American Baptist Homes of the West d/b/a Piedmont Gardens

National Labor Relations Board - Board Decisions

May 31, 2016

364 NLRB No. 13 (N.L.R.B. 2016)

364 NLRB No. 13
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive 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.
American Baptist Homes of the West d/b/a Piedmont
Gardens and Service Employees International
Union, United Healthcare Workers-West. Cases
32–CA–025247, 32–CA–025248, 32–CA–025266,
32–CA–025271, 32–CA–025308, and 32–CA–
025498
May 31, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On August 9, 2011, Administrative Law Judge Burton
Litvack issued the attached decision. The General Coun-
sel filed exceptions and a supporting brief, the Respond-
ent filed an answering brief, and the General Counsel
filed a reply brief. In addition, both the Respondent and
the Charging Party filed cross-exceptions and supporting
briefs. The General Counsel filed a brief answering the
Respondent’s cross-exceptions, and the Respondent filed
a reply brief. The Respondent also filed an answering
brief to the Charging Party’s cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision in light of the
exceptions and briefs and has decided to adopt the
judge’s rulings, findings,
1
and conclusions only to the
extent consistent with this Decision and Order.
2

1 The Respondent and the Charging Party have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance 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.
2 We shall modify the judge’s conclusions of law and substitute a
new remedy, order, and notice to conform to the violations found. We
shall also modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11,
13–14 (2010), and to conform with our decision in Advoserv of New
Jersey, Inc., 363 NLRB No. 143 (2016). We shall substitute a new
notice to conform to the Order as modified and in accordance with
Durham School Services, 360 NLRB No. 85 (2014).
In the absence of exceptions, we adopt the judge’s conclusion that
the Respondent violated Sec. 8(a)(1) by engaging in surveillance or
creating the impression of surveillance of the employees’ union activi-
ties. In so doing, however, we do not rely on the judge’s finding that
security guard Francisco Pinto acted at the Respondent’s behest when
he appeared to record the employees in the break room during the strike
authorization vote.
Because we adopt the judge’s conclusion that the Respondent violat-
ed Sec. 8(a)(1) by disparately enforcing Rule 33 when it evicted em-
ployees Nelson, Henry, and Eastman from its facility, we find it unnec-
I. FACTS
The Respondent operates a continuing care facility in
Oakland, California. Since at least March 2007, the Un-
ion has served as the exclusive collective-bargaining
representative of a unit of the Respondent’s nonprofes-
sional employees in various departments. The parties’
most recent collective-bargaining agreement was effec-
tive from March 1, 2007, to April 30, 2010. In anticipa-
tion of the contract’s expiration, the parties commenced
negotiations for a successor agreement in February
2010.
3

As of May, the parties remained at odds over several
significant issues, including health care, pensions, and
the Respondent’s disciplinary policies. On May 25, the
Union conducted picketing outside the Respondent’s
facility, and the employees carried signs bearing slogans
such as “no healthcare reductions,” “pension now,” and
“fair wages now.” In mid-June, the employees author-
ized the bargaining committee to call a strike.
On July 9, the Union sent two letters to the Respond-
ent. The first letter notified the Respondent that the em-
ployees would commence a strike on Monday, August 2
and continue “unless and until a mutually agreeable reso-
lution has been reached.” The second letter advised the
Respondent that all of the striking employees “uncondi-
tionally offer to return to work at or after 5:00 a.m. on
Saturday, August 7, 2010.” On August 2, approximately
80 of the 100 unit employees went on strike.
To prepare for the anticipated strike, the Respondent
engaged a staffing agency. The Respondent extended
temporary employment offers to approximately 60 to 70
employees provided by the staffing agency, at a cost in
excess of $300,000. The Respondent informed the staff-

essary to pass on the judge’s alternative finding that the Respondent
created and applied a new work rule when it evicted Nelson and Henry.
In addition, Chairman Pearce and Member Hirozawa note that the
General Counsel has not challenged the facial validity of Rule 33 in this
proceeding or alleged that the Respondent’s maintenance of the rule
violates the Act. See, e.g., Tri-County Medical Center, 222 NLRB
1089, 1089 (1976); Saint John’s Health Center, 357 NLRB 2078
(2011). The Board has subsequently found Rule 33 to be facially inva-
lid. See Piedmont Gardens, 360 NLRB No. 100 (2014), motion for
reconsideration denied 2014 WL 3778513 (2014).
Also, in adopting the judge’s conclusion that the Respondent unlaw-
fully failed to provide the Union with the names and addresses of the
permanent strike replacements, we decline the Respondent’s invitation
to overrule well-established precedent holding that the names and ad-
dresses of permanent replacements constitute presumptively relevant
information. See, e.g., Tenneco Automotive, Inc., 357 NLRB 953, 954–
955 (2011), enfd. in relevant part, 716 F.3d 640 (D.C. Cir. 2013); NTN
Bower Corp., 356 NLRB 1072, 1072 fn. 3 (2011).
3 Unless otherwise indicated, all dates referenced herein are in 2010.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing agency that the length of the jobs would be 3 days.
4

Executive Director Gayle Reynolds testified that by the
end of the first day of the strike, “we felt confident that
we had enough people to get through a few days.”
Despite having the temporary employees committed to
work at least through August 5, the Respondent began
permanently replacing the striking employees on August
3. From August 3 through 6, the Respondent made ap-
proximately 44 offers of permanent employment; some
were made to temporary employees provided by the
staffing agency, while others were made to some of the
Respondent’s on-call employees who had continued to
work during the strike.
Executive Director Reynolds, who made the decision
to hire the permanent replacements, was admittedly mo-
tivated by her desire to avoid a future strike at the facili-
ty. Her Board affidavit contained the following state-
ment, which was credited by the judge:

I knew that it would take time to acclimate the new
employees to [the Respondent], but the more important
consideration for me was that I knew that those re-
placements would come to work if there was another
work stoppage. I assumed that because these people
were willing to work during this strike, they’d be will-
ing to work during the next strike.

Reynolds testified that she made the decision to hire the
permanent replacements because if the bargaining unit em-
ployees decided to engage in future work stoppages, she did
not believe that the Respondent could afford to repeatedly
engage the staffing agency. She also testified that the cost
to engage the staffing agency to supply the initial temporary
employees had been $300,000; however, on cross-
examination, she conceded that it would have cost the Re-
spondent a lesser amount, $250,000 over the 3-year life of
the contract, to fully implement the Union’s proposals on
wages, health insurance, and pensions—the remaining sig-
nificant monetary issues of disagreement between the par-
ties with respect to a new collective-bargaining agreement.
On August 6, almost 3 days after it began permanently
replacing employees and less than 24 hours before em-
ployees were set to return to work, the Respondent began
contacting the employees who had been permanently
replaced, either by letters sent overnight mail or by tele-
phone, notifying them of their status and informing them
that they would be placed on a preferential rehire list.
Also on August 6, the fifth and final day of the strike, the
Union’s attorney, Bruce Harland, placed a telephone call

4 The Respondent told the individuals to whom it extended offers of
temporary employment that it expected to require their services for the
week.
to the Respondent’s attorney, David Durham. Harland
asked Durham whether he could confirm a rumor that the
Respondent was planning to lock out the strikers;
Durham replied that he could not confirm the rumor.
Later that evening, Durham called Harland and told him
that the Respondent would not be locking out the em-
ployees, but that the Respondent had permanently re-
placed approximately 20 of them. Harland responded
that such a course of action was “a pretty big deal,” and
asked why the Respondent was permanently replacing
the employees rather than locking them out. Durham
replied that the Respondent “wanted to teach the strikers
and the Union a lesson. They wanted to avoid any future
strikes, and this was the lesson that they were going to be
taught.”
On the morning of August 7, the striking employees
who were scheduled to work that day (approximately 50
to 60 of the former strikers) reported to the Respondent’s
facility, consistent with the unconditional offer to return
to work included in the Union’s July 9 letter.
5
At that
time, one of the Respondent’s security guards advised
the group that only some of the employees were permit-
ted to return; others were told that they had been perma-
nently replaced and would be placed on a preferential
rehire list.
II. THE JUDGE’S DECISION
The General Counsel alleged that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by permanently
replacing—and thereafter failing to reinstate, or belatedly
reinstating—striking employees in order to restrain them
from exercising rights protected by the Act. The General
Counsel argued that the Respondent’s decision to perma-
nently replace the striking employees was motivated by
an “independent unlawful purpose” within the meaning
of Hot Shoppes, Inc., 146 NLRB 802 (1964). The judge
rejected this argument, finding that an “independent un-
lawful purpose” is established only when an employer’s
hiring of permanent replacements is “unrelated to or ex-
traneous to the strike itself.” The judge concluded that
the Respondent’s motivation for permanently replacing
the strikers—to teach the strikers “a lesson” and ensure
that employees would not strike again—was related to
the underlying strike and, therefore, did not constitute an
“independent unlawful purpose” under Hot Shoppes. For
the reasons set forth below, we disagree and find that the
Respondent’s permanent replacement of the strikers vio-
lated the Act.

5 During the strike, the Union sent to the Respondent a copy of the
same letter that it had sent on July 9, advising the Respondent of the
strikers’ unconditional offer to return to work on August 7.
AMERICAN BAPTIST HOMES OF THE WEST 3
III. ANALYSIS
The right to strike is protected by Section 7 of the Act.
See NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 181
(1967) (“The economic strike against the employer is the
ultimate weapon in labor’s arsenal for achieving agree-
ment upon its terms”). Congress and the courts have
repeatedly recognized the legitimate use and protected
nature of the strike. See NLRB v. Erie Resistor Corp.,
373 U.S. 221, 234–236 (1963) (citing cases); NLRA Sec-
tion 13, 29 U.S.C. § 163.
6
Accordingly, “an employer’s
discouragement of employee participation in a legitimate
strike constitutes discouragement of membership in a
labor organization within the meaning of Section
8(a)(3).” Capehorn Industry, 336 NLRB 364, 365
(2001). Because employees have the right to strike in
support of economic demands, an employer violates Sec-

6 The Court stated in Erie Resistor: “While Congress has from time
to time revamped and redirected national labor policy, its concern for
the integrity of the strike weapon has remained constant,” and “the right
to strike is to be given a generous interpretation” 373 U.S. at 234–235.
Citing two other Supreme Court decisions—NLRB v. Insurance
Agents’ International Union, 361 U.S. 477 (1960) and American Ship
Building Co. v. NLRB, 380 U.S. 300 (1965)—the dissent asserts that the
Board may not “act as arbiter of the sort of economic weapons the
parties can use in seeking to gain acceptance of their bargaining posi-
tion.” That statement is correct but inapplicable to the instant matter.
Here, unlike in those cases, the Respondent did not even purport to be
acting in support of its bargaining position. To the contrary, the Re-
spondent’s admitted purpose was to punish employees for exercising a
fundamental statutory right by going on strike. Both decisions are thus
consistent with today’s holding.
The Court’s decision in American Ship Building addressed the ques-
tion whether an employer, after bargaining to impasse, may temporarily
lock out employees for the sole purpose of exerting economic pressure
in support of its bargaining position. 380 U.S. at 308, 318. In answer-
ing that question in the affirmative, the Court emphasized the absence
of any contention that the lockout was motivated by hostility to the
union or to employees’ protected activity. 380 U.S. at 308, 313. The
question in Insurance Agents was whether the Board properly found
that a union violated its duty to bargain in good faith by engaging in
certain arguably unprotected pressure tactics away from the bargaining
table. The Court emphasized that the Board’s approach “involved an
intrusion into the substantive aspects of the bargaining process . . .
unless there is some specific warrant for its condemnation of the pre-
cise tactics involved here.” 361 U.S. at 489. The Court found no such
warrant. In the instant case, the issue is not either party’s good faith in
the bargaining process, but rather whether a purpose behind the Re-
spondent’s permanent replacement of employees was to punish them
for exercising their statutory right to strike. Where, as here, there was
such evidence, then there is “some specific warrant” for condemning
the tactic and doing so does not make the Board an “arbiter of an eco-
nomic weapon.” In sum, neither Insurance Agents nor American Ship
Building comes close to addressing the issue presented here.
Finally, we question the dissent’s premise that the permanent re-
placement of strikers is a legally protected economic weapon on a par
with the statutory right to strike. We note that Insurance Agents, which
the dissent cites for this proposition, does not even mention permanent
replacements. However, no party raises this issue, and we need not
reach it in order to resolve this case.
tion 8(a)(3) by failing to immediately reinstate such em-
ployees upon their unconditional offer to return to work.
In certain situations, however, an employer may establish
a “legitimate and substantial justification” for failing to
reinstate striking employees by showing that the strikers’
positions have been filled by permanent replacements.
See NLRB v. MacKay Radio & Telegraph Co., 304 U.S.
333, 345–346 (1938); NLRB v. Fleetwood Trailer Co.,
389 U.S. 375, 378 (1967). However, the permanent re-
placement of strikers is not always lawful. The Board
will find a violation of the Act “if it is shown that, in
hiring the permanent replacements, the employer was
motivated by ‘an independent unlawful purpose.’” Avery
Heights, 343 NLRB 1301, 1305 (2004) (quoting Hot
Shoppes, Inc., 146 NLRB 802, 805 (1964)).
A. Interpretation of Hot Shoppes
This case turns on an interpretation and application of
the principles articulated in Hot Shoppes. In Hot
Shoppes, the respondent employer and the union repre-
senting its employees were engaged in negotiations for a
collective-bargaining agreement. On several occasions
during the negotiations, the union threatened to strike if
the parties had not reached an agreement by a particular
date, and the employer concomitantly advised its em-
ployees that, in the event of a strike, all of the strikers
would be permanently replaced. When the union reiter-
ated its strike threat at the final bargaining session pre-
ceding its previously expressed deadline, the employer—
in anticipation of the strike and in order to insure uninter-
rupted service to its clients—enlisted temporary workers
from its facilities in other cities and also began soliciting
and processing applications for permanent replacements.
The union commenced the strike approximately a week
later. On the day the strike began, the employer contin-
ued its operations using temporary employees from its
other locations who had been flown in over the course of
the several preceding days. Beginning on the first day of
the strike and for the next 3 days thereafter, however, the
employer hired permanent replacements for all of the
striking employees. The strikers made an unconditional
offer to return to work nearly 2 weeks after the strike
commenced.
7
Because the employer had permanently
replaced all of the striking employees by that date, it re-
fused to reinstate them.
On those facts, the trial examiner concluded that the
employer violated Section 8(a)(3) and (1) of the Act by
failing to reinstate the striking employees upon receipt of

7 Although several employees had made individual requests for rein-
statement prior to the group offer of reinstatement, the Board found that
no such requests predated the period in which the employer hired the
permanent replacements.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
their unconditional offers to return to work. Specifically,
the trial examiner concluded that, in hiring the permanent
replacements, the employer acted pursuant to a discrimi-
natory “contrived scheme” to defeat the economic strik-
ers’ rights to reinstatement. 146 NLRB at 835. As evi-
dence of this contrived scheme, the trial examiner cited
the employer’s prestrike declarations that all strikers
would be permanently replaced, “the careful planning in
advance of the strike, including the securing of the tenta-
tive replacements, and the interviewing of applicants
who in turn might replace them, and the elaborate, as
well as unique, paper record manufactured subsequent to
the strike to establish the ‘permanency’ of the replace-
ments.” Id.
The Board rejected the trial examiner’s conclusion that
the employer’s plan to replace the economic strikers was
improper, stating:

We, however, disagree with the Trial Examiner’s
premise that an employer may replace economic strik-
ers only if it is shown that he acted to preserve efficient
operations of his business. The Supreme Court’s deci-
sion in Mackay Radio & Telegraph Company, and the
cases thereafter, although referring to an employer’s
right to continue his business during a strike, state that
an employer has a legal right to replace economic strik-
ers at will. We construe these cases as holding that the
motive for such replacements is immaterial, absent evi-
dence of an independent unlawful purpose.

Id. at 805 (emphasis added) (internal citations omitted).
In analyzing the meaning of “independent unlawful
purpose,” we first consider the context in which the
Board used the phrase in Hot Shoppes. As set forth
above, the Board’s analysis in that case focused on
whether the trial examiner erred by inferring unlawful
motivation from the mere act of hiring (or planning to
hire) permanent replacements. See id. at 805 (“There-
fore, we reject the Trial Examiner’s conclusion that the
plan to replace the economic strikers here was itself im-
proper and that the strike was converted to an unfair la-
bor practice strike on January 4 by [r]espondent’s im-
plementation of such plan.”). Because the Board found
that the alleged unlawful motivation was not established,
it did not address whether the motivation at issue would
have qualified as an “independent unlawful purpose.”
We next consider the fact that the Board used the
phrase “independent unlawful purpose” in Hot Shoppes
in the context of discussing the Supreme Court’s decision
in Mackay Radio, 304 U.S. 333 (1938). Specifically, the
Board stated that Mackay and its progeny establish that
employers may permanently replace economic strikers at
will, and that, accordingly, the motive for doing so is
immaterial absent evidence of an independent unlawful
purpose. In our view, the Board’s reference to replacing
economic strikers “at will” is consistent with the em-
ployment-at-will doctrine, pursuant to which an employ-
er may discharge an employee for any reason or no rea-
son at all, unless the discharge violates clearly mandated
public policy. See, e.g., Talley v. Washington Inventory
Service, 37 F.3d 310, 311 (7th Cir. 1994). This analogy
serves as additional basis for the Board’s holdings that an
employer may hire permanent replacements for any rea-
son at all, unless there is evidence that the employer was
motivated by a purpose otherwise proscribed by the Act.
8

In addition to the factual context of the Hot Shoppes
decision itself, the broader context of the existing juris-
prudence at the time of the decision’s issuance sheds
further light on the Board’s intent. At the time of the Hot
Shoppes decision, and as noted there by the Board, the
Supreme Court had established that an employer pos-
sesses the right to permanently replace economic strikers
to continue business operations during the strike. Mac-
kay Radio, 304 U.S. 333. Nothing in that decision or
subsequent decisions, however, suggested that the em-
ployer’s right in that regard was absolute, i.e., that an
employer could lawfully replace economic strikers even
if it did so for a purpose prohibited by the Act. Indeed,
the Court’s language in Mackay recognized such a limi-
tation:

[I]t does not follow that an employer, guilty of no act
denounced by the statute, has lost the right to protect
and continue his business by supplying places left va-
cant by strikers.

Id. at 345 (emphasis added).
Subsequently, in Erie Resistor, the Court found that
the employer was guilty of an act denounced by the stat-
ute when it hired permanent replacements during a strike
and granted them 20 years superseniority. The Court
explained that “[w]hen specific evidence of a subjective
intent to discriminate or to encourage or discourage un-
ion membership is shown, and found, many otherwise
innocent or ambiguous actions which are normally inci-
dent to the conduct of a business may, without more, be
converted into unfair labor practices.” 373 U.S. at 227.
In these circumstances, the Court explained:

Such proof [of discriminatory intent] itself is normally
sufficient to destroy the employer’s claim of a legiti-
mate business purpose, if one is made, and provides

8 American Optical Co., 138 NLRB 681 (1962), cited in the dissent,
is inapposite. In that case, the evidence showed that the employer’s
sole motive for replacing economic strikers was to compel the union to
accede to its bargaining proposals. Id. at 689.
AMERICAN BAPTIST HOMES OF THE WEST 5
strong support to a finding that there is interference
with union rights or that union membership will be dis-
couraged. Conduct which on its face appears to serve
legitimate business ends in these cases is wholly im-
peached by the showing of an intent to encroach upon
protected rights. The employer’s claim of legitimacy is
totally dispelled.

Id. at 227–228. Applying these principles, the Court held
that although it had “no intention of questioning the contin-
ued vitality of the Mackay rule, [it was] not prepared to ex-
tend it to the situation” involving permanent replacements
accompanied by superseniority—conduct which the Court
found was inherently destructive of employees’ right to
strike. Thus, even assuming that the Court’s holding in
Mackay may be read—as the Hot Shoppes Board apparently
read it—to presume that an employer’s hiring of permanent
replacements serves the legitimate business purpose of al-
lowing the employer to protect and continue his operations
during a strike, the Court’s decision in Erie Resistor makes
clear that a legitimate business purpose may be “wholly
impeached by the showing of an intent to encroach upon
protected rights.” Therefore, notwithstanding the respond-
ent’s right under Mackay to continue operations with per-
manent replacements, the Court agreed with the Board that
this business purpose “was insufficient to insulate [the] su-
perseniority plan from the reach of § 8(a)(1) and Section
8(a)(3) . . . .” Id. at 231–232
9

Having considered Hot Shoppes in light of the forego-
ing precedent, we conclude that the phrase “independent
unlawful purpose” includes an employer’s intent to dis-
criminate or to encourage or discourage union member-
ship. Our conclusion is consistent with Erie and with the
“widely accepted” principle that “otherwise lawful acts
can be rendered unlawful when motivated by improper
intentions.” RGC (USA) Mineral Sands, Inc., v. NLRB,
281 F.3d 442, 449–450 (4th Cir. 2002), enfg. 332 NLRB
1633, 1636 (2001) (finding that even assuming that it
acted pursuant to a contractual right, the employer could
not “act with the intent to punish or discourage protected
concerted activity” as to hold otherwise “would be to
eviscerate both the rights found in Section 7 . . . and the

9 The dissent correctly observes that the Board in Hot Shoppes, con-
trary to the trial examiner, summarily stated that Erie Resistor was
distinguishable. The Board did not, however, take issue with the under-
lying principle, nor does it preclude us from finding an “independent
unlawful purpose” under different facts from those presented in Hot
Shoppes.
Belknap v. Hale, 463 U.S. 491 (1983), discussed in the dissent, is not
to the contrary. Citing Hot Shoppes, the Court pointed out that the
Board does not require an employer to show that it was necessary to
use permanent replacements in order to keep the business operating.
That aspect of Hot Shoppes—the proper interpretation of Mackay—is
not before us.
protection afforded the exercise of those rights by Sec-
tions 8(a)(1) and (3).” Id. at 450). Cf. Movers & Ware-
housemen’s Assn. of D.C. v. NLRB, 550 F.2d 962, 966
(D.C. Cir. 1977) (even if motivated in part to exert eco-
nomic pressure in support of a legitimate bargaining po-
sition, a “lockout is nevertheless unlawful if also moti-
vated by an intent to interfere with, and thus injure, a
labor organization”).
As stated above, the judge found that an “independent
unlawful purpose” is established only when an employ-
er’s hiring of permanent replacements is unrelated to, or
extrinsic to, the strike. The dissent would further narrow
that definition by requiring that the unlawful purpose be
“extrinsic to the parties’ bargaining relationship or unre-
lated to the strike.” The dissent’s narrow interpretation
of Hot Shoppes violates the most basic principles of the
Act. It is axiomatic that an employer violates the Act
when it retaliates against employees for engaging in un-
ion or other protected activity, and that the right to strike
is fundamental. See, e.g., Controlled Energy Systems,
Inc., 331 NLRB 251 (2000); Frank Leta Honda, 321
NLRB 482 (1996). It is difficult to imagine that the
Board intended the phrase “independent unlawful pur-
pose” to exempt retaliation for exercising a fundamental
right, and we decline to give it so strained a reading.
10

Accordingly, we find that the phrase “independent un-
lawful purpose” does not require that the unlawful pur-
pose be unrelated or extrinsic
11
to the parties’ bargaining
relationship or the underlying strike in order to fall with-
in the Hot Shoppes exception.
12

10 Furthermore, the dissent’s interpretation is contrary to the Su-
preme Court’s holding in Erie Resistor, supra. Under the dissent’s
approach, granting superseniority to nonstrikers, as in Erie Resistor,
would have been lawful because it was related to the strike.
11 In support of this proposition, the judge cited Cone Brothers Con-
tracting Co., 135 NLRB 108 (1962), enfd. 317 F.2d 3 (5th Cir. 1963),
where the employer provoked union supporters to refuse to cross a
picket line so that it could use their refusal as a reason to discharge
them in order to disqualify their votes in an upcoming union election.
The judge reasoned that because the Board in Hot Shoppes cited Cone
Brothers in discussing the independent unlawful purpose, the phrase
should be understood to mean that the hiring of permanent replace-
ments must have an unlawful objective extrinsic to the strike. But the
Board made no such finding. The Board simply cited Cone Brothers as
an example of an independent unlawful purpose that was not demon-
strated in Hot Shoppes. Further, as the dissent acknowledges, Cone
Brothers did not involve the permanent replacement of employees.
12 The dissent argues that we have in effect eliminated the term “in-
dependent” from the analysis, and that we interpret the phase “inde-
pendent unlawful purpose” to mean any antiunion or antistrike animus.
This is incorrect. As explained, we interpret “independent unlawful
purpose” to mean a motive prohibited by the Act. The dissent argues
that during a strike or lockout, the parties are engaged in economic
warfare, and “intend to injure one another in hopes of forcing the other
side to surrender.” (emphasis in original.) And, the dissent states, the
Board gives the parties in a strike situation “wide latitude” to express
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Finally, our interpretation is fully consistent with
Avery Heights, the only post-Hot Shoppes Board decision
to consider the phrase “independent unlawful purpose,”
and with the Second Circuit’s opinions in that case.
13

