ALARIS HEALTH AT BOULEVARD EAST

National Labor Relations Board - Board Decisions

Dec 21, 2018

367 NLRB No. 53 (N.L.R.B. 2018)

367 NLRB No. 53
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
Alaris Health at Boulevard East and 1199, SEIU
United Healthcare Workers East. Cases
22−CA−125076, 22−CA−125886, 22−CA−131372,
22−CA−140582
December 21, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN AND
KAPLAN
On February 18, 2016, Administrative Law Judge Mi-
chael A. Rosas issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party each filed an
answering brief, and the Respondent filed a combined
reply brief to the answering briefs.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2
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,3 and conclusions and

1 This case is one of four related cases involving unfair labor prac-
tice strikers at facilities affiliated with Alaris Health. See, in addition to
this case, Alaris Health at Castle Hill, 367 NLRB No. 52 (2018); Alaris
Health at Harborview, 367 NLRB No. 54 (2018); and Alaris Health at
Rochelle Park, 367NLRB No. 55 (2018). The judge heard these cases
consecutively and issued four separate decisions. The Respondent and
the Charging Party each submitted consolidated briefs addressing all
four cases, while the General Counsel submitted a separate brief in each
case.
2 Member Emanuel is recused and took no part in the consideration
of this case. Additionally, former Member Hirozawa and Ellen
Dichner, former Member Pearce’s chief counsel, took no part in the
consideration of this case. Therefore, we deny as moot the Respond-
ent’s Motion to Disqualify Board Member Kent Y. Hirozawa and Chief
Counsel Ellen Dichner.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In the absence of exceptions, we adopt the judge’s findings that the
Respondent violated Sec. 8(a)(5) and (1) by (1) refusing to bargain in
good faith with the Union’s chosen bargaining committee, (2) unrea-
sonably delaying in providing the Union with requested information
that was relevant and necessary for bargaining, and (3) refusing to
provide the Union with requested information concerning health insur-
ance and daily work schedules.
Also in the absence of exceptions, we adopt the judge’s findings that
the Respondent violated Sec. 8(a)(1) by (1) threatening employees that
they could be replaced and lose their jobs if they went on strike; (2)
interrogating employees about whether they intended to go on strike;
(3) directing employees to remove buttons stating “We Care for New
to adopt the judge’s recommended Order as modified and
set forth in full below.4
In adopting the judge’s finding that the Respondent vi-
olated Section 8(a)(3) and (1) by refusing to immediately
reinstate eight unfair labor practice strikers to their for-
mer jobs after they submitted their unconditional offer to
return to work on September 20, 2014,5 we note that

Jersey” and “We don’t want to strike, but we will if we have to, 1199
SEIU”; (4) issuing a memorandum prohibiting employees from wearing
union buttons or other insignia within the facility, except for those
expressly approved by management; and (5) engaging in surveillance
of picketing employees.
Lastly, in the absence of exceptions, we adopt the judge’s finding
that the Respondent violated Sec. 8(a)(3) and (1) by (1) reducing Wa-
lace Moreira’s work hours and reassigning him to a part-time pot wash-
er position, (2) imposing more onerous working conditions on Lorena
Aguilar, and (3) reducing Sandra Mejia’s overtime opportunities. Alt-
hough the Respondent filed an exception to the judge’s factual finding
that Moreira and Aguilar “were informed that they were locked out,”
the Respondent did not except to the judge’s finding that it unlawfully
changed their terms and conditions of employment. In any event, the
Respondent did not present any argument or evidence in support of this
exception. Accordingly, we find, pursuant to Sec. 102.46(a)(1)(ii) of
the Board’s Rules and Regulations, that this bare exception should be
disregarded. See, e.g., Charter Communications, LLC, 366 NLRB No.
46, slip op. at 1 fn. 1 (2018) (citing New Concept Solutions, LLC, 349
NLRB 1136, 1136 fn. 2 (2007)).
In affirming the judge’s findings, we do not rely on his citation to
Alcan Rolled Products, 358 NLRB 37 (2012), which was issued by a
panel subsequently found invalid by the Supreme Court in NLRB v.
Noel Canning, 134 S. Ct. 2550 (2014). Although Wayneview Care
Center, 352 NLRB 1089 (2008), a two-member decision cited by the
judge, was vacated by the United States Court of Appeals for the Dis-
trict of Columbia Circuit following issuance of the Supreme Court’s
decision in New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010), we
rely on it here because a three-member panel of the Board incorporated
the decision by reference in a subsequent decision, and that decision
was enforced. See 2010 WL 5173270 (D.C. Cir. 2010) (order vacating
and remanding to the Board), 356 NLRB 154 (2010), enfd. 664 F.3d
341 (D.C. Cir. 2011). We note that Atlas Refinery, Inc., 354 NLRB
1056 (2010), another two-member decision cited by the judge, was also
reaffirmed and incorporated by reference in a subsequent decision by a
three-member panel. 357 NLRB 1798 (2011), enfd. 620 Fed. Appx. 99
(3rd Cir. 2015).
4 We have amended the judge’s recommended remedy. We have al-
so modified the judge’s recommended Order consistent with the viola-
tions found, the amended remedy, and the Board’s standard remedial
language. We shall substitute a new notice to conform to the Order as
modified.
5 Those eight strikers are CNAs Lovette Howard, Maria Goris, Eliz-
abeth Christie-Duran, Norma Diaz, Erika Pena, and Sandra Mejia, and
dietary aide employees Lorena Aguilar and Walace Moreira. Goris,
Christie-Duran, Diaz, and Pena were ultimately returned to work be-
tween September 28 and October 15. Mejia was returned to work on
September 21, but was not returned to her former assignment until
September 24, and was not granted full reinstatement to her former job
until April 2015, when her overtime opportunities were restored. Agui-
lar and Moreira were returned to work on September 22 and 25, respec-
tively, but to different assignments. They still have not been reinstated
to their former jobs.
Although Howard was reinstated on September 23, within the 5-day
administrative grace period the Board generally gives employers to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
there is no exception to the judge’s finding that the 3-day
strike was an unfair labor practice strike. Because the
strike was an unfair labor practice strike, we reject the
Respondent’s argument that its contracts with staffing
agencies that supplied temporary replacements during the
strike and its status as a health care facility justified its
failure to immediately reinstate the strikers after their
unconditional offer to return to work. See Alaris Health
at Castle Hill, 367 NLRB No. 52 (2018) (holding that an
employer’s contractual obligation to retain temporary
strike replacements for a minimum period of time does
not constitute a legitimate and substantial business justi-
fication for denying immediate reinstatement to unfair
labor practice strikers); Drug Package Co., Inc., 228
NLRB 108 (1977) (explaining that while employers gen-
erally have a 5-day grace period to reinstate unfair labor
practice strikers, they cannot assert that a period longer
than 5 days is justified), enf. denied in part on other
grounds 570 F.2d 1340 (8th Cir. 1978).
Even assuming arguendo that a delay beyond 5 days in
reinstating unfair labor practice strikers could ever be
justified by an employer’s contractual obligation to retain
temporary strike replacements for a minimum period of
time, the Respondent failed to demonstrate that its agen-
cy contracts justified denying immediate reinstatement to
the eight strikers. See Alaris Health at Castle Hill,
above, slip op. at 5. Preliminarily, the contracts do not
justify the Respondent’s failure to immediately reinstate
dietary aide employees Lorena Aguilar and Walace
Moreira because the staffing agencies supplied Boule-
vard East with CNAs only, and there is no evidence that
any agency-supplied employee performed any dietary
aide work. See Sutter Roseville Medical Center, 348
NLRB 637, 637 fn. 7, 645−647 (2006) (finding employ-
er’s contracts with temporary staffing agencies did not
justify its delay in reinstating economic strikers not re-
placed by agency-supplied employees).
As to the 6 CNAs denied immediate reinstatement, alt-
hough the Respondent’s contract with Tristate Rehab
Staffing required the Respondent to retain 18 Tristate
employees for 4 weeks, and the Respondent’s contract

reinstate unfair labor practice strikers, the Respondent was not permit-
ted to reinstate strikers in a piecemeal manner. See Orit Corp., 294
NLRB 695, 699 (1989) (After an unfair labor practice strike, an em-
ployer “is not free to pick and choose among the returnees or determine
the order of priority in which they would be entitled to reinstatement.
The strikers [are] entitled to reinstatement as a group, not piecemeal.”),
enfd. mem. 918 F.2d 225 (D.C. Cir. 1990).
To the extent the Respondent’s bare exception to the judge’s finding
that Moreira and Aguilar “were informed that they were locked out” is
intended as an exception to the judge’s finding that Aguilar and
Moreira were denied immediate reinstatement to their former jobs, we
find that it should be disregarded. See fn. 3, supra.
with Towne Nursing Staff required the Respondent to
retain four Towne employees for 4 weeks, there is no
credited record evidence regarding the parties’ negotia-
tions that resulted in those contract terms. In addition,
only two Tristate employees and two Towne employees
actually worked at Boulevard East after the strike ended,
and the Respondent has not provided any evidence that it
had to compensate Tristate or Towne for replacements
who were guaranteed employment after the strike but did
not work.6 As a result, there is no basis upon which to
find either that the staffing agencies required the lengthy
minimum terms as a condition of supplying the tempo-
rary strike replacements or that the Respondent was fi-
nancially liable for any agency employees it did not use
after the strike ended. Moreover, even if the Respond-
ent’s contractual obligations could have justified denying
immediate reinstatement to some of the CNA strikers,
the contracts do not justify the Respondent’s refusal to
immediately reinstate all six, since only 4 employees
supplied by Tristate and Towne worked at Boulevard
East after the strike ended. Alaris Health at Castle Hill,
above, slip op. at 5.
For all of the foregoing reasons, we adopt the judge’s
finding that the Respondent violated Section 8(a)(3) and
(1) of the Act by failing to immediately reinstate eight
unfair labor practice strikers on their unconditional offer
to return to work.7
AMENDED REMEDY
We amend the judge’s remedy as follows.8 First, the
judge ordered the Respondent to recall the eight strikers
denied immediate reinstatement on September 20. How-
ever, the judge found, and no party disputes, that six of
the strikers have been reinstated to their former jobs. We
shall not order the Respondent to offer reinstatement to
those strikers. The remaining two strikers, Lorena Agui-

