NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Sprain Brook Manor Nursing Home, LLC and New York’s Health and Human Services Union 1199/SEIU. Cases 2–CA–37258 and 2–CA–37448

December 26, 2007

DECISION AND ORDER

By Members Schaumber, Kirsanow, and Walsh

On September 29, 2006, Administrative Law Judge Michael A. Rosas issued the attached decision. The General Counsel and the Respondent filed exceptions and supporting briefs. The General Counsel filed an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions as modified, to amend the remedy, and to adopt the recommended Order as modified.2

The unfair labor practices alleged in this case arose from the Respondent’s responses to the Union’s organizing campaign in August and September 2005,3 and the events following the representation election on September 22, in which the Union became the exclusive collective-bargaining representative of the bargaining unit employees. We adopt the judge’s findings that the Respondent violated Section 8(a)(1) of the Act by photographing and placing employees under surveillance while they engaged in protected concerted activity; that the Respondent violated Section 8(a)(3) by discharging Catherine Alonso and Alvin Nicholson, disciplining Clarissa Nogueira, and reducing the overtime hours of Nogueira, Karen Bartko, and Marjorie Ridgeway;4 and that the Respondent violated Section 8(a)(5) by increasing employees’ wages and reducing overtime of employees without providing the Union with notice and an opportunity to bargain.

We also adopt the judge’s finding that the Respondent violated Section 8(a)(1) by threatening employees with more onerous working conditions, threatening to cut overtime, interrogating employees, soliciting grievances, making statements indicating that support for the Union would be futile, and threatening employees with discharge for participating in protected activities.5

For the reasons stated below, however, we reverse the judge’s dismissal of the complaint allegation that the Respondent violated Section 8(a)(1) by engaging in surveillance of employees’ union activities.6 We also reverse the judge’s dismissal of the complaint allegations that the Respondent violated Section 8(a)(1) by calling the police and by hiring a second, armed security guard in response to employees’ union activities.

Surveillance of Employees’ Union Activities

The Union began organizing at the Respondent’s facility in the summer of 2005. On August 12, the Union filed a petition for a representation election. On August 13, Union Organizer Cherice Vanderhall began meeting with employees in the nursing home parking lot area twice a week during shift changes—before 7 a.m., 3 p.m., and sometimes 11 p.m. During the meetings, the employees and Vanderhall generally stood on the grassy area next to the nursing home’s parking lot or in empty parking spaces.

As noted above, Union Organizer Vanderhall’s first meeting at the facility with employees occurred on Saturday, August 13. On this day, the nursing home administrator, Eleanor Miscioscia, went to the facility because she thought there might be organizing activity. Miscioscia did not usually work on Saturdays, as it was her regular day off. She arrived at the nursing home at 6 a.m. and remained for nearly two hours. While there, Miscioscia stood at the exit door to the dining room at the side of the building, which was the door closest to where the employees were standing, in order to observe them throughout the meeting.

As the judge stated, an employer’s mere observation of open, public union activity on or near its property does not constitute unlawful surveillance. Fred’k Wallace & Son, Inc., 331 NLRB 914, 915 (2000). Therefore, because the focal point of union activity was visible to all who entered, exited, and parked on the Respondent’s property, the judge found that management’s observation of employees’ conduct would not reasonably tend to coerce employees. We disagree.

Although an employer may observe open union activity on or near its property, “an employer may not 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). The record shows that Miscioscia’s actions on August 13 were out of the ordinary. Indeed, her very presence at the facility was unusual because she did not ordinarily work on Saturdays. Employees testified that they had never seen her at the facility on a Saturday. On this day, employees saw her standing in the doorway and watching their union activities. By her own testimony, Miscioscia was at the facility solely for the purpose of observing union activity. Under these circumstances, Miscioscia’s conduct was “out of the ordinary” and constituted unlawful surveillance. See Partylite Worldwide, Inc., 344 NLRB 1342 (2005); Arrow Automotive Industries, 258 NLRB 860 (1981), enfd. 679 F.2d 875 (4th Cir. 1982). 7

Calling the Police

The Respondent repeatedly called the police in response to union organizers and employees meeting in the Respondent’s parking lot or an adjacent grassy area during shift changes. Specifically, the Respondent requested police assistance on September 10, 13, and 15 to deal with what its administrator characterized as “labor disputes.” On September 10, the police officer remained on the scene for about 30 minutes and did not record a description of the incident. On September 13, the police incident report by the responding officer indicates that he arrived in order to monitor picketing activity and that, finding no picketing activity, he left after about 20 minutes. On September 15, the responding officer stated in his report that three union representatives were standing on the curb “not blocking entrance or obstructing traffic in any way.”

The judge found that, although there was insufficient evidence in the record to indicate that the employees or organizers blocked traffic, it was impossible to determine the extent to which traffic flow may have been impeded or opponents of the Union harassed or intimidated. Apparently on this basis, the judge concluded that it was “impossible to say that the Respondent did not have a legitimate reason for requesting a police presence . . . .” We reverse.

