Heartland Health Care Center

National Labor Relations Board - Administrative Judge Opinions

Dec 22, 2008

07-CA-051011 (N.L.R.B. Dec. 22, 2008)

JD-66-08
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
HEARTLAND - UNIVERSITY OF
LIVONIA, MI, LLC, d/b/a HEARTLAND
HEALTH CARE CENTER - UNIVERSITY
and Case 7-CA-51011
SEIU HEALTHCARE MICHIGAN
Richard F. Czubaj, Esq.
for the General Counsel.
Clifford H. Nelson, Jr., Esq.
and Charles P. Roberts, III, Esq.
(Constangy, Brooks & Smith, LLC),
Atlanta, Georgia,
for the Respondent.
Christopher R. Mikula, Esq.
Detroit, Michigan,
for the Charging Party.
DECISION
Statement of the Case
PAUL BOGAS, Administrative Law Judge. This case was tried in Detroit, Michigan, on
June 24 and 25, 2008. SEIU Healthcare Michigan (the Union) filed the charge on January 24,
2008, and the amended charge on February 28, 2008. The Director of Region 7 of the National
Labor Relations Board (the Board) issued the complaint on April 30, 2008. The Respondent,
Heartland - University of Livonia, MI, LLC, d/b/a Heartland Health Care Center - University
(Respondent or Heartland) withdrew recognition from the Union based on an employee petition
that it contends shows that the Union was no longer supported by a majority of unit employees.
The complaint alleges that the Respondent violated Section 8(a)(5) and (1) both by withdrawing
recognition and by subsequently making unilateral changes to the wage rates of employees in
the bargaining unit. The complaint also alleges that the Respondent committed multiple
violations of Section 8(a)(1), including some that, if proven, would establish that the employee
petition was tainted by improper assistance from the Respondent. The complaint further alleges
that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to supply
information that the Union requested and which was relevant to bargaining. The Respondent
filed a timely answer in which it denied committing any of the violations alleged.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following findings of fact and conclusions of law.
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Findings of Fact
I. Jurisdiction
The Respondent, a corporation, operates a nursing home in Livonia, Michigan, where it
annually derives gross revenues exceeding $100,000 and purchases and receives goods and
materials valued in excess of $50,000 directly from points outside the State of Michigan. The
Respondent admits, and I find, that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and a health care institution within the meaning of
Section 2(14) of the Act. In addition, the Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background Facts
The Respondent operates a nursing home in Livonia Michigan. It is a subsidiary of
Manor Care, Inc., which provides business support to the Respondent and other subsidiaries
through an operating arm known as HCR Manor Care (HCR). Not later than 1988, the Union
became the exclusive collective bargaining representative of employees at the Respondent’s
facility in Livonia. Included among the nearly 80 employees in the bargaining unit are nurse
aides, dietary employees, and housekeepers.1 The most recent collective bargaining
agreement between the Respondent and the Union expired on April 30, 2007, and bargaining
sessions in 2007 and 2008 failed to produce a successor agreement. On January 17, 2008, the
Respondent withdrew recognition from the Union as the exclusive collective bargaining
representative of unit employees. In his letter communicating the withdrawal of recognition, the
Respondent’s administrator – Glen Lowery2 -- stated that the Respondent was “in receipt of
objective evidence showing that your union is no longer supported by a majority of employees in
the bargaining unit at our facility.”
The evidence the Respondent relies on to support its contention that the Union had lost
majority support consists of two petitions signed by employees. The petitions state that the
undersigned employees no longer wish to be “apart (sic) of the SEIU.” Shari Parks, a part-time
dietary aide, wrote out the petition language and circulated both of the petitions. The signatures
on the first petition are dated from November 2 to December 2, 2007, and the signatures on the
other are dated from January 14 to 17, 2008. Parks submitted the earlier petition to the Board
in December 2008, for purposes of initiating an election to decertify the Union. She gave the
second petition to the Respondent, rather than to the Board. She did this in the afternoon on
January 17, 2008. The Respondent withdrew recognition later on January 17 – within a few
hours of receiving the second petition.

1 The unit is defined as:
All full-time and regular part-time nurse aides, dietary, maintenance, and
housekeeping employees employed by Heartland - University of Livonia, MI, LLC, d/b/a
Heartland Health Care Center - University at its facility located at 28550 Five Mile Road,
Livonia, Michigan; but excluding office clerical employees, and guards and supervisors
as defined by the Act.
2 The Respondent admits that Lowery was at all relevant times a supervisor of the
Respondent within the meaning of Section 2(11) of the Act and an agent of the Respondent
within the meaning of Section 2(13) of the Act.
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Neither of the petitions is signed by a majority of unit employees, but taken together the
two petitions contain the signatures of a slim majority of such employees. There are 39 valid
signatures on the two petitions from among the 77 employees recognized by the parties as
eligible unit members. At the start of trial, the General Counsel contested whether one of those
signatures – that of Raymond Badejo – was authentic. Indeed, the version of Badejo’s
signature on the petition does not resemble those versions that are found on personnel
documents completed by Badejo. Nevertheless, Badejo testified, without contradiction, that the
challenged signature was his. In its brief, the General Counsel does not explicitly concede that
Badejo’s signature is authentic, or that a majority of eligible employees signed the petitions, but
makes no argument to the contrary. Given Badejo’s testimony, I find that Badejo’s signature
was authentic and that a majority of eligible employees signed the petitions.3
B. The Decertification Petition
1. Credibility Determination Regarding Parks
A number of the issues in this case turn on whether the Respondent lent improper
assistance to the circulation and filing of the decertification petition. My factual findings
regarding that question depend, in part, on the extent to which I credit Parks’ testimony. After
carefully reviewing Parks’ testimony, and the record as a whole, I conclude that Parks was not a
credible witness. Her testimony was laden with numerous, significant, inconsistencies4 and

