HealthBridge Management, Care Realty (aka CareOne), Danbury HC, Long Ridge HC, Newington HC, Westpor

National Labor Relations Board - Board Decisions

May 22, 2014

360 N.L.R.B. 937 (N.L.R.B. 2014)

HEALTHBRIDGE MGMT. 937
360 NLRB No. 118
Healthbridge Management, LLC; 107 Osborne Street
Operating Co. II, LLC d/b/a Danbury HCC; 710
Long Ridge Road Operating Co. II, LLC d/b/a
Long Ridge of Stamford; 240 Church Street Op-
erating Co. II, LLC d/b/a Newington Health
Care Center; 1 Burr Road Operating Co. II,
LLC d/b/a Westport Health Care Center; 245
Orange Avenue Operating Co. II, LLC d/b/a
West River Health Care Center; 341 Jordan
Lane Operating Co. II, LLC d/b/a Wethersfield
Health Care Center and New England Health
Care Employees Union District 1199, SEIU,
AFL–CIO and Care Realty, LLC, party in in-
terest.1 Cases 34–CA–012964 and 34–CA–013064
May 22, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND SCHIFFER
On July 20, 2012, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent2
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief. The General Counsel filed cross-
exceptions and a supporting brief, the Respondent filed
an answering brief, and the General Counsel filed a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,
and conclusions and to adopt the recommended Order as
modified and set forth in full below.3

1 At the hearing, the General Counsel filed a “Notice of Intent to
Amend Complaint” (Notice). Pursuant to the terms of the parties’ joint
stipulations and a guarantee agreement executed by Care Realty, LLC,
the Notice removes “Care Realty a/k/a CareOne” as a Respondent from
both complaints in this case and lists “Care Realty, LLC” as the party in
interest. In the case caption of his decision, the judge inadvertently
listed “Care Realty, LLC a/k/a CareOne” as the party in interest. As
noted by the Respondent, it is clear from the Notice and the parties’
joint stipulations and guarantee agreement that “Care Realty, LLC” is
the party in interest in this proceeding, and we have corrected the case
caption accordingly.
2 HealthBridge Management, LLC and the six Connecticut health
care facilities involved in this case admit that they are a joint employer
for purposes of this proceeding. Accordingly, they are referenced
jointly as the Respondent.
3 We have modified the judge’s recommended Order to provide for
electronic posting pursuant to J. Picini Flooring, 356 NLRB 11 (2010),
and to conform to the Board’s standard remedial language. We shall
substitute a new notice to conform to the Order as modified and in
accordance with our decision in Durham School Services, 360 NLRB
694 (2014).
I.
HealthBridge Management, LLC (HealthBridge) man-
ages six Connecticut health care facilities where the
events at issue in this case occurred. Briefly, in response
to an earlier complaint issued by Region 34 against
HealthBridge and these six facilities,4 the Union prepared
flyers and stickers stating that the Respondent had been
“Busted” by the National Labor Relations Board for vio-
lating Federal labor law. On March 25, 2011, the “Bust-
ed” flyer was posted on the Union’s bulletin board at
each of the six facilities, and employees at each of the
facilities wore the “Busted” stickers. That same day,
Lisa Crutchfield, HealthBridge’s senior vice president of
labor relations, directed facility managers to remove the
flyers from the union bulletin boards and to inform em-
ployees that they had to remove the stickers when in pa-
tient care areas or while providing patient care. Employ-
ees at four of the six facilities were so informed, but
those at the other two were categorically prohibited from
wearing the stickers in all areas of those facilities.
As explained below, we agree with the judge that the
Respondent violated Section 8(a)(1) of the Act by re-
moving the “Busted” flyer from union bulletin boards
and by prohibiting employees from wearing the “Busted”
sticker. We also affirm the judge’s dismissal of an unre-
lated allegation that the Respondent violated the Act by
unilaterally discontinuing dues checkoff after the parties’
collective-bargaining agreement expired.
II.
We agree, for the reasons stated by the judge, that the
Respondent unlawfully removed the “Busted” flyer from
the Union’s bulletin boards at the six Connecticut facili-
ties. We reject the Respondent’s argument that it was
privileged to remove the flyers because Crutchfield had
previously ordered the removal of other union flyers she
deemed improper. The parties’ collective-bargaining
agreement provides that each health care center “will
furnish a bulletin board for posting of proper Union no-
tices.” The Respondent, however, has provided no evi-
dence that it had the right under the contract unilaterally
to determine which Union notices were proper and to
remove any notices or flyers it deemed improper. Nor is
there any evidence to suggest that the Union knew of the
Respondent’s interpretation of its authority under the
stated contract provision or acquiesced in that interpreta-
tion. Further, although Crutchfield testified that she or-
dered the removal of three other flyers prior to her order

4 Administrative Law Judge Steven Fish issued his decision on this
complaint (Case 34–CA–012715) on August 1, 2012, finding several
violations of Sec. 8(a)(1) and (5) of the Act. The case is pending before
the Board.
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to remove the “Busted” flyers, the Respondent has not
established that the Union knew of Crutchfield’s prior
orders or that the flyers were, in fact, removed. Indeed,
the record indicates that Crutchfield attempted to conceal
the removal of at least one flyer, directing her managers
to act “discreetly.”
III.
We also agree with the judge that the Respondent un-
lawfully prohibited its employees from wearing the
“Busted” sticker. It is well established that employees
have a protected right to wear union insignia at work in
the absence of “special circumstances.” See London
Memorial Hospital, 238 NLRB 704, 708 (1978); Ohio
Masonic Home, 205 NLRB 357 (1973), enfd. 511 F.2d
27 (5th Cir. 1975); see also Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 801–803 (1945). In healthcare
facilities, however, the Board and the courts have refined
that basic rule due to concerns about the possibility of
disruption to patient care. In nonpatient care areas, re-
strictions on wearing insignia are presumptively invalid
in accordance with the basic rule, and it is the employer’s
burden to establish special circumstances justifying its
action. See Casa San Miguel, 320 NLRB 534, 540
(1995); see also NLRB v. Baptist Hospital, 442 U.S. 773,
781 (1979); accord St. John’s Hospital, 222 NLRB 1150,
1150–1151 (1976). By contrast, restrictions on wearing
insignia in immediate patient care areas are presumptive-
ly valid. See Baptist Hospital, above. That presumption
of validity, however, does not apply to a selective ban on
only certain union insignia in immediate patient care
areas. See Saint John’s Health Center, 357 NLRB 2078,
2079 (2011). In those circumstances, it remains the em-
ployer’s burden to establish special circumstances justi-
fying its action; specifically, that its action was “neces-
sary to avoid disruption of health-care operations or dis-
turbance of patients.” Beth Israel Hospital v. NLRB, 437
U.S. 438, 507 (1978).
Under this precedent, the Respondent’s ban on em-
ployees at Newington Health Care Center and Westport
Health Care Center from wearing the “Busted” sticker in
all areas of the facility was presumptively invalid. In
addition, the Respondent’s ban on employees at Danbury
Health Care Center, Long Ridge of Stamford, West River
Health Care Center, and Wethersfield Health Care Center
from wearing the “Busted” sticker in immediate patient
care areas was not entitled to a presumption of validity
because it was a selective ban on only the “Busted”
sticker. In both circumstances, then, the question is
whether the Respondent established “special circum-
stances” justifying its action. We agree with the judge
that the Respondent failed to do so.
The Board has consistently held that an employer who
presents only generalized speculation or subjective belief
about potential disturbance of patients or disruption of
operations fails to establish special circumstances justify-
ing a ban on union insignia.5 Here, the only evidence the
Respondent presented in support of its “special circum-
stances” argument was the testimony of Senior Vice
President of Labor Relations Crutchfield and that of an
outside expert witness, Dr. Ilene Warner-Maron. As to
Crutchfield, we agree with the judge that her decision to
ban the “Busted” sticker was based on her “belief and
conjecture” that the sticker would upset the patients. Her
testimony about why she banned the sticker was not
based on any specific experience with a patient, family
member, or employee. Nor did she present any specific
evidence of harm or likelihood of harm to patients from
employees wearing the sticker. Further undercutting
Crutchfield’s stated concern that patients would be dis-
turbed by the sticker is the fact that, both before and after
Crutchfield banned the stickers, the Respondent itself
sent letters to the patients and their families regarding the
ongoing labor dispute between the Respondent and the
Union and, in one letter, specifically addressed the Board
complaint referenced in the Busted sticker.
As to Dr. Warner-Maron, who testified at the unfair
labor practice hearing but was not consulted prior to
Crutchfield’s decision to ban the sticker, we agree with
the judge that she provided only speculative testimony
about the effect of the sticker on the patients. Her opin-
ion was not informed by actual information about or ex-
perience with the facilities, their staff, or their patients.
Indeed, she never spoke to any patients, family members,
or care givers in the facilities at issue.6 Further, in
providing her testimony at the hearing, Dr. Warner-

5 See UCSF Stanford Health Care, 335 NLRB 488, 532 (2001) (tes-
timony from human resources director regarding unsubstantiated com-
plaints about solicitation not sufficient to justify respondent’s ban on
solicitation in healthcare facility), enfd. 325 F.3d 334 (D.C. Cir. 2003);
Mt. Clemens General Hospital, 335 NLRB 48, 50 (2001) (testimony by
a hospital official that a union button could cause possible disruptions,
absent evidence of complaints from patients or their families, not suffi-
cient evidence to establish special circumstances), enfd. 328 F.3d 837
(6th Cir. 2003); and St. Luke’s Hospital, 314 NLRB 434, 435 (1994)
(respondent’s contention that patients might be upset by a union button,
without any evidence, such as patient complaints, to support the suppo-
sition not sufficient to establish special circumstances); see also Saint
John’s Health Center, supra at 2079 (special circumstances not estab-
lished where respondent presented no evidence that patients were aware
of union campaign to increase facility safety such that they would be
disturbed or disrupted by union insignia related to the campaign).
6 Contrary to the Respondent’s argument in its exceptions brief, the
judge did not simply reject Dr. Warner-Maron’s testimony. Rather, he
considered it but found that it was based on mere speculation and sub-
jective belief as to the possible effect the sticker might have had on the
patients, and thus did not establish special circumstances. We agree.
HEALTHBRIDGE MGMT. 939
Maron failed to consider the impact of the Respondent’s
own communications with patients and their families
about the ongoing labor dispute in arriving at her opinion
about the effect of the sticker on the patients. In these
circumstances, we agree with the judge that Crutchfield’s
and Warner-Maron’s general and speculative testimony
about how patients may be affected by the Busted stick-
er, without more, is insufficient to establish the “special
circumstances” necessary to justify the bans imposed by
the Respondent here.
Our dissenting colleague would find that the Respond-
ent did not violate Section 8(a)(1) by banning employees
from wearing the “Busted” sticker in immediate patient
care areas. He asserts that it is presumptively valid for
an employer to ban employees from wearing some union
insignia in immediate patient care areas, while permitting
employees to wear other unofficial insignia those areas.
The Board rejected this same argument, however, in
Saint John’s Health Center, above, slip op. at 2 fn. 3. As
explained there, although a presumption of validity ap-
plies to a healthcare facility’s ban on all nonofficial in-
signia in immediate patient care areas, it does not apply
to a selective ban on only certain union insignia. Id. at
1–2.
Our colleague also contends that even if the Respond-
ent’s ban was not presumptively valid, the Respondent
established special circumstances justifying it. Citing the
Board’s decision in Sacred Heart Medical Center, 347
NLRB 531 (2006), enf. denied sub nom. Washington
State Nurses Assn. v. NLRB, 526 F.3d 577, 583 (9th Cir.
2008), he asserts that the judge improperly rejected
Crutchfield’s and Warner-Maron’s testimony as evidence
justifying the ban. But the great weight of Board prece-
dent—cases decided before and after Sacred Heart7—
establishes that evidence amounting to more than specu-
lative concern by an administrator or expert witness is
necessary to establish special circumstances justifying a
ban on union insignia. Contrary to our colleague’s view,
our decision does not require actual harm or a disturb-
ance to patients in order to establish special circumstanc-
es. What we require, consistent with the Board prece-
dent, is specific evidence, not the general and speculative
testimony that the Respondent provided here. See NLRB
v. Baptist Hospital, above, 442 U.S. at 782–783.8