“It is well established that an employer may seek to have police take action against pickets where the employer is motivated by some reasonable concern, such as public safety or interference with legally protected interests.” Nations Rent, Inc., 342 NLRB 179, 181 (2004) (citing Great American, 322 NLRB 17, 21 (1996)). Moreover, as the judge observed, an employer can take reasonable steps to prevent nonemployees from trespassing onto private property. See generally Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) (employer may lawfully bar nonemployee union organizers from private property unless the employees are inaccessible through usual channels). Here, the Respondent failed to establish that it was motivated by reasonable concerns when it called the police on September 10, 13, and 15. Indeed, it did not introduce any specific evidence relating to those incidents or its reasons for requesting a police presence on those days. The police dispatch records show that the Respondent’s stated reason for requesting police was “labor disputes.” There is no evidence in the record of threats or violence. The police reports from those days do not indicate that the organizers or employees were blocking traffic or creating safety problems, and the judge found that there was no evidence of blocking. To the extent that the Respondent claims that it was protecting its private property interests, there is no evidence that the nonemployee organizers were encroaching on the Respondent’s property on those particular days. In the absence of any showing by the Respondent that it was motivated by reasonable concerns when it called the police on the above days, and in the absence of any evidence indicating the need for a police presence, we find that the Respondent’s actions violated Section 8(a)(1).8

Hiring an Armed Security Guard

In addition to calling the police in response to the employees’ union activity, the Respondent also hired two security guards. On September 8, the Respondent hired the first guard. In a memorandum documenting the Union’s parking lot meeting on September 8, Joanne Jinete, the Respondent’s administrator, asserted that as “a result of this situation Sprain Brook Manor had to appoint a security guard because of the fear in the atmosphere.” The guard was unarmed and worked from 5:45 to 7:45 a.m. and from 10:30 p.m. to 12 midnight—time periods encompassing the morning and evening shift changes.

On October 10, the Respondent hired a second security guard. The second guard worked about 4 hours per day “as directed,” including virtually every weekday until January 7. Like the first guard, the second guard was generally deployed during periods that encompassed shift-change meetings. Unlike the first guard, the second guard was armed.

The complaint alleges that the Respondent violated the Act by hiring the armed security guard on October 10. The judge dismissed the allegation, finding that there was no evidence that the guard engaged in surveillance. We reverse and find the violation.

The Respondent provided no explanation for its decision to hire the second guard. Furthermore, nothing in the record establishes that circumstances changed between the hiring of the first and second guards. The evidence reveals no violence, threats of violence, or any other activity that would explain additional security personnel. Indeed, all that appears to have occurred during the period between the hiring of the first and second guard was an increase in employees’ union activity.

The armed guard was deployed during shift changes while employees were engaged in protected activities. In light of all the preceding ways in which the Respondent acted unlawfully in response to the employees’ union activity, including the repeated calls to the police, and in the absence of any legitimate explanation for the Respondent’s decision to add additional (and armed) security, we find that the Respondent’s hiring of the second security guard reasonably tended to intimidate or coerce employees engaged in protected activities. Accordingly, the deployment of the second guard violated Section 8(a)(1). See Shrewsbury Nursing Home, Inc., 227 NLRB 47 (1976).9

Amended Conclusions of Law

Substitute the following for the judge’s Conclusions of Law 3 and 4.

“3. By threatening employees with reprisals if they engaged in union activity, interrogating employees about their union sympathies, soliciting employee grievances, photographing employees while they engaged in protected concerted activity, placing employees under surveillance while they engaged in protected concerted activity, telling employees that it would be futile to support the Union, calling the police in response to employees’ protected activities, and hiring a security guard in response to employees’ protected activities, the Respondent violated Section 8(a)(1) of the Act.

“4. By increasing employees’ wages and reducing employees’ overtime hours without providing the Union, which had prevailed in the representation election, notice or opportunity to bargain, the Respondent violated Section 8(a)(5) and (1) of the Act.”

Amended Remedy

Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent discriminatorily discharged Catherine Alonso and Alvin Nicholson, we shall order it to offer Alonso and Nicholson full reinstatement to their former jobs, without prejudice to their seniority or other rights or privileges previously enjoyed, and to make them whole for any loss of earnings and benefits they may have sustained by reason of the Respondent's unlawful conduct. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest calculated as provided in New Horizons for the Retarded, 283 NLRB 1173 (1987). In addition, having found that the Respondent unlawfully reduced the overtime hours of Clarissa Nogueira, Karen Bartko, and Marjorie Ridgeway, we shall order it to make whole these employees for any losses incurred by them as a result of the Respondent’s unlawful actions in the manner prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest calculated as prescribed in New Horizons for the Retarded, supra. Having found that the Respondent unilaterally increased bargaining unit employees’ wages without providing the Union notice and opportunity to bargain, we shall order it to rescind the wage increase, but only upon request by the Union. Finally, we shall order the Respondent to remove from its files any reference to the discipline of Nogueira and the discharges of Alonso and Nicholson.

ORDER

The National Labor Relations Board orders that the Respondent, Sprain Brook Manor Nursing Home, LLC, Scarsdale, New York, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Discharging, counseling, disciplining, or otherwise discriminating against any employee for supporting New York’s Health and Human Services Union 1199/SEIU or any other labor organization.

