Vista Del Sol Health Services, Inc. dba Vista Del Sol Healthcare

National Labor Relations Board - Board Decisions

Feb 24, 2016

363 NLRB No. 135 (N.L.R.B. 2016)

363 NLRB No. 135
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Vista Del Sol Health Services, Inc. d/b/a Vista Del Sol
Healthcare and SEIU-ULTCW, Service Em-
ployees International Union, United Long Term
Care Workers. Cases 31–CA–115318, 31–CA–
115332, 31–CA–116089, 31–CA–116096, 31–CA–
116481, 31–CA–116483, 31–CA–116484, 31–CA–
116485, 31–CA–116486, 31–CA–116487, 31–CA–
116488, 31–CA–118682, 31–CA–118685, 31–CA–
118686, 31–CA–137770, 31–CA–138045, and 31–
CA–140185
February 24, 2016
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
DECISION AND ORDER
On June 5, 2015, Administrative Law Judge Eleanor
Laws issued the attached decision. The Respondent filed
exceptions, a supporting brief, and a reply brief. The
General Counsel filed cross-exceptions, a supporting
brief, and an answering brief. The Charging Party Union
filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions, cross-exceptions, and briefs and
has decided to affirm the judge’s rulings, findings,1 and

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent has also excepted to the judge’s crediting of the text
messages sent by the Respondent’s former director of nursing, Jeri
Warner, to employee Remedios Lopez, asserting that they constituted
inadmissible hearsay. The Respondent, however, failed to raise a time-
ly hearsay objection at the hearing, and we find that the judge properly
considered this evidence.
In the absence of exceptions, we adopt the judge’s findings that the
Respondent violated Sec. 8(a)(1) by promulgating a rule prohibiting
employees from wearing union logos or insignia, interrogating employ-
ee Rosa Lopez about her and her coworkers’ union activities and sym-
pathies and promising her greater job security if employees rejected the
Union, and impliedly threatening employee Genaro Meza with unspeci-
fied reprisals in response to his union activities. We also adopt the
judge’s findings, in the absence of exceptions, that a bargaining order
pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), is ap-
propriate, that the Respondent had an obligation to bargain with the
Union no later than October 14, 2013, and that, from October 18, 2013,
to October 28, 2013, the Respondent violated Sec. 8(a)(5) by terminat-
ing employees Martha Aparicio, Delfina Sanchez, Genaro Meza, Elisa
conclusions in part, to reverse them in part,2 and to adopt
the judge’s recommended Order as modified and set
forth in full below.3
AMENDED CONCLUSIONS OF LAW
1. Insert the following as Conclusion of Law 1 and re-
number the subsequent paragraphs accordingly: “1. The
Respondent is an employer engaged in commerce and in

Mayorga, Maria Isabel Valladares (née Menjivar), Dafny Cobar,
Romana Lopez, Rosa Lopez, and Carmelina Perdomo without provid-
ing the Union prior notice and an opportunity to bargain. Lastly, in the
absence of exceptions, we adopt the judge’s finding that in December
2013 the Respondent violated Sec. 8(a)(5) by granting to its certified
nursing assistants a discretionary, across-the-board wage increase —a
mandatory subject of bargaining —without providing the Union prior
notice and an opportunity to bargain.
We agree with the judge that the Respondent coercively interrogated
employee Maria Ramirez when Administrator Rosa Valdivia (i) asked
Ramirez if “they” had been back to visit her and said she knew who
“they” were, and (ii) asked Ramirez what the cards were that “they”
were handing out. We therefore find it unnecessary to pass on the
allegation that Valdivia’s questions also created the impression of sur-
veillance.
The judge included a citation to Stevens Creek Chrysler Jeep Dodge,
353 NLRB 1294 (2009), a case decided by a two-member Board.
See New Process Steel v. NLRB, 560 U.S. 674 (2010). We note that a
three-member panel of the Board subsequently incorporated Stevens
Creek Chrysler by reference. 357 NLRB No. 57 (2011), enfd. sub
nom. Mathew Enterprise, Inc. v. NLRB, 498 Fed. Appx. 45 (D.C. Cir.
2012).
2 We reverse the judge’s dismissal of the allegation that the Re-
spondent unlawfully granted employees Maria Ramirez and Romana
Lopez a discretionary 50-cent-an-hour wage increase in October 2013.
The lawfulness of an employer’s conferral of benefits during a union
organizing campaign depends upon its motive. Network Dynamics
Cabling, 351 NLRB 1423, 1424 (2007) (citing NLRB v. Exchange
Parts Co., 375 U.S. 405 (1964)). The Board infers improper motive
and interference with employees’ Sec. 7 rights when an employer
grants benefits during an organizing campaign without showing a legit-
imate business reason. Sisters’ Camelot, 363 NLRB No. 13, slip op. at
7 (2015); Pacific FM, Inc., 332 NLRB 771, 773 (2000). This includes
the period before a representation petition has been filed. Hampton Inn
NY—JFK Airport, 348 NLRB 16, 17 (2006). Here, the credited evi-
dence demonstrates that, at the time the Respondent granted the wage
increases to employees Ramirez and Lopez, it knew of the Union’s
organizing campaign. Because the Respondent failed to show any
legitimate business reason for granting the wage increases, we find that
it violated Sec. 8(a)(1). Moreover, the extensive evidence of the Re-
spondent’s union animus further demonstrates that its motive for grant-
ing the wage increases was to interfere with employees’ Sec. 7 rights.
Member Miscimarra agrees that the wage increase granted Ramirez and
Lopez was unlawful. He finds the General Counsel established this
violation based on (i) the proximity of the increase to employees’ union
activities, (ii) the fact that the Respondent failed to establish a justifica-
tion for the increase, and (iii) the Respondent’s numerous unfair labor
practices indicative of its anti-union animus. He finds it unnecessary to
rely on Sisters’ Camelot, 363 NLRB No. 13 (2015).
3 We have amended the judge's conclusions of law and remedy and
modified her recommended Order consistent with our findings and the
Board’s standard remedial language. We shall substitute a new notice
to conform to the Order as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.”
2. Insert the following as Conclusion of Law 2 and re-
number the subsequent paragraphs accordingly: “2. The
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.”
3. Insert the following as Conclusion of Law 3 and re-
number the subsequent paragraphs accordingly: “3. Since
October 14, 2013, the Union has been the exclusive col-
lective-bargaining representative, within the meaning of
Section 9(a) of the Act, representing a majority of the
employees in the following appropriate unit:
Included: All full-time, part-time, and on-call certified
nursing assistants (CNA), restorative nurse assistants
(RNA), caregivers, housekeeping, laundry, cooks, die-
tary aids, maintenance, and activity assistants.
Excluded: All other employees, confidential employ-
ees, managers, office, clerical employees, professional
employees, guards and supervisors as defined in the
National Labor Relations Act.”
4. Insert the following as Conclusion of Law 5 and re-
number the subsequent paragraphs accordingly: “5. By
granting wage increases to employees in order to dis-
courage them from supporting the Union and telling em-
ployees that it no longer trusts them in response to their
union activities, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.”
AMENDED REMEDY
In addition to the remedies ordered by the judge, we
shall order the Respondent to cease and desist from
granting wage increases to employees in order to dis-
courage them from supporting the Union and telling em-
ployees that it no longer trusts them in response to their
union activities.
Additionally, we shall order the Respondent to com-
pensate employees Martha Aparicio, Delfina Sanchez,
Elisa Mayorga, Maria Isabel Valladares (née Menjivar),
Genaro Meza, Dafny Cobar, Romana Lopez, Rosa
Lopez, and Carmelina Perdomo for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, including when the backpay period is
less than 12 months. Don Chavas, LLC d/b/a/ Tortillas
Don Chavas, 361 NLRB No. 10 (2014).
ORDER
The National Labor Relations Board orders that the
Respondent, Vista del Sol Health Services, Inc. d/b/a
Vista del Sol Healthcare, Los Angeles, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Instructing employees not to talk to the Union.
(b) Granting discretionary wage increases to employ-
ees in order to discourage them from supporting the Un-
ion.
(c) Coercively interrogating employees about their un-
ion membership, activities, sympathies, and/or support.
(d) Telling employees that it no longer trusts them in
response to their union activities.
(e) Threatening employees with unspecified reprisals
in response to their union activities.
(f) Instructing employees to leave the Respondent’s
premises in response to their union activities.
(g) Promulgating a rule prohibiting employees from
wearing union logos or insignia.
(h) More strictly enforcing a tardiness rule in response
to employees’ union activities.
(i) Polling employees about their support for the Un-
ion.
(j) Promising employees enhanced job security in or-
der to discourage them from supporting the Union.
(k) Threatening employees with closure of their work
facility in response to their union activities.
(l) Discharging or otherwise discriminating against
employees for supporting the Union or any other labor
organization.
(m) Failing and refusing to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit.
(n) Changing the terms and conditions of employment
of its unit employees, such as implementing an across-
the-board wage increase and discharging employees,
without first notifying the Union and giving it an oppor-
tunity to bargain.
(o) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed 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
Martha Aparicio, Delfina Sanchez, Elisa Mayorga, Maria
Isabel Valladares (née Menjivar), Genaro Meza, Dafny
Cobar, Romana Lopez, Rosa Lopez, and Carmelina
Perdomo full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
(b) Make Martha Aparicio, Delfina Sanchez, Elisa
Mayorga, Maria Isabel Valladares (née Menjivar),
Genaro Meza, Dafny Cobar, Romana Lopez, Rosa
Lopez, and Carmelina Perdomo whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
VISTA DEL SOL HEALTH SERVICES, INC. 3
the remedy section of the judge’s decision as amended in
this decision.
(c) Compensate Martha Aparicio, Delfina Sanchez,
Elisa Mayorga, Maria Isabel Valladares (née Menjivar),
Genaro Meza, Dafny Cobar, Romana Lopez, Rosa
Lopez, and Carmelina Perdomo for the adverse tax con-
sequences, 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.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter, notify the employees in
writing that this has been done and that the discharges
will not be used against them in any way.
(e) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
Included: All full-time, part-time, and on-call certified
nursing assistants (CNA), restorative nurse assistants
(RNA), caregivers, housekeeping, laundry, cooks, die-
tary aids, maintenance, and activity assistants.
Excluded: All other employees, confidential employ-
ees, managers, office, clerical employees, professional
employees, guards and supervisors as defined in the
National Labor Relations Act.
(f) On request by the Union, rescind the changes in the
terms and conditions of employment for its unit employ-
ees that were unilaterally implemented after October 14,
2013.
(g) 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.
(h) Within 14 days after service by the Region, post at
its Los Angeles, California facility copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 31,

4 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.”
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since August 2013.
(i) 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 marked
“Appendix” is to be publicly read in English and Spanish
by Respondent Administrator Rosa Valdivia (or her suc-
cessor) or, at the Respondent’s option, by a Board agent
in the presence of Valdivia (or her successor).
(j) Within 21 days after service by the Region, file
with the Regional Director for Region 31 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. February 24, 2016
Philip A. Miscimarra, Member
Kent Y. Hirozawa, Member
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT instruct you not to talk to the Union.
WE WILL NOT grant you discretionary wage increases
in order to discourage you from supporting the Union.
WE WILL NOT coercively interrogate you about your
union membership, activities, sympathies, and/or sup-
port.
WE WILL NOT tell you that we no longer trust you in
response to your union activities.
WE WILL NOT threaten you with unspecified reprisals
in response to your union activities.
WE WILL NOT instruct you to leave our premises in re-
sponse to your union activities.
WE WILL NOT promulgate a rule prohibiting you from
wearing union logos or insignia.
WE WILL NOT more strictly enforce a tardiness rule in
response to your union activities.
WE WILL NOT poll you about your support for the Un-
ion.
WE WILL NOT promise you enhanced job security in
order to discourage you from supporting the Union.
WE WILL NOT threaten you with closure of your work
facility in response to your union activities.
WE WILL NOT discharge or otherwise discriminate
against you for supporting the Union or any other labor
organization.
WE WILL NOT fail and refuse to recognize and bargain
with the Union as the exclusive collective-bargaining
representative of the employees in the bargaining unit.
WE WILL NOT change the terms and conditions of em-
ployment of our unit employees, such as implementing
an across-the-board wage increase and discharging em-
ployees, without first notifying the Union and giving it
an opportunity to bargain.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Martha Aparicio, Delfina Sanchez, Elisa
Mayorga, Maria Isabel Valladares (née Menjivar),
Genaro Meza, Dafny Cobar, Romana Lopez, Rosa
Lopez, and Carmelina Perdomo full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Martha Aparicio, Delfina Sanchez, Eli-
sa Mayorga, Maria Isabel Valladares (née Menjivar),
Genaro Meza, Dafny Cobar, Romana Lopez, Rosa
Lopez, and Carmelina Perdomo whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, less any net interim earn-
ings, plus interest compounded daily.
WE WILL compensate Martha Aparicio, Delfina
Sanchez, Elisa Mayorga, Maria Isabel Valladares (née
Menjivar), Genaro Meza, Dafny Cobar, Romana Lopez,
Rosa Lopez, and Carmelina Perdomo for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and WE WILL file a report with the Social Securi-
ty Administration allocating the backpay awards to the
appropriate calendar quarters for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges, and WE WILL, within 3 days thereafter,
notify the employees in writing that this has been done
and that the discharges will not be used against them in
any way.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
Included: All full-time, part-time, and on-call certified
nursing assistants (CNA), restorative nurse assistants
(RNA), caregivers, housekeeping, laundry, cooks, die-
tary aids, maintenance, and activity assistants.
Excluded: All other employees, confidential employ-
ees, managers, office, clerical employees, professional
employees, guards and supervisors as defined in the
National Labor Relations Act.
WE WILL, on request by the Union, rescind the changes
in the terms and conditions of employment of our unit
employees that were unilaterally implemented after Oc-
tober 14, 2013.
VISTA DEL SOL HEALTH SERVICES, INC. D/B/A
DEL SOL HEALTHCARE
VISTA DEL SOL HEALTH SERVICES, INC. 5
The Board’s decision can be found at
www.nlrb.gov/case/31-CA-115318 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Juan Carlos Ochoa Diaz, Esq., Simone Pang Gancayco, Esq.,
and Lynn Ta, Esq., for the General Counsel.
Yolanda Flores-Burt, Esq., for the Respondent.
Sean D. Graham, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried in Los Angeles, California, on January 21–23 and 26–28,
2015. The Service Employees International Union, United
Long Term Care Workers (Charging Party or Union) filed
above-captioned charges on various dates between October 18,
2013, and November 3, 2014.1 The General Counsel issued the
complaint before me, consolidating all of the charges, on De-
cember 15, 2014. Vista del Sol Healthcare (the Respondent or
VDS) filed a timely answer denying all material allegations and
setting forth affirmative defenses.
The complaint alleges that the Respondent violated Sections
8(a)(5), (3), and (1) of the National Labor Relations Act (the
Act) during the course of an organizing drive beginning in Au-
gust 2013. The specific allegations, detailed below, concern
alleged interrogations, promises of benefits and increases in
benefits, threats, and the discharge of nine employees. The
General Counsel contends that because the Union achieved
majority support, a bargaining order is warranted, and alleges
the Respondent granted wage increases and terminated employ-
ees without bargaining.
On December 12, 2014, the Regional Director filed a petition
for a temporary injunction under Section 10(j) of the Act in
federal district court. See Mori Rubin v. Vista Del Sol Health
Serv., Inc., Case 2:14-CV-09534 MMM-FFM. On January 21,
2015, the Honorable Margaret M. Morrow granted the Regional
Director’s petition, finding a likelihood of success on all
8(a)(5), (3), and (1) allegations, ordering reinstatement of the
discharged employees, and entering a Gissel bargaining order.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed

1 All dates are in 2013 unless otherwise indicated.
by the General Counsel and the Respondent,2 I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation that provides skilled nurs-
ing care and assisted living to residents of its facilities in Los
Angeles, California. The Respondent admits, and I find, that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that it is a health care
institution within the meaning of Section 2(14) of the Act. It is
undisputed that the Union is a labor organization within the
meaning of Section 2(5) of the Act.3
II. STATEMENT OF FACTS
A. Background and the Respondent’s Operations
VDS operates a nursing facility located in Los Angeles, Cali-
fornia. One part of the facility is a 50-bed skilled nursing fa-
cility, commonly referred to as “Vista.” The other side is a 30-
bed assisted living facility called Case del Mar, commonly
referred to as “Casa.” The two buildings are on the same prop-
erty. (Tr. 34–35; R. Exh. 3.) James Preimesberger is VDS’s
president and owner.
From October 1 until at least October 14, VDS had roughly
60 employees. Rosa Valdivia (Valdivia) is the administrator, in
charge of the overall operation of the facility, and serves as the
top management official at the facility.4 (Tr. 33–34.) Licensed
Vocational Nurse Valorie Hanson is the social services design-
ee and reports to Valdivia.5 (Tr. 639.) The housekeeping staff,
consisting of 6–7 housekeepers, directly reported to Valdivia
until late October.6 (Tr. 235.)
The director of nursing (DON), who during the relevant time
period was Jeri Warner, reports to Valdivia. 7 Approximately
five licensed vocational nurses (LVNs) and five registered
nurses (RNs) report to the director of nursing. One of the LVNs
or RNs serves as the charge nurse for each shift. Ingrid Castillo
worked at VDS as an LVN and charge nurse at night for about

2 The Charging Party joined in the General Counsel’s brief.
3 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R. Exh.” for the Respondent’s exhibit; “GC Exh.” for the Gen-
eral Counsel’s exhibit; “GC Br.” for the General Counsel’s brief; and
“R. Br.” for the Respondent’s brief. Although I have included several
citations to the record to highlight particular testimony or exhibits, I
emphasize that my findings and conclusions are based not solely on the
evidence specifically cited but rather are based my review and consid-
eration of the entire record.
In its answer, the Respondent did not admit or deny the Union is a
labor organization. Based on the rationale set forth in the Respondent’s
brief and supported by record evidence, I find the Union is a labor
organization. (R. Br. p. 94, fn. 16.)
4 It has come to my attention that, since the time of the hearing, VDS
has been sold. Any use of the present tense in this decision reflects the
status at the time of the hearing.
5 Hanson is an admitted supervisor.
6 I state this in the past tense because, as detailed below, the house-
keeping function was outsourced in October 2013.
7 As discussed below, Warner was terminated following the events at
issue in the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
four years prior to her resignation in March 2014. (Tr. 507.)
Other charge nurses during the relevant time period included
Jennifer Abaunza and Arcadio DeBorja.
VDS employs roughly 30 certified nursing assistants
(CNAs). The charge nurses direct the CNAs’ work. (R. Exh.
3.)8
Esther Cuellar, the registered nurse (RN) supervisor, makes
the schedule for the nursing staff. (Tr. 242, 582.) Cuellar also
interviews CNAs and makes recommendations about which
applicants VDS should hire. She reports to Vida Zelaya, the
staff developer. Zelaya is in charge of educating the nursing
staff and conducting training. She and Cuellar instruct staff on
workplace rules and policies. (R. Exh. 3.) Cuellar also con-
ducts new employee orientation. (Tr. 584.)
VDS has a dietary department, overseen by Supervisor Ra-
fael Vasquez. He supervises the cooks and dishwashers. VDS
employs 2 administrative staff, Esmerelda Valdivia (E. Valdi-
via), and Vanessa Valdivia (V. Valdivia), who work as clerical
employees.9 (R. Exh. 3.)
During new employee orientation, employees receive VDS’s
employee handbook. (Tr. 587.) VDS maintains a policy pro-
hibiting sleeping on the job, and the employees are told about
this during orientation. The penalty for sleeping on the job is
termination of employment. (Tr. 598; R. Exh. 2, p. 18.) Em-
ployees are permitted to sleep during their breaks when they are
off the clock. (Tr. 616.)
Nurses and CNAs work in three shifts: 7am-3pm (morning),
3-11pm (afternoon), and 11pm-7am (night). Nurses on each
shift are entitled to a ½-hour lunchbreak and two 10-minute rest
periods. Employees clock out for the lunchbreak but not for the
rest periods.
Under a California law referred to as 3.2, all facilities need to
provide 3 hours and 20 minutes of care for each patient each
day. To meet this number, employees must work 7.5 hours.
When employees come in late and leave early, this creates a
problem. VDS had trouble getting employees to work enough
hours, particularly on the 3–11pm shift. (Tr. 620–622.)
Employees were permitted to come late and leave early as
long as they punched in or out within 7 minutes of their sched-
uled shifts. This 7-minute grace period was not part of the
employee handbook but has been a longstanding policy at
VDS. (Tr. 619, 739.) Employees who were late beyond the
grace period were not disciplined.10 On occasion, there were
meetings to remind employees about clocking in and working a
full shift. (R. Exh. 8.)
In mid-May 2013, a binder with employees’ I-9 information
was taken from Valdivia’s office.11 (Tr. 682; R. Exh. 3.)

