American Baptist Homes of the West d/b/a Piedmont Gardens

National Labor Relations Board - Administrative Judge Opinions

Aug 9, 2011

32-CA-025247 (N.L.R.B. Aug. 9, 2011)

JD(SF)–29--11
Oakland, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
AMERICAN BAPTIST HOMES OF THE
WEST d/b/a PIEDMONT GARDENS
and Cases 32–CA–25247
32–CA–25248
32–CA–25266
SERVICE EMPLOYEES INTERNATIONAL UNION, 32–CA–25271
UNITED HEALTHCARE WORKERS–WEST through 32–CA–25308
32–CA–25498
Jennifer E. Benesis, Esq.,
appearing on behalf of the Acting General Counsel.
David S. Durham, Esq. and Gilbert J. Tsai, Esq., for
Howard Rice Nemerovski Canady Falk & Rabkin, of
San Francisco, California, appearing on behalf of the
Respondent.
Bruce A. Harland, Esq. and Manuel A. Boigues, Esq.,
for Weinberg, Roger & Rosenfeld, of Alameda, California,
appearing on behalf of the Charging Party.
DECISION
Statement of the Case
Burton Litvack, Administrative Law Judge. The unfair labor practice charges in
Cases 32–CA–25247 and 32–CA–25248 were filed by Service Employees International Union,
United Healthcare Workers–West (the Union), on July 26, 2010; the unfair labor practice
charges in Cases 32–CA–25266 and 32–CA–25271 through 32–CA–25308 were filed by the
Union on August 9, 2010; and the unfair labor practice charge in Case 32–CA–25498 was filed
by the Union on November 30, 2010.1 After completion of investigations, on March 24, 2011,
the Regional Director for Region 32 of the National Labor Relations Board (the Board), issued a
consolidated complaint alleging that American Baptist Homes of the West d/b/a Piedmont
Gardens (Respondent), engaged in, and continues to engage in, unfair labor practices within
the meaning of Section 8(a)(1) (3), and (5) of the National Labor Relations Act (the Act).
Respondent timely filed an answer, essentially denying the commission of the alleged unfair
labor practices. Pursuant to a notice of hearing, the above-captioned matters came to trial

1 Unless otherwise stated, all events herein occurred during 2010.
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before the above-named administrative law judge in Oakland, California, on May 16 through 18,
2011. At the said hearing, all parties were afforded the right to call witness, to examine and to
cross-examine witnesses, to present any relevant documentary evidence, to argue their
respective legal positions orally, and to file posthearing briefs. Said briefs were filed by counsel
for the Acting General Counsel, in which counsel for the Union joined, and by counsel for
Respondent and have been carefully considered. Accordingly, based upon the entire record
herein, including the posthearing briefs and my observation of the credibility of the several
witnesses,2 I make the following
FINDINGS OF FACT
Jurisdiction
At all times material herein, Respondent, a State of California nonprofit corporation, has
been engaged in the operation of continuing care retirement communities, including a facility
located in Oakland, California, known as Piedmont Gardens and a separate facility also located
in Oakland known as Grand Lake Gardens. During the 12-month period immediately preceding
the issuance of the instant consolidated complaint, which period is representative, Respondent,
in the normal course and conduct of its above-described business operations, derived gross
revenues in excess of $50,000 and purchased and received goods and services, valued in
excess of $5000, which originated outside the State of California. Respondent is now, and has
been at all times material herein, an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
Labor Organization
The Union is now, and has been at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
The Issues
The consolidated complaint alleges that, on June 17 and 18, Respondent engaged in
acts and conduct violative of Section 8(a)(1) of the Act by enforcing its no-access rule in such a
manner as to require off-duty employees, who were present at the Piedmont Gardens facility to
participate in a Union strike authorization vote, to leave the said facility and by, through the
actions of a security guard, engaging in surveillance of its employees, who were participating in
a Union strike authorization vote being conducted at the Piedmont Gardens facility. The
consolidated complaint next alleges that, from August 2 through 7, certain of Respondent’s
bargaining unit employees, represented for purposes of collective bargaining by the Union,
engaged in a concerted work stoppage and strike, caused in part by the aforementioned unfair
labor practices, against Respondent; that, upon the conclusion of their concerted work stoppage
and strike on August 7, all of said bargaining unit employees made unconditional offers to return
to their former positions of employment; and that Respondent engaged in acts and conduct
violative of Section 8(a)(1) and (3) of the Act by belatedly reinstating 13 and refusing to reinstate
25 of said bargaining unit employees. Finally, the consolidated complaint alleges that
Respondent engaged in acts and conduct violative of Section 8(a)(1) and (5) of the Act by falling
and refusing to provide the Union with the names and contact information for permanent strike
replacement employees, which information is necessary and relevant to the Union’s

2 As is not unusual in these types of proceedings, some of the witnesses, including an
attorney who should have known better, failed to heed my warning regarding the consequences
of not testifying truthfully.
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performance of its duties as the exclusive collective-bargaining representative of Respondent’s
bargaining unit employees.
In its defense, Respondent denies the commission of the alleged unfair labor practices.
Further, Respondent alleges that the concerted work stoppage and strike, in which certain of its
bargaining unit employees engaged, was motivated by economic concerns and that certain of
said employees, who were denied reinstatement at the conclusion of the strike, were lawfully
permanently replaced. Finally, Respondent contends that, due to valid security concerns, it
lawfully refused to provide the requested information to the Union.
The Alleged Unfair Labor Practices
The Facts
American Baptist Homes of the West, a California nonprofit corporation, maintains a
corporate office in Pleasanton, California, and operates continuing care facilities,3 such as
Respondent, and affordable housing communities4 throughout the western United States
including in California, Washington, Nevada, Arizona, and Idaho. Respondent’s facility, which is
located on 41st Street in the Piedmont section of Oakland, California, provides three levels of
care—independent living, assisted living, and skilled nursing—5 for its 300 current residents and
consists of three buildings connected by an inner, enclosed corridor. One, called the Crestmont
building, is 16 floors high and consists entirely of apartments for independent living residents.
The middle building, called the Garden Terrace building, is a three-story structure with the first
floor being a public area and the second and third stories housing Respondent’s skilled nursing
area. The third building, called the Oakmont building, consists of 11 floors with the first through
the seventh comprised of apartments for independent living residents, the eighth through the
tenth floors housing the assisted living residents, and the eleventh floor being a public area.
The main dining room is on the ground floor of the Garden Terrace building. There are two
entrances to Respondent’s facility—the main entrance is off 41st Street and a side entrance is

3 A continuing care facility is a community where residents pay a substantial upfront fee for
receipt of increased levels of care as needed.
4 An affordable housing community only supplies housing for residents.
5 Respondent’s independent living residents come and go as they please, live in
apartments, and pay a monthly fee to Respondent. There is no level of care for these
individuals, and Respondent provides a package of mainly hospitality-type services for them
and access to a wellness clinic. For meals, these residents’ apartments contain kitchens in
which they may eat their meals. Respondent maintains a main dining room, which is reserved
for independent living residents and serves all meals.
Respondent’s assisted living residents, who live in private rooms, also may come and go as
they please but require some assistance in caring for themselves. In this regard, Respondent
provides supportive services including help in dressing, bathing, and more frequent
housekeeping and maintains a licensed vocational nurse and a certified nursing assistant on
each work shift for said individuals if needed. The assisted living residents have their own
dining room but also may use the main dining room.
Respondent’s skilled nursing residents require 24-hour nursing care and reside in rooms for
two or four people. They are either bedridden or not. If not bedridden, said residents may leave
Respondent’s facility in the care of a family member but the director of nursing must be advised
of such. Respondent also provides rehabilitation services for those individuals who are
recovering from surgery. The skilled nursing residents are permitted to take meals in the main
dining room.
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off Linda Street, and employees and visitors may enter and exit through either entrance.6 Gayle
Reynolds has been Respondent’s executive director and its highest ranking management
official since May 1, 2009, and the various department heads report directly to her. The record
establishes that since, at least, March 1, 2007, the Union has been the majority collective-
bargaining representative of various classifications of Respondent’s workers including its dietary
department employees, nursing department employees, housekeeping department employees,
resident services employees, and general/administration employees, among others, that there
are approximately 100 bargaining unit employees, and that the collective-bargaining agreement
between Respondent and the Union expired by its terms on April 30.7
In January, in anticipation of bargaining for a successor collective-bargaining agreement,
the bargaining unit employees selected an 8- to 10-member bargaining committee,8 and
negotiations on a successor contract commenced in February. During the parties’ bargaining,
which consumed 18 or 19 negotiating sessions and ended on July 9 without an agreement,
Respondent’s attorney, David Durham, and Myriam Escamilla, the Union’s nursing home
division director, were the chief spokespersons. As the bargaining progressed from February to
early May, certain issues emerged as impediments to a final agreement. The bargaining unit
employees’ main concern was the discharge and discipline section of the expired agreement,
particularly the provisions regarding Respondent’s right to discharge employees for violating its
rules and policies and its right to adopt or amend said rules and policies “in its sole discretion.”
In this regard, the Union objected to Respondent’s seeming penchant for terminating Union
stewards or bargaining team members for violations of its chart of infractions9 and demanded
that Respondent agree to implement a progressive disciplinary system for such conduct. The
latter constantly rejected the Union’s proposals on discipline. Respondent’s main concerns
during the bargaining were the economic provisions for the successor agreement—specifically
the contractual pension and health plans and wages. According to Reynolds, “we proposed to
eliminate the SEIU pension plan and replace it with [a] 401(k) plan.” The Union wanted to
continue with its pension plan and rejected Respondent’s proposal. As to health insurance
coverage, the contract provided for a Kaiser plan, which Respondent proposed to eliminate and
substitute a “health reimbursement” account plan. The Union wanted to continue the

6 A receptionist is stationed at the 41st Street doorway from 8:00 a.m. to midnight, and a
security guard is stationed there during the night. A security guard is stationed at the Linda
Street doorway throughout the day.
7 The expired collective-bargaining agreement was effective from March 1, 2007, through
April 30, 2010, and there is no record evidence of any prior bargaining history between the
parties.
8 The members of the bargaining committee team were Sheila Nelson, Sanjanette Fowler,
Dapuma Miller, Pierre Williams, Faye Eastman, Matilda Imbukwa, Reginald Jackson, Ebony
Harper, and one or two others.
The election of the bargaining committee was conducted in conjunction with a survey in
which the bargaining unit employees were asked to rank the issues, which each employee felt
important for the bargaining. Shop stewards, including Sheila Nelson, conducted the bargaining
committee balloting and distributed and collected the bargaining surveys, all of which was done
over a 2-day period in the employees’ breakroom, which is located on the first floor of the
Oakmont building. The record evidence is that employees and Union officials utilize the
breakroom to conduct all union activities including informational meetings, department
meetings, grievance meetings, and other matters, and the Union maintains a bulletin board
there on which union literature is posted. The record evidence is that it is the only area of
Respondent’s facility in which employees are permitted to meet and discuss union affairs.
9 Respondent’s work rules and policies are set forth in its so called chart of infractions,
which is posted near the door to the employees’ breakroom.
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contractual Kaiser plan, and rejected Respondent’s substitute as the said plan’s deductible
amounts were higher than the existing Kaiser plan. As to wages, Reynolds testified that
Respondent had offered a “pool of money” for wages, healthcare, and pension “so depending
on what we spent on pension and healthcare, that’s what we had remaining for wages. So the
wages could go up or down depending on what . . . we were working with. . . .” The Union
rejected Respondent’s proposal on wages and insisted on its own.
Reynolds was uncontroverted that, by early May, “. . . the majority [of] the conversation
was about [the above] issues,” with each party being adamant in support of its positions. Then,
prior to the scheduled May 12 bargaining session, Escamilla, on behalf of the Union, sent
notice, pursuant to Section 8(g) of the Act, to Respondent that “. . . the members of [the Union]
will commence informational picketing at 2:30 pm on . . . May 25 . . . and will continue such
activity unless, and until, a mutually agreeable resolution has been reached.” In fact,
Respondent’s employees picketed outside Respondent’s facility during the afternoon of May 25,
carrying signs reading “no healthcare reductions,” “no takeaways,” “fair wages now,” “pension
now,” and similar language.
The bargaining continued in the same posture subsequent to the May 25 picketing.
Then, in early June, the Union and the bargaining committee published a strike vote flyer, which
was posted on the bulletin board in the breakroom and copies of which were available to all
bargaining unit employees in the breakroom. Said flyer was entitled “STRIKE VOTE” and read
“Let’s Show Management We Are United And Ready to Fight. Management still wants to take
away our pension, make us pay a lot more for our health insurance and is offering a raise that’s
a joke. Our SEIU-UHW bargaining committee is recommending that we vote YES! to authorize
a strike to show management that we’re serious and won’t settle for anything less than what we
deserve.” Beneath the above message, the negotiating committee requested that the
bargaining unit employees vote, “YES,” illustrating this with a checkmark in a box, announced
that the strike vote would be held on Thursday and Friday June 17 and 18, and set forth the
times for the vote. At a bargaining session on June 16, the Union submitted a counterproposal,
including the existing wage rates, which Respondent rejected.
On June 17 and 18, a union representative, Donna Mapp, who was present for part of
the first day and the entire second day, with members of the employee bargaining committee
helping, conducted the strike authorization vote in the breakroom10 on the announced dates.11
Sheila Nelson, a day shift housekeeper, a shop steward, and member of the bargaining
committee, volunteered to come to Respondent’s facility and help with the strike vote during