Avery Heights, 343 NLRB 1301 (2004), vacated and re-
manded, New England Health Care Employees Union v.
NLRB, 448 F.3d 189, 195 (2d Cir. 2006), after remand
350 NLRB 214 (2007), enfd. Church Homes, Inc. v.
NLRB, 303 Fed.Appx. 998 (2d Cir. 2008), cert denied
558 U.S. 945 (2009). In that case, the Board reversed the
judge’s finding that the employer had possessed an inde-
pendent unlawful purpose for hiring permanent replace-
ments. In so holding, the Board rejected the judge’s con-
clusion that the employer’s act of concealing its intent to
hire permanent replacements from the union demonstrat-
ed an unlawful motivation to punish the striking employ-
ees and break the union’s solidarity. The Board did not,
however, take issue with the judge’s conclusion that at
least one of the unlawful motives attributed to the em-
ployer—the desire to punish the strikers—would consti-
tute an “independent unlawful purpose,” regardless of the
fact that it was not extrinsic to the strike. Indeed, the
Board’s opinion appears to assume that an intent to pun-
ish striking employees constitutes an independent unlaw-
ful purpose for purposes of Hot Shoppes.
14

“strong feelings”: the expression of vituperative antiunion sentiment is
not in itself unlawful. But the unlawful reasons the Respondent articu-
lated here were not “stray” comments uttered in the heat of the mo-
ment. Ultimately, it is one thing for an employer to attempt to force the
union to agree to its contract terms, and quite another to discriminate
against employees for the express purpose of punishing them for strik-
ing. Such a punitive tactic finds no support in Board or court prece-
dent.
13 Although it was presented with the opportunity to address the is-
sue in at least two other decisions—in which the respective judges
concluded that the employers unlawfully permanently replaced striking
employees with an “independent unlawful purpose”—the Board de-
clined to do so and instead adopted the judges’ alternative conclusions
that the strikers were unfair labor practice strikers. See Nicholas Coun-
ty Health Care Center, 331 NLRB 970, 970 fn. 3 (2000), enfd. 13
Fed.Appx. 1 (D.C. Cir. 2001) (unpublished); Pennsylvania Glass Sand
Corp., 172 NLRB 514 (1968), enfd. General Teamsters and Allied
Workers Local Union No. 992 v. NLRB, 427 F.2d 582 (D.C. Cir. 1970).
The dissent’s dire prediction—that our decision today will eliminate
an employer’s ability to utilize permanent replacements—is unfounded.
The fact that this is only the second time since 1964 that the Board has
been required to interpret Hot Shoppes indicates that use of permanent
replacements for unlawful purposes is not a frequent occurrence.
14 In rejecting the judge’s conclusions, the majority stated that the
evidence in the case “simply does not establish some kind of nefarious
scheme to punish striking employees by hiring permanent replace-
ments.” In addition, in concluding that a document cited by the judge
in support of his finding of unlawful motive merely demonstrated the
employer’s desire to obtain an economic advantage in bargaining, the
majority stated: “Conspicuously absent from this list is any reference
at all to the strikers, much less a reference to a desire to punish them.
That is a telling omission.” Id. at 1307. The dissent contends that the
Avery Heights Board cast doubt on the notion that it would be unlawful
On appeal, the Second Circuit vacated the Board’s de-
cision and remanded the case, holding that the Board
erred in finding that an employer’s decision to keep the
hiring of permanent replacements secret is not probative
of whether the employer had an independent unlawful
purpose for the hiring. New England Health Care Em-
ployees Union, 448 F.3d at 195. Like the Board, the
court implicitly presumed that a desire to punish striking
employees or to break the union would constitute an “in-
dependent unlawful purpose.”
15

For all of the foregoing reasons, we conclude, contrary
to the judge, that Hot Shoppes does not require the Gen-
eral Counsel to demonstrate the existence of an unlawful
purpose extrinsic to the strike but, rather, only that the
hiring of permanent replacements was motivated by a
purpose prohibited by the Act.
16

B. Application of Hot Shoppes to the Facts of
this Proceeding
The credited testimony establishes that the Respondent
offered two reasons for its decision to permanently re-
place strikers: to punish the strikers and the Union and to
avoid future strikes. We find that both reasons are inde-
pendently unlawful within the meaning of Hot Shoppes.
17

As stated above, the Respondent’s counsel told the Un-
ion’s attorney that the Respondent planned to hire per-
manent replacements because it wanted “to teach the
strikers and the Union a lesson.” This statement evinces

for an employer to permanently replace employees in order to punish
them for striking. The decision is not susceptible of such a reading.
Nor, obviously, is the dissent’s position consistent with the decisions of
the Second Circuit.
15 On remand, the Board accepted as the law of the case the court’s
finding that the logical implication of the employer’s secret hiring of
permanent replacements was an illicit motive. Avery Heights, 350
NLRB 214, 215 (2007), enfd. Church Homes, Inc. v. NLRB, 303
Fed.Appx. 998 (2d Cir. 2008), cert. denied 558 U.S. 945 (2009). The
Board found that the employer’s evidence was insufficient to refute the
court’s inference and, accordingly, concluded that the employer hired
the permanent replacements with an unlawful motive and thereby vio-
lated the Act.
16 Mrs. Natt’s Bakery, 44 NLRB 1099 (1942), cited in the dissent, is
not contrary to our decision here. In that case, there was no evidence
that the employer engaged in permanent replacement of employees
with an independent unlawful purpose. Rather, the facts show only that
the employer warned its employees, and then made good on its warn-
ing, that they would be permanently replaced if they went on strike. Id.
at 1108. On those facts, the Board declined to find that the employer
unlawfully refused to bargain and reinstate the economic strikers. Id.
Nothing in our decision today mandates a different result.
17 Under the interpretation of Mackay espoused by the Board in Hot
Shoppes, an employer is not required to articulate a reason for perma-
nently replacing economic strikers. But if the employer does so (or if
the evidence otherwise indicates a reason), the Board can and should
determine whether that reason is an independent unlawful purpose.
Here, the Respondent offered two reasons, both of which were unlaw-
ful.
AMERICAN BAPTIST HOMES OF THE WEST 7
an intent to punish the striking employees for their pro-
tected conduct, and plainly reveals a retaliatory motive
prohibited by the Act.
In addition, the record establishes that the Respondent
made the decision to permanently replace the strikers
because Executive Director Reynolds assumed that the
permanent replacements would be willing to work in the
event of another strike and the Respondent wanted to
avoid the cost of hiring temporary employees again in
the future. The Respondent’s motive is clear from attor-
ney Durham’s statement to the Union that the Respond-
ent hired permanent replacements because it “wanted to
avoid any future strikes, and this was the lesson that they
were going to be taught.” This evidence establishes an
additional independent unlawful motive, specifically a
desire to interfere with employees’ future protected activ-
ity. See Parexel International, 356 NLRB 516, 519
(2011) (noting that actions to prevent employees from
engaging in protected activity are generally unlawful and
that “the suppression of future protected activity is exact-
ly what lies at the heart of most unlawful retaliation
against past protected activity”).
18

We therefore conclude that the Respondent hired the
permanent replacements for an independent unlawful
purpose. Accordingly, its delay in reinstating certain
strikers and its refusal to reinstate others violated Section
8(a)(3) and (1) of the Act. See Erie Resistor, 373 U.S. at
227–228.
19

18 Even under the judge’s limited view that an “independent unlaw-
ful purpose” is established only when an employer’s hiring of perma-
nent replacements is “unrelated to or extraneous to the strike itself,” we
would find that the Respondent violated the Act. Specifically, we find
that the Respondent’s motive of preventing future strikes is extrinsic to
the employees’ current strike activity, and similar to the example given
by the judge of an employer who attempts to “unlawfully foment a
decertification election.” Both are attempts by an employer to thwart
future protected activity.
The dissent asserts that Reynolds was “clearly” contemplating strike
activity related to the ongoing labor dispute and that her motive there-
fore was not “independent” of the current strike. Nothing in the state-
ments of Reynolds or Durham compels such a narrow interpretation,
and we reject it.
19 On August 12, 2015, the Respondent filed a motion to dismiss the
complaint, arguing for the first time that at the time the underlying
complaint was issued, Acting General Counsel Lafe Solomon was
serving in violation of the Federal Vacancies Reform of 1998 (FVRA),
5 USC §§ 3345 et seq., and therefore lacked authority to issue the com-
plaint. The Respondent did not raise any question about the authority
of the Acting General Counsel (AGC) in its answer to the consolidated
complaint or at any time during the extensive federal court litigation of
the AGC’s petition for a temporary injunction pursuant to Section 10(j)
of the National Labor Relations Act, 29 USC §160(j). Nor did the
Respondent raise this issue during the hearing before the Administra-
tive Law Judge, in its posthearing brief, or in its exceptions to the
Board. Under these circumstances, we find that the Respondent has
waived its right to challenge the AGC’s authority to prosecute this case,
and we reject the Respondent’s motion to dismiss as an untimely effort

to file additional exceptions. See The Boeing Co., 362 NLRB No. 195,
slip op. at 1 fn. 1 (2015).
Even if we were to consider the Respondent’s challenge to the au-
thority of the AGC under the FVRA, we would not find it appropriate
to dismiss the complaint. On September 28, 2015, General Counsel
Richard F. Griffin, Jr. issued a Notice of Ratification in this case which
states, in relevant part,

The prosecution of this case commenced under the authority of Acting
General Counsel Lafe E. Solomon during the period after his nomina-
tion on January 5, 2011, while his nomination was pending with the
Senate, and before my confirmation on November 4, 2013.
The United States Court of Appeals for District of Columbia Circuit
recently held that Acting General Counsel Solomon’s authority under
the Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq.,
ceased on January 5, 2011, when the President nominated Mr. Solo-
mon for the position of General Counsel. SW General, Inc. v. NLRB,
F.3d, 2015 WL 4666487, (D.C. Cir., Aug. 7, 2015). The Court found
that complaints issued while Mr. Solomon’s nomination was pending
were unauthorized and that it was uncertain whether a lawfully-
serving General Counsel or Acting General Counsel would have exer-
cised discretion to prosecute the cases. Id. at *10.
I was confirmed as General Counsel on November 4, 2013. After ap-
propriate review and consultation with my staff, I have decided that
the issuance of the complaint in this case and its continued prosecution
are a proper exercise of the General Counsel’s broad and unreviewa-
ble discretion under Section 3(d) of the Act.
My action does not reflect an agreement with the appellate court rul-
ing in SW General. Rather, my decision is a practical response aimed
at facilitating the timely resolution of the charges that I have found to
be meritorious while the issues raised by SW General are being re-
solved. Congress provided the option of ratification by expressly ex-
empting “the General Counsel of the National Labor Relations Board”
from the FVRA provisions that would otherwise preclude the ratifica-
tion of certain actions of other persons found to have served in viola-
tion of the FVRA. (Citation omitted.)
For the foregoing reasons, I hereby ratify the issuance and continued
prosecution of the complaint.

On October 8, 2015, the Respondent filed a supplement to its motion
to dismiss arguing that General Counsel Griffin lacked the authority to
ratify the actions taken by former Acting General Counsel Solomon
because those actions were void under SW General and subject to “au-
tomatic reversal.” The Respondent also argues that even if the error
were “harmless” under the Administrative Procedure Act, the error at
issue is “indelible and permanently prejudicial” under 5 U.S.C §707.
We reject the Respondent’s arguments.
The Respondent has misstated the holding of SW General. In that
case, the court recognized that the General Counsel of the National
Labor Relations Board is one of several officers expressly exempted
from the “void-ab-initio” and “no-ratification” provisions of the FVRA.
796 F.3d at 78–79, citing 5 U.S.C. § 3348(e)(1). Therefore, the court
treated the actions of an improperly serving Acting General Counsel as
“voidable, not void,” id. at 79 (emphasis in original), suggesting that
any statutory defect in actions could be cured through ratification by a
properly appointed General Counsel. See id. at 78–79 (discussing 5
U.S.C. § 3348); see also Doolin Sec. Sav. Bank, F.S.B. v. Office of
Thrift Supervision, 139 F.3d 203 (D.C. Cir.1998); Federal Election
Commission v. Legi–Tech, Inc., 75 F.3d 704 (D.C. Cir.1996).
Nor is there merit to the Respondent’s argument that any defect in
Acting General Counsel Solomon’s temporary appointment was “a
structural error and thus ‘subject to automatic reversal’” or “derivative-
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
AMENDED REMEDY
In addition to the remedies provided in the judge’s Or-
der as amended above, we shall require the Respondent
to offer all of the strikers who have not yet been reinstat-
ed full reinstatement to their former jobs, discharging, if
necessary, any employees currently in those positions or,
if those jobs no longer exist, to substantially equivalent
positions. We shall also order the Respondent to make
the former strikers whole for any loss of earnings and
other benefits, from August 7, 2010, to the date they re-
ceive valid offers of reinstatement, in accordance with
F.W. Woolworth Co., 90 NLRB 289 (1950), with interest
at the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). In addition,
in accordance with our recent decision in Advoserv of
New Jersey, supra, the Respondent shall compensate
affected employees for the adverse tax consequences, if
any, of receiving lump-sum backpay awards, and file
with the Regional Director for Region 32, within 21 days
of the date the amount of backpay is fixed, either by
agreement of Board order, a report allocating the back-
pay awards to the appropriate calendar years for each
employee.
ORDER
The National Labor Relations Board orders that the
Respondent, American Baptist Homes of the West d/b/a
Piedmont Gardens, Oakland, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from

ly tainted” the General Counsel’s ratification. The D.C. Circuit reject-
ed a similar argument in Intercollegiate Broadcasting System, Inc. v.
Copyright Royalty Board, 796 F.3d 111, 121–124 (D.C. Cir. 2015).
The court found that a Copyright Royalty Board decision issued by
members appointed in violation of the Constitution’s Appointments
Clause did not “incurably taint” a validly appointed board from issuing
a new decision based on an independent, de novo review of the written
record in the earlier proceeding. The court concluded that the Copy-
right Board was not required to conduct a new hearing, and nothing in
the Appointments Clause barred the board from reaching the same
conclusion as its predecessor. Id. at 121. For these reasons the court
found there was no error that could not be remedied by an independent
consideration by a properly appointed board. 796 F.3d at 123–124. See
also Federal Election Commission v. Legi–Tech, Inc., 75 F.3d 704, 707
and 709 (D.C. Cir.1996) (finding lawful the newly constituted commis-
sion’s ratification of a pending enforcement action that was decided by
a prior commission that was unconstitutionally constituted); Doolin
Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision, supra (same).
Here, we find that the General Counsel’s ratification of the issuance
and continued prosecution of the complaint, based on his independent
review of the case record, remedied any alleged defect stemming from
the Acting General Counsel’s appointment under the FVRA.
The Respondent’s motion to dismiss is denied.

(a) Engaging in surveillance or creating the impression
that it was engaging in surveillance of its employees’
union activities.
(b) Disparately enforcing its access rule (Rule 33) by
evicting off-duty employees engaged in union activity
from the facility.
(c) Refusing to reinstate, or delaying the reinstatement
of, striking employees, who were permanently replaced
with an independent unlawful purpose, and who made an
unconditional offer to return to work.
(d) Failing and refusing to furnish the Union with the
names and addresses of the permanent replacement em-
ployees whom it hired from outside the organization.
(e) 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) Within 14 days from the date of this Order, offer all
of the strikers who have not yet been reinstated full rein-
statement to their former jobs, discharging, if necessary,
any employees currently in those positions or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges previously enjoyed.
(b) Make all former strikers whole for any loss of earn-
ings and other benefits suffered as a result of the refusal
to reinstate them on August 7, 2010, in the manner set
forth in the amended remedy section of this decision.
(c) Compensate employees entitled to backpay under
the terms of this Order for the adverse tax consequences,
if any, of receiving lump-sum backpay awards, and file
with the Regional Director for Region 32, within 21 days
of the date the amount of backpay is fixed, either by
agreement or Board Order, a report allocating the back-
pay award to the appropriate calendar years for each em-
ployee.
(d) Within 14 days from the date of this Order, remove
from its files any reference to its unlawful failure to rein-
state the former strikers, and within 3 days thereafter
notify the strikers in writing that this has been done and
that the failure to reinstate them will not be used against
them in any way.
(e) Provide the Union with the names and addresses of
the permanent replacement employees who were hired
from outside sources.
(f) 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-
AMERICAN BAPTIST HOMES OF THE WEST 9
tronic 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 facility in Oakland, California, copies of the attached
notice marked “Appendix.”
20
Copies of the notice, on
forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, 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 custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since June 17, 2010.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 32 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that Respondent has taken to
comply.
Dated, Washington, D.C. May 31, 2016

______________________________________
Mark Gaston Pearce, Chairman

______________________________________
Kent Y. Hirozawa, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

MEMBER MISCIMARRA, dissenting in part.
When the Board addresses the legality of economic
weapons under the National Labor Relations Act (NLRA
or Act), there is a paradox that makes it important to dif-
ferentiate between what one would prefer to see in col-
lective bargaining, and what role Congress contemplated

20 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.”
for economic weapons as part of the collective-
bargaining process. The paradox is this: the NLRA was
adopted to eliminate obstructions to commerce, but it
accomplishes that objective by protecting the right of
employees, unions, and employers to utilize strikes,
lockouts, and other economic weapons.
1
What one hopes
to see in any collective-bargaining dispute is its success-
ful resolution without any party’s resort to economic
weapons. But what Congress intended was for the Board
to preserve the balance of competing interests—
including potential resort to economic weapons—that
Congress devised as the engine driving parties to resolve
their differences and to enter into successful agreements.
As the Supreme Court stated in NLRB v. Insurance
Agents’ International Union, 361 U.S. 477, 487–489
(1960), employers and unions in collective bargaining
“proceed from contrary and to an extent antagonistic
viewpoints and concepts of self-interest. . . . The pres-
ence of economic weapons in reserve, and their actual
exercise on occasion by the parties, is part and parcel of
the system that the Wagner and Taft-Hartley Acts have
recognized.”
Congress did not empower the Board to pick and
choose among economic weapons that parties might in-
voke in a collective-bargaining dispute. Insurance
Agents, 361 U.S. at 497 (the Board may not act as “arbi-
ter of the sort of weapons the parties can use in seeking
to gain acceptance of their bargaining positions”). Nor
does the Board have “general authority to define national
labor policy by balancing the competing interests of la-
bor and management.” American Ship Building Co. v.
NLRB, 380 U.S. 300, 316 (1965).
I do not favor the hiring of permanent replacements to
resolve collective-bargaining disputes any more than I
favor strikes, lockouts and other types of threatened or
inflicted economic injury that are protected under our
Act. The statute protects these types of economic weap-
ons. Their availability, combined with their “actual ex-
ercise on occasion by the parties,” Insurance Agents,
supra, has produced virtually all of the agreements
reached in the Act’s 80-year history.
It is also clear that collective bargaining and labor-
management disputes evoke extraordinarily strong feel-
ings. There is often a sharp clash between seemingly

1 Sec. 1 of the Act states: “It is declared to be the policy of the Unit-
ed States to eliminate the causes of certain substantial obstructions to
the free flow of commerce and to mitigate and eliminate these obstruc-
tions when they have occurred by encouraging the practice and proce-
dure of collective bargaining and by protecting the exercise by workers
of full freedom of association, self- organization, and designation of
representatives of their own choosing, for the purpose of negotiating
the terms and conditions of their employment or other mutual aid or
protection” (emphasis added).
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
irreconcilable positions. When unions and employees
engage in a work stoppage or other industrial action, or
when an employer operates during a strike or responds
by hiring replacement employees, such tactics are indeed
“weapons.” Insurance Agents, supra. Nobody can be
confused about their purpose: they are exercised with
the intention of inflicting severe and potentially irrepara-
ble injury, often causing devastating damage to business-
es and terrible consequences for employees. Congress
protected such economic warfare—including the hostile
emotions that it produces—as the only way bargaining
could force parties to resolve intractable disputes based
on the acceptance of terms they adamantly opposed, at
least initially. Instructive is the court’s description of
strikes and lockouts, for example, in NLRB v. Wire
Products Mfg. Corp., 484 F.2d 760 (7th Cir. 1973):

The strike is a potent economic weapon which may,
and often is, wielded with disastrous effect on its
employer target. Recognition was given to the lock-
out as a legitimate economic weapon on the part of
the employer in American Ship Building: “we cannot
see that the employer’s use of a lockout solely in
support of a legitimate bargaining position is in any
way inconsistent with the right to bargain collective-
ly or with the right to strike.”