(b) Threatening employees with reprisals if they engage in union activity, coercively interrogating employees about their union support or union activities, soliciting employee grievances, photographing employees while they engage in protected concerted activity, placing employees under surveillance while they engage in union or other protected concerted activity, telling employees that it would be futile to support the Union, calling the police in response to employees’ protected activities, and hiring a security guard in response to employees’ protected activities.

(c) Unilaterally changing the wages, hours, or other terms and conditions of employment for members of the bargaining unit without first bargaining with the Union.

(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer Catherine Alonso and Alvin Nicholson 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.

(b) Make Catherine Alonso and Alvin Nicholson whole for any loss of earnings and other benefits suffered resulting from the discharges in the manner set forth in the amended remedy section of this decision.

(c) Make Clarissa Nogueira, Karen Bartko, and Marjorie Ridgeway whole for any loss of earnings and other benefits suffered as a result of their loss of overtime hours in the manner set forth in the amended remedy section of this decision.

(d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharges of Catherine Alonso and Alvin Nicholson and unlawful discipline of Clarissa Nogueira, and within 3 days thereafter notify each of them in writing that this has been done and that the discharges and discipline will not be used against them in any way.

(e) Before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of its unit employees.

(f) On request by the Union, rescind the wage increase to bargaining unit employees that was unilaterally implemented on or about October 22, 2005.

(g) 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 electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(h) Within 14 days after service by the Region, post at its facility in Scarsdale, New York, copies of the attached notice marked “Appendix.”10 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since August 9, 2005.

(i) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.

Dated, Washington, D.C. December 26, 2007

Peter N. Kirsanow, Member

Dennis P. Walsh Member

(seal) National Labor Relations Board

Member Schaumber, dissenting in part.

I agree with my colleagues as to many of the violations in this case. I cannot join them, however, in finding that the Respondent violated Section 8(a)(1) by hiring a second security guard to protect its residents, employees, and property.

In September 2005,[1] the Respondent hired a security guard. As explanation for this action, the Respondent’s administrator Joanne Jinete noted in a September 8 memorandum to file that the Respondent had to appoint a security guard because of the “fear in the atmosphere.” The General Counsel did not allege and my colleagues do not find that the Respondent violated Section 8(a)(1) by hiring this security guard. On October 10, the Respondent hired an additional guard who generally worked about 4 hours per day from either 6 to 10 a.m. or 2 to 6 p.m.

The complaint alleged that the hiring of the second guard violated Section 8(a)(1). The judge dismissed that complaint allegation because there was no evidence that the guard engaged in surveillance. My colleagues, in reversing the judge, find that the Respondent hired the second guard in response to the employees’ union activities and therefore violated the Act. I respectfully disagree.

The Board has held that the mere presence of a security guard does not amount to unlawful surveillance. Villa Maria Nursing & Rehabilitation Center, Inc., 335 NLRB 1345, 1350 (2001). Rather, there must be proof that the security guard engaged in surveillance or other intimidating conduct before a violation of the Act will be found. Id.; see also Shrewsbury Nursing Home, 227 NLRB 47 (1976).[2] Here, there is no evidence that the Respondent’s security guard conducted surveillance of employees while they engaged in concerted protected activity, or that the guard otherwise engaged in any behavior that would tend to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Instead, the record shows only that the guard was armed[3] and that he worked about 4 hours a day, in the morning or afternoon, during shift changes. The majority’s finding of a violation of the Act on these facts is unprecedented.

Nor is there any record basis for my colleagues’ conclusion that the guard was hired in response to protected activity at the Respondent’s facility. The Respondent’s September 8 memorandum says nothing about the reasons for hiring a second guard in October. Moreover, that guard was hired 2 months after the start of the Union’s organizing campaign, and 3 weeks after the union election. Thus, the timing of the decision to hire the security guard was relatively remote to the inception of the protected activity and does not show that the Respondent was motivated to hire the guard based on the employees’ protected activities.[4] Similarly, the guard’s conduct after he was hired does not demonstrate an improper motivation. The fact that he was deployed at times when union meetings took place says little about the Respondent’s motivation for hiring him absent evidence that he interfered with those meetings. As shown, there is no such evidence. Thus, I would dismiss the complaint allegation.

Dated, Washington, D.C. December 26 , 2007

Peter C. Schaumber, Member

National Labor Relations Board

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 LABOR 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 discharge, counsel, discipline, or otherwise discriminate against any of you for supporting New York’s Health and Human Services Union 1199/SEIU or any other union.

We will not threaten you with reprisals if you engage in union activity, coercively interrogate you about your union support or union activities, solicit your grievances, photograph you while you engage in union or other protected concerted activity, place you under surveillance while you engage in union or other protected concerted activity, tell you that it would be futile to support the union, call the police in response to your protected activities, or hire a security guard in response to your protected activities.

We will not change your wages, hours, or other terms and conditions of employment without first bargaining with the Union.