10 According to Sheila Nelson, a shop steward for the Union and a member of the bargaining
committee, the decision was made to have the vote in the breakroom as “it was the only place
we can conduct Union . . . business. That’s where the Union is supposed to report to when they
enter the building.”
The vote was a secret ballot election conducted throughout the two days with employees
voting before or after their shifts or during break periods. Each bargaining unit employee voted
by marking his or her ballot and depositing it into a sealed box. When each employee voted, a
bargaining committee member would cross the person’s name off a list of bargaining unit
employees’ names.
11 The ballot, on which bargaining unit employees cast their votes, was created by the Union
from an existing template. Employees were asked to place a check next to one of two
questions—”Yes, I authorize the bargaining committee team to call a strike,” and “No I do not
authorize the bargaining committee team to call a strike.” On top of the ballot are the words
“Unfair Labor Practice Strike Vote” As to these words, Myriam Escamilla testified that “We
always call for unfair labor practice strikes.”
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each of the voting periods on the first day of the voting—her day off.12 The voting occurred
without incident during the morning and early afternoon voting periods.13 Then, according to
Nelson, shortly before 3:00 and just prior to the time when employees were required to punch in
before starting the afternoon shift,14 she and Matilda Imbukwa were busy conducting the
voting15 when she had cause to turn and observed a facility security guard, identified as
Francisco Pinto,16 sitting at a table 5 to 10 feet behind her. He was “. . . holding up a cell
phone, [at eye level], and he was moving it slightly in [my] direction” and “back and forth” to the
left and then the right. “So I stared at him, it seemed like about a minute . . . and I was thinking
what was he doing. So I looked into the direction that he had the cell phone pointed to, and it
was right there where the people were voting. It was like right next to me.”17 After a minute, but
no longer than two, of staring at the guard and while he continued to hold the cell phone up, she
turned back to helping with the voting. Asked what she believed the guard was doing, Nelson
said, “I believed that he was videotaping the people in the room that was voting, and I thought
that maybe he was going to use it to get somebody fired. . . .”
Matilda Imbukwa, who worked for Respondent as a certified nurse assistant from
October 2006, through April 2011, when she was laid off for “reasons being that I was not doing
my duties as obligated to,” testified that, as a member of the bargaining committee, she helped
on the “second day” of the strike vote. According to Imbukwa, who was scheduled to begin
working at 3:00 p.m., she arrived at Respondent’s facility at 1:00,18 and “I . . . went to the
breakroom, and I met with Sheila Nelson and was assisting her with the strike vote.” In this
regard, employees would come into the breakroom and she and Nelson gave them ballots on
which they would mark off whether they wanted to authorize a strike. Imbukwa testified that, as
she entered the breakroom, “there were a few other employees together with the security
guard.” She immediately noticed the guard as “he was dressed in his uniform and it had a
badge on it and I knew it was him.” Nevertheless, as the voting was on-going, she did not take
much further interest in him except to notice that Nelson “. . . was staring at him . . . on and off
while passing out the [ballots].” Imbukwa further testified that, approximately 30 minutes after
arriving, “. . . Sheila Nelson pointed out the security guard, and, when I looked at him, [h]e was
holding his phone up in a vertical position and just swinging it from side to side. And then he
placed it down, and then a few minutes later he stood up and left.” Asked what she believed the

12 The voting periods were 6:00 to 8:00 a.m., 12:00 to 2:00 p.m., and 4:00 to 6:00 p.m.
13 Asked if any nonbargaining unit employees came into the breakroom during the
afternoon, Nelson testified that, at approximately 12:30, Yuri Flores, an HR person and the
assistant to the HR director, Lynn Morganroth, entered the room and asked her if she had seen
Sherrita _____, an employee who had recently been terminated. They spoke, and Yuri left the
breakroom.
14 The timeclock is located next to the breakroom.
Nelson testified that it was a busy time in the breakroom as employees were there either
on breaks or prior to the start of their work shift.
15 I note that Nelson must have been incorrect about the time as the early afternoon voting
period ended at 2 p.m.
16 Nelson failed to notice the security guard when he entered the breakroom. Asked who is
allowed to use the breakroom, Nelson testified, “All of the employees are allowed to use the
breakroom. And the guards do come in there sometimes,” eating their lunch.
17 Nelson believed she pointed out the security guard’s actions to Imbukwa.
18 Imbukwa testified that she did not have permission to arrive two hours prior to the start of
her work shift. However, “it was not the first time” she came in early before her shift. “When
you’re in your scrubs and you’re scheduled to work that day, you can come in and . . . wait for
your time to . . . clock in.”
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guard was doing, Imbukwa averred, “I thought he was taking a picture or video . . . of us to what
we were doing.”19 Asked how long she observed the guard holding his cell phone and swinging
it from side to side, she stated, “It took approximately 30 to 45 minutes.” There is no record
evidence that bargaining unit employees, other than Nelson and Imbukwa, observed the actions
of the security guard.
Francisco Pinto, testified that he is employed by Guardsmark as a security guard and
that he has been assigned to work in such a capacity at Respondent’s facility, working the swing
shift (4:00 p.m. to midnight) on Sunday through Tuesday and the day shift on Thursday and
Friday. He testified further that he is stationed at the guard’s desk at the Linda Street entrance
and that his job duties mainly entail patrolling the entire facility inside and outside, checking
employees’ badges, and making sure that visitors sign in prior to entering the interior of the
facility.20 According to Pinto, he takes a 30-minute lunchbreak each workday in the breakroom.
Asked what he does during his break period, Pinto stated, “I usually don’t bring food, so I just go
in there and check my phone because I’m not allowed [to do so] during business hours. So . . .
I just go in there and check my phone . . .” for “. . . my messages, missed calls, or voicemail that
I have.” He added that his phone is a Verizon smartphone and described his method for
checking for his messages and voicemails—”I just take it out and put it . . . on the table and just
check messages or . . . go through my phone.” He then demonstrated this by holding the phone
in front of his face with his elbows on the witness table. Specifically on June 17, according to
Pinto, he worked the day or 8:00 a.m. to 4:00 p.m. shift and relieved the receptionist at the 41st
Street entrance at noon. She returned “around 1:00” and, “after 1:00 pm,” he took his daily
meal break. Pinto went to the breakroom and, when he entered, “it was a lot of employees
there, and the Union rep, which is Donna Mapp,” was in the room. He went to an empty table
and, as always, checked his phone. He said, “employees would stare” at him, but “. . . I wasn’t
really paying attention to what they were doing, but they were with the Union rep.” Pinto denied
taking any photographs with his telephone that day, stated he has never done so, denied ever
engaging in surveillance of employees at Respondent’s facility, and denied being directed to go
to the breakroom that day and take pictures of the employees’ activities.21 Finally, asked if he
told anyone what he observed in the breakroom, Pinto testified, “Well, the guards . . . kind of talk
to each other and say how uncomfortable it is when we go to the break room,” and the union
representative is there. During cross-examination, asked if, on June 17, he telephoned Lynn
Morganroth, the HR director, and left a message that the Union representative was in the
breakroom, he first replied “I don’t know” but then responded, “no.” Also, he denied leaving
such a message with Morganroth’s assistant, Yuri Flores. In this regard, I note that the Acting
General Counsel’s Exhibit No. 12 is a June 18 email message from Flores to Morganroth in
which the former informed Morganroth that “Yesterday . . . I had a message from the security
guard that a union rep was in the break room . . . .”
Sheila Nelson next testified that, approximately 15 minutes after she noticed the security
guard no longer in the breakroom and while she was continuing to help with the vote, Gayle
Reynolds came into the breakroom and approached her. According to Nelson, Reynolds asked
what she was doing. Nelson just replied “hello.” Reynolds then sat down next to Nelson “. . .

19 According to Imbukwa, at least three employees voted while the guard manipulated his
cell phone.
20 Gayle Reynolds testified that Pinto “. . . has the authority to stop [persons] at the guard
desk before they move beyond the entrance. . . . He has the right to stop [someone] from
coming through the door, as well.”
21 Gayle Reynolds corroborated Pinto’s assigned duties at Respondent’s facility, denied that
the guard’s duties included taking pictures of employees, and denied that he was authorized to
do so. Further, she denied being aware of any pictures Pinto may have taken in the breakroom.
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and said, `You’re not supposed to be here.’ And I said, `Why?’ She said, `because you’re not a
rep.’ I said, `I’m a Union leader, and I was instructed to be here by Myriam to help with the
strike vote.’” At that, Reynolds stood and said, “. . . `You’re a Piedmont Gardens employee, and
I just checked with Lynn, and, according to the contract, you are not supposed to be in the
building when you’re not scheduled to work.’” After telephoning Donna Mapp and asking Mapp
to inform Escamilla that Reynolds was “kicking” her out of the breakroom, Nelson gathered the
election materials and departed from Respondent’s facility.22
Gayle Reynolds conceded ordering Nelson to leave Respondent’s facility on June 17.
According to Reynolds, that afternoon, she received an email from Nelson’s supervisor, stating
that she was in the breakroom. Reynolds then decided to investigate whether Nelson was still
there and went to the breakroom.23 Upon entering the room, she observed Nelson “. . . sitting
at a table . . . with a laptop computer.” She then approached Nelson, “and I said, Sheila, you
know you’re not supposed to be here when you’re not scheduled to work; are you scheduled to
work? No, I’m not. So I asked her to leave.” At this point, Nelson pointed to the ballot box, and
“. . . she told me . . . what she was doing, I didn’t know what she was doing before that.”
The record reveals that, besides Nelson, Respondent evicted two other employees, who
were assisting with the strike authorization vote, from its facility during the 2 days during which
the aforementioned voting was conducted—Geneva Henry and Faye Eastman. Henry, who is
employed by Respondent as a certified nurse assistant in the skilled nursing area and who
works the night shift (11:00 p.m. to 7:30 a.m.), testified that she volunteered to help Donna
Mapp with the strike vote and that, to do so, she arrived at Respondent’s facility on June 1724 at
6:00 p.m.25 and went directly to the breakroom. She further testified that, later in the evening as
she and Mapp were preparing to count the ballots, Gayle Reynolds came into the breakroom
and approached her. “She asked me, what are you doing here? You’re not on schedule . . .
why are you here? And I told her I was taking care of Union business. She said, well, you’re
going to have to leave. I said, but I’m taking care of Union business. She said, well, you’re still

