800 RIVER ROAD OPERATING COMPANY LLC D/B/A WOODCREST HEALTH CARE CENTER

National Labor Relations Board - Board Decisions

May 31, 2013

22-RC-073078 (N.L.R.B. May. 31, 2013)

NOT INCLUDED PGB
IN BOUND VOLUMES New Milford, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
800 RIVER ROAD OPERATING COMPANY,
LLC d/b/a WOODCREST HEALTH CARE
CENTER
Employer
and Case 22-RC-073078
1199 SEIU, UNITED HEALTHCARE WORKERS
EAST
Petitioner
ORDER DENYING MOTION
On January 9, 2013, the National Labor Relations Board issued a Decision and
Certification of Representative in this proceeding.1 The Board adopted the hearing
officer’s recommendation to overrule the Employer’s remaining objections to a March 9,
2012 election, including objections alleging that supervisor Israel Vergel de Dios was
one of four supervisors who interfered with employee free choice by engaging in
prounion conduct. The Board also found that the hearing officer improperly refused to
issue six additional subpoenas to the Employer but that the error was harmless: given
the Employer’s failure to elicit any competent evidence of objectionable conduct from its

1 359 NLRB No. 48. The Employer states that it has submitted its motion
“without prejudice to (and specifically reserves) its position that the Board had no power
to issue its January 9, 2013 Decision and Certification of Representative.” We note,
however, that the Employer did not assert that position in its exceptions to the hearing
officer’s report underlying the January 9 decision. As the Employer adds, it later did file
a motion to vacate that decision on the ground that the Board lacked a quorum at the
time. We denied that motion by unpublished Order dated May 10, 2013, and for the
reasons stated therein we continue to reject the Employer’s position here.
2
first 10 witnesses and its inability to make an offer of proof concerning the individuals it
sought to subpoena, the Board found it reasonable to conclude that the hearing officer
would have refused to allow the additional witnesses to testify had he issued the
subpoenas or revoked the subpoenas if presented with a petition to do so.
The Employer has filed a motion to reopen the record, arguing that it has newly
discovered evidence that Vergel de Dios engaged in objectionable conduct. It contends
that, after the Board issued its decision, it interviewed or re-interviewed several of its
employees in another attempt to find evidence to support its objections. One employee,
Dawn-Marie Sormani,2 gave a signed statement that she witnessed Vergel de Dios
telling four of the employees whom he supervised3 that “they should vote in favor of the
[U]nion so that they could receive better wages and health benefits,” and, on another
occasion, that she saw Vergel de Dios “randomly telling people” in the hallway outside
the dining room that they should vote for the Union.4 The Employer contends that the

2 Sormani worked in a different department than, and was not supervised by,
Vergel de Dios.
3 Sormani identified the four employees by their first names: “Paulette, Felix,
Jean, and Myrna.” We cannot be certain to whom Sormani refers.
4 The Employer states that Sormani also said that the hallway was near where
many of the employees who worked under Vergel de Dios worked, but her written
statement contains no such content.
The Employer also claims that Vergel de Dios continued to intimidate potential
witnesses when it conducted its interviews after the Board decision, even though it had
fired Vergel de Dios in August 2012. First, the Employer asserts that several
employees who had been supervised by Vergel de Dios refused to be interviewed. For
example, the Employer relates, it attempted to interview the employees that Sormani
had identified, but three refused to be interviewed and it had “a distinct sense” that the
fourth was withholding information. Second, the Employer points out that Vergel de
Dios had filed an unfair labor practice charge over his discharge, withdrew it, and then
re-filed it shortly after the Employer conducted its post-Board-decision interviews. This
suggests, the Employer argues, that Vergel de Dios wanted to convey to his former
supervisees his intent to return so that they would not speak candidly about his election
conduct. Third, the Employer finds it significant that, on the day of the interviews, it
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foregoing newly discovered evidence shows that the Board was wrong in finding the
hearing officer’s error harmless and, therefore, that the Board must reopen the record
and allow the Employer to subpoena the testimony of other employees to prove its
objection. The Union filed an opposition to the motion.
We deny the Employer’s motion for the reasons set forth below.
Under Section 102.65(e)(1) of the Board’s Rules and Regulations, the Board will
reopen the record for new evidence only when the movant establishes that (1) “the
evidence existed but was unavailable to the party before the close of the proceeding”
and (2) “the evidence would have changed the result of the proceeding.” Manhattan
Center Studios, Inc., 357 NLRB No. 139, slip op. at 3 (2011).5 The Employer
establishes neither requirement.
First, evidence is “unavailable” only if the movant proves it was “excusably
ignorant” of the evidence at the time it was required to act. Id. In making that
determination, the Board asks whether the movant has established that the evidence in
question could not have been discovered by “reasonable diligence.” Id.6 Here, the
Employer’s post-Board-decision interview was not its first with Sormani. The Employer

