Grane Healthcare Co. and/or Ebensburg Care Center LLC d/b/a Cambria Care Center, Single Employer

National Labor Relations Board - Board Decisions

Nov 30, 2011

357 N.L.R.B. 1412 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 123
1412
Grane Healthcare Co. and/or Ebensburg Care Center
LLC d/b/a Cambria Care Center, a single em-
ployer and Local Union No. 1305, Professional
and Public Service Employees of Cambria
County a/w the Laborers’ International Union
of North America

Grane Healthcare Co. and/or Ebensburg Care Center
LLC d/b/a Cambria Care Center, a single em-
ployer and SEIU Healthcare Pennsylvania,
CTW, CLC. Cases 06–CA–036791, 06–CA–
036803, and 6–CA–036915
November 30, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On December 16, 2010, Administrative Law Judge
David I. Goldman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
Acting General Counsel filed an answering brief. In ad-
dition, the Acting General Counsel and Charging Party
SEIU Healthcare Pennsylvania (SEIU) each filed limited
exceptions and a supporting brief, the Respondent filed a
brief answering the limited exceptions, and the Acting
General Counsel and SEIU each filed a reply brief.
The National Labor Relations Board has considered
the decision and the record1 in light of the exceptions and
briefs, and has decided to affirm the judge’s rulings,
findings,2 and conclusions,3 and to adopt the recom-
mended Order as modified below.4

1 We grant SEIU’s unopposed motion to correct the record by adding
page 40 to the Acting GC Exh. 18, which is SEIU’s last memorandum
of understanding with the Respondent’s predecessor, Cambria County,
Pennsylvania.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We affirm the judge’s conclusion that the Respondent did not un-
lawfully refuse to recognize SEIU as the collective-bargaining repre-
sentative of its nursing employees following the Respondent’s purchase
of the Laurel Crest nursing home from Cambria County, a public em-
ployer. The Acting General Counsel’s theory was that SEIU enjoyed a
continuing presumption of majority status for purposes of collective
bargaining under Federal labor law, notwithstanding the limited “meet
and discuss” nature of its prior relationship with the County under State
labor law covering public employers. On exceptions, SEIU contends
that page 40 of its last memorandum with the County contained “suc-
cessorship” language requiring the Respondent to recognize SEIU as
the nursing employees’ representative. SEIU also contends that a pre-
successorship employee petition directed to the Cambria County Board
of Commissioners demonstrates the nurses’ actual majority support for
SEIU. Both of these contentions, however, expand the Acting General
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below, and orders that the Respondents, Grane
Healthcare Co. and/or Ebensburg Care Center LLC d/b/a
Cambria Care Center, a single employer, Ebensburg,
Pennsylvania, their officers, agents, successors, and as-
signs, shall take the action set forth in the Order as modi-
fied.
1. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to recognize and bargain
with Local Union No. 1305, Professional and Public Ser-
vice Employees of Cambria County a/w the Laborers’
International Union of North America (Local 1305), as
the exclusive collective-bargaining representative of our
employees in the following appropriate unit:

Counsel’s theory of the alleged violation, and thus we do not pass on
them. See, e.g., Nott Co., 345 NLRB 396, 398 fn. 10 (2005); Kimtruss
Corp., 305 NLRB 710, 711 (1991).
Finally, we affirm the judge’s findings that the Respondent violated
Sec. 8(a)(3) and (1) by refusing to hire five of the predecessor employ-
er’s employees, four of whom were officials of Charging Party Labor-
ers Local 1305. In doing so, we find it unnecessary to rely on the
judge’s statement at sec. II,B,3 of his decision that the Respondent’s
disproportionate nonhiring of Local 1305 officials relative to nonoffi-
cials would be sufficient alone to establish unlawful motivation. Mem-
ber Hayes would not rely at all on the evidence of a disproportionate
hiring pattern to establish animus. He relies solely on the fact that the
Respondent’s explanation for its decision not to hire the five discrimi-
natees was pretextual.
4 Granting one of the Acting General Counsel’s limited exceptions,
we will add the full name of Laborers Local 1305 to the remedial no-
tice.
GRANE HEALTHCARE CO. 1413
The unit of nonprofessional employees more particular-
ly described in the collective-bargaining agreement be-
tween Cambria County and Local 1305 which expired
on December 31, 2008.

WE WILL NOT refuse to hire you because of your union
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL recognize and, on request, bargain with Local
1305 and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the bargaining unit.
WE WILL, within 14 days from the date of the Board’s
Order, offer Mark Mulhearn, Beverly Weber, Sherry
Hagerich, Joseph Billy, and Roxanne Lamer instatement
to the positions for which they applied or, if these posi-
tions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges.
WE WILL make Mark Mulhearn, Beverly Weber, Sher-
ry Hagerich, Joseph Billy, and Roxanne Lamer whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them less any net inter-
im earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusals to hire Mark Mulhearn, Beverly Weber,
Sherry Hagerich, Joseph Billy, and Roxanne Lamer, and
WE WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the refusals to
hire will not be used against them in any way.

GRANE HEALTHCARE CO. AND EBENSBURG
CARE CENTER, LLC D/B/A CAMBRIA CARE
CENTER

Patricia J. Daum, Esq., for the General Counsel.
Richard J. Antonelli, Esq. and John A. McCreary Jr., Esq.
(Babst, Calland, Clements & Zomnir, P.C.), of Pittsburgh,
Pennsylvania, for the Respondent.
Domenic A. Bellisario, Esq. (The Law Offices of Domenic A.
Bellisario), of Pittsburgh, Pennsylvania, for the Charging
Party Laborers’ Union.
Claudia Davidson, Esq. (Law Office of Claudia Davidson), of
Pittsburgh, Pennsylvania, for the Charging Party SEIU.
DECISION
INTRODUCTION
DAVID I. GOLDMAN, Administrative Law Judge. These cases
involve a company that acquired a nursing home that for many
years had been owned and operated by a county employer.
Principals of the company established a new entity for the pur-
pose of operating the nursing home. The new employer hired
most, but not all, of the employees who had worked for the
nursing home when it was county owned. The new employer
refused to recognize or bargain with the two unions that repre-
sented employees at the county nursing home.
The government alleges that the employer is a successor em-
ployer under National Labor Relations Board (Board) prece-
dent, and that its refusal to recognize and bargain with the un-
ions violates the National Labor Relations Act (Act). The gov-
ernment further contends that the employer’s decision not to
hire certain of county’s employees—specifically, certain em-
ployees who were officials of one union and another employee
who was active in attempting to assist her union in securing a
meeting with the new owners—was unlawfully motivated in
violation of the Act. Finally, the government alleges that the
buyer of the nursing home, which assists in managing the nurs-
ing home, along with the operating entity it established, are a
single employer under the Act’s precedents.
STATEMENT OF THE CASE
On January 8, 2010, Local Union No. 1305, Professional and
Public Service Employees of Cambria County a/w the Labor-
ers’ International Union of North America (Laborers or Local
1305) filed an unfair labor practice charge, amended May 24,
2010, against Grane Healthcare Co. (Grane) and/or Ebensburg
Care Center LLC temporarily d/b/a Cambria Care Center
(Cambria Care), docketed by Region 6 of the Board as Case 6–
CA–036791.
On January 15, 2010, SEIU Healthcare Pennsylvania, CTW,
CLC (SEIU) filed an unfair labor practice charge, amended
May 24, 2010, against Grane and/or Cambria Care docketed by
Region 6 of the Board as Case 06–CA–036803. On April 29,
2010, SEIU filed another charge, docketed by Region 6 as Case
06–CA–036915, which was amended by SEIU on June 30,
2010.
On May 28, 2010, based on an investigation into the charge
filed by the Laborers, the Board’s General Counsel, by the
Acting Regional Director of Region 6, issued a complaint and
notice of hearing against Grane and Cambria Care alleging
violations of the Act in Case 06–CA–036791. The complaint
alleged that Grane and Cambria Care constituted a single em-
ployer within the meaning of the Act, and that they unlawfully
failed and refused to recognize and bargain with the Laborers
as the collective-bargaining representative of a bargaining unit
of employees in violation of Section 8(a)(1) and (5) of the Act.
The complaint further alleged that Respondents unlawfully
refused to hire applicants Mark Mulhearn, Beverly Weber,
Joseph Billy, and Sherry Hagerich, in violation of Section
8(a)(1) and (3) of the Act.
On July 1, 2010, the Board’s Acting General Counsel, by the
Regional Director for Region 6, issued an order consolidating
Cases 06–CA–036803 and 06–CA–036915, and issued a se-
cond complaint against Grane and Cambria Care. Similar to
the complaint issued in Case 06–CA–036791, the complaint in
these consolidated cases alleged that Grane and Cambria Care
constituted a single employer within the meaning of the Act,
and alleged that Respondents unlawfully failed and refused to
recognize SEIU as the collective-bargaining representative of a
bargaining unit of employees, in violation of Section 8(a)(1)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1414
and (5) of the Act. The complaint further alleged that Re-
spondents unlawfully unilaterally implemented a change in job
duties in violation of Section 8(a)(1) and (5) of the Act. Final-
ly, the complaint alleged that Respondents unlawfully refused
to hire applicant Roxanne Lamer, in violation of Section 8(a)(1)
and (3) of the Act.
By further Order issued July 1, 2010, the Board’s Acting
General Counsel, by the Regional Director for Region 6, or-
dered that Case 06–CA–036791 be consolidated with Cases
06–CA–036803 and 06–CA–036915.
Respondents filed timely answers denying all violations of
the Act.1
A trial in these cases was conducted before me on July 21–
23, and August 16–19, 2010, in Ebensburg, Pennsylvania.
Counsel for the General Counsel, the SEIU, and Respondent
filed briefs in support of their positions by October 8, 2010. On
the entire record, I make the following findings, conclusions of
law, and recommendations.2
Jurisdiction
Respondent admits and I find that Grane provides manage-
ment services to operators of nursing homes, including Cambria
Care. Respondent admits and I find that Cambria Care has
been engaged in the operation of a nursing home in Ebensburg,
Pennsylvania, since January 1, 2010. The complaint3 alleges,
Respondent admits, and I find that during the 12-month period
ending December 31, 2009, Grane in conducting its business
operations derived gross revenues in excess of $100,000, and,
further, purchased and received at its Pennsylvania corporate
office products, goods, and services valued in excess of
$50,000 directly from points outside the Commonwealth of
Pennsylvania. The complaint alleges, Respondent admits, and I
find that based on a projection of its operations since on or
about January 1, 2010, Cambria Care in conducting its business
operations will annually derive gross revenues in excess of

1 Hereinafter, references to Respondent, without further delineation,
are to both Grane and Cambria Care collectively.
2 Counsel for the General Counsel moved, posthearing, to reopen the
record to receive Respondents’ amended answer, submitted July 16,
2010, in Case 06–CA–036791, and inadvertently not included in the
formal papers entered into evidence at the hearing as GC Exh. 1. This
motion, unopposed by any party, is granted and the amended answer is
added to the record as Jt. Exh. 7. In addition, on my own motion I
amend the transcript to correct the following minor errors:

PAGE LINE CHANGE
6 23 “mission” to “admission”
12 10 “alluded” to “alleged”
158 12 “acronym” to “anachronism”
209 3 Engle to Lengle
377 16 “80’s” to “90’s”
432 25 “not” to “my”
433 15 “1(18)” to “102.118”
617 5 insert “don’t” after “I” and before “watch.”
639 8 “Mr. Antonelli” to “Ms. Davidson”
852 1 “sense” to “text”
1088 15 “agree” to “degree”

3 References to the complaint are to the May 28, 2010 complaint is-
sued in Case 6–CA–36791 and/or to the July 1, 2010 complaint issued
in Cases 6–CA–36803 and 6–CA–36915.
$100,000, and further, will annually purchase and receive at its
Ebensburg, Pennsylvania facility goods valued in excess of
$50,000 directly from points outside the Commonwealth of
Pennsylvania.
The complaint alleges, Respondent admits (Tr. 8–9), and I
find that at all material times, the Laborers and the SEIU have
been labor organizations within the meaning of Section 2(5) of
the Act. The complaint alleges, Respondent admits,4 and I find
that at all material times, Grane and Cambria Care each has
been engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and that Cambria Care has been a health
care institution within the meaning of Section 2(14) of the Act.
The complaint alleges, Respondent denies, but I find, based on
the record evidence as a whole, as discussed below, in particu-
lar, the finding of single employer status, that at all material
times, Grane has been a health care institution within the mean-
ing of Section 2(14) of the Act.
Based on the foregoing, I find that this dispute affects com-
merce and that the Board has jurisdiction of this case, pursuant
to Section 10(a) of the Act.
Unfair Labor Practices
I proceed in three parts. In Part I, I consider the govern-
ment’s Section 8(a)(5) and (1) failure-to-recognize-and-bargain
allegations. This includes the allegations that Respondent vio-
lated the Act by the overall refusal to recognize and bargain
with the Laborers and the SEIU, as representatives of the bar-
gaining units those unions represented while the county operat-
ed Laurel Crest. For the reasons stated herein, I find that Re-
spondent violated the Act by its refusal to recognize and bar-
gain with the Laborers’ union, but not by its failure to recog-
nize and bargain with the SEIU.
In Part II, I turn to the issue of whether, as alleged by the
government, the failure to hire five employees, four of whom
were union officers active in the Laborers, and one of whom
was a SEIU-represented employee involved with the SEIU in
efforts to meet with Grane prior to the transition, was unlawful-
ly motivated and discriminatory in violation of Section 8(a)(3)
and (1) of the Act. As explained herein, I find that Respondent
violated the Act as alleged.
Finally, in Part III, I consider whether, as alleged by the gov-
ernment, Grane and Cambria Care constitute a single employer
under the Act, and, thus, are jointly and severally liable for any
unfair labor practices found. I conclude that they are.
Part I
The 8(a)(5) failure-to-bargain allegations
A. Laurel Crest and the Unions
Cambria County is in the Commonwealth of Pennsylvania.
It comprises the Johnstown, Pennsylvania, Metropolitan Statis-
tical Area.5 The county seat is the borough of Ebensburg. For

4 Pursuant to Board Rules and Regulation 102.20, “any allegation in
the complaint not specifically denied or explained in an answer filed
. . . shall be deemed to be admitted to be true and shall be so found by
the Board.”
5 Metropolitan Statistical Areas & Components, U.S. Census Bu-
reau, Population Division (December 2009).
GRANE HEALTHCARE CO. 1415
many years, until January 1, 2010, Cambria County owned and
operated the Laurel Crest Nursing and Rehabilitation Center
(Laurel Crest), a 370-bed nursing home located in Ebensburg.
The Laurel Crest employees were employees of Cambria
County. As a “public employer” within the meaning of the
Pennsylvania State Public Employe Relations Act (PERA), 43
P.S. § 1101.301(1), Laurel Crest and Laurel Crest employees
were subject to the PERA.
Since 1971, Local 1305 has been certified by the Pennsylva-
nia Labor Relations Board (PLRB) as the collective-bargaining
representative of a bargaining unit of Laurel Crest employees,
composed primarily of nursing aides, housekeepers, dietary
employees, maintenance employees, and other nonprofessional
employees. Pursuant to the PLRB’s certification, Cambria
County recognized Local 1305 as the exclusive collective-
bargaining representative of this unit of nonprofessional em-
ployees employed at the Laurel Crest facility. This recognition
has been embodied in a series of collective-bargaining agree-
ments, including the most recent collective-bargaining agree-
ment between Cambria County and Local 1305, which was
effective by its terms from January 1, 2005 to December 31,
2008. Negotiations for a successor agreement did not result in
an agreement.6
In 1986, the PLRB certified the predecessor to the SEIU as
“the exclusive representative” of a unit including the nursing
employees, “for the purpose of meeting and discussing with
respect to wages, hours and other terms and conditions of em-
ployment.7 Since 1986, this unit of nursing and certain other
employees at Laurel Crest has been represented by the SEIU or
its predecessor.
In a memorandum agreement between Cambria County and
SEIU, entered into January 2007, and in effect through Decem-
ber 31, 2009, Cambria County recognized the SEIU

as the exclusive representative of the employees of Laurel
Crest Rehabilitation and Special Care Center as certified by
the [PLRB] for the purpose of meeting and discussing with
respect to wages, hours and other terms and conditions of em-
ployment.
B. Grane and its Purchase of Laurel Crest
Acting through Grane Associates (owned by the same own-
ers as Grane), Grane owns, or owns controlling share of, and is
the managing member in, 11 Pennsylvania nursing facilities.
Grane manages the operations of all the Grane-related nurs-
ing facilities along with personal care facilities attached to cer-

6 The Laborers-represented bargaining unit is more particularly de-
scribed in the expired collective-bargaining agreement. Although that
agreement is not in the record, the parties stipulated that the bargaining
unit described therein is an appropriate unit for the purposes of collec-
tive bargaining within the meaning of Sec. 9(b) of the Act.
7 The precise unit certified by the PLRB was:
all full-time and regular part-time professional and nonprofessional
first level supervisors at Laurel Crest Manor including but not limited
to staff RN’s, charge Lpn’s, special clinic Lpn’s, assistant supervisors
in dietary and assistant supervisors in laundry; and excluding man-
agement level employees, supervisors above the first level of supervi-
sion, confidential employees and guards as defined in the [Pennsylva-
nia Labor Relations] Act.
tain of the nursing facilities. All of these Grane-related health
care providers are, according to Cambria Care’s filings with the
Commonwealth, under “common management, ownership
and/or control.” (GC Exh. 38.)
This model, wherein Grane provides management and other
services to Grane-related health care facilities, was repeatedly
referenced during the hearing as being part of Grane’s standard
business and operational model.
On or about September 11, 2009, Grane entered into an asset
purchase agreement with Cambria County for the purchase of
the Laurel Crest facility. The agreement was effective by its
terms at 12:01 am on January 1, 2010. Pursuant to this agree-
ment, the “Buyer” was “Grane Healthcare Co. or its affiliate.”
C. The Establishment of Ebensburg Care Center, LLC
d/b/a Cambria Care Center
Prior to the transfer of the Laurel Crest facility from the
county to new ownership, Grane established an entity to serve
as the operator of the facility. This new entity is Ebensburg
Care Center, LLC d/b/a Cambria Care Center (previously and
hereafter referred to as Cambria Care).8 Cambria Care was
formed October 5, 2009, for the purpose of operating Laurel
Crest.9 Grane Associates owns 99.5 percent of Cambria Care.
Trebro, Inc. owns 0.5 percent.
D. Cambria Care’s Assumption of the Operation
of the Laurel Crest Facility
Cambria Care assumed operation of the Laurel Crest nursing
home facility from the county effective January 1, 2010, and
since then has continued to operate the nursing home at this
facility. There was no hiatus in operations during the transfer.
The residents/patients of Laurel Crest became the resi-
dents/patients of Cambria Care on January 1, 2010.
Owen Larkin, who had been the assistant administrator at
Laurel Crest (the second highest management representative on
site) became, effective January 1, 2010, the administrator of the
facility, making him the highest ranking management official
on site at the Cambria Care facility. Al Daisley, who, as of
December 31, 2009, had been a nurse manager/supervisor at
Laurel Crest, became, as of January 1, 2010, the director of
nursing (DON) at the Cambria Care facility. Michelle Win-
ning, a nurse supervisor/manager at Laurel Crest, became the
assistant director of nursing on January 1, 2010. Nancy
McMahon, the assistant finance officer for the county at Laurel
Crest, became, effective January 1, 2010, the business office

8 Cambria Care Center is a fictitious name used by Ebensburg Care.
The official name of the new limited liability company is Ebensburg
Care Center, LLC. According to filings with the Commonwealth of
Pennsylvania, Cambria Care leases the facility from Ebensburg Associ-
ates, LLC, which is the owner of the facility and which is related
through common ownership and control.
9 A Certificate of Organization was filed with the Pennsylvania De-
partment of State on October 5, 2009, intended to be effective “upon
filing.” A signature card for a bank account in Cambria Care’s name
was executed December 10, 2009. A consent of members in lieu of
organizational meeting document was executed November 24, 2009,
intended to be effective as if approved at a members’ meeting Novem-
ber 1, 2009. An operating agreement for Cambria Care was entered
into by the members November 1, 2009.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1416
manager at the Cambria Care facility. The parties stipulate that
each of these individuals had the authority to discipline em-
ployees and/or effectively recommend such actions, in their
positions with Laurel Crest, and similarly, each has the authori-
ty to hire or fire or discipline employees, or effectively recom-
mend that these actions be taken, in their positions at the facili-
ty operated by Cambria Care. The parties stipulate that these
individuals are supervisors with the meaning of Section 2(11)
of the Act.
The parties have stipulated that as of January 1, 2010, Cam-
bria Care employed a substantial and representative compli-
ment of employees at the facility formerly known as Laurel
Crest. The parties further stipulated that as of January 1, 2010,
a majority of those employed by Cambria Care in positions
within the unit formerly represented by Local 1305 had been
employed by Cambria County at Laurel Crest. The parties also
stipulate that as of January 1, 2010, a majority of employees
employed by Cambria Care in positions within the unit former-
ly represented by SEIU had been employed by Cambria County
at Laurel Crest.
On December 23, 2009, Matthew Yarnell, from the SEIU,
wrote Leonard Oddo, Grane’s chief operating officer (and also
a vice president of Cambria Care), “on behalf of the nurses at
Laurel Crest.” In the letter, he requested recognition as the
exclusive collective-bargaining representative of a nurse unit,
and requested to schedule dates to bargain a successor labor
agreement. A response came, dated January 11, 2010, from
Respondent’s counsel. In the letter, counsel asserted that Cam-
bria Care was the new operator of the facility and that it did not
have “successor employer bargaining obligations with the Un-
ion.” Referencing the fact that Laurel Crest was owned and
operated by a public entity, counsel asserted that, as a result,
Laurel Crest was not an “employer” within the meaning of the
Act, “the Union was not a labor organization, since it did not
represent ‘employees’ of an ‘employer’ within the meaning of
the [Act],” and “Cambria Care is therefore not a successor em-
ployer” and, “[c]onsequently, Cambria Care will not recognize
and/or bargain a CBA with the Union.” This refusal to recog-
nize and bargain with the SEIU has been maintained by the
employer at all times to date.
By email dated December 30, 2009, Local 1305, through its
counsel, requested recognition from Grane as the exclusive
collective-bargaining representative of nonprofessional em-
ployees employed by Cambria Care at the facility formerly
known as Laurel Crest.
On about January 11, 2010, Grane, by letter, refused to rec-
ognize Local 1305 as the exclusive collective-bargaining repre-
sentative of a unit of nonprofessional employees. Cambria
Care has also refused to recognize Local 1305.
Analysis
The issue here is whether Respondent unlawfully refused to
recognize and collectively bargain with the Laborers and the
SEIU. Although much of the analysis of the duty to bargain
with the Laborers is the same as the analysis of the duty to bar-
gain with the SEIU, there is one very significant difference, as
discussed below. However, the relevant background precedent
is the same.
Section 8(a)(5) of the Act makes it “an unfair labor practice
for an employer . . . to refuse to bargain collectively with the
representatives of his employees, subject to the provisions of
section 9(a).” Section 9(a) of the Act, in turn, provides, in per-
tinent part:

Representatives designated or selected for the purposes of col-
lective bargaining by the majority of the employees in a unit
appropriate for such purposes, shall be the exclusive repre-
sentatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours
of employment, or other conditions of employment.