* * *
The implicit recognition of some degree of equivalency
between the respective weapons of economic leverage
should not be thwarted via an artificially contrived but
substantially unsupported factual basis. Feelings are
intense and deeply held by both parties when a lack of
employment occurs, whether as the result of a strike or
a lockout. The employees are denied their pay checks.
The employer is denied the normal processes of pro-
duction. Statements and conduct which could be the
basis for inferring animus, which the parties each enter-
tain toward the other, are not difficult to detect. The
standard here, however, is not the existence of an in-
choate animus but rather whether that feeling did in
fact motivate. In the legislative scheme, the courts
serve some more worthwhile purpose than that of au-
tomatically rubberstamping approval of Board deter-
minations. In the consideration of this particular issue,
“[a]n unlawful purpose is not lightly to be inferred. In
the choice between lawful and unlawful motives, the
record taken as a whole must present a substantial basis
of believable evidence pointing toward the unlawful
one.”
2

2 Id. at 765 (emphasis added) (quoting American Ship Building Co.
v. NLRB, 380 U.S. at 310, and NLRB v. McGahey, 233 F.2d 406, 413

The Supreme Court has long recognized that the hiring
of permanent replacements is an economic weapon em-
ployers may lawfully deploy in response to an economic
strike.
3
Thus, in Mackay Radio, the Supreme Court stat-
ed:

Although section 13 of the act . . . provides, “Nothing
in this Act . . . shall be construed so as to interfere with
or impede or diminish in any way the right to strike,” it
does not follow that an employer, guilty of no act de-
nounced by the statute, has lost the right to protect and
continue his business by supplying places left vacant by
strikers. And he is not bound to discharge those hired
to fill the places of strikers, upon the election of the lat-
ter to resume their employment, in order to create
places for them. The assurance by respondent to those
who accepted employment during the strike that if they
so desired their places might be permanent was not an
unfair labor practice, nor was it such to reinstate only
so many of the strikers as there were vacant places to
be filled.
4

In Hot Shoppes, Inc., 146 NLRB 802, 805 (1964), the Board
adopted a rule disallowing any scrutiny into an employer’s
motive for hiring permanent replacements. The Board re-
jected a trial examiner’s finding that the employer violated
Section 8(a)(3) and (1) by hiring permanent replacements as
part of what the trial examiner described as “a contrived
scheme to make it possible for the Hot Shoppes manage-
ment officials to penalize various of the strikers and to de-
feat their rights to reinstatement.”
5
A unanimous Board
held:

We . . . disagree with the Trial Examiner’s premise that
an employer may replace economic strikers only if it is
shown that he acted to preserve efficient operation of
his business. The Supreme Court’s decision in Mackay
Radio & Telegraph Company, and the cases thereafter,
although referring to an employer’s right to continue

(5th Cir. 1956)). See also NLRB v. Brown Food Stores, 380 U.S. 278,
284 (1965) (“[W]e do not see how the continued operations of respond-
ents and their use of temporary replacements imply hostile motivation
any more than the lockout itself; nor do we see how they are inherently
more destructive of employee rights.”); Central Illinois Public Service
Co., 326 NLRB 928, 930–931, 934 (1998) (same).
3 NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345
(1938); see also Trans World Airlines v. Independent Federation of
Flight Attendants, 489 U.S. 426, 437 (1989); Machinists Lodge 76 v.
Wisconsin Employment Relations Commission, 427 U.S. 132, 152
(1976); American Ship Building Co. v. NLRB, 380 U.S. at 316. In light
of these precedents and others, I do not believe that whether the perma-
nent replacement of economic strikers is a legitimate form of economic
pressure is reasonably open to question.
4 304 U.S. at 345 (footnotes omitted; emphasis added).
5 Id. at 835.
AMERICAN BAPTIST HOMES OF THE WEST 11
his business during a strike, state that an employer has
a legal right to replace economic strikers at will. We
construe these cases as holding that the motive for such
replacements is immaterial, absent evidence of an in-
dependent unlawful purpose. Therefore, we reject the
Trial Examiner’s conclusion that the plan to replace the
economic strikers here was itself improper and that the
strike was converted to an unfair labor practice strike
on January 4 by Respondent’s implementation of such
plan.
6

In the instant case, Judge Litvack correctly applied the
rule of Hot Shoppes: employers have the right to hire
permanent replacements regardless of motive. The judge
also correctly interprets the “independent unlawful pur-
pose” exception. In his view, that exception applies only
where the hiring of permanent replacements “is calculat-
ed to accomplish another, unlawful purpose, one unrelat-
ed to or extraneous to the strike itself” (emphasis added).
Otherwise, he says, “the entire preceding clause”—i.e.,
that the employer’s motive for hiring permanent re-
placements is immaterial—is rendered “a nullity.” In my
view, the judge’s reading of Hot Shoppes is obviously
correct.
My colleagues improperly adopt an interpretation of
“independent unlawful purpose” to mean any antiunion
or antistrike animus. What Hot Shoppes states as an ex-
ception, my colleagues make the rule. In their view,
“motive is immaterial” means precisely the opposite:
motive is material, and only certain motives are lawful.
The majority performs a rehab of Hot Shoppes that
leaves almost nothing standing. One piece of the struc-
ture remains intact—the phrase “independent unlawful
purpose”—but the original builders would never recog-
nize the place. Using Judge Litvack’s apt phrase, the
majority has rendered Hot Shoppes a nullity.
More is at stake here than the deformation of Board
precedent, serious as that is. The predictable result is a
substantial rearrangement of the competing interests bal-
anced by Congress when it chose to protect various eco-
nomic weapons, including the hiring of permanent re-
placements. Again, the hiring of permanent replace-
ments necessarily occurs only when all parties have re-
sorted to economic warfare: the union and striking em-
ployees have exercised their protected rights to inflict
economic injury on the employer’s business, and the
employer has exercised a protected right to respond by
measures that inflict economic injury on the union and
employees. These are not circumstances for the faint of
heart. During such times, parties almost invariably bear

6 146 NLRB at 805 (citing Mackay Radio, 304 U.S. at 333; Ameri-
can Optical Co., 138 NLRB 681, 689 (1962)) (emphasis added).
animus toward each other. It would be common for the
union and employees to widely distribute accusations
that the employer is treating employees unfairly because
of greed and injustice. It would be equally common for
the employer to respond—and believe—that the union
and employees are being unreasonable and irresponsible.
In most cases, the parties understand that their dispute
may cause everybody to experience severe economic
injury and, possibly, financial ruin.
The Act does not require parties to maintain Spock-
like objectivity towards one another when resorting to
economic weapons.
7
Nor is it realistic to believe that
parties in these circumstances will remain in a dispas-
sionate state of cool detachment. Yet, under the majori-
ty’s decision today, if the employer hires permanent re-
placements, it appears that any evidence of antistrike
animus will render unlawful the employer’s actions, re-
sulting in potentially debilitating backpay liability. This
would represent a structural change in the competing
interests of employees, unions and employers that is con-
trary to what Congress intended, and what the Supreme
Court has recognized, in the statute we are duty-bound to
enforce.
Factual Background
On May 25, 2010,
8
at a time when the parties remained
at odds in collective bargaining over several major issues
(including health care, pensions, and disciplinary poli-
cies), the Union picketed the Respondent’s facility. The
pickets carried signs bearing slogans such as “no
healthcare reductions,” “pension now,” and “fair wages
now.”
By two letters dated July 9 and delivered simultane-
ously to the Respondent, the Union notified the Re-
spondent that it planned to call a strike. One letter in-
formed the Respondent that the Union would commence
a strike on Monday, August 2 and continue striking “un-
less and until a mutually agreeable resolution has been
reached.” The other letter advised that all of the striking

7 Mr. Spock—a main character in the well-known television and
movie series Star Trek—was perhaps best known for his (largely suc-
cessful) efforts to suppress emotion. His father was from the planet
Vulcan, where beings were “noted for their attempt to live by reason
and logic.” However, even Spock, who had a human mother, experi-
enced a “strained and often turbulent” relationship with his Vulcan
father, though it was “rooted in an underlying respect and carefully
restrained love.” Wikipedia, Spock (http://en.wikipedia.org/
wiki/Spock) (last viewed May 23, 2016); Wikipedia, Vulcan (Star
Trek) (http://en.wikipedia.org/wiki/Vulcan_(Star_Trek)) (last viewed
May 23, 2016). Like other Vulcan males, Spock also periodically
experienced “pon farr,” which seemingly resulted in a battle to the
death between Spock and his friend and captain, James T. Kirk, in the
Star Trek second season premiere. Wikipedia, Amok Time (https://en.
wikipedia.org/wiki/Amok_Time) (last viewed May 23, 2016).
8 All dates are in 2010.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees “unconditionally offer to return to work at or
after 5:00 a.m. on Saturday, August 7, 2010.” The Re-
spondent’s Executive Director, Gayle Reynolds, testified
that she found the letters “very ambiguous” as to when
the strike would end and that “[she] didn’t know really
what to believe.” In her mind, it was possible that the
strike would end after 5 days and the employees would
return to work without a contract, leaving open the pos-
sibility of further strikes. An alternative possibility, in
her view, was that the strike would continue indefinitely,
until the parties bridged their divide and negotiated a full
collective-bargaining agreement.
To prepare for the strike, the Respondent engaged a
staffing agency, Huffmaster, to furnish temporary re-
placements for its striking workers. This came at consid-
erable expense, upwards of $300,000 for a 5-day period.
Of course, this was the Union’s purpose in calling a
strike: to disrupt the Respondent’s operations and inflict
economic pain as a means to pressure the Respondent to
accept the Union’s bargaining demands. Several days
into the economic strike, the Respondent decided to hire
permanent replacements. Reynolds testified that she
made that decision to avoid the expense of repeatedly
hiring temporary workers through Huffmaster. She fur-
ther testified that she was motivated in part by a desire to
enable the Respondent to better weather the Union’s
strike activity.
9
In this regard, Reynolds assumed that,
because the replacement workers were willing to work
during this strike, they would be willing to work if the
Union called another strike during the ongoing labor dis-
pute. Finally, the judge credited testimony by the Un-
ion’s attorney, Bruce Harland, that the Respondent’s
attorney, David Durham, told him over the telephone that
the Respondent was hiring permanent replacements “to
teach the strikers and the Union a lesson” and that the
Respondent “wanted to avoid any future strike, and this
was the lesson that they were going to be taught.”
10

On August 7, the Union ended its strike without hav-
ing pressured the Respondent into accepting its demands.
The Respondent declined to reinstate 44 of the strikers
based on the fact that they had been permanently re-
placed.
Discussion
Section 8(d) of the Act imposes on employers and un-
ions alike the duty to bargain in good faith over wages,

9 Thus, the majority is incorrect when it asserts that “the Respondent
did not even purport to be acting in support of its bargaining position.”
By attempting to reduce the costs imposed by the strike and to bolster
its ability to weather this strike and potential future strikes, the Re-
spondent acted in support of its bargaining position.
10 Durham denied on the stand that he made any such statements.
The judge credited Harland over Durham based on demeanor.
hours, and other terms and conditions of employment.
However, good-faith bargaining does not always produce
a collective-bargaining agreement, and resort to econom-
ic weaponry “is part and parcel of the system that the
Wagner and Taft-Hartley Acts have recognized.” NLRB
v. Insurance Agents’ International Union, 361 U.S. at
489. One well-recognized legitimate economic weapon
in the arsenal of employers is the right to permanently
replace economic strikers. Supra fn. 3 (collecting cases);
Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir.
1996) (invalidating, as in conflict with the NLRA, execu-
tive order barring federal government from contracting
with employers who hire permanent replacements);
Avery Heights, 343 NLRB 1301 (2004) (“[E]mployers
have a right [to hire permanent replacements] to ‘fight
back’ in the economic battle and the right to try to con-
tinue operations during a strike.”), vacated and remanded
on other grounds New England Health Care Employees
Union v. NLRB, 448 F.3d 189, 195 (2d Cir. 2006), on
remand 350 NLRB 214 (2007).
In Hot Shoppes, 146 NLRB at 805, the Board ex-
plained that an employer’s motive in hiring permanent
replacements “is immaterial, absent evidence of an inde-
pendent unlawful purpose.” In that case, a union threat-
ened to strike an employer when their negotiations failed
to produce an agreement. In response, the employer
made several threats to hire permanent replacements.
For example, on one occasion prior to the strike, manag-
er Bank told employee Dorsainvil that the current strike,
unlike a prior strike, would be “an economic strike and in
that kind of strike, everyone is going to be replaced per-
manently if they go on strike.” Id. at 812.
11
The em-
ployer’s decision to hire permanent, rather than tempo-
rary, replacements was made on advice of counsel:
“Counsel advised the management officials not only to
hire replacements but to hire them on a permanent ba-
sis.” Id. at 816 (emphasis in original). Relying on this
advice, the employer departed from its standard hiring
procedure and informed each replacement that he “was
being hired on a permanent basis.” Id. Shortly before
the strike commenced, the employer “boast[ed] to vari-
ous commissary employees that [the employer] had 40 or
so people already in hotels ready to take their places
. . . .” Id. at 814 (emphasis added). There is no sugges-
tion in the trial examiner’s extensive decision that Hot

11 A year earlier, in a separate case, the Board found that the Re-
spondent had committed unfair labor practices in connection with a
prior strike by the Union. Hot Shoppes, Inc., 133 NLRB 3 (1961). In
that case the trial examiner, whose decision the Board adopted, found
that the strike was an unfair labor practice strike and ordered the Re-
spondent to reinstate the strikers upon their application to return to
work.
AMERICAN BAPTIST HOMES OF THE WEST 13
Shoppes considered the possibility of retaining tempo-
rary replacements for the duration of the strike before
deciding to hire permanent replacements. Based on this
evidence—and quoting the very language from Erie Re-
sistor
12
on which my colleagues rely—the trial examiner
found that Hot Shoppes was motivated by a desire to
defeat the strikers’ right to immediate reinstatement, not
simply to continue operations during the strike’s dura-
tion, and that it thereby violated the Act.
On exceptions, the Board reversed the trial examiner
and dismissed the complaint. Importantly, the Board did
not disagree with the trial examiner’s factual finding,
amply supported by the record there, that Hot Shoppes
had hired the permanent replacements “pursuant to a
‘contrived scheme’ to defeat the economic strikers’ right
to reinstatement.” Id. at 805. Rather, the Board disa-
greed with the trial examiner’s legal premise that an em-
ployer may replace strikers only to preserve efficient
operation of the business. According to the Board, the
trial examiner’s legal premise was inconsistent with
Mackay Radio, which, “although referring to an employ-
er’s right to continue his business during a strike, states
that an employer has a legal right to replace economic
strikers at will.” Id. The Board construed Mackay Radio
and its progeny as holding that the motive underlying
permanent replacement “is immaterial, absent evidence
of an independent unlawful purpose,” id.
13
, and it reject-

12 373 U.S. at 221. Like the majority in the instant case, the trial ex-
aminer in Hot Shoppes viewed Erie Resistor as materially limiting the
holding of Mackay Radio. In this regard, the trial examiner quoted and
relied on the following language from Erie Resistor: “‘When specific
evidence of a subjective intent to discriminate or to encourage or dis-
courage union membership is shown, and found, many otherwise inno-
cent or ambiguous actions which are normally incident to the conduct
of a business may, without more, be converted into unfair labor practic-
es.’” Hot Shoppes, 146 NLRB at 835 (quoting Erie Resistor, 373 U.S.
at 227). The majority bases its expansive interpretation of “independ-
ent unlawful purpose” on this very language—disregarding the fact that
the Hot Shoppes Board rejected the trial examiner’s finding, based on
Erie Resistor, that Hot Shoppes’ hiring of permanent replacements
violated the Act. Indeed, the Hot Shoppes Board expressly distin-
guished Erie Resistor. 146 NLRB at 805 fn. 7.
13 As noted above, in support of its construction of Mackay Radio,
the Board cited American Optical Co., 138 NLRB at 681. In American
Optical, the Board, adopting the trial examiner’s decision, categorically
stated that “[a]n employer’s lawful right during a strike called for eco-
nomic reasons to operate his business by hiring employees permanently
to replace strikers is not challengeable.” 138 NLRB at 688 (emphasis
added). The majority finds American Optical “not helpful” because the
employer there permanently replaced employees to compel the union to
accede to its bargaining proposals, and they contend that “this is not a
case in which the employer acted in support of its bargaining position.”
I believe the majority’s attempt to distinguish American Optical is
unconvincing. An employer (such as the Respondent) who hires per-
manent replacements to counter the strike weapon, wielded by the
union to pressure the employer to abandon its bargaining position, is
supporting its bargaining position. Cf. Central Illinois Public Service
ed the trial examiner’s conclusion that Hot Shoppes’ mo-
tive constituted such an independent unlawful purpose.
Id. (“[W]e reject the Trial Examiner’s conclusion that the
plan to replace the economic strikers here was itself im-
proper.”).
In four ways, the Hot Shoppes decision provides sub-
stantial guidance regarding the Board’s standards gov-
erning permanent replacements.
First, the rule of Hot Shoppes is that the employer’s
motive is irrelevant. The exception to that rule is where
the employer has an “independent unlawful purpose.”
Obviously, any reasonable interpretation of Hot Shoppes
must keep the rule the rule, and the exception the excep-
tion.
14

Second, the Board in Hot Shoppes—in addition to re-
lying on Mackay Radio, supra—cited another case,
American Optical Co., 138 NLRB at 689, for the propo-
sition that regardless of motive, “an employer has a legal
right to replace economic strikers at will.” Hot Shoppes,
146 NLRB at 805. The Board cited with approval the

Co., 326 NLRB at 932 (“[I]t makes little sense to say that the lockout
was caused by the [union’s] inside game strategy rather than by the
respective bargaining positions of the parties.”).
Supreme Court precedent supports the irrelevancy of an employer’s
motive in hiring permanent replacements. In Belknap v. Hale, 463 U.S.
491 (1983), the Supreme Court cited Hot Shoppes and quoted the pas-
sage in which the Board construed Mackay Radio as holding that the
motive for hiring permanent replacements is irrelevant. Id. at 504 fn. 8.
“There are no cases in this Court that require a different conclusion,”
the Court stated. Id. Significantly, the Court emphasized that Erie
Resistor, in which my colleagues place such stock, involved a different
issue—”an offer of super-seniority to replacements”—and that the Erie
Resistor “opinion was careful to distinguish cases not involving that
element.” Id. Thus, Belknap v. Hale substantially undermines the
majority’s view that the holding of Mackay Radio was limited or modi-
fied by Erie Resistor. The Court rejected a similar effort to “expand
Erie Resistor” in Trans World Airlines, Inc. v. Independent Federation
of Flight Attendants, 489 U.S. at 436–438.
The majority distorts my position. They assert that, under my ap-
proach, “granting superseniority to nonstrikers, as in Erie Resistor,
would have been lawful because it was related to the strike.” But the
fact that a prohibited tactic is related to a strike does not lift the prohibi-
tion. The granting of superseniority to nonstrikers or crossovers is a
prohibited tactic. The permanent replacement of economic strikers is a
recognized, legitimate economic weapon.
14 S&F Market Street Healthcare LLC v. NLRB, 570 F.3d 354, 361
(D.C. Cir. 2009) (court rejects Board exception that would improperly
“swallow the rule” that predecessor employment terms are nonbinding
on successor employers); NLRB v. Great Atlantic & Pacific Tea Co.,
340 F.2d 690, 694 (2d Cir. 1965) (court rejects Board finding that
layoffs were “inherently” discriminatory because it “effectively reads
the required showing of ‘motivation’ out of the statute”; court reasons
that the “exception . . . cannot swallow the rule”); Tennessee Shell Co.,
212 NLRB 193, 196 (1974) (Board rejects arguments for more expan-
sive employer waivers of secret ballot elections because otherwise the
“exception might well swallow up the rule”), rev. denied mem. 515
F.2d 1018 (D.C. Cir. 1975).
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
findings of the trial examiner in American Optical, who
stated:

I deem wholly without merit the contention that the Re-
spondent violated Section 8(a)(5) of the Act by replac-
ing economic strikers as a means of forcing the Union
to accede to its bargaining proposals. If the Respond-
ent had a lawful right to operate its business by replac-
ing its striking employees, which I found it had, Section
8(a)(5) is not violated merely because the clear effect of
this action was to weaken the Union’s bargaining posi-
tion and to make it more amendable [sic] to acceptance
of the Respondent’s proposals. This was no more un-
lawful than would have been the successful conduct of
the strike of the Union to weaken the position of the
Respondent and thus to wring from it the concessions
demanded by the Union.
15

Third, the Board in Hot Shoppes distinguished two
other cases—Cone Brothers Contracting Co.
16
and NLRB
v. Erie Resistor Corp.
17
—which, according to the Board,
did “not lend themselves to an analogy to the situation
involved in the instant case.” Both cases involved egre-
gious employer misconduct that clearly went beyond
merely hiring replacement employees. In Cone Brothers,
the employer discriminatorily gave certain employees job
assignments at a location where the employees were re-
quired to cross a picket line erected by one union (the
Operating Engineers), and when the employees predicta-
bly refused to cross the picket line, the employer desig-
nated them “quits” so they would be ineligible to vote in
a scheduled representation election involving a different
union (the Teamsters).
18
In Erie Resistor, the employer
unlawfully gave replacement employees and returning
strikers a 20-year “super-seniority” credit, which effec-
tively guaranteed that striking employees—unless they
abandoned the strike—would always be laid off first.
19

15 American Optical Co., 138 NLRB at 689 (emphasis added).
16 135 NLRB 108 (1962), enfd. 317 F.2d 3 (5th Cir.), cert. denied
375 U.S. 945 (1963).
17 373 U.S. 221 (1963).
18 135 NLRB at 116–117, 127 fn. 29, 135–141. According to the
Board, this was a “scheme of placing [the] employees . . . in the posi-
tion of either crossing the picket line . . . or being placed in a ‘quit’
status,” and the Board concluded that the employer “constructively
discharged these employees for the purpose of discouraging union
membership in violation of Section 8(a)(3) and (1) of the Act.” Id. at
109. The Board upheld the findings of the trial examiner, who con-
cluded the employer “acted throughout with discriminatory intent to
utilize the shibboleth of Prestressed’s picket line, not only to expose
union adherents, but to disqualify them as quits from voting in the
coming election.” Id. at 140.
19 The 20-year super-seniority credit was defined as “20 years’ addi-
tional seniority both to replacements and to strikers who returned to
work, which would be available . . . for credit against future layoffs.”
373 U.S. at 223.
According to the Supreme Court in Erie Resistor, even
the Board recognized the “permanent replacement” of
striking employees was “proper under Mackay.”
20
Simi-
larly, the Court likewise held: “We have no intention of
questioning the continuing vitality of the Mackay rule,
but we are not prepared to extend it to the situation we
have here.”
21

Finally, when the Board in Hot Shoppes referred to a
possible “independent unlawful purpose” (as an excep-
tion to the general rule permitting employers to hire per-
manent replacements without regard to motive), the
Board cited Cone Brothers. Especially in conjunction
with the other cases described above, the Board’s refer-
ence to Cone Brothers reinforces two propositions: (i)
the Board in Hot Shoppes meant to leave undisturbed the
overriding principle that the hiring of permanent re-
placements is lawful without regard to motive, and (ii) an
“independent unlawful purpose” could exist only if the
employer had some unlawful objective involving some-
thing other than the hiring of permanent replacements
and the parties’ bargaining relationship. As explained
above, in Cone Brothers the employer gave discriminato-
ry job assignments to employees to force them to refuse
to cross one union’s picket line so the employer could
designate them as “quits” and later claim they were ineli-
gible to vote in a different union’s representation elec-
tion.
22

These cases demonstrate that the Hot Shoppes “inde-
pendent unlawful purpose” exception is not triggered by
an employer’s desire to retaliate against union economic
warfare with legitimate economic weapons of its own,
even if the employer wants to teach strikers a lesson
about a strike’s lawful consequences. Rather, an “inde-
pendent unlawful purpose” requires the General Counsel
to prove that permanent replacements were calculated to
accomplish an unlawful purpose extrinsic to the parties’
bargaining relationship or unrelated to the strike itself.
My reading of Hot Shoppes is consistent with the
Board’s common understanding and customary usage of
the term “independent,” which means “not subject to
control by others” and “not requiring or relying on some-

20 Id. at 230.
21 Id. at 232.
22 Although the Board in Hot Shoppes cited Cone Brothers as an ex-
ample shedding light on the phrase “independent unlawful purpose,”
the Hot Shoppes citation begins with the introductory signal “cf.” See
Hot Shoppes, 146 NLRB at 805 fn. 10. This suggests the Board re-
garded Cone Brothers as helpful to an understanding of the phrase
“independent unlawful purpose,” but Cone Brothers was nonetheless an
imperfect illustration (no doubt because the alleged discriminatees were
not permanently replaced). The introductory signal “cf.” is used when
“[c]ited authority supports a proposition different from the main propo-
sition but sufficiently analogous to lend support.” Lopez-Rodriguez v.
Holder, 560 F.3d 1098, 1104 fn. 12 (9th Cir. 2009).
AMERICAN BAPTIST HOMES OF THE WEST 15
thing else: not contingent.”
23
Board law has adhered to
this definition—for example, when defining the term
“independent judgment” for Section 2(11) purposes as
“form[ing] an opinion or evaluation by discerning and
comparing data” while “free of the control of others.”
Oakwood Healthcare, Inc., 348 NLRB 686, 692–693
(2006) (emphasis added).
24
Also, “where [an administra-
tive law judge’s] credibility resolutions are not based
primarily upon demeanor . . . the Board itself may pro-
ceed to an independent evaluation of credibility.” J. N.
Ceazan Co., 246 NLRB 637, 638 fn. 6 (1979) (internal
quotations omitted; emphasis added). In this context, the
Board’s “independent” evaluation of credibility means
without relying on the judge’s analysis or determinations.
Likewise, the phrase “independent unlawful purpose” in
Hot Shoppes denotes an unlawful purpose “not contin-
gent” on matters associated with the strike. Accordingly,
to be unlawful under Hot Shoppes, the “independent”
purpose must relate to something other than the employ-
er’s sentiments and objectives concerning the strike it-
self.
My reading is also consistent with Mrs. Natt’s Bakery,
44 NLRB 1099 (1942). In that case, a union with ma-
jority support in a unit of bakers approached an employer
for the first time at noon on a Friday, presented a first
contract proposal, and threatened to strike if the employ-
er did not accept by 3:30 p.m. that day. The employer’s
owner asked to be given to the following Monday to con-
sider the union’s proposal. In response, the union, after
consulting with the employees, repeated that the employ-
ees would strike unless the employer signed by 3:30 p.m.
The employer’s owner then told the union’s organizer
that “the employees would lose their jobs if they went on
strike, and [the union organizer] undertook ‘to talk to the
boys again’” about possibly delaying the strike. Id. at
1108. Around 3:30 p.m., the employer’s owner ad-
dressed an assembly of employees. “He asked the em-
ployees to wait until Monday for his answer to the pro-
posed contract and warned them that they would be re-
placed if they went on strike without granting his re-
quest.” Id. The employees promptly struck. Making
good on his threat, the employer hired permanent re-
placements and refused to reinstate the strikers when the
union ended its strike approximately 6 weeks later.

