CARE ONE AT MADISON AVENUE LLC d/b/a CARE ONE AT MADISON AVENUE AND CARE ONE MANAGEMENT LLC

National Labor Relations Board - Board Decisions

Dec 16, 2014

361 N.L.R.B. 1462 (N.L.R.B. 2014)

1462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Care One at Madison Avenue, LLC d/b/a Care One
at Madison Avenue and 1199 SEIU, United
Healthcare Workers East. Cases 22–CA–085127
and 22–CA–089333
December 16, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On July 31, 2013, Administrative Law Judge Mindy E.
Landow issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and 1199 SEIU, United Healthcare Workers
East (the Union), filed answering briefs, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,1 and conclusions2 and
to adopt the recommended Order as modified and set
forth in full below.3
1 The parties stipulated to the pertinent facts and waived a hearing.
2 We find no merit in the Respondent’s contention that the Acting
General Counsel lacked the authority to prosecute this case. The Act-
ing General Counsel was properly appointed under the Federal Vacan-
cies Reform Act, 5 U.S.C. § 3345, and not pursuant to Sec. 3(d) of the
Act. See Muffley v. Massey Energy Co., 547 F.Supp.2d 536, 542–543
(S.D. W.Va. 2008), affd. 570 F.3d 534 (4th Cir. 2009) (upholding au-
thorization of Sec. 10(j) injunction proceeding by Acting General
Counsel designated pursuant to the Vacancies Act). See The Ardit Co.,
360 NLRB 74, 74 (2013).
We likewise find no merit in the Respondent’s contention that the
judge lacked the authority to decide this case. In New Process Steel v.
NLRB, 560 U.S. 674 (2010), the Supreme Court expressed doubt about
a contention that the lack of a Board quorum voids the previous delega-
tions of authority to nonmembers, such as Regional Directors. Alt-
hough the Supreme Court did not expressly rule on the question, it
noted that its “conclusion that the delegee group ceases to exist once
there are no longer three Board members to constitute the group does
not cast doubt on the prior delegations of authority to nongroup mem-
bers, such as the regional directors or general counsel.” 560 U.S. at
684 fn. 4. Further, since New Process Steel, all of the courts of appeals
that have considered this issue have upheld the principle that Board
delegations of authority to nonmembers remain valid during a loss of
quorum by the Board. See Kreisberg v. Healthbridge Mgt., LLC, 732
F.3d 131 (2d Cir. 2013); Frankl v. HTH Corp., 650 F.3d 1334, 1354
(9th Cir. 2011), cert. denied 132 S. Ct. 1821 (2012); Osthus v. Whitesell
Corp., 639 F.3d 841, 844 (8th Cir. 2011); Overstreet v. El Paso Dis-
posal, LP, 625 F.3d 844, 853 (5th Cir. 2010).
3 We shall modify the judge’s recommended Order to require the
Respondent to compensate employees for the adverse tax consequenc-
es, if any, of receiving lump-sum backpay awards and to file a report
with the Social Security Administration allocating the backpay awards
to the appropriate calendar quarters for each employee. See Don Cha-
vas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). We shall
also modify the judge’s recommended Order to conform to the Board’s
standard remedial language. We shall substitute a new notice to con-
At issue in this case is whether the Respondent com-
mitted multiple unfair labor practices during the Union’s
campaign to organize and represent a unit of the Re-
spondent’s Madison Avenue employees. We agree with
the judge, for the reasons she states, that the Respondent
violated the Act in several respects. First, we agree that
the Respondent violated Section 8(a)(1) of the Act when,
prior to the March 23, 2012,4 representation election, it
distributed to its employees a leaflet that threatened them
with job loss for engaging in protected concerted activi-
ty. Next, we agree that the Respondent violated Section
8(a)(1) and (3) by announcing and implementing a reduc-
tion in healthcare premiums and copays, on March 5 and
23, respectively, for all employees except those who
were eligible to vote in the election. Third, we agree
with the judge that the Respondent violated Section
8(a)(1) during a mandatory meeting of employees held 2
days before the election. In that campaign meeting,
where the Respondent repeatedly urged employees to
vote against the Union, the Respondent unlawfully pre-
sented a video displaying photographs of employees,
taken for other purposes and used without their consent,
and lacking any disclaimer that the video was not intend-
ed to reflect their views. Allegheny Ludlum Corp., 333
NLRB 734 (2001), enfd. 301 F.3d 167 (3d Cir. 2002).
Finally, as discussed below, we also affirm the judge’s
finding that the Respondent violated Section 8(a)(1) by
posting a postelection memorandum directed at union
activity on its employee bulletin board.
I. THE POSTELECTION MEMORANDUM
On about March 26, 3 days after the union election,
Respondent Administrator George Arezzo posted a
memorandum entitled “Teamwork and Dignity and Re-
spect” accompanied by the Respondent’s preexisting
Workplace Violence Prevention Policy (the Policy), on
the employee bulletin board.
The memorandum states as follows:
Now that the NLRB Election is behind us, I was hop-
ing that everyone would put their differences behind
them and pull together as a united team. Even though
we may have had different opinions on the Union, I
thought that after the election we would treat each other
with dignity and respect and reunite our Madison Ave-
nue family. I was hoping we could let go of our past
differences and look forward, focusing all of our ener-
gy on making our Center the best it can be and provid-
ing the very best Quality of Care and Customer Service
possible.
form to the Order as modified, and in accordance with our decision in
Durham School Services, 360 NLRB 694 (2014).
4 All of the following dates are in 2012.
361 NLRB No. 159

CARE ONE AT MADISON AVENUE 1463
Unfortunately, it appears that a few of our team mem-
bers are unwilling to do this. It also has been reported
to me that a few employees are not treating their fellow
team members with respect and dignity. I have even
heard disturbing reports that some of our team mem-
bers have been threatened.
While I recognize that employees have a right to make
up their own minds regarding the union, and I respect
the right employees have to be for or against the union,
these rights do not give anyone the right to threaten or
intimidate another team member, for any reason. Care
One at Madison Avenue has a longstanding policy pro-
hibiting threats, intimidation, and harassment (Work-
place Violence Prevention policy is attached).
I want everyone to be on notice that threats, intimida-
tion, and harassment will not be tolerated at Care One
at Madison Avenue. We will enforce the Workplace
Violence Prevention policy to keep our workplace free
from such improper conduct. Anyone engaging in such
conduct will be subject to discipline, and, depending on
the facts of the situation, such discipline may include
suspension or discharge for a first offense.
It is very disappointing that I have to post a memo
warning a few people that they will be disciplined if
they threaten others. Threats should never occur in a
family environment where we care about one another
and should be treating each other with dignity and re-
spect.
To the vast majority of our team members, thank you
for your support and for being part of the Care One at
Madison Avenue team—and family. And, thank you
in advance for working with me and our leadership
team as we move our Center forward and make it the
best center in the Care One family.
The judge found no evidence that the threats mentioned in
the memorandum actually occurred, that the Respondent
attempted to investigate any alleged threats, or that it disci-
plined any employees for such incidents.
The Policy accompanying the memorandum states as
follows:
The Center is committed to maintaining a safe, healthy
and secure work environment, and preventing violence
in the workplace. Acts or threats of violence, including
intimidation, harassment and/or coercion, which in-
volve or affect any Center employee, Resident, volun-
teer, visitor and independent contractor and anyone else
on Center premises, will not be tolerated. Violations of
this policy may result in disciplinary action, up to and
including termination of employment and/or legal ac-
tion as appropriate.
Examples of workplace violence include, but are not
limited to, the following:
• Threats or acts of violence occurring on Center
premises, regardless of the relationship between
the Center and the parties involved in the inci-
dent.
• Threats or acts of violence occurring off Center
premises involving someone who is acting in
the capacity of a representative of the Center.
• Threats or acts of violence occurring off Center
premises if the Center determines that the inci-
dent may lead to an incident of violence on Cen-
ter’s premises.
An employee’s unlawful or unauthorized possession or
use of a dangerous or deadly weapon, including but not
limited to all firearms, in the workplace is prohibited.
Specific examples of conduct that may be considered
threats or acts of violence under this policy include, but
are not limited to, the following:
• Threatening physical or aggressive contact to-
ward another person.
• Threatening a person or his or her family,
friends, associates or property with physical
harm.
• The intentional destruction of Center property
or another’s property.
• Harassing or threatening phone calls.
• Surveillance or Stalking
• Veiled threats of physical harm or like intimida-
tion.
You are expected and encouraged to report any acts or
threats of physical violence, including intimidation,
harassment and/or coercion which involve or affect the
Center, or which occur on Center premises, to your
Center Administrator/Supervisor or the Regional Hu-
man Resources Department.
The judge found that the memorandum was unlawful
because it was promulgated in response to union activity
and because employees would reasonably construe it to
prohibit such activity.5
II. ANALYSIS
An employer violates the Act by maintaining a work
rule that explicitly restricts Section 7 activities. Lutheran
Heritage Village-Livonia, 343 NLRB 646, 646 (2004).
“If the rule does not explicitly restrict activity protected
by Section 7, the violation is dependent upon a showing
5 There are no exceptions to the judge’s dismissal of the allegation
that the Respondent violated Sec. 8(a)(1) by maintaining the Policy.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1464
of one of the following: (1) employees would reasonably
construe the language to prohibit Section 7 activity; (2)
the rule was promulgated in response to union activity;
or (3) the rule has been applied to restrict the exercise of
Section 7 rights.” Id. at 647. As noted above, there is no
pending challenge to the Policy. The issue is whether the
Respondent’s posting of the memorandum was unlawful.
We agree with the judge that it was, both because the
memorandum was promulgated in response to the em-
ployees’ union activity and because employees would
reasonably read it to restrict Section 7 activity.
First, by its express terms, Arezzo’s memorandum in-
dicates that the Respondent promulgated and posted the
memorandum in response to its employees’ union activi-
ty. It repeatedly referred to the union election 3 days
earlier and the “differences” that arose in the workplace
during the Union’s campaign. Further, Arezzo’s state-
ment, “I thought that after the election we would treat
each other with dignity and respect,” suggests that during
the organizing campaign and election the Respondent
believed that employees did not treat each other with
dignity and respect when they engaged in protected un-
ion activity. The repeated references to the election in
the memorandum, and the nonspecific plea for “dignity
and respect,” terms not mentioned in the Respondent’s
Policy, create an obvious and heretofore unexpressed
link between the subject matter of the rule and protected
activity.
Our dissenting colleague suggests that the Respond-
ent’s need to prevent workplace violence justified issu-
ance of the memorandum. While we share his concerns
about potential workplace violence, the Board does not
accept an employer’s claims of violence at face value
when Section 7 rights are implicated. See Boulder City
Hospital, 355 NLRB 1247, 1249 (2010) (posting of
broad memorandum against harassment violated Section
8(a)(1) where memorandum was posted in response to
lawful union solicitation that employer never investigat-
ed as harassment, and which expanded existing anti-
harassment policy to target such solicitation). Rather, the
Respondent has the burden to demonstrate whether such
concerns or reasons apart from the campaign actually
motivated it to issue the memorandum when it did.6
6 The Respondent excepts to the judge’s legal analysis to the extent
that she relied on the absence of evidence of such threats. It argues that
the judge erred because “such evidence would not have been probative
of anything related to the question of whether [its] posting of the Arez-
zo memorandum and [the Policy] together violated Section 8(a)(1).”
Contrary to the Respondent’s argument, such evidence is clearly rele-
vant in determining whether a rule, or as in this case, a memorandum
expanding on a rule, was unlawfully promulgated. It is well established
that “once it is shown that the rule was promulgated in the context of a
union campaign, the burden of explanation lies with the employer.”
Here, because there is no record evidence that the Re-
spondent attempted to investigate alleged threats, let
alone that any threats actually occurred, we agree with
the judge that the Respondent lacked a legitimate basis
for issuing the memorandum.7
Second, as in Boulder City Hospital, above, we find
that the Respondent’s employees would also reasonably
construe the memorandum to prohibit Section 7 activity.
For the same reasons discussed above, employees would
understand the memorandum’s references to the recent
union election and to their purported failure to treat each
other with “dignity and respect” during the campaign as
an extension of the Policy to explicitly target protected
activity in support of the Union. Indeed, the memoran-
dum served as an authoritative indication to employees
that the Respondent would construe the Policy to include
protected campaigning activity and that they should do
so as well. See The Roomstore, 357 NLRB 1690, 1690
fn. 3 (2011) (employees would reasonably construe rule
prohibiting “[a]ny type of negative energy or attitudes”
to include protected activity given employer’s repeated
warnings not to talk negatively about the employer’s pay
practices).
Our dissenting colleague argues that Boulder City
Hospital, above, is distinguishable and does not support
our decision here. We disagree. Our colleague makes
much of the fact that here, unlike in Boulder City Hospi-
tal, the memorandum was posted alongside the underly-
ing Policy and “repeated language from the Policy” by
using the words “threats,” “intimidation,” and “harass-
ment.” We find that this reference to three words in the
Policy did nothing to lessen the coerciveness of the
memorandum. Instead, any limited invocation of the
City Market, Inc., 340 NLRB 1260, 1260 (2003). In order to meet this
burden, an employer must offer more than mere assertions of miscon-
duct. See id. (requiring a showing of the alleged improper solicitation);
Boulder City Hospital, supra at 1249 (employer did not investigate
employee complaints about harassment related to union solicitation,
and therefore “had no reason to believe” that solicitation was not pro-
tected); Harry M. Stevens Services, 277 NLRB 276, 276 (1985) (“[T]he
Respondent failed to rebut the General Counsel’s prima facie case and
to establish that its no-solicitation/no-distribution rule was promulgated
[during the union’s organizational campaign] to maintain production
and discipline.”).
7 We do not agree with the dissent that we need not reach the ques-
tion whether the memorandum was promulgated in response to actual
threats because, in the dissent’s view, it did not expand upon the origi-
nal Policy, but “merely reiterated the lawful and established [workplace
violence] policy.” To the contrary, as explained above, the memoran-
dum went substantially beyond the original Policy and created a new
rule by specifically referencing union activity that was—in the absence
of contrary evidence—protected. See, e.g., Santa Maria El Mirador,
340 NLRB 715, 717–718 (2003) (employer unlawfully promulgated
rule by “specifically aim[ing]” existing general no-access rule at pro-
tected activity).

CARE ONE AT MADISON AVENUE 1465
Policy’s general rules against harassment was more than
offset by language responding to and specifically target-
ing union activity.
Nor are we persuaded by our colleague’s claims that
the memorandum’s purported acknowledgement of em-
ployees’ Section 7 rights negated its earlier unfounded
intrusion on those rights. In Boulder City Hospital, on
similar facts, the Board stated that:
This would be a different case had the Respondent’s
memo [merely reminded employees of the existing pol-
icy without extending the policy to implicate Section 7
activity] and had it been posted in a context free of un-
fair labor practices, or if the Respondent’s memo had
acknowledged what Board law makes clear, namely
that its employees had the statutory right to “engage in
persistent union solicitation even when it annoys or dis-
turbs the employees who are being solicited.”
Id. at 1249. Contrary to the dissent, the pertinent facts
preclude this case from being the “different case” re-
ferred to above. First, the memorandum did not merely
remind employees of the existing Policy; it specifically
extended it to prohibit union organizational activity.
Second—and as chronicled above—it was not posted in a
context free of unfair labor practices. Instead, it was
posted on the heels of the election and in the wake of
several contemporaneous unfair labor practices. Third,
while the memorandum nominally acknowledged the
employees’ right to hold personal views about the Union,
it failed to make clear that employees also had the right
to engage in concerted activity in furtherance of those
views. Indeed, it intimated that employees who engaged
in such conduct would be subject to discipline.8 Our
colleague would disregard such pertinent facts, finding it
determinative that the Respondent maintains that the
memorandum was posted in response to reports of
threats. But as explained, we do not accept at face value
such self-serving justifications for promulgating the
memorandum, and the Respondent did not meet its bur-
den to produce evidence of such threats.
In sum, based on the factual context and our estab-
lished precedent, we agree with the judge that the Re-
8 While “an employer’s express notice to employees advising them
of their rights under the Act may, in certain circumstances, clarify the
scope of an otherwise ambiguous and unlawful rule,” that notice
“should adequately address the broad panoply of rights protected by
Section 7.” First Transit, Inc., 360 NLRB 619, 621–622 (2014) (fn.
omitted) (relying on narrowness of employer’s safe harbor provision as
one ground for finding that it did not negate the coerciveness of unlaw-
ful work rules). See, e.g., Claremont Resort & Spa, 344 NLRB 832,
832 (2005) (“The Respondent’s May 5 notice, however, dealt exclu-
sively with employee rights to discuss union matters . . . The Respond-
ent thereby ignored the exercise of Section 7 rights relating to concert-
ed activity other than union activity.”).
spondent violated Section 8(a)(1) by posting the poste-
lection memorandum, because (1) it thereby promulgated
a rule in response to union activity and (2) employees
would reasonably construe it to prohibit such activity.
ORDER
The National Labor Relations Board orders that the
Respondent, Care One at Madison Avenue, LLC d/b/a
Care One at Madison Avenue, Morristown, New Jersey,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with job loss if they select
the Union as their bargaining representative, engage in
activities on behalf of the Union, or engage in protected
concerted activities.
(b) Announcing and implementing a reduction in
healthcare premiums and copays that excludes employ-
ees eligible to vote in the representation election.
(c) Showing a video or presentation during an election
campaign containing employees’ images without their
consent and without a disclaimer stating that the video or
presentation is not intended to reflect the views of the
employees appearing in it.
(d) Issuing a memorandum to employees posted soon
after a union organizing campaign and election that em-
ployees would reasonably construe as modifying the Re-
spondent’s Workplace Violence Prevention Policy to
prohibit protected union activity.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Implement the January 1, 2012, reduction in
healthcare premiums and copays for unit employees who
were eligible to vote in the representation election but
were specifically excluded from those benefits.
(b) Make whole those unit employees who were eligi-
ble to vote in the representation election but were specif-
ically excluded from the reduction in healthcare premi-
ums and copays available to other employees.
(c) Compensate employees for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
and file a report with the Social Security Administration
allocating the backpay awards to the appropriate calendar
quarters for each employee.
(d) Rescind the memorandum to employees entitled
“Teamwork and Dignity and Respect,” and provide as-
surances that the Workplace Violence Prevention Policy
is not intended to and will not be used to interfere with
employee rights under Section 7 of the Act.
(e) Within 14 days after service by the Region, post at
its Morristown, New Jersey facility copies of the at-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1466
tached notice marked “Appendix.”9 Copies of the notice,
on forms provided by the Regional Director for Region
22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since January 1, 2012.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 22 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

MEMBER JOHNSON, dissenting in part.
In evaluating the legality of a work rule, “the Board
must . . . give the rule a reasonable reading. It must re-
frain from reading particular phrases in isolation, and it
must not presume improper interference with employee
rights.” Lutheran Heritage Village-Livonia, 343 NLRB
646, 646 (2004). In failing to abide by these canons of
work rule construction, the majority gives the Respond-
ent’s memorandum to employees, entitled “Teamwork
and Dignity and Respect,” a manifestly unreasonable
reading in light of the memorandum’s text and the lan-
guage of the indisputably lawful Workplace Violence
Prevention Policy (the Policy). Based on this misread-
ing, my colleagues apply inapposite precedent to con-
clude that the memorandum effectively expanded the
Policy such that the Respondent has promulgated a new
rule in response to union activity that employees would
reasonably construe as restricting their Section 7 rights.
In fact, the Respondent’s memorandum merely reiterated
the Policy consistent not only with Board law, but also
with Board policy “recogniz[ing] the legitimate need of
employers to guard against workplace violence.” See
Kiewit Power Constructors Co., 355 NLRB 708, 711
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(2010), enfd. 652 F.3d 22 (D.C. Cir. 2011). Because the
majority’s conclusions lack an adequate factual and legal
foundation, I respectfully dissent.
Initially, contrary to the majority, there has been no
“promulgat[ion] in response to union activity.” See Lu-
theran Heritage Village, supra at 647. The threshold
question in this case is whether there has been a promul-
gation of a new rule or policy in the first place. Here, the
memorandum neither modified the Policy nor created a
new rule or policy. Indeed, the memorandum merely
reiterates the lawful and established Policy in response to
claimed reports of threats.1 Thus, the memorandum at-
taches the Policy (and expressly states that it is doing so),
specifically incorporates the Policy by reference (as the
judge expressly found), and cites the Policy’s prohibition
of threats, intimidation, and harassment, terms that the
Policy explains. Nor would employees reasonably con-
strue the Respondent’s memorandum in conjunction with
the reiterated Policy as restraining their Section 7 rights.2
See id.
The majority’s reliance on certain isolated phrases in
the memorandum to conclude otherwise is misplaced. In
context, the memorandum’s references to “respect and
dignity” do not broaden or otherwise modify the Policy.
Rather, those references, juxtaposed with the conduct
prohibited by the Policy, describe conduct that does not
violate the Policy, i.e., conduct that does not threaten,
intimidate, or harass others, as those terms are explained
in the Policy. For instance, the memorandum refers to
reports that “a few employees are not treating their fel-
low team members with respect and dignity,” immediate-
1 The judge found the Policy, standing alone, to be facially lawful.
Because the memorandum did not modify the Policy such as to prom-
ulgate a new rule or policy, there is no need—for purposes of the se-
cond prong of the Lutheran Heritage Village analysis—to determine
whether the Respondent posted the memorandum “in response to union
activity” or to actual threats. The majority nonetheless mischaracteriz-
es my position as contending that unsubstantiated reports of threats
justified issuance of the memorandum and are therefore “determina-
tive” of the memorandum’s legality. As a factual matter, the memo-
randum was posted in response to claimed reports of threats. Legally,
however, this fact is inconsequential because the Board need not reach
the questions of whether the Respondent investigated the reports of
threats or whether actual threats were made. Under City Market, Inc.,
“once it is shown that the rule was promulgated in the context of a
union campaign, the burden of explanation lies with the employer.”
340 NLRB 1260, 1260 (2003). Thus, an employer bears a “burden of
explanation” only after it has been established that a work rule was in
fact promulgated. Here, because the Respondent’s memorandum mere-
ly reiterated the lawful, active Policy and nothing more, there was no
promulgation and therefore no burden on the Respondent to explain
how any rationale for such purported promulgation was not in response
to union activity.
2 Any arguable similarity between The Roomstore, 357 NLRB 1690
(2011), and the instant case rests on an unreasonable and crabbed read-
ing of the Respondent’s memorandum in relation to the Policy.

CARE ONE AT MADISON AVENUE 1467
ly before clarifying that Respondent Administrator
George Arezzo had heard “disturbing reports that some
of our team members have been threatened.” In other
words, “a few employees” failed to treat “some of our
team members” with “respect and dignity” by threaten-
ing them. In the memorandum’s penultimate paragraph,
Arezzo laments that he had to “post a memo warning a
few people that they will be disciplined if they threaten
others,” concluding in the following sentence that
“[t]hreats should never occur” in a “family environment”
where employees “should be treating each other with
dignity and respect.” Further, the memorandum’s refer-
ences to the recent union election are not definitive evi-
dence that its posting modified the Policy so as to prom-
ulgate a new rule or policy in response to union activity.
Rather, the memorandum specifically expresses the Re-
spondent’s “respect [for] the right employees have to be
for or against the union” in making clear that whatever
one’s opinion on the subject, employees’ labor rights do
not privilege them to engage in threatening or intimidat-
ing behavior at work. Accordingly, by relying on the
memorandum’s references to “dignity and respect” and
to the recent union election, my colleagues erroneously
“read[] phrases in isolation” to “presume improper inter-
ference with employee rights.” See Lutheran Heritage
Village, supra at 646. A “reasonable reading” of the en-
tire memorandum in context makes clear that it did noth-
ing more than lawfully reiterate the Policy.
The Board’s decision in Boulder City Hospital, 355
NLRB 1247 (2010)—on which the majority relies—is
not to the contrary. There, in response to presumably
lawful union solicitations during an organizing cam-
paign, the employer posted a memorandum purporting to
remind employees of its lawful antiharassment policy.
Id. at 1247. The memorandum stated that “harassment or
threatening behavior in any degree by or between em-
ployees will not be tolerated.” Id. In addition, the mem-
orandum cited the employer’s anti-harassment policy
from the employee handbook and informed employees of
their right to contact Human Resources if they feel “har-
assed or threatened in any way.” Id. The employee
handbook policy was somewhat narrower, prohibiting
“illegal harassment . . . defined as any conduct directed
toward another because of that person’s sex, race, age,
national origin, color, disability, sexual orientation, reli-
gion, ancestry, or veteran status, or any other unlawful
basis that is inappropriate or offensive as determined by
using a ‘reasonable person’ standard.” Id. The Board
majority concluded that the memorandum constituted
either “an overbroad application of the lawful written
handbook policy or . . . the promulgation of a new har-
assment policy.” Boulder City Hospital, supra at 1249.
In other words, the memorandum modified and broad-
ened the preexisting antiharassment policy to include
union activity, i.e., lawful union solicitations. The Board
majority reasoned that the employer’s memorandum “did
not repeat or reproduce the language of the handbook,”
but “used its own broad, general language to describe the
conduct that was prohibited.” Id. at 1248. But the ma-
jority concluded that Boulder City Hospital “would be a
different case” had the employer acknowledged employ-
ees’ rights to engage in lawful union solicitations. Id. at
1249. This is that “different case.”
Here, the Respondent’s memorandum reiterated, cited,
attached, and incorporated by reference the lawful,
preexisting Policy without modification. Thus, unlike
the situation in Boulder City Hospital, the memorandum
did no more than remind employees of the Policy. The
Respondent’s memorandum also repeated language from
the Policy—threats, intimidation, and harassment—terms
for which the Policy provides examples. Finally, as dis-
cussed above, the Respondent’s memorandum acknowl-
edged employees’ Section 7 rights, stating: “While I
recognize that employees have a right to make up their
own minds regarding the union, and I respect the right
employees have to be for or against the union, these
rights do not give anyone the right to threaten or intimi-
date another team member, for any reason.” (emphasis
added). The memorandum in Boulder City Hospital con-
tained no similar language affirming employees’ Section
7 rights.3

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

3 The majority’s reliance on First Transit, Inc., 360 NLRB No. 72,
slip op. at 3–4 (2014), and Claremont Resort & Spa, 344 NLRB 832,
832 (2005), is misplaced. In First Transit, supra, slip op. at 3–4, the
Board found that policy language affirming employees’ rights to vote
for or against a union during an organizing campaign without manage-
ment interference failed to “clarify the scope of an otherwise ambigu-
ous and unlawful rule” not only because the right to engage in nonun-
ion concerted activity was omitted, but also because the “policy’s
placement in the [employee] handbook [was] neither prominent nor
proximate to the rules it purport[ed] to inform.” Here, the memoran-
dum’s language affirming employees’ rights to support or oppose the
Union was included on the same page as the language that the majority
finds unlawful. In Claremont Resort & Spa, supra at 832, the Board
merely applied the repudiation doctrine to conclude that an employer
failed to cure the illegality of an earlier work rule with a subsequent
notice to employees. By contrast, the Respondent’s memorandum
contemporaneously presented both the language affirming employees’
rights under the Act and the language the majority finds unlawful. The
Board’s repudiation doctrine is not at issue here.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1468
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT threaten you with job loss if you select
the Union as your bargaining representative, engage in
activities on behalf of the Union, or engage in protected
concerted activities.
WE WILL NOT announce and implement a reduction in
healthcare premiums and copays that excludes employ-
ees eligible to vote in the representation election.
WE WILL NOT show a video or presentation during an
election campaign containing employees’ images without
their consent and without a disclaimer stating that the
video or presentation is not intended to reflect the views
of the employees appearing in it.
WE WILL NOT issue a memorandum to employees post-
ed soon after a union organizing campaign and election
that employees would reasonably construe as modifying
our Workplace Violence Prevention Policy to prohibit
protected union activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL implement the January 1, 2012, reduction in
healthcare premiums and copays for our unit employees
who were eligible to vote in the representation election
but were specifically excluded from those benefits.
WE WILL make whole those unit employees who were
eligible to vote in the representation election but were
specifically excluded from the reduction in healthcare
premiums and copays available to our other employees.
WE WILL compensate our employees for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and WE WILL file a report with the Social Securi-
ty Administration allocating the backpay awards to the
appropriate calendar quarters for each employee.
WE WILL rescind our memorandum to employees enti-
tled “Teamwork and Dignity and Respect,” and WE WILL
provide assurances to you that the Workplace Violence
Prevention Policy is not intended to and will not be used
to interfere with your exercise of the rights listed above.
CARE ONE AT MADISON AVENUE, LLC D/B/A
CARE ONE AT MADISON AVENUE

The Board’s decision can be found at
www.nlrb.gov/case/22–CA–085127 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.

Laura Elrashedy, Esq., for the Acting General Counsel.
Jedd Mendelson, Esq. and James M. Monica, Esq. (Littler
Mendelson, P.C), for the Respondent.
Katherine H. Hansen, Esq. (Gladstein, Reif & Meginniss, LLP),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MINDY E. LANDOW, Administrative Law Judge. Based upon
charges in Cases 22–CA–085127 and 22–CA–089333 filed by
1199 SEIU, United Healthcare Workers East (Union), against
Care One at Madison LLC, d/b/a/ Care One at Madison Avenue
(the Employer, Respondent, or Madison Avenue), an Order
Consolidating Cases, consolidated amended complaint, and
notice of hearing (complaint) issued on March 4, 2013. The
complaint alleges that the Employer violated Section 8(a)(1)
and (3) of the Act by: threatening employees with job loss if
they selected the Union as their bargaining representative and
engaged in concerted, protected activity; announcing and im-
plementing a reduction in healthcare premiums and copays for
all employees except for those eligible to vote in an upcoming
representation election; showing an Employer-produced video
containing employee images during a mandatory meeting held
for employees and by issuing a memorandum reiterating the
Employer’s workplace prevention policy. Respondent filed an
answer denying the material allegation of the complaint and
raising several affirmative defenses which will be discussed, as
appropriate, below.1
1 As a preliminary matter, Respondent argues that any actions taken
by this Board, including its agents and delegates, lack authority because
the court in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013),
found the recess appointments of Members Sharon Block and Richard
Griffin were unconstitutional and invalid. Thus, the Board lacks a
quorum. The Respondent further contends that the Acting General
Counsel's appointment was unlawful. Respondent maintains that the
Acting General Counsel and Regional Director thereby lack the au-
thority to prosecute the complaint and that I am without authority to

CARE ONE AT MADISON AVENUE 1469
On March 29, 2013, pursuant to Section 102.35(a)(9) of the
Board’s Rules and Regulations, counsels for the Acting General
Counsel,2 the Employer, and the Union submitted Joint Motion
and Stipulation of Facts (Stipulation) to me wherein the parties
agreed to waive a formal hearing and requested that I make
appropriate findings of fact and conclusions of law and issue an
appropriate order based upon the submitted, stipulated record.
This record consists of the formal papers, a stipulation together
with supporting exhibits, a statement of issues presented, and
the parties’ respective statements of position. On April 3, 2012,
I granted the parties’ motion and approved the stipulation. I
also set a date for the filing of briefs.
On the entire record, and after considering the briefs filed by
the General Counsel, the Employer, and the Union, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Employer, a New Jersey limited liability company, op-
erates a nursing and rehabilitation facility in Morristown, New
Jersey. During the preceding 12 months, the Employer has
derived gross revenues in excess of $100,000 and has pur-
chased and received at its Morristown facility goods and sup-
plies valued in excess of $5000 directly from suppliers located
outside the State of New Jersey. The Employer admits and I
find that it is engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) and has been a healthcare institution with-
in the meaning of Section 2(14) of the Act.
It is also admitted, and I find, that at all material times the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Care One Management, LLC (Care One Management) pro-
vides management services to the Employer, as well as approx-
imately 20 other nursing and rehabilitation centers in New Jer-
sey.
Brian Karstetter was a Regional Director of Operations em-
ployed by Care One Management from January 9 to September
25, 2012. The Employer was one of the centers to which
Karstetter provided services. The parties have stipulated that
between January 9 and March 23, 2012, Karstetter was a super-
visor of the Employer within the meaning of Section 2(11) of
the Act and an agent of the Employer within the meaning of
Section 2(13) of the Act.
It is further stipulated that from January 26, 2012 to present,
George Arezzo has been the administrator at Madison Avenue
and is a supervisor of the Employer within the meaning of Sec-
tion 2(11) of the Act and an agent of the Employer within the
meaning of Section 2(13) of the Act.
proceed with a hearing and decide the matter. I reject these contentions
and observe that such arguments have been rejected by the Board for
the reasons stated in 2 Sisters Food Group, Inc., 359 NLRB 1527
(2013), Belgrove Post Acute Care Center, 359 NLRB 633, 633 (2013),
and Bloomingdale's, Inc., 359 NLRB 1015 (2013).
2 Hereafter referred to as the General Counsel.
B. The Representation Petition and Campaign
On January 23, 2012,3 the Union filed a petition for election
to represent the following unit of employees at Madison Ave-
nue in Case 22–RC–072946:

All full-time and regular part-time nonprofessional employees
including: all licensed practical nurses, certified nursing aides,
dietary aids, housekeepers, laundry aids, recreation aides, re-
storative aides, rehabilitation techs, central supply clerks, unit
secretaries, and receptionist.

A representation election was conducted on March 23. The
tally of ballots showed 57 ballots cast for and 58 ballots cast
against representation, with 1 challenged ballot. The Union
filed objections to the election and a postelection hearing was
held on May 18, 21, 23, 24, and 29, in Case 22–RC–072946.4
The Board upheld certain of the Union’s objections and, on
September 13, 2012, issued a Decision and Direction of Second
Election. The second election has not been held, due to the
pending unfair labor practice charges filed by the Union in the
instant case. On March 25, 2013, the Employer filed a motion
to vacate the Decision and Direction of Second Election.
C. The Alleged Threat of Job Loss
1. Facts
During the critical period, the Employer distributed numer-
ous leaflets to its employees.5 Of particular relevance to the
instant case is one entitled “Get the Facts! Know the Truth!
What the Union Won’t Tell You.”
The leaflet poses a series of questions to employees with a
choice of answers: “Yes” or “No.” The “No” choice is high-
lighted. Employees are asked the following questions (italics
and boldface are in the original):

Do you want to give an outsider over $300–$900 per year—
and then given them more money if they think that is not
enough?

Do you want to give outsiders the ability to charge you addi-
tional fees or assessments whenever they want?

Do you want to give outsiders the power to gamble with your
wages and benefits?

Do you want to give outsiders the power to jeopardize your
job by putting you out on strike?

Do you want to give outsiders the right to speak for you and
make binding decisions for you that could affect your future?