We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

We will, within 14 days from the date of the Board’s Order, offer Catherine Alonso and Alvin Nicholson 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 Catherine Alonso and Alvin Nicholson whole for any loss of earnings and other benefits resulting from their discharges, less any net interim earnings, plus interest.

We will make Clarissa Nogueira, Karen Bartko, and Marjorie Ridgeway whole for any loss of earnings and other benefits suffered as a result of their loss of overtime hours, plus interest.

We will within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharges of Catherine Alonso and Alvin Nicholson, and unlawful discipline of Clarissa Nogueira, and we will, within 3 days thereafter, notify each of them in writing that this has been done and that the discharges and discipline will not be used against them in any way.

We will notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of employees before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees.

We will, on request by the Union, rescind the wage increase to bargaining unit employees that was unilaterally implemented on or about October 22, 2005.

Sprain Brook Manor Nursing Home, LLC

Lauren Esposito, Esq., for the General Counsel.

Jeffrey A. Meyer and Richard M. Howard, Esqs. (Kaufman, Schneider & Bianco, LLP), of Jericho, New York, for the Respondent.

William S. Massey, Esq. (Gladstein, Reif & Meginniss, LLP), New York, New York, for the Charging Party.

DECISION

Statement of the Case

Michael A. Rosas, Administrative Law Judge. This case was tried in New York, New York, on May 3–5, 8, and 15, 2006. The charge in Case 2–CA–37258 was filed October 12, 2005, and amended on November 23, 2005; December 30, 2005; and January 26, 2006. A complaint issued January 31, 2006. On January 23, 2006, the Union filed a charge in Case 2–CA–37448 and an order consolidating cases, consolidated complaint and notice of hearing (consolidated complaint) issued March 29, 2006.1^[ The consolidated complaint alleges that the Sprain Brook Manor Nursing Home, LLC, (Respondent or nursing home) committed the following violations of Section 8(a)(1), (3), and (5): discharged Catherine Alonso in retaliation for her activities in support of New York’s Health and Human Services Union 1199/SEIU (the Union); reduced the overtime hours of Clarissa Nogueira, Karen Bartko, and Marjorie Ridgeway unilaterally and in retaliation for their union activities; engaged in surveillance of union activity; photographed employees engaged in union activities; summoned police to the nursing home and hired an armed security guard in order to discourage union activity; solicited grievances; promised benefits; unilaterally implemented a wage increase in order to discourage support for the Union; interrogated employees; threatened to impose more onerous working conditions of employees; threatened to reduce overtime shifts if employees voted for the Union; threatened to discharge employees for engaging in union activities; unlawfully denied Alvin Nicholson his Weingarten rights; disciplined Nogueira, and discharged Nicholson in retaliation for their union activities.2

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, I make the following

Findings of Fact

i. jurisdiction

The Respondent, a corporation, operates and maintains a nursing home in Scarsdale, New York, where it annually, in the course and conduct of its business operations, derives gross revenues in excess of $100,000, and purchases and receives goods and services valued in excess of $50,000. 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 the Union is a labor organization within the meaning of Section 2(5) of the Act.

ii. alleged unfair labor practices

A. The Respondent’s Operations

The nursing home is jointly owned by Robert Klein and members of the Book family. The key members of management are: Joanne Jinete, the nursing home’s administrator; Eleanor Miscioscia, the director of nursing; Elizabeth Gerosa, the assistant director of nursing; Joann Farenga, the director of admissions; John Vitello, the director of dietary and maintenance; and his assistant supervisor, Robert Formisano.

The nursing home is a four-floor facility with 121 beds. The first floor consists of offices, a kitchen, and a recreational therapy area. The second through fourth floors house the nursing home’s residents. The facility is staffed 24 hours a day by approximately 85–100 employees. Hourly employees include nurses, certified nursing aides (CNA), dietary workers, geriatric techs/activity aides, housekeeping employees, laundry employees/assistants, dietary aides, and cooks. They are assigned to one of three shifts—the day shift (7 a.m. to 3 p.m. or 6 a.m. to 2 p.m.); the second shift (3 to 11 p.m.); and the third shift (11 p.m. to 7 a.m.).

B. The Union’s Organizing Campaign

By July, the Respondent’s management personnel became aware of an organizing campaign by the Union. During that month, prounion flyers were placed at several locations throughout the nursing home. In addition, some employees, including Nogueira and Ridgeway, wore purple to work on Wednesdays as an expression of support for the Union. On August 9, the Respondent commenced its publicity campaign opposing the Union. In its initial letter to employees, accompanied by an article in the Journal News, a local newspaper, the Respondent criticized the Union for questionable expenditures and the cost of union dues, and asked, [w]ill everything balance out in the end for everyone?” The Respondent then noted that “[a]ll the scheduled overtime in all departments may have to be eliminated. To all the staff that depends on that overtime money – will the raise you get cover the loss of overtime wages and also pay for your dues?” The Respondent subsequently followed up with additional leaflets opposing the organizational campaign.3^[

In early August, Bartko, a CNA, and Nogueira, a full-time housekeeping employee and part-time CNA on weekends, met with at a nearby diner with union organizer Cherice Vanderhall. Nogueira and Bartko agreed to assist the Union organize the nursing home’s hourly staff. In that regard, Vanderhall provided them with authorization cards, which Nogueira and Bartko proceeded to distribute to approximately 20–25 coworkers. Nogueira then arranged for other employees to attend weekly organizational meetings at the diner. Attendees included Bartko, Ridgeway, Catherine Alonso, and Alvin Nicholson.

