valdivia she signed the list because she wanted to be valued and respected. Valdivia told her she 5
could change her mind if she wanted to. Valdivia told Maria Ramirez that if she put her trust in
the Union, the two of them would not be able to speak as they were doing. Maria Ramirez’s
testimony about the exchange is unrefuted, and I credit it.41 Maria Ramirez responded to open-
ended questions in a thoughtful manner. There was nothing in her demeanor to indicate she was
fabricating her responses. As a current employee testifying against her own pecuniary interests, 10
I find her testimony to be particularly reliable.
a. Interrogation
In assessing the lawfulness of an interrogation, the Board applies the totality of 15
circumstances test adopted in Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), affd. sub
nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). This test involves a case-by-case
analysis of various factors, including those set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.
1964): (1) the background, i.e., whether the employer has a history of hostility toward or
discrimination against union activity; (2) the nature of the information sought; (3) the identity of 20
the interrogator, i.e., his or her placement in the Respondent's hierarchy; (4) the place and
method of the interrogation; and (5) the truthfulness of the interrogated employee's reply. See,
e.g., Sproule Construction Co., 350 NLRB 774, 774 fn. 2 (2007); Grass Valley Grocery Outlet,
338 NLRB 877, 877 fn. 1 (2003), affd. mem. 121 Fed. Appx. 720 (9th Cir. 2005).
25
The Board also considers the timing of the interrogation and whether the interrogated
employees are open and active union supporters. See, e.g., Gardner Engineering, 313 NLRB
755, 755 (1994), enfd. as modified on other grounds 115 F.3d 636 (9th Cir. 1997); Blue Flash
Express, 109 NLRB 591 (1954). Another factor is whether adequate assurances were provided.
See John W. Hancock, Jr., Inc., 337 NLRB 1223, 1223-1224 (2002). These factors “are not to be 30
mechanically applied,” they represent “some areas of inquiry” for consideration in evaluating an
interrogation's legality. Rossmore House, supra, fn. 20.
Turning to the first Bourne factor, there is no evidence of a history of hostility toward
union activity. While this would tend to weigh in the Respondent’s favor, no evidence was 35
presented that there had been union activity in the past. This factor, therefore, has no real
mechanism for assessment.
The second Bourne factor weighs in the General Counsel’s favor. Valdivia asked Maria
Ramirez if “they” had visited her again, and stated she knew who “they” were. The evidence is 40
clear that by this time Valdivia had reports of individuals from the Union visiting employees at
home. This question, therefore, directly probed at Maria Ramirez’s contacts with the Union.

41 The General Counsel requests an adverse inference because Valdivia, who testified at the hearing,
did not refute this allegation. (GC Br. 18.) I find an adverse inference is warranted, both as to the
interrogation allegation and the surveillance allegation concerning Maria Ramirez. Flexsteel Industries,
316 NLRB 745, 758 (1995).
JD(SF)–24–15
27
Valdivia’s question about the authorization cards likewise was aimed directly at employees’
union activity.
The identity of the interrogator weighs in the General Counsel’s favor, as Valdivia was
the top management official at VDS. The place and method of interrogation also weigh in the 5
General Counsel’s favor. The conversation began in the hallway, but Valdivia then asked Maria
Ramirez to come to her office, where nobody else was present and doors were closed, and asked
her directly about union activity. As to the last Bourne factor, the truth of the response, this is
mixed. Maria Ramirez responded that she, too, knew who “they” were, but did not divulge
information about the authorization cards. 10
The Respondent cites to Rossmore House for the following:
In deciding whether questioning in individual cases amounts to the type of coercive
interrogation that section 8(a)(1) proscribes, one must remember two general points. 15
Because production supervisors and employees often work closely together, one can
expect that during the course of the workday they will discuss a range of subjects of
mutual interest, including ongoing unionization efforts. To hold that any instance of
casual questioning concerning union sympathies violates the Act ignores the realities of
the workplace. 20
269 NLRB at 1177, quoting Graham Architectural Products v. NLRB, 697 F.2d 534, 541 (3d
Cir. 1983). (R Br. 11.) I note, however, that Valdivia is not akin to a production supervisor—she
is the top administrator, two levels up from Maria Ramirez in the chain of command. In addition,
this was not a casual conversation where the Union just happened to come up. The conversation 25
began with a pointed question about whether Maria Ramirez had been visited again, and did not
stray from the general topic of union activity.
The Respondent also points to the Supreme Court’s statement in NLRB v. Gissel Packing
Co., 395 U.S. 575, 617 (1969), that the First Amendment protects employer speech during an 30
organizing campaign “so long as such expression contains ‘no threat of reprisal or force or
promise of benefit’” in violation of the Act. (R Br. 11.) This quote is taken somewhat out of
context, however. The protection the Court was discussing was the employer’s freedom “to
communicate to his employees any of his general views about unionism or any of his specific
views about a particular union,” not the freedom to question employees about their and their 35
coworkers’ union activities. 395 U.S. at 618.
Considering the totality of the evidence, including the timing of events and the absence of
assurances Valdivia gave regarding her questions, I find the General Counsel has met its burden
to prove this allegation. 40
b. Surveillance
The test for determining whether an employer engages in unlawful surveillance or
whether it creates the impression of surveillance is an objective one and involves the 45
determination of whether the employer's conduct, under the circumstances, was such as would
tend to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed under
JD(SF)–24–15
28
Section 7 of the Act. See Broadway, 267 NLRB 385, 400 (1983) (citing United States Steel
Corp. v. NLRB, 682 F.2d 98 (3d Cir. 1982)).
The Board has consistently held that an employer’s mere observation of open, public
union activity on or near its property does not constitute unlawful surveillance. See Fred'k 5
Wallace & Son, Inc., 331 NLRB 914, 915 (2000). For example, in Metal Industries, 251 NLRB
1523, 1523 (1980), the Board found no unlawful surveillance of employees where the employer
had a longstanding practice of going to the employee parking lot to say goodbye to its departing
employees at the end of the workday. The employer's observance of the employees' Section 7
activity was inseparable from its regular and noncoercive practice. See also Wal-Mart Stores, 10
340 NLRB 1216, 1223 (2003).
Employers may not, however, “do something ‘out of the ordinary’ to give employees the
impression that it is engaging in surveillance of their protected activities.” Loudon Steel, Inc.,
340 NLRB 307, 313 (2003); See also Partylite Worldwide, Inc., 344 NLRB 1342 (2005); Arrow 15
Automotive Industries, 258 NLRB 860 (1981), enfd. 679 F.2d 875 (4th Cir. 1982); Sprain Brook
Manor Nursing Home, 351 NLRB 1190 (2007). The Board's analysis thus focuses on whether
the observations were ordinary or represented unusual behavior. Aladdin Gaming, LLC, 345
NLRB 585 (2005), rev. denied 515 F.3d 942 (9th Cir. 2008).
20
When an employer tells employees it knows about their union activities but fails to cite
its information source, Section 8(a)(1) is violated because employees must speculate about how
such information was obtained, creating the impression of surveillance. Stevens Creek Chrysler,
353 NLRB 1294, 1296 (2009).
25
I find Valdivia’s question to Maria Ramirez about whether “they” had visited her house,
coupled with her comment that she knew who “they” were created the impression that Maria
Ramirez’s union activity was being monitored. Valdivia’s question about authorization cards,
the existence of which Maria Ramirez had not disclosed to her, is further evidence that union
activities were being watched. Valdivia never revealed the source of the information about the 30
union cards or how she knew who “they” were. Moreover, as discussed in the section on
interrogation above, Valdivia’s statements were part of a casual conversation, but instead were
pointed comments about Union activity she herself did not observe in the ordinary course of her
work.
35
Accordingly, I find the General Counsel proved, by preponderant evidence, that Valdivia
engaged in unlawful surveillance as alleged.
4. Alleged interrogation—Housekeeper Carmelina Perdomo
40
Complaint paragraph 9(g) alleges that the Respondent, by Rosa Valdivia, on about
October 14, 2013, in Rosa Valdivia’s office, interrogated its employees about their union
activities.
As set forth above, around October 19, at about 3:15 p.m.,Valdivia asked Housekeeper 45
Carmelina Perdomo if someone had given her a card to sign. Perdomo responded that Mayorga
had given her a card but she had not signed it. Valdivia told her to let her know if she was forced
JD(SF)–24–15
29
to sign a card. Previously, in mid-September, Valdivia had asked Perdomo if anyone had visited
her at her home. Perdomo responded she had been visited. Valdivia asked the name of the
individual, and Perdomo told her it was Jose Manzano.42
The legal standards for interrogation cited above apply. The analysis of the first four 5
Bourne factors, i.e., the employer’s background, the nature of the information sought, the
identity of the interrogator, and the method and place of interrogation, is virtually the same for
Perdomo as for Maria Ramirez. By October 19, however, Valdivia’s questions are against a
backdrop of hostility toward and discrimination against the Union, as discussed below. The
Moreover, the conversation at issue took place entirely in Valdivia’s office. Perdomo was not an 10
open union supporter, and Valdivia had by this time seen that she had not signed the petition.
The question aimed at ascertaining the identity of the individual who gave Perdomo a card goes
directly toward protected activity. Moreover, the timing of the conversation took place two days
after the Union filed its petition for representation.
15
Considering the totality of the evidence, including and the absence of assurances Valdivia
gave regarding her questions, I find the General Counsel has met its burden to prove this
allegation.
5. Alleged interrogation and coercion—Maintenance Worker Genaro Meza20
Complaint paragraph 9(j) alleges that Valdivia, on or about October 18, 2013, in Rosa
Valdivia’s office, interrogated its employees about their union activities and sympathies and
about what the Union had promised employees. Complaint paragraph 9(k) alleges that on this
same date and in this same location, Valdivia told employees she did not trust them. 25
About 8 days after October 14 the march, Valdivia and Meza met in Valdivia’s office.
Valdivia asked Meza if he knew what he had done, and asked if they had forced him to sign the
petition. She handed him a copy of the voluntariness form, and told him he could sign it if he
had felt the Union had forced him to sign. He did not respond, and Valdivia said she did not 30
trust him anymore. She asked what the Union was offering the employees. He responded that
was in favor of the Union because when he would go to the office to speak with her, she would
not give him attention. (Tr. 322–325.)
The legal standards for interrogation cited above apply, and the analysis of the first four 35
Bourne factors mirrors that Valdivia’s interrogation of Perdomo. Meza was an open Union
supporter, as his name had appeared on the petition. Valdivia’s questions to Meza, asking him if
he knew what he had done by signing the petition and asking what he thought the Union offered
employees, go directly to his Union activity. The questions took place within days of the march
and presentation of the petition, and within days of Union filing its petition for representation. 40
Turning to the comment that Valdivia no longer trusted Meza, this is tantamount to
equating support of the union with betrayal and disloyalty, and is therefore coercive. See Hialeah
Hosp., 343 NLRB 391, 391 (2004) (hospital official telling the employees that he felt “betrayed”

42 Again, this testimony is unrefuted and, for the reasons set forth above, I find an adverse inference is
warranted based on Valdivia’s failure to testify about this conversation. (GC Br. 26.)
