Bloomfield Health Care Center

National Labor Relations Board - Board Decisions

Mar 20, 2008

352 N.L.R.B. 252 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 39
252
Bloomfield Health Care Center and New England
Health Care Employees Union, District 1199,
SEIU. Cases 34–CA–11512, 34–CA–11536, 34–
CA–11559, 34–CA–11562, 34–CA–11600, and
34–RC–2172
March 20, 2008
DECISION, ORDER, AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS LIEBMAN AND SCHAUMBER
On March 30, 2007, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel and Charging Party filed answering
briefs. The General Counsel filed cross-exceptions and a
supporting brief, and the Respondent filed an answering
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions only to the extent consistent with
this Decision, Order, and Certification of Representative
and to adopt the recommended Order as modified and set
forth in full below.2
The judge found that Bloomfield Health Care Center
(the Respondent) committed a number of unfair labor
practices in May 2006,3 and afterward; he recommended
dismissal of several other unfair labor practice allega-
tions. We affirm the judge’s unfair labor practice find-

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
2 We shall modify the judge’s recommended Order to conform to
our findings herein. We shall also substitute a new notice in accor-
dance with the Order as modified and in accordance with our decision
in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354
F.3d 534 (6th Cir. 2004).
Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
3 All dates are in 2006, unless otherwise indicated.
ings except as discussed below. He also recommended
overruling the Respondent’s objections to an election and
certifying the Union. We agree with those latter recom-
mendations as discussed below.
I. ALLEGED INTERROGATION
As explained, we reverse the judge’s dismissal of the
allegation that the Respondent violated Section 8(a)(1)
by interrogating employees, through Administrator Penni
Martin, about their union activities.
The Union held a meeting on July 20, approximately 2
months after the election. Notices of the meeting had
been posted inside the Respondent’s facility. The day
after the meeting, several employees were in the break
room when Martin admittedly asked them how the meet-
ing had gone. At least one employee responded that she
had not attended. According to Martin’s testimony, she
replied that she really did not care who was at the meet-
ing and that she was just making conversation. Em-
ployee Cynthia Masters testified that she did not hear
Martin say that she did not care what happened at the
meeting, but that Martin asked two or three individuals
directly whether they had attended the meeting. Martin
denied that she had asked any employees whether they
had attended the meeting.4
The judge, without resolving the differences between
Masters’ and Martin’s testimony, found that this single
incident “was essentially trivial and noncoercive,” noting
that managers and employees were aware of the meeting
and its time and place as a result of the notices posted
inside the facility. We disagree.
The test for whether an unlawful interrogation oc-
curred is “whether under all the circumstances the inter-
rogation reasonably tends to restrain, coerce, or interfere
with rights guaranteed by the Act.” Rossmore House,
269 NLRB 1176, 1178 fn. 20 (1984), enfd. sub nom.
HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
The Board considers such factors as whether the interro-
gated employee is an open or active union supporter, the
background of the interrogation, the nature of the infor-
mation sought, the identity of the questioner, and the
place and method of the interrogation. Id.; Stoody Co.,
320 NLRB 18, 18–19 (1995). The Board has held that
questioning employees about whether they attended a
union meeting and what occurred at the meeting is an
unlawful interrogation. Resolute Realty Management
Corp., 297 NLRB 679, 685 (1990), and cases cited
therein.

4 Masters and one of the other employees who were questioned had
signed a union petition that was posted in the facility, but Masters testi-
fied that she never wore union buttons to work.
BLOOMFIELD HEALTH CARE CENTER 253
Applying the Rossmore House factors, we find that the
Respondent unlawfully interrogated the employees.
First, although the questioning was in the employees’
break room and not a management office, it was done by
the Respondent’s highest-ranking manager at its facility,
Administrator Martin. Second, although the time and
location of the union meeting were publicized, there is no
indication that the particular employees questioned in the
break room were open and active about their union ac-
tivities. Indeed, the testimony indicates otherwise. Even
assuming, arguendo, that signing the union petition that
had been posted in the facility constituted open and ac-
tive union support, only two of the five to six employees
present had signed the petition. Moreover, the Respon-
dent does not contend that any of the questioned employ-
ees previously had discussed the topic of union meetings
or any other union activities with Martin or that she had
any lawful reason to ask the employees how the union
meeting went. Although Martin denies that she directly
asked the employees who attended the union meeting,
she admits that she asked the employees how the union
meeting had gone. The employees’ responses would re-
veal, at the least, whether they attended the meeting;
thus, the employees were put in a position of having to
confirm or deny protected activity that they have a right
to keep confidential. We find that Martin’s questions
reasonably tended to restrain, coerce, or interfere with
employees’ Section 7 rights.5
II. DENIAL OF ACCESS TO AND SUSPENSION OF OFF-DUTY
EMPLOYEE WINSOME KITSON
We adopt the judge’s finding that the Respondent vio-
lated Section 8(a)(1) by attempting to deny Kitson access
to its facility. We also adopt the judge’s finding that the
Respondent violated Section 8(a)(3) and (1) by suspend-
ing Kitson.6
On the day of the election, union supporter Kitson be-
came involved in a discussion with Penni Martin. Al-
though Kitson denied some of the conduct attributed to
her by Martin, which was alleged as the basis for
Kitson’s subsequent suspension from work, the follow-
ing events are undisputed. The Respondent sponsored
various events on election day, which occurred during
National Nursing Home Week. The events included a