Do you want to give outsiders the right to have you fired if
you fail to pay your union dues?

3 All dates referred to going forward are in 2012, unless otherwise
indicated.
4 The parties have stipulated to the admission of the postelection
hearing record in Case 22–RC–072946 except for and excluding “At-
tachment 2” of Board. Exh. 1(e).
5 Mindful that there has been no certification of any particular bar-
gaining unit here, for ease of reference I will refer to those employees
eligible to vote in the election in Case 22–RC–072964 as “unit” em-
ployees.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1470
Do you want to give outsiders the right to trade away your
wages and benefits in bargaining as they see fit?

Do you want to give outsiders the authority to make you obey
their rules and orders?

Do you want to give outsiders the right to put you on trial and
punish you for breaking their rules?

The leaflet continues:

If your answer to any of these questions is NO—then you
know what to do when you vote in the election!

Vote NO and keep 1199SEIU out of our lives!

When you Get the Facts You Will Know the Truth! Vote
NO!

The General Counsel and the Union contend that one ques-
tion posed to employees: “Do you want to give outsiders the
power to jeopardize your job by putting you out on strike?”
constitutes an unlawful threat of job loss.
The Employer has argued, for reasons discussed in further
detail below, that the leaflet and the questions posed therein are
lawful. The Employer additionally points to the fact that, dur-
ing the campaign, employees were also shown a PowerPoint
presentation during educational meetings. The Employer does
not refer to any particular portion of this presentation but ar-
gues generally that it contained lawful communications to em-
ployees as to what could happen in the event of a strike. A
review of the PowerPoint presentation in evidence reveals a
number of slides containing the following communications to
employees relating to a possibility and effects of a strike:6
1199 SEIU’s Options When the Center Rejects
the Union’s Proposals in Bargaining
If the Center says “No” to 1199 SEIU’s proposals, the Union
does not have many options—
—It can give up and agree to the Center’s proposals;
—It can go back to the bargaining table; or
—It can take employees out on strike—jeopardizing
employee jobs, resident care and our Center
Reasons Why A Union Takes Employees Out on Strike
Unions sometimes take employees out on strike to
pressure employers in bargaining—to try to force employ-
ers to agree to Union’s unreasonable bargaining demands
Unions Have the Right to Take Employees Out on
Strike
1199 SEIU would not need any authorization from
Center to take employees out on strike—Union can call a
strike on its won
This is one area where Union can make a promise and
follow through—it can promise employees a strike if ne-
gotiations break down
Strikes are always a possibility when a union is around
The SEIU’s Strike Record 1002–1012
Over the past ten years, SEIU has had:
6 It should be noted that there is no contention that any of these
communications to employees are unlawful.
—Over 150 Strikes
—Over 65,000 employees out on strike; and
—Over 1,000,000 work days lost

The following three slides of the presentation list the
“1199SEIU Strike Record” including the facilities involved and
dates and durations of the strikes at those facilities.
The next series of slides shown to employees in this part of
the presentation are as follows:
The Center’s Rights During a Strike
Union’s right to strike is protected by law, but Center
would also have legal rights in event of a strike
Center would have the right:
—Not to pay striking employees who walk out on their
jobs and their residents
—Not to pay cost of Care One benefits for striking
employees
—To continue to operate the business

United States Supreme Court’s Position on
Replacement Workers
“. . . Nor was it an unfair labor practice [for the Com-
pany] to replace the striking employees with others in an
effort to carry on the business. . . .
“And he is not bound to discharge those hired to fill
the places of strikers, upon the election of the latter to re-
sume their employment. . . .”
NLRB v. McKay Radio & Telegraph
Center Can Immediately Hire Permanent
Replacement Workers
Law says that a center can immediately hire replace-
ment workers in event of an economic strike
No waiting period
Replacement workers can be hired permanently
Striking workers are then placed in a preferential recall
list and are recalled only if vacancies occur

The following four slides purport to summarize “Lost Earnings
From a Strike.”
There is then a series of five additional slides, as follows:
Hypothetical Strike—What Could Happen if 1199SEIU
Took Employees Out on Strike
Following failed negotiations, Union takes 75 employ-
ees out on strike
Ten weeks later, Union accepts Center’s last offer
While strike is ongoing, Center hires 50 permanent re-
placement workers
Fifty striking employees then have no jobs to return to
at end of strike
Striker’s names are placed on preferential recall list
and recalled only as openings occur
Disappointment, frustration and even violence can oc-
cur
Union’s Tactics to Get Employees Out on Strike
How does Union get employees out on Strike?

CARE ONE AT MADISON AVENUE 1471
Union builds up expectations by telling employees it
needs leverage at bargaining table to get Center to consid-
er Union’s demands
Union calls a strike vote
Once strike vote passes, Union has power to call strike
whenever it wants—without going back to employees for
further approval
Union Members Suffer Lost Income
While Strike is Ongoing
Striking employees do not receive paychecks while
they are on strike and strikers must pay full cost of any
Care One benefits they elect to continue receiving while
on strike
But Union officials keep getting paid out of Union cof-
fers—money paid in by Union members
Replacement Workers Are Always a
Possibility in a Strike
No one can predict what might happen in a strike
Whenever there is an economic strike, permanent re-
placements are always a possibility
No one knows how our residents, their families, or
medical community might react if there were a strike
We don’t know whether residents might leave or hos-
pitals or doctors might begin sending patients to a compet-
itor’s center
We do know that strikes create uncertainty and place
all our jobs at risk
Strikes Can Have Devastating Consequences
Strikes can jeopardize jobs of our employees
Strikes can impact quality and consistency of care we
provide our residents
Strikes can impact our employees and their families
who rely on our jobs
Strikes can damage our reputation and destroy our cen-
ter
There usually are no winners in a strike!
2. Analysis and conclusions
In Eagle Comtronics, 263 NLRB 515 (1982), the Board re-
viewed the rights of employees under Laidlaw Corp., 171
NLRB 1366 (1969), enfd. 414 F.2d 99 (7th Cir. 1969), as they
pertain to reinstatement in the event of a strike:

Specifically, striking employees retain the right to make un-
conditional offers of reinstatement, to be reinstated upon such
offers if positions are available, and to be placed on a prefer-
ential hiring list upon such offers if positions are not available
at the time of the offer.

Eagle Comtonics, supra at 515.
The Board reiterated the principle that an employer does not
violate the Act by truthfully informing employees that they are
subject to permanent replacement in the event of an economic
strike. Moreover, an employer may address the subject of
striker replacement without fully detailing the protections set
forth in Laidlaw, “so long as it does not threaten that, as result
of a strike, employees will be deprived of their rights in a man-
ner inconsistent with those detailed in Laidlaw.” Id at 516.
However, if a “statement may be fairly understood as a threat
of reprisal against employees or is explicitly coupled with such
threats” then the employer has coerced employees in the exer-
cise of their Section 7 rights under the Act.” Id. Threatening
employees that a strike will lead to job loss is unlawful because
it incorrectly conveys to employees that their employment will
be terminated as a result of a strike, whereas the law is clear
that economic strikers retain certain reinstatement rights. See,
e.g., Baddour, Inc., 303 NLRB 275 (1991).
The Employer argues that the leaflet in question, including
the portion specifically challenged by the General Counsel is a
lawful communication protected by Section 8(c) of the Act.7
The Employer further argues that its communications were
permitted statements of fact and opinion under NLRB v. Gissel
Packing Co., 395 U.S. 575, 617 (1969).8
In its posthearing brief, the Employer further contends that
the leaflet at issue merely points out the reality that a union
elected by employees has the authority to call a strike and that
the jobs of striking employees are in “jeopardy.” The Employ-
er makes the argument that the word “jeopardy” may alterna-
tively be construed to mean that (1) an employee risks the loss
of income if a strike is called because he or she is not working,
or (2) that the employee can lose his or her job during the strike
because the employer has the right to replace the employee.
The Employer argues that either interpretation is lawful be-
cause it is fact-based.
The Employer additionally asserts:

If the statement at issue were an opinion, it would remain
privileged and lawful. However, it is difficult to characterize
it as an expression of views or opinion. At most, it poses a
question and asks the employees to consider a possibility that
it is fact-based. However, nothing in it expressly or impliedly
contains a threat of job loss or is otherwise coercive.

In support of the foregoing contentions, the Employer relies
upon Airporter Inn Hotel, 215 NLRB 824, 825 (1974), where it
was alleged that the following statement was unlawful:

[R]efuse to sign any union authorization cards and avoid a lot
of unnecessary turmoil. You will always do better with us
without a union which can’t and won’t do anything for you
except jeopardize your job. If you want job security and a
good place to work under the best terms and conditions, reject
the union.

In that case, the General Counsel alleged that the paragraph
at issue violated Section 8(a)(1) because it admonished em-
ployees not to sign union cards lest they place their jobs in
jeopardy. The Board concluded that the statements in question
were neither instructions nor directions; nor did they contain
any unlawful threats or promises.
7 Sec. 8(c) provides as follows: “the expressing of any views, argu-
ment or opinion, or the dissemination thereof, whether in written, print-
ed, graphic or visual form, shall not constitute or be evidence of an
unfair labor practice . . . if such expression contains no threat of reprisal
or force or promise of benefit.”
8 In Gissel, the Supreme Court recognized that Sec. 8(c) “imple-
ments” the First Amendment’s right of free speech and that in regulat-
ing labor relations the Board must refrain from infringing on that right.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1472
There, the Board relied upon the fact that the offending para-
graph was part of a longer communication to employees where
the company’s owner, among other things: (1) told employees
that he was opposed to any union at the facility; (2) objected to
the union’s strategy of organizing one department at a time and
stated that all employees should be given the opportunity to
vote on the issue of union representation; (3) stated his lack of
respect for the union then organizing employees; (4) criticized
the union for not knowing about the industry; (5) expressed his
personal moral opposition to being required to sign a contract
with a union security clause; and (6) explained his legal right to
refuse to accede to union demands. It was in this context,
where the employer repeatedly stated his “views, argument and
opinions,” speech protected by Section 8(c), that the Board
found that the final paragraph “taken in the context of the entire
letter,” was not unlawful as it constituted permissible campaign
propaganda. 215 NLRB at 826.
As the Board also noted, if the challenged statements had
stood alone, they might well have been considered to be in-
structions or directions to employees, but they were not, in fact,
set forth alone and could not be read out of context. Id.
Respondent further relies upon Pennysaver & Ampress, Inc.,
206 NLRB 497 (1973). However, the Board’s conclusions in
that matter are inapposite for a number of reasons. There, the
General Counsel challenged several of the employer’s commu-
nications to employees in the face of a union organizing cam-
paign. One allegation concerned the following communication
to employees:

At that point the only way the union can enforce its demands
is by asking you to go out on a strike. Remember that there
can be no strikes if there is no union; there can be no loss of
income because of strikes or loss of income because of pay-
ment of dues if there is no union.

On the other hand, if you go out on strke [sic] for higher wag-
es and benefits, you will get absolutely no benefits from the
union while you are on strike. What is more, if there is a
strike we would not close down our operation for even one
day. We would expect that most of our employees would
continue working but in any event we would hire employees
to replace our present employees who strike. This is our right
under the law. We tell you this not as any threat, but to make
sure you are well informed before you bring this union in and
it is too late.

