SPRAIN BROOK MANOR REHAB, LLC, PINNACLE DIETARY INC., AND COMMERCIAL BUILDING MAINTENANCE CORP.

National Labor Relations Board - Board Decisions

Mar 21, 2017

365 NLRB No. 45 (N.L.R.B. 2017)

365 NLRB No. 45
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Sprain Brook Manor Rehab, LLC, Pinnacle Dietary
Inc., Budget Services Inc., and Commercial
Building Maintenance Corp. and 1199 SEIU
United Healthcare Workers East and Local 713,
International Brotherhood of Trade Unions
Local 713, International Brotherhood of Trade Un-
ions and 1199 SEIU United Healthcare Workers
East. Cases 02–CA–089480, 02–CA–142506, 02–
CB–095670, and 02–CB–146895
March 21, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
On April 29, 2016, Administrative Law Judge Kenneth
W. Chu issued the attached decision. The General Coun-
sel filed limited exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions1 and
has decided to affirm the judge’s rulings, findings, and

1 The General Counsel filed exceptions “for the limited purpose of
correcting certain errors, omissions, and internal inconsistencies” in the
judge’s decision. No party filed an opposition. Accordingly, we make
the following corrections to the judge’s summary of the procedural
history: (1) Budget Services Inc. was added as a Respondent in this
proceeding by the amended charge dated November 26, 2012; (2) the
record supports that both testimony and documentary evidence pro-
duced pursuant to subpoena established meritorious allegations against
Budget; and (3) the third amended consolidated complaint (GC Exh.
2G) is the controlling pleading in this case. We also add Budget Ser-
vices Inc. to the joint employers named at Sec. VIII, (b) of the judge’s
decision to accurately reflect the complaint allegation.
No exceptions were filed to any of the judge’s findings on the merits
of the complaint allegations, including his findings with regard to the
Respondent Employers’ successor or joint-employer status; violations
of Sec. 8(a)(5) and (1) for unilaterally subcontracting unit work, unilat-
erally changing unit employees’ terms and conditions of employment,
or unilaterally changing the union access policy; violations of Sec.
8(a)(3) and (1) for subcontracting unit work with retaliatory, anti-union
motive or discharging key union supporters, including Alvin Nicholson,
Vernon Warren, and Clarisse Nogueria; and violations of Sec. 8(a)(2)
and (1) for granting assistance to or recognizing the Respondent Union,
IBOTU 713, as the unit employees’ exclusive collective-bargaining
representative, applying the terms of their agreement, including the
union security provision, when IBOTU 713 did not represent an unas-
sisted and uncoerced majority of unit employees, or discharging unit
employees who refused to sign IBOTU 713 union cards. Further, no
exceptions were filed to the judge’s finding that the Respondent Union
violated Sec. 8(b)(1)(A) by accepting recognition from the employers
when it did not have majority support and by applying the provisions of
their agreement, including the union security clause, to collect dues
from nonmember unit employees.
conclusions and to adopt the recommended Order as
modified and set forth in full below.2
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law 3 and
20.
“3. The Union 1199 SEIU is, and at all material times
has been, the exclusive joint bargaining representative
for the following appropriate unit:
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 employ-
ees/assistants, dietary aides, and cooks employed by the

2 In addition to the remedies recommended by the judge and con-
sistent with his findings and the Board’s standard remedies, we shall
order Respondents Sprain Brook, Pinnacle, and Budget to cease and
desist from discharging or otherwise discriminating against unit em-
ployees for supporting the Charging Party Union 1199 SEIU or any
other labor organization, and from discriminating against unit employ-
ees with respect to hire or tenure of employment in order to encourage
membership in the Respondent Union. We shall also order the Re-
spondents Sprain Brook, Pinnacle, and Budget to make Alvin Nichol-
son and Vernon Warren whole for any loss of earnings and other bene-
fits suffered as a result of unlawful discrimination against them.
Further, backpay amounts Respondent Sprain Brook is required to
pay for any loss of earnings and other benefits suffered as a result of
unilateral changes in terms and conditions of employment after unit
employees were hired by Respondents Pinnacle, Budget, and nonparty
Confidence are to be computed in accordance with Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971)—
not, as the judge indicated, in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950). See, e.g., Pepsi America, Inc., 339 NLRB 986, 986
fn. 2 (2003).
With respect to the reporting requirement for allocation of backpay,
we do not rely on the judge’s citation to Don Chavas, LLC d/b/a Tortil-
las Don Chavas, 361 NLRB No. 10 (2014). Instead, we rely on Ad-
voServ of New Jersey, Inc., 363 NLRB No. 143 (2016), which the judge
properly applied in his recommended Order.
In accordance with our recent decision in King Soopers, Inc., 364
NLRB No. 93 (2016), we shall also order Respondents Sprain Brook,
Budget, and Pinnacle to compensate affected employees for their
search-for-work and interim employment expenses regardless of
whether those expenses exceed interim earnings. Search-for-work and
interim employment expenses shall be calculated separately from taxa-
ble net backpay, with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). For the reasons stated in
his separate opinion in King Soopers, supra, slip op. at 12–16, Acting
Chairman Miscimarra would adhere to the Board’s former approach,
treating search-for-work and interim employment expenses as an offset
against interim earnings.
We shall modify the Order to conform to the judge’s findings and to
the Board’s standard remedial language and substitute new notices to
conform to the Order as modified.
Lastly, given that the judge did not enumerate each Conclusion of
Law, we have inserted standard numbering to each separate conclusion.
Our modification in this regard has no effect on our disposition of this
case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
employer at its facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employ-
ees, including office clerical employees, managers and
guards, professional employees and supervisors as de-
fined by the Act.”
“20. Respondents Sprain Brook, Pinnacle, and Budget,
jointly and severally, violated Section 8(a)(3) and (1) of
the Act by discharging Vernon Warren and Alvin Ni-
cholson because of their union activities.”
Insert the following as Conclusions of Law 12 and 14
and renumber the subsequent paragraphs accordingly.
“12. Respondent Sprain Brook violated Section 8(a)(3)
and (1) of the Act by subcontracting the work of the unit
employees to Pinnacle, Budget, CBM, and nonparty
Confidence.”
“14. The Respondents Sprain Brook and Budget, joint-
ly and severally, violated Section 8(a)(5) and (1) of the
Act by unilaterally altering the nursing unit employees’
terms and conditions of employment.”
ORDER
A. Respondent Sprain Brook, as a successor to Sprain
Brook Manor Nursing Home, LLC, Scarsdale, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with 1199 SEIU
United Healthcare Workers East (1199 SEIU) as the ex-
clusive collective-bargaining representative of the em-
ployees in the bargaining unit.
(b) Withdrawing recognition from 1199 SEIU as the
exclusive collective-bargaining representative of unit
employees.
(c) Granting assistance to Local 713, International
Brotherhood of Trade Unions (Local 713 IBOTU) and
recognizing it as the exclusive collective-bargaining rep-
resentative of the unit employees at a time when Local
713 IBOTU did not represent an unassisted and unco-
erced majority of the employees in the unit.
(d) Applying the terms and conditions of employment
of the collective-bargaining agreement between Re-
spondent Budget and Local 713 IBOTU (Budget-Local
713 Agreement), or any extensions, renewals, or modifi-
cations of that agreement, including its union-security
provisions, to the unit employees at a time when Local
713 IBOTU did not represent an unassisted and unco-
erced majority of the employees in the unit.
(e) Unilaterally discharging unit employees and sub-
contracting their work to Respondents Budget, Pinnacle,
and Confidence without first notifying 1199 SEIU and
giving it a meaningful opportunity to bargain regarding
the decision to discharge unit employees or subcontract
unit work.
(f) Subcontracting unit work for retaliatory motive be-
cause employees engaged in union activity.
(g) Changing the terms and conditions of employment
of the unit employees without first notifying 1199 SEIU
and giving it an opportunity to bargain.
(h) Discriminating against unit employees in regard to
their hire or tenure of employment in order to encourage
membership in Local 713 IBOTU.
(i) Threatening to discharge, discharging, or taking any
discipline against unit employees for engaging in union
or other protected concerted activities.
(j) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw and withhold all recognition from Local
713 IBOTU as the exclusive collective-bargaining repre-
sentative of the unit employees, unless and until that la-
bor organization has been certified by the National Labor
Relations Board as the exclusive representative of those
employees.
(b) Refrain from applying the terms and conditions of
employment of a collective-bargaining agreement with
Local 713 IBOTU, including its union-security provi-
sions, to the unit employees, unless and until that labor
organization has been certified by the National Labor
Relations Board as the exclusive representative of those
employees.
(c) Rescind the unlawful contract arrangements with
Respondents Pinnacle and Budget and restore the status
quo ante to ensure meaningful bargaining.
(d) Jointly and severally with Local 713 IBOTU, reim-
burse all unit employees for all initiation fees, dues, and
other moneys paid by them or withheld from their wages
pursuant to the Budget-Local 713 Agreement, with inter-
est.
(e) Recognize and, on request, bargain at reasonable
times and places and in good faith with 1199 SEIU as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit concerning
wages, hours, and other terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement:
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 employ-
ees/assistants, dietary aides, and cooks employed by the
employer at its facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employ-
ees, including office clerical employees, managers and
SPRAIN BROOK MANOR REHAB, LLC 3
guards, professional employees and supervisors as de-
fined by the Act.
Upon the request of 1199 SEIU, bargaining sessions
shall be held at a minimum of 15 hours per week or, in
the alternative, on another schedule to which 1199 SEIU
agrees, until an agreement or lawful impasse is reached
or until the parties agree to a respite in bargaining. The
Respondent shall also submit written progress reports
regarding the negotiations every 15 days to the Regional
Director for Region 2, with a copy of the report served
on 1199 SEIU, which shall have an opportunity to reply.
(f) Notify 1199 SEIU in writing of all changes made to
the unit employees’ terms and conditions of employment
on and after September 12, 2012, and, on request of 1199
SEIU, rescind any or all changes and restore terms and
conditions of employment retroactively to September 12,
2012.
(g) Make the unit employees whole, with interest, for
any losses sustained due to the unlawfully imposed
changes in wages, hours, benefits, and other terms and
conditions of employment in the manner set forth in the
remedy section of the judge’s decision as amended in
this decision.
(h) Within 14 days from the date of this Order, offer
Alvin Nicholson, Vernon Warren, and Clarisse Nogueria
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
(i) Make Alvin Nicholson, Vernon Warren, and
Clarisse Nogueria 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 sec-
tion of the judge’s decision as amended in this decision,
plus reasonable search-for-work and interim employment
expenses.
(j) Within 14 days from the date of this Order, offer
full reinstatement to all employees discharged from
Sprain Brook on September 12, 2012, and not
reemployed by Sprain Brook, to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
(k) Make whole all employees discharged from Sprain
Brook on and after September 12, 2012, and jointly
reemployed by Sprain Brook and the Respondent con-
tractors for any loss of earnings and other employee ben-
efits, in the manner set forth in the remedy section of the
judge’s decision as amended in this decision.
(l) Make whole all employees discharged from Sprain
Brook on September 12, 2012, and not reemployed by
the Respondent contractors for any loss of earnings and
other benefits suffered as a result their unlawful dis-
charge, in the manner set forth in the remedy section of
the judge’s decision as amended in this decision, plus
reasonable search-for-work and interim employment
expenses.
(m) Compensate the unit employees, including Alvin
Nicholson, Vernon Warren, and Clarisse Nogueria, for
any adverse income tax consequences of receiving their
backpay in one lump sum, and file with the Regional
Director for Region 2, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar year(s).
(n) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
including those of Alvin Nicholson, Vernon Warren, and
Clarisse Nogueria, and, within 3 days thereafter, notify
the affected employees in writing that this has been done
and that the unlawful discharges will not be used against
them in any way.
(o) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(p) Within 14 days after service by the Region, post at
its facility in Scarsdale, New York, copies of the attached
notice marked “Appendix A.”3 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by Respondent Sprain Brook’s author-
ized representative, shall be posted by Respondent Sprain
Brook and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, or other electronic means, if Respondent
Sprain Brook customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken
by Respondent Sprain Brook to ensure that the notices
are not altered, defaced, or covered by any other materi-
al. If Respondent Sprain Brook has gone out of business
or closed the facility involved in this proceeding, the

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current and former employees
employed by Respondent Sprain Brook at its Scarsdale,
New York facility at any time since June 15, 2009.
(q) Within 14 days after service by the Region, hold a
meeting or meetings during working hours, which shall
be scheduled to ensure the widest possible attendance of
unit employees, at which time the attached notice is to be
read to employees by a responsible management official
in the presence of a Board agent and an agent of 1199
SEIU if the Region or 1199 SEIU so desires, or, at the
Respondent’s option, by a Board agent in the presence of
a responsible management official and, if 1199 SEIU so
desires, of an agent of 1199 SEIU.
(r) Within 14 days after service by the Region, post at
the same places and under the same conditions as in the
preceding subparagraph signed copies of Respondent
Local 713 IBOTU’s notice to members and employees
marked “Appendix F.”
(s) Furnish the Regional Director with signed copies of
Respondent Sprain Brook’s notice to employees marked
“Appendix A” for posting by Respondent Local 713
IBOTU at its facilities where notices to members and
employees are customarily posted. Copies of the notice,
to be furnished by the Regional Director, shall be signed
and returned to the Regional Director promptly.
(t) Within 21 days after service by the Region, file
with the Regional Director for Region 2 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that Respondent Sprain
Brook has taken to comply.
B. Respondent Sprain Brook, Scarsdale, New York,
Respondent Pinnacle, Newburgh, New York, and Re-
spondent Budget, Brooklyn, New York, as joint employ-
ers, their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with 1199 SEIU
United Healthcare Workers East (1199 SEIU) as the ex-
clusive collective-bargaining representative of the em-
ployees in the following bargaining unit:
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 employ-
ees/assistants, dietary aides, and cooks employed by the
employer at its facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employ-
ees, including office clerical employees, managers and
guards, professional employees and supervisors as de-
fined by the Act.
(b) Withdrawing recognition from 1199 SEIU as the
exclusive collective-bargaining representative of unit
employees.
(c) Granting assistance to Local 713, International
Brotherhood of Trade Unions (Local 713 IBOTU) and
recognizing it as the exclusive collective-bargaining rep-
resentative of the unit employees at a time when Local
713 IBOTU did not represent an unassisted and unco-
erced majority of the employees in the unit.
(d) Applying the terms and conditions of employment
of the collective-bargaining agreement between Re-
spondent Budget and Local 713 IBOTU (Budget-Local
713 Agreement), including its union-security provisions,
to the unit employees at a time when Local 713 IBOTU
did not represent an unassisted and uncoerced majority of
the employees in the unit.
(e) Unilaterally discharging unit employees and sub-
contracting their work without first notifying 1199 SEIU
and giving it a meaningful opportunity to bargain regard-
ing the decision to discharge unit employees and subcon-
tract unit work.
(f) Bypassing 1199 SEIU and directly offering unit
employees continued employment in the unit on the basis
of terms and conditions of employment different from
those enjoyed under predecessor Sprain Brook and on
condition that they be represented by Local 713 IBOTU.
(g) Changing the terms and conditions of employment
of the unit employees without first notifying 1199 SEIU
and giving it an opportunity to bargain.
(h) Discriminating against unit employees in regard to
their hire or tenure of employment in order to encourage
membership in Local 713 IBOTU.
(i) Threatening to discharge, discharging, or taking any
discipline against unit employees for engaging in pro-
tected concerted activities.
(j) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw and withhold all recognition from Local
713 IBOTU as the exclusive collective-bargaining repre-
sentative of the unit employees, unless and until that la-
bor organization has been certified by the National Labor
Relations Board as the exclusive representative of those
employees.
(b) Refrain from applying the terms and conditions of
employment of a collective-bargaining agreement with
Local 713 IBOTU, including its union-security provi-
sions, to the unit employees, unless and until that labor
organization has been certified by the National Labor
SPRAIN BROOK MANOR REHAB, LLC 5
Relations Board as the exclusive representative of those
employees.
(c) Jointly and severally with Local 713 IBOTU, reim-
burse all unit employees for all initiation fees, dues, and
other moneys paid by them or withheld from their wages
pursuant to the Budget-Local 713 Agreement, with inter-
est.
(d) Notify 1199 SEIU in writing of all changes made
to the unit employees’ terms and conditions of employ-
ment on and after September 12, 2012, and, on request of
1199 SEIU, rescind any or all unlawfully imposed
changes and restore terms and conditions of employment
retroactively to September 12, 2012.
(e) Make the unit employees whole for any losses sus-
tained due to the unlawfully imposed changes in wages,
hours, benefits, and other terms and conditions of em-
ployment in the manner set forth in the remedy section of
the judge’s decision as amended in this decision.
(f) Make whole all unit employees discharged since
September 12, 2012, for any loss of earnings and other
benefits suffered as a result their unlawful discharge, in
the manner set forth in the remedy section of the judge’s
decision as amended in this decision, plus reasonable
search-for-work and interim employment expenses.
(g) Make Alvin Nicholson and Vernon Warren whole
for any loss of earnings and other benefits suffered as a
result of their unlawful discharges, in the manner set
forth in the remedy section of the judge’s decision as
amended in this decision, plus reasonable search-for-
work and interim employment expenses.
(h) Compensate the unit employees for any adverse in-
come tax consequences of receiving their backpay in one
lump sum, and file with the Regional Director for Region
2, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year(s).
(i) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges
and, within 3 days thereafter, notify the affected employ-
ees, including Alvin Nicholson and Vernon Warren, in
writing that this has been done and that the unlawful dis-
charges will not be used against them in any way.
(j) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(k) Within 14 days after service by the Region, post at
Respondent Sprain Brook’s facility in Scarsdale, New
York, copies of the attached notice marked “Appendix
B.”4 Copies of the notice, on forms provided by the Re-
gional Director for Region 2, after being jointly signed
by the authorized representatives of Respondents Sprain
Brook, Pinnacle, and Budget, shall be posted by Re-
spondent Sprain Brook and maintained for 60 consecu-
tive days in conspicuous places, including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, or other electronic
means, if Respondent Sprain Brook customarily com-
municates with its employees by such means. Reasona-
ble steps shall be taken by Respondent Sprain Brook to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If Respondent Sprain Brook
has gone out of business or closed the facility involved in
this proceeding, Respondents Sprain Brook, Pinnacle,
and Budget shall jointly duplicate and mail, at their own
expense, a copy of the notice to all current and former
unit employees employed by Respondent Sprain Brook
at its Scarsdale, New York facility at any time since Sep-
tember 12, 2012.
(l) Within 21 days after service by the Region, file
with the Regional Director for Region 2 a sworn certifi-
cation of responsible officials on a form provided by the
Region attesting to the steps that Respondents Sprain
Brook, Pinnacle, and Budget have taken to comply.
C. Respondent Sprain Brook, Scarsdale, New York,
and Respondent Budget, Brooklyn, New York, as joint
employers, their officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain with 1199 SEIU
United Healthcare Workers East (1199 SEIU) as the ex-
clusive collective-bargaining representative of the em-
ployees in the following bargaining unit:
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 employ-
ees/assistants, dietary aides, and cooks employed by the
employer at its facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employ-
ees, including office clerical employees, managers and

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
guards, professional employees and supervisors as de-
fined by the Act.
(b) Withdrawing recognition from 1199 SEIU as the
exclusive collective-bargaining representative of unit
employees.
(c) Granting assistance to Local 713, International
Brotherhood of Trade Unions (Local 713 IBOTU) and
recognizing it as the exclusive collective-bargaining rep-
resentative of the unit employees at a time when Local
713 IBOTU did not represent an unassisted and unco-
erced majority of the employees in the unit.
(d) Applying the terms and conditions of employment
of the collective-bargaining agreement between Re-
spondent Budget and Local 713 IBOTU (Budget-Local
713 Agreement), including its union-security provisions,
to the unit employees at a time when Local 713 IBOTU
did not represent an unassisted and uncoerced majority of
the employees in the unit.
(e) Bypassing 1199 SEIU and directly offering unit
employees continued employment in the unit on the basis
of terms and conditions of employment different from
those enjoyed under predecessor Sprain Brook and on
condition that they be represented by Local 713 IBOTU.
(f) Changing the terms and conditions of employment
of the unit employees without first notifying 1199 SEIU
and giving it an opportunity to bargain.
(g) Threatening to discharge, discharging, or taking
any discipline against unit employees for engaging in
protected concerted activities.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw and withhold all recognition from Local
713 IBOTU as the exclusive collective-bargaining repre-
sentative of the unit employees, unless and until that la-
bor organization has been certified by the National Labor
Relations Board as the exclusive representative of those
employees.
(b) Refrain from applying the terms and conditions of
employment of a collective-bargaining agreement with
Local 713 IBOTU, including its union-security provi-
sions, to the unit employees, unless and until that labor
organization has been certified by the National Labor
Relations Board as the exclusive representative of those
employees.
(c) Jointly and severally with Local 713 IBOTU, reim-
burse all unit employees for all initiation fees, dues, and
other moneys paid by them or withheld from their wages
pursuant to the Budget-Local 713 Agreement, with inter-
est.
(d) Notify 1199 SEIU in writing of all changes made
to the unit employees’ terms and conditions of employ-
ment on and after September 12, 2012, and, on request of
1199 SEIU, rescind any or all unlawfully imposed
changes and restore terms and conditions of employment
retroactively to September 12, 2012.
(e) Make the unit employees whole for any losses sus-
tained due to the unlawfully imposed changes in wages,
hours, benefits, and other terms and conditions of em-
ployment in the manner set forth in the remedy section of
the judge’s decision as amended in this decision.
(f) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 2,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award(s) to the appropriate calendar
years for each employee.
(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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic 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
Respondent Sprain Brook’s facility in Scarsdale, New
York, copies of the attached notice marked “Appendix
C.”5 Copies of the notice, on forms provided by the Re-
gional Director for Region 2, after being jointly signed
by the authorized representatives of Respondents Sprain
Brook and Budget, shall be posted by Respondent Sprain
Brook and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, or other electronic means, if Respondent
Sprain Brook customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken
by Respondent Sprain Brook to ensure that the notices
are not altered, defaced, or covered by any other materi-
al. If Respondent Sprain Brook has gone out of business
or closed the facility involved in this proceeding, Re-
spondents Sprain Brook and Budget shall jointly dupli-