“believe[s]” that Vergel de Dios was in the Dunkin’ Donuts adjacent to the Employer’s
facility. Contary to the Employer, we decline to find that any of these assertions or
surmises excuses its inability to offer evidence of coercion.
5 The motion also must be “filed promptly” after discovery of the new evidence.
Sec. 102.65(e)(2). The Union asserts that the motion, filed approximately one month
after Sormani’s signed statement, was untimely. We find it unnecessary to pass on
timeliness because the Employer plainly failed to meet the other requirements of Sec.
102.65(e).
6 In some cases, a movant may prove the evidence could not have been timely
discovered even with the exercise of reasonable diligence “by establishing that it did in
fact act with reasonable diligence to uncover evidence of objectionable conduct and that
despite those efforts it failed to discover” it. Id. For the reasons discussed below,
however, the Employer did not act with reasonable diligence.
4
had interviewed her before the May 2012 objections hearing, and she fully cooperated
at that time. The Employer neglected to ask her about Vergel de Dios and instead
focused on the allegedly objectionable conduct of the three other supervisors implicated
in its objections. We find that the Employer did not exercise reasonable diligence. The
Employer could have discovered Sormani’s testimony during the earlier interview had it
asked her about all four of the supervisors.
We are not persuaded by the Employer’s justifications that it interviewed between
100 and 150 employees during the 4 days after the election and that, because Sormani
was among the first interviewed, its allegations against Vergel de Dios were not yet well
developed at that time. Asking each of the employees about Vergel de Dios would not
have unreasonably lengthened the interviews. Furthermore, once the objections were
set for hearing, the Employer had 23 additional days before the start of the hearing to
gather evidence. Thus, even if the Employer, when it initially interviewed Sormani, did
not know enough to ask her about Vergel de Dios—which the Employer does not
contend—the Employer could have re-interviewed her and similarly situated employees
during that period.
Second, the Employer has failed to establish that, had Sormani testified
consistent with her signed statement and the hearing officer credited that testimony, it
would have changed the result, i.e., the Board would have found that Vergel de Dios’s
conduct interfered with employee free choice. See Manhattan Center, slip op. at 5.
Vergel de Dios’s encouraging a small number of employees to vote for the Union, and
voicing his opinion that they would receive better wages and benefits if represented by
the Union was not, without more, objectionable conduct. The Employer had to prove
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that (1) Vergel de Dios’s conduct reasonably tended to coerce employees (considering
facts such as the nature of his supervisory authority and the context of the conduct) and
(2) his conduct materially affected the outcome of the election (considering facts such
as the margin of victory and how many employees learned of the conduct). See
Harborside Healthcare, Inc., 343 NLRB 906, 909 (2004). Sormani’s testimony would
not prove either prong, especially in light of the Union’s wide margin of victory (a 41-
vote margin out of 205 votes cast).
In fact, the Employer tacitly concedes that Sormani’s statement alone does not
compel a different result, arguing instead that it should now be allowed to subpoena
other employees because Sormani’s statement gives it a “good faith basis” to contend
that Vergel de Dios “very well may have” engaged in objectionable conduct. The
Employer fails to even name the employees whom it would subpoena, much less
establish that each employee has evidence that was unavailable before the close of the
proceeding and that would change the result.7 We will not reopen the record for the
Employer to resume “the manifest fishing expedition” that we described in our
underlying decision.
In sum, having duly considered the matter, we find that the Employer’s motion
fails to present “extraordinary circumstances” warranting reopening the record under
Section 102.65(e)(1).
IT IS ORDERED, therefore, that the Employer’s motion to reopen the record is
denied.
Dated, Washington, D.C., May 31, 2013.

7 See Sec. 102.65(e)(1) of the Board’s Rules and Regulations.
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_________________________________
Mark Gaston Pearce, Chairman
_________________________________
Richard F. Griffin, Jr., Member
_________________________________
Sharon Block, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD