Regency Grande Nursing & Rehabilitation Center

National Labor Relations Board - Board Decisions

Sep 3, 2009

354 N.L.R.B. 530 (N.L.R.B. 2009)

354 NLRB No. 75
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Regency Grande Nursing and Rehabilitation Center
and SEIU 1199 New Jersey Health Care Union
and Local 300s, Production Services and Sales
District Council, United Food and Commercial
Workers International Union. Cases 22–CA–
28331, 22–CA–28384, 22–RC–12889, and 22–RC–
12895
September 3, 2009
DECISION, ORDER, AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On February 13, 2009, Administrative Law Judge Mi-
chael A. Rosas issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. SEIU
1199 New Jersey Health Care Union (Local 1199) filed
an opposition to the Respondent’s exceptions, and the
General Counsel filed an answering brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs, and has decided to affirm the judge’s rulings,2
findings,3 and conclusions, and to adopt the recom-
mended Order, as modified.4

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, 568 F.3d
410 (2d Cir. 2009); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir.
2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22, 2009)
(No. 08–1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st
Cir. 2009), rehearing denied No. 08–1878 (May 20, 2009). But see
Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469
(D.C. Cir. 2009), petitions for rehearing denied Nos. 08–1162, 08–1214
(July 1, 2009).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 No exceptions were filed to the judge’s recommendation to over-
rule the challenge to the ballot of Miguel Nochebueno and to sustain
the Respondent’s first objection regarding a void ballot (but find that
this objection did not warrant setting aside the election). We therefore
adopt these findings pro forma.
We correct the judge’s statement that he had sustained the chal-
lenges to all but five nondeterminative ballots. Including Aida Basu-
1. In adopting the judge’s findings that the Respondent
violated Section 8(a)(1) on March 4, 2008,5 when House-
keeping Director Martin Reyes interrogated employee
Manuela Figueroa and created the impression of surveil-
lance,6 and on April 10, when Reyes interrogated em-
ployee Valeria Madeina as to how she had voted in the
election, we do not rely on the judge’s statement that
“[g]iven the history of the Respondent’s preference for
Local 300S as its employees’ collective-bargaining rep-
resentative, both of . . . (Reyes’ unlawful) statements
could reasonably be seen as hostile toward anyone en-
gaging in activity on behalf of Local 1199.” It was not
the Respondent’s mere preference for Local 300S, but its
unlawful conduct in support of that preference, that sup-
ports these 8(a)(1) findings.7 Thus, in an earlier proceed-
ing, Regency Grande Nursing & Rehabilitation Center,
347 NLRB 1143 (2006), enfd. 265 Fed. Appx. 74 (3d
Cir. 2008), the Respondent was found to have violated
Section 8(a)(3), (2), and (1) by recognizing Local 300S
and entering into a collective-bargaining agreement con-
taining union-security and dues-checkoff provisions
when Local 300S did not represent a majority of the unit
employees.
2. We also adopt the judge’s finding that, under Wright
Line,8 the Respondent violated Section 8(a)(3) by dis-

alto’s ballot, the judge sustained the challenges to all but six nondeter-
minative ballots. This inadvertent error does not affect our decision.
4 Although evidence was introduced at the hearing that the Respon-
dent reinstated Basualto more than 4 months after her discharge, the
judge made no finding as to her reinstatement. The Order and notice
have been modified to require the Respondent to reinstate Basualto to
the same or equivalent position and make her whole “to the extent it
has not done so.”
We further modify the Order and notice to include cease-and-desist
provisions to correspond to the judge’s finding that the Respondent
violated Sec. 8(a) (1) by creating the impression of surveillance. The
judge inadvertently omitted these provisions.
5 All dates are in 2008, unless otherwise stated.
6 As found by the judge, Reyes observed Figueroa, Aida Basualto,
and other employees talking with Local 1199 organizer, Rhina Molina,
before the group continued their discussion at Basualto’s nearby house.
The next day, Reyes asked Figueroa why she had gone to Basualto’s
house. In agreeing that this question violated Sec. 8(a)(1), we find that
the judge properly inferred that Reyes knew that Molina was a Local
1199 organizer based on Molina’s near constant presence at the facility
from February 23 until after the April 10 election.
7 An employer, of course, may lawfully prefer one union over an-
other as long it does not engage in coercive conduct in doing so. Cf.
Flamingo Hilton-Laughlin, 324 NLRB 72 fn. 1 (1997) (although ac-
knowledging that an employer may noncoecively favor one union over
another in a multiunion election, the Board majority found that the
respondent employer’s conduct was unlawfully coercive), enfd. as
modified 148 F.3d 1166 (D.C. Cir. 1998).
8 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). To establish a violation under Wright
Line, the General Counsel bears the burden of showing that union ani-
mus was a motivating or substantial factor for the adverse employment
action. As applied by the judge, the elements commonly required to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
charging employee Aida Basualto for her activity in sup-
port of Local 1199. However, we find it unnecessary, in
finding that the Respondent evinced animus toward Lo-
cal 1199, to rely on comments in support of Local 300S
by the Respondent’s administrator, Joseph Olszewski, to
employees the day before the election. As the Respon-
dent accurately asserts, this evidence was introduced into
the record after the unfair labor practice portion of the
hearing had concluded and the Respondent’s counsel had
voluntarily left the proceeding. Moreover, as noted
above, an employer may lawfully prefer one union over
another as long as it does so in a noncoercive manner. In
any event, because other evidence amply demonstrates
the Respondent’s animus against Local 1199,9 it is un-
necessary to rely on Olszewski’s comments to prove this
element of the General Counsel’s prima facie case.
Also with regard to this 8(a)(3) violation, we note that
the judge incorrectly found that Olszewski had a critical
conversation with the Respondent’s owner, David Gross,
prior to Gross discharging Basualto on election day. In
this conversation, Olszewski told Gross that other em-
ployees (Kathy Rohde and Michelle Meikle) were re-
sponsible for the conduct (posting an election notice) for
which Gross was discharging Basualto. Although this
conversation occurred after Gross had discharged Basu-
alto, this does not affect our adoption of the judge’s
8(a)(3) finding for the following reasons: first, the judge
correctly found that Olszewski had alerted Gross, in the
days before the election, that Rohde and Meikle had re-

support such a showing are union or protected concerted activity by the
employee, employer knowledge of that activity, and union animus on
the part of the employer. See, e.g., Desert Springs Hospital Medical
Center, 352 NLRB 112 fn. 2 (2008); Consolidated Bus Transit, 350
NLRB 1064, 1065 (2007), enfd. _F.3d_, 2009 WL 2526487 (2d Cir.
Aug. 20, 2009). Member Schaumber notes that the Board and the
circuit courts of appeal have variously described the evidentiary ele-
ments of the General Counsel’s initial burden of proof under Wright
Line, sometimes adding as an independent fourth element the necessity
for there to be a causal nexus between the union animus and the ad-
verse employment action. See, e.g., American Gardens Management
Co., 338 NLRB 644, 645 (2002). As stated in Shearer’s Foods, 340
NLRB 1093, 1094 fn. 4 (2003), since Wright Line is a causation stan-
dard, Member Schaumber agrees with this addition to the formulation.
In this case, he finds a causal nexus between the Respondent’s animus
against Local 1199 and its discharge of Basualto.
9 This evidence includes Reyes’ interrogation of employees on
March 4 and April 10, and his creation of the impression of surveil-
lance on March 4, and the Respondent’s unlawful activity found in
Regency Grande Nursing & Rehabilitation Center, supra. Moreoever,
unlike the judge, we find it was not the Respondent’s mere “historical
favoritism of Local 300S,” but its prior unlawful conduct in support of
Local 300S that demonstrates the Respondent’s animus against Local
1199. Virginia Electric Power Co., 260 NLRB 408, 414 (1982) (dis-
tinguishing employer’s noncoercive preference for one union over
another from antiunion animus). Cf. Flamingo Hilton-Laughlin, supra
at 72 fn. 1.
posted the notice multiple times (without discipline).
Second, after the termination, Gross continued to hold
Basualto responsible for posting the flyer even after Ol-
szewski told him that Miekle and Rohde were responsi-
ble.
ORDER10
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent, Re-
gency Grande Nursing and Rehabilitation Center, Dover,
New Jersey, its officers, agents, successors, and assigns
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(c) and
reletter the subsequent paragraph.
“(c) Creating the impression in employees that their
union activities are under surveillance.”
2. Substitute the following for paragraph 2(a).
“(a) Within 14 days from the date of the Board’s Or-
der, to the extent it has not done so, offer Aida Basualto
full reinstatement to her former job, or if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to her seniority or any other rights or privi-
leges previously enjoyed.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