8 Though I have cited to parts of R. Exh. 3, I do not credit any of the
hearsay comments, particularly those that contradict witness testimony,
unless specifically stated herein,
9 Esther and Vanessa are Rosa Valdivia’s daughters. (Tr. 242.) Es-
ther worked full time and Vanessa worked part time. (R. Exh. 3.)
10 For example, on July 25, 2013, Hanson was 15 minutes late for
her shift. She was not disciplined. (Tr. 664; GC Exh. 99.) Many more
examples appear below.
11 There is no indication the Union was involved in organizing em-
ployees at VDS in May, and I make no presumption that anyone from
the Union was involved in this incident.
B. The Union’s Early Organizing Efforts
Union organizing efforts began in late July/early August
2013. (Tr. 531.) The unit the Union was seeks to represent
consists of:
Included: All full-time, part-time, and on-call Certified Nurse
Assistants (CNA), restorative nurse assistants (RNA), care-
givers, Housekeeping, Laundry, Cooks, Dietary aids, mainte-
nance, and activity assistants.
Excluded: All other employees, confidential employees, man-
agers, office, clerical employees, professional employees,
guards and supervisors as defined in the [A]ct.
Housekeeper Rosa Lopez first heard of the Union around Ju-
ly of 2013.12 She spoke to coworkers about the Union and
asked whether they would be interested in supporting the Un-
ion. During this time period, Valdivia called Rosa Lopez one
evening at approximately 7 p.m. and told her employees had
informed her that people were visiting them at their homes.
She told Rosa Lopez not to let them in because they were
thieves. (Tr. 235–237.)
Housekeeper Eliza Mayorga first heard of the Union in Au-
gust 2013. She attended 3–4 meetings and encouraged
coworkers to come to the meetings. (Tr. 336.) CNA Martha
Aparicio heard about the Union from Sandra Cerros in mid-
August 2013. She said she would support the Union, and she
attended 5–6 union meetings. (Tr. 127–128.) CNA Marcos
Salvador attended about 5 union meetings. He spoke with two
coworkers, Jeanette Aguilera and Zenon Perez, about the bene-
fits of the Union. (Tr. 474, 478.)
On August 7, CNA Maria Ramirez called Valdivia and asked
if VDS had sent someone to her house. Valdivia responded
that she did not send anyone to Maria Ramirez’ house, and the
individual probably knew her address because of a theft from
the office. (Tr. 267, 677–678; R. Exh. 3.)
Hanson recalled the Union visited her home twice in the ear-
ly summer of 2013. During the first visit, at about 8:30 p.m.,
Hanson answered the door and the individual identified himself
as being from the Union. She found him aggressive because he
insisted she needed to talk to him. The individual came back a
couple of days later and left his phone number with Hanson’s
son. She told Valdivia about the incidents, and told her she did
not know how the union person had gotten her address. She
conveyed that the union representative was aggressive and said
she was scared. Valdivia told her that a booklet containing
employee names and addresses was missing from VDS. (Tr.
652–655.)
According to Valdivia, Hanson called her at about 4:30 the
afternoon of August 7, and said a man was at her house. The
individual identified himself as being from VDS and said he
had questions about the facility. Hanson reported that and that
the individual was pushy and persistent, and she felt uncom-
fortable for her family’s safety. (R. Exh. 3; Tr. 679).
Valdivia claims she first learned of the Union when Maria
Sura, a dishwasher, reported on August 8 that someone from

12 Rosa Lopez attended about 10 union meetings.
VISTA DEL SOL HEALTH SERVICES, INC. 7
the Union had visited her.13 Valdivia received a report that from
Zeny Tabak that same day, and later received a similar report
from Blanca Valle. (Tr. 68, 680–681; R. Exh. 3.) The employ-
ees were upset that someone had obtained their addresses.
Housekeeper Carmelina Perdomo first became aware of the
Union in August or September 2013. (Tr. 380.) In mid-
September, Valdivia asked Perdomo if anyone had visited her
at her home. Perdomo responded she had been visited. Valdivia
asked the name of the individual, and Perdomo told her it was
Jose Manzano. (Tr. 383.) According to Valdivia, on or around
October 16, Perdomo asked to speak to her and said she was
being harassed and called a traitor by her coworkers. She said
nobody was willing to be her friend if she did not sign with the
Union. She did not want to give names. Valdivia told her no-
body had the right to harass her. (Tr. 684–685; R. Exh. 3.)14
Housekeeper Romana Lopez learned about the Union in ear-
ly October and attended a couple of meetings. (Tr. 354–355.)
Yolanda Velasco, who works in the kitchen at VDS, said the
Union visited her many times, but she could not recall any
dates, or even the year. She received a telephone call from
someone at the Union named Jose. He asked her if she was
interested in supporting her coworkers, and she replied that she
was not. She told him that she could not support the Union
because they sometimes take part in strikes, which are incon-
sistent with her religious values. According to Velasco, Jose
told her that a lot of her coworkers were in the Union, and that
if she did not sign, she would have to pay “double the quote.”
(Tr. 556–559.)
During August 2013, Valdivia held a series of meetings with
employees. Valdivia told employees a folder containing I-9
information was stolen and she had heard reports of employees
being visited at their homes. She told them to be careful, and
instructed them not to open their doors if they did not want to.
(Tr. 47.)
During one of these meetings, Valdivia and Cuellar met with
Remdios Lopez, Marcos Salvador, Maria Ramirez, and Reyna
Artola, Elfega Lopez, and some other employees by the nurses’
station. Valdivia said that if anyone knocked on their doors,
they should not let them in because someone had gone into her
office and stolen personally identifiable information.15 (Tr.
405–406.) She said that there was someone pretending to be
from the Union, and she described him, stating he had a tattoo.
She told them not to open the door because they were trying to
see what the employees had so they could come in and rob
them. She said to let her know if anyone came to their houses.
(Tr.475–476.)
In September 2013, Cuellar told a group of housekeepers and
CNAs, including Perdomo and Mayorga, not to answer the door

13 This was the first time Valdivia claims she heard mention of a Un-
ion. (Tr. 680; R. Exh. 3.)
14 I do not credit the statements Valdivia attributes to Perdomo about
being harassed by coworkers and called a traitor. They are refuted by
Perdomo herself, who testified she was not called a traitor or threatened
by anyone about the Union. (Tr. 381–382.) I note the transcript erro-
neously states “trader” instead of “traitor.”
15 Remedios Lopez placed this meeting later, but the subject matter
of the meeting is more in line with Valdivia’s recollection of her meet-
ings during this time period.
if they were visited at home because the people visiting could
be thieves. (Tr. 385.)
C. October Employee Raises
Employees do not receive regularly scheduled raises. In-
stead, raises are granted dependent upon Respondent’s financial
ability to authorize any increase in pay. (GC Exh. 85, pp. 1–2.)
On October 2 or 3, Valdivia told Maria Ramirez she was get-
ting a raise. On October 10, for the pay period ending Septem-
ber 30, Maria Ramirez received a wage increase of 50 cents per
hour, from $8.75 per hour to $9.25 per hour. (GC Exh. 64.)
Prior to that time, her last raise was in 2011. (Tr. 266.)
Housekeeper Romana Lopez received a raise at this same
time, from $10 per hour to $10.50 per hour. (GC Exh. 64.)
D. October 3 Contract for Housekeeping Services
On October 3, Valdivia signed a contract with an outside
company called Pro-Clean to provide housekeeping services for
VDS. (GC Exh. 56.) The agreement provided that Pro-Clean
would utilize VDS’s existing housekeeping equipment. The
terms of the agreement began on October 3, to continue until
canceled by either party.
The decision to discharge housekeeping employees and sub-
contract out housekeeping to Pro Clean was made by “corpo-
rate,” not by Valdivia. (Tr. 72.) Donna and another person
from VDS’s corporate offices told Valdivia that the housekeep-
ing department was operating over budget, so they had decided
to contract out the department. Valdivia had no input into the
decision.16 (Tr. 704.)
Someone from Pro-Clean called Valdivia toward the end of
August/beginning of September and told her they were going to
come look at the facility. The individual prepared a quote and
Valdivia sent it to corporate. (Tr. 719.)
For the 8-month period ending August 31, 2013, the house-
keeping department was $8,712 over budget. The other de-
partments over budget were maintenance, by $8,311, nursing
by $10,150, and administration, by $47,333. Overall, losses for
that time period were $28,703. (R. Exh. 5.) Valdivia reported
that housekeeping and maintenance were chosen for subcon-
tracting because those were the only departments that did not
impact patient care. (Tr. 707.) For the last 2 years the compa-
ny had been operating in the red, and Valdivia had heard com-
ments from the corporate office that they might need to shut
down the facility if financial performance did not improve. (Tr.
711.) The losses in 2012 were $336,562, and the losses in 2013
were $249,193. (R. Exh. 6.)
The housekeeping employees were not notified of this con-
tract, and continued to work as normal. The housekeepers were
scheduled into November and their vacation requests were
granted into November. (Tr. 60–61, 247, 395; GC Exhs. 61–
62.)
E. CNAs on the Night Shift and Events of October 6/7
Typically, three CNAs work the night shift in the main build-

16 At another point during her testimony, Valdivia said she was part
of the discussions and recommended that VDS subcontract housekeep-
ing, but could not recall who at corporate she spoke with about this.
(Tr. 89.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
ing, and one or two work at the Casas. The employees who
work in the Casas come to the main building regularly. (Tr.
125, 161.) During the relevant time period, the charge nurses
on the nightshift were Ingrid Castillo and Jennifer Abaunza.
CNA Martha Aparicio worked at VDS’s main building from
June 2007 through October 18, 2014, on the night shift. Other
CNAs on the night shift included Lerma Davis, who has
worked for VDS for almost 10 years; Maria Lopez, who has
worked for VDS since 1990; and Hermila Negrete, who worked
for VDS roughly 5 years. CNA Delfina Sanchez worked on the
nightshift at VDS for 3 weeks, from the end of September until
October 18, 2013. (Tr. 123–125, 161, 178, 201.)
CNAs working the nightshift make rounds during the first
couple hours of their shifts. This includes checking each room
to see what patients needs, and then fulfilling those needs. Dur-
ing the relevant time period, they usually clocked out after this
for their ½-hour break, which tended to be somewhere between
12:30 and 2 a.m. They generally took their actual breaks later,
when things were quieter, which was usually around 3:30-4
a.m.17 (Tr. 126–127, 132, 172–173, 191, 203, 523–524.) If
there was not time, they would sometimes not take a meal
break. The CNAs would tell the charge nurse when they were
going to take their breaks. (Tr. 132–133.)
Patients communicate needs through use of a light system. A
patient can activate the lights, which are at the nurses’ station
and were accompanied by a sound, if they need anything in the
night. (Tr. 127.) Some patients, however, are not able to
move, so it is important for the nurses on the night shift to
check in on them. CNAs on the night shift turn patients who are
unable to move every 2 hours to prevent bedsores. (Tr. 594.)
It is common for CNAs on the nightshift to take naps during
their breaks. When there are no lights on, the CNAs routinely
sit in four chairs in front of the nurses’ station and close their
eyes when things are not busy. (Tr. 137, 191–194, 210–211,
517.) CNAs check with the charge nurse before taking naps.
Martha Aparicio, Maria Lopez, Lerma Davis, Delfina Sanchez,
and Aurora Rodriguez took naps on the nightshift in view of the
charge nurses. Nobody was previously disciplined for taking
naps. (Tr. 138–140, 173–174, 183, 211–212, 517.)
Abaunza was the charge nurse for the night shift on October
6–7. Maria Lopez was scheduled to work the nights shift at
Casa, and Martha Aparicio and Delfina Sanchez were sched-
uled to work in the main building. Maria Lopez clocked in at
11:07 p.m., clocked out for her break at 12:33 a.m., and clocked
back in at 1:01 a.m. She completed her shift at 7:05 a.m. (Tr.
64, 70.) Aparicio signed in at 11:10 p.m.,18 signed out for her
meal break at 1:30 a.m., and signed back in at 2 a.m. (GC Exh.
44; Tr. 132.) In line with her usual practice, she did not take
actually take her meal break from 1:30–2 a.m. Aparicio asked
Abaunza for a break around 4 a.m. that day. She was with

17 According to Cuellar, Valdivia, and Hanson, it was not a common
practice for CNAs to work through the lunch break and take their actual
breaks later. (Tr. 599, 646–647, 701–702.) For the reasons set forth in
the analysis section below, I do not credit this testimony.
18 When she was hired, she told Esther Cuellar she would not be able
to start until about 11:20 or 11:30 because she had an underage child
she could not leave home alone. She was permitted to come in late, and
did so regularly without discipline. (Tr. 151–152.)
Delfina Sanchez and Maria Lopez. It had been a very heavy
night, and the three CNAs sat on the chairs by the nurses’ sta-
tion, put up their feet on adjacent chairs, and rested. All three
employees were resting in the same manner. She took her
break and fell asleep for about 25 minutes. Delfina Sanchez
and Maria Lopez each slept for about 15 minutes. (Tr. 133–
134, 184–186, 207–208.)
At about 4:20 a.m. on October 7, Thomas Adelman, the son
of a resident, reported seeing employees asleep at VDS. He
used his phone to take photographs of the employees. (Tr. 94,
97–100.) One of the individuals picture sleeping was a hospice
worker tending to his mother in her room. (GC Exh. 36.) This
individual did not work for VDS. The other employees were
by the nurses’ station. The employees pictured sleeping were
Abaunza, Aparicio, and Delfina Sanchez. In addition to the
individuals he photographed, Adelman saw another CNA sleep-
ing off to the left side of the room. (Tr. 103, 135; GC Exhs.
37–39.) This was Maria Lopez, who had a sweater over her
face and had closed her eyes. (Tr. 135, 183–186.) The charge
nurse eventually woke up and raised her head.19 (Tr. 104.)
Adelman told Abaunza he had taken the photographs. Abaunza
told the CNAs about the pictures. She instructed the CNAs to
just continue to work as normal. (Tr. 134, 209.)
Later that morning, Adelman came back and showed the
photographs to Valdivia. At Valdivia’s request, he emailed her
the photographs. He told Valdivia he saw five individuals
sleeping. (Tr. 106–109.)
DON Warner told Charge Nurse Castillo about the incident
and showed her the pictures. Warner told Castillo to make sure
the CNAs do not take breaks at the same time and to make sure
Castillo was always at the nurses’ station. Warner said she un-
derstood how hard it was to work the night shift, and it was
okay for the CNAs to close their eyes, but to make sure they
did not take breaks at the same time, and that their eyes were
open when they were not on break. Warner did not state the
individuals involved would be disciplined. (Tr. 508–509.)
Two days after the incident, Castillo spoke with Davis and
Negrete. She told them a family member came to VDS and
took pictures of CNAs sleeping. She told them that they were
going to start taking turns taking their breaks. (Tr. 171–172.)
Around this same time, Castillo told Martha Aparicio and
Delfina Sanchez that she had spoken to the Warner and was
told not to worry. She told them if they needed a nap they just
needed to make sure somebody else could relieve them. (Tr.
136–137, 509-510.) After the incident and after Castillo’s
meeting with Warner, Sanchez and Aparicio worked their regu-
larly scheduled shifts on October 7, 8, and 11–14, 2013, with-
out issue.
During the week following October 7, CNA Lerma Davis
took naps during her break in view of Charge Nurse Castillo,
and was not disciplined. CNAs Delfina Sanchez, Hermila
Negrete, Aurora Rodriguez, and Maria Lopez all napped while
on break during this same time period, in view of Castillo. (Tr.
175–176, 213.)

19 Adelman mistakenly referred to this individual as the receptionist.
VISTA DEL SOL HEALTH SERVICES, INC. 9
F. Union Authorization Cards
During the week of October 7, employees started to sign un-
ion authorization cards. The union authorization cards stated:
I hereby authorize SEIU, its agents or assigns, to act for me as
my exclusive representative for the purpose of collective bar-
gaining with my employer regarding wages, benefits, and
other terms and conditions of employment. I understand and
agree that this card may be used to establish majority support
among the employees in the unit in which I am employed and
obtain voluntary recognition from my employer without an
NLRB election.
(GC Exhs. 2–33.)
Rosa Lopez signed a union authorization card the week of
October 7. She asked almost all of her coworkers to sign cards,
and collected cards from about 5 of them. (Tr. 237–238.) Re-
storative nurse assistant (RNA) Reyna Artola voluntarily signed
a union authorization card on October 10. (Tr. 440; GC Exh.
27.)
CNAs Lerma Davis, Martha Aparicio, Marcos Salvador,
Delfina Sanchez, Remedios Lopez, Dafny Cobar, Ivania Rueda,
Jeannette Aguilera, Maintenance Worker Genaro Meza, and
Housekeeper Elisa Mayorga, each voluntarily signed authoriza-
tion cards on October 11. (Tr. 128, 163–164, 204–205, 290–
291, 304–305, 316, 337–338, 403–404, 476–479; GC Exhs. 2,
4, 6, 8, 11, 12, 15, 17, 18, 22, 26.) Delfina Sanchez received
her card from Sandra Cerros.20 (Tr. 204–205.) Other employ-
ees who signed cards on October 11 were Danely Suazo, Gua-
dalupe Figueroa, Maria Rodriguez, Mirna Scoovia, Reyna
Artola, and Silvia Figueroa. (GC Exh. 3, 9, 20, 23, 27, 32.)
Zenon Bernardino, the cook at VDS for the last 26 years,
voluntarily signed a union authorization card on October 12.
(Tr. 467–469; GC Exh. 33.) Elfega Lopez, Kiran Singh, Omela
Cuesta, Petrona Davila, Rosalba Salazar, and another employ-
ee21 also signed an authorization cards on October 12. (GC
Exhs. 5, 14, 21, 24, 25, 30.)
On October 13, the following individuals voluntarily signed
union authorization cards: CNAs Maria Lopez, Maria Ramirez,
and Erika Salguero, and Housekeepers Maria Menjivar22 and
Romana Lopez. (Tr. 179–180, 283, 355–356, 367–368, 460–
462; GC Exhs. 7, 17–19, 28.) CNA Hermila Negrete voluntari-
ly signed an authorization card on October 14. (Tr. 188–189;
GC Exh. 10.) Juana Navarlete and Sandra Cerros also signed
authorization cards on October 14. (GC Exhs. 13, 31.)
Perdomo did not sign a union card because some friends told
her she could lose her job if the Union did not win. Mayorga
asked her to sign a card, but Perdomo told her no. Mayorga did
not call her a traitor. She was not threatened about signing a

20 Valdivia stated that CNA Sandra Cerros told her around October
17 that she felt forced to sign the petition. (R. Exh. 3; Tr. 685.) Sandra
Cerros was not a witness in this proceeding. Given Delfina Sanchez’
unrefuted testimony that Cerros gave her an authorization card to sign, I
find the hearsay evidence is not reliable and it is insufficient to prove
Cerros felt forced to sign the petition.
21 The name on GC Exh. 21 is illegible.
22Maria Menjivar is now married and her surname is Valladares. She
is referred to in this decision by her maiden name.
union card, and nobody made promises to her to get her to sign
a card. (Tr. 380–382.)
Velasco signed a card Marcos Salvador gave to her at work.
She felt forced to sign because the Union had majority support,
and she feared she would have to pay double. (Tr. 562–563.)
All told, As of October 14, 32 of the 46 employees in the
proposed unit had signed union authorization cards, and desig-
nated the Union as their exclusive collective-bargaining repre-
sentative.23 (GC Exhs. 2–33, 94.)
G. Events in Mid-October
1. October 14 petition and march
As Maria Ramirez was punching out at about 3 p.m. on Oc-
tober 14, Valdivia asked if “they” had been back to look for
her. She responded that they had, but her son told them to look
for her at work. Valdivia said she knew who “they” were, and
Maria Ramirez responded that she did too. Valdivia asked
what the cards were that they were handing out, and asked Ma-
ria Ramirez to come to her office. Maria Ramirez said that they
were going to take her a list, and she had signed it. Valdivia
asked why, and Maria Ramirez responded that she liked her
job, but she wanted to be valued and respected. She said that
during the in-service meetings with Vida Zelaya, they were
humiliated. Valdivia told her VDS was a good place to work,
and that she could change her mind if she wanted to. Valdivia
told Maria Ramirez that if she put her trust in the Union, the
two of them would not be able to speak as they were doing.
She also told her not to comment about the raise she had been
given because VDS had not done evaluations due to the losses
it was experiencing. (Tr. 269–273.)
A short time later, a group of about 25 off-duty employees
and union field organizers Eduardo Gutierrez, Paul
Vellanoweth, and Jose Manzano, met about two blocks away
from the hospital. The employees were given T-shirts bearing
the Union’s name to wear. They all proceeded together and
approached Valdivia at the nurses’ station at about 3:30–3:45
p.m. (Tr. 141, 239, 481.) Employee Marcos Salvador spoke,
and told Valdivia the employees were marching to communi-
cate the desire for the Union to come to VDS. (Tr. 483.) Sal-
vador presented Valdivia with a petition signed by 31 employ-
ees stating:
We the undersigned employees of Vista Del Sol Healthcare
Services are marching in support of Union recognition.
An overwhelming majority of the employees have signed
cards to join the union. We hereby authorize SEIU–ULTCW,
Service Employees International Union—United Long Term
Care Workers, its agents or assigns, to act for as our exclusive
representative for the purposes of collective bargaining with
our employer regarding wages, benefits, and other terms and
conditions of employment. We represent a majority of em-
ployees who have signed authorization cards and are request-
ing Vista Del Sol to sign below to grant card check union
recognition upon showing of a majority of authorization