6 Two CNAs from a third agency, Staff Blue, also worked at Boule-
vard East after the strike ended, but the record does not show that the
Respondent was contractually obligated to retain Staff Blue employees.
7 Backpay for this violation shall commence as of September 20,
when the strikers, through their union, were to return to work pursuant
to the Union’s September 18 unconditional offer. See Teamsters Local
574, 259 NLRB 344, 344 fn. 2 (1981) (citing Interstate Paper Supply
Co., 251 NLRB 1423 (1980) (“[I]f an employer has rejected, attached
an unlawful condition to, or ignored an unconditional offer to return to
work, the 5-day period serves no useful purpose and backpay will
commence as of the unconditional offer to return to work.”)).
8 As noted above, supra fn. 3, the Respondent has not excepted to
the judge’s finding that it unlawfully refused to bargain with the Un-
ion’s chosen bargaining committee. Nor does it argue that the judge’s
recommended affirmative bargaining order is improper. We therefore
find it unnecessary to provide a specific justification for the affirmative
bargaining order. See Lily Transportation Corp., 363 NLRB No. 15,
slip op. at 3 fn. 5 (2015), enfd. 853 F.3d 31 (1st Cir. 2017); Heritage
Container, Inc., 334 NLRB 455, 455 fn. 4 (2001); see also Scepter Inc.
v. NLRB, 280 F.3d 1053, 1057 (D.C. Cir. 2002).
ALARIS HEALTH AT BOULEVARD EAST 3
lar and Walace Moreira, were also reinstated, but not to
their former assignments. We shall order the Respondent
to offer Aguilar and Moreira full reinstatement to their
former jobs.
Second, we shall order the Respondent to make Agui-
lar, Moreira, and Sandra Mejia whole for any loss of
earnings and other benefits suffered as a result of the
changes to their terms and conditions of employment
following their reinstatement in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest as prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010).
Third, in accordance with our decision in King Soop-
ers, Inc., 364 NLRB No. 93 (2016), enfd. in pertinent
part 859 F.3d 23 (D.C. Cir. 2017), we shall order the
Respondent to compensate affected employees for their
search-for-work and interim employment expenses re-
gardless of whether those expenses exceed interim earn-
ings. Search-for-work and interim employment expenses
shall be calculated separately from taxable net backpay,
with interest at the rate prescribed in New Horizons, su-
pra, compounded daily as prescribed in Kentucky River
Medical Center, supra.
Finally, the Respondent shall be required to compen-
sate affected employees for the adverse tax consequenc-
es, if any, of receiving lump-sum backpay awards, and to
file with the Regional Director for Region 22, within 21
days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the back-
pay awards to the appropriate calendar year(s) for each
employee. AdvoServ of New Jersey, Inc., 363 NLRB No.
143 (2016).
ORDER
The National Labor Relations Board orders that the
Respondent, Alaris Health at Boulevard East, Gutten-
berg, New Jersey, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain with 1199, SEIU United
Healthcare Workers East (the Union) because of the
composition of the Union’s bargaining committee.
(b) Refusing to bargain collectively with the Union by
refusing to provide and unreasonably delaying in provid-
ing it with requested information that is relevant and
necessary to the Union’s performance of its functions as
the collective-bargaining representative of the Respond-
ent’s unit employees, including health insurance and dai-
ly work schedule information.
(c) Threatening employees with job loss if they go on
strike.
(d) Coercively interrogating employees about whether
they plan to strike or about their union activities and/or
support.
(e) Prohibiting employees from wearing union insig-
nia in nonpatient care areas or in immediate patient care
areas while permitting employees to wear employer-
issued insignia in the same areas.
(f) Prohibiting employees from wearing union buttons
or other insignia within the facility except for those ex-
pressly approved by management.
(g) Surveilling employees engaged in union or other
protected concerted activities.
(h) Failing and refusing to immediately reinstate em-
ployees who engage in an unfair labor practice strike to
their former jobs or to substantially equivalent positions
upon their unconditional offer to return to work.
(i) Changing the terms or conditions of employment
of employees because they have engaged in an unfair
labor practice strike.
(j) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
[A]ll CNAs, dietary, housekeeping, recreational aides,
cooks, and all other employees excluding professional
employees, registered nurses, LPNs, confidential [em-
ployees], office clerical employees, supervisors,
watchmen and guards.
(b) Furnish to the Union in a timely manner the in-
formation it requested concerning health insurance and
daily work schedules.
(c) Within 14 days from the date of this Order, offer
Walace Moreira and Lorena Aguilar full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(d) Make Lovette Howard, Maria Goris, Elizabeth
Christie-Duran, Norma Diaz, Erika Pena, Lorena Agui-
lar, Walace Moreira, and Sandra Mejia whole for any
loss of earnings and other benefits suffered as a result of
its unlawful failure to immediately reinstate them upon
their unconditional offer to return to work in the manner
set forth in the remedy section of the judge’s decision as
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
amended in this decision, plus reasonable search-for-
work and interim employment expenses.
(e) Make Lorena Aguilar, Walace Moreira, and San-
dra Mejia whole for any loss of earnings and other bene-
fits suffered as a result of its unlawful changes to their
terms or conditions of employment following their rein-
statement in the manner set forth in the remedy section of
the judge’s decision as amended in this decision.
(f) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region
22, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(g) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful failure to im-
mediately reinstate Lovette Howard, Maria Goris, Eliza-
beth Christie-Duran, Norma Diaz, Erika Pena, Lorena
Aguilar, Walace Moreira, and Sandra Mejia upon their
unconditional offer to return to work, and within 3 days
thereafter notify them in writing that this has been done
and that the failure to immediately reinstate them will not
be used against them in any way.
(h) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of back pay due under
the terms of this Order.
(i) Within 14 days after service by the Region, post at
its facility in Guttenberg, New Jersey, copies of the at-
tached notice marked “Appendix”9 in both English and
Spanish. Copies of the notice, on forms provided by the
Regional Director for Region 22, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places, including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, post-
ing on an intranet or internet site, and/or other electronic
means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
shall be taken by the Respondent to ensure that the notic-
es are not altered, defaced, or covered by any other mate-
rial. If the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent 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 March 27, 2014.
(j) Within 21 days after service by the Region, file
with the Regional Director for Region 22 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. December 21, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) 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 LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain with 1199, SEIU Unit-
ed Healthcare Workers East (the Union) because of the
composition of its bargaining committee.
ALARIS HEALTH AT BOULEVARD EAST 5
WE WILL NOT refuse to bargain collectively with the
Union by refusing to provide or unreasonably delaying in
providing it with requested information that is relevant
and necessary to the Union’s performance of its func-
tions as the collective-bargaining representative of our
unit employees, including health insurance and daily
work schedule information
WE WILL NOT threaten you with job loss if you go on
strike.
WE WILL NOT coercively interrogate you about whether
you plan to strike or about your union activities and/or
support.
WE WILL NOT prohibit you from wearing union insig-
nia in nonpatient care areas or in immediate patient care
areas while permitting you to wear employer-issued in-
signia in the same areas.
WE WILL NOT prohibit you from wearing union buttons
or other insignia within the facility.
WE WILL NOT conduct surveillance of you when you
engage in union or other protected concerted activities.
WE WILL NOT fail and refuse to immediately reinstate
employees who engage in an unfair labor practice strike
upon their unconditional offer to return to work.
WE WILL NOT change the terms and conditions of em-
ployment of employees who engage in an unfair labor
practice strike.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
[A]ll CNAs, dietary, housekeeping, recreational aides,
cooks, and all other employees excluding professional
employees, registered nurses, LPNs, confidential [em-
ployees], office clerical employees, supervisors,
watchmen and guards.
WE WILL furnish to the Union in a timely manner the
information it requested concerning health insurance and
daily work schedules.
WE WILL, within 14 days from the date of the Board’s
Order, offer Walace Moreira and Lorena Aguilar full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
WE WILL make Lovette Howard, Maria Goris, Eliza-
beth Christie-Duran, Norma Diaz, Erika Pena, Lorena
Aguilar, Walace Moreira, and Sandra Mejia whole for
any loss of earnings and other benefits suffered as a re-
sult of our unlawful failure to immediately reinstate them
upon their unconditional offer to return to work, less any
net interim earnings, plus interest, plus reasonable
search-for-work and interim employment expenses.
WE WILL make Lorena Aguilar, Walace Moreira, and
Sandra Mejia whole for any loss of earnings and other
benefits suffered as a result of our unlawful changes to
their terms and conditions of employment, plus interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 22, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful failure to immediately reinstate Lovette Howard, Ma-
ria Goris, Elizabeth Christie-Duran, Norma Diaz, Erika
Pena, Lorena Aguilar, Walace Moreira, and Sandra
Mejia upon their unconditional offer to return to work,
and WE WILL, within 3 days thereafter, notify them in
writing that this has been done and that the failure to
immediately reinstate them will not be used against them
in any way.
ALARIS HEALTHAT BOULEVARD EAST
The Board’s decision can be found at
www.nlrb.gov/case/22-CA-125076 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Saulo Santiago, Michael P. Silverstein, and Eric B. Sposito,
Esqs., for the General Counsel.
David F. Jasinski and Rebecca D. Winkelstein, Esqs. (Jasinski,
P.C.), of Newark, New Jersey, for the Respondent.
William S. Massey and Patrick J. Walsh, Esqs. (Gladstein, Reif
& Meginniss, LLP), of New York, New York, for the
Charging Party.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This pro-
ceeding was one of four cases tried ad seriatim involving Alaris
Health’s New Jersey nursing homes and their unionized em-
ployees. Heard in Newark, New Jersey, on September 8
through 10, 2015, the case addressed complaint allegations that
Alaris Health at Boulevard East (Boulevard East, Palisades, or
Respondent), committed numerous unfair labor practices relat-
ing to 20141 bargaining for a new contract: (1) violated Section
8(a)(5) and (1) of the National Labor Relations Act (the Act)2
by refusing to meet with the Union’s chosen bargaining com-
mittee and then delaying and refusing to provide information
requested by the Union which was relevant to bargaining; (2)
violated Section 8(a)(1) by attempting to stifle employee partic-
ipation in a likely strike through coercive interrogation, surveil-
lance, threats of job loss, directing employees to remove union
insignia from their clothing, imposing more onerous conditions
on certain employees; and (3) violated Section 8(a)(3) and (1)
by refusing to reinstate eight employee strikers after they un-
conditionally offered to return to work and changing the terms
and conditions of employment of three of them.3
Boulevard East contends that the Charging Party, Service
Employees International Union 1199 (the Union), is bogged
down on past history in negotiating for successor contracts and
engaged in a series of acts designed to “set up” Boulevard East
for unfair labor practice charges, which it denies, and then used
those charges to mask an economic strike at Boulevard East
and the other three Alaris facilities as an unfair labor practice
strike.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Union, and Boulevard East,4 I
make the following
FINDINGS OF FACT
I. JURISDICTION
Boulevard East, a corporation, operates a nursing home and
rehabilitation center providing in-patient medical care at its
facility in Guttenberg, New Jersey, where it annually derives
gross revenues in excess of $100,000 and purchases and re-
ceives goods valued in excess of $5000 directly from points
outside the State of New Jersey. Boulevard East 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, as well as a

1 Unless otherwise indicated, all dates refer to 2014.
2 29 U.S.C. §§ 151–169.
3 The complaint was amended to modify complaint pars. 17, 20, 24,
25, and 44(b). In addition, the General Counsel subsequently withdrew
pars. 28 and 29.
4 Notwithstanding my instruction that counsel submit one “omni-
bus” brief addressing all four cases, the General Counsel submitted
separate briefs for each case. All four Respondents moved to strike the
General Counsel’s briefs. I decided against such an extreme measure
but, in order to ensure that there was no prejudice to Respondents, I
permitted them to submit supplemental briefs in each case. Harborview
declined the option.
health care institution within the meaning of Section 2(14) of
the Act, and the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Parties
At the relevant times in this complaint, Boulevard East’s su-
pervisors and agents included: Robert Smolin, the administra-
tor; Amanda Furio (a/k/a Amanda Brett), the director of nurs-
ing; and Maria Rodriguez, the dietary director. David Jasinski,
Esq., has served as Boulevard East labor counsel and chief
negotiator during collective bargaining, accompanied by
Mendy Gold, an Alaris principal. Regina Figueroa is a Vice
President of Alaris Health.5
Boulevard East and its predecessors have recognized the Un-
ion as the exclusive collective-bargaining representative of
approximately 80 employees in successive collective-
bargaining agreements, the most recent of which was effective
from April 1, 2010, to March 31, 2014:
All CNAs, dietary, housekeeping, recreational aides, cooks,
and all other employees excluding professional employees,
registered nurses, LPNs, confidential [employees], office cler-
ical employees, cooks, supervisors, watchmen and guards.6
The Union’s leadership includes: Milly Silva, the executive
vice president; Clauvice Saint Hilaire, the vice president; and
Ron McCalla and Christina Ozual, union organizers. During
collective bargaining, the Union’s chief negotiator was William
Massey, Esq., assisted by McCalla. Pursuant to the expiring
agreement,7 the Union designated the following six Boulevard
East employees as members of the bargaining committee: Ze-
inabou Banks, Glyndora Gomollion, Vicky Nieves, Walace
Moreira, Rosa Aria, and Oneida Paulino.
Notwithstanding an employee strike in 2009 during negotia-
tions over the 2010-2014 agreement, the parties enjoy a rela-
tionship that both describe as respectful. The parties began
meeting shortly before the 2010 contracts expired for Boule-
vard East, Alaris at Castle Hill, Alaris at Rochelle Park, and
Alaris at Harborview. However, controversy soon erupted over
the composition of the Union’s bargaining committee and in-
formation requested by the Union.
B. The Union’s Information Requests
1. The December 27, 2013 request
Saint Hilaire initiated the process for a new contract in a let-
ter, dated December 27, 2013. He requested that Boulevard
East engage in bargaining and offered alternative dates in Feb-
ruary. He also requested that Boulevard East furnish the Union
with the following information by January 24: detailed job

5 Boulevard East admitted only that Smolin was a 2(11) supervisor.
However, the undisputed facts established that Furio and Rodriguez
were also statutory supervisors, while Jasinski and Figueroa acted as
agents within the meaning of Sec. 2(13)
6 GC Exh. 202.
7 Sec. 17(c) of the agreement, entitled “Negotiations,” stated that the
“Union negotiating committee, not to exceed six (6) Employees, shall
be paid for up to three (3) negotiating sessions, by the Employer, at
straight time rates, for all lost time from work.”
ALARIS HEALTH AT BOULEVARD EAST 7
descriptions and performance evaluations describing job duties
for bargaining unit positions; summary plan descriptions and
related costs of available fringe benefits such as health insur-
ance, disability, pension, profit sharing and 401(k) plans;8
numbers of employees covered by health insurance and related
costs; temporary staffing agencies used and related costs; work
schedules for each nursing unit from January to October 2013;
OSHA injury and illness records for 2011−2013; health and
safety policies; overtime work policies, shift differentials, and
premium pay; gross annual payroll information; cost reports
submitted to Medicaid; and any other documents describing
any terms and conditions of employment for unit members.9
Jasinski had several conversations with McCalla and Massey
in January about dates to commence collective bargaining. He
apprised them several times that he would be engaged in a
lengthy trial in Atlantic City, New Jersey, during portions of
January and February. The trial eventually started on February
9 and lasted until March 22. Rebecca Winklestein, Esq., Jasin-
ski’s co-counsel in this proceeding, served a similar role in that
case.
At some point during those discussions, Jasinski suggested a
brief contract extension, but did not request an extension of
time to respond to the Union’s December 27 information re-
quest.10 Neither Massey nor McCalla accepted that offer.
McCalla did, however, express the Union’s preference to bun-
dle all four contracts together during collective bargaining,
echoing the Union’s position during the 2007 negotiations.
Consistent with his response in 2007, Jasinski refused, insisting
there was a separate contract for each facility and each should
be negotiated separately. He proposed bargaining dates of ei-
ther March 27 or 31.11
In a letter, dated February 21, McCalla responded to Jasinski
by agreeing to meet on either day and break out negotiations
into separate bargaining sessions for each facility. However, he
also proposed to have an initial session with the bargaining

8 McCalla knew that none of the Alaris facilities maintained 401(k)
plans at the time of the previous negotiations but credibly explained
that it was a standard request that was made in the event that one was
created during the term of the expired agreement. (Tr. 155.)
9 GC Exh. 203.
10 There is no dispute regarding Jasinski’s assertion regarding his
past practice of providing a response to the Union’s information re-
quests on the first day of negotiations. (Tr. 2152−2154.) Moreover, his
testimony that he told McCalla in January and Massey in February that
he would not have an opportunity to delve into the December 27 infor-
mation request was also undisputed. However, in light of Massey’s
March 13th email demanding a response to the information request, it is
clear that the Union never consented to delayed document production
until March 27. (Tr. 1994−1995; GC Exh.7; R. Exh. 104.) It is also
likely that Jasinski, an experienced labor litigator who defended against
the Union’s unfair labor practice charges resulting from previous con-
tract negotiations, would have mentioned such an agreement or under-
standing in subsequent written communications. (Tr. 1550−1552.)
11 Massey conceded that it was Jasinski’s longstanding position to
negotiate each contract separately, but noted that there were occasions
prior to 2014 when the employer agreed to bargain two to four facilities
at different times on the same day. (Tr. 926−928.) Jasinski conceded
that in 2010 all four contracts were essentially bargained at the same
time in the final bargaining session based on an off-the-record meeting
involving delegates from all four facilities. (Tr. 1509−1510.)
committees for all four facilities present in order for union offi-
cials to open with their remarks:
In our discussions concerning bargaining dates you said you
have possible availability on March 27 and definite availabil-
ity on March 31. We request that we use one of those dates to
begin bargaining at Alaris Health at Boulevard East, Alaris
Health at Castle Hill, Alaris Health at Harbor View, and Ala-
ris Health at Rochelle Park. If we need to move the bargaining
session for a different facility tentatively scheduled for the
31st, so be it. As you know the four Alaris contracts expire on
the March 31, 2014 and we’ve yet to receive any response to
information requests sent to the facilities on December 27,
2013. We believe it’s important to start bargaining before the
contracts expire as it’s our desire to reach contract settlements
in these facilities as quickly as possible.
While we understand the employer’s position on separate
bargaining tables for each facility and our agreement to hold
four separate meetings on the first day of bargaining we be-
lieve it would be advisable to add a fifth initial session with all
facilities and bargaining committees present to give our union
leader Milly Silva and counsel Bill Massey an opportunity to
address the proceedings before we break into separate ses-
sions. This would obviously be an opportunity for manage-
ment representatives to speak directly with the employees and
Union officials.
Please let us know which of these dates would be your prefer-
ence.12
In a letter, dated February 26, Jasinski confirmed the pro-
posed bargaining dates and agreed to the proposal to have Silva
and Massey open with remarks, but insisted they make them at
the beginning of each bargaining session for each of the facili-
ties. He also renewed his request for a 90-day contract exten-
sion, but made no mention of the December 27 information
request:
We are in receipt of your letter identifying a number of facili-
ties whose contracts expire on March 31, 2014. A brief re-
sponse is warranted.
Each identified facility is a separate and independent opera-
tion with its own collective bargaining agreement covering
employees for that particular facility. They maintain separa-
tion operations, including all necessary staff. Each facility is
unique and the bargaining history at each facility recognizes
its independence.
In light of these undisputed facts, we will adhere to our prior
practice and not agree to joint bargaining. Of course, Milly
Silva and Bill Massey may present the Union’s respective po-
sitions for each facility at each bargaining session and, quite
candidly, we welcome their attendance.

