HCR Manor Care Easton

National Labor Relations Board - Board Decisions

Dec 1, 2010

356 N.L.R.B. 202 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 202
Manor Care of Easton, PA, LLC d/b/a Manor Care
Health Services–Easton and Service Employees
International Union Healthcare PA. Cases 4–
CA–36064 and 4–CA–36190
December 1, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
On January 23, 2009, Administrative Law Judge David
I. Goldman issued the attached decision. ManorCare
Health Services–Easton filed exceptions and a supporting
brief, the General Counsel and the Charging Party filed
answering briefs, and ManorCare filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,2 and conclusions as
more fully set forth below3 and to adopt the recommend-
ed Order as modified and set forth in full below.4
1 Member Becker is recused and did not participate in the considera-
tion of this case.
2 ManorCare has excepted to some of the judge’s credibility find-
ings. 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.
In addition, some of ManorCare’s exceptions imply that the judge’s
rulings, findings, and conclusions demonstrate bias and prejudice. On
careful examination of the judge’s decision and the entire record, we
are satisfied that ManorCare’s contentions are without merit.
The judge mistakenly misspelled the names of Lori Heimbach and
Certified Nursing Assistants (CNAs) Xavier Cordis and Karolyn Calla-
do. We correct these inadvertent errors.
3 In 2007, Lori Heimbach held three different posts at the Easton fa-
cility. Prior to October 24, she served jointly as human resources assis-
tant and payroll clerk. After that date, she served as director of human
resources. For the reasons stated by the judge, we find that, under the
totality of the circumstances, Heimbach’s questioning of CNA Trisha
Miechur, around October 18, constituted an unlawful interrogation. We
make that finding, notwithstanding that the record is unclear whether
Heimbach was a human resources assistant or the director of human
resources at the time, as she clearly was an agent of ManorCare. Simi-
larly, we find the interrogation violation regardless of whether Heim-
bach’s initial questioning occurred before or after Miechur purportedly
disclosed her union sympathies to Director of Human Resources Re-
becca Reitnauer, as Miechur was not then an open or active union sup-
porter, and her comment to Reitnauer was made in confidence. Further,
we do not pass on the judge’s characterization of Heimbach’s state-
ment—“[t]he Union can’t do anything for you”—as an arguably inde-
pendent unfair labor practice. We also find it unnecessary to pass on
the judge’s finding that Registered Nurse Assessment Coordinator
Deborah Kushnerick unlawfully interrogated CNA Anne Klinger, as
such a finding would not materially affect the remedy.
I. RELEVANT BACKGROUND
ManorCare–Easton, an approximately 226-bed nursing
home located in Easton, Pennsylvania, is one of many
short-term post-acute and long-term care facilities oper-
ated by ManorCare Health Services. In July 2007,5
ManorCare Health Services agreed to merge with the
Carlyle Group, a private equity investment firm.
The impending purchase of ManorCare figured promi-
nently in the Union’s multistate campaign to organize
ManorCare Health Services’ facilities, including the
Easton facility. The Union publicly launched its national
campaign in September. Echoing concerns voiced by
residents, family members, and employees, the Union
expressed alarm over low staffing levels and the resulting
impact on patient care.6 Some residents conveyed their
support for the Union’s campaign.7
Before Carlyle could assume control of the Easton fa-
cility, the Pennsylvania Department of Health had to
For the reasons stated by the judge, we also agree that ManorCare
unlawfully solicited grievances from employees during the small group
meetings, that Kushnerick unlawfully threatened Miechur when Kush-
nerick told Miechur to “stop worrying about the Union and worry about
your job,” and that ManorCare unlawfully granted raises, rate increases,
and lump-sum bonuses to its employees. We find it unnecessary, how-
ever, to pass on the judge’s conclusion that ManorCare unlawfully
transferred Administrator Lynnette Seiler and Director of Nursing
Paula Kublius, or his conclusion that ManorCare unlawfully threatened
Miechur in 2008, as neither finding would materially affect the remedy.
In affirming the judge’s decision, we find it unnecessary to rely on
Inn at Fox Hollow, 352 NLRB 1072 (2008), Benjamin Franklin Plumb-
ing, 352 NLRB 525 (2008), or Chinese Daily News, 353 NLRB 613
(2008), all of which were cited by the judge.
4 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 (2010). For the reasons stated in his dissenting opinion in J.
Picini Flooring, Member Hayes would not require electronic distribu-
tion of the notice.
5 Unless otherwise indicated, all dates refer to 2007.
6 For instance, Miechur testified that a family member stopped her in
the hallway, asked, “where’s the staffing?,” and indicated that her
“mother’s been ringing the bell for a good 30 to 35 minutes and nobody
responds to answer the call bell.” (Tr. 155.)
CNA Klinger similarly testified that residents had protested that,
“there is not enough staffing. That they have to wait too long to get
their medicines, they have to wait too long to get their beds made and
they have to sit on the bed pan for 16 minutes before they get taken
off.” (Tr. 307.)
CNA Cordis likewise testified that one resident objected to the staff-
ing level, calling it “unacceptable.” (Tr. 333–334.)
Administrator Marianlee Specter confirmed that she too had re-
ceived complaints from residents about low staffing. (Tr. 461.)
7 For instance, Klinger testified that one resident, a former employee
of Bethlehem Steel, frequently talked about unions and encouraged the
nurses to unionize. (Tr. 302–303.)
Cordis also testified that one resident asked him about the Union af-
ter she found an antiunion flyer on the top of a microwave in a dining
room. The resident called the flyer “ridiculous” and urged the nurses to
unionize. Later, after she found a prounion flyer in a dining room, the
resident asked him for an update on the campaign. (Tr. 338–339.)
356 NLRB No. 39

MANOR CARE HEALTH SERVICES–EASTON 203
approve a transfer of license. On November 13, Penn-
sylvania State Representative Phyllis Mundy held a hear-
ing on the merger at which representatives from the Un-
ion, ManorCare, and the Pennsylvania Department of
Health testified. The Union hoped the hearing would
both pressure the State to examine carefully the license
transfer and publicize the Union’s activities. To generate
support for a second hearing, the Union drafted the fol-
lowing form letter, which was addressed to Representa-
tive Mundy:

My name is ________ and I am a ________ at
the ManorCare Easton nursing home in Easton, PA.
I want to thank you for your leadership on the
ManorCare/Carlyle buyout and for holding an Aging
and Older Adults Services Committee meeting on
November 13th.
At my facility, we are very short staffed and it af-
fects the care for our residents.
For example:

[Space left for description.]

I hope you will do all you can to make sure that
the Department of Health officials live up to their
word when they testified in your committee that:
“The Department will pursue all avenues necessary
to ensure this change of ownership does not nega-
tively impact care provided to residents in the Com-
monwealth.”
I would like the opportunity to tell my story
about the need for more staffing and better care at
my facility and I hope you will have a follow up
hearing where I can do so.
Please contact me if you have any questions and I
look forward to hearing from you.

Sincerely,
[Space left for signature.]

Phone
Address
The Union distributed the Mundy letter to employees
at a meeting on November 21. The Union asked em-
ployees to solicit coworkers, residents, and family mem-
bers to sign the letter, but it told them not to solicit in
resident-care areas. CNA Trisha Miechur did not take
copies of the letter, but told her colleagues that they
could place signed letters in her bag.
After the meeting, Miechur went to work and placed
her bag on a table in the facility’s nourishment room,
where employees regularly kept personal belongings.
The bags of other employees were also on the table. Ad-
ditionally, newspapers, charting, and database books
were scattered about the table.8 Later, CNA Karolyn
Callado observed Registered Nurse Assessment Coordi-
nator Deborah Kushnerick in the nourishment room.
According to Callado, after looking through the papers
on the table, Kushnerick stopped near Miechur’s bag and
read something; Kushnerick then walked out of the room
with a piece of paper and proceeded to the copier. Calla-
do informed Miechur of these events.
Kushnerick testified that she entered the nourishment
room and looked through the papers on the table in
search of a wanderguard bracelet.9 Kushnerick acknowl-
edged that, when she came across an unfamiliar form
letter with a resident’s name on it, she thought it might
be connected to rumors that Miechur and others were
asking residents to sign such a letter.
After being alerted to these events, Miechur ap-
proached Kushnerick and asked—“those papers in your
hand, did you just steal [them] out of my bag?” Kush-
nerick replied that Miechur could not distribute such let-
ters; Kushnerick admitted, however, that she had not
seen Miechur do so. She warned Miechur to “stop wor-
rying about the Union and worry about your job.” Kush-
nerick then returned the letter to Miechur and gave a
copy to Administrator Specter.
At a disciplinary meeting on November 28, Manor-
Care issued Miechur a final written warning, which stat-
ed:

Your solicitation of Residents to complain about
the Center by distributing pre-printed forms for their
signatures constitutes disloyalty towards the compa-
ny that is not protected by any Federal or State law.
Such action can harm the Company’s legitimate
business interests and is a violation of the HCR
Manor Care standards of business conduct. Among
other things, the form you distributed and asked the
residents to sign states:

“At my facility, we are very short staffed and it affects
the care of our residents.”

This kind of comment violates the standards we
believe every employee should follow because it
disparages the care MCHS-Easton and its staff strive
to provide. It may also unnecessarily upset residents
and raise undue concerns in the minds of some resi-
dents and family members as to the level of care
which we provide at the facility.

8 As the judge found, the nourishment room also contains a refrig-
erator in which residents’ snacks are stored, a microwave, charting
equipment, and procedure and medical books.
9 A wanderguard bracelet is placed around the patient’s wrist or an-
kle and triggers an alarm if the patient exits the building.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 204
Miechur denied soliciting patients to sign the form letter.10
She also accused Director of Human Resources Lori Heim-
bach and Assistant Administrator Kate Gieroczynski, the
managers at the meeting, of disciplining her “because you
know I called the SEIU.” Neither manager denied the accu-
sation. Instead, Gieroczynski answered, “Yes, we know
that you called the Union.”
II. JUDGE’S DECISION
The judge found Miechur’s discipline unlawful under
two alternative theories. Assuming that Miechur’s solici-
tation of residents was unprotected, he concluded that
ManorCare’s discipline was unlawfully motivated by
Miechur’s other protected union activity and that
ManorCare had failed to carry its burden of proving that
Miechur would have been similarly disciplined in the
absence of her protected activity. See Wright Line, 251
NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983). Alternatively, assuming that
ManorCare disciplined Miechur solely for soliciting resi-
dents, as it contends, the judge concluded that her con-
duct was protected and, therefore, that her discipline was
unlawful. See Valley Hospital Medical Center, 351
NLRB 1250, 1252 (2007), enfd. 358 Fed. Appx. 783 (9th
Cir. 2009); cf. Phoenix Transit System, 337 NLRB 510,
510 (2002), enfd. 63 Fed. Appx. 524 (D.C. Cir. 2003).11
The judge also found that ManorCare unlawfully con-
fiscated union literature—i.e., the Mundy letter. He con-
cluded that, based on rumors that Miechur was distrib-
uting a letter to patients, Kushnerick deliberately
searched for the letter on a table in the nourishment
room, in an area of the table where employees kept per-
sonal belongings. In the judge’s words, the letter “was
not laying [sic] open and unclaimed for her to take.”
Nonetheless, Kushnerick “looked for it. She knew it did
not belong to her and she took it.”12
10 We need not determine whether Miechur actually solicited resi-
dents to sign the Mundy letter because we agree with the judge that,
even if she did, her discipline was unlawful.
11 ManorCare argues that the judge should have determined whether
Miechur’s purported conduct was protected before he analyzed
Miechur’s discipline under Wright Line. We reject that argument. See
New York University Medical Center, 261 NLRB 822, 824 (1982),
enfd. mem. 751 F.2d 370 (2d Cir. 1984), cert. denied 470 U.S. 1004
(1985).
12 After conceding that “there is no factual dispute as to what oc-
curred,” ManorCare insists, without citation to the record, that the letter
“was not . . . created by the Union and used in the organizing cam-
paign.” (Bf. in Supp. of Exceptions at 66 fn.12.) We reject this asser-
tion as unsupported by the credited evidence.
III. DISCUSSION
A. Discipline of Trisha Miechur
We agree that the judge correctly found a violation un-
der Wright Line, assuming that Miechur’s purported so-
licitation of residents was unprotected. In finding that
the Acting General Counsel established that ManorCare
was unlawfully motivated by Miechur’s other protected
union activity when it decided to discipline her, we find
it unnecessary to rely on all of the factors cited by the
judge. Instead, for the reasons stated by the judge, we
rely on the following factors: (1) the proximity in time of
the discipline to Miechur’s protected union activities, (2)
ManorCare’s unlawful conduct of interrogating and
threatening Miechur, (3) ManorCare’s failure to repudi-
ate Miechur’s assertion that her discipline was motivated
by antiunion animus, (4) ManorCare’s failure to investi-
gate Miechur’s alleged conduct, and (5) ManorCare’s
deviation from its disciplinary policy by relying upon a
prior warning that was too dated to be considered. We
also rely on ManorCare’s unlawful confiscation of union
literature.
With respect to ManorCare’s rebuttal burden, we rely
on ManorCare’s deviation from its disciplinary policy, its
failure to investigate, and its past disciplinary practices in
agreeing with the judge that ManorCare failed to estab-
lish that it would have issued a final written warning to
Miechur absent her other protected union activity. Ac-
cordingly, we adopt the judge’s finding of a violation
under his Wright Line analysis.13
B. Confiscation of Union Literature
Employees have a well-established right to possess un-
ion literature. See, e.g., Hanson Aggregates Central,
Inc., 337 NLRB 870, 875–876 (2002). As the Board’s
decisions make clear, confiscation of union literature by
an employer can interfere with employees’ Section 7
rights, even where the employer could lawfully prohibit
distribution of that literature. See NCR Corp., 313
NLRB 574, 577 (1993).
13 Chairman Liebman and Member Pearce also find a violation based
on the judge’s alternative finding that Miechur’s solicitation of resi-
dents was and remained protected, and thus her discipline for engaging
in that activity violated the Act. Member Hayes finds no need to pass
on this theory.
The Acting General Counsel also contends that Miechur did not so-
licit residents, as claimed by ManorCare. Rather, he argues that
Miechur merely collected and held the signed Mundy letters. Thus, the
Acting General Counsel urges that ManorCare unlawfully disciplined
Miechur for engaging in protected conduct even though it may have
held a good-faith, but ultimately mistaken, belief that she had engaged
in misconduct by soliciting residents. See NLRB v. Burnup & Sims,
379 U.S. 21 (1964). The judge did not pass on this theory. Because we
find Miechur’s discipline unlawful for the reasons given above, we do
not pass on this theory.

MANOR CARE HEALTH SERVICES–EASTON 205
The judge concluded that Kushnerick’s unlawful con-
fiscation of union literature—i.e., the Mundy letter—
violated Section 8(a)(1) of the Act. On the basis of the
credited testimony, we agree. While being observed by
Callado, Kushnerick took and copied a union letter,
which she suspected was connected with the Union’s
campaign, from an area of the table where employees
typically kept personal belongings. When Miechur ac-
cused Kushnerick of stealing the letter, Kushnerick did
not respond to the allegation. Instead, after Miechur
asked that the letter be returned, Kushnerick unlawfully
threatened her, saying, “stop worrying about the Union
and worry about your job.” Under these circumstances,
the confiscation of the Mundy letter had a reasonable
tendency to chill the exercise of employees’ Section 7
rights.
AMENDED CONCLUSIONS OF LAW
1. Manor Care of Easton, PA, LLC d/b/a ManorCare
Health Services–Easton is an employer within the mean-
ing of Section 2(2), (6), and (7) of the Act and a health
care institution within the meaning of Section 2(14) of
the Act.
2. Service Employees International Union Healthcare
PA is a labor organization within the meaning of Section
2(5) of the Act.
3. In October 2007, ManorCare violated Section
8(a)(1) of the Act by interrogating employee Trisha
Miechur concerning her union sympathies.
4. On or about October 29 and 30, 2007, ManorCare
violated Section 8(a)(1) of the Act by soliciting employ-
ees’ complaints and grievances and promising to remedy
those complaints and grievances, in order to discourage
employees from seeking union representation.
5. On or about November 21, 2007, ManorCare violat-
ed Section 8(a)(1) of the Act by granting a raise and
lump sum bonus to certified nursing assistants and in-
creasing the starting hourly wage for certified nursing
assistants, in order to discourage employees from seeking
union representation.
6. On or about November 21, 2007, ManorCare violat-
ed Section 8(a)(1) of the Act by threatening employee
Trisha Miechur with job loss if she continued her union
activities.
7. On or about November 21, 2007, ManorCare violat-
ed Section 8(a)(1) of the Act by confiscating union litera-
ture.
8. On or about November 28, 2007, ManorCare violat-
ed Section 8(a)(3) and (1) of the Act by disciplining em-
ployee Trisha Miechur in retaliation for her activities in
support of the Union.
9. The unfair labor practices committed by ManorCare
affect commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Manor Care of Easton, PA, LLC d/b/a
ManorCare Health Services–Easton, Easton, Pennsylva-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about union
support or union activities.
(b) Soliciting complaints and grievances and promis-
ing to remedy those complaints and grievances, in order
to discourage employees from selecting union represen-
tation.
(c) Granting benefits to employees in order to discour-
age employees from selecting union representation.
(d) Threatening any employee with job loss for contin-
uing his or her union activities.
(e) Confiscating union literature.
(f) Disciplining any employee in retaliation for his or
her union activity.
(g) 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, rescind
the November 28, 2007 discipline issued to Trisha
Miechur.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline,
and within 3 days thereafter notify Trisha Miechur in
writing that this has been done and that the discipline
will not be used against her in any way.
(c) Within 14 days after service by the Region, post at
its facility in Easton, Pennsylvania, copies of the attached
notice marked “Appendix.”14 Copies of the notice, on
forms provided by the Regional Director for Region 4,
after being signed by ManorCare’s authorized repre-
sentative, shall be posted by ManorCare and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 206
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means.
Reasonable steps shall be taken by ManorCare 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, ManorCare has gone out of busi-
ness or closed the facility involved in these proceedings,
ManorCare shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former
employees employed by Respondent at any time since
October 18, 2007.
Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that ManorCare has taken to comply.

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 coercively question you about your un-
ion support or activities.
WE WILL NOT solicit complaints from you and promise
to remedy them in order to discourage you from selecting
union representation.
WE WILL NOT grant benefits to you in order to discour-
age you from selecting union representation.
WE WILL NOT threaten you with job loss for continuing
your union activities.
WE WILL NOT confiscate union literature.
WE WILL NOT discipline or otherwise discriminate
against any of you for supporting Service Employees
International Union Healthcare PA or any other labor
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, within 14 days from the date of the Board’s
Order, rescind the unlawful discipline issued to Trisha
Miechur.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discipline of Trisha Miechur, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the discipline will not be used against her
in any way.

MANOR CARE OF EASTON, PA, LLC D/B/A
MANORCARE HEALTH SERVICES—EASTON

Randy M. Girer, Esq. (Region 4, NLRB), of Philadelphia, Penn-
sylvania, for the General Counsel.
Clifford H. Nelson, Jr., Esq., and Leigh Elise Tyson, Esq. (Con-
stangy, Brooks & Smith, LLC), of Atlanta, Georgia, for the
Respondent.
Bruce M. Ludwig, Esq. (Willig, Williams and Davidson), of
Philadelphia, Pennsylvania, and Adam Naill, Esq. (SEIU
Legal Department), of Washington, D.C., for the Charging
Party.
DECISION
DAVID I. GOLDMAN, Administrative Law Judge. These cases
arise out of a union’s organizing effort at a nursing home in
Easton, Pennsylvania. The chief union activist among the em-
ployees was given a final warning—subject to termination for
further misconduct—for soliciting residents to sign a letter to a
Pennsylvania state legislator. The employee denied soliciting
residents to sign the letter, which asserted that the facility was
short-staffed in a way that affected care and asked the legislator
to convene a hearing at which there could be testimony as to
the need for more staffing and better care. The Government
alleges that the warning for the solicitation was unlawfully
motivated retaliation for the employee’s general union activ-
ism, and that, in any event, the solicitation was protected con-
duct for which she could not be disciplined. In addition, the
Government alleges that, in fact, the employee did not engage
in the solicitation. The Government also alleges that as part of
its effort to combat the organizing campaign, the employer met
with employees and solicited grievances and, in order to dis-
courage employees from seeking union representation, implied
that it would remedy the grievances, and in certain cases did
remedy the grievances. It is also alleged that the employer
transferred disfavored supervisors in order to encourage em-
ployees not to support the union. In addition, the Government
alleges that in order to discourage employees from supporting
the union, the employer increased wages and starting rates, and
provided bonuses to employees. Finally, the Government al-
leges an assortment of unlawful interrogations, directives, and
threats, related to union activity.
STATEMENT OF THE CASE
On March 31, 2008, the Charging Party Service Employees
International Union Healthcare PA (Union or SEIU) filed an
unfair labor practice charge, docketed by the Philadelphia re-
gional office of the National Labor Relations Board (Board) as
MANOR CARE HEALTH SERVICES–EASTON 207
Case 4–CA–36064, against the Respondent Manor Care of
Easton, PA, LLC d/b/a ManorCare Health Services–Easton
(Manorcare or Easton). The Union filed an amended charge
June 2, 2008. On June 11, 2008, the Board’s General Counsel
issued a complaint alleging violations of the National Labor
Relations Act (Act) by ManorCare. On June 13, 2008, the
Union filed an additional charge, docketed by the Board as 4–
CA–36190. On August 25, 2008, the General Counsel issued
an order consolidating the two cases and issued a consolidated
complaint.
This dispute was tried in Allentown, Pennsylvania, on Sep-
tember 10–12, and 15, 2008. Counsel for the General Counsel,
the Respondent, and the Charging Party filed briefs in support
of their positions on November 13, 2008. On the entire record,
including my observation of the demeanor of the witnesses and
other indicia of credibility, I make the following findings of
fact, conclusions of law, and recommendations.1
JURISDICTION
The complaint alleges, the Respondent admits, and I find,
that at all material times ManorCare has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and a health care institution within the
meaning of Section 2(14) of the Act. The complaint alleges,
the Respondent admits, and I find, that at all material times the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
FINDINGS OF FACT
Background
The ManorCare facility in Easton is one of hundreds of short
term post-acute and long-term care facilities operated in 30
states (primarily in Pennsylvania, Florida, Illinois, Michigan,
and Ohio) by Manor Care, Inc., through its operating group
HCR Manor Care (Manor Care). In July 2007,2 Manor Care
Inc. entered into a merger agreement, effective December 21,
2007, with an affiliate of the private equity investment firm,
The Carlyle Group (Carlyle). Pursuant to this agreement, sub-
stantially all of Manor Care, Inc.’s common stock would be
purchased by funds managed by Carlyle. Simply put, Carlyle
was purchasing Manor Care, although since the purchase, Car-
lyle has not been involved in day-to-day operations of Manor
1 The transcript contains a number of errors and I formally correct
the following on my own motion. On page 358, line 22, “MS. GIRER”
is inserted in place of “JUDGE GOLDMAN.” On page 626, line 28,
“(recalled)” is deleted. On page 591, lines 4, 17, 20, 23, and page 592,
lines 2, 4, 16, “MR. NELSON” is inserted in place of “MR. LUDWIG.”
All references to “MR. GIRER” are corrected to read “MS. GIRER.”
On page 208, line 18, “Lori” is inserted in place of “Barbara.” The
correct spelling of the following names is as follows: Trisha Miechur,
Karolyn Collado; Lorie Heimbach, Paula Kublius, Marionlee Specter,
Anne “Pua” Klinger, Ed Schuch. All references to these individuals are
corrected to reflect the correct spelling. At the hearing, at the close of
the General Counsel’s case, the Respondent moved to dismiss certain
allegations of the complaint (Tr. 474). I denied that motion on the
record, but the ruling has been omitted from the transcript. I amend the
transcript to add my denial of the motion.
2 All subsequent dates refer to 2007, unless otherwise indicated.
Care facilities and the operations have not changed as a result
of the change in control of the corporation.
The impending purchase of Manor Care figured prominently
in a multistate effort by the SEIU to organize Manor Care facil-
ities, including the ManorCare in Easton, Pennsylvania. This
national campaign was publicly launched on September 19 in
Washington, D.C., at an “action” and press conference con-
ducted by the Union at Carlyle headquarters.
As part of its campaign the Union highlighted concerns, re-
ported independently in the national media, about the potential-
ly adverse effect of buyouts by private equity firms on condi-
tions for employees and residents of affected facilities. These
concerns were the subject of union leafleting, rallies, and events
at Carlyle headquarters in Washington D.C., Manor Care head-
quarters in Toledo, Ohio, and at a speaking engagement in
Philadelphia by a chief executive of Carlyle. These events
generated significant media coverage. In addition, union offi-
cials testified at hearings on the sale of HCR Manor Care con-
vened by a Pennsylvania state legislator, Phyllis Mundy regard-
ing the sale, a matter that required regulatory approval by the
commonwealth. State approval was secured and the buyout
went through on December 21.
These events serve as a backdrop for the events directly at is-
sue in these cases, all of which occurred at the (approximately)
226-bed Manorcare facility in Easton.
The Easton ManorCare facility is a rectangular building ad-
ministratively divided into 4 units, with a courtyard in the mid-
dle. Units 1–3 are on the first level. Unit 4 is on level two, on
the back side of the building. Trisha Miechur has worked at
ManorCare as a certified nurse assistant (CNA) since Decem-
ber 5, 2005. Her grandmother and aunt are residents of the
facility. She works the 3 p.m. to 11 p.m. shift on unit 2, which
is a rehabilitation unit with some long-term residents, and
which is situated on the north and west wing of the first level.
Between 4 and 6 CNAs work on unit 2 during each shift. Their
direct supervisor is a nursing supervisor working on the floor.
There is also an RN supervisor that is “everybody’s supervi-
sor.” The RN supervisor, in turn, reports to the Director of
Nursing (DON) or the DON’s equivalent, the Administrative
Director of Nursing Services (ADNS). The DON reports to the
facility administrator. A human resources (HR) director also
has significant supervisory authority.
On October 7, the SEIU leafleted HCR Manor Care facili-
ties, including ManorCare in Easton. In late September, and
increasingly, in October, Miechur and other employees were
aware of the union campaign and talked among themselves
about the Union. According to CNA Anne “Pua” Klinger, “all
the CNAs were talking about it.”3 In early October, Manorcare
3 “Pua” Klinger was a 17-year employee at Manorcare. I found her a
particularly credible witness to events. However, I think that the
weight of the evidence suggests that she erred slightly in her testimony
(to be fair, offered, with uncertainty characteristic of someone seeking
to answer accurately) and that events she attributed to September actu-
ally occurred in October. These include discussions about the Union
with Miechur, attendance at a union meeting at a local diner, and dis-
cussion with a supervisor about the Union. Similarly, with regard to
when, prior to October 2007, corporate management had last held meet-
ings with employees, it appears that such meetings were held in 2004,