As Sections 8(a)(5) and 9(a) make clear, the support of a ma-
jority of employees within the bargaining unit for collective-
bargaining representation is the premise on which both exclu-
sive collective-bargaining representation rights of a union and
the employer’s duty to bargain rests. However, the Supreme
Court has also recognized that “[t]he object of the National
Labor Relations Act is industrial peace and stability, fostered
by collective-bargaining agreements providing for the orderly
resolution of labor disputes between workers and employers.”
Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 785 (1996).
“To such ends, the Board has adopted various presumptions
about the existence of majority support for a union within a
bargaining unit, the precondition for service as its exclusive
representative.” Id. at 785–786. As the Board explained in
Levitz Furniture Co. of the Pacific, 333 NLRB 717, 720 (2001):

Absent specific statutory direction, the Board has been
guided by the Act’s clear mandate to give effect to em-
ployees’ free choice of bargaining representatives. The
Board has also recognized that, for employees’ choices to
be meaningful, collective-bargaining relationships must be
given a chance to bear fruit and so must not be subject to
constant challenges. Therefore from the earliest days of
the Act, the Board has sought to foster industrial peace and
stability in collective-bargaining relationships, as well as
employee free choice, by presuming that an incumbent un-
ion retains its majority status.

Under long-settled Board practice and precedent, a union
that has been voluntarily recognized by an employer, or certi-
fied through an election process, as the exclusive collective-
bargaining representative a unit of employees, enjoys a pre-
sumption of majority support. This presumption is irrebutable
at certain times (e.g., within the first year after certification, or
during the life of a collective-bargaining agreement), and oth-
erwise in place unless overcome with requisite proof of loss of
majority support. The presumption of majority support elimi-
nates the need for a recognized union to prove its majority sta-
tus anew in order to compel the employer to recognize and
collectively bargain with it.
In Fall River Dyeing Corp v. NLRB, 482 U.S. 27, 39 (1987),
the Supreme Court endorsed the Board’s view that a union’s
presumption of majority support should continue where there
has been a change in employer. Indeed, the Court observed that
“[t]he rationale behind the presumptions [of majority support]
is particularly pertinent in the successorship situation”:

GRANE HEALTHCARE CO. 1417
[The union] has no formal and established bargaining rela-
tionship with the new employer, is uncertain about he new
employer’s plans, and cannot be sure if or when the new em-
ployer must bargain with it. While being concerned with the
future of its members with the new employer, the union also
must protect whatever rights still exist for its members under
the collective-bargaining agreement with the predecessor em-
ployer. Accordingly, during this unsettling transition period,
the union needs the presumptions of majority status to which
it is entitled to safeguard its members’ rights and to develop a
relationship with the successor.

482 U.S. at 39.
Extending the concepts it first articulated in NLRB v. Burns
Security Services, 406 U.S. 272 (1972), the Supreme Court in
Fall River Dyeing announced that

[w]e now hold that a successor’s obligation to bargain is not
limited to a situation where the union in question has been re-
cently certified. Where, as here, the union has a rebuttable
presumption of majority status, this status continues despite
the change in employers.

482 U.S. at 41.
Continuing its analysis, the Court in Fall River Dyeing ex-
plained that where a union enjoys a presumption of majority
status, the new employer’s duty to bargain turns on the satisfac-
tion of two further tests:

And the new employer has an obligation to bargain with that
union so long as the new employer is in fact a successor of the
old employer and the majority of its employees were em-
ployed by its predecessor.

Id.
As referenced by the Court in Fall River Dyeing, the ques-
tion of successorship “is primarily factual in nature and is based
upon the totality of the circumstances of a given situation.”
Fall River, 482 U.S. at 43. It “requires that the Board focus on
whether the new company has `acquired substantial assets of its
predecessor and continued, without interruption or substantial
change, the predecessor’s business operations.’” Id. (quoting
Golden State Bottling v. NLRB, 414 U.S. 168, 184 (1973)).
“Hence, the focus is on whether there is a `substantial continui-
ty’ between the enterprises.” Fall River, 482 U.S. at 43.
“Under this approach, the Board examines a number of fac-
tors: whether the business of both employers is essentially the
same; whether the employees of the new company are doing
the same jobs in the same working conditions under the same
supervisors; and whether the new entity has the same produc-
tion process, produces the same products, and basically has the
same body of customers.” Id.; Great Lakes Chemical Corp.,
280 NLRB 1131, 1132 (1986) (“In determining whether there
is a substantial continuity the Board has considered several
factors including employees, supervisors, employees, employee
skills and functions, business location, and equipment and types
of product lines”), affd, 855 F.2d 1174 (6th Cir. 1988). The
question of the substantial continuity of the enterprise is to be
analyzed primarily from the “employees’ perspective.” Fall
River, 482 U.S. at 43. In its analysis, the Board is mindful of
whether “`those employees who have been retained will under-
standably view their job situations as essentially unaltered.’”
Id. (quoting Golden State Bottling, 414 U.S. at 184); Vermont
Foundry, 292 NLRB 1003, 1008 (1989) (calling this “the core
question”); Derby Refining, 292 NLRB 1015 (1989), enfd. 915
F.2d 1448 (10th Cir. 1990).
Thus, successor status is an overwhelmingly factual inquiry
(Fall River, 482 U.S. at 43) and based on a comparison of the
operations of the old and new employer. In this case, it is not
seriously disputed—as a factual matter—and I find, that Cam-
bria Care is a successor to Laurel Crest. The Cambria Care
employees are, for the very most part, working the same jobs,
using the same work methods and equipment, in an enterprise
devoted to the same purpose—the operation of a nursing
home—for the same residents and patients, with many of the
same supervisors, as they did for Laurel Crest. Cambria Care
began operation of the nursing home without hiatus in opera-
tions, at the same facility, at the same location. This is, un-
doubtedly, what a successor looks like.
As set forth in Fall River, once it is determined that a re-
spondent is a successor employer, then the inquiry turns to “if
and when [the] duty to bargain arose.” 482 U.S. at 46. The
successor’s bargaining obligation chiefly turns on whether the
predecessor’s employees form a majority of its workforce.
Vermont Foundry, 292 NLRB at 1009. “As a general rule, the
relevant measuring day to determine if the Company employed
a majority of union members is the initial date it began operat-
ing.” Id. That was the case in Burns, where the successor be-
gan operating the day after the predecessor ceased operations
with a majority of its employees drawn from the predecessor’s
workforce. Burns, supra. “In other situations . . . there is a
start-up period by the new employer while it gradually builds
its operations and hires employees. In these situations, the
Board, with the approval of the Courts of Appeals, has adopted
the ‘substantial and representative complement’ rule for fixing
the moment when the determination as to the composition of
the successor’s work force is to be made.” Fall River, 482 U.S.
at 40.
In the instant case, the parties have stipulated that a substan-
tial and representative complement of employees was employed
by Cambria Care as of the first day of operations, on January 1,
2010. Thus, there can be no doubt that the date on which to
measure whether employees of the predecessor constitute a
majority of the successor’s workforce is January 1, 2010. And
the parties have stipulated that as of that date, a majority of the
Cambria Care work force (in each relevant bargaining unit) was
composed of former Laurel Crest employees. As of that date,
both the SEIU and the Laborers had already made a demand to
bargain on the management of the new facility.10
In defense to the application of the successorship doctrine,
Respondent does not contest the fact of the substantial continui-
ty between its facility and the Laurel Crest facility operated by

10 I note that In Fall River Dyeing, the Court also approved the
Board’s “continuing demand” rule, which provides “when a union has
made a premature demand that has been rejected by the employer, this
demand remains in force until the moment when the employer attains
the ‘substantial and representative complement.’” Fall River Dyeing,
482 U.S. at 43.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1418
the county. Nor does it question the stipulated fact that a ma-
jority of its work force (in each unit) is composed of former
Laurel Crest employees. Rather, Respondent’s defense is root-
ed in its contention that, as a matter of law, it may not be found
to be a successor employer where, as here, the predecessor was
a public employer, not covered by or subject to the Act. In
Respondent’s view, because the SEIU and the Laborers did not
represent Laurel Crest employees pursuant to or under the aegis
of the Act, the successorship doctrine is inapplicable and the
question of its bargaining obligation must be analyzed and con-
sidered as it is when a union newly seeks to represent employ-
ees under the Act. According to Respondent, the duty to bar-
gain under state law that existed at Laurel Crest cannot “trans-
fer” to Cambria Care under the Act.
I believe that Respondent’s defense misconceives the issue
and the Board’s successorship doctrine. This case is not about,
as Respondent asserts, the Board “enforc[ing] legal obligations
that arose before the Act as applicable to the parties and that do
not have their origins in the Act.” (R. Br. at 5). Rather, the
issue is whether Cambria Care had a duty on January 1, 2010,
to recognize and bargain with the SEIU and/or the Laborers.
Given the fact of continuity of operations (successorship)
and the fact that a majority of its workforce are former Laurel
Crest employees, the question of Respondent’s bargaining obli-
gation turns—not at all on whether the predecessor Laurel Crest
was a public employer, but—on whether a presumption of ma-
jority support by employees for the unions to serve as collec-
tive-bargaining representative is applicable to the unions bar-
gaining demands.
It is the application of this presumption of majority support
that is the issue. And under settled principles the Board deter-
mines whether the application of majority support applies based
on whether a collective-bargaining representative was previous-
ly elected or recognized. As the Board has explained, “it is
clear from the Supreme Court’s opinion in Fall River that the
usual presumptions of majority status inherent in Board law
apply in successorship situations to ensure stability in collec-
tive-bargaining relationships. Such presumptions include those
that flow from voluntary or historical recognition and contrac-
tual relationships.” Lincoln Park Zoological Society, 322
NLRB 263, 265 (1996) (citations omitted), enfd. 116 F.3d 216
(7th Cir. 1997). Neither law nor logic requires that this original
demonstration of majority support have been exhibited under
the Act. Board precedent is unequivocal in this regard.11 In-

11 Van Lear Equipment, Inc., 336 NLRB 1059, 1064 (2001) (“the
successorship doctrine continues to apply even though the predecessor
[ ] is a public employer.”); University Medical Center, 335 NLRB
1318, 1332 (2001) (“The fact that Respondent, a private, nonprofit
enterprise took control of . . . a public sector employer owned and
operated by [a ]county . . . does not change the normal rules of succes-
sorship.”), enfd. in relevant part 335 F.3d 1079 (D.C. Cir. 2003); Sie-
mens Technologies, Inc., 345 NLRB 1108, 1113 (2005) (“The mere fact
that the employing entity changes from a governmental unit, or public
sector employer, such as a State or county, to a private sector employ-
ing entity does not mean the new employer—the private sector employ-
er—is not a successor.”); Dean Transportation, Inc., 350 NLRB 48, 58
(2007) (“The Board has applied this [substantial continuity] test even
deed, Respondent’s argument has been specifically rejected by
the Board. Lincoln Park Zoological Society, supra; JMM Op-
erational Services, 316 NLRB 6, 11 (1995).
With regard to the bargaining unit represented by the Labor-
ers, the presumption of majority support is unremarkable,
stemming from Laurel Crest’s years of recognition of the La-
borers as the unit’s collective-bargaining representative, and
that recognition, in turn, having been based on certification
after an election conducted in the unit in which a majority of
the employees chose the Laborers as their exclusive collective-
bargaining representative. There is no basis in the record to
rebut the Laborers presumption of majority support.12
However, the presumption of majority support for the SEIU
poses a more difficult question. It is not that SEIU’s support by
a majority of employees is in question—it was certified by the
PLRB after a secret-ballot election and continued, without inci-
dent or display of dissatisfaction, as far as the record shows, to
represent the Laurel Crest unit and sign memoranda with the
employer until the transfer of operations. But, while the basis
to presume majority support in the SEIU unit is sound, the
question must be asked, majority support for what?
As Respondent stresses, SEIU was not certified as, and did
not act as, the bargaining unit’s “collective-bargaining” repre-
sentative. As recited in the PLRB’s order of certification, SEIU
amended its original petition seeking to represent the employ-
ees for collective bargaining to reflect “that the employe[e]s
involved are first level supervisors and that the unit petitioned
for is a meet and discuss unit.” After an election to ascertain
employee sentiment on being represented in a “meet and dis-
cuss” unit, in January 1986, the Union was certified as the “ex-
clusive representative” of the unit employees “for the purpose
of meeting and discussing with respect to wages, hours and
other terms and conditions of employment.”
This “meet and discuss” status is foreign to the Act. A crea-
ture of state law, its statutory basis is in section 704 of the
PERA, and it is an alternative to and distinct from collective
bargaining. It is an effort to provide representation—but not
collective-bargaining rights—to front line supervisory employ-
ees. Section 704 of the PERA states:

Public employers shall not be required to bargain with units
of first level supervisors or their representatives but shall be
required to meet and discuss with first level supervisors or

where, as here, the predecessor is a public entity.”), enfd. 551 F.3d
1055 (D.C. Cir. 2009).
12 I note that the PERA, 43 P.S. § 1101 et seq., under which the La-
borers and the SEIU received their certifications, provides essentially
the same safeguards for employee free choice as the Act. Absent certi-
fication based on voluntary recognition by an employer, certification
requires a secret ballot election. 43 P.S. § 1101.605). The PERA also
provides for the filing of decertification petitions. 43 P.S. § 1101.607.
Many of the provisions of the PERA are clearly modeled upon the Act
(compare, e.g., Section 7 of the Act to Section 401 of the PERA). As
the Pennsylvania Supreme Court has explained, “our Court has not
hesitated to consider, and to follow, federal interpretation of the NLRA
due to the similarity between the federal labor law and our own laws
dealing with labor relations.” Commonwealth of Pa. Office of Admin-
istration v. Pennsylvania Labor Relations Board, 916 A.2d 541, 550
(2007).
GRANE HEALTHCARE CO. 1419
their representatives, on matters deemed to be bargainable for
other public employees covered by this act.

43 P.S. § 1101.704. (Emphasis added.)
Section 301(17) of PERA defines “meet and discuss” as:

[T]he obligation of a public employer upon request to meet at
reasonable times and discuss recommendations submitted by
representatives of public employees: Provided, That any deci-
sions or determinations on matters so discussed shall remain
with the public employer and be deemed final on any issue or
issues raised.

43 P.S. § 1101.301(17).
Thus, selected to represent employees under Section 704 of
the PERA, the SEIU was not a collective-bargaining repre-
sentative for the employees. No duty to collectively bargain
was imposed upon the public employer Laurel Crest. Rather,
the employer was required to engage in a process of consulta-
tion in which, at all times, the employer retained the right of
unilateral and final decisionmaking. By the terms of the PERA,
SEIU could not enter into enforceable agreements with Laurel
Crest. Rather, SEIU entered into “memoranda,” which by their
terms13 and as a matter of state law,14 cannot be enforced by the
union or employees.
This history of “meet and discuss” representational status—
with no history of collective-bargaining representational sta-
tus—provides no grounds on which to presume majority em-
ployee support for the SEIU to be the employees’ collective-
bargaining representative. This history would provide a basis
to find a presumption of majority employee support “meet and
discuss” representation, but the concept, as noted, is foreign to
the Act and not a finding sought by the General Counsel.

13 Art. 22.8 of the most recent memorandum states:
Cambria County intends to abide by the provisions set forth in this
Memorandum in good faith, but reserves its right under Section 704 of
Act 195 (43 P.S. Section 1101.704) to alter those provisions prospec-
tively at any time after meeting and discussing such changes with the
Union.
14 In Pennsylvania Association of State Mental Health Physicians v.
PLRB, 125 Pa. Commonwealth Ct. 276, 282–283, 557 A.2d 825, 827–
828 (1989) (quoting, Independent State Store Union v. Pennsylvania
Labor Relations Board, 119 Pa. Commonwealth Ct. 286, 293–294, 547
A.2d 465, 469 (1988)), the Pennsylvania Commonwealth Court ex-
plained:
The Memorandum [of Understanding] . . . represents a memorializa-
tion of the views arrived at by the public employee labor organization
and the public employer after discussion as to what would be sound
policy for the employer to adopt with respect to issues affecting first-
level supervisory employees. This is so despite the fact that the public
employer is not bound to accept the proposal contained in the Memo-
randum, and the public employees union has no right to insist the pub-
lic employer implement such proposals. See Independent Association
of Pennsylvania Liquor Control Board Employees v. Commonwealth,
35 Pa. Commonwealth Ct. 133, 384 A.2d 1367 (1978). Memoranda
of understanding are viable not because such documents are legally
binding upon the public employer, since they are not, id., but because
the public employer makes a good-faith effort to resolve matters af-
fecting the public employer’s first-level supervisory employees in a
manner agreeable to such employees.
I stress that the issue here is not that the unit employees were
or are supervisors. I do not reach the issue. The fact that they
were certified as part of a front-line supervisors unit by the
State in 1986 does render the circumstances of this case unusu-
al, but it is not a point on which I am relying. The issue is not
whether anyone in the unit is or was a supervisor, but the fact
that the SEIU-represented employees were not represented for
purposes of collective bargaining, and the employees did not
express support for such representation.
This issue is not free from doubt. After all, the SEIU was
chosen and certified as the “exclusive representative” of the
unit employees with respect to conditions of employment. In
other words, the SEIU functioned something like a collective-
bargaining representative for these employees. The employees
chose this representation and there is no indication that they do
not wish to continue to be represented. And in this regard, the
Board has never required that for a presumption of majority
support to be applied in the successorship situation to a union
previously operating in the state law context, that the union and
employees must have been entitled under state law to exercise
the full panoply of rights available under the Act. Many public
employees and their unions are barred from striking to enforce
their collective-bargaining demands. Many public employee
unions and employers are free to collectively bargain over only
a limited range of subjects, with the rest being established by
statute or other legislative or administrative process. This has
not been deemed significant. The presumption of majority
support could be applied because the union had been—without
regard to the specific range of rights permitted under state
law—selected and/or designated as the employees’ collective-
bargaining representative.
Here, however, we confront a state law context, and a un-
ion’s representation of employees, that explicitly and affirma-
tively did not involve representation for purposes of collective
bargaining, even while the state law recognizes collective bar-
gaining representation as an available option for many employ-
ees.
Thus, the SEIU was not recognized by Laurel Crest as the
employees’ collective-bargaining representative. The SEIU-
represented employees were not represented for purposes of
collective bargaining. They did not vote for collective-
bargaining representation, and did not, as far as the record
shows, express support for collective-bargaining representation.
Accordingly, there is no basis on which to presume majority
support for collective bargaining. The SEIU did not have col-
lective-bargaining representative status and, although Cambria
Care is a successor employer to Laurel Crest, majority employ-
ee support for collective-bargaining representation may not be
presumed.
I find that by failing to recognize and bargain with the La-
borers unit, Respondent violated the Act, as alleged. I will
dismiss the allegations that Respondent unlawfully failed to
recognize and bargain with the SEIU-represented unit.15