12 Jasinski’s testimony regarding assurances by McCalla about nego-
tiating the contracts separately is consistent with McCalla’s document-
ed agreement to do that—subject to an opening statement by Silva at
the beginning of negotiations. The assurances of separate bargaining,
however, made no mention of the composition of Boulevard East’s
bargaining committee. (GC Exh. 5; Tr. 869, 1426−1427.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
We are available and confirm the March 27 and 31 dates for
each facility. Please notify me of the times to commence ne-
gotiations for each facility. In scheduling for these sessions,
we request notification of the members of the bargaining
committee who will be attending. We request these names at
least two (2) weeks in advance to avoid any disruption in our
staffing. Bargaining sessions, as in our prior negotiations, will
take place at the Union's offices in Edison.
Finally, in a spirit of good faith and cooperation, as discussed,
we will agree to the extension of each collective bargaining
agreement for an additional ninety (90) days. This additional
time will afford all parties the opportunity to formulate its
bargaining positions and engage in give-and-take at the bar-
gaining table in an effort to reach an amicable agreement that
balances the needs of all parties. Should the Union wish to
jumpstart the negotiations and submit its initial proposals to us
prior to the initial bargaining session, we will accept and re-
view each proposal. Thank you.13
On March 13, McCalla emailed Jasinski to inform him that
each of the four Alaris facilities would receive releases for
bargaining committee members that day by fax and certified
mail. Massey followed up with an email later that day regarding
the commencement of bargaining and the outstanding infor-
mation requests:
This is to follow up on Ron’s correspondence below concern-
ing the start of bargaining with the four Alaris facilities. As
you are likely aware, on December 27, 2013, the Union, via
Vice-President Clauvice St. Hilaire, served information re-
quests on the four Alaris facilities, copies of which are at-
tached hereto for your convenience. Clauvice requested that
the sought after documents be produced to the Union by Jan-
uary 24, 2014. We are now in March, only a couple of weeks
away from sitting down to start negotiations, and I understand
that none of the four facilities has produced even a single
document to the Union. Similarly, I am advised that the facili-
ties have not requested an extension of time nor an explana-
tion for the delay in producing these documents, which are
relevant and necessary for bargaining. Please have the four
facilities produce the requested information as soon as possi-
ble, but no later than March 18, 2014. Please advise your cli-
ents to supply information as it becomes available rather than
waiting to assemble all the information requested. Thank you
for your attention to this matter. Best regards.14

13 GC Exh. 6.
14 Jasinski’s testimony established that he never had an agreement
from the Union for an extension of time to respond to the December 27
information request. When asked on direct examination about that
request, Jasinski simply lumped that issue in with his interest in a con-
tract extension. (Tr. 1416−1418.) Massey had no recollection of any
such conversation, but “could appreciate . . . that it would be difficult to
do lots of other work while [Jasinski was] on trial.” (Tr. 930−931.)
Nevertheless, while corresponding during that time over the logistics
and dates for bargaining, Jasinski simply ignored Massey’s March 13th
reminder to provide the information in advance of the March 27 bar-
gaining session. (Tr. 926, 929−930, 1416−1418; GC Exh. 7.)
2. The March 14th information request
In a letter, dated March 14, Massey followed up on his email
to Jasinski from the day before, insisting on a response to the
December 27, 2013 information request by March 18. In addi-
tion, Massey made a supplemental request for the most current
payroll roster, daily schedules from January to December 2013
(to the extent not already covered by the previous request),
actuarial plan values, and specific health insurance plan docu-
ments. The health insurance documents sought included any
relating to summary plan descriptions, costs, terms of coverage,
census data reflecting plans selected by employees, actuarial
and utilization plan values, and requests for proposals and fi-
nancial impact related information.15
3. The March 27 bargaining session
On March 27, Jasinski arrived at 11 a.m. for the first bar-
gaining session at the Union’s offices in Iselin, New Jersey.
Massey, McCalla, Saint Hilaire, Silva, and Ozual were present,
accompanied by approximately 20−25 employee delegates
from the four facilities. Two days were set aside for bargaining.
Bargaining was to start with the Castle Hill contract and be
followed by negotiations over the Harborview, Boulevard East,
and Rochelle Park contracts.
After waiting about an hour for Gold to arrive, Jasinski
agreed to start the Castle Hill negotiations. Milly Silva and
Massey opened with brief opening remarks. After reviewing the
sign-in sheet, Jasinski protested the presence of employee-
members from Harborview, Boulevard East and Rochelle Park.
He proclaimed Castle Hill’s readiness to commence Castle Hill
negotiations, but noted each contract was different and the par-
ties had not previously engaged in joint bargaining. Massey
replied that the Union was entitled to bargain with a team of its
choosing. Jasinski disagreed, accused the Union of playing
games and was prepared to leave if employees from the other
three facilities did not leave. Massey asked him to reconsider
and reiterated that the Union was entitled to pick its own bar-
gaining team. At that point, Jasinski provided a packet of in-
formation relating to Castle Hill’s December 27 information
request and retreated to a caucusing room.16
Shortly thereafter, Massey and McCalla went to speak with
Jasinski. They asked him to relent, but neither side budged over
the composition of the Union’s bargaining committee. That
conversation ended when Gold arrived and Jasinski asked to
confer with his client. A few minutes later, Jasinski and Gold
returned to the negotiation room. After confirming the Union’s
continued position regarding the composition of the bargaining
committee, Jasinski said that they would leave. At no point
during this meeting did Jasinski assert confidentiality concerns
as a reason for excluding employees from the other Alaris facil-
ities during Castle Hill bargaining sessions.

15 This request refined the previous request for monthly work sched-
ules from one that sought daily work schedules. (GC Exh. 8.)
16 I credit Jasinski’s undisputed testimony that some delegates in at-
tendances made side remarks, sneered, and laughed, but not his conclu-
sion that their conduct made it “not conducive to bargaining.” If that
were true, Jasinski, an experienced labor litigator, would have raised
that as a concern. He made no mention of their conduct as he walked
out. (Tr. 80−83, 870−872, 1432−1434.)
ALARIS HEALTH AT BOULEVARD EAST 9
The parties then discussed future dates for bargaining and
Jasinski provided Massey with packets responsive to the De-
cember 27 information requests by Harborview, Boulevard
East, and Rochelle Park. The cover letter in each packet con-
veyed Jasinski’s view that the Union previously requested the
information:
Enclosed please find a copy of the requested information. As
you will see, much of the information was already in the posi-
tion of the Union and available to the Union via its members.
We are glad to provide you with another copy. Should you
have any additional questions or require additional infor-
mation, please advise.17
Before Jasinski and Gold left, the Union did not submit a
proposal.18 Silva did, however, ask about rumors that Boule-
vard East would be demolished to make way for apartment
building development. Jasinski replied that the Boulevard East
question did not apply to the Castle Hill negotiation, while
Gold said that there was nothing to report. Jasinski said he
would get back to them about Boulevard East. Shortly thereaf-
ter, Jasinski and Gold left and did not return in order to com-
mence bargaining over Harborview, Boulevard East, and Ro-
chelle Park.
In a letter, dated April 1, Jasinski proposed dates for the re-
sumption of bargaining for the Boulevard East contract:
After the abbreviated March 27th bargaining session, I want
to reiterate that we are available to meet on April 1st, 2nd and
3rd to continue negotiations for the referenced facility. We
understand that the Union did not believe it was prudent to
meet on any of those dates since it needed additional time to
review information. In light of the upcoming religious holi-
days, we confirmed that we are available on April 28th and
29th, and also offered April 30th and May 1st to meet on any
one of those dates for this facility. We believe that it is best to
dedicate one of these days for this facility only and not piggy-
back any other negotiations for the designated dates. The em-
ployees deserve our undivided attention. Unfortunately, de-
spite our admitted avai1ability, the Union has not confirmed
any of those dates at this time.
If the Union is interested in meeting to continue negotiations
at this facility, we ask that you confirm one of those dates for
this facility. In addition, if you are interested in moving the
negotiations forward, if we receive your written proposal prior
to our next session, it will give us the ability to review it and
prepare a response and to continue good faith bargaining.
Finally, we again express our willingness to extend the cur-
rent collective bargaining agreement for an additional period
of time to afford the parties the opportunity to continue nego-
tiations in good faith, and seek to reach an amicable resolution
that balances the needs of your members with the facility and
the care for our residents. Thank you.19

17 GC Exh. 204.
18 Boulevard East notes the discrepancy in testimony between Mas-
sey and Saint Hilaire as to whether the Union was prepared to issue its
proposals if the bargaining sessions had gone forward. (Tr. 938, 1059.)
19 GC Exh. 205.
In his reply later that day, McCalla documented the parties’
March 27 meeting, disagreed with the four facilities’ “refusal to
hold bargaining sessions for more than one facility per day” as
“unreasonable and a poor use of the time and resources of all
parties.” Notwithstanding Jasinski’s position, McCalla pro-
posed to commence separate bargaining dates for each facility
as follows: Castle Hill on April 28; Boulevard East on April 29;
Rochelle Park on May 1; and Harborview on May 2:
As discussed on March 27, we reiterate that your clients' re-
fusal to hold bargaining sessions for more than one facility per
day is unreasonable and a poor use of the time and resources
of all parties. That said, assuming the Employers have not re-
considered on this issue, the Union confirms our agreement
from last week to bargain on April 28 and April 29, we accept
your offer to bargain, on May 1, and we offer May 2 for a
fourth session. We propose the following sequence:20
4. The Union’s follow-up request
In a letter to Jasinski, dated April 9, Massey expressed con-
cern over the facilities’ failures to provide the Union with the
information described in items 10, 11, and 12 of the December
27 request, and items 2, 3(b), (c), and (e) through (1) of the
March 14 request. In addition, Massey noted that the responses
to items 14 and 15 of the December 27 request and item 3(a) of
the March 14 request were incomplete. He asked for the out-
standing information to be provided by April 15.21
On April 21, Jasinski responded by reminding Massey that
“each facility is separate and we provided separate information
for each facility. In the future, we request that any inquiry be
addressed for the individual facility.” In response to items 10
and 11, Jasinski stated that there were no documents because
the facility had not used agency personnel to perform bargain-
ing unit work. Item 12 was noted to be voluminous and Jasinski
proposed that the Union “accept a representative sample of
work schedule[s] for a limited period of time.” As to items 14
and 15, Jasinski referred Massey to the employee handbook.22
In a separate letter dated the same day, Jasinski responded to
the Union’s March 14 supplemental request by noting that
items 1 and 3 were previously provided, while item 2 was bur-
densome and unnecessary. Jasinski requested the Union to re-
fine it to one not as overbroad.23
5. The April 29 bargaining session
The parties subsequently agreed to resume the Boulevard
East contract negotiations on April 29. Prior to that session, the
Union undertook a propaganda blitz in a flier distributed to the
employees at the four facilities:
At our first bargaining session on Thursday, March 27th, we
came prepared to bargain with management at each of our
four facilities. But management refused to sit face to face with
our full bargaining team to discuss their proposals. They want
to divide us and weaken us, but we won't let that happen! We
won't wait years for a new contract! For more information,

20 GC Exh. 11.
21 GC Exh. 21.
22 GC Exh. 207.
23 GC Exh. 206.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
contact your organizer, Christina Ozual at [xxx-xxx-xxxx].
The next negotiations are scheduled for Monday, 4/28 and
Tuesday, 4/29. Let's all be ready to stand strong and speak
with one voice!24
At the April 29 bargaining session, Jasinski and Gold met
with Massey, McCalla, Silva, Saint Hilaire the six bargaining
committee members from Boulevard East. This time, there was
no controversy regarding the composition of the Union’s bar-
gaining team. Massey gave Jasinski the Union’s written pro-
posals, but reminded him that the Union was still waiting for
the CNA daily work schedules and health insurance related
information. In response to Jasinski’s letter asserting the 12-
month request was burdensome, Massey agreed a day earlier
during the Castle Hill negotiations to accept 3 months of daily
work schedules. Jasinski said he would get back to the Union
regarding the requests. Massey also asked about the rumors that
Boulevard East would be replaced by an apartment building.
Jasinski replied that there was nothing new to report and re-
fused to respond to rumors25
6. The Employee Schedules
In a letter, dated May 14, Jasinski furnished Massey with the
monthly staffing schedules at Boulevard East for each floor for
all shifts from February 1 to May 25. The monthly schedules
reflected projected CNAs’ work schedules and floor assign-
ments.26 On May 21, Jasinski responded to Massey’s additional
information request:
In response to your additional information request, we have
provided you with all relevant information. Most recently, we
supplemented our initial response with schedules for this Fa-
cility. The additional information which you have requested is
simply without merit. You are well aware of this fact, since
similar information was requested when the SEIU responded
that the information was not available, since it would be a vio-
lation of HIPAA.27
It is disconcerting that the Union now requests information
which it has previously been unable or refused to provide in
negotiations. It was either an oversight or, worse, disingenu-
ous, to make these requests.
We are prepared to continue to negotiate a collective bargain-
ing agreement that balances the interests of our employees
and your members with those of the Facility. Should you have
any other questions, please advise.28

24 GC Exh. 44.
25 The Union does not dispute that, notwithstanding Boulevard
East’s failure or refusal to provide necessary information requested on
December 27 and March 14, it was still able to submit a fairly compre-
hensive proposal. (GC Exh. 221; R. 202; Tr. 1926−1932, 2745−2749.)
26 GC Exh. 208.
27 During the hearing, Jasinski sought to undermine the Union’s need
for health insurance information based on the lack of health or safety-
related grievances filed and focused on several CBA provisions: Sec. 8
(grievance and arbitration procedure); and Sec. 29(c) (Health and Safe-
ty Committee whose purpose “shall be to identify and recommend
preventative measures where appropriate”).
28 GC Exh. 209.
The parties met again for bargaining on May 27. Massey
again opened with a statement that the information provided in
response to the Union’s request was not satisfactory because it
lacked the requested health insurance information and consisted
of projected monthly schedules instead of work schedules re-
flecting actual work performed by CNAs.29 Massey also asked
about the status of Boulevard East’s zoning application to con-
vert the facility into an apartment building. Jasinski insisted
that the monthly schedules were sufficient and Massey ex-
plained the relevance of the more accurate daily work sched-
ules, which reflect the days and shifts actually worked. With
respect to the conversion of the facility into an apartment build-
ing, Jasinski again professed to have no knowledge and added
that “these things take years.” After engaging in bargaining,
Jasinski provided and explained Boulevard East’s counterpro-
posals.30
7. The June 16 bargaining session
The June 16 bargaining session opened, as usual, with the
Union’s request for daily work schedules and health insurance
information needed for bargaining. Once again, Jasinski disa-
greed, insisting the Union already had the information and did
not need anything further. During the bargaining that ensued,
Jasinski dismissed the Union’s staffing proposals based on the
CBA’s management rights clause reserving it unilateral control
over staffing. The parties then engaged in bargaining, with
Jasinski providing Boulevard East’s latest contract proposals.31
On July 30, Jasinski replied to the Union’s continuing re-
quest for health plan information and employees’ daily sched-
ules:
We want to be clear and avoid any misunderstanding regard-
ing your multiple information requests. The Employer has
been fully responsive. The latest request purportedly asked for
supplemental information for the Employer's health plan
which was nothing more than harassment, grounded in bad
faith, and not intended to facilitate contract negotiations. It is
intended to only stall negotiations. We are not about to allow
that to happen. At the negotiations, we informed you that the
Employer is not in possession of such information and/or the
Union is requesting confidential information. We reiterated, at
the bargaining table, it is irrelevant, unnecessary and not in-
tended to facilitate contract negotiations.
In addition, the Union requested information concerning work
schedules at this facility. We provided the Union with the
master list which represents our work schedules. This is the
only relevant information, and it was provided.
As stated across the bargaining table, the Employer will nei-
ther waive nor modify its rights as set forth in the Manage-
ments Rights clause of the collective bargaining agreement.
Staffing has historically been a right reserved to this admin-
istration, and we will not give-up in this contract negotiation