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
SPRAIN BROOK MANOR REHAB, LLC 7
cate and mail, at their own expense, a copy of the notice
to all current and former employees employed by Re-
spondent Sprain Brook at its Scarsdale, New York facili-
ty at any time since September 12, 2012.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 2 a sworn certifi-
cation of responsible officials on a form provided by the
Region attesting to the steps that Respondents Sprain
Brook and Budget have taken to comply.
D. Respondent Budget, Brooklyn, New York, as a
successor to Commercial Building Maintenance Corp.,
Syosset, New York, and Respondent Sprain Brook,
Scarsdale, New York, as joint employers, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with 1199 SEIU
United Healthcare Workers East (1199 SEIU) as the ex-
clusive collective-bargaining representative of the em-
ployees in the following bargaining unit:
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 employ-
ees/assistants, dietary aides, and cooks employed by the
employer at its facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employ-
ees, including office clerical employees, managers and
guards, professional employees and supervisors as de-
fined by the Act.
(b) Withdrawing recognition from 1199 SEIU as the
exclusive collective-bargaining representative of unit
employees.
(c) Granting assistance to Local 713, International
Brotherhood of Trade Unions (Local 713 IBOTU) and
recognizing it as the exclusive collective-bargaining rep-
resentative of the unit employees at a time when Local
713 IBOTU did not represent an unassisted and unco-
erced majority of the employees in the unit.
(d) Applying the terms and conditions of employment
of the collective-bargaining agreement between Re-
spondent Budget and Local 713 IBOTU (Budget-Local
713 Agreement), including its union-security provisions,
to the unit employees at a time when Local 713 IBOTU
did not represent an unassisted and uncoerced majority of
the employees in the unit.
(e) Bypassing 1199 SEIU and directly offering unit
employees continued employment in the unit on the basis
of terms and conditions of employment different from
those enjoyed under predecessor Sprain Brook and on
condition that they be represented by Local 713 IBOTU.
(f) Changing the terms and conditions of employment
of the unit employees without first notifying 1199 SEIU
and giving it an opportunity to bargain.
(g) Threatening employees with discharge or other re-
prisals if they select 1199 SEIU as their bargaining rep-
resentative.
(h) Discharging or refusing to offer employment to in-
dividuals because of their protected concerted activity.
(i) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw and withhold all recognition from Local
713 IBOTU as the exclusive collective-bargaining repre-
sentative of the unit employees, unless and until that la-
bor organization has been certified by the National Labor
Relations Board as the exclusive representative of those
employees.
(b) Refrain from applying the terms and conditions of
employment of a collective-bargaining agreement with
Local 713 IBOTU, including its union-security provi-
sions, to the unit employees, unless and until that labor
organization has been certified by the National Labor
Relations Board as the exclusive representative of those
employees.
(c) Jointly and severally with Local 713 IBOTU, reim-
burse all unit employees for all initiation fees, dues, and
other moneys paid by them or withheld from their wages
pursuant to the Budget-Local 713 Agreement, with inter-
est.
(d) Notify 1199 SEIU in writing of all changes made
to the unit employees’ terms and conditions of employ-
ment on and after October 1, 2014, and, on request of
1199 SEIU, rescind any or all unlawfully imposed
changes and restore terms and conditions of employment
retroactively to October 1, 2014.
(e) Make the unit employees whole for any losses sus-
tained due to the unlawfully imposed changes in wages,
hours, benefits, and other terms and conditions of em-
ployment in the manner set forth in the remedy section of
the judge’s decision as amended in this decision.
(f) Make whole all unit employees discharged since
October 1, 2014, for any loss of earnings and other bene-
fits suffered as a result of their unlawful discharge, in the
manner set forth in the remedy section of the judge’s
decision as amended in this decision, plus reasonable
search-for-work and interim employment expenses.
(g) Compensate the unit employees for any adverse in-
come tax consequences of receiving their backpay in one
lump sum, and file with the Regional Director for Region
2, within 21 days of the date the amount of backpay is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year(s).
(h) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges
and, within 3 days thereafter, notify the affected employ-
ees in writing that this has been done and that the unlaw-
ful discharges will not be used against them in any way.
(i) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(j) Within 14 days after service by the Region, post at
Respondent Sprain Brook’s facility in Scarsdale, New
York, copies of the attached notice marked “Appendix
D.”6 Copies of the notice, on forms provided by the Re-
gional Director for Region 2, after being signed by the
authorized representative of Respondent Budget, shall be
posted by Respondent Sprain Brook and maintained for
60 consecutive days in conspicuous places, including all
places where notices to employees are customarily post-
ed. In addition to physical posting of paper notices, no-
tices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, or other elec-
tronic means, if Respondent Sprain Brook customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by Respondent Sprain Brook
to ensure that the notices are not altered, defaced, or cov-
ered by any other material. If Respondent Sprain Brook
has gone out of business or closed the facility involved in
this proceeding, Respondent Budget shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent and former unit employees employed by Respondent
Sprain Brook at its Scarsdale, New York facility at any
time since October 1, 2014.
(k) Within 21 days after service by the Region, file
with the Regional Director for Region 2 a sworn certifi-
cation of responsible officials on a form provided by the
Region attesting to the steps that Respondents Sprain
Brook and Budget have taken to comply.
E. Respondent Commercial Building Maintenance
Corp. (CBM), Syosset, New York, as a successor to non-

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
party Confidence, Linden, New Jersey, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with 1199 SEIU
United Healthcare Workers East (1199 SEIU) as the ex-
clusive collective-bargaining representative of the em-
ployees in the following bargaining unit:
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 employ-
ees/assistants, dietary aides, and cooks employed by the
employer at its facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employ-
ees, including office clerical employees, managers and
guards, professional employees and supervisors as de-
fined by the Act.
(b) Withdrawing recognition from 1199 SEIU as the
exclusive collective-bargaining representative of unit
employees.
(c) Changing the terms and conditions of employment
of the unit employees without first notifying 1199 SEIU
and giving it an opportunity to bargain.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify 1199 SEIU in writing of all changes made to
the unit employees’ terms and conditions of employment
on and after July 1, 2013, and, on request of 1199 SEIU,
rescind any or all changes and restore terms and condi-
tions of employment retroactively to July 1, 2013.
(b) Make the unit employees whole for any losses sus-
tained due to the unlawfully imposed changes in wages,
hours, benefits, and other terms and conditions of em-
ployment in the manner set forth in the remedy section of
the judge’s decision as amended in this decision.
(c) Compensate the unit employees for any adverse in-
come tax consequences of receiving their backpay in one
lump sum, and file with the Regional Director for Region
2, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year(s).
(d) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
SPRAIN BROOK MANOR REHAB, LLC 9
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
Respondent Sprain Brook’s facility in Scarsdale, New
York, copies of the attached notice marked “Appendix
E.”7 Copies of the notice, on forms provided by the Re-
gional Director for Region 2, after being signed by Re-
spondent CBM’s authorized representative, shall be
posted by Respondent Sprain Brook and maintained for
60 consecutive days in conspicuous places, including all
places where notices to employees are customarily post-
ed. In addition to physical posting of paper notices, no-
tices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, or other elec-
tronic means, if Respondent Sprain Brook customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by Respondent Sprain Brook
to ensure that the notices are not altered, defaced, or cov-
ered by any other material. If Respondent Sprain Brook
has gone out of business or closed the facility involved in
this proceeding, Respondent CBM shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent and former unit employees employed by Respondent
CBM at the Sprain Brook Scarsdale, New York facility
at any time since July 1, 2013.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 2 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that Respondent CBM has
taken to comply.
F. The Respondent Union, Local 713, International
Brotherhood of Trade Unions, Garden City, New York,
its officers, agents and representatives, shall
1. Cease and desist from
(a) Accepting assistance and recognition from Re-
spondents Sprain Brook, Pinnacle and Budget as the ex-
clusive collective-bargaining representative of unit em-
ployees at a time when Respondent Local 713 IBOTU
did not represent an uncoerced majority of the employees
in the unit.
(b) Maintaining and enforcing the Budget-Local 713
Agreement, or any extension, renewal, or modification
thereof, including its union-security provisions, so as to
cover the unit employees, unless and until Local 713
IBOTU has been certified by the National Labor Rela-
tions Board as the collective-bargaining representative of
those employees.

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Decline recognition as the exclusive collective-
bargaining representative of employees in the following
unit, unless and until Local 713 IBOTU has been certi-
fied by the National Labor Relations Board as the exclu-
sive representative of those 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 employ-
ees/assistants, dietary aides, and cooks employed by the
employer at its facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employ-
ees, including office clerical employees, managers and
guards, professional employees and supervisors as de-
fined by the Act.
(b) Jointly and severally with Respondents Sprain
Brook, Pinnacle and Budget, reimburse all present and
former unit employees for all initiation fees, dues, and
other moneys paid by them or withheld from their wages
pursuant to the Budget-Local 713 Agreement, with inter-
est.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents all records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount due under the
terms of this Order.
(d) Within 14 days after service by the Region, post at
its headquarters and at its offices and meeting halls in
Garden City, New York, copies of the attached notice
marked “Appendix F.”8 Copies of the notice, on forms
provided by the Regional Director for Region 2, after
being signed by Respondent Local 713 IBOTU’s author-
ized representative, shall be posted by Respondent Local
713 IBOTU and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees and members are customarily posted. In ad-
dition to physical posting of paper notices, notices shall
be distributed electronically, such as by email, posting on
an intranet or an internet site, or other electronic means,

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
if Respondent Local 713 IBOTU customarily communi-
cates with its members by such means. Reasonable steps
shall be taken by Respondent Local 713 IBOTU to en-
sure that the notices are not altered, defaced, or covered
by any other material.
(e) Within 14 days after service by the Region, post at
the same places and under the same conditions as in the
preceding subparagraph signed copies of Respondent
Sprain Brook’s notice to employees marked “Appendix
A.”
(f) Furnish the Regional Director with signed copies of
Respondent Local 713 IBOTU’s notice to members and
employees marked “Appendix F” for posting by Re-
spondent Sprain Brook at its facility where notices to
employees are customarily posted. Copies of the notice,
to be furnished by the Regional Director, shall be signed
and returned to the Regional Director promptly.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 2 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that Respondent Local 713
IBOTU has taken to comply.
Dated, Washington, D.C. March 21, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain with 1199
SEIU United Healthcare Workers East (1199 SEIU) as
your exclusive collective-bargaining representative.
WE WILL NOT withdraw recognition from 1199 SEIU
as your exclusive collective-bargaining representative.
WE WILL NOT grant assistance to Local 713, Interna-
tional Brotherhood of Trade Unions (Local 713 IBOTU)
or recognize it as your exclusive collective-bargaining
representative at a time when Local 713 IBOTU does not
represent an unassisted and uncoerced majority of the
employees in the unit.
WE WILL NOT apply the terms and conditions of em-
ployment of the collective-bargaining agreement with
Local 713 IBOTU (the Budget-Local 713 Agreement), or
any extensions, renewals, or modifications of that
agreement, including its union-security provisions, to
you at a time when Local 713 IBOTU does not represent
an unassisted and uncoerced majority of employees in
the unit.
WE WILL NOT discharge you and subcontract your
work without first notifying 1199 SEIU and giving it a
meaningful opportunity to bargain regarding the decision
to discharge you and subcontract your work.
WE WILL NOT subcontract unit work for retaliatory mo-
tive because you engage in union activity.
WE WILL NOT change your terms and conditions of
employment without first notifying 1199 SEIU and giv-
ing it an opportunity to bargain.
WE WILL NOT discriminate against you in regard to
your hire or tenure of employment in order to encourage
membership in Local 713 IBOTU.
WE WILL NOT threaten to discharge, discharge, or take
any other disciplinary action against you for engaging in
protected concerted activities.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights listed
above.
WE WILL withdraw and withhold all recognition from
Local 713 IBOTU as your exclusive collective-
bargaining representative, unless and until Local 713
IBOTU has been certified by the National Labor Rela-
tions Board as your exclusive collective-bargaining rep-
resentative.
WE WILL refrain from applying to you the terms and
conditions of employment of a collective-bargaining
agreement with Local 713 IBOTU, including its union-
SPRAIN BROOK MANOR REHAB, LLC 11
security provisions, unless and until Local 713 IBOTU
has been certified by the National Labor Relations Board
as your exclusive representative.
WE WILL rescind unlawful contract arrangements with
Pinnacle and Budget, and WE WILL restore your terms
and conditions of employment that existed prior to those
contracts to ensure meaningful bargaining.
WE WILL, jointly and severally with Local 713
IBOTU, reimburse you for all initiation fees, dues, and
other moneys paid by you or withheld from your wages
pursuant to the Budget-Local 713 Agreement, with inter-
est.
WE WILL recognize and, on request, bargain at reason-
able times and places and in good faith with 1199 SEIU
as the exclusive collective-bargaining representative of
our employees in the following appropriate unit concern-
ing wages, hours, and other terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement:
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 employ-
ees/assistants, dietary aides, and cooks employed by the
employer at its facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employ-
ees, including office clerical employees, managers and
guards, professional employees and supervisors as de-
fined by the Act.
WE WILL, upon the request of 1199 SEIU, hold bar-
gaining sessions for a minimum of 15 hours per week, or,
in the alternative, on another schedule to which 1199
SEIU agrees, until an agreement or lawful impasse is
reached or until the parties agree to a respite in bargain-
ing, and WE WILL also submit written progress reports
regarding the negotiations every 15 days to the Regional
Director for Region 2, with a copy of the report served
on 1199 SEIU, which shall have an opportunity to reply.
WE WILL notify 1199 SEIU in writing of any changes
made to your terms and conditions of employment on or
after September 12, 2012, and, on request of 1199 SEIU,
WE WILL rescind any or all changes and restore your
terms and conditions of employment retroactively to
September 12, 2012.
WE WILL make you whole, with interest, for any losses
sustained due to our unlawfully imposed changes in
wages, hours, benefits, and other terms and conditions of
employment.
WE WILL, within 14 days from the date of the Board’s
Order, offer Alvin Nicholson, Vernon Warren, and
Clarisse Nogueria full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Alvin Nicholson, Vernon Warren, and
Clarisse Nogueria whole for any loss of earnings and
other benefits as a result of our unlawful discharge of
them, less any net interim earnings, plus interest, plus
reasonable search-for-work and interim employment
expenses.
WE WILL, within 14 days from the date of the Board’s
Order, offer full reinstatement to all unit employees dis-
charged from Sprain Brook Manor Rehab, LLC on and
after September 12, 2012, and not reemployed by Sprain
Brook, to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make whole, with interest, all unit employees
discharged from Sprain Brook Manor Rehab, LLC on
and after September 12, 2012, who were then
reemployed by joint employers Sprain Brook and our
contractors for any loss of earnings and other benefits as
a result of our unlawful discharge of them.
WE WILL make whole, with interest, all unit employees
discharged from Sprain Brook on September 12, 2012,
and not reemployed by the Respondent contractors for
any loss of earnings and other benefits as a result of our
unlawful discharge of them, less any net interim earn-
ings, plus interest, plus reasonable search-for-work and
interim employment expenses.
WE WILL compensate unit employees, including Alvin
Nicholson, Vernon Warren, and Clarisse Nogueria, for
any adverse income tax consequences of receiving their
backpay in one lump sum, and WE WILL file with the Re-
gional Director for Region 2, within 21 days of the date
the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar year(s).
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful September 12, 2012 discharge of the unit employees,
including Alvin Nicholson, Vernon Warren, and Clarisse
Nogueria, and WE WILL, within 3 days thereafter, notify
the affected employees in writing that this has been done
and that we will not use the unlawful discharges against
them in any way.
SPRAIN BROOK MANOR REHAB, LLC
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-089480 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain with 1199
SEIU United Healthcare Workers East (1199 SEIU) as
the exclusive collective-bargaining representative of our
employees in the following bargaining unit:
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 employ-
ees/assistants, dietary aides, and cooks employed by the
employer at its facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employ-
ees, including office clerical employees, managers and
guards, professional employees and supervisors as de-
fined by the Act.
WE WILL NOT withdraw recognition from 1199 SEIU
as your exclusive collective-bargaining representative.
WE WILL NOT grant assistance to Local 713, Interna-
tional Brotherhood of Trade Unions (Local 713 IBOTU)
or recognize it as your exclusive collective-bargaining
representative at a time when Local 713 IBOTU does not
represent an unassisted and uncoerced majority of the
employees in the unit.
WE WILL NOT apply the terms and conditions of em-
ployment of the collective-bargaining agreement with
Local 713 IBOTU (the Budget-Local 713 Agreement), or
any extensions, renewals, or modifications of that
agreement, including its union-security provisions, to
you at a time when Local 713 IBOTU does not represent
an unassisted and uncoerced majority of employees in
the unit.
WE WILL NOT discharge you and subcontract your
work without first notifying 1199 SEIU and giving it a
meaningful opportunity to bargain regarding the decision
to discharge you and subcontract your work.
WE WILL NOT bypass 1199 SEIU and directly offer you
continued employment in the unit on the basis of terms
and conditions of employment different from those you
enjoyed under the predecessor Sprain Brook and on con-
dition that you be represented by Local 713 IBOTU.
WE WILL NOT change your terms and conditions of
employment without first notifying 1199 SEIU and giv-
ing it a meaningful opportunity to bargain.
WE WILL NOT discriminate against our employees in
regard to their hire or tenure of employment in order to
encourage membership in Local 713 IBOTU.
WE WILL NOT threaten to discharge or take any disci-
pline against you for engaging in protected concerted
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL withdraw and withhold all recognition from
Local 713 IBOTU as your exclusive collective-
bargaining representative, unless and until Local 713
IBOTU has been certified by the National Labor Rela-
tions Board as your exclusive collective-bargaining rep-
resentative.
WE WILL refrain from applying to you the terms and
conditions of employment of a collective-bargaining
agreement with Local 713 IBOTU, including its union-
security provisions, unless and until that labor organiza-
tion has been certified by the National Labor Relations
Board as your exclusive representative.
WE WILL, jointly and severally with Local 713
IBOTU, reimburse you for all initiation fees, dues, and
other moneys paid by you or withheld from your wages
pursuant to the Budget-Local 713 Agreement, with inter-
est.
WE WILL notify 1199 SEIU in writing of any changes
made to your terms and conditions of employment on
and after September 12, 2012, and, on request of 1199
SEIU, WE WILL rescind any or all of our unlawfully im-
posed changes and restore your terms and conditions of
employment that existed prior to September 12, 2012.
WE WILL make you whole, with interest, for any losses
sustained due to our unlawfully imposed changes in
SPRAIN BROOK MANOR REHAB, LLC 13
wages, benefits, and other terms and conditions of em-
ployment.
WE WILL make whole, with interest, all unit employees
unlawfully discharged on or after September 12, 2012,
for any loss of earnings and other benefits as a result of
our unlawful discharge of them, less any net interim
earnings, plus interest, plus reasonable search-for-work
and interim employment expenses.
WE WILL make Alvin Nicholson and Vernon Warren
whole, with interest, for any loss of earnings and other
benefits as a result of our unlawful discharge of them,
less any net interim earnings, plus interest, plus reasona-
ble search-for-work and interim employment expenses.
WE WILL compensate you for any adverse income tax
consequences of receiving backpay in one lump sum, and
WE WILL file with the Regional Director for Region 2,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year(s).
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the dis-
charges of the unit employees, and WE WILL, within 3
days thereafter, notify the affected employees, including
Alvin Nicholson and Vernon Warren, in writing that this
has been done and that the unlawful discharges will not
be used against them in any way.
SPRAIN BROOK MANOR REHAB, LLC,
PINNACLE DIETARY INC., BUDGET
SERVICES, INC., A JOINT EMPLOYER
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-089480 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
APPENDIX C
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain with 1199
SEIU United Healthcare Workers East (1199 SEIU) as
the exclusive collective-bargaining representative of our
employees in the following bargaining unit:
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 employ-
ees/assistants, dietary aides, and cooks employed by the
employer at its facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employ-
ees, including office clerical employees, managers and
guards, professional employees and supervisors as de-
fined by the Act.
WE WILL NOT withdraw recognition from 1199 SEIU
as your exclusive collective-bargaining representative.
WE WILL NOT grant assistance to Local 713, Interna-
tional Brotherhood of Trade Unions (Local 713 IBOTU)
or recognize it as your exclusive collective-bargaining
representative at a time when Local 713 IBOTU does not
represent an unassisted and uncoerced majority of the
employees in the unit.
WE WILL NOT apply the terms and conditions of em-
ployment of the collective-bargaining agreement with
Local 713 IBOTU (the Budget-Local 713 Agreement), or
any extensions, renewals, or modifications of that
agreement, including its union-security provisions, to
you at a time when Local 713 IBOTU does not represent
an unassisted and uncoerced majority of employees in
the unit.
WE WILL NOT bypass 1199 SEIU and directly offer you
continued employment in the unit on the basis of terms
and conditions of employment different from those you
enjoyed under the predecessor Sprain Brook and on con-
dition that you be represented by Local 713 IBOTU.
WE WILL NOT change your terms and conditions of
employment without first notifying 1199 SEIU and giv-
ing it an opportunity to bargain.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
WE WILL NOT threaten to discharge, discharge, or take
any discipline against you for engaging in protected con-
certed activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL withdraw and withhold all recognition from
Local 713 IBOTU as your exclusive collective-
bargaining representative, unless and until Local 713
IBOTU has been certified by the National Labor Rela-
tions Board as your exclusive collective-bargaining rep-
resentative.
WE WILL refrain from applying to you the terms and
conditions of employment of a collective-bargaining
agreement with Local 713 IBOTU, including its union-
security provisions, unless and until that labor organiza-
tion has been certified by the National Labor Relations
Board as your exclusive representative.
WE WILL, jointly and severally with Local 713
IBOTU, reimburse all unit employees for all initiation
fees, dues, and other moneys paid by them or withheld
from their wages pursuant to the Budget-Local 713
Agreement, with interest.
WE WILL notify 1199 SEIU in writing of any changes
made to your terms and conditions of employment on
and after September 12, 2012, and, on request of 1199
SEIU, WE WILL rescind any or all of our unlawfully im-
posed changes and restore your terms and conditions of
employment that existed prior to September 12, 2012.
WE WILL make you whole, with interest, for any losses
sustained due to our unlawfully imposed changes in
wages, benefits, and other terms and conditions of em-
ployment.
WE WILL compensate you for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and WE WILL file with the Regional Director for Region
2, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year(s) for each employee.
SPRAIN BROOK MANOR REHAB, LLC
AND BUDGET SERVICES, INC. A JOINT
EMPLOYER
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-089480 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
APPENDIX D
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain with 1199
SEIU United Healthcare Workers East (SEIU 1199) as
the exclusive collective-bargaining representative of our
employees in the following bargaining unit:
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 employ-
ees/assistants, dietary aides, and cooks employed by the
employer at its facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employ-
ees, including office clerical employees, managers and
guards, professional employees and supervisors as de-
fined by the Act.
WE WILL NOT withdraw recognition from 1199 SEIU
as your exclusive collective-bargaining representative.
WE WILL NOT grant assistance to Local 713, Interna-
tional Brotherhood of Trade Unions (Local 713 IBOTU)
or recognize it as your exclusive collective-bargaining
representative at a time when Local 713 IBOTU does not
represent an unassisted and uncoerced majority of the
employees in the unit.
SPRAIN BROOK MANOR REHAB, LLC 15
WE WILL NOT apply the terms and conditions of em-
ployment of the collective-bargaining agreement with
Local 713 IBOTU (the Budget-Local 713 Agreement), or
any extensions, renewals, or modifications of that
agreement, including its union-security provisions, to
you at a time when Local 713 IBOTU does not represent
an unassisted and uncoerced majority of employees in
the unit.
WE WILL NOT bypass 1199 SEIU and directly offer you
continued employment in the unit on the basis of terms
and conditions of employment different from those you
enjoyed under the predecessor Sprain Brook and on con-
dition that you be represented by Local 713 IBOTU.
WE WILL NOT change your terms and conditions of
employment without first notifying 1199 SEIU and giv-
ing it an opportunity to bargain.
WE WILL NOT threaten you with discharge or other re-
prisals if you select 1199 SEIU as your bargaining agent.
WE WILL NOT discharge or refuse to offer you em-
ployment because of your protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL withdraw and withhold all recognition from
Local 713 IBOTU as your exclusive collective-
bargaining representative, unless and until Local 713
IBOTU has been certified by the National Labor Rela-
tions Board as your exclusive collective bargaining rep-
resentative.
WE WILL refrain from applying to you the terms and
conditions of employment of a collective-bargaining
agreement with Local 713 IBOTU, including its union-
security provisions, unless and until that labor organiza-
tion has been certified by the National Labor Relations
Board as your exclusive representative.
WE WILL, jointly and severally with Local 713
IBOTU, reimburse you for all initiation fees, dues, and
other moneys paid by you or withheld from your wages
pursuant to the Budget-Local 713 Agreement, with inter-
est.
WE WILL notify 1199 SEIU in writing of all changes
made to your terms and conditions of employment on
and after October 1, 2014, and on request of 1199 SEIU,
WE WILL rescind any or all unlawfully imposed changes
and restore your terms and conditions of employment
retroactively to October 1, 2014.
WE WILL make you whole, with interest, for any losses
sustained due to our unlawfully imposed changes in
wages, benefits, and other terms and conditions of em-
ployment.
WE WILL make whole, with interest, all unit employees
unlawfully discharged on and after October 1, 2014, for
any loss of earnings and other benefits as a result of our
unlawful discharge of them, less any net interim earn-
ings, plus interest, plus reasonable search-for-work and
interim employment expenses.
WE WILL compensate you for any adverse income tax
consequences of receiving backpay in one lump sum, and
WE WILL file with the Regional Director for Region 2,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year(s).
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of the unit employees, and WE WILL, within
3 days thereafter, notify the affected employees in writ-
ing that this has been done and that the unlawful dis-
charges will not be used against them in any way.
SPRAIN BROOK MANOR REHAB, LLC,
BUDGET SERVICES, INC., A JOINT
EMPLOYER
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-089480 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
APPENDIX E
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain with 1199
SEIU United Healthcare Workers East (1199 SEIU) as
the exclusive collective-bargaining representative of our
employees in the following bargaining unit:
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 employ-
ees/assistants, dietary aides, and cooks employed by the
employer at its facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employ-
ees, including office clerical employees, managers and
guards, professional employees and supervisors as de-
fined by the Act.
WE WILL NOT withdraw recognition from 1199 SEIU
as your exclusive collective-bargaining representative.
WE WILL NOT change your terms and conditions of
employment without first notifying 1199 SEIU and giv-
ing it a meaningful opportunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL notify 1199 SEIU in writing of any changes
made to your terms and conditions of employment on
and after July 1, 2013, and on request of 1199 SEIU, WE
WILL rescind any or all of our unlawfully imposed
changes and restore your terms and conditions of em-
ployment that existed prior to July 1, 2013.
WE WILL make you whole, with interest, for any losses
sustained due to our unlawfully imposed changes in
wages, benefits, and other terms and conditions of em-
ployment.
WE WILL compensate you for any adverse income tax
consequences of receiving backpay in one lump sum, and
WE WILL file with the Regional Director for Region 2,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year(s).
COMMERCIAL BUILDING
MAINTENANCE CORP
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-089480 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
APPENDIX F
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 on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT accept assistance or recognition from
Sprain Brook Manor Rehab, LLC, Pinnacle Dietary Inc.
or Budget Services, Inc. as your exclusive collective-
bargaining representative at a time when we do not rep-
resent an uncoerced majority of the employees in your
unit.
WE WILL NOT maintain or enforce our collective-
bargaining agreement with Budget Services (the Budget-
Local 713 Agreement), or any extensions, renewals, or
modifications of that agreement, including its union-
security provisions, so as to cover you, unless and until
we have been certified by the National Labor Relations
Board as your collective-bargaining representative.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL decline recognition as the exclusive collec-
tive-bargaining representative of Sprain Brook employ-
ees in the following unit, unless and until we have been
certified by the National Labor Relations Board as the
SPRAIN BROOK MANOR REHAB, LLC 17
exclusive collective-bargaining representative of those
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 employ-
ees/assistants, dietary aides, and cooks employed by the
employer at its facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employ-
ees, including office clerical employees, managers and
guards, professional employees and supervisors as de-
fined by the Act.
WE WILL, jointly and severally with Respondent
Sprain Brook, Pinnacle and Budget, reimburse all present
and former employees in the unit described above for all
initiation fees, dues, and other moneys paid by them or
withheld from their wages pursuant to the Budget-Local
713 Agreement, with interest.
LOCAL 713, INTERNATIONAL
BROTHERHOOD OF TRADE UNIONS
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-089480 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Julie Ulmet, Esq., Julie Polakoski-Rennie, Esq., Nicole Oliver,
Esq., for the General Counsel.
William S. Massey, Esq. (Galdstein, Reif & Meginnis, LLP), for
the Charging Party.
Jane Chung, Esq. (1199 SEIU United Healthcare East), for the
Charging Party.
Jeffrey A. Meyer, Esq. (Kaufman, Dolowich & Voluck, LLP),
for the Respondent Sprain Brook Manor Rehab, LLC.
Rebecca Winkelstein, Esq. (David F. Jasinski, PC), for the
Respondent Pinnacle Dietary, Inc.
Avrom R. Vann, Esq. (Avrom R. Vann, PC), for the Respondent
Budget Services, Inc.
Bryan C. McCarthy, Esq. (Bryan C. McCarthy & Associates,
PC), for the Respondent and Party to the contract Local
713 International Brotherhood of Trade Unions
DECISION
STATEMENT OF THE CASE
KENNETH W. CHU, Administrative Law Judge. This case
was tried in New York, New York, on October 6, 7, 8, 9, 10,
December 15, 16, 2014, January 20, 26, March 11, April 13,
14, 15, 20, and 27, 2015. The complaint alleges that Sprain
Brook Manor Rehab, LLC (Respondent Sprain Brook), Pinna-
cle Dietary, Inc. (Respondent Pinnacle), Budget Services, Inc.
(Respondent Budget), Commercial Building Maintenance Corp.
(Respondent CBM), and Local 713, International Brotherhood
of Trade Unions (Respondent Local 713) have engaged in, and
continue to engage in, unlawful conduct in violation of Sections
8(a)(5), (3), (2), and (1); and Section 8(b)(1)(A) of the National
Labor Relations Act (Act).
Procedural History
The initial charge was filed on September 19, 2012,1 by the
charging party union, 1199 SEIU, against Sprain Brook Manor
Nursing Home, LLC (predecessor Sprain Brook) (GC Exh.
1aa).2 The charge was subsequently amended on November 26
and alleged violations of the Act to include Respondents Sprain
Brook Manor Rehab, LLC (Sprain Brook), Pinnacle Dietary,
Inc. (Pinnacle), nonparty Confidence Management Systems
(Confidence), and Commercial Building Maintenance, Corp.
(CBM), acting either as joint employers or as a successor (Case
02-CA-089480) (GC Exh. 1y). An amended charge was filed
on July 15, 2013, by 1199 SEIU (GC Exh. 1s); and a third
amended charge was filed on July 22, 2013, by 1199 SEIU (GC
Exh. 10).3 On July 22, 2013, charging party Union filed a
charge against Respondent Local 713 International Brother-
hood of Trade Unions (IBOTU) (Case 02–CB–095670) (GC
Exh. 1q).
The charges were referred to the Regional Director of Re-
gion 2 of the National Labor Relations Board (NLRB) for in-
vestigation and an order consolidating the charges and a consol-
idated complaint was issued on July 31, 2014 (GC Exh. 1m).
The complaint alleges that Respondent Sprain Brook violat-
ed the Act when it unilaterally discharged unit employees and
subcontracted unit work without first providing notice to 1199
SEIU and a meaningful opportunity to bargain over the deci-
sion regarding the discharges and subcontracting. The com-
plaint alleges, in turn, that Respondents Sprain Brook, Budget,
Pinnacle, Confidence and CBM violated the Act when it failed
and refused to recognize and bargain with 1199 SEIU and in
implementing unilateral changes in the terms and conditions of
the employees without first providing notice to 1199 SEIU and
an opportunity to bargain to an agreement or impasse.4