JD(SF)–24–15
30
and “stabbed in the back” because they had contacted the Union sent message that Union support
was tantamount to disloyalty and was implied threat); see also Rosewood Mfg. Co., 269 NLRB
782, 785 (1984); Operating Engineers Local 12, 237 NLRB 1556, 1558 (1978).
Considering the totality of the evidence, including and the absence of assurances Valdivia 5
gave regarding her questions, I find the General Counsel has met its burden to prove these
allegations.
6. Alleged interrogation—Maria Ramirez
10
Complaint paragraph 11 alleges that on October 20, 2013, Respondent, by Arcadio De
Borja, in the utility room, interrogated its employees about their union membership
Around October 20, during break time, Charge Nurse Arcadio DeBorja and Maria Lopez
were in a small room referred to as the utility room. DeBorja asked Maria Ramirez whether she 15
was a member of the Union. Maria Ramirez was quiet in response, and DeBorja said, “Tell me.”
She responded yes, and said she was prepared to be fired.43
The legal standards for interrogation, set forth above, apply to this allegation. Applying
the Bourne factors, I first find that the background, i.e., whether the employer has a history of 20
hostility toward or discrimination against union activity, by this point weighs against the
Respondent based on the conduct articulated throughout this decision. The nature of the
information sought was whether Maria Ramirez supported the Union, which weighs against the
Respondent. The identity of the interrogator was a charge nurse, who stood in direct supervision
of Maria Ramirez in the organizational hierarchy. The place and method of the interrogation was 25
a closed room with nobody else present. Maria Ramirez did not bring up the Union during the
conversation and did not otherwise invite the topic. This weighs against the Respondent. While
Maria Ramirez responded truthfully, she also stated she thought her union support would get her
fired.
30
Considering the totality of the evidence, including and the absence of assurances DeBorja
gave regarding his question, I find the General Counsel has met its burden to prove this
allegation.
35

43 This testimony is unrefuted and DeBorja did not testify. The General Counsel asks for an adverse
inference based on De Borja’s failure to testify. (GC Br. 44.) The Board has agreed that “when a party
fails to call a witness who may reasonably be assumed to be favorably disposed to the party, an adverse
inference may be drawn regarding any factual question on which the witness is likely to have
knowledge.” International Automated Machines, 285 NLRB 1122, 1123 (1987), enfd. 861 F.2d (6th Cir.
1988). This is particularly true where the witness is the Respondent’s agent. Roosevelt Memorial
Medical Center, 348 NLRB 1016, 1022 (2006). I therefore grant this request and find De Borja’s
testimony would have been harmful to the Respondent.
JD(SF)–24–15
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7. Alleged interrogation—Genaro Meza
Complaint paragraph 12 alleges that, around October 23, 2013, Respondent, by Ester
Cuellar, near Ester Cuellar’s office or the laundry area, impliedly threatened its employees with
unspecified reprisals in response to their union activities 5
Around October 23, Cuellar and Meza had a conversation by the laundry room. Cuellar
asked Meza if he was going on vacation, and he replied that Valdivia had not approved his
vacation request. Cuellar said she felt sorry for them because Valdivia was well prepared.
Mayorga overheard the conversation. 10
The comment, on its face and taken in context, is more cautionary than explicitly
threatening. This does not, however, make the comment lawful. I note that the comment was
made about a week after the employees presented the petition to Valdivia, and the Union filed
the petition for representation with the Board. 15
In Jordan Marsh Stores Corp., 317 NLRB 460, 462–463 (1995), the Board found that
cautionary advice from a supervisor to an employee to watch her back “might have been all the
more ominous” coming “from a friend sincerely concerned for the employee's job security.” See
also Olney IGA Foodliner, 286 NLRB 741, 748 (1987), enfd. 870 F.2d 1279 (7th Cir. 1989) 20
(threats possibly intended as “friendly advice” found violative); Trover Clinic, 280 NLRB 6 fn. 1
(1986) (“keep a low profile” and “be quiet about it”); St. Francis Medical Center, 340 NLRB
1370, 1383–1384 (2003) (holding a “be careful” statement by a supervisor in context of union
activity unlawful).
25
Cuellar’s cautionary comment about Valdivia’s preparedness is similar to the comments
above, which were found to constitute threats of unspecified reprisals. Accordingly, I find this
comment violates Section 8(a)(1) of the Act as alleged.
8. Telling employees to leave the premises30
Complaint paragraph 9(f) alleges that, on or about October 14, by the nurses’ station,
Valdivia told off-duty employees they had to leave the premises.
Valdivia’s instructions to employees to leave the facility during the presentation of the 35
petition on October 14 are detailed in the statement of facts.
In Tri-County Medical Center, 222 NLRB 1089 (1976), the Board held that an
employer's rule barring off-duty employees access to their employer's facility is valid only if it:
“(1) limits access solely with respect to the interior of the plant and other working areas; (2) is 40
clearly disseminated to all employees; and (3) applies to off-duty employees seeking access to
the plant for any purpose and not just to those employees engaging in union activity.”
In the instant case, the evidence fails to show the Respondent had published or
disseminated to its employees any no-access rule concerning off-duty employees. The only 45
employees who were told to leave the building were those who participated in the march.
Moreover, as set forth in the statement of facts above, employees were permitted to come to the
JD(SF)–24–15
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facility for other non-work reasons, and therefore Valdivia’s instruction to leave the facility was
focused on the employees’ Section 7 activity.
The Respondent asserts that Valdivia was justified in telling the employees to leave
because, as a care facility, it must provide a peaceful and secure environment for its patients. (R 5
Br. 12.) Recognizing the need for hospitals to provide a tranquil atmosphere to carry out its
primary function of patient care, the Supreme Court and the Board have recognized some special
considerations when it comes to Section 7 activity in a hospital setting. Beth Israel Hospital v.
NLRB, 437 U.S. 483, 500 (1978); St. John's Hospital & School of Nursing, Inc., 222 NLRB 1150
(1976), enfd. in part 557 F.2d 1368 (10th Cir. 1997). As such, hospitals “may be warranted in 10
prohibiting solicitation even on nonworking time in strictly patient care areas, such as the
patients' rooms, operating rooms, and places where patients receive treatment, such as x-ray and
therapy areas.” St. John’s Hospital, supra. As to other areas, a hospital may place prohibitions
on employees who engage in Section 7 activities only if it proves the prohibition is needed to
prevent patient disturbance or disruption of health care operations. Id.; NLRB v. Baptist 15
Hospital, 442 U.S. 773, 781–787 (1979).
Here, the group of 31 employees and union organizers approached the nurses’ station and
presented the petition. There is no evidence they were loud or disruptive to patient care. The
only potentially disruptive actions of record are an individual shouting, “we’re in, we’re in” on 20
the way out the door, which was after they had been told to leave. I do find that, at this point,
Valdivia was justified in ensuring they left the facility. I also find that even a peaceful group of
31 employees congregating for a lengthy period by the nurses’ station would be eventually be
disruptive to VDS’s operations. This allegation turns on conduct occurring within a very small
time window, but within that window, I find the General Counsel has met its burden to prove 25
interference with Section 7 activity.
9. Promulgation and enforcement of rules
a. Rule Prohibiting Logos30
Complaint paragraph 9(h) alleges that the Respondent, by Rosa Valdivia, about October
15, 2013, in Rosa Valdivia’s office, told its employees it would more strictly enforce its uniform
policy and/or implicitly prohibited its employees from wearing union insignia.
35
As detailed in the statement of facts, a series of meetings were held with employees in the
wake of the October 14 march and presentation of the petition to Valdivia. Numerous current
and former employees recounted that they were told they could not wear clothing with logos or
words to work. The employees all agreed that no such rule had been announced or enforced at
VDS before. 40
In determining whether a work rule violates Section 8(a)(1), the appropriate inquiry is
whether the rule would reasonably tend to chill employees in the exercise of their Section 7
rights. Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999).
45
Under the test enunciated in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004),
if the rule explicitly restricts Section 7 rights, it is unlawful. If it does not, “the violation is
JD(SF)–24–15
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dependent upon a showing of one of the following: (1) employees would reasonably construe the
language to prohibit Section 7 activity; (2) the rule was promulgated in response to union
activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Id. at 647.
A rule does not violate the Act if a reasonable employee merely could conceivably read it as
barring Section 7 activity. Rather, the inquiry is whether a reasonable employee would read the 5
rule as prohibiting Section 7 activity. Id. In other words, the relevant inquiry under Section
8(a)(1) is an objective one which examines whether the employer's actions would tend to coerce
a reasonable employee. Affiliated Foods, Inc., 328 NLRB 1107 (1999); Wyman-Gordon Co. v.
NLRB, 654 F.2d 134, 145 (1st Cir. 1981).
10
In Republic Aviation Corp v. NLRB, 324 U.S. 793, 801–03 (1945), the Supreme Court
held that employees have a protected right to wear union buttons and other insignia at work.
This right is balanced against the employer’s right to maintain order, productivity and discipline.
The Board has struck this balance by permitting employers to prohibit employees from wearing
union insignia where the employer proves that “special circumstances” exist. Id. at 797-98; see 15
also Sam's Club, 349 NLRB 1007, 1010 (2007).
I find the rule violations Section 8(a)(1) under many of the Lutheran Heritage criteria.
First, I find it expressly restricts the Section 7 right to display union insignia at work. Assuming
it is not an express restriction, however, I find employees would reasonably construe it to 20
prohibit wearing union logos or insignia. The evidence also shows that the rule was promulgated
in response to Section 7 activity. The meetings where the rule was announced occurred just on
the heels of the employee march and presentation of petition, where the employees all wore
matching T-shirts with the Union’s logo. The absence of any prior announcement of such a rule,
and the absence of any explanation for the timing of its promulgation, is telling. As the record is 25
devoid of evidence of special circumstances, I find the General Counsel has established this
allegation.
The Respondent contends that only nursing department employees were at these
meetings, citing to its attendance records. (GC Exhs. 66–67.) This does not account for the 30
unrefuted and corroborative testimony of numerous housekeeping employees, which I credit, that
they too went to such meetings. No foundation was established as to how (or if) housekeeping
meetings were recorded. Moreover, Respondent previously admitted that it “told employees . . .
that logos were now prohibited.” (GC Exh. 88, p. 23.)
35
The Respondent has also asserted that the rule prohibiting logos was not enforced.