22 Nelson testified that there were three or four other employees in the breakroom at the
time.
23 Reynolds denied being aware that the Union was conducting a strike vote on that day
prior to entering the breakroom. She testified that she did not know about this until “when I
walked in the break room and talked to Sheila.” She added that the Union had not asked
permission to conduct such a vote. While testifying she goes into the breakroom every week or
every other week, Reynolds denied seeing the strike vote notice posted on the Union’s bulletin
board. In this regard, she admitted seeing R Exh. No. 10, a union flyer, entitled “we’ll do
whatever it takes to win a good contract,” posted on its bulletin board in the breakroom after the
strike vote. The flyer states that 95 percent of the bargaining unit employees had approved a
strike because, while the employees’ bargaining committee had been working hard to achieve a
contract with fair raises and overall improvements, management had “ . . . stalled and dragged
things out.” Also, she admitted seeing R Exh. No. 11, another flyer posted on the same bulletin
board after the strike vote. Said flyer discusses the bargaining in detail; notes that 96 percent of
the bargaining unit had voted in favor of a strike; and states, “We are ready and will not let
management scare us into a cheap deal that only benefits them.”
24 During cross-examination, Henry said the night, during which she helped with the strike
vote was the last night of the voting.
25 Henry could not recall whether she was scheduled to work that day.
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going to have to go, and she said you’re going to have to take care of your Union business out
there on the sidewalk. . . . I just got up, I didn’t say nothing.”26
While Gayle Reynolds did not dispute demanding that Henry leave Respondent’s facility,
she contradicted Henry as to when the incident occurred. According to her, “. . . I did ask
Geneva Henry to leave but it was in the morning, not in the evening, and it was the day after I
had spoken to Sheila Nelson—”on Friday.” In this regard, Reynolds was confronted with an
email she sent to Lynn Morganroth on June 17 at 6:39 p.m., in which she wrote that two
employees, one of whom was Geneva Henry, who were not scheduled to work, were at
Respondent’s facility earlier in the day and that their respective supervisors wanted to know the
appropriate discipline for them. Notwithstanding the foregoing, Reynolds, who claimed not to
recall “what generated this e-mail,” and denied it concerned her conversation with Henry,
insisted that “I asked Geneva to leave the day after I talked to Sheila Nelson . . . “ and that said
conversation occurred “around” 8:00 a.m., and “I saw her in the break room with another
employee. I asked them if they had finished their shifts and they said yes, and I said you’re not
supposed to be here; you need to leave.”27 When asked if the other employee, whom she
asked to leave the facility on June 18, was Faye Eastman, Reynolds said, “I believe it was on
Thursday, June 17th. It was the same time that Geneva was in the break room. She and Faye
were together.” On this point, she was confronted with an email she sent to Morganroth on
June 19 regarding possible discipline for employees who were discovered inside Respondent’s
facility when not scheduled to be there. Reynolds wrote, “I think we should do courtesy notices.
We also need to include Faye Eastman who was in the break room at 7:55 am on Friday
morning. I asked her if she had clocked out and she said `yes.’ I reminded her that she was not
supposed to be on the premises.” There is no mention of Henry in said email. Upon viewing
the latter email, Reynolds again insisted that she observed Eastman and Henry together in the
breakroom at the same time.
With regard to the evictions of Nelson, Henry, and Eastman from Respondent’s facility,
the record establishes that Respondent’s chart of infractions work rule 33, which is quoted in
paragraph 7(a) of the consolidated complaint, is its rule, limiting access to its facility. Said rule
reads:
Employees may not clock-in for duty before their shift begins, nor are they to remain on
the grounds after the end of their shift, unless previously authorized by their supervisor.
Employees must have prior supervisor authorization before working/incurring overtime.
There is no dispute, and Respondent admitted, that, in maintaining said work rule, it has allowed
off-duty employees, including shop stewards, to enter its facility under certain circumstances

26 While Henry was unable to remember whether or not she was scheduled to work that
night, she testified that she was habitually early when working and would spend the time before
her shift in the breakroom. “I’ve been coming there early for years. I use the break room as a
regular routine,” arriving there between 6:30 and 7:00 pm. She does this because “. . . I don’t
want to be out on the street late at night. . . . And I would come in there early and go straight to
the break room.” Until the start of her shift, she would eat, read books, or listen to music.
According to Henry, Gayle Reynolds was well aware that she would come in early as
“sometimes I would see her. . . . Everybody knew that I been coming in there for years.
Reynolds conceded being aware that Henry would be inside the facility early and spent her
time before clocking in inside the breakroom. She had no problem with this as Henry did not
want to be out on the street late at night.
27 She recalled that Donna Mapp was present and the two employees were speaking to her.
However, she denied being aware of what the employees were doing.
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including to pick up paychecks or with its permission and to participate in grievance meetings
and disciplinary meetings.. In addition to these instances, Sheila Nelson testified that, in her
capacity as a shop steward, she often conducted union-related business with other employees
or met with Union representatives or other shop stewards in the breakroom prior to the start of
her work shift, after the conclusion of her shift, and on her days off. With regard to her practices
as a shop steward, she testified that, while her work shift normally started at 7:00 a.m., “. . . I
came in quite often early. Whether it was to pass out flyers or surveys or talk to members . . . I
was . . . early a lot of times. I don’t remember how many times.” She added, “some times I
would come in at 6:30, a quarter to 7:00, any meetings that I had with people would usually only
last about 15 minutes before my scheduled time or after work.” Nelson recalled two meetings
with Union agents or other shop stewards prior to the start of her shift and four or five such
meetings after the conclusion of her shift and testified that, whenever entering Respondent’s
facility early prior to her shift or remaining in the building after her shift for union-related matters,
she never was questioned as to why she was inside Respondent’s facility and never was
informed she required Respondent’s permission. Further, Nelson recalled entering
Respondent’s facility on two or three occasions for union-related meetings in the breakroom on
her days off. According to her, “. . . as a Union member, we’re supposed to enter the main
entrance. We sign in and that’s allowing either the security guard or the receptionist to know
[she] is in the building . . . they would ask me, are you working? I’d say no, I’m here to do Union
business today. So he would say okay and I know where to go. I proceed to the break room.”
Finally, Nelson denied ever asking permission to conduct union-related business inside
Respondent’s facility on her days off.28
Two other employees likewise testified with regard to access to Respondent’s facility
while off duty. Sanjanette Fowler, who worked as dietary cook for Respondent and was a shop
steward, testified that she helped Union agent, Donna Mapp, conduct the bargaining committee
selection voting and the bargaining survey over the two-day voting period in January. According
to her, “. . . the second day was actually my day off . . . ,” and “I think I was there basically all
day.” Asked how she gained access that day, Fowler testified, “I came in the normal 41st side.
I sign in at the front desk, and I go to the break room.” She added that she did not have
permission to be inside the building that day; however, no management official questioned her
presence that day. Fowler further testified that, on her days off, there were “numerous times”
when she would come to Respondent’s facility29 and be in the breakroom “. . . giving members
a regular update of what was happening . . . in bargaining. . . .” These visits would last “like two
hours, two hours or so” depending on how many people would be coming for breaks, and she
never requested permission to be inside the building and never was asked to leave. Also, there
were “numerous times” on days off when she and Mapp attended grievance meetings with
Gayle Reynolds and Lynn Morganroth. Matilda Imbukwa testified that she entered
Respondent’s facility on June 17, two hours prior to the start of her work shift and that she was
not required to have Respondent’s permission in order to do so. “It was not the first time” she
came in early before her shift. “When you’re in your scrubs and you’re scheduled to work that
day, you can come in and . . . wait for your time to . . . clock in.” She added that she would
always arrive an hour early before her shift and that no supervisor ever informed her she was
not allowed to do so.

28 During cross-examination, Nelson expanded the number of times she had been inside
Respondent’s facility on her days off for union-related matters to 20 or 30 times. However, she
added that most of these were for grievances or for disciplinary meetings when asked to be
present by management.
29 Fowler would always sign the sign-in sheet upon entering Respondent’s facility.
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Asked how chart of infractions rule no. 33 is enforced, Gayle Reynolds testified “if I’m
made aware that somebody’s in the building who’s off schedule, then I will go and find out why
they’re in the building. But we don’t generally police the employees; we expect them to follow
the rules.”30 In this regard, she stated she had been unaware that, other than for grievance
meetings, Nelson and Fowler had regularly entered and performed union business inside
Respondent’s facility on their days off. Finally, I note that the above work rule does not mention
off-duty employees’ access to Respondent’s facility on their days off and that Respondent itself
was uncertain as to whether Nelson or Henry, in fact, acted in violation of rule no. 33. Thus, on
June 17, Reynolds was forced to consult with HR director Morganroth as to what work rule had
been violated by Nelson and Henry, and, at 7:30 p.m., Morganroth sent an answering email to
Reynolds, writing that rule 34, which concerns visitor access to the facility, rather than rule 33 is
the “closest infraction” and “we have a practice of not permitting employees to be on premise
without supervisor approval or business with HR. I looked through the handbook and couldn’t
find any helpful language other than the visitor language.” In any event, other than being
evicted from Respondent’s facility, neither Nelson, Henry, nor Eastman was disciplined for being
inside Respondent’s facility, while off duty, on either June 17 or 18.
The record evidence is that in excess of 90 percent of the participating bargaining unit
employees voted to authorize the employees’ bargaining committee to call a strike.31 Further,
subsequent to the strike vote, given the language of the Union’s poststrike authorization vote
flyers, it appears that the bargaining unit employees were becoming increasingly perturbed over
and frustrated with the on-going successor contract negotiations and what they perceived as
Respondent’s adamant and unacceptable positions on the economic and language issues,
which, the employees believed, “. . . only [benefitted] the company and not us.” According to
Sheila Nelson, with matters in this posture, pursuant to the bargaining unit employees’ mandate,
the bargaining team32 reached its decision as to when the strike would commence on July 9
during a bargaining session that day before a Federal mediator. This “. . . occurred during a . . .
caucus. . . . The Employer was not in the room and the bargaining team was discussing several
things. We were discussing what had happened at the strike vote with Gayle kicking me out of
the building and kicking a couple other people out of the building that day. And we were
discussing the surveillance with the security. We were discussing that they weren’t willing to
move on the language that would . . . give the employees job security. And Gayle and her union
busting had been sending out memos contaminating the workers. So we kind of looked at our

30 Asked if prior to June 2010, she ever enforced Respondent’s access policies by
demanding that an employee leave the building, Reynolds conceded, “I can’t think of any
specific instance.”
Respondent offered evidence that an employee had once been advised she should not be in
an area of the facility while not on the clock. However, contrary to the events in these matters,
the employee was found in a work area, and Reynolds testified that it was a shop steward who
spoke to the employee and not a management official.
31 While the ballot, upon which the bargaining unit employees cast their votes, may have
had the words “unfair labor practice strike vote” at the top, given Myriam Escamilla’s admission,
said words appear to have been nothing more than union boilerplate language. Moreover, of
course, the alleged unfair labor practices herein had not yet occurred at the time of the printing
of the ballots. Further, given the language of R Exh. No. 1, the union flyer establishing the strike
vote, and R Exh. Nos. 10 and 11, union flyers published subsequent to the strike vote, contract
economic and language concerns seem to have been the only motivating factors underlying the
bargaining unit employees’ strike authorization vote.
32 The bargaining committee members, who were in attendance at the July 9 bargaining
session were Sheila Nelson, Sanjanette Fowler, Matilda Imbukwa, Faye Eastman, Pierre
Williams, Dapuma Miller, Yordanos _____, and Gloria McNeal.
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options. We had some ULP’s already pending, and we . . . asked Myriam if we could go on a
ULP strike.”
More specifically, according to Nelson, “. . . Sanjanette and myself, we talked about me
getting kicked out of the building . . . and the security guard. Matilda spoke about the security
guard also, the surveillance, and how we . . . would file charges . . . for what he had done.”33
Then, “. . . Gloria and some of the people that had been there from the strike prior, because
there had been a strike [during] their last bargaining . . . so they were talking about what
happened with that. . . . They went on a one or two-day strike and got locked out. . . . I think it
was 2007 they were talking about. So we were talking . . . and . . . I was asking Sanjanette . . .
what are we going to do . . . because we felt like we were being put under a lot of pressure. We
were frustrated . . . the members wanted to go on strike . . .” because of the contract
negotiations, and “. . . they had their strike vote and so . . . it was on us, the bargaining team, to
make a decision to . . . do something.” Then, “. . . we asked if anyone felt that they didn’t want
to go on a strike vote, if anyone disapproved, because we asked if anyone approved, we asked
if anyone disapproves, can you raise your hand. Then, nobody raised their hands. So we . . .
asked Myriam if we could go on a . . . ULP strike. . . . And that’s how we ended up going on
strike.” Nelson concluded, saying it was after the caucus ended that Escamilla informed
Respondent that the bargaining unit employees would engage in a strike. Finally, during cross-
examination, after denying the reason the bargaining committee called a strike was to place
pressure upon Respondent to agree to contract terms Nelson was confronted with her pretrial
affidavit wherein she stated, “The purpose of the strike is to put pressure on the Employer to
reach an agreement with the Union for a new contract.” Notwithstanding her pretrial affidavit
admission, Nelson insisted that the strike was “a ULP strike, and the purpose . . . was to put
pressure on the Employer.”
Sanjanette Fowler testified that “the whole bargaining team” was involved in the strike
discussions on July 9 and that “. . . one issue . . . the team discussed was the surveillance of the
. . . security guard coming in the break room surveilling the strike vote. . . . We [were]’
discussing . . . the contract language and the way the management was treating the workers.”
Asked if anything else was mentioned, Fowler said, “that’s it.” As to surveillance, “I remember
Sheila was very upset when she was inside the break room during the strike vote when the
security guard came inside there watching her during [the] strike vote.” Concerning contract
language, according to Fowler, “. . . we just wanted more language inside the contract that . . .
would give workers more job security,” including the portion “. . . where the management could
adopt and amend policies . . . whenever they felt like it.” Also, they discussed management’s
unfair treatment of employees including “. . . when we went back to the facility and tried to talk to
the workers . . . they threw us out of the building.” Then, Fowler testified, “after we get finished
discussing all the things that was going on, we just came to the conclusion that we just going to
go ahead and go on strike.” There was no formal vote, just a general consensus. After this
discussion, “we told [Escamilla] that the bargaining team had come to the conclusion that we
want a strike.”
During cross-examination, as to what the bargaining committee discussed during the
caucus on July 9, Fowler denied that they spoke about Respondent’s proposals on pensions,
health insurance, and wages or the Union’s proposal on employee discipline. Rather, “. . . the
discussion we talked about was the unilateral changes . . . and the way the employees was