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 208
administrator Lynette Seiler played an antiunion video for em-
ployees at a mandatory inservice meeting. Although surely not
its intended effect, the video presentation led Miechur to go
home and search for the SEIU’s website devoted to Car-
lyle/HCR Manor Care. She contacted the SEIU through the
website. This contact led to a meeting in Miechur’s home with
Easton employees on October 18, conducted by SEIU organizer
Edgar Arecna. The Union held regular meetings with Easton
employees through December 2007.
October 2007 Questioning of Miechur and Klinger
Around the time of the October 18 meeting—the record is
unclear, whether it was before or after—Miechur was ap-
proached in the unit 2 clean utility room by Lori Heimbach. At
that time, Heimbach held the positions of Assistant HR Direc-
tor and Payroll Clerk. A few days later, on October 24, Heim-
bach was promoted to HR Director. Heimbach asked if she
could speak to Miechur. Miechur said, yes, and Heimbach
“asked me have I heard about SEIU trying to organize in [the]
Easton facility.” Miechur said she had, and said, “I believe in
it.” Heimbach asked her “why do you believe in it” and added,
“[t]he Union can’t do nothing for you.” Miechur replied that
“some hope of change” was necessary and then resisted further
conversation, saying “is this conversation over. I have resi-
dents to attend to.” That was the end of that conversation.
However, a couple of weeks later Heimbach approached
Miechur on the employee smoking deck and asked Miechur if
she had changed her mind about the Union. Miechur replied
“hell no.” That ended the conversation and Heimbach left.4
At the time of these conversations, Miechur’s support for the
Union had not been publicly revealed. She had not participated
in any of the SEIU’s public events, such as the September 19
trip to Carlyle headquarters in Washington D.C., the October
10 press conference in Harrisburg and other state capitals, or
the October 17 rally at HCR Manor Care headquarters in Tole-
do, Ohio, that was followed by a caravan to Washington D.C.
the next day. However, employees were talking about the Un-
ion among themselves at the facility on a regular basis, and the
employer had begun a campaign to “educate” the employees
about unions. The first record reference to this is the early Oc-
tober video played for employees by Administrator Seiler. By
and not longer than that as estimated by Klinger at trial. But these are
small discrepancies, offered, as I said, with a measure of uncertainty.
On the substance of her testimony, Klinger was an excellent witness.
Her memory was sharp, her recall of events was clear, and she provided
a lot of detail in a direct and nontendentious manner. Unless specifical-
ly otherwise noted, her testimony is credited.
4 This account of these incidents is based on the credited undisputed
testimony of Miechur. I found Miechur, for the most part, a creditable
witness. Her testimony was presented with honest demeanor, and was
free from overstatement or inconsistency. Heimbach on the other hand
had an unfortunate tendency to not recall specifics of many of the con-
versations she was asked about, and in regards to much of the question-
ing appeared eager to take refuge in a failure to recollect. However,
those problems are more relevant in considering other events and con-
versations. In the case of the two incidents described in the text here,
the credibility of Heimbach’s testimony is not directly at issue, as she
did not attempt to rebut Miechur’s testimony on these points.
Miechur’s undisputed account of these incidents is credited.
mid-October, at the latest, supervisors were being assigned to
talk to individual employees about the Union.
In October, Pua Klinger was approached by Deborah Kush-
nerick, a Registered Nurse Assessment Coordinator, who had
been specifically assigned to speak to Klinger about unions as
part of the employer’s antiunion campaign.5 Klinger was not
an open union supporter. When Klinger was coming to work
one day Kushnerick approached her and told Klinger she want-
ed to talk. She ushered Klinger into a small hallway leading to
the courtyard and asked if Klinger had “heard that they’re try-
ing to get a union in.” Kushnerick asked Klinger if she knew
anything about unions. Klinger responded that her husband had
been a union member for 30 years, and “I know there is good
things and I know there is bad things.” That was the end of the
conversation.6
October 29 & 30, 2007 Small Group Meetings
On October 29 and 30, Regional Director of Operations Di-
ana Johnston and Regional Human Resources Director Renee
Burns conducted small group meetings, primarily with CNAs,
but also with nurses and some other employees at the Easton
facility. The stated purpose of the meetings was to solicit com-
plaints and problems from the employees from which an “ac-
tion plan” was to be created to address the problems raised by
employees.
According to Burns, small group meetings have been con-
ducted in the past at various HCR facilities “in one format or
another.” At Easton the last such meetings—indeed, the only
one at Easton shown by the evidence—were conducted in late
2004, and by all evidence, involved larger groups of employees
than in October 2007, but did involve the solicitation of em-
ployee complaints.7
In August 2007, Manor Care established and distributed to
managers a policy (R. Exh. 7) providing for small group meet-
ings to be held every other month in specific format and man-
ner, at facilities across the company. The small group meetings
were envisioned as a component part of HCR Manor Care’s
corporate Continuous Employee Communications (CEC) pro-
5 Kushnerick’s status as a supervisor and agent of the Respondent is
admitted by the Respondent.
6 Kushnerick denied this conversation—sort of. Her denials were
unsure and equivocal. Asked if she had asked Klinger if Klinger knew
anything about the Union, Kushnerick answered, “I don’t think in that
context, no. No.” The “context” included “lots of conversations” with
employees, and Klinger, about the Union as part of an effort by man-
agement that Kushnerick characterized as providing “educational”
materials to help employees to “choos[e]” on the union issue. With
some effort, on cross-examination Kushnerick admitted that “I suppose
you could say” that the information she was providing about the Union
was negative. Of course, an employer’s distribution of antiunion mate-
rials is not suspect, but Kushnerick’s lack of candor was. Kushnerick’s
denials of whether she asked Klinger if she knew anything about the
Union or whether Klinger had mentioned her husband’s union affilia-
tion, were also, decidedly equivocal. As noted, supra, I found Klinger a
very creditable witness. I do not believe she made up this conversation.
Her account is credited over Kushnerick’s denials.
7 Johnson testified that prior small group meetings were “exactly the
same,” as the October 2007 meetings, but this must be discounted by a
noticeable tendency to adapt her testimony to the perceived needs of
the Respondent’s case.

MANOR CARE HEALTH SERVICES–EASTON 209
gram (R. Exh. 8) also unveiled to managers in August 2007.
The CEC program, among other things, established small group
meetings and set forth with great detail the procedures to be
followed in conducting small group meetings. According to
Burns, the CEC document “is really kind of a process document
that details, you know, why we do small group meetings, what
we hope to accomplish with the small group meetings, how we
want the minutes taken, what we want the format of the action
plan to look like.”
These two documents—the CEC manual, and the small
group meeting policy—instruct the managers that small group
meetings are to be conducted jointly by the facility manager/
administrator and a representative from the facility’s HR de-
partment. The new policy also calls for corporate Regional
Directors of Operations and Regional Human Resources man-
agers to conduct a small group meeting at each of their loca-
tions every 12–18 months. The CEC program designates in
great detail the format of the meetings, suggests opening com-
ments, and establishes the structure and procedures to be fol-
lowed in the meeting. The document provides that a flip chart
or easel should be used to list employee concerns in order “to
provide added visibility of the commitment to really hear the
concerns.” The CEC document further instructs that it is pref-
erable to use the same flip chart in subsequent meetings, noting
that when an “item is resolved, visibly crossing off that item
dramatizes for employees our ability to hear concerns and re-
solve the issue.” The small group meeting procedures call for
the establishment of Action Plans which capture all employee
concerns and can be posted or referred to in larger staff meet-
ings to show the status of the issues and “dramatize the fact that
issues are heard, action is taken and the issue is resolved.”
It cannot escape notice that the introductory paragraph of the
CEC program document lists “mak[ing] third-party representa-
tion unnecessary” as one of the four benefits (along with en-
hanced productivity, improved retention and ultimately better
services) of the environment that Manor Care hopes to create
through the CEC program. To that end, the CEC manual sug-
gests that “in locations with significant employee relations
concerns or labor activity” it may be “more appropriate” for the
regional director of operations and regional HR representative
to conduct small group meetings twice yearly. The CEC manu-
al includes as a “key component” of the overall program “vul-
nerability assessments” which are a method to assess the “over-
all employee relations climate, focusing on vulnerability to
union organizing.”
In Easton, on September 29 and 30, Johnson and Burns met
with numerous employees, variously estimated at 70–80 by
Burns and 100–120 by Johnson, over the two-day period. The
meetings lasted 10 to 30 minutes depending on the size of the
group and the talkativeness of the employees. For manage-
ment, Burns did 90 percent of the talking, Johnson said little.
Meetings were conducted on all three shifts. According to
Burns, in instituting the meeting she followed the procedures
set forth in the August CEC document.
Although the CEC manual suggests that the small group
meetings be voluntary, at Easton, employees were led to be-
lieve, or were told outright, that the meetings were mandatory.
Miechur and CNA Xavier Cordes were in the same small group
meeting, along with one other unidentified CNA. Cordes, testi-
fied that Lori Heimbach announced on the intercom that he was
to attend the meeting, a directive he reasonably understood as
mandatory. Klinger testified that her small group meeting con-
sisted of 8–10 employees, most of whom were CNAs. She too
described having her name announced over a speaker and being
told to report to a conference room for the meeting. Because of
this, she assumed the meeting was mandatory. Miechur also
described being paged over the intercom, along with other em-
ployees, and testified that she was told directly by her supervi-
sor that the meeting was mandatory. The CNAs were not told
what the meeting was about beforehand.8
Four employees (Miechur, Cordes, Klinger, and CNA Ka-
rolyn Collado) testified about the small group meetings, as did
Burns and Johnson. Even with the caveat that the meeting
Collado was in was not conducted by Burns and Johnson—but
by Heimbach—the employees’ accounts of the format and pro-
cess are largely consistent. Burns and Johnson’s accounts are
also largely consistent with the accounts offered by the em-
ployees with two significant exceptions: first, Burns and John-
son deny that they mentioned the Union (either directly or by
reference to an outside party), in the manner claimed by the
employees; and second, Burns and Johnson’s accounts are ded-
icated to minimizing or denying any suggestion that they led
employees to believe that their complaints would be resolved—
as opposed to merely heard—as a result of this process. As
discussed below, Burns and Johnson are not credible on these
matters.
I will turn to these discrepancies in a moment. However, the
bulk of the testimony about the meetings is undisputed. Burns
did most of the talking in the meeting and Johnson wrote down
the employee complaints, using a large flip chart with paper
mounted on a stand. Burns testified that she began the meeting
by introducing herself and Johnson, telling the staff that they do
these meetings periodically, but that [i]t had been a while since
we’d been there and we just wanted to get some feedback on
how it was going there and if there was anything we could do to
make . . . the building a better place to work.” In the confer-
ence room there was a “painter’s easel” with a large pad of
paper on it. Burns said the employees were there “because she
wanted to ask each individual if we had any complaints and
what the troubles were.” The problems cited by employees
were written down and “[Burns] said they were going to start
something called an Action Plan and post the results of all the
things that she was writing down . . . so we can see how it’s
working.” The bulk of the meeting involved going around the
table and asking each employee individually about their con-
cerns and complaints. Issues raised included, short staffing,
lack of respect from the administration, pay and benefits con-
8 Burns’ testimony that notices were posted at Easton announcing
the meetings and that no individual employees were slotted or sched-
uled for particular meeting times is not substantiated, and has a second
hand feel to it. The posting was not produced, and no supervisor or
manager involved in the actual logistics of how employees came to
attend the meetings testified. Moreover, Burns’ claim is contradicted
by the employee witnesses’ uniform testimony of being directed by
name through loudspeaker announcements to attend a particular meet-
ing.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 210
cerns, lack of help from nurses, complaints about the adminis-
trator Seiler and the Administrative Director of Nursing Ser-
vices (ADNS) Paula Kublius.9 According to Miechur, “they
said that they would try to fix” the problems raised. Cordes
testified that they said “[t]hey were going to try and solve them
in a timely manner. They were going to come up with solutions
for these.” In Klinger’s meeting, not every employee had an
opportunity to speak because they ran out of time for the meet-
ing. Klinger complained mostly about problems with obtaining
supplies. Burns said certain items, like wages, “had to go
through Corporate headquarters . . . they don’t have the authori-
ty to decide . . . to raise anybody’s salary, so that would not be
fixed overnight. Other things, they were going to try to fix like
supplies.”
In accordance with the CEC manual, employee complaints
were translated into an Action Plan, typed by Burns, with input
from a number of managers, and the Action Plan was refer-
enced (and displayed in enlarged form) at subsequent staff
meetings in December, and posted by management on a bulle-
tin board in the break room devoted to work-related notices.
After a few weeks, the enlarged version of the Action Plan was
replaced in the break room by standard 8-1/2 x 11 sheets of
paper showing the Action Plan. The Action Plan, which was
updated as items were completed, listed issues raised by staff,
and showed the response and a target date for completion of the
response, if not already completed.
Burns and Johnson offered transparently tendentious and im-
plausible claims that nothing was said to employees at the
meetings about what would happen with respect to problems
brought to their attention in the meetings by employees. For
example, Burns was the witness in the following exchange with
Manorcare counsel:

Q Was anything said to the employees who attended
these meetings about what would happen with respect to
the problems or matters that they brought to your attention
and were written on the flip chart?
A No.
Q Did you say anything about what would happen
next, what was, why was this information being collected?
A No, because we wanted to talk to everybody before
we, I mean, we couldn’t make any promises to anybody
because we didn’t know what everybody was going to say.
I mean, we needed the feedback first.
Q Did you tell employees, how did you end the meet-
ing?
A Thank, we thanked them for coming.
Q And then they left.
A. And then they left.

I find this an extraordinary and implausible account of what
was said to employees. If true it would have made the meetings
mysterious indeed, and thoroughly at odds with the CEC manu-
al format that Burns claims she followed for the meeting, which
contains the instruction under “Small Group meeting tips” that
“it is important to let the employees know that their concern has
9 The ADNS was the equivalent of the Director of Nursing (DON)
and at various points in the record Kublius is described as the DON.
been or is in the process of being addressed.” The CEC manual
also provides that the meeting format “inform the employees
that after the meetings are completed, the issues will be catego-
rized . . . and reviewed with others in management who will be
charged with validating and looking into the concerns and mak-
ing recommendations to address the concerns.” In fact, later in
her testimony Burns conceded that

“I do believe we told them that there would be an action plan
and we would identify ways to fix some of the issues that
they were having, but we didn’t tell them what they were,
what those issues were going to, I mean what the, the fixes
were going to be.”

This latter explanation is more plausible, and more consistent
with the accounts provided by employees, which made clear
that Burns and Johnson were not just there to hear complaints
but to get them resolved.
Johnson also went to some lengths to obfuscate any sugges-
tion that she and Burns told employees that their problems
would be resolved, testifying that at this and other similar meet-
ings in the past,

we let them know that, you know, we’re hear to hear any con-
cerns that they may have, that we’re not there to solve any
problems, but, and we always let them know what we’re go-
ing to do with the information, and trend it, and the adminis-
trator will work on an action plan and review with the staff,
and review progress, you know, over time.

These strike me as litigation-inspired efforts to avoid providing
evidence for complaint allegations that involve offering to re-
solve issues raised by employees. I do not credit Johnson or
Burns on these points.10
The other discrepancy between the employee and manage-
ment accounts of the meetings involved references to the Un-
ion. According to Miechur, Burns told the employees that they
“had heard there was a lot of complaints and concerns. And
that they’re here to try to fix it without a second party in-
volved.” Cordes recalled that they stated that “they were look-
ing for solutions that wouldn’t involve an outside party.”
Klinger testified that Burns “mentioned SEIU . . . and the ru-
mors going through and she also mentioned that if there was a
problem in the facility we can take care of those without out-
side interest, you know, through a party coming in.” According
to Klinger, Burns said “[s]he heard that [SEIU] ha[d] been con-
tacted.”
Burns denied that she or Johnson brought up unions, the
SEIU, or second or third parties, but conceded that “at that
point, I think the staff was already talking about it, and if it
10 Johnson’s testimony that she and Burns did not tell employees that
they would develop an action plan but that “We told the employees that
the administrator would develop that plan,” cannot be credited. It is a
continuation of the effort to distance the small group meetings from any
statements to employees that could be reasonably understood as a sug-
gestion by Burns and Johnson that they intended to resolve the issues
raised. The statement not only was contradicted by Burns, but by John-
son’s pretrial affidavit which stated, “We said up front that we would
develop an action plan based on the trends that were disclosed at the
meeting.” I do not credit Johnson on this score.

MANOR CARE HEALTH SERVICES–EASTON 211
came up we just really, that’s not what we were to talk about.”
She added that “there were some people that said what’s going
on with the Union and we just said we were not here to talk
about that, so we didn’t engage in conversation about any Un-
ion activity during those meetings.” Johnson testified about the
small group meetings but did not address this subject.
I credit the employees’ testimony that the issue of the Union
was, in fact, raised by Burns, and that she referred in some
fashion to an outside, second, or other party—i.e., the Union—
not being necessary. For one thing, all three of these employee
witnesses were good witnesses. Miechur was the most interest-
ed, but her testimony rang true. I have noted, supra, my view
that Klinger was an exceptional witness. Cordes testified with
a demeanor that suggested disinterest, precise recall, and no
effort to color or alter his testimony to help one side or the oth-
er. The slight variation in how Cordes and Miechur recalled
Burns’ description of the Union (“second party” compared to
an “outside party”) does not distract from their credibility. It
shows their testimony was unscripted and reflected an honest
effort to recount an event that carried less importance at the
time it occurred.
In contrast, as discussed above, Burns and Johnson demon-
strated a lack of candor in their evasions and efforts to make
their testimony fit the Respondent’s case. And with regard to
whether the Union was referenced by Burns, Johnson did not
offer testimony to dispute the employees’ accounts, further
buttressing their testimony. In addition, with regards to deter-
mining whether Burns referenced the Union in the meetings, it
is not insignificant that a stated purpose of the CEC is to “make
third-party representation unnecessary,” an aim that increases
the likelihood that Burns and Johnson mentioned the Union in
their presentation and, indeed, the euphemistic phrasing of
which, echoes the testimony of the employees about how Burns
referred to the Union.11
Finally, at least one of the small group meetings were con-
ducted by Lori Heimbach (as of October 24, the new HR Direc-
tor of the facility) and another unidentified manager employed
locally at the facility. Karolyn Collado testified that the small
group meeting she was told to attend (which included 3 or 4
other CNA employees), was led by Heimbach and this other
woman. They followed a similar format as the Burns/Johnson
meetings and the meeting was consistent with the CEC manual.
They wrote down the employee complaints on “a big clip-
board.” The meeting began with Heimbach stating that “we’re
going to try to see what we can do to make this facility a better
place to work” and that she “wanted to know what our com-
plaints [were] about the facility.” Heimbach told the employ-
ees that they weren’t going to give them answers there, but “she
11 Finally, I note that on cross examination Miechur was asked if she
referred to Seiler as “a f’ing bitch” during the small group meeting, a
comment she denied. Miechur was also asked, and denied, if she re-
ceived counseling for making such a comment during the meeting.
Miechur was then asked, “if Ms. Johnson testified that in fact that all
occurred, would she be lying?” Miechur answered, “Yes.” I note that
neither Johnson nor anyone else ever testified that any of that occurred,
an omission which I must conclude demonstrates that the suggestion
was baseless. Miechur’s fortitude in the face of such tactic and can
only add to her credibility.
was going to come back with the answers.” The meeting ended
with the unidentified woman saying “that they were going to
write everything down and that was going to be addressed.”
Although the conduct of the meetings was guided by the new
small group meeting policy, that policy was not the proximate
cause of the Johnson and Burns’ decision to hold small group
meetings in Easton in October. In this regard it is notable that
the policy called for local administrators to conduct small group
meetings every other month. By all evidence this did not occur
at Easton. The only small group meetings occurring since 2004
at Easton were the October 29–30 meetings conducted by
Burns and Johnson, with Heimbach conducting at least one of
those meetings.
Notably, neither Johnson nor Burns described the motive for
the meetings as a matter of compliance with the new policy.
Rather, they attributed the meetings to conflict between HR
Director Reitnauer and Administrator Seiler, although their
explanations were not entirely consistent or credible.
Burns testified that she and Johnson decided to have the
meetings “around the end of October” after Reitnauer called “in
October and said that the staff wanted to talk [to] Diane and
I.”12 Johnson recalled Burns telling her about Reitnauer’s call
in early September, “right after [Reitnauer] got back from vaca-
tion . . . in August.” According to Johnson, she and Burns met
with Reitnauer and Seiler in mid-to-late September (an event
not mentioned by Burns), and thought that the breach between
Reitnauer and Seiler had been repaired, until Seiler “called me
in hysterics” over an incident she had just had with Reitnauer.
According to Johnson, Seiler’s call triggered the small group
meetings, because of “concern about something that’s going on
in the building”:

“[a]t that point, I talked to Renee Burns about needing to go in
and get to the bottom of what was going on in Easton. I usu-
ally rely on the administrator and the facility human resource
manager to give me a good temperature check of what’s hap-
pening in the facility, but it was obvious that that was not go-
ing to happen in this case, so I felt that we needed to go in and
meet with the staff.

