Sprain Brook Manor Nursing Home, LLC

National Labor Relations Board - Board Decisions

Apr 26, 2013

359 N.L.R.B. 929 (N.L.R.B. 2013)

SPRAIN BROOK MANOR NURSING HOME, LLC 929

359 NLRB No. 105
Sprain Brook Manor Nursing Home, LLC and 1199
SEIU United Healthcare Workers East. Cases
02–CA–040231, 02–CA–040385, and 02–CA–
072458
April 26, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On November 8, 2012, Administrative Law Judge
Mindy E. Landow issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
1

The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,
2
and conclusions as modified,
3
and to adopt the
recommended Order as modified and set forth in full
below.
4

AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion of
Law 4.

“4. By discharging Catherine Alonso, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.”

1 On January 17, 2013, the Acting General Counsel filed a motion to
strike the Respondent’s exceptions and supporting brief. In the filing,
the Acting General Counsel asserted that even if the Board accepts the
Respondent’s exceptions, it should nonetheless adopt the judge’s deci-
sion and recommended Order. The Board denied the motion on Febru-
ary 11, 2013.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 In view of our adoption of the judge’s finding that Catherine
Alonso’s discharge violated Sec. 8(a)(3) and (1) of the Act, we find it
unnecessary to pass on the judge’s finding that this discharge also vio-
lated Sec. 8(a)(4). The finding of this additional violation would not
materially affect the remedy. We shall amend the judge’s conclusions
of law accordingly.
4 Pursuant to Latino Express, Inc., 359 NLRB 518 (2012), we shall
modify the judge’s recommended Order to require the Respondent to
compensate affected employees for adverse tax consequences and
adhere to the Social Security Administration reporting requirements
identified there. In addition, in accordance with our decision in Ken-
tucky River Medical Center, 356 NLRB 6 (2010), we shall modify the
judge’s recommended Order to require that make-whole relief awarded
for losses incurred as a result of the Respondent’s unlawful unilateral
changes be paid with interest compounded on a daily basis. We shall
also modify the judge’s recommended Order to include a broad cease-
and-desist provision, to add a notice-reading requirement, to correct the
inadvertent omission of our standard compliance certification para-
graph, and to conform the Order and notice to the violations found.
AMENDED REMEDY
In addition to the remedies recommended by the judge,
we shall, in accordance with our recent decision in Lati-
no Express, Inc., supra, order the Respondent to compen-
sate Catherine Alonso and Karen Bartko for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and file a report with the Social Security Admin-
istration allocating the backpay awards to the appropriate
calendar quarters for each employee.
In light of the Respondent’s demonstrated proclivity to
violate the Act, we have decided to issue a broad order—
requiring the Respondent to cease and desist from “in
any other manner, interfering with, restraining, or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act”—in place of the narrow
order recommended by the judge. See, e.g., Five Star
Mfg., 348 NLRB 1301, 1301–1302 (2006) (sua sponte
issuing broad cease-and-desist order; collecting cases),
enfd. 278 Fed. Appx. 697 (8th Cir. 2008); see generally
Hickmott Foods, 242 NLRB 1357, 1357 (1979) (broad
order warranted where respondent “is shown to have a
proclivity to violate the Act”).
We shall also order that the Board’s notice be read
aloud to the Respondent’s employees by Respondent’s
owner, Robert Klein, or Administrator, Shlomo Mushell
or, at the Respondent’s option, by a Board agent in the
presence of Klein or Mushell.
5
We find that requiring
the notice to be read aloud is warranted by the serious
and persistent nature of the Respondent’s unfair labor
practices, especially in light of the Respondent’s repeti-
tion of the same type of misconduct previously found
unlawful. See Sprain Brook Manor Nursing Home, LLC,
351 NLRB 1190 (2007). The presence of a responsible
management official when a notice is read serves as a
“minimal acknowledgement of the obligations that have
been imposed by law” and provides employees with
some “assurance that their organizational rights will be
respected in the future.” Homer D. Bronson Co., supra,
349 NLRB at 515. We find that such assurance is war-
ranted under the circumstances of this case.
6

5 See Homer D. Bronson Co., 349 NLRB 512, 515 (2007), enfd.
mem. 273 Fed. Appx. 32 (2d Cir. 2008). If Klein or Mushell are no
longer affiliated with the Respondent at the time of the notice reading,
the Regional Director shall designate another responsible management
official. The Respondent shall also provide interpreters to translate the
notice when it is read to employees, if the Regional Director determines
that the presence of any interpreter is appropriate. Id. at 515, fn. 17.
6 See Whitesell Corp., 357 NLRB 1119. 1124 (2011), motion for re-
consideration granted 2011 WL 5931998 (2011) (although the Board
deleted the notice-reading remedy contained in its initial decision “in
light of the specific and undisputed facts set forth by the parties and the
Acting General Counsel’s lack of opposition,” the Board expressly
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Although the Acting General Counsel did not seek an
order requiring the Board’s notice to be read aloud, his
failure to do so does not preclude our imposing such a
remedy. See Whitesell Corp., supra; and Allied General
Services, 329 NLRB 568, 569 (1999). The Board has
“broad discretionary” authority under Section 10(c) to
fashion appropriate remedies that will best effectuate the
policies of the Act,
7
and it is well established that reme-
dial matters are traditionally within the Board’s province
and may be addressed by the Board even in the absence
of exceptions.
8
We believe, for the reasons set forth
above, that in this case a notice-reading remedy is neces-
sary to effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Sprain Brook Manor Nursing Home, LLC,
Scarsdale, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening employees with unspecified reprisals
for seeking assistance from New York’s Health and Hu-
man Services Union 1199/SEIU or any other labor or-
ganization.
(b) Threatening employees that if they seek union rep-
resentation they will not receive payments owed to them
in connection with the compliance settlement in Sprain
Brook Manor, 351 NLRB 1190 (2007).
(c) Suspending, discharging, or otherwise discriminat-
ing against any employee for supporting New York’s
Health and Human Services Union 1199/SEIU or any
other labor organization.
(d) Changing the terms and conditions of employment
of its unit employees, without first notifying the Union
and giving it an opportunity to bargain, by
(1) Discontinuing the provision of hot lunches to em-
ployees.
(2) Ceasing on-site check-cashing privileges.
(3) Discontinuing free on-site physical examinations.
(4) Discontinuing medical expense payouts to employ-
ees.
(e) In any other manner, interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Catherine Alonso and Karen Bartko full reinstatement to

adhered to its prior determination that a notice-reading remedy was
justified by the employer’s “extensive record of misconduct”).
7 NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 262–263 (1969).
8 See Schnadig Corp., 265 NLRB 147 (1982); and R.J.E. Leasing
Corp., 262 NLRB 373, 373 fn. 1 (1982) (modified decision).
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(b) Make Catherine Alonso and Karen Bartko whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them in the manner
set forth in the remedy section of the judge’s decision as
amended in this decision.
(c) Reimburse Catherine Alonso and Karen Bartko an
amount equal to the difference in taxes owed upon re-
ceipt of a lump-sum backpay payment and taxes that
would have been owed had there been no discrimination
against them.
(d) Submit the appropriate documentation to the So-
cial Security Administration so that when backpay is
paid to Catherine Alonso and Karen Bartko, it will be
allocated to the appropriate periods.
(e) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful disci-
pline and discharges and, within 3 days thereafter, notify
the employees in writing that this has been done and that
the discipline and discharges will not be used against
them in any way.
(f) Rescind the above-described unilaterally imple-
mented changes in the unit employees’ terms and condi-
tions of employment.
(g) Make employees whole for any losses they may
have incurred as a result of the above-described unilat-
eral changes, plus interest compounded daily.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(i) Within 14 days after service by the Region, post at
its facility in Scarsdale, New York, copies of the attached
notice marked “Appendix.”
9
Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
SPRAIN BROOK MANOR NURSING HOME, LLC 931

tomarily posted. In addition to the physical posting of
paper notices, the notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. If the Respond-
ent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed
by the Respondent at any time since November 9, 2010.
(j) Within 14 days after service by the Region, hold a
meeting or meetings, scheduled to ensure the widest pos-
sible attendance, at which the attached notice is to be
read to the employees by Respondent’s owner, Robert
Klein, or Administrator Shlomo Mushell or, at the Re-
spondent’s option, by a Board agent in the presence of
Klein or Mushell, with translation available if the Re-
gional Director determines that the presence of an inter-
preter is appropriate.
(k) Within 21 days after service by the Region, file
with the Regional Director for Region 2 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

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 threaten you with unspecified reprisals
for seeking assistance from New York’s Health and Hu-
man Services Union 1199/SEIU or any other labor or-
ganization.
WE WILL NOT threaten you that if you seek union rep-
resentation you will not receive payments owed to you in
connection with the compliance settlement in Sprain
Brook Manor, 351 NLRB 1190 (2007).
WE WILL NOT suspend, discharge, or otherwise dis-
criminate against you for supporting New York’s Health
and Human Services Union 1199/SEIU or any other la-
bor organization.
WE WILL NOT change your terms and conditions of
employment, including the changes listed below, without
first notifying the Union and giving it an opportunity to
bargain:

(1) Discontinuing the provision of hot lunches to em-
ployees.
(2) Ceasing on-site check-cashing privileges.
(3) Discontinuing free on-site physical examinations.
(4) Discontinuing medical expense payouts to employ-
ees.

WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights listed
above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Catherine Alonso and Karen Bartko full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
WE WILL make Catherine Alonso and Karen Bartko
whole for any loss of earnings and other benefits result-
ing from the discrimination against them, less any inter-
im earnings, plus interest compounded daily.
WE WILL reimburse Catherine Alonso and Karen
Bartko an amount equal to the difference in taxes owed
upon receipt of a lump-sum backpay payment and taxes
that would have been owed had there been no discrimi-
nation against them.
WE WILL submit the appropriate documentation to the
Social Security Administration so that when backpay is
paid to Catherine Alonso and Karen Bartko, it will be
allocated to the appropriate periods.
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 Karen Bartko and the unlawful discharg-
es of Catherine Alonso and Karen Bartko, and WE WILL,
within 3 days thereafter, notify them in writing that this
has been done and that the discipline and discharges will
not be used against them in any way.
WE WILL rescind the above-described changes in unit
employees’ terms and conditions of employment that
were unilaterally implemented.
WE WILL make our bargaining unit employees whole
for any losses they may have incurred by virtue of our
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

unlawful unilateral changes to their terms and conditions
of employment, plus interest compounded daily.
SPRAIN BROOK MANOR NURSING HOME, LLC