1 All dates are in 2012 unless otherwise indicated.
2 The General Counsel exhibits are referenced as “GC Exh.” and the
Charging Party exhibits are referenced as “CP Exh.” The Respondents
exhibits are referenced as “SB Exh.” for Sprain Brook; “P Exh.” for
Pinnacle and “B Exh.” for Budget. Posttrial briefs are identified as GC
Br., for the General Counsel; SB Br. for Respondent Sprain Brook, P
Br., for Respondent Pinnacle and B Br. for Respondent Budget.
3 The third amended charge alleged violations of the Act against Re-
spondent CBM.
4 Par. 7 of the consolidated complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
The complaint also alleges that Respondent Sprain Brook
terminated the employment of three employees because they
assisted in union activity and in support of 1199 SEIU and for
their refusal to support Respondent Local 713. Moreover, it is
alleged that Respondents Sprain Brook, Pinnacle, and Budget
provided unlawful assistance to Respondent Local 713 by
threatening employees to support Local 713; by recognizing
Local 713 and entering into a collective-bargaining agreement
with Local 713 at a time when 713 did not represent an unco-
erced majority of the unit employees; unlawfully deducting and
remitting dues and other union benefits to Local 713; and by
refusing to recognize 1199 SEIU. Finally, the complaint alleg-
es that Respondent Local 713 violated the Act by accepting
such unlawful assistance, recognition and contracting.
The Respondents filed timely answers denying the material
allegations in the complaint (GC Exh. 1c; 1d; 1g, and 1k).5
Party-to-the-contract, Budget Services, also provided a general
denial and lack of knowledge in its answer to the consolidated
complaint (GC Exh. 2i).
On October 6, 2014, the General Counsel moved to amend
the consolidated complaint. The counsel for the General Coun-
sel stated that the motion to amend was to remove Confidence
(and SC & BP) as a Respondent and the allegations against
them in the amended complaint (Tr. 5–7).6 Respondents Sprain
Brook and Pinnacle subsequently filed their timely answers (Tr.
7, 8). Respondent Local 713 provided a general denial in its
oral answer at trial on October 8 (Tr. 227).7
On October 8, the counsel for the General Counsel moved to
amend the complaint to add Budget Services, Inc. as a respond-
ent. The General Counsel represented that through the testimo-
ny of witnesses given during the hearing, the Regional Director
determined that there were meritorious allegations against
Budget (Tr. 228, 229). Counsel for the General Counsel previ-
ously informed counsel for Budget Services on October 7 of
her motion to amend the complaint on October 8 to include
Budget as a respondent. Budget Services did not object to the
resumption of the trial on October 8 but only requested that any
motion to amend be scheduled on a date after October 24 (GC
Exh. 21).
Inasmuch as a representative for Budget was not present at
the October 8 hearing, I instructed the General Counsel to ad-
vise counsel for Budget of her intent to file her motion to
amend the complaint to add Budget as a Respondent by Octo-
ber 17. The counsel for the General Counsel notified counsel
for Budget on October 11(Tr. 233–243).
On October 20, counsel for Budget requested an extension of
time to October 29 to file his opposition to adding Budget Ser-
vices as a respondent and his request was granted. By email
dated October 30, counsel for Budget Services represented that
Budget Services “. . . has decided not to oppose the motion
made by the NLRB to amend the Complaint.” However, in a

5 Respondent Confidence did not file an answer.
6 The Transcript from the hearing is noted as “Tr.”
7 Finding no opposition to the motion to amend, the amended com-
plaint was moved into the record on October 10 (GC Exh. 2a) along
with the answers to the complaint (GC Exh. 2b [Sprain Brook], 2c
[Pinnacle]; Tr. 591).
subsequent conference call on November 3, counsel for Budget
represented that he was not aware that substantial evidentiary
testimony was taken during the hearing on October 6, 8, 9, and
10. Counsel for Budget repined that he was not present to ex-
amine witnesses during those dates and to name Budget as a
respondent after testimony was given deprived Budget of its
due process rights to examine witnesses. Counsel for Budget
was informed that I would recall the witnesses and give him the
opportunity to examine the witnesses after his review of the
hearing transcript. However, on November 5, counsel for
Budget stated that my offer was not “. . . a viable alternative”
and insisted on a de novo hearing or dismiss Budget as a Re-
spondent.
On November 17, I granted the General Counsel’s motion to
include Budget Services, Inc. as a Respondent in this action.
My order noted that Budget Services had been designated as a
party-in-interest since the complaints were consolidated and
had an opportunity to appear at the start of the trial on October
6. At the time, counsel for Budget never objected to starting
without his presence and did not object to his nonappearance
until November 5. I reiterated that I would recall the witnesses
for Budget to examine and to present evidence (GC Exh. 2k,
2l).8 The second amended complaint to include Budget Ser-
vices as a Respondent supersedes the first amended complaint
and is the controlling pleading in the case (GC Exh. 2c).9
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties,10 I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent Sprain Brook Rehab, LLC, a limited liabil-
ity corporation, with an office and place of business in Scars-
dale, New York, has been engaged in the operation and mainte-
nance of a nursing home. The Respondent Sprain Brook Rehab
annually derives gross revenues in excess of $100,000 and
purchases and receives goods and services valued in excess of

8 The motion by the General Counsel to include Budget as a Re-
spondent and my subsequent order granting the motion was inadvert-
ently not submitted at the time my order was issued. The General
Counsel, by letter dated June 17, 2015, request that the motion and
order be included in order to complete the record. The counsel for
Budget Services objected to the inclusion of the motion and order.
Upon my review, I agree with the General Counsel that the inclusion of
the motion and order is necessary to complete the record since the
documents reflects more in detail than my brief summary noted above.
The substantive arguments regarding the merits of including Budget
Services as a Respondent was fully addressed and considered during
the trial. The submission of the motion and order is merely a ministeri-
al function to complete the record.
9 On April 6, 2015, I granted the motion of the General Counsel to
consolidate Case 02-CA-142506 (GC Exh. bb) and 02-CB-146895 (GC
Exh. ff) to the complaint (GC Exh. 2hh).
10 Charging Party 1199 SEIU and Respondent Local 713 did not file
post-hearing briefs. On September 9, the General Counsel request to
file a supplemental brief in light of the Board’s decision in BFI Newby
Island Recyclery, 362 NLRB No. 186 (2015), regarding Browning-
Ferris. The request was granted on the same date with an October 20
deadline to submit supplemental briefs by the parties.
SPRAIN BROOK MANOR REHAB, LLC 19
$5000 directly from suppliers located outside the State of New
York.
At all material times, Respondent Pinnacle has been a do-
mestic corporation with an office and place of business in
Newburgh, New York, and has been engaged in providing food
services. It annually provides services valued in excess of
$50,000 for enterprises directly engaged in interstate com-
merce, including Sprain Brook Rehab, which is directly en-
gaged in interstate commerce, as set forth in subparagraph
3(a)(i) of the complaint.
At all material times, Respondent Budget has been a domes-
tic corporation with an office and place of business in Brook-
lyn, New York, and has been engaged in providing staffing
services. The Respondent Budget annually provides services
valued in excess of $50,000 for enterprises directly engaged in
interstate commerce, including Sprain Brook Rehab, which is
directly engaged in interstate commerce, as set forth in subpar-
agraph 3(a)(i) of the complaint.
At all material times, Respondent CBM has been a domestic
limited liability corporation with an office and place of business
place of business in Syosset, New York, and has been engaged
in providing housekeeping and cleaning services. The Re-
spondent CBM annually provides services valued in excess of
$50,000 for enterprises directly engaged in interstate com-
merce, including Sprain Brook Rehab, which is directly en-
gaged in interstate commerce, as set forth in subparagraph
3(a)(i).
I find that the Respondents are employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
At all material times, the Charging Party Union 1199 SEIU
has been a labor organization within the meaning of Section
2(5) of the Act. At all material times, the Respondent Union
Local 713 IBOTU has been a labor organization within the
meaning of Section 2(5) of the Act.
II. CREDIBILITY DETERMINATIONS
The credibility resolutions herein have been derived from a
review of the entire testimonial record and exhibits, with due
regard for the logic of probability, the demeanor of the witness-
es, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S.
404, 408 (1962). A credibility determination may rely on a
variety of factors, including the context of the witness’ testimo-
ny, the witness’ demeanor, and the weight of the respective
evidence, established or admitted facts, inherent probabilities,
and reasonable inferences that may be drawn from the record as
a whole. Double D Construction Group, 339 NLRB 303, 305
(2003); Daikichi Sushi, 335 NLRB 622, 623 (2001). Credibil-
ity findings need not be all-or-nothing propositions—indeed,
nothing is more common in all kinds of judicial decisions than
to believe some, but not all, of a witness’ testimony. Daikichi
Sushi, above.
III. THE ALLEGED UNFAIR LABOR PRACTICES
a. The Respondent Sprain Brook Manor Rehab, LLC
1. Background
The predecessor Sprain Brook operated a healthcare facility
and was owned by Robert Klein and Henry Book, each holding
a 50 percent membership stake in the home. Robert Klein
(Klein) testified that he brought Sprain Brook in 2003 and was
involved in the day-to-day activities of the nursing home
through September 2012 (Tr. 1751, 1752). In July 2005, 1199
SEIU began an organizing campaign at the facility. The Union
filed a petition for representation in August 2005 and in June
2006, after a Board-conducted election, 1199 SEIU was certi-
fied as the exclusive collective-bargaining representative of the
following unit of employees
All full-time and regular part-time and per diem non-
professional employees including license practical nurses, cer-
tified nurses’ aides, geriatric techs/activity aides, house-
keeping employees, laundry employees/assistants, dietary
aides, and cooks employed by the Employer at its facility lo-
cated at 77 Jackson Avenue, Scarsdale, NY, but excluding all
other employees, including office clerical employees, manag-
ers and guards, professional employees and supervisors as de-
fined by the Act.
The certification was contested by predecessor Sprain Brook
and the NLRB enforced the certification on September 29,
2006, and found that 1199 SEIU continued to be the exclusive
collective-bargaining representative in subsequent decisions.
The September 29, 2006 Board decision ordered the predeces-
sor Sprain Brook to bargain with 1199 SEIU and if an under-
standing is reached, embody the terms and conditions of em-
ployment of such employees in a signed agreement.
On December 26, 2007, the Board adopted the administra-
tive law judge’s findings that predecessor Sprain Brook violat-
ed Section 8(a)(3) of the Act, among other violations, by dis-
charging Catherine Alonso and Alvin Nicholson and disciplin-
ing Clarissa Nogueira.11 On April 26, 2013, the Board adopted
the judge’s findings that predecessor Sprain Brook, among
other violations, threatened employees if they sought union
assistance, suspended and discharged employees, unilaterally
changed wages, hours and other terms and conditions of em-
ployment of the bargaining unit without first providing notice,
and upon request, to bargain with the Union.12
2. The Sale of Predecessor Sprain Brook
In 2009, predecessor Sprain Brook entered into a purchase
agreement with Respondent Sprain Brook to sell the nursing
home. The sellers of predecessor Sprain Brook were Klein and
the estate of Henry Book, each owning a 50 percent share of the
facility. The buyer of the nursing home was LNS Acquisition
(LNS). The sales agreement was executed on August 18, 2009,