10 We agree with the judge that a broad remedial order is warranted
because the Respondent has engaged in persistent attempts, by varying
methods, to interfere with its employees’ protected rights. See gener-
ally NLRB v. Express Publishing Co., 312 U.S. 426, 436–438 (1941).
Cf. Postal Service, 345 NLRB 409, 413 (2005) (Member Schaumber
dissenting), enf. denied in pertinent part 477 F.3d 263 (5th Cir. 2007),
citing NLRB v. Union Nacional de Trabajadores, 540 F.2d 1, 11 (1st
Cir. 1976). Thus, in the earlier proceeding, Regency Grande Nursing
& Rehabilitation Center, supra, the Respondent unlawfully recognized
Local 300S when it did not represent a majority of the employees,
fraudulently concealed that recognition from the employees for over 7
months, and, when Local 1199 began organizing its employees, unlaw-
fully entered into a collective-bargaining agreement with Local 300S,
containing a union-security clause. Almost immediately after the Third
Circuit Court of Appeals enforced that Board Order, the Respondent
renewed its unlawful conduct in support of Local 300S and against
Local 1199; only the means changed. Thus, after both unions filed
election petitions, the Respondent unlawfully interrogated employees
about their support of Local 1199, created the impression that their
activities in support of 1199 were under surveillance, and terminated
former Local 300S supporter Basualto because of her activities in sup-
port of Local 1199. By this continued course of unlawful conduct, the
Respondent has demonstrated both a general disregard for fundamental
statutory rights, i.e., the right of employees to select their own represen-
tatives, and the likelihood of future and varying efforts to frustrate
those rights. See Pan American Grain Co., Inc., 346 NLRB 193 fn. 4
(2005). Cf. Postal Service, supra (Member Schaumber dissenting). We
observe that, while the Respondent may have reinstated employee
Basualto, there is neither a finding that the reinstatement was to her
former position, nor evidence that she received remedial backpay.
REGENCY GRANDE NURSING & REHABILITATION CENTER 3
CERTIFICATION OF REPRESENTATIVE11
IT IS CERTIFIED that a majority of the valid ballots have
been cast for SEIU 1199 New Jersey Health Care Union,
and that it is the exclusive collective-bargaining repre-
sentative of the employees defined in the Stipulated Elec-
tion Agreement:
All full-time and regular part time licensed practical
nurses, certified nursing assistants, housekeeping em-
ployees, dietary employees, cooks, laundry aides, rec-
reational aides, nurses aides, and maintenance employ-
ees working at the Employer’s 65 North Sussex Street,
Dover, New Jersey facility EXCLUDING registered
nurses, all other professional employees, guards and
supervisors as defined in the Act.
Dated, Washington, D.C. September 3, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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

11 A secret ballot election was conducted on April 10, pursuant to a
Stipulated Election Agreement. The original tally was 28 for Local
300S, 53 for Local 1199, 1 against either union, with 1 void and 43
challenged ballots, a determinative number. The parties stipulated that
the challenges to four ballots should be overruled and the challenges to
eight other ballots should be sustained. The judge resolved the remain-
ing 31 challenges. As noted above, we uphold the judge’s ruling sus-
taining the challenges to all but six of the challenged ballots, a nonde-
terminative number, and his finding that it was unnecessary to count
these ballots. Although the judge further ordered that the representa-
tion proceeding “be severed and remanded to the Regional Director to
issue the appropriate certification,” we find that a remand is unneces-
sary. Under Sec. 102.69 of the Board’s Rules, the Board has authority
to issue such a certification. Accordingly, we shall issue a certification
of representative. See Hanson Material Service Corp., 353 NLRB No.
10 fn. 7 (2008) (certification of results); Talmadge Park, Inc., 351
NLRB 1241 fn. 4 (2007) (certification of representative).
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 discharge or otherwise discriminate
against any of you for supporting the Service Employees
International Union, Local 1199, New Jersey Health
Care Union or any other union.
WE WILL NOT coercively question you about your un-
ion support or activities.
WE WILL NOT create the impression that your union ac-
tivities are under surveillance.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
to the extent we have not done so, offer Aida Basualto
full reinstatement to her former job, or, if that the job no
longer exists, to a substantially equivalent position, with-
out prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Aida Basualto whole for any loss of
earnings and other benefits resulting from her discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge of Aida Basualto, and WE WILL, within 3 days
thereafter, notify her in writing that this has been done
and that the discharge will not be used against her in any
way.
REGENCY GRANDE NURSING AND
REHABILITATION CENTER
Bernard Mintz, Esq., for the General Counsel.
Morris Tuchman, Esq., of New York, New York, for the Re-
spondent.
William Massey, Esq. (Gladstein, Reif & Meginniss LLP), of
New York, New York, for Local 1199.
Bruce Cooper, Esq. (Pitta & Dreier LLP), of New York, New
York, for Local 300S.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Dover, New Jersey, on September 25–26, 29, and
October 6, 2008.1 Petitions to conduct a representation election
among employees of Regency Grande Nursing and Rehabilita-
tion Center (the Respondent) were filed by Service Employees
International Union, Local 1199, New Jersey Health Care Un-
ion (Local 1199) in Case 22–RC–12889 on February 26, and by

1 All dates are in 2008 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Local 300S, Production Services and Sales District Council,
United Food and Commercial Workers International Union
(Local 300S) in Case 22–RC–12895 on March 3. Unfair labor
practices charges were filed in Case 22–CA–28331 on April 22,
and in Case 22–CA–28384 on May 29, against the Respondent.
An order consolidating Cases 22–CA–28331 and 22–CA–
28384 issued June 30. The complaint alleges the Respondent:
(1) violated Section 8(a)(1) of the National Labor Relations Act
(the Act) by interrogating employees on March 4 and April 10,
and creating an impression among employees on March 4 that
their activities were under surveillance; and (2) violated Section
8(a)(3) and (1) of the Act by terminating employee Aida Basu-
alto on April 10. On July 3, the Regional Director issued a re-
port on challenged ballots and objections and ordered that
Cases 22–RC–12889, 22–RC–12895, 22–CA–28331, and 22–
CA–28384 all be consolidated for trial. On July 7, the Respon-
dent filed an answer to the unfair practice charges, admitting
the jurisdictional allegations, but denying the unfair labor prac-
tice charges.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, Local 1199, and Local
300S, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New Jersey corporation, is engaged in the
business of operating a nursing home and rehabilitation center
at its facility in Dover, New Jersey (the Dover facility), where it
annually derives gross revenues in excess of $100,000 and
purchases and receives goods and services valued in excess of
$5000 directly from suppliers located outside the State of New
Jersey. 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 that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent’s Dover facility is one of four nursing home
and rehabilitation facilities owned and operated by David Gross
in New Jersey.2 Gross manages the four facilities from his busi-

2 The General Counsel requests at p. 16 of his brief that I take ad-
ministrative notice of the fact that Gross has been discredited as a wit-
ness in prior unfair labor practice proceedings before Judges Steven
Davis and Mindy Landow. See Regency Grande Nursing & Rehabilita-
tion Center, 347 NLRB 1143, 1153 (2006), enfd. 265 Fed. Appx. 74,
2008 WL 449782 (3d Cir. 2008), and Regency Heritage Nursing &
Rehabilitation Center, Case 22–CA–27992 (JD–NY–40–08). There is
precedence for such an approach, as indicated by Judge Miller in CWI
of Maryland, Inc., 321 NLRB 698 fn. 10 (1996). Judge Miller’s state-
ment was superfluous, however, to his credibility analysis based on the
record and the testimony before him. In any event, I disagree with such
an approach. Although prior conclusions of law regarding the Respon-
dent’s unfair labor practices are appropriate for my consideration with
respect to a potential remedy, I have given no weight to prior findings
regarding Gross’ credibility in making such a determination in this
case.
ness office in Lakewood, New Jersey, which is located ap-
proximately 85 miles from Dover. The Dover facility includes
the following departments of relevance to this controversy:
nursing, housekeeping, maintenance, dietary and recreation.
Aida Basualto was a housekeeping aide on the first shift (7 a.m.
to 3 p.m.).3
The Respondent’s work force, as it developed during early
March, is a central issue in this case. During the period of Janu-
ary 1 to March 31, 2008, the Respondent hired 61 employees
and had 172 employees on its payroll. Forty of those 61 em-
ployees were hired during the period of March 1 to 5, 2008,
while 21 were hired at various other times during the quarter.
By comparison, during the first quarter of 2006, the Respondent
hired 10 employees and employed a total of 126 persons. More
recently, during the first quarter of 2007, the Respondent hired
22 employees and had 135 employees on its payroll.4
B. The Previous Litigation
On February 19, 2004, Local 1199 filed unfair labor practice
charges alleging, inter alia, that the Respondent, notwithstand-
ing the fact that Local 300S had not obtained authorization
cards from the majority of the bargaining unit, entered into a
collective-bargaining agreement with Local 300S that: (1) rec-
ognized that labor union as the exclusive collective-bargaining
representative for its employees and (2) contained a union-
security clause.
On August 5, 2005, Judge Steven Davis concluded that the
Respondent violated Section 8(a)(1), (2), and (3) of the Act by
recognizing Local 300S as the exclusive collective-bargaining
representative of its employees, and by entering into, maintain-
ing, and enforcing a collective-bargaining agreement containing
union-security and dues-checkoff provisions with Local 300S
on January 8, 2004, covering its employees in the following
unit, at a time when Local 300S did not represent a majority of
the employees in such unit. The Respondent was ordered to
cease and desist from recognizing Local 300S as the exclusive
collective-bargaining representative of the Dover facility’s
employees and entering into, maintaining, or enforcing a col-
lective-bargaining agreement containing union-security and
dues-checkoff provisions with Local 300S, unless and until
such time as Local 300S shall have been certified by the Board
to represent a majority of employees in the appropriate bargain-
ing unit. The Respondent was also ordered to cease and desist,
in any like or related manner, from interfering, restraining, or
coercing employees in the exercise of their Section 7 rights. See
Regency Grande Nursing & Rehabilitation Center, 347 NLRB
1143 (2006).