However, “[t]he mere existence of an overly broad rule tends to restrain and interfere with
employee rights under the Act even if not enforced.” Staco, Inc., 244 NLRB 461, 469 (1979);
see also Automated Products, Inc., 242 NLRB 424 (1979); Custom Trim Products, 255 NLRB
787, 788 (1981). 40
Based on the foregoing, I find the preponderant evidence establishes the announcement
of the rule against wearing logos violated the Act as alleged.
45
JD(SF)–24–15
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b. Rule more strictly enforcing tardiness policy
Complaint allegation 10 alleges that, around the week of October 14, 2013, Respondent,
by Rosa Valdivia and Jeri Warner, at meetings at Respondent’s facility, told its employees it
would more strictly enforce its tardiness policy in response to their union activities.5
As detailed in the statement of facts, a series of meetings were held with employees in the
wake of the October 14 march and presentation of the petition to Valdivia. Numerous current
and former employees recounted that they were told they would no longer be permitted the same
grace period, their attendance would be monitored more closely, and being tardy would result in 10
progressive discipline. The employees all agreed that no such rule had been enforced at VDS
before, and employees routinely clocked in beyond the grace period and were not disciplined.
The legal framework for workplace rules and the legal precedent set forth above applies
here. 15
The announcement that the tardiness policy, which had been previously been ignored,
would now be enforced, is not an explicit restriction on Section 7 rights. I find, however, that the
second Lutheran Heritage criteria applies, i.e. the rule was promulgated in response to union
activity. The timing of the announcement, on the heels of the march and presentation of the 20
petition to Valdivia, is strong evidence that it was a response to such.
The Respondent contends that ensuring the employees work their scheduled shift is
extremely important in a patient care setting, and tardiness has been an ongoing problem it has
attempted to address before any union activity began. (R Br. 7–8.) I do not doubt the 25
Respondent’s assertions. I find, however, the fact that the rule was announced but never
enforced shows it was not implemented for a legitimate reason, such as an urgent business need
to ensure employees show up to work on time. Instead, the evidence persuades that it was an
attempt to coerce employees in the wake of the Union coming forward with evidence of majority
status. 30
10. Alleged unlawful polling
Complaint paragraph 8 alleges that from about October 17–21, 2013, the Respondent, by
letter, interrogated and polled employees about their union sympathies. Complaint paragraph 35
9(i) alleges that, during this same time period, the Respondent, at its facility, interrogated and
polled employees about their union sympathies.
The voluntariness form, and the manner in which it was presented to various employees,
is detailed in the statement of facts. 40
Polling employees about their union sympathies can constitute a form of interrogation.
Vaughan Printers, 196 NLRB 161, 164 (1972). For the polling to be lawful, all of the
safeguards required under Struksnes Construction Co., 165 NLRB 1062 (1967), must be applied
as follows:45
JD(SF)–24–15
35
Absent unusual circumstances, the polling of employees by an employer will be violative
of Section 8(a)(1) of the Act unless the following safeguards are observed: (1) the
purpose of the poll is to determine the truth of a union's claim of majority, (2) this
purpose is communicated to the employees, (3) assurances against reprisal are given, (4)
the employees are polled by secret ballot, and (5) the employer has not engaged in unfair 5
labor practices or otherwise created a coercive atmosphere.
Id. at 1063. See also Johnnie’s Poultry, 146 NLRB 770, 775 (1964); HTH Corp., 356 NLRB
No. 182, slip op. at 8 (2011), enfd. 693 F.3d 1051 (9th Cir. 2012). “[A]ny attempt by an
employer to ascertain employee views and sympathies regarding unionism generally tends to 10
cause fear of reprisal in the mind of the employee if he replies in favor of unionism and,
therefore, tends to impinge on his Section 7 rights.” Struksnes Constr. Co., supra.
In Struksnes, the Board concluded that a “poll taken while a petition for a Board election
is pending does not, in our view, serve any legitimate interest of the employer that would not be 15
better served by the forthcoming Board election. In accord with long-established Board policy,
therefore, such polls will continue to be found violative of Section 8(a)(1) of the Act.” Struksnes,
165 NLRB at 1063.
I find that the voluntariness form constituted polling, as it was clearly aimed at finding 20
out employees’ union sympathies. Valdivia stated she formulated and distributed the letter
because she was concerned about the reports from employees of visitors to their homes. Under
the analysis applicable to this claim, Valdivia’s stated reason for conducting the poll is not a
relevant factor. Regardless, I find the timing of the poll, more than two months she learned
employees were visited at their homes, and right after the march and presentation of the petition, 25
undermines Valdivia’s stated motivational rationale.
I find I further find that the polling was per se unlawful under Struksnes, because it
occurred after the union had presented its petition to Valdivia on October 14, 2013, and while a
petition for a Board election—filed October 17, 2013—was pending.30
Assuming it was not unlawful per se, I find the polling, both by the voluntariness form
itself and the various conversations Valdivia had about it, did not contain the requisite
safeguards. Most clearly, the polling was not conducted by secret ballot, no assurances against
reprisal were given, and the poll was conducted in the context of other unfair labor practices and 35
a coercive atmosphere.
The Respondent contends the voluntariness form cannot be considered polling because
there was no requirement that the employees return it. (R Br. 10.) Employees need not be
required to fill out and return a document for its distribution to be considered unlawful polling. 40
See Walters, William, Inc., 179 NLRB 709, 710 (1969) (unlawful poll found where questionnaire
was distributed to employees to return if they desired).
The Respondent also contends that responses were not coerced. This is belied by the
promise to Rosa Lopez that she could have her job as long as she wanted if she stated she had 45
been forced to sign the petition, and by Romana Lopez’s belief that she needed to sign the form
indicating she had been forced to sign the petition in order to retain her job. Even for the
JD(SF)–24–15
36
employees who resisted signing, I find that, from an objective standpoint, the voluntariness form
was coercive and did not meet the standards set forth in Struksnes, supra. As such, I find the
General Counsel has met its burden to prove this allegation.
11. Interrogation and promise of enhanced job security—Housekeeper Rosa Lopez 5
Complaint paragraph 9(l) and (m) alleges that, on or about October 21, Valdivia, in her
office, interrogated employees and promised greater job security if the employees rejected the
Union.
10
On October 21, Valdivia gave Housekeeper Rosa Lopez a copy of the voluntariness form with
her name typed onto it. Valdivia read the letter to Rosa Lopez in English and explained it in
Spanish. Valdivia told Rosa Lopez she was worried about the employees being forced to sign
the petition, and told her to sign the letter if she had felt forced to sign the petition. Valdivia said
that if Rosa Lopez signed the letter stating that she had been forced, she would have her job as 15
long as she liked. Rosa Lopez said she had not been forced, and she wanted the Union.44
The legal standards for interrogation cited above apply, and the analysis of the Bourne
factors mirrors Valdivia’s interrogation of Meza. As with Meza, Rosa Lopez, who had signed
the petition, was questioned about it by Valdivia, the highest management official at VDS. The 20
questioning occurred in Valdivia’s office, behind closed doors, with nobody else present. The
march had occurred just a week before, and the Union had filed the petition for representation
just days before.
Considering the totality of the evidence, including and the absence of assurances Valdivia 25
gave regarding her questions, I find the General Counsel has met its burden to prove this
allegation.
Turning to the allegation that Valdivia told Rosa Lopez that if she signed the
voluntariness form stating that she had been forced, she would have her job as long as she liked, 30
the legal standards set forth in NLRB v. Exchange Parts Co., articulated in the section on the
October wage increases for Maria Ramirez and Rosa Lopez, apply. I find this is was an unlawful
promise of increased job security in exchange for repudiating the Union. See Dyncorp, 343
NLRB 1197, 1198 (2004), citing Bakersfield Memorial Hospital, 315 NLRB 596, 600 (1994).
See also Sequoyah Spinning Mills, 194 NLRB 1175, 1192 (1972).35
There is no question an employee would reasonably view such a comment as an attempt
to interfere with or coerce her in her choice on union representation. There can be no
conceivable legitimate business justification for such a promise. In fact, by any reasonable
construction, it is an implied threat that failing to sign the form stating her support for the Union 40
was forced will result in diminished job security.

44 Again, this testimony is unrefuted and, for the reasons set forth above, I find an adverse inference is
warranted based on Valdivia’s failure to testify about this conversation applicable both to the
interrogation allegation and the promise of increased job security allegation. (GC Br. 46, 48.)
JD(SF)–24–15
37
By telling Rosa Lopez she could have her job as long as she wanted if she signed the
voluntariness form to indicate she was forced into signing the petition, the Respondent has
violated Section 8(a)(1).
12. Threat of Facility Closure5
Complaint paragraph 13 alleges that, on October 9, 2014, the Respondent, by a letter
from its attorney, threatened employees with closure of its facility and job loss for engaging in
protected concerted and/or union activities.
10
Counsel for the Respondent sent the letter to the counsel for the General Counsel, copied
to the Union’s counsel. It stated, in relevant part:
Please accept the following as a reply to both the proposals for settlement as well as the
warnings if settlement fails. . . . We strongly suggest that the Board ensure that the 15
employees are made aware of these offers and that they have a say in the decision. They
may not like the alternative. . . . the only alternative VDS will have is to close down its
facility. In such a situation, . . . the remaining of the 60 employees will lose their
employment. . . . This letter is been [sic] sent to the Union’s Counsel as well in the hope
that she makes the Claimants aware of all alternatives so they have the opportunity to 20
make informed selfless decisions.
Union Organizer Paul Vellanoweth showed the letter to employees.
Statements connecting union activity to plant closure violate Sec. 8(a)(1) unless such 25
statements are based on objective fact. “Conveyance of the employer's belief, even though
sincere, that unionization will or may result in the closing of the plant is not a statement of fact
unless, which is most improbable, the eventuality of closing is capable of proof.” NLRB v.
Sinclair Co. 397 F.2d 157, 160 (1st Cir. 1968), cited with approval by NLRB v. Gissel Packing
Co., supra. “As stated elsewhere, an employer is free only to tell ‘what he reasonably believes 30
will be the likely economic consequences of unionization that are outside his control,’ and not
‘threats of economic reprisal to be taken solely on his own volition.’” Gissel Packing, quoting
NLRB v. River Togs, Inc., 382 F.2d 198, 202 (C.A.2d Cir. 1967).
The October 9, 2014, letter explicitly threatens that employees should accept settlement 35
or VDS will close the facility. It gives no explanation of the objective facts underlying such a
prediction. I find, therefore, that the letter constitutes an unlawful threat of closure.
The Respondent contends the letter is a privileged settlement document. Under Rule 408
of Federal Rules of Evidence, offers of compromise in settlement discussions are not admissible. 40
The rule does not, however, prohibit the introduction of evidence of threats during a settlement
discussion. Miami Systems Corp., 320 NLRB 71, 76 (1995), affd. in relevant part 111 F.3d 1284
(6th Cir. 1997).