23 Webster’s Third New International Dictionary 1148 (1971).
24 In this connection, the Board will not find Sec. 2(11) supervisory
authority to discipline unless the exercise of such authority “‘lead[s] to
personnel action[] without the independent investigation or review of
other management personnel.’” Lucky Cab Co., 360 NLRB No. 43,
slip op. at 2 (2014) (emphasis added) (quoting Franklin Home Health
Agency, 337 NLRB 826, 830 (2002)). In other words, an employee
only has authority to discipline where the issuance of such discipline is
not contingent on higher managerial review.
It was clear in Mrs. Natt’s Bakery that the employer
hired permanent replacements as an economic counter-
measure to its employees’ strike activity, not simply to
ensure efficient operation of the enterprise. Neverthe-
less, the Board dismissed allegations that the employer
had refused to bargain in good faith by threatening to
permanently replace the strikers and had discriminated
against the strikers by following through on his threat
and refusing to reinstate them upon the strike’s termina-
tion. Citing NLRB v. Mackay Radio & Telegraph Co.,
supra, the Board observed that an employer “may replace
employees participating in a purely economic strike,”
and explained that “[s]ince an employer may in such a
setting replace striking employees with impunity, it is not
unlawful for him to state such an intention.” Id. (empha-
sis added); see Matthew W. Finkin, Labor Policy and the
Enervation of the Economic Strike, 1990 U. ILL. L. REV.
547, 548 (1990) (explaining that the Board in Mrs. Natt’s
Bakery viewed permanent replacement “as a bludgeon in
a contest of economic strength” that is “unfettered by any
requirement of demonstrable business necessity or the
unavailability of less drastic means to resist the strike”).
25

I agree with the judge that the General Counsel failed
to prove that the Respondent hired permanent replace-
ments with an “independent unlawful purpose,” i.e., an
antiunion motive extrinsic or unrelated to the Union’s
strike activity. As noted above, the evidence indicates
that three motives drove the Respondent’s hiring of per-
manent replacements: (1) a desire to avoid the expense
of continuing to contract with Huffmaster to furnish tem-
porary replacements; (2) a desire to “teach the strikers
and the Union a lesson” so as to “avoid any future
strike”; and (3) a desire to enable itself to better weather
continued strike activity (if future strikes were not avoid-
ed) during the course of an ongoing labor dispute. These
motives are directly related to the strike, and they do not
reflect antiunion animus independent of the parties’ bar-
gaining relationship.
26
Both sides were actively engaged
in a contest of economic strength, and both used weapons
that Congress has chosen to protect.

25 The majority’s attempt to distinguish Mrs. Natt’s Bakery is un-
convincing. The employer in that case permanently replaced the strik-
ing employees precisely because they went out on strike: “Natt stated
that the employees would lose their jobs if they went on strike.” 44
NLRB at 1108. In other words, the employer permanently replaced the
strikers in retaliation against them for striking. And the Board held he
was free to do so “with impunity.”
26 I disagree with the majority’s assertion that Executive Director
Reynolds’s stated motive of improving the Respondent’s ability to
weather continued strike activity constitutes an “independent unlawful
purpose” unrelated to the strike. Reynolds was clearly contemplating
further strike activity during the course of a single, ongoing labor dis-
pute.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I believe the record fails to support my colleagues’
conclusion that the Respondent’s hiring of permanent
replacements involved an “independent unlawful pur-
pose” within the meaning of Hot Shoppes, based on a
motive to “retaliate against” or “punish” employees for
engaging in protected strike activity. The majority finds
an “independent unlawful purpose” existed based on
Attorney Durham’s “teach them a lesson” statement and
Executive Director Reynolds’s testimony that she
thought permanent replacements would likely “come to
work if there was another work stoppage.” In my view,
the majority’s holding suffers from several flaws.
First, as explained above, the majority’s views are ir-
reconcilable with Hot Shoppes, supra, which held that
permanent replacement undertaken to oppose strike ac-
tivity is lawful and that motive is irrelevant. Likewise, I
believe the majority’s views are contrary to the Board’s
careful analysis in Hot Shoppes—including its reliance
on Mackay Radio, Erie Resistor, American Optical, and
Cone Brothers, supra—which provides clear guidance
regarding the contours of the rule (making motivation
irrelevant) with only a limited exception (when there is
an “independent unlawful purpose”).
Second, motive ought to be irrelevant because the very
nature of economic warfare makes it virtually impossible
to distinguish self-preservation from antistrike motives in
hiring permanent replacements. As the Supreme Court
explained in NLRB v. Insurance Agents’ International
Union, 361 U.S. at 489, Congress fully expected, and
sanctioned, the use of economic weapons, including
permanent replacement.
27
Indeed, the structure of the
Act allows for a variety of permissible economic weap-
ons, each entailing different risks and potential conse-
quences, which the parties are free to select. Under the
majority opinion, the Board must attempt to divine
whether an employer, in hiring permanent replacements,
was acting based on economic self-interest or was in-
stead impermissibly retaliating based on a visceral hostil-
ity toward strike activity. This ignores the reality that—
when engaging in warfare, including economic war-
fare—the opposing camps intend to injure one another in
hopes of forcing the other side to surrender; and absent
surrender, one side or both may be annihilated. Given
these realities, I do not believe my colleagues can proper-
ly disfavor a particular economic weapon merely because
ill will may have existed when a party exercised its pro-

27 Numerous legislative attempts have been made to prohibit the use
of permanent replacements. See, e.g., Workplace Fairness Act, S. 55
103d Cong., 1st Sess. (1993). None of these initiatives has been enact-
ed.
tected right to use it.
28
In short, the Act contemplates
that some categories of economic weapons are permitted,
and some are not permitted. The majority invents an
additional prerequisite—the absence of strike-related
hostility—that effectively renders unavailable an eco-
nomic weapon that falls into the “permitted” category.
By doing so, my colleagues upend the Act’s structure
and contravene Supreme Court precedent recognizing
permanent replacement as a permissible economic weap-
on. See Mackay Radio, supra at 345.
29

Third, the majority’s holding today is contrary to
Board and court decisions that find the presence or ex-
pression of strong feelings does not render unlawful the
exercise of protected rights.
30
In Longview Furniture
Co., 100 NLRB 301 (1952), enfd. in relevant part 206
F.2d 274 (4th Cir. 1953), the Board stated:

It is common knowledge that in a strike where vital
economic issues are at stake, striking employees resent
those who cross the picket line and will express their
sentiments in language not altogether suited to the
pleasantries of the drawing room or even to courtesies
of parliamentary disputation. Thus, we believe that to
suggest that employees in the heat of picket-line ani-
mosity must trim their expression of disapproval to
some point short of the utterances here in question,
would be to ignore the industrial realities of speech in
a workaday world and to impose a serious stricture

28 Commentators have noted it would be virtually impossible to draw
a line between permissible and impermissible motives in hiring perma-
nent replacements. See Cynthia L. Estlund, Economic Rationality and
Union Avoidance: Misunderstanding the National Labor Relations
Act, 71 TEX. L. REV. 921, 952 (1993) (explaining that the rational
economic motives underlying permanent replacement “are not different
in kind from the motives that underlie a straightforward discrimination
discharge”); Julius G. Getman, The Protection of Economic Pressure
by Section 7 of the National Labor Relations Act, 115 U. PA. L. REV.
1195, 1204–1205 (1967) (“In short, an inquiry into the employer’s state
of mind in such situations [the hiring of permanent replacements]
would be difficult and the probable results equivocal. The Board, in
fact does not seek to evaluate the employer’s state of mind in order to
determine the legality of his conduct.”).
29 In arguing that a counter-strike motive constitutes an “independent
unlawful purpose,” the majority cites Movers & Warehousemen’s Assn.
of D.C. v. NLRB, 550 F.2d 962 (D.C. Cir. 1977). That case did not
involve hiring permanent replacements to counter a strike. Rather, it
involved a lockout undertaken in part to coerce a union to adopt a cer-
tain procedure for employee ratification of a contract offer—an internal
union matter and hence a nonmandatory subject of bargaining. The
court found the lockout unlawful based on the employers’ motive “to
interfere with, and thus injure, a labor organization in the exercise of its
own internal operating procedures.” Id. at 966. That case is obviously
distinguishable from this one.
30 NLRB v. Wire Products Mfg. Corp., 484 F.2d at 760; Central Illi-
nois Public Service Co., 326 NLRB at 930–931.
AMERICAN BAPTIST HOMES OF THE WEST 17
upon employees in the exercise of their rights under the
Act.
31

To the same effect, the Supreme Court stated in Linn v.
United Plant Guard Workers of America, Local 114, 383
U.S. 53 (1966) (holding that the NLRA does not preempt
defamation claims):

Labor disputes are ordinarily heated affairs; the lan-
guage that is commonplace there might well be deemed
actionable per se in some state jurisdictions. Indeed,
representation campaigns are frequently characterized
by bitter and extreme charges, countercharges, un-
founded rumors, vituperations, personal accusations,
misrepresentations and distortions. Both labor and
management often speak bluntly and recklessly, embel-
lishing their respective positions with imprecatory lan-
guage . . . . We note that the Board has given frequent
consideration to the type of statements circulating dur-
ing labor controversies, and that it has allowed wide
latitude to the competing parties.
32

Fourth, I believe the majority’s subjective standard
will effectively preclude many employers from using
permanent replacement as a legitimate economic weap-
on, contrary to Supreme Court precedent stretching back
almost to the enactment of the Wagner Act itself. Any
stray comment that reflects negativity towards strike par-
ticipants—whether made by an executive, manager or
supervisor—could create a risk of potentially ruinous
financial liability. The risk of such liability will no doubt
sharply curtail the lawful use of permanent replacement
as a legitimate economic weapon. Cf. Brendan Dolan,
Mackay Radio: If It Isn’t Broken, Don’t Fix It, 25 U.S.F.
L. REV. 313, 317–318 (1991) (asserting that fear of lia-
bility, contingent on whether the Board will find a strike
is economic in nature, “is enough to preclude many em-
ployers from even considering permanently replacing
employees on an across-the-board basis”). I believe such
a rearrangement of the balance of power between em-
ployers and unions is contrary to the Supreme Court’s
decisions in American Ship Building and Insurance
Agents.
33
I agree with the clear rule embraced by the

31 Id. at 304 (emphasis added).
32 Id. at 58–60 (emphasis added; citations omitted).
33 See NLRB v. Insurance Agents’ International Union, 361 U.S. at
497–498 (“[W]hen the Board moves in this area . . . it is functioning as
an arbiter of the sort of economic weapons the parties can use in seek-
ing to gain acceptance of their bargaining demands. . . . [T]his amounts
to the Board’s entrance into the substantive aspects of the bargaining
process to an extent Congress has not countenanced.”); American Ship
Building Co. v. NLRB, 380 U.S. at 317 (“Sections 8(a)(1) and (3) do not
give the Board a general authority to assess the relative economic pow-
er of the adversaries in the bargaining process and to deny weapons to
judge: the hiring of permanent replacements has an “in-
dependent unlawful purpose” only if undertaken for an
antiunion motive extrinsic to the strike. This is the only
reading of Hot Shoppes that avoids nullifying its central
holding (that motive is immaterial), and I believe this
interpretation is required by Supreme Court precedent
binding on the Board.
Fifth, as noted above, I disagree with the majority’s
finding that the facts in this case prove the Respondent
hired permanent replacements in order to “punish” strik-
ing employees. By hiring permanent replacements, the
Respondent was furthering its legitimate interest in coun-
tering the Union’s potent strike weapon. In my view, the
testimony by Executive Director Reynolds (that she be-
lieved permanent replacements would enhance Respond-
ent’s ability to weather the current strike and future
strikes during the ongoing labor dispute) reasonably re-
flects the fact that certain other measures (temporary
replacements or using nonunit personnel) are predictably
less effective in the face of potential recurring or inter-
mittent strikes. Along similar lines, Attorney Durham’s
comment (that hiring permanent replacements would
teach strikers “a lesson” in order to “avoid any future
strike”) does not reflect an unlawful motive, given that
the Act contemplates that parties will inflict economic
injury by resorting to permissible economic weapons,
one of which is the hiring of permanent replacements.
Every resort to economic leverage in response to a strike
tends to dissuade employees and their union from resort-
ing to the strike weapon again. I believe such an objec-
tive is lawful even in relation to potential future disputes,
because companies and unions typically have relation-
ships that span multiple negotiations over time; issues
such as commitment, resolve and credibility play a major
role in collective bargaining; and everyone understands
that the handling and resolution of issues in one round of
bargaining will predictably affect future negotiations.
Cf. Sociedad Espanola de Auxilio Mutuo Y Beneficencia
de P.R., 342 NLRB 458, 460, 463 (2004) (manager’s
statement that lockout was “reprisal” against union,
which had threatened to strike, did not establish that
lockout was unlawfully motivated), enfd. 414 F.3d 158
(1st Cir. 2005); Central Illinois Public Service Co., 326
NLRB at 928 (unreasonable to infer that lockout was
motivated by antiunion motivation from employer’s
statement that it “was not going to put up with this shit,”
i.e., the union’s “inside game” strategy of working to the
rule, which the Board assumed was protected). Again, it
bears emphasis that the Respondent here was exercising

one party or the other because of its assessment of that party’s bargain-
ing power.”).
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its own right to protect itself against the Union’s strike
weapon.
34

Finally, contrary to the majority’s suggestion, I do not
believe Avery Heights supports an expansive view of the
“independent unlawful purpose” exception. There, the
theory of the General Counsel’s case was that in hiring
permanent replacements, the Respondent sought to pun-
ish the strikers and break the union’s solidarity by replac-
ing a majority of the unit employees—motives that con-
stituted an “independent unlawful purpose,” according to
the General Counsel. 343 NLRB at 1305. The General
Counsel urged the Board to infer such motive from the
fact that the employer had concealed its hiring from the
union, as well as documentary and testimonial evidence
purportedly showing that the employer sought to break
the union. The Avery Heights Board did not hold that a
desire to punish the strikers and break the union’s soli-
darity constitutes an “independent unlawful purpose”
under Hot Shoppes. Rather, the Board found that the
General Counsel’s proof was insufficient to establish that
the Respondent harbored those motives.
Moreover, my colleagues are incorrect when they
claim that the Avery Heights Board did not take issue
with the judge’s conclusion that the unlawful motives
attributed to the employer would constitute an “inde-
pendent unlawful purpose.” To the contrary, the Board
expressly rejected the notion that a motive to “break the
union,” if proven, would make the hiring of permanent
replacements unlawful. “[E]ven assuming . . . that the
[r]espondent’s motive was to break the [u]nion’s soli-
darity in the economic battle,” the Board stated, “such an
objective is not unlawful.” 343 NLRB at 1307 (emphasis
added). Having found the evidence insufficient to estab-
lish “some kind of nefarious scheme to punish striking
employees by hiring permanent replacements,” id., the
Board did not have to reach the judge’s legal conclusion
that such a motive would be an “independent unlawful
purpose.” The Board cast doubt on the judge’s conclu-

34 The majority relies on two cases that I believe are completely in-
apposite—Controlled Energy Systems, Inc., 331 NLRB 251 (2000), and
Frank Leta Honda, 321 NLRB 482 (1996)—to support their claim that
finding the Respondent’s hiring of permanent replacements lawful
would “violate[] the most basic principles of the Act.” Although the
majority states “[i]t is axiomatic that an employer violates the Act when
it retaliates against employees for engaging in union or other protected
activity, and that the right to strike is fundamental,” neither Controlled
Energy nor Frank Leta Honda involved an employer who responded to
a strike by hiring permanent replacements. In Controlled Energy, the
employer discharged five employees for engaging in an unfair labor
practice strike. In Frank Leta Honda, after an economic strike ended,
the employer disciplined former strikers and adversely changed their
working conditions in retaliation for their strike activity. Discharge,
discipline, and adverse changes to working conditions are not legiti-
mate economic weapons; hiring permanent replacements is.
sion, however, by finding the hiring of permanent re-
placements lawful even if it “persuaded some employees
that further striking was unwise.” Id. Such persuasion
was plainly what attorney Durham had in mind when he
referred to teaching the strikers a lesson because the Re-
spondent “wanted to avoid any future strike.” Thus, the
Board’s decision in Avery Heights supports my finding
that the Respondent’s hiring of permanent replacements
was lawful.
35

In sum, I disagree with the majority’s interpretation of
“independent unlawful purpose,” which reads “inde-
pendent” out of the phrase entirely. In so doing, I be-
lieve the majority effectively overrules the central hold-
ing of Hot Shoppes, which renders irrelevant an employ-
er’s motive in hiring permanent replacements. More
fundamentally, I disagree with my colleagues’ decision
because they effectively invalidate an economic weapon
that the Supreme Court declared lawful more than 75
years ago.
As noted previously, I do not favor the hiring of per-
manent replacements any more than I favor potentially
ruinous strikes, lockouts and other economic weapons
that Congress affirmatively protected when enacting the
National Labor Relations Act. In my view, the majority
gives inadequate consideration to the fact that Congress
has made the decision to protect this weaponry, and the
Board may not—at its initiative—fundamentally change
the manner in which Congress has chosen to balance the
interests of employees, unions and employers. Insurance
Agents, 361 U.S. at 497; American Ship Building, 380
U.S. at 316. I believe the majority’s decision improperly
changes the balancing of interests that Congress struck in
the Act, as articulated by the Board in Hot Shoppes and
as recognized by the Supreme Court in Mackay Radio,
American Ship Building, Insurance Agents, and other
cases.
For these reasons, as to the above issues, I respectfully
dissent.
36

35 As noted by the majority, on appeal, the Second Circuit held that,
absent an adequate explanation, the employer’s secret hiring of perma-
nent replacements implied “an illicit motive to break a union.” 448
F.3d at 195. The court remanded the case to the Board to consider
whether the record contained any evidence of such an explanation. On
remand, the Board applied the court’s decision as the law of the case
and found that the record failed to provide an alternative rationale for
the secret hiring, and thus the Board accepted the court’s conclusion
that the respondent had acted with the aforementioned illicit motive.
36 For the reasons stated by my colleagues, I agree that the complaint
is properly before the Board for disposition. I also concur in the major-
ity’s remaining findings, including its finding that the Respondent
violated Section 8(a)(5) and (1) by refusing to furnish to the Union the
names and addresses of the permanent replacements. I disagree with
the Board’s current “clear and present danger” standard and would
adopt the Seventh Circuit’s “totality of circumstances” standard, under
AMERICAN BAPTIST HOMES OF THE WEST 19
Dated, Washington, D.C. May 31, 2016

______________________________________
Philip A. Miscimarra, Member

NATIONAL LABOR RELATIONS BOARD

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL 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 engage in surveillance or create the im-
pression of surveillance of our employees’ union activi-
ties.
WE WILL NOT disparately enforce our access rule (Rule
33) by evicting off-duty employees engaged in union
activity from the facility.
WE WILL NOT refuse to reinstate, or delay the rein-
statement of, striking employees, who were permanently
replaced with an independent unlawful purpose, and who
made an unconditional offer to return to work.
WE WILL NOT fail and refuse to furnish the Union with
the names and addresses of the permanent replacement
employees who were hired from outside the organization.
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 offer all of the strikers who have not yet been
reinstated full reinstatement to their former jobs, dis-
charging, if necessary, any employees currently in those

which legitimate concerns about harassment and safety of replacements
are balanced against the requesting union’s legitimate need for this
information. Chicago Tribune v. NLRB, 965 F.2d 244 (7th Cir. 1992).
Under this standard, an employer does not act unlawfully if it offers
reasonable alternatives to accommodate the union’s need. In the pre-
sent case, however, I would affirm the judge’s finding of a violation
even under the Seventh Circuit’s standard.
positions or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges previously enjoyed.
WE WILL make all of the former strikers whole for any
loss of earnings and other benefits suffered as a result of
our refusal to reinstate them on August 7, 2010.
WE WILL compensate employees entitled to backpay
under the terms of the Board’s Order for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region
32, within 21 days of the date the amount of backpay is
fixed, wither by agreement or Board order, a report allo-
cating the backpay award 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 reinstate the former strikers, and within 3
days thereafter, notify the strikers in writing that this has
been done and that the failure to reinstate them will not
be used against them in any way.
WE WILL provide the Union with the names and ad-
dresses of the permanent replacement employees who
were hired from outside sources.

PIEDMONT GARDENS

The Board’s decision can be found at
www.nlrb.gov/case/32–CA–025247 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.

Jennifer E. Benesis, Esq., for the Acting General Counsel.
David S. Durham, Esq. and Gilbert J. Tsai, Esq. (Howard Rice
Nemerovski Canady Falk & Rabkin), of San Francisco, Cal-
ifornia, for the Respondent.
Bruce A. Harland, Esq. and Manuel A. Boigues, Esq. (Wein-
berg, Roger & Rosenfeld), of Alameda, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. The unfair
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
labor practice charges in Cases 32–CA–25247 and 32–CA–
25248 were filed by Service Employees International Union,
United Healthcare Workers–West (the Union), on July 26,
2010; the unfair labor practice charges in Cases 32–CA–25266
and 32–CA–25271 through 32–CA–25308 were filed by the
Union on August 9, 2010; and the unfair labor practice charge
in Case 32–CA–25498 was filed by the Union on November
30, 2010.1 After completion of investigations, on March 24,
2011, the Regional Director for Region 32 of the National La-
bor Relations Board (the Board), issued a consolidated com-
plaint alleging that American Baptist Homes of the West d/b/a
Piedmont Gardens (Respondent), engaged in, and continues to
engage in, unfair labor practices within the meaning of Section
8(a)(1), (3), and (5) of the National Labor Relations Act (the
Act). Respondent timely filed an answer, essentially denying
the commission of the alleged unfair labor practices. Pursuant
to a notice of hearing, the above-captioned matters came to trial
before the above-named administrative law judge in Oakland,
California, on May 16 through 18, 2011. At the said hearing,
all parties were afforded the right to call witness, to examine
and to cross-examine witnesses, to present any relevant docu-
mentary evidence, to argue their respective legal positions oral-
ly, and to file posthearing briefs. Said briefs were filed by
counsel for the Acting General Counsel, in which counsel for
the Union joined, and by counsel for Respondent and have been
carefully considered. Accordingly, based upon the entire rec-
ord herein, including the posthearing briefs and my observation
of the credibility of the several witnesses,2 I make the following
FINDINGS OF FACT
JURISDICTION
At all times material herein, Respondent, a State of Califor-
nia nonprofit corporation, has been engaged in the operation of
continuing care retirement communities, including a facility
located in Oakland, California, known as Piedmont Gardens
and a separate facility also located in Oakland known as Grand
Lake Gardens. During the 12-month period immediately pre-
ceding the issuance of the instant consolidated complaint,
which period is representative, Respondent, in the normal
course and conduct of its above-described business operations,
derived gross revenues in excess of $50,000 and purchased and
received goods and services, valued in excess of $5000, which
originated outside the State of California. Respondent is now,
and has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
Labor Organization
The Union is now, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of the
Act.