3 Although there was testimony as to Basualto’s tenure, seniority and
insignificant disciplinary record, I do not recite it here, as it ultimately
bears no relevance to the adverse action taken by the Respondent. (Tr.
95–97.)
4 The Employee Ledgers for the first quarter of the 3 years in ques-
tion contain payroll information for a larger total of employees, but that
discrepancy is attributable to resignations and terminations. As such,
the 2006 ledger contains payroll sheets for 137 employees, the 2007
sheets cover 145 employees and 2008 sheets denote 175 employees on
the payroll at one point or another during the quarter. (Local 1199 Exh.
15A–15C.)
REGENCY GRANDE NURSING & REHABILITATION CENTER 5
Basualto supported Local 300S during the 2003 campaign
and, along with Kathy Rohde, served as a Local 300S’ shop
steward in the housekeeping department until sometime in
2007.5 Basualto also served on Local 300S’ negotiating com-
mittee for renewal of the collective-bargaining agreement, but
resigned from that committee prior to the conclusion of nego-
tiations on December 15, 2006.6 Three employees signed the
agreement on behalf of the Local 300S negotiating committee:
Kathy Rohde, Zahira Sadick, and Francisco Castro.
While the parties awaited a final decision regarding Local
300S’ representation status, Basualto’s loyalty toward that la-
bor organization waned. In May and July 2007, Basualto, along
with other employees, met with Rhina Molina, Local 1199’s
senior organizer at local restaurants. In addition to issues relat-
ing to terms and conditions of employment, they discussed the
unfair labor practice case involving the Respondent and Local
300S, and the benefits of being represented by Local 1199 in-
stead of Local 300S. In addition, some of the employees signed
union authorization cards favoring Local 1199.7
After the Board’s order was enforced, Locals 1199 and 300S
began to actively solicit employees at the facility. Kathy Rohde,
a certified nursing assistant who had been Local 300S’ shop
steward, distributed authorization cards on behalf of Local
300S to employees beginning February 22. She solicited Basu-
alto in the Dover facility in February 2008 about signing a card,
but Basualto was noncommittal.8 Meanwhile, Local 1199 or-
ganizers, including Molina, started coming regularly to the
Respondent’s facility on or about February 23, met with and
distributed cards to employees. Molina and other Local 1199
organizers would speak to employees in different locations just
outside the entrances to the Dover facility. She would park
either in front of or near the main entrance and would meet
there with Basualto nearly every day.9 Molina continued to
solicit authorization cards for several weeks after the election
petition was filed.10

5 Gross’ vague assertion that he was unaware that Basualto was no
longer on the Local 300S negotiating committee was not credible,
given his amount of involvement in labor relations at the Dover facility.
As such, I adopted Basualto’s contention that she dropped off the Local
300S negotiating committee prior to completion of negotiations in
December 2007. (Tr. 148–149, 225, 245.) See also, Regency Grande,
supra.
6 Basualto was not a signatory to the renewal agreement, but her in-
consistent testimony lends credence to testimony by Gross and Rohde
that she discussed employee grievances with Gross. (GC Exh. 9; Tr.
22–23, 32, 36–37, 125–126, 136, 145, 147–148, 196, 245, 264, 268–
269, 271–272.)
7 The testimony by Basualto and Molina regarding these activities
was not disputed. (Tr. 50–55, 76–77, 102–103.)
8 Rohde’s testimony was fairly consistent with that of Basualto. (Tr.
30–32, 35–37.)
9 Gross disputed Molina’s testimony that she parked there because
there were painted “zebra” lines in that area, which meant that parking
was prohibited. However, it was clear that Gross did not have personal
knowledge as to whether Molina actually parked in that location and, as
such, I adopted Molina’s credible testimony in this regard. (Tr. 58, 75,
198, 206, 209.)
10 I found Molina’s assertion, that she continued to line up support by
obtaining signed cards, credible and consistent with the preponderance
of other credible testimony in the record regarding union activity during
Basualto signed an authorization card on behalf of Local
1199 on or about February 26 and became one of several em-
ployees who distributed authorization cards on behalf of Local
1199.11 While the cards were distributed in areas visible to the
surveillance cameras, Basualto did so in a discreet manner dur-
ing her lunchbreak and at other times in the basement and first
and second floors of the facility in order to avoid being seen by
supervisors.12 Basualto only gave out cards to the housekeep-
ing, maintenance, kitchen, and activities departments. She had
no access to the larger nursing department. She returned ap-
proximately 20 cards to Molina or other Local 1199 organizers.
At Molina’s request, Basualto spoke on numerous occasions
with certain employees on behalf of Local 1199 during breaks
and lunchtime in the dining room.13 Basualto’s organizing ac-
tivity was not observed by supervisors on any of the facility’s
security cameras.14 When asked by Gross as to which union she
would support, Basualto said she wanted to keep a low profile
during the campaign.15
C. The Respondent’s Hiring Frenzy After the Enforcement
Order Issued
On February 26, 6 days after the Board’s Order was enforced
by the Court of Appeals, Local 1199 filed a petition for a repre-
sentation election involving “all full time and regular part-time
nonprofessional employees at the Employer’s facility.”16 Local
300S filed a similar petition on March 3.17 A stipulation agree-
ment was executed by the parties and approved by the Regional

the period after the petition was signed and the election. (Tr. 60, 73–
74.) The Respondent challenged Molina’s credibility regarding the
facts and circumstances surrounding the discharge of Maria Carraon,
another employee who supported Local 1199. However, Molina’s
involvement in or awareness of the circumstances of Carraon’s dis-
charge after the election had no bearing on Basualto’s discharge before
the election since, as discussed, infra, I do not credit Gross’ alleged
rationale for terminating Basualto before she could vote. (Tr. 90, 186–
191, 261; R. Exh. 2–3.)
11 Basualto testified that she signed the card on February 26, while
Molina testified that she signed it at a July 16 meeting. As Molina’s
recollection of dates was somewhat sketchy, I adopted Basualto’s ver-
sion. (Tr. 54–55, 61, 105–107.)
12 Basualto and Moncaleano conceded that they never saw any su-
pervisors observe them engage in such activity. (Tr. 125, 141, 169.)
13 Although the Respondent challenged the extent of Basualto’s out-
reach to other employees, it is undisputed that she engaged in protected
concerted activity during the campaign period. The credible evidence
established that Basualto obtained at least 20 signed authorization cards
on behalf of Local 1199. (Tr. 55–62, 67–68, 70, 104–105, 136–138.)
14 There is no doubt that the Respondent, a nursing home, has secu-
rity cameras throughout the facility, including some or all of the areas
in which Basualto engaged in solicitation on behalf of Local 1199. By
her account, however, she was discreet when she spoke with other
employees about signing cards on behalf of Local 1199 and there was
no testimony or other evidence that supervisors observed her union
activities via security cameras or that her activities were recorded and
later reviewed by supervisors. (Tr. 61, 105–107, 135.)
15 Since Gross’ testimony about his inquiry as to Basualto’s union
preference constituted an admission against interest, I find it more
credible than Basualto’s denial that she had such a conversation with
him. (Tr. 196–197, 226–227, 245–246, 265–268.)
16 GC Exh. 2.
17 GC Exh. 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Director on March 26, 2008, setting the date for a secret-ballot
election on April 10. The appropriate collective-bargaining unit
was defined as:
All full-time and regular part time licensed practical nurses,
certified nursing assistants, housekeeping employees, dietary
employees, cooks, laundry aides, recreational aides, nurses
aides, and maintenance employees working at the Employer’s
65 North Sussex Street, Dover, New Jersey facility
EXCLUDING registered nurses, all other professional em-
ployees, guards and supervisors as defined in the Act.18
The Respondent, meanwhile, engaged in a hiring frenzy.
During the first week of March 2008, the Respondent hired
approximately 40 employees. However, only five were utilized
on a full-time basis: Julibell Balisi, Bernadette Deguiai, Antero
Isip, Miguel Nochebuena, and Baldwin Sarmiento. The remain-
ing 35 were utilized on a part-time basis. A portion of that
group consisted of 12 individuals who resided in or around
Lakewood and also worked at the Respondent’s Lakewood
business office.19 The Respondent placed them on its Dover
facility’s payroll in the newly created positions of unit assis-
tant/nursing assistant and social service assistant/nursing assis-
tant.20 These employees began spending an average of 1 day per
week at the Dover facility, but spent the rest of the week work-
ing at the Lakewood business office: Brocha Feder, Sarah
Freedman, Tzippy Fromovitz, Chaya Goldrab, Chaya
Horowitz, Rachel Mansbach, Leah Pomerantz, Jacqueline Blatt,
Raizy Neiman, Zissi Obstfeld, Chaya Schiff, and Miriam
Tress.21
The remaining 23 newly hired part-time individuals were
spread out over four departments. Ernesto Bravo, Itzhak Dahan,
Jeffrey Gomez, Victor Reyes, and Eduardo Sanchez were de-
signed as housekeeping department employees. Maryleth Bre-
scia, Ashley Casale, Blanca Ibarra, Jennifer Ibarra, Yulie Lepar,
Aliza Schwab, Joseph Sibug, and Carlito St. Maria were desig-
nated as recreation department employees. Victor Arriaga, Mi-
guel Gomez, Luis Martinez, Francisco Perez, Jorge Reyes,
Miguel Reyes, Manual Rojas, Omar Valdez, and Roman Zavala
were designated as maintenance department employees. Fi-
nally, Valente Lopez was designated as a dietary department
employee.22
Five of the newly hired employees were relatives of Martin
Reyes, the housekeeping director: Victor Reyes, who also
worked at another of the Respondent’s facilities, and Miguel