23 This does not include a card from Velasco, who testified she
signed because she feared she would have to pay double if she didn’t
sign a card.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
cards.
(GC Exh. 34; Tr. 41.)
The following employees participated in the march: Marcos
Salvador, Martha Aparicio, Lerma Davis, Delfina Sanchez,
Aurora Rodriguez, Reyna Artola, Remedios Lopez, Rosalba,
San, Jeannette, Rosa Lopez, Ivania Rueda, Angelica, Silvia
Figueroa, Zenon Perez, Eliza Mayorga, Maria Ramirez, and
Genaro Meza, among others.24 (Tr. 131, 141, 165, 206, 239,
305–306, 338–339, 407, 480.) They all wore purple shirts
bearing the Union’s name. (Tr. 39, 240, 275, 307, 340.)
Valdivia told Salvador she did not have the authority to sign
the form and she would route it to corporate. She then told
them to leave the building. (Tr. 41, 143, 240, 275, 308, 340,
409, 483.) There were no threats of violence or damage to
facility. (Tr. 42.) The employees were not loud and they did
not shout, chant, or make aggressive comments.25 (Tr. 483,
350.) Rosa Lopez was the last one to leave. Valdivia ap-
proached her and said, “Rosa, we know each other.” (Tr. 241.)
Yolanda Velasco signed the petition because the Union had
majority support and she feared she would have to pay double
if she did not support the Union. (Tr. 563–564; R. Exh. 3.)
CNA Maria Lopez did not sign the petition and did not
march, nor did Maintenance Employee Ramon Lopez. (Tr.
181–182, 274, 307–308, 339–340.)
Valdivia forwarded the petition to Preimesberger. (R. Exh.
3.)
Employees sometimes came to the facility on their days off
to visit with residents. They didn’t stay long and Valdivia did
not have a problem with it. (Tr. 45, 241, 341, 410, 484.)
2. Meetings and conversations during the week of October 14
During the week of October 14, management held meetings
with employees about work rules. She distributed pages of the
employee handbook regarding work rules and progressive dis-
cipline, and discussed penalties for tardiness. (Tr. 51; GC
Exhs. 66–68.)
On October 15, employees Rosa Lopez, Genaro Meza, Eliza
Mayorga, Carmelina Perdomo, Maria Menjivar,26 and Dafny
Cobar met with Valdivia, Cuellar and E. Valdivia in Valdivia’s
office.27 (Tr. 242, 318, 341–342.) Valdivia showed the em-
ployees a page from the handbook about employee leave and
conduct. She then asked what time their shifts started, and told
them they needed to come in at their scheduled time. (Tr. 243,
294, 319–320, 342–343, 369–371, 386–388; GC Exh. 68.)
Rosa Lopez asked if there was a grace period, and Valdivia
responded that it was 7 minutes. Valdivia said the third time
they were tardy, they would be terminated. She also told them
that they should come appropriately dressed, and they should

24 Not all of the individuals’ surnames are known.
25 In her affidavits, Valdivia stated that the man who was with the
employees yelled, “we’re in, we’re in” as they were leaving the build-
ing. (R. Exh. 3; GC Exh. 89.) During the hearing, Valdivia testified,
“They were all chanting—’we’re in, we’re in,’” but did not say this was
as they were leaving. (Tr. 41–42.)
26 Meza and Mayorga referred to Menjivar’s first name as Isabel.
(Tr. 318, 342.)
27 Cobar recalled the meeting was October 16. (Tr. 292.)
not wear shirts with logos on them. (Tr. 244, 294, 320, 343.)
Warner and Zelaya conducted another in-service meeting
with CNAs on October 15, in the small dining room. Roughly
four employees were present, including RNA Artola and CNAs
Elfega Lopez, Rosalba Salazar, and Maria Ramirez. During the
meeting, Warner said that there would be zero tolerance for
tardiness, that she was going to look at each punch-in time, and
that employees arriving seven minutes late would receive a
warning. Warner said she would give the employees paper-
work the following day. (Tr. 276–278.)
Valdivia, Warner, and Zelaya held another meeting on Octo-
ber 16, in the lobby of Valdivia’s office. About six employees
were present, including RNA Artola and CNAs Salvador, Kiran
Singh, Elfega Lopez, and Maria De Fatima Rosa. (Tr. 485–
486; GC Exh. 66.)28 Warner asked the employees what posi-
tions they held. She said they were doing a good job, but from
this point forward there would be zero tolerance for tardiness.
Warner began by stating there was a new arrival time. The 7-
minute grace period was being change to a 5-minute grace pe-
riod, and they would receive warnings if they were tardy. She
also said uniforms with logos would not be permitted. (Tr.
484–486.)
Warner held another meeting on October 17, with CNAs
Lerma Davis, and Hermila Negrete. She said she was going to
look at the punch-in time for each employee. Warner showed a
entry for Davis showing that she had clocked in at 11:06. Da-
vis responded that she was within the 7-minute grace period.
Warner responded that she didn’t know anything about that,
and said she would be monitoring their clock-in times. Davis
was never given discipline about tardiness. (Tr. 167–170.)
Warner and Valdivia conducted another meeting on October
18 in Valdivia’s office. RNA Artola was presented, as were
CNAs Ivania Rueda and Anabela Gamez. Warner gave them a
piece of paper and told them they could not arrive late. (Tr.
308–310; GC Exh. 67.) 29 Prior to this meeting, Rueda was not
aware of a policy stating employees would be disciplined for
being more than seven minutes late. The employees were pro-
vided with a copy of the policy. (GC Exh. 68.)
In the past, if they employees were late, they could make up
the time. Rosa Lopez, Meza, Mayorga, Menjivar, Perdomo, and
Cobar were not aware of a rule stating an employee would be
fired the third time she was tardy. (Tr. 245, 295, 321, 344,
388–389.) Rosa Lopez was typically tardy beyond the grace
period once or twice a week, and had not been disciplined for
it. (Tr. 246.) Cobar was tardy once or twice a month, but had
not been disciplined for it. (Tr. 295.) Mayorga was tardy about
twice per week and was not disciplined. (Tr. 345.) Perdomo
was also tardy about twice per week and was not disciplined.
(Tr. 390.) Maria Ramirez would typically stay about 30–40
minutes after her shift 2–3 times per week to wait for Petrona
or Miguel30 to show up and relieve her. (Tr. 277–279.) Salva-

28 It is clear that GC Exh. 66, the notes from the in-service meeting,
reflect more than one meeting, as multiple times are reflected on the
document.
29 It is clear that GC Exh. 67 likewise represents notes from more
than one meeting, as multiple times are reflected on the document.
30 The surnames of these employees is not a matter of record.
VISTA DEL SOL HEALTH SERVICES, INC. 11
dor had been late before without repercussions. (Tr. 486–487.)
None of the employees were aware of a rule stating employees
could not wear shirts with logos. (Tr. 246, 295–296, 345, 372,
390, 486–487.)
Valdivia denied there was a change in the rule, stating that
tardiness was a recurring problem she regularly addressed with
the staff. She has not disciplined anyone for coming in late.
(Tr. 702–703.)
3. Valdivia’s distribution of voluntariness forms and inquires to
employees,
October 15–22
Valdivia, in consultation with Preimesberger, prepared the
following document, which will be referred to as the voluntari-
ness form:
To:
From: Vista Del Sol Care Center
Re: Union Affiliation by means other than Voluntary
Dear: _____________
It has come to our attention by several of you that you have
been recently approached at your homes or within our prem-
ises seeking your signatures in support to a certain Petition.
Some of you have expressed concern with Intimidation tactics
by which your signatures were forced into a form. Concur-
rently with your concerns, we have received a sheet signed by
a number of employees apparently in support to a certain peti-
tion to affiliate to a Union.
We need you to know that while you have the right to partici-
pate in any legal association however, you are not obligated to
do so especially as a result of illegal or intimidating tactics. As
such, this Memorandum is intended to allow you the oppor-
tunity to either affirm your voluntary participation or to de-
cline it if you desire. As your employer, we will be dealing
with these issues making sure that your free will, whichever it
is, is respected. Please know that your employment with our
company will not be altered. In any manner as a result of any
decision which you choose to express but only based on your
performance under our exiting guidelines and company poli-
cy.
Please sign and return this form by no later than October 22,
2013
I, ,VOLUNTARILY signed the petition seeking
Print Name
affiliation with (SEIU-United long Term Care
Workers)
I, DID NOT voluntarily signed the petition
Print Name
seeking affiliation with ____________ (SEI U-United Long
Term Care workers)
Dated:____________________________________
Signature
(GC Exh. 82; Tr. 694.) Forms with pre-typed names were pre-
pared for and given to Reyna Artola, Maria Ramirez, Romana
Lopez, Hermila Negrete, Remedios Lopez, Rosa Lopez, Mirna
Segovia, Danely Suazo, Kiran Singh, Rosalba Salazar, and
Dafny Cobar. (GC Exhs. 71–81.) Forms without employee
names on them were left for employees to pick up and fill out.
(GC Exh. 82; Tr. 86.)
Valdivia created the form in response to the employee con-
cerns. (Tr. 688.) Valdivia said that she was worried about the
employees and wanted to know whether they had been forced
to sign union cards. Valdivia made the return date October 22
because she had heard there was to be a vote on October 23.
(Tr. 691.)
On or about October 15, Valdivia told Menjivar to come to
her office. Valdivia explained the document, said she was not
against the Union, but wanted to know if they had been forced
to sign cards. Menjivar said she would take the letter home. She
did not sign it. (Tr. 373–374.)
The Union filed a petition for representation with Board on
October 17, 2013. (GC Exh. 35.)
On October 18, Valdivia told Rosa Lopez she was going to
allow her to take her vacation. Valdivia asked Rosa Lopez
what had happened on Monday, and she responded, “You know
ma’am because you saw me.” Valdivia then said, “I don’t
know what the persons offer you, those that you trust in.” Rosa
Lopez responded that “the human being is like a child. That if
you have one candy you are happy.” Valdivia replied that the
economy was very bad and they did not have enough patients to
give a raise. (Tr. 248–249.)
Valdivia gave Maria Ramirez a copy the voluntariness form
when she was punching out on or around October 18–20. She
told her to read it. Ramirez did not sign it. (Tr. 296; GC Exh.
72.)
Around October 19, at about 3:15 p.m.,Valdivia asked
Perdomo if someone had given her a card to sign. Perdomo
responded that Mayorga had given her a card but she had not
signed it. Valdivia told her to let her know if she was forced to
sign a card. (Tr. 390–391.)
Around October 20, during break time, Charge Nurse
Arcadio DeBorja and Maria Lopez were in a small room re-
ferred to as the utility room. DeBorja asked Maria Ramirez
whether she was a member of the Union. Maria Ramirez
Romana Lopez met with Valdivia in her office the morning
of October 21. Valdiva showed her the voluntariness form and
asked whether she understood it. Romana Lopez said she did
not understand the form. Valdivia asked whether she was being
forced by the Union, and Romana Lopez responded that she
was not being forced. Valdivia told Romana Lopez to sign the
letter and she would have no problems. She showed her where
sign, pointing to the line indicating that she did not voluntarily
sign the petition seeking to affiliate with the Union. (Tr. 357–
358.)
On October 21, Valdivia asked Rosa Lopez to come to her
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
office. She gave Rosa Lopez a copy of the voluntariness form,
with her name pre-typed on it. (GC Exh. 76.) Valdivia read
the letter to Rosa Lopez in English and explained it to her in
Spanish. She told Rosa Lopez to sign the letter if she had felt
forced to sign a union card. Valdivia said that if Rosa Lopez
signed the letter stating that she had been forced, she would
have her job as long as she liked. Rosa Lopez said she had not
been forced, and she wanted the Union. (Tr. 251–252, 256.)
Cobar received the voluntariness form from Valdivia at
about 4 p.m. on October 21. Valdivia told her to read it and
sign it. (Tr. 296; GC Exh. 81.)
That same day, Valdivia called Velasco into her office and
asked her if she had signed the petition voluntarily. Velasco
responded that she had been pressured to sign. Valdivia gave
Velasco a copy of the form, with her name typed in, and Velas-
co signed, stating that she did not sign the petition voluntarily.
(Tr. 564–566; R. Exh. 1.) Velasco believed that if she signed
this document, she would not be part of the Union. (Tr. 572–
574.)
Around this same time, Valdivia and Meza met in Valdivia’s
office. Valdivia asked Meza if he knew what he had done, and
asked if they had forced him to sign. She handed him a copy of
the letter and told him he could sign it if he had felt the Union
had forced him to sign. He did not respond, and Valdivia said
she did not trust him anymore. She asked what the Union was
offering them. He said he was in favor of the Union because
when he would go to the office to speak with her, she would
not give him attention. (Tr. 322–325.)
Later that day, Meza spoke with Cuellar. She asked him if
he was going on vacation, and he replied that Valdivia had not
approved it. Cuellar said she felt sorry for them because Valdi-
via was well prepared. (Tr. 325–326.) The conversation took
place between Cuellar’s office and the laundry room. Mayorga
overheard it. (Tr. 346.)
H. October 18 Terminations of Martha Aparicio and
Delfina Sanchez
CNAs Martha Aparicio and Delfina Sanchez were issued no-
tices of termination on October 18.31 (GC 45–46.) That morn-
ing, at about 8 a.m. Aparicio met with the Warner and Cuellar
in Warner’s office. Warner spoke and Cuellar translated.
Warner told Aparicio she was not needed at VDS anymore.
When Aparicio asked why, Warner mentioned the pictures
Adelman took and said she knew she was not permitted to sleep
at work. Aparicio asked why they waited so long to terminate
her if what she did was so bad. Warner responded that the
order came from Valdivia. Aparicio said to Warner, “Well,
you’re the one that told us not to worry, to just continue work
as normal and if that someone fell asleep, just to make sure
there was someone that could relieve her.” Aparicio mentioned
that she was on a break when she was sleeping. She also men-
tioned that the nurses always sleep. (Tr. 615.) Warner again
said there was nothing she could do because the order came

31 On an undetermined date, Valdivia told Cuellar she was ready to
terminate Sanchez, Abaunza, and Aparicio. Cuellar agreed that VDS
should follow their policy and terminate them. Jennifer Abaunza was
issued a notice of termination on October 28, 2013. (Tr. 607–608; GC
Exh. 48.)
from Valdivia. Warner gave Aparicio her check and told her to
sign a notice of employee reprimand, but Aparicio refused to
sign it. (Tr. 146–150; GC Exh. 45.) Prior to this meeting, no
supervisor had questioned her about the events of October 7.
(Tr. 150.)
That same day, at around 11 a.m., Sanchez met with Warner
and Cuellar in Warner’s office. Cuellar provided translation
from English to Spanish. (Tr. 612.) Warner told Sanchez that
someone had taken pictures of her asleep, and that she was
being terminated. Sanchez asked why this was happening 2
weeks after the incident. Warner apologized, but said that be-
cause of the pictures, she had to take action.32 Sanchez asked if
she was firing all of them, and Warner responded that she was
terminating “all three.” Sanchez told Warner that there were
four individuals sleeping, including Maria Lopez. Warner said
she did not know anything about that but she would continue to
investigate to see if someone else had fallen asleep. Sanchez
was not questioned prior to this meeting. (Tr. 215–217.)
Final checks issued for Martha Aparicio and Delfina
Sanchez on October 15, 2013. (Tr. 70; GC 47.)
The decision to terminate Martha Aparicio and Delfina
Sanchez was a joint decision by Warner, Cuellar, and “corpo-
rate.” Valdivia said there was a “little bit of an investigation”
because they had the pictures. (Tr. 695–697.) She did not
speak with Aparicio or Sanchez or question them prior to their
terminations. (Tr. 89–90, 735.) The reason Valdivia gave for
retaining Maria Lopez was that she was not on the schedule and
was working in a different building, so Valdivia did not believe
she was involved in the incident. (Tr. 697–698.)
After the CNAs were terminated, cameras were installed but
CNAs continued to sleep during their breaks. (Tr. 195.)
On October 22, Castillo ran into Cuellar in the parking lot as
she arrived for her shift a little before 3 p.m. She asked why
they were hiring so many nurses. Cuellar said Valdivia was
going to get rid of the people who joined the Union, and re-
marked that she was glad she was going on vacation with eve-
rything that was happening. (Tr. 512.)
At around 5 p.m. that day, Castillo and Zelaya were at the
nurses’ station. Zelaya said some people tried to talk Valdivia
out of firing people.33 (Tr. 513.)
At Valdivia’s request on either October 30 or 31, Adelman
wrote a statement regarding what he observed on October 7.
His statement, dated October 31, stating that he saw Sanchez
and Aparicio “deeply asleep” on some chairs. He further noted
that when he turned to the nurse at the desk, she was also
asleep. He did not mention the hospice worker because he was
not a VDS employee. Adelman did not mention the other nurse
in the reception area because he wrote the statement to support
the photographs, and he did not have a photograph of this other
CNA. (Tr. 111, 114–115; GC Exh. 40.)

32 Cuellar denied that Warner apologized or showed sympathy. (Tr.
614.)
33 Castillo memorialized her recollection of these conversations, as
well as the conversation with Warner about the nurses who were sleep-
ing in statements dated October 21 and October 24, 2014. (GC Exhs.
41, 42.)
VISTA DEL SOL HEALTH SERVICES, INC. 13
I. Discharge of Housekeepers and Maintenance Worker
All six housekeepers and maintenance worker Genaro Meza
received their notices of terminations between October 25–27.
(Tr. 74; GC Exhs. 49–55.) All of the discharged employees,
except Perdomo, openly supported the Union.
Meza was scheduled to work on October 25. Valdivia called
him into her office in the afternoon. E. Valdivia and Cuellar
were also present. Valdivia told Meza they would no longer
need his services because people from the outside would be
performing his job. (Tr. 328–329.) Mayorga and Menjivar also
worked October 25, and were let go in a similar manner. (Tr.
348, 374–375.)
On October 26, Valdivia met with Cobar, told her the com-
pany had decided to contract with a cleaning agency to do the
housekeeping, and told her she would give her a reference if
she needed one. (Tr. 297.)
On October 27, VDS’s housekeeping employees came to
work as scheduled. Ramon Lopez approached Rosa Lopez and
told her she needed to train a new employee. The new employ-
ee wore a red apron that said “Pro-Clean.” Rosa Lopez trained
the employee and, as she was walking to the parking lot, she
ran into Romana Lopez who said she had just been fired. Rosa
Lopez then saw Valdivia, who asked to speak to her. They
went to Valdivia’s office and Valdivia told her that the corpora-
tion decided to have another company do the housekeeping,
and she was being laid off. Valdivia gave Rosa Lopez a check
for the week and for her vacation. (Tr. 257–259.) Romana
Lopez and Carmelina Perdomo were let go in a similar manner.
Perdomo asked whether the CNAs were being let go, and ex-
pressed her belief that the housekeepers were being let go be-
cause of the Union. Valdivia responded that she could not let
the CNAs go if they were keeping the rules. (Tr. 358, 392–
394.)
The housekeeping employees saw their names on the sched-
ule for November 2013 posted shortly before they were dis-
charged. (GC Exh. 60; Tr. 262, 349, 361, 376, 396.)
The contract noted a monthly savings of $831. The annual
amount to be paid under the contract was 184,872, in monthly
installments of $15,406. (GC Exh. 56.) From July–October
2013, the monthly amount VDS paid to Pro-Clean was
$16,387.36. (GC Exh. 98.)
At the time of the discharges, there were two maintenance
employees, Genaro Meza and Ramon Lopez. Meza, who was
discharged, had signed the union petition and participated in the
march. Ramon Lopez, who was retained, did not sign the union
petition or participate in the march. (Tr. 75.) Valdivia said
Ramon Lopez was retained because he worked the evening
shift and doubled as a security guard, and Pro-Clean does not
provide services in the evening.34 (Tr. 720–721.) Meza, who
had worked at VDS since 1993, had more seniority than Ramon
Lopez.
At the time of their discharges, Maria Menjivar had worked
for VDS since 1980, Carmelina Perdomo had worked for VDS
since November 3, 1983, Elisa Mayorga had worked for VDS