7 See fn. 5, above.
8 Our dissenting colleague suggests that the testimony presented
here is equivalent to the testimony presented in Baptist Hospital. We
disagree. In Baptist Hospital, the respondent presented “extensive
evidence” from three witnesses, id. at 782, all of whom worked at the
hospital at issue. These witnesses provided specific testimony, basing
their medical opinions about the effect of solicitations on the patients at
that hospital on their experiences with the hospital’s patients and prior
situations that led to patient disruptions.
Finally, our colleague asserts that Warner-Maron’s tes-
timony should not be discounted merely because the Re-
spondent did not consult her until after making the deci-
sion to ban the “Busted” sticker. We are aware of no
case, and our colleague cites none, finding the testimony
of an expert witness, not consulted until the unfair labor
practice hearing, to be sufficient to justify an employer’s
ban on union insignia. In fact, under similar circum-
stances, the Board rejected an employer’s post-hoc ra-
tionalization for its actions. See UCSF Stanford Health
Care, above, 335 NLRB at 532.
For all of those reasons, we agree with the judge that
the Respondent violated Section 8(a)(1) by prohibiting
employees at Newington Health Care Center and West-
port Health Care Center from wearing the “Busted”
sticker in all areas of the facility9 and by selectively pro-
hibiting employees at Danbury Health Care Center, Long
Ridge of Stamford, West River Health Care Center, and
Wethersfield Health Care Center from wearing the
“Busted” sticker in immediate patient care areas.
IV.
Reasoning that he was bound by the rule of Bethlehem
Steel Co., 136 NLRB 1500, 1502 (1962), affd. in relevant
part sub nom. Shipbuilders v. NLRB, 320 F.2d 615 (3d
Cir. 1963), cert. denied 375 U.S. 984 (1964), the judge
found that the Respondent did not violate Section 8(a)(5)
and (1) of the Act by ceasing to honor employees’ dues-
checkoff authorizations after the expiration of the parties’
collective-bargaining agreement. After the judge issued
his decision, the Board overruled Bethlehem Steel and its
progeny “to the extent they stand for the proposition that
dues checkoff does not survive contract expiration.”
WKYC-TV, 359 NLRB 286, 295 (2012). We held in
WKYC-TV that “an employer, following contract expira-
tion, must continue to honor a dues-checkoff arrange-
ment established in that contract until the parties have
either reached agreement or a valid impasse permits uni-
lateral action by the employer.” Id. We also decided,
however, to apply the new rule prospectively only. Id.
Thus, as in WKYC-TV, we shall apply Bethlehem Steel in
the present case. Accordingly, we adopt the judge’s
finding that, because the Respondent was privileged un-
der Bethlehem Steel to cease honoring the dues-checkoff
arrangement after the expiration of the parties’ collec-
tive-bargaining agreement, the Respondent did not vio-
late the Act as alleged.10

9 We amend the judge’s third Conclusion of Law, pertaining to this
finding, to include the words “in violation of Section 8(a)(1) of the
Act,” which appear to have been inadvertently omitted from the end of
the sentence.
10 For the reasons stated in former Member Hayes’s partial dissent
in WKYC-TV, supra, Member Miscimarra would adhere to the
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board orders that the
Respondents, HealthBridge Management, LLC, Fort Lee,
New Jersey; Danbury Health Care Center, Danbury,
Connecticut; Long Ridge of Stamford, Stamford, Con-
necticut; Newington Health Care Center, Newington,
Connecticut; Westport Health Care Center, Westport,
Connecticut; West River Health Care Center, Milford,
Connecticut; and Wethersfield Health Care Center,
Wethersfield, Connecticut, their officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Removing union flyers from the Union’s bulletin
boards.
(b) Selectively prohibiting employees at Danbury
Health Care Center, Long Ridge of Stamford, West River
Health Care Center, and Wethersfield Health Care Center
from wearing stickers in immediate patient care areas
stating that these health care centers were “Busted” on
March 21, 2011, by the National Labor Relations Board
for violating federal labor law.
(c) Prohibiting employees at Newington Health Care
Center and Westport Health Care Center from wearing
stickers in all areas of the facility stating that these health
care centers were “Busted” on March 21, 2011, by the
National Labor Relations Board for violating Federal
labor law.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the selective prohibition against employ-
ees at Danbury Health Care Center, Long Ridge of Stam-
ford, West River Health Care Center, and Wethersfield
Health Care Center from wearing the “Busted” sticker in
immediate patient care areas.
(b) Rescind the prohibition against employees at
Newington Health Care Center and Westport Health
Care Center from wearing the “Busted” sticker in all
areas of the facility.
(c) Within 14 days after service by the Region, post
copies of the attached notice marked “Appendix” at the
following facilities: HealthBridge Management, LLC,
Fort Lee, New Jersey; Danbury Health Care Center,
Danbury, Connecticut; Long Ridge of Stamford, Stam-
ford, Connecticut; Newington Health Care Center,
Newington, Connecticut; Westport Health Care Center,
Westport, Connecticut; West River Health Care Center,

longstanding rule that dues checkoff does not survive contract expira-
tion.
Milford, Connecticut; and Wethersfield Health Care
Center, Wethersfield, Connecticut.11 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 34, after being signed by the Respondents’ author-
ized representatives, shall be posted by the Respondents
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, 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 in
question customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondents to ensure that the notices are not altered,
defaced, or covered by any other material. If any Re-
spondent has gone out of business or closed the facility
involved in these proceedings, that Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by that Respondent at any time since March 25, 2011.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official of each respective Respondent on a
form provided by the Region attesting to the steps that
that Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
I agree with my colleagues that the Respondent violat-
ed Section 8(a)(1) of the Act by removing the “Busted”
flyer from the Union’s bulletin boards and by prohibiting

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
We find that a common notice for HealthBridge and the six health
care facilities involved in this proceeding is appropriate here. Although
the violations related to the “Busted” sticker varied slightly among the
six facilities—employees at four facilities were prohibited from wear-
ing the sticker in immediate patient care areas, while employees at two
facilities were prohibited from wearing the sticker in all areas of the
facility—the “considerable similarity in the nature of the unfair labor
practices” committed at the different facilities warrants a common
notice. Albertson’s Inc., 307 NLRB 787, 788 (1992), enf. denied mem.
8 F.3d 20 (5th Cir. 1993); see also G.C. Murphy Co., 216 NLRB 785
(1975). As explained below, Member Miscimarra would find lawful
the Respondent’s prohibition of the “Busted” sticker at the four facili-
ties where the prohibition was limited to immediate patient-care areas.
Accordingly, he would not order a common notice because only one
unfair labor practice—the removal of the flyers from the Union’s bulle-
tin boards—is common across all six facilities. See Wal-Mart Stores,
350 NLRB 879, 885 (2007).
HEALTHBRIDGE MGMT. 941
employees at two facilities from wearing the “Busted”
sticker in all areas of those facilities. I disagree, howev-
er, with their finding that the Respondent violated Sec-
tion 8(a)(1) by ordering the removal of the “Busted”
sticker in immediate patient-care areas at Danbury Health
Care Center, Long Ridge of Stamford, West River Health
Care Center, and Wethersfield Health Care Center. Con-
trary to the majority in Saint John’s Health Center, 357
NLRB 2078 (2011), it was not incumbent on the Re-
spondent to ban all insignia in immediate patient-care
areas for its prohibition of the “Busted” sticker in imme-
diate patient-care areas to be presumptively valid. “In
healthcare facilities, restrictions on the wearing of union-
related buttons are presumptively valid in immediate
patient care areas.” Sacred Heart Medical Center, 347
NLRB 531, 531 (2006) (emphasis added).1
In my view, the notion that an insignia ban must be
categorical to be presumptively valid disregards the ra-
tionale underlying the presumption: that patients and
their families—“irrespective of whether [they] are labor
or management oriented—need a restful, uncluttered,
relaxing, and helpful atmosphere, rather than one remind-
ful of the tensions of the marketplace in addition to the
tensions of the sick bed.” NLRB v. Baptist Hospital, 442
U.S. 773, 783 fn. 12 (1979) (internal quotations omit-
ted).2 This reasoning aligns with the Board’s statement
of the rule in Sacred Heart Medical Center. Under the
majority’s contrary view in Saint John’s Health Center, a
button rule, to be presumptively valid, must indiscrimi-
nately prohibit all unofficial buttons, including those
bearing innocuous messages that promote a “relaxing
and helpful atmosphere.” Because the prohibition an-
nounced at Danbury Health Care Center, Long Ridge of
Stamford, West River Health Care Center, and Weth-
ersfield Health Care Center was presumptively valid, and
the General Counsel did not rebut that presumption, I
would find that prohibition lawful.
I also believe that the judge imposed an unreasonably
high and unrealistic burden on the Respondent—a bur-
den not required by Saint John’s Health Center—to
demonstrate special circumstances that warranted Re-