Susannah Z. Ringel, Esq. and Moriah H. Berger, Esq. for the
Acting General Counsel.
Jeffery Meyer, Esq. (Kaufman, Dolowich, Voluck & Gonzo,
LLP), for the Respondent.
William Massey, Esq. (Gladstein, Reif & McGinnis), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MINDY E. LANDOW, Administrative Law Judge. The charges
and amended charges in this matter were filed by New York’s
Health and Human Services Union 1199/SEIU (the Union) on
various dates between December 1, 2010, and April 15, 2011.
On December 23, 2011, the Regional Director, for Region 2
issued a complaint and notice of hearing, supplemented by an
amended consolidated complaint and an amendment to amend-
ed consolidated complaint, issued on March 26 and April 10,
2012, respectively (the complaint). As amended, the complaint
alleges that Sprain Brook Manor Nursing Home, LLC. (the
Employer or Respondent) violated Section 8(a)(1), (3), (4), and
(5) of the National Labor Relations Board (the Act) by: threat-
ening employees with unspecified reprisals for seeking assis-
tance from the Union; threatening employees that if they sought
union representation they would not receive payments owed to
them in connection with a compliance settlement in Sprain
Brook Manor, 351 NLRB 1190 (2007); discharging Catherine
Alonso; suspending and then discharging Karen Bartko, and by
implementing certain changes to terms and conditions of bar-
gaining unit employees without affording the Union prior no-
tice and the opportunity to bargain over the changes.1 Re-
spondent filed answers to the complaint and amendments there-
to denying the material allegations contained there. A hearing
was held before me in New York, New York, on May 7 and 8,
2012.
On the entire record, including my observation of the de-
meanor of the witnesses,2 and after considering the briefs filed
by the Acting General Counsel (hereafter referred to as the

1 These are: discontinuing the practice of providing onsite check
cashing services to employees; discontinuing its practice of providing a
free hot lunch to employees; discontinuing its practice of providing free
onsite physical exams and tuberculosis (PPD) tests to employees, and
discontinuing payments to those employees who chose not to enroll in
the Employer’s health plan to compensate them for medical expenses.
2 In reaching my findings regarding the credibility of witnesses, I
have considered their demeanor, the content of the testimony, whether
or not it was corroborated or refuted by other reliable evidence, the
inherent probability of the testimony and the record as a whole. In
certain instances, I credited some, but not all, of what the witness said. I
note, in this regard, that “[N]othing is more common in all kinds of
judicial decisions than to believe some and not all” of the witness’
testimony. Jerry Ryce Builders, 352 NLRB 1262 fn. 2 (2008), citing
NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950)
revd. on other grounds 340 U.S. 474 (1951); J. Shaw Associates, LLC,
349 NLRB 939, 939–940 (2007).
General Counsel) and Respondent,3 I make the following
FINDINGS OF FACT
I. JURISDICTION
Based on the record and the stipulations of the parties, I find
that Respondent, a corporation, operates and maintains a nurs-
ing home in Scarsdale, New York, where annually, in the
course and conduct of its business operations, it derives gross
revenues in excess of $100,000 and purchases and receives
goods and products valued in excess of $50,000. The record
establishes that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
In June 2006, after a Board-conducted election, the Union
was certified as the exclusive collective-bargaining representa-
tive of a unit of the following employees:

All full-time and regular part-time and per diem non-
professional employees including licensed practical nurses,
certified nurses’ aides, geriatric techs/activity aides, house-
keeping employees, laundry employees/assistants, dietary
aides, and cooks employed by the Employer at its facility lo-
cated at 77 Jackson Avenue, Scarsdale, NY, but excluding all
other employees, including office clerical employees, manag-
ers and guards, professional employees and supervisors as de-
fined by the Act.

Subsequently, the Employer tested the Union’s certification
and on September 29, 2006, the Board granted the General
Counsel’s motion for summary judgment and ordered Re-
spondent, upon request, to bargain with the Union as the exclu-
sive representative of bargaining unit employees and, if an
understanding is reached, embody the terms and conditions of
employment of such employees in a signed agreement. On
December 6, 2006, the Board granted the General Counsel’s
motion for summary judgment and ordered the Employer to
provide certain information to the Union.
Thereafter, in Sprain Brook Manor Nursing Home, LLC, 351
NLRB 1190 (2007) (Sprain Brook 2007), the Board found that
the Respondent had committed certain unfair labor practices
including unlawfully interrogating employees, surveilling em-
ployees, calling the police on the Union and its supporters,
telling employees that it was futile to support the Union, and
unilaterally increasing wages. In addition, it was found that
Respondent had unlawfully discharged two employees, includ-
ing Alonso, and had reduced the overtime hours of three em-
ployees including Bartko and Union Delegate Clarissa Noguei-
ra.
Before the Board Order issued, United States District Judge

3 The General Counsel filed a motion to strike portions of Respond-
ent’s posthearing brief, asserting that it made representations of fact
which are unsupported by the record. Although I deny the motion, as
discussed below, I have rejected certain assertions contained in Re-
spondent’s brief which the record fails to substantiate.
SPRAIN BROOK MANOR NURSING HOME, LLC 933

Gerard E. Lynch ordered Respondent to reinstate Alonso pur-
suant to proceedings brought under Section 10(j) of the Act.4
Subsequent to the Board Order in Sprain Brook 2007, Re-
spondent entered into a backpay stipulation which provided for
installment payments to the five employees who had suffered
adverse employment consequences including Alonso, Bartko,
and Nogueira. This backpay stipulation was executed on behalf
of Respondent by the then-and current-owner of the facility,
Robert Klein.5 Beginning on January 4, 2010, Alonso received
an initial monthly payment, including interest of $7,767.20,
with declining balances thereafter. The last payment, due De-
cember 5, 2011, was for a total amount of $1,602.75. This
payment significantly exceeded those due to the other employ-
ees.6
B. Bargaining History and Union Activity
As was the case during the period of time when the earlier
cases were being processed, Respondent employs an adminis-
trator to handle its operations. Based upon stipulations entered
into during the hearing, the record establishes that during the
period from September 2010 to September 2011, Michael
Reingold held that position. In June 2011, Shlomo Mushell
began working as a consultant to the facility and in September
of that year he assumed the position of administrator, a position
he continues to hold.7
The parties have yet to reach agreement on an initial con-
tract. The most recent face-to-face negotiations were held in
June 2010. The Union was represented in negotiations by its
vice president, Greg Speller, and contract administrator, Adrian
Trumpler. Several employees, including Alonso, Bartko, and
Nogueira, attended negotiations as well. Respondent was repre-
sented by various officials including its counsel, Jeffrey Meyer,
and, on occasion, Reingold.
Since its certification, the Union has engaged in certain tac-
tics in an attempt to keep employees engaged and apprised of
what is going on. Among these are so-called “shift change visi-
bilities” which consist of meetings between union staff and
employees held during the period from approximately 2 to 4
p.m., when the morning shift employees are leaving and the
afternoon-shift employees are arriving at work. These were
held at the entrance to the facility parking lot. Both Alonso and
Bartko attended such meetings, which were held in plain view
and visible to anyone looking out from the facility or its win-
dows.
In addition, the Union sponsored an informational picket at
the facility on November 23, 2010, from 2 to 4 p.m. In addition
to Union Representatives Speller and Trumpler, a number of
employees attended this event including Alonso, Bartko, and
Nogueira. Although Bartko was on vacation at the time, she

4 Mattina v. Sprain Brook, Case No. 06 Civ. 4262 (S.D.N.Y.) Orders
issued July 5 and October 12, 2006.
5 Klein, who was subpoenaed to appear by counsel for the General
Counsel, failed to do so.
6 The backpay stipulation also provides that Respondent shall submit
checks for the monies owed to Region 2, and that it shall make appro-
priate withholdings from the wage payments for each discriminatee.
7 Moshell was the sole representative of the Respondent called to
testify in this proceeding.
returned early to attend the event. The picketers marched in an
oval, carried signs, and chanted various slogans. According to
witness testimony, a manager named Eric took photographs of
the event on his cell phone from a spot near the kitchen en-
trance and Owner Klein observed the event from approximately
25 yards away.
The evidence further establishes that Bartko served as a un-
ion delegate until the time of her discharge.
C. The Discharge of Catherine Alonso and Alleged
Violations of Section 8(a)(1)
Alonso has worked for the Employer for 22 years, initially as
a nursing assistant and then in the housekeeping department.
During this time she has had a variety of assignments in the
facility. For the year or so prior to her 2010 discharge, Alonso
was assigned to clean the ground floor which included the lob-
by of the facility, various hallways, the resident dining room,
six bathrooms, and the facility offices. This is also where the
administrator’s office is located.
On November 9, 2010, at about 11 a.m., Reingold sum-
moned Alonso to his office for a meeting. Reingold initially
asked Alonso when she was going to retire. When Alonso re-
plied that she had no intention of doing so, Reingold told her
she was being let go, specifically because the men’s room was
dirty and there was urine on the toilet seat. As Alonso testified,
Reingold had a paper in his hand and he wanted her to sign it.
Reingold told her that if she did so, she would receive 5 weeks
of pay, unemployment, and the money coming to her. Alonso
asked if she could leave the room to get Nogueira and her read-
ing glasses, and Reingold responded that if she left the room
she would really have trouble and would get nothing. Alonso
signed the paper without reading it. At the hearing she asserted
that she had not read the document prior to signing it.8
The document which Alonso admitted signing, dated No-
vember 9, 2010, states as follows:

I Catherine Alonso am resigning my position at Sprain Brook
Manor. I understand that I will receive 4 weeks compensation
as a reward for my years of service. I will also be paid for this
week ending November 12th. I will receive any time owed to
me up to the 12th of November 2010 with regards to vacation
or sick time that I have accrued.

After she signed the paper, Reingold told Alonso to return on
Friday and he would give her the money that she was owed.
On cross-examination, Respondent sought to adduce evi-
dence from Alonso that when Reingold referred to “money that
was coming to [her],” he was referring to her accrued vacation
and sick time rather than payments due to her pursuant to the
backpay stipulation. Her testimony in this regard is as follows:

8 Alonso’s testimony is as follows:
Q. [By counsel for Respondent] Ms. Alonso, if you could
take a look at that document please? Once you’ve reviewed it
please let me know.
A. Oh. I never saw this, never
Q. Is that your signature on it?
A. That’s my signature.
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Q. [by counsel for Respondent] He said that to you?
Isn’t it possible that he could have meant the vacation and
sick time that you had accrued that was coming to you?
A. I don’t know if that’s what it meant.
Q. You don’t know?
A. No
Q. So you don’t know what he meant by saying you
had money coming to you?
A. Oh yes. He said—yes, I knew that. That I had the
money coming to me from the old case.
Q. Well, how’d you know it was from the old case?
A. It had to be. That was the only money I had coming
to me.
Q. You didn’t have accrued vacation or sick time?
A. Yeah, I guess I did. I don’t get that either.
Q. And that would have come to you as well, right?
A. Yeah.
Q. Right. Once your employment ended on November
9, 2010, did you receive any checks?
A. Yes, I received. . .
Q. And do you recall what those checks were for?
A. For the money that I had from the old case.
Q. It came directly from Sprain Brook to you?
A. Yes.
Q. Okay. Are you sure?
A. I’m—yeah, I’m sure.
Q. How’d you get the other checks from the previous
case?
A. What other check?
Q. From the previous case.
A. From the Labor Board. I think it was from the La-
bor Board.
Q. Those would come directly from the Labor Board?
A. Yeah.
Q. But you’re saying now that a check coming direct-
ly from Sprain Brook was for the same case?
A. I don’t know. I’m not sure now.