34 Valdivia said Ramon Lopez worked 3–7 p.m. both before and af-
ter the switch to Pro-clean but the evidence shows he worked more.
(Tr. 779; GC Exh. 100.)
since December 20, 1988, Dafny Cobar had worked for VDS
since April 4, 1999, Rosa Lopez had worked for VDS since
August 4, 2000, and Romana Lopez had worked for VDS since
2007. (Tr. 234, 288, 335, 352, 366, 379.)
J. Post-Discharge Events
1. Employee visits to facility in November 2013
In November 2013, Rosa Lopez, Elisa Mayorga, Romana
Lopez, and Genaro Meza returned to VDS with union organizer
Eduardo Gutierrez to request their files. Valdivia said she could
not provide them, and they would need to officially request the
files. She told them to leave. (Tr. 261–263, 329–330, 350,
362.)
2. CNA raises in December 2013
For the pay period beginning December 1, 2013, VDS gave a
50-cent across-the-board wage increase to all CNAs. (Tr. 18–
19.) Lerma Davis, Ivania Rueda, and Remedios Lopez’s most
recent raises had been 5 years prior. (Tr. 176, 312, 410.) The
wage increase was discretionary and unscheduled. (GC Exh.
85.)
3. Conversations between CNA Remedios Lopez and DON
Jeri Warner in January 2014
Remedios Lopez received a series of text messages from
Warner, who had since been terminated from VDS, between
January 1 and January 21, 2014. They stated, in relevant part:
Rosa did get rid of house keeping and laundry because she
said the CNA will need 50% vote. I did not agree with her
practices so she has to fire me too.
. . .
What is the name of your local union and the local number? I
am writing corporate to let them know that Rosa was retaliat-
ing against the CNA formation of the union. I will tell your
union if the (sic) want 2 know. I also told Dion this same
thing so I am not a disgruntled employee!
. . .
Of course I said all along but she was so mad about this union
business Rosa did (sic) even want 2 do employee of the
month which I said should be u and Marcos. Nope she wAs 2
mad.
. . .
I know that the people rosa fired have a case with the labor
board. I need to find out information about that. I think rosa is
gonna blame things on me & I need to make sure she does not
& I do need to let the labor board know that rosa fired them as
retaliation. If u know anything let me know.
(GC Exh. 92; Tr. 412–413; 418.) Remedios Lopez also spoke
with Warner the day she was terminated. Warner told him that
“she wanted us to continue with the Union and she wanted to
help us. And if we needed anything to call her and she would
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
give us good advice.” (Tr. 419.)
4. October 9, 2014 letter
On October 9, 2014, the Respondent’s attorney sent a letter
to the Region regarding settlement. The letter was copied to the
Union’s attorney and states, in relevant part:
Please accept the following as a reply to both the proposals
for settlement as well as the warnings if settlement fails. . . .
We strongly suggest that the Board ensure that the employees
are made aware of these offers and that they have a say in the
decision. They may not like the alternative. . . . the only alter-
native VDS [Vista Del Sol/Respondent] will have is to close
down its facility. In such a situation, . . . the remaining of the
60 employees will lose their employment. . . . This letter is
been [sic] sent to the Union’s Counsel as well in the hope that
she makes the Claimants [discriminatees] aware of all alterna-
tives so they have the opportunity to make informed selfless
decisions.
(GC Exh. 83.) On November 3, 2014, Paul Vellanoweth from
the Union showed Remedios Lopez, Rosa Lopez, and Reyna
Artola the letter when they met at a McDonald’s. (Tr. 414–
415, 441–442.)
On July 14, 2014, Valdivia sent an email to Luis Torres at
Pro-Clean services suggesting that they keep Ramon Lopez as
maintenance supervisor in the afternoons, and she would super-
vise the housekeepers in the morning. (Tr. 744; GC Exh. 95.)
III. DECISION AND ANALYSIS
A. Credibility Legal Standards and General Findings
Many of the disputes at issue rest on witness credibility. A
credibility determination may rest on various factors, including
“the context of the witness’ testimony, the witness’ demeanor,
the weight of the respective evidence, established or admitted
facts, inherent probabilities and reasonable inferences that may
be drawn from the record as a whole.” Hills & Dales General
Hospital, 360 NLRB No. 70, slip op at 7 (2014), citing Double
D Construction Group, 339 NLRB 303, 305 (2003); Daikichi
Sushi, 335 NLRB 622, 623 (2001). In making credibility reso-
lutions, it is well established that the trier of fact may believe
some, but not all, of a witness’s testimony. NLRB v. Universal
Camera Corp., 179 F.2d 749 (2d Cir. 1950).
The Board has agreed that “when a party fails to call a wit-
ness who may reasonably be assumed to be favorably disposed
to the party, an adverse inference may be drawn regarding any
factual question on which the witness is likely to have
knowledge.” International Automated Machines, 285 NLRB
1122, 1123 (1987), enfd. 861 F.2d (6th Cir. 1988). This is
particularly true where the witness is the Respondent’s agent.
Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022
(2006). Moreover, an adverse inference is warranted by the
unexpected failure of a witness to testify regarding a factual
issue upon which the witness would likely have knowledge.
See Martin Luther King, Sr., Nursing Center, 231 NLRB 15, 15
fn. 1 (1977) (adverse inference appropriate where no explana-
tion as to why supervisors did not testify); Flexsteel Industries,
316 NLRB 745, 758 (1995) (failure to examine a favorable
witness regarding factual issue upon which that witness would
likely have knowledge gives rise to the “strongest possible
adverse inference” regarding such fact).
Where there is inconsistent evidence on a relevant point, my
credibility findings are incorporated into my legal analysis
below. My general observation, however, was that Valdivia’s
testimony was contradictory at times. For example, she testi-
fied both that she gave input into the decision to subcontract the
housekeeping department, and that she was not involved in the
decision. Her testimony was also inconsistent with other relia-
ble evidence of record. For example, she said she was not at
any of the October meetings with employees regarding tardi-
ness and uniforms, but this is contradicted by the corroborative
testimony of multiple witnesses. Valdivia gave further incon-
sistent testimony about the level of investigation she conducted
prior to terminating Martha Aparicio and Delfina Sanchez. She
testified that she did a “little bit” of an investigation, but did not
speak with either employee prior to terminating them. For the
first time at the hearing, Valdivia said she called them on the
phone and neither answered. (Tr. 90.) This simply lacks cre-
dence, given that minimal effort would have been required for
her to reach Martha Aparicio and Delfina Sanchez to speak to
them.
Valdivia was at times evasive in her testimony. For exam-
ple, she testified about a stricter policy regarding employees
visiting VDS off duty until she was presented with her affida-
vit. (Tr. 43–45.) Valdivia was also evasive when it came to
identifying decision-makers. She referred to “corporate” dur-
ing her testimony but, even when pressed, was reluctant to
provide names of the individual decision makers comprising
“corporate.”
The testimony of the employees and former employees was
generally corroborative and credible, as discussed below. Tes-
timony from current employees tends to be particularly reliable
because it goes against their pecuniary interests. Gold Standard
Enterprises, 234 NLRB 618, 619 (1978); Georgia Rug Mill,
131 NLRB 1304, 1304 fn. 2 (1961); Gateway Transportation
Co., 193 NLRB 47, 48 (1971); Federal Stainless Sink Div. of
Unarco Industries, 197 NLRB 489, 491 (1972).
The Respondent asserts that the employee and former em-
ployee witnesses were coached to provide the exact same testi-
mony about the events of October 2013. (R. Br. 16–17.) The
record belies this, however, and it is readily apparent that the
witness’ testimony, while generally corroborative, is not exact-
ly the same. The Respondent also argues that the witness’ rec-
ollection of the events at issue does not square with their failure
to recall receiving and signing for the employee handbook.
First, I note that most employees were not asked about their
receipt of the employee handbook. In any event, many of the
witnesses had worked for VDS for a very long time, and there-
fore failure to recall receipt of a document ostensibly given to
them during orientation long ago is not suspicious. For these
reasons, I reject the Respondent’s arguments about witness
coaching.
B. The 8(a)(1) Allegations
The complaint alleges numerous violations of Section 8(a)(1)
of the Act. Under Section 8(a)(1), it is an unfair labor practice
for an employer to interfere with, restrain, or coerce employees
VISTA DEL SOL HEALTH SERVICES, INC. 15
in the exercise of the rights guaranteed in Section 7 of the Act.
The rights guaranteed in Section 7 include the right “to form,
join or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection . . .”
The basic test for a violation of Section 8(a)(1) is whether
under all the circumstances the employer’s conduct reasonably
tended to restrain, coerce, or interfere with employees’ rights
guaranteed by the Section 7 of the Act. Mediplex of Danbury,
314 NLRB 470, 472, (1994); Sunnyside Home Care Project,
308 NLRB 346 fn. 1 (1992), citing American Freightways Co.,
124 NLRB 146, 147(1959).
It is the General Counsel’s burden to prove Section 8(a)(1)
allegations by a preponderance of the evidence.
1. Alleged instructions not to talk to the Union
a. CNAs Remedios Lopez and Marcos Salvador
The complaint alleges, at paragraph 9(a), that in or around
August 2013, Valdivia, by the nurses’ station, instructed em-
ployees not to talk to the Union, in violation of Section 8(a)(1).
Valdivia, Remedios Lopez, and Salvador, all agree that Val-
divia conducted meetings about individuals visiting employees
at their homes during this time period. Valdivia’s testimony
does not reference the Union, and is couched more in terms of
warning employees in light of the theft of the I-9 binder. Salva-
dor recalled Valdivia stating that a man with a tattoo was pre-
tending to be from the Union and was looking to rob the em-
ployees. Remedios Lopez recalled Valdivia stating that if “any
men came to knock on our door at home to not let them in,
because she had lost some document that someone had gone
into her office to steal that and they could do something with
that personal information of ours.” (Tr. 406.) A similar meet-
ing took place around this same time period with Esther Cuellar
and a group of housekeepers.
I find the employees’ accounts of the meeting to be credible
and reliable.35 First, as current employees, Remedios Lopez
and Salvador were testifying against their pecuniary interests.
They responded to open-ended questions in a straightforward
manner, and appeared to be genuinely attempting to recall what
occurred. Moreover, their testimony is generally in line with
Valdivia’s testimony that she held meetings during this time
period, and with the similar meeting Cuellar conducted. It is
also more in line with the events that were unfolding in Au-
gust 2013.
I find that Valdivia’s instructions would tend to restrain and
interfere with employees in the exercise of their Section 7
rights. Though motivation is not a requirement to establish an
8(a)(1) violation, the timing of events is important. Valdivia
reported the alleged theft of the I-9 binder to the police on May
15. Had she truly been concerned about protecting her employ-
ees, it is curious that she waited until August, when the union

35 Though Remedios Lopez had the date wrong, considering the
events occurred more than a year prior to the hearing, I do not find this
renders his memory of the meeting’s content unreliable. See Dorothy
Shamrock Coal Co., 279 NLRB 1298 (1986); Sheet Metal Workers
Local 224, 297 NLRB 528, 535 (1990).
organizers started visiting employees, to warn employees about
the potential consequences of the binder’s theft. Any claim that
Valdivia did not know, or at least suspect, that it was union
organizers visiting the employees is belied by the reports from
employees that union organizers visited them at their homes.36
(See, e.g., GC Exh. 89, p. 2.) From the employees’ standpoint,
as Union organizing efforts were getting underway, the highest
management official at the facility was instructing them that the
individuals claiming to be from the Union were thieves, and
saying the employees should not open their doors to them.
Valdivia easily could have told employees about the poten-
tial breach of their personally identifiable information and
warned them to take precautions without implicating the Union
and stating that the individuals visiting them were thieves.37 In
her affidavit, Valdivia stated that she posted a notice of the
theft by the employee time clock “sometime later in May,” and
that she had a copy of the notice. (R. Exh. 3.) The notice was
not attached to her affidavit or provided at the hearing. In its
response in the 10(j) proceedings, the Respondent said Valdivia
“filed a police report that same day and notified employees of
the theft . . . .” (GC Exh. 88.) The record is devoid, however,
of any employee meetings at or around the time the binder went
missing. In fact, the record contains examples of Valdivia in-
forming employees of the binder’s disappearance during these
meetings.
In short, it was not until Valdivia received reports of em-
ployees being visited by the Union that she decided to hold
meetings warning employees not to answer their doors. Particu-
larly when coupled with other evidence of coercion herein, I
find the meeting violated Section 8(a)(1) as alleged.
b. Housekeeper Rosa Lopez
Paragraph 9(b) of the complaint alleges that, in or around
August 2013, Valdivia instructed employees by telephone not
to talk to the Union.
Rosa Lopez provided unrefuted testimony that in or around
August 13, Valdivia called her on the phone at about 7 p.m. and
told her employees were being visited at home, and she should
not let the visitors in because they were thieves. Lopez con-
firmed nobody had visited her at home.

36 Valorie Hanson testified that, on October 7, she reported the Un-
ion’s visits to her home to Valdivia. She specifically testified that the
individual identified himself as being from the Union. Valdivia, in her
affidavit, recalled that Hanson told her the individual who visited her
identified himself as being from VDS. When she testified Valdivia
could not recall whether Hanson had reported the individual was from
VDS. I do not credit Hanson’s testimony for the reasons discussed
below regarding Aparicio and Sanchez’ terminations, and because I
find it unlikely that the Union would have visited her because she is a
supervisor. Instead, I find this testimony, like her discredited testimony
at the hearing that she regularly worked on the nigh tshift, was fabricat-
ed, and was an attempt to bolster an argument that the Union was har-
assing employees. I do not credit Valdivia’s recollection because it is
inconsistent, and as discussed herein, I find she was motivated to thwart
the Union’s efforts on behalf of her superiors. Even with these ac-
counts discredited, however, Valdivia admittedly had heard about the
Union visiting employees at home as of August 8.
37 Indeed, there is no evidence that employees were instructed to
freeze their credit files or place fraud alerts on their files.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
I credit Rosa Lopez’ testimony because it is unrefuted, and
note that her recollection was buttressed by the fact that a call
at home from Valdivia was unusual.38 For the reasons stated
above, I find the telephone call would tend to coerce Rosa
Lopez, particularly considering she was one of the employees
who spoke to coworkers about the Union to solicit their sup-
port.
2. Alleged wage increases—CNA Maria Ramirez and House-
keeper Romana Lopez
Paragraph 9(c) of the complaint alleges that the Respondent
violated Section 8(a)(1) when, on October 10, 2013, it granted a
wage increase.
CNA Maria Ramirez and Housekeeper Romana Lopez each
received wage increases of 50 cents per hour beginning with
the pay period ending September 30.
The Supreme Court, in Medo Photo Supply Corp. v. NLRB,
321 U.S. 678, 686 (1944), stated that the “action of employees
with respect to the choice of their bargaining agents may be
induced by favors bestowed by the employer as well as by his
threats or domination.” As the Court explained in NLRB v.
Exchange Parts Co., 375 U.S. 405, 409 (1964):
The danger inherent in well-timed increases in benefits is the
suggestion of a fist inside the velvet glove. Employees are not
likely to miss the inference that the source of benefits now
conferred is also the source from which future benefits must
flow and which may dry up if it is not obliged.
(Footnote omitted.) It held that that “the conferral of employee
benefits while a representation election is pending, for the pur-
pose of inducing employees to vote against the union,” inter-
feres with the employees’ protected right to organize. It is
well-settled that the Exchange Parts principles apply to prom-
ises and/or granting of wage increases or other benefits, if they
are made in response to union organizational activity, regard-
less of whether a representation petition has been filed. Net-
work Dynamics, 351 NLRB 1423, 1424 (2007); Hampton Inn
NY-JFK Airport, 348 NLRB 16, 17 (2006).
Unlike most 8(a)(1) allegations, analysis of a claim that ben-
efits were promised, announced, or granted to coerce employ-
ees in their choice of bargaining representative is motive-based.
Network Dynamics Cabling, Inc., 351 NLRB 1423, 1424
(2007). The granting of benefits to employees during union
organizational activity “is not per se unlawful where the em-
ployer can show that its actions were governed by factors other
than the pending election.” American Sunroof Corp., 248
NLRB 748, 748 (1980), modified on other grounds 667 F.2d 20
(6th Cir. 1981).
To establish such a claim, the General Counsel must first
prove, by a preponderance of the evidence, “that employees
would reasonably view the grant of benefits as an attempt to
interfere with or coerce them in their choice on union represen-
tation.” Southgate Village Inc., 319 NLRB 916 (1995). If the
General Counsel meets this burden, the employer must demon-

38 The General Counsel requests an adverse inference because Val-
divia, who testified at the hearing, did not refute this allegation. (GC
Br. 12.) I find an adverse inference is warranted. Flexsteel Industries,
316 NLRB 745, 758 (1995).
strate a legitimate business reason for the timing of the benefit.
One way to do this is to show the benefit was “part of an al-
ready established Company policy and the employer did not
deviate from the policy upon the advent of the union.” Ameri-
can Sunroof, supra at 748; see also Real Foods Co., 350 NLRB
309, 310 (2007); Holly Farms Corp., 311 NLRB 273, 274
(1993), enfd. 48 F.3d 1362 (4th Cir. 1995), affd. 517 U.S. 392
(1996); Jewish Home for the Elderly of Fairfield County, 343
NLRB 1069, 1087–1090 (2004).
Both CNA Maria Ramirez and Housekeeper Romana Lopez
received 50 cents-per-hour raises, which, while relatively small
on their own, were a relatively large percentage of their respec-
tive wage rates. The increase was only provided to two em-
ployees: a housekeeper and a CNA.
Turning to the General Counsel’s burden, it is unclear how
employees would view the benefit. Neither employee was
asked how they viewed the raise, and there is no evidence ei-
ther employee shared her raise with coworkers.39 In fact, Val-
divia told Maria Ramirez not to tell her coworkers about her
raise. While the timing of the raises coincided with organizing
activity, Romana Lopez admittedly did not become involved
with the Union until October, yet the pay raise was effective the
pay period ending September 30. Moreover, there was no evi-
dence that, as of this time, either individual was a union sup-
porter or was likely to steer her fellow employees in one direc-
tion or the other. Admittedly, wage increases were not given
pursuant to any set schedule, so there was no deviation from an
established past practice. Under these circumstances, I find the
pay raises to these two individuals were not coercive at the time
they were effected.40 I therefore recommend dismissal of this
complaint allegation.
3. Alleged interrogation and surveillance—CNA Maria
Ramirez
Paragraph 9(d) of the complaint alleges that on or about Oc-
tober 14, Valdivia interrogated employees about their union
activities and sympathies and the union activities and sympa-
thies of other employees. Paragraph 9(e) alleges that at this
same time and place, Valdivia created an impression of surveil-
lance by telling employees about cards being circulated.
The exchange between Maria Ramirez and Valdivia on Oc-
tober 14 is detailed above in the statement of facts. In sum,
Valdivia asked if “they” had been back to visit her, and said she
knew who “they” were. Valdivia also asked about the cards
that were being handed out. Maria Ramirez admitted that she
had signed a list the employees would be taking to Valdivia,
and told Valdivia she signed the list because she wanted to be
valued and respected. Valdivia told her she could change her
mind if she wanted to. Valdivia told Maria Ramirez that if she
put her trust in the Union, the two of them would not be able to
speak as they were doing. Maria Ramirez’ testimony about the

39 Romana Lopez was not asked about the raise at all.
40 Though I have found these raises not to be unlawful in and of
themselves, I do consider the increases to be relevant evidence with
regard to the pre-printed voluntariness forms Valdivia presented to
them, and to the interrogation surveillance of Maria Ramirez, discussed
directly below.
VISTA DEL SOL HEALTH SERVICES, INC. 17
exchange is unrefuted, and I credit it.41 Maria Ramirez re-
sponded to open-ended questions in a thoughtful manner.
There was nothing in her demeanor to indicate she was fabri-
cating her responses. As a current employee testifying against
her own pecuniary interests, I find her testimony to be particu-
larly reliable.
a. Interrogation
In assessing the lawfulness of an interrogation, the Board
applies the totality of circumstances test adopted in Rossmore
House, 269 NLRB 1176, 1178 fn. 20 (1984), affd. sub nom.
HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). This
test involves a case-by-case analysis of various factors, includ-
ing those set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.
1964): (1) the background, i.e., whether the employer has a
history of hostility toward or discrimination against union ac-
tivity; (2) the nature of the information sought; (3) the identity
of the interrogator, i.e., his or her placement in the Respond-
ent’s hierarchy; (4) the place and method of the interrogation;
and (5) the truthfulness of the interrogated employee’s reply.
See, e.g., Sproule Construction Co., 350 NLRB 774, 774 fn. 2
(2007); Grass Valley Grocery Outlet, 338 NLRB 877, 877 fn. 1
(2003), affd. mem. 121 Fed. Appx. 720 (9th Cir. 2005).
The Board also considers the timing of the interrogation and
whether the interrogated employees are open and active union
supporters. See, e.g., Gardner Engineering, 313 NLRB 755,
755 (1994), enfd. as modified on other grounds 115 F.3d 636
(9th Cir. 1997); Blue Flash Express, 109 NLRB 591 (1954).
Another factor is whether adequate assurances were provided.
See John W. Hancock, Jr., Inc., 337 NLRB 1223, 1223-1224
(2002). These factors “are not to be mechanically applied,”
they represent “some areas of inquiry” for consideration in
evaluating an interrogation’s legality. Rossmore House, supra,
fn. 20.
Turning to the first Bourne factor, there is no evidence of a
history of hostility toward union activity. While this would
tend to weigh in the Respondent’s favor, no evidence was pre-
sented that there had been union activity in the past. This fac-
tor, therefore, has no real mechanism for assessment.
The second Bourne factor weighs in the General Counsel’s
favor. Valdivia asked Maria Ramirez if “they” had visited her
again, and stated she knew who “they” were. The evidence is
clear that by this time Valdivia had reports of individuals from
the Union visiting employees at home. This question, there-
fore, directly probed at Maria Ramirez’s contacts with the Un-
ion. Valdivia’s question about the authorization cards likewise
was aimed directly at employees’ union activity.
The identity of the interrogator weighs in the General Coun-
sel’s favor, as Valdivia was the top management official at
VDS. The place and method of interrogation also weigh in the
General Counsel’s favor. The conversation began in the hall-
way, but Valdivia then asked Maria Ramirez to come to her
office, where nobody else was present and doors were closed,