1 Petition for review granted and remanded on other grounds sub
nom. Washington State Nurses Assn. v. NLRB, 526 F.3d 577 (9th Cir.
2008). The Ninth Circuit disagreed with the Board’s “special circum-
stances” finding. However, it endorsed the Board’s statement of the
presumptive validity rule, reiterating that “[i]n the healthcare context,
restrictions on the wearing of union insignia in ‘immediate patient care’
areas are presumptively valid.” In addition, although former Member
Liebman dissented in Sacred Heart Medical Center as to “special cir-
cumstances,” she did not take issue with the majority’s statement of the
presumptive validity rule.
2 Baptist Hospital concerned a no-solicitation rule, but the Board
has applied that decision to union-insignia rules for at least 27 years.
See Mesa Vista Hospital, 280 NLRB 298 (1986).
spondent’s direction to refrain from wearing the “Bust-
ed” sticker in patient-care areas. The judge rejected Sen-
ior Vice President Crutchfield’s testimony (that she im-
posed the ban in immediate patient-care areas out of con-
cern for residents and their care) simply because there
was no evidence that the stickers actually upset residents.
That is not the applicable test. Evidence of actual dis-
turbance of patients is not required to demonstrate spe-
cial circumstances, and such a standard would be espe-
cially objectionable in a healthcare facility. “[A] hospital
[or other healthcare facility] need not wait for the awful
moment when patients or family are disturbed by a but-
ton before it may lawfully be restricted.” Sacred Heart
Medical Center, supra at 533; see also Nordstrom, Inc.,
264 NLRB 698, 701 fn. 12 (1982) (holding, in the retail-
sales context, that an employer “need not await customer
complaint before it takes legitimate action to protect its
business”), and Pathmark Stores, 342 NLRB 378, 379–
380 (2004) (citing Nordstrom, supra).
Relying on experience, intuitive reasoning and com-
mon sense, Crutchfield took responsible action before
any residents could be adversely affected.3 Under the
judge’s incorrect standard, an objectionable button could
be prohibited only if it were first permitted (even though
managers reasonably believed it would upset patients or
their families). Such an approach was specifically reject-
ed by the Board in Sacred Heart Medical Center, supra
at 532, where the Board made clear that the reasoned
judgment of health care professionals concerning poten-
tial harm to patients may be relied upon to impose an
insignia ban.4 I believe the judge also improperly reject-
ed the uncontroverted expert testimony of Dr. Ilene
Warner-Maron regarding the likely impact of the “Bust-
ed” stickers in patient-care areas. Here, the judge rea-
soned that Dr. Warner-Maron’s expert opinion “was not
informed by speaking to any patients, family members or
care givers.” Again, this aspect of the standard applied

3 At the relevant time, Senior Vice President of Labor Relations
Crutchfield had more than 10 years’ experience advising healthcare
facilities regarding labor and human resource issues.
The majority asserts that the Respondent’s letters to patients and
their families, informing them about the ongoing labor dispute, under-
cut Crutchfield’s stated concerns. In fact, the opposite is true. Unlike
the stickers, the Respondent’s communications served to provide assur-
ances that normal operations and care would remain unaffected by the
dispute, underscoring the Respondent’s commitment to taking actions
necessary to maintain an atmosphere of care.
4 See also NLRB v. Baptist Hospital, 442 U.S. at 782–783. My col-
leagues cite Baptist Hospital in support of their finding that the evi-
dence presented by the Respondent was insufficiently specific to estab-
lish special circumstances. But the evidence the Court found sufficient
in Baptist Hospital was testimony concerning potential harm to pa-
tients—just like the testimony in this case of Crutchfield, who had been
employed by the Respondent for over 5 years at the time of the events
at issue, and Dr. Warner-Maron.
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by the judge is circular, suggesting that an objectionable
button must first be permitted before it can be prohibited.
The record also clearly establishes that Dr. Warner-
Maron was well qualified to render an opinion regarding
the clinical impact of the “Busted” sticker.5 The above-
cited cases likewise show that experience and common
sense may furnish a sufficient basis for a finding that
“special circumstances” warrant an insignia ban.6 In any
event, as stated above, a “special circumstances” finding
is not necessary here because the prohibition of the
“Busted” sticker in immediate patient-care areas was
presumptively valid.
For these reasons, I respectfully dissent from my col-
leagues’ finding that Respondent violated the Act by
ordering the removal of the “Busted” sticker in immedi-
ate patient-care areas at the four facilities described
above.
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 remove union flyers from the Union’s
bulletin boards.

5 Dr. Warner-Maron holds master’s degrees in social gerontology,
health administration, and law and social policy, and a doctorate in
health policy. She is a gerontological nurse and has worked as an ad-
ministrator in nursing facilities.
6 The judge and my colleagues also improperly discount the expert’s
testimony merely because the Respondent failed to consult the expert
before banning the stickers. This reasoning is similarly flawed. The
above-cited cases establish that a manager may reasonably rely on her
own common sense and experience when determining that objectiona-
ble insignia would cause upset to patients and family members in pa-
tient-care areas. It is relevant and probative when a qualified witness
provides expert testimony stating that the manager’s judgment was
reasonable, without regard for whether the expert was consulted at the
time of the events in question. Regardless whether Crutchfield was
aware of the expert’s views when the ban was imposed, the expert’s
opinion bolsters the Respondent’s “special circumstances” showing.
WE WILL NOT selectively prohibit employees at Dan-
bury Health Care Center, Long Ridge of Stamford, West
River Health Care Center, and Wethersfield Health Care
Center from wearing stickers in immediate patient care
areas stating that these health care centers were “Busted”
on March 21, 2011, by the National Labor Relations
Board for violating federal labor law.
WE WILL NOT prohibit employees at Newington Health
Care Center and Westport Health Care Center from
wearing stickers in all areas of the facility stating that
these health care centers were “Busted” on March 21,
2011, by the National Labor Relations Board for violat-
ing Federal labor law.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind our selective prohibition against em-
ployees at Danbury Health Care Center, Long Ridge of
Stamford, West River Health Care Center, and Weth-
ersfield Health Care Center from wearing the “Busted”
sticker in immediate patient care areas.
WE WILL rescind our prohibition against employees at
Newington Health Care Center and Westport Health
Care Center from wearing the “Busted” sticker in all
areas of the facility.
HEALTHBRIDGE MANAGEMENT, LLC AND
DANBURY HEALTH CARE CENTER, LONG RIDGE
OF STAMFORD, NEWINGTON HEALTH CARE
CENTER, WESTPORT HEALTH CARE CENTER,
WEST RIVER HEALTH CARE CENTER, AND
WETHERSFIELD HEALTH CARE CENTER
The Board’s decision can be found at
www.nlrb.gov/case/34-CA-012964 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273–1940.
Jennifer Dease and John A. Mcgrath, Esqs., for the General
Counsel.
George W. Loveland, II and Nicole H. Bermel, Esqs. (Littler
Mendelson, P.C.), of Memphis, Tennessee, for the Re-
spondent.
E-1/2:,:p~i: inll.,..1.... • ..4;
•... ..f.... 4
.lktrLY'
HEALTHBRIDGE MGMT. 943
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge and an amended charge filed in Case 34–CA–012964 by
New England Health Care Employees Union, District 1199,
AFL–CIO (the Union) on April 14 and July 28, 2011, respec-
tively, and based on a charge filed in Case 34–CA–013064 by
the Union on July 28, 2011, complaints were issued on Sep-
tember 30 and October 27, 2011, respectively, against Health-
Bridge Management and Danbury Health Care Center, Long
Ridge of Stamford, Newington Health Care Center, Westport
Health Care Centre, West River Health Care Center, Weth-
ersfield Health Care Center (Respondents, but herein collec-
tively called the Respondent).1 On October 27, 2011, the com-
plaints (the complaint) were consolidated for hearing.
The consolidated complaint alleges, essentially, that after the
Union publicized, by means of flyers and stickers (the “Busted”
flyers and stickers) the fact that a complaint had been issued
against the Respondent, the Respondent removed those flyers
from the union bulletin boards at its health care centers, and
prohibited employees from wearing the stickers in immediate
patient care areas while permitting employees to wear other
stickers, buttons, or insignia in immediate patient care areas at
its health care centers.
The complaint further alleges, that since late March 2011,
the Respondent prohibited its employees from wearing the
stickers at its Newington, Westport, and West River Health
Care Centers, while permitting employees to wear other stick-
ers, buttons or insignia at the Respondent’s health care centers.
The complaint also alleges that, following the expiration of
certain collective-bargaining contracts between the Respond-
ents and the Union at the Danbury, Long Ridge, Newington,
Westport, and Wethersfield facilities on about March 17, 2011,
the Respondent unlawfully ceased deducting from employees’
wages, union dues and fees, and ceased remitting to the Union
the dues and fees which were provided for in those expired
contracts. The complaint alleges that by not giving the Union
prior notice of its actions and without affording the Union an
opportunity to bargain with the Union regarding such conduct,
The Respondent failed to bargain with the Union.
The Respondents’ answers to the complaints denied the ma-
terial allegations thereof, and on January 4, March 5 through 8,
and on May 1, 2012, a hearing was held before me in Hartford,
Connecticut. Upon the evidence presented in this; proceeding,
and my observation of the demeanor of the witnesses and after
consideration of the briefs filed by the General Counsel and the
Respondent, I make the following
FINDINGS OF FACT
JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent HealthBridge (HealthBridge), a New Jersey
limited liability corporation with its principal offices located in
Fort Lee, New Jersey, and regional offices in other States in-