5 In so finding, Member Schaumber relies particularly on Masters’
testimony that Martin, the highest ranking individual at the facility,
directly asked two or three individuals whether they had attended the
meeting; this testimony was not discredited by the judge.
6 In light of our adoption of these findings, we find it unnecessary to
pass on the General Counsel’s cross-exception to the judge’s failure to
find that the Respondent additionally violated Sec. 8(a)(3) by attempt-
ing to deny Kitson access to the facility because this additional finding
would not materially affect our remedy.
wheelchair race for residents and a party for staff mem-
bers in the recreation room. The timing of the party
overlapped with the afternoon election session and an
employee shift change. As is customary, off-duty em-
ployees were among those picking up paychecks; the
Respondent did not have a policy against off-duty em-
ployees entering the facility. Employees picking up pay-
checks, including Kitson, were told to pick up free coffee
mugs that the Respondent was distributing in the recrea-
tion room.
As Kitson was walking toward the recreation room to
get her coffee mug after picking up her paycheck, Martin
approached her and asked what she was doing there.
Kitson responded that she was picking up her paycheck,
and Martin told her that she had to leave the facility be-
cause she was not on duty. Kitson told Martin that she
was going to get a coffee mug, and the two women en-
tered the recreation room. During their conversation,
Kitson asked Martin if she was going to tell other off-
duty employees to leave, and Martin said yes. Martin,
however, did not subsequently do so. Earlier in the day,
Martin had told union supporters Avril Wallace and Fay
Richards to leave. Martin acknowledged that the Re-
spondent had no policy against off-duty employees enter-
ing the facility; she testified that she had decided to im-
plement this edict on the day of the election because she
realized at that time “that it had become so chaotic that
day with all of the activities for the residents that were
happening . . . and the voting and all of the people in the
building.” In the recreation room, both Kitson and Mar-
tin spoke to several other employees who were present,
and Kitson eventually left the building.
Martin acknowledged that there might have been other
off-duty employees in street clothes in the recreation
room, but she testified that she did not pay much atten-
tion. Two employees testified that Martin initiated con-
versations with them upon entering the recreation room,
including complimenting employee Tameka Edwards on
her clothing (because Edwards was off duty, she was not
in uniform).
In contrast to these undisputed facts, the record reflects
several differences in the witnesses’ versions of events.
Martin testified that she told several members of her
management team, including then-Director of Nursing
(DON) Carol Mortensen, of her ad hoc decision to ex-
clude off-duty employees from the facility, but
Mortensen denied that Martin told her to ask off-duty
employees to leave. Martin additionally testified that,
when she approached Kitson, asking her to leave, Kitson
yelled loudly at her, waved her hands and paycheck close
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD254
to Martin, and made several allegedly threatening state-
ments to her in the recreation room. This testimony was
partially corroborated by Jennifer Donovan, a registered
nurse supervisor and Martin’s friend, but the judge cred-
ited Kitson, who denied making the alleged statements or
waving anything in Martin’s face. Rather, according to
Kitson, she asked Martin why she was harassing her
when there were other off-duty employees at the party.
Several witnesses corroborated Kitson’s testimony, in-
cluding DON Mortenson. The judge found that “at
most,” Kitson said either to Martin (or to other employ-
ees in the room) that Martin didn’t know who she was
messing with. The Respondent thereafter suspended
Kitson because of what had occurred between her and
Martin that day.
We agree with the judge, for the reasons he stated, that
Martin’s conduct in telling Kitson that she had to leave
the facility interfered with the employees’ rights to en-
gage in Section 7 activity and therefore violated Section
8(a)(1).
We also agree with the judge that Kitson’s subsequent
suspension violated Section 8(a)(3) and (1).7 The Re-
spondent claims that it suspended Kitson because she
failed to leave the facility and because of her alleged
threats. There is no dispute that the Respondent had
knowledge of Kitson’s prominent union activity, includ-
ing her serving as the Union’s observer for the morning
session of the election. The General Counsel demon-
strated the Respondent’s antiunion animus by showing
disparate treatment; only known prounion employees
were asked to leave the facility, whereas other off-duty
employees were not asked to leave. Indeed, Martin had a
pleasant conversation with employee Edwards in the
recreation room and even complimented her on her off-
duty attire—within minutes of asking Kitson to leave
because she was off duty. Martin was unable to name
any other employees whom she asked to leave, aside
from the three known prounion employees. Moreover,
Edwards’ testimony undermines the Respondent’s argu-
ment that it asked off-duty employees to leave for the
purpose of maintaining an orderly environment. Thus,
the Respondent has not satisfied its burden under Wright
Line8 to prove that it would have suspended Kitson for

7 In adopting the judge’s finding that the Respondent’s suspension
of Kitson violated Sec. 8(a)(3), Member Schaumber finds it unneces-
sary to rely on fn. 5 of the judge’s decision, regarding the Respondent’s
failure to question nonmanagement witnesses during its investigation
prior to suspending Kitson.
8 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). To prove a violation of Sec. 8(a)(3) under
Wright Line, the General Counsel must first show discriminatory mo-
tive, by a preponderance of evidence, by offering evidence that the
employer was aware of the employees’ protected activity and that ani-
failing to leave even in the absence of her protected ac-
tivity.9
We further find that Kitson’s protest against the Re-
spondent’s unfair labor practice was not sufficiently
egregious to remove it from the protection of the Act. In
determining whether an employee’s conduct is so oppro-
brious as to lose the Act’s protection, the Board balances
the following factors: (1) the place of the discussion; (2)
the subject matter of the discussion; (3) the nature of the
employee’s outburst; and (4) whether the outburst was,
in any way, provoked by an employer’s unfair labor
practice. Atlantic Steel Co., 245 NLRB 814, 816 (1979).
All four factors favor finding Kitson’s conduct to be pro-
tected. The incident occurred in and near the recreation
room, not in a work area where work could be disrupted.
The subject matter involved the issue of whether Kitson
had a right to remain on the Respondent’s property, and
whether Martin was discriminating against her because
she was a union supporter. The nature of Kitson’s out-
burst involved no profanity and no threatening conduct,
according to the facts credited by the judge.10 Finally,
Kitson was provoked by Martin’s unfair labor practice of
trying to interfere with Section 7 rights by excluding
only active union supporters from the facility on the day
of the election.

