Sprain Brook Manor Nursing Home, LLC

National Labor Relations Board - Administrative Judge Opinions

Nov 8, 2012

02-CA-040231 (N.L.R.B. Nov. 8, 2012)

JD(NY)–35–12
Scarsdale, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
SPRAIN BROOK MANOR NURSING HOME, LLC
and Case Nos. 2-CA-40231
2-CA-40385
2-CA-72458
1199 SEIU UNITED HEALTHCARE WORKERS EAST
Susannah Z. Ringel, Esq. and Moriah H. Berger, Esq.
for the Acting General Counsel
Jeffery Meyer, Esq. (Kaufman, Dolowich, Voluck &
Gonzo, LLP), for the Respondent
William Massey, Esq. (Gladstein, Reif & McGinnis),
for the Charging Party
DECISION
Statement of the Case
Mindy E. Landow, Administrative Law Judge. The charges and amended charges in this
matter were filed by New York’s Health and Human Services Union 1199/SEIU (the Union) on
various dates between December 1, 2010 and April 15, 2011. On December 23, 2011, the
Regional Director, Region 2 issued a Complaint and Notice of Hearing, supplemented by an
Amended Consolidated Complaint and an Amendment to Amended Consolidated Complaint,
issued on March 26 and April 10, 2012, respectively (collectively, the complaint). As amended,
the complaint alleges that Sprain Brook Manor Nursing Home, LLC., (the Employer or
Respondent) violated Sections 8(a)(1), (3), (4) and (5) of the Act by: threatening employees with
unspecified reprisals for seeking assistance from the Union; threatening employees that if they
sought Union representation they would not receive payments owed to them in connection with
a compliance settlement in Sprain Brook Manor, 351 NLRB 1190 (2007); discharging Catherine
Alonso; suspending and then discharging Karen Bartko and by implementing certain changes to
terms and conditions of bargaining unit employees without affording the Union prior notice and
the opportunity to bargain over the changes.1 Respondent filed answers to the complaint and
amendments thereto denying the material allegations contained therein. A hearing was held
before me in New York, New York on May 7 and 8, 2012.

1 These are: discontinuing the practice of providing on-site check cashing services to employees;
discontinuing its practice of providing a free hot lunch to employees; discontinuing its practice of providing
free on-site physical exams and tuberculosis (PPD) tests to employees and discontinuing payments to
those employees who chose not to enroll in the Employer’s health plan to compensate them for medical
expenses.
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On the entire record, including my observation of the demeanor of the witnesses, 2
and after considering the briefs filed by the Acting General Counsel (hereafter referred to as the
General Counsel) and Respondent,3 I make the following
Findings of Fact
I. Jurisdiction
Based upon the record and the stipulations of the parties, I find that Respondent, a
corporation, operates and maintains a nursing home in Scarsdale, New York, where annually, in
the course and conduct of its business operations, it derives gross revenues in excess of
$100,000 and purchases and receives goods and products valued in excess of $50,000. The
record establishes that the Respondent 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
In June 2006, after a Board-conducted election, the Union was certified as the exclusive
collective-bargaining representative of a unit of the following employees:
All full-time and regular part-time and per diem non-professional employees
including licensed practical nurses, certified nurses’ aides, geriatric techs/activity
aides, housekeeping employees, laundry employees/assistants, dietary aides, and
cooks employed by the Employer at its facility located at 77 Jackson Avenue,
Scarsdale, NY, but excluding all other employees, including office clerical
employees, managers and guards, professional employees and supervisors as
defined by the Act.
Subsequently, the Employer tested the Union’s certification and on September 29, 2006,
the Board granted the General Counsel’s motion for summary judgment and ordered
Respondent, upon request, to bargain with the Union as the exclusive representative of
bargaining unit employees and, if an understanding is reached, embody the terms and
conditions of employment of such employees in a signed agreement. On December 6, 2006,
the Board granted the General Counsel’s motion for summary judgment and ordered the
Employer to provide certain information to the Union.

2 In reaching my findings regarding the credibility of witnesses, I have considered their demeanor, the
content of the testimony, whether or not it was corroborated or refuted by other reliable evidence, the
inherent probability of the testimony and the record as a whole. In certain instances, I credited some, but
not all, of what the witness said. I note, in this regard, that “[N]othing is more common in all kinds of
judicial decisions than to believe some and not all” of the witness' testimony. Jerry Ryce Builders, 352
NLRB 1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950) rev'd.
on other grounds 340 U.S. 474 (1951); J. Shaw Associates, LLC, 349 NLRB 939, 939-940 (2007).
3 The General Counsel filed a motion to strike portions of Respondent’s post hearing brief, asserting
that it made representations of fact which are unsupported by the record. Although I deny the motion, as
discussed below, I have rejected certain assertions contained in Respondent’s brief which the record fails
to substantiate.
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Thereafter, in Sprain Brook Manor Nursing Home, LLC, 351 NLRB 1190 (2007)(Sprain
Brook 2007), the Board found that the Respondent had committed certain unfair labor practices
including unlawfully interrogating employees, surveilling employees, calling the police on the
Union and its supporters, telling employees that it was futile to support the Union, and
unilaterally increasing wages. In addition, it was found that Respondent had unlawfully
discharged two employees, including Alonso, and had reduced the overtime hours of three
employees including Bartko and Union delegate Clarissa Nogueira.
Before the Board order issued, United States District Judge Gerard E. Lynch ordered
Respondent to reinstate Alonso pursuant to proceedings brought under Section 10(j) of the Act.4
Subsequent to the Board order in Sprain Brook 2007, Respondent entered into a backpay
stipulation which provided for installment payments to the five employees who had suffered
adverse employment consequences including Alonso, Bartko and Nogueira. This backpay
stipulation was executed on behalf of Respondent by the then-and current-owner of the facility,
Robert Klein.5 Beginning on January 4, 2010, Alonso received an initial monthly payment,
including interest of $7,767.20, with declining balances thereafter. The last payment, due
December 5, 2011 was for a total amount of $1,602.75. This payment significantly exceeded
those due to the other employees.6
B. Bargaining History and Union Activity
As was the case during the period of time when the earlier cases were being processed,
Respondent employs an administrator to handle its operations. Based upon stipulations entered
into during the hearing, the record establishes that during the period from September 2010 to
September 2011, Michael Reingold held that position. In June 2011, Shlomo Mushell began
working as a consultant to the facility and in September of that year he assumed the position of
administrator, a position he continues to hold.7
The parties have yet to reach agreement on an initial contract. The most recent face-to-
face negotiations were held in June 2010. The Union was represented in negotiations by its
vice-president, Greg Speller and contract administrator Adrian Trumpler. Several employees,
including Alonso, Bartko and Nogueira, attended negotiations as well. Respondent was
represented by various officials including its counsel Jeffrey Meyer and, on occasion, Reingold.
Since its certification, the Union has engaged in certain tactics in an attempt to keep
employees engaged and apprised of what is going on. Among these are so-called “shift change
visibilities” which consist of meetings between Union staff and employees held during the period
from approximately 2:00 to 4:00 p.m., when the morning shift employees are leaving and the
afternoon shift employees are arriving at work. These were held at the entrance to the facility
parking lot. Both Alonso and Bartko attended such meetings, which were held in plain view and
visible to anyone looking out from the facility or its windows.
In addition, the Union sponsored an informational picket at the facility on November 23,
2010, from 2:00 to 4:00 p.m. In addition to Union representatives Speller and Trumpler, a

4 Mattina v. Sprain Brook, Case No. 06 Civ. 4262 (S.D.N.Y.) Orders issued July 5 and October 12,
2006.
5 Klein, who was subpoenaed to appear by Counsel for the General Counsel, failed to do so.
6 The backpay stipulation also provides that Respondent shall submit checks for the monies owed to
Region 2, and that it shall make appropriate withholdings from the wage payments for each discriminatee.
7 Moshell was the sole representative of the Respondent called to testify in this proceeding.
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number of employees attended this event including Alonso, Bartko and Nogueira. Although
Bartko was on vacation at the time, she returned early to attend the event. The picketers
marched in an oval, carried signs and chanted various slogans. According to witness testimony,
a manager named Eric took photographs of the event on his cell phone from a spot near the
kitchen entrance and owner Klein observed the event from approximately 25 yards away.
The evidence further establishes that Bartko served as a Union delegate until the time of
her discharge.
C. The Discharge of Catherine Alonso and Alleged Violations of Section 8(a)(1)
Alonso has worked for the Employer for 22 years, initially as a nursing assistant and
then in the housekeeping department. During this time she has had a variety of assignments in
the facility. For the year or so prior to her 2010 discharge, Alonso was assigned to clean the
ground floor which included the lobby of the facility, various hallways, the resident dining room,
six bathrooms, and the facility offices. This is also where the administrator’s office is located.
On November 9, 2010, at about 11:00 a.m., Reingold summoned Alonso to his office for
a meeting. Reingold initially asked Alonso when she was going to retire. When Alonso replied
that she had no intention of doing so, Reingold told her she was being let go, specifically
because the men’s room was dirty and there was urine on the toilet seat. As Alonso testified,
Reingold had a paper in his hand and he wanted her to sign it. Reingold told her that if she did
so, she would receive five weeks of pay, unemployment and the money coming to her. Alonso
asked if she could leave the room to get Nogueira and her reading glasses, and Reingold
responded that if she left the room she would really have trouble and would get nothing. Alonso
signed the paper without reading it. At the hearing she asserted that she had not read the
document prior to signing it.8
The document which Alonso admitted signing, dated November 9, 2010, states as
follows:
I Catherine Alonso am resigning my position at Sprain Brook Manor. I understand that I
will receive 4 weeks compensation as a reward for my years of service. I will also be
paid for this week ending November 12th. I will receive any time owed to me up to the
12th of November 2010 with regards to vacation or sick time that I have accrued.
After she signed the paper, Reingold told Alonso to return on Friday and he would give
her the money that she was owed.
On cross-examination, Respondent sought to adduce evidence from Alonso that when
Reingold referred to “money that was coming to [her],” he was referring to her accrued vacation
and sick time rather than payments due to her pursuant to the backpay stipulation. Her
testimony in this regard is as follows:

8 Alonso’s testimony is as follows:
Q: [by counsel for Respondent] Ms. Alonso, if you could take a look at that document please? Once
you’ve reviewed it please let me know.
A: Oh. I never saw this, never
Q: Is that your signature on it?
A: That’s my signature.
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Q:[by counsel for Respondent] He said that to you? Isn’t it possible that he could have
meant the vacation and sick time that you had accrued that was coming to you?
A: I don’t know if that’s what it meant.
Q: You don’t know?
A: No
Q: So you don’t know what he meant by saying you had money coming to you?
A: Oh yes. He said – yes, I knew that. That I had the money coming to me from the old
case.
Q: Well, how’d you know it was from the old case?
A: It had to be. That was the only money I had coming to me.
Q: You didn’t have accrued vacation or sick time?
A: Yeah, I guess I did. I don’t get that either.
Q: And that would have come to you as well, right?
A: Yeah.
Q: Right. Once your employment ended on November 9, 2010, did you receive any
checks?
A: Yes, I received. . .
Q: And do you recall what those checks were for?
A: For the money that I had from the old case.
Q: It came directly from Sprain Brook to you?
A: Yes.
Q: Okay. Are you sure?
A: I’m – yeah, I’m sure.
Q: How’d you get the other checks from the previous case?
A: What other check?
Q: From the previous case.
A: From the Labor Board. I think it was from the Labor Board.
Q: Those would come directly from the Labor Board?
A: Yeah.
Q: But you’re saying now that a check coming directly from Sprain Brook was for the
same case?
A: I don’t know. I’m not sure now.
No records were produced by the Employer to establish that Alonso had, in fact,
received payments for severance pay or any accrued or vacation time or to contradict the
express terms of the compliance settlement.
After meeting with Reingold and learning of her discharge, Alonso sought out Nogueira
who was working in the laundry room. Alonso told her she had just been fired and that Reingold
told her he had found a dirty toilet. As Nogueira testified, she asked why Alonso had not come
to get her, and Alonso replied that Reingold had told her that if she left the room she would be
sorry. She said that she had signed a paper. When Nogueira asked what paper, Alonso could
not respond. She said she had wanted to leave the room to get Nogueira and her glasses, but
that Reingold would not let her.
Nogueira returned to Reingold’s office with Alonso, and asked him why he was firing her.
Reingold stated that he had found the toilet dirty and it was done and over with. Nogueira stated
that Reingold could not fire Alonso due to a dirty toilet and asked why he had not called for a
Union representative, and that Alonso deserved that. Reingold replied that the employees did
not deserve union representation and that if Nogueira wanted to make this an issue, she would
have to schedule an appointment and bring in a Union representative. At this point, Reingold
was appearing very annoyed, and Alonso said that Nogueira should not get herself into trouble
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and they should leave, which they did.
On Friday, Alonso returned to Reingold’s office, as instructed, along with another
discharged employee, Pat Miller. The record does not contain any evidence regarding the
reasons for the discharge of this second employee.9 Alonso’s testimony of what occurred at this
second meeting is unclear and her responses to certain questions from Counsel for the General
Counsel indicate that she has conflated certain events from the first meeting with this one. In
any event, although Alonso initially testified that she signed a paper on this occasion as well,
there is no evidence of a second signed document in the record.
D. Alonso’s work record
On cross-examination, Respondent sought to adduce evidence regarding Alonso’s work
history. Her memory of these events was at times vague and incomplete although she did
identify her signature on one written warning. Alonso also admitted receiving a prior warning for
not properly cleaning, but could not recall when that occurred or who had issued the warning.
Alonso also acknowledged that she had been told on a few other occasions that she was going
to be written up for not properly performing her duties. There was one occasion when she was
assigned to clean the refrigerator and did not fully complete the task in the time allotted along
with her other assigned duties. Alonso acknowledged being suspended for one day, but could
not recall why. She asserted that housekeeping director Michael Sanfratello never spoke with
her about properly distributing supplies and did not recall receiving an in-service training for this
matter. Alonso also stated that she did not recall refusing to sign any disciplinary action form
which was presented to her.
The contents of Alonso’s personnel file, contains the following disciplinary notices:10
 September 21, 2009 – 1st Warning for unsatisfactory work
Upon inspection, Room 410 was found to be dusty on the lamp and the night tables.
There was also debris on the floor, indicating the room had not been swept properly.11
 October 19, 2009 – 2nd warning for unsatisfactory work
Cathy Alonso was assigned to work on first floor. One of primary responsibilities of this
assignment is cleaning lobby coffee tables and end tables. Prospective resident’s family
noticed dust and decided not to admit their family member as a resident.12
 October 26, 2009 – warning for unsatisfactory work

9 On cross-examination, Alonso was asked about the reasons for Miller’s termination. She replied that
she did not know the reasons for the discharge and that, although she has spoken with Miller since that
time, the two have not discussed the issue. Respondent failed to offer any evidence as to why Miller was
discharged.
10 Although administrator Moshell testified that these notices were maintained in Alonso’s file he had
no personal knowledge of the underlying incidents and could not specifically identify either the signatures
on the notices or the identity of the individuals whose signatures appear there.
11 Although Alonso did not sign this notice, it is signed by Nogueira in the space for “union
representative’s signature.”
12 This notice was signed by both Alonso and Nogueira.
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Cathy Alonso was assigned to work on the first floor. One of the primary responsibilities
of this assignment is to clean visitors (sic) bathrooms. Upon checking the bathroom at 3
pm, the bathroom had no toilet paper or paper towels.13
 October 28, 2009 – warning
Cathy Alonso was distributing supplies throughout the facility. Upon checking, she did
not put the right amount on each floor.14
 November 21, 2009 – 3 day suspension:
On Saturday, November 21, 2009, at approximately 9:45 a.m., Cathy Alonso was asked
by Michael Sanfratello, Director of Maintenance and Housekeeping, to clean the
refrigerator in the pantry closet in addition to her other scheduled tasks and duties. Upon
inspection at 1:30 p.m. it was noted that the assigned tasks had not been performed.
Also, debris was found in the corridors and the resident’s bathroom in Room 310 was
dirty. The Director began to search for Ms. Alonso to address these issues and found
her sitting down in the residents’ day room on an unscheduled break. She had failed to
carry out her assigned tasks and duties.15
For the following year, Alonso had no further discipline. There is a notice of termination,
apparently prepared by Reingold relating to the events of November 9, 2010, which states as
follows:
ï‚· I went to the mens (sic) room in the locker room, the toilet had blue cleaner in it, so it
had been freshly cleaned. But the toilet seat has dried urine all over it, the floor was
dirty.
This disciplinary notice further states that the employee resigned. It was not signed by
Alonso or witnessed by any other individual.
E. The Discharge of Karen Bartko
1. Bartko was accused of improperly taking juice from Respondent’s facility
On February 22, 2011, Reingold approached Nogueira while she was working in the
laundry room and asked her, regarding Bartko, “is she one of [your] people?” Initially, Nogueira
did not answer because she was confused as to what Reingold meant. He inquired again, and
Nogueira replied in the affirmative, assuming that Reingold was referring to her status as a
Union delegate. Reingold told Nogueira that Bartko had been seen leaving the facility with two
containers of cranberry juice and had come back without them. Nogueira informed Reingold that
Bartko goes outside for her break and he replied that that was impossible as Bartko had
returned in a matter of seconds. Nogueira stated that she would go speak with Bartko regarding
the matter. Reingold stated that he wished to see both of them in his office.

13 Neither Alonso nor Nogueira signed this warning.
14 Alonso did not sign this warning. Although it appears there is a witness, the record does not
indicate who this might be.
15 This notice was not signed by either Alonso or by any Union representative.
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Nogueira went to where Bartko was working and asked her about the incident. She
confirmed that she had gone outside with cranberry juice and that she had been on her lunch
break. Nogueira told Bartko that Reingold wanted to see them in his office.
As both Bartko and Nogueira testified, Bartko does not avail herself of the lunch that is
offered to employees; nor does she eat in the facility. She brings her lunch and obtains either
milk or juice from the kitchen and goes out to her car to eat. On the day in question, a kitchen
employee gave her two 4 oz. containers of juice, although she generally gets only one. She also
was late going on her break and returned to the facility quickly for that reason.
Before going to Reingold’s office, Bartko, along with Nogueira, went outside and Bartko
retrieved from a garbage container a small plastic bag containing a banana peel and two empty
juice containers. When the two women went into Reingold’s office, Bartko showed him the
plastic bag and stated that she had been outside on her break. Reingold replied that employees
were not provided with juice. Bartko stated that she was given juice because she brings her own
lunch. Reingold asked who had given the juice to her, and Bartko replied that it was a kitchen
employee. Reingold stated that he would check the surveillance camera and that both Bartko
and the employee who had provided her with the juice would be written up.
Nogueira protested that employees would be written up over mere ounces of cranberry
juice. Reingold replied that he had made clear that nobody is supposed to obtain anything from
the kitchen. Bartko stated that she had always gotten either milk or juice because she brought
her own lunch. Reingold’s reply was to the effect that, if he felt like having a steak, would it be
OK for him to do so? Nogueira replied that he was comparing a steak to 4 ozs. of cranberry
juice. Bartko responded that employees provided with water, which also cost something to the
facility, but she was cut off as she made this argument. Bartko also offered to replace the juice,
but Reingold rejected this offer, stating that the juice had to be Kosher.
Reingold then summoned Cameron Wharton, Respondent’s director of dietary services
into the meeting. Reingold asked him why his employees were giving out juice and stated that
no one was supposed to be getting anything from the kitchen. Initially Wharton was silent.
Wharton then confirmed that Bartko did not take the lunches that were provided to employees
and that the kitchen staff provided her with juice or milk. Reingold reiterated that employees
were not supposed to be getting anything from the kitchen. There was also a discussion of the
Employer’s lunch policy and Nogueira stated that any changes should be discussed with the
Union. 16
Although Reingold had threatened Bartko with discipline, no action was taken at this
meeting, and Reingold stated that he would consider what to do next.
According to Nogueira, other employees including the receptionist, nurses and
secretaries have received drinks from the facility’s kitchen without adverse consequences.
2. Bartko’s discharge
The main entrance to Respondent’s facility has two main doors separated by a vestibule.
On March 4, 2011, Bartko was on her way out of the facility as Reingold was entering. Bartko