18 GC Exh. 4.
19 The Respondent offered no explanation as to why these employ-
ees would travel such a distance from their homes in order to work at
the Dover facility 1 day a week. (Local 1199 Exhs. 3A–3B.)
20 The Respondent’s payroll records for 2006 through February 2008
did not list any employees in these positions. (Local 1199 Exhs. 14,
15A–15C.) Nor was there any mention of such positions in any prior
collective-bargaining agreement or by the Respondent when transmit-
ting union dues. (GC Exh. 9; Local 1199 Exhs. 7, 8A.)
21 While these business office-based employees would have been, in
accordance with the Respondent’s practice, designated on the payroll of
one of the four nursing facilities, they had not been previously placed
on the Regency Grande payroll. (Tr. 466–472; Local 1199 Exhs. 3A–
3B, 5, 17.)
22 Local 1199 Exhs. 19EE, 19FF, 20CC.
Reyes (brothers); Miguel Nochebuena23 and Jorge Reyes (neph-
ews); and Manuel Rojas (cousin). In addition, Roman Zavala is
a close friend of Martin Reyes and listed him as the only refer-
ence on his employment application.24
The employment applications filled out by the 30 challenged
employees and the 6 other newly hired part timers indicate that
their hiring was rushed in order to augment existing staff and be
included in the bargaining unit. Many of these employees sub-
mitted incomplete information on the employment application,
such as the date or position sought and failed to sign or date
other legally required personnel forms and policies.25
During the period of March 1 through April 19, the 35 newly
hired part timers worked an average of 5.7 hours per week. By
comparison, the 45 previously hired part timers worked an
average of 20.8 hours per week during the period of January 1
to March 31.26 In addition to the low number of hours worked
by the newly hired part-time employees, many of their names
did not appear on their designated department’s work schedules
generated and kept in the regular course of the business of their
designated departments. Nor did these employees perform work
in their designated departments as reflected in the Respondent’s
payroll records. Specifically, the nursing department’s daily
sign-in sheets from April 7 through July 10, omitted the names
of the 12 persons hired for the newly created positions of unit,
nursing, or social service assistants.27 The housekeeping work
schedules for March and April 2008 did not list the names of
that department’s five newest employees.28 The March 2008

23 Nochebuena is the only new full-time employee whose ballot was
challenged. However, it is undisputed that he performed bargaining unit
work as a housekeeper during the period at issue. (Tr. 336, 352, 389.)
24 Although Reyes’ relationship to six of the newly hired employees
was not refuted, their hiring circumstances could just as easily be at-
tributed to nepotism as it could to packing a bargaining unit. (Tr. 337,
415; Local 1199 Exhs. 18Y–AA and 19JJ.)
25 The Respondent failed to introduce any evidence to demonstrate
that such shoddy hiring records were typical of its personnel records.
(Local 1199 Exh. 18A, B, D, E, F, G, H, I, J, K, M, N, O, P, Q, R, S, T,
W, Y, Z, AA, BB, CC, DD, EE, FF, GG, HH, II, JJ.
26 The payroll records indicate that the Respondent’s full-time em-
ployees historically have worked an average of 35–40 hours per week,
while part-timers have averaged 19–20 hours of work per week. Ac-
cordingly, I agree with Local 1199’s contention, at p. 6 of its brief, that
employees who averaged 35 or more hours of total compensation per
week were full-time, while those with less than 35 hours per week
should be considered part-time employees. Local 1199 Exhs. 15C at 13,
20–21, 30, 41, 53, 60–61, 68–70, 78, 80–81, 88, 92, 96, 98, 121, 127,
129–130, 137, 144, 156, 158, 163, 172, 175; Local 1199 Exhs. 19 at A,
B, T, V, X, DD, EE, FF, HH.
27 I did not give any weight to testimony that these employees all
dressed in black skirts and long-sleeved light blouses, as there was no
evidence of a dress code for working at the facility. Also, the fact that
these employees, as “unit assistants,” were seen watching videos or
sitting at times in a conference room is less relevant than the credible
and unrefuted testimony of Carlos Balbuena, Lino Navarro, Basualto,
and Norma Harvey, and corroborated by the daily sign-in sheets, that
they never performed work in the nursing or social service areas. (Tr.
319–322, 341–342, 381–385, 423–429; Local 1199 Exhs. 15C at 53,
60–61, 68, 78, 96, 19B, T, V, DD, HH.)
28 The unrefuted and credible testimony of housekeeping employees
Aida Basualto, Nestor Pavez, and Javier Arias that none of these em-
ployees performed housekeeping work was corroborated by their de-
REGENCY GRANDE NURSING & REHABILITATION CENTER 7
recreation department schedule omitted any reference to that
department’s eight newly hired employees.29 The nine desig-
nated maintenance department employees did not perform work
in that department.30 Lastly, the newly hired dietary employee
did no work in the dietary department.31
D. March 4 Interrogation and Surveillance
Basualto maintained a low profile regarding her preferences
regarding a labor representative for bargaining unit employees
until March 2008.32 On or about March 3, however, Basualto
and four other housekeeping employees, Manuela Figueroa,
Adela Moncaleano, Marcello Baubuena, and Elvira Garcia, met
Molina to discuss the union campaign on the sidewalk near the
rear exit of the Dover facility. During the discussion, one of the
employees handed Molina an authorization card. At that point,
Basualto invited everyone to her home to continue the conver-
sation. Everyone in the group, except for Garcia, accepted
Basualto’s offer and they went there to continue the conversa-
tion for an additional 20–25 minutes.33
Basualto’s home and driveway, which are located only two
buildings away from the Dover facility, cannot be directly
viewed from inside the Dover facility. However, the group
discussion was observed by two of the Respondent’s supervi-
sors, Kathy Snyder, the kitchen director, and Martin Reyes.
Basualto spotted Snyder looking at the group through the facil-
ity’s dining room windows.
34[34]
The encounter outside of the
facility was also observed by Martin Reyes, the Respondent’s
housekeeping director, who asked Figueroa the next day in the
Dover facility basement area why she had gone to Basualto’s
home. Figueroa responded with a question as to why he was
asking. Reyes did not respond and left. Moncaleano was pre-
sent during this conversation.35

partmental work schedules. (Tr. 336, 351–352, 386–389; Local 1199
Exhs. 9, 15C at 20, 41, 69, 130, 144.)
29 The unrefuted and credible testimony of recreation employee
Ofelia Espina that these eight individuals did not work in the recreation
department was corroborated by that department’s schedule. (Tr. 413–
415; Local 1199 Exhs. 10, 15C at 21, 30, 80–81, 88, 156, and 19EE–
19FF.)
30 The unrefuted and credible testimony of maintenance employee
Lino Navarro that these nine individuals did not work in the mainte-
nance department was corroborated by the Respondent’s failure to
produce work schedules or sign-in sheets documenting their shifts. (Tr.
344–345; Local 1199 Exhs. 15C at 70, 98, 121, 127, 129, 137, 163,
175, and 19A.)
31 The unrefuted and credible testimony of dietary employees Rita
Noel and Barbara Hunter, that they never saw Lopez perform work in
their department, is corroborated by the Respondent’s failure to pro-
duce subpoenaed records showing Lopez on that department’s work
schedule or sign-in sheet. (Tr. 397–398, 406; Local 1199 Exh. 15C at
92.)
32 I found Basualto’s testimony on this point, as corroborated by
Moncaleano, to be quite credible. (Tr. 167–168.)
33 The credible testimony of Molina and Basualto regarding this
event was not refuted. (Tr. 62–65, 107–109, 128, 143.)
34 Basualto’s credible testimony as to Synder’s observation of the
group discussion was not refuted. (Tr. 108.)
35 Reyes’ seemingly plausible explanation as to his motivation in
asking the question—a previously cool relationship between Basualto
and Figueroa—was undermined by his hedging response that he could
Also on March 4, Joseph Olszewski, the Respondent’s ad-
ministrator, held the first of two March meetings that he had
with housekeeping employees to discuss “Health Insurance,
Benefits and Union.” There were eight or nine people at the
first meeting. Maria Torres, the facility’s receptionist, trans-
lated into Spanish and English. During the meeting, Basualto
complained about Reyes’ questioning of Figueroa earlier that
day. The minutes kept of the meeting reflected Basualto’s com-
plaint, but did not mention her by name:
An employee brought up that her Supervisor told her cowork-
ers not to go to her house to meet with members from Union
1199 (she offered her house due to weather condition). Mr.
Olszewski stated that anyone after hours can do what they
want on his/her own time and it is not of any Dept Head busi-
ness. If anyone has anyone has any problems regarding this
please let Administrator know.
The minutes also reflect that Olszewski told employees that
he had not yet met with Gross and “[did] not know what bene-
fits are still in place as there is no contract at this time.”36 After
the meeting, Olszewski discussed the matters raised at the
meeting, including Basualto’s comments, with Gross.37
Olszewski met again with housekeeping staff in or around
mid-March. Torres again acted as a Spanish translator. About
the same number of people attended. This time, however,
Reyes was also present. Olszewski assured the employees they
had a right to support whichever union they wished. He also
reported that he spoke with Gross, who told him that employees
would continue to receive the same benefits that they had re-
ceived when Local 300S had represented them. Basualto then
spoke up and asked, “If Mr. Gross was such a good man and
giving us back all of these benefits, why would we need a un-
ion?” At that point, another employee, Nancy Silva, became
upset, slammed her hand on the table, and stated in Spanish,
“[then] why are you making us sign these cards for the union?”
While Silva’s comments were not translated by Torres to Ol-
szewski, Reyes, who is fluent in Spanish, did so.38
E. Activities by the Parties During the Week of the Election
On April 9, the day before the election, Olszewski met with
two dietary aides, including Barbara Hunter, and attempted to
convince them that Local 300S’ health insurance coverage was
superior to the one offered by Local 1199. On the same day, he
approached nursing employee Norma Harvey and told her that