On August 12, the Union petitioned for a representation election in Case 2–RC–23014 and served it on the Respondent.4 On August 13, Vanderhall began meeting with employees in the nursing home parking lot area twice a week during shift changes—before 7 a.m., 3 p.m., and sometimes 11 p.m. Nogueira, Alonso, Bartko, Nicholson, and Ridgeway attended these meetings. During the meetings, the employees and Vanderhall generally stood on the grass area in the middle of the nursing home’s parking lot or in empty parking spaces.^[5] On August 31, the Journal News published an article containing statements by Nogueira and Nicholson supporting the Union, and by Jinete opposing the Union. Nogueira complained about low wages, high-cost health insurance, and working long hours. Nicholson complained that he did not mind working long work hours, but could not make ends meet on his low salary. About a week before the representation election, the Union mailed a leaflet containing pictures of individual nursing home employees accompanied by their statements expressing support for the Union. Statements on the leaflet by Nogueira, Alonso, Nicholson, and Ridgeway indicated their support for the Union based on their desire for higher wages, improved fringe benefits, and more respect. Jinete and Miscioscia received and read those materials around the time that election took place.^[6]

C. The Respondent’s Preelection Actions

1. Robert Klein

In addition to distributing materials opposing the organizational campaign, management began meeting with employees. In August, Klein met individually with numerous employees about the organizing campaign. Around 11:30 a.m. one morning, he called dietary aide Vernon Warren into his office. Unbeknownst to Klein, Warren had seen the flyer in the nursing home earlier that day. Klein asked Warren whether he knew “anything about this garbage floating around the compound.” Warren denied having previously seen the flyer, which stated that “1199 is coming.” Klein then asked, “Vernon, we are friends, right?” Warren said “yes.” Nicholson was also summoned to a meeting with Klein around that time. Klein told him that he “had seen some stuff laying around here.” He added that “if you want to join the union, you can go ahead,” but “a lot of stuff would change.” Klein also told Nicholson that he should vote “no” at the election. Nicholson assured Klein he would not join the Union and returned to work.^[7][7]

Alonso and Nogueira were each summoned to Klein’s office for individual meetings a few days before the representation election on September 22. During his meeting with Alonso, Klein asked her to state her grievances. Alonso accommodated him and explained that current employees were angry that new employees were earning starting salaries of $10 per hour. Alonso, an 18-year employee at the nursing home, was earning approximately $12. In his meeting with Nogueira, Klein suggested she speak with Mrs. Book, who “would take it back to him and he would see what he could do for me to make things better.” As Nogueira left, Klein told her “not to be mad at him.” Nogueira assured him she was not mad.^[8]

2. The Book family

Members of the Book family—Mrs. Book and her son, Mordechai—also met with the nursing home’s employees prior to the representation election. The meeting was held in the residents’ dining room from 1 to 3 p.m. It was attended by the CNAs and dietary, housekeeping, and maintenance employees. Mordechai Book explained he was aware of problems in the nursing home. Mrs. Book added that the Book family was still involved in running the nursing home and suggested employees contact Mordechai Book if they wanted to discuss anything. Mordechai Book concurred and announced his cellular telephone number. Ridgeway then complained that the nursing home recently eliminated its longstanding practice of providing breakfast to employees. The Respondent resumed its practice of providing breakfast to employees the very next day.^[9]

3. Joanne Jinete

At 2:30 p.m. on September 8, Vanderhall and another union organizer, “Robin,” arrived for a union shift meeting. They were joined initially by two or three employees. At about 2:50 p.m., before the 3 p.m. shift change, and without speaking to the organizers or employees assembled in the parking lot, Jinete called the Greenburgh Police Department and spoke with Captain DiCarlo. She complained that union organizers and at least 15 staff members were standing on the driveway, blocking traffic, and harassing employees to sign union authorization cards. Captain DiCarlo informed Jinete that two officers would respond to the complaint. At the time, there were no more than five people in the group. Members of the group were calling out to incoming and outgoing traffic attempting to enlist other employees in support of the Union. After the 3 p.m. shift, the group was joined by about 10 more employees. The group continued calling out to passersbys. While waiting for the officers to respond, Jinete also called the Yonkers Police Department to request assistance.