3 The parties agree that another individual, Yolanda Williams, also signed the petition. The
General Counsel recognizes the authenticity of Williams’ signature, but argues that Williams
was no longer an employee at the time the Respondent withdrew recognition on January 17,
2008. The Respondent contends that, on January 17, Williams was still an employee, although
she was on leave and not on the payroll. If Williams’ signature is counted, there would be a
total of 40 valid signatures from among 78 employees -- again a slim majority. The Respondent
and the General Counsel agree that the dispute over Williams’ status as an employee is
rendered immaterial by my conclusion that Badejo’s signature is valid. Transcript (Tr.) 108.
4 For example, compare: Tr. 131-32 (had no assistance, just used common sense to draft the
decertification petition) with Tr. 137 (before drafting the petition obtained advice about petition
process); Tr. 134 (when she started the petition “she didn’t even know anything about the
SEIU”) with Tr. 135-36 and Joint Exhibit (J Exh.) 1 (petition specifically references SEIU); Tr.
134 (she was concerned that the Respondent would fire her for circulating the petition, and
therefore she did not have conversation with human resources director Teresa Stephens about
the petition) with Tr. 90-91 (she went to Stephens for help when the Board subpoenaed her
about the petition); Tr. 141 lines 5-7 (denies that she reviewed any documents prior to
testifying) with Tr. 141 line 9 (admits that she reviewed her affidavit the day before testifying);
Tr. 141 lines 10-12 (denies that she spoke with anyone about her testimony) with Tr. 141 lines
13-14 (when pressed, she admits that she spoke with Respondent’s attorney about her
testimony); Tr. 141 (states that she did not share her affidavit with her attorney) with Tr. 142
(states that she did share her affidavit with her attorney and denies that she had previously
testified otherwise); Tr. 143 (a “friend” of the last three petition signers gave her the addresses
of those individuals) with 146-47 (the last three petition signers themselves gave her their
addresses); Tr. 146 lines 13-15 (she did not make phone calls to the last three petition signers)
with Tr. 146 lines 21-24 (she made phone calls to the last three petition signers); Tr. 148 (she
obtained the later signatures from employees who were “still coming up to me, asking can they
sign my petition”) with Tr. 146-47 (she contacted the last three petition signers by phone, found
out their addresses, and drove to their homes to secure their signatures); Tr. 151 lines 5-15
Continued
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implausibilities.5 In significant respects her account was contradicted by other employees, and
not corroborated by the company officials -- such as Teresa Stephens (human resources
director) and Cindy Lord (housekeeping supervisor)6 – who were in a position to confirm Parks’
testimony regarding disputed matters. When counsel for the General Counsel and the Union
questioned Parks about her account, she too frequently reacted by becoming evasive, 7
defensive, or petulant.8 I also observed that when asked about significant matters, Parks had a
disconcerting tendency to answer while looking at the ceiling. All in all, I find that Parks was a
fundamentally unreliable witness.
2. Parks and Scott
Beverly Scott is an employee in the housekeeping department at the Livonia facility.
She had been employed by the Respondent for 14 months at the time of trial. Scott never wore
_________________________
(the day before testifying, she requested copies of the petition documents from the Board
because she had lost all her documents as a result of damage in her basement) and Tr. 151
lines 1-4, 16 (she has kept copies of all petition documents and retrieved her own when the
Board declined to provide the documents).
5 For example, the Respondent stipulated that it paid the private attorney to whom its human
resources director referred Parks. Tr. 17-18. However, Parks testified at trial that she had no
idea the Respondent had paid the fees for the private attorney, and claimed that she still
expected to pay those fees herself. Tr. 90-92, 95-96. That testimony was highly implausible
given Park’s admissions that the private attorney had not discussed the costs of his services
with her, that she had not discussed payment with him, and that she had not inquired even
when, 5 months after the attorney began representing her, she had not received a bill for his
legal services. Id. This behavior by Parks was incompatible with her claim that she believed
herself to be responsible for paying the private attorney.
6 The Respondent admits that, at all relevant times, both Stephens and Lord have been
supervisors and agents of the Respondent.
7 For example, she responded in an evasive and difficult manner when questioned by the
General Counsel about her claim that she had obtained the signatures of the last three petition
signers by personally going to their homes. Tr. 143-44. Counsel for the General Counsel asked
Parks if she knew where those individuals lived and she responded, “yes I know,” but that she
would not reveal the information because “I’m not required to give you where they live.” Tr. 143.
When pressed to state where the people she purportedly visited lived, she stated “I don't think
it matters . . . where they stay at.” Id. When Counsel for the General Counsel informed
Parks that he already had the addresses of the employees and asked again if Parks would
state where they lived, she responded “I'm not in the right to tell you where someone
else's stay at.” Id. At that point, I directed Parks to answer the General Counsel’s
question. In response, Parks admitted that she did not even know where the employees
lived, Tr.143-44, not, as she had previously claimed, that she knew but was withholding
the information as a matter of principle.
Another example of Parks’ evasiveness occurred when she was questioned about an
allegation that she threatened an employee with termination. Rather than respond directly
she answered that she did not have the “authority” to tell anyone that they were going to
be terminated. Tr. 133. When subsequently asked “Even if you don’t have the authority,
did you say that to her,” Parks responded: “No. She’s like so much bigger than me. I
cannot tell her that she’s going to get fired or terminated.” Id.
8 For example, when asked whether she had received a bill from the Respondent-provided
private attorney who represented her regarding the Board’s subpoena, she responded, “No, and
I also didn’t receive the bill from the Labor Board either.” Tr. 96.
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union buttons or shirts to work, and was not a union steward. On January 16, Scott was
working when her supervisor – Cindy Lord -- made an announcement over the facility’s public
address system directing Scott to come to Lord’s office. Scott reported to Lord’s office, and
found Lord waiting outside. Lord told Scott that “somebody in my office wants to see you.”
Scott testified that when she entered Lord’s office, Parks was the one waiting for her there.
According to Scott, Parks stated that Scott already knew what was “going on” and made some
general comments about the Respondent and the Union. Scott testified that she told Parks,
“before you start or say anything to me, I’m with the Union 100 percent.” Then, Scott says,
Parks told her, “don’t tell nobody about this conversation because if you do your job will be
terminated.” During the time that she met with Parks, Scott could see Lord walking back and
forth outside the office doorway. During the next day or two, Scott discussed this incident with
two other employees. Subsequently, 2 days after the incident, Scott met with Stephens to tell
her about Parks’ and Lords’ conduct. Stephens took notes while Scott described what had
happened. Stephens told Scott that another employee could not threaten her job. At the end of
the meeting, Stephens said that she would “get back” to Scott about the matter, but Stephens
never did so.
Parks denied that she ever had a conversation with Scott in Lord’s office. However, I
credit Scott’s account regarding that meeting. As discussed above, Parks was a particularly
unreliable witness. Moreover, I found Scott credible based on her demeanor and testimony,
and the record as a whole. Scott responded directly and clearly to questions. The examination
of her did not elicit a particularly detailed account, but also did not reveal significant
contradictions or other problems. In addition, the fact that Scott approached Stephens to
discuss the meeting with Parks lends credence to her testimony that the meeting took place.
Neither Stephens nor Lords – both of whom are officials of the Respondent – testified to
contradict Scott or corroborate Parks, even though both would be expected to have relevant
knowledge.9 Scott was a current employee, still supervised by Lord, at the time of trial.10

9 Counsel for the General Counsel asks that I draw an adverse inference from the
Respondent’s failure to present the testimony of Stephens and Lord, and I conclude that such
an inference is appropriate. Stephens and Lord are officials of the Respondent and, according
to Scott, were witnesses to material elements of her account. If Scott fabricated those
elements, I would have expected Stephens and Lord to testify to contradict Scott. The
Respondent did not claim that either official was unavailable or otherwise explain the failure to
call them as witnesses. The Board has held that “when a party fails to call a witness who may
reasonably be assumed to be favorably disposed to the party, an adverse inference may be
drawn regarding any factual question on which the witness is likely to have knowledge.
International Automated Machines, 285 NLRB 1122, 1122-23 (1987), enfd. 861 F.2d 720 (6th
Cir. 1988) (Table); see also Electrical Workers IBEW Local 3 (Teknion, Inc.), 329 NLRB 337,
337 fn. 1 (1999). I conclude that it is appropriate to draw an adverse inference from the
Respondent’s failure to call Stephens and Lord to testify regarding disputed matters about which
they would be expected to have knowledge.
10 My credibility determination regarding Scott is made independently of the fact that she is a
current employee, but I nevertheless note that crediting her is consistent with the Board's view
that the testimony of a current employee that is adverse to her employer is “given at
considerable risk of economic reprisal, including loss of employment … and for this reason not
likely to be false.” Shop-Rite Supermarket, 231 NLRB 500, 505 fn. 22 (1977); see also Jewish
Home for the Elderly of Fairfield County, 343 NLRB 1069, 1069 fn. 2 (2004), enfd. 174 Fed.
Appx. 631 (2d Cir. 2006) and Flexsteel Industries, 316 NLRB 745 (1995), enfd. 83 F.3d 419 (5th
Cir. 1996) (Table).
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3. Lowery, Parks and Brazil
William Brazil is a housekeeping employee who had been working at the Livonia facility
for approximately a year at the time of trial. Like Scott, he was supervised by Lord. In early
January 2008, Lord told Brazil to report to the front office. Brazil did so. There he met with
Parks, a woman he did not know by name,11 in the office of the director of nursing. During this
meeting, Parks discussed the Union with Brazil. Then Parks directed Brazil to the office of Glen
Lowery – the Respondent’s administrator. Lowery asked Brazil how he felt about the Union.
Brazil did not want to express an opinion, and told Lowery that he “was not for the Union, and
was not against the Union.” Lowery then told Brazil that he needed about two more signatures
to “get the Union out.” Lowery complained that he was “tired of the Union,” and said that if
Brazil helped him oust the Union, he would “have more control within the company.” On at least
two subsequent occasions, Lord directed Brazil to meet with Lowery. Lowery asked Brazil if he
had “c[o]me to a decision . . . as far as voting the Union out or keeping it in.” Brazil responded
that he had not. Lowery said “that’s okay.” Then, Brazil again met with Parks in the office of
the director of nursing. On this occasion, Parks told Brazil that “they didn’t need his vote”
because they had “enough signatures to vote the Union out.”12