not recall who else, including Molina, was also among the group. Fur-
thermore, given his failure to attribute his source of information to
another employee, I find that he derived it from personal observation.
(Tr. 161–165, 254–257.)
36 GC Exh. 10.
37 I do not credit Olszewski’s assertion that he did not tell Gross
about Basualto’s statements at the meeting, since he spoke to Gross
about the meeting and the remarks are contained in the minutes. (GC
Exh. 10; Tr. 109–110, 296–300.)
38 Silva’s remarks were not translated from Spanish to English and
Reyes denied telling Olszsewski about it. I did not find the denial of
Reyes, a supervisor with a stated hostility toward Local 1199, credible,
and find that he translated the comment for Olszewski. (Tr. 109–113,
116, 125, 142.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Local 1199’s union dues were higher than those charged by
Local 300S.39
In addition to supervisory support, Local 300S also enjoyed
support from certain employees. Prior to the election, Rohde
posted a flyer containing a copy of her pay stub in the Dover
facility. Rohde’s name, social security number, and department
had been crossed out on the pay stub, but the applicable pay
period, earnings, rate of pay, hours worked and the applicable
deductions were visible. Under the copy of the pay stub were
handwritten notations suggesting that Local 300S’ dues would
be cheaper than those for Local 1199:
If we have 1199 as our UNION my union dues this pay pe-
riod would be $1305.62 x $.02 = $26.11, Total for Jan. Feb.
and March $9,714.29 x $.02 = $194.28. If we still had 300S
my union dues this pay period would be $20.00, Total for Jan,
Feb, March $60.00. The more I make the more 1199 will
take!!
During the week of the election, Michelle Meikle, at Rohde’s
request, posted the flyer containing Rohde’s pay stub. She also
reposted the flyer several times after it was taken down. At one
point, Olszewski informed Meikle that she was seen posting the
notice and told her to stop doing that. He also disseminated
notification to employees in the facility that employee postings,
without administrator’s permission, were not permitted. At no
point, however, were either Rohde or Meikle disciplined by the
Respondent for having posted these notices.40
During the days leading up to the election, Olszewski told
Gross that Rohde and Meikle had been involved in posting the
notice and reposting it each time it was taken down. He also
informed Gross that Rohde and Meikle were informed of the
Respondent’s policy prohibiting employees from posting no-
tices in the facility and told not to do it again. Thus, Gross
could not reasonably have suspected Basualto of posting the
notice. Nor did he request that Olszewski speak with her about
it.41
F. The Election
Region 22 conducted a secret-ballot election for employees
included within the defined bargaining unit on April 10 from 6–
8:30 a.m. and from 2:30–4:30 p.m. There was a 3-page Excel-
sior list submitted containing 164 names.42 Approximately 172
employees were eligible to vote. Nestor Pavez, a second-shift

39 Olszewski was not called to refute the credible testimony of
Hunter and Harvey as to his stated preference for a labor representative.
(Tr. 401–403, 421–422.)
40 Meikle and Olszewski agreed that he learned about her posting the
notice and told her to stop. (Tr. 26–27, 29, 32, 38, 42–45, 220, 236,
294; GC Exh. 8(a).)
41 Gross’ testimony regarding the events leading up to the election
was similarly inconsistent, vague, and shifting as to whether Olszewski
did or did not tell him that Meikle admitted posting the notice. Nor did
he explain why Meikle was not disciplined after repeatedly posting the
notice after it was taken down in violation of the Respondent’s alleged
no-posting policy. Moreover, Olszewski never mentioned a belief that
Basualto posted the notice and, as such, I find that Gross had no reason
to suspect she posted the notice prior to the election. (Tr. 215–216, 222,
231.).
42 Excelsior Underwear, 156 NLRB 1236 (1966); GC Exh. 5.
employee, served as Local 1199 election’s representative.
Throughout the election, Pavez compared the names of voters
against a separate 2–3 page list containing the names of indi-
viduals whose votes Local 1199 sought to challenge.43
Twenty-eight votes were cast for Local 300S, 53 were cast
for Local 1199, 4 were cast against participating labor organi-
zations, and 1 ballot was ruled “void,” for a total of 85 valid
votes. Forty-three ballots were challenged. The total number of
votes, including those valid votes counted and the challenged
ballots, was 128. The challenges were ruled sufficient in num-
ber to affect the results of the election.44
Several incidents of note occurred during the morning of the
election. The first one involved Carraon, a CNA and well-
known Local 1199 supporter, and another employee, Valeria.
As they left the facility after voting at 7 a.m., Martin Reyes
approached them and asked Valeria which union she voted for.
Valeria responded, “The better one.” Reyes followed up by
asking her, “Is the 300S one the better one?” to which Valeria
answered, “Sure.”45
The second incident involved Basualto. Basualto, who origi-
nally agreed to serve as an observer on behalf of Local 1199
during the election, changed her mind and decided not to serve
in that capacity.46 That fact was certainly communicated to
Molina on April 9, as she parked her vehicle in Basualto’s
driveway and slept over during the evening of April 9.47 In any
event, as Basualto arrived to vote, she encountered Gross out-
side the facility. He told Basualto that, before voting, Ol-
szewski needed to speak with her about something important.
Gross then asked Basualto where she lived. Basualto pointed to
her house, which was visible from where they were standing.
Gross then asked Basualto if she knew anything about a piece

43 It was not disputed that the separate sheet maintained by the Local
1199 representative was visible to voters and contained only the names
of employees whom Local 1199 sought to challenge. (Local 1199 Exh.
2; Tr. 304–306, 308, 331–333.)
44 GC Exh. 6.
45 I base this finding on Carraon’s credible testimony, as Reyes was,
yet again, vague and hedging in attempting to recall whether he asked
any employee as to how they voted that morning. Nor do I credit his
attempt to bolster his vague assertion with the fact that the Respondent
issued a protocol to supervisors that they not speak to employees about
the election. (Tr. 117, 177, 180–184, 254; R. Exh. 2.)
46 I did not find credible Basualto’s vague explanation as to why she
changed her mind about serving as an election observer. Although she
was supposedly affected by the illness of an unspecified relative in her
country of origin, she still came into the facility that day. (Tr. 117.) As
such, I agree with the Respondent that this event supports the notion
that she was attempting to maintain a low profile at this point. More-
over, notwithstanding the fact that Molina always drove the same vehi-
cle to the facility, there is no credible testimony to indicate that any of
the Respondent’s supervisors were aware that Molina parked in Basu-
alto’s driveway. (Tr. 58.)
47 I was not persuaded by the Respondent’s contention that Molina
could not have parked her vehicle in the driveway of Basualto’s home
simply because only one vehicle could enter at a time and it would have
blocked other vehicles from entering the driveway. (Tr. 144.) On the
other hand, there was insufficient proof to refute Gross’ testimony that
he was unaware of the type and model of Molina’s vehicle, and the fact
that she parked in Basualto’s driveway the night before the election.
(Tr. 201–202.)
REGENCY GRANDE NURSING & REHABILITATION CENTER 9
of paper that had been posted in the dining room. Basualto said
she knew about the paper that he was referring to, but denied
posting it. Gross then accused Basualto of being the one who
posted the notice in the dining room and proclaimed, “that’s the
reason I don’t want you at Regency Grande.” 48 At no point
during this conversation did Gross explain to Basualto why he
believed that she posted the notice, even though the information
on the pay stub did not pertain to her, nor was there any evi-
dence that Basualto had been a Local 300S supporter at any
time during 2008.49
Gross’ termination of Basualto as she arrived to vote was not
premised on a legitimate belief that she posted the notice in the
dining room. First, Gross spoke to Olszewski earlier that day
and was told that Meikle and Rohde, not Basualto, had been
involved in posting the notices in the dining room.50 Second,
while Rohde was on leave during the week of the election, he
never considered any of the three other employees on Local
300S’ negotiating committee who were around that week.51
Third, Gross was aware of Basualto’s remarks about her activ-
ity on behalf of Local 1199 during the March 5 meeting with
Olszewski. Fourth, Basualto told Gross, during a March con-
versation, that she was not supporting a particular union and
wanted to maintain a “low profile” during the campaign. Fifth,
Gross did not check to see if the pay stub contained Basualto’s
personal information or was in her handwriting.52 Lastly, Gross
did not have a legitimate belief that Basualto posed a threat to
the election process that was already underway.53