The Respondent also contends that the Union was cc’d only at the Board’s request. 45
Regardless of why the Union was cc’d, the letter plainly expresses the Respondent’s intent that
its offer and the consequences for refusing it be shared with employees.
JD(SF)–24–15
38
Accordingly, I find the October 9, 2014, letter was an unlawful threat, as alleged in
complaint paragraph 13.
C. Section 8(a)(3) allegations5
Complaint paragraph 15 alleges that numerous employees were discharged because of
their Union activities.
1. CNAs Martha Aparicio and Delfina Sanchez10
In analyzing alleged discriminatory personnel actions in mixed-motive cases, the Board
applies the analytical framework of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright Line, the General Counsel has
the initial burned to prove, by preponderant evidence, that the employees engaged in protected 15
activity, the employer knew about it, and the adverse employment action at issue was motivated
by it. If the General Counsel is able to make such a showing, the burden of persuasion shifts to
the employer “to demonstrate that the same action would have taken place even in the absence of
the protected conduct.” Wright Line, supra at 1089; See also Manno Electric, 321 NLRB 278,
280 fn. 12 (1996). The employer cannot carry this burden merely by showing that it also had a 20
legitimate reason for the action, but must persuade, by a preponderance of the evidence, that the
action would have taken place absent the protected activity. Dentech Corp., 294 NLRB 924, 956
(1989).
Both Martha Aparicio and Delfina Sanchez engaged in union activity by signing25
authorization cards and signing the petition. Aparicio also attended union meetings and
participated in the march to present the petition to Valdivia on October 14. The Respondent was
aware of this activity, as it is undisputed Valdivia saw the employees participate in the march,
saw the petition, and forwarded it to VDS’s corporate offices.
30
There is ample evidence that the terminations were motivated by union activity.
Unlawful employer motivation may also be established by circumstantial evidence. A
discriminatory motive or animus may be established by: (1) the timing of the employer’s adverse
action in relationship to the employee’s protected activity; (2) the presence of other unfair labor
practices, (3) statements and actions showing the employer’s general and specific animus; (4) the 35
disparate treatment of the discriminatees; (5) departure from past practice; and (6) evidence that
an employer’s proffered explanation for the adverse action is a pretext. See Golden Day Schools
v. NLRB, 644 F.2d 834, 838 (9th Cir. 1981); NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354 (7th
Cir. 1984) (timing); Mid-Mountain Foods, Inc., 332 NLRB 251, 260 (2000), enfd. mem. 169
LRRM 2448 (4th Cir. 2001); Richardson Bros. South, 312 NLRB 534 (1993) (other unfair labor 40
practices); NLRB v. Vemco, Inc., 989 F.2d 1468, 1473–1474 (6th Cir. 1993); Affiliated Foods,
Inc., 328 NLRB 1107 (1999)(statements); Naomi Knitting Plant, 328 NLRB 1279, 1283
(1999)(disparate treatment); JAMCO, 294 NLRB 896, 905 (1989), affd. mem. 927 F.2d 614
(11th Cir. 1991), cert. denied 502 U.S. 814 (1991) (departure from past practice); Wright Line,
251 NLRB at 1089; Roadway Express, 327 NLRB 25, 26 (1998) (disparate treatment). 45
JD(SF)–24–15
39
The Board will infer an unlawful motive or animus where the employer’s action is
“‘baseless, unreasonable, or so contrived as to raise a presumption of unlawful motive.’” J. S.
Troup Electric, 344 NLRB 1009 (2005) (citing Montgomery Ward, 316 NLRB 1248, 1253
(1995)); See also ADS Electric Co., 339 NLRB 1020, 1023 (2003); Shattuck Denn Mining Corp.
v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966).5
The timing of the terminations, four days after Valdivia received the petition from the
employees and the day after the Union filed its petition for representation, is strong evidence of
unlawful motivation. See Best Plumbing Supply, 310 NLRB 143, 144 (1993); NLRB v. Rain-
Ware, Inc., 732 F.2d 1349, 1354 (7th Cir. 1984). Final checks for both CNAs were prepared on 10
October 15, the day after the march and presentation of the petition. Moreover, the timing of the
adverse employment actions occurred concurrently with interrogations and threats that I have
found violated the Act. Cal Western Transport, 316 NLRB 222, 223 (1995); Richardson Bros.,
312 NLRB 534 (1993).
15
Delay can be evidence of pretext. Doctor’s Hospital of Staten Island, Inc. 325 NLRB
730, 738 (1998); New Haven Register, 346 NLRB 1131, 1143 (2006)(suspension on January 7,
2005 for events that occurred on December 23–24, 2004). I find the delay in terminating
Aparicio and Delfina Sanchez is further evidence of unlawful motivation and pretext.
Importantly, the CNAs were not terminated until more than 10 days after they were 20
photographed sleeping, and they continued to work during this time period. Meanwhile, they
were provided with assurances from the director of nursing and the charge nurse that they should
not worry, and the practice going forward would be to make sure the CNAs did not take their
breaks at the same time.45 It was not until after the employees marched and presented their
petition to Valdivia that the Respondent took action to terminate Aparicio and Delfina Sanchez. 25
Care Manor of Farmington, 314 NLRB 248, 255 (1994); Clinton Food 4 Less, 288 NLRB 597,
598 (1988). And, it was not until October 30 or 31, after the terminations had already occurred,
that Valdivia requested a statement from Adelman.
The Respondent asserts that the terminations were effectuated as soon as they were 30
approved by “corporate.” It is undisputed that Valdivia had authority to terminate employees.
No evidence was presented about any corporate approval process, and it is unclear who from
corporate was involved in any such process. Nobody from corporate signed off on the
terminations. I therefore find this justification for the delay fails to withstand scrutiny.
35
The lack of meaningful investigation into the incident is further evidence of unlawful
motivation. “The failure to conduct a meaningful investigation and to give the employee who is
the subject of the investigation an opportunity to explain are [likewise] clear indicia of
discriminatory intent.” See New Orleans Cold Storage & Warehouse Co., Ltd., 326 NLRB 1471,
1477 (1998), enfd. 201 F.3d 592 (5th Cir.2000). Prior to October 18, nobody interviewed 40
Aparicio or Sanchez about the incident to determine whether they were on their breaks when
Adelman photographed them. There is likewise no evidence that Abaunza was ever
interviewed. The failure to interview the individuals present that night as part of a good faith in-
depth investigation is baffling and highly indicative of pretext. Clinton Food 4 Less, supra.

45 It is undisputed the director of nursing and charges nurses are admitted supervisors under Sec.
2(11), and have the authority to suspend and discharge employees.
JD(SF)–24–15
40
Adelman reported to Valdivia that he had seen five individuals sleeping—the hospice
worker in his mother’s room and four nurses at the nurses’ station. Despite this, nobody at VDS
apparently made any attempt to figure out who the fourth nurse was. Instead, VDS was content
to rely on the pictures of Aparicio, Delfina Sanchez, and Abaunza, and leave it at that. It would 5
have been extremely easy to simply ask Abaunza, Aparicio, and/or Delfina Sanchez the identity
of the CNA who had been sleeping but not photographed. It would have been extremely easy to
look at the timecards, see that Maria Lopez was working, and ask her if she was the other
individual Adelman saw sleeping. If the goal was to ensure CNAs who slept while working
were disciplined, VDS’s cursory investigation does not make sense. If the goal was to seize 10
upon the photographs to terminate the employees who supported the Union, without taking the
care to discern what had really occurred, it does.46 I find the Respondent’s assertion that it was
entitled to rely on its business records to determine who was working that night is a convenient
justification for ignoring an easily discoverable truth about what actually happened.
15
There is evidence that the Respondent’s disciplinary policy was not applied consistently,
further pointing to pretext. Tubular Corp. of America, 337 NLRB 99 (2001). As noted above,
Maria Ramirez was admittedly sleeping at the same time and in the same manner as Aparicio and
Delfina Sanchez, yet she was not terminated or even disciplined. The Respondent was aware of
this at least as of October 18, as the undisputed evidence shows Delfina Sanchez informed 20
Warner that Maria Ramirez was also asleep. Notably, Maria Ramirez did not sign the petition,
participate in the march, or otherwise notify management that she supported the Union. Other
evidence of inconsistent application is that employees continued to sleep while on their breaks
during the weeks following Aparicio and Delfina Sanchez’s terminations, yet they were not
disciplined. This is particularly telling in light of the fact that cameras were installed. 25
Moreover, there is evidence that VDS had Union animus, and was intent on taking
actions to ensure the Union did not come to VDS. I find Warner’s string of text messages to
Remedios Lopez, set forth fully above, is strong evidence of animus. Warner stated: “Rosa did
get rid of house keeping and laundry because she said the CNA will need 50% vote”; “I am 30
writing corporate to let them know that Rosa was retaliating against the CNA formation of the
union”; “[S]he was so mad about this union business Rosa did (sic) even want 2 do employee of
the month which I said should be u and Marcos. Nope she wAs 2 mad”; and “I think rosa is
gonna blame things on me & I need to make sure she does not & I do need to let the labor board
know that rosa fired them as retaliation. If u know anything let me know.” I find the text 35
messages from Warner are not hearsay. Federal Rule of Evidence 801(d)(2)(D) provides that a
statement is not hearsay if it is offered against an opposing party and “was made by the party's
agent or employee on a matter within the scope of that relationship.” To fall within the scope of
Rule 801(d)(2)(D), the General Counsel must show that the statement was made by an “agent or
servant” of VDS. Here, it is undisputed that Valdivia was an agent of VDS. Her statements 40
concerning the termination of employees and unwillingness to designate an employee of the
month clearly are within the scope of her employment duties.47

46 Abaunza was terminated on October 28, after the Union filed its initial unfair labor practice charges
on October 23.
47 The General Counsel attempted to subpoena Warner to testify at the hearing, but the certified letter
to her last known address was not picked up and she did not respond to telephone messages. (Tr. 539–
JD(SF)–24–15
41
Cuellar’s statement that there were new CNAs for the night shift because Valdivia “wants
to get rid of all the people who signed the union thing” is additional evidence of animus, as is
Zelaya’s statement that “some people tried to talk Rosa out of what she was doing but she did not
listen.” These statements were made to Castillo. Cuellar did not refute this statement when she 5
testified, and Zelaya did not testify. I find Castillo’s recollection of these conversations was
credible.48 She left VDS voluntarily to go back to school, and has nothing to gain or lose by
being truthful. She testified in an open-ended manner, without embellishment or exaggeration,
and I find her testimony was candid. Her testimony is corroborated by other evidence of animus
apparent from the interrogations and other coercive conduct discussed above in connection with 10
the Sec. 8(a)(1) allegations.