No records were produced by the Employer to establish that
Alonso had, in fact, received payments for severance pay or
any accrued or vacation time or to contradict the express terms
of the compliance settlement.
After meeting with Reingold and learning of her discharge,
Alonso sought out Nogueira who was working in the laundry
room. Alonso told her she had just been fired and that Reingold
told her he had found a dirty toilet. As Nogueira testified, she
asked why Alonso had not come to get her, and Alonso replied
that Reingold had told her that if she left the room she would be
sorry. She said that she had signed a paper. When Nogueira
asked what paper, Alonso could not respond. She said she had
wanted to leave the room to get Nogueira and her glasses, but
that Reingold would not let her.
Nogueira returned to Reingold’s office with Alonso, and
asked him why he was firing her. Reingold stated that he had
found the toilet dirty and it was done and over with. Nogueira
stated that Reingold could not fire Alonso due to a dirty toilet
and asked why he had not called for a union representative, and
that Alonso deserved that. Reingold replied that the employees
did not deserve union representation and that if Nogueira want-
ed to make this an issue, she would have to schedule an ap-
pointment and bring in a union representative. At this point,
Reingold was appearing very annoyed, and Alonso said that
Nogueira should not get herself into trouble and they should
leave, which they did.
On Friday, Alonso returned to Reingold’s office, as instruct-
ed, along with another discharged employee, Pat Miller. The
record does not contain any evidence regarding the reasons for
the discharge of this second employee.9 Alonso’s testimony of
what occurred at this second meeting is unclear and her re-
sponses to certain questions from counsel for the General
Counsel indicate that she has conflated certain events from the
first meeting with this one. In any event, although Alonso ini-
tially testified that she signed a paper on this occasion as well,
there is no evidence of a second signed document in the record.
D. Alonso’s Work Record
On cross-examination, Respondent sought to adduce evi-
dence regarding Alonso’s work history. Her memory of these
events was at times vague and incomplete although she did
identify her signature on one written warning. Alonso also ad-
mitted receiving a prior warning for not properly cleaning, but
could not recall when that occurred or who had issued the
warning. Alonso also acknowledged that she had been told on a
few other occasions that she was going to be written up for not
properly performing her duties. There was one occasion when
she was assigned to clean the refrigerator and did not fully
complete the task in the time allotted along with her other as-
signed duties. Alonso acknowledged being suspended for 1
day, but could not recall why. She asserted that Housekeeping
Director Michael Sanfratello never spoke with her about
properly distributing supplies and did not recall receiving an in-
service training for this matter. Alonso also stated that she did
not recall refusing to sign any disciplinary action form which
was presented to her.
The contents of Alonso’s personnel file, contains the follow-
ing disciplinary notices:10

• September 21, 2009—1st Warning for unsatisfactory work
Upon inspection, Room 410 was found to be dusty on the
lamp and the night tables. There was also debris on the
floor, indicating the room had not been swept properly.11

• October 19, 2009—2nd warning for unsatisfactory work
Cathy Alonso was assigned to work on first floor. One of
primary responsibilities of this assignment is cleaning lob-
by coffee tables and end tables. Prospective resident’s

9 On cross-examination, Alonso was asked about the reasons for
Miller’s termination. She replied that she did not know the reasons for
the discharge and that, although she has spoken with Miller since that
time, the two have not discussed the issue. Respondent failed to offer
any evidence as to why Miller was discharged.
10 Although Administrator Moshell testified that these notices were
maintained in Alonso’s file he had no personal knowledge of the under-
lying incidents and could not specifically identify either the signatures
on the notices or the identity of the individuals whose signatures appear
there.
11 Although Alonso did not sign this notice, it is signed by Nogueira
in the space for “union representative’s signature.”
SPRAIN BROOK MANOR NURSING HOME, LLC 935

family noticed dust and decided not to admit their family
member as a resident.12

• October 26, 2009—warning for unsatisfactory work
Cathy Alonso was assigned to work on the first floor.
One of the primary responsibilities of this assignment is
to clean visitors (sic) bathrooms. Upon checking the
bathroom at 3 pm, the bathroom had no toilet paper or
paper towels.13

• October 28, 2009—warning
Cathy Alonso was distributing supplies throughout the
facility. Upon checking, she did not put the right
amount on each floor.14

• November 21, 2009—3 day suspension:
On Saturday, November 21, 2009, at approximately 9:45
a.m., Cathy Alonso was asked by Michael Sanfratello, Di-
rector of Maintenance and Housekeeping, to clean the re-
frigerator in the pantry closet in addition to her other
scheduled tasks and duties. Upon inspection at 1:30 p.m. it
was noted that the assigned tasks had not been performed.
Also, debris was found in the corridors and the resident’s
bathroom in Room 310 was dirty. The Director began to
search for Ms. Alonso to address these issues and found
her sitting down in the residents’ day room on an unsched-
uled break. She had failed to carry out her assigned tasks
and duties.15

For the following year, Alonso had no further discipline.
There is a notice of termination, apparently prepared by
Reingold relating to the events of November 9, 2010, which
states as follows:

• I went to the mens [sic] room in the locker room, the toilet
had blue cleaner in it, so it had been freshly cleaned. But
the toilet seat has dried urine all over it, the floor was dirty.

This disciplinary notice further states that the employee re-
signed. It was not signed by Alonso or witnessed by any other
individual.
E. The Discharge of Karen Bartko
1. Bartko was accused of improperly taking juice from
Respondent’s facility
On February 22, 2011, Reingold approached Nogueira while
she was working in the laundry room and asked her, regarding
Bartko, “[I]s she one of [your] people?” Initially, Nogueira did
not answer because she was confused as to what Reingold
meant. He inquired again, and Nogueira replied in the affirma-
tive, assuming that Reingold was referring to her status as a
union delegate. Reingold told Nogueira that Bartko had been
seen leaving the facility with two containers of cranberry juice
and had come back without them. Nogueira informed Reingold
that Bartko goes outside for her break and he replied that was

12 This notice was signed by both Alonso and Nogueira.
13 Neither Alonso nor Nogueira signed this warning.
14 Alonso did not sign this warning. Although it appears there is a
witness, the record does not indicate who this might be.
15 This notice was not signed by either Alonso or by any union rep-
resentative.
impossible as Bartko had returned in a matter of seconds.
Nogueira stated that she would go speak with Bartko regarding
the matter. Reingold stated that he wished to see both of them
in his office.
Nogueira went to where Bartko was working and asked her
about the incident. She confirmed that she had gone outside
with cranberry juice and that she had been on her lunchbreak.
Nogueira told Bartko that Reingold wanted to see them in his
office.
As both Bartko and Nogueira testified, Bartko does not avail
herself of the lunch that is offered to employees; nor does she
eat in the facility. She brings her lunch and obtains either milk
or juice from the kitchen and goes out to her car to eat. On the
day in question, a kitchen employee gave her two 4 oz. contain-
ers of juice, although she generally gets only one. She also was
late going on her break and returned to the facility quickly for
that reason.
Before going to Reingold’s office, Bartko, along with
Nogueira, went outside and Bartko retrieved from a garbage
container a small plastic bag containing a banana peel and two
empty juice containers. When the two women went into
Reingold’s office, Bartko showed him the plastic bag and stated
that she had been outside on her break. Reingold replied that
employees were not provided with juice. Bartko stated that she
was given juice because she brings her own lunch. Reingold
asked who had given the juice to her, and Bartko replied that it
was a kitchen employee. Reingold stated that he would check
the surveillance camera and that both Bartko and the employee
who had provided her with the juice would be written up.
Nogueira protested that employees would be written up over
mere ounces of cranberry juice. Reingold replied that he had
made clear that nobody is supposed to obtain anything from the
kitchen. Bartko stated that she had always gotten either milk or
juice because she brought her own lunch. Reingold’s reply was
to the effect that, if he felt like having a steak, would it be OK
for him to do so? Nogueira replied that he was comparing a
steak to 4 ozs. of cranberry juice. Bartko responded that em-
ployees provided with water, which also cost something to the
facility, but she was cut off as she made this argument. Bartko
also offered to replace the juice, but Reingold rejected this of-
fer, stating that the juice had to be Kosher.
Reingold then summoned Cameron Wharton, Respondent’s
director of dietary services into the meeting. Reingold asked
him why his employees were giving out juice and stated that no
one was supposed to be getting anything from the kitchen. Ini-
tially Wharton was silent. Wharton then confirmed that Bartko
did not take the lunches that were provided to employees and
that the kitchen staff provided her with juice or milk. Reingold
reiterated that employees were not supposed to be getting any-
thing from the kitchen. There was also a discussion of the Em-
ployer’s lunch policy and Nogueira stated that any changes
should be discussed with the Union. 16
Although Reingold had threatened Bartko with discipline, no

16 As will be discussed below, in December 2010, Respondent had
distributed a memorandum to its employees advising them that they
would no longer be receiving hot lunches but would be provided with a
sandwich and salad.
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