48 I was not impressed by the Respondent’s attempt to bolster its de-
nial of discriminatory motivation against Basualto by noting that she,
unlike Carraon, a known Local 1199 supporter, was discharged prior to
the election. Carraon was accused of blocking a security camera, some-
thing that is clearly more serious than posting a flyer in an employee
dining room. (Tr. 193–195, 201.)
49 The Respondent’s suggestion that Basualto might, in fact, have
posted the notice, defies logic, since the information on the flyer con-
veyed arguments in favor of Local 300S, while Basualto was, at that
point, supporting Local 1199. While I did not find Basualto entirely
convincing as to the exact timeframe in 2007 when she ceased shop
stewarding activities on behalf of Local 300S, no evidence was offered
to refute her assertion that she stopped handling grievances on behalf of
Local 300S prior to the second agreement between the Respondent and
Local 300S in mid-December 2007. (Tr. 118–120, 133–134, 136, 144–
148, 196–200, 215–216, 235–236, 294.)
50 Gross conceded speaking with Olszewski that morning, who in-
formed him that Meikle and Rhode, and not Basualto, had been in-
volved in posting the notice. (Tr. 210–211, 215–218.)
51 Gross admitted that Rhode or Basualto were not the only employ-
ees who previously supported Local 300S. (GC Exh. 6; Tr. 237.)
52 Since there was enough information visible on the pay stub to in-
dicate that it did not contain Basualto’s payroll information, it is even
more incredible that Gross would have been more concerned about
enforcing a notice posting policy than with the public disclosure of
another employer’s confidential information. (Tr. 199–200, 212–213,
241–243.)
53 I was not impressed by the Respondent’s contention that Carraon,
in contrast to Basualto, was not discharged prior to the election because
she was a known Local 1199 supporter and the Respondent wanted to
avoid an unlawful discharge claim. If in fact, Gross legitimately be-
lieved that Basualto posted the notice as a Local 300S supporter, then
the same rationale for avoiding the filing of a charge would have ap-
After being terminated, Basualto entered the building and
went to see Olszewski in his office. Pam Alvarez, the director
of nursing, was also present. While crying, Basualto informed
Olszewski that Gross terminated her for posting the flyer. Ol-
szewski responded he knew what happened and that Gross
made a mistake. He assured Basualto that he would speak to
Gross, directed her to go home, and she would be compensated
for her loss of employment. Basualto complied and went
home.54
During the afternoon voting session, the 12 newly hired unit
assistants for the nursing department arrived in the facility’s
parking lot. They met there with Gross before entering the fa-
cility as a group to vote. At the poll, their votes were chal-
lenged by Local 1199’s observer. After voting, they spoke with
Gross again in the parking lot before leaving. These 12 em-
ployees never returned to the facility again after that day.55
G. The Regional Director’s Report on the Election
The Respondent, Local 1199, and Local 300S all filed timely
objections to the election. The Regional Director subsequently
conducted a preliminary investigation of the determinative
challenged ballots and objections pursuant to Section 102.69 of
the Board’s Rules and Regulations. On July 3, she reported and
found that the determinative challenged ballots and certain
objections raised substantial and material factual issues requir-
ing a hearing, as follows:
1. The challenged ballots
There were 43 challenged ballots, 12 of which were chal-
lenged by the presiding Board’s agent because the names of the
individuals did not appear on the voter eligibility list submitted
by the Respondent: Christopher Lorenzo, William Escobar,
Joseph Sibug, Diosa Oleta, Helen Temple, Rachel Mansbach,
Sarah Freedman, Juanita Pasion, Eliseo Alino, Rosaida Orta-
nez, Rose Marie Vega, and Victor Arriaga.
Local 1199 and Local 300S challenged the ballots of numer-
ous individuals on the ground that they were not employed in
the stipulated appropriate collective-bargaining unit. Local
1199 challenged the ballots of 19 individuals: Blatt, Goldgrab,
Pomeranz, Obstfeld, Neiman, Schiff, Tress, Feder, Horowitz,
Mansbach, Freedman, Fromovitz, Victor Reyes, Miguel Reyes,
Carole Gardner, Manuel Rojas, Nochebuena, Filomena Las-
cano, and Pasion.56 Local 300S challenged the ballots of five
individuals: Luis Martinez, Roman Zavala, Ana Fereira, Carlito
St. Maria, and Nidea Bustamante. In addition, both Local 1199
and Local 300S challenged the ballots of nine individuals: Mi-
guel Gomez, Jeffrey Gomez, Jorge Reyes, Ernesto Bravo, Itz-
hak Dahan, Valente Lopez, Francisco Perez, Eduardo Sanchez,

plied and he would have waited until after the election to discharge her.
(Tr. 193–195, 199, 200–201, 230.)
54 Basualto’s version of this conversation was not disputed. (Tr.
121–123.)
55 This finding is based in the credible and unrefuted testimony of
Basualto, Carlos Balbuena, Nestor Pavez, Linda Navarrro, Javier Arias,
and Barbara Hunter, and further corroborated by the challenged voter
list, which indicates that nine of them voted consecutively, while the
remaining three were not far behind on the line. (GC Exh. 7; Tr. 324–
325, 334–336, 343–344, 350–351, 381, 385, 396–397, 403–405, 410.)
56 GC Exh. 4.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
and Aliza Schwab. Lastly, the Respondent challenged the ballot
of Aida Basualto on the ground that she was discharged prior to
the election and, therefore, was no longer employed by the
Respondent on the date of the election.
2. The objections
Local 1199 objected to the election on the grounds that the
Respondent: (1) allegedly employed and included on the Excel-
sior list individuals not eligible to vote; and (2) packed and
otherwise manipulated the unit in order to dilute Local 1199’s
strength and prevent it from winning the election. The Respon-
dent objected on the grounds that: (1) the “void” ballot should
be counted for Local 300S; and (2) Local 1199’s election ob-
server had an unauthorized election voter list that was visible to
workers, who had to wait for clearance by Local 1199 before
voting.57 Local 300S objected on the ground that the Respon-
dent interfered with the election by terminating Basualto.
Legal Analysis and Discussion
1. Unfair labor practices
a. Basualto’s discharge on April 10
The complaint alleges that the Respondent discharged Basu-
alto on April 10 because she engaged in protected concerted
activity on behalf of Local 1199. The Respondent disputes that
and asserts Basualto was discharged because it reasonably be-
lieved that she violated its policy prohibiting the posting of
flyers by employees.
Section 8(a)(3) provides, in pertinent part, that it is “an un-
fair labor practice for an employer to discriminate in regard to
hire or tenure of employment or any term or condition of em-
ployment to encourage or discourage membership in any labor
organization.” Under Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), the General Counsel must establish that an employee
engaged in protected concerted activity, the employer was
aware of that activity, and the activity was a substantial or mo-
tivating reason for the employer’s action. See also Naomi Knit-
ting Plant, 328 NLRB 1279, 1281 (1999). If the General Coun-
sel establishes its prima facie case, the burden of persuasion
shifts to the employer to “demonstrate that the same action
would have taken place even in the absence of the protected
conduct.” Septix Waste, Inc., 346 NLRB 494 (2006). Simply
presenting a legitimate reason for its actions is not enough.
Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 966 (2004);
T&J Trucking Co., 316 NLRB 771, 771 (1995); GSX Corp. v.
NLRB, 918 F.2d 1351 (8th Cir. 1990).
Basualto engaged in protected concerted activity at various
points in 2007 and during the month and a half period prior to
the April 10 election. She signed an authorization card in sup-
port of Local 1199 on February 23, distributed authorization
cards to other employees, and returned them signed to Local
1199 representatives. Basualto also met with Molina, Local