1 The Respondent Health Care Centers and Respondent Health-
Bridge each admits receipt of the charges and amended charges.
cluding Massachusetts and Connecticut, has been engaged in
the management of nursing homes and health care facilities in
multiple States, including the following nursing homes (the
Health Care Centers).
Danbury Health Care Center, located at 107 Osborne Street,
Danbury, Connecticut; Long Ridge of Stamford, located at 710
Long Ridge Road, Stamford, Connecticut; Newington Health
Care Center, located at 240 Church Street, Newington, Con-
necticut; Westport Health Care Center, located at 1 Burr Road,
Westport, Connecticut; West River Health Care Center, located
at 245 Orange Avenue, Milford, Connecticut; and Wethersfield
Health Care Center, located at 341 Jordan Lane, Wethersfield,
Connecticut.
During the 12-month periods ending August 31, 2011, and
September 30, 2011, HealthBridge, in conducting its business
operations, derived gross revenues in excess of $100,000 and
provided services valued in excess of $50,000 in States outside
the State of New Jersey.
At all material times, each of the Health Care Centers has
been engaged in the operation of a nursing home and long-term
care facility providing convalescent and skilled nursing care to
its residents including physical therapy, occupational therapy,
speech therapy, IV hydration, and assistance with activities of
daily living. During the 12-month periods ending August 31,
2011, and September 30, 2011, each of the Health Care Cen-
ters, in conducting its business operations, derived gross reve-
nues in excess of $100,000, and received at its respective facili-
ty goods valued in excess of $5000 directly from points outside
the State of Connecticut.
The Respondent HealthBridge and the six Health Care Cen-
ters agree for the purposes of the instant cases only, that:
Any actions taken by or on behalf of any or all of the Health
Care Centers by HealthBridge or by any agents or officials of
HealthBridge are binding on each respective Health Care
Center for which such actions were taken.
Any action taken by or on behalf of any or all of the Health
Care Centers by any of the Health Care Centers or by any
agents or officials of Health Care Centers are binding on
HealthBridge.
At all material times HealthBridge has been a joint employer
with each of the Health Care Centers of the employees of each
of the Health Care Centers set forth in the 2004–2011 collec-
tive-bargaining agreements.
Health Care Centers and HealthBridge admit that the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
The Union has represented the employees at each of the six
Centers for at least 10 years. Each of the six Centers has a
separate collective-bargaining agreement with the Union which
ran for the same period of time. The 2004–2011 collective-
bargaining agreements, which expired by their terms on March
16, 2011, each describe a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(a) of the
Act. Health Care Centers and HealthBridge admit that at all
material times, the Union has been the exclusive collective-
bargaining representative of the respective units.
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The “Busted” Flyers
On March 21, 2011, Region 34 of the Board issued a com-
plaint against the six Health Care Centers involved in this case.
The complaint alleged, inter alia, that certain housekeeping
employees employed at Long Ridge, Newington, and Westport
were informed that they were no longer employed by a subcon-
tractor. The complaint also alleged that the Respondent com-
mitted other unfair labor practices including discharging those
housekeepers, threatening employees, failing to continue in
effect certain terms of the collective-bargaining agreements,
and delaying in furnishing the Union with certain information.
Each of the six Health Care Centers has “delegates” who are
active union members. They act in behalf of the Union by post-
ing notices on the union bulletin board and distributing stickers
and notices to the Union’s members employed at the Center.
On March 25, the “Busted” flyer was posted on the union
bulletin board in the break room at each of the six Health Care
Centers. The collective-bargaining agreements with the six
Health Care Centers involved here contain essentially the same
provision regarding union bulletin boards:
The Center will furnish a bulletin board for posting of proper
Union notices. Such bulletin board shall be placed in a loca-
tion conspicuous and accessible to workers in the course of
employment.
The flyer was printed on an 8-½” x 11” sheet of paper. T he
top third had a judge’s gavel and sound block with the words
“HealthBridge” and “BUSTED.” The text of the message in-
cludes the following:
HealthBridge Management/Care One LLC will do
ANYTHING- even violate labor law-in their ruthless pursuit
of more profit. HealthBridge Management/CareOne LLC,
the big, out-of-state corporations that own and operate the
(name of Health Care Center),2 are trying to “divide and con-
quer” residents and caregivers at their nursing homes-
resorting to scare tactics, fear-mongering and illegal behavior
to get their way.
They are trying to frighten residents and their families and di-
vide us, the caregivers, from the people we care for. To fill
their own pockets, they want to empty ours. They want to de-
stroy our jobs, our families and our neighborhoods-and un-
dermine the loving care and relationships we’ve built together
over all our years. On March 21st, the National Labor Rela-
tions Board issued an 18-page federal complaint against them
for massive violations of federal law.
Every year, HealthBridge/Care One accepts hundreds of mil-
lions of dollars in public funding-our tax dollars-from Medi-
caid and Medicare. But that’s not enough for them. Instead of
trying to avoid a strike, they’re trying to provoke one, even re-
fusing to sign a contract extension like most other nursing
home operators. And it’s all in the name of reaping even
higher profits.
This is another case of greedy, national corporations exploit-

2 Separate flyers bearing the name of the appropriate Center were
produced for each of the six Centers.
ing the elderly and their caregivers by lying, cheating and
even law-breaking. But we won’t let them get away with it.
Call Care One today at (201) 242–4000 or call (name of
Health Care Center, Administrator and phone number). Tell
them no company can set themselves above the law.
Lisa Crutchfield, the senior vice president of labor relations
for HealthBridge, learned at about 9 a.m. on March 25 that
employees were wearing stickers and that the “Busted” flyers
were posted regarding the issuance of the March 21 complaint.
She advised her managers that flyers “that contain inappropri-
ate materials should be removed immediately.” Shortly there-
after, after having actually seen the flyer, she advised her man-
agers that the “flyers should be removed.” They were then
immediately removed from the Union’s bulletin boards at each
of the Health Care Centers.
Crutchfield testified that she ordered the removal of the fly-
ers based on her interpretation of the contract’s language that
the boards are provided for the posting of “proper” union notic-
es, but conceded that she was not involved in the negotiation
leading to that contractual language. She stated that a “proper”
union notice is one that provides information about an event, a
meeting, a date and time of negotiations, or the notification of
employees of upcoming events, such as a visit by a member of
the Union’s training fund.
Crutchfield stated that the “Busted” flyer is not a “proper”
union notice because it is derogatory and disparaging of the
Respondent and contains statements which are not accurate or
truthful. For example, she stated that, although it claims that
the Respondent was “busted,” at the time the stickers and flyers
were distributed no hearing on the complaint had been held,
and there had been no finding that the Respondent had commit-
ted any unfair labor practices.
Crutchfield testified that, prior to March 25, she ordered the
removal of other union flyers from union bulletin boards which
she deemed “not proper.” For example, on June 10, 2010, she
directed the removal of a flyer relating to the subcontracting of
unit work.3 The flyer asked “how does HealthBridge reward
dedicated staff? By kicking them out the door.” That flyer also
stated that the Respondent “robbed employees of hundreds of
hours of vacation time.” On June 10, Crutchfield directed the
Center’s administrator to remove the flyer “discretely, but we
are covered by the contract on this. In particular, the contract
provides that only proper union notices may be posted on the
bulletin board. This notice is defamatory and not proper.”
She also ordered the removal of a flyer in January 2011
which stated that “HealthBridge wants to take away every sin-
gle thing we’ve fought for. HealthBridge wants to rob from us
our rights and our voice, pensions, paid lunch . . . . Health-
Bridge has no respect for us or our residents––all they want is
to strip us of our rights, destroy our standards, cripple our abil-
ity to give quality care and turn our nursing home into a sweat-
shop.”4
Another flyer was ordered removed on about March 18,
2011.5 That flyer stated that HealthBridge was “creating hyste-

3 GC Exh. 11.
4 GC Exh. 13.
5 GC Exh. 14.
HEALTHBRIDGE MGMT. 945
ria in our facilities” regarding its proposals in negotiations.
Another flyer which stated that “Grinch threatens lock out”
was also ordered removed from the Union’s bulletin boards.6
The flyer stated that HealthBridge has, and continues to break
the law.7 Crutchfield also ordered the removal of another flyer
on which someone had written certain “profanities.”
All the above flyers were removed for the same reason ac-
cording to Crutchfield. They were not proper because they were
defamatory and derogatory toward the Center, and contained
untruthful statements. However, employees were not prohibit-
ed from distributing the flyers in the employee break rooms and
lunchrooms. No grievances were filed concerning the removal
of the flyers. Crutchfield did not inform the Union that the
flyers were being removed.
The “Busted” Sticker
On March 25, the same day that the “Busted” flyer was dis-
tributed, the Union gave stickers to employees at each of the six
Health Centers. The round sticker, which is 2-½” in diameter,
states, in the top third of the sticker “HealthBridge Danbury
Health Care Center.8 The middle part of the sticker has a 3/4”
rectangular box in red ink framing the word “BUSTED.” Be-
low the box is the following: “March 21, 2001 By National
Labor Board For Violating Federal Labor Law.” The sticker
has a picture of a judge’s gavel and sound block.
The stickers were distributed at the start of the workday, at
about 7 a.m., and the workers wore them until about 1 p.m. that
day. At that time, after seeing black and white copies of the
stickers, Crutchfield conducted a conference call with her man-
agers at the six Health Care Centers in which she told them that
employees could wear the stickers when they were not provid-
ing resident care or in resident care areas. However, when they
were in resident care areas or providing resident care they had
to remove the sticker. She gave the managers examples of
resident care areas as resident rooms, corridors immediately

6 The Grinch is a fictional character created by Dr. Seuss in the
children’s book, How the Grinch Stole Christmas. The Grinch, a
green-colored figure, is opposed to the holiday spirit of Christmas and
has a rough, exploitative attitude.
7 GC Exh. 16.
8 Separate stickers bearing the name of the appropriate Center were
produced for each of the six Centers.
outside the residents’ rooms, resident dining rooms, resident
activity lounges, treatment rooms, shower rooms, rehabilitation
gyms where residents were receiving therapy, and medical
examination rooms.9
Crutchfield told her managers to advise their employees of
the above policy, and also to tell them that if they refused to
remove the sticker they should be told that they would have to
punch out and leave, but that no discipline would be given to
them. The managers then acted to advise the employees in the
six Centers of this policy. Later, at about 3 p.m., during anoth-
er conference call, Crutchfield learned that all the employees
complied with the requests of their managers to remove the
stickers in resident care areas.
Crutchfield testified that she made the decision that the
stickers be removed in resident care areas out of concern for the
residents, in order to ensure that their care was not interrupted,
and that they did not have unnecessary concern regarding an
issue that might be confusing to them or lead them to believe
that the Respondent had committed some kind of crime due to
the image of a judge’s gavel and the word “busted.” She was
concerned that the residents may believe that something the
Respondent had done may impact the care they received, there-
by upsetting them.
Dr. Ilene Warner-Maron, a registered nurse specializing in
nursing home care and geriatric care, has master’s degrees in
social gerontology, health administration, and law and social
policy, and a Ph.D. degree in health policy. She has served as
an acting director of nursing, a nursing facility administrator
and an adjunct college professor. Dr. Warner-Maron gave ex-
pert testimony that in her opinion, the “busted” sticker, worn by
a caregiver who is giving care to a nursing home resident would
tend to disturb the patient or disrupt patient care.
It was Dr. Warner-Maron’s opinion that the word “busted,”
framed in red and accompanied by a judge’s gavel, when worn
at chest level by a caregiver and seen by a vulnerable adult
having physical and/or cognitive impairments, and who is de-
pendent on the caregiver for her care, would have a negative
impact on the resident. She stated that the word “busted” im-
plies that a legal judgment has been rendered, that something is
negative, is in trouble, is broken, someone or thing has been
arrested, or that the facility is in danger of becoming bankrupt.
Dr. Warner-Maron further opined that, when seeing the
sticker, the resident could easily become agitated, upset, wor-
ried, and concerned that the facility had violated some law
which might cause the facility to close, resulting in the patient
being moved from the facility, both constituting a threat to the
safety and security of the resident. She stated that the sticker
increases the risk that patients would feel threatened and emo-
tionally abused. However, she noted that the sticker “in and of
itself” does not constitute abuse of patients, but that its wording
“is easily viewed as an implied threat” that something is wrong
and threatening because of the use of the word “busted.”
Dr. Warner-Maron also stated that federal and state regula-
tions require that skilled nursing facilities must provide a safe,