33 In fact, the unfair labor practice charge, relating to the alleged surveillance or creating the
impression of surveillance, is Case 32–CA–25248, filed by the Union on July 26 or over 2 weeks
subsequent to the asserted strike vote.
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being treated and the contract language.”34 Asked if the reason for the strike was that the
negotiations had broken down, Fowler said, “it could have been one of the reasons but that is
not the exact reason why we called the strike.” On this point, however, she admitted telling a
Board agent in her pretrial affidavit that negotiations had not worked out, so we were on strike.
Again, denying that the purpose of the strike was to place pressure upon Respondent to agree
to the Union’s demands, she admitted stating in her affidavit, “we began striking at the Piedmont
Gardens. . . . The purpose of the strike is to put bargaining pressure on the Employer.” Then
asked if the bargaining committee sought authorization from the bargaining unit employees to
call a strike in order to put pressure on Respondent, Fowler conceded saying this in her
affidavit. Finally, Fowler admitted that, on July 9, after the bargaining committee decided to call
the strike, the members returned to Respondent’s facility and told a group of bargaining unit
employees that mediation had not resulted in an agreement and “. . . [they] weren’t getting
anywhere so [they] had no other choice but to go on strike” and that a reason for the strike was
the contract language.35
Also, regarding the bargaining committee meeting on July 9, Matilda Imbukwa testified
that “we discussed a few issues. One . . . was . . . because they’re going to put a cap on the
healthcare, surveillance . . . used against the employees . . . amongst other things.” As to
surveillance, Imbukwa recalled that it was the breakroom incident and “. . . use of the phone to
take pictures . . .” by the security guard.36 After initially stating she could not recall, Imbukwa
remembered that other issues the committee members discussed were salary, Respondent’s
chart of infractions, and “. . . the incidents of the Union members being whisked out of the
building.” She added that Sheila and Sanjanette spoke about this and that “. . . Sheila was
talking about the incident that happened during the strike vote. And Sanjanette was talking
about an incident that happened early on . . . when we had left the meeting and we has gone to
tell the employees what happened in the meeting . . . and then a few minutes later, the
management came and told us to leave the building.” Asked how they decided to go on strike,
Imbukwa recalled, “we raised our hands, all of us, and said, yeah, we could go on strike.”
Finally, Imbukwa did not know how the other bargaining unit employees were informed of the
decision of the bargaining committee members on July 9.
Regarding the Union’s strike procedure, Myriam Escamilla testified that “the Union’s
procedure is to have the members to authorize bargaining committee to call a strike. And at
some point, the members of the committee . . . at Piedmont Gardens decided to go on strike on
July 9, that’s when they made the final decision.” Then, “when . . . they decided, they call us in
the room. And we came back and they told us, `we decided we’re going to strike and for this

34 Asked to describe the unilateral changes, Fowler stated, “we talked about the surveillance
of when the security came inside the break room.” Also, “. . . kicking the steward out the
building . . . during the strike vote. . . .”
35 During redirect examination, counsel for the General Counsel asked Fowler a blatantly
leading question—”. . . When you went back to the facility on July 9 . . . do you remember telling
employees that one of the reasons for the strike was that management was . . . telling
employees to get out of the building—to which Fowler answered, “yes.”
36 Imbukwa testified that Sheila Nelson spoke about this, saying “. . . there was a security
guard in the break room and he was . . . swinging his phone from side to side and he left
immediately.”
During cross-examination, Imbukwa was confusing, stating that, when Union
representatives voiced concerns about Respondent’s “surveillance,” they were discussing its
use of security cameras throughout the building and that the discussion before the strike vote
concerned this type of surveillance—”the security surveillance, yes . . . throughout the building,
yes.”
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many days.’” Thereupon, each member of the committee was charged with talking to specific
people in their department “to see if they would support the strike or not.” This involved
“multiple” one-on-one sessions between July 9 and the start of the strike “. . . to assess whether
or not people will walk out and what days they will be at the picket line.” Asked for the purpose
of these conversations, Escamilla said “one was to understand if people will be comfortable
waking out and . . . being on the picket line. . . . Second, figure out what time . . . they will
picket. Third, if they had any questions about what was happening with the contract
negotiations with all the issues that were remaining . . . leading to the strike.” She added that,
subsequent to July 9, the Union published nothing to the bargaining unit employees regarding
what was discussed by the bargaining committee on that date and no other strike vote was
taken.
Upon being informed by the bargaining committee members that they had decided to
engage in a strike against Respondent, Myriam Escamilla sent two letters, dated July 9, to
Respondent. In the first, she wrote, “Pursuant to Section 8(g) of the National Labor Relations
Act, you are hereby informed that [your bargaining unit employees] will commence a strike at
9:00 a.m. on Monday, August 2, 2010 and continue such activity unless and until a mutually
agreeable resolution has been reached.” In the second letter, she wrote, “All employees
participating in the Unfair Labor Practice strike and withdrawal of labor at Piedmont Gardens . . .
scheduled to begin on . . . August 2, 2010, unconditionally offer to return to work at or after
5:00 a.m. on Saturday, August 7, 2010. This request is made . . . on behalf of all employees it
represents as well as all employees who honor its picket lines at Piedmont Gardens on the
above date.” Subsequently, as scheduled, approximately 80 of the 100 bargaining unit
employees, employed by Respondent, commenced their 5-day concerted work stoppage and
strike against Respondent on August 2. Mostly, the strikers confined themselves to the 41st
Street side of Respondent’s facility.
With regard to the motivating factor, which, Nelson and Fowler admitted informing Board
agents, was to put pressure on Respondent to bargain, or factors underlying the concerted work
stoppage and strike, the record evidence is that the picket signs, which employees carried,
other than simply reading the Union’s generic “ULP Strike,” failed to specify any asserted unfair
labor practices. Rather, according to Nelson, other picket signs read “one percent can’t pay the
rent,” and “Union busting has got to go,” and protested Respondent’s healthcare proposals. In
addition to the picket signs, according to Gayle Reynolds, strikers chanted slogans such as “one
percent won’t pay the rent;” “Piedmont Gardens, you’re no good, you don’t treat us like you
should;” and “No peace, no contract.” Further, a striking bargaining unit employee, Keiyana
Kemp, was quoted in a local newspaper, stating “I’m struggling. I’m working hard and a 1.5
percent raise is not going to do anything for me and my family and on top of that they want me
to pay for my medical expenses out of pocket. Now with three kids and the money we are
making—I can’t even live right now.” Of critical import as to motive is a letter, dated August 6,
which the Union, on behalf of the bargaining unit employees, sent to Oakland Mayor Ron
Dellums. Said letter states:
We, the undersigned members of SEIU-UHW and employees of Piedmont Gardens,
have been bargaining for a new contract since February with American Baptist Homes of
the West. We have proposed common sense disciplinary rules as well as modest
economic improvements. Management, however, has refused to move away from its
harmful disciplinary policies and, instead, has sought to dramatically cut our healthcare
and eliminate our pension fund entirely. As a result, this past Monday, we began a five-
day ULP strike to protest [Respondent’s] actions. . . .
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At 5:00 in the morning of August 7, pursuant to their unconditional offer to return to
work,37 50 to 60 of the former striking employees, who were scheduled to work that day,
gathered at the 41st Street entrance to Respondent’s facility in order to report for work. They
were met by a security guard, who told them that “. . . no one is entering the building.” One
employee, Bayou Zegenech, was scheduled to begin his work shift at that hour, and the guard
announced that there was a list of employees, who would be allowed to return but that he
needed to obtain an updated copy of the list. At that point, the guard and a union representative
escorted Zegenech into the facility. A few minutes later, Zegenech returned with the following
letter, which stated:
Please be advised that your previous position at Piedmont Gardens has been filled by a
permanent replacement employee, so we are not in a position to reinstate you to your
former position at his time.
All staff members who have been permanently replaced will be placed on a ‘preferential
rehire list.” We will try to fill vacancies for substantially equivalent positions that become
vacant in the future from this list. . . .38
In fact, the record discloses that 38 former strikers were permanently replaced by
Respondent.39 In the above regard, Gayle Reynolds testified that, having received advance
notice of the bargaining unit employees’ concerted work stoppage and strike, prior to August 2,
Respondent had made arrangements for the hiring of temporary replacement employees. Thus,
after having unsuccessfully attempted to do so itself, Respondent contracted with Huffmaster, “a
strike management company,” to supply temporary workers, and, by August 2, “. . . we probably
hired 60 to 70 people” to temporarily staff the jobs of its striking employees.40 According to
Reynolds, Respondent informed Huffmaster that the length of the jobs would be 3 days, and
“when we were making offers to people on a temporary basis, we said we thought it would be
for [a] . . . week.” She added that, by the evening of the first day of the strike, “we felt confident
that we had enough people to get through a few days.”
Reynolds further testified that she was the management official who decided to hire
permanent replacements and that, beginning on August 3 and continuing through August 6,
Respondent made 44 offers of permanent employment to some of the temporary replacement
employees and to “. . . our employees who came to work during the strike who were largely on-
call employees.” As to the rationale for her decision, she stated that the cost of hiring temporary
replacements was a burden to Respondent. On this point, Reynolds said that the cost to