11 Brazil did not know the name of the woman he met with, but described her as young,
and said that she was present at the trial and was the individual he saw circulating the petition
to employees. That meets the description of Parks, who was 23 years old, present at the trial,
and the only person shown to have actually circulated the petition. Indeed, Parks repeatedly
referred to it as “my” petition, and also testified that she took steps to keep the petition from
falling into the hands of others. Based on this, I infer that Parks was the young woman with
whom Brazil met.
12 I base this account on the testimony of Brazil, which I credit over the contrary testimony of
Parks and Lowery. I found Brazil to be a credible witness based on his demeanor and
testimony. He testified in a direct manner and volunteered some information that was favorable
to the Respondent. For example, he volunteered that when he declined to sign the petition,
Lowery simply said “that’s okay,” rather than expressing displeasure or making a threat. Tr. 76.
I also was impressed by Brazil’s candor in the face of leading questions posed by counsel for
the General Counsel. In one example, Brazil continued to state that he did not know the name
of the woman he met with in the director of nurse’s office even after Counsel for the General
Counsel suggested Parks’ name to him. Tr. 73 lines 14-15 and Tr. 74 lines 7-9. Although
Brazil’s testimony was in certain respects a bit vague, it was also free of meaningful
inconsistencies and other problems. The Respondent did not demonstrate any basis for
believing that Brazil harbored a pro-union, or anti-Respondent, bias. As a current employee, he
had nothing apparent to gain, and potentially much to lose, by impugning the activities of his
employer. See, supra, footnote 10.
As discussed above, I did not find Parks a credible witness, and do not credit her denials
with respect to Brazil. Lowery, on the other hand, was a fairly credible witness. Although he
had a number of memory lapses, he confidently denied meeting with Brazil about the Union. In
addition, Lowery left the Respondent for another employer prior to testifying and therefore would
arguably have less to lose by admitting to unlawful conduct at the Livonia facility. Nevertheless,
I find that Lowery’s testimony is outweighed by that of Brazil who I considered a particularly
reliable witness for the reasons discussed above. My finding is further supported by the
adverse inference stemming from the Respondent’s failure to call Lord to contradict Brazil’s
testimony that Lord had directed him to Lowery’s office for the alleged unlawful meetings. See,
supra, footnote 9.
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4. Grove and Chowen Meet With Employees about Pay Raise
On January 23, 2008 – after withdrawing recognition from the Union – the Respondent
granted employees a 50-cent per hour wage increase, of which 32 cents was made retroactive
to the expiration of the most recent collective bargaining agreement. Subsequently, on April 30,
2008, the Respondent granted employees an additional 50-cent per hour increase.
On January 23, the Respondent held four or five meetings about the wage increases
with groups of employees. These meetings were conducted by the Respondent’s regional
human resources director – Brenda Grove – and its regional director of operations – Steve
Chowen. No other management official attended the meetings. The record shows that Grove
and/or Chowen discussed what would happen regarding the wage increases if the Union
succeeded in returning as the employees’ bargaining representative. However, there was
conflicting testimony about exactly what they said on that subject. Valerie Nash, who has
worked for the Respondent for 4 years as a certified nursing assistant, testified that the
Respondent’s officials told employees “if the Union were to come back, that everything would be
off the table.” According to Nash, she asked Grove and Nash to “put it in writing,” and they
declined, stating that “putting it in [employees’] check was in writing enough.” Another
employee, Mary Broadnax, also testified about one of the January 23 meetings. Broadnax has
worked for the Respondent as a nurse’s aide for approximately 20 years. She testified that
Groves and Chowen stated that “if the Union came back, that all the rates would be taken
away.”
Grove testified for the Respondent and contradicted the testimony of Nash and
Broadnax. She denied that either she or Chowen had said that employees would automatically
lose the wage increases if the Union were restored as the collective bargaining representative.
According to her: “We said nobody could tell, nobody knew what would happen. It could go up,
it could go down, it could stay the same, but that no one really knew what would happen.”
Grove was unsure whether it was herself or Chowen who addressed the question of what would
happen to the wage increases in the event that the Union came back into the facility. Chowen
was not called to testify. The record also contains a “script” that Grove testified Chowen and
herself used during the January 23 meetings. According to Grove, they read some portions of
the script to employees and used other portions as a “reference” for their remarks. The script
sets forth the wage increases, and then notes: “If the Union gets back in hear (sic) we will have
to go back and bargain again. What is negotiated may or may not be what we have outlined.”
Respondent’s Exhibit (R Exh.) 9.
I find that the record does not establish that Grove or Chowen told employees that the
wage increases would be “off the table” or “taken away” if the Union was restored as bargaining
representative. I did not consider Nash and Broadnax to be credible witnesses based on their
demeanor and testimony. Nash became very quiet during cross examination and squirmed
uncomfortably in her seat. Moreover, her testimony that Grove and/or Chowen threatened to
take the raise “off the table” is undercut by the affidavit she provided to the Board, in which she
made no mention of such a threat. Nash is a union steward who participated in all the
bargaining sessions for a new contract, and I believe that affiliation influenced her recollection.
I also conclude that Broadnax’s testimony was not reliable. She testified while looking
down at her meeting notes, and appeared to be reporting what was written there, rather than
testifying spontaneously from memory. Moreover, the one line in Broadnax’s meeting notes that
refers to a threat about wages is written in blue ink, unlike the rest of those notes, which is
written in black ink. When this was pointed out, Broadnax admitted that reference to the
supposed threat was not added until after the meeting. More troubling, when Broadnax was
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pressed to explain why she did not initially record the threat, her account began to shift. At first
she had testified that the threat was made during the meeting, but then, in an attempt to explain
why the notation about the threat was added later, Broadnax claimed that the Respondent made
the threat after the meeting when she asked what would happen if the Union came back in.
This testimonial contortion only creates further confusion since the portion of Broadnax’s notes
that refers to the Union’s return is written in black ink, not the blue ink that Broadnax said she
used subsequent to the meeting. I also note that while Broadnax was not a union officer at the
time of the trial, she had been a union steward and bargaining committee member at the facility
8 years earlier.
I also did not find the Respondent’s witness, Grove, a fully credible witness based on her
demeanor and testimony. She was a human resources official for the Respondent, and I
believe she permitted that to influence her account. I found it suspicious that, while she could
not remember whether it was Chowen or herself who addressed the subject of the Union’s
possible return, she was somehow able to precisely recount the wording that was purportedly
used to discuss that subject. In addition, her testimony about what was said is at variance with
the version set forth in the written script for the meeting.
All in all, I find that the record leaves me without a basis for determining which, if any, of
the versions in the record accurately reflects what Grove and/or Chowen said would happen to
the wage raises if the Union returned.
5. Respondent Pays for Parks’
Legal Representation
In December 2007 or January 2008, Parks received a subpoena from the Board relating
to the decertification petition she had filed. Parks went to the human resources department and
discussed the subpoena with Stephens. She told Stephens that she wanted to have an attorney
with her when she visited the Board in response to the subpoena. Stephens subsequently
called Parks with the names and contact information for two or three attorneys who she
indicated could represent Parks regarding the decertification petition. Parks spoke with one of
those attorneys – Gary Ellor – and chose him to represent with respect to the Board’s
subpoena. Ellor met with Parks, and also accompanied her when she visited the Board and
gave an affidavit. Parks gave a copy of the subpoena to Ellor. Parks testified that Ellor still
provides representation to her, but that she did not ask him to represent her in the proceeding
before me.
The parties have stipulated that the Respondent paid all of Ellor’s legal fees for
representing Parks. There is absolutely no dispute about that fact. Nevertheless, Parks
testified that she was personally responsible for paying Ellor, but had not done so yet. I reject
the notion that Parks was ever responsible for paying Ellor, or that Parks believed paying him
was her responsibility. Parks conceded that Ellor never discussed his fees with her, that she
and Ellor never discussed how she would pay him, that she had not received any bills from
Ellor, and that, as of the time of trial (5 months after Ellor accompanied her to the Board), she
had still not paid Ellor anything, or inquired about paying Ellor anything. That behavior is
incompatible with Parks’ assertion that she was planning to pay Ellor herself. Moreover, as
discussed above, I found Parks a generally unreliable witness. I conclude that Parks was aware
from the outset that the attorney who represented her in the Board proceeding regarding the
decertification petition would be paid by the Respondent. See NLRB v. Walton Mfg., 369 U.S.
404, 408 (1962) (“the demeanor of a witness . . . may satisfy the tribunal, not only that the
witness’ testimony is not true, but that the truth is the opposite of his story”). I base this not
only on Parks’ demeanor and implausible testimony, but also on the Respondent’s failure to call
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Stephens to testify about what she communicated to Parks regarding representation by Ellor.
See, supra, footnote 9.
C. Lyon’s Distribution of Union Literature
At the time of trial, Devera Lyons had been employed by the Respondent for 9 years and
was a cook at the Livonia facility. She had been a Union steward for approximately 2 years.
On December 27, 2007 – a day she was not scheduled to work -- Lyons came to the Livonia
facility in order to complete paperwork relating to her enrollment in an insurance plan. Lyons
was in the breakroom when a co-worker gave her two Union flyers. Lyons, in turn, gave one of
those flyers to another employee. Subsequently, Stephens made an announcement over the
facility’s public address system, directing Lyons to come to her office. Lyons went to Stephens’
office where she found Stephens and Laura Rudorffer (the director of nursing) waiting for her.
One or both of these officials asked Lyons if she had been passing out flyers. Lyons answered,
“yeah.” Either Stephens or Rudorffer told Lyons, “well, we don’t know for sure if you’re
supposed to pass out flyers.” Lyons asked whether it was going to be “an issue,” and the
officials answered “we don’t know yet; we're going to call corporate to see.” Stephens told
Lyons that she was going to contact the Respondent’s corporate offices to find out
whether it was permissible for Lyons to pass out flyers. Stephens never discussed the
issue with Lyons again.13
D. Union’s Information Request
In 2007 and 2008 the Respondent and the Union met to bargain for a successor to
the collective bargaining agreement that expired on April 30, 2007. One of the issues
dividing the parties involved the Respondent’s proposal to eliminate certain health plan
options that had been available under the prior contract. At a bargaining session on
December 18, 2008, the Union made a written request to the Respondent for the following