Based on the foregoing, I find the General Counsel has easily met its initial Wright Line
burden.
15
The Respondent now bears the burden to prove that it would have terminated Aparicio
and Delfina Sanchez even if they had not engaged in union activity. The Respondent asserts that
it was merely complying with its disciplinary policy, which states that sleeping on the job results
in termination, and the Union activities of Aparicio and Delfina Sanchez were not a factor.
There are several problems with this justification. In addition to the anomalies above, there is 20
abundant evidence that the established practice on the night shift was for employees to make
their rounds, clock out for their ½-hour break around 12:30–1 a.m., but then take their actual
breaks later when things were quieter, typically around 3 or 4 a.m. Charge Nurse Castillo, who
regularly worked the nightshift, admitted this was the practice. Nobody who worked the
nightshift testified otherwise. 25
Valdivia, Cuellar, and Hanson denied that that employees’ actual breaks occurred later
than when the clocked out. Valdivia and Cuellar did not work the nightshift, however, so while
they were versed in VDS’s formal policies, there was no evidentiary foundation to support that
they had knowledge of actual practices. Accordingly, I do not credit their testimony on this point30
as to the actual practices on the night shift. Hanson’s testimony on the matter is wholly
incredible. She initially testified that she worked the night shift 3–4 times per month. On cross-
examination, she said she worked the night shift 3 times per month or less. The evidence shows,
however, that between January 1, 2013, and October 31, 2013, Hanson worked the 11:00 p.m. to
7:00 a.m. shift on only one occasion. It is clear Hanson fabricated her testimony in an attempt to 35
buttress the Respondent’s argument about its break policy. I find her testimony as a whole lacks

540.) Assuming the statements attributed to Valdivia from Warner’s text are considered hearsay, I find
the statements reliable. I note that Remedios Lopez was very credible in his explanation about how the
texts were received, and there is nothing to refute that Warner sent them to him. The statements are
supported by other evidence of record relating to animus, and I note Valdivia did not refute much of what
Warner conveyed. RC Aluminum Industries, Inc., 343 NLRB 939, 940 (2004).
The Respondent plainly misunderstands the scope of Rule 801(d)(2)(D) by asserting that the
statements attributed to Valdivia are hearsay because Warner was had been terminated when she sent the
text to Remedios Lopez. (R Br. 13.)
48 For the same reasons articulated regarding DON Warner’s texts, I find Rule 801(d)(2) applies and
the comments attributed to Cuellar and Zelaya are not hearsay. Assuming they are considered hearsay, I
find it is reliable hearsay because it is corroborated and unrefuted. RC Aluminum Industries, Inc., supra.
JD(SF)–24–15
42
credibility and strongly indicates pretext regarding the Respondent’s statements about practices
on the night shift.
It undisputed that the CNAs were permitted to nap during their breaks. There was no
evidence presented as to any particular location the CNAs were required to take breaks, whether 5
or not they were napping. The Respondent did not refute testimony that Aparicio had received
permission from Abaunza to take their breaks.
I find the departure from established past practice is strong evidence of pretext. See
Bryant & Stratton Business Institute, 321 NLRB 1007, 1026–1028 (1996), enfd, 140 F.3d 169 10
(2d Cir.1998) (unlawful to discipline faculty members who ended class early where discipline
had not previously been imposed for that reason); Thill, Inc., 298 NLRB 669, 670 (1990)
(singling out two employees for warnings regarding conduct for which no other employee had
been warned). The fact that no other employees were disciplined despite the Respondent’s
knowledge that other employees, and particularly Maria Ramirez, had committed the same 15
offense, coupled with the evidence unlawful motivation above, convince me that the Respondent
seized upon the opportunity to discharge known union supporters Martha Aparicio and Delfina
Sanchez. See Sanderson Farms, Inc., 340 NLRB 402, 402–03 (2003) (Pretextual reason for
discharge defeats employer’s attempt to show it would have discharged employee absent his
union activities).20
Accordingly, I find that the General Counsel proved that the Respondent violated Section
8(a)(3) and (1) of the Act as alleged with regard to Martha Aparicio and Delfina Sanchez.
2. Housekeepers and maintenance employee 25
As detailed above, the Respondent entered into a contract on October 3, 2013, to
outsource its housekeeping department. All six housekeepers and maintenance worker Genaro
Meza were discharged between October 25–27, 2013.49 They were replaced by five Pro-Clean
employees. 30
The Wright Line framework applies to this allegation. The General Counsel need not
prove the employer's knowledge of any specific employee's opinion or sympathies in the context
of a mass discharge conducted with the unlawful purpose of discouraging union membership.
See Birch Run Welding & Fabricating Inc. v. NLRB, 761 F.2d 1175, 1179–1180 (6th Cir.1985). 35
The mass discharge itself is unlawful rather and the General Counsel therefore is “not required to
show a correlation between each employee's union activity and his or her discharge.” Pyro
Mining Co., 230 NLRB 782 fn. 2 (1977).50 Instead, the General Counsel's burden is to establish
that the mass discharge was ordered to discourage union activity or in retaliation for the
protected activity of some. “A power display in the form of a mass layoff, where it is 40
demonstrated that a significant motive and a desired effect were to ‘discourage membership in
any labor organization,’ satisfies the requirements of § 8(a)(3) to the letter even if some white
sheep suffer along with the black.” Majestic Molded Products v. NLRB, 330 F.2d 603, 606 (2d
Cir. 1964). See also Delchamps, Inc., 330 NLRB 1310, 1317 (2000); Weldun International, 321

49 The employees had no expectation of recall, so I do not find they were laid off.
50 For this reason, the Respondent’s arguments that the layoffs did not target union supporters fail.
JD(SF)–24–15
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NLRB 733, 734 (1996) (violation where the employer did not select employees for layoff based
on their support for the Union, but the layoff was part of an effort to discourage employees from
supporting the Union), enfd. mem. in part 165 F.3d 28 (6th Cir. 1998).
Turning to the General Counsel’s initial Wright Line burden, it is clear there was an 5
ongoing organizing drive and the that Respondent had knowledge of employees’ union activity
at the time it terminated the employees, between October 25–27, 2013. The fact that one of the
discharged housekeepers did not openly support the Union does not defeat employer knowledge
in the context of a mass discharge.
10
The Respondent contends that the General Counsel has failed to prove that, on October 3,
when VDS and Pro-Clean executed the contract, VDS was aware of Union activity. More
specifically, citing to Bayliner Marine Corp., 215 NLRB 12 (1974), the Respondent contends
that management officials had heard nothing more than rumor. I find the instant case is
distinguishable. Here, unlike in Bayliner, by August 2013, Valdivia had specifically been told 15
that individuals claiming to be from the Union were visiting employees at home. She had held
meetings with employees warning them not to open their doors to individuals claiming to be
from the Union because they might be thieves. Valdivia also reported that in mid-September,
Perdomo told her she was being called a traitor and had no friends at work because she did not
want to sign with the Union.51 (R Exh. 3.) I find this is sufficient to prove the Respondent had 20
knowledge of Union activity when VDS and Pro-Clean contracted for services.
The statements from VDS’s supervisors regarding animus articulated in the discussion of
the terminations of Aparicio and Delfina Sanchez, apply here. Warner’s text to Remedios Lopez
goes to the heart of VDS’s motivation for discharging the housekeepers and Meza. The 25
existence of other Sec. 8(a)(1) violations reinforces a finding of animus.
The evidence further reflects suspicious timing. The contract with Pro-Clean was signed
on October 3, 2013, with performance under its terms to begin that same day. Yet, VDS did not
start implementing the contract’s terms by bringing in any Pro-Clean employees until October 30
27. Moreover, the schedule for November was posted in late October, reflecting VDS
employees scheduled to work, and vacation requests having been granted.
There is also evidence of shifting reasons for outsourcing the housekeeping department.
See City Stationery, Inc., 340 NLRB 523, 524 (2003) (nondiscriminatory reasons for discharge 35
offered at the hearing were found to be pretextual where different from those set forth in the
discharge letters); GATX Logistics, Inc., 323 NLRB 328, 335 (1997) (“Where . . . an employer
provides inconsistent or shifting reasons for its actions, a reasonable inference can be drawn that
the reasons proffered are mere pretexts designed to mask an unlawful motive.”). During the Sec.
10(j) injunction proceedings in this matter, the Respondent’s stated reason was its “president 40
operates several facilities, all of which subcontract these services,” and that it “simply brought
this facility in line with [its president's] other business practices.” (GC Exh. 88, p. 31.) This
reason was rejected by the judge, and accorded no weight due to the lack of any evidentiary
support behind it. At the hearing, the Respondent asserted an economic justification, stating that

51 Though I have credited Perdomo’s version of the mid-September conversation, by Valdivia’s own
account, Perdomo discussed the Union.
JD(SF)–24–15
44
the housekeeping department was losing money at a time when VDS as a whole was consistently
losing money. While the shifting defenses alone are enough to raise a red flag, the economic
justification standing on its own fails to withstand scrutiny.
As the General Counsel points out, the estimated $831.08 per month in savings did not 5
take into account the retention of Ramon Lopez, who earned at least about $1,800 per month.
(GC Exhs. 6, 100 pp. 1–3.) This additional cost only increased when Pro-Clean increased its
monthly from the contracted amount of $15,406.00, to $16,387.66, nine months into the contract.
(Tr. 748–750; GC Exhs. 56, 98 pp. 1–7.) The General Counsel also points out that it would have
saved more money to discharge 2 VDS employees rather than replace seven VDS employees 10
with five Pro-Clean employees. (GC Br. 87; GC Exhs. 56, 59.)
The Respondent asserts that costs for both maintenance and housekeeping should be factored
into the accounting, resulting in a monthly decrease from $30, 384 to $16,387.66. There is no
evidence, however, that maintenance costs, other than Meza’s salary and benefits, decreased 15
because of Meza’s discharge. The contract does not obligate Pro-Clean to absorb VDS’s
maintenance costs. (GC Exh. 56.) Valdivia admittedly was not versed in the accounting, and
nobody else testified about the costs that comprised the maintenance budget. The Respondent has
the burden of persuasion to prove its asserted legitimate reason for contracting with Pro-Clean.
Absent evidence explaining what costs, if any, other than housekeeping and laundry the contract20
with Pro-Clean replaced, this burden is not met.
There have also been shifting reasons for retaining Ramon Lopez instead of Meza to
perform maintenance work. The Respondent asserted in its position statement to the Board in
November 2013, that Pro-Clean services were only for housekeeping not maintenance. In its 25
response to a subpoena in July 2014, the Respondent stated that Pro-Clean could not provide
afternoon or weekend maintenance. In its December 2014 memorandum of points and
authorities, the Respondent again asserted that Pro-Clean services were only for housekeeping
not maintenance. (GC Exhs. 84, 86–88, 32). At the hearing, Valdivia stated the Respondent
retained Ramon Lopez because Pro-Clean does not provide services 24 hours per day and 30
because Ramon Lopez also performs security guard duties.52 (Tr. 720–721.)