1 Unless otherwise stated, all events herein occurred during 2010.
2 As is not unusual in these types of proceedings, some of the wit-
nesses, including an attorney who should have known better, failed to
heed my warning regarding the consequences of not testifying truthful-
ly.
The Issues
The consolidated complaint alleges that, on June 17 and 18,
Respondent engaged in acts and conduct violative of Section
8(a)(1) of the Act by enforcing its no-access rule in such a
manner as to require off-duty employees, who were present at
the Piedmont Gardens facility to participate in a union strike
authorization vote, to leave the said facility and by, through the
actions of a security guard, engaging in surveillance of its em-
ployees, who were participating in a union strike authorization
vote being conducted at the Piedmont Gardens facility. The
consolidated complaint next alleges that, from August 2
through 7, certain of Respondent’s bargaining unit employees,
represented for purposes of collective bargaining by the Union,
engaged in a concerted work stoppage and strike, caused in part
by the aforementioned unfair labor practices, against Respond-
ent; that, upon the conclusion of their concerted work stoppage
and strike on August 7, all of said bargaining unit employees
made unconditional offers to return to their former positions of
employment; and that Respondent engaged in acts and conduct
violative of Section 8(a)(1) and (3) of the Act by belatedly rein-
stating 13 and refusing to reinstate 25 of said bargaining unit
employees. Finally, the consolidated complaint alleges that
Respondent engaged in acts and conduct violative of Section
8(a)(1) and (5) of the Act by falling and refusing to provide the
Union with the names and contact information for permanent
strike replacement employees, which information is necessary
and relevant to the Union’s performance of its duties as the
exclusive collective-bargaining representative of Respondent’s
bargaining unit employees.
In its defense, Respondent denies the commission of the al-
leged unfair labor practices. Further, Respondent alleges that
the concerted work stoppage and strike, in which certain of its
bargaining unit employees engaged, was motivated by econom-
ic concerns and that certain of said employees, who were de-
nied reinstatement at the conclusion of the strike, were lawfully
permanently replaced. Finally, Respondent contends that, due
to valid security concerns, it lawfully refused to provide the
requested information to the Union.
The Alleged Unfair Labor Practices
The Facts
American Baptist Homes of the West, a California nonprofit
corporation, maintains a corporate office in Pleasanton, Cali-
fornia, and operates continuing care facilities,3 such as Re-
spondent, and affordable housing communities4 throughout the
western United States including in California, Washington,
Nevada, Arizona, and Idaho. Respondent’s facility, which is
located on 41st Street in the Piedmont section of Oakland, Cali-
fornia, provides three levels of care—independent living, as-
sisted living, and skilled nursing5—for its 300 current residents

3 A continuing care facility is a community where residents pay a
substantial upfront fee for receipt of increased levels of care as needed.
4 An affordable housing community only supplies housing for resi-
dents.
5 Respondent’s independent living residents come and go as they
please, live in apartments, and pay a monthly fee to Respondent. There
is no level of care for these individuals, and Respondent provides a
AMERICAN BAPTIST HOMES OF THE WEST 21
and consists of three buildings connected by an inner, enclosed
corridor. One, called the Crestmont building, is 16 floors high
and consists entirely of apartments for independent living resi-
dents. The middle building, called the Garden Terrace build-
ing, is a three-story structure with the first floor being a public
area and the second and third stories housing Respondent’s
skilled nursing area. The third building, called the Oakmont
building, consists of 11 floors with the first through the seventh
comprised of apartments for independent living residents, the
eighth through the tenth floors housing the assisted living resi-
dents, and the eleventh floor being a public area. The main
dining room is on the ground floor of the Garden Terrace build-
ing. There are two entrances to Respondent’s facility—the
main entrance is off 41st Street and a side entrance is off Linda
Street, and employees and visitors may enter and exit through
either entrance.6 Gayle Reynolds has been Respondent’s exec-
utive director and its highest ranking management official since
May 1, 2009, and the various department heads report directly
to her. The record establishes that since, at least, March 1,
2007, the Union has been the majority collective-bargaining
representative of various classifications of Respondent’s work-
ers including its dietary department employees, nursing de-
partment employees, housekeeping department employees,
resident services employees, and general/administration em-
ployees, among others, that there are approximately 100 bar-
gaining unit employees, and that the collective-bargaining
agreement between Respondent and the Union expired by its
terms on April 30.7
In January, in anticipation of bargaining for a successor col-
lective-bargaining agreement, the bargaining unit employees
selected an 8- to 10-member bargaining committee,8 and nego-

package of mainly hospitality-type services for them and access to a
wellness clinic. For meals, these residents’ apartments contain kitchens
in which they may eat their meals. Respondent maintains a main din-
ing room, which is reserved for independent living residents and serves
all meals.
Respondent’s assisted living residents, who live in private rooms, al-
so may come and go as they please but require some assistance in car-
ing for themselves. In this regard, Respondent provides supportive
services including help in dressing, bathing, and more frequent house-
keeping and maintains a licensed vocational nurse and a certified nurs-
ing assistant on each work shift for said individuals if needed. The
assisted living residents have their own dining room but also may use
the main dining room.
Respondent’s skilled nursing residents require 24-hour nursing care
and reside in rooms for two or four people. They are either bedridden
or not. If not bedridden, said residents may leave Respondent’s facility
in the care of a family member but the director of nursing must be
advised of such. Respondent also provides rehabilitation services for
those individuals who are recovering from surgery. The skilled nursing
residents are permitted to take meals in the main dining room.
6 A receptionist is stationed at the 41st Street doorway from 8 a.m. to
midnight, and a security guard is stationed there during the night. A
security guard is stationed at the Linda Street doorway throughout the
day.
7 The expired collective-bargaining agreement was effective from
March 1, 2007, through April 30, 2010, and there is no record evidence
of any prior bargaining history between the parties.
8 The members of the bargaining committee team were Sheila Nel-
son, Sanjanette Fowler, Dapuma Miller, Pierre Williams, Faye East-
tiations on a successor contract commenced in February. Dur-
ing the parties’ bargaining, which consumed 18 or 19 negotiat-
ing sessions and ended on July 9 without an agreement, Re-
spondent’s attorney, David Durham, and Myriam Escamilla,
the Union’s nursing home division director, were the chief
spokespersons. As the bargaining progressed from February to
early May, certain issues emerged as impediments to a final
agreement. The bargaining unit employees’ main concern was
the discharge and discipline section of the expired agreement,
particularly the provisions regarding Respondent’s right to
discharge employees for violating its rules and policies and its
right to adopt or amend said rules and policies “in its sole dis-
cretion.” In this regard, the Union objected to Respondent’s
seeming penchant for terminating union stewards or bargaining
team members for violations of its chart of infractions9 and
demanded that Respondent agree to implement a progressive
disciplinary system for such conduct. The latter constantly
rejected the Union’s proposals on discipline. Respondent’s
main concerns during the bargaining were the economic provi-
sions for the successor agreement—specifically the contractual
pension and health plans and wages. According to Reynolds,
“we proposed to eliminate the SEIU pension plan and replace it
with [a] 401(k) plan.” The Union wanted to continue with its
pension plan and rejected Respondent’s proposal. As to health
insurance coverage, the contract provided for a Kaiser plan,
which Respondent proposed to eliminate and substitute a
“health reimbursement” account plan. The Union wanted to
continue the contractual Kaiser plan, and rejected Respondent’s
substitute as the said plan’s deductible amounts were higher
than the existing Kaiser plan. As to wages, Reynolds testified
that Respondent had offered a “pool of money” for wages,
healthcare, and pension “so depending on what we spent on
pension and healthcare, that’s what we had remaining for wag-
es. So the wages could go up or down depending on what . . .
we were working with.” The Union rejected Respondent’s
proposal on wages and insisted on its own.
Reynolds was uncontroverted that, by early May, “the major-
ity [of] the conversation was about [the above] issues,” with
each party being adamant in support of its positions. Then,
prior to the scheduled May 12 bargaining session, Escamilla, on

man, Matilda Imbukwa, Reginald Jackson, Ebony Harper, and one or
two others.
The election of the bargaining committee was conducted in conjunc-
tion with a survey in which the bargaining unit employees were asked
to rank the issues, which each employee felt important for the bargain-
ing. Shop stewards, including Sheila Nelson, conducted the bargaining
committee balloting and distributed and collected the bargaining sur-
veys, all of which was done over a 2-day period in the employees’
break room, which is located on the first floor of the Oakmont building.
The record evidence is that employees and union officials utilize the
break room to conduct all union activities including informational
meetings, department meetings, grievance meetings, and other matters,
and the Union maintains a bulletin board there on which union litera-
ture is posted. The record evidence is that it is the only area of Re-
spondent’s facility in which employees are permitted to meet and dis-
cuss union affairs.
9 Respondent’s work rules and policies are set forth in its so called
chart of infractions, which is posted near the door to the employees’
break room.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
behalf of the Union, sent notice, pursuant to Section 8(g) of the
Act, to Respondent that “the members of [the Union] will
commence informational picketing at 2:30 pm on
. . . May 25 . . . and will continue such activity unless, and
until, a mutually agreeable resolution has been reached.” In
fact, Respondent’s employees picketed outside Respondent’s
facility during the afternoon of May 25, carrying signs reading
“no healthcare reductions,” “no takeaways,” “fair wages now,”
“pension now,” and similar language.
The bargaining continued in the same posture subsequent to
the May 25 picketing. Then, in early June, the Union and the
bargaining committee published a strike vote flyer, which was
posted on the bulletin board in the break room and copies of
which were available to all bargaining unit employees in the
break room. Said flyer was entitled “STRIKE VOTE” and read
“Let’s Show Management We Are United And Ready to Fight.
Management still wants to take away our pension, make us pay
a lot more for our health insurance and is offering a raise that’s
a joke. Our SEIU-UHW bargaining committee is recommend-
ing that we vote YES! to authorize a strike to show manage-
ment that we’re serious and won’t settle for anything less than
what we deserve.” Beneath the above message, the negotiating
committee requested that the bargaining unit employees vote,
“YES,” illustrating this with a checkmark in a box, announced
that the strike vote would be held on Thursday and Friday June
17 and 18, and set forth the times for the vote. At a bargaining
session on June 16, the Union submitted a counterproposal,
including the existing wage rates, which Respondent rejected.
On June 17 and 18, a union representative, Donna Mapp,
who was present for part of the first day and the entire second
day, with members of the employee bargaining committee help-
ing, conducted the strike authorization vote in the breakroom10
on the announced dates.11 Sheila Nelson, a day shift house-
keeper, a shop steward, and member of the bargaining commit-
tee, volunteered to come to Respondent’s facility and help with
the strike vote during each of the voting periods on the first day
of the voting—her day off.12 The voting occurred without inci-

10 According to Sheila Nelson, a shop steward for the Union and a
member of the bargaining committee, the decision was made to have
the vote in the break room as “it was the only place we can conduct
Union . . . business. That’s where the Union is supposed to report to
when they enter the building.”
The vote was a secret ballot election conducted throughout the 2
days with employees voting before or after their shifts or during break
periods. Each bargaining unit employee voted by marking his or her
ballot and depositing it into a sealed box. When each employee voted,
a bargaining committee member would cross the person’s name off a
list of bargaining unit employees’ names.
11 The ballot, on which bargaining unit employees cast their votes,
was created by the Union from an existing template. Employees were
asked to place a check next to one of two questions—”Yes, I authorize
the bargaining committee team to call a strike,” and “No I do not au-
thorize the bargaining committee team to call a strike.” On top of the
ballot are the words “Unfair Labor Practice Strike Vote”. As to these
words, Myriam Escamilla testified that “We always call for unfair labor
practice strikes.”
12 The voting periods were 6 to 8 a.m., 12 to 2 p.m., and 4 to 6 p.m.
dent during the morning and early afternoon voting periods.13
Then, according to Nelson, shortly before 3:00 and just prior to
the time when employees were required to punch in before
starting the afternoon shift,14 she and Matilda Imbukwa were
busy conducting the voting15 when she had cause to turn and
observed a facility security guard, identified as Francisco Pin-
to,16 sitting at a table 5 to 10 feet behind her. He was “holding
up a cell phone, [at eye level], and he was moving it slightly in
[my] direction” and “back and forth” to the left and then the
right. “So I stared at him, it seemed like about a minute . . . and
I was thinking what was he doing. So I looked into the direc-
tion that he had the cell phone pointed to, and it was right there
where the people were voting. It was like right next to me.”17
After a minute, but no longer than two, of staring at the guard
and while he continued to hold the cell phone up, she turned
back to helping with the voting. Asked what she believed the
guard was doing, Nelson said, “I believed that he was videotap-
ing the people in the room that was voting, and I thought that
maybe he was going to use it to get somebody fired.”
Matilda Imbukwa, who worked for Respondent as a certified
nurse assistant from October 2006, through April 2011, when
she was laid off for “reasons being that I was not doing my
duties as obligated to,” testified that, as a member of the bar-
gaining committee, she helped on the “second day” of the strike
vote. According to Imbukwa, who was scheduled to begin
working at 3 p.m., she arrived at Respondent’s facility at
1:00,18 and “I . . . went to the break room, and I met with Sheila
Nelson and was assisting her with the strike vote.” In this re-
gard, employees would come into the break room and she and
Nelson gave them ballots on which they would mark off
whether they wanted to authorize a strike. Imbukwa testified
that, as she entered the break room, “there were a few other
employees together with the security guard.” She immediately
noticed the guard as “he was dressed in his uniform and it had a
badge on it and I knew it was him.” Nevertheless, as the voting
was on-going, she did not take much further interest in him
except to notice that Nelson “was staring at him . . . on and off

13 Asked if any nonbargaining unit employees came into the break
room during the afternoon, Nelson testified that, at approximately
12:30, Yuri Flores, an HR person and the assistant to the HR director,
Lynn Morganroth, entered the room and asked her if she had seen Sher-
rita _____, an employee who had recently been terminated. They
spoke, and Yuri left the break room.
14 The timeclock is located next to the break room.
Nelson testified that it was a busy time in the break room as employ-
ees were there either on breaks or prior to the start of their work shift.
15 I note that Nelson must have been incorrect about the time as the
early afternoon voting period ended at 2 p.m.
16 Nelson failed to notice the security guard when he entered the
break room. Asked who is allowed to use the break room, Nelson
testified, “All of the employees are allowed to use the break room. And
the guards do come in there sometimes,” eating their lunch.
17 Nelson believed she pointed out the security guard’s actions to
Imbukwa.
18 Imbukwa testified that she did not have permission to arrive 2
hours prior to the start of her work shift. However, “it was not the first
time” she came in early before her shift. “When you’re in your scrubs
and you’re scheduled to work that day, you can come in and . . . wait
for your time to . . . clock in.”
AMERICAN BAPTIST HOMES OF THE WEST 23
while passing out the [ballots].” Imbukwa further testified that,
approximately 30 minutes after arriving, “Sheila Nelson point-
ed out the security guard, and, when I looked at him, [h]e was
holding his phone up in a vertical position and just swinging it
from side to side. And then he placed it down, and then a few
minutes later he stood up and left.” Asked what she believed
the guard was doing, Imbukwa averred, “I thought he was tak-
ing a picture or video . . . of us to what we were doing.”19
Asked how long she observed the guard holding his cell phone
and swinging it from side to side, she stated, “It took approxi-
mately 30 to 45 minutes.” There is no record evidence that
bargaining unit employees, other than Nelson and Imbukwa,
observed the actions of the security guard.
Francisco Pinto, testified that he is employed by Guardsmark
as a security guard and that he has been assigned to work in
such a capacity at Respondent’s facility, working the swing
shift (4 p.m. to midnight) on Sunday through Tuesday and the
day shift on Thursday and Friday. He testified further that he is
stationed at the guard’s desk at the Linda Street entrance and
that his job duties mainly entail patrolling the entire facility
inside and outside, checking employees’ badges, and making
sure that visitors sign in prior to entering the interior of the
facility.20 According to Pinto, he takes a 30-minute lunchbreak
each workday in the break room. Asked what he does during
his break period, Pinto stated, “I usually don’t bring food, so I
just go in there and check my phone because I’m not allowed
[to do so] during business hours. So . . . I just go in there and
check my phone . . .” for “. . . my messages, missed calls, or
voicemail that I have.” He added that his phone is a Verizon
smartphone and described his method for checking for his mes-
sages and voicemails—“I just take it out and put it . . . on the
table and just check messages or . . . go through my phone.”
He then demonstrated this by holding the phone in front of his
face with his elbows on the witness table. Specifically on
June 17, according to Pinto, he worked the day or 8 a.m. to 4
p.m. shift and relieved the receptionist at the 41st Street en-
trance at noon. She returned “around 1:00” and, “after 1:00
pm,” he took his daily meal break. Pinto went to the break
room and, when he entered, “it was a lot of employees there,
and the Union rep, which is Donna Mapp,” was in the room.
He went to an empty table and, as always, checked his phone.
He said, “employees would stare” at him, but “. . . I wasn’t
really paying attention to what they were doing, but they were
with the Union rep.” Pinto denied taking any photographs with
his telephone that day, stated he has never done so, denied ever
engaging in surveillance of employees at Respondent’s facility,
and denied being directed to go to the break room that day and
take pictures of the employees’ activities.21 Finally, asked if he

19 According to Imbukwa, at least three employees voted while the
guard manipulated his cell phone.
20 Gayle Reynolds testified that Pinto “has the authority to stop [per-
sons] at the guard desk before they move beyond the entrance. . . . He
has the right to stop [someone] from coming through the door, as well.”
21 Gayle Reynolds corroborated Pinto’s assigned duties at Respond-
ent’s facility, denied that the guard’s duties included taking pictures of
employees, and denied that he was authorized to do so. Further, she
denied being aware of any pictures Pinto may have taken in the break
room.
told anyone what he observed in the break room, Pinto testified,
“Well, the guards . . . kind of talk to each other and say how
uncomfortable it is when we go to the break room,” and the
union representative is there. During cross-examination, asked
if, on June 17, he telephoned Lynn Morganroth, the HR direc-
tor, and left a message that the union representative was in the
breakroom, he first replied “I don’t know” but then responded,
“no.” Also, he denied leaving such a message with Morgan-
roth’s assistant, Yuri Flores. In this regard, I note that the Act-
ing General Counsel Exhibit 12 is a June 18 email message
from Flores to Morganroth in which the former informed Mor-
ganroth that “Yesterday . . . I had a message from the security
guard that a union rep was in the break room”
Sheila Nelson next testified that, approximately 15 minutes
after she noticed the security guard no longer in the break room
and while she was continuing to help with the vote, Gayle
Reynolds came into the break room and approached her. Ac-
cording to Nelson, Reynolds asked what she was doing. Nel-
son just replied “hello.” Reynolds then sat down next to Nel-
son “and said, ‘You’re not supposed to be here.’ And I said,
‘Why?’ She said, ‘because you’re not a rep.’ I said, ‘I’m a
Union leader, and I was instructed to be here by Myriam to help
with the strike vote.’” At that, Reynolds stood and said,
“‘You’re a Piedmont Gardens employee, and I just checked
with Lynn, and, according to the contract, you are not supposed
to be in the building when you’re not scheduled to work.’”
After telephoning Donna Mapp and asking Mapp to inform
Escamilla that Reynolds was “kicking” her out of the break
room, Nelson gathered the election materials and departed from
Respondent’s facility.22
Gayle Reynolds conceded ordering Nelson to leave Re-
spondent’s facility on June 17. According to Reynolds, that
afternoon, she received an email from Nelson’s supervisor,
stating that she was in the break room. Reynolds then decided
to investigate whether Nelson was still there and went to the
breakroom.23 Upon entering the room, she observed Nelson
“sitting at a table . . . with a laptop computer.” She then ap-
proached Nelson, “and I said, Sheila, you know you’re not

22 Nelson testified that there were three or four other employees in
the break room at the time.
23 Reynolds denied being aware that the Union was conducting a
strike vote on that day prior to entering the break room. She testified
that she did not know about this until “when I walked in the break room
and talked to Sheila.” She added that the Union had not asked permis-
sion to conduct such a vote. While testifying she goes into the break
room every week or every other week, Reynolds denied seeing the
strike vote notice posted on the Union’s bulletin board. In this regard,
she admitted seeing R. Exh. No. 10, a union flyer, entitled “we’ll do
whatever it takes to win a good contract,” posted on its bulletin board in
the break room after the strike vote. The flyer states that 95 percent of
the bargaining unit employees had approved a strike because, while the
employees’ bargaining committee had been working hard to achieve a
contract with fair raises and overall improvements, management had
“stalled and dragged things out.” Also, she admitted seeing R. Exh. 11,
another flyer posted on the same bulletin board after the strike vote.
Said flyer discusses the bargaining in detail; notes that 96 percent of the
bargaining unit had voted in favor of a strike; and states, “We are ready
and will not let management scare us into a cheap deal that only bene-
fits them.”
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
supposed to be here when you’re not scheduled to work; are
you scheduled to work? No, I’m not. So I asked her to leave.”
At this point, Nelson pointed to the ballot box, and “she told me
. . . what she was doing, I didn’t know what she was doing
before that.”
The record reveals that, besides Nelson, Respondent evicted
two other employees, who were assisting with the strike author-
ization vote, from its facility during the 2 days during which the
aforementioned voting was conducted—Geneva Henry and
Faye Eastman. Henry, who is employed by Respondent as a
certified nurse assistant in the skilled nursing area and who
works the night shift (11 p.m. to 7:30 a.m.), testified that she
volunteered to help Donna Mapp with the strike vote and that,
to do so, she arrived at Respondent’s facility on June 1724 at 6
p.m.25 and went directly to the break room. She further testi-
fied that, later in the evening as she and Mapp were preparing
to count the ballots, Gayle Reynolds came into the break room
and approached her. “She asked me, what are you doing here?
You’re not on schedule . . . why are you here? And I told her I
was taking care of Union business. She said, well, you’re go-
ing to have to leave. I said, but I’m taking care of Union busi-
ness. She said, well, you’re still going to have to go, and she
said you’re going to have to take care of your Union business
out there on the sidewalk. . . . I just got up, I didn’t say noth-
ing.”26
While Gayle Reynolds did not dispute demanding that Henry
leave Respondent’s facility, she contradicted Henry as to when
the incident occurred. According to her, “I did ask Geneva
Henry to leave but it was in the morning, not in the evening,
and it was the day after I had spoken to Sheila Nelson—“on
Friday.” In this regard, Reynolds was confronted with an email
she sent to Lynn Morganroth on June 17 at 6:39 p.m., in which
she wrote that two employees, one of whom was Geneva Hen-
ry, who were not scheduled to work, were at Respondent’s
facility earlier in the day and that their respective supervisors
wanted to know the appropriate discipline for them. Notwith-
standing the foregoing, Reynolds, who claimed not to recall
“what generated this e-mail,” and denied it concerned her con-
versation with Henry, insisted that “I asked Geneva to leave the
day after I talked to Sheila Nelson . . . “and that said conversa-

24 During cross-examination, Henry said the night, during which she
helped with the strike vote was the last night of the voting.
25 Henry could not recall whether she was scheduled to work that
day.
26 While Henry was unable to remember whether or not she was
scheduled to work that night, she testified that she was habitually early
when working and would spend the time before her shift in the break
room. “I’ve been coming there early for years. I use the break room as
a regular routine,” arriving there between 6:30 and 7 pm. She does this
because “I don’t want to be out on the street late at night. . . . And I
would come in there early and go straight to the break room.” Until the
start of her shift, she would eat, read books, or listen to music. Accord-
ing to Henry, Gayle Reynolds was well aware that she would come in
early as “sometimes I would see her. . . . Everybody knew that I been
coming in there for years.
Reynolds conceded being aware that Henry would be inside the fa-
cility early and spent her time before clocking in inside the break room.
She had no problem with this as Henry did not want to be out on the
street late at night.
tion occurred “around” 8 a.m., and “I saw her in the break room
with another employee. I asked them if they had finished their
shifts and they said yes, and I said you’re not supposed to be
here; you need to leave.”27 When asked if the other employee,
whom she asked to leave the facility on June 18, was Faye
Eastman, Reynolds said, “I believe it was on Thursday, June
17th. It was the same time that Geneva was in the break room.
She and Faye were together.” On this point, she was confront-
ed with an email she sent to Morganroth on June 19 regarding
possible discipline for employees who were discovered inside
Respondent’s facility when not scheduled to be there. Reyn-
olds wrote, “I think we should do courtesy notices. We also
need to include Faye Eastman who was in the break room at
7:55 am on Friday morning. I asked her if she had clocked out
and she said `yes.’ I reminded her that she was not supposed to
be on the premises.” There is no mention of Henry in said
email. Upon viewing the latter email, Reynolds again insisted
that she observed Eastman and Henry together in the break-
room at the same time.
With regard to the evictions of Nelson, Henry, and Eastman
from Respondent’s facility, the record establishes that Re-
spondent’s chart of infractions work rule 33, which is quoted in
paragraph 7(a) of the consolidated complaint, is its rule, limit-
ing access to its facility. Said rule reads:

Employees may not clock-in for duty before their shift begins,
nor are they to remain on the grounds after the end of their
shift, unless previously authorized by their supervisor. Em-
ployees must have prior supervisor authorization before work-
ing/incurring overtime.