action was taken at this meeting, and Reingold stated that he
would consider what to do next.
According to Nogueira, other employees including the recep-
tionist, nurses, and secretaries have received drinks from the
facility’s kitchen without adverse consequences.
2. Bartko’s discharge
The main entrance to Respondent’s facility has two main
doors separated by a vestibule. On March 4, 2011, Bartko was
on her way out of the facility as Reingold was entering. Bartko
neglected to hold the door for Reingold and the two passed
each other in the vestibule. Reingold asked whether Bartko held
doors for people. She did not respond. According to both
Nogueira and Bartko, the doors each have a bar which prevents
slamming or sudden closing.
Reingold apparently took offense at Bartko’s actions and
came to Nogueira, who was working in the laundry room, and
accused Bartko of slamming the door in his face. Nogueira
replied that this was not possible as the doors have bars on the
top which cause them to close slowly. Reingold appeared an-
noyed and stated that he would not be subjected to that and
wanted both Nogueira and Bartko in his office. Nogueira went
outside to find Bartko, as she surmised that the employee was
on her break. While outside the facility, Nogueira heard knock-
ing on the window and saw Reingold gesticulating for them to
come inside. Reingold then proceeded to the front door and,
according to Nogueira, was yelling that he wanted Trumpler.
Nogueira asked whether Trumpler was coming and Reingold
stated that he had not answered the phone, so he left a message.
He then instructed the two employees to report to his office.
Reingold stated that he was going to write Bartko up and send
her home for the day, and that he would pay her for the day if
he had to, but she should leave the facility. According to both
Bartko and Nogueira, Reingold was yelling at them. Bartko
asked what she had done. She was asked whether she held
doors for people. Bartko replied that while she would hold the
door for others she would not do so for Reingold. Bartko ar-
gued that she was being “set up.” When Reingold told her she
was being sent home, Bartko replied that he was the one who
should go home.
Reingold summoned a nearby office employee, identified in
the record as “Gwen,” to be a witness to the meeting, and
Reingold proceeded to record Bartko’s remarks. Reingold told
Bartko to keep talking, and that she was burying herself.
When Reingold told Bartko that she was being sent home,
Nogueira replied that Bartko speaks up for herself, her cowork-
ers, and the residents and that was something that is not liked.
Bartko stated that Reingold was just hurting the residents as
there were only three CNAs on duty that day, and now there
would be only two.
Because Reingold did not otherwise specify how long Bartko
would be suspended for, Nogueira assumed that it was for that
day. While walking Bartko to the parking lot, Nogueira advised
Bartko to go home, and return on her next regularly scheduled
workday.
The events in question took place on a Friday. Bartko was
next scheduled to return to work on Sunday, March 6, which
she did. She worked her full shift without incident. After she
returned home for the evening, at about 5 p.m., the secretary to
the director of nursing called her and told her that, according to
instructions from Reingold, she was not to return to work until
further notice.
Subsequently, Union Vice President Speller called Reingold
seeking to discuss Bartko’s employment status. His call was
returned by Respondent counsel Meyer. According to Speller,
the Union thought she had been suspended and wanted to get
her back to work. Meyer initially told Speller that the Employer
was willing to take Bartko back but subsequently advised him
that he had spoken with someone else and the decision was that
she would not be returned to work.
On cross-examination, Bartko denied telling Reingold that
she did not have to answer to him or that he could not tell her
what to do. She also denied telling Reingold that he did not
have the authority to send her home. She also specifically de-
nied slamming the door on him. In addition, according to
Bartko, Trumpler never contacted her to instruct her not to
report to work on the Sunday following the incident. Bartko
also stated that she did not recall seeing Reingold carrying
packages as they were passing each other in the vestibule.
F. The Alleged Unilateral Changes
1. The December 14, 2010 memorandum to employees
Respondent’s employees historically received a hot lunch on
a daily basis. This was a practice which had been in effect for
decades and had existed long prior to the Union’s certification.
The lunch served to employees consisted of the food that was
prepared for and served to residents and typically consisted of
such items as chicken, mashed potato, and broccoli, or meat-
balls and spaghetti.
On December 14, 2010, Reingold sent a memorandum to
employees notifying them that: “[a]s of January 1st hot lunch
will no longer be provided. In the meantime we will be offering
a sandwich and a salad, this will be available in the staff dining
room.”
According to Nogueira, sandwiches and salad were served to
employees in lieu of a hot lunch for a period of approximately 6
months, at which time the Employer resumed its original prac-
tice of serving hot lunch to employees.17
Respondent argues that it maintained a practice of offering
hot lunches to its employees only when excess food remained
after residents were fed. There is no testimonial or other evi-
dence in support of this contention. To the contrary, according
to Nogueira, this was not the case and there was always suffi-
cient food for the work force.
In the same memorandum, employees were advised that the
Employer was “notified by the check cashing company that
they will no longer offer on site check cashing.” As recounted
by employee witnesses, an outside firm would come to the
facility on a weekly basis during working hours and employees
would be able to cash their checks for a fee. This practice had
been in effect for about a year prior to its termination. Adminis-
trator Moshell testified that the check cashing company had no

17 As noted above, Alonso was discharged prior to this change and
Bartko was unaffected by it as she brought her own lunch on a daily
basis.
SPRAIN BROOK MANOR NURSING HOME, LLC 937

contractual relationship with Sprain Brook and decided of its
own volition to cease providing such services as it was not
profitable. However, as noted above, these events occurred
before Moshell began his employment at the facility and he did
not otherwise state the basis for his knowledge of these events.
As Speller and Nogueira testified, no prior notice of either of
the above-noted changes was ever provided to the Union.
2. Medical services
Respondent’s employees are required to have annual physi-
cal examinations and tuberculosis (PPD) tests. In the past, these
services were offered to employees onsite, free of charge. On a
certain date announced to employees, a weekend RN supervisor
referred to in the record as “Jackie,” set up a station in the resi-
dent dining room. There she would meet with employees, take
their blood pressure and temperature, perform the PPD test, and
otherwise check their general health. Forms would be complet-
ed for employees to submit certifying that they had been exam-
ined and given the requisite test.
On February 18, 2011, employees received a memorandum
from Reingold, stating as follows:

All employees are required to submit their annual PPD &
Physical Exam on or before MARCH 25, 2011 completed by
your Physician. If you had your PE done within the last three
(3) months, you may not obtain a new PE but a copy should
be submitted to the Nursing Department.

All employees should have their PPD done except for those
with a history of positive (+) PPD, in which case an x-ray
must be submitted and attached to your Physical Exam.

All Physical Exam results will be submitted to the DNS for
the Medical Director to review and sign.

No employee will be allowed to come to work without his/her
annual PE after MARCH 25, 2011.

Employee Screen / PE form is available at the nursing de-
partment.

For any questions please direct it to the DNS or any RN su-
pervisor.

For your strict compliance.

The testimony of witnesses called by the General Counsel
establishes that there was no prior notice of this change afford-
ed to the Union, and Respondent has adduced no evidence to
the contrary.
In support of its contention that the foregoing does not repre-
sent a unilateral change, Respondent relies upon the testimony
of the General Counsel’s witnesses that, since the memorandum
was distributed in February 2011, they did not take steps to
affirmatively investigate whether such services would continue
to be available to them at the facility.
Respondent further relies upon Moshell’s testimony as fol-
lows:

Q. [by Respondent’s counsel] Mr. Moshell, with re-
gard to employee PPDs and physical exams, are you aware
or do you have knowledge of those exams currently being
offered by Sprain Brook at no cost to its employees?
A. Yes, we give by our physicians—our staff.
Judge Landow: I’m sorry? I couldn’t hear you.
A. We give it by our staff.
Judge Landow: Staff?
A. They are, yeah.
Q. [by counsel for Respondent] And to date do you
know if any employees have taken up that offer with the
company?
A. Yes.
Q. Okay. And do you recall the staff members, wheth-
er they be RNs or doctors or who performs these services
on behalf of Sprain Brook?
A. Yes.
Q. And who are they?
A. Our physicians, our RNs, anybody who requests
somebody for a physical.
Q. And that has been the practice at Sprain Brook
since you have taken over as the administrator?
A. Correct.
Q. And prior to—to the extent you know, prior to—
well, even during the tenure of consulting for the compa-
ny, is it your understanding that Sprain Brook offered
PPDs and physicals at no [cost] to employees in 2011 as
well?
A. Yes.
Q. And do you know if employees, in 2011, took up
that offer?
A. Yes, they have.

3. Medical “pay outs”
For a period of 5 or 6 years continuing until late 2011, Re-
spondent had offered its employees the option of receiving a
monthly payment in lieu of participating in its health plan. The
amounts of the payments were tied to and increased according
to the cost to the Respondent of the health insurance those em-
ployees were opting not to receive. Nogueira, who availed her-
self of this option, testified that she received a monthly sum.
Her payroll record shows that the final monthly pay out she
received amounted to approximately $350.
On November 21, 2011, Respondent issued the following
memorandum to employees:

Due to recent changes in health care legislation, Sprain Brook
Manor Nursing Home is unable to continue offering a “medi-
cal expenses” payout as has been done in the past.

However you are afforded the opportunity to enroll in our cur-
rent health plan as administered by Oxford Health Plans.
Please see Israel in the business office for enrollment options
and forms.

There is no record evidence as to what changes in “health
care legislation” would have necessitated such a change.
In its defense to these allegation of the complaint, Respond-
ent argues that the Respondent sought to negotiate such chang-
es with the Union but was unable to do so because there have
been no face-to-face negotiations between the parties since
June 2011. Respondent further relies upon the fact that Speller
admitted that the Respondent had contacted him, via letter,
about health insurance premiums and the subcontracting of the
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

laundry department.18
There is, however, no evidence that Respondent provided the
Union with any notice or an opportunity to bargain over the
specific issue of the elimination of medical payouts for its unit
employees.
III. ANALYSIS AND CONCLUSIONS
A. The Alleged Violations of Section 8(a)(1)
The complaint alleges that Respondent, by Reingold, threat-
ened employees with unspecified reprisals for seeking assis-
tance from the Union and further threatened employees that if
they sought union representation they would not receive pay-
ments owed to them in connection with the compliance specifi-
cation in Sprain Brook Manor, 351 NLRB 1190 (2007) (Sprain
Brook 2007). Both of these complaint allegations stem from the
meeting between Reingold and Alonso held on November 9,
2010.
Section 8(a)(1) makes it unlawful for an employer to “inter-
fere with, restrain, or coerce employees in the exercise” of their
Section 7 rights. For the purposes of Section 8(a)(1), the motive
for the employer’s actions is irrelevant; if the action, or se-
quence of actions, reasonably tends to interfere with the free
exercise of rights under the Act, it is unlawful. See Naomi Knit-
ting Plant, 328 NLRB 1279, 1280 (1999).
In defending against these allegations of the complaint as
well as those relating to Alonso’s discharge, Respondent seeks
to discredit her testimony. In support of these contentions, Re-
spondent argues that Alonso is not credible due to her “outright
denials regarding conversations with Reingold,” her “inability
to recall basic facts concerning paychecks and compensation
sources,” and the fact that Alonso allegedly denied the exist-
ence of her “resignation letter” while admitting her signature
was on that document.
As an initial matter, I must state that Alonso was a witness
who demonstrated significant deficits in her recall of certain
events; in particular, the specific details regarding her prior
history of discipline. In this regard, however, it should be noted
that prior to her discharge on November 9, 2010, Alonso had
received no discipline for more than 1 year. At the time she was
called to testify in this matter, well over 2 years had elapsed
since any prior discipline had issued. Although Alonso denied
receiving or reviewing certain disciplinary notices, she candidly
admitted that her superiors had brought to her attention certain
underlying issues with her performance, as she recalled them.
She also acknowledged her signature as it appeared on certain
documents, described above. As for Alonso’s inability to recall
the specifics of her backpay compensation by Respondent, I
note that the backpay stipulation signed by Klein specifically
states that checks are to be submitted by Respondent to the
NLRB. Thus, any confusion over the source of Alonso’s back-
pay may well be attributable to the fact that while Alonso re-
ceived checks drawn on Respondent’s account, they were pro-