Although she talked to Seiler on an almost daily basis, John-
son denied knowing anything about union activity at the time
the meetings were scheduled.13
Johnson also testified that she was unfamiliar with Miechur’s
name prior to the small group meetings. However, Burns knew
her name well from an October 18 phone call she received from
HR Director Reitnauer. In that conversation Reitnauer con-
veyed a conversation she claimed to have had with Miechur.
Reitnauer told Burns that Miechur told her that a union organ-
izer named Edgar had been at her house conducting a meeting
the night before with many of the nurse aides, and they were
meeting again after work with the SEIU. Reitnauer told Burns
12 Reitnauer testified but did not address any of these matters. There
was no corroboration for the claim that staff sought meetings with
Johnson and Burns.
13 I note that Marionlee Specter, who reported to Johnson, and did
not take over any duties at Easton until November 14, when she be-
came the administrator, learned of active union organizing at Easton in
September, “probably” from conversations with Johnson.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 212
that Miechur had said that the meetings had been going on
since September 1, and that Miechur had been the anonymous
employee quoted in a recent newspaper article (presumably
about the union or about Manorcare). Reitnauer also told Burns
that Miechur had said it would take “45 days to get the paper
processed, and that in about two weeks they would see where
they were going to go with this.”14
Somewhat remarkably, Burns testified that she did not men-
tion this telephone call from Reitnauer to Johnson, although,
according to Burns, she and Johnson decided to go to Easton to
hold the small group meetings in late October, after this call
had occurred. It was not that Burns saw the matter as unim-
portant. After she got the call she quickly called corporate HR
and told them “that I thought our employees might be looking
to organize, and that they were talking about it.”15
Wage Increases and Bonuses at the Facility
Effective November 21, CNAs at Easton had their pay rates
adjusted. They received, at the least, a 2 percent increase, alt-
hough if an employee was more than 10 percent over the top of
scale, the employee received a 2 percent lump sum payment in
lieu of an hourly rate increase. In addition, as part of this in-
crease, the starting pay rate at the facility was increased from
$10.25 to $11 per hour. Current employees making less than
$11 per hour received increases to and in many cases beyond
$11 per hour. This wage increase or payment was supple-
mental to the regular anniversary-date wage increases annually
14 Burns’ testimony about this phone call was not offered for the
truth of the matters stated in the phone call by Reitnauer, but rather to
establish that Burns was told this and heard of Miechur’s union activity
through it. (Tr. 481–482). Reitnauer testified, and confirmed that she
called Burns, and confirmed some of the contents of the call, albeit in
very vague fashion. Miechur, for her part, retook the stand and denied
confiding such details to Reitnauer, and speculated that Reitnauer may
have reported things she overheard Miechur talking about to other
employees on the smoking deck that they shared. I find based on Reit-
nauer and Burns’ testimony that Reitnauer made this call to Burns,
essentially along the lines testified to by Burns. However, whether
Miechur told all of this to Reitnauer is a harder but less relevant ques-
tion. Its relevance is limited to any implications it might have for
Miechur or Reitnauer’s credibility. Clearly, based on the call to Burns,
Reitnauer knew some of the details of the union campaign and knew of
Miechur’s role. At the same time, some of the details noted by Burns
seem off, or at least uncorroborated, exactly as if it was overheard or
the product of hearsay. As discussed, above, I found Miechur a credi-
ble witness. If I found that she did, in fact, disclose this conversation to
Reitnauer, I would discredit only her denial of it, and attribute it to an
embarrassment at having been revealed to have talked with a manage-
ment representative about internal union matters. But the denial of this
incident would not, in my view, undermine what I found to be her
general credibility on other events that she did not feel embarrassed or
ambivalent about. Of course, it is long settled that “[i]t is no reason to
refuse to accept everything a witness says, because you don’t believe
all of it, nothing is more common in all kinds of judicial decisions than
to believe some and not all.” NLRB v. Universal Camera Corp., 179
F.2d 749, 753 (2d Cir. 1950), revd. On other grounds, 340 U.S. 474
(1951); Conley Trucking, 349 NLRB 308, 316 fn. 18 (2007), enf’d. 520
F.3d 629 (6th Cir. 2008); Daikichi Sushi, 335 NLRB 622, 622 (2001).
15 Despite this, Burns claimed that at the time of the small group
meetings she and Johnson “didn’t know at that point that there was any
formal labor . . . organizing.”
received by Easton CNAs. Many employees received far more
than a 2-percent raise.16
The genesis of these wage increases rested with corporate
management. Regional HR manager Burns testified that she
had been working on the wage issue since February 22, 2007,
when she requested local market wage averages Manor Care’s
corporate compensation department. According to Burns, such
a market analysis is done periodically, as often as every 6–8
months, but sometimes once a year, and wage adjustments
made when necessary to remain competitive. Burns explained
that “[t]he goal is not to hire people from the outside for more
than what our existing staff is making.” From February to Au-
gust, Burns was collecting competitive data. Her testimony and
notes from an August 17, 2007 regional managers meeting
suggest that by August Burns was “about 50% done” on a wage
proposal covering RN’s, LPNs, and CNAs in the Lehigh Valley
facilities, which includes Easton.17 She submitted the wage
proposal for approval to the corporate compensation depart-
ment in Toledo, Ohio at Manor Care headquarters in late Sep-
tember or early October. She testified that several versions
were sent back and forth.
Complaints about wages were a significant topic of discus-
sion at the October 29–30 small group meetings conducted by
Burns and Johnson. The Action Plan submitted into evidence
states that “a wage proposal is in process” and it is marked
“completed.” The wage hike proposal was approved by the
corporate compensation department sometime in November
and definitely by Thanksgiving. Burns testified that the Easton
facility, and Old Orchard, another Manorcare facility in Easton,
PA, instituted wage increases in November. They were ap-
proved and implemented at the “Bethlehem campus” a couple
of months later.
Transfer of Easton Administrator Seiler and
ADNS Kublius
At the small group meetings numerous complaints regarding
local management were registered by employees. The list of
employee complaints raised in the meetings (GC Exh. 44) is
wide ranging, and covers many topics from wages and benefits,
to staffing, to supplies, to patient care, to issues of morale gen-
erally. Many of the complaints might be viewed generally as
an indictment of management. However, a number of the com-
plaints specifically complained about the administrator and/or
nursing management. These include the following from the list
compiled by Burns:

Administrator is not visible; doesn’t acknowledge or say “hel-
lo”; Feel ignored by Administrator and nurse management
16 The General Counsel and the Respondent stipulated (GC Exh. 32
at par.13) that the wage increases and lump sum payments amounted to
2 percent of current pay. However, the stipulation notwithstanding, this
does not appear entirely accurate. The Respondent’s own evidence
suggests that the raises to Miechur and Callodo were 6.4 percent and 5
percent respectively. (R. Exhs. 27 and 26). Documents produced by
the Respondent suggest that in most cases the across-the-board increas-
es were far greater than 2 percent (see GC Exh. 39).
17 The Lehigh Valley facilities include two facilities in Easton, two
in Bethlehem, and two in Allentown. Burns explained that “we gener-
ally pay the same . . . in all three markets.”

MANOR CARE HEALTH SERVICES–EASTON 213
team; Administrator, nurse management team and Depart-
ment Heads are visible and help out when the DOH and/or
Corporate staff is in the facility—then they disappear again;
Staff on 11–7 doesn’t know who the Administrator is – never
see her; Told by nurse management “if you don’t like it here,
you can go to McDonald’s; Feel ignored by Administrator;
Have never seen the ADNS and/or Administrator doing
rounds; Need to see the NHA and ADNS; not just when
someone is visiting the facility; Administrator says she has an
open door policy but she just sends you to someone else and
she never follows up; Management doesn’t even say “good
morning”; Nurse that drops pills on the floor and doesn’t pick
them up; ADNS is aware[.]

Even prior to the small group meetings, there had been some
problems with Kublius. In June she received a warning (her
first) for failing to report to the facility when she received word
that a patient had been injured. According to Burns, beginning
in the summer, Kublius had been on a performance improve-
ment plan, as she was having “difficulty managing labor, diffi-
culty managing the schedule, getting her ECO room, clinical
processes meeting room in compliance with the company’s
standards.” Johnson complained that Kublius, “abdicated the
responsibility for labor management to her scheduler. . . . And
that was Paula’s job.” In late October, Seiler developed an
“action plan” for Kublius, that designated her duties and was
updated week by week.
On November 12, Manor Care transferred Easton Adminis-
trator Seiler and ADNS Kublius. The decision to remove Ku-
blius was made by Johnson, along with Burns, after the small
group meetings. Johnson agreed with and adopted a statement
in her pretrial affidavit that “after the [small group] meeting, it
was decided that [Kublius] lacked the confidence of the staff,
and she was transferred to another facility.”18
Seiler’s transfer was also at Johnson’s request, and, in a
statement endorsed by Johnson, made for “essentially similar
reasons” as Kublius, an explanation that echoes Johnson’s as-
sertions that prior to the small group meetings she had been told
by Burns that staff at Easton had concerns with Seiler’s con-
duct.19
18 See Fed. R. Evid. 801(d)(1), Notes Of Advisory Committee On
Proposed Rules (“If the witness admits on the stand that he made the
statement and that it was true, he adopts the statement and there is no
hearsay problem”). I specifically discredit Johnson’s declarations at
trial that it was Seiler’s decision to transfer Kublius from Easton.
Burns testified that “Diane Johnson was the decision maker.” Kublius’
transfer papers list as the reason for the transfer request “Request of
Diane Johnson.” And perhaps, most compelling, Seiler attributed the
transfer decision to Johnson and Burns, and rejected the suggestion—in
what appeared to be an unguarded display of surprise that anyone could
suggest such a thing—that she had anything to do with the decision to
transfer Kublius. (“I was not involved with her transfer. . . . That was
Renee Burns and Diane Johnson.”) I credit Seiler on this point, which
was not challenged, explained, or even followed-up upon by the Re-
spondent.
19 Somewhat inconsistently, Johnson at first claimed that she re-
moved Seiler because of “challenges” Seiler had managing Kublius and
also with Reitnauer, “[a]nd I felt that for her peace of mind and the
betterment of the facility, that it would be best if we transfer her away
from the Easton facility.” Of course, were this accurate, Reitnauer and
The transfers of Kublius and Seiler constituted two changes
in what amounted to a complete overhaul of management per-
sonnel in October and November. On October 23, days before
the small group meetings, HR Director Reitnauer transferred
from Easton to a Manor Care in Allentown, in order to be clos-
er to home. She was replaced by her assistant Heimbach, who
assumed the position of HR Director on October 24. Seiler was
replaced as administrator by Marionlee Specter. Specter had
been working as a senior administrator overseeing administra-
tors in two facilities in Allentown. She was notified by John-
son on November 13 to report to Easton the next day to serve as
the facility’s administrator. Johnson also arranged for Kate
Gieroczynski, who was working at another Manor Care facility,
to report to Easton on November 14, to serve as Assistant Ad-
ministrator, a position she continues to hold. Specter and
Gieroczynski remained as Administrator and Assistant Admin-
istrator in December, when Jacqueline Stolte transferred from a
Manor Care facility in Landsdale, and assumed the position of
Acting Administrator, and worked as another assistant to Spec-
ter. Specter took the title of Executive Director in January
2008 but remained at Easton and overlapped with Stolte, shar-
ing an office with her, until Specter stopped working at Easton
near the end of June. Stolte remained at Easton until July 8,
2008, when Ed Schuch became the administrator.20 Kublius
was replaced by Cindy Hummel, who began at Easton on No-
vember 12. In addition, Dawne Signore was brought in to train
Hummel, and they both held the position of ADNS until Hum-
mel was transferred to a Bethlehem facility in July 2008.
Kushnerick Finds the Mundy Letter; Her Confrontation
with Miechur; Miechur’s Discipline
The Pennsylvania Department of Health was responsible for
approving the transfer of the ownership license required for
Carlyle to assume control of Manor Care. In conjunction with
this, on November 13, Pennsylvania state representative Phyllis
Mundy conducted a hearing on Carlyle’s intended purchase of
Manor Care. The hearing addressed concerns about the poten-
tial affect that Carlyle’s control of Manor Care could have on
care for the facilities’ residents. Mundy’s press release called
on the Pennsylvania Department of Health to “not grant licens-
es to the Carlyle Group until a full investigation is completed
that will determine whether or not the Carlyle Group, a private
equity firm new to the long-term industry, will be able to take
quality care of seniors.” Representatives from the SEIU, Man-
or Care, and the Pennsylvania Department of Health testified at
the November 13 hearing.
Miechur was not involved in the November 13 hearing but
soon afterward she began to play a public role in the Union’s
national campaign regarding Carlyle and Manor Care, Inc.
Kublius’ transfers would have removed any rationale for Seiler’s re-
moval. I note that Johnson’s April 2007 performance appraisal of
Seiler reflected no problems, contained many complimentary com-
ments, and her total score fell between “meeting all expectations” and
“exceeding expectations.” When Seiler testified she was not asked
about the circumstances of her transfer.
20 Stolte testified that, at least as of April 2008, she reported directly
to Johnson, and not to Specter. It is likely this was because, beginning
in March, Specter was out on medical leave from “time to time.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 214
On November 16, the Union brought a group of employees
and family members to Carlyle headquarters in Washington
D.C. to confront Carlyle representatives. Four employees from
Easton participated in the event, including Miechur. Miechur’s
mother (whose own mother, Miechur’s grandmother, was a
resident of the Easton facility) also participated in the D.C.
event. The union group sought to meet with Carlyle CEO Da-
vid Rubenstein. He was not available and eventually a Carlyle
representative met with the employee/family group. The event,
as well as interviews after the event, were videotaped by the
Union. The video included interviews with Miechur and her
mother. The interview was posted on a union website devoted
to the Carlyle/Manor Care buyout. The interview remained
posted on the website for a couple of weeks.
The day after returning from Washington D.C., Miechur was
approached by Heimbach at work. She told Miechur that she had
“seen what you did. I’ve seen your video on the SEIU website.” 21
The Union attempted to generate support for a second hear-
ing with state representative Mundy. SEIU representative Den-
nis Short drafted a form letter to representative Mundy asking
for a follow-up hearing on the Manor Care transaction. Ac-
cording to Short, the letter was designed to generate support for
a second hearing in which employees could talk directly to
public officials about staffing issues at the facility and concerns
with Manor Care’s antiunion campaign. In general the Union
wanted to keep pressure on the state to examine carefully the
license transfer and, even more generally, to generate publicity
for the union activities. The form letter, addressed to Mundy,
stated the following:

My name is ______________ and I am a ____________at the
ManorCare Easton nursing home in Easton PA.

I want to thank you for your leadership on the Manor-
Care/Carlyle buyout and for holding an Aging and Older
Adults Services Committee meeting on November 13th.

At my facility, we are very short staffed and it affects the care
for our residents.

For example:

I hope you will do all you can to make sure that the Depart-
ment of Health officials live up to their word when they testi-
fied in your committee that: “The Department will pursue all
avenues necessary to ensure this change of ownership does
not negatively impact care provided to residents in the Com-
monwealth.”

I would like the opportunity to tell my story about the need for
more staffing and better care at my facility and I hope you
will have a follow up hearing where I can do so.

21 Heimbach could not recall having any such conversation and de-
nied that it occurred. I credit Miechur’s account. As discussed, supra,
Heimbach’s testimony inspired less confidence in the accuracy of her
account. Miechur also testified that she thought, but could not recall
for sure, that Heimbach had told her during this conversation that she
knew that Miechur had contacted the Union. I do not rely on this por-
tion of Miechur’s testimony.
Please contact me if you have any questions and I look for-
ward to hearing from you.

Sincerely,

PhoneAddress:

(Italics in original.)
Copies of these letters were provided to employees at a No-
vember 21 union meeting. They were also provided to employ-
ees at a subsequent November 28 meeting attended by some of
the employees’ family members as well as employees. At the
November 21 meeting, the Union asked employees to solicit
other employees, but also residents and family members sign
the letters and return them to the Union.
Miechur testified that the Union “told us that we can give
these to residents, and coworkers and family members on break
time, but do not do it in resident care areas.” Collado, who was
also at the meeting, took some of the letters. Miechur did not
take letters to distribute because she knew Manorcare was
aware of her union activity and she feared retaliation. Miechur
told her coemployees that when they had signed the letters, or
obtained signatures, they could place the letters in her bag,
which she kept in the nourishment room at work.22
That evening when she came to work, Miechur placed her
bag on the table in the nourishment room, on the far right cor-
ner as she typically did. Two other employees also had their
bags on the table. In addition, there were a lot of papers scat-
tered around on the table, “a big mess” as described by Collado.
At around 4 to 4:30, an hour to an hour and a half into the
shift, Collado was in the north hallway looking down the hall
into the nourishment room. She saw Kushnerick in the nour-
ishment room. Her back was to the nourishment room door and
she was looking through papers on the table and scattering
them as she looked. She reached the corner of the table where
Miechur’s bag was and—Collado could only see her back—
Kushnerick stood there reading something and then walked out
of the nourishment room with the piece of paper, and walked to
the copy room. Collado went to tell Miechur that Kushnerick
“had one of her papers.” Miechur went to find Kushnerick and
approached her at the intersection of the north and west hall-
ways.
Kushnerick confirmed this account of events, to a certain ex-
tent. Kushnerick testified that she was in the nourishment room
looking for a “wanderguard bracelet,” for a resident being ad-
mitted to the facility—an “exit seeking admission.”23 Normally
wanderguards are not kept in the nourishment room, but in the
nursing office down the hall. However, Kushnerick claimed
that someone—she did not identify the person—told Kush-
nerick that one was in the nourishment room. Kushnerick testi-
22 The nourishment room is a room at the Easton facility on unit 2,
next to the nurse’s stations, and is marked on the door as being for
employees only. The room has a refrigerator, freezer, microwave,
charting equipment, and procedure and medical books for nurses and
aides. Residents’ snacks, or food brought by families is kept there.
CNAs regularly keep their personal belongings in this room during
shifts.
23 A wanderguard is a bracelet placed on a wrist or ankle that trig-
gers an alarm should the wearer exit the building.

MANOR CARE HEALTH SERVICES–EASTON 215
fied that in looking through the newspapers, personal items, and
at least one bookbag on the table, “I saw a paper that was a
form and it had a . . . resident’s name on it and I . . . didn’t rec-
ognize the paper. I just took it.” According to Kushnerick, she
took the paper “[b]ecause I didn’t recognize it.” She saw it had
a resident’s name on it, and that it was not a typical Manorcare
form. However, she also admitted that she had heard a rumor
that residents were being asked to sign such letters by Miechur
and other CNAs, and that when she picked up the paper she
“couldn’t be certain but I thought maybe it was” connected to
that rumor.24 Kushnerick said that the form was on top of a
pile that looked to be the same papers underneath. Consistent
with Collado’s observation, Kushnerick testified that she made
a copy.
A few minutes later Miechur approached Kushnerick and
asked her, “those papers in your hand, did you just steal [them]
out of my bag?” Kushnerick told Miechur that she had been in
the nourishment room looking for a wanderguard and she hand-
ed the paper back to Miechur. Kushnerick told Miechur, that
she “can’t be handing these out on work time.” Miechur denied
handing them out and, pressed by Miechur, Kushnerick admit-
ted that she did not see Miechur handing out any papers.
Kushnerick told Miechur, “stop worrying about the Union and
worry about your job.” Kushnerick then walked away.25
Kushnerick returned the solicitation letter to Miechur, but
kept a copy she had made and that same evening turned it over
to facility administrator Specter.
Specter had transferred to Easton just 1 week before. Alt-
hough she had not met Miechur, upon coming to the building
she was briefed on union matters by Johnson or Burns and
“Trisha Miechur’s name had come up as somebody who had
been actively involved in the organization campaign.” Specter
had been made aware of union leafleting at Easton in her re-
gional meetings, conducted by Johnson, even before being
assigned there. Specter recalled that either Burns or Johnson
had told her about Miechur’s appearance on the SEIU website.
By her account, Specter asked few questions of Kushnerick,
and her testimony regarding what they discussed was very un-
sure. Kushnerick. for her part, and consistent with the vague-
ness of her testimony generally, could recall nothing of the
conversation she had with Specter when she provided the copy
24 Although uncertain, Kushnerick thought she might have heard that
rumor from the administrator. Heimbach also had heard such a rumor,
but could not recall its source.
25 This account is based on the credited testimony of Miechur.
Kushnerick denied making any such comments to Miechur. According
to Kushnerick, she was approached by Miechur who “said that I had
something of hers.” Kushnerick testified that she gave the letter back
to Miechur and Miechur walked away. Given the charged nature of the
incident, along with more general assessments of the credibility of
these two witnesses (discussed above) I doubt that conversation would
be as short, even perfunctory, as that described by Kushnerick.
I note that Miechur’s testimony described seeing Kushnerick with “a
bunch of papers,” while Kushnerick only described taking one, and
handing one back to Miechur. Collado testified that Kushnerick took
one paper to copy, and only a copy of one paper was turned into Spec-
ter. However, Miechur’s discipline notice clearly reads that she is
being disciplined for soliciting multiple witnesses. I do not need to and
do not resolve this discrepancy.
of the letter to Specter. Specter testified that Kushnerick came
to her with a copy of the solicitation letter and “said that she
had Trisha soliciting people, patients, residents and that she got
the letter in the Charting Room.”26
Kushnerick claimed she gave the copy to Specter without
having ever read the paper. Kushnerick could not recall having
any further conversations with Specter or anyone else from
management regarding what she found.
Instead, that day or the next Specter reviewed the letter with
the corporate Director of Labor Relations, Barbara Kilmurry,
who had come from corporate headquarters in Toledo, Ohio,
and was working onsite in Easton in response to the union or-
ganizing. Specter also reviewed the letter with Heimbach,
Gieroczynski, and Stolte “to look at where we were going in
terms of the disciplinary process.” According to Gieroczynski,
the Respondent’s attorney Nelson participated in at least one
meeting by phone regarding the Miechur discipline.
Ultimately, in determining the discipline, Specter consulted
with and took “direction” from Burns and Kilmurry. They
reached a “consensus” decision that Miechur should be disci-
plined under Section B–19 of the Employee Handbook. That
provision operates as a catch-all provision, requiring an em-
ployee to “[p]erform your job according to expectations and
conduct yourself properly in other serious instances not specifi-
cally listed.”27
Specter was not involved in writing the disciplinary notice,
which she testified “came about through Barbara Kilmurry and
Renee Burns in consultation with some others.” For appear-
ance, or formal purposes, however, the local managerial staff
perceived the ultimate decision on the discipline as Specter’s.
The disciplinary notice was actually written by Gieroczynski,
using language drafted by the Respondent’s attorney Nelson,
who consulted with the group by phone and provided the lan-
guage sometime after this meeting.28
Specter made clear in her testimony that “[w]e wanted it to
be a final written warning action but not a termination.” As she
explained, “we weren’t looking for a discharge decision.”
However, the discipline was issued as “a final written warn-
ing.”29 According to Gieroczynski, “[w]e all agreed that that
26 The testimony showed that the charting room was the same as the
room most witnesses referred to as the nourishment room.
27 The Handbook lists A, B, and C work rules. Type A rules are
“critical” and “will result in suspension, subject to termination, pending
a final review for the first occurrence.” Type B rules are “major” and
will result in termination based on a progressive disciplinary schema.
Type C rules are “minor” but can also result in termination based on
progressive discipline.
28 In her testimony Burns did not discuss the disciplining of
Miechur. Kilmurry and Nelson did not testify.
29 Specter said that in arriving at this level of discipline, she and
Burns and Kilmurry considered a July 2006 suspension given to
Miechur for an incident in which Miechur used a patient’s telephone to
make a call. In relying upon this warning Specter did not speak with
anyone involved and did not know that suspension was rescinded and
Miechur paid for her time off work after an investigation vindicated
Miechur. In relying on this July 2006 warning, Specter (and Burns and
Kilmurry) also ignored the Handbook’s statement that as a type C vio-
lation it was to “become inactive for the purposes of progressive disci-
pline after one year.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 216
was an appropriate discipline. . . . We had not had a situation
like this occur before and we decided that it would be appropri-
ate.” They were all “well aware” that Miechur was a union
activist. Kushnerick was not involved in the meetings and the
managers relied upon Specter’s account of events.
There is no express work rule prohibiting solicitation of a
resident. There are work rules involving solicitation, but not of
residents, and they were not relied upon. However, in Specter’s
view, “our policy is not to solicit residents”—in any area of the
facility at any time. Specter agreed, however, that this was not
written in the handbook. Indeed, by all evidence it was not
written at all, or even orally conveyed at any time prior to the
events surrounding this incident. Gieroczynski asserted that
“it’s a generally known policy that we do not solicit residents”
but agreed it was not written down, and offered no support for
the statement.
At no time did Specter undertake, or direct anyone to under-
take an investigation into the facts of what occurred. She relied
on the short exchange with Kushnerick.30 Beyond, this brief—
and not clearly recalled—discussion when Kushnerick reported
on the solicitation letter, by all evidence there was no investiga-
tion into the incident. No management witness was involved
in, or knew of anyone else, talking with Kushnerick, or other
employees, residents, or even Miechur about the events under-
lying the discipline. HR Director Heimbach believed there had
been an investigation, but was not involved in it, did not recall
who was. It turned out she believed there had been one only
“[b]ecause it wouldn’t have warranted a discipline at that level
without investigating it first.” The only explanation for the lack
of an investigation was Specter’s suggestion that it might “up-
set” residents for such questions to be asked.
Miechur heard nothing else regarding the incident until No-
vember 28. On that evening, at about 11 p.m., as the work shift
was ending, Gieroczynski approached and asked if she could
talk to her. Miechur was heading toward the office when her
supervisor advised her she should not go to the meeting alone.
The supervisor and Miechur asked Klinger to go into the meet-
ing with Miechur. Together they went to HR Director Heim-
bach’s office, where Heimbach and Gieroczynski were waiting.
At first Gieroczynski and Heimbach resisted Klinger’s presence
but then acceded to allowing her as an observer.
Gieroczynski announced that Miechur was receiving a final
write up. Gieroczynski told Miechur that she had been disloyal
to the company, and it was “type B write up.” Miechur started
crying and denied ever passing out the papers, stating “you are
accusing me of something I didn’t do.” Miechur asked
Gieroczynski, “did you see me passing out those papers?”
Gieroczynski said “no.” Miechur asked, “did anybody see me
pass out those papers.” Gieroczynski again said, “no.”
Miechur refused to sign the paper because she denied commit-
ting the solicitation described in the discipline. Gieroczynski
and Heimbach signed the notice. Gieroczynski said that the
next step would be termination. Miechur asked “how do I go
from no write ups to a third and final write up,” and Gieroczyn-
30 Specter denied prior knowledge of rumors of solicitation, some-
thing to which Kushnerick admitted and suggested might have been
told to her by Specter.
ski replied that it was a type B violation. Gieroczynski men-
tioned that she was aware that Miechur contacted the Union.
Miechur said, “you are doing this because you know I called
the SEIU. Kate [Gieroczynski] said yes, we know that you
called the union.” Miechur said, “this isn’t fair. She said I
didn’t do what you’re accusing me of and they said, well, she’s
still getting wrote-up and this is her last write-up and next time
she will be terminated.” Miechur called it harassment, said she
wanted to get an attorney, and asked to call her mother.31
During the meeting, Gieroczynski read the disciplinary no-
tice to Miechur. It stated:

Your solicitation of Residents to complain about the
Center by distributing pre-printed forms for their signa-
tures constitutes disloyalty towards the company that is
not protected by any Federal or State law. Such action can
harm the Company’s legitimate business interests and is a
violation of the HCR Manor Care standards of business
conduct. Among other things, the form you distributed
and asked the residents to sign states:
“At my facility, we are very short staffed and it affects
the care of our residents.”
This kind of comment violates the standards we be-
lieve every employee should follow because it disparages
the care MCHS-Easton and its staff strive to provide. It
may also unnecessarily upset residents and raise undue
concerns in the minds of some residents and family mem-
bers as to the level of care which we provide at the facility.