41 The General Counsel requests an adverse inference because Val-
divia, who testified at the hearing, did not refute this allegation. (GC
Br. 18.) I find an adverse inference is warranted, both as to the interro-
gation allegation and the surveillance allegation concerning Maria
Ramirez. Flexsteel Industries, 316 NLRB 745, 758 (1995).
and asked her directly about union activity. As to the last
Bourne factor, the truth of the response, this is mixed. Maria
Ramirez responded that she, too, knew who “they” were, but
did not divulge information about the authorization cards.
The Respondent cites to Rossmore House for the following:
In deciding whether questioning in individual cases amounts
to the type of coercive interrogation that section 8(a)(1) pro-
scribes, one must remember two general points. Because pro-
duction supervisors and employees often work closely togeth-
er, one can expect that during the course of the workday they
will discuss a range of subjects of mutual interest, including
ongoing unionization efforts. To hold that any instance of
casual questioning concerning union sympathies violates the
Act ignores the realities of the workplace.
269 NLRB at 1177, quoting Graham Architectural Products v.
NLRB, 697 F.2d 534, 541 (3d Cir. 1983). (R. Br. 11.) I note,
however, that Valdivia is not akin to a production supervisor—
she is the top administrator, two levels up from Maria Ramirez
in the chain of command. In addition, this was not a casual
conversation where the Union just happened to come up. The
conversation began with a pointed question about whether Ma-
ria Ramirez had been visited again, and did not stray from the
general topic of union activity.
The Respondent also points to the Supreme Court’s state-
ment in NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969),
that the First Amendment protects employer speech during an
organizing campaign “so long as such expression contains ‘no
threat of reprisal or force or promise of benefit’” in violation of
the Act. (R. Br. 11.) This quote is taken somewhat out of con-
text, however. The protection the Court was discussing was the
employer’s freedom “to communicate to his employees any of
his general views about unionism or any of his specific views
about a particular union,” not the freedom to question employ-
ees about their and their coworkers’ union activities. 395 U.S.
at 618.
Considering the totality of the evidence, including the timing
of events and the absence of assurances Valdivia gave regard-
ing her questions, I find the General Counsel has met its burden
to prove this allegation.
b. Surveillance
The test for determining whether an employer engages in un-
lawful surveillance or whether it creates the impression of sur-
veillance is an objective one and involves the determination of
whether the employer’s conduct, under the circumstances, was
such as would tend to interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed under Section 7
of the Act. See Broadway, 267 NLRB 385, 400 (1983) (citing
United States Steel Corp. v. NLRB, 682 F.2d 98 (3d Cir. 1982)).
The Board has consistently held that an employer’s mere ob-
servation of open, public union activity on or near its property
does not constitute unlawful surveillance. See Fred’k Wallace
& Son, Inc., 331 NLRB 914, 915 (2000). For example, in Met-
al Industries, 251 NLRB 1523, 1523 (1980), the Board found
no unlawful surveillance of employees where the employer had
a longstanding practice of going to the employee parking lot to
say goodbye to its departing employees at the end of the work-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
day. The employer’s observance of the employees’ Section 7
activity was inseparable from its regular and noncoercive prac-
tice. See also Wal-Mart Stores, 340 NLRB 1216, 1223 (2003).
Employers may not, however, “do something ‘out of the or-
dinary’ to give employees the impression that it is engaging in
surveillance of their protected activities.” Loudon Steel, Inc.,
340 NLRB 307, 313 (2003); See also Partylite Worldwide, Inc.,
344 NLRB 1342 (2005); Arrow Automotive Industries, 258
NLRB 860 (1981), enfd. 679 F.2d 875 (4th Cir. 1982); Sprain
Brook Manor Nursing Home, 351 NLRB 1190 (2007). The
Board’s analysis thus focuses on whether the observations were
ordinary or represented unusual behavior. Aladdin Gaming,
LLC, 345 NLRB 585 (2005), rev. denied 515 F.3d 942 (9th Cir.
2008).
When an employer tells employees it knows about their un-
ion activities but fails to cite its information source, Section
8(a)(1) is violated because employees must speculate about
how such information was obtained, creating the impression of
surveillance. Stevens Creek Chrysler, 353 NLRB 1294, 1296
(2009).
I find Valdivia’s question to Maria Ramirez about whether
“they” had visited her house, coupled with her comment that
she knew who “they” were created the impression that Maria
Ramirez’s union activity was being monitored. Valdivia’s
question about authorization cards, the existence of which Ma-
ria Ramirez had not disclosed to her, is further evidence that
union activities were being watched. Valdivia never revealed
the source of the information about the union cards or how she
knew who “they” were. Moreover, as discussed in the section
on interrogation above, Valdivia’s statements were part of a
casual conversation, but instead were pointed comments about
Union activity she herself did not observe in the ordinary
course of her work.
Accordingly, I find the General Counsel proved, by prepon-
derant evidence, that Valdivia engaged in unlawful surveillance
as alleged.
4. Alleged interrogation—Housekeeper Carmelina Perdomo
Complaint paragraph 9(g) alleges that the Respondent, by
Rosa Valdivia, on about October 14, 2013, in Rosa Valdivia’s
office, interrogated its employees about their union activities.
As set forth above, around October 19, at about 3:15 p.m.,
Valdivia asked Housekeeper Carmelina Perdomo if someone
had given her a card to sign. Perdomo responded that Mayorga
had given her a card but she had not signed it. Valdivia told her
to let her know if she was forced to sign a card. Previously, in
mid-September, Valdivia had asked Perdomo if anyone had
visited her at her home. Perdomo responded she had been vis-
ited. Valdivia asked the name of the individual, and Perdomo
told her it was Jose Manzano.42
The legal standards for interrogation cited above apply. The
analysis of the first four Bourne factors, i.e., the employer’s
background, the nature of the information sought, the identity
of the interrogator, and the method and place of interrogation,
is virtually the same for Perdomo as for Maria Ramirez. By

42 Again, this testimony is unrefuted and, for the reasons set forth
above, I find an adverse inference is warranted based on Valdivia’s
failure to testify about this conversation. (GC Br. 26.)
October 19, however, Valdivia’s questions are against a back-
drop of hostility toward and discrimination against the Union,
as discussed below. The Moreover, the conversation at issue
took place entirely in Valdivia’s office. Perdomo was not an
open union supporter, and Valdivia had by this time seen that
she had not signed the petition. The question aimed at ascer-
taining the identity of the individual who gave Perdomo a card
goes directly toward protected activity. Moreover, the timing
of the conversation took place 2 days after the Union filed its
petition for representation.
Considering the totality of the evidence, including and the
absence of assurances Valdivia gave regarding her questions, I
find the General Counsel has met its burden to prove this alle-
gation.
5. Alleged interrogation and coercion—Maintenance Worker
Genaro Meza
Complaint paragraph 9(j) alleges that Valdivia, on or about
October 18, 2013, in Rosa Valdivia’s office, interrogated its
employees about their union activities and sympathies and
about what the Union had promised employees. Complaint
paragraph 9(k) alleges that on this same date and in this same
location, Valdivia told employees she did not trust them.
About 8 days after October 14 the march, Valdivia and Meza
met in Valdivia’s office. Valdivia asked Meza if he knew what
he had done, and asked if they had forced him to sign the peti-
tion. She handed him a copy of the voluntariness form, and
told him he could sign it if he had felt the Union had forced him
to sign. He did not respond, and Valdivia said she did not trust
him anymore. She asked what the Union was offering the em-
ployees. He responded that was in favor of the Union because
when he would go to the office to speak with her, she would
not give him attention. (Tr. 322–325.)
The legal standards for interrogation cited above apply, and
the analysis of the first four Bourne factors mirrors that Valdi-
via’s interrogation of Perdomo. Meza was an open Union sup-
porter, as his name had appeared on the petition. Valdivia’s
questions to Meza, asking him if he knew what he had done by
signing the petition and asking what he thought the Union of-
fered employees, go directly to his union activity. The ques-
tions took place within days of the march and presentation of
the petition, and within days of Union filing its petition for
representation.
Turning to the comment that Valdivia no longer trusted Me-
za, this is tantamount to equating support of the union with
betrayal and disloyalty, and is therefore coercive. See Hialeah
Hosp., 343 NLRB 391, 391 (2004) (hospital official telling the
employees that he felt “betrayed” and “stabbed in the back”
because they had contacted the Union sent message that Union
support was tantamount to disloyalty and was implied threat);
see also Rosewood Mfg. Co., 269 NLRB 782, 785 (1984); Op-
erating Engineers Local 12, 237 NLRB 1556, 1558 (1978).
Considering the totality of the evidence, including and the
absence of assurances Valdivia gave regarding her questions, I
find the General Counsel has met its burden to prove these
allegations.
6. Alleged interrogation—Maria Ramirez
Complaint paragraph 11 alleges that on October 20, 2013,
VISTA DEL SOL HEALTH SERVICES, INC. 19
Respondent, by Arcadio De Borja, in the utility room, interro-
gated its employees about their union membership
Around October 20, during break time, Charge Nurse
Arcadio DeBorja and Maria Lopez were in a small room re-
ferred to as the utility room. DeBorja asked Maria Ramirez
whether she was a member of the Union. Maria Ramirez was
quiet in response, and DeBorja said, “Tell me.” She responded
yes, and said she was prepared to be fired.43
The legal standards for interrogation, set forth above, apply
to this allegation. Applying the Bourne factors, I first find that
the background, i.e., whether the employer has a history of
hostility toward or discrimination against union activity, by this
point weighs against the Respondent based on the conduct ar-
ticulated throughout this decision. The nature of the infor-
mation sought was whether Maria Ramirez supported the Un-
ion, which weighs against the Respondent. The identity of the
interrogator was a charge nurse, who stood in direct supervision
of Maria Ramirez in the organizational hierarchy. The place
and method of the interrogation was a closed room with nobody
else present. Maria Ramirez did not bring up the Union during
the conversation and did not otherwise invite the topic. This
weighs against the Respondent. While Maria Ramirez re-
sponded truthfully, she also stated she thought her union sup-
port would get her fired.
Considering the totality of the evidence, including and the
absence of assurances DeBorja gave regarding his question, I
find the General Counsel has met its burden to prove this alle-
gation.
7. Alleged interrogation—Genaro Meza
Complaint paragraph 12 alleges that, around October 23,
2013, Respondent, by Ester Cuellar, near Ester Cuellar’s office
or the laundry area, impliedly threatened its employees with
unspecified reprisals in response to their union activities
Around October 23, Cuellar and Meza had a conversation by
the laundry room. Cuellar asked Meza if he was going on vaca-
tion, and he replied that Valdivia had not approved his vacation
request. Cuellar said she felt sorry for them because Valdivia
was well prepared. Mayorga overheard the conversation.
The comment, on its face and taken in context, is more cau-
tionary than explicitly threatening. This does not, however,
make the comment lawful. I note that the comment was made
about a week after the employees presented the petition to Val-
divia, and the Union filed the petition for representation with
the Board.
In Jordan Marsh Stores Corp., 317 NLRB 460, 462–463
(1995), the Board found that cautionary advice from a supervi-

43 This testimony is unrefuted and DeBorja did not testify. The Gen-
eral Counsel asks for an adverse inference based on De Borja’s failure
to testify. (GC Br. 44.) The Board has agreed that “when a party fails
to call a witness who may reasonably be assumed to be favorably dis-
posed to the party, an adverse inference may be drawn regarding any
factual question on which the witness is likely to have knowledge.”
International Automated Machines, 285 NLRB 1122, 1123 (1987),
enfd. 861 F.2d (6th Cir. 1988). This is particularly true where the wit-
ness is the Respondent’s agent. Roosevelt Memorial Medical Center,
348 NLRB 1016, 1022 (2006). I therefore grant this request and find
De Borja’s testimony would have been harmful to the Respondent.
sor to an employee to watch her back “might have been all the
more ominous” coming “from a friend sincerely concerned for
the employee’s job security.” See also Olney IGA Foodliner,
286 NLRB 741, 748 (1987), enfd. 870 F.2d 1279 (7th Cir.
1989) (threats possibly intended as “friendly advice” found
violative); Trover Clinic, 280 NLRB 6 fn. 1 (1986) (“keep a
low profile” and “be quiet about it”); St. Francis Medical Cen-
ter, 340 NLRB 1370, 1383–1384 (2003) (holding a “be careful”
statement by a supervisor in context of union activity unlaw-
ful).
Cuellar’s cautionary comment about Valdivia’s preparedness
is similar to the comments above, which were found to consti-
tute threats of unspecified reprisals. Accordingly, I find this
comment violates Section 8(a)(1) of the Act as alleged.
8. Telling employees to leave the premises
Complaint paragraph 9(f) alleges that, on or about October
14, by the nurses’ station, Valdivia told off-duty employees
they had to leave the premises.
Valdivia’s instructions to employees to leave the facility dur-
ing the presentation of the petition on October 14 are detailed in
the statement of facts.
In Tri-County Medical Center, 222 NLRB 1089 (1976), the
Board held that an employer’s rule barring off-duty employees
access to their employer’s facility is valid only if it: “(1) limits
access solely with respect to the interior of the plant and other
working areas; (2) is clearly disseminated to all employees; and
(3) applies to off-duty employees seeking access to the plant for
any purpose and not just to those employees engaging in union
activity.”
In the instant case, the evidence fails to show the Respondent
had published or disseminated to its employees any no-access
rule concerning off-duty employees. The only employees who
were told to leave the building were those who participated in
the march. Moreover, as set forth in the statement of facts
above, employees were permitted to come to the facility for
other non-work reasons, and therefore Valdivia’s instruction to
leave the facility was focused on the employees’ Section 7
activity.
The Respondent asserts that Valdivia was justified in telling
the employees to leave because, as a care facility, it must pro-
vide a peaceful and secure environment for its patients. (R. Br.
12.) Recognizing the need for hospitals to provide a tranquil
atmosphere to carry out its primary function of patient care, the
Supreme Court and the Board have recognized some special
considerations when it comes to Section 7 activity in a hospital
setting. Beth Israel Hospital v. NLRB, 437 U.S. 483, 500
(1978); St. John’s Hospital & School of Nursing, Inc., 222
NLRB 1150 (1976), enfd. in part 557 F.2d 1368 (10th Cir.
1997). As such, hospitals “may be warranted in prohibiting
solicitation even on nonworking time in strictly patient care
areas, such as the patients’ rooms, operating rooms, and places
where patients receive treatment, such as x-ray and therapy
areas.” St. John’s Hospital, supra. As to other areas, a hospital
may place prohibitions on employees who engage in Section 7
activities only if it proves the prohibition is needed to prevent
patient disturbance or disruption of health care operations. Id.;
NLRB v. Baptist Hospital, 442 U.S. 773, 781–787 (1979).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
Here, the group of 31 employees and union organizers ap-
proached the nurses’ station and presented the petition. There
is no evidence they were loud or disruptive to patient care. The
only potentially disruptive actions of record are an individual
shouting, “we’re in, we’re in” on the way out the door, which
was after they had been told to leave. I do find that, at this
point, Valdivia was justified in ensuring they left the facility. I
also find that even a peaceful group of 31 employees congre-
gating for a lengthy period by the nurses’ station would be
eventually be disruptive to VDS’s operations. This allegation
turns on conduct occurring within a very small time window,
but within that window, I find the General Counsel has met its
burden to prove interference with Section 7 activity.
9. Promulgation and enforcement of rules
a. Rule Prohibiting Logos
Complaint paragraph 9(h) alleges that the Respondent, by
Rosa Valdivia, about October 15, 2013, in Rosa Valdivia’s
office, told its employees it would more strictly enforce its
uniform policy and/or implicitly prohibited its employees from
wearing union insignia.
As detailed in the statement of facts, a series of meetings
were held with employees in the wake of the October 14 march
and presentation of the petition to Valdivia. Numerous current
and former employees recounted that they were told they could
not wear clothing with logos or words to work. The employees
all agreed that no such rule had been announced or enforced at
VDS before.
In determining whether a work rule violates Section 8(a)(1),
the appropriate inquiry is whether the rule would reasonably
tend to chill employees in the exercise of their Section 7 rights.
Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203
F.3d 52 (D.C. Cir. 1999).
Under the test enunciated in Lutheran Heritage Village-
Livonia, 343 NLRB 646 (2004), if the rule explicitly restricts
Section 7 rights, it is unlawful. If it does not, “the violation is
dependent upon a showing of one of the following: (1) employ-
ees would reasonably construe the language to prohibit Section
7 activity; (2) the rule was promulgated in response to union
activity; or (3) the rule has been applied to restrict the exercise
of Section 7 rights.” Id. at 647. A rule does not violate the Act
if a reasonable employee merely could conceivably read it as
barring Section 7 activity. Rather, the inquiry is whether a rea-
sonable employee would read the rule as prohibiting Section 7
activity. Id. In other words, the relevant inquiry under Section
8(a)(1) is an objective one which examines whether the em-
ployer’s actions would tend to coerce a reasonable employee.
Affiliated Foods, Inc., 328 NLRB 1107 (1999); Wyman-Gordon
Co. v. NLRB, 654 F.2d 134, 145 (1st Cir. 1981).
In Republic Aviation Corp v. NLRB, 324 U.S. 793, 801–03
(1945), the Supreme Court held that employees have a protect-
ed right to wear union buttons and other insignia at work. This
right is balanced against the employer’s right to maintain order,
productivity and discipline. The Board has struck this balance
by permitting employers to prohibit employees from wearing
union insignia where the employer proves that “special circum-
stances” exist. Id. at 797-98; see also Sam’s Club, 349 NLRB
1007, 1010 (2007).
I find the rule violations Section 8(a)(1) under many of the
Lutheran Heritage criteria. First, I find it expressly restricts the
Section 7 right to display union insignia at work. Assuming it
is not an express restriction, however, I find employees would
reasonably construe it to prohibit wearing union logos or insig-
nia. The evidence also shows that the rule was promulgated in
response to Section 7 activity. The meetings where the rule
was announced occurred just on the heels of the employee
march and presentation of petition, where the employees all
wore matching T-shirts with the Union’s logo. The absence of
any prior announcement of such a rule, and the absence of any
explanation for the timing of its promulgation, is telling. As the
record is devoid of evidence of special circumstances, I find the
General Counsel has established this allegation.
The Respondent contends that only nursing department em-
ployees were at these meetings, citing to its attendance records.
(GC Exhs. 66–67.) This does not account for the unrefuted and
corroborative testimony of numerous housekeeping employees,
which I credit, that they too went to such meetings. No founda-
tion was established as to how (or if) housekeeping meetings
were recorded. Moreover, Respondent previously admitted that
it “told employees . . . that logos were now prohibited.” (GC
Exh. 88, p. 23.)
The Respondent has also asserted that the rule prohibiting
logos was not enforced. However, “[t]he mere existence of an
overly broad rule tends to restrain and interfere with employee
rights under the Act even if not enforced.” Staco, Inc., 244
NLRB 461, 469 (1979); see also Automated Products, Inc., 242
NLRB 424 (1979); Custom Trim Products, 255 NLRB 787,
788 (1981).
Based on the foregoing, I find the preponderant evidence es-
tablishes the announcement of the rule against wearing logos
violated the Act as alleged.
b. Rule more strictly enforcing tardiness policy
Complaint allegation 10 alleges that, around the week of Oc-
tober 14, 2013, Respondent, by Rosa Valdivia and Jeri Warner,
at meetings at Respondent’s facility, told its employees it
would more strictly enforce its tardiness policy in response to
their union activities.
As detailed in the statement of facts, a series of meetings
were held with employees in the wake of the October 14 march
and presentation of the petition to Valdivia. Numerous current
and former employees recounted that they were told they would
no longer be permitted the same grace period, their attendance
would be monitored more closely, and being tardy would result
in progressive discipline. The employees all agreed that no
such rule had been enforced at VDS before, and employees
routinely clocked in beyond the grace period and were not dis-
ciplined.
The legal framework for workplace rules and the legal prec-
edent set forth above applies here.
The announcement that the tardiness policy, which had been
previously been ignored, would now be enforced, is not an
explicit restriction on Section 7 rights. I find, however, that the
second Lutheran Heritage criteria applies, i.e. the rule was
promulgated in response to union activity. The timing of the
announcement, on the heels of the march and presentation of
VISTA DEL SOL HEALTH SERVICES, INC. 21
the petition to Valdivia, is strong evidence that it was a re-
sponse to such.
The Respondent contends that ensuring the employees work
their scheduled shift is extremely important in a patient care
setting, and tardiness has been an ongoing problem it has at-
tempted to address before any union activity began. (R. Br. 7–
8.) I do not doubt the Respondent’s assertions. I find, howev-
er, the fact that the rule was announced but never enforced
shows it was not implemented for a legitimate reason, such as
an urgent business need to ensure employees show up to work
on time. Instead, the evidence persuades that it was an attempt
to coerce employees in the wake of the Union coming forward
with evidence of majority status.
10. Alleged unlawful polling
Complaint paragraph 8 alleges that from about October 17–
21, 2013, the Respondent, by letter, interrogated and polled
employees about their union sympathies. Complaint paragraph
9(i) alleges that, during this same time period, the Respondent,
at its facility, interrogated and polled employees about their
union sympathies.
The voluntariness form, and the manner in which it was pre-
sented to various employees, is detailed in the statement of
facts.
Polling employees about their union sympathies can consti-
tute a form of interrogation. Vaughan Printers, 196 NLRB
161, 164 (1972). For the polling to be lawful, all of the safe-
guards required under Struksnes Construction Co., 165 NLRB
1062 (1967), must be applied as follows:
Absent unusual circumstances, the polling of employees by an
employer will be violative of Section 8(a)(1) of the Act unless
the following safeguards are observed: (1) the purpose of the
poll is to determine the truth of a union’s claim of majority,
(2) this purpose is communicated to the employees, (3) assur-
ances against reprisal are given, (4) the employees are polled
by secret ballot, and (5) the employer has not engaged in un-
fair labor practices or otherwise created a coercive atmos-
phere.
Id. at 1063. See also Johnnie’s Poultry, 146 NLRB 770, 775
(1964); HTH Corp., 356 NLRB No. 182, slip op. at 8 (2011),
enfd. 693 F.3d 1051 (9th Cir. 2012). “[A]ny attempt by an
employer to ascertain employee views and sympathies regard-
ing unionism generally tends to cause fear of reprisal in the
mind of the employee if he replies in favor of unionism and,
therefore, tends to impinge on his Section 7 rights.” Struksnes
Constr. Co., supra.
In Struksnes, the Board concluded that a “poll taken while a
petition for a Board election is pending does not, in our view,
serve any legitimate interest of the employer that would not be
better served by the forthcoming Board election. In accord
with long-established Board policy, therefore, such polls will
continue to be found violative of Section 8(a)(1) of the Act.”
Struksnes, 165 NLRB at 1063.
I find that the voluntariness form constituted polling, as it
was clearly aimed at finding out employees’ union sympathies.
Valdivia stated she formulated and distributed the letter be-
cause she was concerned about the reports from employees of
visitors to their homes. Under the analysis applicable to this
claim, Valdivia’s stated reason for conducting the poll is not a
relevant factor. Regardless, I find the timing of the poll, more
than two months she learned employees were visited at their
homes, and right after the march and presentation of the peti-
tion, undermines Valdivia’s stated motivational rationale.
I find I further find that the polling was per se unlawful un-
der Struksnes, because it occurred after the union had presented
its petition to Valdivia on October 14, 2013, and while a peti-
tion for a Board election—filed October 17, 2013—was pend-
ing.
Assuming it was not unlawful per se, I find the polling, both
by the voluntariness form itself and the various conversations
Valdivia had about it, did not contain the requisite safeguards.
Most clearly, the polling was not conducted by secret ballot, no
assurances against reprisal were given, and the poll was con-
ducted in the context of other unfair labor practices and a coer-
cive atmosphere.
The Respondent contends the voluntariness form cannot be
considered polling because there was no requirement that the
employees return it. (R. Br. 10.) Employees need not be re-
quired to fill out and return a document for its distribution to be
considered unlawful polling. See Walters, William, Inc., 179
NLRB 709, 710 (1969) (unlawful poll found where question-
naire was distributed to employees to return if they desired).
The Respondent also contends that responses were not co-
erced. This is belied by the promise to Rosa Lopez that she
could have her job as long as she wanted if she stated she had
been forced to sign the petition, and by Romana Lopez’ belief
that she needed to sign the form indicating she had been forced
to sign the petition in order to retain her job. Even for the em-
ployees who resisted signing, I find that, from an objective
standpoint, the voluntariness form was coercive and did not
meet the standards set forth in Struksnes, supra. As such, I find
the General Counsel has met its burden to prove this allegation.
11. Interrogation and promise of enhanced job security—
Housekeeper Rosa Lopez
Complaint paragraph 9(l) and (m) alleges that, on or about
October 21, Valdivia, in her office, interrogated employees and
promised greater job security if the employees rejected the
Union.
On October 21, Valdivia gave Housekeeper Rosa Lopez a
copy of the voluntariness form with her name typed onto it.
Valdivia read the letter to Rosa Lopez in English and explained
it in Spanish. Valdivia told Rosa Lopez she was worried about
the employees being forced to sign the petition, and told her to
sign the letter if she had felt forced to sign the petition. Valdi-
via said that if Rosa Lopez signed the letter stating that she had
been forced, she would have her job as long as she liked. Rosa
Lopez said she had not been forced, and she wanted the Un-
ion.44
The legal standards for interrogation cited above apply, and