Finally, I find it highly significant that the Respondent did not call the decision maker or
decision makers to explain the reasons for subcontracting housekeeping to Pro-Clean, and, more
particularly, the timing of this action. Valdivia’s testimony about her decision-making capacity 35
in this regard is conflicting. She initially said, both in her affidavit and at the hearing, that the
decision to subcontract out housekeeping to Pro-Clean was made by corporate, not by Valdivia,
and she had no input. (Tr. 72, 704; GC Exh. 89.) At another point in her testimony, she said she
was part of the discussions about the decision, and recommended that they subcontract
housekeeping, but could not recall who at corporate she spoke with about this. (Tr. 89.) What is 40
clear is that she did not have the authority to make the decision. Her statement that she had no
input into the decision is much more plausible than her statement that she was part of discussions

52 Meza had worked for VDS since 1993, had more seniority than Ramon Lopez, no discipline in his
record, and there is no evidence Ramon Lopez had a better performance record. Meza was not offered the
opportunity to change to the shift VDS apparently needed covered in order to retain his job.
JD(SF)–24–15
45
about the topic and made a recommendation, but she could not recall with whom at corporate
these discussions took place.
Preimesberger did not testify, nor did anyone from the elusive “corporate.” Therefore, it
is appropriate to draw an adverse inference from the Respondent's failure to call these decision 5
makers to explain why they subcontracted the work of the housekeeping department and
discharged VDS’s housekeeping employees. Government Employees (IBPO), 327 NLRB 676,
699 (1999); United Parcel Services of Ohio, 321 NLRB 300, 308–309 (1996); Ready Mixed
Concrete, 317 NLRB 1140, 1143, fn. 16 (1995); Dorn's Transportation, 168 NLRB 457, 460
(1967), enfd. in pert. part 405 F.2d 706, 713 (2nd Cir. 1969) (failure of the decision maker to 10
testify “is damaging beyond repair”); The Southern New England Telephone Co., 356 NLRB No.
118 (2011)(failure to call decisionmaker warrants adverse inference); Interstate Circuit v. United
States, 306 U.S. 208, (1939) “The production of weak evidence when strong is available can lead
only to the conclusion that the strong would have been adverse”).
15
I find the Respondent has failed to meet its burden to prove, by preponderant evidence,
that its decision to subcontract out housekeeping and discharge the housekeeping employees and
Meza was economically motivated. I further find the General Counsel has proved that the
Respondent’s stated reason for discharging the housekeepers and Meza was pretext to mask its
anti-union motivation. 20
3. December 2013 wage increase
Complaint paragraph 14 alleges that the Respondent granted a wage increase in
December 2013 because the employees assisted the Union and engaged in concerted activities, 25
and to discourage employees from engaging in these activities, in violation of Section 8(a)(3)
and (1).
a. Timeliness
30
I will first address the Respondent’s contention that the charge asserting this allegation
was not filed within the 6-month time period set forth in Sec. 10(b) of the Act. Section 10(b)
provides that “no complaint shall issue based upon any unfair labor practice occurring more than
six months prior to the filing of the charge with the Board.” The charge in Case 31-CA-137770
was filed on September 26, 2014, which is more than 6 months from the December 2013 alleged 35
unfair labor practice. (GC Exh. 1(jjjj).)
Citing to Redd-I, Inc., 290 NLRB 1115, 1116–1117 (1988), the General Counsel
contends the charge is nonetheless timely because it is closely related to other timely charges
alleging unlawful inducements. (GC Br. 74, fn. 12.)40
The charge in Case 31–CA–118685, filed on December 9, 2013, alleges violations of
Sec. 8(a)(1) for inducements and promises of benefits, among other conduct. (GC Exh. 1(xxx)).
The first amended charge in that case, filed on October 21, 2014, again alleges unlawful
inducements and promises of benefits, among other conduct. (GC Exhs. 1(aaaa) and (llll).) The 45
instant charge was filed as an original charge on September 26, 2014, and assigned Case No. 31–
JD(SF)–24–15
46
CA–137770. (GC Exh. 1(jjjj).) It alleges that the December 2013 wage increase violated Sec.
8(a)(3) and (1) of the Act.
The General Counsel contends that a wage increase is a type of inducement and therefore
the allegation about the December 2013 wage increase involves the same factual situation. 5
The Board’s caselaw for dealing with an amended charge filed outside the Sec. 10(b)
period is well-established. “[T]he timely filing of a charge tolls the time limitation of Section
10(b) as to matters subsequently alleged in an amended charge which are similar to, and arise out
of the same course of conduct, as those alleged in the timely filed charge. Amended charges 10
containing such allegations, if filed outside the 6-month 10(b) period, are deemed, for 10(b)
purposes, to relate back to the original charge.” Pankratz Forest Industries, 269 NLRB 33, 36–
37 (1984), enfd. mem. sub nom. Kelly-Goodwin Hardwood Co. v. NLRB, 762 F.2d 1018 (9th Cir.
1985).
15
In the instant case, however, the untimely charge was not filed as an amended charge, but
rather as an original charge. Because the General Counsel included the allegation from the
charge in Case 31–CA–137770 in its complaint, however, regardless of the form or timing of the
charge, I must determine whether it relates back to conduct that was timely charged and also
encompassed in the complaint. This is because the General Counsel’s complaint is not restricted 20
to the precise allegations of a charge. If there is a timely charge, the complaint may allege any
matter sufficiently related to or growing out of the charged conduct. NLRB v. Fant Milling Co.,
360 U.S. 301, 309 (1959).
To determine whether a later charge relates back to an earlier charge, the Board applies 25
the three-prong “closely related” test set forth in Redd-I, Inc., 290 NLRB 1115, 1118 (1988). See
Peerless Pump Co., 345 NLRB 371, 374 (2005). The Board considers:
(1) whether the otherwise untimely allegations of the amended charge involve the same
legal theory as the allegations in the timely charge; 30
(2) whether the otherwise untimely allegations of the amended charge arise from the
same factual situation or sequence of events as the allegations in the timely charge; and
(3) whether a respondent would raise the same or similar defenses to both the untimely
and timely charge allegations.
35
Redd-I, supra. Though Redd-I concerns the similarity of amended charges, the relatedness test
applies to allegations in initial complaints. Nickles Bakery of Indiana, 296 NLRB 927, 927–928
(1989).
With respect to the first Redd-I factor, the allegations in the complaint stemming from the 40
timely charges rest on a legal theory of inducement and promises of benefits aimed at coercing
employee in their exercise of Section 7 rights in violation of Sec. 8(a)(1). The allegation that
employees were granted a wage increase rests on this same legal theory, as well as a theory that
the wage increase was unlawfully motivated under Sec. 8(a)(3). An untimely allegation need not
involve the same section of the Act as the other alleged violations. Nickles Bakery of Indiana,45
supra, fn. 5.
JD(SF)–24–15
47
With regard to the Sec. 8(a)(1) allegation encompassed in complaint paragraphs 14(a)
and 18, the same legal theory clearly applies. The more difficult question is whether the 8(a)(3)
allegation in complaint paragraphs 14(b) and 19 encompasses the same legal theory. I find that it
does. First, both allegations share a common legal theory based on the Respondent's animus in
opposing to the Union's organizational campaign. The timely charges and the untimely 8(a)(1) 5
charge allege coercive inducements manifesting a general animus against union activity. The
untimely 8(a)(3) charge alleges a wage increase motivated by animus against employees’ union
activity. The common aspect of animus in such circumstances is sufficient to meet the Redd-I
requirement that essentially similar legal theories underlie the different allegations. See Fiber
Products, 314 NLRB 1169 (1994), enfd. FPC Holdings, Inc. v. NLRB, 64 F.3d 935, 941 (4th Cir. 10
1995). Moreover, Unlike most 8(a)(1) allegations, analysis of a claim that benefits were
promised, announced, or granted to coerce employees in their choice of bargaining representative
is motive-based. Network Dynamics Cabling, Inc., supra. Thus, analysis of both the (8)(a)(1)
and 8(a)(3) allegations concerns whether the evidence as a whole, including any proffered
legitimate reason for the wage increase, supports an inference that the offer was motivated by an 15
unlawful purpose to coerce or interfere with Section 7 rights.
Turning to the second factor, it is abundantly clear the otherwise untimely allegation
arose from the same factual situation or sequence of events outlined above. It is a continuation of
a pattern of unlawful conduct aimed at keeping the Union away. 20
Finally, with regard to the third factor, similar defenses would apply in that Respondent
would attempt to explain both a promise of a benefit and the grant of a benefit as legitimate
actions taken for reasons unrelated to the Union.
25
The Respondent points out that, under Redd-I, complaint amendments outside the 10(b)
time period may are only permitted if the untimely allegations are closely related timely
violations named in the charge and occurred within 6 months before the filing of the charge.
This test from Redd-I, however, which applies to complaint amendments, does not appear in
Nickles Bakery, which concerns allegations in initial complaints. In any event, the increase, 30
which began on December 1, 2013, occurred within 6 months before the charge in Case 31–CA–
118685, which was filed on December 9.
In sum, it would defy any measure of logic and common sense to say an allegation that
actual benefits conferred on employees is not sufficiently related to or an outgrowth of an 35
allegation regarding the promise of benefits. NLRB v. Fant Milling Co., supra. I therefore find
the General Counsel has met its burden to prove the allegation is timely.
b. Merits of the allegation
40
With regard to the Sec. 8(a)(1) allegations, the legal standard framework for wage
increases, governed by NLRB v. Exchange Parts Co., 375 U.S. 405 (1964), is set forth above in
the section addressing the October wage increases of CNA Maria Ramirez and Housekeeper
Romana Lopez. And because a Sec. 8(a)(1) claim regarding a wage increase is motive based,
many of the same factors are considered for both the Sec. 8(a)(3) and (1) claims. 45
JD(SF)–24–15
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I find the employees would reasonably view the December wage increase as an attempt to
interfere with or coerce them in their choice on union representation. Southgate Village Inc.,
supra. The wage increase was implemented while the petition for a Board election was still
pending, on the heels of the unfair labor practices described above. Significantly, wage increases
at VDS are not on a set schedule and depend on VDS’s financial state. Yet the wage increase 5
followed the replacement of the housekeeping employees with contractors—a move made
ostensibly because VDS was experiencing financial hardship. Most of the employees had not
received a raise in a more than 5 years, so an across-the-board wage increase of this magnitude
certainly sent a message. Given the other coercive conduct over the preceding months, I easily
find the employees would reasonably view the wage increase as an attempt to steer them away 10
from the Union.
The employer must demonstrate a legitimate business reason for the timing of the benefit.