18 Apparently, the parties agreed that the one remaining employee in
that department, Nogueira, be transferred into the housekeeping de-
partment with no change to her working hours or rate of compensation.
There is no evidence of any agreement with regard to the issue of
health insurance premiums.
vided to her through the auspices of the NLRB.
In any event, notwithstanding my observations about
Alonso’s inability to recall certain events, I find her description
of her interaction with Reingold on November 9, 2010, to be
detailed, consistent and credible. It is inherently likely that the
events of this encounter would stand out in Alonso’s recollec-
tion, while other less significant events may have faded. More-
over, Alonso’s recollection of this meeting largely comports
with the account she told Nogueira shortly thereafter. As she is
a current employee, I find there is good reason to credit
Nogueira. See Advocate South Suburban Hospital, 346 NLRB
209 fn. 1 (2006), quoting Flexsteel Industries, 316 NLRB 745
(1995), affd. mem. NLRB v. Flexsteel Industries, 83 F.3d 419
(5th Cir. 1996) (current employees are likely to be particularly
reliable because these witnesses are testifying adversely to their
pecuniary interests); see also American Wire Products, Inc.,
313 NLRB 989, 993 (1994) (current employee providing testi-
mony adverse to his employer is at risk of reprisal and thus
likely to be testifying truthfully). Moreover, as noted above,
Alonso’s account of events regarding her interaction with
Reingold is unrebutted. As has been noted, while it is possible
for the Board to dismiss or disregard uncontroverted testimony,
it may not do so without a detailed explanation. See Missouri
Portland Cement Co. v. NLRB, 965 F.2d 217, 222 (7th Cir.
1992).
Aside from the fact that Alonso’s testimony regarding her in-
teractions with Reingold is unrebutted, and corroborated in
large measure by Nogueira, I found both of these witnesses to
demonstrate an impressive and candid demeanor while on the
witness stand. Contrary to any suggestion by Respondent, I did
not find Alonso’s failure of memory to be a product of dissem-
bling or an attempt to evade questioning; rather, she frankly
acknowledged facts which would be adverse to her interests in
this proceeding and conceded her failure to recollect certain
matters. In sum, I find that Respondent has failed to show any
persuasive reason to disregard Alonso’s uncontested version of
events.
Thus, I credit Alonso’s testimony that Reingold told her that
if she left the room to seek union representation she would have
“trouble.” As the Board has found, a threat need not be specific
in order to be found violative of Section 8(a)(1) of the Act. SKJ
Jonesville Division, L.P., 340 NLRB 101 (2003) (and cases
cited there). In a variety of contexts the Board has concluded
that raising the specter of “trouble” in conjunction with or
stemming from union activity is conduct which reasonably falls
within the prohibitions of Section 8(a)(1). See, e.g., U. S. Steel
Corp., 279 NLRB 16 fn. 1 (1986); Perth Amboy Hospital, 279
NLRB 52 fn. 2 (1986); Parkview Hospital, Inc., 343 NLRB 76,
81 (2004) (threatening an employee with “trouble” for engag-
ing in union activity held to be a threat of unspecified repris-
als). Here, in agreement with the General Counsel, I find that
Reingold’s admonition to Alonso that if she left their meeting
to seek union representation she would have “trouble” is a
threat of unspecified reprisal which violates Section 8(a)(1) of
the Act.
The General Counsel has further alleged that Reingold
threatened Alonso that if she sought union representation she
would not receive payments owed to her in connection with a
SPRAIN BROOK MANOR NURSING HOME, LLC 939

prior Board order and backpay stipulation in violation of Sec-
tion 8(a)(1). Alonso testified that Reingold sought to induce her
to sign a paper by promising her that, if she did so, she would
receive the “money coming to her” as well as other benefits
such as severance pay and accrued vacation and sick leave
payments. When Alonso asked for permission to leave the of-
fice to retrieve her eyeglasses and consult with a union repre-
sentative, Reingold told her that if she left the room not only
would she have trouble, but that she would get nothing. As
noted above, Respondent argues that Alonso’s account is not
worthy of credit, a contention I have rejected. Respondent also
contends, without any direct evidentiary support, that to the
extent Alonso is credited, Reingold was referring to other pay-
ments, e.g., severance, vacation, and/or pay that had been
promised to Alonso in the meeting with Reingold and not to
any sums of money owed to her by virtue of her prior unlawful
discharge. At most, Respondent has shown that Alonso demon-
strated some uncertainty in her testimony, as set forth above,
about what Reingold was referring to. However, the evidence is
also clear that at this point in time, Alonso was continuing to
receive backpay payments pursuant to the compliance stipula-
tion.
As has been noted above, the test of whether a statement is
violative of Section 8(a)(1) of the Act is an objective, not sub-
jective, one. Under all the circumstances, I conclude that it was
reasonable for Alonso to conclude, as she testified, that when
Reingold told her that if she left the room to seek out Nogueira
she would have “trouble” and “get nothing,” that he was threat-
ening to withhold her backpay. Apart from any other promise
which may have been made by Reingold to induce Alonso to
resign, her backpay was the only specific sum which Respond-
ent clearly owed to her at the time. Thus, under the circum-
stances it would be reasonable for Alonso to conclude, absent
any other clarification, that when Reingold separately refer-
enced the money “coming to her” it was her backpay to which
he was referring. Accordingly, I find that by threatening Alonso
that if she sought union representation she would have trouble
and get nothing, Respondent threatened to withhold Alonso’s
backpay and violated Section 8(a)(1) of the Act. See Baytown
Sun, 255 NLRB 154, 161 (1981).
B. The Discharges of Catherine Alonso and Karen Bartko
Section 8(a)(3) of the Act provides, in pertinent part, that it is
“an unfair labor practice for an employer to discriminate in
regard to hire or tenure of employment or any term or condition
of employment to encourage or discourage membership in any
labor organization.” Section 8(a)(4) provides that it is an unfair
labor practice for an employer “to discharge or otherwise dis-
criminate against an employee because he has filed charges or
given testimony under this Act.”
The General Counsel has alleged that Alonso was discharged
in retaliation for her continuing union support and because of
her prior participation in Board proceedings against the Re-
spondent. It has also been alleged that Bartko was discharged
due to her support for and activities in support of the Union.
Respondent contends that it accepted Alonso’s voluntary resig-
nation or, in the alternative, lawfully discharged her due to her
continued and documented poor performance. Respondent fur-
ther contends that Bartko was discharged due to her disrespect-
ful and insubordinate conduct which included, as Respondent
argues in its brief: “(i) slamming the door in her supervisor’s
face; (ii) her insubordinate and hostile attitude during the meet-
ing with Reingold; and (iii) reporting to work that weekend in
direct contravention of Reingold’s instructions.” Thus, the issue
of the Employer’s motivation is at stake in each instance.
1. The Wright Line factors
Allegations of discrimination which turn on Employer moti-
vation under either Section 8(a)(3) or (4) of the Act are ana-
lyzed under the framework set forth in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). See also NLRB v. Transportation Man-
agement Corp., 462 U.S. 393, 395 (1983); American Gardens
Management Co., 338 NLRB 644, 645 (2002) (Wright Line
analysis applies to claims of discriminatory discharge under
both Sec. 8(a)(3) and (4)).
To establish a violation of Section 8(a)(3) and (4) under
Wright Line, the General Counsel must first show, by a prepon-
derance of the evidence, that the employee engaged in protect-
ed concerted activity, the employer was aware of that activity,
and the activity was a substantial or motivating reason for the
employer’s action. Wright Line, supra; Naomi Knitting Plant,
328 NLRB 1279, 1281 (1999). Proof of an employer’s motive
can be based upon direct evidence or can be inferred from cir-
cumstantial evidence, based on the record as a whole. Ronin
Shipbuilding, 330 NLRB 464 (2000); Robert Orr/Sysco Food
Services, 343 NLRB 1183 (2004); enfd. mem. 179 LRRM
(BNA) 2954 (6th Cir. 2006); Embassy Vacation Resorts, 340
NLRB 846, 848 (2003). The Board has long held that where
adverse action occurs shortly after an employee has engaged in
protected activity, an inference of unlawful motive is raised.
See McClendon Electrical Services, 340 NLRB 613 fn. 6
(2003) (citing La Gloria Oil, 337 NLRB 1120 (2002), enfd.
mem. 71 Fed Appx. 441 (5th Cir. 2003).
As part of its initial showing, the General Counsel may offer
proof that the employer’s reasons for the personnel decision
were pretextual. Pro-Spec Painting, Inc., 339 NLRB 946, 949
(2003); see also Laro Maintenance Corp. v. NLRB, 56 F.3d
224, 229 (D.C. Cir. 1995); Real Foods Co., 350 NLRB 309,
312 fn. 17 (2007) (unlawful motivation demonstrated not only
by direct, but by circumstantial evidence such as timing, dis-
parate, or inconsistent treatment, expressed hostility, departure
from past practice, and shifting or pretextual reasons being
offered for the action). In addition, proof of an employer’s ani-
mus may be based on other circumstantial evidence, such as the
employer’s contemporaneous commission of other unfair labor
practices. Amptech, Inc., 342 NLRB 1131, 1135 (2004). More-
over, should the evidence show that the employer’s proffered
defense is pretextual in nature, the Board has found that the
second prong of the Wright Line analysis is unnecessary. See,
e.g., Relco Locomotives, Inc., 358 NLRB 1205, 1205 fn. 4
(2012); Austal USA, LLC., 356 NLRB 363, 364 (2010).
Once the General Counsel establishes its prima facie case,
the burden of persuasion then shifts to the employer to “demon-
strate that the same action would have taken place even in the
absence of the protected conduct.” Septix Waste, Inc., 346
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