37 There is no dispute that, during the strike, the Union sent to Respondent a copy of the
aforementioned unconditional offer to return letter.
38 Gayle Reynolds testified that, in anticipation of them offering to return to work on
August 7, Respondent sent these letters out to the striking bargaining unit employees, as well
as attempting to reach them by telephone, on the night of August 6.
39 They are Shervin S. Amorsolo, Arturo Bariuad, Zegenech Bayou, Maggie Bellinger,
Yuhanes Beraki, Donnita Bradley, Pacita Bumatay, Marieth Romero Carmona, Tamika Cato,
Calvin Christian, Bonnie Conley, Judith Coston, Besima Ferhatovic, Sanjanette Fowler, Crystal
Grayson, Elisa Haile, Monique Higgins, Keiyana Kemp,Brenda Lane, Kathlyn Largent, Johnny
Lee, Linda Lee, Gloria McNeal, Salvador Miranda, Michael Morrow, Sheila Nelson, Janie
Ragsdale, Michelle Reynolds, Josephine Santos, Yordanos Sega, Paramjit Sekhon, Palwinder
Singh, Denesha Singleton, Carmen Smith, Mhret Weldeabzhi, Pierre Williams, Rose Zelaya,
and Nebiat Zeray.
40 According to Reynolds, “most of them” came from Huffmaster and were transported to
work in a van.
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engage Huffmaster was in excess of $300,000 out of which sum, the latter paid the wages of
the temporary replacements.41 This cost was significant to Respondent as “. . . our revenues
come from our residents’ monthly fees” and “. . . in order to fund these kinds of things, we have
to raise the monthly fees. . . .” According to Reynolds, the “economic reality” was that
Respondent could not afford to operate in this manner whenever the bargaining unit employees
decided to engage in a concerted work stoppage. Further, “. . . I was concerned . . . that our
residents were at risk and I was concerned that if the employees didn’t come back from the
strike, we wouldn’t have the people we needed to provide services to our residents. I was
concerned that if they did [return] from the strike and went on strike again that we wouldn’t . . .
be able to recruit the people we needed to provide services to our residents.” Asked, by
counsel for the General Counsel, if it was true that one of the reasons that Respondent hired
permanent replacements is that it wanted employees who would work in the event of another
strike, Reynolds answered, “The people who had come to work that week had already
demonstrated that they would come to work during a strike. . . . I had an expectation . . . but
there was no guarantee. It was a probability.” Then, asked was it true that her primary reason
for hiring the permanent replacements was that they had demonstrated that they would work in
the event of another strike, Reynolds averred, “I can’t answer that yes or no.” However, when
confronted by her pretrial affidavit, in which she stated that, while she knew it would “take time”
to acclimate the permanent replacements to Respondent, the latter had made offers to only
those replacements who were qualified, and the “more important” consideration was that they
would work during another work stoppage, Reynolds admitted it was a true statement as “. . .
they had demonstrated that they were willing to work during the strike.”
Finally, with regard to Respondent’s rationale for deciding to hire permanent
replacements, Bruce Harland, the Union’s attorney, testified that, on the morning of August 6,
he made a telephone call to David Durham, Respondent’s attorney “. . . because I had heard a
rumor that the strikers would be locked out, and I wanted to verify that with him and work out
some arrangement in terms of return to work.” Harland asked whether Durham could confirm
the rumor; the latter said that “. . . he couldn’t confirm it . . . that he had a conference call
scheduled with [Respondent] . . . in the afternoon, and that he would call me after that
conference call.” That evening, at approximately 6:00 or 6:30, Durham called Harland and,
according to the latter, said he had news for Harland but not the news he wanted to hear. “And
he says . . . `we’re not going to lock out the . . . strikers. We’re going to actually permanently
replace about 20 or so employees.’” Harland responded that the news was serious and asked
for the names of the replaced striking employees. Durham promised to get him a list later that
night. Then, Harland testified, he said “. . . `You know, this is a pretty big deal. What is the
reason for permanently replacing them as opposed to locking them out,’” and Durham “. . . told
me . . . that Piedmont Gardens wanted to teach the strikers and the Union a lesson. They
wanted to avoid any future strikes, and this was the lesson that they were going to be taught.”
Harland stated he replied “`okay.’ And I hung up.”
While confirming the contents of their initial conversation, Durham testified to a different
version of their evening conversation. According to Durham, he telephoned Harland from
outside of an Oakland restaurant and began by saying he had news for the Union’s attorney.
“And I said that Piedmont Gardens had permanently replaced a number of the strikers.”
Harland replied, asking if Durham meant “`locked them out,’” and Durham replied, “. . . `No,
permanently replaced.’” Harland responded that the news was “`pretty heavy’” and asked how
many employees would be affected. Durham replied that he did not “. . . know for sure, 20, 25,

41 While Respondent expanded $300,000 on replacement workers utilizing Huffmaster,
Reynolds admitted that implementing the Union’s requests on economic items over the term of
a successor collective-bargaining agreement would have cost only $250,000.
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but I’d let him know more later.” Harland then asked if Durham knew the names, and the latter
said he would get him a list. “And then Bruce said, `. . . this is pretty heavy as I said. Why did
the company permanently replace people?’ And I said, `Bruce, we all know permanent
replacements happen in strikes.’” Durham then said he would get Harland the list of the
permanently replaced employees,42 and the conversation ended.
Twelve days after the conclusion of the strike, on August 19, on behalf of the Union,
Myriam Escamilla sent a five-page information request letter to Respondent’s attorney Durham.
Included amongst the requests was information pertaining to the names and addresses of the
permanent replacement employees, their job classifications, and their hourly wage rates. In her
letter, Escamilla explained that the Union “. . . needs this information to effectively perform its
duty as the exclusive representative of the workers employed at your [facility]” and “. . . to permit
the Union to bargain intelligently with the employer as to wages and benefits. . . .”
Approximately 3 weeks later, in a letter dated September 6 to Escamilla, Respondent’s attorney
Durham wrote that the names and addresses of the permanent replacement employees, who
were already employed by Respondent, were enclosed. However, as to those permanent
replacements, who “came from the outside,” he wrote, “. . . the Employer has a legitimate
concern that providing the information might lead to harassment or possibly violence by the
Union or its supporters. As you know, some of their people were subjected to abuse and
threats . . . during the strike. They also have legitimate privacy and confidentiality concerns that
must be considered. So in lieu of providing the information in the form of your request, we have
identified them by initials.”43 Regarding the job classifications and hourly wage rates of the
permanent replacements, who were hired from outside sources, Respondent provided the
information but with the employees identified by their initials. In fact, General Counsel’s Exhibit
No. 5 is the document with the name and addresses of permanent replacement employees; 23
are indentified with just initials without their home addresses. Also, General Counsel’s Exhibit
No. 6 is the document containing the job classifications and wage rates of the permanent
replacements; 23 are identified with just their initials. For each of the documents, the parties
stipulated that the permanent replacement employees, who were identified by their initials, were
hired from outside sources. Escamilla testified that she did not respond to Durham’s September
6 letter as “we felt that the allegations of violence and accusations of . . . threats of violence
against . . . replacements were bogus and completely ridiculous . . . ,” and “. . . we felt that we
would better by filing a charge with the NLRB.” She added that the Union has received no other
documents from Respondent, indentifying the permanent replacements, who were hired from
outside sources and that she is unaware of any threats to replacement workers, harassment of
them, or picket line violence during the period of the strike.
Reynolds testified that, by the time Respondent responded to the Union’s information
request, the strike had been over for a month, and most of the strikers had been reinstated and
were working alongside the permanent replacements. Asked if she observed any instances of
harassment, she stated, “No, I would say that the employees did a good job of melding all the
different areas from which they came. Whether they had gone on strike. Whether they were
Union employees who hadn’t gone on strike or if they were permanent replacements.”
Nevertheless, asked why Respondent only provided the initials of permanent replacements,
who were hired from outside sources, Reynolds testified, “I was very concerned about how that

42 There is no dispute that, since August 7, 13 of the permanently replaced individuals have
been reinstated. They are employees Bariuad, Bradley, Cato, Grayson, Higgins, Lane, Largent,
Lee, McNeal, Santos, Sekhon, Weldeabzghi, and Zeray.
43 There is no record evidence of any harassment of the permanent replacements after the
conclusion of the strike. Likewise, there is no record evidence of threats of violence or actual
violence directed against them.
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information would be used . . . some of the employees have expressed . . . fears for their safety
. . . . I didn’t know what was going to happen to [the information]. We were just reluctant to
hand it over.” Therefore, “we decided to provide initials . . . and ask to bargain about . . . some
other solution or . . . find some agreement about what would be done with that information.”
However, the Union never requested to bargain.
Respondent justified its response to the Union’s request for the names and addresses of
the permanent replacement employees by occurrences during the strike. According to
Reynolds, several employees expressed safety concerns. She identified them as Janona
_____, Moussa Sissoko, Liya Hagos, Alem Zewdu, and Ara Armstrong. “There were a couple
others, but I don’t remember their names. Janona is a nonstriking certified nursing assistant;
she was “unhappy” with the Union and “concerned” for her safety as she was constantly “yelled
at” for crossing the picket line. Sissoko, a nonstriking bargaining unit employee whose name
and address Respondent gave to the Union, spoke to Reynolds “. . . the week before the strike;
how was he going to get to work safely, was his concern.” Hagos “. . . was afraid that people
would bother her while she was walking to work.” Zewdu, a nonstriking bargaining unit
employee whose name and address Respondent gave to the Union, “. . . had the same
concerns that Liya did because they would walk together.” Ara Armstrong was a temporary
employee, and “she wanted to know how she was going to get to work. . . .” Besides these four
workers, Jesus Navarez, a nonstriking bargaining unit employee who drives a van used to
transport residents for medical appointments, reported to her that, on one occasion, pickets
surrounded his vehicle and would not allow him to proceed up the street. Also, some
replacements reported having to cover their faces as they crossed the picket line, and, as a
result, Respondent allowed them to use another door as an entrance into the facility. For such
employees, during the strike, Respondent offered to drive people to the nearest BART terminal
and to escort them through the picket line and provided them with an emergency phone
number. Finally, as justification for Respondent’s failure to provide the aforementioned
requested information, Respondent offered a series of anti-Semitic and death threats to Lynn
Morganroth, the HR director, which were mailed in early 2010 to her home and her work
addresses and one of which was related to the Union.
Legal Analysis and Findings
As set forth above, the consolidated complaint alleges that Respondent engaged in acts
and conduct, violative of Section 8(a)(1) of the Act, by discriminatorily enforcing its no-access
policy on June 17 and 18 by requiring off-duty employees, who were present at its facility to
participate in a Union strike authorization vote, to leave the facility and, through a security
guard, by engaging in surveillance of employees, who participated in the strike authorization
vote. Next, the consolidated complaint alleges that Respondent violated Section 8(a)(1) and (3)
of the Act, by belatedly reinstating 13 employees and permanently replacing and refusing to
reinstate 25 employees who, after participating in a concerted work stoppage and strike,
caused, in part, by Respondent’s unfair labor practices, had ended their strike and
unconditionally offered to return to their former positions of employment. Finally, the
consolidated complaint alleges that Respondent violated Section 8(a)(1) and (5) of the Act by
refusing to provide to the Union the names and addresses of permanent strike replacement
employees.
Initially, regarding the Acting General Counsel’s allegation that Respondent violated
Section 8(a)(1) of the Act by engaging in unlawful surveillance of the bargaining unit employees’
strike authorization vote on June 17, in comparison to Francisco Pinto, I found Sheila Nelson
and Matilda Imbukwa to have been the more credible witnesses. Nelson impressed me as
being a candid witness, and, while Imbukwa’s account of the time she spent watching Pinto’s
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activities obviously was implausible, I, nevertheless, believe she was an honest witness and
truthful as to what she observed. Pinto, on the other hand, did not impress me as being a
veracious witness; in particular, his demonstration as to how he held his cell phone (out in front
of his face) seemed incompatible with his explanation for having his phone out—checking
voicemail messages. Accordingly, I find that, at some point between 1:00 and 3:00, during the
early afternoon voting period on June 17, while Nelson and Imbukwa were assisting bargaining
unit employees in casting their strike authorization ballots, Pinto entered the breakroom, sat at a
table behind Nelson and Imbukwa, took his cell phone out, held it out in front of him at eye level,
and began moving it from side to side as if recording the voting activities. I further find that
Nelson noticed Pinto’s actions, observed him for approximately a minute, and pointed out the
security guard’s activities to Imbuka, who also observed Pinto for a short period of time.
The central issue, as to this allegation, is, of course, is whether Pinto’s acts and conduct
may be attributed to Respondent. At the outset, I believe that Respondent was well aware that,
at specified times on June 17 and 18, its bargaining unit employees would be voting on whether
to authorize their bargaining committee to call a strike. Thus, the vote was publicized by a flyer,
which was posted on the Union’s bulletin board in the breakroom. While she professed to have
no knowledge as to the vote, Gayle Reynolds admitted entering the breakroom sometimes on a
weekly basis and having observed other bargaining-related flyers posted on the bulletin board.
In these circumstances, I do not believe that she failed to notice the strike vote flyer affixed to
the bulletin board and believe that Pinto entered the breakroom and engaged in his actions at
Respondent’s behest. However, assuming Pinto had not been directed to engage in his
actions, the Board applies the common law principles of agency, and “apparent authority results
from a manifestation by the principal to a third party that creates a reasonable basis for the latter
to believe that the principal has authorized the agent to perform the acts in question.” Thus,
“the test is whether, under all the circumstances, the employees `would reasonably believe that
the employee in question [the alleged agent] was reflecting company policy and speaking and
acting for management.’” GM Electrics, 323 NLRB 125, 125 (1997); Southern Bag Corp., 315
NLRB 125, 125 (1994). Herein, the record establishes that Pinto was stationed at the Linda
Street entrance to Respondent’s facility, monitored access into the building through that
entrance, and possessed the authority to prevent people from entering. In these circumstances,
I believe that bargaining unit employees may reasonably have believed that Pinto acted as
Respondent’s agent when either recording or pretending to record the strike authorization voting
inside the breakroom on June 17. Poly-America, Inc. v. NLRB, 260 F.3d 465, 483 (5th Cir.
2001); Opryland Hotel, 323 NLRB 723, 723 fn. 3 (1997).
As to whether Pinto’s acts and conduct were unlawful, there can be no doubt, and I find,
that he either actually recorded the strike authorization voting or, at least, created the
impression that he was engaging in surveillance of Nelson’s union activities and of those
bargaining unit employees casting strike authorization ballots. While routine observation of
Section 7 activity on an employer’s property may not be violative of the Act, “an employer
violates Section 8(a)(1) when it surveils employees engaged in [union activities] by observing
them in a way that is `out of the ordinary’ and thereby coercive.” Aladdin Gaming, LLC, 345
NLRB 585, 586 (2005). Pinto’s acts certainly comprised more than casual observation; the
Board has long held that acts of “photographing and videotaping . . . clearly constitute more
than mere observation . . . because such pictorial recordkeeping tends to create fear among
employees of future reprisals.” National Steel & Shipbuilding Co., 324 NLRB 499, 499 (1997);
Fairfax Hospital, 299 NLRB 310 (1993). Based upon the foregoing, I find that security guard
Pinto’s patently unlawful acts in the breakroom on June 17 were attributable to Respondent and
that, therefore, the latter violated Section 8(a)(1) of the Act.
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Next, concerning the Acting General Counsel’s allegation that, acting on Respondent’s
behalf, Gayle Reynolds violated Section 8(a)(1) of the Act by discriminatorily enforcing
Respondent’s no access rule to evict employees who participated in the strike authorization
vote, there is no dispute that, on June 17, Reynolds evicted employee, Sheila Nelson, from
Respondent’s facility while she was helping to conduct the strike authorization vote and that,
subsequently, she also evicted employees, Geneva Henry and Faye Eastman, both of whom
were also assisting with the strike vote. With regard to Nelson, there is also no dispute as to
what occurred, and I find that Reynolds entered the breakroom shortly after security guard
Pinto’s unlawful surveillance, that she confronted Nelson, and that she demanded that Nelson
immediately leave Respondent’s facility.44 As to Henry, as between the employee and
Reynolds, I perceived Henry as being the more reliable witness. In other circumstances, I might
have believed Reynolds merely was honestly mistaken in maintaining she acted against Henry’s
presence inside Respondent’s facility on the morning of June 18; however, when, despite being
confronted with her own conflicting emails, she obdurately insisted her testimony was correct, I
think Reynolds was being disingenuous. Thus, I credit Henry and find that Reynolds discovered
her helping with the strike authorization vote in the breakroom after 6:00 p.m. on June 17 and
promptly demanded that Henry leave the building. Finally, in these circumstances, and again
noting her own conflicting email, I find that Reynolds expelled Eastman from Respondent’s
facility on the morning of June 18, also because she helped with the strike authorization vote.
While paragraph 7 of the consolidated complaint assumes the facial validity of
Respondent’s chart of infractions rule 33 and clearly alleges only that Respondent unlawfully
disparately enforced it against off-duty employees, who were inside its facility on June 17 and
18 assisting with the strike authorization voting,45 given the record evidence, I think it may be
more correctly argued that Respondent’s actual unlawful acts and conduct involve applying a
new work rule to Sheila Nelson, whose day off was June 17, and, perhaps, to Geneva Henry,
who also may have been off-duty that day, in order to thwart their activities in support of the
Union. Thus rule 33 does not, on its face, pertain to the access rights of employees on their
days off or while off-duty for any other reason; on June 17, Reynolds was forced to consult with
HR director Morganroth as to which chart of infractions rule Nelson and Henry had violated;
and, in her reply email to Reynolds, Morganroth, who presumably should have known,
expressed confusion and could not specify which, indeed if any, of Respondent’s chart of
infractions rules Nelson had violated earlier that day. Given the foregoing, the conclusion is
warranted that Reynolds conjured and applied a new work rule to Nelson, and, since the former
invoked this new rule for the first time in order to evict Nelson and later Henry from
Respondent’s facility upon discovering each was assisting with the strike authorization vote,
Reynolds’s actions were violative of Section 8(a)(1) of the Act. Nashville Plastic Products, 313
NLRB 462, 463 (1963). Moreover, regarding Respondent’s alleged discriminatory enforcement
of rule 33, assuming it applies to off-duty employees as well as to employees, who enter its