No such reason was forthcoming.
15
As to the 8(a)(3) allegations, the General Counsel has met its initial burden under Wright
Line for the reasons set forth in the analyses of the terminations and discharges. As noted directly
above, the Respondent has not come forward with a legitimate reason for the wage increase, and
I therefore find the General Counsel has met its burden to prove this allegation.
20
D. Request for Bargaining Order
In complaint paragraph 16, the General Counsel has requested a remedial bargaining
order pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Though such a remedy is
extraordinary, I find the General Counsel has met its burden to prove it is appropriate under the 25
circumstances present here.
The purpose of a remedial bargaining order is “to remedy past election damage [and]
deter future misconduct.” Gissel, supra. The Supreme Court had sanctioned the issuance of such
a bargaining order “where an employer has committed independent unfair labor practices which 30
have made the holding of a fair election unlikely or which have in fact undermined the union's
majority. . . .” Gissel, 395 U.S. at 610; see also NLRB v. Katz, 369 U.S. 736, 748, (1962). The
Board thus has the authority to order an employer to recognize and bargain with a union even if
the employees have not voted for union representation in an election.
35
The Supreme Court in Gissel identified two categories of employer misconduct that
might implicate a bargaining order. “Category I” cases involve outrageous and pervasive unfair
labor practices that make a fair election impossible. “Category II” cases involve less
extraordinary and less pervasive unfair labor practices, which have nonetheless undermined
majority union support, once expressed through authorization cards, rendering the possibility of a 40
fair election slight. See Register Guard, 344 NLRB 1142, 1146 (2005); Milum Textile Services,
357 NLRB No. 169, slip op. at 11 (2011).
As to Category I, the pervasiveness of the unfair labor practices is described fully above
and need not be reiterated here. The unfair labor practices included highly coercive hallmark 45
violations such as a mass discharge of the housekeeping department, threats of job loss and
facility closure, and discriminatory terminations. See NLRB v. Jamaica Towing, 632 F.2d 208,
JD(SF)–24–15
49
212–213 (2d Cir. 1980); General Fabrications Corp., 328 NLRB 1114, 1116 fn. 17 (1999), enfd.
222 F.3d 218 (6th Cir. 2000). The Respondent also implemented the first across-the board wage
increase for its CNAs, the largest group of employees, in more than 5 years, while the petition
for a Board election was still pending. “Such unlawful wage increases have a particularly long
lasting effect because the Board's traditional remedies do not require that an employer rescind its 5
wage increase…. Because such increases regularly appear in employees' pay checks, they are a
continuing reminder that ‘the source of benefits now conferred is also the source from which
future benefits must flow and which may dry up if not obliged.” Overnight Transportation Co.,
329 NLRB 990 (1999), quoting NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964). See
also NLRB v. Jamaica Towing, supra (“hallmark violations,” including Section 8(a)(3) granting 10
of benefits, are regarded as highly coercive and are “likely to have a lasting inhibitive effect on .
. . the work force”)
These threats and other actions came from high levels of management and continued over
several months. “Neither the threat nor the mass layoff is likely to be forgotten by the 15
employees. To the contrary, these are the types of dire warnings and concrete measures certain to
exert a substantial and continuing coercive impact on any employee, whether current or
subsequently hired, contemplating a vote in favor of unionization.” Weldun Intern., Inc., 321
NLRB 733, 734, and 748 (1996), enfd. mem. in relevant part 165 F.3d 28 (6th Cir. 1998).
20
I am persuaded that these violations, which occurred in a relatively small unit, make it
unlikely that traditional Board remedies will create the conditions required for a fair and reliable
election. Based on the foregoing, I find, therefore, that based on the severity and pervasiveness
of the unfair labor practice, a bargaining order is warranted under Category I. Electro-Voice,
Inc., 320 NLRB 1094 (1996). 25
E. Section 8(a)(5) Allegations
Complaint paragraphs 17 and 20 allege that the Union violated Sec. 8(a)(5) of the Act by
failing to bargain over the discharges and the December 2013 wage increase. 30
The Act, at Section 8(a)(5), provides that it shall be an unfair labor practice for an
employer “to refuse to bargain collectively with the representatives of his employees.”
Collective bargaining is defined in Section 8(d) as “the performance of the mutual obligation of
the employer and the representative of the employees to meet at reasonable times and confer in 35
good faith with respect to wages, hours, and other terms and conditions of employment.” The
Act does not define “terms and conditions” of employment. Regarding topics other than wages,
hours, or other terms and conditions of employment, “each party is free to bargain or not to
bargain, and to agree or not to agree.” NLRB v. Borg-Warner, 356 US 342, 349 (1958).
40
First, I find the following employees of VDS are an appropriate bargaining unit for
purposes of Section 9(b) of the Act:
Included: All full-time, part-time, and on-call Certified Nurse Assistants (CNA),
restorative nurse assistants (RNA), caregivers, Housekeeping, Laundry, Cooks, Dietary 45
aids, maintenance, and activity assistants.
JD(SF)–24–15
50
Excluded: All other employees, confidential employees, managers, office, clerical
employees, professional employees, guards and supervisors as defined in the [A]ct.
Having determined that the Union represented the majority of the employees in the appropriate
unit as of October 13, I find that the Respondent violated Section 8(a)(5) and (1) of the Act by 5
refusing the Union's demand for recognition.
When the Union has obtained signed authorization cards from a majority of employees,
as here, the obligation to bargain attaches when the employer embarks on a campaign of unfair
labor practices. Parts Depot, Inc., 332 NLRB 670, 678 (2000), enfd. 24 Fed.Appx. 1 (D.C. Cir. 10
2001). I find, therefore, that the duty to bargain attached no later than October 14, 2013.
1. Terminations of CNAs Martha Aparicio and Delfina Sanchez
I have found these October 18, 2013, terminations violated Sec. 8(a)(3), and will order 15
reinstatement of Martha Aparicio and Delfina Sanchez. In the event a reviewing authority
disagrees with my 8(a)(3) findings, however, I find that the terminations are a mandatory subject
of bargaining. Ryder Distribution Resources, 302 NLRB 76, 90 (1991) (termination of unit
employees is a mandatory subject of bargaining, even if the parties have not yet negotiated a
collective-bargaining agreement); N.K. Parker Transport, Inc., 332 NLRB 547, 551 (2000). It is 20
undisputed that the Respondent did not give notice to the Union and an opportunity to bargain
over the decision to terminate Martha Aparicio and Delfina Sanchez, or the effects of those
terminations. I therefore find the General Counsel has established a violation of Sec. 8(a)(5).
2. Termination of Maintenance Worker Meza25
Though the Respondent linked the discharge of Meza to the decision to subcontract out
housekeeping to Pro-Clean and discharge the housekeepers, I find no proof in the record that
maintenance fell under the contract with Pro-Clean. I find that Meza’s termination was a
mandatory subject of bargaining. It is undisputed that the Respondent did not give notice to the 30
Union and an opportunity to bargain over the decision to terminate Meza or the effects of this
termination. I therefore find the General Counsel has established a violation of Sec. 8(a)(5).
3. Discharge of housekeeping employees
35
The discharge of the housekeeping employees occurred after the Respondent’s entered
into an agreement subcontract its housekeeping department to Pro-Clean, on October 3, 2013.
The discharges themselves, however, did not occur until October 27–29.
As detailed above, nobody with decision-making authority testified as to why or when the 40
decision was made to discharge the housekeeping employees. Valdivia signed the contract with
Pro-Clean on October 3, and by its terms, it took effect the same day. Nobody from corporate
testified about when the decision to discharge the employees, which occurred about 3 weeks
after the contract was signed, was finalized. For the reasons set forth above, I am drawing an
adverse inference based on the decisionmakers’ failure to testify, and I find the decision was 45
made after October 13, 2013.
JD(SF)–24–15
51
Accordingly, I both the decision to discharge the employees and the effects of the
discharges were mandatory subjects of bargaining, and I therefore find the General Counsel has
established a violation of Sec. 8(a)(5).
F. Respondent’s Request for Litigation Fees5
The Respondent asserts the Board and the Union acted in bad faith, and therefore should
pay the Respondent’s litigation fees. (R Br. 14–18.) I have addressed the alleged witness
coaching and the settlement communication above. With regard to a charge that was dismissed,
the proper procedures for addressing this are set forth in Rule 102.19 of the Boards Rules and 10
Regulations.
I have considered all of the Respondent’s arguments. No evidence was presented at trial
to support these arguments, and I cannot rule based solely on the Respondent’s assertions set
forth in its brief. I therefore decline to grant the remedy of litigation fees due to the lack of 15
record evidence regarding bad faith on the part of the Union or Board.
CONCLUSIONS OF LAW
1. By instructing employees not to talk to the Union, interrogating employees about union 20
activities, threatening employees with unspecified reprisals for engaging in union activities,
engaging in surveillance of employees’ union activities, telling employees engaging in Section 7
activities to leave the premises, promulgating a rule prohibiting logos, announcing a rule to
employees that attendance would be more strictly enforced, polling employees about their
support for the Union, promising enhanced job security for saying the Union forced employees 25
to support them, threatening closure of the facility for supporting the Union, terminating CNAs
Martha Aparicio and Delfina Sanchez, discharging the housekeeping staff, discharging
Maintenance Workers Genaro Meza, implementing an across-the-board wage increase for CNAs,
and by implementing the terminations, discharges, and the across-the-board wage increase
unilaterally, without notice and an opportunity to bargain with the Union, the Respondent has 30
engaged in unfair labor practices affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. By the conduct described above, the Respondent has violated Section 8(a)(5), (3), and
(1) of the Act.35
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate 40
the policies of the Act.
Having instructed employees not to talk to the Union, the Respondent will be ordered to
cease and desist from these actions.
45
Having interrogated employees about union activities, through questioning and polling,
and having threatened employees with adverse consequences, including facility closure, for
JD(SF)–24–15
52
engaging in union activities, the Respondent will be ordered to cease and desist from these
actions.
Having engaged in surveillance of employees’ union activities, the Respondent will be
ordered to cease and desist from this action.5
Having told employee engaging in protected Section 7 activities to leave the premises,
the Respondent will be ordered to cease and desist from these actions.
Having promulgated a rules prohibiting logos and threatening to enforce stricter 10
attendance standards, the Respondent will be ordered to cease and desist from these actions.
Having promised an employee greater job security for saying the Union obtained her
support by force, the Respondent will be ordered to cease and desist from these actions.
15
Having implemented an across-the-board wage increase for CNAs while a petition for
election was pending before the Board, the Respondent will be ordered to cease and desist from
this action.
Having unlawfully discharged CNAs Martha Aparicio and Delfina Sanchez, the 20
housekeeping employees, and Genaro Meza, the Respondent will be required to restore the status
quo ante by rescinding their unlawful discharges and removing all references to them from the
Respondent’s files.