In Pennysaver, the General Counsel’s contention that the
above-quoted communications to employees were unlawful
was premised upon a related argument that the respondent had
also violated the Act by informing employees that it would
refuse to negotiate a union security clause, a mandatory subject
of bargaining. Thus, the General Counsel’s theory was predi-
cated upon a finding that any strike would be an unfair labor
practice strike. The Board rejected the General Counsel’s con-
tention that the employer’s statements about union security
were coercive and unlawful. Accordingly, it concluded that
there was no basis for the conclusion that any strike would be
caused by unfair labor practices and found, that in that context,
that the above-quoted communication to employees did not
contain a threat of loss of employment if the employees sup-
ported the union. As is apparent, there is little basis for com-
parison between Pennysaver and the instant case.
As regards the instant case, I find Respondent’s arguments,
as outlined above, unavailing. With regard to Respondent’s
attempt to parse or somehow explain alternate constructions of
the use of the word, “jeopardize” in the context of employee
jobs, I find such efforts fail to mitigate a violation of Section
8(a)(1). I conclude that there is no reasonable way to equate
the query: “Do you want to give outsiders the power to jeopard-
ize your job by putting you out on strike?” to a mere suggestion
that a strike could result in a loss of income. In addition, I note
that one of the suggested possible alternative interpretations of
the language at issue; i.e., “that the employee can lose his or her
job during the strike because the employer has the right to re-
place the employee,” directly links strikes to job loss and fails
to accommodate employees’ Laidlaw rights in any regard. As
will be discussed below, this is precisely the sort of communi-
cation to employees that the Board has found to be unlawful.
In further support of its contentions, Respondent argues that
the totality of the circumstances surrounding the flyer and its
dissemination render the allegation meritless. In particular, in
its posthearing brief, Respondent maintains that: “[s]upervisors
distributed the instant flyer to their employees. As with all
flyers distributed by the Employer during the campaign, super-
visors handed the flyer to employees, asked them to read it, and
told them they could approach the supervisor in the event they
had any questions regarding its content.” Had the method of
distribution and corresponding communications to employees
been of importance to Respondent’s case, it surely could have
sought to include such facts in the stipulated record. Here,
these assertions are an apparent afterthought and without sup-
port in the record submitted for my review. In any event, it is
the content of the communication and not its method of dissem-
ination which is at issue here.9
In River’s Bend Health & Rehabilitation Services, 350
NLRB 184 (2007), distinguished by both the General Counsel
and the Charging Party, the employer issued a letter stating, in
relevant part, that a strike, “puts each striker’s continued job
status in jeopardy.” The letter additionally explained that em-
ployees could choose whether or not to go on strike and that the
employer would hire replacement workers during the strike in
order to continue providing care to nursing home residents. A
Board majority found this communication not to be unlawful
because the employer did not threaten employees with perma-
nent job loss, but rather informed employees of the legal fact
that reinstatement may not be immediately available after a
strike. Id at 185. The majority emphasized that telling em-
ployees that their “job status” as opposed to “job” was in jeop-
ardy was more akin to stating that employees may have to wait
for a position to become available rather than suggesting that
their employment would be terminated. By contrast, where
employer statements convey to employees that in the event of
an economic strike their employment will be terminated, or are
otherwise contrary to their Laidlaw rights, they have been
found to constitute unlawful threats of discharge. Connecticut
9 I additionally note that this particular issue was not a subject of in-
vestigation in the underlying objections case.

CARE ONE AT MADISON AVENUE 1473
Humane Society, 358 NLRB 187, 220 (2012) (statement that
“some employees could even find themselves without a job
when the strike was over” impermissibly linked strike partici-
pation with job loss); Gelita USA, 352 NLRB 406, 406–407,
408–410 (2008); 356 NLRB 467 (2011) (three member panel)
(statement that economic strikers “would have no job protec-
tion if replaced” unlawful); Kentucky River Medical Center,
340 NLRB 536, 546–577 (2003) (statement by employer that if
there was an economic strike employees would be replaced,
and if and when the strike is over, if there was a position open
for them they would have a job but if there was no position for
them they would not have a job found unlawful); Fern Terrace
Lodge, 297 NLRB 8, 8–9 (1989) (“an employer has the legal
right to permanently replace the striking employees and the
replaced striker is not automatically entitled to his job after the
strike ends” similarly found to violate the Act). In certain cir-
cumstances, even where threats of job loss are accompanied by
lawful statements of an employer’s right to hire replacement
workers, they have been found to be unlawful. See, e.g., Con-
necticut Humane Society, supra, slip op at 34 (collecting cases).
In assessing the import of a statement describing employees’
Laidlaw rights in the event of an economic strike, the Board
will also consider whether such a statement is accompanied by
other threats or conduct violating Section 8(a)(1). See, e.g.,
River’s Bend, supra at 185.
In the instant case, in agreement with the General Counsel
and the Charging Party, I find that Respondent went beyond a
mere announcement of its right to replace striking employees.
The query to employees: “Do you want to give outsiders the
power to jeopardize your job by putting you out on strike?”
implied that job loss was a consequence of a strike and failed to
notify employees of any reinstatement rights to which they
might be entitled. Under Laidlaw, the jobs of striking employ-
ees are not necessarily “jeopardized.” To the contrary, as noted
above, employees “retain their status as employees” and they
have important reinstatement rights upon the departure of their
replacements. 171 NLRB at 1369–1370. Thus, Respondent
has characterized employees’ reinstatement rights “in a manner
inconsistent with those detailed in Laidlaw.” Eagle Comtron-
ics, supra, 263 NLRB at 516.
As the General Counsel has noted, the leaflet also fails to
distinguish between economic and unfair labor strikes. In the
latter instance, upon an unconditional offer to return to work,
unfair labor practice strikers are entitled to immediate rein-
statement to their former jobs or, if such jobs no longer exist, to
substantially equivalent positions, even if striker replacements
must be terminated to make room for the returning strikers.
Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278 (1956). In
the instant case, where the statement disseminated to employees
made no differentiation between economic and unfair labor
practice strikes, employees would reasonably believe that if
they engage in any sort of strike their jobs would be jeopard-
ized.
While the Employer contends that the educational meetings
utilizing PowerPoint presentations lawfully explained both
employee and employer rights in the event of a strike, such an
argument is unavailing. While it is the case that there was a
reference in the PowerPoint presentation, as set forth above, to
the fact that striking workers are placed on a preferential recall
list in the event vacancies occur, other slides linked strikes to
job loss without any explication of or reference to employees’
Laidlaw rights.10 Thus, the communications to employees
about their rights as set forth in the PowerPoint presentation
are, at best, equivocal and insufficient to counter the clear
threat of job loss communicated in the Employer’s leaflet to
employees.
More generally, I reject the Employer’s contention that be-
cause the leaflet in question was just one of many communica-
tions provided concerning the potential effects of strikes and
employee rights, that the information conveyed to employees
was consistent with its rights under Section 8(c) of the Act.
While there is no specific allegation that the PowerPoint
presentation exceeded the bounds of permissible communica-
tions to employees, this does not negate the obvious threat to
employees conveyed in the leaflet at issue. See Federated Lo-
gistics & Operations, 340 NLRB 255, 256 (2003) (citing Gis-
sel, 395 U.S. at 617) (“we must . . . consider the coercive im-
pact . . . that a particular employer statement can have even
when it is arguably mitigated by other employer statements
made at different times or places.”) Moreover, as will be dis-
cussed below, this threat did not occur in a context free from
other unfair labor practice violations. Id.
Accordingly, I find that by distributing a leaflet asking em-
ployees whether they wanted to “give outsiders the power to
jeopardize your job by putting you out on strike?” Respondent
has unlawfully threatened employees with job loss, in a manner
inconsistent with their rights under the law, in violation of Sec-
tion 8(a)(1) of the Act.
D. The Alleged Unlawful Announcement and Imple-
mentation of a Reduction in Health Care
1. Facts
As was stipulated by the parties, each of the various Care
One centers which are referred to in this record provides a
common health insurance plan for its employees, which is ar-
ranged through Care One Management. Effective January 1,
Care One Management made changes to employees’ health
insurance coverage that resulted, among other things, in re-
duced benefits and increased cost for all employees at each
center managed by Care One Management. As a result of these
changes, some employees of these facilities changed or dropped
their coverage.
In response to employee complaints about these changes to
the health insurance plan, Care One Management arranged
certain improvements to the common health insurance plan.
One improvement was a reduction in employee premiums,
which became effective March 23, and was retroactive to Janu-
ary 1. These improvements applied to all employees at facili-
ties in New Jersey managed by Care One Management, except
those employees who were eligible to vote in a union represen-
tation election.
10 In particular employees were told that: “[The union] can take em-
ployees out on strike—jeopardizing employee jobs, resident care and
our Center”; they were also advised that: “We do know that strikes
create uncertainty and place all our jobs at risk.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1474
On or about March 5, at each center, a common memoran-
dum, giving notice of these improvements was distributed to all
employees who were not eligible to vote in a representation
election. At facilities with no union campaign, the memoran-
dum was distributed to all employees. At Madison Avenue, a
copy of the memorandum was only given to employees who
were not eligible to vote in the election. A supervisor or man-
ager personally handed the memorandum to each employee
who was not an eligible voter in a closed envelope. The memo-
randum was not handed to eligible voters but was posted at the
Employer’s facility and was seen by some eligible voters prior
to the representation election.11 The memorandum posted at
the Employer’s Madison Avenue facility,12 issued by Adminis-
trator Arezzo announces as follows:

Three weeks ago I informed you that we were reviewing the
changes that were made to the 2012 health insurance benefits
and employee contribution rates. Our goal was to find a way
to provide quality health care coverage at more affordable
rates.

Our review is now complete. I am very pleased to announce
that we have been able to improve the medical insurance ben-
efits offered to you and, in most cases, lower the cost you pay.
The specific changes for 2012 include:

Revised Employee Contribution Rates

Employee contribution rates that increased more than 10%
from 2011 to 2012 will be reduced. The new rates will be no
more than 10% higher than the 2011 rates for the same plan
and coverage levels.

Arezzo’s memorandum also contains a chart showing em-
ployee contribution rates per pay period depending upon range
of coverage, plan type, and employee tier.
Employees are advised that the new rates will begin with the
March 23 pay date; that they will receive credits for the differ-
ence paid by them between January 2012 and the new rate; that
amounts paid for coinsurance and copays for many services
will be reduced and that there will be an open enrollment period
in May 2012. The memorandum concludes:

Before now our Center has been able to provide better medi-
cal insurance benefits at lower employee contribution rates
than many other employers. Every year that becomes more
difficult and in 2012 we tried to close the gap. We may have
moved too quickly. These changes and rollbacks will make
11 I note that, apart from the stipulated facts set forth above, and as
will be discussed below, the record further establishes that the Employ-
er utilizes the posting of memoranda as a method of communication
with its employees.
12 The memorandum was issued to: “All Office Clerical Employees,
Cooks, Registered Nurses, Dieticians, Physical Therapists, Physical
Therapy Assistants, Occupational Therapists, Occupational Therapy
Assistants, Speech Therapists, Social Workers, Staffing Coordina-
tors/Schedulers, Payroll/Benefits Coordinators, MDS Specialists, MDS
Data Clerks, Accounts Payable Clerks, Account Receivable Assistants,
Medical Records Clerks, Admissions Coordinators, Other Professional
Employees, Supervisors and Managers.” Thus, the memorandum by its
terms specifically excluded those classifications of employees eligible
to vote in the election.
our medical insurance benefits better and more affordable for
you.

Thank you for your continued dedication to providing excel-
lent resident care and for being part of our team.