16 As will be discussed below, in December 2010, Respondent had distributed a memorandum to its
employees advising them that they would no longer be receiving hot lunches but would be provided with a
sandwich and salad.
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neglected to hold the door for Reingold and the two passed each other in the vestibule.
Reingold asked whether Bartko held doors for people. She did not respond. According to both
Nogueira and Bartko, the doors each have a bar which prevents slamming or sudden closing.
Reingold apparently took offense at Bartko’s actions and came to Nogueira, who was
working in the laundry room, and accused Bartko of slamming the door in his face. Nogueira
replied that this was not possible as the doors have bars on the top which cause them to close
slowly. Reingold appeared annoyed and stated that he would not be subjected to that and
wanted both Nogueira and Bartko in his office. Nogueira went outside to find Bartko, as she
surmised that the employee was on her break. While outside the facility, Nogueira heard
knocking on the window and saw Reingold gesticulating for them to come inside. Reingold then
proceeded to the front door and, according to Nogueira, was yelling that he wanted Trumpler.
Nogueira asked whether Trumpler was coming and Reingold stated that he had not answered
the phone, so he left a message. He then instructed the two employees to report to his office.
Reingold stated that he was going to write Bartko up and send her home for the day, and that
he would pay her for the day if he had to, but she should leave the facility. According to both
Bartko and Nogueira, Reingold was yelling at them. Bartko asked what she had done. She was
asked whether she held doors for people. Bartko replied that while she would hold the door for
others she would not do so for Reingold. Bartko argued that she was being “set up.” When
Reingold told her she was being sent home, Bartko replied that he was the one who should go
home.
Reingold summoned a nearby office employee, identified in the record as “Gwen,” to be
a witness to the meeting, and Reingold proceeded to record Bartko’s remarks. Reingold told
Bartko to keep talking, and that she was burying herself.
When Reingold told Bartko that she was being sent home, Nogueira replied that Bartko
speaks up for herself, her coworkers and the residents and that was something that is not liked.
Bartko stated that Reingold was just hurting the residents as there were only three CNAs on
duty that day, and now there would be only two.
Because Reingold did not otherwise specify how long Bartko would be suspended for,
Nogueira assumed that it was for that day. While walking Bartko to the parking lot, Nogueira
advised Bartko to go home, and return on her next regularly scheduled work day.
The events in question took place on a Friday. Bartko was next scheduled to return to
work on Sunday, March 6, which she did. She worked her full shift without incident. After she
returned home for the evening, at about 5:00 p.m., the secretary to the Director of Nursing
called her and told her that, according to instructions from Reingold, she was not to return to
work until further notice.
Subsequently, Union vice-president Speller called Reingold seeking to discuss Bartko’s
employment status. His call was returned by Respondent counsel Meyer. According to Speller,
the Union thought she had been suspended and wanted to get her back to work. Meyer initially
told Speller that the Employer was willing to take Bartko back but subsequently advised him that
he had spoken with someone else and the decision was that she would not be returned to work.
On cross-examination, Bartko denied telling Reingold that she did not have to answer to
him or that he could not tell her what to do. She also denied telling Reingold that he did not have
the authority to send her home. She also specifically denied slamming the door on him. In
addition, according to Bartko, Trumpler never contacted her to instruct her not to report to work
on the Sunday following the incident. Bartko also stated that she did not recall seeing Reingold
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carrying packages as they were passing each other in the vestibule.
F. The Alleged Unilateral Changes
1. The December 14, 2010 memorandum to employees
Respondent’s employees historically received a hot lunch on a daily basis. This was a
practice which had been in effect for decades and had existed long prior to the Union’s
certification. The lunch served to employees consisted of the food that was prepared for and
served to residents and typically consisted of such items as chicken, mashed potato and
broccoli or meatballs and spaghetti.
On December 14, 2010, Reingold send a memorandum to employees notifying them
that: “[a]s of January 1st hot lunch will no longer be provided. In the meantime we will be offering
a sandwich and a salad, this will be available in the staff dining room.”
According to Nogueira, sandwiches and salad were served to employees in lieu of a hot
lunch for a period of approximately six months, at which time the Employer resumed its original
practice of serving hot lunch to employees.17
Respondent argues that it maintained a practice of offering hot lunches to its employees
only when excess food remained after residents were fed. There is no testimonial or other
evidence in support of this contention. To the contrary, according to Nogueira, this was not the
case and there was always sufficient food for the workforce.
In the same memorandum, employees were advised that the Employer was “notified by
the check cashing company that they will no longer offer on site check cashing.” As recounted
by employee witnesses, an outside firm would come to the facility on a weekly basis during
working hours and employees would be able to cash their checks for a fee. This practice had
been in effect for about a year prior to its termination. Administrator Moshell testified that the
check cashing company had no contractual relationship with Sprain Brook and decided of its
own volition to cease providing such services as it was not profitable. However, as noted above,
these events occurred before Moshell began his employment at the facility and he did not
otherwise state the basis for his knowledge of these events.
As Speller and Nogueira testified, no prior notice of either of the above-noted changes
was ever provided to the Union.
2. Medical Services
Respondent’s employees are required to have annual physical examinations and
tuberculosis (PPD) tests. In the past, these services were offered to employees on-site, free of
charge. On a certain date announced to employees, a weekend RN supervisor referred to in the
record as “Jackie,” set up a station in the resident dining room. There she would meet with
employees, take their blood pressure and temperature, perform the PPD test and otherwise
check their general health. Forms would be completed for employees to submit certifying that
they had been examined and given the requisite test.

17 As noted above, Alonso was discharged prior to this change and Bartko was unaffected by it as
she brought her own lunch on a daily basis.
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On February 18, 2011, employees received a memorandum from Reingold, stating as
follows:
All employees are required to submit their annual PPD & Physical Exam on or before
MARCH 25, 2011 completed by your Physician. If you had your PE done within the last
three (3) months, you may not obtain a new PE but a copy should be submitted to the
Nursing Department.
All employees should have their PPD done except for those with a history of positive (+)
PPD, in which case an x-ray must be submitted and attached to your Physical Exam.
All Physical Exam results will be submitted to the DNS for the Medical Director to review
and sign.
No employee will be allowed to come to work without his/her annual PE after MARCH
25, 2011.
Employee Screen / PE form is available at the nursing department.
For any questions please direct it to the DNS or any RN supervisor.
For your strict compliance.
The testimony of witnesses called by the General Counsel establishes that there was no
prior notice of this change afforded to the Union, and Respondent has adduced no evidence to
the contrary.
In support of its contention that the foregoing does not represent a unilateral change,
Respondent relies upon the testimony of the General Counsel’s witnesses that, since the
memorandum was distributed in February 2011 they did not take steps to affirmatively
investigate whether such services would continue to be available to them at the facility.
Respondent further relies upon Moshell’s testimony as follows:
Q: [by Respondent’s counsel] Mr. Moshell, with regard to employee PPDs and physical
exams, are you aware or do you have knowledge of those exams currently being offered
by Sprain Brook at no cost to its employees?
A: Yes, we give by our physicians – our staff.
Judge Landow: I’m sorry? I couldn’t hear you.
A: We give it by our staff.
Judge Landow: Staff?
A: They are, yeah.
Q: [by counsel for Respondent] And to date do you know if any employees have taken
up that offer with the company?
A: Yes.
Q: Okay. And do you recall the staff members, whether they be RNs or doctors or who
performs these services on behalf of Sprain Brook?
A: Yes.
Q: And who are they?
A: Our physicians, our RNs, anybody who requests somebody for a physical.
Q: And that has been the practice at Sprain Brook since you have taken over as the
administrator?
A: Correct.
Q: And prior to – to the extent you know, prior to – well, even during the tenure of
consulting for the company, is it your understanding that Sprain Brook offered PPDs and
physicals at no [cost] to employees in 2011 as well?
A: Yes.
Q: And do you know if employees, in 2011, took up that offer?
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A: Yes, they have.
3. Medical “pay outs”
For a period of five or six years continuing until late-2011, Respondent had offered its
employees the option of receiving a monthly payment in lieu of participating in its health plan.
The amounts of the payments were tied to and increased according to the cost to the
Respondent of the health insurance those employees were opting not to receive. Nogueira, who
availed herself of this option, testified that she received a monthly sum. Her payroll record
shows that the final monthly pay out she received amounted to approximately $350.
On November 21, 2011, Respondent issued the following memorandum to employees:
Due to recent changes in health care legislation, Sprain Brook Manor Nursing Home is
unable to continue offering a “medical expenses” payout as has been done in the past.
However you are afforded the opportunity to enroll in our current health plan as
administered by Oxford Health Plans. Please see Israel in the business office for
enrollment options and forms.
There is no record evidence as to what changes in “health care legislation” would have
necessitated such a change.
In its defense to these allegation of the complaint, Respondent argues that the
Respondent sought to negotiate such changes with the Union but was unable to do so because
here have been no face to face negotiations between the parties since June 2011. Respondent
further relies upon the fact that Speller admitted that the Respondent had contacted him, via
letter, about health insurance premiums and the subcontracting of the laundry department.18
There is, however, no evidence that Respondent provided the Union with any notice or
an opportunity to bargain over the specific issue of the elimination of medical pay outs for its unit
employees.
III. Analysis and Conclusions
A. The Alleged Violations of Section 8(a)(1)
The complaint alleges that Respondent, by Reingold, threatened employees with
unspecified reprisals for seeking assistance from the Union and further threatened employees
that if they sought Union representation they would not receive payments owed to them in
connection with the compliance specification in Sprain Brook Manor, 351 NLRB 1190 (2007)
(Sprain Brook 2007). Both of these complaint allegations stem from the meeting between
Reingold and Alonso held on November 9, 2010.
Section 8(a)(1) makes it unlawful for an employer to “interfere with, restrain, or coerce
employees in the exercise” of their Section 7 rights. For the purposes of Section 8(a)(1),the
motive for the employer’s actions is irrelevant; if the action, or sequence of actions, reasonably