At 3:51 p.m., Jinete called the Greenburgh Police Department, alleged there was riot activity in the nursing home’s parking lot and requested police assistance. At the time, there were about a dozen staff and organizers in the parking lot. As a result, a squad car and a police riot truck were dispatched to the nursing home. The assigned officer, Police Officer Vlasaty, arrived at approximately 4:03 p.m. At that time, there were only five persons standing in the parking lot—Nogueira, Alonso, Sandra Reed, and the two union organizers. He spoke to Vanderhall and Nogueira, confirmed that there was no riot activity, and left.^[10][

In a memorandum documenting the events of September 8, Jinete also noted that “union organizers parked in Sprain Brook Manors parking lot. Their vehicle is an unauthorized vehicle on the premises.” She also noted that, as “a result of this situation Sprain Brook Manor had to appoint a security guard because of the fear in the atmosphere.” The security guard, John Bogetti, began working on September 12 and worked generally every weekday until the election from 5:45 to 7:45 a.m. and 10:30 p.m. to 12 a.m.^[11][

Jinete also requested police assistance on September 10, 13, and 15.^[12][12] At 3:29 p.m. on September 10, she contacted the Greenburgh Police Department regarding “labor disputes.” The police incident dispatch detail report indicates that Police Officer Deastis arrived in less than 1 minute. The officer remained at the nursing home until 4:02 p.m. and did not find the circumstances significant enough to record a description of the incident. At 2:38 p.m. on September 13, Jinete again contacted the Greenburgh Police Department over “labor disputes.” The incident report completed by the responding officer indicates that he/she arrived very shortly thereafter in order to monitor picketing activity. However, there was no picketing activity and the officer left at 3 p.m. At 2:26 p.m. on September 15, Jinete again called the Greenburgh Police Department regarding “labor disputes.” The responding officer arrived a few minutes later, remained until 4:02 p.m., and provided the following incident report:

Undersigned officer while at above premises between the above date and time observed 3 union reps standing on curb not blocking entrance or obstructing traffic in any way. Above [Vanderhall] union organizer states her and her reps. will be on location on Saturday 9/17/05 and Wed 9/21/05 at the usual time and sporadically during the day on Thurs 9/22/05. [Vanderhall] states Thurs 9/22/05 should be final day. [Vanderhall] states no union reps on scene on Tuesday. All union reps left without incident.

4. Eleanor Miscioscia

Miscioscia, the nursing director, observed employees engaged in organizing activity on numerous occasions during the preelection period. At Klein’s direction, she went in to work on Saturday, August 13, her regular day off. It was the day after the petition was filed and Miscioscia went in to work because she thought there might be organizing activity. She arrived at the nursing home at 6 a.m. and remained for nearly 2 hours. She stood at the exit door to the dining room at the side of the building, the door “closest to where [the employees] were standing,” in order to observe them throughout the meeting.^[13][

Miscioscia also observed employees during union shift change meetings every Wednesday at the facility, because “that was the most often time that there was ever any activity.” From an office window located at the front of the nursing home, Miscioscia would look at employees and union organizers congregated “at the end of the parking lot by the driveway.”^[14] She was joined on occasion by Jinete, Vitello, Farenga, and Edward Book.^[15][

Miscioscia was also involved in calling for police intervention. At 7:09 a.m. on August 13, she called the Greenburgh Police Department and complained about the Union’s activities in the parking lot. The police responded to the complaint and spoke with Vanderhall. Vanderhall explained that employees were engaged in a union organizing meeting. The policeman told Vanderhall that they had the right to do so, but directed her to confine the meeting to the grass area by the parking lot entrance. He also directed her to keep the participants out of the street so they did not get hurt in traffic. The police was called again that day at 2:17 p.m. and informed that there would be a “possible strike occurring sometime today.” The report stated that “the above activity is not a strike—the business is not a union shop. Local 1199 is attempting to organize the 30 employees and sets up outside business for 15 minutes at shift changes only. There is no significant labor activity projected for the future.” The report also indicated that union organizers will “usually arrive Tue, Thur, Sat at change of shift. Vote is Sept 22, 2005.”^[16][

5. John Vitello

On August 15, Vitello, the dietary and maintenance director, called Nicholson into his office and told him that, if the Union prevailed in the representation election, “some things would change,” the Respondent would adhere to the collective-bargaining agreement and “it won’t be as lenient as how we are right now with our staff.” Specifically, he also noted that the Respondent would no longer permit employees to “go to the store for ten minutes,” arrive late or depart late, and receive free meals. In fact, around this time, the dietary department stopped the customary practice of providing breakfast to employees.^[17] Vitello also spoke with others about the upcoming election. On or about September 20, Vitello told Warren that he would lose overtime if the Union prevailed in the election.^[18][

D. The Representation Election

A representation election in Case 2–RC–23014 was held on September 22. The voting resulted in a majority of the bargaining unit employees (62–23) designating and selecting the Union as their collective-bargaining representative. Nogueira served as the Union’s observer, while Antonetta Gjelaj served as the Respondent’s observer.^[19] As a result of the election, the following employees of the Respondent now constitute a unit appropriate for the purposes of collective bargaining pursuant to Section 9(b) of the Act:

All full-time and regular part-time and per diem non-professional employees including licensed practical nurses, certified nurses’ aides, geriatric techs/activity aides, housekeeping employees, laundry employees/assistants, dietary aides, and cooks employed by the Employer at its facility located at 77 Jackson Avenue, Scarsdale, NY, but excluding all other employees, including office clerical employees, managers, and guard, professional employees and supervisors as defined by the Act.