15 Given my conclusion, I also dismiss the allegation that Respond-
ent violated the Act by unilaterally implementing IV therapy training,
and, arguably, began the process of adding IV therapy duties to the
work regimen of licensed practical nurses (LPNs). Given my conclu-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1420
Part II
The 8(a)(3) Refusal-to-Hire-Allegations
The government alleges that Respondent’s failure to hire five
Laurel Crest employees was unlawfully motivated. The five
employees are: nurse’s aide Mark Mulhearn, who was the busi-
ness manager of Local 1305; first floor unit clerk Sherry
Hagerich, who was Local 1305’s president; nurse’s aide Joseph
Billy, who was Local 1305’s vice president; LPN Roxanne
Lamer; and business office employee Beverly Weber, who was
Local 1305’s secretary-treasurer.16 Each of the five were long-
time Laurel Crest employees.17 Of the group, Lamer was the
only SEIU-represented employee and she was not an officer of
the SEIU local. However, she had been active in SEIU efforts
to meet with Grane and with county officials regarding the
transfer of operations. Along with an SEIU official, Lamer had
traveled to Grane headquarters in Pittsburgh in an unsuccessful
effort to meet with Oddo.
A. Background
Grane and some of its personnel had familiarity with the
Laurel Crest workforce from 2003, when Grane managed the
facility for a six-month period. Around this same time, Grane
unsuccessfully attempted to purchase Laurel Crest from the
county, coming close enough to begin considering and offering
employment to Laurel Crest employees. In 2003, the Unions
publicly opposed the sale to Grane and wanted the county to
retain ownership and operation of the facility. Union-initiated
legal action sought to stop the sale of the facility. The sale did
not occur.
In 2009, according to Laborers business manager and Laurel
Crest employee Mark Mulhearn, Local 1305 publicly took the
position that “[w]e were not for the sale at all.” In August, the
Local and Mulhearn went to commissioners’ meetings and
talked about the sale. After August, union counsel and a union
official from Pittsburgh attempted to set up meetings about the
sale. The Local’s activities around the sale were reported in the
area newspapers and on television news. According to SEIU-
represented employee Roxanne Lamer, in 2009 her union did
not oppose the sale outright to Grane. However, public “infor-
mation pickets” and rallies were held in an effort to discuss
issues with the county commissioners relating to the sale and
the labor issues surrounding it.
Grane officials (or officials from Grane-controlled compa-
nies) were responsible for staffing and hiring employees for
Cambria Care, which, as discussed, assumed operations from
Laurel Crest on January 1, 2010. Most Laurel Crest employees
applied to work at Cambria Care. Most, but not all, who ap-
plied were hired. The vast majority (perhaps all) of the Cam-

sion, I do not reach the issue of the appropriateness of the SEIU-
represented unit or the employer’s defense that certain unit positions
were supervisory.
16 The Local 1305 officials are identified by the position they held as
of December 31, 2009. Each held other positions over the years, as
discussed below.
17 Lamer had the least service. She had worked at Laurel Crest since
2004. The other alleged discriminatees each had between 15 and 22
years of service.
bria Care employees hired as of January 1, 2010, were employ-
ees of Laurel Crest the day before.
Grane representatives performed the initial hiring of Cam-
bria’s Care’s work force in December 2009. The record is
replete with assertions from Grane personnel, including chief
operating officer Oddo and Beth Lengle, Grane’s vice president
of nursing, that the assumption of the operation of the Laurel
Crest facility on January 1, 2010, including the hiring of em-
ployees in December 2009, proceeded in a manner “no differ-
ent than any other entity we manage.” According to Beth
Lengle, who, as described below, played a central role in the
hiring, at Cambria Care, “[w]e used the same process we al-
ways do.” As referenced, above, Grane manages and owns the
operating companies of numerous health care facilities in Penn-
sylvania.
Oddo was primarily responsible for determining the initial
wages to be paid to Cambria Care employees. He interviewed,
hired, and developed the job description for the top onsite man-
ager for Cambria Care, Owen Larkin, Laurel Crest’s assistant
administrator, who became the administrator under Cambria
Care.
Grane’s quality improvement (QI) department is headed by
Lengle. This department is composed of clinicians who, as
Oddo explained it, “teach, orient, write policy” for
“[e]mployees of the various operating entities that [Grane]
manages,” including Cambria Care. Lengle explained that
“[w]e provide service to the nursing departments in the facili-
ties in which Grane Healthcare manages, includ[ing] survey
compliance, risk management, anything that the facilities may
request.”
The QI department, and Lengle in particular, played a key
role in the initial hiring of nursing staff employees (nurses and
nursing assistants) to work at Cambria Care. In October 2009,
Lengle was assigned by her supervisor, Oddo, to involve her-
self and the QI department in the hiring for Cambria Care.
In addition to hiring nursing-related employees, Lengle was
“primarily responsible for processing all employees” for hiring,
meaning that she, and the QI staff working under her direction,
processed prospective employees from all departments, and
managed the preemployment screening requirements utilized
by Grane.
All applicants underwent a Grane-established screening pro-
cedure, involving, according to Lengle, an application for the
position, physicals, drug screens, tuberculosis testing and crim-
inal background checks. According to Lengle, she and QI
nurses followed a checklist that set forth State and Federal hir-
ing standards for longterm care facilities. Lengle and the QI
staff were responsible for the health screenings. Lengle kept
track of the eligibility, based on the preemployment screening,
of all applicants, even those outside of nursing.
In addition, according to Lengle, Federal guidelines also re-
quire a reference check and that was part of the preemployment
process, although, as discussed below, there is some question as
to how this portion of the process was carried out by Grane.
According to Lengle (and Vivian Andrascik, a Grane-affiliated
official who investigated staffing for the business office) if an
applicant failed the other preemployment screening tests (such
as the criminal background, drug test or physical), then the
GRANE HEALTHCARE CO. 1421
reference portion of the application was not undertaken as the
applicant was already excluded from being hired.
Approximately 300 employees in the building applied, most
were nursing-related staff. Somewhere between 10–20 percent
of the employees were excluded based on the preemployment
(pre-reference) checks.
Applicants who “made it through every single step . . . were
offered” a position, thus, the screening was a critical part of the
process.
Vivian Andrascik, a consultant with Practical Administrative
Solutions (PAS), testified that she was responsible for hiring
employees to work in the Cambria Care business office. She
was assigned to this task by David Kearney, who is an officer
of Grane, PAS, and Cambria Care. Grane uses PAS to work
with the business offices at the facilities it manages and to en-
sure compliance with State and Federal guidelines. PAS has no
clients other than Grane, and was part of Grane, until two or
three years ago when, according to Andrascik, “they did an
LLC, and we became consultants there.”18 Andrascik went to
the facility sometime in October and met with Laurel Crest
officials as part of Grane’s due diligence, and to begin the pro-
cess of making sure the Cambria business office would be ade-
quately staffed.
In carrying out the hiring, Grane did not review employee
personnel files, which contained annual evaluations of employ-
ees undertaken by Laurel Crest. (According to Lengle that was
not a part of the Grane protocol for hiring employees when
Grane buys a facility.) There was no interview process for
nonmanagement employees for the initial January 1 hiring.
In late October 2009, Laurel Crest employees were informed
that they could pick up an employment application packet to be
completed and returned either on-the-spot, or within the week.
The applicant packet included an application, a citizenship form
(I-9), direct deposit information, a questionnaire, and certain
other authorization forms relating to a background check, a
medical exam and other screenings. As part of the process
applicants were asked to go through a preemployment screen-
ing process involving a physical exam and tuberculosis screen-
ing (conducted by Grane QI employees), and a criminal back-
ground check. Applicants who needed a license or certification
for their work were expected to have one that was active or
current.
On December 21, 2009, employees who were being hired by
Cambria Care were informed and provided with employment
packets. Based on the experience of the alleged discriminatees
who testified, applicants not hired by Cambria Care were told
nothing, and, in that way, learned that they were not among
those hired. Laurel Crest employees ended employment with

18 PAS’s board of directors is composed of Nese, and Richard, Da-
vid, and Jeffrey Graciano. Richard Graciano is the chairman of the
board and CEO. Nese is president. Kearney is vice president and
treasurer. Creagh is the general counsel and secretary. Andrascik
testified that she could recall one PAS contract with another entity, a
contract with the city of Erie, during the 13 years she worked in her
capacity as a consultant for PAS or for Grane, before PAS was created
two to three years earlier. PAS’s offices remain at the same address in
the building utilized by Grane for its corporate offices.
Laurel Crest on December 31, 2009, and, as of January 1, 2010,
the facility was operated by Cambria Care.19
With regard to the Laborers-represented employees, out of
approximately 180 employees, 38 were not hired by Cambria
Care. Of those not hired the record does not reveal the number
who failed to apply either because they retired or chose not
apply for some other reason.
In any event, the percentage of Laborers local union officials
who applied and were not hired is striking. Even assuming that
every one of the Laborers-represented employees not hired by
Cambria Care had sought employment, approximately 80 per-
cent were hired. However, of the Laborer’s local union offic-
ers, only one Pat Joyce, the secretary is not alleged to be a dis-
criminatee. As noted, the Local president, vice president, sec-
retary-treasurer, and business agent, were not hired. Thus, con-
trary to the general employee complement, of which at least 80
percent was hired, 80 percent of the union leadership was re-
jected for hire by Cambria Care.
There is also evidence that two shop stewards, and a recent-
ly-named executive board member of the laborers were hired
by Cambria Care. But the union involvement and experience of
the executive board member appears to have been limited. The
record contains no information on the two shop stewards. In
any event, the failure to hire the officers of the Local is clearly
disproportionate to the hiring of employees generally.
With regard to the SEIU-represented employees, there is less
record evidence of the hiring patterns. As noted, only one em-
ployee is alleged to have been discriminated against in the hir-
ing. The record reveals that of the main activists in the SEIU
campaign around the sale of Laurel Crest, one and perhaps two
were hired by Cambria Care. Two, including the alleged dis-
criminatee Lamer, were not.
B. The Individual Alleged Discriminatees (Mulhearn,
Hagerich, Billy, Lamer, and Weber)
Mark Mulhearn—Mulhearn worked fulltime at Laurel Crest
from 1985 through December 31, 2009. He worked as a
nurse’s aide on the third floor for this entire period. He has
been a member of Local 1305 since 1991. He was a shop stew-
ard from approximately 1992 to 1998. He was a member of the
Local’s executive board beginning in the late 1990s. In approx-
imately 2002, he became vice president. From 2006, until the
end of his employment in 2009, he was Local’s business man-
ager, making him responsible for running the operations of the
Local on a daily basis, and setting up and running la-
bor/management meetings.
During Grane’s 2003 management of Laurel Crest, and its
failed effort to purchase the facility, Mulhearn recalled having
significant interaction with Grane representatives. He was
active in opposing the sale on behalf of the Union. During that
near assumption of the operations by Grane, Mulhearn applied
and was offered a position, although Grane, in the end, did not
assume the operations.

19 There was at least one exception to this. One of the alleged dis-
criminatees, Beverly Weber, who was not hired by Cambria Care,
testified that she continued working in the business office, for Laurel
Crest, through January 2010, finishing up the December billing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1422
In August 2009, the Local and Mulhearn went to commis-
sioners’ meetings and talked about the sale. After August,
union counsel and a union official from Pittsburgh attempted to
set up meetings on the sale. The Local’s activities around the
sale were reported in the local press.
As the Local’s business agent, Mulhearn was copied, with
his title, on correspondence dated September 11, 2009, sent by
the union’s counsel to Grane seeking to meet to discuss “the
pending sale and its impact on the employees.” The letter was
received by Grane, and a response sent by Grane counsel to the
union’s counsel.
In late October, along with most of the other Laurel Crest
employees, Mulhearn filled out the employment application
provided by Cambria Care and returned it to the administrator’s
secretary. He was sent to the drug screening and took the phys-
ical, which was conducted by three Grane employees from the
QI department, Angel Waddell, Debra Hoover, and Jolene Po-
lanzt, each of whom was a former Laurel Crest employee, and
at least one of which, Debra Hoover, Mulhearn had interacted
with in his capacity as business manager when she was em-
ployed by Laurel Crest. Mulhearn was introduced briefly to
Lengle when he said hello one day to Jolene Polantz, who in-
troduced Mulhearn to Lengle and told her, “[t]his is Mark Mul-
hearn, he is an excellent nurse’s aide.”
Mulhearn learned he was not hired when, in December he
was not called and given an acceptance letter indicating he was
being hired.
Sherry Hagerich—Hagerich began at Laurel Crest as a
nurse’s aide in 1989. In approximately 2001, she became the
switchboard operator, and from 2002 to 2009, worked as a unit
clerk on the first floor. The unit clerk is in charge of the desk.
In that position, Hagerich answered phones, directed families to
residents, and maintained patient charts and lab books for the
doctors and nurses.
Hagerich was president of Local 1305 from approximately
2005, through the time of the transfer of operations to Cambria
Care at the end of 2009. Prior to being president, Hagerich was
on the Union’s executive board from approximately 2003 or
2004, and had always been active in the Union. As president of
the Local, and because of her position, which was removed
from “hands on patient care,” employees often sought out
Hagerich to request grievance forms or to talk about potential
grievances. In addition, because her position made it easier for
her to leave the unit on short notice, Laurel Crest’s human re-
sources department often called on her to attend meetings con-
ducted to discipline or counsel another employee.
Hagerich was involved in the Union’s 2009 activities related
to the sale of Laurel Crest. In conjunction with these activities
her photo was on the front page of the area newspaper and she
was on local news reports.
Hagerich applied to work at Cambria in the same manner as
the other Laurel Crest employees. She went in on her day off
and took the physical and TB test and returned to have the TB
test read. The Grane employees administering the physical
were former Laurel Crest employees who had worked there
when Hagerich had been active in the Union. Hagerich was not
hired by Cambria Care, and like the other rejected applicants
learned this when, as of December 31, 2009, she had heard
nothing, while most Laurel Crest employees learned on or
about December 21, 2009, that they were being offered em-
ployment.
Joseph Billy—Billy began fulltime at Laurel Crest in 1994
and worked there until December 31, 2009. He was a nurse’s
aide during this time, and worked on the first floor for almost
the entire time.
Billy was a shop steward for four years, and then an execu-
tive board member of the Local. He was vice president for
about a month before Cambria Care assumed operations.
In 2003 when Grane was unsuccessfully attempting to pur-
chase Laurel Crest, Billy applied for employment with Grane
but was not offered employment. He was not permitted to
complete the process.
During this effort to buy the facility, Grane interviewed ap-
plicants in group interviews of six to eight people. Grane rep-
resentative Wendy McDonald told the employees what the pay
and benefits were going to be with Grane. Billy commented
during the interview that the union contract still had two years
until expiration. This seemed to upset McDonald who declared
the interview over after Billy’s comments. (“[t]his interview is
done everybody out.”) Later, when Billy was taking the physi-
cal required for applicants, McDonald came in, saw that Billy
was among the employees taking the physical, and said, “He’s
not allowed to finish completing this.” When Billy asked why,
McDonald told him, “I do not have to give you an answer why.
You are just not allowed to finish.”20
In 2009, Billy again applied to be employed by the successor
entity to Laurel Crest. He picked up the application, took it
home, completed it, and returned it the next morning. There is
a dispute about how completely he filled in the application. I
will discuss that dispute, below. In any event, there is no dis-
pute that Billy applied for employment.
Billy learned that he had not been hired by Cambria Care in
the same way as the other rejected applicants: employees of-
fered positions were notified before Christmas, he received no
such notification.
Roxanne Lamer—Lamer began working at Laurel Crest in
January 2004 and worked there through the end of December
2009. She began as a nurse’s aide, and in February 2006, be-
came an LPN. Coincident to the change in position, Lamer
changed from membership in the Laborers to membership in
SEIU.
In her last three years at Laurel Crest, Lamer worked on the
fourth floor, on the second shift, which began at 3 p.m. Occa-
sionally, perhaps once a month during the last three months,
she would start four hours early at 11 a.m.
Lamer did not hold any office with SEIU or the Laborers.
She was, however, extensively involved in SEIU activities
around the sale to Grane. The SEIU conducted what organizer
Nathan Williams described as a “fairly expansive campaign”
that included “public actions,” including attendance at county

20 I credit Billy’s account of this event, which was undisputed.
McDonald remains employed by Grane and was involved in the hiring
for Cambria Care and serves as a Grane consultant to Cambria Care.
She did not testify.
GRANE HEALTHCARE CO. 1423
commissioner meetings and the delivery of multiple petitions to
the commissioners.
Williams described Lamer as “very integral” and “very ac-
tive” in “what we were doing.” He described her as “instru-
mental” in the campaign particularly beginning in late July or
early August 2009. Once she became involved more and more
employees from second shift began showing up to SEIU
events.21 Lamer attended commissioner’s meetings with the
union and participated in an “informal picket” outside the coun-
ty courthouse directed toward having the county honor certain
benefits to employees.
In early November, Lamer traveled with Williams—just the
two of them—to Grane headquarters in Pittsburgh in an effort
to speak to Oddo, and present him with a copy of an employee
petition that had been delivered to the county commissioners
the previous week. They did not call ahead. Williams had
heard from other SEIU officials that previous efforts by other
SEIU officials to reach Oddo had not been successful, so Wil-
liams, with Lamer, showed up at Grane headquarters.
Williams introduced himself and Lamer to the receptionist
who then called someone, announcing that “[t]here is a Mr.
Williams and Roxanne Lamer from SEIU Healthcare PA,
would like to speak to Mr. Oddo.” A few minutes later a wom-
an came downstairs and told them that Oddo was on a confer-
ence call. Williams left his business card with the woman, left
the petition, and asked that Oddo call him.
Lamer applied to work for Cambria Care in a fashion similar
to the other employees. She picked up her application and
returned it as instructed by the end of October. Some weeks
later she had her physical. In December, she was not offered
employment.
Beverly Weber—Weber was hired fulltime at Laurel Crest in
1987. In 1993 she bid into the business office and worked nu-
merous jobs there until the transfer to Cambria Care. In her last
six months at Laurel Crest Weber worked in the business office
doing Medicare and insurance billing, worked with residents’
accounts, and sent billing statements to families of residents.
Weber was off work at Laurel Crest from October 22 to No-
vember 16, 2009, and then again, on December 2, 2009, for
about 2 weeks.
Weber applied, but was not hired by Cambria Care. She
worked for Laurel Crest through January 2010, finishing up
some billing.
Weber held numerous positions in Local 1305 over the
years. In the late 1990s she served as vice president of the
Union, and then as president. In approximately 2002 or 2003,
she became the Union’s business manager. Midway through
2009, Weber became the Union’s secretary-treasurer.
As business manager, Weber had particular responsibility for
employer-union relations. During Grane’s initial effort to pur-
chase Laurel Crest in 2003, Weber met with a number of Grane

21 Williams also named three other SEIU-represented employees as
“main contact people”: Chapter President Mary Jane Fitzsimmons,
Vice President Janice McKnight and Secretary Treasurer Helen Bassett.
Williams had heard that McKnight was hired by Cambria Care (the
record does not establish it for sure). Bassett was hired by Cambria
Care. Fitzsimmons was not.
officials, including Vivian Andrascik, to discuss union issues
such as whether the labor agreement would be assumed by
Grane, seniority guidelines, and hiring issues. Grane represent-
atives took the position with Weber that Grane was not obligat-
ed to recognize the collective-bargaining agreement.22 As not-
ed, the sale did not occur and the Union initiated legal action
designed to enjoin the sale.
In October 2009, Weber applied, along with other Laurel
Crest employees, for a position at Cambria Care. She went
through the screening process, taking the physical, drug screen
and other items. She learned on or about December 21, 2009,
that she was not going to be hired when she was not among
those offered employment and receiving employment packets
on or about that day.
C. Grane’s Explanation for Not Hiring Mulhearn,
Hagerich, Billy, and Lamer
Grane Vice President of Nursing Lengle testified that she
made the decision not to hire Mulhearn, Hagerich, Billy, and
Lamer. (“I was the decision maker.”) As to Mulhearn, Lamer,
and Hagerich, Lengle testified that her decision was based sole-
ly on negative references received from Laurel Crest’s then
Director of Nursing Rebecca Nelen. As to Billy, Lengle testi-
fied that her decision was based in part upon Nelen’s reference,
and in part on some other factors, discussed below.
According to Lengle, Nelen told her that Mulhearn had poor
performance and attendance problems; she told Lengle that
Hagerich had attendance issues and was loud, obnoxious and
caused trouble with coworkers; she told Lengle that Billy had a
negative attitude toward coworkers and his responsibilities; and
that Lamer had poor work performance.
In reaching her decision, Lengle claims to have relied upon
Nelen’s references. She did not review, or seek to review, any
personnel records or folders maintained on employees. Ac-
cording to Lengle, “[t]he director of nursing, or the department
head in which they are applying, is the best person to speak
with” in securing references on the applicants.
Lengle testified that the reference process was undertaken by
her for all nursing and nursing-related positions. Lengle testi-
fied that “I sat down with Miss Nelen, and went through all
potential applicants, for reference.” Lengle testified that she
did this repeatedly, until they had reviewed every applicant.
The best estimate Lengle could give of the number of meetings
she had with Nelen on this subject was “[m]ore than one” but
less than ten.
Lengle testified that as she sat with Nelen, she had a box
containing a file folder for each applicant and she had her com-
puter. Lengle testified that she kept no notes of her discussions
with Nelen, other than notes contemporaneously entered into a
computer file listing Laurel Crest employees not being hired (a
printout of which was introduced into evidence as GC Exh. 21).
She testified that she made no notations in or on the applicants’
file folders. Lengle testified that while meeting with Nelen,
when she received a negative reference that would exclude an

22 I credit Weber’s uncontradicted testimony in this regard. An-
drascik testified extensively but did not contradict or address this inter-
action with Weber from 2003.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1424
applicant from being hired she would mark the reason on a
computer file and put the rejected applicant’s file in a separate
box.23
Lengle testified:

I had two bankers boxes. I had the one bankers box with all
of the potential applicants that had already passed the neces-
sary requirements.
And then I had an empty bankers box, and as I got ref-
erences that were poor, that would exclude them from be-
ing hired, from being offered, I took the file out of the one
bankers box, and put it in the other, so I knew that those
people would not be offered employment.

According to Lengle, the references which she sought and
which she relied upon were part of Grane’s standard practice,
and mandated by Federal Government guidelines related to
abuse prevention in long-term care facilities. “It is listed under
abuse prevention, but you have to get a reference check.”
Lengle testified that “[y]ou check the form, there is a list of
things. . . . [such as] [p[erformance, attitude, attendance . . .
would they rehire . . . [t]hose are the biggies I can remember.”
Lengle stated “that all goes in with what the background check
is for, the reference check is part of it.” According to Lengle,
she asked Nelen “all four of those of everybody.” Lengle testi-
fied that she went through the applicants with Nelen in alpha-
betical order, asking these questions.24
The most salient problem with Lengle’s explanation for her
hiring decisions, and the reference procedure on which it was
based, is that Nelen—the putative source for Lengle’s refer-
ences, and the person Lengle proposes was central to the refer-
ence process—endorsed not a word of Lengle’s story.
Nelen, who had been the director of nursing at Laurel Crest
from February 2008 through the end of December 2009, ap-
plied for and was offered, but turned down, the position of di-
rector of nursing for Cambria Care. She moved on to other
employment. She testified in a manner that cannot be recon-
ciled with Lengle’s assertions. Nelen testified as follows:

Q. Did you talk to Beth Lengle about the RN’s,
CNA’s and LPN’s, under your direction?
A. In what respect?

23 Lengle at first testified that she didn’t remember whether she had
the computer with her when she met with Nelen to go over references,
but quickly corrected herself, realizing that “[y]eah it would have had
to have been, yes,” so that she could record the information from Nelen
contemporaneously. If she did not have the computer with her to con-
temporaneously record this information she could not later have created
GC Exh. 21, given that she took no other notations with regard to her
meetings with Nelen or the information gleaned through them. This list
included Mulhearn, Billy Hagerich, and Weber. It did not include
Lamer. Lengle testified that “I am sure I left people off of there. That
was just a working tool for me.”
24 Lengle appears to be referring to “Employer Reference” forms as
the source of the questions. These (partially) completed forms were
included in the personnel files that were introduced for certain nursing
employees. They show the date of the reference, the Grane representa-
tive who sought the reference, and who it was secured from. No simi-
lar documents, which might have corroborated Lengle’s testimony,
were provided for any of the discriminatees.
Q. In terms of their employment ability, job perfor-
mance?
A. As far as how they particularly performed job du-
ties?
Q. Yes.
A. Again, in what respect? Because we did have con-
versations about what their duties were.
Q. You had conversation about the general duties?
A. Sure.
Q. Did you have any conversations with Beth Lengle
about specific employees, and their job performance for
Laurel Crest?
A. Not that I recall.
Q. Did you speak with Beth Lengle about Mark Mul-
hearn?
A. Not that I remember.
Q. Did you speak with Beth Lengle about Joseph Bil-
ly?
A. Not that I recall.
Q. Did you speak with Beth Lengle about Roxanne
Lamer?
A. Definitely not.
Q. Why do you say definitely not?
A. Because in all honesty, I did not remember who
she was.

. . . .

Q. Did you speak with Beth Lengle about Mark Mul-
hearn’s attendance record?
A. No.
Q. Did you speak with Beth Lengle about anyone’s at-
tendance record?
A. No. I didn’t have access to their attendance rec-
ords.
Q. Who handled the attendance issues for the county?
A. Human resources did. . . .

. . . .

Q. Well, in the what it’s worth category, had you been
asked about Mark Mulhearn’s work performance, would
you have been able to tell Beth Lengle anything about his
work performance?
A. I may have been able to, but without a good review
of his chart, employee file, I may not have.
Q. As you sit in the witness stand today, is there any-
thing about Mark Mulhearn’s work performance under
Cambria County, that you would characterize as poor per-
formance?
A. Not off the top of my head. But again, without a
review of his employee file, I can’t say for sure.