18 Apparently, the parties agreed that the one remaining employee in that department, Nogueira, be
transferred into the housekeeping department with no change to her working hours or rate of
compensation. There is no evidence of any agreement with regard to the issue of health insurance
premiums.
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tends to interfere with the free exercise of rights under the Act, it is unlawful. See Naomi Knitting
Plant, 328 NLRB 1279, 1280 (1999).
In defending against these allegations of the complaint as well as those relating to
Alonso’s discharge, Respondent seeks to discredit her testimony. In support of these
contentions, Respondent argues that Alonso is not credible due to her “outright denials
regarding conversations with Reingold,” her “inability to recall basic facts concerning paychecks
and compensation sources” and the fact that Alonso allegedly denied the existence of her
“resignation letter” while admitting her signature was on that document.
As an initial matter, I must state that Alonso was a witness who demonstrated significant
deficits in her recall of certain events; in particular, the specific details regarding her prior history
of discipline. In this regard, however, it should be noted that prior to her discharge on November
9, 2010, Alonso had received no discipline for more than one year. At the time she was called to
testify in this matter, well over two years had elapsed since any prior discipline had issued.
Although Alonso denied receiving or reviewing certain disciplinary notices, she candidly
admitted that her superiors had brought to her attention certain underlying issues with her
performance, as she recalled them. She also acknowledged her signature as it appeared on
certain documents, described above. As for Alonso’s inability to recall the specifics of her
backpay compensation by Respondent, I note that the backpay stipulation signed by Klein
specifically states that checks are to be submitted by Respondent to the NLRB. Thus, any
confusion over the source of Alonso’s backpay may well be attributable to the fact that while
Alonso received checks drawn on Respondent’s account, they were provided to her through the
auspices of the NLRB.
In any event, notwithstanding my observations about Alonso’s inability to recall certain
events, I find her description of her interaction with Reingold on November 9, 2010, to be
detailed, consistent and credible. It is inherently likely that the events of this encounter would
stand out in Alonso’s recollection, while other less significant events may have faded. Moreover,
Alonso’s recollection of this meeting largely comports with the account she told Nogueira shortly
thereafter. As she is a current employee, I find there is good reason to credit Nogueira. See
Advocate South Suburban Hospital, 346 NLRB 209 fn. 1 (2006), quoting Flexsteel Industries,
316 NLRB 745 (195), aff’d mem. NLRB v. Flexsteel Industries, 83 F.3d 419 (5th Cir.
1996)(current employees are likely to be particularly reliable because these witnesses are
testifying adversely to their pecuniary interests); see also American Wire Products, Inc., 313
NLRB 989, 993(1994)(current employee providing testimony adverse to his employer is at risk
of reprisal and thus likely to be testifying truthfully). Moreover, as noted above, Alonso’s account
of events regarding her interaction with Reingold is unrebutted. As has been noted, while it is
possible for the Board to dismiss or disregard uncontroverted testimony, it may not do so
without a detailed explanation. See Missouri Portland Cement Co. v. NLRB, 965 F.2d. 217, 222
(7th Cir. 1992).
Aside from the fact that Alonso’s testimony regarding her interactions with Reingold is
unrebutted, and corroborated in large measure by Nogueira, I found both of these witnesses to
demonstrate an impressive and candid demeanor while on the witness stand. Contrary to any
suggestion by Respondent, I did not find Alonso’s failure of memory to be a product of
dissembling or an attempt to evade questioning; rather, she frankly acknowledged facts which
would be adverse to her interests in this proceeding and conceded her failure to recollect certain
matters. In sum, I find that Respondent has failed to show any persuasive reason to disregard
Alonso’s uncontested version of events.
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Thus I credit Alonso’s testimony that Reingold told her that if she left the room to seek
Union representation she would have “trouble.” As the Board has found, a threat need not be
specific in order to be found violative of Section 8(a)(1) of the Act. SKJ Jonesville Division, L.P.,
340 NLRB 101 (2003)(and cases cited therein). In a variety of contexts the Board has
concluded that raising the specter of “trouble” in conjunction with or stemming from union
activity is conduct which reasonably falls within the prohibitions of Section 8(a)(1). See, e.g.,
U. S. Steel Corp., 279 NLRB 16 fn. 1 (1986); Perth Amboy Hospital, 279 NLRB 52 fn. 2 (1986);
Parkview Hospital, Inc., 343 NLRB 76, 81 (2004)(threatening an employee with “trouble” for
engaging in union activity held to be a threat of unspecified reprisals). Here, in agreement with
the General Counsel, I find that Reingold’s admonition to Alonso that if she left their meeting to
seek union representation she would have “trouble” is a threat of unspecified reprisal which
violates Section 8(a)(1) of the Act.
The General Counsel has further alleged that Reingold threatened Alonso that if she
sought Union representation she would not receive payments owed to her in connection with a
prior Board order and backpay stipulation in violation of Section 8(a)(1). Alonso testified that
Reingold sought to induce her to sign a paper by promising her that, if she did so, she would
receive the “money coming to her” as well as other benefits such as severance pay and accrued
vacation and sick leave payments. When Alonso asked for permission to leave the office to
retrieve her eyeglasses and consult with a union representative, Reingold told her that if she left
the room not only would she have trouble, but that she would get nothing. As noted above,
Respondent argues that Alonso’s account is not worthy of credit, a contention I have rejected.
Respondent also contends, without any direct evidentiary support, that to the extent Alonso is
credited, Reingold was referring to other payments, e.g. severance, vacation and/or pay that
had been promised to Alonso in the meeting with Reingold and not to any sums of money owed
to her by virtue of her prior unlawful discharge. At most, Respondent has shown that Alonso
demonstrated some uncertainty in her testimony, as set forth above, about what Reingold was
referring to. However, the evidence is also clear that at this point in time, Alonso was continuing
to receive backpay payments pursuant to the compliance stipulation.
As has been noted above, the test of whether a statement is violative of Section 8(a)(1)
of the Act is an objective, not subjective, one. Under all the circumstances I conclude that it was
reasonable for Alonso to conclude, as she testified, that when Reingold told her that if she left
the room to seek out Nogueira she would have “trouble” and “get nothing,” that he was
threatening to withhold her backpay. Apart from any other promise which may have been made
by Reingold to induce Alonso to resign, her backpay was the only specific sum which
Respondent clearly owed to her at the time. Thus, under the circumstances it would be
reasonable for Alonso to conclude, absent any other clarification, that when Reingold separately
referenced the money “coming to her” it was her backpay to which he was referring.
Accordingly, I find that by threatening Alonso that if she sought Union representation she would
have trouble and get nothing Respondent threatened to withhold Alonso’s backpay and violated
Section 8(a)(1) of the Act. See The Baytown Sun, 255 NLRB 154, 161 (1981).
B. The Discharges of Catherine Alonso and Karen Bartko
Section 8(a)(3) of the Act provides, in pertinent part, that it is “an unfair labor practice for
an employer to discriminate in regard to hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any labor organization.” Section 8(a)(4)
provides that it is an unfair labor practice for an employer “to discharge or otherwise
discriminate against an employee because he has filed charges or given testimony under this
Act.”
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The General Counsel has alleged that Alonso was discharged in retaliation for her
continuing Union support and because of her prior participation in Board proceedings against
the Respondent. It has also been alleged that Bartko was discharged due to her support for and
activities in support of the Union. Respondent contends that it accepted the Alonso’s voluntary
resignation or, in the alternative, lawfully discharged her due to her continued and documented
poor performance. Respondent further contends that Bartko was discharged due to her
disrespectful and insubordinate conduct which included, as Respondent argues in its brief: “(i)
slamming the door in her supervisor’s face; (ii) her insubordinate and hostile attitude during the
meeting with Reingold; and (iii) reporting to work that weekend in direct contravention of
Reingold’s instructions.” Thus, the issue of the Employer’s motivation is at stake in each
instance.
1. The Wright Line Factors
Allegations of discrimination which turn on Employer motivation under either Section
8(a)(3) or (4) of the Act are analyzed under the framework set forth in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). See also
NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 395 (1983); American Gardens Mgmt.Co.,
338 NLRB 644, 645 (2002) (Wright Line analysis applies to claims of discriminatory discharge
under both Section 8(a)(3) and 8(a)(4)).
To establish a violation of Section 8(a)(3) and (4) under Wright Line, General Counsel
must first show, by a preponderance of the evidence, that the employee engaged in protected
concerted activity, the employer was aware of that activity, and the activity was a substantial or
motivating reason for the employer's action. Wright Line, supra; Naomi Knitting Plant, 328 NLRB
1279, 1281 (1999). Proof of an employer's motive can be based upon direct evidence or can be
inferred from circumstantial evidence, based on the record as a whole. Ronin Shipbuilding, 330
NLRB 464 (2000); Robert Orr/Sysco Food Services, 343 NLRB 1183 (2004); enfd. mem. 179
LRRM (BNA) 2954 (6th Cir. 2006); Embassy Vacation Resorts, 340 NLRB 846, 848 (2003). The
Board has long held that where adverse action occurs shortly after an employee has engaged in
protected activity an inference of unlawful motive is raised. See McClendon Electrical Services,
340 NLRB 613, fn. 6 (2003) (citing La Gloria Oil, 337 NLRB 1120 (2002), enfd. mem. 71 Fed
Appx. 441 (5th Cir. 2003) (Table)).
As part of its initial showing, the General Counsel may offer proof that the employer’s
reasons for the personnel decision were pretextual. Pro-Spec Painting, Inc., 339 NLRB 946, 949
(2003); see also Laro Maintenance Corp. v. NLRB, 56 F.3d 224, 229 (D. C. Cir. 1995); Real
Foods Co., 350 NLRB 309, 312 fn. 17 (2007)(unlawful motivation demonstrated not only by
direct, but by circumstantial evidence such as timing, disparate or inconsistent treatment,
expressed hostility, departure from past practice and shifting or pretextual reasons being offered
for the action). In addition, proof of an employer’s animus may be based upon other
circumstantial evidence, such as the employer’s contemporaneous commission of other unfair
labor practices. Amptech, Inc., 342 NLRB 1131, 1135 (2004). Moreover, should the evidence
show that the employer’s proffered defense is pretextual in nature, the Board has found that the
second prong of the Wright Line analysis is unnecessary. See e.g. Relco Locomotives, Inc., 358
NLRB No. 32, slip op. at 1, fn. 4 (2012); Austal USA, LLC., 356 NLRB No. 65,slip op. at 2
(2010).
Once the General Counsel establishes its prima facie case, the burden of persuasion
then 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, 496 (2006);
Williamette Industries, 341 NLRB 560, 563 (2004); Wright Line, supra. To meet its Wright Line
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burden, “[a]n employer cannot simply present a legitimate reason for its action but must
persuade by a preponderance of the evidence that the same action would have taken place
even in the absence of the protected activity.” W.F. Bolin Co., 311 NLRB 1118, 1119 (1993),
petition for review denied 70 F.3d 863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir. 1996).
See also Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996).
2. Application of the Wright Line Standards
As was outlined in Sprain Brook Manor (2007), supra, both Alonso and Bartko were
initial supporters of the Union who suffered adverse employment consequences as a result of
their protected activities. Alonso was unlawfully discharged, and Bartko had her overtime hours
reduced. They were both owed backpay compensation as a result of these discriminatory
actions until December 2011.
Continuing into 2010, these employees continued their Union activities, by participating
in shift change visibilities and picketing (both of which were not only conducted in plain sight but
actively observed by management) and through their participation in collective-bargaining
negotiations. In addition, Bartko served as a Union delegate for her fellow employees up until
her discharge. Thus, the record is apparent that both Alonso and Bartko engaged in Union
activities and that Respondent was aware of that fact.
I additionally find that the General Counsel has adduced evidence of animus toward the
Union generally and toward the specific activities of these two employees in particular. As an
initial matter, I take administrative notice of and consider Judge Rosas’ findings in Sprain Brook
Manor (2007) to be background evidence of animus. In arguing that such a finding is not
appropriate, Respondent argues that the prior incidents involving the employees that serve as
the basis for the current claim of discrimination occurred during a remote period, i.e. 2005 -2007
or 5 to 7 years ago. This assertion, of course, overlooks the fact that Respondent was obliged to
provide backpay payouts to five of its employees, including the two named discriminates here,
up to and including the year 2011 and that the Union engaged in open activities at the site
during 2010.
In Opelika Welding, 305 NLRB 561, 566 (1991), the Board upheld the administrative law
judge’s reliance on findings in a prior case. There, the judge noted that in the prior proceeding
the employer displayed animus against the same type of union activity that was involved in the
subsequent case. Thus, the judge concluded that the prior findings could be relied upon as
evidence of the employer’s continuing antiunion animus. Here, as there, the employees in
question are engaged in the same sort of organizational activity, for the same labor
organization, that caused the Employer to retaliate against them initially. Moreover, although it
appears from the record that certain managers have left and others taken their place, Robert
Klein has been an owner of Respondent throughout the years of the Union’s organizational
drive, certification and the litigation of the earlier unfair labor practice allegations. He has
remained in this position during all times relevant to the instant matter. I therefore find it
appropriate to impute animus based upon the evidence adduced in prior proceedings involving
the Respondent here. See Southern Maryland Hospital, 295 NLRB 1209 fn. 1 (1989); Kenworth
Trucks of Philadelphia, 236 NLRB 1299 fn. 2 (1978)(and cased cited therein).
Furthermore, in addition to any legal presumptions or prior determinations regarding the
Employer’s animus toward its employees’ Union activities, there is independent evidence of
such in the instant record. I draw this conclusion from various comments made by Reingold,
some of which have been found to constitute independent violations of Section 8(a)(1), as
described above. Thus, when Alonso was confronted with a demand that she sign what
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amounted to a letter of resignation, and requested permission to leave the room to consult with
the Union, she was told that if she left she would have trouble and not receive what was coming
to her. When Nogueira protested Alonso’s discharge for a dirty toilet and asked Reingold why
he had not called for Union representation, Reingold stated that his employees did not deserve
Union representation. These comments are direct and contemporaneous evidence of
Respondent’s animus toward its employees’ Union activities. Additionally, as will be discussed
below, I find further evidence of animus in the circumstances attending the discharges of both
Alonso and Bartko and the pretextual nature of the Respondent’s proffered defenses.
Based upon the foregoing, I conclude that the General Counsel has established the
requisite elements of a prima facie case under Wright Line, with respect to both Alonso and
Bartko. Accordingly, it falls to the Respondent to establish, by a preponderance of the evidence,
that it would have discharged either or both of these employees notwithstanding their Union or
other protected activities.
a. Alonso
Respondent argues that Alonso was an unsatisfactory employee with a history of work
performance problems. In this regard, Respondent relies upon a series of written warnings
maintained in Alonso’s personnel file, which document performance deficiencies for the period
from September through November 2009, to justify the discharge of this long-term employee
and active Union supporter. Such evidence is unavailing for several reasons. As an initial
matter, as General Counsel notes, after November 2009, there is no further documentation or
evidence of any subsequent performance problem for one year or until Alonso was summoned
to Reingold’s office purportedly for failing to adequately clean a toilet. In this regard, I note that
Alonso was cross-examined extensively regarding her work assignments and her testimony that
she performed them assiduously is not only credible based upon her demeanor but generally
unrebutted, with the limited exception of the two-month period noted above.
Further, the record fails to demonstrate that Reingold was aware of any prior problem
with Alonso’s performance. As was stipulated by the parties, Reingold became the administrator
at Sprain Brook Manor in September 2010, or approximately 10 months after the final 2009
disciplinary notice was issued to Alonso. There is no evidence that Reingold reviewed Alonso’s
personnel file prior to calling her to their meeting or based his discipline on her work history. In
this regard, Reingold made no reference to any prior infraction or problem with Alonso’s work
performance either during the initial meeting between the two, the meeting subsequently held
with Nogueira or, most tellingly, in the disciplinary notice he prepared to document Alonso’s
termination from service. Moreover, there is simply no evidence to support Respondent’s
assertion, as set forth in its post-hearing brief, that Reingold or any other management official
conducted an audit of the rooms to which Alonso had been assigned in early November 2010.
There is similarly no evidence of deficiencies in her work performance discovered as a result of
any such audit. To the contrary, the record evidence supports the conclusion that the sole
allegation leveled against Alonso on the day of her discharge and seized upon by Respondent
was Alonso’s failure to adequately clean one toilet. The record fails to disclose any evidence
that Reingold was at the time, aware of any other problem with Alonso’s work performance.
Thus, I find that Respondent’s exhumation of Alonso’s prior disciplinary notices and its newly-
found reliance upon Alonso’s limited history of performance deficits is a post-hoc justification for
her discharge which supports the conclusion that it is pretextual (and, accordingly, some
evidence of animus).19