The parties have stipulated that it was because of the pen-
dency of the representation election, to be held on March 23,
that the Employer did not notify eligible voters on March 5 that
they would receive the improvements in the health insurance
plan and that their employee contributions would be reduced on
March 23. It was further stipulated that the Employer did not
tell eligible voters why the health insurance improvements were
withheld or tell eligible voters that they would receive the bene-
fits after the election regardless of the outcome of the election.
The health insurance improvements were not raised by man-
agement at communication meetings with eligible voters.
However, there were other occasions during the critical period
when eligible voters complained to the Employer that the costs
of health insurance were too high and asked if they were going
to receive the improvements to the health insurance plan about
which employees who were not eligible voters had been noti-
fied. Arezzo responded by stating that he was not allowed to
discuss the issue with them at that time. This was the same
response the Employer gave during the critical period when
eligible voters asked whether the Employer could grant a spe-
cific benefit.
It is undisputed that unit employees failed to receive the im-
provements to their health insurance coverage as had been pro-
vided to other employees.
2. Analysis and conclusions
As a general rule, in deciding whether to grant benefits while
a representation petition is pending, an employer should decide
that question as it would if the union was not in the picture.
Great Atlantic & Pacific Tea Co., 166 NLRB 27 fn. 1 (1967);
Russell Stover Candies, Inc., 221 NLRB 441 (1975); Lampi,
LLC, 322 NLRB 502 (1996). Here, some 3 weeks prior to the
election, concerns raised by employees relating to a prior deci-
sion to alter their health insurance coverage were addressed and
remedied. The favorable changes were announced via memo-
randum to employees at all of the facilities managed by Care
One Management. At Respondent’s facility, in particular, the
announcement was not made to those employees eligible to
vote in the election, but the above-cited memorandum was
posted, and there can be no dispute that certain bargaining unit
employees saw it, knew that other employees were to be the
beneficiaries of these changes and raised this issue with the
Employer.
The Board has held that the withholding of systemwide ben-
efits from employees involved in union representation proceed-
ings, as is the case here, while granting the same benefits sys-
temwide to employees not involved in such proceedings vio-
lates Section 8(a)(3) and (1) of the Act. Noah’s Bay Area Ba-
gels, LLC, 331 NLRB 188 (2000); Associated Milk Producers,
255 NLRB 750, 755 (1981). There is an exception to this gen-
eral rule as follows:

[a]n employer may postpone such a wage or benefit adjust-
ment so long as “[makes] clear” to employees that the adjust-

CARE ONE AT MADISON AVENUE 1475
ment would occur whether or not they select a union and that
the “sole purpose” of the adjustment’s postponement is to
avoid the appearance of influencing the election outcome.

KMST-TV, Channel 46, 302 NLRB 381, 382 (1991) (citing
Atlantic Forest Products, 282 NLRB 855, 858 (1987).
By granting such assurances, unit employees are not left to
draw their own conclusions about why benefits are being with-
held or whether they will be provided at all. Here, the Employ-
er failed to inform its unit employees that the withholding of
improved health insurance benefits from them, benefits that
were known to have been granted to other employees that were
not involved in a union campaign, was temporary and would be
provided retroactively.
Respondent argues that granting the health benefit improve-
ments to unit employees would be incompatible with its obliga-
tions under NLRB v. Exchange Parts, 375 U.S. 405 (1964),
which requires an employer to strictly adhere to the status quo
during the so-called “critical period”—the period following the
filing of a petition and preceding an election. I do not agree
with this contention.
In Exchange Parts, supra at 409, the Court, making use of a
vivid and often-cited metaphor, held that an employer violates
Section 8(a)(1) by granting benefits to employees in order to
influence the outcome of an election:

The danger inherent in well-timed increases in benefits is the
suggestion of a fist inside the velvet glove. Employees are not
likely to miss the inference that the source of benefits now
conferred is also the source from which future benefits must
flow and which may dry up if it is not obliged.

In Exchange Parts, the Court addressed the situation before
it: the granting of benefits to employees. However, the ra-
tionale informing its holding is equally applicable here. Cer-
tainly, if an employer can coerce employees by granting bene-
fits, it can also achieve the same result by withholding them—
especially when it makes plain that other employees not in-
volved in seeking union representation have been awarded such
benefits. In such an instance the velvet glove wears thin and
the fist becomes even more apparent.
Consistent with this underlying principle, the Board has re-
peatedly held that due to the coercive effect of withholding of
benefits from bargaining unit employees while granting them to
others, an employer is required simply to proceed as if the un-
ion were not in the picture. Great Atlantic & Pacific Tea Co.,
supra at 29 fn. 1; Noah’s Bay Area Bagels, supra at 191; First
Student, 359 NLRB No. 120, slip op. at 5. When an employer
follows this course of action it, in fact, maintains the status quo,
in accordance with the rationale of Exchange Parts.
In Noah’s Bay Area Bagels, supra, a case presenting facts
similar to those at issue here, the Board found that the employer
violated Section 8(a)(3) and (1) by withholding systemwide
improvements in health insurance benefits from eligible voters
prior to a representation election. 331 NLRB at 189–190. In
that case, prior to the start of the union’s campaign, the em-
ployer reduced employee health care benefits. Due to employ-
ee dissatisfaction with the changes, the employer restored the
benefits that had been cut and announced and applied this resto-
ration to employees at all of the company’s stores except those
involved in an organizing campaign. The employer told unit
employees that they would be given more information regard-
ing benefits “at a later time.” The Board found that the em-
ployer had a legitimate business reason for the restoration of
the benefits and the timing of the announcement but that it had
no lawful basis to withhold the benefit from those employees
involved in the representation proceeding. Id. at 191. Because
the employer failed to tell all employees that the benefits would
be provided after the election, regardless of the outcome, the
withholding of benefits was found to be unlawful. Id.13
In defending its position here, Respondent has argued that
while Noah’s Bay Area Bagels, supra, and similar precedent
stand for the proposition that it “may,” in order to avoid creat-
ing the appearance of interfering with the election, provide
assurances to employees that benefits will be deferred regard-
less of the outcome of the election, such an announcement is
merely an option provided to employers and is not required. As
Respondent frames its argument, an employer may either (1)
make such an announcement to employees or (2) refuse to dis-
cuss and withhold benefits to avoid the appearance of interfer-
ing in the election. This is a false choice. In fact, what Board
precedent squarely holds is that the employer has either (1) the
option of proceeding as if the union was not in the picture
(which may require the preelection discussion of and granting
of benefits, depending upon the circumstances) or (2) providing
bargaining unit employees with the requisite assurances that
they will receive those benefits notwithstanding the outcome of
the election. In this instance, the Employer did neither.14
Here, the record establishes that at the Employer’s facility,
the memorandum announcing the changes to 2012 medical
insurance benefits explicitly limited these health care benefits
improvements to those employees who were not eligible to vote
in the upcoming election. There was no explanation as to why
the other employees, those in the petitioned-for unit, were not
included. Thus, it is apparent that such employees would rea-
sonably believe that they were being denied this benefit be-
cause of their union and concerted, protected activity. And, in
fact, such employees failed to receive this benefit—one that
was offered to all other employees. Accordingly, and con-
sistent with the above-discussed precedent, I conclude that by
the announcement of the implementation of systemwide health
insurance improvements, and the withholding of these im-
provements to unit employees, Respondent violated Section
8(a)(3) and (1) of the Act.
13 Respondent has argued that the record fails to establish that it
could dictate and control the timing of the improvements of the plan.
However, as the above-described Board law demonstrates, even in
those instances where an employer has a legitimate business reason for
the granting of benefits, and the timing of such a grant, the withholding
of benefits from employees because they are involved in a representa-
tion election is unlawful.
14 To the extent Respondent has further argued that adherence to
Board law places it in an untenable position, such an argument has been
rejected. See First Student, supra, slip op. at 5; Associated Milk Pro-
ducers, 255 NLRB at 755.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1476
E. The Mandatory Meeting and Video Slide Show
1. Facts
As was adduced during the hearing on the Union’s objec-
tions to the election, after the petition had been filed, the Em-
ployer held two to three staff meetings per week concerning the
Union. The Employer had retained the services of a firm called
“National Labor Consultant,” which is a labor consulting firm
hired to “educate” employees regarding the Union and its cam-
paign.
On or about March 21, the Employer conducted a mandatory
meeting with eligible voters. Present at this meeting were
Karstetter, Director of Recreation Sara Flaumenhaft, a National
Labor Consultant representative named Keith and a Creole
translator. At the objections hearing, Arezzo testified that this
meeting was intended to be the “culmination of the last time
[the Employer] could communicate before the election as to
how the Employer felt about not wanting to have a Union.”
During the meeting Arezzo told employees that he had been a
hospital and nursing home administrator for over 37 years and
that his management style would work better without a union.
He told employees that he wanted an environment where a
union was not involved, and asked employees to take a “leap of
faith” that he would be a fair administrator. He then asked
employees who had been working at the facility for 5 years to
stand up. They were then congratulated and applauded for their
commitment and longevity. Arezzo then did the same for those
employees with fewer than 5 years of employment.
After this occurred, the Employer presented, and the em-
ployees viewed, a slideshow entitled “We Are Family” which
included photographs of 112 eligible voters, 22 managers or
supervisors, and 24 employees who were neither supervisory
personnel nor eligible voters in the election. The slideshow
began with the printed message: “At Care One at Madison Av-
enue, we are more than staff. We are more than co-workers.
Like George said, We are Family.” As the parties have stipu-
lated, at no time during the mandatory meeting did the Employ-
er ask employees to communicate their views about the Union
or the election.
The parties have agreed that the photographs in the
slideshow were originally taken for three purposes: (a) a Valen-
tine’s Day activity, (b) a patient care program called “I-Care,”
or (c) posting on a glass-enclosed display in the living
room/visiting room of the facility. The photographs were taken
several weeks before March 21, 2012. No photographs were
taken of employees who declined or refused to be photo-
graphed. Photographs were taken of most Madison Avenue
personnel, including eligible voters, employees who were not
eligible voters, and supervisors and managers. The Employer
did not obtain consent(s) from the employees to have their im-
ages appear in the slideshow referenced in paragraph 13. The
slideshow contained no disclaimer of any kind.
The employee photographs at issue are, for the most part,
full-face photographs of smiling employees, rendering them
easily identifiable. Some photographs show employees holding
heart decals or making the shape of a heart with their hands.
The slideshow was set to a well-known recording of the song
“We Are Family” which played throughout.
At the conclusion of the slideshow, Arezzo asked the em-
ployees to vote “no,” and to give management a chance be-
cause, “we are family.” Everyone then stood up, applauded and
exited the room.
2. Analysis and conclusions
It is axiomatic that the decision as to whether or not to en-
gage in Section 7 conduct or union activity “is a protected right
with which an employer cannot interfere by compelling an
employee to participate in the dispute.” Dawson Construction
Co., 320 NLRB 116, 117 (1995) (compelling employee to hold
a reserve-gate sign unlawful because employee became “a visi-
ble instrument in the implementation of the employer’s deci-
sion to establish a reserve gate,” thereby participating in the
employer’s statement about the labor dispute); R.L White Co.,
262 NLRB 575, 588–589 (1982) (employer violated Section
8(a)(1) by offering and encouraging employees to wear pro-
company T-shirts on the day before a representation election); 2
Sisters Food Group, 357 NLRB 1816, 1818–1819 (2011) (find-
ing that employees were forced to make an observable choice
on whether they supported the union when presented with T-
shirts and beanies bearing the company logo when, under the
circumstances, employees would have understood them to be
campaign paraphernalia); Fresh & Easy Neighborhood Market,
Inc., 358 NLRB 537 (2012) (requiring employees to distribute
coupon flyer to customers apologizing for union handbilling
outside the respondent’s store unlawful).
In Allegheny Ludlum Corp., 333 NLRB 734 (2001), enfd.
301 F.3d 167 (3d Cir. 2002), the Board addressed the circum-
stances under which an employer is permitted to include the
images of its employees in campaign videos without having
solicited employee consent. The Board held that an employer
may include images of nonconsenting employees, “only if the
videotape, viewed as a whole, does not convey the message that
the employees depicted therein either support or oppose union
representation. . . .” Id at 745. However, under these circum-
stances, the evidence must additionally establish that: (1) The
employees were not affirmatively misled about the use of their
images at the time of the filming; (2) the video contains a
prominent disclaimer stating the video is not intended to reflect
the views of the employees appearing in it; and (3) nothing in
the video contradicts the disclaimer. Thus, viewed as a whole,
the video must not convey the message that employees depicted
therein either support or oppose union representation.
Respondent contends that Allegheny Ludlum is not control-
ling in the instant case because, viewed as a whole, the video
does not convey the message that employees depicted there
either support or oppose union representation. Respondent
maintains that the video did not contain any antiunion message
as it was designed to unite the work force in the common goal
of providing “top notch” resident care. Respondent further
argues that, even if I were to conclude that Allegheny Ludlum
controls, the allegation should be dismissed because it does not
convey the impression that anyone in it either supports or op-
pose unionization. I disagree with the foregoing contentions
CARE ONE AT MADISON AVENUE 1477
and find that they are not supported by the record evidence.15
As an initial matter, as has been stipulated, the video was
shown to employees in the context of a mandatory meeting,
where they were encouraged to vote no in the upcoming elec-
tion, to be held within a matter of days. It is hard to see how
Respondent’s contention that the video was meant merely to
encourage employees to provide “top notch” resident care is
supported by the underlying circumstances.
In Sony Corp. of America, 313 NLRB 420 (1993), cited in
Allegheny Ludlum, the Board found a violation where smiling
photographs of employees were included in a campaign video
without any comments by employees. The Board adopted the
ALJ’s finding that “a viewer could reasonably conclude that the
laughing and smiling photographs of unit employees whose
faces appear during the film . . . were meant to show support
for the antiunion message of the film as a whole.” Allegheny
Ludlum, supra at 738, quoting Sony at 429.
Here, while there was no explicit antiunion message in the
video itself, the Board has held, “literature or other material
need not contain an explicitly antiunion message in order to be
part of an employer’s campaign or otherwise implicate the em-
ployee’s right to decide whether to express an opinion or re-
main silent.” Tesco PLC, slip op. at 2 (“The key inquiry is
whether employees would understand the material to be a com-
ponent of the employer’s campaign”); see also 2 Sisters Food
Group, supra.
In the instant matter, the meeting in question was held 2 days
prior to the election and attended by management and consult-
ants hired to present the Employer’s antiunion campaign. The
expressed purpose was to encourage employees to vote against
the Union. The video expressed the Employer’s campaign
theme that the facility and its employees were “family” (as
opposed to “outsiders”),16 and clearly a part of the Employer’s
crusade to encourage employees to vote against union represen-
tation. In this regard, there were unambiguous “vote no” mes-
sages communicated to employees both before and after the
video was shown, and Arezzo reiterated the “we are family”
message at the meeting’s conclusion. Under all the circum-
stances I find that employees viewing the video would have
concluded that it was meant to be part of the Employer’s cam-
paign to encourage employees to vote against the Union.
Moreover, the photographs taken of the employees who ap-
peared in the video were taken for other purposes, and it is
undisputed that their permission was not sought before they
were included in this campaign material. Moreover, the video
15 Respondent makes further assertions not supported by the record.
In particular, it is contended many, if not most, of the photographs were
taken by an outside photography agency and the Employer was una-
ware of the reaction of many of the employees when asked to pose. In
any event, I do not see the relevance of these assertions inasmuch as
Respondent clearly had the opportunity to review the photographs prior
to their being included in the video and shown to employees. Moreo-
ver, it is undisputed that the permission of these employees to appear in
the video was never sought.
16 As has been demonstrated in material quoted above, the Employ-
er’s campaign literature repeatedly referred to the Union and its agents
as “outsiders.” In other leaflets, stipulated into evidence, union agents
were referred to as “salespeople” and “strangers.”
contained no disclaimer stating that the slideshow is not intend-
ed to express the views of the employees appearing in it. Ac-
cordingly, by showing the images of its employees in a cam-
paign video without following the safeguards required by the
Board in Allegheny Ludlum, Respondent violated Section
8(a)(1) of the Act.
F. The Reissuance of Respondent’s Workplace
Violence Policy
1. Facts
On or about March 26, 2012, 3 days following the election,
Arezzo posted a letter, entitled “Teamwork and Dignity and
Respect” as well as the Employer’s “Workplace Violence Pro-
tection” policy on the Employer’s employee bulletin board
where employees could review them.
Arezzo’s memorandum states as follows:

Now that the NLRB election is behind us, I was hoping that
everyone would put their differences behind them and pull to-
gether as a united team. Even though we may have had dif-
ferent opinions on the Union, I thought that after the election
we would treat each other with dignity and respect and reunite
our Madison Avenue facility. I was hoping we could let go of
our past differences and look forward, focusing all of our en-
ergy on making our Center the best it can be and providing
the very best Quality of Care and Customer Service possible.

Unfortunately, it appears that a few of our team members are
unwilling to do this. It also has been reported to me that a few
employees are not treating their fellow team members with
respect and dignity. I have even heard disturbing reports that
some of our team members have been threatened.

While I recognize that employees have a right to make up
their own minds about the union, and I respect the right em-
ployees have to be for or against the union, these rights do not
give anyone the right to threaten or intimidate another team
member, for any reason. CareOne at Madison Avenue has a
longstanding policy prohibiting threats, intimidation and har-
assment (Workplace Violence Prevention policy is attached).

I want everyone to be on notice that threats, intimidation, and
harassment will not be tolerated at CareOne at Madison Ave-
nue. We will enforce the Workplace Violence Prevention
policy to keep our workplace free from such improper con-
duct. Anyone engaging in such conduct will be subject to
discipline, and, depending on the facts of the situation, such
discipline may include suspension or discharge for a first of-
fense.

It is very disappointing that I have to post a memo warning a
few people that they will be disciplined if they threaten others.
Threats should never occur in a family environment where we
care about one another and should be treating each other with
dignity and respect.

To the vast majority of our team members, thank you for your
support and for being part of the CareOne at Madison Avenue
team—and family. And, thank you in advance for working
with me and our leadership team as we move our Center for-
ward and make it the best Center in the CareOne family.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1478
The Employer’s “Workplace Violence Prevention” policy
states as follows:

The Center is committed to maintaining a safe, healthy and
secure work environment, and preventing violence in the
workplace. Acts or threats of violence, including intimida-
tion, harassment and/or coercion, which involve or affect any
Center employee, Resident, volunteer, visitor and independent
contractor and anyone else on Center premises will not be tol-
erated. Violations of this policy may result in disciplinary ac-
tion, up to and including termination of employment and/or
legal action as appropriate.

Examples of workplace violence include, but are not limited
to, the following:

Threats or acts of violence occurring on Center premises, re-
gardless of the relationship between the Center and the parties
involved in the incident. Threats or acts of violence occurring
off Center premises involving someone who is acting in the
capacity of a representative of the Center. Threats or acts of
violence occurring off Center premises if the Center deter-
mines that the incident may lead to an incident of violence on
Center’s premises.

An employee’s unlawful or unauthorized possession or use of
a dangerous or deadly weapon, including but not limited to all
firearms, in the workplace is prohibited.

Specific examples of conduct that may be considered threats
or acts of violence under this policy include, but are not lim-
ited to, the following:

Threatening physical or aggressive contact toward another
person. Threatening a person or his or her family, friends, as-
sociates or property with physical harm. The intentional de-
struction of Center property or another’s property. Harassing
or threatening phone calls. Surveillance or Stalking. Veiled
threats of physical harm or like intimidation.

You are expected and encouraged to report any acts or threats
of physical violence including intimidation, harassment
and/or coercion which involve or affect the Center, or which
occur on Center premises to your Center Administra-
tor/Supervisor or the Regional Human Resources Department.
2. Analysis and conclusions
The General Counsel has alleged that the Employer violated
Section 8(a)(1) when, on or about March 26, it posted the
memorandum entitled “Teamwork Dignity and Respect” reis-
suing its “Workplace Violence Prevention Policy” in the con-
text of its employees’ recent union activities. It is also con-
tended that the “Workplace Violence Prevention Policy” is
itself facially overbroad and independently unlawful. Re-
spondent contends that the “Workplace Violence Prevention
Policy” withstands scrutiny both facially and as applied on
March 26. In this regard, Respondent argues that the plain
language of the policy establishes that its purpose is to ensure a
safe workplace and prevent workplace violence and that it ex-
plains in clear terms what sort of conduct is prohibited. Re-
spondent further argues that the policy does not restrict, and
cannot be read as to restrict employees from communicating
with any entity, including a union. Respondent additionally
contends that Arezzo’s memorandum related to reports of
threats against other employees which followed the election
and that employees would not reasonably read the memoran-
dum and the policy together to deter or chill employees in their
Section 7 rights.