Nelen also testified that, having only been the director of
nursing for about a year, and having spent most of that time
consumed with preparation of plans of direction and for visits
by regulators,

[u]nfortunately, I didn’t have time to get to know the employ-
ees, because the regulatory problems that we had. I spent the
majority of my time writing plans of direction, for 14 visits in
GRANE HEALTHCARE CO. 1425
12 months, so, no, unfortunately, I didn’t get to know them
very well. . . . I knew very little about all of the employees.

In addition, Nelen specifically denied that she would have
been in a position to comment on any employees’ attendance
issues. “There probably were individuals with attendance prob-
lems, but I didn’t handle those. I didn’t handle it, so I really
can’t say who it is.”
On cross-examination, Respondent’s counsel focused on a
cautionary aspect of Nelen’s testimony: she repeatedly said she
didn’t “recall having” any “substantive conversation with Beth
Lengle about any RN, LPN, or CNA, in terms of work perfor-
mance,” instead of declaring absolutely that it never happened
at all (although she was definitive with regard to Lamer, whom
Nelen did not know, and, in addition, Nelen was definitive that
she had not reported on anyone’s attendance). Ultimately,
Nelen agreed that she “could have said something about the
first floor [employee staff]. First floor was difficult.” Nelen
agreed that Joseph Billy was “difficult” and that “[f]rom time to
time, I would say he had a bad attitude,” although she resisted
suggestions that Hagerich could be “categorized” that way.
It may be that at some point Nelen “could have said some-
thing” negative about first floor employees. But nothing in
Nelen’s testimony—nothing—provided the slightest endorse-
ment, support, or corroboration for Lengle’s testimony that she
sat with Nelen, more than once but less than ten times, banker
boxes at her side, folders for each applicant with her, and asked
Nelen four questions—relating to attendance, attitude, perfor-
mance, and willingness to rehire—in alphabetical order, about
every Laurel Crest employee applicant for a nursing-related
position, and entered the negative information into a computer
with her while they talked.
Contrary to the suggestions of Respondent, the import of
Nelen’s answer that she “didn’t recall” speaking to Lengle
about the employees—and I mean this both in terms of the text
of the transcript and in terms of the impression that her de-
meanor made on me as she testified—was that she wanted to
take care as she was cross-examined not to agree that she had
never had any conversation at any time with Lengle that men-
tioned an employee’s performance or conduct. She did not
recall any such conversation, but given the comings and goings
of Grane staff during this period and multiple interactions with
Lengle during this period, Nelen wanted to allow that there
could have been such a conversation.25
But allowing for the possibility of some stray remarks being
made by Nelen to Lengle about staff, such remarks are a far cry
from and irreconcilable with the reference process involving
scores of employee applicants that Lengle claimed she engaged
in with Nelen and that Lengle so directly attributed to her deci-

25 In follow-up to saying that she did not recall having any substan-
tive conversation with Lengle about individual employee’s work per-
formance, Nelen testified:
A. I can’t say it did or didn’t happen.
Q. Okay.
A. Or that something wasn’t said in passing. But—or some-
thing wasn’t overheard.
Q. Okay.
A. But I don’t recall.
sion not to hire the discriminatees. If Nelen and Lengle had sat
down and gone over the performance, attendance, attitude, and
willingness of Nelen to rehire each applicant, or even each
alleged discriminatee, Nelen would have remembered it, or
something of it. She didn’t.
It is also notable that Nelen was a disinterested party, work-
ing neither for Grane nor Cambria Care, having moved on to
other employment. She had declined the DON job that had
been offered to her at Cambria Care. And when I say she was
disinterested, I mean beyond the formal legal sense, i.e., her
lack of current relationship to the parties. There was no sug-
gestion, and no basis revealed for suspecting that Nelen had an
axe to grind with Grane or Cambria Care. Her testimonial ap-
pearance and demeanor were also that of a disinterested wit-
ness. She did not appear to have come to testify for the purpose
of defending the employees, or for the purpose of criticizing
Grane. She showed no reluctance to criticize employees as
“difficult” or having a “bad attitude,” but did so only when
required to in answer to a question.26 And Nelen refused to be
led into criticizing employees where she did not believe it was
accurate. She did not appear eager or happy to be testifying.
She had nothing to “get off her chest.” If anything, Nelen
seemed mildly displeased to have been dragged into this dis-
pute. But this affect, to my mind, contributed to her credibility.
If it had happened the way Lengle said it happened, I do not
doubt that Nelen would have remembered it and would have
corroborated it. Nelen’s testimony is inconsistent with, and
contradicts the story told by Lengle. I do not believe Nelen was
fabricating her testimony, was unwilling to say what she knew,
or suffered from memory loss.27

26 Asked for an example of what she meant by “bad attitude,” Nelen
explained that “when the Department of Health would come in” Billy
used them as “a sounding board for staffing issues, and not being able
to get his work completed.” Nelen explained that she had to have
someone warn Billy when the Department of Health “was in the build-
ing, so that nothing was said.” In Nelen’s view Billy exhibited a “bad
attitude” by talking to a state inspector about staffing issues instead of
to his supervisors first: “we expect you to take it up the chain of com-
mand, and that’s not what we saw.” In his testimony, Billy recalled this
encounter with Nelen, from April 2009, and stated that the state sur-
veyors had asked him a question and Nelen had told him that “I should
just be quiet.” Billy testified that he told her that “‘[i]f they ask me a
question, I’m going to tell the truth, I won’t lie for you.”
This testimony further suggests that, as a witness, Nelen harbored no
bias in favor of employees. Indeed, while it is not a matter I need rule
on, and I do not, it is worth noting that Nelen’s basis for criticizing
Billy’s attitude might well form an illegitimate basis for a negative
reference, as employee complaints to third parties, including govern-
mental authorities, about working conditions generally are protected
conduct under the Act, and this includes staffing levels at health care
facilities. Valley Hospital Medical Center, 351 NLRB 1250, 1252
(2007) (citations omitted), enfd. 358 Fed. Appx. 783 (9th Cir. 2009);
Riverboat Services of Indiana, 345 NLRB 1286, 1294 (2005). (no
requirement that employees first give their employer the chance to
respond to their grievances). Nelen was not a “pro-union” or “pro-
employee” witness. Rather, she was a candid witness.
27 In a couple of instances, Nelen added that the events happened “a
long time ago.” The concept is relative, of course. But in terms of my
experience with witnesses, and in terms of litigation generally, the
events she was asked about were not from the distant past. Lengle’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1426
I credit Nelen’s account, and find that Lengle did not under-
take the reference process as she described it, and did not base
her decision not to hire Mulhearn, Lamer, Hagerich, and Billy,
on the reference process.
In short, Grane’s explanation was that its official, Lengle, re-
lied upon Nelen, the former director of nursing, no longer on
the scene. Grane’s position makes Nelen effectively responsi-
ble for the decision by Grane not to hire (four of) the discrimi-
natees. In the abstract, it is a reasonable position. Indeed, giv-
en that Nelen had declined an offer from Cambria Care and
moved on, it is not lost on me that had she not appeared at trial,
all we would have had was Lengle’s word on it. But Nelen
showed up at trial, and did not know what Lengle was talking
about.
I discredit the explanation offered by Lengle for failing to
hire Mulhearn, Hagerich, Billy, and Lamer.28
With regard to Respondent’s failure to hire Billy, Lengle as-
serted that she relied only in part on Nelen’s reference. She did
not state explicitly what other factors she relied upon, or the
contribution they played in her decision. However, I will as-
sume that she is claiming that the other factors were a series of
negative personal observations she made of Billy, as well as
comments about Billy she solicited from Charge Nurse Sheila
Knee.
Having discredited as a fabrication Lengle’s asserted pro-
cess-based rationale for failing to hire Billy and the other nurs-
ing department discriminatees, I am not inclined to put much
credence in a claim—that she does not make—that she would
not have hired Billy solely based on personal observations and
the comments of Knee. For one, Knee’s comments to Lengle
were made between Christmas and New Year’s Day, after the
offers of employment and after the hiring decisions were made,
and, thus, could not have contributed to the decision not to hire
Billy.29 As to Lengle’s negative personal observations of Billy,

alleged reference checks occurred in December (November at the earli-
est) 2009. Nelen testified in July 2010. Moreover her affidavit, of
which I undoubtedly would have heard more about had there been
material inconsistencies with her testimony, was executed in May 2010.
The timing only adds to my conclusion that Nelen would have remem-
bered Lengle’s reference process, had it occurred.
28 I discredit Lengle’s explanation for all of the reasons stated in the
text. In view of Nelen’s credited testimony, it is not believable, and I
do not believe it. I note also that no one corroborated even the occur-
rence of the reference meetings Lengle described with Nelen. It seems
likely, given that they were interrupted by other pressing work matters
that someone would have seen or known about these meetings. If they
did, there was no testimony to this effect. In terms of demeanor, I note
that I adjudged Lengle to be an extremely capable person, but that
attribute can sometimes make credibility harder not easier to judge.
But between her and Nelen, I found Nelen’s demeanor more compel-
ling as a witness. Lengle was less spontaneous, more planned, more
practiced. None of those are necessarily bad attributes in a witness, but
in this case, I find Nelen’s demeanor far better than Lengle’s. Lengle’s
demeanor was consistent with that of a witness adhering to a story
invented to explain events. That is my considered view of what she
was doing in her testimony.
29 Lengle testified that she followed up the Nelen reference by ask-
ing first floor supervising charge nurse Sheila Knee about Billy. How-
ever, Knee testified that she was off work on leave until sometime
between Christmas and New Year’s Day and did not talk to Lengle
with one exception,30 each was disputed by Billy,31 and other-
wise uncorroborated.32
Given that I have discredited as a fabrication Lengle’s chief
explanation for not hiring the four discriminatees—Nelen’s
references—I am not inclined to put credence in Lengle’s con-
tradicted and uncorroborated testimony that these other issues
occurred as Lengle says they did, or if they did, that they pro-
vided an independent basis for not hiring Billy. Indeed, Lengle
did not really testify that these were reasons she did not hire
Billy, only that these interactions left her with a bad impression

until after she returned to work. If Lengle is saying that she relied upon
Knee’s comments in the decision not to hire Billy that would be further
evidence diminishing Lengle’s credibility. The clear weight of the
evidence is, and I find that the hiring and (nonhiring) decisions had
already been made by the time Knee told Lengle, in “casual conversa-
tion,” that certain of the nurse’s aides, Becky Hildebrand, Cindy Jewitt,
Misty Minton, and Billy had bad attitudes and “negativity.” It is nota-
ble, however, that Knee’s comments sound an awful lot like the com-
ments Lengle attributed to Nelen, but which Nelen did not recall mak-
ing. Lengle likely drew upon Knee’s comments in developing the
claims regarding the reference she received from Nelen.
30 Lengle and Billy agreed that Billy had circled and wrote “I do not
agree” by the small print paragraph above the application’s signature
line that stated that “I understand that I may be required to work shifts
other than the one for which I am applying and agree to such schedul-
ing change as directed by my department head or administrator of this
institution.” Billy testified that he did this because he did not agree
with it, “because I felt it was a negotiable item” and also an “end
around” state law restricting mandatory overtime in health care facili-
ties.
31 Lengle claimed that in 2003, when Grane managed the Laurel
Crest facility, as she took smoking breaks on the loading dock with
other employees, she overheard Billy saying “Fuck Grane” more than
once, and that it was directed at her, the only Grane representative on
the dock. Lengle claimed that in 2009, Billy’s application was not
signed and was missing lots of information. Lengle claimed Billy told
her, “[t]hat was all I was getting.” She also related two further inci-
dents that occurred when Lengle was with Jolene Polantz, a Grane
representative who knew Billy from having previously worked as a
charge nurse for Laurel Crest. In both incidents, Polantz had said to
Billy “how are you,” as Polantz and Lengle walked by, and Billy alleg-
edly responded, “I haven’t been fired yet,” in one instance, and in the
other, responded in some fashion about taking care not to slip in “the
puddle of my awesomeness.” Lengle testified that she found these
comments inappropriate. In his testimony, Billy specifically denied
each of these incidents. He testified that “I never made that statement”
(“fuck Grane”), although he witnessed employees, who got boisterous
at times on the loading dock, saying such things; he described running
into Polantz, who was with other Grane representatives, including
Lengle, and Polantz and he exchanged greetings; and he gave a detailed
description of passing Polantz and Lengle on a stairwell and hurriedly
saying “I’m just lovely today” and “Careful, what just drips off of me.”
32 Lengle testified that the applications for applicants with last names
beginning A-C had been misplaced, and so they were not available for
inspection at trial. Thus, the two most obvious methods of corroborat-
ing either Lengle or Billy on the question of whether he filled out his
application and refused to provide more information, would be to pro-
duce the application and to call Macaluso testify. Respondent lost the
applications A-C (the only ones that at trial, related to a dispute over
how the applicant filled out the application); Macaluso was not called
to testify. Polantz, a Grane representative who was present for both
comments Lengle claimed were inappropriate, was also not called to
testify.
GRANE HEALTHCARE CO. 1427
of him. The implication, certainly, is that these were her rea-
sons, other than Nelen’s reference, for rejecting Billy, but there
is no indication of the role they played. And since the reason
for his rejection offered as the standard part of the process—
Nelen’s reference—was bogus, I do not believe these contra-
dicted, uncorroborated make weight rationales either.33
Finally, I want to address the employment evaluations and
disciplinary records of these discriminatees. Both the General
Counsel and Respondent rely on portions of them in an effort to
bolster their positions.
The most salient threshold point to emphasize is that Re-
spondent did not review any of these records as part of its deci-
sionmaking process. It did not talk to anyone about these rec-
ords as part of its decisionmaking process. Thus, their rele-
vance is limited to their potential to support or detract from the
likelihood that Nelen gave the references as alleged by Lengle.
Thus, the General Counsel points to the uniformly positive
evaluations of, for example, Mulhearn and Lamer, set forth in
annual evaluations conducted from 2003 to 2009, as undermin-
ing Lengle’s claim that Nelen told her that Mulhearn had a
problem with poor performance and attendance, or that Lamer
had performance problems. It is true that Mulhearn and Lam-
er’s evaluations offer no support for such claims.34 However,
for reasons set forth above, I do not believe Lengle, and the
lack of corroboration in the personnel records for Nelen’s al-
leged comments is somewhat superfluous.
Indeed, no matter whether the evaluations reveal a poor or
excellent record, Nelen was clear in her testimony that she
would have been reluctant, without reviewing records (which
she did not do), to characterize the employees’ performance,
and much less so, their attendance.
Accordingly, even considering any negative statements in
the evaluations and disciplinary records, they do not lead me to
believe that Nelen made the statements Lengle attributed to
her—in a reference process she credibly (and inexplicably were
it to have occurred) did not recall engaging in, and a process
which she credibly testified that she would have had to look at
records in order to be able to competently participate in. In this
regard, it is worth remembering that even the records that are
arguably consistent with Lengle’s claims could have been con-
sulted after-the-fact and then attributed to Nelen and the refer-
ence process. Indeed, this appears to have been what happened

33 It is worth noting that Billy too, is not without his credibility prob-
lems. His demeanor was fine. I had no problem with it. But, as was
revealed on cross examination, he was not forthcoming about the extent
of his disciplinary record and made misleading statements about it both
on direct examination and in his pretrial affidavit. But given that Grane
did not rely on (or even look at) the disciplinary records prior to mak-
ing its employment, I consider Billy’s misstatements, while definitely a
negative factor in assessing his credibility, to have been offered on a
collateral matter. This must be contrasted to Lengle’s misstatements on
the central issue in this case: her explanation of her decision not to hire
the four alleged discriminatees based in whole or in part on a reference
process that never took place.
34 These evaluations reflect the annual assessments of Mulhearn,
notwithstanding various (approximately four) counseling or discipli-
nary actions received between 1994 and 2008 by Mulhearn, and intro-
duced into evidence by Respondent.
with regard to Knee’s posthiring comments about Billy, at-
tributed by Lengle to Nelen.35
Consideration of the negative portion of the annual reviews
does not convince me that Nelen gave the references Lengle
claimed to have relied upon.
D. Grane’s Explanation for Not Hiring Weber
As referenced, Vivian Andrascik, from Grane-spinoff PAS,
was assigned responsibility by Kearney for the staffing deci-
sions in the business office.
Andrascik testified that she received five Laurel Crest em-
ployee applications for the business office positions and hired
three of them as of January 1, 2010. Two more employees
were hired later, probably in February.
At trial, Grane’s rationale for not hiring Weber was provided
by Andrascik, who was called as an adverse witness by the
General Counsel. There were, however, significant problems
with her testimony and explanation.
Andrascik initially testified that Weber was screened out as a
result of the health screening. She later corrected, or “complet-
ed” this, as she put it, explaining that “[p]art of that health
screen[ing] as [counsel for the General Counsel] refers to, is the
reference checks.” Challenged on this unlikely claim by coun-
sel for the General Counsel, Andrascik changed her testimony
again and said, “[t]hen I misunderstood you,” clearly suggest-
ing that references were not part of the health screening. She
testified that she could not speak to whether Weber passed the
health-related screenings, but “I can only answer that she didn’t
pass the reference checks.” And, “the reference checks [were]
part of our screening.”
This testimony is of concern. While each aspect is problem-
atic, to my mind, the most concerning thing about this testimo-
ny is not that Andrascik claimed that Weber was screened out
for health reasons—there is no evidence of that, and Andrascik
retracted it. The most concerning thing is not that when An-
drascik was permitted to explain her answer—after two recess-
es, and under nonadverse questioning—she made the disingen-
uous and odd claim that she answered the way she did because

35 In this regard, it is notable that the negative comments attributed
to Nelen seem, in some instances, to track negative comments in the
annual evaluations that were written in years prior to Nelen coming to
work at Laurel Crest.
Consider Lengle’s claim that Nelen told her that Hagerich had at-
tendance issues and caused trouble with coworkers. While Hagerich’s
evaluations for 2007–2008, and 2008–2009—the period of time Nelen
was DON—reflected no remotely similar criticisms, in the 2005–2006
evaluation the otherwise positive evaluation contained the comment
that Hagerich “could improve on interpersonal relations,” and at times
came across as “abrupt.” The 2004–2005 evaluation noted her attitude
and abruptness as well.
Similarly, Lengle claimed that Nelen told her that Billy had had a
negative attitude toward coworkers and his responsibilities. Billy’s
evaluations, which were overall positive as to his work and ability to
work with coworkers, contained some comments limited to 2004–2005
and 2005–2006 evaluation, before Nelen’s arrival, reflecting that he
needed to increase sensitivity and patience with coworkers and com-
ments suggesting he should have less call offs and work toward being a
better “team player.” No such comments appeared in the 2007–2008
evaluation or the 2008–2009 evaluation, the time period when Nelen
was at Laurel Crest.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1428
(to her) the term health screenings included the reference
checks. The most concerning thing is not even that when the
unlikelihood of her explanation set in, she retreated to asserting
that she had “misunderstood” the counsel for the General
Counsel’s question (an explanation at odds with her previous
explanation).
No, the most concerning thing about this mess is the sugges-
tion—both in the letter of the transcript and in my recollection
of the manner in which the testimony was delivered—that We-
ber may have been screened out by the time applications were
received by her from the QI department. Here is her testimony:

Q. At the time the applications were given to you, had
those employees already been subjected to the pre-
employment health screening?
A. Yes.
Q. And how many applicants are we talking about
here?
A. About five.
Q. Of those five applications, had any been screened
out as a result of the health screening?
A. Yes, there was.
Q. How many were screened out?
A. One.
Q. Who was that?
A. Bev Weber.

If Andrascik was trying to say that references are part of the
screening process and she screened Weber out by giving her
bad references, it is difficult to find that here.36
I am not entirely sure what to make of this. I am cognizant
of the likelihood that Andrascik, like many witnesses, might
have been nervous, and inadvertently made some misstate-
ments. And yet, there is a great deal of them here. And there is
no coherent explanation for them all.
This is the witness that Respondent put forward as responsi-
ble for the decision not to hire Weber. That her account is
fraught with inexplicable assertions, and backpedaling is con-
cerning. If it was only references that did Weber in, that is all
she had to say. But Andrascik’s testimony raises the specter
that Weber failed the screening, or was tarred as a no-hire, be-
fore the applications got to Andrascik. There is no innocent
explanation for that based on the record evidence. It is suspi-
cious, unexplained, and at odds with the logic of Respondent’s
defense.
On top of these concerns, there is the issue of the references
that Andrascik allegedly secured from Nancy McMahon, An-
drascik’s first hire in the business office. In the final version of
the story endorsed by Andrascik, McMahon’s reference is the
chief basis for Weber’s rejection.
Andrascik testified that she hired three employees for the
business office effective January 1, 2010, each of whom had

36 It is worth noting here that the document employees signed con-
senting to “conditions of preplacement” lists among the criteria a phys-
ical exam, tuberculin test/chest x-ray, criminal background check, and
drug screen—but not references—as part of the preplacement screening
process.
worked for Laurel Crest.37 She testified that she was looking
into all three, and Weber, in December. She hired Nancy
McMahon, who had been the assistant finance officer for Lau-
rel Crest, to be the department manager. Andrascik testified
that as to the other two positions she relied upon her observa-
tions and sought references from McMahon. Andrascik testi-
fied that she spoke to McMahon about each of the employees
who had applied. Andrascik stated that “I went to Nancy, and I
asked her to give me an opinion of how they were to work
with” and “[h]ow they interacted with each other.” Andrascik
could not recall when this conversation took place. No notes or
documentation of the Weber reference was entered into evi-
dence, although “Employer Reference” forms included in other
employees’ personnel files demonstrates that such forms were
used by Grane in hiring.
According to Andrascik, McMahon told her that Weber “was
not a team player, she had trouble communicating with her co-
workers, she had an absentee problem.”
As with her testimony about the screening process, An-
drascik’s testimony about securing the references was not com-
pelling. McMahon, who currently works for Grane, provided a
tentative, half-hearted corroboration of some of Andrascik’s
account of the alleged reference process. It is true that it was
not a bad as the testimonial fiasco of Lengle attributing the
references to Nelen, in the face of Nelen’s absolute unwilling-
ness to endorse that the conversations even occurred. McMah-
on, recalled speaking to Andrascik about Weber but described
it as “pretty much” in a passing conversation, in a phone call
from Andrascik while McMahon was out on medical leave.
At first when questioned about whether she had been “asked,
at any time, by Miss Andrascik, to give an assessment of the
employees’ work performance,” McMahon answered by saying
“I was asked who did what in our department . . . was asked
what their specific job duties were, and what they performed.”
Nothing about the quality of their work performance.
Pressed on the subject of whether she was asked about em-
ployee work performance, McMahon hesitantly stated, “Yes.
If—how they—how they got along with others, things like that.
Just in conversation.”
Even as to that, McMahon could not recall telling Andrascik
anything at all about the applicants for employment other than
Weber. Andrascik claimed she asked McMahon about each of
the applicant’s performance. But McMahon did not recall this.
As to Rozsi’s performance, McMahon testified, “I don’t re-
member if I really said anything with her.” Asked if they
talked about Biller, McMahon stated, “I don’t think so. I think
that was just, I was asked if she was in the department.”
McMahon also denied talking to Andrascik about Yeckley.
However, as to Weber, she had some recall:

Q. What did you tell Andrascik about Weber?
A. Communications sometimes could be an issue, and
I—my opinion was, I wasn’t sure if she would be a team
player all the time.
Q. What about the communication problem? What
was that? Did you give any specifics?