19 There is similarly no evidence to support Respondent’s contention that other employees were
Continued
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As for Respondent’s suggestion that Alonso voluntarily resigned, I find that the evidence
shows that Reingold induced Alonso to sign a paper, which she stated she could not read,
through a combination of empty promises20 and threats. The Board has recognized that
coerced “resignations” are properly viewed as discharges. See e.g. Federal Screw Works, 310
NLRB 1331 (1993)(Board adopts finding that employees who were “hustled” into signing
resignation agreements were in fact discharged). Moreover, Respondent has repeatedly
confused the record, at times characterizing Alonso’s separation from service as a resignation
and at others a termination.21 Based upon the evidence as a whole I conclude that Alonso did
not wish her employment to end and that the termination of her employment is properly viewed
as a discharge.
While there was no immediate precipitating event of Union activity which appears to
have prompted Reingold to take action against Alonso, the Board has recognized that the
elements of Wright Line do not require that there be a direct link or nexus between protected
conduct and adverse employment action. See USC University Hospital, 358 NLRB no. 132, slip
op. at 1 fn. 2 (2012)(citing Mesker Door, Inc., 357 NLRB No 59, slip op. at 2 fn. 5 (2011)).
Moreover, the Board has recognized that an employer may watch and wait for an infraction to
occur and utilize that as pretext to discipline an employee based upon animus toward prior
protected conduct. See United Parcel Service, 340 NLRB 776, 777 fn. 10 (2003) and cases
cited therein. Further, as noted above, at the time Alonso was discharged, she was still
receiving installment payments from Respondent as a result of her prior Board case, and
testimony in that matter. Those payments also substantially exceeded those owed to the other
employees involved.
Finally, I note that Alonso was an employee of long tenure who was assigned to clean
some of the most publicly accessible areas in the facility (e.g. the lobby and dining room) as well
as the offices and rest rooms of the facility’s administrator and other staff. There her work would
have been subject to constant evaluation, and had there been any continuing insufficiency it is
more likely than not it would have been noted. Thus, Respondent’s argument that she was a
sub-standard employee is belied by its actions in issuing her work assignments to these heavily-
monitored areas of the facility where she received no discipline for a period of one year prior to
her discharge.
Based upon the foregoing, I conclude that Respondent has failed to adduce sufficient
evidence to rebut the General Counsel’s prima facie case and to meet its burden of proof to
show, through a preponderance of the reliable, credible evidence that it would have discharged
Alonso notwithstanding her Union and other concerted, protected activities. Accordingly, I
conclude that Respondent discharged her in violation of Section 8(a)(1), (3) and (4) of the Act.
b. Bartko
_________________________
terminated for similar performance problems. The record is silent as to the reason for Miller’s discharge,
and there was no evidence presented by Respondent to show that other employees were treated in a
fashion similar to Alonso.
20 There is no evidence to show that Respondent met its promise to provide Alonso with severance,
accrued vacation and sick pay or to agree to a claim for unemployment benefits. This clearly is evidence
within the control of Respondent and under the circumstances here, where Respondent has raised these
factors to challenge Alonso’s credibility, I conclude that the failure to adduce it supports an inference that
Reingold’s representations were false.
21 By way of example, in his opening statement, Respondent’s counsel referred to Alonso’s,
“termination, resignation, however you want to phrase it . . .”
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Preliminarily, I note that there are several factual assertions made by the Respondent in
its post-hearing brief which have no support in the record. For example, the record fails to
establish that Bartko allowed the door to “slam” onto Reingold. To the contrary, both Bartko and
Nogueira testified that the doors to the facility have a bar which slows down the rate at which
they close precisely to prevent such an occurrence.22 There is also no evidence that Reingold
was carrying a number of packages at the time, or that Bartko observed that he was so
encumbered. Similarly, the record fails to establish that Reingold or any other agent of
Respondent advised Union official Trumpler or any other Union official or agent that Bartko
should not report to work after March 4, 2011. Against this backdrop, I evaluate Respondent’s
proffered defense to Bartko’s termination.
On February 22, 2011, Reingold went to find Nogueira and asked whether Bartko was
one of “her people.” Of course, this was a gratuitous comment as administrator Reingold must
have been well aware that Bartko, as a CNA, was a bargaining unit member. And, as noted
above, Bartko was also a Union delegate. Reingold most certainly would have been aware of
this as well. Accordingly, I conclude that Reingold’s query was a sardonic reference to Bartko’s
Union activities and support. As has been described above, Bartko had been previously
accused of improperly taking juice and, with Nogueira’s assistance, had successfully refuted
that claim and received no discipline. At this time, Reingold made some comments about the
change in the facility’s lunch policy and Nogueira reminded him that any such changes must be
discussed with the Union. As both Nogueira and Bartko recounted, Reingold demonstrated his
displeasure with these employees during this meeting. In sum, I conclude that the foregoing
events on whole evince animus toward the Union and its efforts to advocate on behalf of
bargaining unit employees.
Against the background of a prior successful intervention on the part of the Union, ten
days later, Reingold apparently took offense at the fact that Bartko neglected to hold the door
for him as he was entering, and she leaving the facility. He summoned Nogueira and Bartko to
his office where his account of events was disputed, as Nogueira pointed out that the door was
unable to slam, as he asserted. She also asked some questions about what Reingold had
observed at the time and encountered his considerable annoyance. As both Bartko and
Nogueira testified, Reingold was yelling at them throughout this encounter.
As has been set forth above, it is undisputed that Bartko reacted to Reingold in an
intemperate manner.23 In response to Reingold’s questioning she responded that she would
hold the door for others, but not for him. He then called a subordinate into the office as a
witness and took notes of their encounter, telling Bartko that she was going to “bury” herself.24
As Respondent acknowledges in its post-hearing brief, Reingold, “sent her home for the day.”25
Bartko impertinently asserted that Reingold was the one who should be sent home.