13 This account is based on Lyons’ testimony on the subject, which I credit because it was
uncontradicted and facially plausible. Lyons also testified that she had a conversation with
Parks during which Parks stated that Stephens was the one who wrote out the decertification
petition and that Steve Chowen (a management official) and Lowery were “in with it.” Tr. 79-80.
Counsel for the General Counsel discusses this testimony in its brief. Brief of Counsel for the
General Counsel at Page 8. Parks testified that she had never made such statements to
Lyons, or even discussed the petition with her. Tr. 132. It is not necessary for me to resolve
the factual dispute regarding that meeting since the complaint does not allege a violation based
on it, or based on improper employer assistance drafting the petition language. At any rate, I
find that the record does not establish that Parks actually made the statements that Lyons
reported about involvement by Stephens, Chowen, and Lowery. As stated above, Parks was
not a credible witness, but I also found Lyons less than credible regarding disputed matters.
Based on her demeanor and testimony, I conclude that Lyon’s account was influenced by her
support for the Union. At times she palpably strained to cast her testimony in a manner
favorable to the General Counsel’s case. See, e.g., Tr. 81 (when testifying about what was
said in Stephens’ office, Lyon’s inserts her unsolicited opinion that it “was like a threat”). There
were also significant discrepancies between Lyons’ testimony and the account that she gave in
an affidavit prepared shortly after the incident. See Tr. 83-85. Moreover, I consider it somewhat
implausible that Parks would share information about management’s involvement in the
decertification process with an employee who was, like Lyons, a union steward.
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information:
1. Contribution amounts spent by Employer on bargaining unit healthcare, itemized
yearly for the years 2005, 2006 and 2007.
2. Contribution amounts spent by Employer on employee healthcare, itemized
yearly for the years 2005, 2006, 2007.
3. Contribution amounts spent by employer on bargaining unit healthcare, itemized
yearly for the years 2005, 2006 and 2007, expressed as a percentage of each
yearly operating budget.
4. Same as #3 but in regard to amounts spent by Employer on Employee
healthcare as a whole.
At the December 18 bargaining session, Respondent stated that some of the information
requested by the Union had been provided in the past and that information regarding its
expenses and budget was available from the State of Michigan. In a January 16, 2008,
letter, the Union’s attorney, Christopher Mikula, told the Respondent that the information
requested on December 18 had not been provided. Mikula reiterated the request for that
information, and stated that it should be provided “[i]n order that the parties may have a
productive negotiating session.”14
In a letter dated January 17, 2008, the Respondent took the position that it was not
required to provide the Union with information regarding employees outside the bargaining
unit or with data that it did not normally maintain. The letter did provide the Union with
information on the health insurance costs for unit employees. That information was set
forth by the Respondent as follows:
Union Employee Cost
(Employee portion of
premium equivalents paid
thru payroll deduction)
Company Cost for Union
Employee Coverage
(company portion of
premium equivalents)
Total Cost for Union
Employee Coverage
(total premium
equivalents)
2005 $59,177 $229,859 $289,036
2006 $63,891 $238,575 $302,466
2007 $55,942 $207,693 $263,634
The Respondent also stated: “Remember as we advised you during bargaining, the
Company pays the same percentage contribution to healthcare coverage for non-union
employees as it pays for union employees.”
Mikula testified regarding the information requests. He conceded that the Respondent
provided the information regarding bargaining unit employees that was sought by item number 3
of the request, but stated that the Respondent had failed to provide the information on nonunit
employees that was sought in item number 4. Counsel for the Respondent asked Mikula to
explain why the Union needed information regarding the total dollar amount spent by the
Respondent on nonunit employees’ health care given that: the Respondent had already
provided information showing the total cost of the healthcare plan for unit employees, and how

14 The January 16 letter made some non-substantive changes to the wording of requests.
For example, the fourth item was restated as follows: “4. Contribution amounts spent by
Employer on employee healthcare, itemized yearly for the years 2005, 2006 and 2007,
expressed as a percentage of each yearly operating budget.
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those costs were apportioned between the employees and the Respondent: the Respondent
had already informed the Union that it paid the same proportion of the costs of healthcare for
nonunit employees as for unit employees; and, the Respondent offered the same health plans
to the unit employees as to the nonunit employees. Mikula answered that the Union needed the
information on non-bargaining unit employees because it was evaluating the Respondent’s
healthcare proposal and was “interested in comparing the amount spent on bargaining unit
healthcare with the amount spent on non-bargaining unit healthcare to see how much in excess
the employer was spending on non-bargaining unit healthcare.” When asked to explain the
relevance of that information, Mikula responded “It’s relevant so that we simply have a figure for
how much the employer is spending on its non-union employees.” The Union did not file a brief,
or otherwise articulate an additional, or clearer, statement of its purported need for information
sought in item number 4 of the information request.
E. The Complaint Allegations
The complaint alleges that the Respondent violated Section 8(a)(1) of the Act: in about
January 2008, when Lowery and Parks coercively interrogated employees regarding their union
sympathies; in about January 2008 when Lowery directed employees to sign a petition
indicating their lack of support for the Union; in about January 2008, when Lowery and Parks
told employees that the Respondent needed them to sign a petition to get rid of the Union; on
about January 16, 2008, when Parks threatened employees with adverse action if they engaged
in protected concerted activities; in about January 2008, when Grove and Chowen threatened
employees that wage increases would be eliminated if the Union returned as the employees’
collective bargaining representative; in about January 2008, when the Respondent offered to
provide, provided, and paid for an attorney to represent a nonsupervisory employee witness
during a Board investigation; and, on about December 27, 2007, when Stephens and Rudorffer
interfered with an employee’s distribution of union literature by coercively interrogating her about
passing out flyers in the breakroom on non-working time. The complaint further alleges that the
Respondent violated Section 8(a)(5) and (1): since about December 18, 2007, by refusing to
supply the Union with requested information that is necessary for, and relevant to, the Union’s
performance of its duties as the exclusive collective-bargaining representative of the Unit; on
about January 17, 2008, by withdrawing recognition from the Union; and, since about January
2008, by unilaterally implementing wage increases for bargaining unit employees.
III. Analysis and Discussion
A. Alleged Violations of Section 8(a)(1)
1. Employer Assistance for the Decertification Petition
a. Lowery: The complaint alleges that Lowery, the Respondent’s administrator,
provided unlawful assistance to the decertification effort. Lowery was the management official
who issued the January 17 letter withdrawing recognition from the Union. On multiple
occasions, beginning in early January 2008, Lowery met one-on-one with housekeeping
employee Brazil. These meetings took place in Lowery’s office, and Brazil was, in at least two
instances, directed to the meetings by his direct supervisor, Lord. Immediately prior to one of
the meetings with Lowery, the Respondent required Brazil to meet with Parks (the employee
proponent of the decertification petition) who discussed the Union with Brazil. At the first of
Lowery’s meetings with Brazil, Lowery asked how Brazil felt about the Union. When Brazil
declined to express a view, Lowery told Brazil that he was “tired” of the Union, that he needed
two more signatures to get rid of the Union, and that if Brazil helped him to oust the Union then
Lowery would have more control. During subsequent one-on-one meetings, Lowery asked
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Brazil whether he had “c[o]me to a decision . . . as far as voting the Union out or keeping it in,”
but Brazil declined to express a view.
“It is well settled that an employer violates Section 8(a)(1) of the Act by ‘actively
soliciting, encouraging, promoting, or providing assistance in the initiation, signing, or filing of an
employee petition to decertify the bargaining representative.’” Mickey’s Linen & Towel Supply,
349 NLRB 790, 791 (2007), quoting Wire Product Mfg. Co., 326 NLRB 625, 640 (1998), enfd.
sub nom. mem. NLRB v. R.T. Blankenship & Associates, Inc., 210 F.3d 375 (7th Cir. 2000).
“In determining whether an employer’s assistance is unlawful, the appropriate inquiry is
“whether the Respondent’s conduct constitutes more than ministerial aid.’” Id., quoting Times
Herald, 253 NLRB 524 (1980). Under this standard, the Board has found that an employer
violates Section 8(a)(1) by asking employees to sign a decertification petition. Sociedad
Espanola de Auxilio Mutuo y Beneficencia de P.R., 342 NLRB 458, 459 (2004), enfd. 414 F.3d
158 (1st Cir. 2005).
I find that, by the actions described above, Lowery was actively soliciting, encouraging,
promoting, and providing assistance in the signing of the decertification petition. Lowery’s
statement that he needed two more signatures and Brazil’s “help” to oust the Union, coupled
with Lowery’s repeated queries about whether Brazil had come to a decision, cannot reasonably
be viewed as anything short of Lowery soliciting Brazil’s agreement to sign the decertification
petition. Moreover, that same conduct constitutes active assistance for Parks’ efforts to obtain
employee signatures on the petition. This is especially true in light of the fact that Brazil was
brought to the first of the meetings with Lowery directly after the Respondent had him meet with
Parks about the Union. Thus, Lowery’s actions violated the Act both because he was directly
soliciting an employee’s signature, and because he was providing active assistance to Parks’
efforts to obtain signatures.
I conclude that the Respondent violated Section 8(a)(1) in January 2008, when Lowery
solicited an employee to sign the decertification petition, and actively assisted Parks’ solicitation
of employees to sign the petition.
The complaint also alleges that Lowery violated Section 8(a)(1) by coercively
interrogating Brazil during the January meetings. An interrogation is unlawful if, in light of the
totality of the circumstances, it reasonably tends to interfere with, restrain, or coerce employees
in the exercise of their Section 7 rights. Mathews Readymix, Inc., 324 NLRB 1005, 1007 (1997),
enfd. in part 165 F.3d 74 (D.C. Cir. 1999); Emery Worldwide, 309 NLRB 185, 186 (1992);
Liquitane Corp., 298 NLRB 292, 292-93 (1990). Relevant factors include, whether the
interrogated employee was an open or active union supporter, whether proper assurances were
given concerning the questioning, the background and timing of the interrogation, the nature of
the information sought, the identity of the questioner, and the place and method of the
interrogation. Stoody Co., 320 NLRB 18, 18-19 (1995); Rossmore House Hotel, 269 NLRB
1176, 1177-1178 (1984), affd. sub nom. Hotel Employees Union Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985). The Board has viewed the fact that an interrogator is a high-level
supervisor as one factor supporting a conclusion that the questioning was coercive. See, e.g.,
Stoody, supra.
In this case, the circumstances support finding that Lowery’s questioning of Brazil was
coercive. Lowery was the high-level manager who issued the letter withdrawing recognition
from the Union. The employee he was interrogating was a rank-and-file housekeeping
employee. Lowery conducted the questioning in his office, out of the presence of other
employees. Before asking Brazil to state his views on the Union, Lowery was not shown to
have provided any assurances that Brazil would not suffer reprisal based on his answers or his
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refusal to answer. In addition, Brazil was not shown to be someone who openly discussed his
views regarding the Union. To the contrary, Brazil testified that he actively tried to avoid
revealing a position on the subject. When Brazil declined to disclose his views regarding the
Union, he was repeatedly directed back to Lowery’s office and pressed to reveal whether he
had made a decision. Under these circumstances, I conclude that Lowery’s interrogation of
Brazil was unlawfully coercive.
I conclude that the Respondent violated Section 8(a)(1) in January 2008 when Lowery
coercively interrogated an employee regarding his union sympathies and willingness to sign a
decertification petition.
Parks: The complaint alleges that on about January 16, 2008, Parks threatened
employees with adverse action if they engaged in protected concerted activities.15 The record
shows that, on January 16, Parks made a threat to Scott and did so under circumstances that
would have reasonably led Scott to believe that Parks was speaking on the Respondent’s
behalf. In that instance, the Respondent interrupted Scott’s work by summoning her to the
office of her supervisor, Cindy Lord. When Scott arrived at Lord’s office, Lord directed her
inside, where Scott found Parks waiting. While Lord remained visible outside the doorway of
the office, Parks began talking to Scott about the Union. Scott interrupted to tell Parks that she
was “with the Union 100 percent,” and Parks threatened, “don’t tell nobody about this
conversation because if you do your job will be terminated.” Scott was not a union steward, and
prior to this meeting she did not make her views regarding the Union known to the Respondent
by wearing union buttons or shirts. During the days following the January 16 encounter, Scott
discussed the Parks incident with two other employees. Then Scott approached Stephens
(human resources director) to tell her what had happened with Parks. Stephens told Scott that
another employee could not threaten her job, and also said that she would “get back” to Scott
about the matter. Stephens never “got back” to Scott.
The threat made by Parks would reasonably tend to interfere with employees’ rights to
discuss not only Parks’ threat itself, but also the Respondent’s campaign in favor of decertifying
the Union. The Respondent contends that the threat cannot be imputed to the Respondent
because Parks was not an agent of the Respondent. The Respondent makes this argument in
a conclusory fashion and without any citation to authority on the law of agency. After
considering the question in light of the applicable legal standards, I reject the Respondent’s
contention and find that Parks was acting as an agent of the Respondent during her meeting
with Scott and that the threat she made to Scott is attributable to the Respondent. The Board
decides such questions by applying common law principles of agency, including the principle of
apparent authority. SKC Electric, Inc., 350 NLRB 857, 862 (2007); Shen Automotive
Dealership Group, 321 NLRB 586, 593 (1996). The conduct of a nonsupervisory employee
such as Parks is properly imputed to the employer under the agency principle of “apparent