37 Two more, one a former Laurel Crest employee was hired later.
Andrascik thought this was in February 2010.
GRANE HEALTHCARE CO. 1429
A. No, I did not. That was just in general.
Q. You said she wasn’t—you weren’t sure she would
be a team player all the time.
A. Yeah. It was—she was not a team player.
Q. So, did you say she was not a team player, or that
you weren’t sure she would be a team player all the time?
A. She was not a team player.

I do not credit Andrascik’s account of events.38 I find that,
in accordance with McMahon’s testimony, Andrascik called
McMahon sometime in December, during the time McMahon
was on medical leave and asked her about Weber in passing. I
find that she asked about no one else in that conversation.
McMahon expressed some general doubts about Weber’s
communication and “team” work. McMahon did not, contrary
to Andrascik’s claim, say anything about Weber’s attendance.39
I note that the timing of the call to McMahon is not estab-
lished in the record, although McMahon thought it was after
she had been hired, but before she returned from medical leave
on December 28. The record does not speak to when McMah-
on was hired. The record does not answer the question of
whether the conversation with McMahon took place before or
after the hiring decisions had already been made, and an-
nounced on December 21.40
Andrascik also testified that, based on her own observations
of Weber during December, she found Weber “very unfriendly,
and I was just afraid it was going to extend into the residents’
families.” These observations occurred when Andrascik was in
the building arranging the transfer of operations, and worked
primarily from a conference room that was near the cubicles
used by Weber and other employees. Notably, Weber went off
work December 2 and was off for approximately 2 weeks. This
left only a very few days in December for Andrascik to observe
Weber before the hiring decisions were announced on Decem-
ber 21.

38 As discussed, Andrascik’s various changes in her discussion about
Weber’s screening do not inspire confidence in the accuracy of her
testimony. Moreover, as to the reference issue, McMahon corroborated
only certain portions of Andrascik’s testimony, and indeed, contradict-
ed certain matters, as discussed in the text. Overall, Andrascik’s de-
meanor did not support her credibility. She appeared wary and uncer-
tain. Many witnesses are, and it is not necessarily a negative in terms
of credibility. But in this case, Andrascik’s demeanor, compounded
with the testimonial missteps, lead me to believe her testimony was not
accurate.
39 McMahon did not report having discussed Weber’s attendance
with Andrascik. Indeed, attendance came up only tangentially in
McMahon’s testimony, specifically with regard to Weber asking for
time off for union business at Laurel Crest, and the suggestion was that
there was no problem. McMahon stated that “my point was to . . . run
my department, and if she needed that time, I knew that I was asked to
give it or not give it, and if I could run my department, and that’s what I
did.” In other words McMahon granted Weber time off when McMah-
on thought, operationally, the department could afford to, and didn’t
when it could not. There is no indication in McMahon’s statements of
an attendance problem.
40 Recall that Lengle made such a posthiring call to Knee and ob-
tained a negative reference on Billy, that was, in all likelihood, later
attributed to Nelen.
Andrascik’s initial testimony that “what I looked at is expe-
rience” in hiring did not apply to consideration of Weber. Un-
like other applicants (such as McMahon and Rozsi), Andrascik
did not talk to Weber about her work experience.
Andrascik testified that this was all she based her decision
on. She testified that she did not know Weber was a union
officer when she made the decision.41 She looked at no per-
sonnel records or files in making her decision. As with
Lengle’s hiring process, Grane produced no notes or written
documents of any kind that related to Andrascik’s hiring pro-
cess. She took notes of the references she allegedly secured
from McMahon, no notes of her observations, and no notes of
the experience of the employees that she was interested in.
As with Lengle and the other discriminatees, Andrascik was
clear that Weber’s annual evaluations and personnel file were
not consulted in making the hiring decision. They were, how-
ever, entered into evidence on grounds that they could corrobo-
rate or undercut various testimony.
Notably, the evaluations from 2008–2009, and 2007–2008,
which were the evaluations conducted during and covering the
time period McMahon was at Laurel Crest, contain no negative
comments at all about Weber. On the other hand, earlier evalu-
ations, made prior to McMahon’s employment with Laurel
Crest contain mostly positive comments but also some negative
comments, which appear to track the reference Andrascik at-
tributed to McMahon. Thus, the 2003–2004 evaluation stated
that “improvement is needed in punctuality and call offs” and
that she needed to be a “team player.” The 2004–2005 evalua-
tion stated that Weber “sometimes can be overpowering—at
times abrupt. Needs to watch how she states things.” “Can be
abrupt to staff.” In 2005–2006, the evaluation (amidst many
positive comments) mentioned that “Sherry could improve on
her interpersonal relations, [at] times she comes across as being
abrupt.” The 2006–2007 evaluation stated that Weber needed
to work on “sensitivity toward others” and mentioned “a ten-
dency to become short w/ your co-workers.”
It is notable that Andrascik attributed to McMahon com-
ments about Weber found in the earlier evaluations—for in-
stance, about attendance—that McMahon did not endorse, and
that occurred before McMahon’s employment. And, it is nota-
ble, that McMahon’s “team player” comment is in the evalua-
tions, but only during a period some years before McMahon
came to Laurel Crest. Either the more recent evaluations are
inaccurate, or McMahon and Andrascik imbibed the substance
of the earlier evaluations in some unexplained way.
Analysis
A. Wright Line Provides the Appropriate
Analytical Framework
Section 8(a)(3) of the Act provides, in relevant part, that it is
“an unfair labor practice for an employer by discrimination in

41 Recall that Weber’s undisputed testimony was that in 2003, when
Grane was previously attempting to purchase the facility, Weber met
with Andrascik, in her capacity as a union official, and they discussed
labor management issues. It is also clear that McMahon, as Weber’s
former supervisor, who used to excuse her for union business, knew of
Weber’s union activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1430
regard to hire or tenure of employment or any term or condition
of employment to encourage or discourage membership in any
labor organization.” 29 U.S.C. § 158(a)(3). Under Section
8(a)(3), the prohibition on encouraging or discouraging “mem-
bership in any labor organization” has long been held to in-
clude, more generally, encouraging or discouraging participa-
tion in concerted or union activities. Radio Officers’ Union v.
NLRB, 347 U.S. 17, 39–40 (1954); NLRB v. Erie Resistor
Corp., 373 U.S. 221, 233 (1963). The discharge of an employ-
ee or the refusal to hire an employee applicant that is motivated
by his or her union activities is archetypal unlawful discrimina-
tion under Section 8(a)(3). Actual discouragement of union
activity or membership by the ill-motivated discrimination need
not be proven. It is enough that “discouragement can be rea-
sonably inferred from the nature of the discrimination.” Radio
Officers’ Union, 347 U.S. at 51, citing Republic Aviation v.
NLRB, 324 U.S. 793, 798, 800 (1945). As any conduct found
to be a violation of Section 8(a)(3) would also discourage em-
ployees’ Section 7 rights, any violation of Section 8(a)(3) is
also a derivative violation of Section 8(a)(1). Chinese Daily
News, 346 NLRB 906, 934 (2006), enfd. 224 Fed. Appx. 6
(D.C. Cir. 2007).
The Supreme Court-approved analysis in cases turning on
employer motivation was established in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). See NLRB v. Transportation
Management. Corp., 462 U.S. 393, 395 (1983) (approving
Wright Line analysis). In Planned Building Services, 347
NLRB 670 (2006), the Board held that Wright Line provides
the appropriate framework for deciding whether a successor
employer violated Section 8(a)(3) by refusing to hire predeces-
sor employees. This includes cases, such as this one, where
many of the predecessor employees were hired, but the General
Counsel alleges that the successor employer unlawfully dis-
criminated by refusing to hire certain union activists. TCB
Systems, 355 NLRB 897 (2010).
“To establish a violation of Section 8(a)(3) under Wright
Line where a refusal to hire is alleged in the successorship con-
text, the General Counsel has the burden of showing that the
employer failed to hire employees of its predecessor and was
motivated by antiunion animus. Once the General Counsel has
made this showing, the burden shifts to the employer to demon-
strate that it would not have hired the predecessor’s employees
even in the absence of its unlawful motive.” Downtown Hart-
ford YMCA, 349 NLRB 960 (2007).
The General Counsel’s proof of unlawful motivation for the
refusal to hire can be based on direct evidence or can be in-
ferred from circumstantial evidence based on the record as a
whole. Robert Orr/Sysco Food Services, 343 NLRB 1183,
1184 (2004), enfd. 184 Fed. Appx. 476 (6th Cir. 2006); Embas-
sy Vacation Resorts, 340 NLRB 846, 848 (2003).
Of significance here, “a pretextual explanation of the em-
ployer’s action will support an inference of discriminatory mo-
tivation.” Kentucky River Medical Center, 355 NLRB 657,
659–660 (2010); El Paso Electric Co., 355 NLRB 442, 442 fn.
3 (2010) (“we rely only on the judge’s finding that the Re-
spondent’s reasons for its actions were pretextual, raising an
inference of discriminatory motive and negating the Respond-
ent’s rebuttal argument that it would have taken the same action
in the absence of [the employee’s] protected activities”); All
Pro Vending, 350 NLRB 503, 508 (2007); Rood Trucking Co.,
342 NLRB 895, 897–898 (2004), citing Laro Maintenance
Corp. v. NLRB, 56 F.3d 224, 230 (D.C. Cir. 1995) (“When the
employer presents a legitimate basis for its actions which the
factfinder concludes is pretextual . . . the factfinder may not
only properly infer that there is some other motive, but that the
motive is one that the employer desires to conceal—an unlaw-
ful motive.”) (internal quotation omitted); Whitesville Mill Ser-
vice, 307 NLRB 937 (1992) (“we infer from the pretextual
nature of the reasons for the discharge advanced by the Re-
spondent that the Respondent was motivated by union hostili-
ty”), citing Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466
(9th Cir. 1966). Indeed, even something short of a pretext:
merely the failure to “substantiate [an] asserted rationale for not
hiring [alleged discriminatees], coupled with evidence under-
cutting th[e] rationale,” will support a finding of unlawful mo-
tivation. TCB Systems, Inc., 355 NLRB 897, 899 (2010).
Notably where “the evidence establishes that the reasons
given for the Respondent’s action are pretextual––that is, either
false or not in fact relied upon––the Respondent fails by defini-
tion to show that it would have taken the same action for those
reasons, absent the protected conduct, and thus there is no need
to perform the second part of the Wright Line analysis.” Rood
Trucking, 342 NLRB at 898, quoting Golden State Foods
Corp., 340 NLRB 382, 385 (2003); El Paso Electric Co., supra.

B. Application of Wright Line in this Case
In a Wright Line case, the General Counsel’s initial burden is
to establish that antiunion animus was a motive for the adverse
employment. “The elements commonly required to support
such a showing are union or protected concerted activity by the
employee, employer knowledge of that activity, and union ani-
mus on the part of the employer.” Kentucky River Medical
Center, supra at 658 fn. 5.
1. Union activity
Here the employees’ union activities and inclinations are
well established in the record, and support the contention that
an employer with antiunion animus and intentions would have
motive to take action against these applicants. Four of the five
alleged discriminatees were union officers with the Laborers at
Laurel Crest, and each held different positions over the years.
Some of them had conflict with Grane going back to 2003,
when Grane managed and first attempted to purchase Laurel
Crest. They were active in the Laborers activity around the
2009 sale. They were union officers at the time they applied
with Grane. Similarly, Lamer played a key role for SEIU in the
public campaign over the sale, as well as traveling to Grane
headquarters in an effort to confront Oddo.
Grane would stop the inquiry here, contending (R. Br. at 33–
34) there can be no 8(a)(3) violation for its failure to hire Billy,
Hagerich, Weber or Mulhearn, as a consequence of their activi-
ties for Local 1305 because, argues Grane, the employees’ un-
ion activities while employed at Laurel Crest were not protect-
ed by the Act. Grane contends that as a representative of em-
ployees of a public employer, Local 1305 was not a “labor
GRANE HEALTHCARE CO. 1431
organization” under the Act. In Grane’s view (R. Br. at 35), “it
is not an 8(a)(3) violation to refuse to hire them because they
held those positions.”
This is a meritless contention. At the latest, once the dis-
criminatees applied for work with Grane, they became employ-
ees under the Act (Phelps Dodge Corp. v. NLRB, 313 U.S. 177
(1941)), and protected by the Act from antiunion discrimina-
tion. They were still union officers at the time they became
applicants, so their union activity of holding union office was
protected activity under the Act at that point. But more gener-
ally, it is important to point out that whether or not the prior
union activity that makes an employee a target for an employ-
er’s antiunion animus was union activity governed by the Act is
an irrelevancy. The relevant issue is Grane’s motive for not
hiring these (statutory) employee applicants. If the discrimina-
tory refusal to hire was motivated by antiunion concerns, the
antecedent legal regime under which the employees displayed
their union inclinations is not important. The ultimate issue
under the Act is whether “encouragement or discouragement
[of union activity] can be reasonably inferred from the nature of
the discrimination.” Radio Officers’ Union v. NLRB, 347 U.S.
17, 51 (1954), citing Republic Aviation v. NLRB, 324 U.S. 793,
798, 800 (1945). The strength of that inference is not reduced
one iota on grounds that the employer’s antiunion discrimina-
tion was directed at applicants because they were union officers
of a union that previously represented employees under a state
law regime. Absolutely no rational Cambria Care employee (or
applicant) contemplating union activity would be less likely to
be discouraged based on the distinction drawn by Respondent.
(Section 8(a)(3) of the Act prohibits discrimination “to encour-
age or discourage membership in any labor organization,” long
understood to include encouraging or discouraging union or
protected activities. Radio Officers’ Union, 347 U.S. at 39–40;
Erie Resistor, 373 U.S. at 233.)
2. Respondent’s knowledge of union activity
Notwithstanding the denial by Lengle and Andrascik of their
personal knowledge of the discriminatees’ union activity, I
conclude that Respondent knew of the union activities of these
discriminatees. The evidence is strong, albeit indirect. Wind-
sor Convalescent Center of North Long Beach, 351 NLRB 975,
983 fn. 36 (2007) (“The General Counsel need not prove
knowledge by direct evidence; knowledge may be reasonably
inferred or imputed”), enfd. in relevant part 570 F.3d 354 (D.C.
Cir. 2009).
The names and positions of the union officers were posted in
two different bulletin boards within the facility. This includes
every discriminatee with the exception of Lamer. These items
were posted through the end of December 2009, when Cambria
Care assumed operations of the facility. By all testimony,
Grane representatives (including Lengle and Andrascik) were
frequently at the facility particularly from late October through
the end of December, when they were making plans to assume
operations from the county and were actively heading up the
hiring process. If Grane representatives did not know who the
union officers were, then the whole concept of posting notices
must be reconsidered. Windsor Convalescent Center, supra at
983 fn. 36 (display of steward certificates on union bulletin
board when successor toured plant before assuming operations
supports finding that successor had knowledge of stewards’
activities). Grane representatives would have to be indifferent
to the labor relations at the facility they were taking over in
order not to make note of the posted names of the union repre-
sentatives. They clearly were not. Indeed, the postings were
gone one day after Grane/Cambria Care assumed operations,
indicating Grane/Cambria Care was not indifferent to—or una-
ware of—the postings. By itself, this is enough to establish
Respondent’s knowledge of the officer’s union activity.
But it is also notable that Grane was not in the position of a
wholly new employer encountering Laurel Crest for the first
time. It had managed, and almost purchased the facility in
2003, coming close enough to consummating the purchase that
it held meetings with employees and made job offers to em-
ployees. Lengle, for one, recalled that she was at the facility on
a daily basis during this period. At that time, the Union active-
ly opposed the sale, with public actions, and legal action seek-
ing to enjoin the sale. Mulhearn, for one, recalled having sig-
nificant interaction with Grane representatives during this peri-
od.
In addition, as is evident from the purchase agreement, and
from the correspondence between the Laborers and Grane,
Grane was aware of the existence of the unions at Laurel Crest.
Grane received a copy of the expired Local 1305 agreement,
which undoubtedly was signed by at least some of the officers
and discriminatees. Mulhearn was the Union’s business agent
in 2009. He is copied, with his title, on correspondence dated
September 11, 2009, sent by the Union’s counsel to Grane, and
replied to by Grane’s counsel. Grane knew Mulhearn.
In the case of one of the discriminatees, Billy, his union
sympathies and activities were very much brought to the atten-
tion of Grane representative Wendy McDonald in 2003, when
she angrily terminated a group interview after Billy voiced his
view that the collective-bargaining agreement should be hon-
ored when Grane took over. Billy was then prevented from
completing the hiring physical by McDonald. McDonald re-
mains with Grane in 2009 and 2010, and was active in the
Cambria Care operations. Grane knew Billy.
Weber also had interaction related to the Union in 2003 with
Grane representatives. At that time she was the business man-
ager for the Union and in that capacity met with a number of
Grane officials, including, Andrascik, to discuss union-related
issues. These Grane officials took the position that Grane was
not obligated to recognize the collective-bargaining agree-
ment.42 Moreover, McMahon, who was a supervisor for Laurel
Crest, hired as a department head by Cambria Care, and alleg-
edly relied upon by Grane for information on Weber, knew that
Weber was a union representative and that, with McMahon’s

42 As noted Weber’s uncontradicted testimony on this subject is
credited. I believe Weber’s 2003 interactions with Andrascik and other
Grane representatives brought Weber to the attention of Grane, and I
specifically discredit Andrascik’s assertion that she did not know We-
ber was a union official. This discrediting is based on Weber’s testi-
mony, the objective evidence that would have called Weber’s status to
Andrascik’s attention, and my lack of confidence in Andrascik’s testi-
mony generally, discussed above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1432
concurrence, Weber took off work for union duties. Grane
knew Weber.
Hagerich was the Local’s president from 2005 through 2009.
She was involved with the Union’s 2009 activities related to the
sale of Laurel Crest. As such, as noted, her name and position
with the Union was posted on two bulletin boards in the facili-
ty. In conjunction with her fall 2009 activities her photograph
was on the front page of the area newspaper and she was on
local TV news reports. The Grane employees who adminis-
tered her physical were former Laurel Crest employees, at least
one of whom knew Hagerich when she was active in the Union
and on the executive board of the Union. Grane knew
Hagerich.
Lamer, who was active in public union activities held in con-
junction with the proposed sale of Laurel Crest, was featured in
newspaper and TV coverage of the Union’s events. More
pointedly, Lamer traveled to Pittsburgh to Grane headquarters
with an SEIU organizer for the purpose of talking with Oddo.
They arrived unannounced at Grane headquarters and were not
able to see Oddo. But the credited evidence is that their names
were relayed upstairs and probably written down for Oddo.
Lamer was at Grane headquarters on union business, with a
union representative, and this information was provided to
Grane. Grane knew Lamer.
The indirect and circumstantial evidence strongly supports
the conclusion that at least some Grane representatives were
aware of the union activity of each discriminatee. These repre-
sentatives’ knowledge is appropriately imputed to Grane. State
Plaza, 347 NLRB 755, 756 (2006) (supervisor’s knowledge of
union activity appropriately imputed to employer); Dobbs In-
ternational Services, 335 NLRB 972, 973 (2001). I find that
Grane was aware of the union activities position of each alleged
discriminatee.
3. Antiunion animus and motive
In terms of the General Counsel’s initial burden to show that
antiunion animus contributed to the decision not to hire the
discriminatees, the first factor is how few of the Laborers local
union officers were hired. As discussed, even assuming that all
Laborers-represented employees applied, over 80 percent off
them were hired by Cambria Care. But among local union
officers, the business representative, the president, the vice
president, and the secretary-treasurer were not hired. The evi-
dence suggests a newly (as in December) appointed executive
board member was hired by Cambria Care as well as two shop
stewards. But the leadership of the Union was—completely
disproportionately to the high rate of hiring of the general
workforce—rejected for employment. It could be coincidence.
It could be that the Local’s officers are below par (not that there
is any evidence of that, or any credible evidence that Grane
thought that). The other inference is that it was discrimination.
The grossly disproportionate refusal to hire these local union
officers is evidence in support of the General Counsel’s affirm-
ative case that discrimination played some role in the failure to
hire the discriminatees. Holding Co., 231 NLRB 383, 390
(1977) (disproportionate number of union adherents discharged
is evidence of discrimination); American Wire Products, 313
NLRB 989, 994 (1994) (“the Board and the courts have long
held that, absent a reasonable explanation, the disproportion
between the number of union and nonunion employees laid off
or discharged may be persuasive evidence of discrimination”)
(and cases cited therein); Baker Mfg., 269 NLRB 794, 816
(1984) (“Such a lopsided percentage favoring layoff/ termina-
tion of only union supporters is indicative of an unlawful moti-
vation and has been so recognized by the Board and the
courts”), enfd. in relevant part 759 F.2d 1219 (5th Cir. 1985).
With nothing else, I would find that this failure hire the en-
tire officer corps of the Local would satisfy the General Coun-
sel’s initial case and shift the burden to Respondent to persuade
that it would have taken the same action in the absence of union
activity.
But there is more, and it is very powerful evidence under the
circumstances. In her case-in-chief, counsel for the General
Counsel adduced compelling evidence that Respondent’s ex-
planation for its decision not to hire the discriminatees was a
pretext. As discussed, above, I have found that Lengle’s expla-
nation that Grane failed to hire the discriminatees as a conse-
quence of its nondiscriminatory reference-check protocol was,
indeed, a falsehood. The process described by Lengle, in par-
ticular, did not occur, and was not the basis for the decision not
to hire any of the discriminatees.
This explanation constituted an attempt—seized on as early
as January 2010, when Lengle offered her affidavits to the
Board—to manufacture an explanation to the questions being
asked by a federal agency about the failure to hire certain union
activists. In short, Lengle tried to pin it on Nelen, who was no
longer on the scene, having moved on to other employment.
However, this was a ruse designed to conceal the true motive
for Respondent’s actions. I infer that there is some other mo-
tive for the refusals to hire, but one the employer desires to
conceal. Under the circumstances, I infer that it is the unlawful
motive alleged in the trial: the alleged unlawful discriminatory
motive. Laro Maintenance Corp. v. NLRB, 56 F.3d 224, 230
(D.C. Cir. 1995). As noted above, “a pretextual explanation of
the employer’s action will support an inference of discriminato-
ry motivation.” Kentucky River Medical Center, supra; El Paso
Electric Co., supra; All Pro Vending, supra; Rood Trucking
Co., supra; Whitesville Mill Service, supra.
Accordingly, with regard to those Local 1305 officials re-
jected by Lengle (Mulhearn, Billy, and Hagerich), the govern-
ment has amply met its Wright Line burden and proven that
antiunion motives played a motivating role in the decision not
to hire them. Given that Respondent’s account of its hiring
decisions is a pretext, this “defeats any attempt by the Re-
spondent to show that it would have discharged the discrimi-
nate[e]s absent their union activities.” Rood Trucking Co.,
supra at 898; La Gloria Oil & Gas, 337 NLRB 1120, 1124
(2002). “This is because where ‘the evidence establishes that
the reasons given for the Respondent’s action are pretextual––
that is, either false or not in fact relied upon––the Respondent
fails by definition to show that it would have taken the same
action for those reasons, absent the protected conduct, and thus
there is no need to perform the second part of the Wright Line
analysis.’” Rood Trucking, supra, citing, Golden State Foods,
340 NLRB 382, 385 (2003). Respondent’s refusal to hire Mul-
hearn, Hagerich, and, Billy violated the Act as alleged.
GRANE HEALTHCARE CO. 1433
With regard to the refusal to hire Weber, I am less certain
that Andrascik’s account was wholly pretextual. On balance, I
believe, and find, that it was. But I am less certain of this con-
clusion than I am with regard to the rejections for which Lengle
took responsibility. At least in the case of Weber, McMahon
tentatively corroborated part of Andrascik’s story. Still, as to
the failure to hire Weber, I am left with the following regarding
Respondent’s contention.
Andrascik’s testimony—all the misstatements, and confusion
around whether Weber was screened out as part of the health
screening process—was suspect, as discussed extensively
above. Her testimony cannot be credited. Andrascik, without
rationale, interviewed some of the applicants, but not Weber,
about their experience. She claimed to have received, but did
not receive, according to McMahon, a negative report from
McMahon on Weber’s attendance. She claimed to have sought
a reference from McMahon on all the applicants in the business
office, but McMahon’s best recollection is that she only pro-
vided comments to Andrascik as to Weber only—not as to the
other applicants—and even the comments on Weber were of-
fered, “pretty much” in passing. These references are at the
core of Respondent’s defense. Yet, in McMahon’s telling they
amounted to a fleeting and seemingly inconsequential passing
remark in a phone call about one employee only—the alleged
discriminatee. Indeed, initially questioned about whether she
had been asked to give an assessment of employees’ work per-
formance, McMahon answered, essentially, no, saying she had
been asked “who did what in our department” and “what their
specific job duties were.” Reluctantly, when pressed, she then
endorsed making comments to Andrascik about Weber’s rela-
tions and communications with others. The timing of this call
from Andrascik to McMahon—whether before the hiring deci-
sions were made or, like the call placed by Lengle to Knee,
after the hiring decisions had already been made—is not dis-
cernable from the record. No records, no notes—not one piece
of paper—corroborates the process Andrascik claims was the
basis for her decision.43 Annual evaluations of Weber’s work
(that no one relied upon) provide no basis for McMahon’s (or
Andrascik’s version of McMahon’s) reference for the period in
which McMahon was at the facility. However, earlier evalua-
tions (developed in years before McMahon was there) seem to
echo the negative reference that Andrascik says she received in
2009. Then there is Andrascik’s negative personal “observa-
tions” of Weber, allegedly gleaned sometime in December
2009. Of course, Weber was out on leave from December 2
until approximately December 16. The hiring decisions were
announced December 21. Given Andrascik’s demeanor, and
testimonial confusion, I am not inclined to credit as true these
“observations,” which, of course, are uncorroborated, even by a
single contemporaneous note.