11 The prior discipline of Nicholson and Nogueira becomes apparent
as relevant background information through the course of their testimo-
ny at this hearing.
12 My summation of the factual background is distilled from the fol-
lowing cases: Sprain Brook Nursing Home, LLC, 348 NLRB 851
(2006); 351 NLRB 1190 (2007); 359 NLRB 929 (2013). Because of
Noel Canning, the Decision and Order in Spring Brook Nursing, 359
NLRB 929 was vacated and reissued as Sprain Brook Manor Nursing
Home, LLC, 361 NLRB No. 54 on September 29, 2014, and affirmed
the judge’s rulings, findings, and conclusions and adopted the judge’s
recommended order to the extent and for the reasons stated in the Sep-
tember Decision and Order.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
and was contingent upon the approval of the sale by the New
York State Department of Health (DOH). The purchase price
for predecessor Sprain Brook was $7,800,000 dollars (GC Exh.
7).
Allen (Artie) Stein (Stein) is the current managing partner of
Respondent Sprain Brook (Tr. 51). Stein testified that Lazar
Strulovitch (Strulovitch) and Leopold Schwimmer were the
members (partners) of LNS. Stein denied that he was a mem-
ber of LNS at the time of the sale and insisted he was not in-
volved in the initial sales agreement (Tr. 61, 1719, 1720). Stein
testified that another partner, Sam Strulovitch, the brother of
Lazar were the two initial members of LNS. According to
Stein, Sam sold his share to Lazar and then brought in Stein and
Schwimmer (Tr. 69, 70). The sales agreement contradicted
Stein’s testimony and identified the initial LNS members as
Sam Strulovitch, Lazer Strulovitch, Moses Friedman, Allen
Stein, and Leopold Schwimmer (GC Exh. 7 at 15).
The sales agreement gave LNS “unrestricted right to assign”
the sales agreement. The sales agreement also provided for an
“adjustment date” of January 1, 2007, wherein Respondent
Sprain Brook would be “. . . entitled to any profit accrued with
respect to the period from and after the Adjustment Date and
shall bear any loss with respect to the period from and after the
Adjustment Date” (GC Exh. 7 at 5).
On November 17, 2009, LNS assigned all rights, title and in-
terest in its purchase agreement to Respondent Sprain Brook
Manor Rehab, LLC. The assignor on behalf of LNS was Lazar
Strulovitch. The assignee for Respondent Sprain Brook was
also Lazar Strulovitch (GC Exh. 8). Stein testified that the
sales agreement was assigned by LNS to Sprain Brook Manor
Rehab, LLC (Tr. 61-65). The record shows that Stein was also
an initial member of Respondent Sprain Brook when the sales
agreement was assigned (GC Exhs. 10 and 11).
Stein stated that there were three partners in Respondent
Sprain Brook, whom he identified as Strulovitch with the ma-
jority ownership at 57 percent and Schwimmer with 13 percent
ownership and himself (Tr. 64). The record actually shows
four owners of Respondent Sprain Brook, to include Lazer
Strulovitch at 53.125 percent, Stein at 25 percent, Schwimmer
at 12.5 percent and Friedman at 9.375 percent (GC Exh. 9 at 2).
Shortly after the assignment of the sales agreement, Re-
spondent Sprain Brook applied for a certificate of assumed
name to do business as Sprain Brook Manor Nursing Home
(GC Exh. 13). On November 25, 2009, Respondent Sprain
Brook now doing business as Sprain Brook Manor Nursing
Home (SBMNH), filed a Certificate Of Need (CON) applica-
tion with the DOH seeking approval from the NYS Public
Health Council to establish itself as the new operator of
SBMNH (GC Exh. 9).
The General Counsel believes that the date of ownership was
transferred to Respondent Sprain Brook on June 15. Under the
terms of the sales agreement, the closing date would take place
on “. . . a date not more than ninety (90) days following the
receipt . . .of DOH’s final non-contingent approval of the Ap-
plication for Establishment . . . duly authorizing to operate the
Facility” (GC Exh. 7 at 4). The application for Respondent
Sprain Brook’s operation of the nursing facility was approved
on April 6, 2012 (GC Exh.14), and the Medicare enrollment
application was filed on June 26, 2012.
The Respondent Sprain Brook maintains that ownership
transferred on September 13. Stein testified that Respondent
took ownership on September 13 (Tr. 61, 62, 1715, 1716,
1720–1722). Stein testified that it took 16 to 18 months for
approval of the certificate of need application due to the gov-
ernment bureaucracy. Stein explained that that the closing was
further delayed because once the CON application was ap-
proved and the Medicare enrollment was filed, he still needed
to apply for a mortgage.
The September 13 date of the transfer of ownership is dis-
puted by the General Counsel. I find it reasonable to conclude
that the date of the transfer of ownership was on June 15, 2012.
The certificate of need was already approved by April. The
Medicare enrollment application indicated that Stein was the
managing member of Respondent Sprain Brook. Further, Stein
signed an electronic funds transfer agreement attesting to the
change of ownership on June 15, 2012, and authorizing the
transfer of funds between Respondent Spain Brook and his
financial institute (GC Exh. 15).
Stein said he is the only managing partner of the facility after
the transfer of ownership to Respondent Sprain Brook (Tr. 136,
137). Stein testified that Lazar Strulovitch was not involved in
the management and no decisions were made by him regarding
the operations of the nursing facility (Tr. 2731, 1732).13 Stein
also denied that Moses Strulovitch is a managing partner of
Respondent Sprain Brook. Stein identified Moses as the son of
Sam Strulovitch and is only involved in the marketing aspects
of the nursing home (Tr. 69, 70).
3. The Relationship Between Respondent Sprain Brook and
Predecessor Sprain Brook
The General Counsel maintains that Respondent Sprain
Brook has been managing the nursing facility since the 2009
sales agreement. Stein denied that he had a controlling interest
in predecessor Sprain Brook. He said that predecessor Sprain
Brook was owned by Klein and Book. According to Stein,
Klein wanted to sell the nursing home due to back taxes and his
inability to continue running the home. Stein also inferred that
there was hostility between Klein and the Book estate after
Book passed away. Stein testified that he was persuaded by
Strulovitch to go in as a partner to buy out Klein and the Estate
of Book. Stein testified that he was invited by Klein in 2009 to
acclimate himself in the operations of the nursing home be-
cause he had no working experience in managing a nursing
home and he wanted to learn about the business. Stein testified
that he went in to “look around” and spoke to residents. He
denied he was involved in the paperwork or finances of the
nursing home operations until 2012 (Tr. 50-54).
However, the record shows that Stein signed Schedules 1A
and 13B in his Certificate of Need (CON) application on No-
vember 17, 2009, as a member of LNS (GC Exh. 9 and 12) and
represented to the NYS DOH in his CON application that he

13 Stein insisted that it was not accurate that the cover letter prepared
by his attorneys for the CON application stated that Strulovitch was
also a managing partner of Respondent Sprain Brook (Tr. 136, 137).
SPRAIN BROOK MANOR REHAB, LLC 21
has been the comptroller of Sprain Brook Manor Nursing Home
for the past 10 years (GC Exh. 6; Tr. 66). Stein also admitted
to a degree of authority and autonomy that was granted by
Klein to “manage this; I should manage that; I should take care
of stuff,” although he insisted that everything had to go through
Klein (Tr. 53, 54, 1712, 1713). Stein also admitted that he
attended a few bargaining sessions with 1199 SEIU but insisted
that he was there only at the direction of Klein and only repre-
sented Klein with certain aspects of the bargaining (Tr.
188-191).
Klein testified that he was the owner of predecessor Sprain
Brook since 1973 and did not transfer ownership of the facility
until September 2012. Klein stated that he managed the day-to-
day operations of the nursing home during his ownership and
that he denied granting any authority to Stein to act on his be-
half on labor/employment relations matters (Tr. 1751-1755).
Gregory Speller (Speller), who was and is the vice president
of the 1199 SEIU Nursing Home Division, testified that he was
involved in the bargaining sessions for a new contract with
predecessor Sprain Brook from July 2008 through June 2011.
In contrast to Klein’s testimony, Speller testified he never met
Klein in any of the bargaining sessions (Tr. 720) and related
that Strulovitch and Stein were the ones intimately involved in
the negotiations. Speller recalled that there were 16 or 17 bar-
gaining sessions and that Klein never attended a session.14
Speller further testified that he never recalled Stein or
Strulovitch telling him that any matters negotiated needed to be
approved by Klein as part of any final agreement (Tr. 744).
Speller met Moses Strulovitch at a bargaining session as ear-
ly as 2008 and Strulovitch was introduced to him as “somebody
who was helping to manage Sprain Brook and also a prospec-
tive buyer.” Speller asked Strulovitch for the closing date for
the sale of the nursing home and was informed by Strulovitch
that the State approval of the sale was a lengthy process and
would take time. According to Speller, Strulovitch also stated
that he wanted a fair contract and a good working relationship
with the Union (Tr. 678-684).
Speller also met to Stein during a bargaining session held on
July 14, 2009. Speller said that Stein was introduced as some-
one working with Strulovitch to manage the nursing home and
as one of the prospective buyers of the home. Speller said that
he met Stein again when he was invited by Stein to a meeting at
a restaurant on September 16, 2009, to continue bargaining
over a contract. Stein repeated that he wanted a good working
relationship with the union but that there were financial con-
straints. Stein said to Speller that he would get Israel Nachfol-
ger (Nachfolger) to contact Speller on the following day to
continue discussions on a bargaining contract. When contacted
by Nachfolger, Speller was informed by Nachfolger that he has
experience working with 1199 SEIU at other nursing facilities.
The parties met at a bargaining session on September 22, 2009,
and Speller again met Stein and Nachfolger during this session.
Subsequently Speller and Nachfolger exchanged emails on
September 23 as a follow up on the bargaining. Although Na-

14 Speller’s Board affidavit stated that Stein and Strulovitch had the
authority at the table (to negotiate) but had to confer with Klein (Tr.
744, 745).
chfolger was introduced to Speller by Stein, his email address
also stated “The Pinnacle Group.” Speller did not know why
Nachfolger had the Pinnacle Group designation under his name
(Tr. 688-694; GC Exh. 42).15
Speller testified to a subsequent bargaining session with
Stein and Nachfolger on October 19, 2009. According to
Speller, Stein and Nachfolger presented a counter proposal on
October 19 (GC Exh. 43). Speller testified that it was his un-
derstanding that the Union was negotiating with the buyers of
the Sprain Brook facility. Respondent Sprain Brook objected
to the submission of the counter proposal (Tr. 694–701).16
Speller stated that the next bargaining session occurred in
August 2010 and he was informed that a certificate of need was
filed by the buyers of Sprain Brook with the New York State
Health Department. Speller recalled again asking about the
closing date for the sale. There were also discussions during
this session and one in December 2010 about negotiating the
subcontracting of the laundry department (GC Exh. 44). The
Union opposed the subcontracting and ultimately, the Union
agreed to have the one remaining laundry employee, Clarisse
Nogueira, reassigned to the housekeeping department, with no
change in her work hours or compensation, thereby preserving
her employment (Tr. 701-708).
On June 2, 2011, there was one final bargaining session be-
tween the Union and with Stein and Strulovitch representing
the employer. Spellers again ask for the status of the sale of the
facility and for a closing date, but did not receive an answer.
The parties never reached a negotiated contract, but had contin-
ued to discuss the resolution of several unfair labor practice
violations found against the nursing facility (as noted in fn. 12)
(Tr. 706-711).
Clarisse Nogueira (Nogueira) has been employed at the nurs-
ing home since 1981 and held various positions during her
career. Nogueira started as a housekeeper and worked as a
CNA in 1985 and at some subsequent point in time, she was
reassigned to the laundry department. In 2011, Nogueira re-
turned to housekeeping after the laundry department was out-
sourced and closed by the facility. Nogueira was the lead dele-
gate for SEIU 1199 since 2006 until her discharge in October
2012 (Tr. 254-260).
Nogueira testified that she observed Stein with Klein in 2009
walking around the nursing facility but she did not know who
Stein was at the time. Nogueira said that as the lead union
delegate, she attended every bargaining session and was with
Speller when they were formally introduced to Stein at one of
the sessions. She did not recall the time frame when she was
introduced to Stein but recalled that Stein told the union bar-
gaining team that he “. . . was taking over the facility . . . and he
would be in negotiations for Sprain Brook” (Tr. 272-273).

15 On cross examination, Speller testified that he addressed Nachfol-
ger as “Israel Nachfolger/Pinnacle Group/Current Bargaining Repre-
sentative for Sprain Brook Manor” (GC Exh. 42; Tr. 755).
16 Respondent Sprain Brook objected over the introduction of the
GC Exh. 43 because the allegation of bad-faith bargaining was not
made part of the complaint. The objection was overruled not for the
purpose to show bad-faith bargaining, but rather, the document may
help establish the actual successorship date (Tr. 700, 701).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
Nogueira testified she also advocates, as the union delegate, on
behalf of unit employees. Nogueira recalled an occasion when
she met with Stein and Moses Strulovitch in November 2010
regarding the discipline of another employee. Nogueira also
had another occasion to speak to Stein during this same time
frame when she questioned Stein’s criticism of the ability of
another housekeeper to clean the facility windows. According
to Nogueira, Stein responded “You don’t tell me what to do.
I’m your boss.” Nogueira said that the two incidents and his
presence at the bargaining table indicated to her that Stein was
and has been managing the Sprain Brook nursing facility since
2009 (Tr. 274–279).
b. The Respondent Sprain Brook’s Contracts with
Confidence and CBM
Respondent Sprain Brook executed a contract on September
16, 2012, with Confidence Management System (Confidence)
effective on September 16, 2012, through December 31, 2013.
The contract was signed by Stein. Stein testified that his health
was not well during this time frame and was away from manag-
ing the nursing home from time to time. Stein stated that
Shlomo Mushell (Mushell), the administrator for Sprain Brook,
assisted in the management of the facility while Stein was ab-
sent for health reasons (Tr. 171–177)17 Under the contract,
Confidence would provide the housekeeping services and all
the necessary management, which includes a housekeeping
director and regional manager, to oversee the housekeeping
operation. Confidence also provided the housekeeping and
cleaning supplies (GC Exh. 17).18
Abraham Grossman (Grossman), the payroll administrator
for Confidence,19 stated that the payroll records reflected the
names of Confidence employees performing housekeeping
services for Respondent Sprain Brook (GC Exh. 78). Gross-
man testified that the Confidence employees most likely began
working at Sprain Brook on September 16, 2012, and their last
pay period was on June 16 through 29, 2013 (Tr. 1288–1294).
Confidence no longer has a working relationship with Sprain
Brook after June 2013 (Tr. 1289–1294).
The payroll was generated by SC & BP Services, Inc.
Grossman testified that SC &BP Services was a payroll service
company for Confidence. The names on the payroll during
Confidence’s contractual relationship with Respondent Sprain
Brook included a majority (if not all) of the housekeeping and
maintenance employees previously employed by Respondent
Sprain Brook (GC Exh. 78).
Respondent Sprain Brook replaced Confidence and signed a
contract with Commercial Building Management Corp. (CBM),
effective from July 1, 2013, through July 1, 2014. The contract
with CBM was signed by Moshell on behalf of Stein. Stein did
not know why Confidence was replaced by CBM (Tr.
176-178). CBM now supplied the necessary labor, supervision,

17 Moshell was a consultant to predecessor Sprain Brook in 2011 and
became the facility’s administrator in September 2011. See, Sprain
Brook Nursing Home, LLC, 359 NLRB 929, 933 (2013).
18 Confidence was not named as a Respondent after entering into a
settlement with the General Counsel.
19 Grossman testified that he was responsible for generating the pay-
roll records for the employees of Confidence.
materials and equipment to all general cleaning services (GC
Exh. 18). John Weiss (Weiss), identified as an individual
working in clerical and payroll for CBM, testified that Re-
spondent Sprain Brook was a former client of CBM. Weiss
testified that he generated the payroll records of CBM employ-
ees and that the payroll report (GC Exh. 77) reflected the num-
ber of CBM employees working for Sprain Brook from July 1,
2013, through September 20, 2013 (Tr. 1282–1287).20 Again, a
majority of the housekeeping and maintenance employees were
formerly employed by Respondent Sprain Brook and nonparty
Confidence.
c. The Respondent Sprain Brook’s Contract with
Respondent Pinnacle
Respondent Sprain Brook executed a contract with Respond-
ent Pinnacle on June 27, 2012, with an effective of August 1,
2012 (GC Exh. 16). The contract was signed by Aaron Weiss
and Susan St. Pierre, president and CEO for Pinnacle were on
the signatory lines of the agreement on behalf of Pinnacle.
Stein signed on behalf of Respondent Sprain Brook. Stein
signed above his “printed name” line and not on his signature
line. The contract granted exclusive rights to Pinnacle to man-
age and operate the dietary department at the facility. Pinnacle
provided all the necessary management, food, and supplies to
perform the food service operations at the facility. The contract
clearly stated that Pinnacle shall process the payroll for the
registered dietitians, food service director, and the assistant
food service director and to assume payroll and benefit respon-
sibilities for the facility’s nonmanagement dietary employees,
including the responsibility of recruitment, employment, pro-
motion, layoff, termination of all dietary employees.
Under the service contract, Pinnacle will invoice Respondent
Sprain Brook on a monthly basis for expenditures incurred by
Pinnacle in the management and operation of the dietary de-
partment at the rate of $23.72 dollars per patient. A particular
expenditure item included the salaries and benefits for the
nonmanagement staff. The contract also states that Respondent
Sprain Brook and Pinnacle recognize the nursing home as a
nonunionized facility and both parties shall be jointly responsi-
ble for union negotiations of the dietary employees at the facili-
ty. Any negotiated increases in employees’ benefits shall be
the responsibility of the “Facility” (Respondent Sprain Brook)
and the increase amounts shall be reflected in the monthly in-
voicing to Respondent Sprain Brook by Pinnacle (GC Exh. 16
at Exh. I). Pinnacle never engaged in negotiations with a un-
ion, either separately or jointly with Respondent Sprain Brook.
Anthony Scierka (Scierka) testified as the CEO of Pinnacle.
Scierka said that Pinnacle is affiliated with Triple A Supplies,
Inc. and is owned by Aaron Weiss. He indicated that Pinnacle
is in the business of dietary services, food procurement, budget-
ing and management services primarily to health care facility.
He states that Pinnacle only provides management staff for
oversight of operations. Scierka, as the CEO, was familiar with

20 Respondent Budget objected to the submission of CBM payroll
records because Weiss merely generated the payroll report and did not
input the payroll data. I overruled Budget’s objection and stated that
any inaccuracies to the payroll report could be proffered by Budget.
SPRAIN BROOK MANOR REHAB, LLC 23
the contract. He said that Respondent Sprain Brook contracted
with Pinnacle to provide management oversight of the Sprain
Brook facility in fall 2012. Scierka said that in accordance with
the contract, there was a rate for the services provided by Pin-
nacle to Sprain Brook. One of the items is “non-management
dietary labor salary.” The standard rate that Pinnacle would
invoice Respondent Sprain Brook was at $23.72 per patient (P
Exh. 6). Scierka said that Pinnacle would invoice Sprain Brook
for the clinical services in accordance with the contractual rate
and then pay the vendors for the contracted items, like food,
disposables and any other items rendered by the vendors.
Scierka insisted that Pinnacle, under the contract, did not
provide any non-management employees in the dietary and
cook department. He testified that the labor was provided by
Budget Services. For the nonmanagement labor cost, Budget
Services invoices are sent to Pinnacle for payment. The labor
cost that Budget Services incurred at Sprain Brook would also
include union dues, health benefits, workers’ compensation,
and other employee benefits (Tr. 1025–1035, 1073–1075; P
Exh. 7).21 The employee benefits were based upon the collec-
tive-bargaining contract between Budget Services and Local
713. Scierka stated that the invoices from Budget Services
were processed by his staff and he approved the payments. He
did not recall if the first invoice was received from Budget on
October 12 (P Exh. 7). Scierka stated that Pinnacle was not
part of the bargaining process and is not a party to the contract
between Budget Services and Local 713 (Tr. 1034–1036).
Scierka stated that Pinnacle manages the dietary staff at
Sprain Brook but the non-management staff was not employed
by Pinnacle. He stated that Pinnacle provided a dietary director
and an assistant director to the Sprain Brook facility. He did
not recall if any other managers were provided by Pinnacle
under the contract (Tr. 1102). Scierka testified that the Pinna-
cle managers oversee the staff hired by Budget to work in the
dietary department. For example, Scierka states that if a dietary
manager observes a health violation or infraction, there is a
Budget cosupervisor that would conduct any progressive disci-
pline on the employee. Scierka believe that any supervisor or
manager, including the Pinnacle director and assistant director
has the authority to issue discipline to a nonmanagement die-
tary employee working for Respondent Budget Services at
Sprain Brook (Tr. 1065-1068, 1110-1111).
Crystel Ploschke (Ploschke) testified that she has been the
HR assistant with Pinnacle since 2011. Ploschke similarly
testified that Pinnacle contracts professional staff with nursing
and rehabilitation centers and provides food service directors,
regional staff dieticians, and assistant food service directors to
various facilities, including Respondent Sprain Brook. (Tr.
1585-1589).
Ploschke explains that the dietary aides and cooks were hired
by Respondent Budget Services and they are all Budget em-