mus against that activity motivated the employer’s alleged discrimina-
tion. The burden then shifts to the employer to demonstrate that the
same action would have occurred even in the absence of protected
conduct. See, e.g., KFMB Stations, 343 NLRB 748, 751 (2004).
Member Schaumber adheres to his previously stated position that
Wright Line requires a showing of a causal nexus between the union
animus and the adverse employment action. Shearer’s Foods, 340
NLRB 1093, 1094 fn. 4 (2003).
9 The Respondent contends that it suspended employee Celina Snell
for similar conduct before the union campaign. The only reference to
Snell is in Kitson’s testimony that she asked Snell where to find anger
management classes, which Snell had previously attended. Kitson
testified that she did not know any details regarding the reason for
Snell’s discipline, and the Respondent did not introduce any such evi-
dence. Therefore, the Respondent has failed to support its counter-
argument to the General Counsel’s showing of disparate treatment.
Additionally, the Respondent disputes the judge’s make-whole rem-
edy based on Kitson’s suspension, arguing that Kitson was responsible
for any delay in returning from her 2-week suspension, due to the tim-
ing of her enrollment in anger-management classes as the Respondent
required. We find it unnecessary to reach this issue because a determi-
nation of the applicable backpay period is more appropriately deter-
mined at the compliance stage of these proceedings.
10 Member Schaumber finds it unnecessary to rely on the judge’s al-
ternate discussion in fn. 6 of his decision, in which he posits that
Kitson’s alleged statements, if made, cannot reasonably be construed as
a threat of assault. Member Schaumber stresses that the Board does not
require an insubordinate or threatening statement by an employee to
necessarily rise to the level of a threat of assault before an employer
may lawfully discipline the employee. Nonetheless, for the reasons
described herein, he finds that the credited facts do not establish con-
duct that falls outside the Act’s protection.
BLOOMFIELD HEALTH CARE CENTER 255
III. UNILATERAL CHANGES
We reverse the judge’s dismissal of the allegation that
the Respondent violated Section 8(a)(5) by unilaterally
eliminating the rehabilitation aide position and transfer-
ring its duties to certified nursing assistants. We also
reverse the judge’s dismissal of the allegation that the
Respondent violated Section 8(a)(5) by unilaterally
changing the work schedules of two employees.
A. Unilateral Elimination of Rehabilitation Aide Position
Carol Blackwood-Lindsey, who holds a certification
as a certified nursing assistant (CNA), was hired as a
rehabilitation aide (RA) in 1997. An RA works with
patients to perform certain exercises to restore the pa-
tient’s range of motion; these RA duties are somewhat
different from those of the CNA position. CNAs also do
some range of motion exercises with patients, but CNAs
have additional tasks. As an RA, Blackwood-Lindsey
worked Monday through Friday, but not on weekends.
Sometime in 2004, the Respondent reassigned Black-
wood-Lindsey to work 3 days a week as an RA and 2
days a week as a CNA. In May 2006, several weeks be-
fore the election, the Respondent reassigned Blackwood-
Lindsey to again work a Monday through Friday sched-
ule as an RA.
In early August (several months after the Union won
the election), the Respondent eliminated the RA position
but allowed Blackwood-Lindsey to continue to work as a
full-time CNA. The Respondent transferred the duties of
the RA position to the CNAs. As a result, Blackwood-
Lindsey performed on-the-job training with the CNAs to
demonstrate the RA duties, which took about 5 minutes
per patient. This change also resulted in the requirement
that Blackwood-Lindsey work some weekend days, as
described in the following section. It is undisputed that
the Respondent did not notify the Union of the change or
provide an opportunity to bargain about it. Therefore,
the only issue is whether the change was material and
substantial. The judge found that it was not. He stated
that the change did not make much difference in the jobs
of the other CNAs, and there was no evidence that it re-
sulted in more overall work for them. He found that
“Walking patients and doing arm exercises was some-
thing that they did during the course of their normal job
duties and to the extent that there was any change . . . it
took about five minutes per patient to learn.”
We find merit in the General Counsel’s exceptions. In
Finch, Pruyn & Co., 349 NLRB 270, 277–278 (2007),
the Board found that an employer violated Section
8(a)(5) by unilaterally eliminating a unit position called a
“pcc oiler” and reassigning the position’s duties, which
took about an hour per day, to another oiler position.
The Board reiterated that the elimination of a unit job is a
mandatory subject of bargaining, even if the job is elimi-
nated for economic reasons. Id. at 277. The Board
found this violation notwithstanding the fact that the pcc
oiler duties had historically been included in the “base-
ment oiler” position before they were performed by an
employee who worked solely as a pcc oiler. Id.
Here, the Respondent’s elimination of the RA position
and transfer of duties to the CNA position was a material
and substantial change no different from the unilateral
change in Finch, Pruyn. The fact that RA duties can
easily be assigned to other employees without necessar-
ily increasing their hours of work does not negate the fact
that a unit position has been eliminated and the duties of
the position redistributed without giving the Union prior
notice and an opportunity to bargain. Moreover, the de-
cline in the number of patients is analogous to the lack of
full-time pcc oiler work in Finch, Pruyn and does not
rise to the level of compelling economic considerations.
Maple Grove Health Care Center, 330 NLRB 775, 779
(2000) (citing Hankins Lumber Co., 316 NLRB 837, 838
(1995)). Additionally, the Respondent acted at its peril
by changing terms and conditions of employment while
its objections to the election were pending. Mike O’
Connor Chevrolet-Buick-GMC Co., 209 NLRB 701, 703
(1974), enf. denied on other grounds 512 F.2d 684 (8th
Cir. 1975). Accordingly, because we certify the Union
as the bargaining representative of the unit employees,
we reverse the judge and find that the Respondent vio-
lated Section 8(a)(5) by unilaterally eliminating the RA
position and transferring its duties to CNAs.
B. Unilateral Changes to Work Schedules
Because CNAs are required to work every other week-
end, the unilateral change described above resulted in
Blackwood-Lindsey’s having to work weekends rather
than her former Monday through Friday schedule. When
changing Blackwood-Lindsey’s schedule, Martin real-
ized that another CNA, Avril Wallace, did not work
weekends. Although Wallace had been working only
Monday through Friday for 20 years at the Respondent’s
facility, the Respondent subsequently required her to
work alternating weekends like all other CNAs.
Again, it is undisputed that the Respondent did not
provide notice to the Union or an opportunity to bargain,
and the issue is whether the changes were material and
substantial. The judge found that “what really took place
was to have all employees conform to what had been
basically the uniform practice of requiring CNAs to work
alternative weekends.” (Emphasis in original.) He noted
that this change affected only two employees in a much
larger unit, who had previously been working under ex-
ceptions to the uniform rule.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD256
We find merit in the General Counsel’s exceptions.
The Board has held that an employer violates Section
8(a)(5) by making unilateral changes in the workweek
that require employees to work on weekends and take
days off during the normal workweek. Mimbres Memo-
rial Hospital, 342 NLRB 398, 399 (2004), enfd. sub
nom. NLRB v. Community Health Services, 482 F.3d 683
(10th Cir. 2007) (changed schedule that included week-
end work found to be a unilateral change); Pepsi-Cola
Bottling Co. of Fayetteville, Inc., 330 NLRB 900, 904,
912 (2000), enfd. mem. 2001 WL 791645 (4th Cir. 2001)
(requiring employees to work on the weekend for the
first time was deemed to be a mandatory subject of bar-
gaining). Significantly, the Board in both cases held that
such changes are material and substantial changes to
terms and conditions of employment. Mimbres Memo-
rial Hospital, 342 NLRB at 401; Pepsi-Cola Bottling
Co., 330 NLRB at 904. Additionally, in Intracoastal
Terminal, Inc.,11 the Board held that changing a Monday
through Friday workweek to Wednesday through Sunday
is an unlawful unilateral change, rejecting the argument
that the changes in work schedules were insubstantial
and noting the well-settled principle that “regular and
overtime hours of work are vital aspects of working con-
ditions” that must be discussed with the employee’s rep-
resentative.12 Likewise, the Respondent’s change in the
workweek for Blackwood-Lindsey and Wallace is a
mandatory subject of bargaining and a material and sub-
stantial change.
The judge’s reasoning that the Respondent’s unilateral
change affected only two employees is similarly unper-
suasive. The Board rejected such an argument in Car-
penters Local 1031, 321 NLRB 30, 32 (1996) (the Board
is not precluded from finding 8(a)(5) violation even if
unilateral change affects only one employee). See also
Georgia Power Co., 325 NLRB 420, 420 fn. 5 (1998)
(“[I]f a change involves the terms and conditions of em-
ployment of unit employees, it is a mandatory subject
even if only a relatively few employees are affected.”),
enfd. mem. 176 F.3d 494 (11th Cir. 1999), cert. denied
528 U.S. 1061 (1999). Accordingly, we reverse the
judge and find that the Respondent violated Section
8(a)(5) by failing to give the Union notice and an oppor-
tunity to bargain about the schedule changes.
IV. ELECTION OBJECTIONS
We have also considered objections to the election
held on May 18, and the judge’s decision recommending