43 As noted, we know that a written account of references for some
employees does exist, as their references are contained in their applica-
tion materials. These forms show the date the reference was provided,
which Grane representative sought the reference, and from whom it
was secured. No such documents were provided for Weber, or, for any
of the discriminatees.
My conclusion is that the preponderance of evidence sup-
ports the conclusion that Respondent’s claim about the reason it
did not hire Weber is a pretext, as Lengle’s explanation clearly
was. But even assuming, arguendo, that the allegations regard-
ing Weber are appropriately viewed as a dual motive and not a
pretext case, then I find that Grane has failed to carry its burden
of persuading that it would have refused to hire Weber even in
the absence of her union activity. In other words, pursuant to
Wright Line, I have already determined that the unaccounted
for disproportionate failure to hire any of the chief Laborers
officeholders provides evidence that antiunion animus played
some role in the decision not to hire Weber. If Grane also had a
legitimate motive for failing to hire Weber (such as the com-
ments procured from McMahon) I find that Grane has not
shown that it would have acted on the legitimate motive and not
hired Weber in the absence of Weber’s union activity. Grane
has provided a dubious and unconvincing account of its actions
with regard to Weber. The evidence does not persuade that
Grane would have undertaken the same hiring decision had
Weber not been a union officer.
Analysis of the refusal to hire Lamer is similar, but slightly
different. Lamer was not a union officer. There is no evidence
that she was a victim of a disproportionate (much less the wild-
ly disproportionate) refusal-to-hire results documented for La-
borers officers. Yet, the violation of the Act I have found for
refusing to hire four Laborers office offers relevant evidence of
animus in hiring decisions when considering the failure to hire
her. While the animus inherent in the refusal to hire the Labor-
ers is relevant, if there were nothing else, that would be a
weaker case for the General Counsel in terms of Lamer.
However, just as much as in the case of the Laborers dis-
criminatees, the inference of antiunion animus gains heft from
the exposure of Respondent’s pretextual fabricated “explana-
tion” for the decision not to hire Lamer. Lengle claimed that in
the reference process, Nelen told her that Lamer had poor work
performance, and that these discussions were the basis for not
hiring Lamer. For reasons discussed above, I have discredited
this testimony, and credited Nelen’s testimony that she “defi-
nitely” did not speak with Lengle about Lamer, an employee
that she had little chance to observe (they worked different
shifts), whom she did not remember, and appears not to have
known. Lamer’s evaluations (which, Respondent, admittedly,
did not review in making the hiring decisions), provide no sup-
port for a claim by anyone that Lamer had poor work perfor-
mance.
This makes the General Counsel’s case. And it stands unre-
butted in the record. Respondent offers absolutely no rationale
for its decision not to hire Lamer, except the pretextual one that
it invented: that Lengle relied upon Nelen, in comments made
as part of a reference process engaged in between Lengle and
Nelen. As I have found, Nelen did not provide a reference as to
Lamer, and Nelen and Lengle did not undertake the reference
process described by Lengle. Grane’s articulation of this false
explanation for refusing to hire Lamer raises an inference of
discriminatory motive. El Paso Electric Co., 355 NLRB 442,
442 fn. 3 (2010) (in finding a violation, “we rely only on the
judge’s finding that the Respondent’s reasons for its actions
were pretextual, raising an inference of discriminatory mo-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1434
tive”); Whitesville Mill Service, 307 NLRB 937 (1992) (“we
infer from the pretextual nature of the reasons for the discharge
advanced by the Respondent that the Respondent was motivat-
ed by union hostility”). In other words, Respondent’s reliance
on a pretextual explanation for not hiring Lamer leads me to
believe that Grane is concealing the true motive, which I infer
to be an unlawful discriminatory one. Laro Maintenance Corp.
v. NLRB, 56 F.3d 224, 230 (D.C. Cir. 1995); Kentucky River
Medical Center, supra; All Pro Vending, supra; Rood Trucking
Co., supra.
Accordingly, Respondent’s refusal to hire Lamer violates the
Act as alleged.
Part III
Single-Employer Allegations
A. Grane’s Ceation of Cambria Care; Representations to
the State; Preparation for the Transfer to Cambria Care
Some of the relationship between Grane and Cambria Care
has already been discussed as part of the consideration of the
other aspects of these cases. But the record reveals significant
additional interrelationship.
Grane is owned by Richard A. Graciano Jr., David F. Gra-
ciano, Jeffrey J. Graciano (all brothers), and Ross J. Nese.
Richard Graciano is the CEO and chairman of Grane. Nese is
the president of Grane. Oddo is a vice president. Oddo also
serves as the chief operating officer, and has done so since
1992.44 Herb Hennell is a vice president for reimbursement.
David J. Kearney is Grane’s CFO and treasurer. Theresa
Creagh is the general counsel and secretary. Grane’s offices
are located at 209 Sigma Drive in Pittsburgh, Pennsylvania.
Cambria Care is a limited liability corporation, formed Octo-
ber 5, 2009,45 for the purpose of operating Laurel Crest. As
noted, Grane Associates owns 99.5 percent of Cambria Care.
Trebro, Inc. owns 0.5 percent. Nese is the President of Trebro,
Inc. Richard Graciano is the Chairman and CEO of Grane
Associates.
Cambria Care’s offices are, like Grane’s, at 209 Sigma
Drive, in Pittsburgh. Richard A. Graciano Jr., is the CEO and
chairman of Cambria Care. Nese is the president of Cambria
Care. Oddo is a vice president. Kearney is vice president and
treasurer. Hennell is vice president. Creagh is the general
counsel and secretary. Jeffrey Brown is a vice president.
Oddo, Nese, Kearney and Hennell are authorized to write
checks on both Cambria Care and Grane bank accounts.

44 According to the minutes of the 2009 board of directors, Oddo
was elected vice president and Theresa Creagh was elected general
counsel and secretary of Grane. However, in a December 2009 bank
signature form Oddo signs as vice president and secretary.
45 A Certificate of Organization was filed with the Pennsylvania De-
partment of State on October 5, 2009, intended to be effective “upon
filing.” A signature card for a bank account in Cambria Care’s name
was executed December 10, 2009. A consent of members in lieu of
organizational meeting document was executed November 24, 2009,
intended to be effective as if approved at a members’ meeting Novem-
ber 1, 2009. An operating agreement for Cambria Care was entered
into by the members November 1, 2009.
As referenced, above, on or about September 11, 2009,
Grane entered into an asset purchase agreement with Cambria
County for the purchase of the Laurel Crest facility, to be effec-
tive January 1, 2010. The purchase was financed with a revolv-
ing credit bank loan of (up to) $20 million made jointly to bor-
rowers Ebensburg Associates, Cambria Care, Grane, PAS, Pace
Healthcare and Trade Services Inc. This loan was guaranteed
by the Graciano brothers and Nese individually (and spouses),
as well as by a score of entities (some, identified otherwise in
the record as “Grane entities,” such as Grane Supply and Quali-
ty Nursing Solutions), for which Richard Graciano serves as the
CEO. The loan was secured by a mortgage on the property
executed by Richard Graciano, on behalf of Ebensburg Associ-
ates, in favor of the bank. The facility property is owned by
Ebensburg Associates. As stated in the license application
information submitted to the state, Cambria Care “will lease the
facility from Ebensburg Associates, LLC[,] who will be the
owner of the facility and is related through common ownership
and control.” Ebensburg Associates, which has the same cor-
porate address as Cambria Care (and as Grane, and Grane As-
sociates) has the identical ownership (i.e., 99.5-percent Grane
Associates) as Cambria Care.
Ebensburg Associates and Cambria Care are parties to a
lease, under which Ebensburg Associates is the “lessor” and the
lease requires payment of rent by Cambria Care to Ebensburg
Associates. That rent, set forth in section 1.3 of the lease, pro-
vides for payment of a base rent (which includes but is not
limited to the mortgage principal and interest payment, a re-
serve, taxes and interest, and insurance).
More unusually, the lease also requires payment of “addi-
tional rent” which is defined as the “positive difference, if any,
between (a) [Cambria Care’s] operating and non-operating
revenue and (b) [Cambria Care’s] operating and non-operating
expenses.” In other words, Ebensburg Associates receives all
of Cambria Care’s profit, as that term is most basically under-
stood (and as defined by Cambria Care’s administrator, Owen
Larkin, at the hearing). The record does not speak to Ebens-
burg Associate’s agreements with its 99.5-percent owner Grane
Associates, other than the acknowledgment that, as referenced
above, that Ebensburg Associates is related through common
ownership and control.
In conjunction with the application filed with the State of
Pennsylvania for a license to operate the facility, Respondent
filed papers with the state providing requested information (GC
Exh. 38). The information report stated that Graciano, Nese,
Kearney, Creagh, Hennell and Brown are “responsible for the
overall business direction of [Cambria Care].” The license
application also explains that,

Grane Healthcare Company manages the operations of all of
the Grane related nursing facilities along with four personal
care facilities each of which are attached to one of the nursing
facilities.

This document lists the Grane-related facilities and states
that they are under “common management, ownership and/or
control.”
The license application submission also states:

GRANE HEALTHCARE CO. 1435
Adapting to the changing healthcare environment is an ongo-
ing concern for Grane and its facilities in order to meet the
constantly changing needs of their residents. Grane will work
with the existing staff in order to improve the quality of care
at the facility and to correct any existing deficiencies. Grane
will also look at hiring outside personnel to improve the num-
ber, quality, and experience of the staff in order to facilitate
the correction of any deficiencies and improve the quality and
effectiveness of care.

Furthermore, Grane’s management team will continue to
evaluate the primary service area in order to indentify any
services that may not be fully satisfied by the resources cur-
rently available. The team will then look at developing pro-
grams that will assist in meeting those community needs. The
management team will also continue to evaluate other pro-
grams that may assist residents and make the facility a more
comfortable home, assist with resident rehabilitation, and ease
their adjustment to the new environment.

. . . .

The Center’s staff will be evaluated and staffing at the facility
will be adjusted appropriately as the resident population and
acuity changes. On an on-going basis Grane will be looking
to recruit new staff from outside of the facility that will pro-
vide additional knowledge and experience to that of the exist-
ing staff.

Additionally, as the resident population changes staff will be
added in a manner which will allow each new employee,
whether professional or non-professional, time to orientate to
the facility and the specific needs of the residents.

The appropriate staffing will also be adjusted as new pro-
grams are developed and added to meet the needs of the resi-
dents and assist them in their rehabilitation and recovery.

. . . .

The operation of the facility will be evaluated by the Admin-
istrator, Grane’s management team (including Quality Assur-
ance, DON, RNAC, Dietary Director, Therapy Director, etc),
and the existing staff of the facility and changes implemented
as necessary.

On an on-going basis, Grane’s management team is continu-
ally looking for, analyzing and discussing new approaches to
the delivery of services. Grane implements those changes that
the facility and medical staff agree will be beneficial to the
residents.

The license application responds to questions asking the
“Applicant’s previous experience in operating health care fa-
cilities inside or outside Pennsylvania.” These questions are
answered by Grane. The first subparagraph question in this
section asks for a list of “[t]he type of health care facilities
currently or previously owned, managed or operated by Appli-
cant.” The answer lists eight Grane-related health care facili-
ties and then contains the following statement:

Grane Healthcare has in the past managed Good Samaritan
Nursing Care Center located in Johnstown, PA. Grane has al-
so managed the Cambria County nursing facility, Laurel Crest
Nursing & Rehabilitation Center in Ebensburg, from January
2003 through June 2003 and is in the final stages of the acqui-
sition of this facility which is expected to occur January 1,
2010.

The answer goes on to provide information about other facil-
ities that Grane has managed and, in response to further ques-
tions, identifies the “four Grane-related facilities” that “have
had actions taken against them by a state agency.”
The license application lists Owen Larkin, Cambria Care’s
administrator, as the individual appointed to act on the appli-
cant’s behalf in the overall management and operation of the
facility, and states that he will have responsibility for day-to-
day operations and will provide immediate direction and con-
trol over the delivery of health care services to the individuals
served by the facility. In addition to listing Larkin, this section
also states “See attachment C,” although the attachment is not
attached to the copy of the application entered into evidence.
As discussed, above, the record is clear that Grane, and its
spinoff PAS,46 were responsible for the staffing of Cambria
Care and for making sure that the facility was ready to operate
as of the January 1, 2010 transfer of operations from Laurel
Crest. As referenced, the record contains a number of asser-
tions from Grane personnel that the assumption of the operation
of the Laurel Crest facility on January 1, 2010, including the
hiring of employees in December 2009, proceeded in a manner
standard and familiar to Grane, which, as noted, manages and
owns the operating companies of numerous health care facili-
ties in Pennsylvania.
Oddo, the COO of Grane, and a vice president of Cambria
Care as of January 1, 2010, was the “boss.” He assigned
Lengle, Grane’s QI department head, to lead the hiring and
processing of applicants from Laurel Crest to work at the
Grane-managed Cambria Care. The QI department is com-
posed of clinicians who, as Oddo explained it, “teach, orient,
write policy” for “[e]mployees of the various operating entities
that [Grane] manages,” including the Cambria Care Center in
Ebensburg. Lengle explained that “[w]e provide service to the
nursing departments in the facilities in which Grane Healthcare
manages, includ[ing] survey compliance, risk management,
anything that the facilities may request.”
Lengle was familiar with the task of hiring employees and
arranging for the assumption of operations at Cambria Care
from similar work performed during other Grane purchases and
she did not need instructions from Oddo on how to undertake
this task.
Oddo was personally involved to some extent: he was pri-
marily responsible for setting the initial wages at Cambria Care.
He interviewed some of the top management applicants, and
hired the administrator, Owen Larkin. A variety of additional
Grane consultants helped to staff the facility. Oddo developed
the job description used for Larkin’s position, using “something
that I’ve done in the past,” that was similar to job descriptions
used for other facilities that Grane manages. He also inter-

46 As noted, PSA’s CEO and chairman is Richard Graciano; its pres-
ident is Ross Nese; its vice president and treasurer is David J. Kearney;
and its general counsel and secretary is Theresa Creagh.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1436
viewed Rebecca Nelen to be director of nursing, but she did not
accept the offer. In the end, Lengle interviewed the successful
candidates for DON and assistant DON, and Oddo simply con-
firmed her choice. Oddo also interviewed a registered nurse
assessment coordinator, an admissions case management em-
ployees, and a social worker.
The QI Staff, headed by Lengle, was responsible for decid-
ing which of the Laurel Crest employees would be offered
nurse’s aides, and LPN positions. This was also the case for
the hiring of staff nurses, charge nurses, and nurse supervisors.
Housekeeping employees were selected by Wendy McDonald
of Grane. Candidates for positions in the dietary department
were selected “by our consultant dietitian,” Chris Mazilak.
Business office candidates were selected by Vivian Andrascik,
as discussed extensively, above. At Oddo’s request, mainte-
nance candidates were recommended by Tom Tomassey who
runs Trade Construction. (Oddo could not recall to whom those
recommendations were made.)47
Ultimately, the Grane QI nurses made offers of employment
to Laurel Crest staff to work at the facility with Cambria Care
as of January 1. They established schedules for all shifts to be
used upon the transfer to Cambria Care. Oddo met with the
Grane QI nurses casually during this period to see how the
hiring and scheduling process was coming along.
The offer-of-employment letter provided to employees states
that questions could be answered by Jim Woodley, a Grane HR
consultant, and the letter provided his phone number and exten-
sion.
Owen Larkin, Cambria Care’s administrator, was hired as
the administrator by Oddo in December 2009. He was the chief
Cambria Care official on site at the facility as of January 1,
2010.
Larkin reports to Oddo and Oddo has the authority to fire
him. According to Larkin, when he was hired, Oddo never
discussed anything with him about which entity would operate
Cambria Care, or own the building. There was no discussion
about the management agreement between Cambria Care and
Grane, discussed below, that formalizes Grane’s management
role at Cambria Care. At the hiring meeting with Oddo, there
was no discussion about whether Grane or some other entity
would operate the facility.
Even before January, working from his home Larkin re-
viewed vendor contracts, verified computer inventory, and took
questions regarding computers that needed to be used by Cam-
bria Care. During this period of time Lengle called to ask his
opinion regarding department heads, but otherwise he was un-
involved in hiring decisions regarding any employees or in
decisions about the wages and benefits to be offered to Cambria
Care employees.
B. The Role of Grane in Cambria Care’s Affairs
After January 1, 2010
Larkin testified that as of January 1, 2010, he became re-
sponsible as administrator for the day-to-day operation of