44 I reiterate my belief that, notwithstanding her less than convincing denial, Reynolds was
well aware that the bargaining unit employees were engaged in a strike authorization vote on
June 17. Moreover, as I believe that it was not a coincidence Reynolds entered the breakroom
just 15 minutes after Pinto’s unlawful surveillance and, giving no credence to his denial, that he
probably reported Nelson’s presence there to Respondent’s management, I think Reynolds
entered the breakroom aware that Nelson was assisting the strike authorization vote.
45 Nevertheless, in explicating her underlying theory for the allegation in her posthearing
brief, citing Tri-County Medical Center, 222 NLRB 1089 (1976), counsel for the Acting General
Counsel inexplicably asserts that Respondent’s rule is “unlawful” on its face as it fails the third
prong of the Tri-County test—a no-access rule is valid only if such “. . . applies to off-duty
employees seeking access to the plant for any purpose and not just to those employees
engaging in union activity.” Id. at 1089.
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facility prior to their work shifts or remain after their work shifts, Respondent admitted that it
permits off-duty employees to enter its facility under certain circumstances including to obtain
their paychecks and that off-duty shop stewards are permitted to enter in order to participate in
grievance activities and disciplinary meetings. In addition, I credit shop stewards Nelson and
Fowler that, on their days off, each has entered Respondent’s facility in order to engage in
Union-related activities and has never been either questioned about her presence inside the
facility or asked to leave despite having signed in with the receptionist or a security guard.
Finally, there is no record evidence that Respondent previously had enforced chart of infractions
rule 33 against any employee for being inside its facility while off-duty. Accordingly, as I believe
Reynolds was acutely aware of the strike authorization voting in the breakroom on June 17 and
18, I find that she disparately invoked Respondent’s chart of infractions rule 33 by evicting
employees Nelson, Henry, and Eastman from the facility upon discovering each was assisting
with the voting. In these circumstances, Respondent engaged in acts and conduct violative of
Section 8(a)(1) of the Act. Benteller Industries, 323 NLRB 712, 715 (1997); Opryland Hotel,
supra, at 731; Baptist Memorial Hospital, 229 NLRB 45, 45 fn. 4 (1977).
I next turn to the allegation that Respondent engaged in acts and conduct, violative of
Section 8(a)(1) and (3) of the Act, by belatedly reinstating 13 employees and permanently
replacing and refusing to reinstate 25 other employees for engaging in the August 2 through 7
concerted work stoppage and strike. An employer violates Section 8(a)(1) and (3) of the Act by
failing to reinstate striking employees on their unconditional offer to return to work, unless the
employer establishes a legitimate and substantial business justification for failing to do so.
NLRB v. Fleetwood Trailor Co., 389 U.S. 375, 378 (1967); Capehorn Industry, 336 NLRB 364,
365 (2001). The employer establishes a legitimate and substantial business justification when
the record evidence establishes that the positions, claimed by the strikers, are filled by
permanent replacements. Fleetwood Trailor, supra; see NLRB v. MacKay Radio & Telegraph
Co., 304 U.S. 333, 345–346 (1938). Counsel for the Acting General Counsel presents
alternative theories underlying the unfair labor practice allegations.
The first, of course, is that the said concerted work stoppage and strike was an unfair
labor practice strike and that, therefore, upon the Union’s unconditional offer to abandon the
strike and return to work on behalf of each striker, Respondent was obligated to have
immediately reinstated each to his or her former position of employment. As to this, in Golden
Stevedoring Co., 335 NLRB 410 (2001), the Board held “. . . that a work stoppage is considered
an unfair labor practice strike if it is motivated at least, in part, by the employer’s unfair labor
practices, even if economic reasons for the strike were more important than the unfair labor
practice activity. . . . It is not sufficient, however, merely to show that the unfair labor practices
preceded the strike. Rather, there must be a causal connection between the two events. . . . In
sum, the unfair labor practices must have `contributed to the employees’ decision to strike.’” Id.
at 411; RGC (USA) Mineral Sands, Inc., 324 NLRB 1633, 1634 (1997). Concerning the latter
conclusion, analysis of its decisions discloses that the Board has used numerous phrases46 to
emphasize the same point—the state of mind of strikers must be that their concerted work
stoppage and strike was, at least, in part motivated by their employer’s unfair labor practices.
Pennant Foods Co., 347 NLRB 460, 469 (2006). Put another way, whenever a reasonable
inference may be drawn that an employer’s unfair labor practices played a part in the decision of
the employees to strike, said concerted work stoppage is an unfair labor practice strike. Post

46 Did the employer’s unfair labor practices “have anything to do with” causing the strike?
Child Development Council of Northeastern Pennsylvania, 314 NLRB 845, 845 fn. 5 (1995).
Were they a “contributing cause” of the strike? R&H Coal Co., 309 NLRB 28, 28 (1992). Was
the unfair labor practice conduct “one of the causes” of the strike? Boydston Electric, 331 NLRB
1450, 1452 (2000).
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Tension of Nevada, Inc., 352 NLRB 1153, 1162–1163 (2008); Child Development Council of
Northeastern Pennsylvania, supra. Further, the burden is on the employer to establish that the
strike would have occurred even if it had not committed unfair labor practices. Post Tension of
Nevada, supra at 1163. Finally, once unfair labor practice strikers make unconditional offers to
abandon the strike and return to work, they must be returned to their former positions of
employment or, if said jobs no longer exist, to substantially equivalent positions even if
permanent replacements must be discharged in order to do so. Pennant Foods Co., supra at
470; Cal Spas, 322 NLRB 41 (1996).
Bluntly stated, contrary to the Acting General Counsel, for the below-stated reasons, I do
not believe that Respondent’s bargaining unit employees’ August 2 through 7 strike against
Respondent constituted an unfair labor practice strike. At the outset, there is no dispute that, on
the afternoon of May 25, the bargaining unit employees engaged in informational picketing
outside of Respondent’s facility, carrying placards identifying the parties’ contentious bargaining
issues (healthcare, a pension plan, and wages); that, on June 17 and 18, the bargaining unit
employees participated in a strike authorization vote, voting yes or no on whether to “. . .
authorize the bargaining committee team to call a strike,”47 and that, in setting the strike
authorization vote, the employees’ bargaining committee identified successor contract
bargaining issues (“Management still wants to take away our pension, make us pay . . . more for
our health insurance, and is offering a raise that’s a joke”) as their motivation. In these regards,
while over 90 percent of the bargaining unit employees voted to authorize their bargaining
committee to call a strike and while the unfair labor practices, which I have found herein,
occurred in the midst of the voting, there is no record evidence regarding whether any
bargaining unit employees, other than members of the bargaining committee, witnessed or were
cognizant of said acts or as to the dissemination of information pertaining to them. In these
circumstances, I believe the result of the strike authorization vote was that the bargaining unit
employees authorized their bargaining committee to call an economic strike against
Respondent.
Given the foregoing, the issue, then, is whether, at the time it commenced,
Respondent’s bargaining unit employees’ concerted work stoppage and strike had
metamorphosized into an unfair labor practice strike. On this point, there is no dispute that,
during a break in the July 9 bargaining session between Respondent and the Union, with no
prospect of an imminent breakthrough on a successor collective-bargaining agreement,48 eight
members of the bargaining unit employees’ bargaining committee discussed engaging in a
strike against their employer. Based upon their respective, uncontroverted testimony, I find that,
during said conversation, in addition to bargaining concerns, committee members, Sheila
Nelson, Sanjanette Fowler, and Matilda Imbukwa, each mentioned security guard Pinto’s
surveillance on June 17 and Reynolds’ eviction of Nelson later that same day and that, at the
conclusion of their discussions, the negotiating committee members decided to engage in a
strike49 against Respondent and informed Escamilla as to their decision. Finally, with regard to