11 125 NLRB 359, 359–360, 367–368 (1959), enf. denied in relevant
part on other grounds 286 F.2d 954 (5th Cir. 1961) (court, unlike
Board, found that parties had reached impasse).
12 125 NLRB at 367–368 (citing Fleming Mfg. Co., 119 NLRB 452
(1957)).
disposition of them. The election was conducted pursu-
ant to a Stipulated Election Agreement. The tally of bal-
lots shows 68 votes cast for and 42 votes cast against
New England Health Care Employees Union, District
1199, SEIU (the Union), with 7 challenged ballots, an
insufficient number to affect the results. As discussed
below, we affirm the judge’s decision to overrule the
Employer’s objections to the election and we certify the
Union as the employees’ exclusive bargaining represen-
tative.
A. Kitson/Martin Incident
The Respondent alleged that the incident involving
Winsome Kitson and Penni Martin, described above,
constituted objectionable conduct. The judge recom-
mended overruling this objection, noting his finding that
Kitson did not make any threatening statements to Martin
or engage in any conduct that could reasonably be con-
strued as threatening. The Respondent excepts, arguing,
inter alia, that Kitson threatened and intimidated Martin,
which had a similar effect on eligible voters. The Re-
spondent alleges that Kitson was an agent of the Union
because she served as its observer, engaged in leafleting,
appeared in campaign materials, drove coworkers to the
polling place, and spoke out on behalf of the Union dur-
ing the organizing campaign. The Respondent argues,
however, even assuming Kitson was not an agent of the
Union, that her conduct nonetheless meets the nonparty
standard of objectionable conduct discussed below.
The judge did not specify whether he was applying the
party standard (whether the conduct “reasonably tend[ed]
to interfere with the employees’ free and uncoerced
choice in the election”), which would apply if Kitson was
an agent of the Union, or the third-party standard
(whether the conduct was “so aggravated as to create a
general atmosphere of fear and reprisal rendering a free
election impossible”). Robert Orr-Sysco Food Services,
338 NLRB 614, 615 (2002), and cases cited therein.
Based on the facts as credited by the judge, Kitson’s con-
duct does not satisfy either the third-party standard or the
party standard for objectionable conduct. As the judge
found, Kitson said, at most, either to Martin or to other
employees in the recreation room that Martin didn’t
know who she was messing with. As noted above, he
credited testimony that Kitson neither yelled nor made
any threatening gestures or statements. Given the con-
text of Kitson’s statement, which was part of a “very
minor” conversation in which she was protesting Mar-
tin’s unfair labor practice, we find no threat that could
have interfered with employees’ free choice or created a
general atmosphere of fear and reprisal.
BLOOMFIELD HEALTH CARE CENTER 257
B. The Union’s Dues Policy
The Respondent also alleged that the Union engaged in
objectionable conduct by offering to waive dues for cer-
tain eligible voters. According to the testimony of sev-
eral management employees, some unit employees said
that the Union told them that they would not have to pay
dues as Bloomfield employees if they worked at other
facilities represented by the Union and paid dues there
(many of the unit employees had second jobs at other
facilities). The Union’s actual dues policy, as explained
in campaign literature distributed before the election, is
somewhat more detailed. Dues are based on each em-
ployee’s pay, up to a maximum fee of $60 per month.
Thus, if an employee is employed at another facility rep-
resented by the Union and already pays the maximum
amount of dues, that employee’s dues would not increase
if the Union became the bargaining representative at the
Respondent’s facility. The Union’s campaign materials
included documents containing the statement “If you
work two or more 1199 jobs and pay more than the
monthly max, you’ll receive a refund of the difference.”
The judge concluded that the Respondent’s evidence
was based solely on hearsay because the Respondent did
not present any direct evidence from unit employees as
to what the Union told them. The judge also noted that
none of the employees who allegedly described the dues
policy were shown to be agents of the Union, and thus,
there was no objectionable conduct even if these em-
ployees misunderstood the Union’s dues policy and ex-
pressed that misunderstanding. Although the judge did
not specify what weight, if any, he gave to the hearsay
testimony, it appears that he relied on this evidence only
to the extent that it shows the employees’ interpretation
of what they might have heard but not to prove the truth
of the Respondent’s assertion that union officials actually
made inaccurate statements about waiving dues.13

13 The Respondent argues that its right to a fair hearing was preju-
diced because the judge decided the merits of this objection before
hearing any evidence. We reject that contention. The Union objected to
the Respondent’s attempt to elicit the hearsay testimony described
above. The judge allowed the Respondent’s attorney to make an offer
of proof describing what its witness’s testimony would be regarding the
alleged union dues rumor. Although the judge viewed the proffered
evidence as neither material nor probative of whether the Respondent’s
election objection was valid, he nonetheless allowed the testimony to
complete the record in the event of a possible appeal or remand as to
the admissibility of the evidence.
The judge’s ruling cannot be fairly characterized as prematurely de-
ciding the merits of the issue and prejudicing the Respondent’s right to
due process. As an alternative to sustaining the Union’s objection to
the testimony and excluding the evidence altogether as irrelevant hear-
say testimony, the judge allowed the testimony for the limited purpose
of developing the record for possible future use on appeal. Thus, the
judge acted to the Respondent’s benefit in preserving the admissibility
issue for review without the necessity of a remand in the event that it
We agree with the judge’s recommendation to overrule
this objection. Even assuming, as the judge did, that
some employees misunderstood the dues policy, there is
no evidence that the Union or its agents knew about or
perpetuated any misunderstanding or unlawful promise
to waive dues. The Union distributed literature to em-
ployees during the campaign that contained the lawful,
accurate description of its policy quoted above. Contrary
to the Respondent’s argument, the Union’s statement
about receiving a refund of dues payments in excess of
the monthly maximum is not ambiguous.14 Accordingly,
we find that the Union did not engage in objectionable
conduct.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action necessary to
effectuate the policies of the Act.
As we have adopted the judge’s finding that the Re-
spondent illegally suspended Winsome Kitson, we shall
order it to offer her full reinstatement to her former job
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or any
other rights or privileges previously enjoyed, and to
make her whole for any loss of earnings and other bene-
fits, computed on a quarterly basis from the date of the
suspension to the date of a proper offer of reinstatement
less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
We amend the judge’s proposed remedy to address the
additional 8(a)(5) violations that we have found. The
Respondent must, at the Union’s request, rescind the
unilateral changes it has made, provide the Union notice
and an opportunity to bargain prior to implementing such
changes in the future or any other changes in wages,
hours, or other terms and conditions of employment, and
make its employees whole for their losses. Any backpay
due for these violations shall be determined in the man-
ner set forth in Ogle Protection Service, 183 NLRB 602
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest

was determined on appeal that the evidence should have been allowed.
We further find that even if the Respondent’s evidence is considered
and its admissibility is assumed, it is insufficient to establish that the
Union either promulgated or had knowledge of any inaccurate or
unlawful descriptions of its dues policy.
14 And, assuming, arguendo, that the Union or its agents were re-
sponsible for ambiguous statements, the Union clearly publicized its
lawful dues policy in literature that was widely disseminated to em-
ployees during the organizing campaign. Hollingsworth Management
Service, 342 NLRB 556, 559 (2004); Davlan Engineering, 283 NLRB
803, 805 (1987).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD258
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The Respondent, Bloomfield Health Care Center,
Bloomfield, Connecticut, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their un-
ion activities.
(b) Preventing off-duty employees from entering the
facility in order to talk to other employees about the Un-
ion or about other employment matters of mutual con-
cern.
(c) Suspending employees because of their union or
protected concerted activity.
(d) Unilaterally eliminating the position of “Rehabili-
tation Aide” and transferring those duties to the Certified
Nursing Assistants without first giving notice to and bar-
gaining with the Union.
(e) Unilaterally changing employees’ work schedules
without first giving notice to and bargaining with the
Union.
(f) 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
Winsome Kitson full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Winsome Kitson whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against her, in the manner set forth in the
amended remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspension of
Winsome Kitson, and within 3 days thereafter notify the
employee in writing that this has been done and that the
suspension will not be used against her in any way.
(d) 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 re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the employees in the following bargaining unit:
All full-time and regular part-time service and mainte-
nance employees, including all certified nursing assis-
tants, rehabilitation aides, dietary aides, recreation
aides, cooks, housekeepers, laundry aides, sched-
uler/supply coordinators, receptionists, and mainte-
nance employees, but excluding all business office
clerical employees, department heads, certified thera-
peutic recreation directors, payroll clerks, and all other
employees, and all professional employees, guards and
supervisors as defined in the Act.
(f) On the Union’s request, rescind the elimination of
the rehabilitation aide position and transfer of its duties
to certified nursing assistants.
(g) On the Union’s request, rescind the changes to the
work schedules of Carol Blackwood-Lindsey and Avril
Wallace.
(h) Make Carol Blackwood-Lindsey and Avril Wallace
whole for losses suffered as a result of the unlawful
changes in the manner set forth in the amended remedy
section of this decision.
(i) Within 14 days after service by the Region, post at
its Bloomfield, Connecticut facility copies of the at-
tached notice marked “Appendix.”15 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 34, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered 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 em-
ployees and former employees employed by the Respon-
dent at any time since May 18, 2006.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-