21 I would note that there were two contracts between Pinnacle and
the Sprain Brook entities. The first contract (GC Exh. 16) was between
Weiss for Pinnacle and Stein on behalf of the Sprain Brook facility on
June 27. The second contract referenced by Scierka was signed on
September 13 between Weiss for Pinnacle and Stein as president of
Respondent Sprain Brook (P Exh. 6).
ployees. The hours worked for paycheck purposes are provided
to Pinnacle from Randy Nordella, the kitchen manager. In turn,
she reviews the timesheets and then forwards the time and at-
tendance records to Budget. All the time records, including
vacation, sick leave, and other accrued hours are obtained
through the kitchen manager and forwarded to Budget after her
review of the information. Ploschke states that Budget would
cut the paycheck for its employees once the time and attend-
ance information is processed. Ploschke states that Budget is
responsible for getting the checks to the employees. Ploschke
noted that on occasions, Pinnacle would retain blank Budget
checks to issue to employees, like during the Jewish Sabbath or
in a situation when a payroll check is missing. Ploschke states
that Budget invoices Pinnacle for all employee labor deduc-
tions, such as workers’ compensation, disability benefits and
union dues. With regard to union dues, Ploschke states that she
has been receiving the invoices from Respondent Budget for
the Local 713 dues since February 2013 (Tr. 1597–1623).
Ploschke further stated that as the HR assistant, she is famil-
iar with the collective-bargaining agreement between Budget
and Local 713. Ploschke had experienced issues with Local
713 and remembered occasions when she intervened regarding
union benefits and the nonpayment of union dues by Respond-
ent Budget. Ploschke had worked closely with Shaina Fekete
from Budget Services regarding the proper deductions for un-
ion dues, raises for employees, and other payroll issues (Tr.
1629-1667; GC Exh. 123, 124).
With regard to any union related expenses, such as dues and
the health and welfare fund deductions, Ploschke stated that
Pinnacle receives a monthly invoice from Local 713 and Pinna-
cle pays the invoice and forward the invoice to Budget. This is
consistent with an invoice provided by the General Counsel
(GC Exh. 123) that shows a Local 713 invoice sent to Re-
spondents Sprain Brook and Pinnacle. Pinnacle pays the union
invoice and sends the invoice to Budget. Budget, in turn, in-
cludes the union invoice along with any other expenses that is
sent to Pinnacle for payment. Ploschke testified that she does
not know how Pinnacle is reimbursed for the union invoices.
Ploschke states that Pinnacle is not a party to any collective-
bargaining agreement with Local 713 or any other union (Tr.
1665–1674).
d. The Respondent Sprain Brook’s Contract with
Respondent Budget
The contract between Respondents Sprain Brook and Budget
states that Budget will provide all services to the nursing facili-
ty in the areas of the recreation department, CNA, and LPN
personnel. The contract specifically states that Respondent
Sprain Brook shall not be required to hire employees to assist
Budget to perform the (CNA and LPN) services. Under the
contract, Budget was responsible for its employees’ wages,
insurance, payroll taxes, unemployment insurance, disability
benefits coverage and workers’ compensation, and any other
employee benefits provided under the contract. The payments
of such benefits would be provided from Budget’s own ac-
counts. In consideration, Budget invoiced Respondent Sprain
Brook on a weekly basis at a rate of 15 percent above gross
payroll of the contractor’s employees on an agreed upon pay-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
ment schedule. The contract further states that Respondent
Budget retains
[t]he authority to hire, terminate and discipline the personnel
(LPN and CNA) provided under this agreement. However,
the client (Respondent Sprain Brook) retains the right to re-
fuse to permit services performed herein by any of the con-
tractor’s employees if the client (Respondent Sprain Brook)
has not authorized the services of such employees or consid-
ers such employees unqualified to provide such services or
determines that the services being provided are not to the Cli-
ent’s satisfaction.
The contract commenced on September 16, 2012, and termi-
nated on December 31, 2012, and would automatically renew
on January 1 of each year unless otherwise amended or modi-
fied by the parties. The contract was signed by Herschel Weber
(Weber), the owner of Budget and Stein (GC Exh. 19).
William Halverstam (Halverstam) testified that he was and is
the risk manager for Brand Management and that Budget Ser-
vices is one of Brand’s affiliates. Halverstam states that both
companies are under the ownership of Herschel Weber. Hal-
verstam was examined by the General Counsel as a witness in
response to a subpoena duces tecum issued to Budget. The
subpoena from the General Counsel sought Budget’s docu-
ments on employee applications, work schedules, personnel
files, employer handbooks, personnel policies, supervisors and
managers information, among other items of Budget employees
working for Sprain Brook. Halverstam testified that Budget
has no employees and therefore, there were no employment
applications, work schedules, employer handbooks, policies,
personnel files, union checkoff information, nor information on
managers and supervisors working at Sprain Brook that would
be responsive to the subpoena (Tr. 1131-1140).22
Halverstam denied knowledge that Budget is a party to a col-
lective-bargaining agreement with a labor organization and
such documents do not exist in response to the subpoena (Tr.
1146, 1147). Halverstam denied knowledge as to why Budget
Services paid the invoices that Respondent Local 713 charged
to Respondent Sprain Brook and Pinnacle (Tr. 1162-1168; GC
Exh. 74). Halverstam also denied knowing about any labor
recognition agreement between Local 713 and Budget Services
(GC Exh. 55) and denied why certain employment applications
were captioned with Budget’s name as the employer. He sur-
mised that the documents were not generated by Budget, but
rather by Pinnacle (Tr. 1165-1168; P Exh. 3, 4, and 5).
Halverstam stated that Budget is a PEO (professional em-
ployer organization) and provides the paperwork, such as pay-
roll checks, W-2s, worker’s compensation, payroll taxes, and
other such manners to Respondent Sprain Brook as well as to
10-12 other healthcare facilities. Halverstam reiterated that
Budget has no employees and only Brand Management em-
ploys workers to process the payroll information and paper-
work (Tr. 1142).

22 For example, Halverstam testified “We don’t have any (Budget)
Employees, per say (sic). Our Clients have the Employees submit an
application. We don’t have any employment applications” (Tr. 1139).
Weber testified as the owner of Budget Services and to
10-12 other PEOs. Weber insisted that Budget Services only
provide payroll services to Respondent Sprain Brook and cate-
gorically denied providing any other services to Sprain Brook
(Tr. 1295-1298). Weber explained Budget would receive the
number of hours an employee worked for Sprain Brook and
Budget would process the paychecks (Tr. 1298-1300).
However, in subsequent testimony, Weber testified that
Budget did in fact employ the LPN, CNA, and housekeeping
staff23 working for Sprain Brook, which directly contradicted
his earlier testimony and the testimony provided by Hal-
verstam. Weber stated that the nursing staff were Budget em-
ployees but denied hiring them. Weber testified that “Sprain
Brook sends us the employee and we put them on our payroll
and they become our employees.” Weber also denied that these
employees were supervised by Budget and stated that Budget
did not employ any supervisors at Sprain Brook (Tr. 1304–
1305, 1341).
Effective on or about October 1, 2014, Respondent Sprain
Brook entered into a second contract with Respondent Budget.
With this contract, Budget replaced CBM. It was allegedly
conveyed by Mushell to the staff that the contractor was
changed because CBM could not make its payroll of the em-
ployees on time (Tr. 1526, 1527; GC Exh. 81).24 The house-
keeping employees were required to complete a new Budget
job application and union enrollment paperwork with Local 713
in order to continue working at the Sprain Brook facility.
e. The Discharge and Rehire of Sprain Brook Employees
The General Counsel argues that Respondent Sprain Brook
became a successor to the predecessor on June 15, 2012. Re-
spondent Sprain Brook announced the change of ownership on
September 12, 2012. On that date, predecessor Sprain Brook
informed all of its employees by letter of the change of owner-
ship, effective September 13 and that their positions with the
nursing home had been terminated effective on September 12.
The letter was addressed to the housekeeping and maintenance
staff; nursing staff; and the dietary staff. The letter informed
the employees that Stein would be taking over as the managing
partner. The letter was signed by Robert Klein (GC Exhs.
22(a)-(c)).
On the same date, Allen Stein, as the “new owner/operator of
Sprain Brook Manor Rehab, LLC” announced by letter to the
housekeeping and maintenance employees that arrangements
had been made for them to meet with a representative from
Confidence, a housekeeping and supply company, for immedi-
ate rehire without interruption of their current work schedule.
A similar letter was provided to the dietary employees. Stein
announced to the dietary employees that a representative from
Respondent Pinnacle, a dietary service company, was available

23 Respondent CBM’s contract for housekeeping and maintenance
services was replaced with a contract entered between Respondent
Sprain Brook and Respondent Budget Services, effective October 1,
2014 (GC Exh. 81). No explanation was proffered by Respondent
Sprain Brook for changing the housekeeping contract.
24 A copy of the agreement between Sprain Brook and Budget over
the housekeeping functions was unobtainable by the General Counsel.
GC Exh. 81 reflects payroll records indicating that the housekeeping
employees were been paid by Budget by October 2014.
SPRAIN BROOK MANOR REHAB, LLC 25
to discuss their immediate rehire under their current work
schedule. With regard to the nursing staff, Stein announced by
letter that Respondent Budget had been subcontracted and
would rehire all CNAs and LPNs at their current wage rate if
they choose to accept the job offer from Budget (GC Exhs. 23
(a)-(c)).
The universal reaction of the Sprain Brook employees was
one of shock, surprise and disappointment. Vernon Warren
(Warren) testified that he has been employed as a dietary aide
at Sprain Brook since 2001 and also serve as a union delegate
since 2005. Warren testified that on September 12, the Sprain
Brook administrator, Shlomo Mushell, met the dietary staff in
the dining room at approximately 2:15–2:30 and presented the
dietary staff with two envelopes. The first envelop dated Sep-
tember 12 addressed the dietary staff and informed the employ-
ees that Robert Klein was no longer the owner/operator of
Sprain Brook Manor Nursing Home and effective September
13 , 2012, Stein will be the managing partner of the facility.
Warren was informed of his discharge in the same letter (GC
Exh. 22b). Warren received another letter in the second enve-
lope dated September 12 from Stein informing him that he was
the new owner and arrangements had been made for him to
meet with representatives from Pinnacle Dietary “. . . for the
opportunity for immediate rehire” and his current work sched-
ule will continue without interruption (GC Exh. 23b).
The employees were confused as to the identity of their new
employer. For example, Warren testified that although Stein
said he was the new owner of the facility, Mushell informed the
dietary staff that Pinnacle will be hiring the dietary aides at $10
dollars per hour and that anyone interested would have to com-
plete a new job application with Pinnacle. Warren completed
his job application that day (Tr. 42–436; GC Exh. 33). Warren
said Klein told the workers that Pinnacle would be hiring the
dietary staff, but the job application stated
Employment Application
Budget Services, Inc.
129 South 8th Street
Brooklyn, New York 11211
Warren insisted that it was a Pinnacle representative that dis-
tributed the job applications, but did not recall the name of the
individual. He said that the Pinnacle representative wore a
purple and black uniform with the Pinnacle logo. Warren said
that after he completed the job application, he was handed a
purple Pinnacle uniform and a black apron with the logo “Pin-
nacle Dietary” on the shirt. Warren recalled that all of the die-
tary staff received the same Pinnacle uniform.25 He said there
were 12 dietary staff employees on September 12 and only
three decided to accept the job offer by Pinnacle.26 Warren said

25 Warren also signed a time card report for his paycheck. He testi-
fied that he punches in and out of a time clock when he starts and ends
his work shift. The timecard report is captioned “Payroll Group Budget
dba Pinnacle Dietary/Employee Group: PINNACLE DIETARY” (GC
Exh. 35, Tr. 459).
26 Warren had initially testified about his knowledge with the morn-
ing shift. On direct examination by the counsel for 1199 SEIU, Warren
believed that other dietary aides made have also been rehired for the
evening shift (Tr. 507, 508; CP Exh. 1).
that the cooks and supervisor positions were eliminated and the
other dietary aides refused to work for $10 dollars per hour.
Warren said that the prior dietary staff supervisor, Cameron
Walden (now deceased) was replaced by Samantha Ward
(Ward). It was represented to Warren that Ward worked for
Pinnacle. Warren insisted that he observed Ward working at
Sprain Brook in a supervisory capacity prior to September 12.
He said that Ward worked as the dietary assistant manager for
three months prior to September 12 (Tr. 437–448).
Warren testified that he was rehired to the same position and
“. . . everything was the same, but just different people I was
working with . . . after being hired by Respondent Pinnacle (Tr.
446). However, Warren received lesser salary and his work
schedule changed. He was now working for 5 days instead of 6
days. Warren also said that his schedule for his breaktime
changed and he was no longer paid for his 30 minute breaktime
(Tr. 453–455).
The relationship between Pinnacle and Budget in rehiring the
Sprain Brook employees becomes increasingly confusing. In
addition to a Pinnacle job application that was captioned with
“Budget Services” on the application and the dietary aides re-
ceiving uniforms with the Pinnacle logo, Warren testified that
his paycheck stub was captioned “Budget Services” and that he
had completed a direct deposit application with Budget Ser-
vices as his employer. When Warren was rehired, he also
agreed and signed two Budget Services policy agreements on
time and attendance (P. Exhs. 2, 3, and 4; Tr. 542–544).
Alvin Nicholson (Nicholson), a dietary aide at the Sprain
Brook facility and an 1199 SEIU union delegate, was also pre-
sent at the September 12th meeting. Nicholson testified that he
and the other aides were informed by Mushell that Klein was
no longer the owner of Sprain Brook and was given the two
letters that Warren had received. Nicholson was informed that
the Pinnacle team was in the dining area with job applications if
the aides wanted to be rehired. Nicholson testified that Mushell
informed the dietary aides that their new salary will be $10
dollars an hour. Nicholson said he was receiving $11.75 at the
time. Nicholson understood that the new dietary director would
be Samantha Ward. Like Warren, Nicholson also recall seeing
Ward several times in the facility prior to the sale. Nicholson
testified that Ward was from Pinnacle and that other supervi-
sors also represented to him that they were from Pinnacle be-
cause they wore the Pinnacle logo on their purple shirts. Ni-
cholson applied and was rehired. Nicholson also received a
uniform with the Pinnacle logo.
Adding to the confusion and like Warren, Nicholson com-
pleted a job application with the Budget Services caption on the
form (Tr. 670; P Exh. 5). Nicholson said that his job changed
after working for a few weeks. Nicholson, a dietary aide, was
asked to perform cooking functions by Ward on October 12,
2012. Nicholson initially refused to perform chef duties but
agreed to do so after Ward offered him $14 per hour.27 Nichol-
son repined that he never received the salary increase to $14

27 Nicholson testified that he worked 3 days as a cook and 2 days as
a dietary aide during the week. Nicholson primarily worked the morn-
ing day shift but on occasions, he would do the cooking during the
dinner shift (Tr. 635, 655).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
dollars and complained to Ward on or about October 18 that his
pay check did not account for his raise increase (Tr. 594–605,
615–617, 647–651).
Carmen Smith (Smith) testified that she has been employed
by Sprain Brook since the 1980s (did not recall her specific
hiring date). She started as a nurse’s aide and was reassigned to
a dietary aide 11 or 12 years ago at $14.75 per hour. Smith also
attended the September 12 meeting where she was informed of
her discharge and given an offer of rehiring by Pinnacle. Smith
testified that Ward told her that she was the new manager with
Pinnacle. Smith said that she completed a job application with
the Budget Services Inc. caption (GC Exh. 27). She said that
her hours of work did not change but her salary was reduced to
$10 dollars per hour28 (Tr. 355–365). Smith was unsure if she
was rehired by Pinnacle or Budget because the Pinnacle repre-
sentatives inferred that she was being hired by Pinnacle but her
job application had the Budget Services, Inc. caption (Tr. 407–
413).29
Nogueira testified that she was also present at the September
12 meeting regarding her discharge. Nogueira, who was now a
housekeeper, attended the meeting with the housekeeping and
maintenance staff. She said the meeting was attended by
Mushell and Nachfolger along with two other individuals she
identified as Jose and Patrick.30 Nogueira received two letters
similar to the ones received by the other department employees.
One letter signed by Klein was addressed to the housekeeping
and maintenance staff informing them that the facility has been
sold to Stein as a managing partner of Sprain Brook Manor
Rehab, LLC and that they have been discharged effective im-
mediately. The second letter signed by Stein informed the
housekeeping and maintenance staff that arrangements were
made for their immediate rehiring without interruption by Con-
fidence (Tr. 280–282; GC Exh. 22a and 23a).
Nogueira said that after Mushell and Nachfolger left the
meeting, Patrick spoke to the housekeeping and maintenance
staff. Nogueira recalled Patrick stating that he was from Confi-
dence and that the staff would be taking a pay cut if rehired.
Nogueira objected to her pay cut and questioned why an 1199
SEIU representative was not present at the meeting. Nogueira
and the others were also informed they would no longer receive
a uniform allowance benefit but that everything else remained
the same. Nogueira completed her job application and was
rehired31 (Tr. 283–286; GC Exh. 24).
Nogueira believed that all of the housekeeping and mainte-
nance staff was rehired by Confidence. Nogueira stated that
her hourly wage was reduced from $16 to $12 dollars and she
lost her uniform allowance. Nogueira said that she also lost her

28 Smith’s payroll stub had the name of “Sprain Brook Nursing
Home” on the top left hand corner and indicated her now reduced sala-
ry (GC Exh. 28).
29 Adding to the confusion, Smith was subsequently provided with a
time and attendance policy in March 2013 that was given to her by the
Pinnacle supervisor “Anthony” (surname not recalled) and said it was
from Respondent Budget (Tr. 380; GC Exh. 31).
30 Jose is Jose Perez and Patrick is Patrick Egan from nonparty Con-
fidence.
31 The Confidence job application was captioned as “SC & BP Ser-
vices, Inc.”
paid vacation and sick leave days. She stated that there were no
health benefits unless she signed up with Union Local 312. She
complained of more work once she was rehired. In addition to
taking instructions from her Confidence supervisor, Brian John,
Nogueira said that Jose would visit the facility once or twice
per week (Tr. 289–298).
Katrina Gjelaj (Gjelaj) has been employed as a housekeeper
at the Sprain Brook facility since 2001. She testified that since
2012, she has been employed by Confidence, CBM and starting
from October 17, 2014, by Respondent Budget Services. Gjelaj
said that on September 17, 2014, she was informed by her su-
pervisor that the housekeeping functions were now under
Budget Services and she would have to attend a meeting with
Mushell, the Sprain Brook administrator. At that meeting,
Gjelaj completed a job application with Budget Services. She
was given the job application by Estefany Sanchez. Gjelaj said
her salary increased by .25 cents under Budget (Tr. 1524–
1531).
Shelly Ann Williams (Williams) a CNA with Sprain Brook
since 2004 testified that she received a discharge notice that
was signed by Klein. Williams also received an offer of em-
ployment as a CNA with Respondent Budget Services. The
offer stated that upon acceptance of the offer, Williams’ em-
ployment would continue without interruption and at her cur-
rent wage rate. This offer was signed by Stein. Unlike the
other departments, no meeting was held with the nursing staff
regarding their discharge and rehiring notices. The two notices
were included in Williams’ paycheck. Williams said she com-
pleted a job application at the direction of the nursing director,
Amelia Mendizabal,32 and returned it to her.33 Williams testi-
fied that her work duties and hours did not change under the
new ownership (Tr. 817–826; GC Exh. 22c and 23c).
Paula Robinson (Robinson) provided testimony similar to
Williams. Robinson has been a CNA with Sprain Brook since
February 2004. She was on vacation and upon her return, she
was asked to complete “some paperwork” by Mendizabal.
Robinson said she was given two letters by her supervisor, Paul
Qunto. The two letters were her discharge and an offer of em-
ployment as a CNA with Budget Services. Robinson complet-
ed her job application with Budget Services on September 21.
Robinson testified that her hours and work duties did not
change (Tr. 864–869).
Estefany Sanchez (Sanchez) testified that she is employed by
Respondent Sprain Brook as a HR assistant and staffing coor-
dinator.34 She testified that as the HR assistant, she was re-
sponsible for ensuring that the job applications and resumes of
the nursing candidates were properly completed. She also
scheduled job interviews with the candidate and the nursing
director, Mendizabal. Sanchez said that after the candidates