44 Again, this testimony is unrefuted and, for the reasons set forth
above, I find an adverse inference is warranted based on Valdivia’s
failure to testify about this conversation applicable both to the interro-
gation allegation and the promise of increased job security allegation.
(GC Br. 46, 48.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
the analysis of the Bourne factors mirrors Valdivia’s interroga-
tion of Meza. As with Meza, Rosa Lopez, who had signed the
petition, was questioned about it by Valdivia, the highest man-
agement official at VDS. The questioning occurred in Valdi-
via’s office, behind closed doors, with nobody else present.
The march had occurred just a week before, and the Union had
filed the petition for representation just days before.
Considering the totality of the evidence, including and the
absence of assurances Valdivia gave regarding her questions, I
find the General Counsel has met its burden to prove this alle-
gation.
Turning to the allegation that Valdivia told Rosa Lopez that
if she signed the voluntariness form stating that she had been
forced, she would have her job as long as she liked, the legal
standards set forth in NLRB v. Exchange Parts Co., articulated
in the section on the October wage increases for Maria Ramirez
and Rosa Lopez, apply. I find this is was an unlawful promise
of increased job security in exchange for repudiating the Union.
See Dyncorp, 343 NLRB 1197, 1198 (2004), citing Bakersfield
Memorial Hospital, 315 NLRB 596, 600 (1994). See also Se-
quoyah Spinning Mills, 194 NLRB 1175, 1192 (1972).
There is no question an employee would reasonably view
such a comment as an attempt to interfere with or coerce her in
her choice on union representation. There can be no conceiva-
ble legitimate business justification for such a promise. In fact,
by any reasonable construction, it is an implied threat that fail-
ing to sign the form stating her support for the Union was
forced will result in diminished job security.
By telling Rosa Lopez she could have her job as long as she
wanted if she signed the voluntariness form to indicate she was
forced into signing the petition, the Respondent has violated
Section 8(a)(1).
12. Threat of Facility Closure
Complaint paragraph 13 alleges that, on October 9, 2014, the
Respondent, by a letter from its attorney, threatened employees
with closure of its facility and job loss for engaging in protected
concerted and/or union activities.
Counsel for the Respondent sent the letter to the counsel for
the General Counsel, copied to the Union’s counsel. It stated,
in relevant part:
Please accept the following as a reply to both the proposals
for settlement as well as the warnings if settlement fails. . . .
We strongly suggest that the Board ensure that the employees
are made aware of these offers and that they have a say in the
decision. They may not like the alternative. . . . the only alter-
native VDS will have is to close down its facility. In such a
situation, . . . the remaining of the 60 employees will lose their
employment. . . . This letter is been [sic] sent to the Union’s
Counsel as well in the hope that she makes the Claimants
aware of all alternatives so they have the opportunity to make
informed selfless decisions.
Union Organizer Paul Vellanoweth showed the letter to em-
ployees.
Statements connecting union activity to plant closure violate
Sec. 8(a)(1) unless such statements are based on objective fact.
“Conveyance of the employer’s belief, even though sincere,
that unionization will or may result in the closing of the plant is
not a statement of fact unless, which is most improbable, the
eventuality of closing is capable of proof.” NLRB v. Sinclair
Co. 397 F.2d 157, 160 (1st Cir. 1968), cited with approval by
NLRB v. Gissel Packing Co., supra. “As stated elsewhere, an
employer is free only to tell ‘what he reasonably believes will
be the likely economic consequences of unionization that are
outside his control,’ and not ‘threats of economic reprisal to be
taken solely on his own volition.’” Gissel Packing, quoting
NLRB v. River Togs, Inc., 382 F.2d 198, 202 (C.A.2d Cir.
1967).
The October 9, 2014, letter explicitly threatens that employ-
ees should accept settlement or VDS will close the facility. It
gives no explanation of the objective facts underlying such a
prediction. I find, therefore, that the letter constitutes an unlaw-
ful threat of closure.
The Respondent contends the letter is a privileged settlement
document. Under Rule 408 of Federal Rules of Evidence, offers
of compromise in settlement discussions are not admissible.
The rule does not, however, prohibit the introduction of evi-
dence of threats during a settlement discussion. Miami Systems
Corp., 320 NLRB 71, 76 (1995), affd. in relevant part 111 F.3d
1284 (6th Cir. 1997).
The Respondent also contends that the Union was cc’d only
at the Board’s request. Regardless of why the Union was cc’d,
the letter plainly expresses the Respondent’s intent that its offer
and the consequences for refusing it be shared with employees.
Accordingly, I find the October 9, 2014 letter was an unlaw-
ful threat, as alleged in complaint paragraph 13.
C. 8(a)(3) allegations
Complaint paragraph 15 alleges that numerous employees
were discharged because of their union activities.
1. CNAs Martha Aparicio and Delfina Sanchez
In analyzing alleged discriminatory personnel actions in
mixed-motive cases, the Board applies the analytical frame-
work of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under
Wright Line, the General Counsel has the initial burned to
prove, by preponderant evidence, that the employees engaged
in protected activity, the employer knew about it, and the ad-
verse employment action at issue was motivated by it. If the
General Counsel is able to make such a showing, the burden of
persuasion shifts to the employer “to demonstrate that the same
action would have taken place even in the absence of the pro-
tected conduct.” Wright Line, supra at 1089; See also Manno
Electric, 321 NLRB 278, 280 fn. 12 (1996). The employer
cannot carry this burden merely by showing that it also had a
legitimate reason for the action, but must persuade, by a pre-
ponderance of the evidence, that the action would have taken
place absent the protected activity. Dentech Corp., 294 NLRB
924, 956 (1989).
Both Martha Aparicio and Delfina Sanchez engaged in union
activity by signing authorization cards and signing the petition.
Aparicio also attended union meetings and participated in the
march to present the petition to Valdivia on October 14. The
Respondent was aware of this activity, as it is undisputed Val-
divia saw the employees participate in the march, saw the peti-
VISTA DEL SOL HEALTH SERVICES, INC. 23
tion, and forwarded it to VDS’s corporate offices.
There is ample evidence that the terminations were motivat-
ed by union activity. Unlawful employer motivation may also
be established by circumstantial evidence. A discriminatory
motive or animus may be established by: (1) the timing of the
employer’s adverse action in relationship to the employee’s
protected activity; (2) the presence of other unfair labor practic-
es, (3) statements and actions showing the employer’s general
and specific animus; (4) the disparate treatment of the
discriminatees; (5) departure from past practice; and (6) evi-
dence that an employer’s proffered explanation for the adverse
action is a pretext. See Golden Day Schools v. NLRB, 644 F.2d
834, 838 (9th Cir. 1981); NLRB v. Rain-Ware, Inc., 732 F.2d
1349, 1354 (7th Cir. 1984) (timing); Mid-Mountain Foods, Inc.,
332 NLRB 251, 260 (2000), enfd. mem. 169 LRRM 2448 (4th
Cir. 2001); Richardson Bros. South, 312 NLRB 534 (1993)
(other unfair labor practices); NLRB v. Vemco, Inc., 989 F.2d
1468, 1473–1474 (6th Cir. 1993); Affiliated Foods, Inc., 328
NLRB 1107 (1999)(statements); Naomi Knitting Plant, 328
NLRB 1279, 1283 (1999)(disparate treatment); JAMCO, 294
NLRB 896, 905 (1989), affd. mem. 927 F.2d 614 (11th Cir.
1991), cert. denied 502 U.S. 814 (1991) (departure from past
practice); Wright Line, 251 NLRB at 1089; Roadway Express,
327 NLRB 25, 26 (1998) (disparate treatment).
The Board will infer an unlawful motive or animus where
the employer’s action is “‘baseless, unreasonable, or so con-
trived as to raise a presumption of unlawful motive.’” J. S.
Troup Electric, 344 NLRB 1009 (2005) (citing Montgomery
Ward, 316 NLRB 1248, 1253 (1995)); See also ADS Electric
Co., 339 NLRB 1020, 1023 (2003); Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966).
The timing of the terminations, four days after Valdivia re-
ceived the petition from the employees and the day after the
Union filed its petition for representation, is strong evidence of
unlawful motivation. See Best Plumbing Supply, 310 NLRB
143, 144 (1993); NLRB v. Rain-Ware, Inc., 732 F.2d 1349,
1354 (7th Cir. 1984). Final checks for both CNAs were pre-
pared on October 15, the day after the march and presentation
of the petition. Moreover, the timing of the adverse employ-
ment actions occurred concurrently with interrogations and
threats that I have found violated the Act. Cal Western
Transport, 316 NLRB 222, 223 (1995); Richardson Bros., 312
NLRB 534 (1993).
Delay can be evidence of pretext. Doctor’s Hospital of Stat-
en Island, Inc. 325 NLRB 730, 738 (1998); New Haven Regis-
ter, 346 NLRB 1131, 1143 (2006) (suspension on January 7,
2005 for events that occurred on December 23–24, 2004). I
find the delay in terminating Aparicio and Delfina Sanchez is
further evidence of unlawful motivation and pretext. Im-
portantly, the CNAs were not terminated until more than 10
days after they were photographed sleeping, and they continued
to work during this time period. Meanwhile, they were provid-
ed with assurances from the director of nursing and the charge
nurse that they should not worry, and the practice going for-
ward would be to make sure the CNAs did not take their breaks
at the same time.45 It was not until after the employees
marched and presented their petition to Valdivia that the Re-
spondent took action to terminate Aparicio and Delfina
Sanchez. Care Manor of Farmington, 314 NLRB 248, 255
(1994); Clinton Food 4 Less, 288 NLRB 597, 598 (1988). And,
it was not until October 30 or 31, after the terminations had
already occurred, that Valdivia requested a statement from
Adelman.
The Respondent asserts that the terminations were effectuat-
ed as soon as they were approved by “corporate.” It is undis-
puted that Valdivia had authority to terminate employees. No
evidence was presented about any corporate approval process,
and it is unclear who from corporate was involved in any such
process. Nobody from corporate signed off on the termina-
tions. I therefore find this justification for the delay fails to
withstand scrutiny.
The lack of meaningful investigation into the incident is fur-
ther evidence of unlawful motivation. “The failure to conduct a
meaningful investigation and to give the employee who is the
subject of the investigation an opportunity to explain are [like-
wise] clear indicia of discriminatory intent.” See New Orleans
Cold Storage & Warehouse Co., Ltd., 326 NLRB 1471, 1477
(1998), enfd. 201 F.3d 592 (5th Cir.2000). Prior to October 18,
nobody interviewed Aparicio or Sanchez about the incident to
determine whether they were on their breaks when Adelman
photographed them. There is likewise no evidence that
Abaunza was ever interviewed. The failure to interview the
individuals present that night as part of a good faith in-depth
investigation is baffling and highly indicative of pretext. Clin-
ton Food 4 Less, supra.
Adelman reported to Valdivia that he had seen five individu-
als sleeping—the hospice worker in his mother’s room and four
nurses at the nurses’ station. Despite this, nobody at VDS ap-
parently made any attempt to figure out who the fourth nurse
was. Instead, VDS was content to rely on the pictures of
Aparicio, Delfina Sanchez, and Abaunza, and leave it at that. It
would have been extremely easy to simply ask Abaunza,
Aparicio, and/or Delfina Sanchez the identity of the CNA who
had been sleeping but not photographed. It would have been
extremely easy to look at the timecards, see that Maria Lopez
was working, and ask her if she was the other individual
Adelman saw sleeping. If the goal was to ensure CNAs who
slept while working were disciplined, VDS’s cursory investiga-
tion does not make sense. If the goal was to seize upon the
photographs to terminate the employees who supported the
Union, without taking the care to discern what had really oc-
curred, it does.46 I find the Respondent’s assertion that it was
entitled to rely on its business records to determine who was
working that night is a convenient justification for ignoring an
easily discoverable truth about what actually happened.
There is evidence that the Respondent’s disciplinary policy
was not applied consistently, further pointing to pretext. Tubu-

45 It is undisputed the director of nursing and charges nurses are ad-
mitted supervisors under Sec. 2(11), and have the authority to suspend
and discharge employees.
46 Abaunza was terminated on October 28, after the Union filed its
initial unfair labor practice charges on October 23.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
lar Corp. of America, 337 NLRB 99 (2001). As noted above,
Maria Ramirez was admittedly sleeping at the same time and in
the same manner as Aparicio and Delfina Sanchez, yet she was
not terminated or even disciplined. The Respondent was aware
of this at least as of October 18, as the undisputed evidence
shows Delfina Sanchez informed Warner that Maria Ramirez
was also asleep. Notably, Maria Ramirez did not sign the peti-
tion, participate in the march, or otherwise notify management
that she supported the Union. Other evidence of inconsistent
application is that employees continued to sleep while on their
breaks during the weeks following Aparicio and Delfina
Sanchez’s terminations, yet they were not disciplined. This is
particularly telling in light of the fact that cameras were in-
stalled.
Moreover, there is evidence that VDS had Union animus,
and was intent on taking actions to ensure the Union did not
come to VDS. I find Warner’s string of text messages to
Remedios Lopez, set forth fully above, is strong evidence of
animus. Warner stated: “Rosa did get rid of house keeping and
laundry because she said the CNA will need 50% vote”; “I am
writing corporate to let them know that Rosa was retaliating
against the CNA formation of the union”; “[S]he was so mad
about this union business Rosa did (sic) even want 2 do em-
ployee of the month which I said should be u and Marcos. Nope
she wAs 2 mad”; and “I think rosa is gonna blame things on me
& I need to make sure she does not & I do need to let the labor
board know that rosa fired them as retaliation. If u know any-
thing let me know.” I find the text messages from Warner are
not hearsay. Federal Rule of Evidence 801(d)(2)(D) provides
that a statement is not hearsay if it is offered against an oppos-
ing party and “was made by the party’s agent or employee on a
matter within the scope of that relationship.” To fall within the
scope of Rule 801(d)(2)(D), the General Counsel must show
that the statement was made by an “agent or servant” of VDS.
Here, it is undisputed that Valdivia was an agent of VDS. Her
statements concerning the termination of employees and un-
willingness to designate an employee of the month clearly are
within the scope of her employment duties.47
Cuellar’s statement that there were new CNAs for the night
shift because Valdivia “wants to get rid of all the people who
signed the union thing” is additional evidence of animus, as is
Zelaya’s statement that “some people tried to talk Rosa out of
what she was doing but she did not listen.” These statements