9 Crutchfield’s description of resident care areas is essentially con-
sistent with those areas set forth in the Respondent’s no-solicitation
policy.
Danbury Health Care Center
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
secure, nonthreatening atmosphere to their patients, and that the
“busted” sticker would cause the resident to become fearful that
the facility is in legal trouble, thereby causing the patient to
become emotionally stressed and feel threatened.
Dr. Warner-Maron gave her opinions based on her expertise,
knowledge, education, training, and experience, and her
knowledge of working with older adults in nursing home set-
tings, and based on her understanding of the connotations of the
word “busted.” She did not speak to any residents, family
members or caregivers in reaching her opinion. There was no
evidence that Crutchfield or any Respondent agent sought ad-
vice from Dr. Warner-Maron before deciding to ban the wear-
ing of the “Busted” stickers.
There was no evidence that residents or family members
complained about the “Busted” stickers or claimed that they
were abusive in any way.
The General Counsel points out that the Respondent sent let-
ters addressed to its residents and their family members in
March 2011, in which it discussed the ongoing contract negoti-
ations. In the letters, the Respondent referred to the “tremen-
dous pressures facing our industry,” and that the expired union
contact “is no longer realistic,” and raised the possibility that
the employees may strike their facility given the Union’s “long
history of calling strikes.” Its letters assure the residents that
operations at the Health Care Centers will continue uninterrupt-
ed with “replacement staff in the event we need them.” The
Respondent’s March 14 letter referred to its filing of a charge
against the Union with the Board.
In its March 28 letter, the Respondent objected to the “Bust-
ed” flyers “which are full of misleading and false statements
. . . designed to try and harm the reputation of our Center in the
community,” adding that by doing so the Union “hurt the em-
ployees who work here or unnecessarily upset our residents and
their families.” That letter stated that the “Busted” flyer re-
ferred to a “complaint issued against our Center by the National
Labor Relations Board. There has not been any ruling or find-
ing by any judge in this case. At the July hearing evidence will
be presented to an Administrative Law Judge who will then
issue a decision. We intend to present a full slate of facts that
directly counter all of the baseless allegations in the complaint
and we look forward to the Judge’s fair and impartial review of
the case.”
Danbury Health Care Center
Licensed practical nurse Eileen Underwood wore the “Bust-
ed” sticker on her upper right chest while working in patient
care areas and elsewhere. She testified that administrator Mi-
chael Pescatello approached her as she was sitting at the nurse’s
station with Angela Magrino, from the HealthBridge regional
office who works with Minimum Data Set recording patient
information.
Pescatello pointed at Underwood’s sticker and told her she
had to remove it. She asked why and he said that “it’s solicita-
tion.” Underwood replied that she was “surrounded by solicita-
tion,” explaining that her supervisor sells photographs at work
and had a sample on her desk. Magrino replied that they were
not speaking about “that type of solicitation.” Pescatello that
“it’s not that kind of solicitation. You can’t wear it on the
floor; you can only wear it in the break room.” Underwood
challenged him, saying that she should be able to wear it on the
floor because he, Pescatello, on a weekly basis, interrupts the
patient care the employees deliver to speak to them about the
Union’s actions, such as going on strike, and that they could
withdraw from the Union if they wanted. She said that such
discussions make the staff feel anxious, nervous and upset,
“and yet my sticker seems to be causing a problem.”
Pescatello repeated that she had to remove it and could only
wear it in the breakroom. Underwood then removed the stick-
er.
Pescatello testified that he spoke to about 12 groups of em-
ployees in the dietary, laundry, and housekeeping departments.
He was accompanied by Magrino who did not speak to the
workers. Pescatello advised the workers of the instructions
given to him regarding wearing the sticker in resident care are-
as as given to him by Crutchfield, set forth above. He stated
that he asked Underwood to remove the sticker while she was
working in direct care with residents, but said that she could
wear it in other parts of the building. When Underwood asked
why she had to remove it, Pescatello told her that there was
some “concern” by a couple of residents who wanted to know
“what was going on.” Underwood asked why that should be a
concern since management was distributing letters to residents
concerning the negotiations. Pescatello responded that that
issue was not relevant to their discussion.
Certified nurse’s aide, Noreen Strempski, wore the “Busted”
sticker on the left side of her chest or upper shoulder. She was
present only during that part of the conversation between Un-
derwood and Pescatello in which he told Underwood that she
could not wear the stickers “here” and during her reply that
Pescatello distributed letters to the staff.
Licensed practical nurse Dolores Casey testified that she
wore the “Busted” sticker on the upper left chest area of her
jacket. She stated that she was sitting at the nurse’s station
when Pescatello told her that “you need to remove that sticker.”
She removed the sticker from her jacket, and put the sticker on
her uniform. She then closed the jacket over her uniform so
that sticker was not visible.
Pescatello testified that he asked Casey to remove the sticker
while she was working in patient care areas. When she asked
why, Pescatello replied that there were concerns from residents.
Casey removed the sticker and put it on her uniform and cov-
ered it.
Long Ridge of Stamford
Certified nurse’s aide, Ria Pemberton, testified that she first
wore the “Busted” sticker when she arrived at work at about 8
a.m. on March 25. She placed one sticker on her left arm and
one on her left front pocket. She wore the stickers until 2 p.m.
in patient care areas and in other areas of the Center.
Pemberton stated that at about 2 p.m., Administrator Larry
Condon approached her as she stood at the nurse’s station with
other employees. He said, “[Y]ou have to take the stickers
off.” Pemberton asked if that was an order? Condon said it
was, and that “it was not appropriate to be worn in patient are-
as,” adding that she could wear them in nonpatient areas such
as the lunchroom or outside the building. Condon added that if
HEALTHBRIDGE MGMT. 947
she did not remove the sticker he would ask her to punch out
and leave the building. Pemberton and the other two employ-
ees then removed their stickers.
Certified nurse’s aide, Claudette Parks-Hill, wore the “Bust-
ed” sticker on the top left chest area of her uniform on March
27. She stated that at about 8 a.m. on that date, admitted Nurse
Supervisor Lenora Abela approached her and said, “[Y]ou must
take off the sticker. Larry [Condon] said we had to take the
sticker off.” Parks-Hill replied that she would ask her head
delegate, Patrick Atkinson. Atkinson advised her to continue to
wear the sticker but to make sure that she was wearing her
identification badge.
About 2 hours later, Abela returned to the floor and noticed
that Parks-Hill was still wearing the sticker. Abela said, “[T]his
doesn’t look good in the facility [because] people are looking
down at the facility.” She added that Condon said that employ-
ees who refuse to remove the sticker must punch out and leave.
Atkinson was summoned to the unit and the group was told that
Condon ordered that they remove the sticker. They did so.
Atkinson testified, essentially confirming what Abela told
Parks-Hill and the group at that time.
Condon testified that following his conference call with
Crutchfield, he walked through the building to the three nurse’s
stations on all three floors and the dietary and laundry depart-
ments. He spoke with about 20 employees who were wearing
the “Busted” stickers, and asked them to remove them in ac-
cordance with Crutchfield’s instructions set forth above. After
speaking to those employees, Condon advised Assistant Ad-
ministrator Polly Schnell and Nursing Supervisor Abela of
Crutchfield’s instructions. Abela later told Condon that she
received some “resistance” from employees when she first told
them where they could wear the stickers.
Newington Health Care Center
Tania Beckford, a certified nurse’s aide, testified that she
wore two “Busted” stickers on her upper shoulder on both sides
of her uniform. She wore them while she worked in patient
care areas and when she was in other areas of the Center.
Beckford, a delegate, was told by delegate Elaine Ewart that
supervisors were asking employees to remove the stickers from
their uniforms. Beckford, Ewart, and other employees went to
the office of Administrator Jarrett McClurg at about 2 p.m.
Beckford asked why the employees had to remove their stick-
ers. McClurg replied that it is not a part of their uniform. Beck-
ford answered that she always wore stickers. McClurg replied
that they could not wear them and had to remove them. A
woman who said that she was from the corporate or human
resources department repeated that the stickers were not a part
of their uniform.
Westport Health Care Center
Jacqueline Beliard, a housekeeper, testified that as she left a
patient’s room, she was told by Administrator Kim Coleman
that she should remove the sticker. Beliard did not do so, and
Coleman walked away but then returned and ordered her to
“take it off right now.” Beliard removed it.
West River Health Care Center
Philip Bradeen, a dietary chef, wore the “Busted” sticker on
his upper left chest area on the tray line in the kitchen. He stat-
ed that at 9:30 a.m. on March 25, Christopher McCenerney, his
admitted supervisor and director of dietary services, ap-
proached him and asked him to remove the sticker because “the
rights of the residents is not to know about what was going on.
They had no reason to know and it was upsetting the residents.”
Bradeen replied that he has a right to wear it, adding that the
residents should know what kind of company they are dealing
with. He did not remove the sticker.
McCenerney denied seeing Bradeen wearing the sticker, de-
nied having any conversation with him regarding the sticker,
and specifically denied asking him to remove it. He stated that
he reported to Administrator Joanne Wallak that he had seen
the sticker. She told him that employees could wear the sticker
in the kitchen area but they had to remove or cover them if they
visit a resident care area or areas adjacent to resident care areas.
Bradeen stated that later that day, at about 1:30 p.m. as he
was eating in the breakroom, Suzan Birt, the business office
manager, but not an admitted supervisor, asked him to remove
the sticker because the “residents are getting upset and they
don’t have a right to know what it’s about.” Bradeen refused,
explaining that he was in the breakroom, a “neutral zone” and
not in contact with any resident, adding that he had a right to
wear a sticker if he wanted.
Birt testified that she had not been at the West River Center
until April 1, 2011, inasmuch as she was hired effective that
date, and therefore could not have spoken to any employee,
Bradeen regarding the “Busted” sticker. Moreover, she denied
seeing any employee wearing the “Busted” sticker, and denied
speaking to Bradeen about the sticker.
Berta Linarte, a certified nurse’s aide, wore the “Busted”
sticker on the upper left chest area of her uniform. She testified
that while doing rounds a woman who worked in the admis-
sions department told her that she could not wear the sticker “in
the building.” Linarte took it off and then later put it back on.
As she was doing some paperwork in the dining room she was
told by Susan from the NDNS office to remove the sticker,
adding that she could wear it “outside, not inside.”
Wethersfield Health Care Center
Certified nurse’s aide, Pauline Dunchie-Legg, testified that
she wore the “Busted” sticker on her top left chest area upon
entering the Center at the start of her workday. She stated that
Administrator David Santoro told her at that time, that he want-
ed to speak with her. They went to his office with employee
Sharon Thomas. Also present was Administrator Robert Whit-
ten who was scheduled to replace Santoro shortly. Santoro said
that he wanted to speak about the “Busted” sticker they were
wearing, adding that he received a “directive from corporate”
that employees must not wear the sticker in patient care areas.
He said that the sticker could be worn in breakrooms and other
areas, but not in patient care areas. He repeated that message
again, this time adding that the sticker sent a “bad message to
the residents.”
Eva Bermudez, a union organizer, testified that on the day
she distributed the “Busted” stickers, she received calls from
employees who told her that they were ordered to remove their
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stickers. She visited the facility and spoke with Santoro and
Whitten with delegate Dunchie-Legg.
Santoro told Bermudez that HealthBridge management
called and told him that the stickers were not permitted to be
worn because they did not like the word busted which was in-
accurate and not true. Bermudez replied that the word “busted”
represents the fact that the Board issued a complaint on the
unfair labor practices and that “since there is validity, there is
truth to the complaint.” Santoro repeated that the word “bust-
ed” was inappropriate and farfetched, adding that the sticker
should not be used in patient care areas, but could be worn in
breakroom areas away from patients’ rooms.
Bermudez asked Santoro what an immediate patient care ar-
ea was, and he replied that it included patient rooms, hallways,
and the areas adjacent to patient rooms. Bermudez asked
whether she could wear the stickers in nonpatient care areas but
then passing those areas on their way to the breakroom. Santo-
ro answered that they should be removed when the employee is
walking through the hallway on her way to the breakroom, and
then put them on when in the breakroom.
Bermudez then asked why they had to remove the stickers
since they had worn stickers previously. Santoro replied that
“this is coming from upper management from HealthBridge—
the busted ticker is inappropriate.”
The Respondent Permits the Wearing of Other Insignia
Employees wore numerous buttons and pins throughout their
employment with the Respondent. They included a 1-½” pin
bearing the inscription 1199 New England Health Care Em-
ployees Union SEIU, a 1-½” square pin stating “one vision one
fight one union 1199,” a 2” x 3” rectangular pin with a picture
of Dr. Martin Luther King speaking at a podium bearing an
1199 sign, a 1-½” square pin stating “we are stronger together
1199 delegate,” a 2-¼” round pin stating “seiu for Obama.”
They also wore one inch pins stating “make a difference,” “cer-
tified nursing assistants make every day brighter,” “nurse’s
aide,” great staff great team,” “extraordinary service our facility
is in good hands,” “nursing assistants caring hands loving
hearts,” and a pin with the image of an angel. In addition, the
employees wore a 2-½” diameter sticker which stated “Health-
Bridge—A real life story of how the Grinch stole Christmas
1199.”
It was stipulated that the Respondent permitted its employees
to wear all the pins and stickers, above, at all material times10
and in all places in the facility for each of the Health Care Cen-
ters. Further, there were no restrictions concerning where the
employees could wear those items, and that they wore them
wherever they wanted to in the buildings, which would include
patient care areas.