57 The Regional Director, at p. 6 of her report, found the Respon-
dent’s objections based on the alleged failure of voters to vote because
the election did not start on time and voter intimidation were not sup-
ported by evidence and, thus, failed to raise substantial and material
issues affecting the election results.
1199’s representative, and other employees on March 3 to dis-
cuss the campaign just outside the facility and then hosted a
continued meeting of the group at her home nearby.
The element of knowledge on the part of the Respondent was
also established. There was no proof that Basualto’s union-
related activity was observed by Gross or other interested su-
pervisors on the facility’s surveillance cameras. One would
reasonably expect that surveillance cameras in a nursing home
are deployed for the protection of its residents and, in fact, are
used for that purpose alone. To suggest that surveillance cam-
eras were utilized for other purposes, in the absence of further
proof, would be pure speculation. However, it was not disputed
that Martin Reyes, the housekeeping director and Basualto’s
supervisor, observed or at least learned of, Basualto’s meeting
with Molina and other employees outside the facility and at her
home. In addition, Olszewski, the facility administrator, and
Martin Reyes heard Basualto complain during a staff meeting
about supervisory harassment of employees who engaged in
union-related discussions at her home. Such information on the
part of these supervisors is appropriately imputed to the Re-
spondent and its actively-involved owner, Gross. State Plaza,
Inc., 347 NLRB 755, 756 (2006); See Dobbs International
Services, 335 NLRB 972, 973 (2001); Springfield Air Center,
311 NLRB 1151 (1993).
The Respondent’s discriminatory motivation in discharging
Basualto can be traced historically to Gross’ favoritism of Lo-
cal 300S as the facility’s collective-bargaining unit representa-
tive. See Regency Grande Nursing & Rehabilitation Center,
347 NLRB 1143, 1151. (2006). Olszewski, as the Respondent’s
agent, reinforced the Respondent’s preference for Local 300S
by his statements to employees shortly before the representa-
tion election. Reyes did the same by his interrogation of em-
ployees on March 4 and April 10. More importantly, Gross’
rationale for discharging Basualto—because she posted a flyer
containing a copy of an employee’s pay stub—was contradicted
by all of the credible facts. Olszewksi and, thus, Gross knew
prior to the election on April 10 that Rohde and/or Miekle, not
Basualto, posted the flyer in the facility. Rohde was a known
supporter of Local 300S, Gross’ preferred union; Miekle was
her domestic partner. Rather than investigate the facts, how-
ever, Gross chose to confront Basualto outside the facility as
she arrived to vote, asked where her house was, and discharged
her. His purported rationale was that Basualto, a past supporter
of Local 300S, must have posted it. As previously explained,
however, there is no credible evidence indicated that Basualto
engaged in activities supportive of Local 300S for at least many
months. To the contrary, the evidence showed that Gross’ su-
pervisory staff knew of Basualto’s statements supporting Local
1199. The suspicious timing of Gross’ action, coupled with his
assertion of a pretextual reason for Basualto’s discharge,
strongly supports an inference of discriminatory motivation.
State Plaza, Inc., supra at 757. Accord: In re Campbell Electric
Co., Inc., 340 NLRB 825, 841-842 (2003).
Since the General Counsel established a prima facie case, the
burden of persuasion shifted to the Respondent to prove, by a
preponderance of the evidence, that it would have discharged
Basualto even in the absence of her union activity. Monroe
Mfg., 323 NLRB 24 (1997). To meet its burden of persuasion,
REGENCY GRANDE NURSING & REHABILITATION CENTER 11
the Respondent was required to do more than show that it had a
legitimate reason for its actions. Hicks Oils & Hicksgas, 293
NLRB 84, 85 (1989), enfd. 942 F.2d 1140 (7th Cir. 1991). It
did not do so. Even the most cursory type of investigation
would have revealed that Basualto did not post the flyer. Fur-
thermore, the Respondent asserted the existence of a policy
prohibiting employees from posting flyers without permission,
but took no disciplinary action against Miekle even after learn-
ing that she repeatedly posted the flyers. Based on the forego-
ing, I find that the Respondent violated Section 8(a)(3) and (1)
by discharging Basualto because she engaged in support of
Local 1199.
b. Reyes’ interrogation of employees on March 4 and April 10
The complaint also alleged that Martin Reyes, about March 4
and April 10, interrogated employees about their union mem-
bership, sympathies, and/or activities and created an impression
among its employees on March 4 that their union activities
were under surveillance by the Respondent. The Respondent
concedes that Reyes made the statements at issue but contends
that neither was motivated by antiunion animus against Local
1199.
Under Rossmore House, 269 NLRB 1176, 1177 (1984), the
Board set forth the test for evaluating whether interrogations
violate the Act, namely “whether under all of the circumstances
the interrogation reasonably tends to restrain, coerce, or inter-
fere with the rights guaranteed by the Act.” Factors considered
to be considered in analyzing alleged interrogations were the
background, the nature of the information sought, the identity
of the questioner, and the place and method of interrogation. In
evaluating whether a statement also unlawfully creates an im-
pression of surveillance, the test is “whether the employee
would reasonably assume from the statement that their union
activities had been placed under surveillance.” Register Guard,
344 NLRB 1142, 1145 (2005), and Flexsteel Industries, 311
NLRB 257 (1993). On the other hand, the Board has held that
such a statement would not unlawfully create an impression of
surveillance where the supervisor made clear that he learned of
the subject’s activity from another employee and not as the
result of employer surveillance. Park ‘N Fly, Inc., 349 NLRB
132, 133 (2007).
Martin Reyes, the housekeeping supervisor, interrogated
employees on two occasions. On March 4, he questioned Figue-
roa, a housekeeping aide, at work as to why she had been in
Basualto’s home the day before with a union organizer and
other employees. He gave no indication that he obtained such
information from another employee and, as such, Figueroa
would reasonably assume that he obtained it through personal
observation. On April 10, as another employee, Valeria, left the
facility after voting, Reyes approached and asked her which
union she voted for. She responded with a vague answer, but he
persisted by asking if she voted for Local 300S and she pla-
cated him by saying “sure.” There was no evidence that either
conversation was of a casual nature.
Given the history of the Respondent’s professed preference
for Local 300S as its employees’ collective-bargaining repre-
sentative, both of the aforementioned statements could rea-
sonably be seen as hostile towards anyone engaging in activity
on behalf of Local 1199. As such, they also amounted to unlaw-
ful inquiries as to employees’ attitudes about the union. Pleas-
ant Manor Living Center, 324 NLRB 368 (1997). In addition,
Reyes’ questioning of Figueroa on March 4 would have caused
her to reasonably assume that her union activities had been
placed under surveillance. Under the circumstances, the Re-
spondent engaged in unlawful interrogation and created the
impression of surveillance in violation of Section 8(a)(1). See
United Charter Service, 306 NLRB 150, 151 (1992).
2. The representation election
a. The challenges
The parties stipulated during the hearing that the challenged
ballots of the following four individuals were eligible voters
and their votes should be counted: Carole Gardner, Filomena
Lascano, Juanito Pasion, and Nidea Bustamente. The parties
also stipulated that the challenges to the ballots of eight indi-
viduals should be sustained, their ballots should remain un-
opened and not counted: Christopher Lorenzo, William
Escobar, Diosa Oleta, Helen Temple, Eliseo Alino, Rosario
Ortanez, Rose Marie Vega, and Ana Fereira. In addition, Local
300S withdrew its challenges to the ballots of 12 individuals:
Luis Martinez, Roman Zavala, Carlito St. Maria, Miguel Go-
mez, Jeffrey Gomez, Jorge Reyes, Ernesto Bravo, Itzhak Da-
han, Valente Lopez, Francisco Perez, Eduardo Sanchez, and
Aliza Schwab.58
Challenges remain to the ballots of 31 individuals. The
Board agent challenged the ballots of Victor Arriaga and Jo-
seph Sibug on the ground that their names did not appear on the
Excelsior list. Local 1199 challenged the ballots of 25 individu-
als on the ground that they were not employed in the stipulated
appropriate collective-bargaining unit: Blatt, Goldgrab, Pomer-
anz, Obstfeld, Neiman, Schiff, Tress, Feder, Horowitz, Mans-
bach, Freedman, Fromovitz, Victor Reyes, Miguel Reyes,
Manuel Rojas, Nochebuena, Miguel Gomez, Jeffrey Gomez,
Jorge Reyes, Ernesto Bravo, Itzhak Dahan, Valente Lopez,
Francisco Perez, Eduardo Sanchez, and Aliza Schwab. It also
asserts a continuation of Local 300S’ now withdrawn chal-
lenges to the ballots of Luis Martinez, Roman Zavala, and Car-
lito St. Maria. The Respondent challenged Basualto on the
ground that she was discharged prior to the election and, there-
fore, was not eligible to vote.
Local 1199 contends that the Respondent unlawfully packed
the bargaining unit prior to the election. An employer violates
Section 8(a)(1) when it hires a substantial number of new em-
ployees prior to a representation election for the purpose of
diluting the union’s strength. Sam’s Club, 349 NLRB 1007,
1021 (2007), citing Sonoma and Spa, 322 NLRB 898 (1977).
On the other hand, there would be no violation where the Re-
spondent establishes a legitimate business reason for hiring the
new employees. D & E Electric, Inc., 331 NLRB 1037, 1040
(2000).
The unfair labor practice portion of this decision, as well as
prior Board decisions, recites the longstanding animus by the
Respondent against Local 1199. The personnel records gener-