29 Saint Hilaire credibly testified that Boulevard East employees
complained to him about short-staffing, health insurance and vacation
issues. (Tr. 1012−1013.)
30 GC Exh. 221 at 11−16.
31 GC Exh. 221 at 17−21.
ALARIS HEALTH AT BOULEVARD EAST 11
our unilateral right to determine staffing at this Facility. We
will reject any Union proposal that modifies our rights con-
cerning staffing levels on the units and the way we staff this
Facility. That is our final position and we will not deviate
from it.
Once again, we suggest the Union focus on the negotiation of
a new collective bargaining agreement for our employees. We
are puzzled with the Union's refusal to meet or provide, dates
for parties to bargain in good faith. We reiterate our request
for new dates to continue to negotiate.32
8. The August 25 Bargaining Session
The parties next met for bargaining on August 25. Massey
reiterated the Union’s need for the outstanding daily work
schedules and health insurance information for bargaining.
Jasinski did not respond to that inquiry and the parties engaged
in bargaining.33
C. Employees Prepare for a Possible Strike
Beginning in March, Ozual or Saint Hilaire met periodically
with employees at the facility. Speaking to the employees in
English and Spanish, they provided contract education, bargain-
ing updates, and listened to complaints. The bargaining updates
included the significant issues involving in bargaining such as
health insurance coverage, pension plan funding, staffing, and
the rumored demolition of Boulevard East. Ozual and Saint
Hilaire also informed employees about Boulevard East’s refusal
to meet with the Union’s bargaining committee on March 27
and its refusal to provide requested information.34
By May, the Union recommended that employees step up the
pressure on the four Alaris facilities. On May 19, several
Boulevard East employees participated in informational picket-
ing. Sandra Mejia, Maria Goris, Norma Diaz, Lorena Aguilar,
Lovette Howard, and Walace Moreira carried signs containing
several exclamatory messages to Boulevard East: “1199 Stop
Unfair Labor Practices,” “Be Fair To Those Who Care,” and
“Contract Now!”35
Boulevard East management did not stand idly by as the un-
ion pressure increased. On June 16, Dietary Director Maria
Rodriguez approached a group of dietary employees gathered
outside the facility. She asked the group, which included Lore-
na Aguilar and assistant dietary director Elliot Fernandez, when
the strike would begin and warned that anyone who went on
strike would be fired. Someone replied that the employer could
replace them during the strike, but could not fire them and
would be required to reinstate them upon returning from the
strike. At that point, one of the employees saw Ozual, brought
her over to the group and repeated what Rodriguez said. Ozual
reinforced what the employees told her and explained they were
within their rights to engage in a strike and return to work. Ro-
driguez disagreed, insisting that “this is my kitchen . . . and I let

32 GC Exh. 210.
33 GC Exh. 131 at 22.
34 It is undisputed that Ozual, accompanied occasionally by Saint
Hilaire, followed a similar practice of updating employees, as well as
receiving their complaints, at each of the four Alaris facilities. (Tr.
1003−1011, 1012−1013, 1158−1187, 1206−1207.)
35 GC Exh. 213.
back who I want in this kitchen . . . and you’re not coming back
after the strike . . . .36
Also in June, Rodriguez told Aguilar to go to Smolin’s of-
fice. When Aguilar and two coworkers arrived, Smolin asked if
they were going on strike. Aguilar said she was going on strike
because the employees insisted on a fair contract. Smolin re-
plied that the Union was at fault and was unwilling to sign a
contract. Aguilar, having attended the bargaining sessions, told
Smolin that was not true.37
Thereafter, the Union gradually increased the public pres-
sure. In July, the Union’s New Jersey communications coordi-
nator, Bryn Loyd-Bollard, created “Alarisk.com”, a website
devoted to the Union’s bargaining campaign against the four
Alaris facilities. The website’s home page included a news alert
providing the economic motives behind a potential strike:
NEWS ALERT: HUNDREDS OF HEALTHCARE
WORKERS STRIKE AFTER CONTRACT TALKS SOUR.
Don't put your health at alarisk.
Stand up for quality care and goodjobs in nursing home.
Stand with nursing home residents, families and caregivers
and tell the owners of Alaris Health (formerly Omni
Health Systems) to settle a far contract that protects patients
and workers.
Despite making $41 million in profit in 2012, many Alaris
nursing homes suffer from substandard staffing levels while
hardworking caregivers live in poverty. The overwhelming
majority of Alaris nursing home employees earn less than
$25,000 a year, and some have to rely on public assistance
just to make ends meet.
Our communities depend on skilled caregivers to provide
for our loved ones in their times of need. They deserve bet-
ter. We deserve better.38
On July 23, Silva convened a press conference in Jersey City
near Alaris’ corporate headquarters. There were elected offi-
cials and approximately 10 employees from Alaris facilities in
attendance. In prepared remarks that followed, Silva excoriated
Alaris for a mélange of reasons as justification for a possible
future strike, including unfair labor practices and regressive
economic proposals.
We are here today because Alaris Health, the multimillion
dollar for-profit nursing chain based here in Journal Square, is
showing a callous disregard for the wellbeing of the commu-
nities in which they operate.
The owners of Alaris are violating the rights of its employees,
they are raking in huge profits while maintaining substandard
staffing levels, and they are planning to demolish one of their
long-term care facilities without being forthright to the nurs-
ing home’s residents or caregivers about their plans. We are
here to demand that Alaris start acting responsibly.
The women and men standing beside me play a critical role as

36 Fernandez did not dispute Aguilar’s credible testimony. (Tr.
2323−2326, 2645−2647.) Rodriguez did not testify.
37 Smolin did not dispute Aguilar’s credible testimony on this point.
(Tr. 2328−2330.)
38 GC Exh. 48.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
caregivers to some of the most vulnerable people in our
communities. It is essential that their rights and dignity as
workers be upheld, because there is a connection between the
quality of life of caregivers and the quality of care for patients.
It is of grave concern to us that Alaris has committed numer-
ous unfair labor practices and continues to act in the same dis-
respectful and illegal manner as they did five years back,
when they operated under the name Omni Health Systems.
We do not want a repeat of 2009, when hundreds of nursing
home workers had no choice but to go on strike in order to
protect standards for good jobs and quality patient care. Omni
may have changed their name to Alaris, but it seems that they
haven't changed their ways.
After nearly four months and 16 bargaining sessions, 450
caregivers at four Alaris Health nursing homes are still work-
ing under expired contracts. All they are asking for are the ba-
sics to make ends meet—something that must be insisted up-
on for every healthcare worker who, as a fundamental re-
quirement of her job, needs to remain physically and mentally
healthy.
Yet instead of moving forward, Alaris wants to further erode
job standards in nursing homes. They’re asking low-wage
workers, who earn less than $23,000 a year full-time, to pay
even more for health insurance and to reduce critical benefits
including sick leave. Many workers already have no choice
but to enroll in public assistance just to get their children the
healthcare they need, and the concessions that Alaris is seek-
ing will only make the situation worse.
We will not let vital healthcare jobs suffer so that Alaris,
which makes $40 million in profit a year, can walk away with
even more.
It is disgraceful that Avery Eisenreich, the principal owner of
Alaris, which receives literally hundreds of millions of dollars
in Medicaid and Medicare funding each year to provide care
to the elderly and vulnerable, decides to pocket millions for
himself before making sure that the caregivers who work di-
rectly with patients have what they need to get by.
Avery has also failed to address persistent staffing shortages
at these four facilities, each of which have certified nursing
assistant staffing levels below both state and national averag-
es. Our union has proposed a framework for addressing staff-
ing shortages, but management has for months failed to pro-
vide the union with requested information on staffing and has
refused to negotiate over this critically important issue.
And in Guttenberg, where Avery Eisenreich owns a facility
on Boulevard East that is home to 100 elderly and frail resi-
dents, he plans to demolish the nursing home in order to build
luxury high-rise apartments. He is not being upfront about
what his plans are, and the nursing home’s residents, their
family members, and workers have been left in the dark. This
is incredibly disrespectful to everyone who depends on
Boulevard East, either as a patient or as an employee.
In many ways, Alaris is acting in complete disregard for the
community. We are here today to say that enough is enough.
We do not want to strike. Our members would rather be doing
the job they love and caring for their residents instead of
walking the picket line. But they are ready to strike if they
have to, to protect quality care and good jobs.
I’d like to introduce you to a few members of 1199, who work
at Alaris nursing homes in Hudson and Bergen counties. They
have been working very hard these past months to win a con-
tract that respects their dignity as caregivers and as providers
for their own families.39
Jasinski knew about the Union’s July 23 press conference
and discussed that event with Alaris corporate officials.40
D. Unit Employees Decide to Strike
On August 27, Massey, Silva, McCall, Ozual, and Saint
Hilaire met at the Union’s office in Iselin, New Jersey, with ten
employee delegates from Harborview, Boulevard East, and
Rochelle Park. Another six employees from Castle Hill partici-
pated by telephone. Rosa Arias and Lovette Howard were the
delegates from Boulevard East.
The union officials met with the employees for about 1−1/2
hours. McCalla laid out a case for a strike based on the Union’s
inability to make significant headway in negotiations and the
wide gap between proposals. Massey followed with a recitation
of the unfair labor practice charges filed for the four facilities
and the complaints that he expected to be filed by the Board in
September. He also provided an explanation of the difference
between an economic strike and a strike premised on unfair
labor practices.
Massey then proposed a resolution setting forth the reasons
for going out on strike. At the conclusion, the employee dele-
gates present voted to deliver 10-day notices to engage in a 3-
day strike. The group discussed and decided who would deliver
the notices along with McCalla. The delegates were also in-
structed to tell the membership that the strike was authorized
and it was motivated by economic and unlawful practice rea-
sons.41 The employees present signed the resolution and the six
employees participating by telephone from Castle Hill voiced
approval:
At a meeting of the Alaris Bargaining Committee of 1199
SEIU United Healthcare
Workers East ("the Union"), held at the Unions office in Isel-
in, NJ on August 27, 2014, upon the recommendation of Ex-
ecutive Vice President Milly Silva, the following resolution
was considered and adopted by the undersigned Committee
members:
WHEREAS, 1199 SEIU United Healthcare Workers East is
the collective bargaining representative of bargaining unit

39 GC Exh. 57.
40 Jasinski conceded that Alaris officials were provided with the de-
tails. (Tr. 1536−1538.)
41 Art. IV, sec. 7 of the Union’s Constitution gives delegates the “re-
sponsibility of involving their members in all affairs of the Union. Art.
V, Sec. 6(b) states the rights of members ‘[t]o vote on all strike calls
and strike settlements directly affecting the members as employees.
Art. VII, Sec. 11(1)(f) states that the’” Regional Delegate Assembly
shall have the power to call strikes in its region, subject to the approval
of the members directly involved and the executive council. (R. 106.)
ALARIS HEALTH AT BOULEVARD EAST 13
employees of Bristol Manor Health Care Center, Castle Hill
Health Care Center, Harborview Healthcare Center and Pali-
sades Nursing Center, all affiliates of Alaris Health (collec-
tively, "the Employer"); and
WHEREAS the Union has bargained in good faith with the
Employer to negotiate a collective bargaining agreement; and
WHEREAS, the Employer has Violated our rights by com-
mitting Unfair Labor Practices, specifically by failing and re-
fusing to provide information requested by the Union that is
needed for bargaining (especially health insurance and staff-
ing information), unduly delaying in providing other infor-
mation, and unlawfully interfering with the composition of
the Union's bargaining committee and
WHEREAS, Region 22 of the National Labor Relations
Board has informed the Union
that a Complaint against the Employer alleging multiple Un-
fair Labor Practices in connection with this unlawful conduct
is forthcoming; and
WHEREAS, the Employer has continued to make unreasona-
ble bargaining demands of the Union and its members; and
WHEREAS the Employer has continued to commit additional
Unfair Labor Practices, including by unlawfully polling and
coercively interrogating Union members, and threatening Un-
ion members with adverse employment consequences for en-
gaging in protected Union activity; and
NOW, THEREFORE, BE IT RESOLVED THAT: the Union
and its members hereby determine to serve the Employer with
the legally required ten-day notice of intent to engage in a ral-
ly and vigil at Castle Hill Healthcare Center on or about Sep-
tember 10, 2014, in response to the Employer's ongoing Un-
fair Labor Practices and unreasonable bargaining position;
and
BE IT FURTHER RESOLVED THAT: the Union and its
members hereby determine to serve the Employer with a sub-
sequent legally required ten-day notice of intent to engage in a
strike, for three days at each facility, in response to the Em-
ployer's ongoing Unfair Labor Practices and unreasonable
bargaining position.42
In a letter, dated August 29, Jasinski decried the Union’s jus-
tification in moving towards a strike, noting that it had been
approximately 2 months since the parties’ last bargaining ses-
sion. He referred to his request at the conclusion of their last
session for future bargaining dates, but the Union never pro-
posed any. At this point, Jasinski suggested the parties resume
negotiations during the weeks of either September 8 or 15. He
concluded by attributing the standoff to the Union’s continuing
request for ‘irrelevant and unnecessary” information, and the
Union’s attempts to resurrect staffing proposals that were pre-
viously resolved.43
On September 6, the Union delivered to Boulevard East the