There is no dispute, and Respondent admitted, that, in main-
taining said work rule, it has allowed off-duty employees, in-
cluding shop stewards, to enter its facility under certain circum-
stances including to pick up paychecks or with its permission
and to participate in grievance meetings and disciplinary meet-
ings.. In addition to these instances, Sheila Nelson testified
that, in her capacity as a shop steward, she often conducted
union-related business with other employees or met with union
representatives or other shop stewards in the breakroom prior to
the start of her work shift, after the conclusion of her shift, and
on her days off. With regard to her practices as a shop steward,
she testified that, while her work shift normally started at 7
a.m., “I came in quite often early. Whether it was to pass out
flyers or surveys or talk to members . . . I was . . . early a lot of
times. I don’t remember how many times.” She added, “some
times I would come in at 6:30, a quarter to 7, any meetings that
I had with people would usually only last about 15 minutes
before my scheduled time or after work.” Nelson recalled two
meetings with union agents or other shop stewards prior to the
start of her shift and four or five such meetings after the con-
clusion of her shift and testified that, whenever entering Re-
spondent’s facility early prior to her shift or remaining in the
building after her shift for union-related matters, she never was
questioned as to why she was inside Respondent’s facility and

27 She recalled that Donna Mapp was present and the two employees
were speaking to her. However, she denied being aware of what the
employees were doing.
AMERICAN BAPTIST HOMES OF THE WEST 25
never was informed she required Respondent’s permission.
Further, Nelson recalled entering Respondent’s facility on two
or three occasions for union-related meetings in the breakroom
on her days off. According to her, “as a Union member, we’re
supposed to enter the main entrance. We sign in and that’s
allowing either the security guard or the receptionist to know
[she] is in the building . . . they would ask me, are you work-
ing? I’d say no, I’m here to do Union business today. So he
would say okay and I know where to go. I proceed to the break
room.” Finally, Nelson denied ever asking permission to con-
duct union-related business inside Respondent’s facility on her
days off.28
Two other employees likewise testified with regard to access
to Respondent’s facility while off duty. Sanjanette Fowler,
who worked as dietary cook for Respondent and was a shop
steward, testified that she helped Union Agent, Donna Mapp,
conduct the bargaining committee selection voting and the
bargaining survey over the two-day voting period in January.
According to her, “the second day was actually my day off
. . . ,” and “I think I was there basically all day.” Asked how
she gained access that day, Fowler testified, “I came in the
normal 41st side. I sign in at the front desk, and I go to the
break room.” She added that she did not have permission to be
inside the building that day; however, no management official
questioned her presence that day. Fowler further testified that,
on her days off, there were “numerous times” when she would
come to Respondent’s facility29 and be in the breakroom “giv-
ing members a regular update of what was happening . . . in
bargaining.” These visits would last “like two hours, two hours
or so” depending on how many people would be coming for
breaks, and she never requested permission to be inside the
building and never was asked to leave. Also, there were “nu-
merous times” on days off when she and Mapp attended griev-
ance meetings with Gayle Reynolds and Lynn Morganroth.
Matilda Imbukwa testified that she entered Respondent’s facili-
ty on June 17, 2 hours prior to the start of her work shift and
that she was not required to have Respondent’s permission in
order to do so. “It was not the first time” she came in early
before her shift. “When you’re in your scrubs and you’re
scheduled to work that day, you can come in and . . . wait for
your time to . . . clock in.” She added that she would always
arrive an hour early before her shift and that no supervisor ever
informed her she was not allowed to do so.
Asked how chart of infractions rule no. 33 is enforced, Gayle
Reynolds testified “if I’m made aware that somebody’s in the
building who’s off schedule, then I will go and find out why
they’re in the building. But we don’t generally police the em-
ployees; we expect them to follow the rules.”30 In this regard,

28 During cross-examination, Nelson expanded the number of times
she had been inside Respondent’s facility on her days off for union-
related matters to 20 or 30 times. However, she added that most of
these were for grievances or for disciplinary meetings when asked to be
present by management.
29 Fowler would always sign the sign-in sheet upon entering Re-
spondent’s facility.
30 Asked if prior to June 2010, she ever enforced Respondent’s ac-
cess policies by demanding that an employee leave the building, Reyn-
olds conceded, “I can’t think of any specific instance.”
she stated she had been unaware that, other than for grievance
meetings, Nelson and Fowler had regularly entered and per-
formed union business inside Respondent’s facility on their
days off. Finally, I note that the above work rule does not men-
tion off-duty employees’ access to Respondent’s facility on
their days off and that Respondent itself was uncertain as to
whether Nelson or Henry, in fact, acted in violation of rule no.
33. Thus, on June 17, Reynolds was forced to consult with HR
director Morganroth as to what work rule had been violated by
Nelson and Henry, and, at 7:30 p.m., Morganroth sent an an-
swering email to Reynolds, writing that rule 34, which concerns
visitor access to the facility, rather than rule 33 is the “closest
infraction” and “we have a practice of not permitting employ-
ees to be on premise without supervisor approval or business
with HR. I looked through the handbook and couldn’t find any
helpful language other than the visitor language.” In any event,
other than being evicted from Respondent’s facility, neither
Nelson, Henry, nor Eastman was disciplined for being inside
Respondent’s facility, while off duty, on either June 17 or 18.
The record evidence is that in excess of 90 percent of the
participating bargaining unit employees voted to authorize the
employees’ bargaining committee to call a strike.31 Further,
subsequent to the strike vote, given the language of the Union’s
poststrike authorization vote flyers, it appears that the bargain-
ing unit employees were becoming increasingly perturbed over
and frustrated with the on-going successor contract negotiations
and what they perceived as Respondent’s adamant and unac-
ceptable positions on the economic and language issues, which,
the employees believed, “only [benefitted] the company and not
us.” According to Sheila Nelson, with matters in this posture,
pursuant to the bargaining unit employees’ mandate, the bar-
gaining team32 reached its decision as to when the strike would
commence on July 9 during a bargaining session that day be-
fore a Federal mediator. This “occurred during a . . . caucus
. . . . The Employer was not in the room and the bargaining
team was discussing several things. We were discussing what
had happened at the strike vote with Gayle kicking me out of
the building and kicking a couple other people out of the build-
ing that day. And we were discussing the surveillance with the

Respondent offered evidence that an employee had once been ad-
vised she should not be in an area of the facility while not on the clock.
However, contrary to the events in these matters, the employee was
found in a work area, and Reynolds testified that it was a shop steward
who spoke to the employee and not a management official.
31 While the ballot, upon which the bargaining unit employees cast
their votes, may have had the words “unfair labor practice strike vote”
at the top, given Myriam Escamilla’s admission, said words appear to
have been nothing more than union boilerplate language. Moreover, of
course, the alleged unfair labor practices herein had not yet occurred at
the time of the printing of the ballots. Further, given the language of R.
Exh. No. 1, the union flyer establishing the strike vote, and R. Exh.
Nos. 10 and 11, union flyers published subsequent to the strike vote,
contract economic and language concerns seem to have been the only
motivating factors underlying the bargaining unit employees’ strike
authorization vote.
32 The bargaining committee members, who were in attendance at
the July 9 bargaining session were Sheila Nelson, Sanjanette Fowler,
Matilda Imbukwa, Faye Eastman, Pierre Williams, Dapuma Miller,
Yordanos Sega, and Gloria McNeal.
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
security. We were discussing that they weren’t willing to move
on the language that would . . . give the employees job security.
And Gayle and her union busting had been sending out memos
contaminating the workers. So we kind of looked at our op-
tions. We had some ULP’s already pending, and we . . . asked
Myriam if we could go on a ULP strike.”
More specifically, according to Nelson, “Sanjanette and my-
self, we talked about me getting kicked out of the building
. . . and the security guard. Matilda spoke about the security
guard also, the surveillance, and how we . . . would file charges
. . . for what he had done.”33 Then, “Gloria and some of the
people that had been there from the strike prior, because there
had been a strike [during] their last bargaining . . . so they were
talking about what happened with that. . . . They went on a one
or two-day strike and got locked out. . . . I think it was 2007
they were talking about. So we were talking . . . and . . . I was
asking Sanjanette . . . what are we going to do . . . because we
felt like we were being put under a lot of pressure. We were
frustrated . . . the members wanted to go on strike . . .” because
of the contract negotiations, and “. . . they had their strike vote
and so . . . it was on us, the bargaining team, to make a decision
to . . . do something.” Then, “. . . we asked if anyone felt that
they didn’t want to go on a strike vote, if anyone disapproved,
because we asked if anyone approved, we asked if anyone dis-
approves, can you raise your hand. Then, nobody raised their
hands. So we . . . asked Myriam if we could go on a . . . ULP
strike. . . . And that’s how we ended up going on strike.” Nel-
son concluded, saying it was after the caucus ended that Esca-
milla informed Respondent that the bargaining unit employees
would engage in a strike. Finally, during cross-examination,
after denying the reason the bargaining committee called a
strike was to place pressure upon Respondent to agree to con-
tract terms Nelson was confronted with her pretrial affidavit
wherein she stated, “The purpose of the strike is to put pressure
on the Employer to reach an agreement with the Union for a
new contract.” Notwithstanding her pretrial affidavit admis-
sion, Nelson insisted that the strike was “a ULP strike, and the
purpose . . . was to put pressure on the Employer.”
Sanjanette Fowler testified that “the whole bargaining team”
was involved in the strike discussions on July 9 and that “. . .
one issue . . . the team discussed was the surveillance of the . . .
security guard coming in the break room surveilling the strike
vote. . . . We [were]’ discussing . . . the contract language and
the way the management was treating the workers.” Asked if
anything else was mentioned, Fowler said, “that’s it.” As to
surveillance, “I remember Sheila was very upset when she was
inside the break room during the strike vote when the security
guard came inside there watching her during [the] strike vote.”
Concerning contract language, according to Fowler, “we just
wanted more language inside the contract that . . . would give
workers more job security,” including the portion “. . . where
the management could adopt and amend policies . . . whenever
they felt like it.” Also, they discussed management’s unfair

33 In fact, the unfair labor practice charge, relating to the alleged sur-
veillance or creating the impression of surveillance, is Case 32–CA–
25248, filed by the Union on July 26 or over 2 weeks subsequent to the
asserted strike vote.
treatment of employees including “. . . when we went back to
the facility and tried to talk to the workers . . . they threw us out
of the building.” Then, Fowler testified, “after we get finished
discussing all the things that was going on, we just came to the
conclusion that we just going to go ahead and go on strike.”
There was no formal vote, just a general consensus. After this
discussion, “we told [Escamilla] that the bargaining team had
come to the conclusion that we want a strike.”
During cross-examination, as to what the bargaining com-
mittee discussed during the caucus on July 9, Fowler denied
that they spoke about Respondent’s proposals on pensions,
health insurance, and wages or the Union’s proposal on em-
ployee discipline. Rather, “the discussion we talked about was
the unilateral changes . . . and the way the employees was being
treated and the contract language.”34 Asked if the reason for
the strike was that the negotiations had broken down, Fowler
said, “it could have been one of the reasons but that is not the
exact reason why we called the strike.” On this point, however,
she admitted telling a Board agent in her pretrial affidavit that
negotiations had not worked out, so we were on strike. Again,
denying that the purpose of the strike was to place pressure
upon Respondent to agree to the Union’s demands, she admit-
ted stating in her affidavit, “we began striking at the Piedmont
Gardens. . . . The purpose of the strike is to put bargaining
pressure on the Employer.” Then asked if the bargaining com-
mittee sought authorization from the bargaining unit employees
to call a strike in order to put pressure on Respondent, Fowler
conceded saying this in her affidavit. Finally, Fowler admitted
that, on July 9, after the bargaining committee decided to call
the strike, the members returned to Respondent’s facility and
told a group of bargaining unit employees that mediation had
not resulted in an agreement and “. . . [they] weren’t getting
anywhere so [they] had no other choice but to go on strike” and
that a reason for the strike was the contract language.35
Also, regarding the bargaining committee meeting on July 9,
Matilda Imbukwa testified that “we discussed a few issues.
One . . . was . . . because they’re going to put a cap on the
healthcare, surveillance . . . used against the employees . . .
amongst other things.” As to surveillance, Imbukwa recalled
that it was the breakroom incident and “. . . use of the phone to
take pictures” by the security guard.36 After initially stating she

34 Asked to describe the unilateral changes, Fowler stated, “we
talked about the surveillance of when the security came inside the break
room.” Also, “kicking the steward out the building . . . during the
strike vote. . . .”
35 During redirect examination, counsel for the General Counsel
asked Fowler a blatantly leading question—”. . . When you went back
to the facility on July 9 . . . do you remember telling employees that one
of the reasons for the strike was that management was . . . telling em-
ployees to get out of the building—to which Fowler answered, “yes.”
36 Imbukwa testified that Sheila Nelson spoke about this, saying
“there was a security guard in the break room and he was . . . swinging
his phone from side to side and he left immediately.”
During cross-examination, Imbukwa was confusing, stating that,
when Union representatives voiced concerns about Respondent’s “sur-
veillance,” they were discussing its use of security cameras throughout
the building and that the discussion before the strike vote concerned
this type of surveillance—“the security surveillance, yes . . . throughout
the building, yes.”
AMERICAN BAPTIST HOMES OF THE WEST 27
could not recall, Imbukwa remembered that other issues the
committee members discussed were salary, Respondent’s chart
of infractions, and “the incidents of the Union members being
whisked out of the building.” She added that Sheila and San-
janette spoke about this and that “Sheila was talking about the
incident that happened during the strike vote. And Sanjanette
was talking about an incident that happened early on . . . when
we had left the meeting and we has gone to tell the employees
what happened in the meeting . . . and then a few minutes later,
the management came and told us to leave the building.”
Asked how they decided to go on strike, Imbukwa recalled,
“we raised our hands, all of us, and said, yeah, we could go on
strike.” Finally, Imbukwa did not know how the other bargain-
ing unit employees were informed of the decision of the bar-
gaining committee members on July 9.
Regarding the Union’s strike procedure, Myriam Escamilla
testified that “the Union’s procedure is to have the members to
authorize bargaining committee to call a strike. And at some
point, the members of the committee . . . at Piedmont Gardens
decided to go on strike on July 9, that’s when they made the
final decision.” Then, “when . . . they decided, they call us in
the room. And we came back and they told us, ‘we decided
we’re going to strike and for this many days.’” Thereupon,
each member of the committee was charged with talking to
specific people in their department “to see if they would sup-
port the strike or not.” This involved “multiple” one-on-one
sessions between July 9 and the start of the strike “to assess
whether or not people will walk out and what days they will be
at the picket line.” Asked for the purpose of these conversa-
tions, Escamilla said “one was to understand if people will be
comfortable waking out and . . . being on the picket line. . . .
Second, figure out what time . . . they will picket. Third, if they
had any questions about what was happening with the contract
negotiations with all the issues that were remaining . . . leading
to the strike.” She added that, subsequent to July 9, the Union
published nothing to the bargaining unit employees regarding
what was discussed by the bargaining committee on that date
and no other strike vote was taken.
Upon being informed by the bargaining committee members
that they had decided to engage in a strike against Respondent,
Myriam Escamilla sent two letters, dated July 9, to Respondent.
In the first, she wrote, “Pursuant to Section 8(g) of the National
Labor Relations Act, you are hereby informed that [your bar-
gaining unit employees] will commence a strike at 9:00 a.m. on
Monday, August 2, 2010, and continue such activity unless and
until a mutually agreeable resolution has been reached.” In the
second letter, she wrote, “All employees participating in the
Unfair Labor Practice strike and withdrawal of labor at Pied-
mont Gardens . . . scheduled to begin on . . . August 2, 2010,
unconditionally offer to return to work at or after 5 a.m. on
Saturday, August 7, 2010. This request is made . . . on behalf
of all employees it represents as well as all employees who
honor its picket lines at Piedmont Gardens on the above date.”
Subsequently, as scheduled, approximately 80 of the 100 bar-
gaining unit employees, employed by Respondent, commenced
their 5-day concerted work stoppage and strike against Re-
spondent on August 2. Mostly, the strikers confined them-
selves to the 41st Street side of Respondent’s facility.
With regard to the motivating factor, which, Nelson and
Fowler admitted informing Board agents, was to put pressure
on Respondent to bargain, or factors underlying the concerted
work stoppage and strike, the record evidence is that the picket
signs, which employees carried, other than simply reading the
Union’s generic “ULP Strike,” failed to specify any asserted
unfair labor practices. Rather, according to Nelson, other pick-
et signs read “one percent can’t pay the rent,” and “Union bust-
ing has got to go,” and protested Respondent’s healthcare pro-
posals. In addition to the picket signs, according to Gayle
Reynolds, strikers chanted slogans such as “one percent won’t
pay the rent;” “Piedmont Gardens, you’re no good, you don’t
treat us like you should;” and “No peace, no contract.” Further,
a striking bargaining unit employee, Keiyana Kemp, was quot-
ed in a local newspaper, stating “I’m struggling. I’m working
hard and a 1.5 percent raise is not going to do anything for me
and my family and on top of that they want me to pay for my
medical expenses out of pocket. Now with three kids and the
money we are making—I can’t even live right now.” Of criti-
cal import as to motive is a letter, dated August 6, which the
Union, on behalf of the bargaining unit employees, sent to Oak-
land Mayor Ron Dellums. Said letter states:

We, the undersigned members of SEIU-UHW and employees
of Piedmont Gardens, have been bargaining for a new con-
tract since February with American Baptist Homes of the
West. We have proposed common sense disciplinary rules as
well as modest economic improvements. Management, how-
ever, has refused to move away from its harmful disciplinary
policies and, instead, has sought to dramatically cut our
healthcare and eliminate our pension fund entirely. As a re-
sult, this past Monday, we began a five-day ULP strike to pro-
test [Respondent’s] actions. . . .

At 5 a.m. in the morning of August 7, pursuant to their un-
conditional offer to return to work,37 50 to 60 of the former
striking employees, who were scheduled to work that day,
gathered at the 41st Street entrance to Respondent’s facility in
order to report for work. They were met by a security guard,
who told them that “no one is entering the building.” One em-
ployee, Bayou Zegenech, was scheduled to begin his work shift
at that hour, and the guard announced that there was a list of
employees, who would be allowed to return but that he needed
to obtain an updated copy of the list. At that point, the guard
and a union representative escorted Zegenech into the facility.
A few minutes later, Zegenech returned with the following
letter, which stated:

Please be advised that your previous position at Piedmont
Gardens has been filled by a permanent replacement employ-
ee, so we are not in a position to reinstate you to your former
position at his time.

All staff members who have been permanently replaced will
be placed on a ‘preferential rehire list.” We will try to fill va-
cancies for substantially equivalent positions that become va-

37 There is no dispute that, during the strike, the Union sent to Re-
spondent a copy of the aforementioned unconditional offer to return
letter.
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cant in the future from this list. . . .38

In fact, the record discloses that 38 former strikers were perma-
nently replaced by Respondent.39 In the above regard, Gayle
Reynolds testified that, having received advance notice of the
bargaining unit employees’ concerted work stoppage and strike,
prior to August 2, Respondent had made arrangements for the
hiring of temporary replacement employees. Thus, after having
unsuccessfully attempted to do so itself, Respondent contracted
with Huffmaster, “a strike management company,” to supply
temporary workers, and, by August 2, “we probably hired 60 to
70 people” to temporarily staff the jobs of its striking employ-
ees.40 According to Reynolds, Respondent informed Huffmas-
ter that the length of the jobs would be 3 days, and “when we
were making offers to people on a temporary basis, we said we
thought it would be for [a] . . . week.” She added that, by the
evening of the first day of the strike, “we felt confident that we
had enough people to get through a few days.”
Reynolds further testified that she was the management offi-
cial who decided to hire permanent replacements and that, be-
ginning on August 3 and continuing through August 6, Re-
spondent made 44 offers of permanent employment to some of
the temporary replacement employees and to “our employees
who came to work during the strike who were largely on-call
employees.” As to the rationale for her decision, she stated that
the cost of hiring temporary replacements was a burden to Re-
spondent. On this point, Reynolds said that the cost to engage
Huffmaster was in excess of $300,000 out of which sum, the
latter paid the wages of the temporary replacements.41 This
cost was significant to Respondent as “our revenues come from
our residents’ monthly fees” and “in order to fund these kinds
of things, we have to raise the monthly fees”. According to
Reynolds, the “economic reality” was that Respondent could
not afford to operate in this manner whenever the bargaining
unit employees decided to engage in a concerted work stop-
page. Further, “I was concerned . . . that our residents were at
risk and I was concerned that if the employees didn’t come
back from the strike, we wouldn’t have the people we needed to
provide services to our residents. I was concerned that if they
did [return] from the strike and went on strike again that we

38 Gayle Reynolds testified that, in anticipation of them offering to
return to work on August 7, Respondent sent these letters out to the
striking bargaining unit employees, as well as attempting to reach them
by telephone, on the night of August 6.
39 They are Shervin S. Amorsolo, Arturo Bariuad, Zegenech Bayou,
Maggie Bellinger, Yuhanes Beraki, Donnita Bradley, Pacita Bumatay,
Marieth Romero Carmona, Tamika Cato, Calvin Christian, Bonnie
Conley, Judith Coston, Besima Ferhatovic, Sanjanette Fowler, Crystal
Grayson, Elisa Haile, Monique Higgins, Keiyana Kemp,Brenda Lane,
Kathlyn Largent, Johnny Lee, Linda Lee, Gloria McNeal, Salvador
Miranda, Michael Morrow, Sheila Nelson, Janie Ragsdale, Michelle
Reynolds, Josephine Santos, Yordanos Sega, Paramjit Sekhon, Pal-
winder Singh, Denesha Singleton, Carmen Smith, Mhret Weldeabzhi,
Pierre Williams, Rose Zelaya, and Nebiat Zeray.
40 According to Reynolds, “most of them” came from Huffmaster
and were transported to work in a van.
41 While Respondent expanded $300,000 on replacement workers
utilizing Huffmaster, Reynolds admitted that implementing the Union’s
requests on economic items over the term of a successor collective-
bargaining agreement would have cost only $250,000.
wouldn’t . . . be able to recruit the people we needed to provide
services to our residents.” Asked, by counsel for the General
Counsel, if it was true that one of the reasons that Respondent
hired permanent replacements is that it wanted employees who
would work in the event of another strike, Reynolds answered,
“The people who had come to work that week had already
demonstrated that they would come to work during a strike. . . .
I had an expectation . . . but there was no guarantee. It was a
probability.” Then, asked was it true that her primary reason
for hiring the permanent replacements was that they had
demonstrated that they would work in the event of another
strike, Reynolds averred, “I can’t answer that yes or no.” How-
ever, when confronted by her pretrial affidavit, in which she
stated that, while she knew it would “take time” to acclimate
the permanent replacements to Respondent, the latter had made
offers to only those replacements who were qualified, and the
“more important” consideration was that they would work dur-
ing another work stoppage, Reynolds admitted it was a true
statement as “. . . they had demonstrated that they were willing
to work during the strike.”
Finally, with regard to Respondent’s rationale for deciding to
hire permanent replacements, Bruce Harland, the Union’s at-
torney, testified that, on the morning of August 6, he made a
telephone call to David Durham, Respondent’s attorney “be-
cause I had heard a rumor that the strikers would be locked out,
and I wanted to verify that with him and work out some ar-
rangement in terms of return to work.” Harland asked whether
Durham could confirm the rumor; the latter said that “he
couldn’t confirm it . . . that he had a conference call scheduled
with [Respondent] . . . in the afternoon, and that he would call
me after that conference call.” That evening, at approximately
6:00 or 6:30, Durham called Harland and, according to the
latter, said he had news for Harland but not the news he wanted
to hear. “And he says . . . ‘we’re not going to lock out the . . .
strikers. We’re going to actually permanently replace about 20
or so employees.’” Harland responded that the news was seri-
ous and asked for the names of the replaced striking employees.
Durham promised to get him a list later that night. Then, Har-
land testified, he said “‘You know, this is a pretty big deal.
What is the reason for permanently replacing them as opposed
to locking them out,’” and Durham “told me . . . that Piedmont
Gardens wanted to teach the strikers and the Union a lesson.
They wanted to avoid any future strikes, and this was the lesson
that they were going to be taught.” Harland stated he replied
“`okay.’ And I hung up.”
While confirming the contents of their initial conversation,
Durham testified to a different version of their evening conver-
sation. According to Durham, he telephoned Harland from
outside of an Oakland restaurant and began by saying he had
news for the Union’s attorney. “And I said that Piedmont Gar-
dens had permanently replaced a number of the strikers.” Har-
land replied, asking if Durham meant ‘“locked them out,’” and
Durham replied, “‘No, permanently replaced.’” Harland re-
sponded that the news was “‘pretty heavy’” and asked how
many employees would be affected. Durham replied that he
did not “know for sure, 20, 25, but I’d let him know more lat-
er.” Harland then asked if Durham knew the names, and the
latter said he would get him a list. “And then Bruce said, ‘this
AMERICAN BAPTIST HOMES OF THE WEST 29
is pretty heavy as I said. Why did the company permanently
replace people?’ And I said, ‘Bruce, we all know permanent
replacements happen in strikes.’” Durham then said he would
get Harland the list of the permanently replaced employees,42
and the conversation ended.
Twelve days after the conclusion of the strike, on August 19,
on behalf of the Union, Myriam Escamilla sent a 5-page infor-
mation request letter to Respondent’s attorney Durham. In-
cluded amongst the requests was information pertaining to the
names and addresses of the permanent replacement employees,
their job classifications, and their hourly wage rates. In her
letter, Escamilla explained that the Union “needs this infor-
mation to effectively perform its duty as the exclusive repre-
sentative of the workers employed at your [facility]” and “to
permit the Union to bargain intelligently with the employer as
to wages and benefits” Approximately 3 weeks later, in a letter
dated September 6 to Escamilla, Respondent’s attorney
Durham wrote that the names and addresses of the permanent
replacement employees, who were already employed by Re-
spondent, were enclosed. However, as to those permanent
replacements, who “came from the outside,” he wrote, “the
Employer has a legitimate concern that providing the infor-
mation might lead to harassment or possibly violence by the
Union or its supporters. As you know, some of their people
were subjected to abuse and threats . . . during the strike. They
also have legitimate privacy and confidentiality concerns that
must be considered. So in lieu of providing the information in
the form of your request, we have identified them by initials.”43
Regarding the job classifications and hourly wage rates of the
permanent replacements, who were hired from outside sources,
Respondent provided the information but with the employees
identified by their initials. In fact, General Counsel Exhibit 5 is
the document with the name and addresses of permanent re-
placement employees; 23 are indentified with just initials with-
out their home addresses. Also, General Counsel Exhibit 6 is
the document containing the job classifications and wage rates
of the permanent replacements; 23 are identified with just their
initials. For each of the documents, the parties stipulated that
the permanent replacement employees, who were identified by
their initials, were hired from outside sources. Escamilla testi-
fied that she did not respond to Durham’s September 6 letter as
“we felt that the allegations of violence and accusations of . . .
threats of violence against . . . replacements were bogus and
completely ridiculous. . . ,” and “we felt that we would better
by filing a charge with the NLRB.” She added that the Union
has received no other documents from Respondent, indentify-
ing the permanent replacements, who were hired from outside
sources and that she is unaware of any threats to replacement
workers, harassment of them, or picket line violence during the
period of the strike.