15 The complaint also alleges that, in January 2008, Parks unlawfully interrogated
employees and told them that the Respondent needed their signatures on the decertification
petition. The evidence adduced at trial did not establish that Parks engaged in that conduct.
Parks circulated the petition to employees, but there was no specific testimony showing that she
questioned employees about their Union sympathies or told employees that the Respondent (as
opposed to employees who opposed the Union) needed their signatures on the petition. It may
well be that Parks intended to ask Scott where she stood regarding the Union during their
January 16 meeting, but Scott volunteered that she was prounion without being asked.
Moreover, Parks was not shown to have made any statement that, while not in the form of a
question, was calculated to elicit Scott’s union views.
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authority” if “under all the circumstances, employees would reasonably believe that the
employee in question is reflecting company policy and speaking and acting on behalf of
management.” Vons Grocery Co., 320 NLRB 53, 56 (1995); Shen Automotive, supra; see also
Cablevision Industries, 283 NLRB 22, 29 (1987) (apparent authority exists “when the principal
does something or permits the agent to do something which reasonably leads another to believe
that the agent had the authority he purported to have”).
Based on a consideration of all the circumstances in the instant case, I conclude that
Parks was acting with apparent authority when she met with Scott. Among those
circumstances, I note in particular the fact that the Respondent allowed Parks to use a
supervisor’s office to conduct the meeting with Scott and that the Respondent interrupted
Scott’s performance of her duties and required her to meet with Parks during Scott’s working
hours.16 In addition, Scott’s supervisor ushered Scott into the meeting with Parks and then
remained outside the office doorway -- visible to Scott -- during the meeting.17 Under these
circumstances, a reasonable employee would believe that Parks’ statements during the meeting
were sanctioned by the Respondent.
In reaching the conclusion that the Respondent’s actions had conferred apparent
authority on Parks for her statements during the meeting, I considered the fact that, when Scott
told Stephens about the incident, Stephens stated that another employee could not threaten her
job. The casual reassurance that Stephens offered to Scott in private was insufficient to
alleviate reasonable concerns that Parks had enough influence to make good on her threat.
The Respondent did not show that Stephens took any official action regarding the report she
received from Parks. There is no claim that Stephens discussed the matter with anyone else at
the company much less that she took steps to ensure that neither Parks nor Lord could instigate
or effectuate action against Scott. It does not appear that the Respondent told Parks and Lord
that meetings and threats of the kind to which Scott had been subjected were impermissible.
Stephens did not even fulfill her commitment to “get back” to Scott about the incident. At any
rate, by the time Stephens told Scott that another employee could not threaten her job, Scott
had already discussed Parks’ threat with at least two other employees. Stephens’ private
statement to Scott was clearly insufficient to reassure other employees who were aware of
Parks’ threat.

16 See SKC Electric, Inc., 350 NLRB at 862 (even if individual who circulated decertification
petition was a nonsupervisory employee, he acted as an agent of the employer because, inter
alia, he collected signatures during working hours).
17 See Southern Pride Catfish, 331 NLRB 618, 619(2000) (guest speaker who threatened
plant closure during meeting with employees was acting as an agent of employer where
employer arranged for the meeting and a responsible official of the employer was present at the
meeting and introduced the speaker),Transportation Repair & Service, Inc., 328 NLRB 107,
112-13 (1999) (office clerk acted as agent of employer when making threats where, inter alia,
manager was present while office clerk conveyed the threats), and Davies Medical Center, 303
NLRB 195, 206-07 (1991), enfd. 991 F.2d 803 (9th Cir. 1993) (Table) (nonsupervisory
employees who advocated for decertification petition were acting as agents of the Respondent,
where acknowledged supervisors directed other employees to meet with them); see also
Samaritan Medical Center, 319 NLRB 392, 396-97 (1995) (employer violated the act where
supervisor facilitated meeting between employee-proponent of decertification petition and other
employees, introduced proponent to other employees, and was present during the meeting).
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I conclude that the Respondent violated Section 8(a)(1) on January 16, 2008, when
Parks threatened that an employee’s job would be terminated if the employee engaged in
protected concerted activities.
c. Respondent Pays for Attorney to Represent Parks: The complaint also alleges that
the Respondent violated section 8(a)(1) by offering to provide, providing, and paying for an
attorney to represent a nonsupervisory employee witness during a Board investigation.” The
record shows that Parks asked Stephens for assistance finding an attorney to represent her in
the Board’s investigation of the decertification petition. Stephens provided Parks with the
names and contact information of two or three attorneys. Parks spoke to one of those
individuals, attorney Ellor, and selected him to represent her. Ellor met with Parks before she
responded to the subpoena, and he accompanied her when she visited the Board’s Regional
Office to provide an affidavit. The Respondent, not Parks, paid the legal fees for Ellor’s
representation of Parks before the Board.