The notice stated that if the behavior continues, “you will be
subject to Termination.”
Events in 2008
Miechur’s prominence in the Union’s national campaign
continued to grow in 2008. On January 18, along with about 50
other union activists, Miechur attended a conference on private
equity firms in Philadelphia at which Carlyle CEO David Ru-
benstein was speaking. Three Easton employees, including
Miechur were present. When Rubenstein was introduced,
SEIU supporters entered the room, unfurled a banner saying
“Carlyle fix Manor Care now” and leafleted and chanted.
When the chanting stopped Miechur, who had been seated at a
table near the stage, stood and addressed Rubenstein using a
megaphone. Miechur introduced herself as a Manorcare em-
ployee and began talking about working conditions and care at
the facility and the efforts to form a union. Rubenstein and she
talked back and forth in front of the audience for about 10
minutes, until the conversation got heated when Rubenstein
criticized Miechur’s diction. This resulted in more chanting.
The union activists were escorted out by police. No charges
31 This account of the discipline meeting is based on the credited and
undisputed account of the meeting provided by Miechur and Klinger.
Both Gieroczynski and Heimbach testified, but neither contradicted or
gave much of an account at all about the meeting, which, given the care
with which this case was litigated, I take as an effective admission of
the accuracy of Miechur and Klinger’s testimony. I note further, that
on cross examination, Miechur denied saying to Gieroczynski “I knew
you would do this.” I credit her denial of making this statement, which
was never asserted by any witness.

MANOR CARE HEALTH SERVICES–EASTON 217
were filed. The incident was covered by the Philadelphia In-
quirer, to which Miechur gave an interview, and the New York
Post, as well as other national news outlets. That evening,
Rubenstein contacted Miechur and apologized for the remark
he had made, and this provided a further opportunity for the
two to discuss issues relating to the facility.
The next day Miechur went to work and brought the Phila-
delphia Inquirer article, which included comments from
Miechur’s interview. When she was heading up to the dining
room she left the paper in the nourishment room. Later, a CNA
approached her and said that Heimbach had been in the nour-
ishment room, alone, and that Miechur’s newspaper was now
gone. Miechur paged Heimbach and asked her if she had seen
Miechur’s newspaper. Heimbach said no, and said she did not
have time to discuss this, and Miechur should come to her of-
fice if she wanted to discuss it. She then saw Heimbach in the
hallway and Heimbach invited Miechur to her office. In her
office Heimbach denied taking the paper, but said to Miechur,
“I’ve seen what you’ve done. I’ve known what you’ve done.
You should be ashamed of yourself. . . . [H]ow can you walk
in to this facility with your head high after what you’ve
done?”32
The following Monday, January 21, Stolte approached
Miechur and told her that Specter would like to speak to her.
Miechur attempted to have a witness come with her to Spec-
ter’s office but Specter said that this did not involve discipline
and there was no reason for a witness. Stolte was also in Spec-
ter’s office. Specter had the Philadelphia Inquirer and New
York Post articles on the previous week’s protest in Philadelph-
ia, and told Miechur, “[y]ou know you want to talk to me.”
Then, echoing Heimbach’s words from the previous week, she
asked Miechur, how she could “walk in this facility with my
head high.” She said that “I need to stop doing what I’m doing
because we’re not going to get anymore residents in to Manor-
care and I should be ashamed of myself.” Miechur said she
would not stop. They agreed the meeting was over and
Miechur left.33
Miechur’s role in the Union’s campaign continued. She
traveled to Baltimore to a rally in support of other Manor Care
employees. On February 13, Miechur traveled to Washington
D.C. where the Union was hosting a conference that brought
Manor Care workers from across the country together. As part
of this conference, union activists went to the Carlyle headquar-
ters and attempted to talk to a Carlyle official. Miechur attend-
ed this conference in D.C.
On March 10, the Union held an event at the Easton facility
called “march on the boss.” Workers and family members
gathered in front of the facility. Then a delegation entered the
32 Although her memory was sketchy, Heimbach admitted the essen-
tials of this conversation and I credit Miechur’s account. Heimbach
recalled Miechur asking if she had taken her newspaper, recalled deny-
ing it, and recalled telling Miechur in reference to a newspaper article
about the facility featuring Miechur, “[i]f I were you I would be
ashamed.”
33 Both Stolte and Specter testified, but neither disputed Miechur’s
account. This was a thoughtfully defended case. The failure of these
witnesses to address these issues was telling. I credit Miechur’s undis-
puted account.
facility to provide a list of proposals to management for im-
proving working conditions and service-related issues. This
event was covered in a local newspaper. Quotes from Miechur
and a picture of her (and some family members) were included
in the article’s accompanying photograph.
Around March 22, Miechur was part of a union group that
traveled to Japan to talk to nursing home workers and compare
conditions at a chain of nursing homes in Japan bought by Car-
lyle. Upon her return Heimbach mentioned that she had heard
that Miechur went to Japan. Miechur told Heimbach she had
been on a business trip with her father.
On approximately April 7, Acting Administrator Stolte con-
ducted a series of inservice meetings. Miechur attended one of
the meetings attended by several--Miechur estimated three,
Stolte said six to eight—CNAs. The presentation consisted of a
power point presentation. The first power point slide stated:
You say . . .
. . .MCHS-Easton IS a Good
Place to Work!
The second slide stated:
During the past five months,
we have lived through:
• Attacks in the newspaper on the care we provide;
• Picketing by the SEIU;
• Comments from a few staff that they
will go to the press with problems
instead of working together to solve
them.

During the second slide, Miechur stood up and walked out of
the meeting, remarking “this is bull crap” or “bull sh—t” a
comment that Miechur admitted was inappropriate for her to
have made.34 Miechur returned to her regular work. Later
Stolte overheard Miechur from the hallway repeating her “bull
crap” comment. She sent supervisor Alija Johnson, a nurse
supervisor in training, to ask if she could speak to Miechur.
They went to the computer room where they met Stolte. Stolte
told Miechur that she left the meeting abruptly, and upbraided
her for her unacceptable conduct and for using foul language in
the meeting and in the hall, near patient rooms. Miechur told
Stolte that she felt like she was being “persecuted” and that she
felt that the presentation was attacking her and that she had
every right to contact the Union. Miechur continued: “I’m tired
of the meeting [ ] being about me and SEIU. I’m tired of
working in a hostile environment.” Stolte replied, “if you don’t
like it you can quit.”35 Miechur told Stolte, “I’m not going to
quit because I’m here working for my residents.” Miechur also
told Stolte that “you are going to have to fire me to get rid of
34 Miechur testified that she said “bull crap.” Stolte testified that she
said “bull sh—t.” I have no reason to resolve this minor inconsistency.
Either would be considered inappropriate under the circumstances.
35 Stolte’s slightly different admission was that she said “I told her
that no one was making her work here.” I do not believe it necessary to
resolve the discrepancy. In context, the difference between the com-
ments is inconsequential. However, if it mattered to the analysis, I
would credit Miechur’s version over Stolte’s, as her recollection of this
incident was more persuasive.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 218
me.” Stolte told Miechur she was not about to fire her, and she
was not going to discipline her for walking out of the meeting.
ANALYSIS
A. October 2007 Interrogations of Miechur and Klinger
(Paragraphs 5 and 6 of the Complaint)
The General Counsel alleges in paragraph 5 of the complaint
that Miechur was interrogated about her union sympathies.
Paragraph 6 of the complaint alleges that Klinger was similarly
interrogated. The General Counsel alleges that these interroga-
tions violated Section 8(a)(1) of the Act.
Section 7 of the Act grants employees, among other rights,
“the right to self-organization, to form, join, or assist labor
organizations.” 29 U.S.C. § 157. Pursuant to Section 8(a)(1)
of the Act, it is “an unfair labor practice for an employer to
interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 7.” 29 U.S.C. § 158(a)(1).
The applicable test for determining whether the questioning
of an employee constitutes an unlawful interrogation is the
totality-of-the-circumstances test. Sunnyvale Medical Clinic,
277 NLRB 1217 (1985); Rossmore House, 269 NLRB 1176
(1984), enfd. 760 F.2d 1006 (9th Cir. 1985). While the Board
has identified a number of factors that are “useful indicia”36 in
making this determination, there are no particular set of factors
that are to be “to be mechanically applied in each case.”
Rossmore House, supra at 1178 fn. 20; Westwood Health Care
Center, 330 NLRB at 939. Rather, the Board has explained
that “[i]n the final analysis, our task is to determine whether
under all the circumstances the questioning at issue would rea-
sonably tend to coerce the employee at whom it is directed so
that he or she would feel restrained from exercising rights pro-
tected by Section 7 of the Act.” Westwood, supra at 940;
Sunnyvale Medical Clinic, supra. This is an objective standard,
and it does not turn on whether the “employee in question was
actually intimidated.” Multi-Ad Services, 331 NLRB 1226,
1228 (2000), enfd. 255 F.3d 363 (7th Cir. 2001). Generally, it
is unlawful for an employer to inquire as to the union senti-
ments of its employees. President Riverboard Casinos of Mis-
souri, 329 NLRB 77 (1999).
In this instance, Heimbach’s questioning of Miechur was vi-
olative of the Act. Heimbach’s inquiry of Miechur was neither
casual nor accidental. She isolated Miechur for the purpose of
making the initial inquiry. It came in the context of an ongoing
antiunion campaign by management—a perfectly lawful re-
sponse by an employer to concerns about unionization, but one
that necessarily impacts the likelihood that an interrogation is
coercive. In such a context, the interest is unlikely to be casual.
The questioner is not indifferent to the response. This was true
here. Heimbach directly approached Miechur, asked if she
could speak with her, and “pulled [her] in” the clean utility
room, presumably to keep others from overhearing their con-
versation. Her question—had she “heard about SEIU trying to
organize in [the] Easton facility—directly tested Miechur’s
personal knowledge of union activity in the facility. Heimbach
36 Perdue Farms, Inc. v. NLRB, 144 F.3d 830, 835 (D.C. Cir. 1998),
quoted approvingly in Westwood Health Care Center, 330 NLRB 935,
939 (2000).
“was clearly seeking information from [Miechur], not convey-
ing well-known information to h[er].”37 And when Heimbach’s
questioning led to an acknowledgement of Miechur’s “belief”
in the Union, Heimbach questioned the reasonableness of that
belief by suggesting the futility of unionization—”[t]he Union
can’t do anything for you”—itself (an unalleged but) arguably
an independent unfair labor practice. Miechur made clear that
the questioning was unwelcome, she curtly sought to end the
conversation, but this did not end the matter. A couple of
weeks later Heimbach approached Miechur and asked if she
had changed her mind on her support for the Union. That it had
not is irrelevant. There was no valid reason for these inquiries.
Nor is there evidence that Heimbach had friendships with
Miechur or other rank-and-file employees. See, Smithfield
Packing, supra. There is no evidence that Miechur was com-
fortable talking with Heimbach about personal matters. Amcast
Automotive of Indiana, 348 NLRB 836, 837 (2006). To the
contrary, the questioning was obviously unwelcome. Further it
should not be forgotten that Heimbach was not a low-level
supervisor. At least by the time of the follow-up questioning
she was HR Director at the facility, making her one of the top
three officials at the facility, according to Heimbach’s testimo-
ny. Although the date of the initial interrogation is unsettled in
the record, it was likely before October 24, at a time that Heim-
bach was still the assistant HR director. However, she was still
a well known, and prominent part of facility’s leadership.38
37 Smithfield Packing Co., 344 NLRB 1, 2 (2004), enfd. 447 F.3d
821 (D.C. Cir. 2006); Amcast Automotive of Indiana, 348 NLRB 836,
837 (2006) (no violation where no evidence that supervisor’s general
question about rumors of union activity was designed or reasonably
perceived as effort to uncover the union activities or sympathies of any
employee).
38 I conclude that the General Counsel has proven that Heimbach
was an agent of the employer at the time she interrogated Miechur,
even assuming, as is likely, that during the first interrogation Heimbach
was an Assistant HR Director/Payroll Clerk and had not yet assumed
the position of HR Director. The Board articulated its rule for estab-
lishing agency in Pan-Oston Co., 336 NLRB 305, 305–307 (2001):
The Board applies the common law principles of agency in
determining whether an employee is acting with apparent authori-
ty on behalf of the employer when that employee makes a particu-
lar statement or takes a particular action. Cooper Industries, 328
NLRB 145 (1999); Hausner Hard Chrome of KY, Inc., 326 NLRB
[426], 428 [(1998)]. Apparent authority results from a manifesta-
tion by the principal to a third party that creates a reasonable be-
lief that the principal has authorized the alleged agent to perform
the acts in question. Southern Bag Corp., 315 NLRB 725 (1994)
(and cases cited therein). Either the principal must intend to
cause the third person to believe the agent is authorized to act for
him, or the principal should realize that its conduct is likely to
create such a belief. Service Employees Local 87 (West Bay
Maintenance), 291 NLRB 82 (1988) (citing Restatement 2d,
Agency, § 27 (1958, Comment a)).
The Board’s test for determining whether an employee is an
agent of the employer is whether, under all of the circumstances,
employees would reasonably believe that the employee in ques-
tion was reflecting company policy and speaking and acting for
management. Waterbed World, 286 NLRB [425], 426–427
[1987] (and cases cited therein). The Board considers the position
and duties of the employee in addition to the context in which the
behavior occurred. Jules V. Lane, 262 NLRB 118, 119 (1982).