58 The Respondent did not object to this stipulation between Locals
300S and 1199. (Tr. 315–316.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
ated by and on behalf of the 30 employees challenged by the
Board agent and Local 1199 were substantially incomplete. The
new employees’ files lacked legally-required personnel forms
or were missing significant information and, as such, and were
strongly indicative of a sham hiring operation. Except for No-
chebuena, who worked full-time, the newly hired part timers
worked an average of 5.7 hours per week, well below the aver-
age numbers of hours historically worked per week by part
timers. Moreover, most of their names did not appear on their
designated department’s work schedules and they did not per-
form any meaningful work in their designated departments.
Except for Basualto, none of the challenged employees testi-
fied. Most significantly, however, the hiring wave came during
the month prior to the election and was extremely atypical of
the Respondent’s historical hiring practices. This was a classic
case of unlawfully packing the bargaining unit. See, Airborne
Freight Corp., 263 NLRB 1376, 1378 (1982) (employer found
to have unlawfully packed unit where “[a]t no time in the pre-
vious 3 years of the [facility’s] history were so many new em-
ployees added to the operations unit in so brief period of
time”).
Feder, Freedman, Fromovitz, Goldrab, Horowitz, Mansbach,
Pomerantz, Blatt, Neiman, Obstfeld, Schiff, and Tress were
listed on the payroll in the newly created positions of unit assis-
tant/nursing assistant or social service assistant/nursing assis-
tant. There was no business justification offered as to why the
Respondent suddenly created these new positions. These 12
employees were actually regular employees at the Respondent’s
business office in Lakewood and spent most of their week
working there. Nor was an explanation offered as to why these
employees suddenly needed to be deployed, the month before
the election, for an average of approximately 1 day a week at a
location so far from their residences. Credible witnesses testi-
fied that none of their names appeared in the nursing daily sign-
in sheets and they did no appreciable work in that department.
Accordingly, I find that Local 1199’s challenge to the ballots of
these 12 individuals should be sustained and recommend that
their ballots not be counted: Feder, Freedman, Fromovitz,
Goldrab, Horowitz, Mansbach, Pomerantz, Blatt, Neiman,
Obstfeld, Schiff, and Tress.
Similarly, the Respondent did not offer a business justifica-
tion for the sudden need to hire the remaining employees chal-
lenged by the Board agent and/or Local 1199. The credible and
unrefuted testimony established that, of the remaining 18 em-
ployees, only Nochebuena performed work in his designated
department as a housekeeping aide. Notwithstanding the fact
that he was related to the housekeeping director, his work ap-
peared legitimate and his vote should be counted. The remain-
ing 17 employees did not, however, appear on departmental
work schedules or daily sign-in sheets and performed no work
in their designated departments: Ernesto Bravo, Itzhak Dahan,
Jeffrey Gomez, Victor Reyes, and Eduardo Sanchez (house-
keeping department); Schwab, Sibug, and Carlito St. Maria
(recreation department); Arriaga, Miguel Gomez, Luis Marti-
nez, Francisco Perez, Jorge Reyes, Miguel Reyes, Manual
Rojas, and Zavala (maintenance department); and Valente Lo-
pez (dietary department). Accordingly, I find that Nichebuena’s
ballot was not properly challenged and recommend that his
ballot be opened and counted if it is determinative of the elec-
tion results. However, I find that the challenges by the Board
agent and Local 1199 should be sustained as to the ballots of
the following 17 individuals and recommend that their ballots
not be counted: Bravo, Dahan, Gomez, Victor Reyes, Sanchez,
Schwab, Sibug, St. Maria, Arriaga, Miguel Gomez, Martinez,
Perez, Jorge Reyes, Miguel Reyes, Rojas, Zavala, and Lopez.
Lastly, the Respondent challenged the ballot of Aida Basu-
alto on the ground that she was discharged prior to the election
and, therefore, was no longer employed by the Respondent on
the date of the election. As previously discussed, the Respon-
dent unlawfully discharged because she engaged in concerted
activity protected under the Act. Since her discharge was effec-
tively null and void, Basualto was still an employee and her
ballot should be counted.
In summary, I find only the ballots of Gardner, Lascano,
Pasion, Bustamente, and Nochebuena should be counted. It is
noted, however, that the tally of ballots shows that 28 votes
were cast for Local 300S and 53 votes were cast for Local
1199. Since the ballots of these five individuals cannot be de-
terminative of the outcome of the election, I recommend that
results remain unchanged and no additional ballots be counted.
b. The objections
The proponent of an election objection has the burden of
proving that the conduct complained of had the tendency to
interfere with the employees’ freedom of choice. Double J.
Services, 347 NLRB No. 58, slip op. at 1–2 (2006) (not re-
ported in bound volume). That burden is a heavy one because
there is a strong presumption that ballots cast under Board rules
and supervision reflect the true desires of the electorate. See
Safeway, Inc., 338 NLRB 525 (2002), and cases there cited. At
the conclusion of the hearing, Local 1199 withdrew its objec-
tions on the ground that the stated reasons—packing the voting
unit and adding ineligible employees to the Excelsior list—
were subsumed by its challenges to the ballots of the 30 indi-
viduals discussed above. The Respondent and Local 300S,
however, litigated their objections.
The Respondent first objection seeks to have a ballot ruled
“void” by the Board agent counted in favor of Local 300S. The
Board agent’s ruling was premised on the ground that the intent
of the voter, who marked all three choices on the ballot, was
ambiguous. I disagree. The ballot at issue contains consecutive
entries in its three designated boxes as follows: 3-0-0. Although
marked in an irregular manner, the voter’s intent is unambigu-
ously expressed as a preference for Local 300S. See Daimler-
Chrysler Corp., 338 NLRB 982 (2003). To rely on strict adher-
ence to form as the indicator of voter intent, when in fact, the
voter’s preference can be gleaned from the ballot, would ignore
the Board’s longstanding policy of effectuating voter intent
whenever possible. See Hydro Conduit Corp., 260 NLRB 1352
(1982). Accordingly, the Board agent’s voiding of that ballot
should be overruled. However, while the ballot would be
counted as a vote in favor of Local 300S, it cannot be determi-
native of the outcome and I recommend it not be counted and
the Tally of Ballots remained unchanged.
The Respondent’s other objection alleges that Pavez, Local
1199’s election observer had an unauthorized voter list that was
REGENCY GRANDE NURSING & REHABILITATION CENTER 13
visible to voters, who had to wait for clearance by Local 1199
before voting. Although visible to employees seeking to vote,
the challenge list was limited to the names of those individuals
whom Local 1199 intended to challenge and was only used for
that purpose. Local 1199’s use of a voter challenge list was not
improper. See Mead Southern Wood Products, 337 NLRB 497,
498 (2002). To the contrary, denying a party to maintain a voter
challenge list is tantamount to depriving it of the opportunity to
challenge ballots. Bear Creek Orchards, 90 NLRB 286, 287
(1950). In this instance, Pavez, a second-shift employee, was
faced with the responsibility of determining eligible voters
among the 164 names on the Excelsior list, many of whom
were new or worked on other shifts. More importantly, there
was no evidence that Pavez made any marks on the challenge
list and attempted to track who voted or did not vote. Accord-
ingly, this objection should be overruled.
Local 300S objected to the election on the ground that the
Respondent interfered with the election by terminating Basu-
alto. This objection fails for two reasons. First, the record is
devoid of any evidence that Basualto supported Local 300S. To
the contrary, as discussed above, Basualto revealed her prefer-
ence for Local 1199 during the weeks leading to the election
and her discharge by Gross on the ground that she was a Local
300S was pretextual. Gross, preferring Local 300S, became
aware of Basualto’s involvement with Local 1199 and dis-
charged her before she could vote on April 10. Second, Basu-
alto’s discharge occurred suddenly and, aside from her going to
meet with Olszewski about it, there is no evidence that news of
the discharge spread to any other employees before they voted
that day. Accordingly, this objection is also overruled.
Based on the foregoing, I conclude that the Respondent’s
third objection and Local 300S’ objection do not have merit
and recommend that those objections be overruled in their en-
tirety. Moreover, while I also conclude that the Respondent’s
first objection has merit and the voided ballot would otherwise
be counted in favor of Local 300S, I conclude that it does not
constitute conduct that warrants setting aside the election. Ac-
cordingly, Cases 22–RC–12889 and 22–RC–12895 are severed
from Cases 22–CA–28331 and 22–CA–28384 and are re-
manded to the Regional Director for Region 22 to process the
matter in accordance with this recommended Order and to issue
an appropriate certification.
CONCLUSIONS OF LAW
1. Regency Grande Nursing and Rehabilitation Center (the
Respondent) is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. SEIU 1199, New Jersey Health Care Union (Local 1199)
and Local 300S, Production Services and Sales District Coun-
cil, United Food and Commercial Workers International Union
(Local 300S) are labor organizations within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Aida Basualto on April 10, 2008, because
she engaged in support of Local 1199.
4. The Respondent violated Section 8(a)(1) of the Act by: (1)
interrogating an employee on March 4, 2008, as to why she met
with a union organizer in the home of another employee, fur-
ther causing that employee to reasonably believe that her activi-
ties were under surveillance; and (2) interrogating an employee
on April 10, 2008, as to how she voted in a representation elec-
tion.
5. By engaging in the conduct described above, the Respon-
dent engaged in unfair labor practices affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
6. With the exception of one objection to the April 10, 2008
representation election, involving an improperly voided ballot
which, even if counted, would not be determinative of the elec-
tion and which does not constitute conduct that warrants setting
aside the election, all other objections are overruled.
7. The representation election of April 10, 2008, is ruled
valid and Cases 22–RC–12889 and 22–RC–12895 are re-
manded to the Regional Director for Region 22 to process the
matter in accordance with this recommended Order and to issue
an appropriate certification.
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.
The Respondent having discriminatorily discharged an em-
ployee, it must offer her reinstatement and make her whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
Because the Respondent has a proclivity for violating the Act
(see, e.g., Regency Grande Nursing & Rehabilitation Center,
347 NLRB 1143 (2006), enfd. 265 Fed. Appx. 74, 2008 WL
449782 (3d Cir. 2008), and because of the serious nature of the
violations, I find it necessary to issue a broad Order requiring
the Respondent to cease and desist from infringing in any other
manner on rights guaranteed employees by Section 7 of the
Act. Hickmott Foods, 242 NLRB 1357 (1979).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended59
ORDER
The Respondent, Regency Grande Nursing and Rehabilita-
tion Center, Dover, New Jersey, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting the Service Employees International Un-
ion, Local 1199, New Jersey Health Care Union or any other
union.
(b) Coercively interrogating any employee about union sup-
port or union activities.

59 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
(c) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Aida Basualto full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges pre-
viously enjoyed.
(b) Make Aida Basualto whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
her in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge and,
within 3 days thereafter, notify the employee in writing that this
has been done and that the discharge will not be used against
her in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Dover, New Jersey, copies of the attached notice
marked “Appendix”60 in both English and Spanish. Copies of
the notice, on forms provided by the Regional Director for Re-
gion 22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and main-
tained 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 pro-
ceedings, 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 March 4, 2008.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
IT IS FURTHER ORDERED that the representation election held
on April 10, 2008 is ruled valid and Cases 22–RC–12889 and
22–RC–12895 are remanded to the Regional Director for Re-

60 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.”
gion 22 to process the matter in accordance with this recom-
mended decision and to issue an appropriate certification.
Dated, Washington, D.C. February 12, 2009
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 benefit
and protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting the Service Employees International
Union, Local 1199, New Jersey Health Care Union or any other
union.
WE WILL NOT coercively question you about your union sup-
port or activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Aida Basualto full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges pre-
viously enjoyed.
WE WILL make Aida Basualto whole for any loss of earnings
and other benefits resulting from her discharge, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Aida
Basualto, and wE WILL, within 3 days thereafter, notify her in
writing that this has been done and that the discharge will not
be used against her in any way.
REGENCY GRANDE NURSING AND REHABILITATION
CENTER