22 This is, of course, inherently probable given the nature of population residing at the facility.
23 The General Counsel argues that Bartko’s conduct should be examined under the principles of
Atlantic Steel Co., 245 NLRB 814 (1979) and its progeny, but fails to identify what, if any, protected
conduct Bartko was engaged in contemporaneous with her “outburst.” I conclude, on whole, that the
General Counsel’s reliance on Atlantic Steel for these purposes is inapposite.
24 Although the contents of Bartko’s personnel file were subpoenaed by the General Counsel, these
notes were not produced. In fact, there were no documents produced in response to the subpoena. The
General Counsel makes note that no disciplinary notices were produced although clearly encompassed
by the subpoena.
25 Respondent’s Brief, page 5
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Although Respondent also asserts that Bartko was told not to report back to work until
further notice, there is no evidence to support this specific contention. Rather, the testimony of
both Bartko and Nogueira is to the effect that Bartko was merely told to leave the facility. The
conversation of the two employees as Bartko was being escorted to her car, demonstrates that
the length of Bartko’s suspension had not been made clear to either of them at that time. This
testimony is generally corroborated by Union vice-president Speller, who stated that when he
initially spoke with Respondent’s counsel, he was advised that Bartko would be allowed to
return to work, a decision which was only subsequently reversed.
Thus, absent instructions to the contrary, Bartko returned to work on her next regularly
scheduled day,26 was allowed entry into the facility and worked her full shift without incident. It
was only after her shift was completed that she was informed that she should not return to the
facility until further notice.
I support of its contention that Bartko was lawfully discharged, Respondent relies upon
Continental Can Co., 148 NLRB 640 (1964 and Cotwool Manufacturing Corp., 115 NLRB 1018
(1956). Aside from the fact that both these decisions issued prior to the explication of the Wright
Line standards, they are inapposite in any event. For example, in Continental Can Co., supra at
641, the trial examiner, affirmed by the Board, concluded that the evidence showed that the
employee in question demonstrated an “attitude of indifference to his work, insubordination and
insolence toward his superiors.” “Thus, he frequently reported late to his work station, he spent
too much time away from his work station, he was inattentive while at work and he did not
cooperate with his supervisors and fellow employees.” The employee was the subject of “a
never ending cycle of complaints” and would be “reprimanded on an average of twice per
week.” The employee’s response to these reprimands “tended to be insolent and insubordinate”
resulting in “many angry arguments” where he and his supervisor “addressed profanities at one
another.” Respondent cannot credulously be attempting to compare Bartko’s previously spotless
employment record to the one at issue there.27 Respondent further relies upon Davie Roofing,
341 NLRB 222 (2004). There the Board, reversing the administrative law judge, found that two
employees were lawfully discharged after they committed safety violations and insubordinately
refused to comply with their employer’s instructions that they acknowledge these violations in
writing. What is noteworthy about Respondent’s reliance upon this case is its acknowledgement
and tacit admission that here, as there, the Respondent has failed to adduce evidence of
comparable situations of similar instances of insubordination for which employees have been
discharged.
Notwithstanding the foregoing, as has been well noted, under the Act, an employer may
discharge an employee for good reason, bad reason or no reason at all so long as it is not for
union or concerted protected activities. See e.g. Ryder System, Inc., 302 NLRB 608 (1991).
However, what is at issue here is not whether the Bartko’s remarks justified Respondent in
discharging her, but whether Respondent has shown that they would have caused her
discharge in the absence of her protected activities.
While it is the case that, in her meeting with Reingold, Bartko was rude, and perhaps
more, the evidence fails to meet Respondent’s burden of proof to establish that Reingold made
a determination to discharge her based upon that behavior. Rather, the record demonstrates
that he intended to, and did, suspend her for the balance of the work day. Moreover, there is no
evidence to suggest that Bartko received and, consequently, defied any instruction not to