I conclude that the Respondent violated Section 8(a)(1) of the Act by referring Parks to
an attorney and then paying that attorney to represent Parks in the Board investigation relating
to the decertification petition. The Board has found a violation of Section 8(a)(1) when, in the
context of a Board investigation, an employer offers to assist a nonsupervisory employee in
obtaining legal representation, and/or offers to provide such legal representation at no cost to
the employee. KFMB Stations, 349 NLRB 373 (2007); S.E. Nichols, Inc., 284 NLRB 556, 580-
82 (1987), enfd. in relevant part 862 F.2d 952 (2d Cir. 1988), cert. denied 490 U.S. 1108 (1989);
Florida Steel Corp., 233 NLRB 491, 494 (1977), enf. denied 587 F.2d 735 (5th Cir.1979). In
Florida Steel, the Board characterized the employer’s offer to help employees obtain legal
representation as “a patent attempt to obstruct the investigations of the Board by discouraging
employees from supplying information to Board agents.” 233 NLRB at 494. Similarly, in S.E.
Nichols, the administrative law judge explained that an employer violated Section 8(a)(1) by
providing legal counsel to a nonsupervisory employee because such representation would have
an “inhibiting effect . . . on the employee’s freely providing full and accurate information” to the
Board, even if the employee had “sua sponte requested” the representation. 284 NLRB at 582.
In the instant case, the Respondent has not explained what motivated it to pay an attorney to
represent a nonsupervisory witness during a Board investigation. Given the circumstances of
this case, including, as discussed above, the Respondent’s unlawful promotion of the
certification petition, I conclude that the Respondent provided legal representation to Parks
because it hoped to keep her from supplying information that might lead the Board to find
improper conduct and/or to invalidate the decertification petition. Thus, I conclude that the
Respondent violated Section 8(a)(1) when it referred Parks to an attorney and then paid that
attorney to represent her in the Board’s investigation of the decertification petition.
When it paid for Parks’ legal representation, the Respondent acted unlawfully for a
second reason. As set forth above, an employer violates Section 8(a)(1) when it provides “more
than merely ministerial aid” to a decertification petition effort. Mickey’s Linen, supra; Times
Herald, supra. In the instant case, the Respondent not only provided Parks with referrals to
attorneys, but paid an attorney to represent Parks in the Board process relating to the
decertification petition. That attorney met with Parks, accompanied her when she provided an
affidavit to the Board, and, according to Parks’ testimony, was still providing representation to
her approximately 5 months later. The amount of legal fees that the Respondent paid on Parks’
behalf is not revealed by the record, but it is highly unlikely that such fees would be de minimis
and the Respondent has not claimed that they were de minimis. This assistance was monetary
and thus, by definition, not “merely ministerial.” By providing significant monetary assistance to
help Parks navigate the Board’s process relating to the decertification petition, the Respondent
unlawfully aided the petition in violation of Section 8(a)(1).
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The Respondent contends that the cases finding that an employer violated the Act by
offering legal representation to nonsupervisory employees are distinguishable because in those
instances “the employer solicited employees to accept legal representation,” whereas in the
instant case Parks was the one who “initiated the matter.” Brief of Respondent at Pages 16-17.
This argument is unpersuasive both as a matter of fact and a matter of law. While Parks
testified that she solicited the Respondent to provide the names of lawyers who could represent
her, she never claimed that she initiated discussion of the Respondent paying the attorney who
she chose. The fact that the Respondent arranged to pay the attorney who was representing a
nonsupervisory witness in a Board investigation is the most troubling aspect of this alleged
violation, and, contrary to the Respondent’s suggestion, the record does not show that Parks
solicited the Respondent to make those payments. At any rate, the Respondent cites no case
in which the Board rejected a Section 8(a)(1) claim on the grounds that the employee, rather
than the employer, initiated discussion of employer-provided legal representation. To the
contrary, in S.E. Nichols, the administrative law judge explained that even when the employee
“sua sponte request[s]” employer-provided legal representation, such representation has an
“inhibiting effect . . . on the employee’s freely providing full and accurate information” to the
Board. 536 NLRB at 582. I agree. Even assuming that Parks raised the subject of employer-
paid legal representation with the Respondent, that would not change the fact that, by providing
such representation to Parks, the Respondent both compromised the Board’s ability to collect
full and accurate information regarding the decertification petition, and provided more than
ministerial assistance in the decertification process. 18
For the reasons discussed above, I conclude that the Respondent violated Section
8(a)(1) by helping a nonsupervisory employee to obtain an attorney and then paying that
attorney to represent the employee as a witness in a Board investigation.
2. Distribution of Union Literature
The complaint alleges that on or about December 27, 2007, Stephens and Rudorffer
interfered with an employee’s distribution of union literature, by coercively interrogating her
about passing out union literature in the breakroom on non-working time. The record shows
that Stephens and Rudorffer questioned Lyons on December 27, 2007, about her distribution of
union literature on her own time. As discussed above, an interrogation is unlawful if, in light of
the totality of the circumstances, it reasonably tends to interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights. Mathews Readymix, Inc., supra; Emery
Worldwide, supra; Liquitane Corp., supra. I conclude that the Respondent’s questioning of

18 In reaching my conclusion that the Respondent violated Section 8(a)(1) by paying for the
attorney who it recommended to Parks, I took into account that Parks had apparent authority to
speak for the Respondent during her meeting with Scott, and therefore was an agent for
purposes of that meeting. The Respondent has not shown, or even argued, that Parks’ limited
agency status is the reason it paid attorney Ellor to represent Parks in the Board investigation.
To the contrary, the Respondent denies that Parks was an agent of the Respondent for
purposes of any of the actions alleged to be unlawful. Even if Ellor is viewed as representing
Parks in her capacity as an agent of the Respondent, it would not change my conclusion that
providing the employee-proponent of the decertification petition with paid legal counsel during
the Board’s investigation constituted more than ministerial, and therefore unlawful, assistance to
the decertification effort. Indeed, such action would show that the Respondent knew it had set
up Parks as the company’s decertification advocate, and would confirm that the Respondent
was unlawfully assisting that effort.
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Lyons would reasonably tend to interfere with the exercise of her Section 7 right to distribute
literature. See United Services Automobile Assn., 340 NLRB 784, 785-86 (2003), enfd. 387
F.3d 908 (D.C. Cir. 2004) (Board finds that employer violates Section 8(a)(1) by interrogating
employees about the distribution of flyers); see also Our Way, Inc., 268 NLRB 394, 394-95
(1983) (employees’ distribution of union materials on their own time is presumptively protected
activity).
In this case, the questioning was conducted by two of the Respondent’s directors –
Stephens (director of human resources) and Rudorffer (director of nursing). Those officials
carried out the questioning in Stephens’ office, out of the presence of other employees. Neither
company official apparently offered Lyons assurances that she would not be subject to adverse
consequences if she admitted to distributing union literature. To the contrary, when Lyons
sought such assurances, asking if her conduct was going to be “an issue,” the officials declined
to reassure her -- stating that they could not answer until they contacted the Respondent’s
corporate offices. Under these circumstances, Lyons would have reasonable cause for concern
that by distributing union literature she might have created “an issue” for herself. An employee
in Lyons’ situation would reasonably feel inhibited about engaging in further distribution activity
until Stephens got back to her with an answer regarding whether such activity ran afoul of
corporate policy. Since Stephens never told Lyons what, if anything, corporate had to say on the
question, I would expect the chilling effect of the interrogation to linger for some time. All in all,
the record regarding the interrogation leaves the impression that the Respondent’s purpose was
not so much to discover if Lyons had distributed Union literature, but to intimidate her and
inhibit her exercise of Section 7 rights. 19
I conclude that the Respondent violated Section 8(a)(1) on December 27, 2007, when
Stephens and Rudorffer coercively interrogated an employee about passing out union literature.
3. Alleged Threat to Eliminate Wage Increases
The complaint alleges that, in about January 2008, Grove and Chowen threatened
employees that wage increases would be eliminated if the Union returned as the employees’
collective bargaining representative. The evidence showed that, on January 23, Grove and
Chowen held a meeting with employees at which they announced wage increases and also
discussed what would happen regarding those increases if the Union returned as the
employees’ bargaining representative. As was discussed above, Nash, a witness for the
General Counsel, testified that Grove and/or Chowen said that if the Union returned the wage
increases would be “off the table.” Broadnax, another witness for the General Counsel, testified
that Grove and Chowen said the raises “would be taken away.” On the other hand, Grove, a
witness for the Respondent testified that neither Chowen nor herself threatened to take away
the increases, but rather stated that if the Union returned the wage rate “could go up, it could go
down, it could stay the same, but that no one really knew what would happen.” A statement
such as that reported by Grove accurately reflects the possibilities of the collective bargaining
process and is not a threat. International Baking Co., 342 NLRB 136, 139 (2004), affd. 185 Fed.