47 The General Counsel attempted to subpoena Warner to testify at
the hearing, but the certified letter to her last known address was not
picked up and she did not respond to telephone messages. ( Tr. 539–
540.) Assuming the statements attributed to Valdivia from Warner’s
text are considered hearsay, I find the statements reliable. I note that
Remedios Lopez was very credible in his explanation about how the
texts were received, and there is nothing to refute that Warner sent
them to him. The statements are supported by other evidence of record
relating to animus, and I note Valdivia did not refute much of what
Warner conveyed. RC Aluminum Industries, Inc., 343 NLRB 939, 940
(2004).
The Respondent plainly misunderstands the scope of Rule
801(d)(2)(D) by asserting that the statements attributed to Valdivia are
hearsay because Warner was had been terminated when she sent the
text to Remedios Lopez. (R. Br. 13.)
were made to Castillo. Cuellar did not refute this statement
when she testified, and Zelaya did not testify. I find Castillo’s
recollection of these conversations was credible.48 She left
VDS voluntarily to go back to school, and has nothing to gain
or lose by being truthful. She testified in an open-ended man-
ner, without embellishment or exaggeration, and I find her tes-
timony was candid. Her testimony is corroborated by other
evidence of animus apparent from the interrogations and other
coercive conduct discussed above in connection with the Sec.
8(a)(1) allegations.
Based on the foregoing, I find the General Counsel has easily
met its initial Wright Line burden.
The Respondent now bears the burden to prove that it would
have terminated Aparicio and Delfina Sanchez even if they had
not engaged in union activity. The Respondent asserts that it
was merely complying with its disciplinary policy, which states
that sleeping on the job results in termination, and the Union
activities of Aparicio and Delfina Sanchez were not a factor.
There are several problems with this justification. In addition
to the anomalies above, there is abundant evidence that the
established practice on the night shift was for employees to
make their rounds, clock out for their ½-hour break around
12:30–1 a.m., but then take their actual breaks later when things
were quieter, typically around 3 or 4 a.m. Charge Nurse Cas-
tillo, who regularly worked the nightshift, admitted this was the
practice. Nobody who worked the nightshift testified other-
wise.
Valdivia, Cuellar, and Hanson denied that that employees’
actual breaks occurred later than when the clocked out. Valdi-
via and Cuellar did not work the nightshift, however, so while
they were versed in VDS’s formal policies, there was no evi-
dentiary foundation to support that they had knowledge of actu-
al practices. Accordingly, I do not credit their testimony on this
point as to the actual practices on the night shift. Hanson’s
testimony on the matter is wholly incredible. She initially testi-
fied that she worked the night shift 3–4 times per month. On
cross-examination, she said she worked the night shift 3 times
per month or less. The evidence shows, however, that between
January 1, 2013, and October 31, 2013, Hanson worked the 11
p.m. to 7 a.m. shift on only one occasion. It is clear Hanson
fabricated her testimony in an attempt to buttress the Respond-
ent’s argument about its break policy. I find her testimony as a
whole lacks credibility and strongly indicates pretext regarding
the Respondent’s statements about practices on the night shift.
It undisputed that the CNAs were permitted to nap during
their breaks. There was no evidence presented as to any particu-
lar location the CNAs were required to take breaks, whether or
not they were napping. The Respondent did not refute testimo-
ny that Aparicio had received permission from Abaunza to take
their breaks.
I find the departure from established past practice is strong
evidence of pretext. See Bryant & Stratton Business Institute,

48 For the same reasons articulated regarding DON Warner’s texts, I
find Rule 801(d)(2) applies and the comments attributed to Cuellar and
Zelaya are not hearsay. Assuming they are considered hearsay, I find it
is reliable hearsay because it is corroborated and unrefuted. RC Alumi-
num Industries, Inc., supra.
VISTA DEL SOL HEALTH SERVICES, INC. 25
321 NLRB 1007, 1026–1028 (1996), enfd, 140 F.3d 169 (2d
Cir.1998) (unlawful to discipline faculty members who ended
class early where discipline had not previously been imposed
for that reason); Thill, Inc., 298 NLRB 669, 670 (1990) (sin-
gling out two employees for warnings regarding conduct for
which no other employee had been warned). The fact that no
other employees were disciplined despite the Respondent’s
knowledge that other employees, and particularly Maria
Ramirez, had committed the same offense, coupled with the
evidence unlawful motivation above, convince me that the Re-
spondent seized upon the opportunity to discharge known union
supporters Martha Aparicio and Delfina Sanchez. See Sander-
son Farms, Inc., 340 NLRB 402, 402–03 (2003) (Pretextual
reason for discharge defeats employer’s attempt to show it
would have discharged employee absent his union activities).
Accordingly, I find that the General Counsel proved that the
Respondent violated Section 8(a)(3) and (1) of the Act as al-
leged with regard to Martha Aparicio and Delfina Sanchez.
2. Housekeepers and maintenance employee
As detailed above, the Respondent entered into a contract on
October 3, 2013, to outsource its housekeeping department. All
six housekeepers and maintenance worker Genaro Meza were
discharged between October 25–27, 2013.49 They were re-
placed by five Pro-Clean employees.
The Wright Line framework applies to this allegation. The
General Counsel need not prove the employer’s knowledge of
any specific employee’s opinion or sympathies in the context of
a mass discharge conducted with the unlawful purpose of dis-
couraging union membership. See Birch Run Welding & Fabri-
cating Inc. v. NLRB, 761 F.2d 1175, 1179–1180 (6th Cir.1985).
The mass discharge itself is unlawful rather and the General
Counsel therefore is “not required to show a correlation be-
tween each employee’s union activity and his or her dis-
charge.” Pyro Mining Co., 230 NLRB 782 fn. 2 (1977).50
Instead, the General Counsel’s burden is to establish that the
mass discharge was ordered to discourage union activity or in
retaliation for the protected activity of some. “A power display
in the form of a mass layoff, where it is demonstrated that a
significant motive and a desired effect were to ‘discourage
membership in any labor organization,’ satisfies the require-
ments of § 8(a)(3) to the letter even if some white sheep suffer
along with the black.” Majestic Molded Products v. NLRB, 330
F.2d 603, 606 (2d Cir. 1964). See also Delchamps, Inc., 330
NLRB 1310, 1317 (2000); Weldun International, 321 NLRB
733, 734 (1996) (violation where the employer did not select
employees for layoff based on their support for the Union, but
the layoff was part of an effort to discourage employees from
supporting the Union), enfd. mem. in part 165 F.3d 28 (6th Cir.
1998).
Turning to the General Counsel’s initial Wright Line burden,
it is clear there was an ongoing organizing drive and the that
Respondent had knowledge of employees’ union activity at the
time it terminated the employees, between October 25–27,

49 The employees had no expectation of recall, so I do not find they
were laid off.
50 For this reason, the Respondent’s arguments that the layoffs did
not target union supporters fail.
2013. The fact that one of the discharged housekeepers did not
openly support the Union does not defeat employer knowledge
in the context of a mass discharge.
The Respondent contends that the General Counsel has
failed to prove that, on October 3, when VDS and Pro-Clean
executed the contract, VDS was aware of Union activity. More
specifically, citing to Bayliner Marine Corp., 215 NLRB 12
(1974), the Respondent contends that management officials had
heard nothing more than rumor. I find the instant case is distin-
guishable. Here, unlike in Bayliner, by August 2013, Valdivia
had specifically been told that individuals claiming to be from
the Union were visiting employees at home. She had held
meetings with employees warning them not to open their doors
to individuals claiming to be from the Union because they
might be thieves. Valdivia also reported that in mid-
September, Perdomo told her she was being called a traitor and
had no friends at work because she did not want to sign with
the Union.51 (R. Exh. 3.) I find this is sufficient to prove the
Respondent had knowledge of Union activity when VDS and
Pro-Clean contracted for services.
The statements from VDS’s supervisors regarding animus ar-
ticulated in the discussion of the terminations of Aparicio and
Delfina Sanchez, apply here. Warner’s text to Remedios Lopez
goes to the heart of VDS’s motivation for discharging the
housekeepers and Meza. The existence of other 8(a)(1) viola-
tions reinforces a finding of animus.
The evidence further reflects suspicious timing. The contract
with Pro-Clean was signed on October 3, 2013, with perfor-
mance under its terms to begin that same day. Yet, VDS did
not start implementing the contract’s terms by bringing in any
Pro-Clean employees until October 27. Moreover, the schedule
for November was posted in late October, reflecting VDS em-
ployees scheduled to work, and vacation requests having been
granted.
There is also evidence of shifting reasons for outsourcing the
housekeeping department. See City Stationery, Inc., 340 NLRB
523, 524 (2003) (nondiscriminatory reasons for discharge of-
fered at the hearing were found to be pretextual where different
from those set forth in the discharge letters); GATX Logistics,
Inc., 323 NLRB 328, 335 (1997) (“Where . . . an employer
provides inconsistent or shifting reasons for its actions, a rea-
sonable inference can be drawn that the reasons proffered are
mere pretexts designed to mask an unlawful motive.”). During
the 10(j) injunction proceedings in this matter, the Respond-
ent’s stated reason was its “president operates several facilities,
all of which subcontract these services,” and that it “simply
brought this facility in line with [its president’s] other business
practices.” (GC Exh. 88, p. 31.) This reason was rejected by
the judge, and accorded no weight due to the lack of any evi-
dentiary support behind it. At the hearing, the Respondent
asserted an economic justification, stating that the housekeep-
ing department was losing money at a time when VDS as a
whole was consistently losing money. While the shifting de-
fenses alone are enough to raise a red flag, the economic justi-

51 Though I have credited Perdomo’s version of the mid-September
conversation, by Valdivia’s own account, Perdomo discussed the Un-
ion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
fication standing on its own fails to withstand scrutiny.
As the General Counsel points out, the estimated $831.08 per
month in savings did not take into account the retention of Ra-
mon Lopez, who earned at least about $1800 per month. (GC
Exhs. 6, 100 pp. 1–3.) This additional cost only increased when
Pro-Clean increased its monthly from the contracted amount of
$15,406.00, to $16,387.66, nine months into the contract. (Tr.
748–750; GC Exhs. 56, 98 pp. 1–7.) The General Counsel also
points out that it would have saved more money to discharge 2
VDS employees rather than replace seven VDS employees with
five Pro-Clean employees. (GC Br. 87; GC Exhs. 56, 59.)
The Respondent asserts that costs for both maintenance and
housekeeping should be factored into the accounting, resulting
in a monthly decrease from $30, 384 to $16,387.66. There is
no evidence, however, that maintenance costs, other than Me-
za’s salary and benefits, decreased because of Meza’s dis-
charge. The contract does not obligate Pro-Clean to absorb
VDS’s maintenance costs. (GC Exh. 56.) Valdivia admittedly
was not versed in the accounting, and nobody else testified
about the costs that comprised the maintenance budget. The
Respondent has the burden of persuasion to prove its asserted
legitimate reason for contracting with Pro-Clean. Absent evi-
dence explaining what costs, if any, other than housekeeping
and laundry the contract with Pro-Clean replaced, this burden is
not met.
There have also been shifting reasons for retaining Ramon
Lopez instead of Meza to perform maintenance work. The
Respondent asserted in its position statement to the Board in
November 2013, that Pro-Clean services were only for house-
keeping not maintenance. In its response to a subpoena in July
2014, the Respondent stated that Pro-Clean could not provide
afternoon or weekend maintenance. In its December 2014
memorandum of points and authorities, the Respondent again
asserted that Pro-Clean services were only for housekeeping
not maintenance. (GC Exhs. 84, 86–88, 32). At the hearing,
Valdivia stated the Respondent retained Ramon Lopez because
Pro-Clean does not provide services 24 hours per day and be-
cause Ramon Lopez also performs security guard duties.52 (Tr.
720–721.)
Finally, I find it highly significant that the Respondent did
not call the decision maker or decision makers to explain the
reasons for subcontracting housekeeping to Pro-Clean, and,
more particularly, the timing of this action. Valdivia’s testimo-
ny about her decision-making capacity in this regard is conflict-
ing. She initially said, both in her affidavit and at the hearing,
that the decision to subcontract out housekeeping to Pro-Clean
was made by corporate, not by Valdivia, and she had no input.
(Tr. 72, 704; GC Exh. 89.) At another point in her testimony,
she said she was part of the discussions about the decision, and
recommended that they subcontract housekeeping, but could
not recall who at corporate she spoke with about this. (Tr. 89.)
What is clear is that she did not have the authority to make the