42 There is no dispute that, since August 7, 13 of the permanently re-
placed individuals have been reinstated. They are employees Bariuad,
Bradley, Cato, Grayson, Higgins, Lane, Largent, Lee, McNeal, Santos,
Sekhon, Weldeabzghi, and Zeray.
43 There is no record evidence of any harassment of the permanent
replacements after the conclusion of the strike. Likewise, there is no
record evidence of threats of violence or actual violence directed
against them.
Reynolds testified that, by the time Respondent responded to
the Union’s information request, the strike had been over for a
month, and most of the strikers had been reinstated and were
working alongside the permanent replacements. Asked if she
observed any instances of harassment, she stated, “No, I would
say that the employees did a good job of melding all the differ-
ent areas from which they came. Whether they had gone on
strike. Whether they were Union employees who hadn’t gone
on strike or if they were permanent replacements.” Neverthe-
less, asked why Respondent only provided the initials of per-
manent replacements, who were hired from outside sources,
Reynolds testified, “I was very concerned about how that in-
formation would be used . . . some of the employees have ex-
pressed . . . fears for their safety . . . . I didn’t know what was
going to happen to [the information]. We were just reluctant to
hand it over.” Therefore, “we decided to provide initials . . .
and ask to bargain about . . . some other solution or . . . find
some agreement about what would be done with that infor-
mation.” However, the Union never requested to bargain.
Respondent justified its response to the Union’s request for
the names and addresses of the permanent replacement em-
ployees by occurrences during the strike. According to Reyn-
olds, several employees expressed safety concerns. She identi-
fied them as Janona, Moussa Sissoko, Liya Hagos, Alem
Zewdu, and Ara Armstrong. “There were a couple others, but I
don’t remember their names. Janona is a nonstriking certified
nursing assistant; she was “unhappy” with the Union and “con-
cerned” for her safety as she was constantly “yelled at” for
crossing the picket line. Sissoko, a nonstriking bargaining unit
employee whose name and address Respondent gave to the
Union, spoke to Reynolds “the week before the strike; how was
he going to get to work safely, was his concern.” Hagos “was
afraid that people would bother her while she was walking to
work.” Zewdu, a nonstriking bargaining unit employee whose
name and address Respondent gave to the Union, “had the same
concerns that Liya did because they would walk together.” Ara
Armstrong was a temporary employee, and “she wanted to
know how she was going to get to work.” Besides these four
workers, Jesus Navarez, a nonstriking bargaining unit employee
who drives a van used to transport residents for medical ap-
pointments, reported to her that, on one occasion, pickets sur-
rounded his vehicle and would not allow him to proceed up the
street. Also, some replacements reported having to cover their
faces as they crossed the picket line, and, as a result, Respond-
ent allowed them to use another door as an entrance into the
facility. For such employees, during the strike, Respondent
offered to drive people to the nearest BART terminal and to
escort them through the picket line and provided them with an
emergency phone number. Finally, as justification for Re-
spondent’s failure to provide the aforementioned requested
information, Respondent offered a series of anti-Semitic and
death threats to Lynn Morganroth, the HR director, which were
mailed in early 2010 to her home and her work addresses and
one of which was related to the Union.
Legal Analysis and Findings
As set forth above, the consolidated complaint alleges that
Respondent engaged in acts and conduct, violative of Section
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8(a)(1) of the Act, by discriminatorily enforcing its no-access
policy on June 17 and 18 by requiring off-duty employees, who
were present at its facility to participate in a union strike au-
thorization vote, to leave the facility and, through a security
guard, by engaging in surveillance of employees, who partici-
pated in the strike authorization vote. Next, the consolidated
complaint alleges that Respondent violated Section 8(a)(1) and
(3) of the Act, by belatedly reinstating 13 employees and per-
manently replacing and refusing to reinstate 25 employees who,
after participating in a concerted work stoppage and strike,
caused, in part, by Respondent’s unfair labor practices, had
ended their strike and unconditionally offered to return to their
former positions of employment. Finally, the consolidated
complaint alleges that Respondent violated Section 8(a)(1) and
(5) of the Act by refusing to provide to the Union the names
and addresses of permanent strike replacement employees.
Initially, regarding the Acting General Counsel’s allegation
that Respondent violated Section 8(a)(1) of the Act by engaging
in unlawful surveillance of the bargaining unit employees’
strike authorization vote on June 17, in comparison to Francis-
co Pinto, I found Sheila Nelson and Matilda Imbukwa to have
been the more credible witnesses. Nelson impressed me as
being a candid witness, and, while Imbukwa’s account of the
time she spent watching Pinto’s activities obviously was im-
plausible, I, nevertheless, believe she was an honest witness
and truthful as to what she observed. Pinto, on the other hand,
did not impress me as being a veracious witness; in particular,
his demonstration as to how he held his cell phone (out in front
of his face) seemed incompatible with his explanation for hav-
ing his phone out—checking voicemail messages. According-
ly, I find that, at some point between 1 and 3, during the early
afternoon voting period on June 17, while Nelson and Imbukwa
were assisting bargaining unit employees in casting their strike
authorization ballots, Pinto entered the break room, sat at a
table behind Nelson and Imbukwa, took his cell phone out, held
it out in front of him at eye level, and began moving it from
side to side as if recording the voting activities. I further find
that Nelson noticed Pinto’s actions, observed him for approxi-
mately a minute, and pointed out the security guard’s activities
to Imbuka, who also observed Pinto for a short period of time.
The central issue, as to this allegation, is, of course, is
whether Pinto’s acts and conduct may be attributed to Re-
spondent. At the outset, I believe that Respondent was well
aware that, at specified times on June 17 and 18, its bargaining
unit employees would be voting on whether to authorize their
bargaining committee to call a strike. Thus, the vote was publi-
cized by a flyer, which was posted on the Union’s bulletin
board in the break room. While she professed to have no
knowledge as to the vote, Gayle Reynolds admitted entering the
break room sometimes on a weekly basis and having observed
other bargaining-related flyers posted on the bulletin board. In
these circumstances, I do not believe that she failed to notice
the strike vote flyer affixed to the bulletin board and believe
that Pinto entered the break room and engaged in his actions at
Respondent’s behest. However, assuming Pinto had not been
directed to engage in his actions, the Board applies the common
law principles of agency, and “apparent authority results from a
manifestation by the principal to a third party that creates a
reasonable basis for the latter to believe that the principal has
authorized the agent to perform the acts in question.” Thus,
“the test is whether, under all the circumstances, the employees
‘would reasonably believe that the employee in question [the
alleged agent] was reflecting company policy and speaking and
acting for management.’” GM Electrics, 323 NLRB 125, 125
(1997); Southern Bag Corp., 315 NLRB 725, 125 (1994).
Herein, the record establishes that Pinto was stationed at the
Linda Street entrance to Respondent’s facility, monitored ac-
cess into the building through that entrance, and possessed the
authority to prevent people from entering. In these circum-
stances, I believe that bargaining unit employees may reasona-
bly have believed that Pinto acted as Respondent’s agent when
either recording or pretending to record the strike authorization
voting inside the break room on June 17. Poly-America, Inc. v.
NLRB, 260 F.3d 465, 483 (5th Cir. 2001); Opryland Hotel, 323
NLRB 723, 723 fn. 3 (1997).
As to whether Pinto’s acts and conduct were unlawful, there
can be no doubt, and I find, that he either actually recorded the
strike authorization voting or, at least, created the impression
that he was engaging in surveillance of Nelson’s union activi-
ties and of those bargaining unit employees casting strike au-
thorization ballots. While routine observation of Section 7
activity on an employer’s property may not be violative of the
Act, “an employer violates Section 8(a)(1) when it surveils
employees engaged in [union activities] by observing them in a
way that is `out of the ordinary’ and thereby coercive.” Alad-
din Gaming, LLC, 345 NLRB 585, 586 (2005). Pinto’s acts
certainly comprised more than casual observation; the Board
has long held that acts of “photographing and videotaping . . .
clearly constitute more than mere observation . . . because such
pictorial recordkeeping tends to create fear among employees
of future reprisals.” National Steel & Shipbuilding Co., 324
NLRB 499, 499 (1997); Fairfax Hospital, 310 NLRB 299
(1993). Based upon the foregoing, I find that security guard
Pinto’s patently unlawful acts in the breakroom on June 17
were attributable to Respondent and that, therefore, the latter
violated Section 8(a)(1) of the Act.
Next, concerning the Acting General Counsel’s allegation
that, acting on Respondent’s behalf, Gayle Reynolds violated
Section 8(a)(1) of the Act by discriminatorily enforcing Re-
spondent’s no access rule to evict employees who participated
in the strike authorization vote, there is no dispute that, on June
17, Reynolds evicted employee, Sheila Nelson, from Respond-
ent’s facility while she was helping to conduct the strike au-
thorization vote and that, subsequently, she also evicted em-
ployees, Geneva Henry and Faye Eastman, both of whom were
also assisting with the strike vote. With regard to Nelson, there
is also no dispute as to what occurred, and I find that Reynolds
entered the break room shortly after security guard Pinto’s un-
lawful surveillance, that she confronted Nelson, and that she
demanded that Nelson immediately leave Respondent’s facili-
ty.44 As to Henry, as between the employee and Reynolds, I

44 I reiterate my belief that, notwithstanding her less than convincing
denial, Reynolds was well aware that the bargaining unit employees
were engaged in a strike authorization vote on June 17. Moreover, as I
believe that it was not a coincidence Reynolds entered the break room
AMERICAN BAPTIST HOMES OF THE WEST 31
perceived Henry as being the more reliable witness. In other
circumstances, I might have believed Reynolds merely was
honestly mistaken in maintaining she acted against Henry’s
presence inside Respondent’s facility on the morning of June
18; however, when, despite being confronted with her own
conflicting emails, she obdurately insisted her testimony was
correct, I think Reynolds was being disingenuous. Thus, I cred-
it Henry and find that Reynolds discovered her helping with the
strike authorization vote in the break room after 6 p.m. on June
17 and promptly demanded that Henry leave the building. Fi-
nally, in these circumstances, and again noting her own con-
flicting email, I find that Reynolds expelled Eastman from Re-
spondent’s facility on the morning of June 18, also because she
helped with the strike authorization vote.
While paragraph 7 of the consolidated complaint assumes
the facial validity of Respondent’s chart of infractions rule 33
and clearly alleges only that Respondent unlawfully disparately
enforced it against off-duty employees, who were inside its
facility on June 17 and 18 assisting with the strike authorization
voting,45 given the record evidence, I think it may be more
correctly argued that Respondent’s actual unlawful acts and
conduct involve applying a new work rule to Sheila Nelson,
whose day off was June 17, and, perhaps, to Geneva Henry,
who also may have been off-duty that day, in order to thwart
their activities in support of the Union. Thus rule 33 does not,
on its face, pertain to the access rights of employees on their
days off or while off-duty for any other reason; on June 17,
Reynolds was forced to consult with HR director Morganroth
as to which chart of infractions rule Nelson and Henry had
violated; and, in her reply email to Reynolds, Morganroth, who
presumably should have known, expressed confusion and could
not specify which, indeed if any, of Respondent’s chart of in-
fractions rules Nelson had violated earlier that day. Given the
foregoing, the conclusion is warranted that Reynolds conjured
and applied a new work rule to Nelson, and, since the former
invoked this new rule for the first time in order to evict Nelson
and later Henry from Respondent’s facility upon discovering
each was assisting with the strike authorization vote, Reyn-
olds’s actions were violative of Section 8(a)(1) of the Act.
Nashville Plastic Products, 313 NLRB 462, 463 (1963).
Moreover, regarding Respondent’s alleged discriminatory en-
forcement of rule 33, assuming it applies to off-duty employees
as well as to employees, who enter its facility prior to their
work shifts or remain after their work shifts, Respondent admit-
ted that it permits off-duty employees to enter its facility under
certain circumstances including to obtain their paychecks and

just 15 minutes after Pinto’s unlawful surveillance and, giving no cre-
dence to his denial, that he probably reported Nelson’s presence there
to Respondent’s management, I think Reynolds entered the break room
aware that Nelson was assisting the strike authorization vote.
45 Nevertheless, in explicating her underlying theory for the allega-
tion in her posthearing brief, citing Tri-County Medical Center, 222
NLRB 1089 (1976), counsel for the Acting General Counsel inexplica-
bly asserts that Respondent’s rule is “unlawful” on its face as it fails the
third prong of the Tri-County test—a no-access rule is valid only if
such “applies to off-duty employees seeking access to the plant for any
purpose and not just to those employees engaging in union activity.”
Id. at 1089.
that off-duty shop stewards are permitted to enter in order to
participate in grievance activities and disciplinary meetings. In
addition, I credit shop stewards Nelson and Fowler that, on
their days off, each has entered Respondent’s facility in order to
engage in union-related activities and has never been either
questioned about her presence inside the facility or asked to
leave despite having signed in with the receptionist or a securi-
ty guard. Finally, there is no record evidence that Respondent
previously had enforced chart of infractions rule 33 against any
employee for being inside its facility while off-duty. Accord-
ingly, as I believe Reynolds was acutely aware of the strike
authorization voting in the break room on June 17 and 18, I find
that she disparately invoked Respondent’s chart of infractions
rule 33 by evicting employees Nelson, Henry, and Eastman
from the facility upon discovering each was assisting with the
voting. In these circumstances, Respondent engaged in acts
and conduct violative of Section 8(a)(1) of the Act. Benteler
Industries, Inc., 323 NLRB 712, 715 (1997); Opryland Hotel,
supra, at 731; Baptist Memorial Hospital, 229 NLRB 45, 45 fn.
4 (1977).
I next turn to the allegation that Respondent engaged in acts
and conduct, violative of Section 8(a)(1) and (3) of the Act, by
belatedly reinstating 13 employees and permanently replacing
and refusing to reinstate 25 other employees for engaging in the
August 2 through 7 concerted work stoppage and strike. An
employer violates Section 8(a)(1) and (3) of the Act by failing
to reinstate striking employees on their unconditional offer to
return to work, unless the employer establishes a legitimate and
substantial business justification for failing to do so. NLRB v.
Fleetwood Trailor Co., 389 U.S. 375, 378 (1967); Capehorn
Industry, Inc., 336 NLRB 364, 365 (2001). The employer es-
tablishes a legitimate and substantial business justification
when the record evidence establishes that the positions, claimed
by the strikers, are filled by permanent replacements. Fleet-
wood Trailor, supra; see NLRB v. MacKay Radio & Telegraph
Co., 304 U.S. 333, 345–346 (1938). Counsel for the Acting
General Counsel presents alternative theories underlying the
unfair labor practice allegations.
The first, of course, is that the said concerted work stoppage
and strike was an unfair labor practice strike and that, therefore,
upon the Union’s unconditional offer to abandon the strike and
return to work on behalf of each striker, Respondent was obli-
gated to have immediately reinstated each to his or her former
position of employment. As to this, in Golden Stevedoring Co.,
Inc., 335 NLRB 410 (2001), the Board held “that a work stop-
page is considered an unfair labor practice strike if it is moti-
vated at least, in part, by the employer’s unfair labor practices,
even if economic reasons for the strike were more important
than the unfair labor practice activity. . . . It is not sufficient,
however, merely to show that the unfair labor practices preced-
ed the strike. Rather, there must be a causal connection be-
tween the two events. . . . In sum, the unfair labor practices
must have ‘contributed to the employees’ decision to strike.’”
Id. at 411; RGC (USA) Mineral Sands, Inc., 332 NLRB 1633,
1634 (2001). Concerning the latter conclusion, analysis of its
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
decisions discloses that the Board has used numerous phrases46
to emphasize the same point—the state of mind of strikers must
be that their concerted work stoppage and strike was, at least, in
part motivated by their employer’s unfair labor practices. Pen-
nant Foods Co., 347 NLRB 460, 469 (2006). Put another way,
whenever a reasonable inference may be drawn that an employ-
er’s unfair labor practices played a part in the decision of the
employees to strike, said concerted work stoppage is an unfair
labor practice strike. Post Tension of Nevada, Inc., 352 NLRB
1153, 1162–1163 (2008); Child Development Council of
Northeastern Pennsylvania, supra. Further, the burden is on
the employer to establish that the strike would have occurred
even if it had not committed unfair labor practices. Post Ten-
sion of Nevada, supra at 1163. Finally, once unfair labor prac-
tice strikers make unconditional offers to abandon the strike
and return to work, they must be returned to their former posi-
tions of employment or, if said jobs no longer exist, to substan-
tially equivalent positions even if permanent replacements must
be discharged in order to do so. Pennant Foods Co., supra at
470; Cal Spas, 322 NLRB 41 (1996).
Bluntly stated, contrary to the Acting General Counsel, for
the below-stated reasons, I do not believe that Respondent’s
bargaining unit employees’ August 2 through 7 strike against
Respondent constituted an unfair labor practice strike. At the
outset, there is no dispute that, on the afternoon of May 25, the
bargaining unit employees engaged in informational picketing
outside of Respondent’s facility, carrying placards identifying
the parties’ contentious bargaining issues (healthcare, a pension
plan, and wages); that, on June 17 and 18, the bargaining unit
employees participated in a strike authorization vote, voting yes
or no on whether to “authorize the bargaining committee team
to call a strike,”47 and that, in setting the strike authorization
vote, the employees’ bargaining committee identified successor
contract bargaining issues (“Management still wants to take
away our pension, make us pay . . . more for our health insur-
ance, and is offering a raise that’s a joke”) as their motivation.
In these regards, while over 90 percent of the bargaining unit
employees voted to authorize their bargaining committee to call
a strike and while the unfair labor practices, which I have found
herein, occurred in the midst of the voting, there is no record
evidence regarding whether any bargaining unit employees,
other than members of the bargaining committee, witnessed or
were cognizant of said acts or as to the dissemination of infor-
mation pertaining to them. In these circumstances, I believe the
result of the strike authorization vote was that the bargaining
unit employees authorized their bargaining committee to call an
economic strike against Respondent.
Given the foregoing, the issue, then, is whether, at the time it

46 Did the employer’s unfair labor practices “have anything to do
with” causing the strike? Child Development Council of Northeastern
Pennsylvania, 314 NLRB 845, 845 fn. 5 (1994). Were they a “contrib-
uting cause” of the strike? R & H Coal Co., 309 NLRB 28, 28 (1992).
Was the unfair labor practice conduct “one of the causes” of the strike?
Boydston Electric, 331 NLRB 1450, 1452 (2000).
47 Given Union Agent Escamilla’s admission that “we always call
for unfair labor practice strikes,” I find no significance to the words
“unfair labor practice strike vote” on the top of the ballot or, indeed, to
the Union’s use of said words on any document or strike placard.
commenced, Respondent’s bargaining unit employees’ concert-
ed work stoppage and strike had metamorphosized into an un-
fair labor practice strike. On this point, there is no dispute that,
during a break in the July 9 bargaining session between Re-
spondent and the Union, with no prospect of an imminent
breakthrough on a successor collective-bargaining agreement,48
eight members of the bargaining unit employees’ bargaining
committee discussed engaging in a strike against their employ-
er. Based upon their respective, uncontroverted testimony, I
find that, during said conversation, in addition to bargaining
concerns, committee members, Sheila Nelson, Sanjanette
Fowler, and Matilda Imbukwa, each mentioned security guard
Pinto’s surveillance on June 17 and Reynolds’ eviction of Nel-
son later that same day and that, at the conclusion of their dis-
cussions, the negotiating committee members decided to en-
gage in a strike49 against Respondent and informed Escamilla
as to their decision. Finally, with regard to the asserted trans-
formed rationale for the concerted work stoppage and strike,
there is no credible record evidence50 that, between July 9 and
August 2, either union agents or the eight members of the bar-
gaining unit employees’ negotiating committee, ever informed
Respondent’s other bargaining unit employees that the econom-
ic strike, which they had authorized their bargaining committee
to call, had morphed into a strike to, at least, partially protest
and redress their employer’s unfair labor practices. In this re-
gard, the Union published no materials on the subject; while
bargaining committee members did meet individually with
fellow bargaining unit employees, the subject of these meetings
appears to have concerned procedural matters pertaining to
each employee’s participation in the strike; and, after June 17
and 18, bargaining unit employees never again voted on the
rationale for their concerted work stoppage and strike against
Respondent.
Although not explicitly stated in her posthearing brief, coun-
sel for the Acting General Counsel’s position appears to be that,
as the bargaining unit employees’ negotiating committee was
authorized to call a strike and as the eight members discussed
the above unfair labor practices in deciding whether to do so,
the August 2 through 7 concerted work stoppage and strike was
an unfair labor practice strike.51 Taking a contrary position,
counsel for Respondent argues that, while “members of the
union bargaining committee testified as to why they decided to
strike, this is no substitute for evidence that the general mem-

48 I note that, in almost a 3-week period between the strike authoriza-
tion vote and the July 9 bargaining session, bargaining concerns, rather
than asserted unfair labor practices, were the sole concern of the Un-
ion’s published flyers for the bargaining unit employees.
49 While Nelson testified that the committee members told Escamil-
la, they wanted to engage in an unfair labor practice strike, Fowler
testified they told Escamilla only that they wished to engage in a strike,
Imbukwa recalled only that the committee voted to engage in a strike,
and Escamilla testified that she was only told the committee members
voted to go on strike. Accordingly, I do not rely upon Nelson’s testi-
mony on this point.
50 I give no credence to Fowler’s response to a leading question by
counsel for the Acting General Counsel.
51 Notwithstanding that I expressed being “troubled” by the Acting
General Counsel’s contention, counsel for the Acting General Counsel
ignored my concern, failing to discuss it in her posthearing brief.
AMERICAN BAPTIST HOMES OF THE WEST 33
bership knew of, and was motivated by, the . . . unfair labor
practices.” I agree with counsel for Respondent. In this regard,
I reiterate my view that Respondent’s bargaining unit employ-
ees authorized their negotiating committee to call a strike
against Respondent for economic reasons. Indeed, such was
the recommended course of action by their bargaining commit-
tee. Moreover, while bargaining unit employees arguably may
leave to the discretion of their majority bargaining representa-
tive or an authorized negotiating committee the decision as to
the type of concerted work stoppage and strike in which the
employees may eventually engage, the indisputable record
evidence herein is that the specific grounds, which were rec-
ommended to the bargaining unit employees for authorizing
their negotiating committee to call a strike, concerned Re-
spondent’s bargaining positions. Put another way, Respond-
ent’s bargaining unit employees did not vote in a vacuum.
Further, there is no record evidence that, other than the eight
members of the negotiating committee, the other 92 bargaining
unit employees were aware of the acts, which constituted Re-
spondent’s unfair labor practices;52 at no point prior to its
commencement, did the members of the bargaining committee
inform the entire bargaining unit that their concerted work
stoppage and strike would be, at least, partially intended to
protest unfair labor practices; and, of course, notwithstanding
the magnitude, the entire bargaining unit never was asked to
confirm the changed rationale for their concerted work stop-
page and strike, which, arguably, had been adopted by the bar-
gaining committee.. In my view, given that Respondent’s un-
fair labor practices did not involve the collective-bargaining
process and are not of the so-called hallmark variety, the entire
bargaining unit’s lack of knowledge of them and lack of an
opportunity to vote to confirm them as rationale for the con-
certed work stoppage and strike left its original underlying
economic rationale unchanged. C-Line Express, supra. Fur-
ther, there can be no contention that knowledge of the negotiat-
ing committee’s discussions on July 9 may be imputed to the
remainder of the bargaining unit employees. In an analogous
strike conversion case, Facet Enterprises, Inc., 290 NLRB 152
(1988), the Board required explicit evidence of the bargaining
unit employees’ knowledge of their employer’s alleged unfair
labor practices in order to find that an existing strike was, in
fact, an unfair labor practice strike. The General Counsel ar-
gued that the said strike was an unfair labor practice strike from

52 In analogous strike conversion cases, the Board and the courts re-
quire that the General Counsel establish bargaining unit employees’
knowledge of the alleged unfair labor practices. Thus, in C-Line Ex-
press, 292 NLRB 638 (1989), the Board reversed an administrative law
judge’s finding that an economic strike had been converted into an
unfair labor practice strike as there was no evidence “to indicate that
the strikers were even aware of the Respondent’s unlawful [behavior].”
Id. at 639. Likewise, in F.L. Thorpe & Co., Inc. v. NLRB, 71 F.3d 282
(8th Cir. 1995), notwithstanding that the parties stipulated that the
respondent had committed several serious unfair labor practices, in-
cluding conditioning reinstatement of employees upon their resignation
from the union, the court rejected the Board’s finding that said acts and
conduct converted an economic strike into an unfair labor practice
strike as the record “lacked evidence of sufficient dissemination of the
employer’s unlawful condition among the striking employees.” Id. at
290.
its inception. However, the Board determined that, at the time
the bargaining unit employees gave authorization to the labor
organization, which represented them, to commence a strike,
the only grounds offered by the union were economic issues.
Later, during bargaining, an unfair labor practice issue arose;
nevertheless, the labor organization failed to inform the bar-
gaining unit employees of said act prior to the commencement
of their strike. Subsequently, after the commencement of the
strike, the labor organization informed the membership of the
employer’s unlawful acts, and the employees voted to confirm
the strike. In those circumstances, the Board held that the strike
had not been an unfair labor practice strike at its inception and
had been converted to such a status only when the unit employ-
ees were informed of the respondent’s actions and, with that
knowledge, voted to remain on strike. Id. at 154. In contrast,
in the instant matters, the eight bargaining committee members
never informed their fellow unit members of Respondent’s
asserted unfair labor practices or the changed rationale for their
concerted work stoppage and strike and, of course, the bargain-
ing unit employees never voted to confirm whatever decision
the bargaining committee reached. The critical nature of these
failings can not be emphasized more forcefully.
Besides the aforementioned, notwithstanding the respective,
uncontroverted testimony of employees Nelson, Fowler, and
Imbukwa regarding what was said on July 9 prior to the bar-
gaining committee’s decision to call the concerted work stop-
page and strike against Respondent, I am not convinced that the
bargaining committee actually was motivated by either Pinto’s
unlawful surveillance or Reynolds’ unlawful evictions of em-
ployees in deciding to call for the August 2 through 7 concerted
work stoppage and strike against Respondent. Thus, while
asserting that bargaining committee members informed Esca-
milla they wanted to have an unfair labor practice strike and
later denying the committee called the strike in order to place
pressure upon Respondent to agree to new contract terms, Shei-
la Nelson was impeached by her pre-trial affidavit in which she
stated “The purpose of the strike is to put pressure on the Em-
ployer to reach an agreement with the Union for a new con-
tract.” Likewise, after denying that the purpose of the strike
was to put pressure on Respondent to agree to the Union’s bar-
gaining demands, Sanjanette Fowler was impeached by her pre-
trial affidavit in which she stated, “We began striking at the
Piedmont Gardens. . . . The purpose of the strike is to put bar-
gaining pressure on the Employer.” Also, she admitted that, on
July 9, after the bargaining committee’s decision, she returned
to Respondent’s facility and informed co-workers that the earli-
er bargaining session had not resulted in any agreement, that
the employees had no choice but to strike, and that a reason for
the strike was contract language. Moreover, during the 5-day
strike and picketing outside of Respondent’s facility, strikers
carried placards and chanted slogans identifying economic
concerns as the basis for the concerted work stoppage and
strike, and, other than a boilerplate “ULP Strike” message on
one or more signs, no striker carried a placard specifying any
unfair labor practice as the basis for the strike. Mauka, Inc.,
327 NLRB 803, 804 (1999). In this regard, of course, one
striker told a reporter that economic concerns, a minuscule raise
offer and health insurance, were the strikers’ issues. Finally,
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and of critical import as to motivation, is the Union’s August 6
letter to Oakland Mayor, Ron Dellums, seeking his support for
the strike. Rather than identifying any unfair labor practices as
underlying issues, the Union mentioned only the new contract
bargaining, writing “We have proposed common sense disci-
plinary rules as well as modest economic improvements. Man-
agement, however, has refused to move away from its harmful
disciplinary policies and, instead, has sought to dramatically cut
our healthcare and eliminate our pension fund entirely.” Based
upon the above reasons, and the record as whole, I restate my
conclusion that Respondent’s bargaining unit employees voted
to authorize their negotiating committee to call an economic
strike against Respondent and that such remained the entire
underlying basis for the August 2 through 7 concerted work
stoppage and strike against Respondent.
Counsel for the Acting General Counsel’s alternate theory,
underlying the consolidated complaint allegation that Respond-
ent violated Section 8(a)(1) and (3) of the Act by belatedly
reinstating 13 former strikers and permanently replacing and
refusing to reinstate 25 other former striking employees, is that
“Respondent had an independent unlawful purpose for hiring
the permanent replacements.” As support for this theory for the
violation, counsel relies upon the Board’s decision in Hot
Shoppes, Inc., 146 NLRB 802 (1964), which concerned an
economic strike and the hiring of permanent replacement em-
ployees by the employer. In reversing the trial examiner, who
concluded that an employer may replace economic strikers only
to preserve the efficient operation of his business, the Board
held, “The Supreme Court’s decision in Mackay Radio & Tele-
graph Co., and the cases thereafter, although referring to an
employer’s right to continue his business during a strike, state
that an employer has a legal right to replace economic strikers
at will. We construe these cases as holding that the motive for
such replacements is immaterial, absent evidence of an inde-
pendent unlawful purpose.” Id. at 805. There exists no Board
acknowledgement of the Hot Shoppes exception to an employ-
er’s otherwise unfettered right to hire permanent replacement
employees until Avery Heights, 343 NLRB 1301 (2004).53
Therein, the General Counsel argued to the Board that, in se-
cretly hiring permanent replacement employees, an employer
had an independent unlawful purpose—breaking the Union’s
solidarity and punishing a majority of the striking bargaining
unit employees. After noting an employer may establish a
business justification for failing to reinstate striking employees,
who make an unconditional offer to return to work, by showing
their jobs had been filled by permanent replacements, the Board
held that “a violation will still lie if it is shown that, in hiring

53 This is not to say that the Board had no occasion to do so. Thus,
in Choctaw Maid Farms, 308 NLRB 521 (1992), responding to a con-
tention of the General Counsel that the hiring of permanent replace-
ments was discriminatory and unlawful, the administrative law judge
wrote, “the law allows an employer to hire permanent replacements.
What its state of mind might be in exercising that right is irrelevant.”
Id. at 528. The Board did not discuss the issue. Likewise, in Nicholas
County Healthcare Center, Inc., 331 NLRB 970 (2000), notwithstand-
ing that, utilizing the Hot Shoppes’ rationale, the administrative law
judge found an unlawful purpose for the hiring of permanent replace-
ments, the Board declined to pass on his findings.
the permanent replacements, the employer was motivated by
`an independent unlawful purpose.’ . . . Apart from such a pur-
pose, the employer’s motive for hiring permanent replacements
is immaterial.” Id. at 1305. While failing to explicate the
meaning of the Hot Shoppes exception, the Board concluded
that there was no record evidence of any independent unlawful
motive underlying the Respondent’s hiring of the permanent
replacements at issue. Subsequently, the Second Circuit Court
of Appeals reversed54 the Board, and, in Avery Heights, 350
NLRB 214 (2007), the latter accepted the court’s remand and,
as the law of the case, found, in agreement with the court, that
the respondent had an independent unlawful motive for hiring
the permanent replacements at issue.
Counsel for the Acting General Counsel argues that there ex-
ists “compelling evidence” herein establishing Respondent’s
independent unlawful motive for hiring permanent replace-
ments. Initially, counsel points to the telephone conversation
between the Union’s Attorney, Bruce Harland, and Respond-
ent’s attorney, David Durham on the evening of August 6. In
this regard, having considered the credibility of each, Harland
impressed me as being the more veracious witness. In contrast,
Durham’s demeanor was that of a witness, merely attempting to
bolster his client’s legal position, and, therefore, I shall rely
upon Harland’s account of their conversation. Accordingly, I
find that, after Durham informed Harland that, rather than a
lockout, Respondent would permanently replace approximately
20 of the striking employees and promised to furnish him with
a list of the names of the striking employees, who had been
permanently replaced, Harland asked for Respondent’s reason
for permanently replacing the strikers rather than imposing a
lockout. To this, Durham replied “that Piedmont Gardens
wanted to teach the strikers and the Union a lesson. They
wanted to avoid any future strikes, and this was the lesson that
they were going to be taught.” Next, counsel for the Acting
General Counsel points to Respondent’s arguably discriminato-
ry rationale for converting the status of strike replacement em-
ployees from temporary to permanent. Thus, Gayle Reynolds
admitted that, in making offers to these individuals, rather than
their qualifications for the work, the “more important” and, I
think unlawful, consideration was that they would work during
another work stoppage, and “they had demonstrated that they
were willing to work during the strike.” Planned Building Ser-
vices, Inc., 347 NLRB 670, 708 (2006); National Fabricators,
Inc., 295 NLRB 1095, 1096 (1989).
Absent from either the Board’s decision in Hot Shoppes, Inc.
or in the initial Avery Heights decision is any explanation for,
or analysis of, precisely what the Board meant by the phrase
“independent unlawful purpose” in the above-quoted Hot
Shoppes language. In this regard, counsel for the Acting Gen-
eral Counsel intuits the Board as meaning that “an employer is
free to hire permanent replacements for any non-discriminatory
reason, but where anti-union discrimination is shown to be the

54 The Second Circuit disagreed with the Board on the record evi-
dence, finding that the employer’s secret hiring of permanent replace-
ments was probative of an “illicit” motive to break the union. New
England Health Care Employees Union v. NLRB, 448 F.3d 189, 196
(2d Cir. 2006).
AMERICAN BAPTIST HOMES OF THE WEST 35
reason for the hiring of permanent replacements, a Section
8(a)(3) violation is established.” I disagree. At the outset, I
think that the words, “independent unlawful purpose,” obvious-
ly have significance or the Board would not have used them
and note that the Board relied upon its decision in Cone Broth-
ers Constructing Co., 135 NLRB 108 (1962), for the above
phrase. Thus, one portion of Cone Brothers involves a finding
that the employer therein deliberately provoked pro-union driv-
ers to refuse to cross a picket line and, thereby, engage in a
sympathy strike, which the employer then exploited to unlaw-
fully terminate the drivers with the ultimate goal of challenging
their ballots as nonemployees in a scheduled representation
election—an obvious unfair labor practice. I think, in Hot
Shoppes, the significance of Cone Brothers55 to the Board was
that the employer’s actions therein were ultimately designed to
accomplish an unrelated, unlawful purpose extrinsic to the dis-
charges. In these circumstances, I find compelling counsel for
Respondent’s contention that the “independent unlawful pur-
pose” exception means that the hiring and use of permanent
replacements by the employer is calculated to accomplish an-
other, unlawful purpose, one unrelated to or extraneous to the
strike itself. For example, by hiring permanent replacements,
an employer actually may be attempting to unlawfully foment a
decertification election. Indeed, if such is not the correct inter-
pretation and one accepts counsel for the Acting General Coun-
sel’s interpretation, the words, “independent unlawful purpose,”
render the entire preceding clause a nullity, and the Supreme
Court’s summation of the Hot Shoppes language, in Belknap,
Inc. v. Hale, 463 U.S. 491, 504 fn. 8 (1983)—that an employ-
er’s motive for hiring permanent replacements is “irrelevant—”
would be meaningless. Put another way, surely, if the Supreme
Court meant that when evidence of discriminatory motive is
established, the hiring of permanent strike replacements would
be violative of Section 8(a)(3) of the Act, it would have so stat-
ed. Accordingly, I agree with the above-quoted ruling of the
administrative law judge in Choctaw Maid Farms, supra, and
conclude that, when, as in the instant matters, bargaining unit
employees engage in an economic strike against their employer
and the said employer exercises its right to hire permanent re-
placements in the striking employees’ stead, whatever factors,
lawful or unlawful, contributed to, or motivated, the employer’s
state-of-mind in reaching its decision, unless designed to ac-
complish an unlawful, extraneous purpose, are utterly irrele-
vant. In these circumstances, inasmuch as the factors involved
in Respondent’s decision to hire permanent replacements, its
desire to teach its striking bargaining unit employees a lesson
and its desire to hire individuals, who would cross a picket line
in the event of future strikes, were directly related to its bar-
gaining unit employees’ August 2 through 7 economic strike,
given Respondent’s unquestioned right to do so, it’s underlying
motivation for hiring permanent replacement employees was,
and remains, irrelevant. Accordingly, for all the above-stated
reasons, Respondent did not violate Section 8(a)(1) and (3) of
the Act by failing and refusing to reinstate 25 of its bargaining
unit employees, who engaged in the above economic strike and

55 Cone Brothers did not involve the hiring of permanent replace-
ments by the employer.
by belatedly reinstating 13 of said employees, and, therefore, I
shall recommend dismissal of paragraphs 10 and 11 of the con-
solidated complaint.
Finally, I turn the consolidated complaint allegation that Re-
spondent engaged in acts and conduct, violative of Section
8(a)(1) and (5) of the Act by failing and refusing to provide to
the Union the names and home addresses of its newly hired
permanent replacement employees. In this regard, there is no
dispute, and I find, that 12 days after the conclusion of the Au-
gust 2 through 7 strike, in a letter dated August 19, the Union
sent an information request to Respondent for certain items,
including the names and addresses of the permanent replace-
ment employees, and that, in a letter dated September 6, Re-
spondent’s attorney replied, writing that, inasmuch as Respond-
ent has a legitimate concern as to possible harassment and pos-
sible violence, in the pertinent wage rate and job classification
documents it would identify the permanent replacement em-
ployees, who were hired from outside sources, only by their
initials and without their home addresses. In fact, in the ac-
companying wage rates and job classification documents, Re-
spondent indentified the permanent replacement employees,
who were hired from outside sources, only by their initials and
failed to set forth their respective home addresses. There is
also no dispute that Respondent has continued to withhold the
names and addresses of its permanent replacement employees,
who were hired from outside sources.
It is, of course, well settled Board law that the names and
addresses of bargaining unit employees constitute presumptive-
ly relevant information, which must be furnished to a labor
organization upon request. Beverly Health & Rehabilitation
Services, 346 NLRB 1319, 1326 (2006); Stanford Hospital &
Clinics, 338 NLRB 1042, 1043 (2003). Likewise, the Board
has also held that the names and addresses of permanent strike
replacement employees is presumptively relevant information,
which must be supplied to a requesting labor organization upon
request. Beverly Health & Rehabilitation, supra; Metta Elec-
tric, 338 NLRB 1059, 1065 (2003); Grinnell Fire Protection
Systems Co., 332 NLRB 1257, 1257–1258 (2000).56 However,
an employer may withhold such requested information if it can
establish that there is a clear and present danger that the infor-
mation would be misused by the labor organization. Id. An
employer may establish the existence of such a “clear and pre-
sent danger” upon a showing of acts of bodily injury, acts of
property damage, acts of intimidation, the throwing of rocks or
other harmful objects, threats of violence, and similar acts and
conduct not only at or near the picket line but also at the re-
placements’ residences. Brown & Sharpe Mfg. Co., 299 NLRB
586, 590 (1990). Herein, there is no record evidence of any
such acts of misconduct directed against any replacement em-
ployees, who were hired from outside sources, and, other than
strikers surrounding a vehicle on one occasion and some mild
and typical strike argot, there exists no evidence of acts of ar-
guable misconduct directed toward nonstriking bargaining unit

56 Counsel for Respondent urges that the line of Board cases, holding
such information as presumptively relevant, should be overruled. Such,
of course, is the province of the Board, not that of an administrative law
judge.
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees. Further, Gayle Reynolds testified that, by the time
Respondent replied to the Union’s information request, the
strike had been over for more than a month and that most of the
strikers had been reinstated and were working alongside the
replacement employees without any instances of harassment.
Therefore, rather than objective concerns, it appears that, at the
time it refused to give to the Union the names and addresses of
certain of the permanent replacements, whatever concerns Re-
spondent may have had were, at most, subjective in nature
without factual support.
Nevertheless, citing Good Life Beverage Co., 312 NLRB
1060 (1993), counsel for Respondent argues that, when the
employer has legitimate and substantial confidentiality con-
cerns regarding the information sought by a labor organization,
it is “entitled” to discuss these concerns with the labor organi-
zation in order to “develop mutually agreeable protective con-
ditions” for disclosure of the information. Id. at 1062. Howev-
er, contrary to counsel, Good Life Beverage involves financial
information, and, as the Board noted, “. . . requests for financial
information frequently raise confidentiality questions,” which,
unlike herein, pertain to the nature of the information sought.
In addition, Respondent relies upon two cases involving re-
quests for information pertaining to strike replacement employ-
ees. Thus, in Webster Outdoor Advertising Co., 170 NLRB
1395 (1968), the union requested to examine the employer’s
payroll records to determine the wage rates of strike replace-
ments. While it is true that the employer did not “categorical-
ly” reject the union’s request, expressing reluctance to turning
over the information until receiving assurances had been given
and legitimate need established, the Board noted “that replace-
ments had been harassed, threatened, and assaulted by some of
the striking employees,” and one striker had been “convicted in
state court for assaulting a replacement with a gun.” Id. at
1396. Of course, no similar incidents of harassment, assaults,
or threats occurred to Respondent’s permanent replacement
employees. Also, in Page Litho, Inc., 311 NLRB 881 (1993),
while it is true that, “given the facts of this case,” the Board
refused to find an unlawful refusal to transmit information to a
union after the latter agreed to having the employer provide the
requested payroll information with the strike replacements’
names excised, the Board did find that the employer’s subse-
quent refusal to provide the names of strike replacement em-
ployees was unlawful when the employer’s refusal occurred 4
months after the conclusion of the strike and the last reported
incidents of strike misconduct occurred. As the Board noted it
would be an “unfortunate precedent” to hold “that on the basis
of past strike misconduct, an employer could foreclose for an
indefinite length of time the opportunity for the bargaining
representative to obtain the names of some of its bargaining
unit members.” Id. at 882–883. Herein, of course, not only
were there, at worst, minor incidents of picket line misconduct
but also the strike had concluded over for a month before Re-
spondent replied to the information request and strikers and
replacement employees were working well together in the
jobsite. In these circumstances, I believe that Respondent’s
refusal to transmit the names and addresses of certain of its
permanent replacement employees to the Union was violative
of Section 8(a)(1) and (5) of the Act. Beverly Health & Reha-
bilitation, supra; Page Litho, supra.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By either enforcing its chart of infractions rule 33 in a
disparate manner or implementing a new work rule and evicting
off-duty bargaining unit employees from its facility in order to
deter said employees from assisting the Union with a strike
authorization vote, Respondent engaged in acts and conduct
violative of Section 8(a)(1) of the Act.
4. By, through a security guard, engaging in surveillance or
creating the impression it was engaging in surveillance of its
bargaining unit employees, who were assisting with or partici-
pating in a strike authorization vote, Respondent engaged in
acts and conduct violative of Section 8(a)(1) of the Act.
5. By failing and refusing to furnish the Union with the
names and addresses of its permanent strike replacement em-
ployees, who were hired from outside sources, which infor-
mation is presumptively relevant, Respondent has engaged in
acts and conduct violative of Section 8(a)(1) and (5) of the Act.
6. Respondent’s above-described unfair labor practices af-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
7. Unless specifically found above, Respondent engaged in
no other unfair labor practices.
REMEDY
Having found that Respondent has engaged in, and continues
to engage in, serious unfair labor practices within the meaning
of Section 8(a)(1) and (5) of the Act and Section 8(a)(1) of the
Act. I shall recommend that it be ordered to cease and desist
therefrom and to engage in certain affirmative acts. As I have
found that Respondent has unlawfully failed and refused to
provide the Union with the names and addresses of permanent
replacement employees, who were hired from outside sources, I
shall recommend that it be ordered to do so. In addition, I shall
recommend that it be ordered to post a notice, setting forth its
obligations herein.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended57
ORDER
The Respondent, American Baptist Homes of the West d/b/a
Piedmont Gardens, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Either enforcing the chart of infractions rule 33 in a dis-
parate manner or implementing a new work rule by evicting
off-duty bargaining unit employees from its facility in order to
deter said employees from assisting the Union with a strike

57 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.
AMERICAN BAPTIST HOMES OF THE WEST 37
authorization vote;
(b) Engaging in surveillance or creating the impression it
was engaging in surveillance of its bargaining unit employees,
who were participating in a strike authorization vote;
(c) Failing and refusing to furnish the Union with the names
and addresses of permanent replacement employees, who were
hired from outside sources, which information is presumptively
relevant;
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Provide the Union with the names and addresses of its
permanent replacement employees, who were hired from out-
side sources;
(b) Within 14 days after service by the Region, post at its fa-
cility in Oakland, California, copies of the attached notice
marked “Appendix.”58 Copies of the notice, on forms provided
by the Regional Director for Region 32, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since June 17,
2010;
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges that Respondent violated Section 8(a)(1) of the

58 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.”
Act by belatedly reinstating or refusing to reinstate former
striking employees
Dated, Washington, D.C., August 9, 2011.

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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT either enforce the chart of infractions rule 33 in
a disparate manner or implement a new work rule by evicting
our bargaining unit employees from our facility in order to
deter said employees from assisting Service Employees Interna-
tional Union, United Healthcare Workers–West, herein called
the Union, with a strike authorization vote.
WE WILL NOT engage in surveillance or create the impression
we are engaging in surveillance of our bargaining unit employ-
ees who participate in a strike authorization vote.
WE WILL NOT fail and refuse to furnish the Union with the
names and addresses of permanent replacement employees,
hired from outside sources, which information is presumptively
relevant.
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 furnish the Union with the names and addresses of
permanent replacement employees, who were hired from out-
side sources.

AMERICAN BAPTIST HOMES OF THE WEST D/B/A
PIEDMONT GARDENS