32 Mendizabal is a management employee with Respondent Sprain
Brook.
33 A copy of Williams’ job application was not available but she tes-
tified that the application she completed was similar to the one com-
pleted by Vernon Warren with the Budget Services caption on the
employment application (Tr. 822–824; GC Exh. 38).
34 In the transcript, some witnesses referred to Estefany as “Stepha-
nie.”
SPRAIN BROOK MANOR REHAB, LLC 27
were interviewed, she would forward the application to Re-
spondent Budget because Budget was the employer of the nurs-
ing staff (Tr. 1386–1388).
Sanchez communicates with Shaina Fekete from Budget
Services on occasions regarding payroll issues with the nursing
staff. Sanchez said that she was responsible for ensuring that
the hours worked by the nursing staff matches up with the
clock-in and clock-out time. She provided an example that if
an employee was working from the 11 to 7 shift, she would
know the actual hours worked based upon the time the employ-
ee punched in and out on the time clock. She stated that the
time and attendance information is then sent to Fekete for issu-
ing the checks to the nursing staff. Sanchez testified that Na-
chfolger provides her with the time and attendance and payroll
instructions. On occasions, she is involved with Fekete regard-
ing bounced checks received by a nurse employee or with an
issue regarding an employee not receiving a wage rate increase
(Tr. 1390–1397; GC Exh. 86 and 87). Sanchez also played a
role as the staffing coordinator. Aside from coordinating job
interviews, she is also responsible for creating the work sched-
ules for newly hired CNAs in consultation with Mendizabal
(Tr. 1388–1390).
Jose Perez (Perez), as the former regional manager for Con-
fidence from 2010 to 2014, provided some insight to the hiring
of the former employees. He was present at the September 12
meeting along with Patrick Egan, who was the Confidence vice
president for the New York area at the time. Perez also noted
that Brian John was the director of housekeeping. Perez said
that he was directly involved in hiring the housekeeping and
maintenance staff after they were discharged. Perez said he
was not involved in the contract negotiations for Confidence
services but was involved in offering jobs for the discharged
employees with Confidence. Perez said there were no inter-
views conducted and those employees interested in being re-
hired completed a job application. Perez testified that Nogueira
was one of the housekeepers that were hired by Confidence.
Perez said that Nogueira was supervised by Brian John and her
paycheck was issued by Confidence (Tr. 777–785; 811).
f. The Rationale for the Discharge
The intent of the owners of Respondent Sprain Brook was
not to retain or hire any employees. Stein testified that the
Sprain Brook employees were all discharged on September 12
and the effective rehiring date of Sprain Brook employees with
the new companies would start on the following day (Tr. 163).
Stein explained his business model as the new owner of Re-
spondent Sprain Brook. He testified that he would retain the
management and administration staff but not to hire any em-
ployees. He testified that he did not want to manage employees
and all the non-management employees would be outsourced.
Stein testified
We do not manage employees. We don’t have employees.
They don’t have employees. They don’t have nothing of
that—nothing of that category.
Nevertheless, Respondent Sprain Brook would retain super-
visory control regarding the contracted employees. Stein ex-
plained that if Respondent Sprain Brook determines that a con-
tracted company employee is not working in a satisfactory
manner, the supervisor would contact the company and get
another employee. For example, Stein stated that if the director
of nursing (a Respondent Sprain Brook manager) is not satis-
fied with the work performance of a CNA or LPN, the director
would contact the outsourced company for a replacement em-
ployee (Tr. 99–108).
Israel Nachfolger (Nachfolger) testified that he worked with
Sprain Brook in a limited capacity in the payroll department
under Klein when he was hired in March 2009. Nachfolger
said that predecessor Sprain Brook was losing money and Klein
somehow made contacts with Stein for the sale of the facility.
Nachfolger said that Stein came to the facility “awhile later”
after Nachfolger was hired to look around as a potential buyer.
Nachfolger said it was a misconception that Stein was manag-
ing the facility before the sale. According to Nachfolger, Stein
said he was not there in a management capacity but wanted to
familiarize himself with the operations of the facility. Nachfol-
ger testified that Stein repeatedly told him that he only wanted
to take care of patients and wanted other companies to manage
the kitchen, cleaning, and housekeeping departments. Nachfol-
ger was told by Stein that he intended to outsource everything
and other companies would be responsible for supervising the
employees. Nachfolger was subsequently made CFO/controller
by Stein in September 2012 after the sale to Respondent Sprain
Brook (Tr. 937–940).
In response to the General Counsel’s subpoena, Nachfolger
stated that Respondent Sprain Brook is not in the possession of
any job applications or employee policies and procedures be-
cause they all originated from the outsourced companies. Na-
chfolger said that he was not aware if any financial analysis
was conducted on the viability of the outsourcing before the
contracts were signed but that Stein would know (Tr. 964–967).
g. The Request to Bargain
Speller recalled 16 bargaining sessions between July 2008
and June 2011 between 1199 SEIU and Sprain Brook and meet-
ing Stein at the July 14, 2009 bargaining session. The record
shows that a first collective-bargaining agreement was never
achieved between 1199 SEIU and predecessor Sprain Brook
nor with Respondent Sprain Brook. Speller testified the first
time that 1199 SEIU became aware that Respondent Sprain
Brook was going to contract out some of the facility’s unit
work was in letter dated December 7, 2010, from attorney Jef-
frey Meyer, who represented Sprain Brook, regarding the
Sprain Brook laundry department (GC Exh. 44). In a subse-
quent telephone conversation, Speller testified that Meyer in-
formed him that Sprain Brook intended to subcontract the laun-
dry department work and to increase the cost to the employees
for their health benefits. Speller objected to both changes in his
letter to Meyer dated December 10 and requested a bargaining
session for late December to negotiate the changes and infor-
mation on the alleged increase in the cost of health benefits and
the maintenance and repair costs associated with the laundry
department (GC Exh. 44b). Speller testified that the parties
never met to bargain over the changes expressed by Meyer in
his December 7 letter due to conflicts in scheduling a session
(Tr. 701, 702).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
Attorney Meyer informed Speller by letter dated March 14,
2011, that effective March 31, Respondent Sprain Brook will
permanently close the laundry department. Attorney Meyer
also asserted in his letter that the unilateral changes were being
made because the Union never offered any proposal or sought
to engage in any discussions over the changes (GC Exh. 44c).
By letter dated March 16, 2011, Speller responded that the
Union opposes any unilateral changes to the laundry depart-
ment. Speller also reiterated that the Union is waiting for its
information request of December 10 (GC Exh. 44d). As noted
above, Speller testified that the closing of the laundry depart-
ment was resolved with the reassignment of the remaining em-
ployee, Nogueira, to the housekeeping department (Tr. 703,
704).
Speller stated that the last bargaining session occurred on
June 2, 2011, with himself, the 1199 SEIU attorney, Stein, Mo-
ses Strulovitch and attorney Meyer. Speller testified that he
again inquired about the status of the sale of the facility and a
closing date for the sale but received no answers (Tr. 706).
Speller testified that he was never informed when the sale
occurred. He stated that the employees working at the Sprain
Brook facility informed him in September 2012 that the sale
had closed. Speller stated that he wrote a letter to attorney
Meyer on September 13 regarding the sale of the facility and
the subsequent subcontracting of the dietary, nursing, house-
keeping and maintenance departments by Respondent Sprain
Brook. In the letter, Speller request to negotiate over the
changes (GC Exh. 45). Speller testified he never received a
response from Meyer so he sent a letter to Stein on October 8,
2012, protesting the unilateral changes in subcontracting the
departments and request to negotiate the changes and their ef-
fects. He also request information on the subcontracting, finan-
cial and other relevant information in preparation for bargain-
ing. Speller never received a response from Stein to his letter
(GC Exh. 46; Tr. 720–724).
Speller also sent letters to bargain and request information
from Respondents Budget, Pinnacle and Confidence. The letter
to Respondent Pinnacle referenced the contracting of the die-
tary unit and informed Pinnacle of the Union’s opposition to
the changes. The letter to Confidence referenced the house-
keeping and maintenance unit and also stated the Union’s op-
position to the changes. The letter to Budget referenced the
nursing staff and the Union’s opposition to the changes made
by Respondent Sprain Brook. The three letters were identical
in substance except for the names of the Respondents. The
letters stated that changes to the employees’ terms and condi-
tions of employment were implemented without notification
and consent of the Union. The Union request that the changes
be rescinded and to negotiate a first collective-bargaining
agreement with each subcontractors. The letters also request
certain information in preparation of bargaining and to include,
among other items, any documents reflecting discussions or
negotiations between each Respondent company and predeces-
sor Sprain Brook and with Respondent Sprain Brook, as well as
information on the wage rates, terms and conditions of em-
ployment, and other benefits of each employee and the names,
home addresses, home telephone numbers, seniority dates, and
hourly wage rates of each bargaining unit employee. Speller
testified he received no response from any of the Respondents
except for Confidence35 (Tr. 724–728; GC Exhs. 47, 48, and
49).
1. The Denial of 1199 SEIU Access to the Facility
In addition to protesting the subcontracting and to request
bargaining with Respondents Budget, Pinnacle, and Confi-
dence, Speller also kept the unit employees informed as to the
status of the bargaining. Obviously frustrated with the progress
of negotiations, Speller testified that he prepared a flyer in
spring 2012 demanding that the “new bosses” (Stein and
Strulovitch) “. . . to come to the table and settle a contract that
guarantees us good raises and a better living standard” (GC
Exh. 39).
Speller instructed Adrien Trumpler, an 1199 SEIU organizer,
to distribute the flyer to the employees at the Sprain Brook
facility. Trumpler reported to Speller that he was approached
by Stein in the employee’s cafeteria and was yelled at and or-
dered by Stein to leave the facility when he attempted to dis-
tribute the flyer. Speller said that the Union always had access
to the Sprain Brook facility since the start of negotiations in
2008 and was never informed by Sprain Brook management of
any change in access policy. Speller repined that Trumpler had
unfettered freedom to consult with workers and would even
meet with Stein and Strulovitch on occasions before this change
in access policy (Tr. 712–714).
Adrien Trumpler (Trumpler) testified that he is a contract
administrator employed by 1199 SEIU and is responsible for
overseeing the working conditions of employees in 13 nursing
home facilities. Trumpler has held this position since 2006. It
was Trumpler’ s practice to visit the Sprain Brook facility once
or twice per month. Trumpler said he would usually meet em-
ployees in the dining area and had occasions to meet with Stein
and Strulovitch regarding the discipline of employees.
Trumpler said he never made an appointment with the facility
management before accessing the facility. Trumpler said this
practice changed in May/June when he arrived at the Sprain
Brook facility to hand out the flyers (GC Exh. 39). Trumpler
had finished meeting and speaking with employees in the din-
ing area and was preparing to leave the facility when Stein
walked in. Stein told Trumpler that he was not allowed in the
facility and demanded that he leave the premises. Stein also
told Trumpler that he needed to make an appointment with
management in the future before he could access the facility.
Trumpler said that Stein gave him no reasons for the change
and no further conversations occurred on that day with Stein
(Tr. 548–556). Trumpler testified that he was at the facility in
August 2012 to arrange for a meeting with Sprain Brook man-
agement over the Union’s access to the facility but was not able
to arrange for a meeting (Tr. 552, 563).

35 Speller received an email from Brian Powers of Confidence on
October 8, 2012, stating he had no knowledge of the items described in
Speller’s letter (GC Exh. 50). Speller further testified that a similar
letter as described above was sent to CBM on July 18, 2013, after Re-
spondent Sprain Brook subcontracted the housekeeping and mainte-
nance departments to CBM (Tr. 727, 729; GC Exh. 51).
SPRAIN BROOK MANOR REHAB, LLC 29
2. Parking Lot Incident
Trumpler testified to a second encounter with Stein after the
Sprain Brook employees were informed of their discharge on
September 12, 2012. Trumpler returned to the Sprain Brook
facility with different flyer on October 17 after the unit em-
ployees were rehired by the contractors. Trumpler remained in
the employee parking area to distribute his flyer since he did
not have permission to enter the facility. Trumpler said that he
was with Nicholson in the afternoon around 3 p.m. on October
17 (Tr. 556–558). The second flyer was double-sided. One
side stated that Sprain Brook management was taking away the
employees’ benefits through subcontracting the work and
bringing other unions in order to reduce their benefits. The flip
side of the flyer encouraged the employees to attend an 1199
SEIU meeting (GC Exh. 40).36
Trumpler testified that Stein came out of the facility yelling
and screaming at him because he was on Sprain Brook proper-
ty. According to Trumpler, Stein had called the police and a
police car arrived at around the same time that Stein ap-
proached Trumpler. Trumpler explained to the police that the
employees had voted in 1199 SEIU and Stein is refusing him
access to the facility. The police officer spoke separately with
Stein and returned to inform Trumpler that he had to leave
since the Union did not have a contract with Respondent Sprain
Brook. Trumpler got into his vehicle and departed from the
parking lot, but before he left, the police waved Trumpler back
because Stein had something to say to him. According to
Trumpler, Stein said that “You know, if you come over here
even at night we’re going to arrest you. Don’t come back here
ever.” Trumpler has not returned to the facility since the Octo-
ber 12 incident (Tr. 558–561).
Nicholson testified that he was finishing his work shift
around 3 p.m. on October 17 when he received a phone call
from Nogueira that Trumpler was outside the facility in the
parking lot and ask that Nicholson assist Trumpler. Nicholson
agreed and met with Trumpler in the parking area. Nicholson
assisted in distributing the flyers and observed Stein approach
Trumpler. According to Nicholson, Stein demanded that
Trumpler leave the area and threatened to have him arrested if
he did not leave. Nicholson said he was able to distribute about
20 flyers until the police arrived and was prevented from han-
dling out any more flyers after that time (Tr. 607–615, 656–
657).
h. The Respondent Local 713 International Brotherhood of
Trade Unions
Local 713, International Brotherhood of Trade Unions (Lo-
cal 713 IBOTU) is a party to the contract in the General Coun-
sel’s complaint against the named Respondents. Local 713 is
also a Respondent in the complaint based upon charges filed by
1199 SEIU.37
The record shows that on January 15, 2008, Budget Services
entered into a collective-bargaining agreement with Local 619

36 Trumpler believed that both flyers were drafted by Speller.
Trumpler testified that he had no input in the flyers and was not inti-
mate with the contents of the flyers (Tr. 567–573).
37 Cases 02–CB–095670 and 02–CB–146895.
IUJAT signed by the president of Local 619 and Weber on
behalf of Budget. The CBA between Local 619 and Budget
covered a unit of “aides who are dispatched from Renaissance”
(GC Exh. 52).38 Weber testified that he negotiated the contract
but could not remember the details. Weber recalled that the
CBA would only cover a specific group of Budget employees
working at the Renaissance nursing facility (Tr. 1320–1323).
During the April 2009 time frame, Local 619 merged with
Local 713 and Local 713 became a successor to Local 619. In
an undated assumption of agreement and merger, the two un-
ions agreed that Local 713 will adopt the current collective-
bargaining agreement of Local 619 and to assume all the rights,
duties, and obligations of the agreement. Weber, as president
of Budget Services Inc., signed and agreed to recognize Local
713 as the collective-bargaining representative of the unit em-
ployees “employed by Budget Services, Inc.” (GC Exh. 53).
On September 10, 2012, Weber on behalf of Budget Services
and the president of Local 713 entered into a memorandum of
agreement to continue the collective-bargaining agreement on
“day to day basis” after the expiration date of the CBA on Jan-
uary 4, 2011. The agreement was for a period from January 15,
2012, to January 14, 2015. The memorandum of agreement
expanded the Budget employees from “aides who are dis-
patched from Renaissance” to now include full time and regular
part time LPNs, CNAs, activity aides, home health aides, per-
sonal care aides, and dietary employees and other related jobs
regularly scheduled to work twenty or more hours per week at
this location and any other location in the New York Metropoli-
tan area” (GC Exh. 54). The other locations were not identified
in the agreement (except for Renaissance that was noted in the
CBA).
Weber testified that it was his signature on the memorandum
of agreement but did not recall the discussions surrounding the
agreement. Weber could not recall seeing any signed authori-
zation cards or whether there was an election to include the
other categories of Budget employees. Weber could not ex-
plain how the memorandum of agreement now included LPNs,
CNAs, activity aides, home health aides, personal care aides
and dietary employees (Tr.1329–1335).
On November 1, 2012, Budget Services and Local 713 en-
tered into a recognition agreement for unit employees working
for Respondent Sprain Brook in the dietary unit. The recogni-
tion agreement stated that the union had demanded that the
employer recognize it as the collective-bargaining representa-
tive of the dietary unit; that at the request of the employer, the
union has produced authorization cards; that the employer had
compared the signatures on the authorization cards’ the em-
ployer has verified that the authorization cards are genuine
signatures from a majority of the employees employed in the
dietary unit. The recognition agreement further stated that
Budget Services recognizes and acknowledges the union as the
sole and exclusive collective-bargaining representatives for all
its full time and regular dietary employees, excluding tempo-
rary and seasonal employees, clerical, managerial, and profes-
sional employees, guards, and supervisors. The parties agreed

38 Renaissance was and is a nursing facility and a client of Budget
Services at that time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
to execute a collective-bargaining agreement “as soon as there-
after practicable” (GC Exh. 55).39
Weber has no recollections of signing the recognition
agreement and did not recall the circumstances in signing the
agreement. Weber stated that he did not recall Local 713 mak-
ing a demand to represent the dietary employees and failed to
remember requesting or seeing any authorization cards. Weber
could not recall if a subsequent CBA was signed (Tr. 1338–
1341).
I. The Discharge of Key 1199 SEIU Supporters
1. Vernon Warren
Vernon Warren testified that soon after he started working as
a dietary aide for Pinnacle, his new supervisor, Andrew (he
failed to recall the last name) had a meeting with the six dietary
aides in a work area. Warren believed that Andrew was a man-
ager from Pinnacle and he worked as Ward’s assistant. Warren
believed that Andrew only worked at the facility for 2 weeks in
late September and early October. Warren said that in early
October 2012, Andrew held a meeting with the 6 dietary aides
and said he had two cards for the dietary aides to complete and
sign. Warren said that one card (blue) was for health insurance
benefits with Local 713 (GC Exh. 26b) and the second card
(yellow) was a check off authorization card (GC Exh. 26a).
Warren and the other dietary aides were instructed to complete
the two cards within 24 hours. Warren did not sign the two
cards (Tr. 461–466).
Warren testified that shortly afterwards, an individual by the
name of Foruq Rahim believed to be a representative from
Respondent Budget approached him at work and request that
Warren sign the same two cards. Warren again refused to sign
up with Local 713. On October 25, Warren met with Ward
when he arrived at work. Ward informed him that he was fired
from his dietary aide position. Warren recalled Ward saying to
him “It sucks but I have to fire you.” On the employee disci-
plinary action form, it was stated that Warren was fired due to
unsatisfactory work performance. Warren said that he has nev-
er been previously disciplined for his work performance and
Ward never explained the unsatisfactory work that resulted in
his discharge. The record is void of any documents of prior
discipline or unsatisfactory work performance issued to War-
ren. Warren believes that his discharge was due to his refusal
to sign up with Respondent Local 713 (Tr. 468–474; GC Exh.
30).
Warren subsequently received a letter from Respondent
Budget dated May 22, 2013, with an offer of full-time em-
ployment at the Sprain Brook Manor facility in the position he
formerly held at the same hourly rate with retention of his prior
seniority. The letter was signed by Jacob Rosenberg from
“Budget Agency” and Warren was asked to call Gerald Gerva-
sio, a Managing Director at Budget (GC Exh. 36). Warren
testified that he called Gervasio and was informed to call a Raul
Lopez, who was now the new manager in the Dietary Depart-
ment at the Sprain Brook facility. Warren met with Gervasio

39 Pinnacle was not a party to the recognition agreement and had
never entered into a collective-bargaining agreement with Local 713 or
any union.
and another dietary aide supervisor, Anthony Wright, on
Wednesday (May 29, 2013) and was asked to complete two job
applications. Warren completed both applications and went
back to work at the same $10 dollars-per-hour wage rate. The
record reflects that one job application was captioned “Pinnacle
Employment Application” and the second application complet-
ed by Warren was captioned “Employment Application, Budget
Services, Inc.” The Budget job application also contained a
criminal background check (GC Exhs. 37 and 38; Tr. 476–486).
Warren testified that he returned to work at the Sprain Brook
facility in late May or early June 2013 and he reported directly
to Anthony Wright. Warren said that his health insurance bene-
fits were not restored when rehired. Warren inquired as to his
benefits and was informed by Steven Lopez, the dietary man-
ager, to contact a “Crystel” at Pinnacle.40 Warren called Crys-
tel in November 2013 and was informed that Warren needed to
sign a union membership card with Local 713 to receive health
benefits. Warren replied that he already belongs to another
union and refused to sign with Local 713. Warren was again
approached by supervisor Lopez in December to sign a Local
713 union card and one for his health benefits (GC Exhs. 26a
and 26b). Warren was informed that he needed to sign with
Local 713 before he could receive health benefits. Warren
again refused. Warren said there was a third occasion in Janu-
ary/February 2014 when he was approached by a Local 713
representative and was told that he needed to sign the union
card before he could receive any health benefits. Warren re-
fused to sign up with Local 713 (Tr. 486–495).
2. Alvin Nicholson
Alvin Nicholson testified that his food service job required
that he attend a physical examination on routine basis. Nichol-
son said that under the predecessor Sprain Brook, his physical
examination was provided free of charge by the facility. On
October 22, Nicholson was directed to take a medical examina-
tion. Nicholson testified he went to see the facility receptionist,
whom he identified as “Stephanie.”41 Nicholson was asked by
Sanchez to complete some forms and then to visit the nurse at
the facility. According to Nicholson, Sanchez provided him
with two cards to complete. Like Warren, the yellow card was
for Local 713 authorization for union dues and the blue card
was for health benefits (GC Exhs. 26a and 26b).
Nicholson refused to sign the two cards and told Sanchez
that his physical examination had always been free in the past.
Nicholson was confused as to when Sanchez called his supervi-
sor over the dispute about the free physical. Nicholson thought
there were one, but perhaps two conversations between
Sanchez and his supervisor about his refusal to pay for his ex-
amination. Nicholson recalled speaking to Sanchez at her work

40 Vernon could not recall the surname of Crystel. As already noted;
this person was identified as Crystel Ploschke and employed with AAA
Supplies as the HR resource assistant. Pinnacle is a subsidiary of Tri-
ple A Supplies, Inc. (Tr. 1585–1589).
41 Nicholson did not recall Stephanie’s surname. Although the tran-
script recorded the name as “Stephanie,” it is not disputed by the parties
that Stephanie is actually Estefany Sanchez, and as noted above is
employed by Respondent Sprain Brook as the HR assistant and staffing
coordinator.
SPRAIN BROOK MANOR REHAB, LLC 31
area regarding the signing of the two cards before Nicholson
could receive a free examination. Nicholson also said that he
spoke to his supervisor in the lobby as he was leaving the re-
ceptionist area. At this time, Sanchez also appeared in the lob-
by. Nicholson reiterated to his supervisor that his physical
examination should be at no cost to him. Nicholson said that he
left the two individuals and headed to the kitchen.
Nicholson said that later on October 22; he received a tele-
phone call from Ward and to see her at the end of his shift. At
the meeting with Ward, Nicholson was informed that his cook
position was being eliminated. Nicholson asked to return to his
full time dietary aide position but was informed by Ward that
someone else was being trained for that position. Nicholson
was discharged by Ward on the same day (Tr. 617–628, 651–
65?, 661–663; GC Exh. 41).
3. Clarisse Nogueira
Clarisse Nogueira also experienced a similar encounter with
Confidence’s attempt to have her join another union. She testi-
fied that on September 25, her supervisor directed her and the
rest of the housekeeping and maintenance staff to meet with
Jose.42 Perez introduced the staff to Ken Franz, a business
agent, from Local 312. Nogueira informed Franz that she al-
ready belonged to 1199 SEIU. According to Nogueira, Franz
left the Local 312 authorization form to sign and his business
agent card. Nogueira did not complete the union card (Tr. 286–
289; GC Exhs. 25a and 25b).43
As a union delegate with Local 1199, Nogueira was dis-
turbed that employees were being intimidated to sign with Lo-
cal 713 and 312 in order to obtain benefits. Nogueira was
aware that Nicholson was discharged after he assisted Trumpler
with the distribution of flyers on October 12 and in his refusal
to sign the Local 713 union cards on October 22. Nogueira was
also an advocate for another employee in refusal to sign a Local
713 union card. Nogueira identified the other person as “Ga-
lina,” employed as a CNA. Nogueira recalled telling Galina
she did not have to complete the Local 713 union card and that
1199 SEIU was the rightful union. Nogueira said this conver-
sation occurred on October 23 in an elevator in the presence of
Sanchez who held a stack of Local 713 union cards.
Nogueira had a conversation with Perez the next day regard-
ing her conversation with Galina’s refusal to sign the union
card. Nogueira told Perez that she was a delegate with 1199
SEIU and had the right to tell Galina about her union rights.
According to Nogueira, when she arrived at work on the fol-
lowing day, she was instructed by her supervisor to meet with
Perez. Perez told Nogueira that Stein and Strulovitch believe
she was harassing the staff and not fulfilling her duties.
Nogueira replied that management was harassing the staff.