MANOR CARE HEALTH SERVICES–EASTON 219
Finally, Miechur’s disclosure of her union activity to HR Di-
rector Reitnauer on October 18 did not make Miechur an
“open” union supporter, a factor that may, depending on cir-
cumstances, mitigate the coerciveness of questioning. The fact
is, as Reitnauer admitted, Miechur talked to her in confidence,
and what is more, Reitnauer “always” told employees that they
could talk to her in confidence. I pass no judgment on Reitnau-
er’s swift betrayal of that confidence, as HR Director surely she
had competing obligations to her employer. But Miechur’s
decision to confide, even in a supervisor, to someone “she
talked to [ ] all the time,” to someone “she would come to [ ]
when she had problems or issues,” hardly makes her an “open”
union supporter, and hardly swings a door open to unwelcome
interrogation of her knowledge of union activity and declara-
tions about the futility of unionization, followed up 2 weeks
later by inquiry as to whether her sentiments had changed. The
fact is, by all evidence, at this point in time Miechur was not
open about her union activity. She did not wear union buttons.
She was not involved in union protests or demonstrations. She
was not featured in newspapers.
In short, “[i]t is well established that where an employer places a rank-
and-file employee in a position in which employees would reasonably
believe that the employee speaks on behalf of management, the em-
ployer has vested that employee with apparent authority to act as the
employer’s agent, and the employee’s actions are attributable to the
employer.” Mid-South Drywall Co., Inc., 339 NLRB 480 (2003).
I find that employees would reasonably believe that Heimbach rep-
resented and spoke for management in personnel related matters, in-
cluding when asking Miechur about her union sympathies. Indeed,
other supervisors and managers were engaged in a campaign, directed
by management, to “educate” specific employees about the Union.
Moreover, Heimbach regularly spoke for management: she spoke for
management to groups of current employees, and new employees going
through orientation (including employees hired at other Manor Care
facilities) on issues relating to payroll and time clock issues. She per-
formed the payroll portion of the orientation for new employees on
average every other week. She created postings regarding the new time
clock procedures. She coordinated ceremonial awards for employees.
As an “employee advocate” she was charged with investigating and
answering questions for employees regarding pay and benefits, and
spoke for management when she got back to the employees with the
answer or resolution to their problems. Specifically, on employee
questions related to payroll Heimbach resolved the issues with employ-
ees on her own, without consultation with others in management.
Heimbach regularly contacted employees over the intercom system.
She posted announcements of HR policy. She substituted for the HR
Director (indisputably an agent and managerial employee) on an irregu-
lar but repeated basis, although did not perform the full range of HR
Director tasks while substituting. She was part of the two person HR
“team” along with the HR Director. She interviewed applicants. She
had access to personnel files, which were maintained in her office, an
office in which she was the sole occupant. Whether or not she pos-
sessed the indicia of a statutory supervisor, the reasonable employee
would consider her a management representative when she spoke on
human resource matters, including her interrogation of Miechur. Ac-
cordingly, Heimbach was an agent of the Respondent for purposes of
this allegation. Notably, Section 2(13) of the Act states: “In determin-
ing whether any person is acting as an ‘agent’ of another person so as to
make such other person responsible for his acts, the question of whether
the specific acts performed were actually authorized or subsequently
ratified shall not be controlling.”
Kushnerick’s interrogation of Klinger was less egregious,
and a closer call. In this instance there was no follow-up to the
interrogation, no suggestion that supporting a union would be
futile, and Kushnerick was not as highly placed, or on track to
be as highly placed, as Heimbach. However, Klinger was not
an open union supporter, and the inquiry was not casual.
Kushnerick was specifically assigned to “educate” Klinger
about unions, “grabbed her” and took her to an area of the facil-
ity in which they could talk alone. The questioning of her
knowledge of the union campaign, and if she “knew anything
about unions” (i.e., probing her views of unionism) came in the
context of spreading the employer’s antiunion message. An
interrogation that is part and parcel of an employer’s antiunion
campaign is more likely coercive because the supervisor’s hos-
tility to unionism, which is not personal but a manifestation of
employer policy, raises the stakes for the employee put in the
position of answering questions about union activity or what
she knows of unions. Given the totality of circumstances,
Kushnerick’s interrogation was reasonably likely to be coercive
and violated Section 8(a)(1) of the Act.39
B. Soliciting Employee Grievances and Promising They
Would be Remedied; Posting Action Plan as Promised
(Paragraphs 7 and 10 of the Complaint)
The General Counsel alleges (par.7 of the complaint) that the
Respondent violated Section 8(a)(1) of the Act by soliciting
employee grievances in the October 29 and 30 small group
meetings and, in order to discourage unionization, implying
that it would remedy the grievances. In a related allegation, the
General Counsel further alleges par. 10 of the complaint) that
the posting of the Action Plans constituted an actual remedying
of many of the grievances mooted in the small group meetings,
also in violation of Section 8(a)(1).
“Section 8(a)(1) prohibits employers from soliciting employ-
ee grievances in a manner that interferes with, restrains, or
coerces employees in the exercise of Section 7 activities.”
American Red Cross Missouri-Illinois, 347 NLRB 347, 351
(2006). That manner includes the implied or explicit promise
during a union organizing drive to correct the solicited griev-
ances: “it is not the solicitation of grievances itself that is coer-
cive and violative of Section 8(a)(1), but the promise to correct
grievances . . . that is unlawful.” Uarco, Inc., 216 NLRB 1, 2
(1974).
“The solicitation of grievances alone is not unlawful, but it
raises an inference that the employer is promising to remedy
39 The Respondent’s contention (R. Br. at 64–65) as to all alleged in-
terrogations—that “there is simply no showing of harm here, and thus
no violation”—is meritless. A violation of Section 8(a)(1) does not
depend on the subjective reaction of the employee, or on whether the
interference succeeded or failed. Rather, the Board’s test is whether the
conduct reasonably tends to interfere with the free exercise of the em-
ployee rights under the Act. KSM Industries, 336 NLRB 133 (2001).
The Respondent’s citation to Yellow Ambulance Service, 342 NLRB
804, 810 (2004) is misplaced. That case involved the dismissal of an
8(a)(3) and (5) allegation (and a derivative 8(a)(1) allegation) because
the employer’s discriminatory and unilateral changes had no material
adverse effect on employees. However, a showing of adverse affect is
unnecessary, indeed, irrelevant to an independent 8(a)(1) violation for
unlawful interrogation.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 220
the grievances.” Amptech, Inc., 342 NLRB 1131, 1137 (2004),
enfd. 165 Fed. Appx. 435 (6th Cir. 2006); Blue Grass Indus-
tries, 287 NLRB 274 fn. 4 (1987); Uarco, Inc., 216 NLRB at 2.
“The solicitation of grievances in the midst of a union cam-
paign inherently constitutes an implied promise to remedy the
grievances.” Capitol EMI Music, 311 NLRB 997, 1007 (1993),
enfd. 23 F.3d 399 (4th Cir. 1994).
In this case, it is clear that ManorCare’s October 29 and 30
small group meetings were for the precise purpose of and did,
in fact, involve the solicitation of grievances, and occurred
during an organizational campaign of which the employer was
well aware. What is more, there is no reason to consider
whether ManorCare implied that it would remedy the solicited
grievances, as the evidence shows that the promise to remedy
the complaints was expressly made during the meetings. Con-
veying an intent to fix the problems raised by employees was
an integral part of the small group meetings. According to the
credited testimony of employee witnesses, “they said that they
would try to fix” the problems raised, and “solve them in a
timely manner. They were going to come up with solutions.”
Burns said certain items, like wages, “had to go through Corpo-
rate headquarters . . . they don’t have the authority to decide . . .
to raise anybody’s salary, so that would not be fixed overnight.
Other things, they were going to try to fix like supplies.” Burns
told employees, “they were going to start something called an
Action Plan and post the results of all the things that she was
writing down . . . so we can see how it’s working.” Consistent
with this, subsequent to the small group meetings, ManorCare
began posting “Action Plans,” which, as promised, showed
ManorCare’s progress in remedying the grievances solicited in
the small group meetings.
Indeed, this was all in accord with the format set forth in the
CEC manual. The entire point of telling employees that the
Action Plans would be drawn up was, as set forth in the CEC
manual, to “dramatize the fact that issues are heard, action is
taken and the issue is resolved.” The CEC manual that Burns
followed in conducting the meetings tells presenters that “it is
important to let the employees know that their concern has been
or is in the process of being addressed.” The CEC manual also
provides that presenters “inform the employees that after the
meetings are completed, the issues will be categorized . . . and
reviewed with others in management who will be charged with
validating and looking into the concerns and making recom-
mendations to address the concerns.”
Moreover, the Respondent did not just solicit grievances and
state that the problems would be redressed, but also made clear
that discouraging union representation was the reason for the
promises to remedy the grievances. According to Miechur,
Burns told the employees that they “had heard there was a lot
of complaints and concerns. And that they’re here to try to fix
it without a second party involved.” Cordes recalled that Burns
and Johnson stated that “they were looking for solutions that
wouldn’t involve an outside party.” Klinger testified that Burns
“mentioned SEIU . . . and the rumors going through and she
also mentioned that if there was a problem in the facility we
can take care of those without outside interest, you know,
through a party coming in.” And the CEC manual makes clear
that in making these statements, Burns was being candid about
the meeting’s purpose: the CEC manual states that “mak[ing]
third party representation unnecessary” is a stated purpose of
the small group meetings and the CEC directs corporate labor
relations officials such as Burns to increase the frequency of
their participation in small group meetings when faced with
“labor activity.”
Given, this the Respondent’s small group meetings—
involving the solicitation of grievances and the explanation that
the grievances would be remedied, offered as a reason to reject
unionization—are straightforward violations of the Act.
In this context, the Respondent’s “past practice” defense is
entirely misplaced. “An employer who has a past policy and
practice of soliciting employees’ grievances may continue such
a practice during an organizational campaign” without an infer-
ence being drawn that the solicitations are an implicit promise
to remedy the grievances. Wal-Mart, Inc., 339 NLRB 1187,
1187 (2003). However, it is also the case that “an employer
cannot rely on past practice to justify solicitation of grievances
where the employer ‘significantly alters its past manner and
methods of solicitation.’” Id. (quoting, Carbonneau Industries,
228 NLRB 597, 598 (1977)). In any event, without regard to
the similarity of the new solicitations to past ones, “it must be
borne in mind that the issue is not whether there has been a
change in method of solicitation, but rather whether the instant
solicitation implicitly promised a benefit.” American Red
Cross, supra at 352.
ManorCare argues that its small group meetings held in
Easton on October 29 and 30 merely represented the continua-
tion of a past practice and policy of soliciting grievances. The
Respondent also offers a further, related, defense. The Re-
spondent contends that the small group meetings were conduct-
ed in accordance with a policy—the CEC manual and small
group meeting policy—adopted in August of 2007, before there
was any union organizing campaign. These defenses are una-
vailing under the circumstances of this case.
The Respondent’s contention is based on a misapprehension
of Board policy. A past practice of soliciting grievances does
not immunize an employer from Board sanction for soliciting
grievances and promising to remedy them for the purpose of
discouraging unionization. “[I]t must be borne in mind that”—
past practices notwithstanding—”the issue is . . . whether the
instant solicitation implicitly promised a benefit.” American
Red Cross, supra. “[I]t is not the solicitation of grievances
itself that is coercive and violative of Section 8(a)(1), but the
promise to correct grievances . . . that is unlawful.” Uarco,
Inc., 216 NLRB 1, 2 (1974).
The Board will not draw an inference of implicit promise
where solicitations are simply a continuation of an ongoing
established practice of soliciting employee grievances. How-
ever, an employer is not free during a union campaign—
regardless of its past solicitation practice—to solicit new griev-
ances and tell employees as to their grievances, “they would try
to fix them;” “[t]hey were going to try and solve them in a
timely manner”; “[t]hey were going to come up with solutions
for these”; that some issues “would not be fixed overnight” but
“[o]ther things, they were going to try to fix.” That is what the
Respondent did here. Regardless of its past practice of solicit-
ing complaints, an employer is not free during a union cam-
MANOR CARE HEALTH SERVICES–EASTON 221
paign to solicit new grievances and tell employees that we are
“here to try to fix it without a second party involved,” and that
we are “looking for solutions that wouldn’t involve an outside
party,” and that “if there was a problem in the facility we can
take care of those without outside interest, you know, through a
party coming in.” That is what the Respondent did here. A
past practice of soliciting grievances can protect an employer
from an inference that its solicitations include an implicit prom-
ise to remedy the grievances. But in the midst of a union cam-
paign, a past practice of solicitation does not sanction express
promises to remedy newly solicited grievances in a direct effort
to discourage employees from choosing representation. Simi-
larly, as a factual matter, routine implementation of the
CEC/small group meeting policy was not the motivation for the
October 29–30 meetings. Indeed, neither Burns nor Johnson
claimed this. In any event, it is not lawful to establish a policy
of soliciting and remedying employee grievances and imple-
ment it during a union organizing campaign with explicit assur-
ances to employees that union representation is unnecessary.
House of Raeford Farms, 308 NLRB 568, 569–570 (1992)
(“Further, the Respondent explicitly promised to remedy nu-
merous grievances in these meetings and, as the judge found,
the Respondent did in fact make good on some of these promis-
es,” which is unlawful unless the grant of benefits was decided
upon prior to onset of union activity). Here, the solicitation of
grievances and promise to remedy them during the union cam-
paign violated the Act.
The General Counsel also takes issue with the premise of the
Respondent’s contention that there was a past practice of solic-
iting grievances, and that, if there were, that the current small
group meetings were conducted in the same way. I agree, alt-
hough, as indicated in the text, I do not believe that such a past
practice could immunize the Respondent’s present conduct of
promising to remedy grievances to discourage employees from
choosing union representation. The Respondent’s witnesses
testified that small group meetings had been a longstanding
practice and policy and recalled a handful of meetings over the
years at Manor Care facilities. Despite this general assertion,
the evidence uncovered only one remotely similar meeting at
Easton and that was, as best the record reveals, in 2004, and
involved larger groups of employees than in the October 2007
small group meetings, and no evidence of specific questioning
of employees as was utilized in 2007. Further, the 2004 meet-
ing was a follow-up to an employee survey, a feature missing
from the 2007 meetings. Thus, there was no ongoing practice
of small group meetings at Easton—one instance 3 years ago
does not a practice make—and, by all evidence, its manner and
methods in the past solicitation meeting was altered for the
2007 union-inspired meetings.
Moreover—and perhaps this is just another way to approach
the point made above—the 2007 meetings differed in a very
important way from prior meetings: the 2007 meetings in-
volved express references by the corporate representatives to
the unionization efforts and the assurance that they had come
“to try to fix [problems] without a second party involved.”
This would seem to be the precise opposite of what must be
shown if an employer is to rely on a past practice of solicitation
as grounds for the Board to permit it to carry on with solicita-
tions in the midst of a union campaign.40
Here, the referencing of the desire to avoid a union put the
October 2007 meetings on a wholly different footing from past
meetings. The point of the “past practice” exception for solici-
tation of grievances is that the solicitation is not reasonably
perceived as an implied promise to remedy grievances to dis-
courage union representation when it is merely the continuation
of business as usual for employer and employee. In other
words, because it is an ongoing practice, and would be ex-
pected to have occurred without regard to the union campaign,
the solicitations will not reasonably be perceived as a change in
practice and policy designed to interfere with employees’
choice of whether or not to select union representation. See,
Yale New Haven Hospital, 309 NLRB 363, 365 (1992) (no
violation where in reestablishing employee grievance commit-
tees to recommend changes management “Respondent did what
it had done in the past and in all likelihood would have done in
the absence of any union activity”). That defense is not satis-
fied where, as here, in the midst of a union campaigning, the
employer holds meetings where it explains to employees that
they don’t need a union and that we can “fix” your problems
without a union. Indeed, the reference to avoiding union repre-
sentation goes to the heart of what the Board is trying to pre-
vent when it posits its general rule against solicitation of griev-
ances and implies a promise of their remedy during a union
campaign. In this case, the expressed antiunion rationale for
the promise to remedy employee grievances makes the 2007
meetings fundamentally different from anything conducted by
the Respondent in the past. For this reason alone, the Respond-
ent cannot rely on its alleged past practice of soliciting employ-
ee grievances to justify the October 2007 small group meetings.
Finally, I reject the contention by the General Counsel (GC
Br. at 83) that the posting of the Easton Action Plans, promised
in the small group meetings and posted a few weeks later, con-
stituted an independent unfair labor practice. The posting of
the Action Plans was clearly part and parcel of the employer’s
solicitation and promise of redress. The Action Plans support
the case against Manorcare. However, the substance for the
Action Plans was developed in the small group solicitation
meetings. The Action Plans highlight the issues solicited in the
small group meetings and announce the (often the already ac-
40 See Aldworth Co. 338 NLRB 137, 179, 186, 191 (2002) (solicita-
tion meeting during union campaign differed from past practice in,
among other ways, that in solicitation meeting during union campaign
management tied solicitation of grievances to the union organizing
effort); Edward A. Utlaut Memorial Hospital, 249 NLRB 1153, 1156
(1980) (employer “contends that it previously solicited employees’
complaints . . . . by having a suggestion box, by holding meetings with
employees and asking what, if any, problems they had, and by having
voluntarily imposed a grievance procedure in its policy book which
encouraged the filing of the complaints. Respondent is correct up to
the point, that point being that the solicitation of grievances complained
of herein was specifically geared to finding out what brought out the
interest in the Union and how to discourage that interest. What was a
legal act prior to the commencement of the union campaign switched to
an attempt to induce the employees not to exercise their right to self-
organization”).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 222
complished) promised remedy. But I see no grounds to frame
the posting as an independent unfair labor practice.41
C. Providing a Wage Increase or Lump-Sum Bonus to
Employees (paragraph 14 of the Complaint)
The General Counsel alleges that the November wage in-
crease and bonuses to employees, and an increase in the starting
rate for CNAs, unlawfully interfered with, restrained and co-
erced employees in the exercise of their rights, in violation of
Section 8(a)(1). The General Counsel further alleges that wage
and rate increase and bonus payments were a discriminatory
effort to discourage employee from supporting the Union, in
violation of Section 8(a)(3) of the Act.
An allegation that an employer has violated Section 8(a)(1)
by granting benefits in response to union organizational activity
is analyzed under NLRB v. Exchange Parts, 375 U.S. 405
(1964). In NLRB v. Exchange Parts, the Supreme Court held
that “the conferral of employee benefits while a representation
election is pending, for the purpose of inducing employees to
vote against the union,” interferes with the employees’ protect-
ed right to organize. “Similarly, an employer cannot time the
announcement of the benefit in order to discourage union sup-
port, and the Board may separately scrutinize the timing of the
benefit announcement to determine its lawfulness.” Mercy
Hospital Mercy Southwest Hospital, 338 NLRB 545 (2002).
Notably, the rule set out in Exchange Parts is also applicable to
promises or conferral of benefits during an organizational cam-
paign but before a representation petition has been filed.
Hampton Inn NY—JFK Airport, 348 NLRB 16, 17 (2006).
“Although 8(a)(1) allegations are typically analyzed under an
objective standard, and motive is irrelevant, see American
Freightways Co., 124 NLRB 146, 147 (1959), the 8(a)(1) anal-
ysis under Exchange Parts is motive-based.” Network Dynam-
ics Cabling Inc., 351 NLRB 1423, 1424 (2007), citing Hamp-
ton Inn NY—JFK Airport, 348 NLRB 16, 18 fn. 6 (2006). In
other words, the motive for the conferral of the benefit during
the organizational campaign must be to interfere with—i.e., an
effort to influence—the union organizing.
Under settled Board precedent, “[a]bsent a showing of a le-
gitimate business reason for the timing of a grant of benefits
during an organizing campaign, the Board will infer improper
motive and interference with employee rights under the Act.”
Yale New Haven Hospital, 309 NLRB 363, 366 (1992); Kana-
wha Stone Co., 334 NLRB 235 fn. 2 (2001), citing Mariposa
Press, 273 NLRB 528, 544 (1984).
In this case, the wage increases and lump sum payments
were granted in November, and received by employees in their
pay in December, dates by which the Respondent was well
aware of the organizing campaign, and by which it had made its
opposition to the campaign well-known. The wage increases
and lump sum payments were in addition to the individual in-
creases typically received by employees on the anniversary date
of their hire. They were received just weeks after the small
group meetings at which employee complaints about pay had
41 The cases cited by the General Counsel, The Register Guard, 344
NLRB 1142, 1143 (2005), and Carbonneau Industries, 228 NLRB 597,
599 (1977) are not to the contrary.
been a significant feature. Many promises were made at the
small group meetings. Employees receiving these “extra” wage
increases after the small group meetings, and in the middle of
the union campaign, would reasonably view the wage increases
and bonuses as related to the union campaign, and an attempt to
interfere with the employees’ choice in the campaign. The
employees would reasonably view the wage increases as reme-
dying the wage complaints made at the small group meetings.
Thus, absent the employer’s showing of a legitimate reason for
the wage increase and lump sum payments, a violation must be
found.
The Respondent maintains that it did have a legitimate busi-
ness reason for the increases: in granting the pay changes it
was just following through on an analysis of market wage con-
ditions and the appropriateness of a market-driven pay adjust-
ment that it had begun in February of 2007, long before the
advent of the union campaign. While the Respondent admits
that the pay adjustments were “approved, and instituted in No-
vember. . . . [t]hat increase, however, reflected the many
months of work that had come before, and simply had no con-
nection to the Union whatsoever.” (R. Br. at 60).
The difficulty with the Respondent’s argument—in addition
to its inapplicability to the lump sum bonuses—is that while it
admits that the increases were first approved in November, well
after the commencement (and after the Respondent’s
knowledge) of the organizing campaign, it offers nothing to
show that the wage increases were likely, much less planned, or
a foregone conclusion, or “essentially decided on prior to the
commencement of any union activity.” International Baking
Co., 342 NLRB 136, 142 (2004), affd. 185 Fed. Appx. 691 (9th
Cir. 2006); LRM Packaging Co., 308 NLRB 829 (1992)
(“granting of medical benefits was promised and set into mo-
tion months before the union campaign began”). At most, the
Respondent has proven that prior to the union campaign it was
looking into the possibility that it would give a wage increase.
I accept that Burns started looking at wage issues in Febru-
ary 2007, many months before the commencement of the union
campaign. By her own testimony this was done periodically, at
least yearly, ideally more often, and it did not mean that a wage
adjustment was in the offing. The record evidence of the Re-
spondent’s deliberations or decisionmaking on the wage in-
crease was very limited. Burns collected data from February to
August. By August 17, Burns was “about 50% done” with a
“wage proposal,” but this represented a proposal to be submit-
ted to individuals at corporate headquarters whose approval
was needed for any wage adjustment. There is no claim, or
record evidence, that Burns was the effective decisionmaker or
that her views were predictably followed by the relevant offi-
cials at headquarters. I recognize that Burns testified that,
based on her review of data, by July “I knew we had to” have a
wage adjustment. If that was her view, the thrust of her testi-
mony was that the decision was not in her hands but in the
hands of the corporate compensation department at Manor Care
headquarters in Toledo. Burns first submitted a wage proposal
to her boss and to the corporate compensation department in
late September or early October, and after that “it bounced back
and forth a few times.” And although Respondent’s elucidation
of the issue was murky, it appears (compare GC Exh. 55 to GC

MANOR CARE HEALTH SERVICES–EASTON 223
Exh. 39) that the increases proposed early in the process were
miniscule compared to the significant increases actually grant-
ed. The decision to grant the increases was made, of course,
after the small group meetings exposed the importance of the
issue to the employees, and, it appears, to the employer’s anti-
union efforts.
Notably, no one from corporate compensation testified. No
one who made the decision to implement or approve the wage
increase testified. It was the Respondent’s burden to show that
the decision to give the wage increase when it did was the
product of a legitimate business decision unrelated to the union
campaign. The Respondent has failed to shoulder that burden.
Mercy Hospital, 338 NLRB 545, 545–546 (2002) (employer
failed to meet its burden of showing legitimate basis for wage
increase when its only witness on the subject had no knowledge
of or participation in the timing of the wage increase an-
nouncement). What the Respondent has shown is that prior to
the union campaign it was considering the possibility of giving
employees a wage increase, a process it engages in on a yearly
basis. The decision to give an increase was not explained by
any witness in a position to know why the wage adjustment was
finally approved when it was. On this record the inference of
improper motive that attaches to a wage increase granted during
the union campaign must stand. The Respondent’s implemen-
tation of the wage and rate increase, and lump sum bonus, was
violative of Section 8(a)(1) of the Act.
The complaint also contends that the wage increase was vio-
lative of Section 8(a)(3) of the Act. There is some support for
this in Board precedent,42 but most of the relevant cases find
the unlawful grant of an across the board benefit during an
organizing campaign to be an 8(a)(1) violation—i.e., an inter-
ference with the Section 7 right of employees to choose wheth-
er or not to join and support a union. I find it unnecessary to
reach the 8(a)(3) allegation as the remedy for the additional
violation is the same as the remedy for the 8(a)(1) violation. In
Home Health Inc., 334 NLRB 281, 284 (2001).
D. The Transfer of Administrator Seiler and ADNS Kublius
(Paragraph 9 of the Complaint)
The General Counsel also contends (paragraph 9 of the com-
plaint) that the transfers of Kublius and Seiler were an unlawful
effort by ManorCare to discourage unionization. The General
Counsel contends (GC Br. at 84) that the decision to transfer
Kublius and Seiler “arose directly out of the small group meet-
ings and Johnson’s perception after the meetings, that they had
lost the confidence of the staff.”
It is clear that the removal of an unpopular supervisor is
viewed by the Board as a conferral of a benefit, and, like the
conferral of more traditional benefits during an organizing
campaign, absent a showing of a legitimate business reason for
the granting of the benefit during an organizing campaign, the
Board will infer improper motive and interference with em-
ployee rights under the Act. An employer may rebut this infer-
42 See, In Home Health Inc., 334 NRLB 281, 284 (2001) (referenc-
ing Cooper Industries, 328 NLRB 145, fn. 4 (1999) (8(a)(3) found), but
also referencing Perdue Farms, Inc. v. NLRB, 144 F.3d 830, 833 (D.C.
Cir. 1998), refusing to enforce Perdue Farms, 323 NLRB 345, 352
(1997) on this point).
ence by establishing an explanation for its action other than the
union campaign. The Inn at Fox Hollow, 352 NLRB 1072,
1073 (2008); Ann Lee Sportswear, 220 NLRB 982, 993 (1975).
The General Counsel recognizes, and I agree, that the deci-
sion to transfer Kublius and Seiler was part of an overall re-
sponse to the union campaign. Between October and Novem-
ber the management structure at Easton was completely over-
hauled and augmented. There is nothing unlawful about an
employer replacing managers as a reaction to a union drive or
bolstering management personnel in order to oppose a union
drive, but it is problematic to make managerial changes in order
to remedy grievances solicited from employees. Had the Re-
spondent’s witnesses testified persuasively that Seiler and Ku-
blius were transferred because they had not been effective in
opposing the Union, or because the Respondent thought others
would be better at it, this allegation of the complaint would
have to be dismissed. But the Respondent’s witnesses did not
claim any such thing.
Johnson first claimed that she removed Seiler because of
“challenges” Seiler had managing Kublius and also with Reit-
nauer, “[a]nd I felt that for her peace of mind and the better-
ment of the facility, that it would be best if we transfer her
away from the Easton facility.” This certainly did not ring true
given that both Reitnauer and Kublius were transferred. John-
son first claimed that the decision to transfer Kublius was made
by Seiler, a shifting of responsibility at odds with the documen-
tary evidence and credibly disavowed by Seiler. In addition to
these discredited motives for the Kublius and Seiler transfer,
when confronted with her pretrial affidavit, Johnson agreed
with and adopted the affidavit’s claim that “after the [small
group] meeting, it was decided that [Kublius] lacked the confi-
dence of the staff, and she was transferred to another facility”
and that Seiler’s transfer was made for “essentially similar rea-
sons.” Thus, the essentially admitted (and I conclude, the real)
reason for Seiler and Kublius’ transfers was that, based upon
meetings with employees for the purpose of soliciting employ-
ee complaints and remedying those complaints, Johnson decid-
ed that Seiler and Kublius “lacked the confidence of the staff.”
As discussed, those meetings were for the purpose of soliciting
grievances and remedying the concerns raised in an effort to
discourage unionization. In this instance, in accordance with
Johnson’s admission, the complaints about Seiler and Kublius
were redressed. The redress of a grievance unlawfully solicited
during a union campaign violates the Act. Carbonneau Indus-
tries, 228 NLRB at 599 (unlawful to take action against super-
visor where chief cause was solicited employee sentiment, even
where employer had grounds for taking action against supervi-
sor that predated union campaign). See, Aldworth Company,
Inc., 338 NLRB at 189, 191 (announcement by employer that it
had taken action on solicited employee grievances regarding
supervisors violated Act).43
43 The Respondent asserts (R. Br. at 58) that “the events underlying
the transfers were already in motion long before the Union campaign
started, and Respondent was not required to ignore a major and ongoing
personnel issue simply because the Union had appeared.” But while
there is evidence that Seiler and Kublius had some personnel problems
prior to the union campaign (although, also, positive performance re-
views), there is no evidence prior to the small group meetings of even a

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 224
E. Miechur’s Discipline; Threatened Loss of a Job, and
Confiscation of the Mundy Letter (Paragraphs 8 and 15
of the Complaint)
The General Counsel alleges that the Respondent’s issuance
of a final written warning to Miechur on November 28 violated
Section 8(a)(1) and (3) of the Act. Section 8(a)(3) of the Act
provides, in relevant part, that it is “an unfair labor practice for
an employer by discrimination in regard to hire or tenure of
employment or any term or condition of employment to en-
courage or discourage membership in any labor organization.”
29 U.S.C. § 158(a)(3). An employer’s discharge or discipline
of an employee for the purpose of thwarting pr retaliating
against union activity violates Section 8(a)(3). As any conduct
found to be a violation of Section 8(a)(3) would also discourage
employees’ Section 7 rights, any violation of Section 8(a)(3) is
also a derivative violation of Section 8(a)(1). Chinese Daily
News, 346 NLRB 906, 933 (2006), enfd. 224 Fed. Appx. 6
(D.C. Cir. 2007).
Section 8(a)(1) of the Act states that it is an unfair labor
practice for an employer “to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in section 7
[of the Act]. 29 U.S.C. § 158(a)(1). Rights guaranteed by sec-
tion 7 include the right to engage in “concerted activities for the
purpose . . . of mutual aid or protection.” 29 U.S.C. § 157. An
employee’s discipline independently violates Section 8(a)(1) of
the Act, without regard to the employer’s motive, and without
regard to a showing of animus, where “the very conduct for
which employees are disciplined is itself protected concerted
activity.” Burnup & Sims, Inc., 256 NLRB 965, 976 (1981).
Moreover, Section 8(a)(1) of the Act is independently violated
when an employee is disciplined for engaging in concerted
protected activity, even where the employer honestly and in
good faith, but wrongly, believes that the employee has en-
gaged in misconduct in the course of that protected activity.
NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964).
In this case, the Government advances three theories in sup-
port of its position that the discipline of Miechur violated the
Act.
First, applying the Board’s decision Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), the General Counsel contends that the
motivating factor in ManorCare’s decision to discipline
Miechur was not—as claimed by the Respondent—the Re-
spondent’s belief that Miechur had engaged in solicitation, but
rather, her overall union activity, rendering the discipline viola-
tive of Section 8(a)(3) of the Act. Manorcare disputes this, and
suggestion of a transfer. The Respondent ignores the evidence—
admitted to by Johnson—that it was the employees’ reaction in the
small group meetings that resulted in the transfer. In other words, even
if previous problems with these supervisors factored into the decision,
nothing was done until the employer confronted the employee senti-
ment against the supervisors. Carbonneau, 228 NLRB at 599. I note
that, even assuming, arguendo, that action would eventually have been
taken against Seiler or Kublius, a violation is made out because the
facts do not show that Seiler and Kublius would have been transferred
when they were absent union activity. Burlington Times, 328 NLRB
750, 755 (1999).
contends that it was motivated solely by its good faith belief
that Miechur solicited residents.
Second, the Government contends, even assuming that
Manorcare disciplined Miechur for solicitation of residents with
the Mundy letter, that is a violation of Section 8(a)(1) of the
Act. In this regard, the Government contends that the solicita-
tion was protected activity for which Miechur may not be pun-
ished.
Third, the Government contends that—apart from whether or
not solicitation of a resident with the Mundy letter was protect-
ed activity—Miechur did not, in fact, engage in such solicita-
tion. Rather, she simply served as the person who collected and
held the signed Mundy letters solicited by others. Thus, con-
tends the Government, Miechur was disciplined for conduct in
which she did not engage, and the employer’s mistaken belief
that she solicited residents is not a defense to disciplining her
for conduct which she did not undertake.
Given the Government’s various theories of violation, each
of which, if sustained, independently establishes a violation,
there are a number of ways to approach the issue.
I will first use Wright Line to analyze the motivation for
Miechur’s discipline. If the General Counsel meets his initial
burden and shows that Miechur’s union activity (apart from any
conduct involving the November 21 solicitation of residents)
was a motivation for the discipline, the burden will shift to the
Respondent to show that in the absence of Miechur’s union
activity it would still have disciplined Miechur, as it claims, for
the incident involving the solicitation letters. If the Respond-
ent’s contention is found to be a pretext, or if it is found to be a
motive, but the Respondent failed to meet its burden to prove
that it would have taken the same action against Miechur in the
absence of her union activity, then a violation will be found. In
that case, the question of whether Miechur, in fact, engaged in
solicitation as accused, and whether such conduct is protected
or unprotected, is irrelevant.44
1. The Wright Line analysis
The General Counsel’s first theory of a violation puts at is-
sue the employer’s motivation for disciplining Miechur. As
referenced, the Supreme Court-approved analysis in 8(a)(3)
44 Ben Franklin Plumbing, 352 NLRB 525 fn. 1, 14 (2008) (unnec-
essary to reach question of protected nature of conduct for which em-
ployer claimed it terminated employee where employer failed to meet
its Wright Line burden of showing that employee would have been
terminated in the absence of other protected activity that was shown to
have motivated discharge); New York University Medical Center, 261
NLRB 822, 824 (1982) (unnecessary to reach question of whether
activity was protected where employer failed to meet its Wright Line
burden of showing that employee would have been discharged for
allegedly unprotected activity in the absence of other protected activity
that was a motivating cause of discharge), enf.. denied on other
grounds, 702 F.2d 284 (2d Cir. 1983). See, Waste Management of
Arizona, 345 NLRB 1339, 1340 (2005) (applying Wright Line to de-
termine whether employer would have terminated employee for his
unprotected conduct in the absence of his protected activity); Mountain
Shadows Golf Resort, 330 NLRB 1238 (2000) (remanding case for the
judge to determine under Wright Line whether a disloyal flyer would
have caused employer to discharge employee in the absence of other
protected activity).