10 There was evidence that “all material times” means that those
other stickers and pins were worn before, during, and after the “Busted”
stickers were worn on March 25.
The Cessation of Dues Deductions and Dues Remissions
to the Union
The six Health Care Centers’ collective-bargaining agree-
ments with the Union contained the following essentially iden-
tical provisions concerning the deduction of dues and remission
of dues to the Union:
Upon receipt of a written authorization from an Employee in
the form annexed hereto as Exhibit A, the Center shall pursu-
ant to such authorization, deduct from the wages due said
Employee each month, starting not earlier than the first pay
period following the completion of the Employee’s first 30
days of employment; and remit to the Union regular monthly
dues and initiation fee, as fixed by the Union. The initiation
fee shall be paid in two consecutive monthly installments be-
ginning the month following the completion of the probation-
ary period.
The Center shall be relieved from making such “check-off”
deductions upon (e) revocation of the check-off authorization
in accordance with its terms or with applicable law. . . .
The dues-checkoff authorization states as follows:
You are hereby authorized and directed to deduct an initiation
fee from my wages or salary as required by the New England
Health Care Employees Union, District 1199 as a condition of
membership and in addition thereto, to deduct each month my
monthly membership dues from my wages or salary and to
remit all such deductions so made to the New England Health
Care Employees Union, District 1199 no later than the tenth
of each month immediately following the date of deduction.
This authorization shall be irrevocable for a period of one year
or until the termination of the collective bargaining agree-
ment, whichever is sooner, and shall, however, renew itself
from year to year unless the employee gives written notice
addressed to the New England Health Care Employees Un-
ion, District 1199 at least 15 days prior to any termination
date of the revocation of this authorization.
The complaint alleges that following the expiration of certain
collective-bargaining contracts between the Respondents and
the Union at the Danbury, Long Ridge, Newington, Westport,
West River, and Wethersfield facilities on about March 17,
2011, the Respondent unlawfully ceased deducting the union
dues and fees and ceased remitting to the Union the dues and
fees which were provided for in those expired contracts. The
complaint alleges that by such conduct the Respondent failed to
bargain with the Union without giving the Union prior notice of
its conduct and without affording the Union an opportunity to
bargain with the Respondent with respect to such conduct.
It was stipulated that each of the Health Care Centers ceased
making deductions of union dues and fees from employees’
wages and remitting any such deducted monies to the Union on
March 24, 2011, the first dues-deduction date following the
expiration of the 2004–2011 collective-bargaining agreement.
It was also stipulated that, by a letter distributed to employ-
ees at each of the Health Care Centers, the Respondent in-
formed its employees who were represented by the Union that
it would no longer be deducting union dues from their
HEALTHBRIDGE MGMT. 949
paychecks. No previous notice was provided to the Union re-
garding these actions by the Respondent.
The letter informed the employees that “the dues check-off
provisions do not survive the expiration of the old contract.
Since our Center will not be deducing any union dues from
your paychecks while there is no contract in effect, you will
have to make arrangements directly with the Union for the
payment of any union dues or fees that you may owe the Un-
ion.”
Analysis and Discussion
The “Busted” Flyers
As set forth above, on March 25, the Respondent directed
that the “Busted” flyer be removed from the Union’s bulletin
boards in all its Health Care Centers. The flyer claimed that the
Respondent had been “busted,” and that it would do “any-
thing—even violate labor law—in their ruthless pursuit of more
profit.”
The collective-bargaining agreement provided for the post-
ing of “proper” union notices. Respondent official Crutchfield
determined that the flyer was not “proper” because it was in-
flammatory, derogatory to the Respondent, and inaccurate and
untruthful. In stating that the flyer was not “proper” she relied
on the facts that, although it claimed that the Respondent had
been “busted,” no hearing on the complaint had been held, and
there had been no finding that the Respondent had committed
any unfair labor practices.
The contract language did not define the word “proper” and
did not reserve to the Respondent the power to decide which
notices were not proper or the right to remove flyers which it
deemed were improper. In Monongahela Power Co., 314
NLRB 65, 68 (1994), the Board decided a case similar on its
facts to the instant case. The contract’s language there provid-
ed that the union may post “reasonable and proper notice cover-
ing legitimate union business.” A newsletter posted by the
union on the bulletin board referred to the discharge of an em-
ployee and stated that the matter may be the subject of an unfair
labor practice charge. The newsletter was removed by the em-
ployer because it defamed the company, made it “look bad,”
was “contrary to the image of the company,” and contained
“misinformation, lies, half-truths and the expression of opin-
ion.” The judge, in finding that the employer violated the Act
by removing the newsletter, stated that the newsletter’s material
“may be considered to be biased, prounion opinion but that is
hardly surprising.” He also stated that the material in the news-
letter does “not approach any reasonable concept of defamato-
ry, profane, outrageous, or inflammatory language by any ob-
jective standard . . . . The possibility that some statements may
have been factually inaccurate (for example, because of a lack
of full knowledge on the part of the union) does not justify the
removal, without consultation, of the entire newsletter.”
In addition, the word “busted,” when used in the context of
what actually occurred, cannot be considered inaccurate. Thus,
a complaint had issued against HealthBridge and the flyer ex-
pressly stated that the “National Labor Relations Board issued
an 18-page federal complaint against them for massive viola-
tions of federal labor law.” The flyer did not state that the Re-
spondent had been found guilty of unfair labor practices or that
a trial had taken place. In addition, I cannot find that the flyer
was inflammatory or derogatory to the Respondent.
The Respondent’s removal of the flyers from the Union’s
bulletin boards was based on the Respondent’s belief that they
were not “proper” union notices. The Union’s bulletin boards
were for its use in communicating to the workers it represents.
As such, the Union’s notification to the employees by means of
this flyer that the regional office of the Board had issued a
complaint against their employer for violating the Act is a legit-
imate form of communication to them. The flyer did not claim
that the Respondent had violated the law, only that a complaint
had issued against it. If employees might have been misled into
believing that the Respondent had actually been found guilty of
committing unfair labor practices, the Employer could have
corrected that misconception in its communications with em-
ployees. But it cannot be said that the flyer, on its face, was not
a proper notice. In removing the flyers the Respondent im-
properly acted to censor what the employees could and could
not be told by the Union that represented them.
Similarly, in Roll & Hold Warehouse & Distribution Corp.,
325 NLRB 41, 51 (1997), the Board noted that the parties had
agreed that the posted notices not contain materials “detri-
mental” to the employer. The Board noted that the word “det-
rimental” was never defined by the parties. The Board found
that, “under Board law, having established the bulletin board,
“the employer” was not free to regulate its use selectively or
disparately.” The Board found that the removal of the posting
“was an attempt to stifle communication about allege unfair-
ness” in the employer’s treatment of its workers. The Board
also found that the “accuracy of the content . . . is not relevant,
and that the “effected censorship tended to have a ‘chilling and
coercive effect’ on employees rights under Section 7 of the Act
and thus was violative of the Act.”11
Here, even assuming that the word “busted” implies that the
Respondent has been found guilty of unfair labor practices,
such a communication would constitute a factually inaccurate
statement, which does not provide the Respondent with a rea-
son for its removal of the flyers. Monongahela, above. At
most, it would constitute “biased, prounion opinion” which the
Board in Monongahela found permissible. As set forth above,
“the accuracy of the content is not relevant.” Roll & Hold, 325
NLRB at 51.
While it is true that the Respondent has, prior to March 25,
removed other flyers which it deemed inflammatory, derogato-
ry or untruthful, it cannot be said that such actions permitted
HealthBridge to remove the “Busted” flyer. The fact that the
Union did not protest the prior removals or file a grievance as
to the removal of any of the flyers, including the “Busted” fly-
er, likewise did not constitute the Union’s agreement that the
Respondent had the power to remove the Union’s flyers at its
discretion. See Roll & Hold, above at 51.
I accordingly find and conclude that the Respondent’s re-
moval of the “Busted” flyer from the Union’s bulletin boards