42 Nogueria failed to recall Jose’s surname but believe he was from
Confidence. As noted Jose’s surname is Perez and he was the regional
manager for Confidence at the time.
43 Nogueria also became aware of Local 713’s drive to recruit em-
ployees in October 2012. Nogueria said that she was not approached
by any Local 713 representative to sign up but was given copies of
Local 713 health and welfare fund enrollment card and a Local 713
application and check-off authorization form (Tr. 298–303; GC Exh.
26).
Nogueira testified that Perez informed her that Stein and
Strulovitch wanted her fired. No apparent reason was provided
for her discharge and no documentation of her termination was
completed by Respondents Sprain Brook or Confidence (Tr.
304–314; 336–340).
Perez testified that Stein spoke to him about Nogueira. Ac-
cording to Perez, Stein said that Nogueira was harassing the
staff and she was not meeting the standard of the housekeeping
department. Perez said that Stein told him, “Jose, you have to
terminate her. You have to fire her.” Perez responded that he
needed to investigate these allegations and get back to Stein.
Perez made his weekly visits and spoke to other employees and
no one had any issues with Nogueira. Perez also spoke to Su-
pervisor Brian John and was informed that Nogueira was not
interfering with any other employees. Perez verified that
Nogueira may of talked too much but she was making her
standards. Perez said he was instructed to discharge Nogueira
by Stein. Perez said he contacted his supervisor, Patrick Egan,
and was told that there were disciplinary protocols that Confi-
dence follows in discharging an employee. However, a few
days later, Perez was given the green light to discharge Noguei-
ra. Perez did not know why Egan had changed his mind. Perez
told Nogueira she was harassing the staff and her duties were
not being fulfilled. Perez admitted that this was not true based
upon his own investigation of the situation but was nevertheless
directed to discharge Nogueira. Perez did not recall the exact
date when Nogueira was discharged but believe it was in Octo-
ber 2012 (Tr. 785–793, 809, 814).
4. Corroborating Witnesses
Carmen Smith (Smith), a dietary aide, testified to Ward’s at-
tempt to have her join Local 713. Smith said she met with
Ward on October 24 and was told by Ward she was about to be
discharged. No reason was given by Ward for Smith’s dis-
charge. However, Smith testified that that she then spoke to a
“Kevin” (surname unknown) from Local 713 and was asked to
sign a Local 713 check off (yellow) authorization card and a
health insurance (blue) card (GC Exh. 29). Smith said she was
coerced to sign the two cards because she needed her job and
health insurance (for her illness) and would no longer have
health benefits unless she signed with Local 713 (Tr. 365–370).
The record shows that Smith joined Local 713 and had her
union dues deducted from the paycheck by Respondent Budget
(Tr. 374; GC Exh. 31).
Shelly Williams (Williams), a CNA, testified that she was al-
so coerced to sign a Local 713 membership card. Williams was
called to the recreational center along with other employees a
few days after she had completed her job application. Williams
stated that there was a Budget representative and a person from
Local 713, who she identified as Kevin Watts. Williams com-
pleted the Local 713 union cards (previously identified as GC
Exh. 26 a-c). Williams complained that her benefits were re-
duced under the new union (Tr. 829–836).
Paula Robinson (Robinson), a CNA, similarly testified that
she was given two sets of documents sealed in envelopes. Rob-
inson admitted that she did not open her envelopes but believed
that the two packets were forms to sign up with Local 713 and
for her health benefits. Robinson did not sign up with Local
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
713 but Local 713 union dues were nevertheless deducted from
her paycheck. She complained to Watts in January 2013.
Watts promised to meet with Robinson at his next scheduled
visit to the facility, but never met with her (Tr. 873–885).
Katrina Gjelaj (Gjelaj) testified that when she was instructed
by Sanchez to complete her job application for a housekeeping
position with Respondent Budget Services, she was also given
a “union card” authorization form for Local 713 by Sanchez to
complete. Gjelaj testified that the Sprain Brook administrator,
Mushell, instructed the housekeeper to complete Local 713
union authorization cards. Gjelaj said that she needed her
health insurance and was told she would receive health benefits
with Local 713. She refused to sign with Local 713. Gjelaj
testified that she is now receiving her health insurance from
another entity and not with Local 713. Gjelaj insisted that un-
ion dues were nevertheless taken out of her paycheck even
though she never signed up with Local 713. The record reflects
that union dues to Local 713 were deducted from Gjelaj’s
paycheck for the pay period ending on October 24, 2014 (Tr.
1533, 1555–1560; GC Exh. 105).
IV. SUCCESSORSHIP
The General Counsel argues that Respondent Sprain Brook
became a successor to predecessor Sprain Brook at the latest on
June 15, 2012. It is argued that Respondent Sprain Brook vio-
lated Section 8(a)(5) and (1) of the Act by failing and refusing
to recognize and bargain with 1199 SEIU as the exclusive col-
lective-bargaining representative of its employees and in mak-
ing unilateral changes to employees’ terms and conditions of
employment without providing notice to 1199 SEIU and an
opportunity to bargain over the changes and without first bar-
gaining to overall impasse. The unilateral changes include the
discharge of all 1199 SEIU bargaining unit employees and
contracting their work to Respondents Pinnacle, Budget, and
CBM.
As such, I must first determine whether Respondent Sprain
Brook is a successor to predecessor Sprain Brook. This is so
because Respondent Sprain Brook claims that there was no
substantial continuity between the two entities with an obliga-
tion to bargain.
Discussion and Analysis
An employer, which buys or otherwise takes control of the
unionized business of another employer, succeeds to the collec-
tive-bargaining obligation of the seller if it is a successor em-
ployer. For it to be a successor employer, the similarities be-
tween the two operations must manifest a “substantial continui-
ty between the enterprises” and a majority of its employees in
an appropriate bargaining unit must be former bargaining unit
employees of the predecessor. The bargaining obligation of a
successor employer begins when it has hired a “substantial and
representative complement” of its workforce. NLRB v. Burns
Security Services, 406 U.S. 272, 40 (1972); Fall River Dyeing
Corp. v. NLRB, 482 U.S. 27; 107 S. Ct. 2225 (1987), affd. 775
F. 2d.
The General Counsel asserts that Respondent Sprain Brook
is a successor and is therefore obligated to recognize and con-
tinue to bargain with the representative of the employees over a
first collective-bargaining agreement. The General Counsel
argues that Respondent Sprain Brook’s refusal and failure to
recognize and bargain with 1199 SEIU violates Section 8(a)(5)
and, derivatively, Section 8(a)(1) of the Act.44
Specifically, the General contends that Respondent Sprain
Brook is a successor employer to SBMNH, LLC with an obli-
gation under the Act to recognize and bargain with the Union as
the collective-bargaining representative of the bargaining units
of workers in housekeeping and maintenance, nursing staff, and
dietary/cooks at the facility. Respondent Sprain Brook rejects
these claims, contending that it is not a successor employer
because SBMNH, LLC terminated all of its nonmanagement
employees and Respondent Sprain Brook did not have a majori-
ty of employees from the predecessor’s employees when it took
control of the facility on September 13, 2012.
In Burns International Security Services, above, it is well
settled that a successor employer must bargain with the em-
ployee representative when it becomes clear that the successor
has hired its full complement of employees and that the union
represents a majority of those employees. The Board has held
that when a business changes hands, the successor employer
must take over and honor the collective-bargaining agreement
negotiated by the predecessor or to recognize and continue to
bargain with a union as the exclusive collective-bargaining
representative of the predecessor’s employees.
Under Burns and its progeny, an employer that acquires a
predecessor’s operations succeeds to the predecessor’s collec-
tive-bargaining obligations and is required to recognize and
bargain with a union representing the predecessor’s employees
when (1) there is a substantial continuity of operations after the
takeover; (2) a majority of the successor’s employees at the
facility it acquired from the predecessor were former predeces-
sor employees; and (3) a majority of the new employer’s work-
force in an unit remains appropriate for collective bargaining
under the successor’s operations. Also, Fall River Dyeing &
Finishing Corp. v. NLRB, 482 U.S. 27, 43 (1987).
The rule of successorship imposes an obligation on a new
employer to bargain with the union of its predecessor. Fall Riv-
er Dyeing, 482 U.S. at 36. “If the new employer makes a con-
scious decision to maintain generally the same business and to
hire a majority of its employees from the predecessor, then the
bargaining obligation of 8(a) (5) is activated.” Id. at 41–42. In
situations where, as here, the successor has neither a prolonged
start-up period with gradual or staggered hiring of employees
nor a significant hiatus in operations, but instead immediately
retains a full complement of employees of the predecessor, the
bargaining obligation attaches as of the date the successor em-
ploys a “substantial and representative complement.” Fall
River, above at 46–52.
A threshold question is at what date Respondent Sprain
Brook became a successor to predecessor Sprain Brook. The
General Counsel maintains that Respondent Sprain Brook prin-
cipals have been managing the facility as early as 2009 and
formally took over the business on June 15, 2012 (GC Br. at

44 An employer’s violation of Sec. 8(a)(5) of the Act is also a deriva-
tive violation of Sec. 8(a)(1) of the Act. Tennessee Coach Co., 115
NLRB 677, 679 (1956), enfd. 237 F.2d 907 (6th Cir. 1956). See ABF
Freight System, 325 NLRB 546 fn. 3 (1998).
SPRAIN BROOK MANOR REHAB, LLC 33
11). It is argued that Respondent Sprain Brook’s bargaining
obligation attached at the latest on June 15, 2012. Conversely,
Respondent Sprain Brook argues that it did not begin managing
the facility until after the assumption of operation on September
13 and after the predecessor’s nonmanagement employees were
terminated on September 12. The Respondent Sprain Brook
concedes that it received the required approvals from the De-
partment of Health on August 6, 2012, which would have trig-
gered the deadlines set forth in the sales agreement but the clos-
ing was delayed due to issues between Klein and the estate of
Book (R. Sprain Brook’s Br. at 6, 7). The Respondent main-
tains that the actual closing date occurred on September 13,
2012.
The Respondent Sprain Brook also argues that it is not a suc-
cessor to predecessor Sprain Brook because there were substan-
tial differences between their businesses. Respondent Sprain
Brook maintains that predecessor Sprain Brook operated the
facility as a “full blown employer” and managed all aspects of
the business, including employing all of the required individu-
als prior to September 12. It is argued that as of September 13,
Respondent Sprain Brook was only in the business of “patient
care” and entrusted aspects of its business operations to con-
tractors (R. Sprain Brook’s Br. at 11, 12). Stein, as the new
owner, envisioned a business model to care only for patients
and left the management of employees and other aspects of
running the facility to contractors. As described above, Stein
insisted at the hearing that “We do not manage employees. We
don’t have employees. They don’t have employees. They don’t
have nothing of that—nothing of that category.”
a. The Respondent Sprain Brook is a Burns Successor
I agree with the General Counsel that Respondent Sprain
Brook became a Burns successor (at the latest) as of June 15,
2012, and it unlawfully refused to recognize and bargain with
1199 SEIU as a Burns successor in violation of Section 8(a)(5)
and (1) of the Act. In NLRB v. Burns Intl. Security Services,
406 U.S. 272, 294–295 (1972), the Court stated:
Although a successor employer is ordinarily free to set initial
terms on which it will hire the employees of a predecessor,
there will be instances in which it is perfectly clear that the
new employer plans to retain all of the employees in the unit
and in which it will be appropriate to have him initially con-
sult with the employees’ bargaining representative before he
fixes terms.
Under Burns, determining whether a new company is a suc-
cessor “is primarily factual in nature and is based upon the
totality of the circumstances of a given situation.” Fall River
Dyeing, 482 U.S. at 43. Thus, a finding of successorship as of
June 15, 2012, would impose an obligation on Respondent
Sprain Brook to continue collective-bargaining with 1199 SEIU
to lawful impasse because the new employer did not terminate
its employees until September 12.
An employer in a business takeover need not have acquired
title to the assets of the business before he may be treated in
law as the successor for collective-bargaining purposes. East
Belden Corp., 239 NLRB 776, 791 (1978); Sorrento Hotel, 266
NLRB 350, 356–357 (1983), and authorities cited. Rather,
where a prospective buyer steps into the management of a un-
ion-represented business pending a conclusion of the sale of
assets and does not then substantially alter the composition or
appropriateness of the bargaining unit, he will be treated as a
successor fitting within the “perfectly clear” exception suggest-
ed in Burns as triggering a duty to recognize and bargain with
the incumbent union before making any subsequent changes
affecting employment in the bargaining unit.45 Sorrento Hotel,
supra at fn. 23.
The operative language as to when a buyer’s successor obli-
gation attached is when it commenced with the management
and control of the business operations. East Belden, above.46
The difficulty, here, in assessing the date of successorship is
due to the lengthy transition period between the signing of the
sales agreement in 2009 and the claimed assertion by Stein that
successorship occurred on September 13 when he announced
his intent to set up new conditions prior to offering employment
to former employees through the contractors. Nevertheless,
based upon the record, I find that the successorship occurred at
the latest on June 15, 2012.
In East Belden, above, the prospective buyer executed a writ-
ten purchase agreement to buy a restaurant. Then, the buyer
entered the property and took control of the restaurant during
an approximate 2-month escrow period until the permanent
transfer of the restaurant occurred. During escrow, the buyer
retained a majority of the seller’s unit employees who had been
represented by the union in East Belden. Evidence of the buy-
er’s control was reflected in the change in the restaurant’s oper-
ating records to show that the buyer was the named operator
during the escrow period. The buyer also paid various operating
expenses of the restaurant, including the manager salaries and
employee wages, during the escrow period. The buyer was the
party to reap the profits or losses of the restaurant during the
escrow period. Under these circumstances, the Board held that
the buyer was deemed to have acquired the obligations of a
successor employer during escrow.
In Sorrento Hotel, supra, the new lessees executed a written
interim management agreement to operate the hostelry while
they awaited a long-term lease with the owner to begin. During
this interim period, the lessees entered the property, took con-
trol of managing the property, obtained and utilized the neces-
sary licensing and permits to manage the property, promised to
indemnify the owner for any mismanagement, and utilized the
owner’s employees. The lessees incurred the business’ operat-
ing expenses, including the compensation of the manager, who
was designated by the lessees and who reported directly to the
lessees.
The General Counsel maintains that Respondent Sprain
Brook has been managing the nursing facility since the 2009

45 Under Spruce Up Corp., 209 NLRB 194, 195 (1974), the Board
held that a successor employer is free to set initial terms and conditions
of employment when it is not “perfectly clear” that the employer “plan
to retain all of the employees in the unit.”
46 The concept developed by this case permits successorship to at-
tach before actual complete takeover by the purchaser if the purchaser
enters the property during an escrow period and utilizes a majority of
the seller’s employees during this escrow period.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
sales agreement. On August 18, 2009, Predecessor Sprain
Brook entered into a purchase agreement with LNS Acquisition
to sell the nursing home. The sellers of Predecessor Sprain
Brook were Klein and the estate of Henry Book, each owning a
50 percent share of the facility. The buyer of the nursing home
was LNS Acquisition. The sales agreement was contingent
upon the approval of the sale by the New York State Depart-
ment of Health (DOH) through a Certificate of Need applica-
tion. The purchase price for Predecessor Sprain Brook was
$7,800,000 dollars (GC Exh. 7).
Stein denied that he had a controlling interest in predecessor
Sprain Brook. Stein testified that he was invited by Klein in
2009 to acclimate himself in the operations of the nursing home
because he had no working experience in managing a nursing
home and he wanted to learn about the business. Stein testified
that he went in to “look around” and spoke to residents. He
denied he was involved in the paperwork or finances of the
facility’s operations until 2012.
I find that at the time of the sales agreement, Stein became a
managing partner of the facility and had a financial interest as
one of the new owners. Stein testified that Strulovitch and
Schwimmer were the members (partners) of LNS. Stein denied
that he was a member of LNS at the time of the sale and insist-
ed he was not involved in the initial sales agreement. On this
point, I find that Stein is not credible. The sales agreement
identified the LNS members in the sales agreement as Sam
Strulovitch, Lazer Strulovitch, Moses Friedman, Allen Stein
and Leopold Schwimmer (GC Exh. 7 at 15).
I find that at the time of the sales agreement, LNS became
the owner of the facility. As the new owner, LNS could have
resold the facility at this point in time. The sales agreement
gave LNS “unrestricted right to assign” the sales agreement.
The sales agreement also allowed Respondent Sprain Brook to
realize any profits accrued after the sale and suffer any losses in
the business operations. As stated in the sales agreement, the
seller had to account for its operations as of an “adjustment
date” of January 1, 2007, which entitled Respondent Sprain
Brook to “. . . any profit accrued with respect to the period from
and after the Adjustment Date and shall bear any loss with re-
spect to the period from and after the Adjustment Date” (GC
Exh. 7 at 5).
On November 17, 2009, LNS assigned all rights, title, and
interest in its purchase agreement to Respondent Sprain Brook
Manor Rehab, LLC. The record shows that Stein was also an
initial member of Respondent Sprain Brook when the sales
agreement was assigned (GC Exhs. 10 and 11). The record
shows that Respondent Sprain Brook had four partners: Lazer
Strulovitch’s interest at 53.125 percent, Stein at 25 percent,
Schwimmer at 12.5 percent and Friedman at 9.375 percent (GC
Exh. 9 at 2). On November 25, 2009, Respondent Sprain
Brook now doing business as Sprain Brook Manor Nursing
Home (SBMNH), filed a Certificate of Need (CON) application
with the DOH seeking approval from the NYS Public Health
Council to establish itself as a new operator of SBMNH (GC
Exh. 9).
I find the testimony provided by Stein was not credible when
he denied any managing control over the finances of the facili-
ty. As stated, Stein was an initial buyer as a member of LNS
with a financial interest in the operations of the facility after the
sale. Stein was also a member of Respondent Sprain Brook
when the rights to the sales agreement were assigned on No-
vember 17. The record further shows that Stein signed Sched-
ules 1A and 13B in his Certificate of Need (CON) application
on November 17, 2009, as a member of LNS (GC Exh. 9 and
12) and represented to the NYS DOH in his CON Application
that he is and has been the comptroller of Sprain Brook Manor
Nursing Home for the past 10 years (GC Exh. 6; Tr. 66).
Consistent with East Belden, above, Respondent Sprain
Brook, executed a written purchase agreement to buy the
healthcare facility in November 2009 and took control over the
operations during an approximate 3-year period until the per-
manent transfer of the facility occurred in June 2012. During
this period, Respondent Sprain Brook retained a majority of the
seller’s unit employees who had been represented by the 1199
SEIU. As in East Belden, evidence of the buyer’s control was
reflected in getting approval to retain the same legal name of
the predecessor, finalizing the certificate of need application
and representing to NYS DOH that Stein was in the capacity as
the financial comptroller of Sprain Brook. The buyer was the
party to reap the profits or losses of the facility during the tran-
sition period. Under these circumstances, I find that Respond-
ent Sprain Brook is deemed to have acquired the obligations of
a successor employer during the transition period.
Stein also admitted to some degree of authority and autono-
my granted by Klein to “manage this; I should manage that; I
should take care of stuff,” but insisted that everything had to go
through Klein. Stein also attended bargaining sessions with
SEIU 1199 but maintains that he was there only at the direction
of Klein and only represented Klein with certain aspects of the
bargaining. Klein testified that he managed the day-to-day
operations of the nursing home during his ownership and that
he did not grant any authority to Stein to act on his behalf on
labor/employment relations matters.
I credit Speller’s testimony on this point. Speller testified
that it was his understanding that the Union was negotiating
with the buyers of the Sprain Brook facility. Speller never met
Klein in any of the bargaining sessions and said that Strulovitch
and Stein were intimately involved in the negotiations. Speller
further testified that he never recalled Stein or Strulovitch tell-
ing him that any matters negotiated needed to be approved by
Klein as part of any final agreement.
Speller said that Stein and Strulovitch told him that Sprain
Brook wanted a union contract and a good working relationship
with 1199 SEIU. Speller testified that he was introduced to
Stein during a bargaining session on July 14, 2009, and was
told by Strulovitch that Stein was one of the prospective buyers
of the home. Speller said that he met Stein again on September
16, 2009, to discuss bargaining issues. Stein repeated that he
wanted a good working relationship with the Union. Stein put
Nachfolger by telephone contact with Speller the following day
to continue discussions on a bargaining contract. According to
Speller, he was informed by Nachfolger that he had experience
in working with 1199 SEIU at other nursing facilities. The
parties met at a bargaining session on September 22 and Speller
met Stein and Nachfolger at this session. Subsequently Speller
SPRAIN BROOK MANOR REHAB, LLC 35
and Nachfolger exchanged emails on September 23 as a follow
up on the bargaining.
I find that not only was Stein involved in the negotiations for
a new collective-bargaining agreement with 1199 SEIU, but he
was also involved with the day-to-day operations of the facility
since 2009. Clarisse Nogueira testified that she observed Stein
with Klein in 2009 walking around the nursing facility but she
did not know who Stein was at the time. Nogueira corroborat-
ed Speller’s testimony when she was introduced to Stein as
someone who “. . .was taking over the facility . . . and he would
be in negotiations for Sprain Brook” (Tr. 272–273). Nogueira
also spoke to Stein at the nursing home when she questioned
Stein’s criticism of another housekeeper’s job performance.
According to Nogueira, Stein responded “You don’t tell me
what to do. I’m your boss” (Tr. 274–279).
Adrien Trumpler, as a delegate from 1199 SEIU, testified
that he met Stein at the facility in May or June 2012 and was
ordered to leave the premises. Stein told Trumpler that he was
not allowed in the facility and demanded that he leave the
premises. Stein also told Trumpler that he needed to make an
appointment with management in the future before he could
access the facility.
The Respondent Sprain Brook maintains that ownership
transferred on September 13, 2012. Stein testified that it took
16 to 18 months for approval of the CON application due to the
NYS DOH bureaucracy. The September 13 date of the transfer
of ownership is disputed by the General Counsel.
A reasonable argument could be made, as maintained by the
General Counsel, that successorship occurred on August 18,
2009, with the signing of the sales agreement for the property.
Stein and (Lazer) Strulovitch were partners of LNS, the buyer
of the property. Respondent Sprain Brook acquired the rights
under the sales agreement from LNS on November 17, 2009.
Stein and Strulovitch were also partners in Respondent Sprain
Brook, LLC.
In the meanwhile, during the transition period between No-
vember 2009 and June 2012, Respondent Sprain Brook further
demonstrated ownership by exercising management and control
over the property. Respondent Sprain Brook incurred the loss-
es and reaped the profits of the facility during this interim peri-
od. In addition, I find that Stein did more than “acclimate him-
self” to the business operations during this interim period.
Stein actually held himself out publicly as a managing partner
and the comptroller of the facility (for the past 10 years) in
Respondent Sprain Brook’s certificate of need application.
Further, shortly thereafter, on June 27, 2012, Stein also signed a
contract on behalf of Respondent Sprain Brook as “President”
with Respondent Pinnacle regarding the contracting of the die-
tary aides and cooks (GC Exh. 16). For Respondent Sprain
Brook to maintain that Stein exercised no or little management
control until September 13 flies contrary to his authority to sign
the June 27 contract and holding himself out to the public as the
comptroller for Respondent Sprain Brook.
Respondent Sprain Brook had effected a significant man-
agement decision by contracting the dietary department on June
27 with an effective date of August 1. 1199 SEIU’s objections
that it was never provided a notice and an opportunity to bar-
gain over this change fell on deaf ears. In the meanwhile, Stein
held himself out as the new owner of the facility. Stein admit-
ted to some degree of authority and autonomy conceded to him
from Klein to “manage this; I should manage that; I should take
care of stuff.” Trumpler, the 1199 SEIU contract administrator,
had occasions to meet with Stein and Strulovitch regarding the
discipline of employees. Indeed, Stein directly changed the
access policy with the Union and interfered with 1199 SEIU’s
ability to access the facility. No testimony or evidence was
provided that the union access policy was implemented by
Klein. The policy change was directly attributed to Stein as the
new owner. In addition, Stein accepted and oversaw the direct
supervision of some of the facility employees by criticizing the
manner how an employee cleaned the windows and telling
Nogueira that Stein was now “her boss.”
In my opinion, I find that successorship occurred on June 15,
2012. Although Stein and others were already managing the
facility since 2009 and conceivably an argument could be made
that successorship occurred earlier, I find June 15 as the defin-
ing point as to when a bargaining obligation attached for Re-
spondent Sprain Brook.
Under the terms of the sales agreement, the closing date
would take place on “. . . a date not more than ninety (90) days
following the receipt . . . of DOH’s final non-contingent ap-
proval of the Application for Establishment… . . duly authoriz-
ing to operate the Facility” (GC Exh. 7 at 4). The application
for Respondent Sprain Brook’s operation of the nursing facility
was approved on April 6, 2012 (GC Exh.14), and the Medicare
enrollment application filed on June 26, 2012, signed and at-
tested by Stein that the change of ownership occurred on June
15 (GC Exh. 15).
I find that the Medicare enrollment application signed by
Stein, as a managing member of Respondent Sprain Brook,
represented to the public that Respondent Sprain Brook was the
new owner of the healthcare facility. The Respondent argues
that the Medicare document was not filed by Stein and that
Stein did not read this document and therefore, it is inappropri-
ate to bind Respondent Sprain Brook to the transfer of owner-
ship on June 15 (R. Sprain Brook Br. at 20, 21). Contrary to
the Respondent’s assertions, the Medicare application is a sig-
nificant document that Stein should have been aware of its
importance and he should not be excused from attesting under
civil penalty to the document simply because he did not have
the foresight to discuss the application with his consultants.
Additionally, this is not the only document that establishes
transfer of ownership. I find as equally significant was the
signed electronic funds transfer agreement signed by Stein,
attesting to the legal change of ownership as of June 15, 2012,
and authorizing the transfer of funds between Respondent
Spain Brook and his financial institute (GC Exh. 15).
Respondent Sprain Brook argues that it was not a successor
because there was no substantial continuity between the two
enterprises. Respondent Sprain Brook asserts that predecessor
Sprain Brook operated the facility as a “full blown employer”
whereas Respondent Sprain Brook only focused on patient care
(R. Sprain Brook Br. at 11, 12).
I find as of June 15, 2012, there were both continuity in the
workforce and continuity of the business enterprise when Re-
spondent Sprain Brook purchased the nursing facility and an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36
obligation attached for Respondent Sprain Brook to continue
bargaining with 1199 SEIU. There was “substantial continuity”
between the enterprises to the extent that the business of both
employers is essentially the same and the employees of the new
company were performing the same jobs in the same working
conditions as of June 15. While this doctrine involves a multi-
tude of factors, typically, the new employer must “hire a major-
ity of its employees from the predecessor.” Howard Johnson
Co. v. Detroit Local Joint Exec. Bd., 417 U.S. 249, 263 (1974).
Continuity of workforce is easily established here as Re-
spondent Sprain Brook retained all of the predecessor’s em-
ployees and the different employee units remained un-
changed.47 The critical inquiry in such an analysis is whether
the new Respondent conducts essentially the same business as
the predecessor, in other words, whether the similarities be-
tween the two operations manifest a substantial continuity be-
tween the enterprises. Hydrolines Inc., 305 NLRB 416, 421
(1991), citing Fall River Dyeing, above 482 U.S. at 41–43 and
Burns Security Services, above 406 U.S. at 280, fn. 4. The
factors include whether the business is essentially the same,
whether the employees of the new company are doing the same
jobs under the same supervisors, and whether the new entity
has the same production process, produces the same products
and has the same body of customers. These factors are assessed
primarily from the perspective of the employees, that is wheth-
er those employees, who have been retained will view their job
situation was essentially unaltered. Hydrolines, above at 421.
The evidence establishes that Sprain Brook provided the
same services and engaged in the same functions as its prede-
cessor. The Respondent continued to provide short-term and
long-term health care, and its employees continue to perform
the same patient care duties with the same equipment and mate-
rials. O.G.S. Technologies, Inc., 356 NLRB No. 92 at p. 4;
Torrington Industries, 307 NLRB at 810. There is no evidence
that Respondent Sprain Brook had abandoned a line of business
or otherwise made a change in its overall scope of its opera-
tions, made a substantial capital commitment, or implemented
more sophisticated technologies which have changed the nature
of its business. O.G.S. Technologies, Inc., 356 NLRB No. 92 at
p. 4.
Respondent’s principal contention that contracting out “vir-
tually all of the more remedial aspects of the operations (R.
Sprain Brook Br. at 12) was a unique feature of the Respond-
ent’s business model different from predecessor Sprain Brook.
However, the evidence and testimony at the hearing established
that Respondent continues to operate the same facility, provides
the same health care services in the same manner that it has for
a number of years, to a substantially similar patient population
in terms of overall acuity level. Respondent Sprain Brook ap-
plied for and was approved to continue operating under the
predecessor’s legal name. Respondent Sprain Brook represent-
ed to the NYS Department of Health that it was in the same
business of nursing and health care of patients and residences.