MANOR CARE HEALTH SERVICES–EASTON 225
cases turning on employer motivation was established in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). See NLRB v.
Transportation Management. Corp., 462 U.S. 393, 395 (1983)
(approving Wright Line analysis). In Wright Line the Board
determined that the General Counsel carries the burden of per-
suading by a preponderance of the evidence that employee
protected conduct was a motivating factor (in whole or in part)
for the employer’s adverse employment action. Proof of such
unlawful motivation can be based on direct evidence or can be
inferred from circumstantial evidence based on the record as a
whole. Robert Orr/Sysco Food Services, 343 NLRB 1183,
1184 (2004), enfd. mem. 179 LRRM (BNA) 2954 (6th Cir.
2006); Embassy Vacation Resorts, 340 NLRB 846, 848 (2003).
This includes proof that the employer’s reasons for the adverse
personnel action were pretextual. Rood Trucking Co., 342
NLRB 895, 897–898 (2004), citing Laro Maintenance Corp. v.
NLRB, 56 F.3d 224, 229 (D.C. Cir. 1995) (“When the employer
presents a legitimate basis for its actions which the factfinder
concludes is pretextual . . . . the factfinder may not only proper-
ly infer that there is some other motive, but that the motive is
one that the employer desires to conceal—an unlawful motive .
. . .”) (internal quotations omitted)).
Under the Wright Line standards, the General Counsel meets
his initial burden by showing “‘(1) that the employee was en-
gaged in protected activity, (2) that the employer was aware of
the activity, and (3) that the activity was a substantial or moti-
vating reason for the employer’s action.’” Naomi Knitting
Plant, 328 NLRB 1279, 1281 (1999) (quoting FPC Holdings,
Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995), enf. 314 NLRB
1169 (1994)).
Such a showing proves a violation of the Act subject to the
following affirmative defense available to the employer: the
employer, even if it fails to meet or neutralize the General
Counsel’s showing, can avoid the finding that it violated the
Act by demonstrating by a preponderance of the evidence that
the same adverse employment action would have taken place
even in the absence of the protected conduct. Williamette In-
dustries, 341 NLRB 560, 563 (2004); Wright Line, supra. For
the employer to meet its Wright Line burden, it is not sufficient
for the employer simply to produce a legitimate basis for the
action in question or to show that the legitimate reason factored
into its decision to take action against the employee. T. Steele
Construction, Inc., 348 NLRB 1173, 1183 (2006). In the face
of the General Counsel’s meeting of its initial burden, in order
for the employer to avoid a finding of violation, it must per-
suade by a preponderance of the evidence “that the same action
would have taken place even in the absence of the protected
conduct.” Wright Line, supra at 1989; T. Steele Construction,
supra (“the Respondent must show that the legitimate reason
would have resulted in the same action even in the absence of
the employee’s union and protected activities”); Carpenter
Technology Corp., 346 NLRB 766 (2006) (“The issue is, thus,
not simply whether the employer ‘could have’ disciplined the
employee, but whether it ‘would have’ done so, regardless of
his union activities”); Yellow Ambulance Service, 342 NLRB
804, 805 (2004) (“Once a discharge has been show to be un-
lawfully motivated, an employer must establish not merely that
it could have discharged the employee for legitimate reasons,
but also that it actually would have done so, even in the absence
of the employee’s protected activity”).
With regards to Miechur’s discipline, the first two elements
of the Wright Line analysis—that Miechur engaged in protected
activity and that ManorCare was aware of it—are not seriously
contested. Miechur was the lead union activist at Easton, in-
volved in discussing the Union with other employees, contact-
ing the Union, arranging a meeting in her home, and by No-
vember 16 she had traveled with the Union to a rally in front of
Carlyle headquarters in DC, an event that was videotaped and
put on the SEIU website, and included an interview with
Miechur. At least by the time of the event for which she was
disciplined on November 21, she had told Heimbach, in re-
sponse to her questioning that she “believed in” the Union, and
reaffirmed it two weeks later. Moreover, Heimbach told her on
November 17 that she had seen Miechur on the SEIU website.
In addition, as of October 18, Manorcare was well aware of
Miechur’s role in the organizing campaign, as Reitnauer had
contacted Burns and provided significant detail to her on this
score. Burns, in turn, reported this to corporate HR, and at that
time Miechur was the only employee at Easton she knew to be
involved in union organizing. Thus, by the time of the Novem-
ber 21 solicitation incident, Miechur had been engaging in sig-
nificant protected activity and the Respondent had knowledge
of it.
The third element of Wright Line requires the General Coun-
sel to show that Miechur’s union activity was a motivating
factor for the employer’s action against Miechur. This factor
can be proved “based on direct evidence or can be inferred
from circumstantial evidence based on the record as a whole.”
Embassy Vacation Resorts, 340 NLRB 846, 848 (2003). “To
support an inference of unlawful motivation, the Board looks to
such factors as inconsistencies between the proffered reasons
for the discipline and other actions of the employer, disparate
treatment of certain employees compared to other employees
with similar work records or offenses, deviations from past
practice, and proximity in time of the discipline to the union
activity.” Id.; Robert Orr/Sysco Food Services, supra.
In this case the evidence strongly supports the finding that
Miechur’s union activity was a motivating factor for the disci-
pline meted out to her.
There is direct evidence of animus by ManorCare that sup-
ports the General Counsel’s case. There are the prediscipline
episodes of interrogation. There is the unlawful effort to dis-
courage employees from choosing union representation through
the small group meetings and promises to remedy complaints.
These provide some direct evidence of animus towards union
activity, and in the case of the interrogation, toward Miechur’s
union activity. However, even more powerful than this direct
evidence is the inferences that may be drawn from the record
evidence regarding Miechur’s discipline.
First, it is notable, that the discipline occurred just days after
Miechur publicly supported the Union for the first time, travel-
ing to Carlyle headquarters with the SEIU and being featured in
a video on the SEIU website that discussed the trip. Manor-
Care management knew before this November 16 trip that
Miechur was a union supporter. But her first foray into public
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 226
advocacy for the Union did not go unnoticed. The day she
returned from the trip HR Director Heimbach approached
Miechur and told her that I “seen what you did. I’ve seen your
video on the SEIU website.” Specter admitted she was “proba-
bly” briefed by Johnson or Burns about Miechur and the union
activity at the building upon her arrival to the building as ad-
ministrator on November 14. Specter specifically testified that
within her first week at Easton she learned of Miechur’s ap-
pearance on the SEIU website video from Johnson or Burns
and attempted (unsuccessfully) to view the video. Thus,
Miechur’s appearance on the SEIU video heightened concern
about her activities and drew attention to her now open role as a
union supporter. The incident for which she was discipline
occurred just a few days later, on November 21.
Second, the genesis of the incident is suspect. I am not con-
vinced one way or the other about Kushnerick’s claim that she
entered the nourishment room looking for a wanderguard.
Normally they are not kept in the nourishment room, but Kush-
nerick, asserted that an unnamed person told her she would find
one in the nourishment room that evening. I will assume that is
true and she entered the nourishment room in search of a wan-
derguard. But I do not believe that she was looking for a wan-
derguard—a grey device packaged in bubblewrap when she
was rifling through the papers on the table in the nourishment
room, particularly an area of the table where employees kept
personal belongings. There is no evidence, or testimony, or
reasonable likelihood, that anyone told Kushnerick that this is
the area of the room—the tabletop where employees keep per-
sonal belongings—that she would find a packaged wander-
guard.45 As Collado testified, Kushnerick was “looking
through papers.” I do not believe she was looking through
them, in the precise area where Miechur kept her personal be-
longings, in search of a wanderguard. It should be remembered
that Kushnerick admitted that she had heard “rumors” that
Miechur was asking residents to sign letters and she admitted
that when she saw the Mundy letter thought it might be “con-
nected to that rumor.” The Respondent’s contention is that this
was all coincidence. I do not accept that. Kushnerick found
what she was looking for and—and took it. It is not proven
(although it is possible) that Kushnerick knew or suspected the
materials were in Miechur’s possession. I am unsure (although
it is possible) that the Mundy letter was removed from
Miechur’s bag. But it hardly matters. In any event, Kushnerick
knew she was taking a union-related paper. She knew she was
taking it from an area of the table where individuals kept per-
sonal belongings. It was not laying open and unclaimed for her
to take. She looked for it. She knew it did not belong to her
and she took it. I agree with the General Counsel that this is
confiscation of union literature—it literally was a letter created
by the Union, for use in the organizing campaign—and a viola-
tion of the Act. Alle-Kiski Medical Center, 339 NLRB 361,
45 Kushnerick was very vague in her testimony. She claimed she
found the wanderguard, but could not recall if it was before, after, or at
the same time that she noticed the Mundy letter. She could not recall
providing the wanderguard to anyone, and no one testified that they
received a wanderguard from her. Her story relies on the wanderguard
to justify her presence and her search but it disappears from her recol-
lection after that.
366 (2003); NCR Corp., 313 NLRB 574, 577 (1993). (unlaw-
ful to confiscate union literature from employee; “Even if the
Company’s no-distribution rule were valid, the Company had
no legitimate basis for taking such action”).
Third, in an adumbration of the antiunion animus that moti-
vated the coming discipline, when confronted by Miechur,
Kushnerick warned Miechur to “stop worrying about the Union
and worry about your job.” This directive is clearly unlawful,
as alleged by the General Counsel. It is a very thinly veiled
threat, positing, as it does, a conflict between union activity and
job security. See, Fieldcrest Cannon, 318 NLRB 470, 488
(1995), enfd. in relevant part, 97 F.3d 65 (4th Cir. 1996) (un-
lawful threat of job loss for supervisor to tell employee he “had
a right to go to the Board, but that it was his job he should wor-
ry about”). And it provides pointed evidence of animus directly
threatening Miechur’s job because of her union activity.
Brandt-Airflex Corp., 316 NLRB 315, 315–316 (1995) (evi-
dence that subsequent discharge of union steward was unlaw-
fully motivated supported by prior statement to steward that he
should “worry more about his job than about [employer’s de-
linquent] benefit payments”).
Fourth, it is very troubling that in the disciplinary meeting,
when Miechur accused the Respondent of disciplining her be-
cause “you know I called the SEIU,” Gieroczynski did not take
the opportunity to deny it, but rather, responded, “yes, we know
that you called the Union.” This comment, testified to by
Klinger and Miechur, and undenied by any management wit-
ness, amounts to more than inferential evidence of animus—it
is a direct explanation of motive. Stripped from context,
Gieroczynski’s bare comment—that the Respondent knows that
Miechur called the Union—is bad enough. It is a suspicious
and inappropriate comment to make in an allegedly nondis-
criminatory disciplinary meeting of the lead union activist. But
in context, it is worse. Miechur voiced her suspicion that the
discipline was attributable to her union activity. Gieroczynski
did not deny it, but appears to endorse that suspicion. The mes-
sage was sent.
Fifth, it is obviously suspect that in order to determine the
discipline for Miechur, the Respondent involved nearly its en-
tire management team, including its outside labor counsel and
the head of corporate labor relations Kilmurry, who was at the
plant to advise on the antiunion campaign, and whose involve-
ment in plant disciplinary actions was admitted by Heimbach to
be atypical.
Sixth, in the face of the Respondent’s claim that it was moti-
vated to discipline Miechur solely for her role in soliciting resi-
dents to sign a letter complaining, inter alia, of staffing shortag-
es, it is most striking that the Respondent’s process for disci-
plining Miechur demonstrated a total lack of interest in what
she did or did not do, or the extent of the solicitation “prob-
lem,” or who else might have been involved in committing this
“offense.”46
46 That is, until the hearing in this matter, when the Respondent sud-
denly declared it to be vital to its interests that it be permitted to ques-
tion employees about their union activities and their involvement in the
solicitation campaign. I will return to this issue below, and the eviden-
tiary ruling I made barring such inquiries. For now, the point that must

MANOR CARE HEALTH SERVICES–EASTON 227
While the preparation of Miechur’s discipline notice in-
volved the entire management of the facility, as well as the
head of corporate labor relations, and outside labor counsel
who drafted the disciplinary language, this frenzy of activity
involved zero investigation or interest in the underlying events.
It must be remembered that, according to Kushnerick, she saw
had seen “a stack” of Mundy letters, which suggests that the
solicitations at issue may have been extensive. Nonetheless,
after Kushnerick reported to Specter that “she had Trisha solic-
iting people,” the case was closed. This short conversation,
which neither Specter nor Kushnerick could recall much of,
exhausted the employer’s interest in the underlying events.
There was no attempt to find out which, if any, residents had
been solicited. There was no effort to talk to any residents
about it. There was no effort to find out whether the “stack” of
solicitation letters indicated that many residents had been solic-
ited. There was no effort to talk to other employees to find out
what if anything they knew. There was no effort to talk to
Miechur, to get her side of it, or to find out what she knew
about the incident. There were no announcements to employ-
ees, residents, families, or anyone else, indicating concern.
There was no written internal documentation or written discus-
sion of these matters introduced into evidence.
Under the circumstances, the Respondent’s actions are ex-
tremely suspect, for a couple of reasons. First, they are suspect
because the lack of due process in disciplining Miechur was an
unexplained departure from the Respondent’s normal practices,
and bespeaks of interest in “getting” Miechur rather than a
concern with her conduct in soliciting residents. As Heimbach,
the HR Director at the time explained, discipline at the level
meted out to Miechur—a final warning with termination prom-
ised for a subsequent offense—” wouldn’t have [been] warrant-
ed . . . without investigating it first.” This was not the HR Di-
rector’s musings about her personal views of fairness in the
workplace. This was an admission that at Easton people are not
typically disciplined to the edge of termination “without inves-
tigating it first.”47 This bespeaks of an effort to “get” Miechur,
as opposed to a legitimate concern with her conduct. That
Miechur had denied to Kushnerick that she solicited any of the
letters, and denied it again in her disciplinary hearing, makes
ever clearer that the lack of interest in Miechur’s side of the
story—or any information at all—is highly suspect.48
be drawn is that contemporaneous with Miechur’s discipline and its
discovery of the solicitation issue, the Respondent evinced no interest
in these matters.
47 Notably, Miechur’s July 2006 suspension for using a resident’s
telephone was reduced to a warning—Miechur was paid for her time
off—after the Respondent’s investigation revealed that the resident had
permitted Miechur to use the telephone.
48 Windsor Convalescent Center of North Long Beach, 351 NLRB
975, 984 fn. 40 (2007) (“Enforcement of rules against employees with-
out sufficient prior investigation of their alleged misconduct, including
withholding from the accused details of the accusation and denying
them an opportunity to explain or deny their alleged misconduct, is
evidence of unlawful motive”); All Pro Vending, Inc., 350 NLRB 503,
514 (2007); (Diamond Electric Mfg, 346 NLRB 857, 860 (2006) (“the
failure to conduct a meaningful investigation or to give the employee
[who is the subject of the investigation] an opportunity to explain may,
under appropriate circumstances, constitute an indicia of discriminatory
The Respondent’s lack of interest in the facts surrounding
Miechur’s discipline calls into question the Respondent’s mo-
tives in a second way as well. On brief the Respondent knows
no limit to the damage it claims that the dissemination of the
Mundy letter could cause. It contends (R. Br. at 41) that the
dissemination of the letter could cause residents “unnecessary
distress, thereby hampering their treatment, or interfering with
their medical care,” and that the letter “sought to threaten its
entire operation by preventing—or at least impeding—the grant
of the license necessary to operate in Pennsylvania.” This is
grandstanding. We know it is grandstanding because the Re-
spondent’s response at the time the letter was discovered—
none, with the exception of the swift convening of management
and counsel to find a basis to discipline Miechur—belies such
claims.49
Seventh, in revealing contrast to the lack of interest in the ac-
tual facts of the matter at hand, stands ManorCare’s vigorous
interest in disciplining Miechur. This interest was paramount,
and overshadowed the professed interest in the offense of solic-
itation. This may be gleaned in a number of ways. It is not just
the extent of the involvement of corporate management and
even outside counsel in determining the discipline that was
extraordinary, but the manner in which the discipline was de-
termined. One can see the emphasis on discipline, and not the
offense, from Specter’s explanation that the management group
came to a decision on the discipline, “We wanted it to be a final
written warning action but not a termination” and the clear
suggestion in Specter’s testimony is that the work rule violation
intent. The Board has considered this factor in several recent cases to
find discharges unlawful where employees were denied the opportunity
to provide a potentially exculpatory explanation prior to being dis-
charged, and to dismiss allegations of unlawful discharge where such
an opportunity was provided”) (Board’s bracketing) (footnotes omitted)
(quoting K&M Electronics., 283 NLRB 279, 291 fn. 45 (1987) (“failure
to conduct a meaningful investigation or to give the employee an op-
portunity to explain has been regarded as an important indicia of dis-
criminatory intent”); Amptech, Inc., 342 NLRB 1131, 1146 (2004)
(failure to inquire of [disciplined employee] as to what had occurred
constituted a rush to judgment attributable to Respondent’s unlawful
motivation to take adverse action against the leading pro-union em-
ployee on the premises”), enfd. 165 Fed. Appx. 435 (6th Cir. 2006);
Southern Electronics Co., Inc., 175 NLRB 69, 72 (1969), enfd. 430
F.2d 1391 (6th Cir. 1970) (investigation . . . was a one-sided affair with
the purpose not being to determine precisely what occurred in the
stockroom that morning, but rather to secure sufficient reasons to justi-
fy a discharge”).
49 Specter, at the hearing, and the Respondent, on brief (R. Br. at 44),
defend the lack of investigation on the grounds that “it had already been
acknowledged where the letter came from.” The Respondent knew all
it wanted to know. The letter had been found among Miechur’s be-
longings. It did not have any interest in learning more. Specter sug-
gested that residents were not asked about the solicitations because
Manorcare did not want to “upset” the residents. This was hard to
accept. With regard to allegations of far more serious breaches, such as
matters of patient abuse, neglect, or substandard care, Manorcare un-
dertakes—indeed, is required by state authorities to undertake—
investigations that involve interviewing residents about the allegations.
If the potential to upset a resident was the reason for the lack of an
investigation into the allegations against Miechur, then, clearly, Manor-
care was not particularly concerned with the solicitation.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 228
was determined after the group decided on the appropriate pen-
alty. The point was to penalize Miechur. Indeed, finding an
appropriate work rule violation was a challenge. There is no
work rule against what Miechur did. No work rule against so-
liciting residents. No rule against asking employees to sign a
letter to a political figure. With regard to Miechur, the “of-
fense” was an afterthought, even a prop, the point was to take
the opportunity to discipline Miechur.
Notably, Specter testified that Miechur’s July 2006 warning
had been considered in determining the appropriate level of
discipline. It is troublesome, and unexplained by the Respond-
ent, that Specter (and Burns and Kilmurry) did not speak with
anyone involved in the July 2006 suspension and did not know
that an investigation had largely vindicated Miechur and that
she had been paid for the time she was suspended. Moreover,
Specter, Burns, and Kilmurry apparently paid no attention to
the Manorcare policy that would render the July 2006 suspen-
sion too dated to be relied on for a November 2007 incident.
This unexplained deviation from Manorcare’s disciplinary poli-
cy is highly suspect and supports an inference of discrimina-
tion. In fact, I suspect, based on the record as a whole, that
Specter’s reliance on the past discipline was perfunctory. The
larger picture is of an employer determined, without much re-
gard to the facts or the offense, to punish, albeit short of dis-
charge, the leading union activist who had recently taken her
activism to a new public national level. The larger picture is of
an employer bent on putting Miechur on notice that she could
be retaliated against and that she needed to step out of the lime-
light with her union activism. Indeed, such a suggestion would
be made to Miechur in coming months.
Based on what I find was a transparent effort to “get”
Miechur revealed by the Respondent’s conduct, the General
Counsel has amply satisfied his burden under Wright Line.
There is a strong basis on which to infer that Miechur’s disci-
pline was motivated in significant part by her union activities.
As explained, supra, under Wright Line, a discharge motivat-
ed even in part by unlawful considerations is unlawful, subject
to the employer’s demonstration that in the absence of protect-
ed activity the adverse employment action would have been
taken anyway. The question, then, is whether the Respondent
has proven that, even in the absence of Miechur’s union activi-
ty, it would have taken the same action against Miechur.
The Respondent has not met its burden on this record. I ac-
cept that the Respondent contends that the soliciting of resi-
dents is a punishable offense unprotected by the Act.50 I will
assume that it might have taken (lawfully, or unlawfully) some
form of action against any employee that it found to be solicit-
ing a resident. But the Respondent’s burden is to prove by a
preponderance of evidence that it would have taken the same
action against Miechur had she been otherwise uninvolved in
protected activity. The Respondent has proven no such thing.
As to comparing other instances of discipline with that is-
sued to Miechur, I agree, to some extent, with the Respondent’s
argument that the solicitation at issue in this case is different
from soliciting a resident to buy hospital scrubs. Thus, the fact
50 I do not accept this view, but for purposes of Wright Line analysis
I accept that the Respondent so contends.
that CNA Shah apparently sold scrubs openly at the facility—to
employees, residents, and even a supervisor—without trigger-
ing much of a response (when finally “caught” in April 2008,
she was given a nondisciplinary “coaching” form reminding her
that this was not allowed), does not shed much light on how the
Respondent could be expected to respond to the solicitation
here, were it acting without regard to Miechur’s union activity.
But, with the caveat that this action was unique, or at least con-
sidered unique by the Respondent, still the overall picture of
discipline at the facility raises a question as to whether, in the
absence of protected activity, a final warning would have been
issued. Counsel for the General Counsel placed into evidence,
without objection, all disciplinary warnings she found (based
on a search pursuant to a subpoena duces tecum issued to the
Respondent) that related to abuse, communications with resi-
dents, or inappropriate comments or communications by CNAs
to residents. A summary of these disciplinary warnings is in-
cluded in Counsel for the General Counsel’s brief (G.C. Br. at
29 fn. 39), and my independent review of the record establishes
that it is an accurate reflection of the record evidence. That
summary is as follows:51

Date Employee Warning Misconduct
4-22-03 Employee 1 1st written CNA yelled at
resident,
grabbed and
pulled resident,
resulting in
bruises
7-18-03 Employee 1 2nd written CNA released
confidential
medical infor-
mation
12-26-03 Employee 2 1st written CNA refused
to provide care
for a resident
(putting splints
on resident)
9-17-04 Employee 3 Action Plan CNA was rude
to resident;
complained to
a resident
about her su-
pervisor
10-23-05 Employee 4 1st written CNA required
resident to say
“please;” and
made fun of
resident
1-22-06 Employee 5 Coaching CNA raised
voice; argued
with resident,
shook finger in
51 I have deleted the names of the employees cited. None of the cit-
ed employees otherwise appears in the transcript and inclusion of their
names is unnecessary. The disciplinary warnings on which this sum-
mary is based is included in the record as General Counsel’s Exhibit
35.