NLRB 494, 496 (2006); Williamette Industries, 341 NLRB 560,
563 (2004); Wright Line, supra. To meet its Wright Line bur-
den, “[a]n employer cannot simply present a legitimate reason
for its action but must persuade by a preponderance of the evi-
dence that the same action would have taken place even in the
absence of the protected activity.” W. F. Bolin Co., 311 NLRB
1118, 1119 (1993), petition for review denied 70 F.3d 863 (6th
Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir. 1996). See also
Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996).
2. Application of the Wright Line standards
As was outlined in Sprain Brook Manor (2007), supra, both
Alonso and Bartko were initial supporters of the Union who
suffered adverse employment consequences as a result of their
protected activities. Alonso was unlawfully discharged, and
Bartko had her overtime hours reduced. They were both owed
backpay compensation as a result of these discriminatory ac-
tions until December 2011.
Continuing into 2010, these employees continued their union
activities, by participating in shift change visibilities and pick-
eting (both of which were not only conducted in plain sight but
actively observed by management) and through their participa-
tion in collective-bargaining negotiations. In addition, Bartko
served as a union delegate for her fellow employees up until her
discharge. Thus, the record is apparent that both Alonso and
Bartko engaged in union activities and that Respondent was
aware of that fact.
I additionally find that the General Counsel has adduced evi-
dence of animus toward the Union generally and toward the
specific activities of these two employees in particular. As an
initial matter, I take administrative notice of and consider Judge
Rosas’ findings in Sprain Brook Manor (2007) to be back-
ground evidence of animus. In arguing that such a finding is not
appropriate, Respondent argues that the prior incidents involv-
ing the employees that serve as the basis for the current claim
of discrimination occurred during a remote period, i.e., 2005–
2007 or 5 to 7 years ago. This assertion, of course, overlooks
the fact that Respondent was obliged to provide backpay pay-
outs to five of its employees, including the two named discrim-
inates here, up to and including the year 2011, and that the
Union engaged in open activities at the site during 2010.
In Opelika Welding, 305 NLRB 561, 566 (1991), the Board
upheld the administrative law judge’s reliance on findings in a
prior case. There, the judge noted that in the prior proceeding
the employer displayed animus against the same type of union
activity that was involved in the subsequent case. Thus, the
judge concluded that the prior findings could be relied upon as
evidence of the employer’s continuing antiunion animus. Here,
as there, the employees in question are engaged in the same sort
of organizational activity, for the same labor organization, that
caused the Employer to retaliate against them initially. Moreo-
ver, although it appears from the record that certain managers
have left and others taken their place, Robert Klein has been an
owner of Respondent throughout the years of the Union’s or-
ganizational drive, certification and the litigation of the earlier
unfair labor practice allegations. He has remained in this posi-
tion during all times relevant to the instant matter. I therefore
find it appropriate to impute animus based upon the evidence
adduced in prior proceedings involving the Respondent here.
See Southern Maryland Hospital, 295 NLRB 1209 fn. 1 (1989);
Kenworth Trucks of Philadelphia, 236 NLRB 1299 fn. 2 (1978)
(and cased cited there).
Furthermore, in addition to any legal presumptions or prior
determinations regarding the Employer’s animus toward its
employees’ union activities, there is independent evidence of
such in the instant record. I draw this conclusion from various
comments made by Reingold, some of which have been found
to constitute independent violations of Section 8(a)(1), as de-
scribed above. Thus, when Alonso was confronted with a de-
mand that she sign what amounted to a letter of resignation, and
requested permission to leave the room to consult with the Un-
ion, she was told that if she left she would have trouble and not
receive what was coming to her. When Nogueira protested
Alonso’s discharge for a dirty toilet and asked Reingold why he
had not called for union representation, Reingold stated that his
employees did not deserve union representation. These com-
ments are direct and contemporaneous evidence of Respond-
ent’s animus toward its employees’ union activities. Addition-
ally, as will be discussed below, I find further evidence of ani-
mus in the circumstances attending the discharges of both
Alonso and Bartko and the pretextual nature of the Respond-
ent’s proffered defenses.
Based upon the foregoing, I conclude that the General Coun-
sel has established the requisite elements of a prima facie case
under Wright Line, with respect to both Alonso and Bartko.
Accordingly, it falls to the Respondent to establish, by a pre-
ponderance of the evidence, that it would have discharged ei-
ther or both of these employees notwithstanding their union or
other protected activities.
a. Alonso
Respondent argues that Alonso was an unsatisfactory em-
ployee with a history of work performance problems. In this
regard, Respondent relies on a series of written warnings main-
tained in Alonso’s personnel file, which document performance
deficiencies for the period from September through November
2009, to justify the discharge of this long-term employee and
active union supporter. Such evidence is unavailing for several
reasons. As an initial matter, as General Counsel notes, after
November 2009, there is no further documentation or evidence
of any subsequent performance problem for 1 year or until
Alonso was summoned to Reingold’s office purportedly for
failing to adequately clean a toilet. In this regard, I note that
Alonso was cross-examined extensively regarding her work
assignments and her testimony that she performed them assidu-
ously is not only credible based on her demeanor but generally
unrebutted, with the limited exception of the 2-month period
noted above.
Further, the record fails to demonstrate that Reingold was
aware of any prior problem with Alonso’s performance. As was
stipulated by the parties, Reingold became the administrator at
Sprain Brook Manor in September 2010, or approximately 10
months after the final 2009 disciplinary notice was issued to
Alonso. There is no evidence that Reingold reviewed Alonso’s
personnel file prior to calling her to their meeting or based his
discipline on her work history. In this regard, Reingold made
SPRAIN BROOK MANOR NURSING HOME, LLC 941

no reference to any prior infraction or problem with Alonso’s
work performance either during the initial meeting between the
two, the meeting subsequently held with Nogueira or, most
tellingly, in the disciplinary notice he prepared to document
Alonso’s termination from service. Moreover, there is simply
no evidence to support Respondent’s assertion, as set forth in
its posthearing brief, that Reingold or any other management
official conducted an audit of the rooms to which Alonso had
been assigned in early November 2010. There is similarly no
evidence of deficiencies in her work performance discovered as
a result of any such audit. To the contrary, the record evidence
supports the conclusion that the sole allegation leveled against
Alonso on the day of her discharge and seized upon by Re-
spondent was Alonso’s failure to adequately clean one toilet.
The record fails to disclose any evidence that Reingold was at
the time, aware of any other problem with Alonso’s work per-
formance. Thus, I find that Respondent’s exhumation of
Alonso’s prior disciplinary notices and its newly-found reliance
upon Alonso’s limited history of performance deficits is a post-
hoc justification for her discharge which supports the conclu-
sion that it is pretextual (and, accordingly, some evidence of
animus).19
As for Respondent’s suggestion that Alonso voluntarily re-
signed, I find that the evidence shows that Reingold induced
Alonso to sign a paper, which she stated she could not read,
through a combination of empty promises20 and threats. The
Board has recognized that coerced “resignations” are properly
viewed as discharges. See, e.g., Federal Screw Works, 310
NLRB 1131 (1993) (Board adopts finding that employees who
were “hustled” into signing resignation agreements were in fact
discharged). Moreover, Respondent has repeatedly confused
the record, at times characterizing Alonso’s separation from
service as a resignation and at others a termination.21 Based
upon the evidence as a whole I conclude that Alonso did not
wish her employment to end and that the termination of her
employment is properly viewed as a discharge.
While there was no immediate precipitating event of union
activity which appears to have prompted Reingold to take ac-
tion against Alonso, the Board has recognized that the elements
of Wright Line do not require that there be a direct link or nexus
between protected conduct and adverse employment action. See
USC University Hospital, 358 NLRB 1205, 1205 fn. 2 (2012)
(citing Mesker Door, Inc., 357 NLRB 591, 592 fn. 5 (2011)).

19 There is similarly no evidence to support Respondent’s contention
that other employees were terminated for similar performance prob-
lems. The record is silent as to the reason for Miller’s discharge, and
there was no evidence presented by Respondent to show that other
employees were treated in a fashion similar to Alonso.
20 There is no evidence to show that Respondent met its promise to
provide Alonso with severance, accrued vacation and sick pay or to
agree to a claim for unemployment benefits. This clearly is evidence
within the control of Respondent and under the circumstances here,
where Respondent has raised these factors to challenge Alonso’s credi-
bility, I conclude that the failure to adduce it supports an inference that
Reingold’s representations were false.
21 By way of example, in his opening statement, Respondent’s coun-
sel referred to Alonso’s, “termination, resignation, however you want to
phrase it.”
Moreover, the Board has recognized that an employer may
watch and wait for an infraction to occur and utilize that as
pretext to discipline an employee based upon animus toward
prior protected conduct. See United Parcel Service, 340 NLRB
776, 777 fn. 10 (2003), and cases cited there. Further, as noted
above, at the time Alonso was discharged, she was still receiv-
ing installment payments from Respondent as a result of her
prior Board case, and testimony in that matter. Those payments
also substantially exceeded those owed to the other employees
involved.
Finally, I note that Alonso was an employee of long tenure
who was assigned to clean some of the most publicly accessible
areas in the facility (e.g., the lobby and dining room) as well as
the offices and rest rooms of the facility’s administrator and
other staff. There her work would have been subject to constant
evaluation, and had there been any continuing insufficiency it is
more likely than not it would have been noted. Thus, Respond-
ent’s argument that she was a substandard employee is belied
by its actions in issuing her work assignments to these heavily-
monitored areas of the facility where she received no discipline
for a period of 1 year prior to her discharge.
Based on the foregoing, I conclude that Respondent has
failed to adduce sufficient evidence to rebut the General Coun-
sel’s prima facie case and to meet its burden of proof to show,
through a preponderance of the reliable, credible evidence that
it would have discharged Alonso notwithstanding her union and
other concerted, protected activities. Accordingly, I conclude
that Respondent discharged her in violation of Section 8(a)(1),
(3), and (4) of the Act.
b. Bartko
Preliminarily, I note that there are several factual assertions
made by the Respondent in its posthearing brief which have no
support in the record. For example, the record fails to establish
that Bartko allowed the door to “slam” onto Reingold. To the
contrary, both Bartko and Nogueira testified that the doors to
the facility have a bar which slows down the rate at which they
close precisely to prevent such an occurrence.22 There is also no
evidence that Reingold was carrying a number of packages at
the time, or that Bartko observed that he was so encumbered.
Similarly, the record fails to establish that Reingold or any
other agent of Respondent advised Union Official Trumpler or
any other union official or agent that Bartko should not report
to work after March 4, 2011. Against this backdrop, I evaluate
Respondent’s proffered defense to Bartko’s termination.
On February 22, 2011, Reingold went to find Nogueira and
asked whether Bartko was one of “her people.” Of course, this
was a gratuitous comment as administrator Reingold must have
been well aware that Bartko, as a CNA, was a bargaining unit
member. And, as noted above, Bartko was also a union dele-
gate. Reingold most certainly would have been aware of this as
well. Accordingly, I conclude that Reingold’s query was a sar-
donic reference to Bartko’s union activities and support. As has
been described above, Bartko had been previously accused of
improperly taking juice and, with Nogueira’s assistance, had

22 This is, of course, inherently probable given the nature of popula-
tion residing at the facility.
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

successfully refuted that claim and received no discipline. At
this time, Reingold made some comments about the change in
the facility’s lunch policy and Nogueira reminded him that any
such changes must be discussed with the Union. As both
Nogueira and Bartko recounted, Reingold demonstrated his
displeasure with these employees during this meeting. In sum, I
conclude that the foregoing events on whole evince animus
toward the Union and its efforts to advocate on behalf of bar-
gaining unit employees.
Against the background of a prior successful intervention on
the part of the Union, 10 days later, Reingold apparently took
offense at the fact that Bartko neglected to hold the door for
him as he was entering, and she leaving the facility. He sum-
moned Nogueira and Bartko to his office where his account of
events was disputed, as Nogueira pointed out that the door was
unable to slam, as he asserted. She also asked some questions
about what Reingold had observed at the time and encountered
his considerable annoyance. As both Bartko and Nogueira testi-
fied, Reingold was yelling at them throughout this encounter.
As has been set forth above, it is undisputed that Bartko re-
acted to Reingold in an intemperate manner.23 In response to
Reingold’s questioning she responded that she would hold the
door for others, but not for him. He then called a subordinate
into the office as a witness and took notes of their encounter,
telling Bartko that she was going to “bury” herself.24 As Re-
spondent acknowledges in its posthearing brief, Reingold, “sent
her home for the day.”25 Bartko impertinently asserted that
Reingold was the one who should be sent home.
Although Respondent also asserts that Bartko was told not to
report back to work until further notice, there is no evidence to
support this specific contention. Rather, the testimony of both
Bartko and Nogueira is to the effect that Bartko was merely
told to leave the facility. The conversation of the two employ-
ees as Bartko was being escorted to her car, demonstrates that
the length of Bartko’s suspension had not been made clear to
either of them at that time. This testimony is generally corrobo-
rated by Union Vice President Speller, who stated that when he
initially spoke with Respondent’s counsel, he was advised that
Bartko would be allowed to return to work, a decision which
was only subsequently reversed.
Thus, absent instructions to the contrary, Bartko returned to
work on her next regularly scheduled day,26 was allowed entry
into the facility and worked her full shift without incident. It
was only after her shift was completed that she was informed