42 It is undisputed that the strike resolution was not disseminated tothe
entire union membership for a vote as required by the Union's consti-
tution. (GC Exh. 15.)
43 GC Exh. 211.
contractually required 10-day notice of bargaining unit employ-
ees’ intention to go out on strike for 3 days:
Notice is hereby given, pursuant to section 8(g) of the Nation-
al Labor Relations Act, that 1199 SEIU United Healthcare
Workers East, New Jersey Region and the employees it repre-
sents intend to conduct a strike and picketing at Harborview
located at 178-198 Ogden Ave., Jersey City, NJ 07 306. The
strike and informational picket are to protest the Employer's
ongoing Unfair labor Practices and the Employer's unreason-
able bargaining demands. The strike will commence at 6:00
AM on Wednesday, September 17, 2014 and end at 6:59 AM
on Saturday, September 20, 2014.44
Such action had been submitted to the membership for a vote
in past years, as required by the Union’s constitution.45 In this
instance, unit members were informed of the scheduled strike
and provided with reasons attributing the strike action to
Boulevard East’s bargaining posture and unfair labor practic-
es.46
On the same day, Jasinski emailed Massey, questioning the
Union’s motives and cancelling proposed bargaining dates in
September in order for his clients to dedicate their “time, effort
and our resources to ensuring the strike contingency plan at
each Facility that received a strike notice is in place and fully
operational.”47
E. Supervisors Statements Prior To The Strike
Around the same time, the Union began mobilizing employ-
ees for the strike. Saint Hilaire and/or Ozual met with Boule-
vard East employees 2−3 times a week in the break room to
answer employees’ questions and rally support for the strike. In
doing so, they distributed informational flyers and addressed
concerns regarding Boulevard East’s alleged unfair labor prac-
tices, including the aforementioned statements by supervisors.48
They also explained that the strike was motivated by the desire
to pressure Boulevard East to agree to their contract proposals
and put a stop to its unfair labor practices.49
Sometime in August, Smolin called several CNAs into a
meeting in the main office. Amanda Furio, the nursing director,

44 GC Exh. 212.
45 Boulevard East correctly notes that a membership strike vote was
not conducted in accordance with the Union’s constitution. However,
the vote of the delegates was subsequently ratified by the membership’s
actions in going on strike and Boulevard East failed to cite any CBA or
other legal provision supporting the notion that the delegate’s strike
vote was null and void or that it even has standing to raise such a pro-
cedural objection. (R. Exh. 106 at 5−7.)
46 Boulevard East refers to the testimony of several witnesses indi-
cating that their strike participation was motivated by the employers’
bargaining positions. Interestingly, their testimony related to statements
made in response to coercive interrogation or threats by Smolin, Furio,
and Rodriguez. (Tr. 2329−2330, 2336, 2346−2350, 2396−2397, 2401,
2403, 2409, 2452−2453, 2498−2499, 2526.)
47 R. Exh. 8.
48 GC Exhs. 44(c), (e) and (f); R. Exh. 4-5.
49 This finding is based on the credible and undisputed testimony of
Ozual and Saint Hilaire. (Tr. 1013−1016, 1020−1022, 1024−1028,
1170, 1206, 1208−1210, 1212, 1216−1220, 1284−1286, 1290−1297,
1300, 1302−1303, 1306−1308.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
was also present. The CNAs present included Elizabeth Chris-
tie-Duran, Sandra Mejia, Yavida Mena, and Rosa Fernandez.
Smolin acknowledged the lack of an agreement between the
Union and Boulevard East and understood there would be a
strike. He then proceeded to ask each employee if they were
going to participate in the strike. Christie-Duran said she would
go out on strike. After the others also responded, Smolin
warned that if they went on strike, they could lose their jobs.
Christie-Duran took issue with that assertion, insisting it was
within employees’ rights to go on strike. Smolin replied that he
would hire replacements and there would be no work for re-
turning employees. Furio chimed in at that point, acknowledg-
ing employees’ rights to strike, but urging the employees to
appreciate the risk of “winding up without a job.” Smolin did
not end the inquiry there. About a week later he asked Christie-
Duran while she was working if she was going on strike. Chris-
tie-Duran said yes.50
In early September, Smolin increased the pressure on em-
ployees by calling them into meetings in his office. He was
accompanied by Furio and Linda Restrepo, the business office
manager, who interpreted his comments into Spanish. Once
there, he asked the employees if they were going to participate
in the strike. Several CNAs, including Norma Diaz, Patricia
Ruiz, and Maria Goris responded that they were going to partic-
ipate in the strike. He continued to blame the controversy on
the Union’s unwillingness to negotiate with Boulevard East and
warned that strikers could be replaced. Also, while holding a
document, he explained that it related to the previous strike and
that 16 to 20 strikers were locked out and some were never
reinstated.51
A few days after Aguilar served the Union’s 10-day strike
notice, Smolin called Aguilar and two other dietary employees
into his office. Regina Figueroa, Alaris’ vice president, was
present. Figueroa criticized the Union’s bargaining campaign
and opined said that employees’ priorities should be their pa-
tients. Aguilar took issue, insisting employees cared for the
patients, but management did not care about the employees.
Smolin then referred to Boulevard East’s proposal for a $500
bonus for the employee of the month. Aguilar questioned that
assertion, given that she attended bargaining sessions. Smolin
then warned that there would be changes if employees went on
strike. He asked the three employees if they were going on
strike and they responded in the affirmative.52
In early September, Rodriguez renewed her threats of termi-
nation. Rodriguez called Aguilar into the dietary office and
asked if she was going on strike. Aguilar said she was going to
participate in the strike and Rodriguez replied that she would be
fired. Aguilar held her ground, insisting she was within her
right to strike and would be entitled to return after the strike.
Rodriguez replied that she would do what she had to do.
Around the same time, Rodriguez remarked to dietary em-

50 Christie-Duran and Sandra Mejia testified credibly about this en-
counter and their testimony was not disputed. (Tr. 2446−2451,
2516−2517.)
51 This finding is based on the credible and undisputed testimony of
Diaz and Goris. (Tr. 2497−2450, 2525−2526.)
52 Aguilar’s testimony was not disputed. (Tr. 2347−2352, 2419.)
ployee Walace Moreira while he was in her office getting sup-
plies that anyone who participated in the strike would be re-
placed. A few days later, Rodriguez approached Moreira and
Aguilar in the kitchen, asked if they would participate in the
strike and warned that they would be replaced if they did.53
F. Alaris Supervisors Prohibit Union Insignia
Boulevard East has a uniform policy prohibiting dietary em-
ployees from wearing jewelry or buttons in the kitchen. The
policy reflected a safety concern regarding such items breaking
and/or falling onto patients’ food trays. Several months prior to
the strike, however, Smolin began distributing buttons for su-
pervisors to wear. The buttons read, “I Care. I am Alaris
Health.” Rodriguez wore the button continuously, even in the
kitchen area. In August, Smolin distributed the “I Care” button
to employees. Aguilar received one and wore it on her uniform,
even while working in the kitchen.
In late August or early September, several employees began
wearing union buttons on their clothing during work time. One
button bore the Spanish version of “We Care For New Jersey”
while the other stated “We don’t want to strike, but we will if
we have to, 1199 SEIU.”54 However, Rodriguez instructed
Moreira on two occasions and Aguilar once to remove them
during work time because they were not part of the dietary
department uniform. The employees took issue with her di-
rective, but complied.55
The prohibition against prounion buttons, however, was not
limited to work time in the kitchen. In late August, as Moreira
ate lunch in the employee dining room, Smolin approached him
and told him to remove the “We Don’t Want To Strike” button.
Smith then proceeded to post a letter on the Union bulletin
board. The letter stated, in pertinent part:
Dear Employee: We have to be careful when caring for our
residents because information can be misrepresented and mis-
perceived and can cause the resident to become anxious. Any
information that is worn on the uniform such as a button that
can be interpreted as threatening to a resident may not be
worn at Boulevard East unless approved by the administra-
tion. A button such as “Alaris Health, I Care” is ok to wear on
the uniform. If you have any questions, please contact me,
Thank you, Robert Smolin.56
G. Alaris Supervisors Observe Employees During Prayer Vigil
On September 10, employees from all four facilities, includ-
ing Norma Diaz from Boulevard East, participated in a prayer
vigil and rally with Silva and their local State Assemblyman in

53 Again, the credible testimony of Aguilar and Moreira was undis-
puted. (Tr. 2363−2354, 2543−2545.)
54 GC Exhs. 216−217.
55 Assistant dietary supervisor Elliott Fernandez testified regarding
the existence of, and reasons for, the uniform policy. He was unaware
of employees wearing any buttons in the kitchen. (Tr. 2841−2844.)
However, in light of Smolin’s corroborative memorandum, I credit the
testimony of Moreira and Aguilar regarding the disparity between the
employer’s restrictions against pro-union buttons while permitting them
to wear company-issued buttons. (Tr. 2332−2338, 2547−2554, 2593;
GC Exh. 219.)
56 GC Exh. 219.
ALARIS HEALTH AT BOULEVARD EAST 15
front of Castle Hill.57 Flyers distributed to employees at the
four facilities prior to the vigil referred to the upcoming strike
relating to the facilities’ unfair labor practices and undermining
of job standards.58 During the event, Castle Hill Administrator
Maurice Duran stood about ten feet away. He could be heard
saying that their action was a joke, there was nothing to worry
about, it was just bad publicity, and it would not be a problem
to do what he had to do next.59 The Union photographed the
rally/vigil and depicted it in a flyer distributed on September
15.60
H. Alaris Prepares for the Strike
In anticipation of its staffing needs prior to the strike, Boule-
vard East entered into contracts with three temporary staffing
companies. Included in the agreements with Tristate Rehab
Staffing and Towne Nursing were requirements that that
Boulevard East retain their employees for minimum terms of
four weeks. This was a peculiar development in light of the
Union’s prior notice of a 3-day strike. There was, however, no
written agreement with Staff Blue.61
I. The Strike
Massey did not speak with Jasinski about the strike before-
hand, but sent him an email and voice mail on September 15.
On the same day, Jasinski called McCalla and requested he
alert employees not to walk off early because it could leave the
facilities understaffed and compromise their licenses.62
On September 17, approximately 20−30 Boulevard East em-
ployees/unit members ceased work and engaged in a strike. The
strikers included Walace Moreira, Elizabeth Christie-Duran,
Lovette Howard, Norma Diaz, Maria Goris, Erika Pena, and
Lorena Aguilar. Over the next 3 days, the striking employees
picketed outside the facility. They included Sandra Mejia, who
was on medical leave during the strike but returned to partici-
pate in the picket on September 18.
The picketers’ signs demanded Boulevard East engage in
good-faith bargaining and cease committing unfair labor prac-
tices.63 As the employees picketed on the 1st and 2nd days of
the strike, Smolin stood in the lobby and took photographs of
the picketing employees with his cell phone. Employees saw
several flashes in their direction.64

57 GC Exh. 35.
58 GC Exh. 44(f).
59 I base the finding regarding the observation of employees on Cas-
tle Hill CNA Leanne Crawford’s credible and undisputed testimony.
(Tr. 489−492.) Although his employment role was limited to Castle
Hill, Duran conceded that he is engaged to Alaris official Ann Taylor.
(Tr. 1584−1585.)
60 GC Exh. 44(b).
61 I did not credit Jasinski’s vague testimony regarding alleged nego-
tiations by unidentified persons which resulted in Boulevard East
agreeing to four week terms. (Tr. 2767, 2803; R. Exh. 11; GC Exhs.
226, 233−234.) Linda Dooley, an Alaris officer who signed the agree-
ments was available, but did not testify, and the circumstances by
which the addenda were added were not explored. (Tr. 722, 2636.)
62 GC Exh. 28.
63 GC Exh. 19.
64 The credible testimony of Aguilar, Goris, Mejia and Moreira was
undisputed. (Tr. 2356−2357, 2502−2503, 2519−2520, 2559.)
During the 3-day strike, Boulevard East covered the shifts of
the striking CNAs with 22 temporary employees from the three
staffing agencies.65
J. Employees Attempt to Return to Work
On September 18, the second day of the strike, Jasinski in-
formed Massey that some strikers would not be allowed to
return to work the next day because of the contractual commit-
ments with the staffing agencies. Massey questioned why the
facilities would make such a commitment if employees gave
notice of a 3-day strike. Jasinski explained that the facilities
needed to be cautious in case the employees changed their
minds and remained on strike for a longer period of time. Mas-
sey disagreed, noting that the Union’s history belied such a
concern. In an email sent later that day, Massey, on behalf of all
Boulevard East employees/unit members who engaged in the
strike, made an unconditional offer to return to their former or
substantially equivalent positions of employment.66
On or after September 20, employees who participated in the
strike reported to work at Boulevard East. Miller and other
employees who arrived to work the morning shift were directed
to the dining room. When they arrived, most employees were
met by a contingent of Furio, Restrepo, Figueroa, and Rodri-
guez. Two kitchen aides, Moreira and Aguilar, were informed
that they were locked out. In addition, the following 6 CNAs
were not immediately reinstated: Christie-Duran, Mejia, Goris,
Diaz, Pena, and Howard.
K. Employees Are Eventually Reinstated
1. Walace Moreira.
Moreira, a union shop steward for many years, worked as a
full-time pot washer for the past 10 years. In that position, he
worked an average of 75 hours per pay period on the 10:30 a.m.
to 6:30 p.m. shift. After reporting to work on September 20,
Rodriguez informed him that someone else took his position
during the strike and his “full time hours were no longer availa-
ble.” She offered Moreira a part-time dishwasher position,
which he reluctantly accepted.67
2. Lorena Aguilar
Prior to the strike, Aguilar worked as a full-time dietary aide
on the 11:30 a.m. to 7:30 p.m. shift, with every other weekend
and Tuesdays off. Her duties include preparing food trays,
inspecting patient menu tickets, distributing food trays for de-
livery to patients, and other tasks as needed.
Aguilar was off duty on September 20 but went into work to
ascertain her status. She was informed by Rodriguez that she
had been replaced. On September 22, Aguilar was offered a
full-time dietary floater position, which Moreira had turned
down. She accepted the offer. As a floater, Aguilar’s schedule
changed from a consistent 11:30 a.m. to 7:30 p.m. to a variable
6 a.m. to 2 p.m. On numerous occasions, her schedule was
changed on short notice, requiring her to come in at 6 a.m. even
though she had been working until 9 p.m. the previous night.