47 Given Union Agent Escamilla’s admission that “we always call for unfair labor practice
strikes,” I find no significance to the words “unfair labor practice strike vote” on the top of the
ballot or, indeed, to the Union’s use of said words on any document or strike placard.
48 I note that, in almost a 3-week period between the strike authorization vote and the July 9
bargaining session, bargaining concerns, rather than asserted unfair labor practices, were the
sole concern of the Union’s published flyers for the bargaining unit employees.
49 While Nelson testified that the committee members told Escamilla, they wanted to engage
in an unfair labor practice strike, Fowler testified they told Escamilla only that they wished to
engage in a strike, Imbukwa recalled only that the committee voted to engage in a strike, and
Escamilla testified that she was only told the committee members voted to go on strike.
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the asserted transformed rationale for the concerted work stoppage and strike, there is no
credible record evidence50 that, between July 9 and August 2, either Union agents or the eight
members of the bargaining unit employees’ negotiating committee, ever informed Respondent’s
other bargaining unit employees that the economic strike, which they had authorized their
bargaining committee to call, had morphed into a strike to, at least, partially protest and redress
their employer’s unfair labor practices. In this regard, the Union published no materials on the
subject; while bargaining committee members did meet individually with fellow bargaining unit
employees, the subject of these meetings appears to have concerned procedural matters
pertaining to each employee’s participation in the strike; and, after June 17 and 18, bargaining
unit employees never again voted on the rationale for their concerted work stoppage and strike
against Respondent.
Although not explicitly stated in her posthearing brief, counsel for the Acting General
Counsel’s position appears to be that, as the bargaining unit employees’ negotiating committee
was authorized to call a strike and as the eight members discussed the above unfair labor
practices in deciding whether to do so, the August 2 through 7 concerted work stoppage and
strike was an unfair labor practice strike.51 Taking a contrary position, counsel for Respondent
argues that, while “. . . members of the union bargaining committee testified as to why they
decided to strike, this is no substitute for evidence that the general membership knew of, and
was motivated by, the . . . unfair labor practices.” I agree with counsel for Respondent. In this
regard, I reiterate my view that Respondent’s bargaining unit employees authorized their
negotiating committee to call a strike against Respondent for economic reasons. Indeed, such
was the recommended course of action by their bargaining committee. Moreover, while
bargaining unit employees arguably may leave to the discretion of their majority bargaining
representative or an authorized negotiating committee the decision as to the type of concerted
work stoppage and strike in which the employees may eventually engage, the indisputable
record evidence herein is that the specific grounds, which were recommended to the bargaining
unit employees for authorizing their negotiating committee to call a strike, concerned
Respondent’s bargaining positions. Put another way, Respondent’s bargaining unit employees
did not vote in a vacuum. Further, there is no record evidence that, other than the eight
members of the negotiating committee, the other 92 bargaining unit employees were aware of
the acts, which constituted Respondent’s unfair labor practices;52 at no point prior to its
commencement, did the members of the bargaining committee inform the entire bargaining unit

Accordingly, I do not rely upon Nelson’s testimony on this point.
50 I give no credence to Fowler’s response to a leading question by counsel for the Acting
General Counsel.
51 Notwithstanding that I expressed being “troubled” by the Acting General Counsel’s
contention, counsel for the Acting General Counsel ignored my concern, failing to discuss it in
her posthearing brief.
52 In analogous strike conversion cases, the Board and the courts require that the General
Counsel establish bargaining unit employees’ knowledge of the alleged unfair labor practices.
Thus, in C-Line Express, 292 NLRB 638 (1989), the Board reversed an administrative law
judge’s finding that an economic strike had been converted into an unfair labor practice strike as
there was no evidence “. . . to indicate that the strikers were even aware of the Respondent’s
unlawful [behavior].” Id. at 639. Likewise, in F.L. Thorpe & Co., Inc. v. NLRB, 71 F.3d 282 (8th
Cir. 1995), notwithstanding that the parties stipulated that the respondent had committed
several serious unfair labor practices, including conditioning reinstatement of employees upon
their resignation from the union, the court rejected the Board’s finding that said acts and conduct
converted an economic strike into an unfair labor practice strike as the record “. . . lacked
evidence of sufficient dissemination of the employer’s unlawful condition among the striking
employees.” Id. at 290.
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that their concerted work stoppage and strike would be, at least, partially intended to protest
unfair labor practices; and, of course, notwithstanding the magnitude, the entire bargaining unit
never was asked to confirm the changed rationale for their concerted work stoppage and strike,
which, arguably, had been adopted by the bargaining committee.. In my view, given that
Respondent’s unfair labor practices did not involve the collective-bargaining process and are not
of the so-called hallmark variety, the entire bargaining unit’s lack of knowledge of them and lack
of an opportunity to vote to confirm them as rationale for the concerted work stoppage and strike
left its original underlying economic rationale unchanged. C-Line Express, supra. Further, there
can be no contention that knowledge of the negotiating committee’s discussions on July 9 may
be imputed to the remainder of the bargaining unit employees. In an analogous strike
conversion case, Facet Enterprises, 290 NLRB 152 (1988), the Board required explicit evidence
of the bargaining unit employees’ knowledge of their employer’s alleged unfair labor practices in
order to find that an existing strike was, in fact, an unfair labor practice strike. The General
Counsel argued that the said strike was an unfair labor practice strike from its inception.
However, the Board determined that, at the time the bargaining unit employees gave
authorization to the labor organization, which represented them, to commence a strike, the only
grounds offered by the union were economic issues. Later, during bargaining, an unfair labor
practice issue arose; nevertheless, the labor organization failed to inform the bargaining unit
employees of said act prior to the commencement of their strike. Subsequently, after the
commencement of the strike, the labor organization informed the membership of the employer’s
unlawful acts, and the employees voted to confirm the strike In those circumstances, the Board
held that the strike had not been an unfair labor practice strike at its inception and had been
converted to such a status only when the unit employees were informed of the respondent’s
actions and, with that knowledge, voted to remain on strike. Id. at 154. In contrast, in the
instant matters, the eight bargaining committee members never informed their fellow unit
members of Respondent’s asserted unfair labor practices or the changed rationale for their
concerted work stoppage and strike and, of course, the bargaining unit employees never voted
to confirm whatever decision the bargaining committee reached. The critical nature of these
failings can not be emphasized more forcefully.
Besides the aforementioned, notwithstanding the respective, uncontroverted testimony
of employees Nelson, Fowler, and Imbukwa regarding what was said on July 9 prior to the
bargaining committee’s decision to call the concerted work stoppage and strike against
Respondent, I am not convinced that the bargaining committee actually was motivated by either
Pinto’s unlawful surveillance or Reynolds’ unlawful evictions of employees in deciding to call for
the August 2 through 7 concerted work stoppage and strike against Respondent. Thus, while
asserting that bargaining committee members informed Escamilla they wanted to have an unfair
labor practice strike and later denying the committee called the strike in order to place pressure
upon Respondent to agree to new contract terms, Sheila Nelson was impeached by her pre-trial
affidavit in which she stated “The purpose of the strike is to put pressure on the Employer to
reach an agreement with the Union for a new contract.” Likewise, after denying that the
purpose of the strike was to put pressure on Respondent to agree to the Union’s bargaining
demands, Sanjanette Fowler was impeached by her pre-trial affidavit in which she stated, “We
began striking at the Piedmont Gardens. . . . The purpose of the strike is to put bargaining
pressure on the Employer.” Also, she admitted that, on July 9, after the bargaining committee’s
decision, she returned to Respondent’s facility and informed co-workers that the earlier
bargaining session had not resulted in any agreement, that the employees had no choice but to
strike, and that a reason for the strike was contract language. Moreover, during the five-day
strike and picketing outside of Respondent’s facility , strikers carried placards and chanted
slogans identifying economic concerns as the basis for the concerted work stoppage and strike,
and, other than a boilerplate “ULP Strike” message on one or more signs, no striker carried a
placard specifying any unfair labor practice as the basis for the strike. Mauka, Inc., 327 NLRB
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803, 804 (1999). In this regard, of course, one striker told a reporter that economic concerns, a
minuscule raise offer and health insurance, were the strikers’ issues. Finally, and of critical
import as to motivation, is the Union’s August 6 letter to Oakland Mayor, Ron Dellums, seeking
his support for the strike. Rather than identifying any unfair labor practices as underlying
issues, the Union mentioned only the new contract bargaining, writing “We have proposed
common sense disciplinary rules as well as modest economic improvements. Management,
however, has refused to move away from its harmful disciplinary policies and, instead, has
sought to dramatically cut our healthcare and eliminate our pension fund entirely.” Based upon
the above reasons, and the record as whole, I restate my conclusion that Respondent’s
bargaining unit employees voted to authorize their negotiating committee to call an economic
strike against Respondent and that such remained the entire underlying basis for the August 2
through 7 concerted work stoppage and strike against Respondent.
Counsel for the Acting General Counsel’s alternate theory, underlying the consolidated
complaint allegation that Respondent violated Section 8(a)(1) and (3) of the Act by belatedly
reinstating 13 former strikers and permanently replacing and refusing to reinstate 25 other
former striking employees, is that “. . . Respondent had an independent unlawful purpose for
hiring the permanent replacements.” As support for this theory for the violation, counsel relies
upon the Board’s decision in Hot Shoppes, Inc., 146 NLRB 802 (1964), which concerned an
economic strike and the hiring of permanent replacement employees by the employer. In
reversing the trial examiner, who concluded that an employer may replace economic strikers
only to preserve the efficient operation of his business, the Board held, “The Supreme Court’s
decision in Mackay Radio & Telegraph Co., and the cases thereafter, although referring to an
employer’s right to continue his business during a strike, state that an employer has a legal right
to replace economic strikers at will. We construe these cases as holding that the motive for
such replacements is immaterial, absent evidence of an independent unlawful purpose.” Id. at
805. There exists no Board acknowledgement of the Hot Shoppes exception to an employer’s
otherwise unfettered right to hire permanent replacement employees until Avery Heights, 343
NLRB 1301 (2004).53 Therein, the General Counsel argued to the Board that, in secretly hiring
permanent replacement employees, an employer had an independent unlawful purpose—
breaking the Union’s solidarity and punishing a majority of the striking bargaining unit
employees. After noting an employer may establish a business justification for failing to
reinstate striking employees, who make an unconditional offer to return to work, by showing
their jobs had been filled by permanent replacements, the Board held that “. . . a violation will
still lie if it is shown that, in hiring the permanent replacements, the employer was motivated by
`an independent unlawful purpose.’ . . . Apart from such a purpose, the employer’s motive for
hiring permanent replacements is immaterial.” Id. at 1305. While failing to explicate the
meaning of the Hot Shoppes exception, the Board concluded that there was no record evidence
of any independent unlawful motive underlying the Respondent’s hiring of the permanent

53 This is not to say that the Board had no occasion to do so. Thus, in Choctaw Maid
Farms, 308 NLRB 521 (1992), responding to a contention of the General Counsel that the hiring
of permanent replacements was discriminatory and unlawful, the administrative law judge wrote,
“. . . the law allows an employer to hire permanent replacements. What its state of mind might
be in exercising that right is irrelevant.” Id. at 528. The Board did not discuss the issue.
Likewise, in Nicholas County Healthcare Center, 331 NLRB 970 (2000), notwithstanding that,
utilizing the Hot Shoppes’ rationale, the administrative law judge found an unlawful purpose for
the hiring of permanent replacements, the Board declined to pass on his findings.
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replacements at issue. Subsequently, the Second Circuit Court of Appeals reversed54 the
Board, and, in Avery Heights, 350 NLRB 214 (2007), the latter accepted the court’s remand
and, as the law of the case, found, in agreement with the court, that the respondent had an
independent unlawful motive for hiring the permanent replacements at issue.
Counsel for the Acting General Counsel argues that there exists “compelling evidence”
herein establishing Respondent’s independent unlawful motive for hiring permanent
replacements. Initially, counsel points to the telephone conversation between the Union’s
attorney, Bruce Harland, and Respondent’s attorney, David Durham on the evening of August 6.
In this regard, having considered the credibility of each, Harland impressed me as being the
more veracious witness. In contrast, Durham’s demeanor was that of a witness, merely
attempting to bolster his client’s legal position, and, therefore, I shall rely upon Harland’s
account of their conversation. Accordingly, I find that, after Durham informed Harland that,
rather than a lockout, Respondent would permanently replace approximately 20 of the striking
employees and promised to furnish him with a list of the names of the striking employees, who
had been permanently replaced, Harland asked for Respondent’s reason for permanently
replacing the strikers rather than imposing a lockout. To this, Durham replied “. . . that
Piedmont Gardens wanted to teach the strikers and the Union a lesson. They wanted to avoid
any future strikes, and this was the lesson that they were going to be taught.” Next, counsel for
the Acting General Counsel points to Respondent’s arguably discriminatory rationale for
converting the status of strike replacement employees from temporary to permanent. Thus,
Gayle Reynolds admitted that, in making offers to these individuals, rather than their
qualifications for the work, the “more important” and, I think unlawful, consideration was that
they would work during another work stoppage, and “. . . they had demonstrated that they were
willing to work during the strike.” Planned Building Services, 347 NLRB 670, 708 (2006);
National Fabricators, 295 NLRB 1095, 1096 (1989).
Absent from either the Board’s decision in Hot Shoppes, Inc. or in the initial Avery
Heights decision is any explanation for, or analysis of, precisely what the Board meant by the
phrase “independent unlawful purpose” in the above-quoted Hot Shoppes language. In this
regard, counsel for the Acting General Counsel intuits the Board as meaning that “. . . an
employer is free to hire permanent replacements for any non-discriminatory reason, but where
anti-union discrimination is shown to be the reason for the hiring of permanent replacements, a
Section 8(a)(3) violation is established.” I disagree. At the outset, I think that the words,
“independent unlawful purpose,” obviously have significance or the Board would not have used
them and note that the Board relied upon its decision in Cone Brothers Constructing Co., 135
NLRB 108 (1962), for the above phrase. Thus, one portion of Cone Brothers involves a finding
that the employer therein deliberately provoked pro-union drivers to refuse to cross a picket line
and, thereby, engage in a sympathy strike, which the employer then exploited to unlawfully
terminate the drivers with the ultimate goal of challenging their ballots as non-employees in a
scheduled representation election—an obvious unfair labor practice. I think, in Hot Shoppes,
the significance of Cone Brothers55 to the Board was that the employer’s actions therein were
ultimately designed to accomplish an unrelated, unlawful purpose extrinsic to the discharges. In
these circumstances, I find compelling counsel for Respondent’s contention that the
“independent unlawful purpose” exception means that the hiring and use of permanent
replacements by the employer is calculated to accomplish another, unlawful purpose, one