47 Tomassey introduced Larkin to Trade Facility Services, listed on
Grane and Cambria Care’s financials as an affiliated company. Trade
Facility Services performs construction work at Cambria Care.
Cambria Care, and, ultimately, responsible for hiring decisions.
At the hearing, Larkin and Respondent were intent on offering
testimony that showed Larkin, and Cambria Care personnel
working under him, in charge of the facility. There is no deny-
ing, however, the sustained and ubiquitous involvement of
Grane individuals and entities in the operations of the Cambria
Care facility.
As stated in the license application provided to the Com-
monwealth, Grane manages the operations “of all of the Grane
related nursing facilities.” This modus operandi is in place at
the Cambria Care facility. The arrangement is formalized at
Cambria Care (and at other Grane-purchased facilities) through
a management agreement that retains Grane to manage the
facility. The management agreement at Cambria Care was
entered into December 5, 2009, effective January 1, 2010, and
is between Grane and Cambria Care. Pursuant to the manage-
ment agreement, Cambria Care retains Grane to “manage the
business and operations of the Facility.” The agreement desig-
nates Grane as the “Manager” and Cambria Care as the “Opera-
tor.” The agreement was executed by Richard A. Graciano, Jr.
for Cambria Care and Ross J. Nese for Grane. As discussed
above, both are top officials of Grane and of Cambria Care.
Graciano is the CEO and chairman of Grane and of Cambria
Care. Nese is the president of Grane and of Cambria Care.
Oddo testified that the management agreement was similar in
content to the management agreements used at other Grane
facilities with which he has worked. As far as he knows, there
were no negotiations involved with respect to its adoption.
Someone, Oddo believes it was not he, provided Larkin with a
copy of the management agreement in January 2010. Larkin
has never attempted to change the management agreement, or
negotiate over it. The management fee is calculated based on
the agreement and set forth in the financial statements provided
to him monthly by consultants Andrascik and O’Brien. No one
at Cambria Care calculates the management fee to ensure that it
is accurate.
The management agreement appears to be the formal basis
justifying the presence and utilization for a coterie of Grane-
affiliated individuals and entities working at and on behalf of
Cambria Care. Despite testimony quite obviously intended to
emphasize his personal authority over the facility, Larkin and
other witnesses described a management operation that relies
heavily on assistance and support from Grane (and Grane-
affiliated personnel).
Through the course of his testimony Larkin identified nu-
merous different consultants who assisted him at Cambria Care.
Larkin did not hire any of them. He testified that “I was in-
formed who my consultants were, and that’s who I call.” His
“consulting attorney” is Terry Creagh. His maintenance and
construction consultant is Tom Tomassey, who “introduced”
Larkin to Trade Facility Services, a “Grane entity” that per-
forms construction-related maintenance for the facility. Wendy
McDonald of Grane is his “laundry consultant.” Mark Fox, a
Grane VP, is his “marketing and business development consult-
ant.” His accounting consultant is Lisa O’Brien, along with
Andrascik, Trudy Lytle, and “a gentleman named Brian.” Jim
Woodley is his HR consultant. There is a consultant pharma-
cist from Grane Supply, another commonly owned Grane entity
GRANE HEALTHCARE CO. 1437
and the pharmacy service brought in to be Cambria Care’s
pharmaceutical supplier. Larkin’s administrator’s consultant is
Becky Jobe. Larkin usually testified that he did not know by
whom any of these consultants were employed, although he
referred generally to many of them as “my consultants from
Grane Healthcare.” In fact, each is employed by an entity con-
trolled by Grane (or Grane Associates). Larkin was vague
about whether there were contracts with each of these entities,
or what the contracts looked like. For the most part he did not
know.
After the assumption of Laurel Crest by Cambria Care on
January 1, 2010, Grane consultants and employees continued to
provide their services to Cambria Care. They are “very fre-
quently” at the facility as of the date of the hearing, although
Oddo claims this will decrease over time. These include Grane
QI department employees, PAS administrative personnel, fi-
nancial personne,l and other consultants. Lengle estimated that
for the first 2 or 3 months of 2010, she was at Cambria Care 5
days a week, and then approximately 2 or 3 days a week since
then. Other QI nurses also continued working at Cambria Care
in 2010 as well. No time records are kept of the Grane em-
ployees/consultants work at Cambria Care.
Prior to January 1, 2010, Grane decided to implement a new
software program at the facility to allow it to track accounts
payable and receivable, as well as resident’s trust accounts.
The implementation of this new program continued into March
2010.
According to Oddo, when the Grane personnel work at
Cambria Care they are not working under Larkin and do not
have to report any of their work to Larkin. According to
Lengle, QI nurses often let Larkin know at the end of the day
“what we had accomplished, and where our progress was, was
there anything else” and Lengle would ask Larkin “was there
anything he needed me to do for him.” Larkin testified that he
decides what tasks the QI nurses perform each day. However,
Lengle testified that she did not receive any documents or pa-
perwork from Larkin during her time at Cambria Care. In
2010, Lengle and her staff spent time training nursing staff in
policies adopted by Cambria care, policies that Lengle had
provided to the Cambria Care DON. A similar process oc-
curred with regards to dietary staff. Lengle testified that her
duties included providing updated “policies, procedures, educa-
tional materials, and articles that we wanted them to read.”
Lengle did not consult with anyone, such as Larkin, before
providing these materials to the Cambria Care managers and/or
staff. Lengle also engaged in training nursing supervisors at
Cambria Care. She would check with Larkin or the DON Dais-
ley to schedule these.
Larkin described Lengle and her staff as consulting with him
regarding oversight of the clinical departments in the building.
“They do rounds, and observe the staff, and then come to me
and make recommendations about things they should or should
not be doing. . . . [T]hey occasionally will give me recommen-
dations on admissions, if they are clinically complex.” Larkin
also described Lengle and her staff as “monitoring” the nursing
home staff, sometimes moving unaccompanied through Cam-
bria Care, or, normally, with the DON or assistant DON.
“Lengle does rounds on the floors to observe the work product,
the care of the residents . . . [a]nd then she reports that to me.”
Larkin testified that “[g]enerally” Lengle and her staff’s sug-
gestions for changes or modifications are implemented. Larkin
described two cases in which he delayed implementation of
changes to programs recommended by Lengle, but subsequent-
ly implemented one of them. Larkin described another incident
where Oddo had asked him about removing a pavilion that
served as a covered outdoor structure on grounds for residents
to use. Larkin objected to it being torn down and as a result,
asserted Larkin, “the pavilion is still there, and will be staying
there.”
Attorney Creagh, the General Counsel, and an officer of both
Cambria Care and Grane, collaborated with Larkin in writing
letters to employees regarding the NLRB case and works with
other legal matters. Larkin has not seen any bills from the firm
representing Cambria Care in this proceeding, and is not sure if
Cambria Care gets those bills.
A variety of “Grane entities” (as identified on Jt. Exh. 1, p.
3) operate at Cambria Care. Apex Rehabilitation Solutions
provides therapy. Quality Nursing Solutions provides agency
personnel for the nursing department at Cambria Care. Trade
Facility Services does the construction-related maintenance for
the Cambria Care facility.48
Apex Rehab Solutions is a Grane affiliate. They provided
ventilator care for Laurel Crest. Since Cambria Care has taken
over, the Apex employees providing this care have become
Cambria Care employees. However, Apex continues to provide
physical, occupational, and speech therapy. Larkin testified
that this was his decision and he did it without seeking permis-
sion, although he may have discussed it with Oddo. Larkin
took credit for deciding to use particular vendors or contractors
for food,49 medical supplies, elevator servicing, landscaping,
medical waste removal, fire suppression, records management,
none of which were Grane-affiliated. Larkin testified that he
was unaware of any Grane related business that provided these
services (with the exception of the possibility that Trade Facili-
ty Services could provide landscaping).
In January 2010, Cambria Care began using Grane Supply as
the facility’s primary pharmaceutical supplier. Grane Supply
provides over 97 percent of pharmacy services for Cambria
Care. Oddo made the decision in December 2009 to use Grane
Supply as the supplier of pharmaceuticals for the Cambria Care
facility. In doing so Oddo removed the pharmaceutical supply
company used by Laurel Crest, deciding “to go with the one
that we have used in all of . . . the other managed entities, and
we have had success with them.”50

48 Larkin testified that, as to each of the companies, he did not know
whether or not they were Grane-related entities.
49 Although, as to the new food vendor, Larkin also testified that this
vendor was recommended to him, by a party or person whom he could
not recall.
50 Asked if Grane Supply was a “related company to Grane
Healthcare,” Oddo responded, as he was wont to do, that Grane Supply
was “[a] separate entity.” Asked if Grane Supply had the same owners
as Grane Healthcare, Oddo responded that “I don’t know what the
ownership structure is, exactly, no.” These answers struck me as, if not
evasive, then less than forthcoming. Clearly, Oddo, understood that
Grane’s defense to the single employer allegations involved accentua-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1438
Oddo told Larkin that “Grane Supply would have the best
price, and that’s who you should use.” Larkin did not take bids
or look at other pharmaceutical options, and has not done so.
Larkin testified that he did not ask Oddo for any verification, or
why he thought this, because “I feel that Mr. Oddo has my
facility’s best interests at heart.” Nonetheless, in 2008, while
working at Laurel Crest, Larkin had recommended termination
of Grane supply as the pharmacy used by Laurel Crest, in part
because another pharmacy had better prices. That change was
made. Grane Supply was then reinstated as the pharmacy ser-
vice for the facility upon Cambria Care’s assumption of opera-
tions.51
In addition to its own laundry, the laundry of another Grane-
managed facility, Altoona Care Center, is done at the Cambria
Care facility. It is one of the facilities listed on the license In-
formation provided to the state as being under common man-
agement, ownership and control with the other Grane facilities.
Larkin testified that he believed that plans were in the offing for
the laundry of an additional facility, or two, to be performed at
Cambria Care, but he added, “I wouldn’t know.” He identified
laundry consultant and Grane employee Wendy McDonald as
the individual who would be in charge of and knowledgeable
about that. Larkin testified that the Altoona laundry had begun
being done at Cambria Care about 3 weeks before. The matter
came to his attention when Oddo asked Larkin if he felt his
facility was large enough to handle other laundry from outside
the building. Oddo told Larkin that McDonald would handle
the issue of the need for increased personnel stemming from the
added work on the laundry. Larkin is unaware of any financial
changes or arrangements related to this increase in laundry.
The laundry at Cambria Care is done by a company called Pre-
ferred Laundry Service (PLS), another Grane entity. This be-
gan with the changeover from Laurel Crest. Larkin did not
know much of the details. He did not know if the Cambria
Care laundry workers were terminated to make way for PLS,

tion of the distinction between Grane and its network of companies.
Oddo tailored his testimony to that end. But Cambria Care’s filings
with the Commonwealth confirm the common ownership of Grane
Supply and Grane. Larkin testified that he did not know if Grane Sup-
ply has a relationship to Grane. As set forth in the information provid-
ed to the State, Grane Supply is owned by the Graciano Brothers, and
Nese, the same individuals who own Grane and Grane Associates, the
99.5-percent owner of Cambria Care, Ebensburg Associates.
51 Generally, Larkin committed himself to an ignorance of the Grane
affiliation of many servicing vendors that is simply not believable. He
testified that he did not know why companies listed as “affiliates” on
the financial statements he received were so listed, and denied knowing
if it was because they were Grane-related companies. With regard to
the relationship between Grane and Cambria Care, there was an unmis-
takably self-serving quality to Larkin’s testimony. Whenever asked by
counsel for an opposing party about whether another entity or individu-
al was affiliated with Grane, Larkin said he did not know. This hap-
pened repeatedly, to the point where he declared a lack of knowledge of
the employer of an individual whose email ended in @grane.com.
However, when Respondent counsel sought information, Larkin was
more forthcoming and readily agreed with suggestions that a particular
company or person was “Grane affiliated.” I think Larkin knows (no
matter who asked the question) whether a person or company was
“Grane-affiliated.”
but he contended they were the same employees who began as
Cambria Care employees in 2010, or at least, the same laundry
employees who worked for Laurel Crest. Larkin did not know
the timing of the change. He could not recall if this was ever
discussed between himself and Oddo. He then said that Oddo
presented the idea to him. He is unaware if PLS pays Cambria
Care for water, electricity or other costs of doing the laundry
onsite, or how much, if anything, Cambria Care pays PLS.
However, Oddo told him there would be a cost savings to using
PLS. Because Cambria Care is still responsible for mainte-
nance and repair of the laundry machines, Larkin believes that
Cambria still owns the machines used by PLS, but later testified
that he did not know if PLS purchased them when they came in
to the facility. There is, in fact, a payment from Cambria Care
to PLS beginning in the February accounts payable documents
for Cambria Care.52
Andrascik and PAS employees continue to perform work at
Cambria, several days a week. Prior to January 2010, in addi-
tion to hiring employees for the business office, Andrascik
worked at the facility setting up resident accounts. As of the
date of the hearing PAS was building the software system used
at Cambria Care. Andrascik would direct employees of Cam-
bria Care in the use and implementation of the software pro-
gram that organized patient accounts that she had set up as part
of the transition. Andrascik met with Larkin for the first time
in January. After January when she came to Cambria, An-
drascik would discuss with Larkin what she would like to ac-
complish. She was often accompanied by two PAS subordi-
nates who worked with her. Andrascik testified that Larkin
never interfered or told her to do something else. In other
words, he did not direct her work.
Larkin’s business office consultant, Lisa O’Brien works for
Grane (or perhaps, PAS) and prepares a budget for Cambria
Care. The initial Cambria Care budget was prepared before
January 2010 but received by Larkin in January. He made
some changes to it.
At the hearing, Larkin testified that he did not know what en-
tity owns the facility building, and did not know who are the
principals of Cambria Care. He testified that he has never seen
the lease for the building, and did not know there was a lease
between Cambria Care and Ebensburg Associates. He does not
know how it works. He does not know what Ebensburg Asso-
ciates is. He is unfamiliar with payments made to that entity by
Cambria Care. In fact, there is a lease, signed for both parties
by Nese as president of each entity. Larkin has never seen the
operating agreement governing Cambria Care. He does not
know Oddo’s position with Grane or his position with Cambria
Care. He does not know who his consultants O’Brien and An-
drascik work for. No one affiliated solely with Cambria Care

52 Larkin was unaware of whether the laundry machines were leased
to PLS. There is a lease between PLS and Ebensburg Associates, for
space in the facility, and requiring payment of monthly rent. Larkin
had never seen the lease prior to the hearing. The lease reveals that
both PLS and Ebensburg Associates share the same address, which is
the same address as Grane. The lease is signed by Nese for the tenant
PLS and Kearney for the landlord Ebensburg Associates. Kearney is
the treasurer of Grane, Cambria Care, and PLS. Nese is the president
of Grane, Cambria Care, and PLS.
GRANE HEALTHCARE CO. 1439
checks the management fee paid to Grane each month to see if
it is in accord with the fee required by the management agree-
ment. Although Larkin testified that he was unfamiliar with
Ebensburg Associates, he also testified that he reviewed and
was responsible for the completion of the monthly financial
statements—prepared by consultants unknown—which were
combined financial statements for Ebensburg Associates and
Cambria Care. Larkin testified that he only looks at the portion
relating to Cambria Care.
Larkin oversees the purchase of equipment (such as wheel-
chairs, lifts, a tractor) for the facility. A Cambria Care employ-
ee, Tim New is the supply manager. However, Larkin indicat-
ed that if he needed expensive, such as a “million dollar piece
of equipment, I would be asking my consultants for help and
recommendation.”
Larkin has “monthly administrator’s meeting” by video con-
ference with Oddo to report on the previous month’s resident
census, and financial data.53 This conference call also includes
Lisa O’Brien, Mark Fox and occasionally Rick Graciano or
Ross Nese.
Most generally stated, the record overwhelmingly supports
the conclusion that the financial administration of the facility is
wholly in the hands of Grane consultants and officials. Larkin
is largely ignorant of those aspects of the operation. He is more
involved in staffing and labor relations issues, but is heavily
reliant on the assistance of the Grane consultants.
According to Larkin, after January 2010, the hiring at the fa-
cility has been done by Cambria Care personnel. More specifi-
cally, the staffing office at Cambria Care does initial hiring,
with a followup interview by the DON or his designee. Ulti-
mately Larkin reviews and passes on the recommendations.
Applicants come from walk-ins, newspaper ads, and the Grane
website, where Cambria Care openings are posted. It is also
true that in February 2010, when the business office hired two
additional employees, Andrascik interviewed the applicants
recommended by McMahon.
Larkin testified that he has ultimate and exclusive authority
to make hiring decisions on employees at Cambria Care. He
testified that he makes decisions on whether or not to fill a
position (although he appeared unsure, for instance, whether
more staff nurses were employed as of the hearing than on Jan-
uary 1, 2010, when Cambria Care began operations). Larkin
testified that he would have “signed off on any” such decisions.
Larkin testified that he reports to Oddo, and also consults with
Oddo and seeks his recommendations regarding operational
issues such as pay raises, and staffing levels.
Larkin could not recall whether, prior to the hearing in this
matter, he had had discussions with anyone about SEIU’s de-
mand for recognition. Since January 2010, Larkin “may have
had discussions” with Oddo ‘regarding [wages and benefits for]
specific employees, and his opinion on my ideas for . . . adjust-
ing wages.” In each of the three or four specific cases he re-
called, the employee was given a wage increase after these

53 Early in his testimony Larkin denied that he met with Oddo on a
regular basis since January 1, 2010. Later he revealed that he has a
monthly video meeting with Oddo in which “I report to him numerous
things.”
discussions. Larkin has not had discussions about the overall
wage package on a general basis.
In January, Cambria Care began operating with the job de-
scriptions that Laurel Crest used. Since then, Larkin has ob-
tained job descriptions from Grane, available on a Grane web-
site available to facility administrators (and perhaps certain
other facility personnel). According to Oddo, and according to
the management agreement, Cambria Care has “ultimate re-
sponsibility” as to whether these job descriptions from Grane
are implemented or amended. However, Oddo, while describ-
ing himself as not being directly responsible for their prepara-
tion, added, “I am the boss, so I guess indirectly . . . I have
overall responsibility.”
Larkin provided the Grane job descriptions to the relevant
department heads for review, and to suggest changes for him to
then approve. As of the date of the hearing, Cambria Care was
still using the Laurel Crest facility job descriptions, except in
the dietary department where the new Grane-based (as modi-
fied by Larkin) job descriptions were in effect. New job de-
scriptions for the maintenance department were in the process
of being implemented. The changes made to both dietary and
maintenance Grane job descriptions were “minor.”
More generally, the Grane management website is available
to Grane-affiliated facility administrators and makes available
reference materials, including job descriptions that administra-
tors can use for their facilities. Lengle told Larkin that he could
use this site “to get documents to help me run the building, job
descriptions, policies and procedures . . . [and] the employee
handbook is there.” Preplacement criteria forms used by Cam-
bria Care come off the website.
It is also notable that the Grane public website is a detailed
source of information about Cambria Care and other Grane-
related facilities. Larkin claimed responsibility for reviewing
items that would be posted on the Grane website for Cambria
Care, although he did not know that job openings were put
there. Larkin then indicated that those would come from a
staffing coordinator at Cambria Care and go straight to the
Grane consultant Mark Fox. Grane’s website identifies Cam-
bria Care, and the other facilities it manages, as “our locations.”
Links to each related nursing care facility, including Cambria
Care are provided on the Grane website. Clearly, the design of
the websites was commonly prepared.
At Larkin’s request, Grane HR consultant Woodley provided
ideas on an employee-of-the-month program and suggested a
star program that Larkin implemented after making some revi-
sions. Larkin received the draft employee personnel handbook
from Woodley. Larkin testified that he doesn’t know who
Woodley works for but he associates him with a Grane-related
company. Larkin used the handbook as a template and, in con-
junction with the department heads, made some changes to it to
make sure it was appropriate for the Cambria Care facility.
Larkin also looked at personnel manuals he had from prior
employment. Off the top of his head Larkin was able to identi-
fy a number of sections that he made changes in to tailor the
handbook to Cambria Care. The revised manual was imple-
mented in late January or early February 2010. He did this
without further aid from anyone associated with Grane.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1440
The personnel handbook issued to employees by Cambria
Care provides for a four step complaint procedure culminating
in arbitration (if arbitration is mutually agreed to). Steps one
and two involve efforts to resolve the dispute by speaking, first,
with the relevant supervisor, and then second, by requesting a
meeting with the DON, or assistant DON and/or the facility
administrator. An employee not satisfied with the step 2 deci-
sion “may prepare a written summary of your concerns and
request that the matter be reviewed by a complaint resolution
committee at the home office.*”
The asterisk references the following instruction:

*To contract the home office please use the employee hotline
number (1-866-869-5987) or send to Grane Healthcare, 209
Sigma Drive, Pittsburgh, PA 15238, attention: Employee Re-
lations. (Original emphasis.)

The personnel handbook explains that this home office
committee “is composed of the director of employee relations,
the head of your division, and a third member from outside
your division to be selected by the other two committee mem-
bers.”
The benefit plans available to Cambria Care employees were
presented to employees on a sheet similar to one used at other
Grane-related facilities. It is created by PAS and approved by
Oddo for distribution. The 401(k) plan offered to Cambria
Care employees is also offered to some employees at other
facilities managed by Grane. The employee assistance program
offered to Cambria Care employees is also available to employ-
ees at other facilities managed by Grane, and it is approved by
Oddo. The benefit plans available to Cambria Care employees
are administered by CHC Management which, according to the
benefit plans document “is the management company of all
Grane entities.” Grane pays a fee to CHC Management on
behalf of the entities managed by Grane. Cambria Care em-
ployees choose their benefits from a “cafeteria” plan of differ-
ent benefit options. The format they chose from was a Grane
format approved by Oddo. Oddo also approved the 401(k) plan
description distributed to the new Cambria Care employees.
Cambria Care recently implemented voluntarily training for
LPNs to learn how to administer and maintain intravenous (IV)
lines. The idea originated with Larkin, who consulted with
Lengle about why the LPNs at the facility do not work with
IVs. In consultation with Lengle, Cambria Care developed a
program to train LPNs to do this work. The intention is to im-
plement this change in the LPN job duties.
The Cambria Care resident handbook sets forth a multistep
complaint process and procedure for residents to utilize in reg-
istering complaints. Step one directs the complaining resident
to contact the relevant department supervisor, and step two
directs the resident to file a written grievance/complaint report
and also suggests that the resident may contact Larkin, or DON
Daisley. Step three directs residents to contact Grane and pro-
vides a phone number and hours when the line is answered at
Grane. Step four and step five direct the resident to contact
relevant county and state agencies. Larkin discussed the resi-
dent handbook with Lengle and with Becky Jobe, his “adminis-
trator’s consultant.” Larkin drafted some of it, and based por-
tions of it on the Laurel Crest handbook. He claimed that step
three, directing residents to contact Grane with complaints,
emanated from the management contract Cambria has with
Grane.
Analysis
A single-employer analysis is appropriate where two ongo-
ing businesses are coordinated by a common master. See APF
Carting, Inc., 336 NLRB 73 fn. 4 (2001) (citing NYP Acquisi-
tion Corp., 332 NLRB 1041 fn. 1 (2000), enfd. 261 F.3d 291
(2d Cir. 2001)). “Stated otherwise, the fundamental inquiry is
whether there exists overall control of critical matters at the
policy level.” Emsing’s Supermarket, Inc., 284 NLRB 302
(1987), enfd. 872 F.2d 1279 (7th Cir. 1989) (footnotes omit-
ted). In Radio & Television Broadcast Technicians v. Broad-
cast Service of Mobile, 380 U.S. 255, 256 (1965), the Supreme
Court, in considering which factors determine whether nomi-
nally separate business entities should be treated as a single
employer, stated:

The controlling criteria set out and elaborated in Board deci-
sions, are interrelation of operations, common management,
centralized control of labor relations and common ownership.

In Flat Dog Productions, Inc., 347 NLRB 1180, 1181–1182
(2006), the Board explained:

In determining whether two entities constitute a single em-
ployer, the Board considers four factors: common control
over labor relations, common management, common owner-
ship, and interrelation of operations. Emsing’s Supermarket,
Inc., 284 NLRB 302 (1987), enfd. 872 F.2d 1279 (7th Cir.
1989).