65 GC Exhs. 225−226, 236−237.
66 GC Exh. 28.
67 Subsequent developments regarding other positions offered to, but
rejected by, Moreira are left for compliance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
These duties continued until April 2015, when Aguilar became
a cook.
3. Elizabeth Christie-Duran
Prior to the strike, Duran was a floater on the 3 p.m. to 11
p.m. shift, covering for other CNAs as needed. In that capacity,
she cared for an equal number of total care and independent
patients. On September 20, Christie-Duran was informed by
Boulevard East management that she was not on the schedule
for that day and would be called when there was work for her.
Christie-Duran was reinstated on October 15.
4. Norma Diaz
Prior to the strike, Diaz worked as a CNA on the 7 a.m. to 3
p.m. shift as a floater. She attempted to return to work on Sep-
tember 20 but was informed that she had been replaced by a
temporary staffing agency worker for 4 weeks. She was rein-
stated 3 weeks later.
5. Sandra Mejia
Prior to the strike, Mejia worked as a CNA on the 3 p.m. to
11 p.m. shift, handling the permanent #2 assignment in the
front nurse area of the facility. In that capacity, she worked
approximately 16 hours of overtime every other weekend.
Mejia did not participate on the first day of the strike because
she had a medical procedure on September 18. She was able,
however, to join the picket line during the second day of the
strike. Upon returning to work on September 20, she was told
by a nurse serving as a messenger for Smolin or Furio that she
was not on the reinstatement list as there was no work for her
because they hired a temporary employee for her position.
Mejia immediately informed Massey, who reached out to Jasin-
ski and explained that Mejia had been approved for medical
leave during the strike.68
Mejia was reinstated on September 21 but was instead reas-
signed to other positions because her position had been filled
with a temporary agency employee. She returned to her posi-
tion on September 24. After the strike, Mejia did not receive
customary overtime for weekend work from October through
March 2015.69
6. Lovette Howard
Prior to the strike, Howard, a union delegate, worked as a
full-time floater on the 7 a.m. to 3 p.m. shift.70 She was locked
out on September 20, but reinstated on September 23.71
7. Maria Goris
Prior to the strike, Goris worked as a full-time CNA on the 3
p.m. to 11 p.m. shift.72 Her duties consisted of assignment 1 in
68 Nurse area, taking care of 10 patients.73 Goris participated in
picketing all 3 days of the strike. She was locked out upon her
return to work on September 22. Furio informed her at that
time that she had no hours for her but would call when some-

68 GC Exh. 222.
69 GC Exh. 214 at 55
70 GC Exh. 208, 214.
71 GC Exhs. 214 at 48.
72 GC Exh. 208, 214.
73 GC Exh. 214.
thing opened up. Goris was reinstated on September 28.74
8. Erika Pena
Prior to the strike, Pena worked as full-time CNA in the 68
Nurse area, responsible for assignment #1 on the 7 a.m. to 3
p.m. shift.75 She participated in picketing on September 17 and
18. Upon returning to work on her next regularly scheduled
day, September 30, Pena was informed that she had been re-
placed. Pena was reinstated on October 15.
LEGAL ANALYSIS
I. BOULEVARD EAST’S OBJECTION TO THE UNION’S BARGAINING
COMMITTEE
The complaint alleges that Boulevard East violated Section
8(a)(5) and (1) of the Act by refusing to bargain with the Union
on March 27, 2014, because employee representatives from the
other three facilities were present. Boulevard East contends that
its insistence that the Union’s bargaining committee be restrict-
ed solely to Boulevard East employees was consistent with past
practice. Additionally, Boulevard East contends that the parties'
collective-bargaining agreement limited the Union's bargaining
committee to six members.
Section 7 of the Act guarantees employees and employers
the right to “to bargain collectively through representatives of
their own choosing” and the Supreme Court has recognized this
right as fundamental to the statutory scheme. NLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1, 33 (1937). Generally, both
parties have a right to choose whomever they wish to represent
them in negotiations, and neither party can control the other
party's selection of representatives. General Electric Co., 173
NLRB 253, 255 (1968), enfd. 412 F.2d 512, 516-517 (2d Cir.
1969); Minnesota Mining & Mfg. Co. v. NLRB, 415 F.2d 174,
177-178 (8th Cir. 1969) (affirming Board determination that
“so long as it confines negotiations to terms and conditions of
employment within the bargaining unit, it has free rein . . . in its
choice of negotiators.”)
The right to choose one’s bargaining representatives, howev-
er, is not absolute. An exception to the general rule arises when
the situation is so infected with ill will, usually personal, or
conflict of interest as to make good-faith bargaining impracti-
cal. See, e.g., NLRB v. ILGWU, 274 F.2d 376, 379 (3d Cir.
1960) (ex-union official added to employer committee to “put
one over on the union”); Bausch & Lomb Optical Co., 108
NLRB 1555 (1954) (union established company in direct com-
petition with employer); NLRB v. Kentucky Utilities Co., 182
F.2d 810 (6th Cir. 1950) (union negotiator expressed great per-
sonal animosity towards employer). But cf. NLRB v. Signal
Mfg. Co., 351 F.2d 471 (1st Cir. 1965) (per curiam), cert. de-
nied 382 U.S. 985 (1966) (similar claim of animosity rejected).
On the other hand, where the employer simply asserts that there
was ill will and a conflict of interest relative to the proposed
union representatives, the Board is unlikely to grant an excep-
tion to the presumptive rule that both employers and employees
have an unrestricted right to choose their own representative.
Atlas Refinery, Inc., 354 NLRB 1056, 1070 (2010) (employer

74 GC Exh. 214 at 60.
75 GC Exh. 214.
ALARIS HEALTH AT BOULEVARD EAST 17
“violated § 8(a)(5) and (1) of the Act by refusing to bargain
with the Union as long as [the union's designated representa-
tive] was part of the bargaining committee”).
Mere inclusion of persons outside the negotiating unit does
not constitute exceptional circumstances. NLRB v. Indiana &
Michigan Electric Co., 599 F.2d 185 (7th Cir. 1979) (other
units); Minnesota Mining & Manufacturing Co. v. NLRB, 415
F.2d at 177-178 (other locals); General Electric Co. v. NLRB,
412 F.2d at 517-520 (2d Cir. 1969) (other international un-
ions); Standard Oil Co. v. NLRB, 322 F.2d 40, 44 (6th Cir.
1963) (other locals). Furthermore, a claim that a union's use of
outsiders was an unlawful attempt to compel companywide or
multiplant bargaining is also insufficient, unless the employer
can demonstrate that the union actually attempted to bargain
outside unit boundaries NLRB v. Indiana & Michigan Electric
Co., 599 F.2d at 191; Minnesota Mining, 415 F.2d at
178; General Electric, 412 F.2d at 519-520.
In this case, there was no evidence that the Union sought to
force Boulevard East into multiemployer bargaining through
the presence of bargaining unit members from the other three
facilities. The only hint of a union strategy affecting all four
facilities was its desire to have Silva and Massey make opening
statements out the outset of bargaining. See International
Brotherhood of Electrical Workers, Local Union No. 46,
AFL−CIO, 302 NLRB 271, 273−274 (1991) (union not justi-
fied in refusing to negotiate with employer group’s chosen
committee of members and nonmembers at the outset of sepa-
rate bargaining sessions in accordance with a longstanding
practice of including all both group members and nonmembers
under a single collective-bargaining agreement).
Some delegates in attendances made side remarks, sneered
and laughed in response to Jasinski’s remarks on March 27.
However, Jasinski never mentioned that as an issue on March
27 and it was hardly an indication that the participation of em-
ployees from the other three facilities represented a “clear and
present danger to the collective bargaining process” or would
create ill will and make bargaining impossible. See Interna-
tional Brotherhood of Electrical Workers, Local Union No. 46,
AFL−CIO, 302 NLRB at 273−274 (union did not meet burden
of showing that the employer group's chosen representatives
were “so tainted with conflict or so patently obnoxious as to
negate the possibility of good-faith bargaining”).
Jasinski’s additional concern at hearing that the presence of
employees from other facilities would violate the confidentiali-
ty of employees at the other facilities does not pass muster. See
Milwhite Co., Inc., 290 NLRB 1150, 1152 (1998) (mere fear
that negotiations will result in compromising confidentiality is
insufficient), citing General Electric Co., 173 NLRB at 255.
No such concern was expressed on March 27.
Boulevard East cites CBS, Inc., 226 NLRB 537, 539 (1976),
as support for the proposition that the Union’s bargaining rep-
resentatives presented “a clear and present danger to the bar-
gaining process or would create such ill will as to make bar-
gaining impossible or futile.” That case, however, involved a
conflict of interest regarding the composition of a bargaining
committee because one committee member was part of a labor
organization that did not represent CBS's members, but rather,
two key competitors. That is hardly the scenario here. Boule-
vard East also cites Fitzsimons Mfg. Co., 251 NLRB 375,
379−380 (1980), for a similar proposition. In Fitzsimons, how-
ever, an employer lawfully excluded a union representative
who engaged in an unprovoked physical attack on the compa-
ny's personnel director. Id. That scenario was also inapplicable.
Given the absence of evidence of exceptional circumstances
indicating bad faith on the part of the Union, Boulevard East
was obligated to bargain with the Union’s bargaining commit-
tee on March 27 even though employee-members from the
other three facilities were present. General Electric, 412 F.2d at
520. By walking out of the negotiations under those circum-
stances, Boulevard East refused to bargain in good faith in
violation of Section 8(a)(5) and (1) of the Act. See Standard
Oil Co. v. NLRB, 322 F.2d at 44 (employer unlawfully refused
to negotiate with union bargaining committee, which added
temporary representatives from affiliated bargaining units in
order to improve communication between them); NLRB v. Indi-
ana & Michigan Electric Co., supra (employer unlawfully re-
fused to bargain with union negotiating committee because the
union was coordinating the various bargaining efforts).
II. BOULEVARD EAST’S DELAY IN PROVIDING INFORMATION
The complaint alleges that Boulevard East also violated Sec-
tion 8(a)(5) and (1) when it unreasonably delayed in providing
the Union with information requested in order to prepare for
bargaining. Boulevard East contends that it responded in a
manner reasonably consistent with past practice and that union
officials sanctioned the delay because of counsel’s other com-
mitments.
The duty to timely furnish requested information cannot be
defined in terms of a per se rule. Good Life Beverage Co., 312
NLRB 1060, 1062 fn. 9 (1993). Rather, what is required is a
reasonable good-faith effort to respond to the request “as
promptly as circumstances allow.” Id. See also Woodland Clin-
ic, 331 NLRB 735, 737 (2000). In evaluating the promptness of
an employer's response, the Board considers the complexity
and extent of the information sought, its availability, and the
difficulty in retrieving the information. West Penn Power
Co., 339 NLRB 585, 587 (2003), citing Samaritan Medical
Center, 319 NLRB 392, 398 (1995), enfd. in relevant part 394
F.2d 233 (4th Cir. 2005). Since “information concerning terms
and conditions of employment is presumably relevant,” it must
be “provided within a reasonable time, or, if not provided, ac-
companied by a timely explanation.” In Re W. Penn Power Co.,
supra at 597(citing FMC Corp., 290 NLRB 483, 489 (1988)).
Even a relatively short delay of 2 or 3 weeks may be held un-
reasonable. See, e.g., Capitol Steel & Iron Co., 317 NLRB 809,
813 (1995), enfd. 89 F.3d 692 (10th Cir. 1996) (2 week delay
unreasonable under the circumstances because the information
sought was simple, close at hand, and easily assem-
bled); Aeolian Corp., 247 NLRB 1231, 1244 (1980) (3 week
delay unreasonable under the circumstances).
Boulevard East received the Union’s initial information re-
quest on December 27 and a supplemental request on March
14. In early January, Jasinski informed Massey and McCalla
that he would be busy with a State court proceeding in parts of
January and February. The trial eventually took place between
early February and the third week in March. Jasinski did pro-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
pose, on several occasions, to extend the term of the expiring
contract, but the Union never agreed. At no time, however,
during his written and verbal communications with the Union
did he request an extension of time to respond to the infor-
mation requests. That is because Jasinski always intended to
produce a response to the information requests on the first day
of bargaining.
Dallas & Mavis Forwarding Co., 291 NLRB 980(1988),
enfd, 909 F.2d 1484 (6th Cir. 1990), cited by Boulevard East, is
inapplicable. In that case, the Board found a delay in providing
requested information justified to the extent that the employer's
confidentiality interests outweighed a union's need for infor-
mation. The employer feared that competitors might gain an
advantage if they acquired information about tariff rates con-
tained in certain business contracts. In this case, however,
Boulevard East never asserted confidentiality concerns as an
excuse for the delay at any time prior to March 27.
The passage of nearly 3 months in responding to the Union’s
initial information request and five weeks responding to the
supplemental request was unreasonable. Boulevard East was
entirely mum on the subject notwithstanding follow-up remind-
ers by the Union to provide the information prior to the March
27 bargaining session. Instead, Jasinski simply delivered the
information at the conclusion of the March 27 session, just
before he and Gold walked out. The tactic was clearly calculat-
ed to prolong bargaining by ensuring that the Union would
have insufficient time to analyze the information provided and,
thus, be unable to commence meaningful bargaining at the first
session. The fact that Boulevard East previously delayed in
producing requested information until the first bargaining ses-
sion does not rescue it from a violation of Section 8(a)(5) and
(1) of the Act.
III. REFUSAL TO PROVIDE SCHEDULES AND HEALTH INSURANCE
INFORMATION
The General Counsel also contends that Boulevard East vio-
lated Section 8(a)(5) and (1) of the Act on May 21, when it
refused to provide daily work schedule information, and July
30, when it refused to provide health insurance related infor-
mation, both of which were relevant and necessary to the per-
formance of its duties as the exclusive bargaining representa-
tive. Boulevard East refused to provide such further work
schedule information, insisting that the Union should be satis-
fied with monthly master schedules. With respect to the health
insurance information, Boulevard East claimed it was prohibit-
ed from releasing such information under the privacy provi-
sions of the Health Insurance Portability and Accountability
Act of 1996.76
An employer has a duty to furnish relevant information nec-
essary to union representatives for the proper performance of
their duties as the exclusive bargaining representative. NLRB v.
Truitt Mfg. Co., 351 U.S. 149, 153 (1956); Detroit Edison v.
NLRB, 440 U.S. 301, 303 (1979); W-L Molding Co., 272 NLRB
1239, 1240-1241 (1984); NLRB v. Acme Industrial Co., 385
U.S. 432, 435−436 (1967); A-1 Door & Building Solutions, 356