19 The Respondent argues that the interrogation was lawful because Lyons was a Union
steward and the questioning was not accompanied by threats or other coercive conduct. I do
not accept the Respondent’s premise that the questioning was free of coercive conduct. For the
reasons discussed above, I believe that the Respondent’s officials coerced Lyons by warning
her that the distribution might be impermissible, by stating that the matter would be brought to
the attention of “corporate,” and by declining to reassure Lyons that her conduct would not be
“an issue.” These statements were, at a minimum, coercive and, arguably, threatening.
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Appx. 691 (9th Cir. 2006). As discussed in my factual findings, the General Counsel has failed
to establish that Grove and Chowen made the threatening statements testified to by Nash and
Broadnax, rather than the lawful statement reported by Grove.
I conclude that the allegation that the Respondent threatened that wage increases would
be revoked if the Union returned as the employees’ collective bargaining representative should
be dismissed.
B. Alleged Violations of Section 8(a)(5)
1. Information Request
The complaint alleges that the Respondent violated Section 8(a)(5) by refusing to furnish
the Union with requested information showing the “contribution amounts spent by Respondent
on employee healthcare, itemized yearly for the years 2005, 2006, 2007.” The record shows
that the Union requested this information in writing on December 18, 2007, and again by letter
dated January 16, 2008. The Respondent supplied the information for bargaining unit
employees, but declined to provide it for nonunit employees. Therefore, it is only the
information regarding nonunit employees that is at-issue here.
“[A]n employer's duty to bargain includes a general duty to provide information needed
by the bargaining representative to assess claims made by the employer relevant to contract
negotiations.” Caldwell Manufacturing Co., 346 NLRB 1159 (2006). Information pertaining to
employees within the bargaining unit is presumptively relevant. Id. However, when, as here,
the information pertains to nonunit employees there is no presumption of relevance and the
potential relevance must be demonstrated. Id., at 1159-60. “The burden to show relevance is
‘not exceptionally heavy,’ and “[t]he Board uses a broad, discovery-type of standard in
determining relevance in information requests.” Id., quoting Leland Stanford Junior University,
262 NLRB 136, 139 (1982), enfd. 715 F.2d 473 (9th Cir. 1983), and Shoppers Food
Warehouse, 315 NLRB 258, 259 (1994). The question is whether there is a “probability that the
desired information [is] relevant, and that it would be of use to the union in carrying out its
statutory duties and responsibilities.” Acme Industrial, 385 U.S. 432, 437 (1967).
In this case, the record does not establish a probability that the requested information
relating to nonunit employees would be useful to the Union in carrying out its duties and
responsibilities. There is no dispute that the Respondent had already provided the Union with
information showing the total annual healthcare costs for bargaining unit employees, and
divulging how much of those costs had been paid by the employees and how much by the
Respondent. The Respondent offered the same health insurance plan options to the nonunit
employees as it did to the unit employees, and informed the Union, in writing, that it was making
the same percentage contribution to healthcare coverage for the nonunit employees as for unit
employees. Mikula, the Union attorney who made the information request, testified about that
request. He was asked to explain why, given the information that the Respondent had already
provided to the Union, it was relevant for the Union to know the total amount that the
Respondent annually spent on healthcare for nonunit employees as a group. Mikula responded
that the Union was evaluating the Respondent’s healthcare proposal and the additional
information was “relevant so that we simply have a figure for how much the employer is
spending on its nonunion employees.” That is a tautological answer, not a meaningful one.
Mikula’s letter to the Respondent reiterating the information request does no better in explaining
the relevance of the additional information on nonunit employees. In that letter, Mikula simply
stated that the information should be supplied “[i]n order that the parties may have a productive
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negotiating session.” No other Union official testified about the supposed relevance of the
information regarding nonunit employees.
The General Counsel forwards a justification for the information request that is different
than the one articulated by Mikula. According to the General Counsel, the Union was entitled to
receive the information “so as to ascertain the veracity of the Respondent’s claims” that it was
paying the same percentage of the health care costs for unit employees as for nonunit
employees. Brief of Counsel for the General Counsel at Page 25, citing Harmon Auto Glass,
352 NLRB No. 24 (2008); see also Comar Inc., 349 NLRB 342, 355 (2007) (union is not
required to take the employer’s word that information is accurate or complete, but rather is
entitled to information from which it is possible to verify the response). However, there is no
evidence at all that the Union doubted the veracity of the Respondent’s representation regarding
the proportion of healthcare costs it was paying for nonunit members, or that the Union had any
thoughts of using the requested information to verify the Respondent’s written representation on
that subject. Moreover, since the information request was for a summary statement of costs,
not underlying documentation, it is unclear why the General Counsel believes that such cost
figures would be more trustworthy than the Respondent’s previously provided written
representation. I conclude that the record fails to show a probability that the information
requested regarding the yearly costs of healthcare for nonunit employees would have been
relevant and of use to the Union in carrying out its statutory duties.
The record does not substantiate the allegation that the Respondent violated section
8(a)(5) and (1) by refusing to provide the Union with relevant information regarding “contribution
amounts spent by Respondent on employee healthcare, itemized yearly for the years 2005,
2006, and 2007,” and therefore that allegation should be dismissed.
2. Withdrawal of Recognition
The General Counsel alleges that the Respondent violated Section 8(a)(5) and (1) of the
Act on January 17, 2007, when, relying on the decertification petition, it withdrew recognition
from the Union as the exclusive collective bargaining representative of unit employees. When
an employer withdraws recognition from an incumbent majority representative, it violates
Section 8(a)(5) unless it can prove that the union has actually lost the support of a majority of
employees in the bargaining unit. Levitz Furniture Co. of the Pacific, 333 NLRB 717, 723 and
725 (2001). A petition signed by at least half of a bargaining unit's members indicating that they
no longer wish to be represented by the union ordinarily constitutes sufficient objective evidence
to show loss of majority support for an incumbent union. Heritage Container, Inc. 334 NLRB
455, 462 (2001); Hearst Corp., 281 NLRB 764 (1986), affd. 837 F.2d 1088 (5th Cir. 1988)
(Table). However, if the “employer aids or supports employees in . . . manifesting their
disaffection with an incumbent representative, the Board has held that the evidence of . . .
disaffection thus procured by the employer cannot serve as the requisite objective basis upon
which a lawful withdrawal of recognition must be predicated.” Tyson Foods, 311 NLRB 552, 556
(1993); American Linen Supply Co., 297 NLRB 137, 137-38 (1989), enfd. 945 F.2d 1428 (8th
Cir. 1991) (same); see also SFO Good-Nite Inn, LLC, 352 NLRB No. 42, slip op. at 3 (2008)
(“[w]here an employer has engaged in conduct designed to undermine employee support for the
union, . . . the decertification petition will be found to have been tainted by the unfair labor
practices and the employee will be precluded from relying on those petitions as a basis for
withdrawing recognition”) and Texaco Inc., 264 NLRB 1132, 1132-33 (1982), enfd. 722 F.2d
1226 (5th Cir. 1984) (where an employer unlawfully assisted in the circulation of a decertification
petition, or encouraged employees to sign it, that petition is invalid).
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In the instant case, the Respondent has shown that a narrow majority of bargaining unit
members – either 39 out of 77 members, or 40 out of 78 members – signed a petition indicating
that they no longer wished to be represented by the Union. However, I conclude that the
Respondent is precluded from relying on the petition as a basis for withdrawing recognition
because the Respondent provided unlawful assistance to the petition and engaged in conduct
designed to undermine support for the Union. As discussed above, Lowery – the management
official who issued the letter withdrawing recognition – was shown to have unlawfully solicited
an employee to sign the decertification petition and to have coercively, and repeatedly,
interrogated that employee about whether he had made a decision on the subject. In addition,
the Respondent assisted the decertification effort by calling employees away from their work,
and directing them to meetings with Parks -- the employee-proponent of the petition. The
Respondent permitted Parks to use the offices of company officials for the purpose of holding
these meetings, during which Parks discussed the Union and the decertification petition. At one
such meeting, Parks, while acting as an agent of the Respondent, unlawfully threatened that the
employee would be discharged if she discussed the substance of their meeting with anyone
else. Given this unlawful assistance to the decertification effort, the “evidence of . . .
disaffection thus procured . . . cannot serve as the requisite objective basis upon which a lawful
withdrawal of recognition must be predicated.” Tyson Foods, supra.
The Respondent argues that the petition is not tainted because none of the unlawful
assistance that I find it gave to the decertification effort led to the signature of any employee.
Even assuming that the Respondent could show that this was factually true, the argument
forwarded by the Respondent has been rejected by the Board. In SFO Good-Nite Inn, the
Board held that an employer’s unlawful assistance to a decertification petition invalidated its
reliance on that petition as a basis for withdrawing recognition even if none of the employees
who were unlawfully coerced actually signed the petition and the record does not show that
employees who signed the petition were aware of the unfair labor practices. 352 NLRB No. 42,
slip op. at 3-4, and fn.8; see also Hearst Corp., 281 NLRB at 764-65 (where employer unlawfully
solicits employee repudiation of union, “its misconduct, . . . will bar any reliance on an
expression of disaffection by its employees, notwithstanding that some employees may profess
ignorance of their employer’s misconduct”); see also Movie Star, 145 NLRB 319, 342 (1963),
enfd. in relevant part, 361 F.2d 346 (5th Cir. 1966) (Even if it cannot be shown with certainty
how many of the employee would have withdrawn from the union in the absence of the illegal
conduct by the employer, a violation may be found based on the doctrine requiring doubts to be
resolved against the party whose unlawful conduct created the uncertainty.). In accord with the
Board’s holding in SFO Good-Nite Inn, I reject the Respondent’s contention that the petition was
not tainted by the unlawful assistance that the Respondent gave to the petition.
I conclude that the Respondent violated Section 8(a)(5) and (1) on January 17, 2007,
when it withdrew recognition from the Union as the exclusive collective bargaining
representative of the unit employees.
3. Unilateral Changes
Shortly after withdrawing recognition from the Union, the Respondent implemented wage
rate increases for bargaining unit employees, including one such increase that was made
retroactive to the expiration of the most recent collective bargaining agreement. Subsequently,
on April 30, 2008, the Respondent increased employee’s wage rates again. The Respondent
admits that it made these changes in terms and conditions of employment without notifying or
bargaining with the Union.
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As the Respondent admits, wage rates are a mandatory subject of bargaining. Goya
Foods of Florida, 351 NLRB No. 13, slip op. at 3 (2007); General Counsel Exhibit (GC Exh.)
1(g) (Respondent’s Answer to Complaint). It is immaterial that a change in wage rates is for the
better because the Act still requires bargaining about the mandatory subject of wages. Goya
Foods, supra.
In this case, the Respondent made material and substantial changes to unit employees’
wage rates without first negotiating with the Union. Although the Respondent withdrew
recognition from the Union prior to making the unilateral changes, as discussed above, that
withdrawal of recognition was unlawful. Thus the Respondent had an obligation to bargain with
the Union over the changes in wage rates, and violated Section 8(a)(5) and (1) of the Act by
failing to do so. Goya Foods, supra.
I conclude that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally
implementing wage rate increases for bargaining unit employees in January and April 2008.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent interfered with employees' exercise of their Section 7 rights in
violation of Section 8(a)(1) of the Act: in January 2008, when Lowery actively solicited an
employee to sign a decertification petition, and actively assisted Parks’ solicitation of employees
to sign that petition; in January 2008, when Lowery coercively interrogated an employee
regarding his union sympathies and willingness to sign a decertification petition; on January 16,
2008, when Parks threatened that an employee’s job would be terminated if she engaged in
protected concerted activities; when it helped a nonsupervisory employee to obtain an attorney
and then paid that attorney to represent the employee as a witness in a Board investigation;
and, on December 27, 2007, when Stephens and Rudorffer coercively interrogated an
employee about passing out union literature.
4. The Respondent violated Section 8(a)(5) and (1): on January 17, 2008, when it
withdrew recognition from the Union as the exclusive collective bargaining representative of the
unit employees; and, in January and April 2008,20 when it unilaterally implemented wage rate
increases for bargaining unit employees.
5. The Respondent has not violated the Act as otherwise alleged in the complaint.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the