On September 29, Sprain Brook Manor filed objections to the representation election. On February 7–9, 2006, Administrative Law Judge Raymond P. Green heard testimony and on March 1, 2006, overruled the objections and remanded the case to the Regional Director for certification of representative.^[20][ The Respondent filed exceptions to Judge Green’s Decision and Order with the Board. On June 29, 2006, the Board affirmed Judge Green’s Decision and Order and certified the Union as the exclusive collective-bargaining representative.

E. The Respondent’s Post-Election Actions

1. Overtime reductions

Klein also serves as the nursing home’s controller; Edward Book serves as assistant controller. The Respondent’s 2004–2005 fiscal year ended in May. In June, Edward Book reviewed the fiscal year’s records and determined there had been an increase in payroll costs for the CNA, housekeeping, and laundry departments for the past fiscal year.^[21][However, neither Edward Book nor Klein planned to take any action with respect to such costs. In September, after the Respondent issued its oppositional union literature, Klein asked Edward Book for the individual payroll information.^[22][

After the week ending September 22, and without notifying the Union or giving it an opportunity to bargain, Klein ordered overtime reduced or eliminated for every employee in the nursing, housekeeping, and laundry departments.^[23] Examples of such reductions were reflected in the payroll records of Bartko, Ridgeway, Nogueira, Elijandro Campbell, and Brian Magner. Overtime in other departments, however, was not reduced. An example is reflected in the payroll records of dietary aide Vernon Warren. Overtime in the CNA and housekeeping departments was eventually restored after the election, but not in the laundry department. Nogueira was the only employee in the laundry department.^[24][

Bartko consistently received 7.5 hours of overtime per week in 2005 until the week ending September 22. She received overtime for the first two pay periods in November, but did not receive overtime after that in 2005. During the week of September 19, and prior to the representation election on September 22, Bartko asked Miscioscia why she was not scheduled for a sixth day of work. Miscioscia said, “if the union gets in, no more overtime.”^[25][

Ridgeway consistently received 7.5 hours of overtime per week until the week ending September 22. After that, it was discontinued until it was restored during the week ending December 29. Around that time, Bartko learned that Ridgeway’s overtime had been restored and asked Gerosa, the assistant nursing director, to restore her overtime. Gerosa explained that Ridgeway’s overtime had been restored at Klein’s direction. Bartko protested that it was unfair, but her overtime was not restored until March 2006.

Nogueira consistently received 7.5 to 15 hours of overtime per week in 2005 until the week ending September 22. Her overtime pay was usually attributable to her weekend CNA work. She received 7.5 hours of overtime during the week ending October 6, but none at any time after that. After learning that Bartko’s overtime was restored in March 2006, Nogueira asked Gerosa to restore her weekend CNA work. Gerosa asked Nogueira whether she was a certified CNA. Nogueira said that she was, and Gerosa told her she would “find out” whether Nogueira was eligible to perform CNA work. The next day, however, Gerosa approached Nogueira in the laundry room and told her that she would not be assigned overtime work as a CNA because “they told me no because you work in laundry, not in nursing.” ^[26] This was the first time since Nogueira began performing weekend CNA work in 1999 that was she told that she was ineligible for such work because her regular assignment was in the laundry room.^[27]

2. The wage increase

On October 22, without consulting the Union, the Respondent awarded a $1 per hour wage increase to all hourly employees, including all bargaining unit employees.^[28][28]

3. Police intervention

At approximately 2:15 p.m., on September 30, the Greenburgh Police Department was called to the nursing home regarding a “labor dispute.”^[29][ At that time, a group of employees was meeting with Greg Speller, the Union’s vice president. Approximately 10 to 15 minutes after the meeting began, five police cars arrived. Two police officers approached Nicholson, directed him to step away from the group, and arrested him. At the time, several management personnel were standing in front of the nursing home, including Miscioscia, her daughter, Christine Miscioscia, Antonetta Gjelaj, and Karen Meyers. Nogueira or another employee asked why Nicholson was being arrested. A policeman explained they received a complaint accusing an employee of harassment or attempted rape. After Nicholson was arrested and placed in the police car, a police officer approached Miscioscia’s group. The police officer returned shortly thereafter, said Nicholson was the wrong person, and released him. The police then arrested Jose Veloso, a nursing home employee discharged the previous day.^[30][

4. Threats to dietary department employees

On October 1, Klein, Jinete, and Vitello met with dietary department employees in Klein’s office. Klein told the dietary staff that police were investigating “the case,” presumably referring to Veloso’s arrest. Klein went on to say that “this is a free country” and he could not stop employees from doing what they wanted to do. He then noted, “[b]ut remember, I’m the big man in here. I’m the man who signs the paychecks” and can terminate anyone who “demonstrate[s] or protests.” Klein also added that he had been “in business for 32 years and nobody is going to come in and break it up.” Klein then told the employees that if they joined the union, demonstrated, or protested, their jobs could be terminated. Klein also told the assembled employees that things were going to change, so that break periods and leaving the facility were “going to stop.”^[31][31]

On or about November 14, Klein, Jinete, and Vitello met once again in his office with dietary staff. Klein again stated they were free to participate in an informational picket planned for November 16. However, he advised them, once again, not to participate. Klein added he was “the big man” who “signs paychecks,” and warned the employees they would be terminated if they participated in the picketing.