76 45 CFR §§ 160 and 164.
NLRB No. 76, slip op. at 2 (2011). Information requests re-
garding bargaining unit employees' terms and conditions of
employment are “presumptively relevant” and must be provid-
ed. Whitesell Corp., 352 NLRB 1196, 1197 (2008), adopted by
a three-member Board, 355 NLRB 635 (2010), enfd. 638 F.3d
883 (8th Cir. 2011); Southern California Gas Co., 344 NLRB
231, 235 (2005).
The standard for establishing relevancy is the liberal, “dis-
covery-type standard.” Alcan Rolled Products, 358 NLRB No.
11, slip op. at 4 (2012), citing and quoting applicable authori-
ties. The Union, in accord with its duty, sought copies of daily
work schedules in order to formulate and present appropriate
proposals on behalf of employee-members. See
Wayneview Care Center, 352NLRB 1089, 1115 (2008) (work
schedules relating to unit employees, are presumptively rele-
vant, including information on current schedules for each de-
partment). Accordingly, the Union was entitled to production of
schedules of work actually performed by employees and was
not relegated to the monthly work schedules. See McGuire
Steel Erection, Inc. & Steel Enterprises, Inc., 324 NLRB 221,
223−224 (1997) (employer unlawfully refused to provide addi-
tional payroll records on the grounds that it already provided
the union with other types of payroll records); National Grid
USA Service Co., Inc., 348 NLRB 1235 (2006) (union was
entitled to copies of invoices containing base line information,
not just unverified summaries made by employer); Merchant
Fast Motor Line, 324 NLRB 563 (1997) (union was not re-
quired to accept an employer’s declaration as to profitability or
summary financial information provided by the employer);
McQuire Steel Erection, Inc., 324 NLRB 221 (summaries of
payroll records deemed not sufficient to meet a respondent's
statutory obligation).
Similarly, Boulevard East was obligated to furnish the re-
quested health insurance information necessary for the Union to
formulate its own proposal. One Stop Kosher Supermarket,
Inc., 355 NLRB 1237 (2010) (union was entitled to health in-
surance plan information). The Union was entitled to the re-
quested information concerning the costs of health insurance to
Boulevard East and covered employees in order to analyze
them within the context of the Affordable Care Act. This was
significant information, given the Union’s bargaining objective
to increase dependent health insurance coverage and its interest
in exploring alternative proposals to offset the costs.
On May 21, Jasinski formally denied the union’s request for
the daily work schedules. With respect to the health insurance
information request, Jasinski initially insisted the Union already
had the information. That was incorrect. The Union had only
been provided with partial information relating to gross payroll
benefits, monthly health plan costs, and a summary description
of the plan. After the Union persisted, he agreed to inquire fur-
ther. On July 30, Jasinski closed the door regarding any further
health insurance related information. He based that objection on
spurious confidentiality concerns that came more than 2 months
after the information request. Exxon Co. USA, 321 NLRB 896,
898 (1996) (confidentiality objection must be timely raised).
Moreover, the documentary evidence and Jasinski’s vague
testimony failed to identify how any of the requested health
insurance related documents involved the confidential medical
ALARIS HEALTH AT BOULEVARD EAST 19
information of any employees. Lastly, Jasinski refused Mas-
sey’s offer to work out an accommodation for the release of the
allegedly confidential information. See Castle Hill Health Care
Center, 355 NLRB 1156, 1183−1184 (2010) (generalized con-
fidentiality concern unavailing as an excuse to refuse infor-
mation request);
Under the circumstances, Boulevard East’s refusal to provide
daily work schedule information on May 21 and health insur-
ance related information on July 30 as requested by the Union
violated Section 8(a)(5) and (1) of the Act.
IV. THREATS REGARDING STRIKE ACTIVITY
A. Threats to Employees of Job Loss or Other Reprisals
The complaint alleges that Boulevard East engaged in vari-
ous violations of Section 8(a)(1) of the Act. The standard in
determining whether employer conduct violates that section of
the Act is based on whether statements made to employees
reasonably tend to interfere with the free exercise of employee
rights under the Act. NLRB v. Gissel Packing Co., 395 U.S. 575
(1969). In determining whether a supervisor's statement is un-
lawfully coercive, the test is whether the employee would rea-
sonably be coerced by it. See Engelhard Corp., 342 NLRB 46,
60-61 (2004) (test for coercion under Sec. 8(a)(1) is “whether
the employer engaged in conduct which, it may reasonably be
said, tends to interfere with the free exercise of employee rights
under the Act”) (emphasis in original), enfd. 437 F.3d 374 (3d
Cir. 2006).
In June 2014, Rodriguez warned employees that they could
lose their jobs if they went on strike. In response, the employ-
ees brought over Ozual, a union representative, to witness the
threat. Rodriguez repeated her threats and stated that no em-
ployee would return to the kitchen if they went on strike. Simi-
larly, in September 2014 Rodriguez issued threats to Aguilar
and Moreira, warning that they would be replaced and/or dis-
charged if they participated in the strike.
Like Rodriguez, Smolin, Boulevard East’s administrator,
told employees they could be discharged for striking on two
separate occasions. In the first instance, he interrogated a group
of CNAs, including Christie-Duran and Mejia as to whether
they were going to strike and threatened termination if they did.
Christie-Duran spoke up, insisting it was within employees’
rights to strike. Smolin replied that he would replace them with
substitutes and that no work would remain after the strike.
Smolin again threatened a group of CNAs with termination in
the days leading up to the strike. Using a Spanish-language
interpreter, Smolin again asked each employee whether they
were going on strike and warned that each could be replaced.
The aforementioned supervisory statements sent clear mes-
sages that engaging in Section 7 activity was harmful to Boule-
vard East. See Hoffman Fuel Co., 309 NLRB 327, 327
(1992) (employer's questioning coupled with a veiled threat
unlawful where there was no legitimate purpose for ascertain-
ing the employee's prospective union activities). In addition, the
threats that a strike will lead to job loss were unlawful because
they incorrectly conveyed to employees that their employment
will be terminated as a result of a strike, whereas the law is
clear that economic strikers retain certain reinstatement rights.
Baddour, Inc., 303 NLRB 275 (1991) (mere statement without
further explanation that employee “could end up losing your
job by being replaced with a new permanent worker” was un-
lawful).
Under the circumstances, the threats by Smolin and Rodri-
guez that employees could be replaced and lose their jobs if
they participated in a strike violated Section 8(a)(1) of the Act.
B. Interrogation of Employees Regarding Strike Activity
In assessing the lawfulness of an interrogation, the Board
applies the totality of circumstances test adopted in Rossmore
House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel Employ-
ees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). The
Board has additionally determined that in employing the
Rossmore House test, it is appropriate to consider the factors set
forth in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964):
whether there was a history of employer hostility or discrimina-
tion; the nature of the information sought (whether the interro-
gator was seeking information to base taking action against
individual employees); the position of the questioner in the
company hierarchy; the place and method of interrogation, and;
the truthfulness of the reply. In applying the Bourne factors, the
Board seeks to determine whether under all of the circumstanc-
es the questioning at issue would reasonably tend to coerce the
employee at whom it was directed so that he or she would feel
restrained from exercising rights protected by Section 7 of the
Act. Westwood Health Care Center, 330 NLRB 935, 941
(2000).
In June 2014, Rodriguez called Aguilar and several other
employees into a meeting where Smolin asked each employee
if she intended to participate in the strike. Smolin repeated the
coercive exercise with another group of employees in his office
in late August. Rodriguez capped off the interrogation two
more instances in early September when she again asked Agui-
lar and Moreira if they intended to go on strike. In neither in-
stance did Rodriguez or Smolin assure the employees that no
reprisals would be taken against them as a result of their re-
sponses. Such assurances were vital since Rodriguez and
Smolin were canvassing the facility threatening employees,
including Aguilar, Moreira, Goris, Christie-Duran, and Meija
with termination if they participated in the strike. Under the
circumstances, the questioning by Smolin and Rodriguez was
coercive in nature and violated Section 8(a)(1). Roosevelt Me-
morial Medical Center, 348 NLRB 1016 (2006); Reno Hilton
Resorts, 320 NLRB 197, 207 (1995).
V. PROHIBITION AGAINST UNION INSIGNIA
The complaint alleges that Boulevard East committed addi-
tional Section 8(a)(1) violations in August and September when
Rodriguez and Smolin ordered dietary employees to remove
pro-Union buttons from their uniforms. Boulevard East con-
cedes that Rodriguez and Smolin issued such directives, but
contends that it had a legitimate business and safety reasons for
restricting buttons or other accessories in the kitchen.
Employees generally have a protected right under Section 7
to wear union insignia, including union buttons, in the work-
place. Republic Aviation Corp. v. NLRB, 324 U.S. 793,
801−803 (1945); P.S.K. Supermarkets, 349 NLRB 34, 35
(2007). This right, however, may give way when the employer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
demonstrates special circumstances sufficient to outweigh em-
ployees' Section 7 interests and legitimize the regulation of
such insignia. See Healthbridge Management, LLC, 360 NLRB
No. 118 (2014) enfd. 798 F.3d 1059 (2015); W San Diego, 348
NLRB 372, 372 (2006). In a hospital setting, special circum-
stances are generally deemed to exist in immediate patient care
areas. See NLRB v. Baptist Hospital, 442 U.S. 773, 783 fn. 12
(1979) (presumption of validity of employer ban on solicitation
or the wearing of insignia in immediate patient care areas to
prevent situations that might be unsettling to patients). On the
other hand, a rule prohibiting the wearing of union insignia in
nonpatient care areas is presumptively invalid, absent special
circumstances that such a ban was “necessary to avoid disrup-
tion of health care operations or disturbance of patients.” Bap-
tist Hospital, supra at 781.
Boulevard East’s policy prior to the controversy – prohibit-
ing the wearing of buttons in the kitchen area – was a reasona-
ble one. It sought to eliminate the risk of buttons or jewelry
breaking and/or falling into patient’s food trays. While it is
unlikely that any Boulevard East patients would be present in
the kitchen, the kitchen staff serves a patient care function by
preparing patients’ individualized food trays. Considering the
safety factors in that scenario, the prohibition against wearing
buttons during the preparation of food in Boulevard East’s
kitchen would be presumptively valid.
That presumption, as well as the legitimacy of Boulevard
East’s rationale for the policy, however, was negated by Boule-
vard East’s arbitrary prohibition against pro-Union buttons
while permitting kitchen staff to wear company-issued buttons.
Employees were urged to wear buttons promoting the company
brand – “I Care. I am Alaris Health” – but prohibited from
wearing buttons supporting a likely strike – “We Care For New
Jersey” and “We don’t want to strike, but we will if we have to,
1199 SEIU.” See Saint John’s Health Center, 357 NLRB No.
170, slip op. at 2 (2011) (presumption of validity does not apply
to a selective ban on only certain union insignia in immediate
patient care areas).
The only explanation in the record as to why Rodriguez in-
structed kitchen staff on three occasions in August and Septem-
ber to remove prounion buttons was because it was “[her]
kitchen” and, as such, within her unfettered discretion. Clearly,
justification for the ban was lacking. Beth Israel Hospital v.
NLRB, 437 U.S. 438, 507 (1978) (circumstances must establish
that action was necessary to avoid disrupting operations or
patients).
In a fourth instance, Smolin instructed Moreira on August 27
to remove a prounion button while he sat in the employee break
room. Moreira complied and Smolin proceeded to post a mem-
orandum prohibiting the wearing of any buttons other than the
company-issued “I Care. I am Alaris Health” buttons. The letter
alluded to the risk of that other types of buttons might cause
“resident[s] to become anxious” and could be “be interpreted as
threatening to a resident . . ” and needed to be “approved by the
administration.”
While a button conveying the message of a possible strike by
the facility’s employees might have concerned some patients,
Moreira was not wearing the button in a patient care area when
he was told to remove it. As such, Smolin’s directive was un-
lawful. See Casa San Miguel, Inc., 320 NLRB 534, 540 (1995)
(restrictions on wearing insignia in nonpatient care areas are
presumptively invalid in the absence of special circumstances
justifying the ban).
Similarly, Smolin’s August 27 memorandum, posted imme-
diately after his coercive encounter with Moreira, discriminated
based on its pro-Union content. It limited button-wearing to
those permitted by management in order to prevent situations
that could cause anxiety or be deemed threatening to patients.
The only evidence, however, proved otherwise – the employ-
er’s concern about employees displaying their support for the
union. See Healthbridge Management, LLC, supra at 3.
VI. SURVEILLANCE OF EMPLOYEES DURING STRIKE
While standing in close proximity in the lobby, Smolin pho-
tographed employees as they picketed during the first and sec-
ond days of the strike.
It is not unreasonable to expect that the spectacle of a mass
protest of employees carrying signs and chanting slogans would
pique the interest of managers, supervisors and employees
working within the facility. The Board does, however, consider
the photographing and videotaping of employees, with certain
exceptions, as generally coercive since such behavior tend to
create a fear of future reprisals for engaging in concerted activi-
ty. F.W. Woolworth Co., 310 NLRB 1197 (1993).
Boulevard East failed to demonstrate any justification for the
photographing of picketing employees outside its facility. Na-
tional Steel Shipbuilding Co., 324 NLRB 499 (1997), enfd. 156
F. 3d 1268 (3d Cir. 1988). There was no evidence of violence,
unruly behavior or past actions on the part of picketing em-
ployees indicating any possibility of a disruption to Boulevard
East’s operations which might otherwise have justified photo-
graphing their activity by the facility’s manager and nursing
director. Under the circumstances, Boulevard East violated
Section 8(a)(1) of the Act by engaging in unlawful surveillance
of picketing employees outside its facility on September 17 and
18.
VII. REFUSAL TO REINSTATE STRIKING EMPLOYEES
The complaint further alleges that the Boulevard East violat-
ed Section 8(a)(3) and (1) of the Act by refusing to reinstate
eight employees when they returned to work the day after the
strike ended: Walace Moreira, Elizabeth Christie-Duran,
Lovette Howard, Norma Diaz, Sandra Mejia, Maria Goris,
Erika Pena, and Lorena Aguilar. Boulevard East disagrees,
insisting that the eight employees were not reinstated because
they engaged in an economic rather than unfair labor practice
strike.
Strikes may be categorized as either economic or unfair labor
practice strikes. Spurlino Materials, LLC, et ano. v. NLRB, 805
F.3d 1131, 1136−1137 (D.C. Cir. 2015), citing Gen. Indus.
Emps. Union, Local 42 v. NLRB, 951 F.2d 1308, 1311 (D.C.
Cir. 1991). That categorization carries significant consequenc-
es. Economic strikers run the risk of replacement if, during the
strike, the employer takes on permanent new hires. NLRB v.
International Van Lines, 409 U.S. 48, 50 (1972); Gen. Indus.
Emps. Union, 951 F.2d at 1311. In such instances, economic
strikers are entitled, upon their unconditional offers to return to
ALARIS HEALTH AT BOULEVARD EAST 21
work, to reinstatement to their former or substantially equiva-
lent positions, if no permanent replacements have been hired to
replace them and the positions remain open. NLRB v. Fleet-
wood Trailer Co., 389 U.S. 375, 378–379 (1967).
In the case of an unfair labor practice strike, employees are
entitled to immediate reinstatement to their former positions
upon their unconditional offers to return to work, even if the
employer has hired replacements. See International Van
Lines, 409 U.S. at 50–51, 93; Mastro Plastics Corp. v.
NLRB, 350 U.S. 270, 278 (1956); Gen. Indus. Emps. Un-
ion, 951 F.2d at 1311; Hajoca Corp. v. NLRB, 872 F.2d 1169,
1177 (3d Cir.1989). Accordingly, an employer violates the Act
if it fails to reinstate such strikers once they have made an un-
conditional offer to return to work. See Alwin Mfg. Co. v.
NLRB, 192 F.3d 133, 141–142 (D.C. Cir.1999).
In determining whether the General Counsel has met his
burden of establishing that an employer’s unfair labor practices
caused the employee’s decision to go on strike, the Board looks
to the employees' motivations for striking, considering both
objective and subjective evidence. See Gen. Indus. Emps. Un-
ion, 951 F.2d at 1312; Spurlino Materials, 357 NLRB No. 126,
slip op. 15-16 (2011); Executive Management Services, 355
NLRB 185, 194-196 (2010); Chicago Beef Co. v. Local 26,
United Food and Commercial Workers Union, 298 NLRB 1039
(1990). A strike wholly driven by the desire of employees to
obtain favorable employment terms is an economic strike.
When employees strike as a result of an employer's unfair labor
practices, the strike is an unfair labor practice
strike. See International Van Lines, 409 U.S. at 50–51; Gen.
Indus. Emps. Union, 951 F.2d at 1311.
In this case, there is little testimony by employees as to their
reasons for participating in the strike. There is objective proof
of motivation for the strike, however, in the statements by Un-
ion officials and signs carried employees during informational
and strike picketing. Through public statements, media publica-
tions and its website, the Union conveyed the mixed message
that it sought redress for Boulevard East’s unfair labor practices
and economic reasons (e.g., better wages, health insurance
coverage and pension plan). The Union followed up on these
actions by filing unfair labor practice charges and informing
employees that Board complaints would issue. See Citizens
Publishing & Printing Co., 263 F.3d 224, 235 (3d Cir. 2001)
(facts supported finding that Board’s decision to issue a com-
plaint “galvanized bargaining unit members' belief that an un-
fair labor practice had been committed and served as the flash-
point for discussion about calling a strike”).
It is evident that meaningful collective bargaining was ham-
strung at the outset by Boulevard East’s failure to provide re-
sponsive information prior to March 27 and then refusing to
commence bargaining with Boulevard East’s chosen bargaining
committee. While certainly not dispositive of the reasons for an
eventual strike nearly 6 months later, it set the tone for a ragged
path of trickling information and resistance in providing rele-
vant work schedule and health insurance related information.
Under Board law, the dual motivation of Boulevard East’s
employees to strike in order to improve their bargaining posi-
tion and assail Boulevard East’s unfair labor practices means
that the strike must be characterized as an unfair labor practice
strike. See Executive Management Services, supra at 193; Dom-
sey Trading Corp., 310 NLRB 777, 791 (1993); General Driv-
ers & Helpers Union, Local 662 v. NLRB, 302 F.2d 908, 911
(D.C. Cir.1962). “The employer's unfair labor practice need not
be the sole or even the major cause or aggravating factor of the
strike; it need only be a contributing factor.” Teamsters Local
Union No. 515 v. NLRB, 906 F.2d 719, 723 (D.C.Cir.1990);
Alwin Mfg. Co., 192 F.3d at 141; Gen. Indus. Emps. Union, 951
F.2d at 1311. See also Struthers Wells Corp. v. NLRB, 721 F.2d
465, 471 (3d Cir.1983); NLRB v. Cast Optics Corp., 458 F.2d
398, 407 (3d Cir.1972).
The Union, on behalf of the striking workers, gave Boule-
vard East a 10-day notice prior to the strike that employees
would strike on September 17, 18, and 19. On September 18,
the Union notified Boulevard East that the striking employees
would return to work on September 20. Under the circumstanc-
es, Boulevard East’s refusal to reinstate Moreira, Christie-
Duran, Howard, Diaz, Mejia, Goris, Pena, and Aguilar on or
after September 20 violated Section 8(a)(3) and (1) of the Act.
VIII. CHANGES TO WORK HOURS AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT
The complaint also alleges that Boulevard East committed
various violations of Section 8(a)(3) and (1) of the Act by dis-
criminatorily changing the terms and conditions of employment
of Moreira, Aguilar, and Mejia after they returned from the
strike. Boulevard East contends that these employees were
replaced after going out on an economic strike and were pro-
vided with the work that was available when they returned.
In determining whether adverse employment action is at-
tributable to unlawful discrimination, the Board applies the
analysis set forth in Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
The Wright Line framework requires proof that an employee's
union or other protected activity was a motivating factor in the
employer's action against the employee. 251 NLRB at 1089.
The elements required to support such a showing are union or
protected concerted activity, employer knowledge of that ac-
tivity, and union animus on the part of the employer. Amglo
Kemlite Laboratories, 360 NLRB No. 51, slip op. at 7
(2014); Consolidated Bus Transit, 350 NLRB 1064, 1065
(2007), enfd. 577 F.3d 467 (2d Cir. 2009). Proof of animus and
discriminatory motivation may be based on direct evidence or
inferred from circumstantial evidence. Robert Orr/Sysco Food
Services, 343 NLRB 1183, 1184 (2004); Purolator Armored,
Inc. v. NLRB, 764 F.2d 1423, 1428-1429 (11th Cir. 1985). Fac-
tors which may support an inference of antiunion motivation
include employer hostility toward unionization, other unfair
labor practices committed by the employer contemporaneous
with the adverse action, the timing of the adverse action in
relation to union activity, the employer's reliance on pretextual
reasons to justify the adverse action, disparate treatment of
employees based on union affiliation, and an employer's devia-
tion from past practice. 764 F.2d at 1429.
All three employees engaged in protected concerted activity,
including informational picketing before the strike and during
the strike. Boulevard East knew of their prostrike inclinations
and expressed repeatedly its animus towards such activity. Ad-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
ditional proof of animus is found in the numerous unfair labor
practices in the form of threats, interrogation and prohibition of
union insignia. The only differences were in the nature of the
significant adverse action suffered by each employee.
Although Moreira was eventually reinstated after the strike,
it was as a part-time pot washer. As Rodriguez predicted, his
work hours were significantly reduced from 75 hours per pay
period to (at most) 52.5 hours per pay period.77
Aguilar was reassigned to a different position after the strike
and saw her schedule changed from a consistent 11:30 a.m. to
7:30 p.m. to a variable 6 a.m. to 2 p.m. Making matters worse,
Aguilar’s supervisor oftentimes changed her schedule on short
notice, requiring her to come in at 6 a.m. even though she had
been working until 9 p.m. the previous night.
Prior to the strike, Mejia received approximately 16 hours of
overtime each pay period, by covering an extra weekend shift.
After returning to work, Mejia did not work any extra week-
ends from October through February 2015, even though the
opportunity for overtime work continued to exist.
The General Counsel having established a prima facie case,
the burden shifted to Boulevard East to prove that union activi-
ty was not a motivating factor in the changes to the terms and
condition of employment of Moreira, Aguilar and Mejia.
Wright Line, supra; approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). That burden is impossible
to meet here where the adverse action flowed from Boulevard
East’s unfair labor practice in refusing to reinstate them after
the strike and their former positions continued to exist after the
strike.
Under the circumstances, after reinstating employees after
the strike, Boulevard East violated Section 8(a)(3) and (1) by
changing the following employees’ terms and conditions of
employment: (1) reducing Moreira’s work hours and reassign-
ing him to a part-time pot washer position; (2) imposing more
onerous working conditions on Aguilar; and (3) reducing
Mejia’s overtime opportunities. Wright Line, supra; Manno
Electric, 321 NLRB 278, 280 fn. 12 (1996).
CONCLUSIONS OF LAW
1. Boulevard East was an employer engaged in commerce
within the meaning of Section 2(2) of the Act.
2. The Union was a labor organization within the meaning
of Section 2(5) of the Act.
3. At all relevant times, Robert Smolin, Amanda Furio and
Maria Rodriguez were supervisors of Boulevard East within the
meaning of Section 2(11) the Act, and David Jasinski, Esq. and
Regina Figueroa were agents within the meaning of Section
2(13) of the Act.
4. Boulevard East violated Section 8(a)(5) and (1) of the Act
by:
(a) Refusing on March 27, 2014, to bargain in good faith
with the Union’s chosen bargaining committee.
(b) Delaying for 3 months before producing information re-
quested by the Union which was relevant and necessary to its
role as unit employees’ labor representative prior to the com-