MANOR CARE HEALTH SERVICES–EASTON 229
resident’s face
4-11-06 Employee 6 Coaching CNA used
threatening
tone of voice
with resident
9-7-06 Employee 7 Coaching CNA says
inappropriate
things in front
of residents
and families
3-14-07 Employee 8 Coaching CNA told resi-
dent she was
not here to wait
on you hand
and foot
5-27-07 Employee 9 1st written CNA had poor
attitude toward
residents and
did not provide
necessary care
12-12-07 Employee
10
Coaching CNA told resi-
dent that he
could not “pull
resident’s brief
out of rear
end”“
2-27-08 Employee
11
Coaching Pointing at
patient and
needs to use
more soothing
tone with pa-
tients
7-7-08 Employee
12
3rd Final Failure to re-
port abuse
(resident’s wife
slapped resi-
dent in face)

Miechur received a third and final warning for soliciting res-
idents with the Mundy letter. The only third and final warning
in the record was given to an employee who failed to report a
resident being slapped in the face. An incident in which a resi-
dent was yelled at, pulled, and bruised, resulted in a 1st written
warning, as did the failure to provide necessary care, making
fun of a resident, and refusing to provide care to a resident.
Three months after the employee received a written warning for
yelling, pulling, and bruising a resident, she received a second
written warning for releasing confidential medical information.
Rudeness, threatening tones, and inappropriate comments war-
ranted an action plan, or a nondisciplinary coaching citation, as
did Shah’s selling of hospital scrubs to residents in the spring of
2008.
In deference to the Respondent’s contention that soliciting
residents to sign the Mundy letter is different than other solici-
tations, and other disciplinary events, I did not (and do not) rely
on a finding of disparate disciplinary penalties as evidence in
support of the General Counsel’s initial burden under Wright
Line. As demonstrated above, there are other indicia that am-
ply satisfy that burden. But I have included this review of other
disciplinary actions taken by the Respondent because it is clear
that—even if not relied upon to advance the General Counsel’s
initial Wright Line burden—the disciplinary history of the facil-
ity is also not supportive in the least of an effort by the Re-
spondent to claim that it would have disciplined Miechur with
the same severity had she not been a union activist. Putting
aside the procedural irregularities in Miechur’s discipline, it is
impossible for the Respondent to show that, on this record,
Miechur’s penalty for asking residents to sign a letter fits with-
in the typical punishments provided to employees. The asser-
tion (and I hasten to add that the Respondent does not actually
make the argument) that asking a resident to sign a letter
equates with watching a resident be slapped in the face would
be, to put it mildly, not self-evident. In sum, one does not re-
view the list of disciplinary warnings for resident-related issues
and conclude that it aids the Respondent in meeting its burden
of showing that it would have taken the same action against
Miechur for soliciting the Mundy letter even in the absence of
her protected activity.
At bottom, Respondent’s claim is a bald appeal that in its
judgment the solicitation was so egregious an offense that (as-
suming, a good-faith belief that Miechur committed it) it would
have taken the same action against Miechur even in the absence
of her protected activity.
However, the record leads me to disbelieve this defense.
The claim is contradicted by some of the same factors from
which the inference of discrimination arise. Kushnerick found
“a stack” of the Mundy letters. Yet ManorCare seemed willing,
without investigation, to attribute everything to Miechur, and
showed no interest in whether other employees were involved
in the activity. If ManorCare sincerely believed that the solici-
tation of the Mundy letter, without regard to Miechur’s union
activism, warranted such a harsh response it would not have
been indifferent to the potential scope of the solicitation or the
potential involvement of other employees. But the Respondent
was indifferent to the potential involvement of other employ-
ees—other employees without a record of union activity. This
suggests that ManorCare’s interest was in punishing Miechur,
not in punishing the offense of soliciting residents without re-
gard to union activism. Similarly, the Respondent brazenly
ignored, without explanation, its own disciplinary policies in its
zeal to discipline Miechur. It has not proven that it ignores its
disciplinary rules with regard to other employees. It has not
offered an explanation for doing so here. The obvious conclu-
sion is that it has failed to prove that it would have acted the
same way in the absence of Miechur’s union activity.52
52 The Respondent cites Tom Rice Buick, 334 NLRB 785 (2001) in
support of the claim that it has met its burden of proving it would have
disciplined Miechur in the absence of union activity. However, Tom
Rice Buick, a case in which an employee was discharged for leaving
work early, is a very different case from that at bar here. In Tom Rice
Buick, the General Counsel’s prima facie case rested on a compelling
array of earlier unlawful actions involving the discharged employee.
While the inference of unlawful motivation was compelling, none of
the evidence supporting the General Counsel’s case concerned the
employer’s conduct in the disciplining of the employee for leaving
early. The employer’s conduct in the discharge did not involve impro-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 230
2. Was Miechur’s alleged conduct protected?
Utilizing a Wright Line analysis, I have found that Manor-
Care has failed to persuade by a preponderance of the evidence
that it would have given Miechur a third and final warning in
the absence of her protected union activities. This makes it
unnecessary to determine whether, as asserted by the General
Counsel, the conduct for which the Respondent disciplined
Miechur was protected activity. However, as an alternative to
the Wright Line analysis, I conclude that the activity for which
Miechur was disciplined was protected by the Act. Therefore,
assuming that the Respondent disciplined Miechur only for the
motivations it asserts—i.e., because it believed she solicited
residents with the Mundy letter—this provides an independent
basis for finding a violation, without regard to my findings
pursuant to the Wright Line analysis. Nor-Cal Beverage Com-
pany, Inc., 330 NLRB 610, 611 (2000) (Wright Line analysis
inappropriate where causal connection between protected activ-
ity and discipline is undisputed, the only issue is whether that
activity lost its protection under the Act because of conduct by
employee).
According to the Respondent, Miechur was disciplined for
soliciting residents, but, in particular, for soliciting them to sign
the Mundy letter, a form letter intended to be sent to a state
representative to seek a legislative hearing. The Respondent
contends that the letter disloyally disparages the Respondent in
a manner that renders the solicitation unprotected activity.
First, putting aside for the moment the claims of disparage-
ment and disloyalty, the fact of soliciting residents cannot be a
basis for disciplining Miechur in this case. “Employees have a
statutorily protected right to solicit sympathy, if not support,
from the general public, customers, supervisors, or members of
other labor organizations.” NCR Corp., 313 NLRB 574, 576
(1993). “[T]he Board has found employee communications to
third parties seeking assistance in an ongoing labor dispute to
be protected where the communications emphasized and fo-
cused upon issues cognate to the ongoing labor dispute.” Allied
Aviation Service Co., 248 NLRB 229, 230–231 (1980), enfd.
w/o op. 636 F.2d 1210 (3d Cir. 1980); Five Star Transporta-
tion, 349 NLRB 42, 45 (2007) (“employees do not lose their
Section 7 protection simply because they seek ‘to improve
terms and conditions of employment or otherwise improve their
lot as employees through channels outside the immediate em-
ployee-employer relationship’”) (quoting Eastex, Inc. v. NLRB,
437 U.S. 556, 565 (1978), enfd. 522 F.3d 46 (1st Cir. 2008)).
In Misercordia Hospital Medical Center v. NLRB, 623 F.2d
808, 812 (2d Cir. 1980), the Court of Appeals upheld the
prieties, a rush to judgment, or other suspicious conduct that itself
provided the basis for the inference of unlawful motivation. Here, by
contrast, it is the Respondent’s process of disciplining Miechur that is a
large part of the case against the Respondent. It therefore cannot rea-
sonably equate itself to the employer in Tom Rice Buick, which con-
vinced the ALJ, and a Board majority, that, notwithstanding its earlier
unlawful conduct, the discipline taken against the employee would have
occurred notwithstanding the employee’s unrelated protected activities.
Here, by contrast, the actual process of disciplining suggests an effort
to “get” Miechur, thus fatally undermining the Respondent’s bald claim
that it would have similarly treated anyone accused of soliciting a resi-
dent with the Mundy letter.
Board’s finding of a violation53 where a hospital discharged a
nurse for providing information about “serious deficiencies in
the quality of care” to a body charged by law with determining
the hospital’s state and Medicare accreditation. The Court
explained:

The Supreme Court has [ ] rejected the view that employees
lose their § 7 protection “when they seek to improve terms
and conditions of employment or otherwise improve their lot
as employees through channels outside the immediate em-
ployee-employer relationship.” Eastex, Inc. v. NLRB, 437
U.S. 556, 565 (1978). The Court noted in Eastex that § 7 re-
peatedly has been interpreted as protecting employees who
“seek to improve working conditions through resort to admin-
istrative and judicial forums” or through “appeals to legisla-
tors.” Id. at 566 (citing cases).

In the instant case, the Easton employees were seeking to
improve working conditions through, “appeals to legislators.”
They did so through letters to Representative Mundy and they
solicited, at least in one or more instances, patients to send
letters to Mundy as well. It is clear that in health care settings,
employers may impose more “stringent prohibitions” on solici-
tations, but absent special circumstances, employees’ retain
substantial rights to communicate with other employees and
third parties:

In recognition of the fact that a hospital’s primary function “is
patient care and that a tranquil atmosphere is essential to car-
rying out that function,” the Board has permitted health care
facilities to impose somewhat more “stringent prohibitions”
on solicitation and distribution than are generally permitted. A
hospital may prohibit solicitation and distribution at any time
in immediate patient care areas (such patients’ rooms, operat-
ing rooms, X-ray areas, therapy areas), even during nonwork-
ing time. However, a hospital may not ban solicitation and
distribution in other areas to which patients and visitors have
access (such as lounges and cafeterias) unless the evidence
shows that such a ban is necessary to avoid a disruption of pa-
tient care.

The Carney Hospital, 350 NLRB 627, 643–644 (2007) (cita-
tions and footnote omitted).
In The Carney Hospital, the Board specifically rejected the
employer’s contention that a total prohibition on solicitation of
patients could pass muster under the Act (absent a showing that
such a ban is necessary to avoid disruption of patient care). In
The Carney Hospital, the Board found that the employer violat-
ed Section 8(a)(1) by maintaining a rule barring employee so-
licitation of patients. As the administrative law judge ex-
plained, in reasoning adopted by the Board:

The Respondent contends that its rule is permissible because
employees only have the right to solicit and distribute to “oth-
er employees, not clients of the institution.” It is unsurprising
that the Respondent cites no authority for this proposition
since it is contrary to applicable law. In UCSF Stanford
Health Care, 335 NLRB 488, 535–536 (2001), enfd. 325 F.3d
334 (D.C. Cir. 2001), cert denied [540 U.S. 1104 (2004) ], the
53 Misercordia Hospital Medical Center, 246 NLRB 351 (1979).

MANOR CARE HEALTH SERVICES–EASTON 231
Board affirmed that a hospital violated the Act when it main-
tained a policy that prohibited solicitation and distribution to
nonemployees. The United States Court of Appeals for the
D.C. Circuit upheld the Board’s decision, stating:

[N]either this court nor the Board has ever drawn a
substantive distinction between solicitation of fellow
employees and solicitation of nonemployees. To the
contrary, both we and the Board have made clear that
[National Labor Relations Act] sections 7 and 8(a)(1)
protect employee rights to seek support from nonem-
ployees.

Stanford Hospital & Clinics v. NLRB, 325 F.3d 334, 343
(D.C. Cir. 2001). Similarly, in NCR Corp., 313 NLRB 574,
576 (1993), the Board stated that “Employees have a statutori-
ly protected right to solicit sympathy, if not support, from the
general public, customers, supervisors, or members of other
labor organizations” by distributing union literature to them.
See also Santa Fe Hotel & Casino, 331 NLRB 723, 730
(2000) (“[T]he fact that off-duty employee distributions . . .
were to customers rather than to other employees . . . is an ir-
relevant consideration.”) Therefore, the Respondent’s argu-
ment based on the nonemployee status of patients and visitors
fails.

Thus, Respondent’s position that it can absolutely prohibit
solicitation of residents, their families, or the public is at odds
with Board precedent.
No considerations have been shown that would justify a total
ban on solicitation to avoid disruption of patient care or to
avoid disturbance of patients. Specter relied upon the fact that
the facility is a permanent “home” to many patients as grounds
for claiming they should be insulated from all solicitation in all
areas of the facility. I do not think that follows, or that it may
be assumed that all solicitation is upsetting to patients. Certain-
ly, no evidence was offered to support this view. Indeed, as the
Union points out, the Commonwealth of Pennsylvania takes a
decidedly different view of efforts to insulate nursing home
residents from those who would encourage the residents to
agitate for change. Respondent’s employees are (by virtue of
state law) trained to comply with Pennsylvania regulations,
including 28 Pa Code § 201.29, which states that residents of
nursing homes:

“shall be encouraged and assisted throughout the period of
stay to exercise rights as a resident and as a citizen and may
voice grievances and recommend changes in policies and ser-
vices to the facility’s staff or to outside representatives of the
residents’ choice.”

I do not suggest that the Pennsylvania regulations directly
govern the employees’ right to solicit residents. But the regula-
tions reflect a considered and different view of the best interests
of residents, at odds with the Respondent’s unsubstantiated
view that the solicitation of a resident to complain to a state
representative about facility conditions should be banned on
grounds that it will “upset” the resident. In the absence of any
evidence to support Specter’s assertion, it cannot justify a total
ban on solicitation.54
Thus, the Respondent has failed to demonstrate circumstanc-
es that would justify a total prohibition on solicitation to fami-
lies or residents. Accordingly, Gieroczynski and Specter’s
claims that there was an unwritten, undocumented rule barring
all solicitation of residents could not justify Miechur’s disci-
pline, were it true. In fact, I do not believe there was any such
rule.55
That there is no rule prohibiting solicitation of patients and
the public would call into question the ability of the Respond-
ent to discipline an employee for soliciting a resident even in a
patient care area. However, that distinction is not at issue.
Miechur’s discipline was not predicated, at any time, or in any
54 I note that the fact that the facility is a longterm home to some pa-
tients renders more not less important the distinction between patient
care areas—where solicitation can be restricted—and nonpatient care
areas—the veritable neighborhood of the residents—where solicitation
may not be restricted absent a showing of a likelihood of disturbance to
patients or interference with patient care. When a patient goes out to sit
in common sitting area, open to families and patients alike, or when the
patient walks through the lobby to the hair salon or cafeteria, or to do
laundry, the presumption cannot be that they want Manorcare to insu-
late them from noncoerced conversation, including with an employee,
about matters of common concern. The Respondent suggests (R. Br. at
41–42) that the presence in its facility of patients suffering from de-
mentia provides a basis to prohibit and punish the solicitation of all
residents. This is an untenable and quite objectionable suggestion. The
evidence is limited on the number of residents or patients afflicted with
dementia, or the extent of this disability, but CNA Xavier Cordes esti-
mated that at least half of the residents of Unit 2, where Miechur
worked, were “alert and oriented.” Limiting the solicitation of patients
who are disoriented would be appropriate, as are many limitations with
regard to infirm patients. However, this does not justify the banning of
the solicitation of all patients. The Section 7 right of an employee to
seek support from third parties, and, just as important, the desire of an
alert and oriented patient or resident to receive information and make a
decision to send a letter to a state representative, cannot so easily be
jettisoned. The prospect of Manorcare barring the right of all residents
to receive information and to sign a letter to a public official is no less
frightening, and no less an incursion on their dignity, than the prospect
alluded to by the Respondent of an infirm patient being pressured by an
employee to sign or adopt a statement or position. Neither need nor
should be tolerated. In this case, the Respondent offers no evidence,
makes no claim, and, indeed, made no effort to find out, that an infirm
resident was asked to review, much less asked to sign the Mundy letter.
But the presence of the infirm in the patient population cannot satisfy
the employer’s burden to show circumstances warranting a total ban on
solicitation that would sweep away of the rights of employees to dis-
cuss with any patient matters of mutual concern, including, and per-
haps, particularly, the right to petition the government.
55 I recognize that Gieroczynski testified that it was “a generally
known policy that we do not solicit residents,” and Specter testified that
“[o]ur policy is not to solicit residents.” I reject and discredit this
testimony. Nothing substantiates either claim. There is no evidence
that anyone was told of such a rule, it is not included in or alluded to in
the multiple written work rules (including those limiting solicitation of
other employees), and there is no evidence that managers ever had
discussions with employees, or among themselves to this effect. At
best, Gieroczynski and Specter were testifying as to their view of what
the rule on solicitation should be. However, their preferred rule would
be unlawful and an unlawful basis to discipline Miechur.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 232
manifestation of Respondent’s explanation of its actions, on the
claim that Miechur solicited a patient in a patient care area.
There is no evidence that she did this, and the Respondent has
never expressed concern with that delineation. Miechur was
disciplined for soliciting a resident with the Mundy letter—
without regard to where it happened. A prohibition on such
solicitation is unlawful unless in its particulars this solicitation
had some characteristic—in the manner in which it was carried
out or in its content—that caused the employee soliciting to
lose the protections of the Act.
In this case the nub of the Respondent’s claim is that the
contents of the Mundy letter places the soliciting employee
beyond the protection of the Act. As indicated in Miechur’s
disciplinary notice, the Respondent maintains that the Mundy
letter is disparaging and its distribution constituted disloyalty
on the part of Miechur. In the Respondent’s view, the offensive
part of the Mundy letter was its statement that “[a]t my facility,
we are very short staffed and it affects the care of our resi-
dents,” and its exhortation to representative Mundy that she
make sure that Pennsylvania Department of Health officials
ensure that the change of ownership of Manor Care to Carlyle
“does not negatively impact care provided to residents in the
Commonwealth.”
I do not agree that a ManorCare employee distributing the
Mundy letter would lose the protections of the Act.
First, subject of the Mundy letter squarely concerned issues
of working conditions that had already been a prominent fea-
ture of SEIU’s labor dispute with Manor Care. That the letter
expressed concern with patient welfare does not contradict this
conclusion. The Board has recognized that “[i]n the health care
field, patient welfare and working conditions are often inextri-
cably intertwined. In this connection, employees’ statements
regarding patient care and/or staffing levels have been found
protected where it was clear from the context of the statements
that they related to a labor dispute and/or employees’ terms and
conditions of employment.” Valley Hospital Medical Center,
351 NLRB 1250, 1252 (2007) (citations omitted); Misercordia
Hospital Medical Center v. NLRB, 623 F.2d 808, 813 (2d Cir.
1980) (discussing relationship between welfare of patients and
working conditions of hospital staff). In this case, the Mundy
letter statements about staffing and care were very much a part
of both the Union’s labor dispute with the employer and the
employees’ demonstrated concern with terms and conditions of
employment. The Mundy letter added to concerns with staffing
and other terms and conditions of employment that had already
been part of the SEIU organizing campaign,56 had previously
56 See e.g., GC Exh. 27 (SEIU “white paper” released October 10 at
press conference in Harrisburg, Pennsylvania, raising concerns about
potential affect on staffing and other issues affecting employees and
patients of the Carlyle purchase of Manor Care); GC Exh. 26 (Septem-
ber 20 Washington Post article “Union Protests Carlyle’s Bid for Man-
or Care,” quoting SEIU official: “Its not that we are against private
equity, but we believe companies like Carlyle, because of their huge
size, have to match that size with responsible actions in terms of the
impact of their deals on workers and seniors.”); GC Exh. 18 (November
16 SEIU press release, “‘There are not enough certified nurse assis-
tants at this facility and Carlyle needs to do something about that,’ said
been voiced in hearings convened by representative Mundy in
November, and repeatedly raised by employees to management
in the small group meetings held at the end of October. The
letter urged that state officials ensure that Carlyle’s assumption
of the company did not negatively affect care—a goal that
Manor Care, the SEIU, and the state officials all claimed in
hearings to share. At the November 13 hearings before the
Pennsylvania House Aging & Older Adult Services Committee,
Stephen L. Guillard, Executive Vice President and Chief Oper-
ating Officer of HCR Manor Care pledged that “[w]e will not
reduce staffing of caregivers in our nursing centers or assisted
living centers and our staffing levels are well above require-
ments set by the Commonwealth of Pennsylvania.” Concern
over staffing issues was very much a part of the previous hear-
ings chaired by representative Mundy. Thus, this is a case
where the Board’s recognition that “[i]n the health care field,
patient welfare and working conditions are often inextricably
intertwined” is particularly apt.
However, even an otherwise protected statement will be
found unprotected if the Board evaluates the communication
and determines that it is “so disloyal, reckless, or maliciously
untrue as to lose the Act’s protection.” Endicott Interconnect
Technologies, 345 NLRB 448, 450 (2005), enf.. denied, 453
F.3d 532 (D.C. Cir. 2006). As the Board recently explained,
“[i]n determining whether employee conduct falls outside the
realm of conduct protected by Section 7, we consider whether
‘the attitude of the employees is flagrantly disloyal, wholly
incommensurate with any grievances which they might have,
and manifested by public disparagement of the employer’s
product or undermining of its reputation . . .” Five Star Trans-
portation, supra at 46 (quoting Vandeer-Root Co., 237 NLRB
1175, 1177 (1978)).
In evaluating the alleged disloyalty and disparagement of
employee solicitation with the Mundy letter, the case of Profes-
sional Porter & Window Cleaning Co., 263 NLRB 136, 139
(1982), enfd. 742 F.2d 1438 (2d Cir. 1983) is instructive. In
that case, a maid worked for a cleaning company that provided
maid services to a nursing home. She and coworkers wrote to
the nursing home complaining that her employer was using
poor products, had taken necessary supplies away from the
maids and that because of this “the floors are not really being
cleaned” and “this facility is deteriorating.” The letter urged
the nursing home to “take a good long look at what [Respond-
ent] is doing to your facility” and stated that “we feel that it is
our duty to inform you of the situation before it is too late.”
The cleaning service discharged the employee who instigated
the letter. The Board found that the discharge violated the Act.
In doing so, the Board specifically rejected the contention that
the letter constituted disparagement removing the employee
from the protections of the Act. The Board explained that it
“has traditionally been careful to distinguish between dispar-
agement of an employer’s product and the airing of what may
be highly sensitive issues. We have observed that ‘absent a
malicious motive, [an employee’s right to appeal to the public
is not dependent on the sensitivity of [an employer] to his
Josephine Miechur [Trisha Miechur’s mother] whose mother lives in a
Manor Care nursing home in Easton, Pennsylvania”).