23 The General Counsel argues that Bartko’s conduct should be ex-
amined under the principles of Atlantic Steel Co., 245 NLRB 814
(1979), and its progeny, but fails to identify what, if any, protected
conduct Bartko was engaged in contemporaneous with her “outburst.” I
conclude, on whole, that the General Counsel’s reliance on Atlantic
Steel for these purposes is inapposite.
24 Although the contents of Bartko’s personnel file were subpoenaed
by the General Counsel, these notes were not produced. In fact, there
were no documents produced in response to the subpoena. The General
Counsel makes note that no disciplinary notices were produced alt-
hough clearly encompassed by the subpoena.
25 R. Br., p. 5.
26 Had she not, Bartko might well have been accused of job aban-
donment.
that she should not return to the facility until further notice.
In support of its contention that Bartko was lawfully dis-
charged, Respondent relies on Continental Can Co., 148 NLRB
640 (1964), and Cotwool Mfg. Corp., 115 NLRB 1018 (1956).
Aside from the fact that both these decisions issued prior to the
explication of the Wright Line standards, they are inapposite in
any event. For example, in Continental Can Co., supra at 641,
the trial examiner, affirmed by the Board, concluded that the
evidence showed that the employee in question demonstrated
an “attitude of indifference to his work, insubordination and
insolence toward his superiors.” “Thus, he frequently reported
late to his work station, he spent too much time away from his
work station, he was inattentive while at work and he did not
cooperate with his supervisors and fellow employees.” The
employee was the subject of “a never ending cycle of com-
plaints” and would be “reprimanded on an average of twice per
week.” The employee’s response to these reprimands “tended
to be insolent and insubordinate” resulting in “many angry
arguments” where he and his supervisor “addressed profanities
at one another.” Respondent cannot credulously be attempting
to compare Bartko’s previously spotless employment record to
the one at issue there.27 Respondent further relies upon Davie
Roofing, 341 NLRB 222 (2004). There the Board, reversing the
administrative law judge, found that two employees were law-
fully discharged after they committed safety violations and
insubordinately refused to comply with their employer’s in-
structions that they acknowledge these violations in writing.
What is noteworthy about Respondent’s reliance upon this case
is its acknowledgement and tacit admission that here, as there,
the Respondent has failed to adduce evidence of comparable
situations of similar instances of insubordination for which
employees have been discharged.
Notwithstanding the foregoing, as has been well noted, under
the Act, an employer may discharge an employee for good
reason, bad reason or no reason at all so long as it is not for
union or concerted protected activities. See, e.g., Ryder System,
Inc., 302 NLRB 608 (1991). However, what is at issue here is
not whether the Bartko’s remarks justified Respondent in dis-
charging her, but whether Respondent has shown that they
would have caused her discharge in the absence of her protect-
ed activities.
While it is the case that, in her meeting with Reingold,
Bartko was rude, and perhaps more, the evidence fails to meet
Respondent’s burden of proof to establish that Reingold made a
determination to discharge her based upon that behavior. Ra-
ther, the record demonstrates that he intended to, and did, sus-
pend her for the balance of the workday. Moreover, there is no
evidence to suggest that Bartko received and, consequently,
defied any instruction not to subsequently report to work, as
Respondent contends. Further, the timing of Reingold’s accusa-
tions against Bartko, coming shortly after a successful union
intervention on her behalf, in conjunction with his apparent
overreaction to what appears, at best, to have been a minor
slight (neglecting to hold the door for him) suggests that he
bore animus toward Bartko for more than her conduct on that

27 As the record establishes, Bartko has no prior history of discipline
in her personnel file.
SPRAIN BROOK MANOR NURSING HOME, LLC 943

particular day.
Further, the sum of the evidence shows that Bartko’s out-
burst was provoked by two false accusations of misconduct
occurring within the space of 2 weeks as well as by Reingold’s
hostile and intimidating manner toward her on March 4. The
Board has “long recognized that an employer cannot provoke
an employee to the point where he commits an indiscretion and
then rely on that conduct to terminate his employment.” Key
Food, 336 NLRB 111, 113 (2001) (employee touched supervi-
sor on the shoulder following supervisor’s abusive tirade). See
also Opelika Welding, supra at 568 (and cases cited there). In
addition, a distinction may be drawn between spontaneous and
premeditated statements by employees. Id. Here, Bartko’s out-
burst was clearly provoked by Reingold’s overstated reaction to
and false report of her conduct; an exaggeration of events
which I have concluded stemmed, at least in part, from his ani-
mus toward Bartko’s protected conduct.
Moreover, the construct of Respondent’s proffered defense
to Bartko’s discharge is based on assertions not supported by
the record. In particular, the evidence fails to show that Bartko
slammed the door on Reingold or that she defied instructions
not to report to work, as Respondent has alleged. I conclude
therefore that Respondent’s proffered reasons for Bartko’s dis-
charge are exaggerated and to a large extent simply false. Be-
cause Respondent’s defense is pretextual in significant meas-
ure, it is inadequate to meet Respondent’s burden of proof to
rebut the General Counsel’s prima facie case, and precludes a
finding that Bartko’s discharge took place for nondiscriminato-
ry reasons or that she would have been discharged had it not
been for her Union and protected concerted activity. Accord-
ingly, I find that Respondent discharged Bartko in violation of
Section 8(a)(3) of the Act.
C. The Unilateral Changes
1. Applicable legal principles
Under the Act, before an employer may effect a material and
substantial change in its employees’ wages, hours, and other
terms and conditions of employment, it must notify the em-
ployees’ collective-bargaining representative and afford the
representative an opportunity to bargain about the change.
NLRB v. Katz, 369 U.S. 736 (1962); Daily News of Los Ange-
les, 315 NLRB 1236, 1237–1238 (1994), enfd. 73 F.3d 406
(D.C. Cir. 1996). The notice given to the union must be suffi-
cient to allow a meaningful chance to bargain before the change
is implemented. Mercy Hospital of Buffalo, 311 NLRB 869,
873 (1993); Intersystems Design Corp., 278 NLRB 759 (1986).
While parties are negotiating for a collective-bargaining agree-
ment, as is the case here, the obligation to refrain from unilat-
eral changes extends beyond the duty to provide notice and an
opportunity to bargain but also encompasses a duty to refrain
from implementation at all unless and until agreement or an
overall impasse is reached. Bottom Line Enterprises, 302
NLRB 373, 374 (1991), enfd. sub nom. Master Window Clean-
ing v. NLRB, 15 F.3d 1087 (9th Cir 1994). Moreover, a union
must be provided with meaningful notice and an opportunity to
bargain. When a union learns of changes after they have al-
ready been implemented, the Board recognizes that subsequent
bargaining demands are futile. A union’s failure to request
bargaining under such circumstances does not constitute a
waiver of any statutory right to bargain over such changes. See
Pontiac Osteopathic Hospital, 336 NLRB 1021, 1023–1024
(2001), and cases cited there.
The Board has also found that providing notice to employees
regarding a change in working conditions does not constitute
notice to the union:

One of the purposes of initial notice to a bargaining repre-
sentative of a proposed change in terms and conditions of em-
ployment is to allow the representative to consult with unit
employees to decide whether to acquiesce in the change, op-
pose it or propose modifications. A union’s role in that pro-
cess is totally undermined when it learns of the change inci-
dentally upon notification to all employees.

Roll & Hold Warehouse & Distribution Corp., 325 NLRB 41–
42 (1997).
It is within this context that I evaluate the allegations regard-
ing the alleged unilateral changes implemented by Respondent.
2. Discontinuance of hot lunches for employees
The General Counsel has alleged that by discontinuing its
long-standing practice of providing hot lunches to its employ-
ees for a period of approximately 6 months, Respondent has
violated the Act. It is further contended that the substitution of
a sandwich and salad during this period was a sufficiently ma-
terial change in terms and conditions of employment to warrant
bargaining over the issue. Respondent argues that it did not
effect any such change but has merely continued its practice of
offering hot lunches to employees when there is excess food
available after the facility’s residents have been fed.
In Ford Motor Co. v. NLRB, 441 U.S. 488, 498 (1979), the
Court upheld the Board’s finding that in-plant food services are
a mandatory subject of bargaining and held as follows:

The availability of food during working hours and the condi-
tions under which it is to be consumed are matters of deep
concern to workers, and one need not strain to consider them
to be among those “conditions” of employment that should be
subject to the mutual duty to bargain. By the same token,
where an employer has chosen, apparently in his own interest,
to make available a system of in-plant feeding facilities for his
employees, the prices at which food is offered and other as-
pects of service may reasonably be considered among those
subjects about which the management and union must bar-
gain. The terms and conditions under which food is available
on the job are plainly germane to the “working environment”
. . . (footnotes omitted).

Here, Respondent’s argument that no change occurred be-
cause employees historically were provided with hot lunch only
on a conditional basis, i.e., if sufficient food remained after the
residents were fed, is unsupported by any evidence and rebutted
not only by Nogueira’s credible testimony but by the express
terms of the memorandum distributed to employees: “[a]s of
January 1st hot lunch will no longer be provided. In the mean-
time we will be offering a sandwich and a salad, this will be
available in the staff dining room” (emphasis supplied).
Moreover, this change was substantial and material. The
Board has, under a variety of circumstances, found that unilat-
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

eral changes to the type and manner of food and drink provided
to employees are unlawful. See, e.g., Mercy Hospital of Buffa-
lo, supra (employer closed cafeteria from 2 to 4 am and substi-
tuted vending machines offering similar meal choices); Beverly
Enterprises, 310 NLRB 222, 239 (1993) (elimination of free
coffee unlawful); Central Mack Sales, 273 NLRB 1268 (1984)
(same).
Here, the credible witness testimony establishes that Re-
spondent had been providing its employees with free, on-site
hot lunches for many years. Then, Reingold announced that
they would be receiving sandwiches and salads. There is simply
no evidence to support Respondent’s contention that the estab-
lished and continued practice was to offer hot lunches to em-
ployees on a conditional basis, i.e., when they were not con-
sumed by the residents of the facility. The record also estab-
lishes that no notice or meaningful opportunity to bargain over
this change was provided to the Union. Accordingly, Respond-
ent has violated its duty to bargain in violation of Section
8(a)(1) and (5) of the Act.28
3. Cessation of checkcashing privileges
The Respondent’s practice of providing employees with
checkcashing services during working hours is a mandatory
subject of bargaining because it relates to wages, hours, and
terms and conditions of employment. The practice involved the
manner in which employees received their pay, and their ability
to cash their paychecks during working time provided an eco-
nomic benefit to these employees arising out their employment.
I further find that this change was material and significant be-
cause it required employees to cash their paychecks during their
own time. AT&T Corp., 325 NLRB 150, 153 (1997); See also
Sheraton Hotel Waterbury, 312 NLRB 304, 307 (1993); Sands
Motel, 280 NLRB 132, 143 (1986) (Board adopts finding that
check-cashing privilege is a mandatory subject of bargaining);
Somerville Mills, 308 NLRB 425 (1992) (Board adopts finding
that the hour at which employees receive their paycheck is a
mandatory subject of bargaining).
Respondent contends that it had no bargaining obligation
over this issue because it had no contractual relationship with
the check cashing vendor, and that the company of its own
accord ceased providing such services as they were found not
to be profitable.29 Assuming this to be the case, such circum-
stances do not relieve Respondent of its obligation to bargain
with the Union over this change. As an initial matter, the issue