77 Moreira’s inability/refusal to perform the duties of a dietary aide
are matters left for compliance.
mencement of collective bargaining between the parties on
March 27, 2014.
(c) Refusing to provide daily work schedule information re-
quested by the Union on May 21, 2014, and health insurance
information requested on July 30, 2014, all of which was rele-
vant and necessary to the Union’s role as unit employees’ rep-
resentative.
5. Boulevard East violated Section 8(a)(1) of the Act in the
following manner:
(a) Smolin and Rodriguez threatened employees in June and
September 2014 with loss of their jobs, loss of work hours or
other changes in their terms and conditions of employment if
they went on strike.
(b) Smolin and Rodriguez interrogated employees in June
and September 2014 as to whether they were going to partici-
pate in the strike.
(c) Smolin and Rodriguez prohibited employees in August
and September 2014 from wearing union insignia in patient and
non-patient care areas, while permitting them to wear pro-
employer insignia in the same areas.
(d) Smolin issued a memorandum on August 27, 2014, pro-
hibiting employees from wearing union buttons or other insig-
nia within the facility, except for those expressly approved by
management.
(e) Smolin engaged in surveillance of picketing employees
outside its facility on September 17 and 18.
6. By failing and refusing, on or after September 20, to im-
mediately reinstate eight employees who engaged in protected
concerted activity and made an unconditional offer to return to
work, Boulevard East violated Section 8(a)(3) and (1) of the
Act.
7. By (1) reducing Moreira’s work hours and reassigning
him to a part-time pot washer position, (2) imposing more on-
erous working conditions on Aguilar, and (3) reducing Mejia’s
overtime opportunities because they participated in and sup-
ported the strike, Boulevard East violated Section 8(a)(3) and
(1) of the Act.
8. The aforementioned unfair labor practices affected com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Boulevard East has engaged in certain un-
fair labor practices, I shall order it to take certain affirmative
action designed to effectuate the policies of the Act. On re-
quest, Boulevard East shall bargain with the Union as the ex-
clusive representative of the employees concerning terms and
conditions of employment, timely provide the Union with rele-
vant information it has requested and, if an understanding is
reached, embody the understanding in a signed agreement.
Boulevard East shall also, within 14 days of the Board’s Order,
offer the eight employees who engaged in an unfair labor prac-
tice strike in September 2014, and were not immediately rein-
stated on request, recalled to their former positions, terminat-
ing, if necessary, any replacements who occupy those positions,
or if those positions no longer exist, to substantially equivalent
positions without prejudice to their seniority or any other rights
or privileges previously enjoyed. I shall also order Boulevard
East to make whole the unfair labor practice strikers who were
ALARIS HEALTH AT BOULEVARD EAST 23
denied reinstatement for any loss of earnings and other benefits
suffered as a result of the discrimination against them. 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 pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
In addition, I shall order Boulevard East to expunge from its
files any reference to the failure to reinstate the strikers, and to
notify them in writing that this has been done. Finally, I shall
order Harborview to post a notice to all employees in accord-
ance with J. Picini Flooring, 356 NLRB 11 (2010).
Boulevard East shall file a report with the Social Security
Administration allocating backpay to the appropriate calendar
quarters. Boulevard East shall also compensate the discrimi-
natee(s) 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., 359 NLRB 518 (2012).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended78
ORDER
The Respondent, Alaris Health at Boulevard East, Gutten-
berg, New Jersey, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting 1199, SEIU United Healthcare Workers
East or any other union.
(b) Coercively threatening any employee with job loss if they
go on strike or engage in other union activities.
(c) Coercively interrogating any employee as to whether he
or she intends to participate in a strike or engage in other union
activities.
(d) Prohibiting employees from wearing union insignia in
non-patient care areas, or in immediate patient care areas while
permitting employees to wear employer-issued insignia in the
same areas.
(e) Issuing memoranda prohibiting employees from wearing
union buttons or other insignia within the facility, except for
those expressly approved by management.
(f) Conducting surveillance of employees engaged in peace-
ful picketing in the vicinity of its facility.
(g) Refusing to bargain with the Union’s chosen bargaining
committee.
(h) Refusing to provide or delaying in providing necessary
and relevant information to the Union.
(i) 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 effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the following appropriate unit

78 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
concerning terms and conditions of employment, and, if an
understanding is reached, embody and, if an understanding is
reached, embody the understanding in a signed agreement:
All CNAs, dietary, housekeeping, recreational aides, cooks,
and all other employees excluding professional employees,
registered nurses, LPN’s, confidential [employees], office
clerical employees, cooks, supervisors, watchmen and guards.
(b) On request, furnish to the Union in a timely manner the
information requested concerning daily work schedules and
health insurance on May 21 and July 30, 2014.
(c) Within 14 days from the date of the Board’s Order, offer
Walace Moreira, Elizabeth Christie-Duran, Lovette Howard,
Norma Diaz, Sandra Mejia, Maria Goris, Erika Pena, and Lore-
na Aguilar full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or privileges
previously enjoyed.
(d) Make Walace Moreira, Elizabeth Christie-Duran, Lovette
Howard, Norma Diaz, Sandra Mejia, Maria Goris, Erika Pena,
and Lorena Aguilar whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them,
in the manner set forth in the remedy section of the decision.
(e) Within 14 days from the date of the Board’s Order, ex-
punge from its files any reference to the failure to reinstate the
strikers, and to notify them in writing that this has been done
and that such adverse actions will not be used against them in
any way.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, 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.
(g) Within 14 days after service by the Region, post at its fa-
cility in Guttenberg, New Jersey, copies of the attached notice
marked “Appendix”79 in both English and Spanish. Copies of
the notice, on forms provided by the Regional Director for Re-
gion 22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to 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 Re-
spondent 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

79 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
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 employ-
ees employed by the Respondent at any time since March 27,
2014.
(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.
Dated, Washington, D.C. February 18, 2016
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.
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting 1199, SEIU United Healthcare
Workers East, or any other union.
WE WILL NOT coercively threaten you with job loss if you go
on strike or engage in any other union activities.
WE WILL NOT coercively interrogate you as to whether or not
you intend to participate in a strike or engage in other union
activities.
WE WILL NOT prohibit you from wearing union insignia in
nonpatient care areas, or in immediate patient care areas while
permitting employees to wear employer-issued insignia in the
same areas.
WE WILL NOT issue memoranda prohibiting you from wear-
ing union buttons or other insignia within the facility.
WE WILL NOT conduct surveillance of employees engaged in
peaceful picketing in the vicinity of our facility.
WE WILL NOT refuse to timely provide the Union with neces-
sary and relevant information.
WE WILL NOT in any like or related manner interfere with, re-
strain, 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 as the exclusive
representative of the 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:
All CNAs, dietary, housekeeping, recreational aides, cooks,
and all other employees excluding professional employees,
registered nurses, LPN’s, confidential [employees], office
clerical employees, cooks, supervisors, watchmen and guards.
WE WILL, on request, furnish to the Union in a timely manner
the information requested concerning daily work schedules and
health insurance on May 21 and July 30, 2014.
WE WILL, within 14 days from the date of this Order, offer
Walace Moreira, Elizabeth Christie-Duran, Lovette Howard,
Norma Diaz, Sandra Mejia, Maria Goris, Erika Pena, and Lore-
na Aguilar full reinstatement to their former jobs or, if those
jobs no longer exists, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Walace Moreira, Elizabeth Christie-Duran,
Lovette Howard, Norma Diaz, Sandra Mejia, Maria Goris,
Erika Pena, and Lorena Aguilar whole for any loss of earnings
and other benefits resulting from our refusal to reinstate them
or, upon their reinstatement, reducing their work hours, 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 Walace Moreira, Elizabeth Christie-
Duran, Lovette Howard, Norma Diaz, Sandra Mejia, Maria
Goris, Erika Pena, and Lorena Aguilar for the adverse tax con-
sequences, if any, of receiving one or more lump-sum backpay
awards covering periods longer than 1 year.
ALARIS HEALTH AT BOULEVARD EAST
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/22-CA-125076 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.