Finally, on December 23, the day of the Respondent’s holiday lunch, Warren was once again called to Klein’s office. No one else was present. Klein told Warren he heard he was not happy and, referring to Klein, had said “no good.” Warren explained he made the statement in the heat of the union campaign. Klein responded, “So, okay, we’re going to set the date, we can get complete dietary staff and we have a meeting and let’s see what can be done.” Warren agreed. About 15 minutes later, Warren was called back into Klein’s office. Jinete, Vitello, Formisano, and two other dietary supervisors were also present. Klein explained that the wage increase he gave employees in October was all he could afford. Warren said, “Mr. Klein, I think you are trying me today.” Warren added that Klein knew he was involved with the Union and, thus, “if you’re going to try me today, just get it over with.” The meeting ended with Klein’s comment that he had been in business for 32 years, and nobody was going to come in and tell him how to run the nursing home.^[32][

5. Deployment of an armed security guard

On October 10, 2005, despite already having one guard, the Respondent hired a second security guard to patrol the nursing home. The security guard was armed and generally worked 4 hours per day “as directed,” except October 13, when he worked 10 hours. The security guard was deployed virtually every weekday until January 7. The time periods varied, but Jinete and Klein generally deployed the guard during periods that encompassed shift change meetings.^[33][

6. Catherine Alonso

Catherine Alonso, a 17-year employee of the nursing home, worked the 7 a.m. to 3 p.m. shift Monday through Friday and every other weekend. She was assigned to the housekeeping department and was responsible for replacing supplies on each floor. Her supervisors were Formisano and Vitello. Her most recent performance appraisal, dated October 8, 2004, was written by Vitello and approved by Jinete. In the appraisal, Alonso received a rating of excellent in all categories, except one—attendance. The items that were rated excellent included discipline, quality of work, cooperation, and her “overall” performance. The “general comments” were: “Kathy does a great job for [the nursing home]. She really cares about the residents. Kathy fills in when we need her in different assignments and does a good job.”^[34]

As noted above, Alonso was also a visible union supporter. Alonso and Katrina Gjelaj, another housekeeping employee and opponent of the Union, did not get along. Katrina Gjelaj, whose daughter, Antonneta, was a management employee and the Respondent’s election observer, had an extensive disciplinary history. Over the past several years, Katrina Gjelaj had several documented conflicts with other employees and supervisors.^[35]

Katrina Gjelaj’s history of conflict included Alonso, but there was never a documented incident between them prior to August. On or about August 22, Alonso was pushing her supply cart down the second floor hallway. Katrina Gjelaj was in her path, but Alonso was not about to change course. As a result, Katrina Gjelaj had to step out of the way. The event was witnessed by Gaetana Capozzo, the Respondent’s social services director, but she obviously did not consider it serious enough to document.^[36]

A few days later, on August 26, Alonso and Ridgeway were “discussing 1199 issues with each other loudly” at the nursing station. Veronica Bago, a nurse, overheard the conversation. Bago passed that information along and it reached Klein. Klein then called Bago and directed her to document the incident and give it to her nursing supervisor, Aurora Richter. Bago complied and gave Richter a note detailing the incident. Richter, in turn, passed along the note to Jinete. The note stated that Klein himself “called Veronica to write this note what she heard from Cathy & 4th Floor staff.” The subject that Alonso had been “discussing” was her advice to another employee, Charlene Cobb, to “watch out for” Katrina Gjelaj, because she was “sneaky” and “not for the union.”^[37][

The same day, Alonso was called to a meeting with Jinete and Formisano. At the meeting, Jinete stated that she heard that Alonso had been talking about another employee in a manner that “wasn’t nice.” Alonso apologized and said that it wouldn’t happen again. Alonso signed an attendance sheet for this meeting, as directed by Jinete.^[38][ During this meeting, there was no mention of the “supply cart” incident, since Jinete was not aware of it at the time.^[39][

On September 26, Gjelaj was mopping a second floor shower room when Alonso entered the area with her supply cart. In order to pass Gjelaj, Alonso pushed a mop handle in Gjelaj’s cart. The handle nudged Gjelaj on the left shoulder. Gjelaj immediately reported the incident. Jo-Ann Farenga, the director of admissions, saw Gjelaj crying and brought her into her office. Gjelaj told Farenga, “I cannot take this no more” and stated that she was ready to quit her job because of Alonso. Gjelaj then reported the incident to Jinete.^[40][

Jinete spoke with Katrina Gjelaj and decided she had enough to discharge Alonso. Later that day, Alonso was called to a meeting with Jinete and Formisano. Jinete informed Alonso of Katrina Gjelaj’s accusations and, without asking Alonso for her version or investigating the matter further, told her that she was being discharged. Alonso asked why she was being discharged. Jinete explained that “this is the second time I had to reprimand you about Katrina [Gjelaj].” Jinete told Alonso that she struck Gjelaj on the shoulder with her hand. Alonso denied that charge and added that Gjelaj harassed her in the past, but she never reported such incidents to Jinete.