54 The Second Circuit disagreed with the Board on the record evidence, finding that the
employer’s secret hiring of permanent replacements was probative of an “illicit” motive to break
the union. New England Health Care Employees Union v. NLRB, 448 F.3d 189, 196 (2d Cir.
2006).
55 Cone Brothers did not involve the hiring of permanent replacements by the employer.
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unrelated to or extraneous to the strike itself. For example, by hiring permanent replacements,
an employer actually may be attempting to unlawfully foment a decertification election. Indeed,
if such is not the correct interpretation and one accepts counsel for the Acting General
Counsel’s interpretation, the words, “independent unlawful purpose,” render the entire preceding
clause a nullity, and the Supreme Court’s summation of the Hot Shoppes language, in Belknap,
Inc. v. Hale, 463 U.S. 491, 504 fn. 8 (1983)—that an employer’s motive for hiring permanent
replacements is “irrelevant—” would be meaningless. Put another way, surely, if the Supreme
Court meant that when evidence of discriminatory motive is established, the hiring of permanent
strike replacements would be violative of Section 8(a)(3) of the Act, it would have so stated.
Accordingly, I agree with the above-quoted ruling of the administrative law judge in Choctaw
Maid Farms, supra, and conclude that, when, as in the instant matters, bargaining unit
employees engage in an economic strike against their employer and the said employer
exercises its right to hire permanent replacements in the striking employees’ stead, whatever
factors, lawful or unlawful, contributed to, or motivated, the employer’s state-of-mind in reaching
its decision, unless designed to accomplish an unlawful, extraneous purpose, are utterly
irrelevant. In these circumstances, inasmuch as the factors involved in Respondent’s decision
to hire permanent replacements, its desire to teach its striking bargaining unit employees a
lesson and its desire to hire individuals, who would cross a picket line in the event of future
strikes, were directly related to its bargaining unit employees’ August 2 through 7 economic
strike, given Respondent’s unquestioned right to do so, it’s underlying motivation for hiring
permanent replacement employees was, and remains, irrelevant. Accordingly, for all the above-
stated reasons, Respondent did not violate Section 8(a)(1) and (3) of the Act by failing and
refusing to reinstate 25 of its bargaining unit employees, who engaged in the above economic
strike and by belatedly reinstating 13 of said employees, and, therefore, I shall recommend
dismissal of paragraphs 10 and 11 of the consolidated complaint.
Finally, I turn the consolidated complaint allegation that Respondent engaged in acts
and conduct, violative of Section 8(a)(1) and (5) of the Act by failing and refusing to provide to
the Union the names and home addresses of its newly hired permanent replacement
employees. In this regard, there is no dispute, and I find, that 12 days after the conclusion of
the August 2 through 7 strike, in a letter dated August 19, the Union sent an information request
to Respondent for certain items, including the names and addresses of the permanent
replacement employees, and that, in a letter dated September 6, Respondent’s attorney replied,
writing that, inasmuch as Respondent has a legitimate concern as to possible harassment and
possible violence, in the pertinent wage rate and job classification documents it would identify
the permanent replacement employees, who were hired from outside sources, only by their
initials and without their home addresses. In fact, in the accompanying wage rates and job
classification documents, Respondent indentified the permanent replacement employees, who
were hired from outside sources, only by their initials and failed to set forth their respective
home addresses. There is also no dispute that Respondent has continued to withhold the
names and addresses of its permanent replacement employees, who were hired from outside
sources.
It is, of course, well settled Board law that the names and addresses of bargaining unit
employees constitute presumptively relevant information, which must be furnished to a labor
organization upon request. Beverly Health & Rehabilitation Services, 346 NLRB 1319, 1326
(2006); Stanford Hospital & Clinics, 338 NLRB 1042, 1043 (2003). Likewise, the Board has also
held that the names and addresses of permanent strike replacement employees is
presumptively relevant information, which must be supplied to a requesting labor organization
upon request. Beverly Health & Rehabilitation, supra; Metta Electric, 338 NLRB 1059, 1065
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(2003); Grinnell Fire Protection Systems Co., 332 NLRB 1257, 1257–1258 (2000).56 However,
an employer may withhold such requested information if it can establish that there is a clear and
present danger that the information would be misused by the labor organization. Id. An
employer may establish the existence of such a “clear and present danger” upon a showing of
acts of bodily injury, acts of property damage, acts of intimidation, the throwing of rocks or other
harmful objects, threats of violence, and similar acts and conduct not only at or near the picket
line but also at the replacements’ residences. Brown & Sharpe Mfg. Co., 299 NLRB 586, 590
(1990). Herein, there is no record evidence of any such acts of misconduct directed against any
replacement employees, who were hired from outside sources, and, other than strikers
surrounding a vehicle on one occasion and some mild and typical strike argot, there exists no
evidence of acts of arguable misconduct directed toward nonstriking bargaining unit employees.
Further, Gayle Reynolds testified that, by the time Respondent replied to the Union’s information
request, the strike had been over for more than a month and that most of the strikers had been
reinstated and were working alongside the replacement employees without any instances of
harassment. Therefore, rather than objective concerns, it appears that, at the time it refused to
give to the Union the names and addresses of certain of the permanent replacements, whatever
concerns Respondent may have had were, at most, subjective in nature without factual support.
Nevertheless, citing Good Life Beverage Co., 312 NLRB 1060 (1993), counsel for
Respondent argues that, when the employer has legitimate and substantial confidentiality
concerns regarding the information sought by a labor organization, it is “entitled” to discuss
these concerns with the labor organization in order to “develop mutually agreeable protective
conditions” for disclosure of the information. Id. at 1062. However, contrary to counsel, Good
Life Beverage involves financial information, and, as the Board noted, “. . . requests for financial
information frequently raise confidentiality questions,” which, unlike herein, pertain to the nature
of the information sought. In addition, Respondent relies upon two cases involving requests for
information pertaining to strike replacement employees. Thus, in Webster Outdoor Advertising
Co., 170 NLRB 1395 (1968), the union requested to examine the employer’s payroll records to
determine the wage rates of strike replacements. While it is true that the employer did not
“categorically” reject the union’s request, expressing reluctance to turning over the information
until receiving assurances had been given and legitimate need established, the Board noted “. .
. that replacements had been harassed, threatened, and assaulted by some of the striking
employees,” and one striker had been “. . . convicted in state court for assaulting a replacement
with a gun.” Id. at 1396. Of course, no similar incidents of harassment, assaults, or threats
occurred to Respondent’s permanent replacement employees. Also, in Page Litho, Inc., 311
NLRB 881 (1993), while it is true that, “given the facts of this case,” the Board refused to find an
unlawful refusal to transmit information to a union after the latter agreed to having the employer
provide the requested payroll information with the strike replacements’ names excised, the
Board did find that the employer’s subsequent refusal to provide the names of strike
replacement employees was unlawful when the employer’s refusal occurred 4 months after the
conclusion of the strike and the last reported incidents of strike misconduct occurred. As the
Board noted it would be an “unfortunate precedent” to hold “. . . that on the basis of past strike
misconduct, an employer could foreclose for an indefinite length of time the opportunity for the
bargaining representative to obtain the names of some of its bargaining unit members.” Id. at
882–883. Herein, of course, not only were there, at worst, minor incidents of picket line
misconduct but also the strike had concluded over for a month before Respondent replied to the
information request and strikers and replacement employees were working well together in the
jobsite. In these circumstances, I believe that Respondent’s refusal to transmit the names and

56 Counsel for Respondent urges that the line of Board cases, holding such information as
presumptively relevant, should be overruled. Such, of course, is the province of the Board, not
that of an administrative law judge.
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addresses of certain of its permanent replacement employees to the Union was violative of
Section 8(a)(1) and (5) of the Act. Beverly Health & Rehabilitation, supra; Page Litho, supra.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By either enforcing its chart of infractions rule 33 in a disparate manner or
implementing a new work rule and evicting off-duty bargaining unit employees from its facility in
order to deter said employees from assisting the Union with a strike authorization vote,
Respondent engaged in acts and conduct violative of Section 8(a)(1) of the Act.
4. By, through a security guard, engaging in surveillance or creating the impression it
was engaging in surveillance of its bargaining unit employees, who were assisting with or
participating in a strike authorization vote, Respondent engaged in acts and conduct violative of
Section 8(a)(1) of the Act.
5. By failing and refusing to furnish the Union with the names and addresses of its
permanent strike replacement employees, who were hired from outside sources, which
information is presumptively relevant, Respondent has engaged in acts and conduct violative of
Section 8(a)(1) and (5) of the Act.
6. Respondent’s above-described unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
7. Unless specifically found above, Respondent engaged in no other unfair labor
practices.
REMEDY
Having found that Respondent has engaged in, and continues to engage in, serious
unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act and Section
8(a)(1) of the Act. I shall recommend that it be ordered to cease and desist therefrom and to
engage in certain affirmative acts. As I have found that Respondent has unlawfully failed and
refused to provide the Union with the names and addresses of permanent replacement
employees, who were hired from outside sources, I shall recommend that it be ordered to do so.
In addition, I shall recommend that it be ordered to post a notice, setting forth its obligations
herein.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended57

57 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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ORDER
The Respondent, American Baptist Homes of the West d/b/a Piedmont Gardens, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Either enforcing the chart of infractions rule 33 in a disparate manner or
implementing a new work rule by evicting off-duty bargaining unit employees from its facility in
order to deter said employees from assisting the Union with a strike authorization vote;
(b) Engaging in surveillance or creating the impression it was engaging in surveillance
of its bargaining unit employees, who were participating in a strike authorization vote;
(c) Failing and refusing to furnish the Union with the names and addresses of
permanent replacement employees, who were hired from outside sources, which information is
presumptively relevant;
(d) In any like or related 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 effectuate the policies of the Act.
(a) Provide the Union with the names and addresses of its permanent replacement
employees, who were hired from outside sources;
(b) Within 14 days after service by the Region, post at its facility in Oakland,
California, copies of the attached notice marked “Appendix.”58 Copies of the notice, on forms
provided by the Regional Director for Region 32, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or 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 employees employed by the Respondent
at any time since June 17, 2010;
(c) 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.

58 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges that
Respondent violated Section 8(a)(1) of the Act by belatedly reinstating or refusing to reinstate
former striking employees
Dated, Washington, D.C., August 9, 2011.
____________________
Burton Litvack
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT either enforce the chart of infractions rule 33 in a disparate manner or
implement a new work rule by evicting our bargaining unit employees from our facility in order to
deter said employees from assisting Service Employees International Union, United
Healthcare Workers–West, herein called the Union, with a strike authorization vote.
WE WILL NOT engage in surveillance or create the impression we are engaging in surveillance
of our bargaining unit employees who participate in a strike authorization vote.
WE WILL NOT fail and refuse to furnish the Union with the names and addresses of permanent
replacement employees, hired from outside sources, which information is presumptively
relevant.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL furnish the Union with the names and addresses of permanent replacement
employees, who were hired from outside sources.
American Baptist Homes of the West d/b/a
Piedmont Gardens
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1301 Clay Street, Federal Building, Room 300N
Oakland, California 94612-5211
Hours: 8:30 a.m. to 5:00 p.m.
510-637-3300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 510-637-3270.