15 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.”
BLOOMFIELD HEALTH CARE CENTER 259
testing to the steps that the Respondent has taken to
comply.
3. Substitute the attached notice for that of the admin-
istrative law judge.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for New England Health Care Employees Un-
ion, District 1199, SEIU, and that it is the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time service and mainte-
nance employees, including all certified nursing assis-
tants, rehabilitation aides, dietary aides, recreation
aides, cooks, housekeepers, laundry aides, sched-
uler/supply coordinators, receptionists, and mainte-
nance employees, but excluding all business office
clerical employees, department heads, certified thera-
peutic recreation directors, payroll clerks, and all other
employees, and all professional employees, guards and
supervisors as defined in the Act.
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 vio-
lated 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 coercively interrogate you about your
union activities.
WE WILL NOT prevent off-duty employees from enter-
ing the facility in order to talk to other employees about
the Union or about other employment matters of mutual
concern.
WE WILL NOT suspend employees because of their un-
ion or protected concerted activity.
WE WILL NOT unilaterally eliminate the position of
“rehabilitation aide” and transfer those duties to the Cer-
tified Nursing Assistants without first giving notice to
and bargaining with the Union.
WE WILL NOT unilaterally change employees’ work
schedules without first giving notice to and bargaining
with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Winsome Kitson full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Winsome Kitson whole for any loss of
earnings and other benefits resulting from her suspen-
sion, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension of Winsome Kitson, and WE WILL, within
3 days thereafter, notify her in writing that this has been
done and that the suspension will not be used against her
in any way.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
our unit employees, notify and, on request, bargain with
the Union as the exclusive collective-bargaining repre-
sentative of employees in the following bargaining unit:
All full-time and regular part-time service and mainte-
nance employees, including all certified nursing assis-
tants, rehabilitation aides, dietary aides, recreation
aides, cooks, housekeepers, laundry aides, sched-
uler/supply coordinators, receptionists, and mainte-
nance employees, but excluding all business office
clerical employees, department heads, certified thera-
peutic recreation directors, payroll clerks, and all other
employees, and all professional employees, guards and
supervisors as defined in the Act.
WE WILL, on the Union’s request, rescind the elimina-
tion of the rehabilitation aide position and transfer of its
duties to certified nursing assistants.
WE WILL, on the Union’s request, rescind the changes
to the work schedules of Carol Blackwood-Lindsey and
Avril Wallace.
WE WILL make Carol Blackwood-Lindsey and Avril
Wallace whole for losses suffered as a result of the
unlawful changes less any net interim earnings, plus in-
terest.
BLOOMFIELD HEALTH CARE CENTER
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD260
Jennifer Dease, Esq., for the General Counsel.
John G. Zandy, Esq., for the Respondent.
Kevin A. Creane, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in Hartford, Connecticut, on February 13, 14, and 15,
2007.
A petition for an election was filed by the Union on April 10,
2006. Pursuant to a Stipulated Election Agreement approved
by the Regional Director on April 19, 2006, an election was
conducted on May 18, 2006. Although a majority of the votes
were cast for the Union, the Employer filed Objections to the
Election on May 25, 2006.1 On September 8, 2006, the Re-
gional Director issued a Report on Objections and concluded
that a hearing should be held with respect to Objections 1 and
5. These objections allege (a) that on the day of the election,
employee Winsome Kitson, acting as the observer for the Un-
ion, threatened the Respondent’s administrator and communi-
cated her threats to eligible voters; and (b) that representatives
of the Union told eligible voters that the Union would waive
union dues for employees who also worked at other facilities
represented by the Respondent.
The Board issued a Decision and Order on October 26, 2006,
sustaining the Regional Directors findings with respect to the
objections.2
The charge and amended charge in Case 34–CA–11512 were
filed on May 25 and July 31, 2006. The charge in Case 34–
CA–11536 was filed on June 22, 2006. The charge and
amended charge in Case 34–CA–11559 were filed on July 24
and October 30, 2006. The charge and amended charge in Case
34–CA–11562 were filed on July 28 and October 30, 2006.
The charge and amended charge in Case 34–CA–11600 were
filed on September 22 and October 30, 2006.
The Regional Director issued a complaint on August 30,
2006, and issued another consolidated amended complaint on
October 31, 2006. The latter complaint, which consolidated all
allegations, made the following assertions.
1. That on May 1, 2006, the Respondent, by letter, threat-
ened employees with the loss of hours if they selected the Un-
ion.
2. That on or about July 21, 2006, the Respondent, by Penni
Martin (a) interrogated employees about their union activities
and (b) created the impression that their union activities were
being kept under surveillance.
3. That in its “Employee Handbook,” the Respondent main-
tained a rule, enforceable by disciplinary action, prohibiting
employees from discussing each other’s salaries.3