28 As the General Counsel notes, the fact that Respondent has since
reinstituted the hot lunch program does not remedy the violation be-
cause such a restoration, absent more, does not meet the requirements
of Passavant Memorial Area Hospital, 237 NLRB 138 (1978).
29 Although Moshell testified that this was the case, he was not em-
ployed at the facility at the time and failed to demonstrate any personal
knowledge of the nature of the relationship between the facility and the
checkcashing company. He also conceded that he did not know whether
Respondent had provided any instructions to the vendor. Thus, his
testimony on this issue is hearsay which is unsupported by any docu-
mentary or corroborating evidence. For purposes of my analysis, I will
assume that Moshell’s testimony on this issue is an accurate reflection
of the relationship between the Respondent and the check cashing
vendor; however, I wish to emphasize that do not find that Respondent
has adduced sufficient probative evidence to support its contentions.
of using working time to cash one’s paycheck is one that is
eminently suitable for collective bargaining. AT&T Corp., su-
pra at 153.
Moreover, as the General Counsel notes, employees com-
monly receive any number of significant employment services
and benefits (health insurance, for example), through third-
party vendors. Such benefits are mandatory subjects of bargain-
ing notwithstanding alterations in the contractual relationship
between the employer and the vendor. By way of another ex-
ample, in Ford Motor Co., supra at 503, discussed above, the
Court noted that even though the in-plant vending machine
prices were set by the outside vendor, “an employer can always
effect prices by initiating or altering a subsidy to a third-party
supplier . . . and will typically have the right to change suppli-
ers at some point in the future . . . the employer holds future, if
not present, leverage over in-plant food services and prices.”
Such an analysis obtains here, as well.
Thus, the time, place and manner in which employees cash
their paychecks is a mandatory subject of bargaining. Here
there was no notice or opportunity afforded to the Union for
bargaining over such changes. Accordingly, I find that Re-
spondent has violated the Act as alleged in the complaint.
4. Discontinuance of free on-site physical examinations and
tuberculosis tests
The credible testimony of the employees here establishes
that after February 18, 2011, Respondent unilaterally discontin-
ued its practice of providing free annual physical examinations
and tuberculosis (PPD) tests to its employees. After this date, a
well-established practice whereby a weekend nurse supervisor
would provide such services to employees during working
hours was discontinued. Neither of the employees who were
working for Respondent at the time (Bartko and Nogueira)
received these services thereafter.
Respondent relies on Moshell’s assertion that certain em-
ployees have, since that time, received such services, on re-
quest. Moshell’s vague and conclusory testimony, as set forth
above, is unsubstantiated by any salient detail: thus he failed to
offer particulars about who might be providing such services,
when they may have been provided, the number of employees
who have availed themselves of these services or where or
when they were offered. Similarly, Moshell failed to show that
Respondent has notified its employees that on site physical
examinations and PPD testing remains available to them, some-
thing Respondent easily could have done at any relevant time.
Moreover, Respondent’s position here is rebutted by plain
and unambiguous language of the memorandum distributed to
employees, which states in pertinent part: “All employees are
required to submit their annual PPD & Physical Exam on or
before MARCH 25, 2011 completed by your physician” (em-
phasis added). Thus, employees are clearly directed that these
matters are to be undertaken with their own health care provid-
ers, and that, necessarily, they are to bear the burden of the cost
of these examinations, which are required for continued em-
ployment.
As a general matter, employees’ health benefits are a manda-
tory subject of bargaining about which an employer has an
obligation to bargain in good faith. E. I. DuPont De Nemours,
SPRAIN BROOK MANOR NURSING HOME, LLC 945

Louisville Works, 355 NLRB 1084 (2010), enf. denied 682 F.3d
65 (D.C. Cir. 2012); United Hospital Medical Center, 317
NLRB 1279, 1281 (1995). Moreover, there can be no dispute
that the cost to employees of physical examinations, needed to
maintain continued employment, “is an aspect of the relation-
ship between [an employer] and its employees.” Ford Motor
Co., supra at 501. In Keeler Die Cast, 327 NLRB 585, 589
(1999), the Board adopted the administrative law judge’s find-
ing that the unilateral discontinuance of employer-subsidized
annual influenza vaccinations was a violation of Section
8(a)(5). Here, there is no evidence to support Respondent’s
contention that the services previously offered to employees are
still provided. Rather, the credible evidence in conjunction with
the admissions contained in Respondent’s own memorandum to
employees shows that it is not. The evidence further establishes
that there was no notice provided to or an opportunity to bar-
gain afforded to the Union prior to the implementation of this
change. As this health benefit to employees is a mandatory
subject of bargaining, Respondent’s unilateral change violated
Section 8(a)(1) and (5) of the Act.
5. The discontinuance of “medical expense” payouts
to employees
The record shows that for several years prior to November
2011, employees who declined health insurance coverage under
the Employer’s health insurance plan received a monthly sum
which was keyed to the cost of insurance premiums for those
who did participate in the plan. Recently, certain employees
received somewhere in the vicinity of $300 per month. Several
years of such monthly payments clearly constitute a term and
condition of employment and a past practice which would re-
quire the Respondent to bargain over any change.
Although the memorandum announcing the elimination of
medical pay outs refers to changes in health care legislation,
these were not explored on the record.30 However, even if Re-
spondent had shown that the discontinuance of medical pay
outs had, in fact, been necessitated by statutory changes, it
would still be required to bargain with the Union over this
change in employment terms, unless it could show that bargain-
ing over the subject would be illegal. See, e.g., National Fuel
Gas Distribution Corp., 308 NLRB 841, 845 (1992) (“employ-
er violated Section 8(a)(5) by unilaterally eliminating thrift plan
where new tax law could make it very expensive. . .” the ap-
propriate mechanism for consideration of that potential conse-
quence is collective bargaining, not unilateral repudiation of a
contract terms); see also Swanson Group, Inc., 312 NLRB 184,
185 (1993) (“employer must bargain about prior contract terms
claimed to be illegal” If the Respondent believes the clauses
are illegal, it can negotiate a new agreement.)
Respondent requests that I infer, from the fact that the parties
apparently amicably resolved the issue of the subcontracting of
the laundry department, that it bargained in good faith with the
Union. However, the subcontracting of the laundry department
is a separate issue entirely. Here, there is no evidence to support
Respondent’s apparent contention that it provided prior notice

30 Although the General Counsel subpoenaed documents relating to
this matter, none were produced.
of or an opportunity to bargain over the elimination of the
health insurance pay out with the Union.31 I conclude that Re-
spondent’s failure to do so is a violation of the Act.
In sum, inasmuch as the Union had no notice of any of the
foregoing alleged unilateral changes until after their implemen-
tation (and only then, from bargaining unit members), there can
be no basis for any credible argument that the Respondent pro-
vided timely notice to the Union or afforded it a meaningful
opportunity to bargain over these alterations in substantial and
material terms and conditions of employment. Nor does the fact
that the parties have not met for face-to-face negotiations since
June 2010 excuse Respondent’s obligation to bargain over the-
se mandatory subjects. Accordingly, by unilaterally discontinu-
ing hot lunches for its employees, on site check cashing privi-
leges, on site and free physical examinations and PPD tests and
medical expense pay outs to bargaining unit employees, Re-
spondent has failed and refused to bargain with the Union in
violation of Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent, Sprain Brook Manor, LLC., is an employer
engaged in commerce within the meaning of the Act.
2. The Union, New York’s Health and Human Services Un-
ion 1199/SEIU, is a labor organization within the meaning of
the Act and the exclusive collective-bargaining representative
of the following unit of employees:

All full-time and regular part-time and per diem non-
professional employees including licensed practical nurses,
certified nurses’ aides, geriatric techs/activityaides, house-
keeping employees, laundry employees/assistants, dietary
aides, and cooks employed by the Employer at its facility lo-
cated at 77 Jackson Avenue, Scarsdale, NY, but excluding all
other employees, including office clerical employees, manag-
ers and guards, professional employees and supervisors as de-
fined by the Act.

3. By threatening employees with unspecified reprisals for
seeking assistance from the Union and by threatening employ-
ees that if they sought union representation they would not
receive payments owed to them in connection with the compli-
ance settlement in Sprain Brook Manor LLC, 351 NLRB 1190
(2007), Respondent violated Section 8(a)(1) of the Act.
4. By discharging Catherine Alonso, Respondent violated
Section 8(a)(1), (3), and (4) of the Act.
5. By suspending and thereafter discharging Karen Bartko,
Respondent violated Section 8(a)(1) and (3) of the Act.
6. By implementing the following changes to terms and
conditions of bargaining unit employees without affording the
Union notice or an opportunity to bargain, Respondent violated
Section 8(a)(5) of the Act:

a. Discontinuing its practice of providing a free hot lunch to

31 There is no evidence regarding what Respondent’s proposals re-
garding health insurance premiums was to the Union and this vague
description, as framed by counsel’s questioning, is unhelpful. Clearly,
if Respondent had made a proposal, particularly a written proposal, to
the Union regarding any of the specific matters at issue in this proceed-
ing, it could have provided evidence of such.
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

employees
b. Discontinuing its practice of providing on site check-
cashing privileges to employees
c. Discontinuing its practice of providing free on-site physi-
cals and PPD (tuberculosis) examinations to employees
d. Discontinuing “medical expenses” pay outs to employees
who were not enrolled in the health plan offered by Respond-
ent.

7. By the foregoing acts, Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 2(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. Having discriminatorily discharged
Catherine Alonso and suspended and then discharged Karen
Bartko, Respondent must offer them reinstatement to their for-
mer jobs, without prejudice to their seniority or other rights and
privileges previously enjoyed and make them whole for any
loss of earnings and other benefits they may have sustained by
reason of Respondent’s unlawful conduct. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8
(2010). Respondent shall also be directed to expunge from the
employment records of Alonso and Bartko any reference to
their unlawful discipline and notify each of them in writing that
this has been done and that their discipline will not be used
against them in any way. Respondent should also be ordered to
rescind, upon request of the Union, any of the unilateral chang-
es found to be unlawful here and restore the status quo ante and
provide the Union with notice and an opportunity to bargain
before making changes in terms and conditions of employment
of bargaining unit employees. Respondent should also be or-
dered to make employees whole for any losses they may have
incurred as a result of the unlawful unilateral changes to their
terms and conditions of employment. Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971).
[Recommended Order omitted from publication.]