11 In Monongahela, the Board found it unnecessary to rely on the
judge’s characterization of the employer’s actions as “censorship” and
an “infringement of the union’s free speech rights,” 314 NLRB 65 fn.
3, but in Roll & Hold, 325 NLRB at 51, the Board did not comment on
the judge’s identical comments.
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
violated Section 8(a)(1) of the Act.
The “Busted” Stickers
The complaint alleges that the Respondent prohibited its em-
ployees from wearing the “Busted” stickers in immediate pa-
tient care areas while permitting employees to wear other stick-
ers, buttons, or insignia in immediate patient care areas at its
health care centers.
The complaint further alleges, that since late March 2011,
the Respondent prohibited its employees from wearing the
stickers at its Newington, Westport, and West River Health
Care Centers, while permitting employees to wear other stick-
ers, buttons, or insignia at the Respondent’s health care centers.
The Board in Saint John’s Health Center, 357 NLRB 2078,
2078–2079 (2011), summarized the law on the issue of wearing
union insignia in healthcare facilities:
It is well established that employees have a protected right to
wear union insignia at work in the absence of “special cir-
cumstances.” In healthcare facilities, however, restrictions on
wearing insignia in immediate patient care areas are presump-
tively valid, while restrictions on insignia in other areas of a
hospital are presumptively invalid.
The Board, with court approval, has created a presumption
that protects an employer from liability if the employer bans
. . . . the wearing of insignia in immediate patient care areas.
NLRB v. Baptist Hospital, 442 U.S. 773, 781 (1979). The ba-
sis of the presumption is that such solicitations or insignia
“might be unsettling to patients—particularly those who are
seriously ill and thus need quiet and peace of mind.” St.
John’s Hospital, 222 NLRB 1150, 1150 (1972). Although this
presumption protects a healthcare facility’s ban on all nonof-
ficial insignia in immediate patient care areas, it does not pro-
tect a selective ban on only certain union insignia.
In the latter type of case, the burden is on the hospital to show
that the selective ban is “necessary to avoid disruption of
health-care operations or disturbance of patients.” Beth Israel
Hospital v. NLRB, 437 U.S. 483, 507 (1978). (Certain cita-
tions omitted)
Accordingly, the law may be distilled as follows: A ban on
all nonemployer insignia in immediate patient care areas is
presumptively valid because such insignia might be “unsettling
to patients.” However, a selective ban on only certain union
insignia is not presumptively valid. If a healthcare facility bans
only certain union insignia, it must show “special circumstanc-
es”—it has the burden of proving that the selective ban was
necessary to avoid disruption of health-care operations or dis-
turbance of patients.
Were the Stickers Banned in Immediate Patient Care Areas?
Regarding the Danbury Health Care Center, I find that ad-
ministrator Pescatello properly advised employees that they
could not wear the “Busted” sticker in immediate patient care
areas. Thus, nurse Underwood admitted that Pescatello told her
that she could not wear the sticker “on the floor.” That expres-
sion clearly contemplates that Underwood was properly being
directed that she could not wear the sticker in patient care areas.
Nurse Strempski implicitly confirmed Pescatello’s testimony in
that she was present only at the time she heard him tell Under-
wood that she could not wear the stickers “here,” which, at the
time, was the nurse’s station which is in an immediate patient
care area.
Although nurse Casey testified that Pescatello told her that
she must remove the sticker without other explanation, Casey
was at the nurse’s station at the time, a patient care area. I can-
not find that Pescatello would have varied his instructions to
the nurses. Thus, he testified that he gave the same direction to
all the employees he spoke to—that they had to remove the
sticker in patient care areas. I accordingly credit Pescatello’s
testimony that he gave the proper instruction to nurse Casey to
remove the stickers she wore in patient care areas.
As to Long Ridge, nurse’s aide Pemberton conceded that on
March 25, Administrator Condon gave her and other employees
detailed instructions at the nurse’s station that they could not
wear the “Busted” sticker in patient areas but could wear them
in nonpatient areas. I accordingly find that Condon gave Pem-
berton the proper direction as to where she could not wear the
sticker.12
Regarding Newington, I credit employee Beckford’s uncon-
tradicted testimony that administrator McClurg told her and
others that they had to remove their “Busted” stickers because
it was not a part of their uniform. McClurg did not testify. I
accordingly find that McClurg did not give the proper instruc-
tions to the employees that they could not wear the stickers in
patient care areas.
As to Westport, I credit employee Beliard’s testimony that
administrator Coleman told her that she must remove her
“Busted” sticker immediately. Coleman did not testify. The
Respondent asserts that simply because Beliard was given that
order as she left a resident’s room, she must have been told that
the sticker could not be worn in patient care areas. There is no
evidence to support that view and I reject it. Accordingly, Be-
liard was not told that she could not wear the sticker in patient
care areas.
Concerning West River, Chef Bradeen testified concerning
conversations he had with two individuals, Supervisor McCe-
nerney, and business office manager, Suzan Birt, who is not an
admitted supervisor. I cannot credit the testimony of Bradeen
because his testimony concerning his conversation with Birt
could not have taken place. Undisputed documentary evidence,
supported by Birt’s testimony, established that she had not yet
been hired by HealthBridge, and had not yet visited West River
when she allegedly spoke to Bradeen. On that basis, I must
also credit McCenerney who denied telling Bradeen to remove
the “Busted” sticker.
Bradeen gave detailed testimony concerning his conversation
with McCenerney regarding McCenerney’s belief that the resi-
dents’ right not to learn about the labor dispute and their right
not to become upset permitted the Respondent to prohibit em-

12 Employees Parks-Hill and Atkinson testified that Supervisor
Abela told them that they had to remove their stickers, without limiting
such a restriction to patient care areas. Abela did not testify. Inasmuch
as the counsel for the General Counsel did not allege in her complaint,
amended complaint, or in her brief that Long Ridge had impermissibly
banned the stickers, I shall not issue an order regarding Long Ridge.
HEALTHBRIDGE MGMT. 951
ployees from wearing the sticker. Nevertheless, I find that
McCenerney’s testimony that he did not see Bradeen wearing
the sticker and his denial that he spoke to him about it is more
credible. I further cannot credit Bradeen because he quoted
office manager Birt as giving him the same reason as McCe-
nerney did as to why he could not wear the sticker. Thus,
Bradeen stated that Birt told him, as he was told by McCe-
nerney, that the residents had no right to know the nature of the
labor dispute. I accordingly credit Birt’s denial that she saw
anyone wearing the sticker or that she spoke to Bradeen about
his wearing it.
Even assuming that I credit the testimony of Linarte, that she
was told to remove the “Busted” sticker by a woman who
works in the admission office and also given the same instruc-
tion by “Susan” from another office, there has been no evidence
that either individual is a supervisor with authority to bind the
Respondent. I accordingly, first, do not find that Linarte was
given such a direction, and secondly, that even if she was, the
unnamed people so directing her have not been proven to be
supervisors or those in a position to bind the Respondent.
Regarding Wethersfield, employee Dunchie-Legg and union
organizer Bermudez confirmed that administrator Santoro ad-
vised that the “Busted” sticker may not be worn in patient care
areas.
Based on the above, I find that at Health Care Centers in
Newington and Westport, employees were told that they must
remove the “Busted” stickers and were not told that they had to
remove them in patient care areas.
It is significant that employees were not issued written mem-
os advising them where they could and could not wear the
sticker. In the absence of a written memo, the oral instructions
delivered from Crutchfield to the managers, and then from the
managers to the employees, seem to have been lost in the
transmission at Newington and Westport. Accordingly, the
reliability of what was said by the managers to the employees,
and the fact that certain managers did not testify, combine to
contribute to a lack of confidence in the messages as they were
given by Crutchfield to the managers, and then from the man-
agers to the workers.
The Selective Nature of the Ban and Special Circumstances
Since the Respondent permitted the wearing of a variety of
pins, buttons, and other insignia in patient care areas before,
during and after the “Busted” sticker was banned, the Respond-
ent therefore did not ban all nonemployer insignia in immediate
patient care areas. Accordingly, its ban on certain union insig-
nia, the “Busted” sticker, is not presumptively valid. The Re-
spondent’s selective ban on only the “Busted” sticker deprives
it of the presumption of validity unless the Respondent can
show that the ban was put in place based on a showing of “spe-
cial circumstances”—that the selective ban was necessary to
avoid disruption of health care operations or disturbance of
patients.
The only reason presented for the banning of the stickers
which predated their removal was Crutchfield’s testimony. The
Respondent has the burden of proving that the ban was neces-
sary to avoid disruption of health-care operations or disturbance
of patients.
Crutchfield stated that she made the decision that the stickers
be removed in resident care areas out of concern for the resi-
dents, and in order to ensure that their care was not interrupted,
and that they did not have unnecessary concern regarding an
issue that might be confusing to them or lead them to believe
that the Respondent had committed some kind of crime due to
the judge’s gavel and the word “busted.” She was concerned
that the residents may believe that something the Respondent
had done may impact the care they received, thereby upsetting
them.
There was no evidence that Crutchfield’s determination that
residents could be upset or concerned by the sticker was based
on any complaint she received from residents or family mem-
bers, or any complaint she received from employees or supervi-
sors that the sticker was, in fact, upsetting to, or a cause of con-
cern for the residents. Thus, Crutchfield’s decision was based
only on her belief and conjecture that the sticker would have
that affect on patients and was therefore entirely speculative.
The Respondent offered the expert testimony of Dr. Warner-
Maron as proof that the ban on the sticker was necessary to
avoid disruption of health-care operations or disturbance of
patients. But Dr. Warner-Maron’s opinion was not informed by
speaking to any patients, family members or care givers. UCSF
Stanford Health Care, 335 NRB 488, 528–532 (2001). Nor
were complaints received from any source. Her theory was not
the basis for the banning of the stickers since she was only
consulted after the complaint had issued. UCSF Stanford.
Accordingly, her opinion as to the effect of the sticker on the
resident constituted “mere speculation, unsubstantiated surmise
and subjective belief.” UCSF Stanford.
It must be noted that the stickers were worn for part of one
day, from about 7 a.m. to about 1 p.m. on March 25. If the
stickers were disturbing to patients by implying that the Re-
spondent had been found guilty of unfair labor practices, the
Respondent lessened the impact of the sticker’s alleged impli-
cations on its residents by its March 28 letter to them which
explained that only a complaint had been issued by the Board,
and not any “ruling or finding by any judge.” The letter stated
that a decision by a judge would only be issued after a hearing
in July.
Further, countering the concern expressed by Dr. Warner-
Maron that residents would be disturbed if they believed that
the sticker implied that the center would be closed and they
would not receive care from their regular caregivers, the Re-
spondent only added to such disturbance by stating in its March
28 letter that the Union’s “long history of calling strikes” may
result in a strike in which their caregivers would be replaced.
In Sacred Heart Medical Center, 347 NLRB 531 (2006), rev.
Washington State Nurses Assn. v. NLRB, 526 F.3d 577, 583
(9th Cir. 2008),13 the Board found that the respondent had es-
tablished special circumstances permitting it to ban a button
that said ‘RNs demand Safe Staffing.’ The Board noted that
the message “is one that would inherently disturb patients. A
reasonable person would construe the ‘Safe Staffing’ button as
a claim that the Respondent’s staffing levels are unsafe. Such a