“While the Board considers common control of labor rela-
tions a significant indication of single-employer status, no sin-
gle aspect is controlling, and all four factors need not be present
to find single-employer status. Instead, the ultimate determina-
tion turns on the totality of the evidence in a given case.” Boli-
var-Tees, Inc., 349 NLRB 720, 722 (2007), enfd. 551 F.3d 772
(8th Cir. 2008) (footnotes and internal citations omitted); Flat
Dog Productions, supra. “Rather, single-employer status de-
pends on all the circumstances, and is characterized by the ab-
sence of the arm’s-length relationship found between unin-
tegrated entities.” Dow Chemical, 326 NLRB 288 (1998).
In this case, the totality of the evidence strongly supports the
conclusion that Cambria Care and Grane are a single employer.
Grane created Cambria Care. It shares the same corporate
headquarters, the same owners and the same officers. The
funds for the purchase of the facility were jointly borrowed by
Grane, Cambria Care, a number of other Grane entities, and
guaranteed by still more Grane entities and by the common
owners of Grane and Cambria Care. Cambria Care and Grane,
and the other entities, were committed to these arrangements by
the signature of the CEO of all the entities, Richard Graciano.
Grane arranged that Cambria Care would rent the nursing home
facility from Ebensburg Associates, the lease between the two
was signed by one individual, Nese, acting for both parties.
The lease includes a provision that rent, in addition to base rent,
“additional rent,”—in the amount of the any difference between
Cambria Cares revenue and expenses—is to be paid to Ebens-
burg Associates.
GRANE HEALTHCARE CO. 1441
The chief of operations for Grane, Oddo is the vice president
of Cambria Care and the individual to whom Larkin, the facili-
ty’s administrator, reports. Oddo hired Larkin, and can fire
Larkin. Oddo’s roles for each company are undelineated. In-
deed, Larkin did not know what positions Oddo held or for
what entity he was employed.
Oddo assigned Grane personnel to staff and Cambria Care
and he got Cambria Care up and running. Grane determined
the initial wages, staffing, and hiring. Grane determined the
benefits programs that Cambria Care would have (ones availa-
ble to employees at other Grane-managed facilities) and deter-
mined that the administrator would be CHC Management, the
“management company of all Grane entities.” Grane deter-
mined that the pharmacy supply company it owns and controls
would be used at the new facility. Grane determined that Cam-
bria Care would be bound by a management agreement that
guaranteed that Grane personnel would be deeply and perma-
nently involved in the management of the facility. Notably,
this management agreement was executed by two individuals:
first, the president of Grane and Cambria Care, acting for
Grane; and second, the CEO and chairman of Grane and Cam-
bria Care, acting for Cambria Care.
In short, Grane used its financial and ownership control of
Cambria Care to pursue a role in establishing the initial opera-
tions, management, and labor relations of Cambria Care that is
fairly characterized as total. Grane was Cambria Care. Thus,
Larkin was hired as the facility administrator by Oddo without
any discussion or knowledge that he would work for a separate
entity, or that this separate entity would be bound by a man-
agement agreement. The significant point is that in these initial
months, Cambria Care maintained no independent identity at
all.
Respondent dismisses the total identity of interest exhibited
between Grane and Cambria Care in establishing the operation,
responding (R. Br. at 26) “who else but the organizers of the
corporation” would be responsible, “the management team at
[Cambria Care] was not capable of hiring itself,” and time was
short. This is glib.
In the first place, contrary to Respondent’s claims, independ-
ent enterprises typically—not unusually—hire their own em-
ployees, set their own wages, choose their own benefit plans,
set schedules, answer prospective employees’ questions, deter-
mine whether to recognize existing unions, choose binding
consulting and management arrangements that bring in other
entities to manage the facility, and make decisions about leas-
ing of property and negotiate the terms on which that should
occur. In this case Grane’s control in establishing the initial
day to day operations of Cambria Care was total. Larkin ad-
vised Lengle of his opinions of the Laurel Crest department
heads, but he played no role otherwise in hiring, staffing, or the
establishment of wages and benefits for employees. Grane
could have incorporated Cambria Care as an independent entity
and removed itself and permitted Cambria Care to establish
itself at arms length as an independent entity. Grane decidedly
did not do that. Moreover, as is evident from the nature of
Grane’s initial domination of Cambria Care affairs, this inter-
vention—e.g., the management agreement, the leasing ar-
rangements, the hiring and staffing—is the kind of involvement
that continues to affect the operations even after Cambria Care
is up and running.
Second, Grane did not get Cambria Care up and running and
then walk away, leaving Cambria Care as an independently
functioning operation that would succeed or fail on its own. To
the contrary, to begin with, Grane and Cambria Care continue
to have, as Respondent concedes (R. Br. 26) common owner-
ship and common management at the executive level, two fac-
tors the Board looks to in determining single employer analysis.
But more than that, the potential control of Cambria Care that is
a function of Grane’s common ownership and common upper
management with Cambria Care is actualized every day by the
ubiquitous presence of Grane personnel in the affairs of Cam-
bria Care—a state of affairs deliberately established by Grane
when it set up Cambria Care’s operations in the fall and winter
of 2009.
Thus, in some aspects, Grane’s ongoing control of the opera-
tions of Cambria Care appears to be exclusive and total. For
instance, the business end of the operation has been wholly left
in Grane’s control. The testimony at trial made clear that Lar-
kin—the Cambria Care official alleged to be in charge of the
independent entity—knows little of the financial dealings of
Cambria Care with Grane companies. This includes little to no
knowledge of Cambria Care’s arrangement with its “landlord,”
Ebensburg Associates (an entity also created and commonly
controlled by Grane), which, by the terms of the lease, receives
the excess of revenues left over after the payment of expenses.
Larkin had no knowledge of this peculiar arrangement, inexpli-
cable for an entity that is allegedly operated at arms length from
Grane and its other affiliates, and inexplicable if Larkin in any
sense controls Cambria Care.
This lack of arms length in the relationship is further empha-
sized by the fact that although Larkin testified that he was un-
familiar with Ebensburg Associates, he also testified that he
reviewed and was responsible for completion of the monthly
financial statements—prepared by consultants unknown—
which were combined financial statements for Ebensburg Asso-
ciates and Cambria Care. (Larkin testified that he only looks at
the portion relating to Cambria Care.)
Grane consultants have authority to pay Cambria Care bills.
Payments submitted at trial show that in some cases no one
from Cambria Care authorizes payment. And no one affiliated
solely with Cambria Care checks the management fee paid to
Grane each month to see if it is in accord with the fee required
by the management agreement. Grane consultants handle these
matters. Cambria Care’s business operations are fully con-
trolled by Grane.
Grane’s enmeshment in Cambria Care affairs goes beyond
the not unimportant matter of its business and financial opera-
tions and decisionmaking. Its decisions about running the nurs-
ing home are heavily controlled by Grane. Larkin, for instance,
had no idea why, or whether it made sense to use Grane Supply
as the facility’s pharmacy supply company. He did not think it
made sense to use them when he worked for Laurel Crest, but
now that he was allegedly “in charge,” he followed Oddo’s
instructions on this matter. Incredibly, Larkin denied knowing
if Grane Supply had a relationship to Grane. Larkin knew little
about the arrangements by which a Grane-affiliated entity, PLS,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1442
performed the laundry at “his” facility for Cambria Care and
another Grane-affiliated home. He testified that his laundry
consultant, Grane employee McDonald was in charge of the
laundry operations, and he deferred questions of how PLS came
to operate at Cambria Care to McDonald. With little to no
involvement by Larkin, Grane has begun using the laundry at
the Cambria Care facility to do the laundry of additional Grane-
affiliated facilities in the area. These are not hallmarks of an
arms length relationship between Grane and Cambria Care.
These are the hallmarks of entities whose operations are interre-
lated and controlled by a common master.
The fact is, Grane is deeply entrenched in the operations of
the facility through the myriad of consultants it provides to
Cambria Care. As Larkin put it in a candid moment, “I was
informed who my consultants were, and that’s who I call.”
This method of operation is not, of course, fortuitous. It is
Grane’s standard method of operation with the facilities it ac-
quires.
Moreover, it is not true, as Respondent asserts, that labor re-
lations is carved out from the operations and conducted wholly
by Larkin, without Grane’s exercising control.
While it may serve Grane (and Cambria Care’s) purpose in
this proceeding to stress Cambria Care’s independence from
Grane, no such purpose was at stake when information was
submitted to the State in conjunction with the health care facili-
ty license. In that document, Grane’s anticipated role was tout-
ed as “ongoing” and part of an effort to meet the “constantly
changing needs” of residents. This document, with its pledge
that “[o]n an on-going basis Grane will be looking to recruit
new staff from outside of the facility that will provide addition-
al knowledge and experience to that of the existing staff,” pro-
vides, I believe, an accurate characterization of Grane’s role at
Cambria Care.
Oddo testified very clearly that the Grane personnel working
at Cambria Care are not working for Larkin and do not report to
Larkin. Lengle and her staff of consultants, in particular, hand
out materials to staff without consulting Larkin and play an
important role in determining employment procedures. They
“do rounds,” monitor and observe staff and make recommenda-
tions on changes that need to be made. “Generally,” these rec-
ommendations are implemented. The record is clear that while
the relationship between Larkin and the consultants may be
collegial and cooperative, in no way do the Grane consultants
“report” to Larkin, or serve at his pleasure. Moreover, it is
revealing that Cambria Care employees who cannot solve their
employment problems at the facility level are instructed to call
Grane—i.e., “the home office”—on a “hotline” number. Even
facility residents are told to contract Grane if their complaints
are not satisfactorily resolved by the facility staff. And alt-
hough Larkin testified that he makes the hiring decision at
Cambria Care, he was unaware that Cambria Care job openings
were advertised on the Grane website—even while maintaining
that he was responsible for reviewing items that would be post-
ed on the Grane website.
Larkin testified that, at least since January 2010, new hiring
of employees for Cambria Care is a matter within his (and
Cambria Care department head’s) purview. He testified that
Grane was not involved in that. However, the Grane consult-
ants are, as mentioned, very much involved in determining the
operational needs of the departments and facility. Larkin also
admitted that he “consults” on labor relations issues with Oddo:

In Mr. Oddo’s purview, as a consultant to me, I will . . . seek
his recommendations regarding operational issues, or pay
raises. . . . I will ask for suggestions on his feelings regarding
increasing or decreasing staffing levels in different depart-
ments.

Of course, the tendentious nature of Larkin’s testimony must
be disregarded. It is not credible.54 He characterizes his dis-
cussions with Oddo as “suggestions on his feelings” and other
phrasing designed to minimize Oddo’s role. But Larkin reports
to Oddo. Oddo is his “boss” and Oddo can fire him. The con-
sultants report to Oddo (or other highly placed Grane officials).
Oddo’s views in staffing, pay decision, and “operational issues”
cannot be ignored.
Thus, the record demonstrates, at so many levels, and in so
many areas, that in Grane’s relationship to Cambria, “there
exists overall control of critical matters at the policy level.”
Emsing’s Supermarket, Inc., supra. Whether those critical mat-
ters involve financial dealing, decisions about union recogni-
tion, major leasing and contractual arrangements, employee
benefits, staffing or pay raises, who employees and residents
must contact if on site Cambria Care officials cannot satisfy
their concerns, or observing employees working and making
suggestions for changes, Grane exercises overall control. “It is
well settled” that this is “the fundamental inquiry” in a single-
employer case. Centurion Auto Transport, Inc., 329 NLRB
394, 395 (1999); Esming’s Supermarket, supra.
The nub of Respondent’s argument against single employer
status is, when vetted, limited to reliance on Larkin’s self-
serving assertions of autonomy. Respondent protests that Lar-
kin is “no figurehead.” I accept that. His job is not a sinecure.
He does a lot. He is the administrator of the facility, no less,
but also no more. The record evidence does not support the
claim that he operates Cambria Care independent of the perva-
sive involvement of Grane consultants, and independent of
Grane’s control. Larkin’s monthly meetings with Oddo and
some of the financial consultants, sometimes also attended by
Graciano and Nese, ensure that no one gets too far afield.55

54 I note that Larkin’s frequent and purposeful description of the fa-
cility as “my facility,” the staff as “my employees,” etc., throughout his
testimony served as another ready reminder that his testimony was
slanted toward evincing his authority over Cambria Care, and by impli-
cation, Cambria Care’s independence from Grane.
55 Larkin recalled three instances (two with Lengle, one with Oddo)
where he either delayed taking, or did not take their advice on an issue.
This does not demonstrate Cambria Care’s arms length relationship
with or independence from Grane. These examples where Larkin’s
view prevailed took place in the context of a much larger permanent
relationship of intensive involvement by Grane and Oddo—the boss—
in the details of Cambria Care. Indeed, the fact that Oddo would be
thinking about and involved in detailed decisions about whether an
outdoor pavilion sitting area for residents remains on the grounds high-
lights the close attention he pays to Cambria Care, and cuts directly
against the claim that Grane has no involvement in or control over day
to day affairs at Cambria Care. Larkin offered this as an example of his
power and declared that because of his “objection” the pavilion “will be
GRANE HEALTHCARE CO. 1443
Respondent contends that while Grane owns, helps operate,
and has the same upper management as Cambria Care, when it
comes to labor relations, Grane’s ubiquitous presence is merely
in an advisory capacity. Larkin, it appears to contend, can run
Cambria Care as he sees fit.
I do not agree. First, as stated, I do not believe the tenden-
tious effort by Larkin to amplify his independence, a tendency
that runs through his testimony.56 Second, and related, I be-
lieve that the objective record evidence, on its own terms,
overwhelms these claims by Larkin. Finally, even if I believed,
which I do not, that the Grane consultants and Oddo merely
give “suggestions” and “advice” to Larkin, I believe that under
the circumstances this would still demonstrate—absent the
strongest and clearest evidence to the contrary—that Grane
controlled all aspects of the operation on which it provided
“advice” and “consultation.” We have here a situation in which
Grane owns Cambria Care. In addition, Grane’s top officials
are Cambria Care’s top officials. Respondent stresses that un-
der Board precedent, ownership, alone, is not sufficient to
demonstrate a single employer relationship. But neither is it
irrelevant. To the contrary, it is the potential for control pro-
vided by ownership—its readiness to effectuate accentuated by
virtue of the commonality of officers—that renders so-called
“advice” and “consultation” by the parent company, as a practi-
cal matter, truly an exercise in control of Cambria Care’s day-
to-day activities. It is one thing for a parent company to own a
subsidiary, but play no role in affairs at the facility. But when
it is regularly in the facility “consulting” and “advising,” that
assistance is, by virtue of the ownership and, particularly with
upper management control, more than a suggestion—it is a
directive and an example of control by the owners. This con-
cept, well known to statutory employees—the supervisor’s
“suggestion” that the employees move the pallets is well under-
stood as a directive—is no different than what we have here.
Given its ownership of Cambria Care, and given its common-
ality of top management, Grane’s deep and permanent in-
volvement in Cambria Care’s affairs constitutes control of
those affairs.57

staying there.” Based on the record as a whole, I think it is fair to con-
clude that the pavilion, and, indeed, Larkin “will be staying there” as
long as Oddo permits.
56 In terms of Larkin’s quite transparent effort to emphasize his in-
dependence from Grane, my view of the situation here was perfectly
stated by Judge Learned Hand, many years ago, and relied upon by the
Supreme Court in NLRB v. Walton Mfg., 369 U.S. 404, 408 (1962):
[T]he the demeanor of a witness “. . . may satisfy the tribunal, not only
that the witness’ testimony is not true, but that the truth is the opposite
of his story; for the denial of one, who has a motive to deny, may be
uttered with such hesitation, discomfort, arrogance or defiance, as to
give assurance that he is fabricating, and that, if he is, there is no alter-
native but to assume the truth of what he denies.”
quoting, Dyer v. MacDonald, 201 F.2d 265, 269 (2d Cir. 1952).
57 Grane argues (R. Br. at 31) that it had essentially the same man-
agement agreement with Laurel Crest, in 2003, as it does now with
Cambria Care, and yet there has never been a claim that Laurel Crest
and Grane constituted a single employer. The comparison is instruc-
tive, but not for the reasons advanced by Respondent. First, of course,
the relationship of Grane and Laurel Crest has never been subject to the
lens of litigation, so there simply is no evidence of what their actual
Cambria Care’s operations labor relations, its management,
its ownership, and its managerial decisionmaking is wedded to
Grane officials acting on behalf of Grane, and Cambria Care.
Grane exercises common control with Cambria Care over oper-
ations, management, and labor relations. Grane and Cambria
Care are single employers under the Act.58
CONCLUSIONS OF LAW
1. Respondents Grane Healthcare Co. and Ebensburg Care
Center LLC d/b/a Cambria Care Center (hereinafter referred to
collectively as Respondent) are single-integrated enterprises
and a single employer, and a health care institution engaged in
commerce within the meaning of Section 2(2), (6), (7), and (14)
of the Act.
2. The Charging Party Local Union No. 1305, Professional
and Public Service Employees of Cambria County a/w the La-
borers’ International Union of North America (Local 1305 or

relationship was or was not like. The specific terms of the management
agreement—expressly written with intent to avoid a finding of common
relationship—are not particularly important: the actual practices are.
But the point must also be made that even assuming the same manage-
ment agreement and same managerial involvement with Laurel Crest in
2003 as with Cambria Care in 2010, the unique fact of Grane’s owner-
ship and managerial overlap with Cambria Care—presumably, not
present with the county employer, makes a huge difference. The power
of ownership and managerial control transforms the nature of the onsite
consulting from day-to-day involvement to day-to-day control. It is
one thing for a standalone entity to agree—in an arms length transac-
tion—to contract to provide management services for another inde-
pendent entity. It is another thing when an entity contracts, essentially
with itself, to provide management assistance for an entity it created,
owns, and controls the officers of. In the latter case, the involvement in
day-to-day management is unlikely to be anything but the actualization
of the potential for control inherent in the financial arrangements.
58 During the hearing, the SEIU offered a document into evidence—
marked as ALJ Exh. 1—to which Respondent objected, asserting the
attorney-client privilege, and contending that the document had been
inadvertently provided to the SEIU. Respondent contended that the
memo—which was a summer 2009 memo from Lengle to various
Grane personnel and administrators of Grane-managed entities—was
privileged as it was a report of legal advice received by Lengle from
Grane General Counsel Creagh and reported by Lengle to administra-
tors of the entities Grane managed. Essentially, Respondent contended
that the document was covered by the common interest doctrine of the
privilege. I deferred ruling on the issue. I note that part of the asserted
relevance by the Union is not the substance of the communication, but
the fact that it was made, the contention being that Lengle’s joint com-
munication with various Grane-related entities supports the single
employer theory of the General Counsel. The fact that the communica-
tion was made, and the names of the author and recipients, is not privi-
leged and is established in the record. However, given that the only
conceivable relevance of the document—its substance or the fact that it
was made—is to support the single employer allegations of the com-
plaint, and given my resolution of that issue, I decline to rely on the
document and decline to resolve the attorney-client privilege issue.
American Girl Place, Inc., 355 NLRB 493, 493 fn. 2 (2010). Reliance
on the document would make no difference to the outcome of the case
or to my understanding of the facts. I assume, without deciding, that it
is privileged. By separate order counsel will be directed to return all
copies of the document and ALJ Exh. 1 is hereby stricken from the
record.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1444
Laborers) is a labor organization within the meaning of Section
2(5) of the Act.
3. SEIU Healthcare Pennsylvania, CTW, CLC (SEIU) is a
labor organizations within the meaning of Section 2(5) of the
Act.
4. The following employees of Cambria Care constitute a
unit appropriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act:

The unit of non-professional employees more particularly de-
scribed in the most recently expired collective-bargaining
agreement between Cambria County and Local 1305.59

5. Since on or about January 1, 2010, Respondent has vio-
lated Section 8(a)(1) and (5) of the Act by failing and refusing
to recognize and bargain with Local 1305 as the bargaining
representative of the above-described unit of employees.
6. Since on or about January 1, 2010, Respondent has vio-
lated Section 8(a)(1) and (3) of the Act by discriminating
against employee-applicants Mark Mulhearn, Sherry Hagerich,
Joseph Billy, Beverly Weber, and Roxanne Lamer, by refusing
to hire them to discourage employees’ union activity.
7. The unfair labor practices committed by Respondent af-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that Respondent Grane Healthcare Co. and
Respondent Ebensburg Care Center LLC (a single employer,
collectively referred to herein as Respondent) have engaged in
certain unfair labor practices, I find that they are joint and sev-
erally liable for the unfair labor practices found and must be
ordered to cease and desist and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(5) and
(1) by failing and refusing to bargain with Local 1305 as the
collective-bargaining representative of an appropriate bargain-
ing unit of employees (described above), Respondent shall
recognize, and, upon request, bargain with Local 1305 as the
exclusive representative of the unit employees and, if an under-
standing is reached, embody the understanding in a signed
agreement.
Having found that Respondent violated Section 8(a)(3) and
(1) of the Act by refusing to hire Mark Mulhearn, Sherry
Hagerich, Beverly Weber, Joseph Billy, and Roxanne Lamer,
Respondent shall offer them instatement to the positions for
which they applied or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges they would have en-
joyed absent the discrimination against them. Respondent shall
make these individuals whole for any loss of earnings and other
benefits that they may have suffered as a result of the discrimi-
nation against them, computed on a quarterly basis, in the man-
ner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus daily compound interest as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). Respondent shall re-

59 This description of the Local 1305-represented unit was stipulated
to by the parties. The record does not contain a more precise unit de-
scription.
move from its files any reference to the unlawful refusal to hire
Mulhearn, Hagerich, Weber, Billy, and Lamer, and, within
three days thereafter, notify each of them in writing that this
has been done and that the refusals to hire will not be used
against them in any way.
Respondent shall further be ordered to refrain from in any
like or related manner abridging any of the rights guaranteed to
employees by Section 7 of the Act.
Respondent shall post an appropriate informational notice, as
described in the attached Appendix. This notice shall be posted
in the Employer’s facility or wherever the notices to employees
are regularly posted for 60 days without anything covering it up
or defacing its contents. In addition to physical posting of pa-
per 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. When the notice is issued to
the Employer, it shall sign it or otherwise notify Region 6 of the
Board what action it will take with respect to this decision.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended60
ORDER
The Respondent, Grane Healthcare Co. and Ebensburg Care
Center, LLC d/b/a Cambria Care Center (a single employer),
Ebensburg, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with Local
1305, as the exclusive collective-bargaining representative of
its employees in the following appropriate unit:

The unit of non-professional employees more particularly de-
scribed in the most recently expired collective-bargaining
agreement between Cambria County and Local 1305.

(b) Refusing to hire employees because of their union activi-
ties.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Recognize, and on request, bargain with Local 1305 as
the exclusive representative of the unit employees and, if an
understanding is reached, embody the understanding in a signed
agreement.
(b) Within 14 days from the date of this Order, offer Mark
Mulhearn, Beverly Weber, Sherry Hagerich, Joseph Billy, and
Roxanne Lamer instatement to the positions for which they
applied or, if these positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges they would have enjoyed had they
been hired on January 1, 2010.

60 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
GRANE HEALTHCARE CO. 1445
(c) Make Mark Mulhearn, Beverly Weber, Sherry Hagerich,
Joseph Billy, and Roxanne Lamer whole for any loss of earn-
ings and other benefits suffered as a result of the discrimination
against them in the manner set forth in the remedy section of
this decision.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful refusals to hire Mark
Mulhearn, Beverly Weber, Sherry Hagerich, Joseph Billy, and
Roxanne Lamer, and within 3 days thereafter, notify these em-
ployees in writing that this has been done and that the unlawful
refusals to hire will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its
Ebensburg, Pennsylvania facility, copies of the attached notice
marked “Appendix.”61 Copies of the notice, on forms provided

61 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-
by the Regional Director for Region 6, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places 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 Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since January 1, 2010.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”