52 Meza had worked for VDS since 1993, had more seniority than
Ramon Lopez, no discipline in his record, and there is no evidence
Ramon Lopez had a better performance record. Meza was not offered
the opportunity to change to the shift VDS apparently needed covered
in order to retain his job.
decision. Her statement that she had no input into the decision
is much more plausible than her statement that she was part of
discussions about the topic and made a recommendation, but
she could not recall with whom at corporate these discussions
took place.
Preimesberger did not testify, nor did anyone from the elu-
sive “corporate.” Therefore, it is appropriate to draw an adverse
inference from the Respondent’s failure to call these decision
makers to explain why they subcontracted the work of the
housekeeping department and discharged VDS’s housekeeping
employees. Government Employees (IBPO), 327 NLRB 676,
699 (1999); United Parcel Services of Ohio, 321 NLRB 300,
308–309 (1996); Ready Mixed Concrete, 317 NLRB 1140,
1143, fn. 16 (1995); Dorn’s Transportation, 168 NLRB 457,
460 (1967), enfd. in pert. part 405 F.2d 706, 713 (2nd Cir.
1969) (failure of the decision maker to testify “is damaging
beyond repair”); The Southern New England Telephone Co.,
356 NLRB No. 118 (2011) (failure to call decisionmaker war-
rants adverse inference); Interstate Circuit v. United States, 306
U.S. 208, (1939) “The production of weak evidence when
strong is available can lead only to the conclusion that the
strong would have been adverse”).
I find the Respondent has failed to meet its burden to prove,
by preponderant evidence, that its decision to subcontract out
housekeeping and discharge the housekeeping employees and
Meza was economically motivated. I further find the General
Counsel has proved that the Respondent’s stated reason for
discharging the housekeepers and Meza was pretext to mask its
anti-union motivation.
3. December 2013 wage increase
Complaint paragraph 14 alleges that the Respondent granted
a wage increase in December 2013 because the employees as-
sisted the Union and engaged in concerted activities, and to
discourage employees from engaging in these activities, in
violation of Section 8(a)(3) and (1).
a. Timeliness
I will first address the Respondent’s contention that the
charge asserting this allegation was not filed within the 6-
month time period set forth in Sec. 10(b) of the Act. Section
10(b) provides that “no complaint shall issue based upon any
unfair labor practice occurring more than six months prior to
the filing of the charge with the Board.” The charge in Case
31–CA–137770 was filed on September 26, 2014, which is
more than 6 months from the December 2013 alleged unfair
labor practice. (GC Exh. 1(jjjj).)
Citing to Redd-I, Inc., 290 NLRB 1115, 1116–1117 (1988),
the General Counsel contends the charge is nonetheless timely
because it is closely related to other timely charges alleging
unlawful inducements. (GC Br. 74, fn. 12.)
The charge in Case 31–CA–118685, filed on December 9,
2013, alleges violations of Sec. 8(a)(1) for inducements and
promises of benefits, among other conduct. (GC Exh. 1(xxx)).
The first amended charge in that case, filed on October 21,
2014, again alleges unlawful inducements and promises of
benefits, among other conduct. (GC Exhs. 1(aaaa) and (llll).)
The instant charge was filed as an original charge on September
VISTA DEL SOL HEALTH SERVICES, INC. 27
26, 2014, and assigned Case 31–CA–137770. (GC Exh.
1(jjjj).) It alleges that the December 2013 wage increase vio-
lated Sec. 8(a)(3) and (1) of the Act.
The General Counsel contends that a wage increase is a type
of inducement and therefore the allegation about the December
2013 wage increase involves the same factual situation.
The Board’s case law for dealing with an amended charge
filed outside the 10(b) period is well-established. “[T]he timely
filing of a charge tolls the time limitation of Section 10(b) as to
matters subsequently alleged in an amended charge which are
similar to, and arise out of the same course of conduct, as those
alleged in the timely filed charge. Amended charges containing
such allegations, if filed outside the 6-month 10(b) period, are
deemed, for 10(b) purposes, to relate back to the original
charge.” Pankratz Forest Industries, 269 NLRB 33, 36–37
(1984), enfd. mem. sub nom. Kelly-Goodwin Hardwood Co. v.
NLRB, 762 F.2d 1018 (9th Cir. 1985).
In the instant case, however, the untimely charge was not
filed as an amended charge, but rather as an original charge.
Because the General Counsel included the allegation from the
charge in Case 31–CA–137770 in its complaint, however, re-
gardless of the form or timing of the charge, I must determine
whether it relates back to conduct that was timely charged and
also encompassed in the complaint. This is because the General
Counsel’s complaint is not restricted to the precise allegations
of a charge. If there is a timely charge, the complaint may al-
lege any matter sufficiently related to or growing out of the
charged conduct. NLRB v. Fant Milling Co., 360 U.S. 301, 309
(1959).
To determine whether a later charge relates back to an earlier
charge, the Board applies the three-prong “closely related” test
set forth in Redd-I, Inc., 290 NLRB 1115, 1118 (1988). See
Peerless Pump Co., 345 NLRB 371, 374 (2005). The Board
considers:
(1) whether the otherwise untimely allegations of the amend-
ed charge involve the same legal theory as the allegations in
the timely charge;
(2) whether the otherwise untimely allegations of the amend-
ed charge arise from the same factual situation or sequence of
events as the allegations in the timely charge; and
(3) whether a respondent would raise the same or similar de-
fenses to both the untimely and timely charge allegations.
Redd-I, supra. Though Redd-I concerns the similarity of
amended charges, the relatedness test applies to allegations in
initial complaints. Nickles Bakery of Indiana, 296 NLRB 927,
927–928 (1989).
With respect to the first Redd-I factor, the allegations in the
complaint stemming from the timely charges rest on a legal
theory of inducement and promises of benefits aimed at coerc-
ing employee in their exercise of Section 7 rights in violation of
Section 8(a)(1). The allegation that employees were granted a
wage increase rests on this same legal theory, as well as a theo-
ry that the wage increase was unlawfully motivated under Sec-
tion 8(a)(3). An untimely allegation need not involve the same
section of the Act as the other alleged violations. Nickles Bak-
ery of Indiana, supra, fn. 5.
With regard to the 8(a)(1) allegation encompassed in com-
plaint paragraphs 14(a) and 18, the same legal theory clearly
applies. The more difficult question is whether the 8(a)(3) alle-
gation in complaint paragraphs 14(b) and 19 encompasses the
same legal theory. I find that it does. First, both allegations
share a common legal theory based on the Respondent’s animus
in opposing to the Union’s organizational campaign. The timely
charges and the untimely 8(a)(1) charge allege coercive in-
ducements manifesting a general animus against union activity.
The untimely 8(a)(3) charge alleges a wage increase motivated
by animus against employees’ union activity. The common
aspect of animus in such circumstances is sufficient to meet the
Redd-I requirement that essentially similar legal theories under-
lie the different allegations. See Fiber Products, 314 NLRB
1169 (1994), enfd. FPC Holdings, Inc. v. NLRB, 64 F.3d 935,
941 (4th Cir. 1995). Moreover, Unlike most 8(a)(1) allega-
tions, analysis of a claim that benefits were promised, an-
nounced, or granted to coerce employees in their choice of
bargaining representative is motive-based. Network Dynamics
Cabling, Inc., supra. Thus, analysis of both the (8)(a)(1) and
8(a)(3) allegations concerns whether the evidence as a whole,
including any proffered legitimate reason for the wage increase,
supports an inference that the offer was motivated by an unlaw-
ful purpose to coerce or interfere with Section 7 rights.
Turning to the second factor, it is abundantly clear the oth-
erwise untimely allegation arose from the same factual situation
or sequence of events outlined above. It is a continuation of a
pattern of unlawful conduct aimed at keeping the Union away.
Finally, with regard to the third factor, similar defenses
would apply in that Respondent would attempt to explain both
a promise of a benefit and the grant of a benefit as legitimate
actions taken for reasons unrelated to the Union.
The Respondent points out that, under Redd-I, complaint
amendments outside the 10(b) time period may are only permit-
ted if the untimely allegations are closely related timely viola-
tions named in the charge and occurred within 6 months before
the filing of the charge. This test from Redd-I, however, which
applies to complaint amendments, does not appear in Nickles
Bakery, which concerns allegations in initial complaints. In any
event, the increase, which began on December 1, 2013, oc-
curred within 6 months before the charge in Case 31–CA–
118685, which was filed on December 9.
In sum, it would defy any measure of logic and common
sense to say an allegation that actual benefits conferred on em-
ployees is not sufficiently related to or an outgrowth of an alle-
gation regarding the promise of benefits. NLRB v. Fant Milling
Co., supra. I therefore find the General Counsel has met its
burden to prove the allegation is timely.
b. Merits of the allegation
With regard to the 8(a)(1) allegations, the legal standard
framework for wage increases, governed by NLRB v. Exchange
Parts Co., 375 U.S. 405 (1964), is set forth above in the section
addressing the October wage increases of CNA Maria Ramirez
and Housekeeper Romana Lopez. And because a 8(a)(1) claim
regarding a wage increase is motive based, many of the same
factors are considered for both the 8(a)(3) and (1) claims.
I find the employees would reasonably view the December
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
wage increase as an attempt to interfere with or coerce them in
their choice on union representation. Southgate Village Inc.,
supra. The wage increase was implemented while the petition
for a Board election was still pending, on the heels of the unfair
labor practices described above. Significantly, wage increases
at VDS are not on a set schedule and depend on VDS’s finan-
cial state. Yet the wage increase followed the replacement of
the housekeeping employees with contractors—a move made
ostensibly because VDS was experiencing financial hardship.
Most of the employees had not received a raise in a more than 5
years, so an across-the-board wage increase of this magnitude
certainly sent a message. Given the other coercive conduct
over the preceding months, I easily find the employees would
reasonably view the wage increase as an attempt to steer them
away from the Union.
The employer must demonstrate a legitimate business reason
for the timing of the benefit. No such reason was forthcoming.
As to the 8(a)(3) allegations, the General Counsel has met its
initial burden under Wright Line for the reasons set forth in the
analyses of the terminations and discharges. As noted directly
above, the Respondent has not come forward with a legitimate
reason for the wage increase, and I therefore find the General
Counsel has met its burden to prove this allegation.
D. Request for Bargaining Order
In complaint paragraph 16, the General Counsel has request-
ed a remedial bargaining order pursuant to NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969). Though such a remedy is
extraordinary, I find the General Counsel has met its burden to
prove it is appropriate under the circumstances present here.
The purpose of a remedial bargaining order is “to remedy
past election damage [and] deter future misconduct.” Gissel,
supra. The Supreme Court had sanctioned the issuance of such
a bargaining order “where an employer has committed inde-
pendent unfair labor practices which have made the holding of
a fair election unlikely or which have in fact undermined the
union’s majority. . . .” Gissel, 395 U.S. at 610; see also NLRB v.
Katz, 369 U.S. 736, 748, (1962). The Board thus has the au-
thority to order an employer to recognize and bargain with a
union even if the employees have not voted for union represen-
tation in an election.
The Supreme Court in Gissel identified two categories of
employer misconduct that might implicate a bargaining order.
“Category I” cases involve outrageous and pervasive unfair
labor practices that make a fair election impossible. “Category
II” cases involve less extraordinary and less pervasive unfair
labor practices, which have nonetheless undermined majority
union support, once expressed through authorization cards,
rendering the possibility of a fair election slight. See Register
Guard, 344 NLRB 1142, 1146 (2005); Milum Textile Services,
357 NLRB No. 169, slip op. at 11 (2011).
As to Category I, the pervasiveness of the unfair labor prac-
tices is described fully above and need not be reiterated here.
The unfair labor practices included highly coercive hallmark
violations such as a mass discharge of the housekeeping de-
partment, threats of job loss and facility closure, and discrimi-
natory terminations. See NLRB v. Jamaica Towing, 632 F.2d
208, 212–213 (2d Cir. 1980); General Fabrications Corp., 328
NLRB 1114, 1116 fn. 17 (1999), enfd. 222 F.3d 218 (6th Cir.
2000). The Respondent also implemented the first across-the
board wage increase for its CNAs, the largest group of employ-
ees, in more than 5 years, while the petition for a Board elec-
tion was still pending. “Such unlawful wage increases have a
particularly long lasting effect because the Board’s traditional
remedies do not require that an employer rescind its wage in-
crease. . . . Because such increases regularly appear in employ-
ees’ pay checks, they are a continuing reminder that ‘the source
of benefits now conferred is also the source from which future
benefits must flow and which may dry up if not obliged.”
Overnight Transportation Co., 329 NLRB 990 (1999), quoting
NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964). See
also NLRB v. Jamaica Towing, supra (“hallmark violations,”
including Section 8(a)(3) granting of benefits, are regarded as
highly coercive and are “likely to have a lasting inhibitive ef-
fect on . . . the work force”)
These threats and other actions came from high levels of
management and continued over several months. “Neither the
threat nor the mass layoff is likely to be forgotten by the em-
ployees. To the contrary, these are the types of dire warnings
and concrete measures certain to exert a substantial and contin-
uing coercive impact on any employee, whether current or sub-
sequently hired, contemplating a vote in favor of unionization.”
Weldun Intern., Inc., 321 NLRB 733, 734, and 748 (1996),
enfd. mem. in relevant part 165 F.3d 28 (6th Cir. 1998).
I am persuaded that these violations, which occurred in a rel-
atively small unit, make it unlikely that traditional Board reme-
dies will create the conditions required for a fair and reliable
election. Based on the foregoing, I find, therefore, that based on
the severity and pervasiveness of the unfair labor practice, a
bargaining order is warranted under Category I. Electro-Voice,
Inc., 320 NLRB 1094 (1996).
E. 8(a)(5) Allegations
Complaint paragraphs 17 and 20 allege that the Union vio-
lated Section 8(a)(5) of the Act by failing to bargain over the
discharges and the December 2013 wage increase.
The Act, at Section 8(a)(5), provides that it shall be an unfair
labor practice for an employer “to refuse to bargain collectively
with the representatives of his employees.” Collective bargain-
ing is defined in Section 8(d) as “the performance of the mutual
obligation of the employer and the representative of the em-
ployees to meet at reasonable times and confer in good faith
with respect to wages, hours, and other terms and conditions of
employment.” The Act does not define “terms and conditions”
of employment. Regarding topics other than wages, hours, or
other terms and conditions of employment, “each party is free
to bargain or not to bargain, and to agree or not to agree.”
NLRB v. Borg-Warner, 356 US 342, 349 (1958).
First, I find the following employees of VDS are an appro-
priate bargaining unit for purposes of Section 9(b) of the Act:
Included: All full-time, part-time, and on-call Certified Nurse
Assistants (CNA), restorative nurse assistants (RNA), care-
givers, Housekeeping, Laundry, Cooks, Dietary aids, mainte-
nance, and activity assistants.
Excluded: All other employees, confidential employees, man-
VISTA DEL SOL HEALTH SERVICES, INC. 29
agers, office, clerical employees, professional employees,
guards and supervisors as defined in the [A]ct.
Having determined that the Union represented the majority of
the employees in the appropriate unit as of October 13, I find
that the Respondent violated Section 8(a)(5) and (1) of the Act
by refusing the Union’s demand for recognition.
When the Union has obtained signed authorization cards
from a majority of employees, as here, the obligation to bargain
attaches when the employer embarks on a campaign of unfair
labor practices. Parts Depot, Inc., 332 NLRB 670, 678 (2000),
enfd. 24 Fed.Appx. 1 (D.C. Cir. 2001). I find, therefore, that
the duty to bargain attached no later than October 14, 2013.
1. Terminations of CNAs Martha Aparicio and
Delfina Sanchez
I have found these October 18, 2013, terminations violated
Section 8(a)(3), and will order reinstatement of Martha
Aparicio and Delfina Sanchez. In the event a reviewing author-
ity disagrees with my 8(a)(3) findings, however, I find that the
terminations are a mandatory subject of bargaining. Ryder Dis-
tribution Resources, 302 NLRB 76, 90 (1991) (termination of
unit employees is a mandatory subject of bargaining, even if the
parties have not yet negotiated a collective-bargaining agree-
ment); N.K. Parker Transport, Inc., 332 NLRB 547, 551
(2000). It is undisputed that the Respondent did not give notice
to the Union and an opportunity to bargain over the decision to
terminate Martha Aparicio and Delfina Sanchez, or the effects
of those terminations. I therefore find the General Counsel has
established a violation of Section 8(a)(5).
2. Termination of Maintenance Worker Meza
Though the Respondent linked the discharge of Meza to the
decision to subcontract out housekeeping to Pro-Clean and
discharge the housekeepers, I find no proof in the record that
maintenance fell under the contract with Pro-Clean. I find that
Meza’s termination was a mandatory subject of bargaining. It is
undisputed that the Respondent did not give notice to the Union
and an opportunity to bargain over the decision to terminate
Meza or the effects of this termination. I therefore find the
General Counsel has established a violation of Section 8(a)(5).
3. Discharge of housekeeping employees
The discharge of the housekeeping employees occurred after
the Respondent’s entered into an agreement subcontract its
housekeeping department to Pro-Clean, on October 3, 2013.
The discharges themselves, however, did not occur until Octo-
ber 27–29.
As detailed above, nobody with decision-making authority
testified as to why or when the decision was made to discharge
the housekeeping employees. Valdivia signed the contract with
Pro-Clean on October 3, and by its terms, it took effect the
same day. Nobody from corporate testified about when the
decision to discharge the employees, which occurred about 3
weeks after the contract was signed, was finalized. For the
reasons set forth above, I am drawing an adverse inference
based on the decision makers’ failure to testify, and I find the
decision was made after October 13, 2013.
Accordingly, I both the decision to discharge the employees
and the effects of the discharges were mandatory subjects of
bargaining, and I therefore find the General Counsel has estab-
lished a violation of Section 8(a)(5).
F. Respondent’s Request for Litigation Fees
The Respondent asserts the Board and the Union acted in
bad faith, and therefore should pay the Respondent’s litigation
fees. (R. Br. 14–18.) I have addressed the alleged witness
coaching and the settlement communication above. With re-
gard to a charge that was dismissed, the proper procedures for
addressing this are set forth in Rule 102.19 of the Boards Rules
and Regulations.
I have considered all of the Respondent’s arguments. No ev-
idence was presented at trial to support these arguments, and I
cannot rule based solely on the Respondent’s assertions set
forth in its brief. I therefore decline to grant the remedy of
litigation fees due to the lack of record evidence regarding bad
faith on the part of the Union or Board.
CONCLUSIONS OF LAW
1. By instructing employees not to talk to the Union, inter-
rogating employees about union activities, threatening employ-
ees with unspecified reprisals for engaging in union activities,
engaging in surveillance of employees’ union activities, telling
employees engaging in Section 7 activities to leave the premis-
es, promulgating a rule prohibiting logos, announcing a rule to
employees that attendance would be more strictly enforced,
polling employees about their support for the Union, promising
enhanced job security for saying the Union forced employees to
support them, threatening closure of the facility for supporting
the Union, terminating CNAs Martha Aparicio and Delfina
Sanchez, discharging the housekeeping staff, discharging
Maintenance Workers Genaro Meza, implementing an across-
the-board wage increase for CNAs, and by implementing the
terminations, discharges, and the across-the-board wage in-
crease unilaterally, without notice and an opportunity to bargain
with the Union, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. By the conduct described above, the Respondent has vio-
lated Section 8(a)(5), (3), and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
Having instructed employees not to talk to the Union, the
Respondent will be ordered to cease and desist from these ac-
tions.
Having interrogated employees about union activities,
through questioning and polling, and having threatened em-
ployees with adverse consequences, including facility closure,
for engaging in union activities, the Respondent will be ordered
to cease and desist from these actions.
Having engaged in surveillance of employees’ union activi-
ties, the Respondent will be ordered to cease and desist from
this action.
Having told employee engaging in protected Section 7 ac-
tivities to leave the premises, the Respondent will be ordered to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
cease and desist from these actions.
Having promulgated a rules prohibiting logos and threaten-
ing to enforce stricter attendance standards, the Respondent will
be ordered to cease and desist from these actions.
Having promised an employee greater job security for saying
the Union obtained her support by force, the Respondent will
be ordered to cease and desist from these actions.
Having implemented an across-the-board wage increase for
CNAs while a petition for election was pending before the
Board, the Respondent will be ordered to cease and desist from
this action.
Having unlawfully discharged CNAs Martha Aparicio and
Delfina Sanchez, the housekeeping employees, and Genaro
Meza, the Respondent will be required to restore the status quo
ante by rescinding their unlawful discharges and removing all
references to them from the Respondent’s files.
The Respondent, having discriminatorily terminated Martha
Aparicio and Delfina Sanchez, and discharged the housekeep-
ing employees and Genaro Meza, must offer them reinstate-
ment and make them whole for any loss of earnings and other
benefits. Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB No. 8 (2010). The Respondent shall file a report
with the Social Security Administration allocating backpay to
the appropriate calendar quarters. Respondent shall also com-
pensate the discriminatees for the adverse tax consequences, if
any, of receiving one or more lump-sum backpay awards cover-
ing periods longer than 1 year. Latino Express, Inc., 358
NLRB No. 94 (2012), reaffd. 361 NLRB No. 137 (2014); Don
Chavas, LLC, d/b/a Tortillas Don Chavas, 361 NLRB No. 10
(2014).
In light of my finding above that a Gissel bargaining-order is
appropriate, the Respondent will be ordered to, on request,
bargain with the Union as the exclusive representative of the
employees in the appropriate unit concerning terms and condi-
tions of employment.
The reinstatement of the terminated and discharged employ-
ees is also an appropriate remedy for its failure to provide no-
tice to the Union and provide an opportunity to bargain. Resto-
ration to the status quo ante is presumptively appropriate to
remedy unlawful unilateral changes. Southwest Forest Indus-
tries, 278 NLRB 228–228 (1986), enfd. 841 F.2d 270 (9th Cir.
1988). When bargaining unit work has unilaterally and unlaw-
fully been removed, restoration of the work to the bargaining
unit is the appropriate remedy, unless the employer demon-
strates that restoration would be unduly burdensome. Fibre-
board Corp. v. NLRB, 379 U.S. 203, 216 (1964). No such
showing has been made, and I therefore find restoration to the
status quo ante, by reinstatement in the manner set forth above,
is the appropriate remedy.
The Respondent shall be required to post a notice informing
employees of its violations of the Act. The General Counsel, at
complaint paragraph 21, has requested an order requiring the
Respondent to post the notice in English and Spanish. Because
a significant number of the Respondent’s employees speak
Spanish, the notice should be posted in English and Spanish.
See O.G.S. Technologies, Inc., 356 NLRB No. 92, slip op. at 7
(2011); Allied Medical Transport, Inc., 360 NLRB No. 142,
slip op. at 7.
The General Counsel, at complaint paragraph 21, has re-
quested that the notice be read aloud by Valdivia or by a Board
agent in the presence of Valdivia, DeBorja, Cuellar, Warner,
Zelaya, Abaunza, and Castillo. The Board has required that
notices be read aloud by high-ranking officials or a Board agent
this remedy when numerous serious unfair labor practices have
been were committed by a high-ranking management official.
Allied Medical Transport, Inc., supra. at 6 fn. 9 (2014). When
unfair labor practices are severe and widespread, having the
notice read aloud to employees allows them to “fully perceive
that the Respondent and its managers are bound by the re-
quirements of the Act.” Federated Logistics & Operations, 340
NLRB 255, 258 (2003), affd. 400 F.3d 920, 929–930 (D.C. Cir.
2005); see also Homer D. Bronson Co., 349 NLRB 512, 515
(2007). I find the General Counsel has established that this
remedy is required to enable employees to exercise their Sec-
tion 7 rights free from coercion. The Respondent, therefore,
will be ordered to have the notice read aloud by a Board agent
in the presence of Valdivia, or by Valdivia or a higher-ranking
official from VDS’s corporate offices.
Because of the Respondent’s egregious and widespread mis-
conduct, demonstrating a general disregard for the employees’
fundamental rights, I find it necessary to issue a broad Order
requiring the Respondent to cease and desist from infringing in
any other manner on rights guaranteed employees by Section 7
of the Act. Hickmott Foods, 242 NLRB 1357 (1979).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended53
ORDER
The Respondent, Vista Del Sol Health Services, Inc., d/b/a
Vista Del Sol Healthcare, Los Angeles, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from telling employees not to talk to the
Union, coercively interrogating any employee about union
support or union activities, polling employees about their sup-
port for the Union, threatening employees with unspecified
reprisals for engaging in union activities, engaging in surveil-
lance of employees’ union activities, telling employees engag-
ing in Section 7 activities to leave the premises, promulgating a
rule prohibiting logos, announcing a rule to employees that
attendance will be more strictly enforced, promising enhanced
job security for saying the Union forced employees to support
them, threatening closure of the facility for supporting the Un-
ion, discharging or otherwise discriminating against any em-
ployee for supporting the Service Employees International Un-
ion, United Long Term Care Workers or any other union, im-
plementing an across-the board wage increase because employ-
ees assisted the Union and engaged in concerted activities, and
by implementing the terminations, discharges, across-the-board

53 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
VISTA DEL SOL HEALTH SERVICES, INC. 31
wage increases, or any other changes to terms and conditions of
unit employees’ employment, unilaterally, without notice and
an opportunity to bargain with the Union.
In any other manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the following appropriate unit
concerning terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a signed
agreement:
Included: All full-time, part-time, and on-call Certified Nurse
Assistants (CNA), restorative nurse assistants (RNA), care-
givers, Housekeeping, Laundry, Cooks, Dietary aids, mainte-
nance, and activity assistants.
Excluded: All other employees, confidential employees, man-
agers, office, clerical employees, professional employees,
guards and supervisors as defined in the National Labor Rela-
tions Act.
(b) Within 14 days from the date of the Board’s Order, offer
Martha Aparicio, Delfina Sanchez, Elisa Mayorga, Maria Isabel
Valladares (nee Menjivar), Genaro Meza, Dafny Cobar,
Romana Lopez, Rosa Lopez, and Carmelina Perdomo full rein-
statement to their former jobs or, if that job no longer exists, to
a substantially equivalent position, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
(c) Make Martha Aparicio, Delfina Sanchez, Elisa Mayorga,
Maria Isabel Valladares (nee Menjivar), Genaro Meza, Dafny
Cobar, Romana Lopez, Rosa Lopez, and Carmelina Perdomo
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them in the manner set forth
in the remedy section of the decision.
(d) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges
and within 3 days thereafter notify the employees in writing
that this has been done and that the discharges will not be used
against them in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cility in Los Angeles, California, copies of the attached notice
marked “Appendix”54 in both English and Spanish. Copies of
the notice, on forms provided by the Regional Director for Re-

54 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 and Order of the
National Labor Relations Board.”
gion 31, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
In addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since August 1,
2013.55
(g) Within 14 days after service by the Region, hold a meet-
ing or meetings, scheduled to ensure the widest possible attend-
ance, at which the attached notice marked “Appendix” is to be
publicly read by a high-ranking responsible management offi-
cial of the Respondent or by a Board agent in the presence of a
high-ranking responsible management official of the Respond-
ent.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. June 5, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising
these rights.
WE WILL NOT coercively question you about your union sup-

55 The unfair labor practice was Valdivia’s phone call to Rosa Lopez,
which occurred in late July or early August. August 1 is therefore an
approximation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
port or activities, including polling you about your union sup-
port.
WE WILL NOT promulgate a rule prohibiting logos, or an-
nounce a rule to that attendance will be more strictly enforced
in response to union activity.
WE WILL NOT instruct you not to talk to representatives from
the Service Employees International Union, United Long Term
Care Workers or any other union.
WE WILL NOT threaten you with facility closure or with other
reprisals for supporting the Service Employees International
Union, United Long Term Care Workers, or any other union.
WE WILL NOT engage in surveillance of your activities in-
volving the Service Employees International Union, United
Long Term Care Workers, or any other union.
WE WILL NOT promise you enhanced job security for saying
your support of the Service Employees International Union,
United Long Term Care Workers or any other union was not
voluntary.
WE WILL NOT order you to leave the facility when you are
engaging in peaceful Section 7 activities that do not result in
patient disturbance or disruption of healthcare operations.
WE WILL NOT grant wage increases in order to discourage
and dissuade you from selecting of the Service Employees In-
ternational Union, United Long Term Care Workers or any
other union as your bargaining representative.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting the Service Employees International
Union, United Long Term Care Workers or any other union.
WE WILL NOT unilaterally, without notice and an opportunity
to bargain with the Service Employees International Union,
United Long Term Care Workers, make and implement chang-
es to your terms and conditions of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL, on request, bargain with the Union and put in writ-
ing and sign any agreement reached on terms and conditions of
employment for our employees in the bargaining unit:
Included: All full-time, part-time, and on-call Certified Nurse
Assistants (CNA), restorative nurse assistants (RNA), care-
givers, Housekeeping, Laundry, Cooks, Dietary aids, mainte-
nance, and activity assistants.
Excluded: All other employees, confidential employees, man-
agers, office, clerical employees, professional employees,
guards and supervisors as defined in the National Labor Rela-
tions Act.
WE WILL within 14 days from the date of this Order, offer
Martha Aparicio, Delfina Sanchez, Elisa Mayorga, Maria Isabel
Valladares (nee Menjivar), Genaro Meza, Dafny Cobar,
Romana Lopez, Rosa Lopez, and Carmelina Perdomo full rein-
statement to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
WE WILL make Martha Aparicio, Delfina Sanchez, Elisa
Mayorga, Maria Isabel Valladares (nee Menjivar), Genaro Me-
za, Dafny Cobar, Romana Lopez, Rosa Lopez, and Carmelina
Perdomo whole for any loss of earnings and other benefits re-
sulting from their discharge, less any net interim earnings, plus
interest compounded daily.
WE WILL file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters.
WE WILL compensate Martha Aparicio, Delfina Sanchez, Eli-
sa Mayorga, Maria Isabel Valladares (nee Menjivar), Genaro
Meza, Dafny Cobar, Romana Lopez, Rosa Lopez, and
Carmelina Perdomo for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay awards covering
periods longer than 1 year.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharges of Mar-
tha Aparicio, Delfina Sanchez, Elisa Mayorga, Maria Isabel
Valladares (nee Menjivar), Genaro Meza, Dafny Cobar,
Romana Lopez, Rosa Lopez, and Carmelina Perdomo and WE
WILL, within 3 days thereafter, notify each of them in writing
that this has been done and that the discharges will not be used
against them in any way.
VISTA DEL SOL HEALTH SERVICES, INC. D/B/A VISTA DEL
SOL HEALTHCARE
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/31-CA-115318 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.