26 Had she not, Bartko might well have been accused of job abandonment.
27 As the record establishes, Bartko has no prior history of discipline in her personnel file.
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subsequently report to work, as Respondent contends. Further, the timing of Reingold’s
accusations against Bartko, coming shortly after a successful Union intervention on her behalf,
in conjunction with his apparent overreaction to what appears, at best, to have been a minor
slight (neglecting to hold the door for him) suggests that he bore animus toward Bartko for more
than her conduct on that particular day.
Further, the sum of the evidence shows that Bartko’s outburst was provoked by two false
accusations of misconduct occurring within the space of two weeks as well as by Reingold’s
hostile and intimidating manner toward her on March 4. The Board has “long recognized that an
employer cannot provoke an employee to the point where he commits an indiscretion and then
rely on that conduct to terminate his employment.” Key Food, 336 NLRB 111, 113
(2001)(employee touched supervisor on the shoulder following supervisor’s abusive tirade). See
also Opelika Welding, supra at 568 (and cases cited therein). In addition, a distinction may be
drawn between spontaneous and premeditated statements by employees. Id. Here, Bartko’s
outburst was clearly provoked by Reingold’s overstated reaction to and false report of her
conduct; an exaggeration of events which I have concluded stemmed, at least in part, from his
animus toward Bartko’s protected conduct.
Moreover, the construct of Respondent’s proffered defense to Bartko’s discharge is
based upon assertions not supported by the record. In particular, the evidence fails to show that
Bartko slammed the door on Reingold or that she defied instructions not to report to work, as
Respondent has alleged. I conclude therefore that Respondent’s proffered reasons for Bartko’s
discharge are exaggerated and to a large extent simply false. Because Respondent’s defense is
pretextual in significant measure, it is inadequate to meet Respondent’s burden of proof to rebut
the General Counsel’s prima facie case, and precludes a finding that Bartko’s discharge took
place for non discriminatory reasons or that she would have been discharged had it not been for
her Union and protected, concerted activity. Accordingly, I find that Respondent discharged
Bartko in violation of Section 8(a)(3) of the Act.
C. The Unilateral Changes
1. Applicable Legal Principles
Under the Act, before an employer may effect a material and substantial change in its
employees’ wages, hours and other terms and conditions of employment, it must notify the
employees’ collective-bargaining representative and afford the representative an opportunity to
bargain about the change. NLRB v. Katz, 369 U.S. 736 (1962); Daily News of Los Angeles, 315
NLRB 1236, 1237-1238 (1994) enfd. 73 f.3D 406 (D.C. Cir. 1996). The notice given to the
union must be sufficient to allow a meaningful chance to bargain before the change is
implemented. Mercy Hospital of Buffalo, 311 NLRB 869, 873 (1993); Intersystems Design Corp.,
278 NLRB 759 (1986). While parties are negotiating for a collective-bargaining agreement, as is
the case here, the obligation to refrain from unilateral changes extends beyond the duty to
provide notice and an opportunity to bargain but also encompasses a duty to refrain from
implementation at all unless and until agreement or an overall impasse is reached. Bottom Line
Enterprises, 302 NLRB 373, 374 (1991) enfd. sub nom. Master Window Cleaning v. NLRB, 15
F.3d 1087 (9th Cir 1994). Moreover, a union must be provided with meaningful notice and an
opportunity to bargain. When a union learns of changes after they have already been
implemented, the Board recognizes that subsequent bargaining demands are futile. A union’s
failure to request bargaining under such circumstances does not constitute a waiver of any
statutory right to bargain over such changes. See Pontiac Osteopathic Hospital, 336 NLRB
1021, 1023-1024 (2001) and cases cited therein.
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The Board has also found that providing notice to employees regarding a change in
working conditions does not constitute notice to the union:
One of the purposes of initial notice to a bargaining representative of a proposed change
in terms and conditions of employment is to allow the representative to consult with unit
employees to decide whether to acquiesce in the change, oppose it or propose
modifications. A union’s role in that process is totally undermined when it learns of the
change incidentally upon notification to all employees.
Roll and Hold Warehouse & Distribution Corp., 325 NLRB 41-42 (1997).
It is within this context that I evaluate the allegations regarding the alleged unilateral
changes implemented by Respondent.
2. Discontinuance of hot lunches for employees
The General Counsel has alleged that by discontinuing its long-standing practice of
providing hot lunches to its employees for a period of approximately 6 months, Respondent has
violated the Act. It is further contended that the substitution of a sandwich and salad during this
period was a sufficiently material change in terms and conditions of employment to warrant
bargaining over the issue. Respondent argues that it did not effect any such change but has
merely continued its practice of offering hot lunches to employees when there is excess food
available after the facility’s residents have been fed.
In Ford Motor Co. v. NLRB, 441 U.S. 448, 449 (1979), the Court upheld the Board’s
finding that in-plant food services are a mandatory subject of bargaining and held as follows:
The availability of food during working hours and the conditions under which it is to be
consumed are matters of deep concern to workers, and one need not strain to consider
them to be among those “conditions” of employment that should be subject to the mutual
duty to bargain. By the same token, where an employer has chosen, apparently in his
own interest, to make available a system of in-plant feeding facilities for his employees,
the prices at which food is offered and other aspects of service may reasonably be
considered among those subjects about which the management and union must
bargain. The terms and conditions under which food is available on the job are plainly
germane to the “working environment”. . . (footnotes omitted).
Here, Respondent’s argument that no change occurred because employees historically
were provided with hot lunch only on a conditional basis, i.e., if sufficient food remained after the
residents were fed, is unsupported by any evidence and rebutted not only by Nogueira’s
credible testimony but by the express terms of the memorandum distributed to employees: “[a]s
of January 1st hot lunch will no longer be provided. In the meantime we will be offering a
sandwich and a salad, this will be available in the staff dining room” (emphasis supplied).
Moreover, this change was substantial and material. The Board has, under a variety of
circumstances, found that unilateral changes to the type and manner of food and drink provided
to employees are unlawful. See e.g. Mercy Hospital of Buffalo, supra (employer closed cafeteria
from 2:00 to 4:00 p.m. and substituted vending machines offering similar meal choices); Beverly
Enterprises, 310 NLRB 222, 239 (1993)(elimination of free coffee unlawful); Central Mack
Sales, 273 NLRB 1268 (1994)(same).
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Here, the credible witness testimony establishes that Respondent had been providing its
employees with free, on-site hot lunches for many years. Then, Reingold announced that they
would be receiving sandwiches and salads. There is simply no evidence to support
Respondent’s contention that the established and continued practice was to offer hot lunches to
employees on a conditional basis, i.e. when they were not consumed by the residents of the
facility. The record also establishes that no notice or meaningful opportunity to bargain over this
change was provided to the Union. Accordingly, Respondent has violated its duty to bargain in
violation of Section 8(a)(1) and (5) of the Act.28
3. Cessation of check-cashing privileges
The Respondent’s practice of providing employees with check-cashing services during
working hours is a mandatory subject of bargaining because it relates to wages, hours and
terms and conditions of employment. The practice involved the manner in which employees
received their pay, and their ability to cash their paychecks during working time provided an
economic benefit to these employees arising out their employment. I further find that this
change was material and significant because it required employees to cash their paychecks
during their own time. AT&T Corp., 325 NLRB 150, 153 (1997); See also Sheraton Hotel
Waterbury, 312 NLRB 304, 307 (1993); Sands Motel, 280 NLRB 132, 143 (1986)(Board adopts
finding that check-cashing privilege is a mandatory subject of bargaining); Somerville Mills, 308
NLRB 425 (1992)(Board adopts finding that the hour at which employees receive their paycheck
is a mandatory subject of bargaining.)
Respondent contends that it had no bargaining obligation over this issue because it had
no contractual relationship with the check cashing vendor, and that the company of its own
accord ceased providing such services as they were found not to be profitable.29 Assuming this
to be the case, such circumstances do not relieve Respondent of its obligation to bargain with
the Union over this change. As an initial matter, the issue of using working time to cash one’s
paycheck is one that is eminently suitable for collective bargaining. AT&T Corp., supra at 153.
Moreover, as the General Counsel notes, employees commonly receive any number of
significant employment services and benefits (health insurance, for example), through third-
party vendors. Such benefits are mandatory subjects of bargaining notwithstanding alterations
in the contractual relationship between the employer and the vendor. By way of another
example, in Ford Motor Co., supra at 503, discussed above, the Court noted that even though
the in-plant vending machine prices were set by the outside vendor, “an employer can always
effect prices by initiating or altering a subsidy to a third-party supplier. . .and will typically have
the right to change suppliers at some point in the future. . . the employer holds future, if not
present, leverage over in-plant food services and prices.” Such an analysis obtains here, as
well.

28 As the General Counsel notes, the fact that Respondent has since reinstituted the hot lunch
program does not remedy the violation because such a restoration, absent more, does not meet the
requirements of Passavant Memorial Area Hospital, 237 NLRB 138 (1978).
29 Although Moshell testified that this was the case, he was not employed at the facility at the time
and failed to demonstrate any personal knowledge of the nature of the relationship between the facility
and the check-cashing company. He also conceded that he did not know whether Respondent had
provided any instructions to the vendor. Thus, his testimony on this issue is hearsay which is unsupported
by any documentary or corroborating evidence. For purposes of my analysis, I will assume that that
Moshell’s testimony on this issue is an accurate reflection of the relationship between the Respondent
and the check cashing vendor; however, I wish to emphasize that do not find that Respondent has
adduced sufficient probative evidence to support its contentions.
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Thus, the time, place and manner in which employees cash their paychecks is a mandatory
subject of bargaining. Here there was no notice or opportunity afforded to the Union for
bargaining over such changes. Accordingly, I find that Respondent has violated the Act as
alleged in the complaint.
4. Discontinuance of free on-site physical examinations and tuberculosis tests.
The credible testimony of the employees here establishes that after February 18, 2011,
Respondent unilaterally discontinued its practice of providing free annual physical examinations
and tuberculosis (PPD) tests to its employees. After this date, a well-established practice
whereby a weekend nurse supervisor would provide such services to employees during working
hours was discontinued. Neither of the employees who were working for Respondent at the time
(Bartko and Nogueira) received these services thereafter.
Respondent relies upon Moshell’s assertion that certain employees have, since that
time, received such services, upon request. Moshell’s vague and conclusory testimony, as set
forth above, is unsubstantiated by any salient detail: thus he failed to offer particulars about who
might be providing such services, when they may have been provided, the number of
employees who have availed themselves of these services or where or when they were offered.
Similarly, Moshell failed to show that Respondent has notified its employees that on site
physical examinations and PPD testing remains available to them, something Respondent
easily could have done at any relevant time.
Moreover, Respondent’s position here is rebutted by plain and unambiguous language
of the memorandum distributed to employees, which states in pertinent part: “All employees are
required to submit their annual PPD & Physical Exam on or before MARCH 25, 2011 completed
by your physician” (emphasis supplied). Thus, employees are clearly directed that these matters
are to be undertaken with their own health care providers, and that, necessarily, they are to bear
the burden of the cost of these examinations, which are required for continued employment.
As a general matter, employees’ health benefits are a mandatory subject of bargaining about
which an employer has an obligation to bargain in good faith. E.I. DuPont De Nemours,
Louisville Works, 355 NLRB No. 176 (2010) enf. denied 682 F.3d 65 (D.C. Cir. 2012); United
Hosp. Med. Ctr., 317 NLRB 1279, 1281 (1995). Moreover, there can be no dispute that the cost
to employees of physical examinations, needed to maintain continued employment, “is an
aspect of the relationship between [an employer] and its employees.” Ford Motor Co., supra at
501 (1979). In Keeler Die Cast, 327 NLRB 585, 589 (1999), the Board adopted the
administrative law judge’s finding that the unilateral discontinuance of employer-subsidized
annual influenza vaccinations was a violation of Section 8(a)(5). Here, there is no evidence to
support Respondent’s contention that the services previously offered to employees are still
provided. Rather, the credible evidence in conjunction with the admissions contained in
Respondent’s own memorandum to employees shows that it is not. The evidence further
establishes that there was no notice provided to or an opportunity to bargain afforded to the
Union prior to the implementation of this change. As this health benefit to employees is a
mandatory subject of bargaining, Respondent’s unilateral change violated Section 8(a)(1) and
(5) of the Act.
5. The discontinuance of “medical expense” payouts to employees
The record shows that for several years prior to November 2011, employees who
declined health insurance coverage under the Employer’s health insurance plan received a
monthly sum which was keyed to the cost of insurance premiums for those who did participate
in the plan. Recently, certain employees received somewhere in the vicinity of $300 per month.
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Several years of such monthly payments clearly constitute a term and condition of employment
and a past practice which would require the Respondent to bargain over any change.
Although the memorandum announcing the elimination of medical pay outs refers to
changes in health care legislation, these were not explored on the record.30 However, even if
Respondent had shown that the discontinuance of medical pay outs had, in fact, been
necessitated by statutory changes, it would still be required to bargain with the Union over this
change in employment terms, unless it could show that bargaining over the subject would be
illegal. See e.g. National Fuel Gas Distribution Corp., 308 NLRB 841, 845 (1992)(employer
violated Section 8(a)(5) by unilaterally eliminating thrift plan where new tax law could make it
very expensive. . .”the appropriate mechanism for consideration of that potential consequence
is collective bargaining, not unilateral repudiation of a contract terms”); see also The Swanson
Group, Inc., 312 NLRB 184, 185 (1993)(employer must bargain about prior contract terms
claimed to be illegal. . .”If the Respondent believes the clauses are illegal, it can negotiate a
new agreement.”)
Respondent requests that I infer, from the fact that the parties apparently amicably
resolved the issue of the subcontracting of the laundry department, that it bargained in good
faith with the Union. However, the subcontracting of the laundry department is a separate issue
entirely. Here, there is no evidence to support Respondent’s apparent contention that it provided
prior notice of or an opportunity to bargain over the elimination of the health insurance pay out
with the Union. 31 I conclude that Respondent’s failure to do so is a violation of the Act.
In sum, inasmuch as the Union had no notice of any of the foregoing alleged unilateral
changes until after their implementation (and only then, from bargaining unit members), there
can be no basis for any credible argument that the Respondent provided timely notice to the
Union or afforded it a meaningful opportunity to bargain over these alterations in substantial and
material terms and conditions of employment. Nor does the fact that the parties have not met for
face-to-face negotiations since June 2010 excuse Respondent’s obligation to bargain over
these mandatory subjects. Accordingly, by unilaterally discontinuing hot lunches for its
employees, on site check cashing privileges, on site and free physical examinations and PPD
tests and medical expense pay outs to bargaining unit employees, Respondent has failed and
refused to bargain with the Union in violation of Section 8(a)(1) and (5) of the Act.
Conclusions of Law
1. Respondent, Sprain Brook Manor, LLC. is an employer engaged in commerce within
the meaning of the Act.
2. The Union, New York’s Health and Human Services Union 1199/SEIU, is a labor
organization within the meaning of the Act and the exclusive collective-bargaining
representative of the following unit of employees:
All full-time and regular part-time and per diem non-professional employees