The Respondent, having discriminatorily terminated Martha Aparicio and Delfina 25
Sanchez, and discharged the housekeeping employees and Genaro Meza, must offer them
reinstatement and make them whole for any loss of earnings and other benefits. Backpay shall
be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010). The Respondent shall file a report 30
with the Social Security Administration allocating backpay to the appropriate calendar quarters.
Respondent shall also compensate the discriminatees for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay awards covering periods longer than 1 year. Latino
Express, Inc., 358 NLRB No. 94 (2012), reaffd. 361 NLRB No. 137 (2014); Don Chavas, LLC,
d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014).35
In light of my finding above that a Gissel bargaining-order is appropriate, the Respondent
will be ordered to, on request, bargain with the Union as the exclusive representative of the
employees in the appropriate unit concerning terms and conditions of employment.
40
The reinstatement of the terminated and discharged employees is also an appropriate
remedy for its failure to provide notice to the Union and provide an opportunity to bargain.
Restoration to the status quo ante is presumptively appropriate to remedy unlawful unilateral
changes. Southwest Forest Industries, 278 NLRB 228–228 (1986), enfd. 841 F.2d 270 (9th Cir.
1988). When bargaining unit work has unilaterally and unlawfully been removed, restoration of 45
the work to the bargaining unit is the appropriate remedy, unless the employer demonstrates that
restoration would be unduly burdensome. Fibreboard Corp. v. NLRB, 379 U.S. 203, 216
JD(SF)–24–15
53
(1964). No such showing has been made, and I therefore find restoration to the status quo ante,
by reinstatement in the manner set forth above, is the appropriate remedy.
The Respondent shall be required to post a notice informing employees of its violations
of the Act. The General Counsel, at complaint paragraph 21, has requested an order requiring 5
the Respondent to post the notice in English and Spanish. Because a significant number of the
Respondent's employees speak Spanish, the notice should be posted in English and Spanish. See
O.G.S. Technologies, Inc., 356 NLRB No. 92, slip op. at 7 (2011); Allied Medical Transport,
Inc., 360 NLRB No. 142, slip op. at 7.
10
The General Counsel, at complaint paragraph 21, has requested that the notice be read
aloud by Valdivia or by a Board agent in the presence of Valdivia, DeBorja, Cuellar, Warner,
Zelaya, Abaunza, and Castillo. The Board has required that notices be read aloud by high-
ranking officials or a Board agent this remedy when numerous serious unfair labor practices have
been were committed by a high-ranking management official. Allied Medical Transport, Inc.,15
supra. at 6 fn. 9 (2014). When unfair labor practices are severe and widespread, having the
notice read aloud to employees allows them to “fully perceive that the Respondent and its
managers are bound by the requirements of the Act.” Federated Logistics & Operations, 340
NLRB 255, 258 (2003), affd. 400 F.3d 920, 929–930 (D.C. Cir. 2005); see also Homer D.
Bronson Co., 349 NLRB 512, 515 (2007). I find the General Counsel has established that this 20
remedy is required to enable employees to exercise their Section 7 rights free from coercion.
The Respondent, therefore, will be ordered to have the notice read aloud by a Board agent in the
presence of Valdivia, or by Valdivia or a higher-ranking official from VDS’s corporate offices.
Because of the Respondent’s egregious and widespread misconduct, demonstrating a 25
general disregard for the employees’ fundamental rights, I find it necessary to issue a broad
Order requiring the Respondent to cease and desist from infringing in any other manner on rights
guaranteed employees by Section 7 of the Act. Hickmott Foods, 242 NLRB 1357 (1979).
On these findings of fact and conclusions of law and on the entire record, I issue the 30
following recommended53
ORDER
The Respondent, Vista Del Sol Health Services, Inc., d/b/a Vista Del Sol Healthcare, Los 35
Angeles, California, its officers, agents, successors, and assigns, shall
1. Cease and desist from telling employees not to talk to the Union, coercively
interrogating any employee about union support or union activities, polling employees about
their support for the Union, threatening employees with unspecified reprisals for engaging in 40
union activities, engaging in surveillance of employees’ union activities, telling employees
engaging in Section 7 activities to leave the premises, promulgating a rule prohibiting logos,
announcing a rule to employees that attendance will be more strictly enforced, promising

53 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.
JD(SF)–24–15
54
enhanced job security for saying the Union forced employees to support them, threatening
closure of the facility for supporting the Union, discharging or otherwise discriminating against
any employee for supporting the Service Employees International Union, United Long Term
Care Workers or any other union, implementing an across-the board wage increase because
employees assisted the Union and engaged in concerted activities, and by implementing the 5
terminations, discharges, across-the-board wage increases, or any other changes to terms and
conditions of unit employees’ employment, unilaterally, without notice and an opportunity to
bargain with the Union.
In any other manner interfering with, restraining, or coercing employees in the exercise 10
of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive representative of the 15
employees in the following appropriate unit concerning terms and conditions of employment
and, if an understanding is reached, embody the understanding in a signed agreement:
Included: All full-time, part-time, and on-call Certified Nurse Assistants (CNA),
restorative nurse assistants (RNA), caregivers, Housekeeping, Laundry, Cooks, Dietary 20
aids, maintenance, and activity assistants.
Excluded: All other employees, confidential employees, managers, office, clerical
employees, professional employees, guards and supervisors as defined in the National
Labor Relations Act.25
(b) Within 14 days from the date of the Board’s Order, offer Martha Aparicio, Delfina
Sanchez, Elisa Mayorga, Maria Isabel Valladares (nee Menjivar), Genaro Meza, Dafny Cobar,
Romana Lopez, Rosa Lopez, and Carmelina Perdomo full reinstatement to their former jobs or,
if that job no longer exists, to a substantially equivalent position, without prejudice to their 30
seniority or any other rights or privileges previously enjoyed.
(c) Make Martha Aparicio, Delfina Sanchez, Elisa Mayorga, Maria Isabel Valladares
(nee Menjivar), Genaro Meza, Dafny Cobar, Romana Lopez, Rosa Lopez, and Carmelina
Perdomo whole for any loss of earnings and other benefits suffered as a result of the 35
discrimination against them in the manner set forth in the remedy section of the decision.
(d) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges and within 3 days thereafter notify the employees in writing
that this has been done and that the discharges will not be used against them in any way.40
(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in 45
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
JD(SF)–24–15
55
(f) Within 14 days after service by the Region, post at its facility in Los Angeles,
California, copies of the attached notice marked “Appendix”54 in both English and Spanish.
Copies of the notice, on forms provided by the Regional Director for Region 31, after being
signed by the Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where notices to 5
employees are customarily posted. In addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily communicates with its employees
by such means. 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 10
these proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since August 1, 2013.55
15
(g) Within 14 days after service by the Region, hold a meeting or meetings, scheduled
to ensure the widest possible attendance, at which the attached notice marked “Appendix” is to
be publicly read by a high-ranking responsible management official of the Respondent or by a
Board agent in the presence of a high-ranking responsible management official of the
Respondent. 20
(h) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
25
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
30
Dated, Washington, D.C. June 5, 2015
____________________
[Eleanor Laws]35
Administrative Law Judge

54 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
55 The unfair labor practice was Valdivia’s phone call to Rosa Lopez, which occurred in late July or
early August. August 1 is therefore an approximation.
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising these rights.
WE WILL NOT coercively question you about your union support or activities, including
polling you about your union support.
WE WILL NOT promulgate a rule prohibiting logos, or announce a rule to that attendance will
be more strictly enforced in response to union activity.
WE WILL NOT instruct you not to talk to representatives from the Service Employees
International Union, United Long Term Care Workers or any other union.
WE WILL NOT threaten you with facility closure or with other reprisals for supporting the
Service Employees International Union, United Long Term Care Workers, or any other union.
WE WILL NOT engage in surveillance of your activities involving the Service Employees
International Union, United Long Term Care Workers, or any other union.
WE WILL NOT promise you enhanced job security for saying your support of the Service
Employees International Union, United Long Term Care Workers or any other union was not
voluntary.
WE WILL NOT order you to leave the facility when you are engaging in peaceful Section 7
activities that do not result in patient disturbance or disruption of healthcare operations.
WE WILL NOT grant wage increases in order to discourage and dissuade you from selecting of
the Service Employees International Union, United Long Term Care Workers or any other union
as your bargaining representative.
WE WILL NOT discharge or otherwise discriminate against any of you for supporting the
Service Employees International Union, United Long Term Care Workers or any other union.
WE WILL NOT unilaterally, without notice and an opportunity to bargain with the Service
Employees International Union, United Long Term Care Workers, make and implement changes
to your terms and conditions of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of
the rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in writing and sign any agreement
reached on terms and conditions of employment for our employees in the bargaining unit:
Included: All full-time, part-time, and on-call Certified Nurse Assistants (CNA),
restorative nurse assistants (RNA), caregivers, Housekeeping, Laundry, Cooks, Dietary
aids, maintenance, and activity assistants.
Excluded: All other employees, confidential employees, managers, office, clerical
employees, professional employees, guards and supervisors as defined in the National
Labor Relations Act.
WE WILL, within 14 days from the date of this Order, offer Martha Aparicio, Delfina Sanchez,
Elisa Mayorga, Maria Isabel Valladares (nee Menjivar), Genaro Meza, Dafny Cobar, Romana
Lopez, Rosa Lopez, and Carmelina Perdomo full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
WE WILL make Martha Aparicio, Delfina Sanchez, Elisa Mayorga, Maria Isabel Valladares
(nee Menjivar), Genaro Meza, Dafny Cobar, Romana Lopez, Rosa Lopez, and Carmelina
Perdomo whole for any loss of earnings and other benefits resulting from their discharge, less
any net interim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate Martha Aparicio, Delfina Sanchez, Elisa Mayorga, Maria Isabel
Valladares (nee Menjivar), Genaro Meza, Dafny Cobar, Romana Lopez, Rosa Lopez, and
Carmelina Perdomo for the adverse tax consequences, if any, of receiving one or more lump-sum
backpay awards covering periods longer than 1 year.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful discharges of Martha Aparicio, Delfina Sanchez, Elisa Mayorga, Maria Isabel
Valladares (nee Menjivar), Genaro Meza, Dafny Cobar, Romana Lopez, Rosa Lopez, and
Carmelina Perdomo and WE WILL, within 3 days thereafter, notify each of them in writing that
this has been done and that the discharges will not be used against them in any way.
VISTA DEL SOL HEALTH SERVICES, INC.
DBA VISTA DEL SOL HEALTHCARE
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
11150 West Olympic Boulevard, Suite 700, Los Angeles, CA 90064-1824
(310) 235-7352, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/31-CA-115318 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (310) 235-7424.