1 Of approximately 117 eligible voters, the Union received 68 votes
while 42 votes were cast against the Union and 7 ballots were chal-
lenged. The challenged ballots were therefore not determinative of the
outcome of the election.
2 The Employer withdrew Objections 2, 3, and 4 and the Regional
Director found that Objection 6 had no merit.
3 Martin claims that she told Carol Mortenson, the director of nurs-
ing, about her decision to exclude off-duty employees from the facility.
Mortenson, however, denies that this was the case.
4. That on or about May 18 and 19, 2006, the Respondent
for discriminatory reasons, denied its employee Winsome
Kitson access to its facility and suspended her from employ-
ment.
5. That on or about May 18, 2006, a majority of the employ-
ees in an appropriate bargaining unit, selected the Union as
their collective-bargaining representative. The unit consists of
the following employees of the Respondent:
All full-time and regular part time service and maintenance
employees, including all certified nursing assistants, rehabili-
tation aides, dietary aides, recreation aides, cooks, housekeep-
ers, laundry aides, scheduler/supply coordinators, reception-
ists, and maintenance employees, but excluding all business
office clerical employees, department heads, certified thera-
peutic recreation directors, payroll clerks, and all other em-
ployees, and all professional employees, guards and supervi-
sors as defined in the Act.
6. That on or about June 29, 2006, the Respondent unilater-
ally and without affording the Union an opportunity to bargain,
implemented an attendance policy concerning making up
weekend shifts.
7. That on or about July 13, 2006, the Respondent unilater-
ally and without affording the Union an opportunity to bargain,
implemented a scheduling and time-off policy.
8. That on or about September 18, 2006, the Respondent
unilaterally and without affording the Union an opportunity to
bargain, eliminated the position of “Rehabilitation Aide” and
transferred those duties to the certified nursing assistants.
9. That on or about September 23, 2006, the Respondent
unilaterally and without affording the Union an opportunity to
bargain, instituted a policy of enforcing its previously unen-
forced telephone usage policy.
10. That on or about October 1, 2006, the Respondent unilat-
erally and without affording the Union an opportunity to bar-
gain, changed the work schedules of certain employees.
At the hearing, based on a non-Board settlement, the Union
withdrew and I approved the following allegations:
1. The contention that the rule in the handbook prohibiting
employees from talking to each other about their pay and bene-
fits was unlawful. The Company agreed to delete this provision
from the employee handbook.
2. The contention that the Company unilaterally imple-
mented an attendance policy concerning making up weekend
shifts. The parties agreed that this “change” was not actually
implemented and that the Company would maintain the status
quo as it existed before the election.
3. The contention that the Company unilaterally instituted a
policy of enforcing its previously unenforced telephone usage
policy. The evidence showed that after the purported change,
the rule continued to be unenforced and the Company agreed to
maintain the status quo as it existed before the election.
Based on the evidence as a whole, including my observation
of the demeanor of the witnesses and after consideration of the
briefs filed, I make the following
BLOOMFIELD HEALTH CARE CENTER 261
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is admitted and I find that the Respondent is engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. It also is admitted that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company operates a 120-bed nursing home in Bloom-
field, Connecticut. The facility has four wings. At the time of
the organizing campaign and election, the administrator was
Penni Martin and the director of nursing was Carol Mortenson.
There were approximately 117 employees in the bargaining
unit.
The Union’s organizing campaign started sometime in Feb-
ruary or March 2006. The campaign was headed up by Union
Representative Malcolm Harris and he was assisted, from time-
to-time, by two other paid union organizers whose names are
Suzi Hewitt and Yvonne Beck. Also involved in the campaign,
under the direction of Harris, were about 20 employees who by
attending union meetings, were described as an organizing
committee. According to Harris, the members of the organiz-
ing committee were self-selected and they engaged in solicita-
tion and literature distribution activities. He testified that they
were not authorized to make policy or to write or determine the
kinds of literature given out to employees. This group included
Winsome Kitson, who the General Counsel alleges to have
been discriminatorily suspended. Others in this group included
Avril Wallace, Millicent Jackie Jordan, Fay Richards, and
Carol Bowen.
Carol Mortenson testified that during conversations that she
had with Penni Martin, the latter told her that she was aware
that Kitson, Avril Wallace, and another employee named Ber-
nadette were very strong union supporters.
On or about April 10, 2006, Wallace and a group of about 20
employees entered the premises where they made a demand for
recognition. On that same day, the Union filed a petition for an
election. As noted above, the parties entered into a Stipulated
Election Agreement on April 19, 2006, and an election was
conducted on May 18, 2006.
B. The May Memorandum
On May 1, 2006, the Employer issued a memorandum to
employees stating that there would be an election on May 18,
2006 and that management believed that union representation
would not be in the best interest of the employees. The memo-
randum noted that within the next few weeks, management
would be holding a series of mandatory meetings to discuss
union representation and collective bargaining. There is one
sentence in this memorandum that the General Counsel alleges
to be an illegal threat of reprisal. This states:
This is a very important issue that will affect each and every
staff member. It can affect your status as a per diem em-
ployee, the availability of hours and the ability of our manag-
ers to use per diem staff to assure adequate staffing.
In my opinion, the memorandum does not rise to the level of
a threat of reprisal. In her brief, the General Counsel under-
lined the first sentence, which states that the election will affect
each and every staff member. That sentence, constituting a
generalized prediction that electing union representation will
affect the staff is self evidently true, but nonspecific. The sec-
ond portion of the memorandum merely states that the selection
of a union can affect per diem employees in terms of their
status and hours of work. It does not state how it can affect
these employees and doesn’t even indicate that a possible affect
might be adverse. A statement that the selection of a union can
affect terms and conditions of employment is self evident and
should reasonably be construed not as a threat that the em-
ployer will take a specific adverse course of action, but that
negotiations may change the existing hours and terms and con-
ditions of employment for the people encompassed by the ne-
gotiations.
C. The Election, the Party, and the Suspension of
Winsome Kitson
The election was held on Thursday, May 18 (a payday), and
it was held in two sessions. The first session was held from 6 to
8 a.m. The second session was held from 2 to 5 p.m. At the
first session, the Union selected Winsome Kitson, who that day,
was off duty, to be its observer. For the afternoon session,
commencing at 2 p.m., the Union selected Carol Bowen, to be
its observer.
Also on May 18, the Employer had previously chosen to
have some other events at the facility. One was a wheelchair
race held in the lobby area of the facility. The second was a
party to which all employees had been invited and which was
held from 11 a.m. to about 4 p.m. in the recreation room. (Thus
overlapping the afternoon session of the election.) The party,
described by Martin in her announcement as the “Big Event”
was held in a large room that was located between the lobby
where employees picked up their paychecks and the dining
room where the election was being conducted. It is clear to me
that the party was conducted by the Company so as to contain a
mild form of electioneering. In this regard, employees were
given mugs, plates, and cups that contained the phrases, “give
Penni a chance,” and “Union no.”
The Respondent asserts that the reason it suspended Kitson
was because she refused to leave the facility when asked to do
so by Martin and that she threatened Martin during the transac-
tion.
Martin claims that sometime on the morning of May 18, she
thought that the situation at the facility was going to be too
chaotic given the election, the party and the wheelchair races.
She testified that she therefore decided to disinvite from the
party, all employees who were not on duty. This ad hoc deci-
sion made by Martin, was contrary to existing policies and/or
practices that allowed off-duty employees to visit the facility
and talk to other employees. It also was not communicated to
any employees except for employees known by Martin to be
union activists. In this regard, the evidence shows that it was
not applied to any other employees who attended the party and
who were not on duty at the time. Indeed, it is obvious that
Martin essentially decided to exclude from this party (where the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD262
Employer was engaged in a form of electioneering), those indi-
viduals who Martin knew might try to convince employees to
vote in favor of unionization. In effect, Martin decided to ex-
clude Kitson, Richards, and Wallace because she thought they
might undermine the Respondent’s last minute attempt to influ-
ence the employees to vote against the Union.
The evidence shows that after obtaining her check from the
receptionist in the lobby, Kitson was told that they were giving
out mugs to employees in the recreation room. As Kitson pro-
ceeded to the room, Martin came up behind her and asked
where she was going. When told, Martin informed Kitson that
she had to leave because she was not on duty. Kitson ignored
her and continued into the recreation room where she got her
mug. During that brief period of time, Martin again asked her
to leave and Kitson asked Martin why she was harassing her
when other off-duty employees were in the room and attending
the party. Shortly thereafter, Kitson left and went out to the
parking lot where she reported the incident to union organizer
Harris and to other employees.
Martin claims that when she approached Kitson and told her
that she had to leave, Kitson started to yell and scream and
began waving her check in her face. She states that when she
followed Kitson into the recreation room, to ask her to leave,
Kitson continued to yell and scream at her. According to Mar-
tin, while in the hallway and also inside the recreation room,
Kitson said that she (Martin), didn’t know who she was mess-
ing with; that she was messing with the wrong person; and that
she didn’t know who she was dealing with. Martin claims that
based on Kitson’s statements and behavior, she was afraid that
Kitson might assault her. She didn’t.
Martin’s testimony was corroborated to some degree by Jen-
nifer Donovan who is a supervisor of the Respondent and a
personal friend of Martin. On the other hand, the General
Counsel offered the credible testimony of Kitson and four other
employees who were present in the recreation room including
Carol Mortenson, the former director of nursing. All of these
people testified that they did not hear Kitson yell or scream or
wave anything at Martin.4 To the extent that they heard any-
thing said between Kitson and Martin, they testified that Kitson
asked why other off-duty employees were being allowed to
attend the party and she was not. They denied that Kitson en-
gaged in any type of physical behavior that could be viewed as
threatening. At most, Carol Mortenson testified that she heard
Kitson say to some other employees in the room, that Martin
didn’t know who she is messing with.
The evidence also shows that after Kitson left the facility and
met with some people at the parking lot, she related the incident
with Martin. Although described as being upset, witnesses
testified that she did not yell, curse or scream. The harshest
thing attributed to her was reported by Michelle Womack who
testified that when she asked Kitson why Martin had asked her
to leave, was told by Kitson; “she don’t know what [I’m] capa-
ble of.” In this regard, Kitson testified that Harris told her to
write everything down because he might file a charge.

4 I note that the door to the recreation room was open and if as Mar-
tin contends, Kitson was yelling in the hallway, this would have at-
tracted the attention of people in the recreation room.
On Friday, May 19, 2006, Kitson was told on the phone by
Penni Martin that she should not come to work and that the
Company was investigating the alleged threats that Kitson
made on May 18. Subsequently on May 25, Kitson was sus-
pended and notified that she could not come back to work until
she enrolled in an anger management course.5
In my opinion, Martin’s decision to exclude from the facility,
the known union activists, including Kitson, interfered with the
employees’ rights to engage in union activity and therefore
violated Section 8(a)(1) of the Act. In this regard, off-duty
employees have always been allowed to visit the facility and
talk to other employees. The decision made by Martin on May
18, 2006, was not designed to deal with an allegedly “chaotic
situation.” Rather, it is my opinion that Martin’s decision was
designed to exclude only those off-duty employees who might
decide to go to the Respondent’s party and by speaking in favor
of the Union to other employees, undermine the electioneering
that the Respondent was doing on its premises on the day of the
election.
Therefore, it is my opinion that the Respondent violated Sec-
tion 8(a)(1) of the Act when Martin told Kitson that she had to
leave the facility when Kitson was attempting to go to the
party. Kitson ignored her and this caused what I think was a
very minor confrontation between Kitson and Martin. The
credible evidence shows that at most, Kitson said either to Mar-
tin or to other employees in the recreation room that Martin
didn’t know who she was messing with. But this, in my opin-
ion, is not even remotely equivalent to a threat of assault. I
think that the description of the confrontation by Martin and her
friend Donovan was greatly exaggerated. In short, I credit
Kitson and the other witnesses who testified that Kitson, neither
in the facility nor outside, cursed, yelled, screamed or otherwise
made any gestures or statements that could be construed as
threatening to a reasonable person.6
Inasmuch as the decision to suspend Kitson was made be-
cause of the transaction that occurred between her and Martin
on May 18, and since that transaction was provoked by Mar-
tin’s unlawful attempt to force Kitson off the premises in order
to prevent her from talking to other employees about the elec-
tion, I conclude that the suspension violated Section 8(a)(1) and
(3) of the Act.7

5 In making the determination to suspend Kitson, it appears that the
Company relied on statements given by Martin and Donovon and that
none of the other people who were in the room were questioned.
6 Michelle Womack testified that after she voted, she spoke to
Kitson in the parking lot. Womack testified that Kitson told her that
Penni Martin had asked her to leave the facility because she was off the
clock; that Kitson told Martin to get off her back and leave her alone;
and that “she” [Martin] did not know what she [Kitson] is capable of.
Assuming that Kitson made this statement, I don’t think that it can
reasonably be construed as a threat of assault.
7 See for example, Louisiana Council No. 17 AFSCME, 250 NLRB
880, 886 (1980). Having determined that Kitson’s suspension was
illegal, it is not necessary for me to consider the impact of the Com-
pany’s requirement that she enroll in an anger management course.
This is simply not relevant.
BLOOMFIELD HEALTH CARE CENTER 263
D. Alleged Interrogation and Impression of Surveillance
Cynthia Masters testified that on or about July 21, 2006, she
and some other employees were in the breakroom when Martin
asked if they had gone to the meeting and how it was. Masters
assumed that Martin was talking about a union meeting that had
been held the night before. She testified that after the other
employees said that they had not gone to the meeting, Martin
asked her if she was okay. Masters testified that at that point
she replied that she was okay and that the two walked out to-
gether.
Regarding this incident, Martin testified that she knew about
the union meeting because notices of the meeting had been
posted inside the facility. She concedes that on the day in ques-
tion she was in the breakroom and asked the employees how
the meeting had gone. According to Martin, another employee,
Janet Davis, said she hadn’t attended the meeting and she (Mar-
tin) replied that she really didn’t care who was at the meeting;
that she was just making conversation.
In my opinion, this transaction, occurring 2 months after the
election, was essentially trivial and noncoercive. The evidence
shows that notices of the meeting had been posted inside the
facility and therefore the time and place of the meeting was
known to employees and management alike. That Martin asked
a few employees about the meeting does not, in my opinion,
rise to a level where employees could reasonably believe that
their union activities were being kept under surveillance. Nor
do I conclude that this single incident amounted to coercive
interrogation.
E. Alleged Unilateral Changes
Carol Blackwood-Lindsay, who holds a certification as a
CNA (certified nurse’s aide), was hired into a job title called a
rehabilitation aide. In this capacity she worked with the reha-
bilitation department under the direction of physical, occupa-
tional and speech therapists. To the extent that she had any
training, it was informal and obtained on the job.
Blackwood-Lindsey, as a Rehabilitation Aide, worked with
patients who possibly could benefit from restorative aide. Es-
sentially this seems to have consisted of walking patients and
doing certain types of arm exercises that could be useful in
restoring a person’s range of motion. This doesn’t seem to me
to be very complicated and does not require much training. As
a rehabilitation aide, her schedule was to work 5 days a week,
not including weekends.
Some time in 2004, Blackwood-Lindsey was reassigned so
that her schedule consisted of 3 days a week as a rehabilitation
aide. She also was given the opportunity and accepted 2 days a
week as a CNA.
It seems that because of the request of certain patients,
Blackwood-Lindsey was reassigned to work as a rehabilitation
aide for 5 days a week in early May 2006. This took place a
couple of weeks before the election and as before, her schedule
was from Monday to Friday.
In early August 2006, Martin decided to eliminate the posi-
tion of rehabilitation aide and notified Blackwood-Lindsey that
although her job title was being eliminated she could continue
to work as a CNA. This offer was accepted. At about the same
time, other employees who worked as CNAs were also told that
the rehabilitation aide position had been eliminated and that
they would be assigned to do some of the work that had to be
done with Blackwood-Lindsey’s patients. This resulted in
some on the job training, which Avril Wallace described as
taking about 5 minutes per patient.
As a consequence of the change, Blackwood-Lindsey was
told that as a CNA, she would have to work every other week-
end. When she told Martin that she had another job on week-
ends, Martin replied that all of the other CNAs were required to
work alternating weekends and that she could not make excep-
tions because that could lead to a situation where some week-
ends might not be covered. Martin agreed to give Blackwood-
Lindsey 30 days to make the transaction and ultimately the
Respondent agreed to allow her to work every Saturday instead
of working every other Saturday and Sunday.
Also as a result of this change, Martin testified that she real-
ized that one other CNA, Avril Wallace, did not work on week-
ends. Wallace, who has worked for the Respondent for 28
years, testified that in mid September, Martin told her that as of
October 1, 2006, she would have to work every other weekend.
Wallace testified that she told Martin that she had been working
Mondays to Fridays for 20 years and Martin responded that,
“everybody who’s employed here will have to work every other
weekend.”
There is no doubt that the Respondent unilaterally, and with-
out notice to or bargaining with the Union, eliminated the job
title of Rehabilitation Aide. In doing so, this resulted in a
change in the weekly schedule of Blackwood-Lindsey and the
reassignment of some of her previous work to other employees.
Also, as a consequence, this led to the change of Wallace’s
work schedule so that she was required to work every other
weekend.
The question is whether this set of changes was significant or
was essentially inconsequential.8
The elimination of the rehabilitation aide position changed,
at least to a degree, the job of Blackwood-Lindsey. But prior to
this change, she had worked for almost 2 years doing both the
job of a rehabilitation aide and a CNA. And in many respects
the jobs are not all that dissimilar. The things done by a reha-
bilitation aide in terms of helping patients to walk and moving
their arms, is also done, perhaps to a lesser degree, by the
CNAs. On the other hand, a rehabilitation aide does not have
to do some of the things that CNAs do, such as feed or help
wash patients.
From the point of view of Blackwood-Lindsey, the most ba-
sic change seems to be the alteration of her schedule from
working Monday to Friday to being required to work alterna-
tive weekends, or as ultimately was the case, every Saturday.
(For the same number of hours.) As far as I know, the change
to working exclusively as a CNA did not result in any change