30 Although the General Counsel subpoenaed documents relating to this matter, none were
produced.
31 There is no evidence regarding what Respondent’s proposals regarding health insurance
premiums was to the Union and this vague description, as framed by counsel’s questioning, is unhelpful.
Clearly, if Respondent had made a proposal, particularly a written proposal, to the Union regarding any of
the specific matters at issue in this proceeding, it could have provided evidence of such.
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including licensed practical nurses, certified nurses’ aides, geriatric techs/activity
aides, housekeeping employees, laundry employees/assistants, dietary aides, and
cooks employed by the Employer at its facility located at 77 Jackson Avenue, Scarsdale,
NY, but excluding all other employees, including office clerical employees, managers
and guards, professional employees and supervisors as defined by the Act.
3. By threatening employees with unspecified reprisals for seeking assistance from the
Union and by threatening employees that if they sought Union representation they would not
receive payments owed to them in connection with the compliance settlement in Sprain Brook
Manor LLC, 351 NLRB 1190 (2007), Respondent violated Section 8(a)(1) of the Act.
4. By discharging Catherine Alonso, Respondent violated Section 8(a)(1),(3) and (4) of
the Act.
5. By suspending and thereafter discharging Karen Bartko, Respondent violated Section
8(a)(1) and (3) of the Act.
6. By implementing the following changes to terms and conditions of bargaining unit
employees without affording the Union notice or an opportunity to bargain, Respondent violated
Section 8(a)(5) of the Act:
a. Discontinuing its practice of providing a free hot lunch to employees
b. Discontinuing its practice of providing on site check-cashing privileges to employees
c. Discontinuing its practice of providing free on-site physicals and PPD (tuberculosis)
examinations to employees
d. Discontinuing “medical expenses” pay outs to employees who were not enrolled in
the health plan offered by Respondent.
7. By the foregoing acts, Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
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. Having discriminatorily discharged Catherine Alonso and
suspended and then discharged Karen Bartko, Respondent must offer them reinstatement to
their former jobs, without prejudice to their seniority or other rights and privileges previously
enjoyed and make them whole for any loss of earnings and other benefits they may have
sustained by reason of Respondent’s unlawful conduct. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010), enf. denied on other grounds sub nom.
Jackson Hospital Corp., v. NLRB, 747 F.3d 1137 (D.C. Cir. 2011). Respondent shall also be
directed to expunge from the employment records of Alonso and Bartko any reference to their
unlawful discipline and notify each of them in writing that this has been done and that their
discipline will not be used against them in any way. Respondent should also be ordered to
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rescind, upon request of the Union, any of the unilateral changes found to be unlawful herein
and restore the status quo ante and provide the Union with notice and an opportunity to bargain
before making changes in terms and conditions of employment of bargaining unit employees.
Respondent should also be ordered to make employees whole for any losses they may have
incurred as a result of the unlawful unilateral changes to their terms and conditions of
employment. Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended32
ORDER
The Respondent, Sprain Brook Manor, LLC., Scarsdale, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with unspecified reprisals for seeking assistance from New
York’s Health and Human Services Union 1199/SEIU or any other labor organization.
(b) Threatening employees that if they seek union representation they will not receive
payments owed to them in connection with the compliance settlement in Sprain Brook Manor,
351 NLRB 1190 (2007).
(c) Suspending, discharging or otherwise discriminating against any employee for
supporting New York’s Health and Human Services Union 1199/SEIU or any other labor
organization or for participating in prior charges before the National Labor Relations Board.
(d) Unilaterally changing the wages, hours or other terms and conditions of employment
for members of the bargaining unit without first providing notice to and, upon request, bargaining
with the Union.
(e) In any like or related manner, interfering with, restraining or coercing employees in
the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act
(a) Within 14 days from the date of the Board’s Order, offer Catherine Alonso and Karen
Bartko full reinstatement to their former jobs or, if those jobs no longer exists, to substantially
equivalent positions, without prejudice to their seniority or any other rights or privileges
previously enjoyed.
(b) Make Catherine Alonso and Karen Bartko whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them in the manner set forth in the
remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any

32 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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reference to the unlawful discipline, and within 3 days thereafter notify the employees in writing
that this has been done and that the discipline will not be used against them in any way.
(d) Before implementing any changes in terms and conditions of employment of unit
employees, notify and, upon request, bargain with the Union as the exclusive collective-
bargaining representative of unit employees.
(e) Upon request by the Union, rescind any of the unilateral changes found unlawful
herein.
(f) Make employees whole for any losses they may have incurred as a result of the
above-described unilateral changes.
(g) 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 due under the terms of this
Order.
(h) Within 14 days after service by the Region, post at its facility in Scarsdale, New York
copies of the attached notice marked “Appendix.”33 Copies of the notice, on forms provided by
the Regional Director for Region 2 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. In
addition to the physical posting of paper notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site, and/or by other electronic means, if
the Respondent customarily communicates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the notices are not 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 November 9,
2010.
Dated, Washington, D.C. November 8, 2012
____________________
Mindy E. Landow
Administrative Law Judge

33 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.”
JD(NY)–35–12
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 threaten you with unspecified reprisals for seeking assistance from New York’s
Health and Human Services Union 1199/SEIU or any other labor organization
WE WILL NOT threaten you that if you seek union representation you will not receive payments
owed to you in connection with the compliance settlement in Sprain Brook Manor, 351 NLRB
1199 (2007).
WE WILL NOT suspend, discharge or otherwise discriminate against you for supporting New
York’s Health and Human Services Union 1199/SEIU or any other labor organization or for
participating in prior charges before the National Labor Relations Board.
WE WILL NOT change the wages, hours or other terms and conditions of employment for
members of the bargaining unit without first giving notice to and, upon request, bargaining with
the Union over the changes.
WE WILL NOT in any like or related manner, interfere with, restrain or coerce you in the
exercise of the rights guaranteed to you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order, offer Catherine Alonso and Karen
Bartko full reinstatement to their former jobs or, if those jobs no longer exists, to substantially
equivalent positions, without prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Catherine Alonso and Karen Bartko whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them.
WE WILL within 14 days from the date of the Board’s Order, remove from its files any reference
to the unlawful discipline, and within 3 days thereafter notify Catherine Alonso and Karen Bartko
in writing that this has been done and that the discipline will not be used against them in any
way.
JD(NY)–35–12
WE WILL before implementing any changes in terms and conditions of employment of unit
employees, notify and, upon request, bargain with the Union as the exclusive collective
bargaining representative of these employees.
WE WILL, upon request by the Union, rescind any of the unlawful unilateral changes to your
terms and conditions of employment.
WE WILL make our bargaining unit employees whole for any losses they may have incurred by
virtue of our unlawful unilateral changes to their terms and conditions of employment.
SPRAIN BROOK MANOR NURSING HOME, LLC
(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.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
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, 212-264-0346.