MANOR CARE HEALTH SERVICES–EASTON 233
choice of forum.” 263 NLRB at 139 (footnotes omitted)
(Board’s bracketing) (quoting Richboro Community Mental
Health Council, 242 NLRB 1267, 1268 (1979)). Reviewing the
letter sent by the cleaning maid, the Board found that the “pur-
pose of the letter was not to injure Respondent by impugning its
operation. On the contrary, by urging [the nursing home] to
take a “good long look” at the facility and by stating that it was
their duty to inform him of the situation ‘before it is too late,’
[the employee] and the other employees demonstrated that their
purpose was to encourage [the nursing home] to remedy the
various problems they were encountering in their working con-
ditions.” Id.
In this case too, the Mundy letter’s concern with patient care
was not intended to disparage or harm the Respondent. Rather,
it added to the already well-established efforts by the Union
and the employees to ensure that their terms and conditions of
employment, including staffing levels, would not suffer as a
result of the Carlyle takeover. Its goal was to protect employ-
ees from adverse changes to terms and conditions of employ-
ment such as staffing issues. Contrary to the suggestion of the
Respondent, the letter, and the employees’ efforts, did not seek
to block, or advocate that state officials block, Carlyle from
taking over Manor Care. The letter and the employees’ efforts,
were not directed at harming the Respondent, but rather, by all
evidence constituted an effort to push the Respondent to redress
problems at the facility and advocate for unionization. Those
are lawful and protected goals. That the forum was political,
and therefore, in a democracy, public, does not militate against
this conclusion. As in Professional Porter & Window Clean-
ing, “the sensitivity of [an employer] to [employees’] choice of
forum” does not control the employees’ rights to appeal to the
public.
Notably, there was nothing “maliciously untrue” about the
Mundy letter. To the contrary, the employees’ sincere concerns
with short-staffing could hardly be news to Manorcare man-
agement: the employees had complained of staffing issues at
the small group meetings and resolution of staffing issues was
the lead item on the Easton Action Plan introduced into evi-
dence at the hearing. The employees testified at the hearing
about their personal experiences with and concerns about staff-
ing issues. There is not the slightest evidence that the concerns
were not sincerely held, or not based on employees’ personal
experiences. See, Valley Hospital, supra 1254 (statements,
including statements regarding staffing cuts, not “maliciously
false” when based on employees’ own observations and con-
versations with other employees).
Nor can the Mundy letter be said to be inflammatory. It is a
soberly written letter, entirely free of reckless, coarse, or even
arch rhetoric. Moreover, it is worth noting that while the let-
ters, once signed were intended to be sent to representative
Mundy, and could lead to public testimony, the solicitations at
issue were not publicly and indiscriminately distributed to the
broader public. The solicitation for which Miechur was disci-
plined was made to residents, presumably also to family mem-
bers, and employees. The letters were made public only once
the resident (or other signatory) had signed the letter—in es-
sence, converting it to their own. The Board has recognized
that in assessing whether arguably disloyal or disparaging con-
duct loses the protection of the Act, the extent of the publicity
and extent of the public nature of the communication is signifi-
cant. See, Mountain Shadows Golf Resort, 338 NLRB 581, 583
(2002) (pointing out that public nature of flyer, among other
factors, increased justification for discipline of employee com-
pared to private document criticizing employer that employee
had previously authored). Thus, the solicitations at issue were
not made by employees to the public at large, but were provid-
ed to more narrowly interested parties—that is, parties vitally
interested in the issue of staffing at this facility. Whatever else
staffing is, it is, undeniably, a core term and condition of em-
ployment, the discussion of which is entitled to the Act’s pro-
tection.
On this record, even assuming that Miechur engaged in the
conduct for which she was disciplined—soliciting a resident to
sign the Mundy letter—the conduct is protected activity in sup-
port of better working conditions. Although I do not believe I
need to reach the issue, were it necessary, I would find that if,
as the Respondent claims, it would have disciplined Miechur
with a final warning in the absence of her other union activity,
then the discipline was violative of the Act. Burnup & Sims,
Inc., 256 NLRB 965 (1981).57
3. The evidentiary ruling barring the Respondent
from obtaining the identify of employees who engaged
in union activity
At the hearing I sustained the General Counsel and Union
objections to the Respondent’s effort to inquire into the identity
of employees—other than Trisha Miechur—who were engaged
in union activity (Tr. 73–81). Inquiry into Trisha Miechur’s
union activity was permitted.
In its brief, the Respondent has renewed its objection to my
ruling. I have considered the additional argument set forth in
the Respondent’s brief. However, upon consideration, I renew
my ruling.
Board precedent is clear that in considering this issue, I must
balance the confidentiality interests of employees to engage in
union activity—interests the Board views as an “overriding
concern”—against the Respondent’s right to full and effective
cross examination. In this case, the confidentiality rights of
employees to not have their union activity disclosed to the Re-
spondent far outweighs the largely irrelevant—if we stretch to
make a point we can call it marginally relevant—facts concern-
ing the union activity of employees other than Miechur.
National Telephone Directory Corp., 319 NLRB 420 (1995),
involved a strikingly similar situation to that at bar here. In that
57 Given my findings, I decline to consider the General Counsel’s
third claim, which is based on the Supreme Court’s decision in NLRB v.
Burnup & Sims : I decline to consider the General Counsel’s contention
that Miechur did not engage in soliciting of a resident, that the mere
possession of the signed Mundy letters was protected activity (even if
the solicitation was not), and therefore that the disciplining of Miechur
for conduct she did not engage in, occurring in the course of protected
activity, violated the Act. See, NLRB v. Burnup & Sims, Inc., 379 U.S.
21, 23 (1964) (Ҥ 8 (a)(1) is violated if it is shown that the [disciplined]
employee was at the time engaged in a protected activity, that the em-
ployer knew it was such, that the basis of the discharge was an alleged
act of misconduct in the course of that activity, and that the employee
was not, in fact, guilty of that misconduct”).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 234
case, as here, the General Counsel alleged that an employee
was unlawfully disciplined (discharged in National Telephone
Directory) for engaging in union activity. Similar to here, a
union organizer in National Telephone Directory testified that
the discharged employee assisted in organizing employee sup-
port for the union and arranged meetings between the union
organizer and the employees. On cross-examination, the em-
ployer sought to have the union organizer reveal the names of
employees who attended these union meetings, and demanded
production of notes and cards signed at the meeting that would
reveal those in attendance. Here too, the issue arose when
Manorcare’s counsel asked union organizer Dennis Short about
Easton employees who were involved in union activities.
In National Telephone Directory, the Board rejected the em-
ployer’s effort to compel testimony (and quashed subpoenas
seeking information) revealing the identity of employees en-
gaged in union activity. The Board explained:

The confidentiality interests of employees have long been an
overriding concern to the Board. Generally, an employer who
seeks to obtain the identities of employees who sign authori-
zation cards and attend union meetings violates the Act. In-
deed, an employer may not surveil its employees to obtain
such information, and may not give its employees the impres-
sion that it has surveilled--or will surveil--them to obtain such
information. Further, an employer violates the Act if it ques-
tions its employees about this information.

. . . .

In addition to the employees’ confidentiality interests, the oth-
er concern raised here is the Respondent’s right to cross-
examine the General Counsel’s witnesses about events testi-
fied to on direct examination. Generally, all parties are afford-
ed an opportunity for full cross-examination of witnesses in
unfair labor practice proceedings. See the Board’s Statements
of Procedure Section 101.10(b)(2) (“Every party has the right
. . . to conduct such cross-examination as may be required for
a full and true disclosure of the facts.”). A full cross-
examination includes the right to test the credibility of the
General Counsel’s witnesses by asking legitimate questions
about subjects brought out on direct examination.
In balancing these two legitimate interests, we are guided by
the policies set forth in NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214 (1978). There, the Supreme Court balanced the
confidentiality interests of employee affiants who had not tes-
tified in a hearing, with an employer’s interest in obtaining
their affidavits for the purpose of preparing its defense of un-
fair labor practice allegations. The Court, in holding that the
investigatory affidavits are protected from disclosure under
the Freedom of Information Act, recognized that such disclo-
sure would create a risk that recipients of the affidavits would
intimidate employees “to make them change their testimony
or not testify at all.” Id. at 239. The Court further suggested
that potential witnesses might “be reluctant to give statements
to NLRB investigators at all” without assurances of confiden-
tiality because of the “all too familiar unwillingness [of em-
ployees] to ‘get too involved’ [in formal proceedings] unless
absolutely necessary.” Id. at 240–241.

As our discussion above concerning employee confidentiality
interests shows, we take very seriously the possibility of in-
timidation of employees by employers seeking to learn the
identity of employees engaged in organizing. We conclude
that the danger of employee intimidation would be severely
heightened if an employer could obtain the names of employ-
ees who signed cards or attended meetings.

Therefore, we believe the policies of the Act are best effectu-
ated by prohibiting the Respondent from obtaining on cross-
examination the names of the employees who attended union
meetings and signed authorization cards. That the Respondent
has sought this information through cross-examination, rather
than through surveillance or interrogation of employees, does
not reduce the potential chilling effect on union activity that
could result from employer knowledge of the information.
(footnotes omitted).

With this precedent, and within this framework, I must consid-
er the Respondent’s demand to know the identities of employees
engaged in union activity. The most salient fact is the utter mar-
ginality if not complete irrelevance of this information to the
allegations of the complaint of this inquiry. Only one employee’s
union activity is placed at issue by the complaint. That is, of
course, the union activity of the only alleged discriminatee, Tri-
sha Miechur. As to her union activity, the Respondent was al-
lowed free range without limitation to ask her, and all other wit-
nesses questions about Miechur’s union activity.
But what is the relevance of other employees’ union activi-
ty? The answer is very little or none. The Respondent con-
tends that employees’ union activity is relevant because it will
aid in determining the truth of Miechur’s assertions that she did
not, in fact, engage in solicitation. And whether Miechur, in
fact, engaged in solicitation, was an element of one of the Gen-
eral Counsel’s alternative theories.
This is not compelling. In the first place, given that my deci-
sion in this case does not turn on whether, in fact, Miechur
engaged in solicitation, the issue has turned out to be irrelevant
to the outcome in this case. As discussed above, my conclusion
that Miechur’s discipline violated the Act is based on my con-
clusion, utilizing a Wright Line analysis, that antiunion animus
motivated the discipline and she would not have been similarly
disciplined in the absence of her union activity. That ruling
renders wholly irrelevant the truth of the matter of whether
Miechur actually engaged in the solicitation for which she was
disciplined. Similarly, my alternative ruling is that, even as-
suming, arguendo, that Miechur engaged in the solicitation for
which she was disciplined, that conduct was protected activity.
Again, whether Miechur, in fact, engaged in solicitation is ir-
relevant.58
58 The Respondent’s contention on brief (R. Br. at 51) that
knowledge of other employees’ union activity would have helped its
Wright Line defense is meritless. The Respondent claims that it could
have used the information to show that others who engaged in union
activity were not disciplined, thus allegedly giving credence to its claim
that it was not motivated by antiunion animus when it disciplined
Miechur. This does not merely miss the point, it makes the General
Counsel’s point. That point, of course, is that when the Respondent
disciplined Miechur, it was aware of her union activity, but not others.

MANOR CARE HEALTH SERVICES–EASTON 235
Having said, that, even were the issue of whether the
Miechur actually engaged in the solicitation still at issue, the
relevance of other employees’ union activity would still be of
extremely marginal relevance, at best. It is indeed, a fishing
expedition, and one with potentially insidious purpose and ef-
fect. If permitted to learn the identities of employees who en-
gaged in union activity, the most that the employer would gain
would be a pool of employees who might be better situated, by
virtue of their own union activity, to corroborate or contradict
Miechur’s claim that she did not engage in solicitation. But
there is no guarantee that these other union activists could shed
light on whether Miechur actually engaged in solicitation. At
the great cost of exposing union activity at the facility, what is
netted is a pool of employees whose shared interest in the Un-
ion might make them knowledgeable witnesses about
Miechur’s activity. And if the Respondent’s questions were
more pointed—if, as it sought to, it could ask which employees
engaged in solicitation, this is more problematic still. The Re-
spondent has made clear that it considers the solicitation of
residents to be a punishable act. The pressure on an employee
accused of soliciting to contradict Miechur to protect his or her
own employment is an unseemly and unsettling prospect.
Such an outcome cannot seriously be contemplated, particu-
larly when the relevance to the complaint is of such marginal
relevance. In light of the Board’s ruling in National Telephone
Directory, with its explicit recognition that “the danger of em-
ployee intimidation would be severely heightened if an em-
ployer could obtain the names of employees” engaged in union
activity, I cannot accept the perversity that Board proceedings
should become a forum for employer investigation into union
activity, using questioning that would be unlawful outside the
hearing room, and, perhaps unlawful in a hearing room, an
issue I need not reach only because my ruling foreclosed the
questioning. Guess?, Inc., 339 NLRB 432, 434 (2003) (unlaw-
ful for employer’s counsel to ask employee in a workers com-
pensation deposition about identity of those attending union
meetings).59 “That the Respondent has sought this information
through cross-examination, rather than through surveillance or
interrogation of employees, does not reduce the potential
chilling effect on union activity that could result from employer
knowledge of the information.” (footnotes omitted). National
Telephone Directory, supra.
That is, I have concluded, why the Respondent disciplined Miechur and
was indifferent to the potential participation of any other employees in
the solicitation it claims it was punishing. It does not advance the
Respondent’s Wright Line defense to show that of all the employees
engaged in union activity, the Respondent disciplined only the employ-
ee of whose union activity it was aware. In any event, even if the Re-
spondent knew of other employees’ union activity and disciplined only
Miechur, “[t]he Board and the courts have long held that a finding of
discriminatory motive ‘is not disproved by an employer’s proof that it
did not weed out all union adherents.’” All Pro Vending, Inc., 350
NLRB 503, 515 (2007) (quoting Nachman Corp. v. NLRB, 337 F.2d
421, 424 (7th Cir. 1964)).
59 See, Chinese Daily News, 353 NLRB 613 (2008) (not reaching is-
sue of lawfulness of asking deponent in federal court lawsuit about
attendance at union meetings and involvement in union activities,
where such finding would be cumulative, given finding that questioning
of how deponent voted in union election was unlawful).
The Respondent’s only effort to distinguish National Tele-
phone Directory from the instant case is to point out that some of
the union activity it was foreclosed from inquiring into involved
employee union activity that was conducted in public settings.
The Respondent contends that employees who engage in union
activity in public settings have waived their right to confidentiali-
ty. There is no force to this contention. First, it is important to
note that the identity of employees participating in public events
constituted only some of the information sought by the Respond-
ent. It also sought the identities of employees attending private
union meetings and those engaged in solicitation. As to those
inquiries, the Respondent offers not even an argument to distin-
guish National Telephone Directory. But even as to employees
who increased the risk of disclosure of their union activity by
participating in more public events, I do not accept that they have
“waived” their rights. No doubt, by engaging in a public rally, an
employee increases the risk that the employer will learn of their
involvement in union activity. That is the employee’s risk to
take. But if the employer does not learn of their involvement
(and, of course, that is the situation, else the issue would not ex-
ist), by no sound logic is the employee obligated thereafter to
disclose his union activity and by no logic is the employer free to
demand an accounting of who participated in the public event.
There is no rationale for the Board to abet that process through its
enforcement proceedings. And the point is reinforced by the fact
that in this case, the more public and more removed the union
activity from the solicitation events at Easton, the less and less
conceivable relevance the employee’s identity could have to any
issue in this case.
Miechur testified three times in this hearing. Her union ac-
tivity was open for inquiry and questioning in each instance.
Other employees testified, and there was no limitation on the
Respondent’s right to ask them about Miechur’s union activity.
The only area that the Respondent was barred from asking
questions, of Miechur or other witnesses, was as to other em-
ployees’ union activity. I reject the contention that this bur-
dened the Respondent’s defense in any meaningful way. In
sum, when the employee confidentiality rights are balanced
against the marginal (at best) interests of the employer in learn-
ing the identity of employees engaged in union activity, this is
not a close case. Indeed, I question how seriously the Re-
spondent takes its position.60
60 I say this because I could not help but notice that when CNA Col-
lado testified and admitted her own activity in support of the Union, the
Respondent did not take the opportunity to ask her anything regarding
Miechur’s union activity. In other words, presented with a witness
providing the precise type of information it claims it needed to defend
its discipline of Miechur, the Respondent asked no questions regarding
Miechur. Rather, it simply attempted to pry further into Collado’s
activities on behalf of the Union and attempt to have Collado reveal
additional employees engaged in union activity. At best, this demon-
strates the disingenuousness of the employer’s claim that it has been
hindered by an inability to inquire into employees’ union activities. At
worst, it raises the specter that its inquiries are unrelated to the defense
of this case.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 236
f. Unlawful conduct alleged to have occurred in 2008
(paragraphs 11–13 of the complaint)
The General Counsel alleges three 8(a)(1) violations occur-
ring in 2008.
The first two are appropriately considered together. As de-
scribed above, the day after the Friday, January 18 confronta-
tion with Carlyle CEO Rubenstein in Philadelphia, Miechur
returned to work. She brought a copy of the Philadelphia In-
quirer containing an article about the protest. Miechur believed
that Heimbach had taken the paper out of the nourishment room
and confronted her about it. Heimbach denied taking the paper,
but said to Miechur, “I’ve seen what you’ve done. I’ve known
what you’ve done. You should be ashamed of yourself. . . .
[H]ow can you walk in to this facility with your head high after
what you’ve done?.” That Monday, on January 21, Stolte
called Miechur into Specter’s office. With news articles about
Heimbach’s activities out in her office, and in front of Stolte,
Specter admonished Miechur to “stop doing what [she was]
doing because we’re not going to get anymore residents in to
Manorcare and I should be ashamed of myself.” She asked
Miechur how she could “walk into this facility with [her] head
high.”
I find that the comments of Heimbach and Specter together,
the similarity of which I do not believe to have been coinci-
dental, were coercive. If either comment was an impromptu
response, indicating distaste for the Heimbach’s public and
confrontational appearance on behalf of the SEIU campaign, a
different analysis might be appropriate. But these comments
were calculated and coordinated. They appeared, in fact, to be
literal efforts to “shame” and denigrate Miechur for her activi-
ties, as opposed to mere criticism of the campaign tactics. In-
deed, both Heimbach and Specter asked Miechur how she
could “walk into this facility with [her] head high.” These
comments from two (and in front of another) of the highest
ranking members of local management come very close to con-
taining a suggestion that—had she the appropriate shame—she
would not have returned to the facility and would have quit.
While not an explicit request that Miechur quit, these com-
ments would reasonably be understood as coercive, threatening,
and an unlawful response to Miechur’s protected activity. See,
Legget Department Store, 137 NLRB 403, 404 (1962) (finding
8(a)(1) when on day of newspaper article about Board trial
examiner’s decision, supervisor asked employee-witness “did
you read the morning paper?” and then “Weren’t you ashamed
to come through that door this morning?”).61
61 Heimbach suggested in her testimony that her comments were mo-
tivated by what she perceived as Miechur’s criticism of care given by
coworkers and not by anything that could be considered protected
activity, but I do not believe she spelled that out to Miechur. It is set-
tled, of course, that in determining the coerciveness of remarks, the
Board applies an objective standard and evaluates whether the remarks
reasonably tend to interfere with the free exercise of employee rights.
The Board does not consider the motivation behind the remarks. Miller
Electric Pump & Plumbing, 334 NLRB 824, 825 (2001); Joy Recovery
Technology Corp., 320 NLRB 356, 365 (1995), enfd. 134 F3d. 1307
(7th Cir. 1998). See, United States Postal Service, 350 NLRB 441, 445
(2007). A reasonable and objective understanding of Heimbach’s
comments would be that it was in response to Miechur’s participation
The final 8(a)(1) alleged by the General Counsel concerns
Stolte’s comments to Miechur after Miechur stormed out of the
April 22, 2008 slide show conducted by Stolte. As Miechur
admitted, she acted inappropriately in response to the slide
show’s reference to the SEIU and implicit reference to her.
When Stolte spoke with Miechur after the meeting Miechur
complained that “I’m tired of the meeting [ ] being about me
and SEIU. I’m tired of working in a hostile environment.”
Stolte replied, “if you don’t like it you can quit.”62 Miechur
told Stolte, “I’m not going to quit because I’m here working for
my residents.” Miechur also told Stolte that “you are going to
have to fire me to get rid of me.” Stolte told Miechur she was
not about to fire her, and she was not going to discipline her for
walking out of the meeting.
The suggestion to Stolte that “if you don’t like it you can
quit” (or, in Stolte’s version, “no one is making [you] work
here”), was in direct response to Miechur’s complaint that she
did not like her union activity and the SEIU being the focus of
meetings. Manorcare does not violate the law by having meet-
ings in response to union activity. It does violate the Act by
suggesting that employees that do not like it are free to work
elsewhere. Chinese Daily News, 346 NLRB 906, 906, 919
(2006) (violation of 8(a)(1) to tell employee to resign if she was
not happy with her job); McDaniel Ford, Inc., 322 NLRB 956,
956 fn. 1 and 962 (1997) (“It is well settled that an employer’s
invitation to an employee to quit in response to their exercise of
protected concerted activity is coercive, because it conveys to
employees that support for their union or engaging in other
concerted activities and their continued employment are not
compatible, and implicitly threaten discharge of the employees
involved.”). Intertherm, Inc., 235 NLRB 693, 693 fn. 6 (1978)
(unlawful to tell employee that if “he was not happy with the
Company, he should look elsewhere for a job”). Stolte’s com-
ment violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent Manor Care of Easton, PA, LLC d/b/a
Manorcare Health Services—Easton is an employer within the
meaning of Section 2(2), (6), and (7) of the Act, and a health
care institution within the meaning of Section 2(14) of the Act.
2. The Charging Party Service Employees International Un-
ion Healthcare PA is a labor organization within the meaning of
Section 2(5) of the Act.
3. In October 2007, the Respondent violated Section 8(a)(1)
of the Act by interrogating employees concerning their union
sympathies.
in January 18 protest and the comments attributed to her in the Phila-
delphia Inquirer. That article did not contain remarks by Miechur
criticizing her coworkers for poor care. Rather, the article attributed to
Miechur the comment that Manor workers were worried that Carlyle
would be tempted to make spending cuts and the comment that
coworkers had asked the SEIU to help form a union because they were
worried Carlyle could not afford to improve both profits and patient
care.
62 I have credited Miechur’s account. I note that Stolte’s slightly dif-
ferent admission was that she said “I told her that no one was making
her work here.” I find that in context, whether Stolte or Miechur’s
version of the comment was credited would make no difference to the
analysis.

MANOR CARE HEALTH SERVICES–EASTON 237
4. On or about October 29 and 30, 2007, the Respondent vio-
lated Section 8(a)(1) of the Act by soliciting employee com-
plaints and grievances and, in order to discourage employees
from seeking union representation, promising to remedy the
complaints and grievances.
5. On or about November 12, 2007, the Respondent violated
Section 8(a)(1) of the Act by transferring supervisors Lynette
Seiler and Paula Kublius in order to discourage employees from
seeking union representation.
6. On or about November 21, 2007, the Respondent violated
Section 8(a)(1) of the Act by instituting a wage increase and/or
lump sum bonus to CNAs and increasing the starting hourly
wage for CNAs, in order to discourage employees from seeking
union representation.
7. On or about November 21, 2007, the Respondent violated
Section 8(a)(1) of the Act by threatening employee Trisha
Miechur with job loss if she continued her union activities.
8. On or about November 21, 2007, the Respondent violated
Section 8(a)(1) of the Act by confiscating union literature.
9. On or about November 28, 2007, the Respondent violated
Section 8(a)(1) and (3) of the Act by disciplining employee
Trisha Miechur in retaliation for her activities in support of the
Union.
10. On or about January 19 and again on January 21, 2008,
the Respondent violated Section 8(a)(1) of the Act by admon-
ishing an employee for her activities in support of the Union
and directing her to stop engaging in such activities.
11. On or about April 7, 2008, the Respondent violated Sec-
tion 8(a)(1) of the Act by telling an employee that she could
quit if she did not like the employer’s meetings regarding the
Union.
12. The unfair labor practices committed by the Respondent
affect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent 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.
The Respondent having unlawfully disciplined employee
Trisha Miechur on November 28, 2007, shall rescind the disci-
pline and remove from its files, including Miechur’s personnel
file, any reference to the discipline, and shall thereafter notify
Miechur in writing that this has been done and that the disci-
pline will not be used against her in any way.
The Respondent shall post an appropriate informational no-
tice, as described in the Appendix, attached. This notice shall
be posted in the Respondent’s facility or wherever the notices
to employees are regularly posted for 60 days without anything
covering it up or defacing its contents. When the notice is is-
sued to the Respondent, it shall sign it or otherwise notify Re-
gion 4 of the Board what action it will take with respect to this
decision.
In its brief (CP Br. at 55), the Union has indicated that it will
not be requesting rescission of the wage increase or the return
of Kublius and Seiler. Accordingly, the remedy in this case
will not include an order to take such action at the request of
the Charging Party.
The Union (but not the General Counsel) also requests a broad
range of what the Board refers to as “extraordinary remedies.”
These include a broad cease and desist order covering all Manor
Care facilities within the Easton region, a posting at all such fa-
cilities, a reading of the posting to employees, access to the
names and addresses of Easton employees and access to the facil-
ity for 2 years, equal time to respond at the facility to meetings
held by the employer regarding unionization, recognition upon
attainment of a card majority, and reimbursement from the Re-
spondent for the Union and General Counsel’s litigation expenses
and for the Union’s organizing expenses. While the unfair labor
practices the Respondent has found to have engaged in are seri-
ous matters, I do not find the Respondent’s conduct in violation
of the Act supports such extraordinary remedies under current
Board precedent. I therefore decline to direct them. As to the
requested reimbursement of expenses, I note that, as the General
Counsel pointed out (GC Br. at 37), “[t]his case turns to a large
degree on credibility.” Because that is the case, and because I do
not believe that the Respondent’s defenses were frivolous, I de-
cline to order reimbursement as requested by the Union.
[Recommended Order omitted from publication.]