a. The “Workplace Violence Prevention Policy”
is facially lawful
The General Counsel argues that employees would reasona-
bly construe the broad provisions of the Employer’s policy to
reach protected activity. It points to the language proscribing
“[a]cts or threats of violence, including intimidation, harass-
ment and/or coercion, which involve or affect . . . anyone.”
The General Counsel contends that employees would equate
harassment involving or affecting “anyone” to include a co-
worker engaged in union solicitation. In support of these con-
tentions, the General Counsel argues that the Board has held
that employees have the right to “engage in persistent union
solicitation even when it annoys or disturbs the employees who
are being solicited.” Ryder Truck Rental, Inc., 341 NLRB 761
(2006) (citing Bank of St. Louis, 191 NLRB 669, 673 (1971)).
The General Counsel further contends that by “expecting” and
“encouraging” employees to report any intimidation, harass-
ment, and/or coercion to a representative of management, the
Employer is inviting employees to report on union activities in
violation of Section 8(a)(1) of the Act.
An employer violates Section 8(a)(1) of the Act through the
maintenance of a workrule or policy if the policy would “rea-
sonably tend to chill employees in the exercise of their Section
7 rights.” Lafayette Park Hotel, 326 NLRB 824, 825 (1998),
enfd. mem. 203 F.3d 52 (D.C. Cir 1999). The Board has de-
veloped a two-step inquiry to determine if a workrule would
have such an effect. Lutheran Heritage Village-Livonia, 343
NLRB 646, 646–647 (2004). First, a rule is unlawful if it ex-
plicitly restricts Section 7 activities. Second, if the rule does
not explicitly restrict protected activities, it will nonetheless be
found to violate the Act upon a showing that: (1) employees
would reasonably construe the language to prohibit Section 7
activity; (2) the rule was promulgated in response to union
activity; or (3) the rule has been applied to restrict the exercise
of Section 7 rights. Id. at 647.
The Board has cautioned against “reading particular phrases
in isolation,” and will not find a violation simply because a rule
could conceivably be read to restrict Section 7 activity. Id. at
646–647 (“We will not conclude that a reasonable employee
would read the rule to apply to such activity simply because the
rule could be interpreted that way.”); see also Palms Hotel &
Casino, 344 NLRB 1363, 1368 (2005) (“We are simply unwill-
ing to engage in such speculation in order to condemn as un-
lawful a facially neutral workrule that is not aimed at Section 7
activity and was neither adopted in response to such activity
nor enforced against it.”
In Lutheran Heritage, supra at 647, the Board adopted the
position of the Court of Appeals for the District of Columbia
and, quoting Adtranz ABB Daimler-Benz Transp. N.A. Inc. v.
NLRB, 253 F.3d 19, 25 (D.C. Cir. 2001) stated: “Employees
have a right to a workplace free of unlawful harassment, and
CARE ONE AT MADISON AVENUE 1479
both employees and employers have a substantial interest in
promoting a workplace that is ‘civil and decent.’” 343 NLRB
at 648–649. In considering a rule against profane language, the
Board noted that, “employers have a legitimate right to adopt
prophylactic rules banning such language because employers
are subject to civil liability under federal and state law should
they fail to maintain ‘a workplace free of racial, sexual and
other harassment’ and ‘abusive language can constitute verbal
harassment triggering liability under state or federal law.’” Id.
at 647 (quoting Adtranz, 253 F.3d at 27).
The Board has applied the Lutheran Heritage standard in a
variety of circumstances, with differing results. In Palms Hotel
& Casino, supra, the rule at issue banned “any type of conduct
which is or has the effect of being injurious, offensive, threat-
ening, intimidating, coercing or interfering with fellow team
Members or patrons.” 344 NLRB at 1367–1368. Upholding
the rule, the Board explained that the sort of behavior specified,
like the profane language proscribed in Lutheran Heritage, was
not “inherently entwined” with protected activity. It further
noted, “Nor are the rule’s terms so amorphous that reasonable
employees would be incapable of grasping the expectation that
they comport themselves with general notions of civility and
decorum in the workplace.” Id. at 1368.
It appears from the above-cited cases that the Board will find
that language that concerns itself with severe or extreme behav-
ior such as prohibitions against abuse, intimation, and coercion
to be lawful and not “inherently entwined” with protected con-
duct. This is especially the case where the rule in question
provides specific examples of the sort of behavior it purports to
prohibit. See, e.g., Tradesmen International, 338 NLRB 460,
462–463 (2002), where the Board found a rule prohibiting
“statements which are slanderous or detrimental to the compa-
ny or any of the company’s employees” to be lawful. The
Board found that “employees would not reasonably believe that
the . . . rule applies to statements protected by the Act,” because
it was listed alongside examples of egregious misconduct such
as sabotage and racial or sexual harassment. Cf. Costco Whole-
sale Corp., 358 NLRB No. 106, slip op. at 1–2 (2012) (finding
employer’s policy prohibiting employees from making state-
ments “that damage the Company, defame any individual or
damage a person’s reputation” to be unlawful because the rule
had no “accompanying language that would tend to restrict its
application” to legitimate business concerns).
Based upon the record as a whole, I find that a reasonable
employee would not understand the Employer’s “Workplace
Violence Prevention Policy” to prohibit protected Section 7
activity. I note that the initial paragraph of the policy sets the
parameters of the rule. I find that a reasonable employee would
consider the references to “maintaining a safe, healthy and
secure work environment” as something an employer would
strive to achieve, to the benefit of all. Moreover, the expressed
lack of toleration for “acts of violence, including intimidation
harassment and/or coercion” concern those acts which an em-
ployer may reasonably expect will not occur in the workplace.
Further, the policy contains specific examples which explain
the type of “threats or acts of violence,” in a variety of situa-
tions involving the facility, its employees and other representa-
tives, which are prohibited. These include threats of physical
contact and physical harm, intentional destruction of property,
harassing or threatening phone calls, surveillance, and stalking
and veiled threats of physical harm. While it is the case that
“harassing or threatening phone calls” might be construed by
some to refer to protected Section 7 conduct, in the particular
context of the rule, it is difficult to draw such a conclusion.
And as noted above, the mere fact that an employee “could”
draw such an inference, is not sufficient to establish that a giv-
en rule is unlawful. Lutheran Heritage, supra; Palms Hotel &
Casino, supra.
Moreover, absent from the policy on its face are the sort of
ambiguous or amorphous terms which have been found by the
Board to reasonably suggest a prohibition on protected conduct.
See, e.g., HTH Corp., 356 NLRB No. 182, slip op. at 26 fn. 21
(2011) (rule banning “derogatory statements concerning any
employee, supervisor, the hotel and/or the parent corporation
found to infringe on Section 7 rights); KSL Claremont Resort,
Inc., 344 NLRB 832, 832 (2005) (finding rule that prohibited
“negative conversations about associates or managers” to be
unlawful because it would reasonably be construed to forbid
employees from discussing complaints about supervisors with
their coworkers). In Advance Transportation Co., 310 NLRB
920, 925 (1993), the Board similarly found a rule barring “har-
assment, intimidation, distraction or disruption of another em-
ployee” unlawful because “it is vague and ambiguous and so
overly broad as to fail to define permissible conduct thereby
fortifying Respondent with the power to define its terms and
inhibit employees from exercising their rights under Section 7
of the Act.”
The rule at issue here does not prohibit the sort of ambigu-
ously defined behavior which would be construed as curtailing
protected conduct. Rather, the policy contains sufficient exam-
ples and explanations of its purpose to enable a reasonable
employee to understand that it prohibits the sort of conduct
likely to lead to workplace violence or similarly egregious con-
duct and not Section 7 activity. Accordingly, in disagreement
with the General Counsel and the Charging Party, I find that the
Employer’s “Workplace Violence Prevention Policy,” when
read in its appropriate context, is not facially overbroad.
The General Counsel further objects to the policy’s require-
ment that employees report violations to members of manage-
ment. This, standing alone, does not render the policy unlawful
in the absence of other considerations. See Rivers Bend Health
& Rehabilitation Service, 350 NLRB 184, 187 (2007), where
the Board upheld a policy that required employees to “report
[harassment or threats] to management,” finding that this was
not tantamount to requiring employees to report protected ac-
tivity and could not reasonably be construed as such.
b. The posting of Arezzo’s letter in conjunction with the
reissuance of the Employer’s “Workplace Violence
Prevention Policy” violated Section 8(a)(1) of the Act
Here, I am not dealing with the facial challenge to the
“Workplace Violence Prevention Policy” but rather to the post-
ing of Arezzo’s memorandum to employees, which incorpo-
rated the policy by reference. The fact that the memorandum
referred to the “Workplace Violence Prevention” policy, which
I have found to be lawful standing alone, does not necessarily
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1480
warrant a determination that given the circumstances surround-
ing the reissuance of the policy, employees would understand it
to prohibit only lawfully proscribed conduct. As the Board has
found, the existence of a lawful work rule policy “is not a li-
cense for an employer to commit unfair labor practices in the
name of implementing that policy.” Boulder City Hospital, 355
NLRB 1, 2 (and cases cited at fn. 5) (2010).
Arezzo’s memorandum expressly refers to union activity and
specifically incorporates the policy by reference. Arezzo starts
off by stating, “Now that the NLRB election is behind us, I was
hoping that everyone would put their differences behind them
and pull together as a team. Unfortunately it appears that a few
of our team members are unwilling to do this. It has also been
reported to me that a few employees are not treating their fel-
low team members with respect and dignity. I have even heard
disturbing reports that some of our team members have been
threatened.” Arezzo goes on to state that although he “recog-
nizes the right of employees to be for or against the Union,”
“these rights to not give anyone the right to threaten or intimi-
date another team member for any reason.”
In this regard, I note that the record is devoid of evidence
that the “threats” referenced in Arezzo’s memorandum actually
occurred; that Respondent made any attempt to investigate any
such allegation, or that any employee was disciplined for vio-
lating the policy. Accordingly, I cannot conclude from the
record before me that Arezzo’s linking of his memorandum and
the policy to any nonprotected postelection discord among
employees was a truthful statement or, in fact, that any non-
protected conduct actually occurred. I conclude, therefore,
based upon its express terms and the absence of evidence to the
contrary, that the memorandum and accompanying posting was
a response to union activity in the manner which Lutheran Her-
itage Village contemplates.
Moreover, in context here, which includes a union organiz-
ing campaign accompanied by other unfair labor practices, I
conclude that employees would read the reissued policy in a
different light. The policy was reissued and posted almost im-
mediately after the conclusion of a close and apparently con-
tested union election, in the absence of any evidence of actual
threats, intimidation, or harassment. In this regard, I do not
find it determinative that the policy predated the election or the
Union’s campaign. Moreover, as the Board has held, it is not
sufficient to conclude that the memorandum and accompanying
policy could be interpreted as noncoercive if a contrary inter-
pretation is also reasonable. See Boulder City Hospital, supra
at 2 (citing Double D. Construction Group, 339 NLRB 303,
304 (2003) (“The test of whether a statement is unlawful is
whether the words could reasonably be construed as coercive,
whether or not that is the only reasonable construction.”).
Here, I find not only that Arezzo’s memorandum could be con-
strued as coercive, but that employees reasonably would find it
to be so. See Lutheran Heritage Village, supra at 647. This
conclusion is supported by Arezzo’s admonition, issued after a
direct reference to the NLRB election that, “these rights to not
give anyone the right to threaten or intimidate another team
member for any reason.” Such language, in my view expands
the parameters of the rule to implicate Section 7 protected con-
duct and, at the very least is sufficiently ambiguous to bring the
reissued policy within the ambit of an unlawful communication
to employees in that an employee would reasonably interpret it
to restrict Section 7 activity. See, e.g., Advance Transportation
Co., supra (rule unlawful due to vagueness, ambiguity, over-
breath, and failure to define permissible conduct thereby forti-
fying respondent with power to define its terms and inhibit
employees in exercising Section 7 rights).17
Thus, the reissuance of the “Workplace Violence Preven-
tion” policy, in conjunction with Arezzo’s memorandum, vio-
lates the Lutheran Heritage test in that it was promulgated in
response to union activity and employees would reasonably
construe the language of the workrule to prohibit Section 7
activity. Accordingly, by taking such action Respondent has
violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Care One at Madison Avenue LLC d/b/a Care One at
Madison Avenue (Respondent) is an employer within the
meaning of the Act.
2. 1199 SEIU, United Healthcare Workers East (Union) is a
labor organization within the meaning of the Act.
3. By distributing to its employees a leaflet entitled “Get
The Facts! Know the Truth! What the Union Won’t Tell
You,” Respondent threatened employees with job loss if they
selected the Union as their bargaining representative and en-
gaged in protected concerted activity, in violation of Section
8(a)(1) of the Act.
4. By announcing a reduction of healthcare premiums and
copays to all its employees except those who were eligible to
vote in the representation election in Case 22–RC–072946 (unit
employees), Respondent violated Section 8(a)(1) of the Act.
5. By implementing a reduction of healthcare premiums and
copays for all employees except unit employees, Respondent
violated Section 8(a)(3) and (1) of the Act.
6. By showing, during a mandatory meeting opposing union
representation, a video containing employees’ images without
their consent and without a disclaimer that the video did not
reflect the views of the employees appearing in it, Respondent
violated Section 8(a)(1) of the Act.
7. By issuing a memorandum to employees entitled “Team-
work and Dignity and Respect” together with Respondent’s
“Workplace Violence Protection” policy, Respondent violated
Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act, I recommend that Respondent be
ordered to post an appropriate notice to employees in order that
employees may be apprised of their rights under the Act, and
the Respondent’s obligation to remedy its unfair labor practic-
es. Having found that Respondent violated Section 8(a)(3) and
17 Additionally, in this context, the policy’s reporting requirement
takes on a different dimension. When a reporting requirement specifi-
cally addresses union-related or other protected activity, it runs afoul of
Sec. 8(a)(1). Arkema, Inc., 357 NLRB No. 103, slip op. at 8 fn. 8
(2011).

CARE ONE AT MADISON AVENUE 1481
(1) of the Act by withholding the implementation of a reduction
of health care premiums and copays to unit employees retroac-
tively to January 1, 2012, I recommend that Respondent be
ordered to implement the changed healthcare benefits and re-
imburse these employees for losses they suffered as a result of
Respondent’s decision not to provide these healthcare benefits
to them. This recommended make-whole order shall include
out-of-pocket losses, if any, suffered by any such employee as a
result of Respondent’s failure to implement the changes. The
sums paid to each employee shall include interest at the rate
prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). Respondent should also
be ordered to rescind its memorandum to employees entitled
“Teamwork and Dignity and Respect” and provide assurances
to employees that the “Workplace Violence Protection” policy
is not intended to and will not be used to interfere with their
rights under Section 7 of the Act.
[Recommended Order omitted from publication.]