20 This includes those wage increases that were implemented in January 2008, but made
retroactive to April 2007.
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following recommended Order.21
ORDER
The Respondent, Heartland - University of Livonia, MI, LLC, d/b/a Heartland Health Care
Center - University, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Soliciting bargaining unit employees either to sign a petition to decertify
SEIU Healthcare Michigan (the Union) as their collective bargaining representative or to
otherwise express disaffection with the Union.
(b) Actively assisting any employee solicitation of other employees either to sign a
petition to decertify the Union or to otherwise express disaffection with the Union.
(c) Coercively interrogating employees regarding their union sympathies and/or
willingness to express disaffection with the Union.
(d) Threatening to terminate employees for engaging in protected concerted activities.
(e) Helping any nonsupervisory employee to obtain an attorney and then paying that
attorney to represent the nonsupervisory employee as a witness in an investigation conducted
by the National Labor Relations Board.
(f) Coercively interrogating employees about their distribution of union literature.
(g) Withdrawing recognition from the Union as the exclusive collective bargaining
representative of employees in the following appropriate unit:
All full-time and regular part-time nurse aides, dietary, maintenance, and
housekeeping employees employed by Heartland - University of Livonia, MI, LLC
d/b/a Heartland Health Care Center - University at its facility located at 28550
Five Mile Road, Livonia, Michigan; but excluding office clerical employees, and
guards and supervisors as defined by the Act.
(h) Implementing changes in the wage rates or other terms and conditions of bargaining
unit employees without first affording the Union notice and an opportunity to bargain regarding
the changes.
(i) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.

21 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(a) On request, bargain in good faith with the Union as the exclusive representative of
bargaining unit employees concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed agreement.
(b) If requested to do so by the Union, rescind the unilateral changes in unit employees’
wage rates, and any other unilateral changes to unit employees’ terms and conditions of
employment, restore the status quo ante, and make the unit employees whole for any loss of
earnings and benefits they may have suffered as a result of the unilateral changes.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay, if any, due under the terms of
this Order.
(d) Within 14 days after service by the Region, post at its facility in Livonia, Michigan,
copies of the attached notice marked “Appendix.”22 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
December 27, 2007.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. December 22, 2008
____________________
PAUL BOGAS
Administrative Law Judge

22 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT solicit you either to sign a petition to decertify SEIU Healthcare Michigan (the
Union) as your collective bargaining representative or to otherwise express disaffection with the
Union.
WE WILL NOT actively assist any employee’s effort to obtain either your signatures on a
petition to decertify the Union or some other expression of disaffection with the Union.
WE WILL NOT coercively interrogate you regarding your union sympathies and/or willingness to
express disaffection with Union.
WE WILL NOT threaten to terminate you for engaging in protected concerted activities.
WE WILL NOT help any nonsupervisory employee to obtain an attorney and then pay that
attorney to represent the nonsupervisory employee as a witness in an investigation conducted
by the National Labor Relations Board.
WE WILL NOT coercively interrogate you about the distribution of union literature.
WE WILL NOT withdraw recognition from Union as the exclusive bargaining representative for
our employees in the bargaining unit:
All full-time and regular part-time nurse aides, dietary, maintenance, and housekeeping
employees employed by Heartland - University of Livonia, MI, LLC d/b/a Heartland
Health Care Center - University at its facility located at 28550 Five Mile Road, Livonia,
Michigan; but excluding office clerical employees, and guards and supervisors as
defined by the Act.
WE WILL NOT implement any changes to the wage rates, or other terms and conditions, of
bargaining unit employees without first affording the Union notice and an opportunity to bargain
regarding the changes.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
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WE WILL, on request, bargain in good faith with the Union and put in writing and sign any
agreement reached on terms and conditions of employment for our employees in the bargaining
unit.
WE WILL, if requested to do so by the Union, rescind the unilateral changes we made to unit
employees’ wage rates, and any other unilateral changes to unit employees’ terms and
conditions of employment, restore the status quo ante, and make the unit employees whole for
any loss of earnings and other benefits resulting from the unilateral changes.
HEARTLAND - UNIVERSITY OF
LIVONIA, MI, LLC, d/b/a HEARTLAND
HEALTH CARE CENTER - UNIVERSITY
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Federal Building, Room 300
Detroit, Michigan 48226-2569
Hours: 8:15 a.m. to 4:45 p.m.
313-226-3200.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 313-226-3244.