8 In cases such as Ramada Plaza Hotel, 341 NLRB 310 (2004), and
Mike O’Connor Chevrolet-Buick-GMC Co., 209 NLRB 701 (1974), the
Board has held that unilateral changes made after a union has won an
election but before a certification, will violate Sec. 8(a)(5) of the Act.
The Respondent asserts that this rule should not apply in the healthcare
industry in circumstances where the Employer’s objections to an elec-
tion are pending and unresolved.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD264
in her pay or in any other term or conditions of her employ-
ment.
From the point of view of some of the other CNAs, the
change did not make much difference in their jobs. Walking
patients and doing arm exercises was something that they did
during the course of their normal job duties and to the extent
that there was any change, Avril Wallace said that it took about
5 minutes per patient to learn. There was no evidence that this
resulted in any more overall work for these people.
The evidence shows that for many years, the practice of the
Company was to require CNAs to work every other weekend.
One exception was Blackwood-Lindsey who, since 2004 to
May 2006, worked as a rehabilitation aide for part of the week
and as a CNA for the remainder of the week. The other excep-
tion was Avril Wallace who was a very senior employee.
Accordingly, to the extent that we are talking about work
schedules, what really took place was to have all employees
conform to what had been basically the uniform practice of
requiring CNAs to work alternative weekends. This affected
only two employees in a much larger unit. One was Avril Wal-
lace who for reasons unknown did not previously work week-
ends. And the other was Carol Blackwood-Lindsey, who had
never previously been assigned to work full time as a CNA.
To the extent that we are talking about a change in Black-
wood-Lindsey’s job functions or the actual job functions of the
other CNAs, it is my opinion, that these changes were neither
material nor substantial. See for example Sunoco Inc., 349
NLRB 240 (2007).
Based on the above, I therefore am going to recommend that
these allegations be dismissed.
III. THE OBJECTIONS TO THE ELECTION
One of the Employer’s objections is that on the day of the
election, employee Winsome Kitson, acting as the observer for
the Union, threatened the Respondent’s administrator and
communicated her threats to eligible voters.
The evidence regarding this objection has already been dis-
cussed in relation to my conclusion that the Respondent ille-
gally suspended Kitson. I have concluded that when Penni
Marti sought to force Kitson out of the facility at around 3 p.m.,
she did so in order to bar Kitson from talking to other employ-
ees about the election and thereby preventing Kitson from
spoiling the Company’s party where it was engaged in its own
last ditch electioneering. I have concluded that the credible
evidence did not establish that Kitson made any threatening
statements to Martin or that she engaged in any conduct that
could reasonably be construed as threatening. Nor did I con-
clude that Kitson made any statements to employees that could
reasonably be construed as threats to Martin.
Based on the above, I conclude that this objection has no
merit and should be overruled.
The Employer also alleged that representatives of the Union
told eligible voters that the Union would waive union dues for
employees who also worked at other facilities represented by
the Respondent.
In support of this objection, the Employer presented man-
agement employees who testified that at several meetings that
the company held before the election, certain employees as-
serted that they were by the Union that if they worked at other
facilities represented by the Union and paid dues there, they
would not have to pay dues in relation to their employment at
Bloomfield.
The Employer did not produce any witnesses who testified
that they were told this by any union representatives and the
employees who allegedly made these statements at the meet-
ings were not union agents. Therefore, the testimony presented
by the Employer was based solely on hearsay.
The evidence establishes that the Union’s policy regarding
dues is to base dues on each employee’s pay with a maximum
of $60 per month. In situations where employees work at more
than one represented facility, the Union bases an individual’s
dues on his or her total income but with a maximum of $60 per
month. Before the election, this policy was described and
transmitted by the Union to the employees in its campaign lit-
erature. Moreover, the Company’s management was aware of
the Union’s policy and could have communicated it either
orally or in writing to the employees.
Assuming that some employees, who cannot be construed to
be union agents, misunderstood the Union’s dues policy and
expressed that misunderstanding at company meetings, this
would not, in my opinion, be grounds for setting aside this elec-
tion. I therefore overrule this objection.
CONCLUSIONS OF LAW
1. By preventing off-duty employees from talking to other
employees at the Company’s facility on May 18, 2006, the
Respondent violated Section 8(a)(1) of the Act.
2. By suspending Winsome Kitson because the Respondent
sought to prevent her from engaging in union and protected
concerted activity, the Respondent violated Section 8(a)(1) and
(3) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. Except to the extent found herein, the Respondent has
committed no other violations of the Act.
5. The objections to the election are without merit and should
be dismissed.
REMEDY
Having found that the Employer has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
As I have concluded that the Respondent illegally suspended
Winsome Kitson, it must reinstate her to her former job and
make her whole for any loss of earnings and other benefits,
computed on a quarterly basis from the date of such refusal less
any net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]