13 The court’s decision was accepted by the Board as the law of the
case in 353 NLRB 147 (2008).
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
claim is likely to cause unease and worry among patients and
their families, and disturb the tranquil hospital atmosphere that
is necessary for successful patient care.” The Board noted that
the message on the button “relates directly to issues of patient
care and hospital safety.” The Board also held that the “but-
ton’s demand that staffing be made safe sends a clear message
to patients that their care is currently in jeopardy.” The Board
noted thereafter in Saint John’s Health Center that in view of
the Ninth Circuit’s reversal of the Board’s decision, Sacred
Heart is of “questionable continued vitality.” 357 NLRB 2078,
at 2080 fn. 9.
In Saint John’s Health Center, above, the Board found that a
ribbon stating “Saint John’s RNs for Safe Patient Care” did not
establish special circumstances necessary to support a finding
that the ribbon must be banned to avoid disruption of health-
care operations or disturbance of patients. The respondent’s
justification of the ban on the ribbon was part of the union’s
campaign to show that patient care was not safe. The Board
found that the employer presented no evidence that patients
were aware of the union’s campaign, or that the ribbon was
likely to disturb patients or otherwise disrupt healthcare opera-
tions. Moreover, the employer issued an identical ribbon with
its own message.
In, UCSF Stanford Health Care, above, at 528–532, the
Board found that the employer’s no-solicitation/no-distribution
rule was overly broad on its face because the employer did not
demonstrate that the rule was necessary to avoid disruption of
health care operations or disturbance of patients with respect to
areas which were not immediate patient care areas. The Board,
adopting the judge’s discussion of the expert testimony pre-
sented in behalf of the respondent in that case, stated, as here,
the expert testimony was properly “experience based.”
In that case, the issue concerned whether patients were dis-
turbed by union solicitation and distribution engaged in by
employees among their coworkers. There, the experts’ theories
were not based on their first hand observations of solicitation
and distribution among the employees. The experts’ opinions
that conversations that did not deal with patient care could be
upsetting to patients “had no greater reliability than mere
speculation” and were “merely unsubstantiated surmise and
subjective belief.” There, as here, there were no complaints
from patients or families concerning the employee solicitation
and distribution. In that case, the Board noted that the respond-
ent “itself, on several occasions, permitted distribution of its
antiunion flyers in undisputed patient care areas where re-
spondent mentioned the potential for strike . . . and did not . . .
insure the distribution of this material was done in a manner
that it was not visible to patients and their families.” In contrast,
here, the Respondent’s rebuttal to the Union’s stickers was in
the form of letters addressed directly to the patients.
Further, the Board stated that the opinions of the experts
were “not the genesis or other impetus in the issuance of the
solicitation and distribution policy.” Similarly, Dr. Warner-
Maron’s opinion was not sought or obtained prior to the ban-
ning of the stickers. Finally, the Board stated that “the testimo-
ny of Respondent’s witnesses appears to be post hoc to the
formation and issuance of the rule, thus, this evidence did not
reliably establish the need for the rule since the reasons ad-
vanced by these witnesses were not shown to be predicate for
its formation.”
The Respondent, relying on cases decided before Saint
John’s, argues that it may show that “special circumstances”—
that the sticker disrupted patient care and disturbed patients—
existed regardless of whether the ban on wearing the stickers
was limited to immediate patient care areas. It also argues that
only those Centers which failed to limit the banning of stickers
to immediate patient care areas may be found to have violated
the Act by such banning.
I cannot agree. Saint John’s was very clear in its analysis.
First, the presumption of validity of a banning of the stickers
does not apply because the Respondent did not ban all nonoffi-
cial insignia in immediate patient care areas. It may selectively
ban certain union insignia only if it can show that special cir-
cumstances where the restriction is necessary to avoid disrup-
tion of operations or disturbance of patients.
Here, I have found that the Respondent has not established
that special circumstances permitted it to ban the “Busted”
sticker in immediate patient care areas. Under Board precedent
even before Saint John’s, a ban would not be permitted outside
immediate patient care areas in any event.
Conclusions as to the “Busted” Stickers
I have found, above, that the Respondent unlawfully banned
the “Busted” stickers in immediate patient care areas at Dan-
bury Health Care Center, Long Ridge of Stamford, West River
Health Care Center, and Wethersfield Health Care Center.
I have also found that the Respondent unlawfully banned the
“Busted” stickers in all areas at the Health Care Centers in
Newington, and Westport while permitting employees to wear
other stickers, buttons or insignia at those Health Care Centers.
The Cessation of Dues Deductions and Dues Remissions
to the Union
The General Counsel argues that by unilaterally ceasing
making deductions of union dues and fees from employees’
wages, and ceasing remitting to the Union the dues and fees
which were provided for in those expired contracts on March
24, 2011, the first dues-deduction date following the expiration
of the contracts, the Respondent violated Section 8(a)(1) and
(5) of the Act. The Respondent admits taking the actions set
forth above and doing so without notice to or bargaining with
the Union, but denies that it violated the Act in doing so.
In NLRB v. Katz, 369 U.S. 736, 743 (1962), the Supreme
Court held that a unilateral change in a term or condition of
employment without bargaining violates the Act. Accordingly,
an employer’s unilateral cessation of the dues-checkoff provi-
sion should violate the Act as a unilateral change. However, in
Bethlehem Steel Co., 136 NLRB 1500, 1502 (1962), although
the Board stated that union security and check off are matters
related to wages, hours, and other terms and conditions of em-
ployment within the meaning of Section 8(d) of the Act, and
are mandatory subjects of bargaining about which the employer
must bargain with the Union, the Board held that certain terms
of a contact, including union dues deduction agreements, may
be terminated after the expiration of the contract.
The Board in Bethlehem reasoned that the checkoff provi-
sions in the collective-bargaining agreement “implemented the
HEALTHBRIDGE MGMT. 953
union security provisions. The Union’s right to such check offs
in its favor, like its right to the imposition of union security,
was created by the contracts and became a contractual right
which continued to exist so long as the contracts remained in
force. . . . Consequently, when the contacts terminated, the
respondent was free of its checkoff obligations to the union.”
The General Counsel concedes that Bethlehem represents the
current law on this issue, but argues that that case should be
overruled. The Board may do so, but I cannot. “It is a judge’s
duty to apply established Board precedent which the Supreme
Court has not reversed.” Waco, Inc., 273 NLRB 746, 749 fn.
14 (1984), citing Iowa Beef Packers, 144 NLRB 615, 616
(1963); Pathmark Stores, 342 NLRB 378 fn. 1 (2004).
In Hacienda Resort Hotel & Casino (Hacienda I), 331
NLRB 665, 666 (2000), the Board, citing numerous Board and
court cases, emphasized that it is a “well-established precedent
that an employer’s obligation to continue a dues-checkoff ar-
rangement expires with the contract that created the obliga-
tion.” The Board noted that, although certain mandatory sub-
jects of bargaining cannot be changed unilaterally upon the
expiration of a contract, some, including union shop and dues
checkoff, “have historically been treated as exceptions to this
general rule.”
The union appealed that decision to the Ninth Circuit Court
of Appeals which remanded the case to the Board with instruc-
tions to “articulate a reasoned explanation for the rule it adopt-
ed, or adopt a different rule and present a reasoned explanation
to support it.” Local Joint Executive Board of Las Vegas, Culi-
nary Workers Local 226 v. NLRB, 309 F.3d 578, 586 (9th Cir.
2002). On remand, the Board again found that the dues-
checkoff provisions ended upon the expiration of the contract,
but this time relied on the language in the checkoff provisions
which specifically limited the dues-checkoff obligation to the
term of the collective-bargaining agreement. Hacienda II, 351
NLRB 504 (2007).
The union again appealed, and the Ninth Circuit again asked
the Board to articulate a reasoned explanation for its ruling in
Hacienda I or adopt a different rule and present a reasoned
explanation to support it. 540 F.3d 1072 (9th Cir. 2008). The
court posed the question: “Whether dues checkoff is a mandato-
ry subject of bargaining.” The Board’s decision on remand
stated that its four members had reached opposing views, set
forth in two separate concurring opinions, and that, according-
ly, had decided to follow existing precedent, and dismissed the
complaint. It should be noted that Chairman Liebman and
Member Pearce expressed “substantial doubts about the validity
of Bethlehem.” Hacienda III, 355 NLRB 742, 742 (2010). In
again considering the union’s appeal, the Ninth Circuit stated
that a third remand to the Board would be inappropriate, but
decided that the employer violated the Act by unilaterally ceas-
ing dues checkoff before bargaining to impasse on the issue.
The court remanded the matter to the Board to determine what
relief was appropriate in light of its opinion.
The General Counsel, consistent with the dissenting opinion
in Hacienda I, argues that no “principled rationale . . . or statu-
tory basis . . . exists for excluding checkoff from the unilateral
change rule” that following the expiration of a contract, an
employer is obliged to maintain the status quo regarding em-
ployees’ terms and conditions of employment until the parties
agree on changes or bargain to impasse.
It is important to note that the General Counsel’s arguments
regarding Hacienda must be considered in relation to the fact
that those cases were decided in a “right-to-work” State where
union-security clauses conditioning employment upon member-
ship in a union are prohibited, and therefore, dues checkoff
could not lawfully be linked with union security arrangements
in those states. Indeed, the Ninth Circuit did not express its
opinion of the validity of Bethlehem in a nonright-to workstate.
657 F.3d 865 (9th Cir. 2011). In the instant case, Connecticut
is not a right-to-work State, and therefore, the union security
clause here may be considered, consistent with Bethlehem, to
have been properly linked with the dues-checkoff provisions.
Counsel for the General Counsel further cites a variety of
reasons why Bethlehem should be overruled. I need not discuss
them here. Inasmuch as the Board’s most recent decision on
the issue, Hacienda III, in the absence of a three-member ma-
jority to overrule it, essentially reaffirmed Bethlehem, that case
remains the outstanding current Board law on the subject.
I accordingly find and conclude that the Respondent’s uni-
lateral cessation of dues check off and fees from employees’
wages on March 24, 2011, and its failure to remit any such
sums which were due following the expiration of the collective-
bargaining agreements between the Health Centers and the
Union on March 16, 2011, did not violate Section 8(a)(5) and
(1) of the Act.
CONCLUSIONS OF LAW
1. Since on about March 25, 2011, the Respondent removed
the “Busted” flyers from the union bulletin boards at Danbury
Health Care Center, Long Ridge of Stamford, Newington
Health Care Center, Westport Health Care Centre, West River
Health Care Center, and Wethersfield Health Care Center in
violation of Section 8(a)(1) of the Act.
2. Since on about March 25, 2011, the Respondent prohibit-
ed its employees from wearing the “Busted” stickers in imme-
diate patient care areas at its Health Care Centers at Danbury
Health Care Center, Long Ridge of Stamford, West River
Health Care Center, and Wethersfield Health Care Center in
violation of Section 8(a)(1) of the Act.
3. Since on or about March 25, 2011, the Respondent pro-
hibited its employees from wearing the “Busted” stickers in all
areas at its Health Care Centers in Newington and Westport
while permitting its employees to wear other stickers, buttons
or insignia at those Health Care Centers.
4. By ceasing deducting union dues and fees from its em-
ployees’ wages, and by ceasing remitting to the Union those
dues and fees required in its expired collective-bargaining
agreements with the Union, the Respondent did not violate
Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended order omitted from publication.]