47 Payroll records of unit employees working at the Sprain Brook fa-
cility from June until September 2012 indicate that all continued to be
employed by Respondent Sprain Brook (See, GC Br. at appendices 1–
4).
In situations such as this one, the evidence clearly establishes
that Respondent Sprain Brook as of June 15, made no changes
in the business operations and complement of the work force.
The record shows, and I find, that Respondent Sprain Brook
retained all of the nursing, dietary/cook, and housekeeping and
maintenance employees and continued to operate as a nursing
healthcare facility.
It is also hard to see how, from the employees’ perspective
(Fall River, above), that Respondent Sprain Brook can be any-
thing but a successor. The unit employees under Respondent
Sprain Brook as of June 15, 2012, were performing the same
jobs, tasks and duties on the same property prior to and after the
purchase of the facility. From the employees’ perspective, there
was no change in the scale of the operation or their job situa-
tions that would support the belief “that their views on union
representation had changed.” Bronx Health Plan, 326 NLRB
810, 812 fn. 8 (1998) (explain that this is the chief issue in de-
termining “substantial continuity”), enfd. 203 F.3d 51 (D.C.
Cir. 1999); also, A.J. Myers and Sons, Inc., 362 NLRB No. 51
(2015).
Accordingly, I find that Respondent Sprain Brook is a Burns
successor and successorship occurred on June 15, 2012. As
with the buyer in East Belden, the Board marked successorship
when the transitional period began, which meant that the les-
sees’ successorship began with their interim management in-
stead of when their long-term lease began. The salient facts in
East Belden and Sorrento Hotel triggering successorship status
before the purchase was final or the lease commenced are that
there were written agreements to purchase or lease and an es-
crow or interim management period officially established for
the prospective buyer or lessee to take control. The same sali-
ent facts are in existence with Respondent Sprain Brook.
b. The Respondents Budget and CBM are Burns Successors
The complaint alleges that Respondent Budget was a joint
employer with Sprain Brook (see below). The complaint also
alleges in the alternative that Budget was a successor regarding
the nursing staff and that Respondent CBM was a successor to
nonparty Confidence over the housekeeping staff with an obli-
gation to bargain over any unilateral changes with 1199 SEIU.
In turn, it is also alleged that Budget subsequently became a
successor to CBM as of October 2014 regarding the housekeep-
ing staff.48
The Respondents Budget and CBM did not deny that they
had refused to recognize and bargain with the Union but argue
that no obligation existed because they are not legal successors.
I will first address whether Respondent Budget is a Burns
successor. The General Counsel argues that even if Budget is
not a joint employer with Sprain Brook, it was nevertheless a
successor employer to CBM with regards to the housekeeping
and maintenance staff with an obligation to bargain with 1199
SEIU over the initial terms of employment and any unilateral
changes to the terms and conditions of employment.49 The

48 The General Counsel does not argue that Pinnacle was a Burns
successor (GC Br. at fn. 22).
49 As noted above, nonparty Confidence was initially the first em-
ployer of the housekeeping employees in September 2012 and replaced
SPRAIN BROOK MANOR REHAB, LLC 37
General Counsel also argues that Budget was a successor em-
ployer regarding the nursing staff with a bargaining obligation
to the Union as of September 12, 2012 (GC Br. at 66). Re-
spondent Budget stipulated that it did not provide notice to
1199 SEIU or an opportunity to bargain in regard to changes in
the terms and conditions of employment in the housekeeping
unit in October 2014 (Jt. Exh. 2)
As noted above, the test for determining successorship under
Burns is well established: “A Respondent, generally, succeeds
to the collective-bargaining obligation of a predecessor if a
majority of its employees, consisting of a “substantial and rep-
resentative complement,” in an appropriate bargaining unit are
former employees of the predecessor and if the similarities
between the two operations manifest a “substantial continuity”
between the enterprises. Fall
River Dyeing and Finishing Corp., above at 41–43. The
Board will normally assess whether a Respondent is a successor
as of the time a union makes its demand for recognition and
bargaining, provided the Respondent has already hired a sub-
stantial and representative complement of employees. See,
MSK Corp., 341 NLRB 43, 44–45 (2004).
The critical inquiry in such an analysis is whether the new
Respondent conducts essentially the same business as the pre-
decessor, in other words, whether the similarities between the
two operations manifest a substantial continuity between the
enterprises.
Hydrolines Inc., 305 NLRB 416, 421 (1991), citing Fall Riv-
er Dyeing, above 482 U.S. at 41–43 and Burns Security Ser-
vices, above 406 U.S. at 280, fn. 4. The factors include whether
the business is essentially the same, whether the employees of
the new company are doing the same jobs under the same su-
pervisors, and whether the new entity has the same production
process, produces the same products and has the same body of
customers. These factors are assessed primarily from the per-
spective of the employees, that is whether those employees,
who have been retained will view their job situation was essen-
tially unaltered. Hydrolines, above, at 421.
Here, Respondent Budget as a successor to the nursing func-
tions was engaged in essentially the same business as predeces-
sor Sprain Brook. Budget hired a majority of the former nurs-
ing staff, none of the work assignments were changed and the
employees performed the same job functions (GC Exh 79:
Budget hired 48 of predecessor Sprain Brook nursing staff, had
the same supervisors, and maintained a majority of the prede-
cessor in a proper unit performing the same work under the
same conditions). Based upon the evidence, I find that Budget
is a Burns successor.
The Union made a demand for bargaining in its letter to
Budget on October 8, 2012, in which it asked the Respondent to
recognize and bargain with the Union, and restore to the em-
ployees their former terms and conditions of employment. No
response was received from Budget to this request.

by Respondent CBM in July 2013. As a successor employer, CBM had
an obligation to bargain with 1199 SEIU. As of October 1, 2014,
Budget was a successor to CBM as an employer with a bargaining
obligation to 1199 SEIU.
Accordingly, I find and conclude that Respondent Budget is
the legal successor to Sprain Brook regarding the nursing staff.
Pressroom Cleaners, above at 32; Mammoth Coal, above at
689; Planned Building Services, above at 674; New Concept
Solutions, 349 NLRB at 1157; Love’s Barbeque Restaurant,
245 NLRB 78, 82 (1979).
Similarly, Respondent CBM was the successor to non-party
Confidence regarding the housekeeping and maintenance staff.
Confidence did not contest the General Counsel’s argument
that it was a successor to Sprain Brook.50 CBM re-employed a
majority of the employees formerly employed by Confidence.
The record shows that CBM employed five of the six employ-
ees of a six-person housekeeping unit who had previously
worked for Confidence (GC Exh. 77). The Union made a de-
mand to CBM to bargain on July 18. 2013. CBM never re-
sponded to the Union. Finally, in October 2014, Respondent
Budget assumed the housekeeping functions once the CBM
contract was not renewed. At that point Budget became a suc-
cessor to the housekeeping employees, after hiring 10 of the 12-
person unit who had worked for CBM.
Based upon the foregoing, I find and conclude that Respond-
ents Budget and CBM, as Burns successors, violated Sections
8(a)(5) and (1) of the Act by refusing to recognize and bargain
with the Union. Accordingly, the Respondents, as statutory
successors, were obligated to recognize and bargain with the
Union. See NLRB v. Burns Security Services, above; Press-
room Cleaners, above, at 34; Love’s Barbeque Restaurant,
above.
V. THE JOINT EMPLOYER RELATIONSHIP
The General Counsel argues that Respondents Sprain Brook
and Budget were joint employers of the nursing employees as
of September 13, 2012, and of the housekeeping and mainte-
nance employees on or about October 1, 2014. It is also argued
that Respondents Sprain Brook, Budget, and Pinnacle were
joint employers in the employment of the dietary employees as
of September 13, 2012. The Respondents denied that they
acted as joint employers.51

50 As noted above, Confidence settled with the General Counsel and
is not a Respondent in these proceedings. Nevertheless, the record
shows that Confidence employed nine of the 11-person housekeeping
unit previously employed by Sprain Brook (GC Exh. 78). Credible
testimony by Nicholson and Nogueira shows that they performed the
same job functions; had the same production processes; shared a com-
munity of interest; and essentially viewed their jobs as unaltered.
51 In NLRB v. Denver Construction Trades Council, 341 U.S. 675
(1951), the Supreme Court held that a general contractor and its sub-
contractor were not joint employers and constituted separate persons
under Sec. 8(b)(4)(B) of the Act, even if the former exercised some
degree of control over the operations of the latter at a construction site.
The Court stated; “We agree with the Board also in its conclusion that
the fact that the contractor and subcontractor were engaged on the same
construction project, and that the contractor had some supervision over
the subcontractor’s work, did not eliminate the status of each as an
independent contractor or make the employees of one the employees of
the other.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD38
Discussion and Analysis
In TLI, Inc., 271 NLRB 798 (1984), the Board adopted the
Third Circuit’s test in NLRB v. Browning-Ferris Indus., 691
F.2d 1117 (3d Cir. 1982), for determining whether two separate
corporations should be considered to be joint employers with
respect to a specific group of employees. The test is. . . Where
two (or more) separate entities share or codetermine those mat-
ters governing the essential terms and conditions of employ-
ment, they are to be considered joint employers for the purpos-
es of the Act. The Board stated “the joint employer concept
does not require the existence of a single integrated business
enterprise.” The concept recognizes that “the business entities
involved are, in fact, separate but that they share or co-
determine those matters governing the essential terms and con-
ditions of employment.” Id. (quoting NLRB v. Browning-Ferris
Indus., 691 F.2d 1117, 1123 (3d Cir. 1982)).
The Board disagreed with the administrative law judge’s
finding in TLI, Inc. that a joint-employer relationship existed
between Crown Zellerbach Corporation (Crown), a paper prod-
ucts company that manufactures and distributes boxes, and TLI,
Incorporated (TLI), a corporation that provides truckdrivers to
Crown—as well as to other firms in the United States. Id. The
Board held that Crown did not affect the terms and conditions
of employment to such a degree that it may be deemed a joint
employer because the drivers themselves select their own as-
signments based on seniority basis; Crown neither hires nor
fires the drivers; and when a driver engages in conduct adverse
to Crown’s operation, Crown supplies TLI, not the employee
with an “incident report” whereupon a TLI representative in-
vestigates—thus Crown has no disciplinary authority. Id. at
799.
In Laerco Transportation, 269 NLRB 324 (1984), the Board,
referring to the Browning-Ferris test, defined the essential
terms and conditions of employment as those involving such
matters as hiring, firing, disciplining, supervision, and direction
of employees. The Board stated that a joint-employer relation-
ship exists where two or more business entities are in fact sepa-
rate but they share or codetermine those matters governing the
essential terms and conditions of employment. Moreover,
“whether an employer possesses sufficient indicia of control
over petitioned-for employees employed by another employer
is essentially a factual issue.” Id. “To establish joint employer
status there must be a showing that the employer meaningfully
affects matters relating to the employment relationship such as
hiring, firing, discipline, supervision, and direction.” Id.
The Board did not agree with the administrative law judge
and held that Laerco was not a joint-employer because although
Laerco provided some minimal day-to-day supervision of the
petitioned-for employees such supervision is of an extremely
routine nature and all major problems relating to the employ-
ment relationship are referred back to CTL, the company which
provided the employees. Id. at 326.
In Teamsters Local 776 (Pennsy Supply), 313 NLRB 1148,
1162 (1994), the administrative law judge, in an opinion adopt-
ed by the Board, held that two companies were not joint em-
ployers despite a degree of authority exercised by one over the
other. The judge stated:
Evidence of minimal and routine supervision of employees,
limited dispute resolution authority, and the routine nature of
work assignments has been held insufficient to establish a
“joint employer” relationship . . . .
On the other hand, evidence of substantial control over hir-
ing, promotion, and the base wage rates, hours, and working
conditions of employees, coupled with evidence of close and
substantial supervision of employees, and constant presence of
supervisors with a detailed awareness and control of employ-
ees’ daily activities, has been held by the Board to be sufficient
to establish a joint employer relationship. The Board found a
joint employer relationship in Continental Winding Co., 305
NLRB 122, 123 (1991), where even though one employer alone
hired employees supplied to another and set and paid their
wages, the record supported the judge’s finding that the other
employer to which the employees were supplied exercised sole
authority to assign, schedule, and supervise the workplace con-
ditions, and the performance of work by the employees. There,
the Board said, the supervision was more than “routine” and
was not “insignificant.”
The Board in Branch International Services, 327 NLRB 209,
219 (1998), affirmed the administrative law judge’s finding that
J&L and BISO were a joint employer where J&L was shown to
have hired and directed the work of BISO’s employees, and
J&L established its own disciplinary system, which included an
explicit provision for employee discharge. Moreover, the ad-
ministrative law judge opined that a “ joint employer finding is
required in an employee leasing context where the employer to
which the employees are leased meaningfully affects such mat-
ters relating to the employment relationship as hiring, firing,
discipline, supervision, and direction.” Id.; See also, Continen-
tal Winding Co., 305 NLRB 122, 142 fn. 4 (1991) (the Board
affirmed the judge’s reasoning that where Continental exercised
sole authority to assign, schedule, and supervise the Kelly em-
ployees, the day-to-day supervision by Continental over Kelly
employees was more than “routine” and is not “insignificant.”);
also, Teamsters Local 776 (Pennsy Supply), supra.
In D&F Industries, Inc., 339 NLRB 618, 640 (2003), the
Board affirmed the administrative law judge’s findings that
D&F and Olsten were joint employers of temporary employees.
Judge Burton based his finding on evidence that
Olsten hires its own employees, maintains all employment
records, is responsible for workplace injuries to its employees,
and is responsible for disciplining its own employees; the
work of the Olsten’s temporary employees is of routine and
repetitive nature and employees must report absences to Ol-
sten’s site manager, and D&F’s supervision of Olsten em-
ployees is minimal, consisting of assigning them to their daily
jobs, pointing out violations of D&F’s workplace rules, and
ensuring that they are performing their assigned tasks. How-
ever, D&F determined the number of available temporary
employee job vacancies to be filled by Olsten hires; estab-
lished the rates of pay for Olsten’s employees and provided
the funds from which they were paid; decided when overtime
was required and the number of temporary employees neces-
sary for such work; and was authorized to suspend Olsten’s
SPRAIN BROOK MANOR REHAB, LLC 39
temporary employees from work. There was no evidence that
Olsten was authorized to question, or ever questioned D&F as
to its decision to layoff or terminate employees or its selection
of employees for layoff.
Thus, the Board affirmed that D&F participated meaningful-
ly in the exercise of control over matters governing the terms
and conditions of employment of Olsten’s temporary employers
and at all times material, D&F and Olsten constituted joint
employers. Id.
In Airborne Freight Co., 338 NLRB 597, 597–599 (2002),
Chairman Liebman wrote a thoughtful concurrence where she
expressed the need for the Board to revisit its standard for joint
employer status to better prevent employers from escaping the
compromise that the NLRA generally imposes on employers—
the requirement to collectively bargain with employees. How-
ever, based on the current standard, the Board affirmed the
administrative law judge, where he found that Airborne was not
a joint employer and thus had no obligation to bargain with the
union. The judge found there was no evidence to indicate that
Airborne had “any say or influence in…decisions and no evi-
dence to suggest that the hiring, disciplining, or firing of a con-
tractor’s employees was in any way under the control or even
suggestion of Airborne.” Id. at 604–606.
In BFI Newby Island Recyclery, 362 NLRB No. 186 (2015),
the Board restated the joint-employer standard as reflected in
the TLI and Laerco decisions, and reaffirmed that standard
articulated in the Third Circuit Browning-Ferris decision,52, that
is “. . . we will adhere to the Board’s inclusive approach in
defining the “essential terms and conditions of employment.”
The Board’s current joint-employer standard, articulated in
TLI, supra, refers to “matters relating to the employment rela-
tionship such as hiring, firing, discipline, supervision, and di-
rection,” a nonexhaustive list of bargaining subjects. TLI, su-
pra, 271 NLRB at 798. See, Browning-Ferris, at fn. 2. The
Board went on to state,
Under this standard, the Board may find that two or more
statutory employers are joint employers of the same statutory
employees if they “share or codetermine those matters gov-
erning the essential terms and conditions of employment.” In
determining whether a putative joint employer meets this
standard, the initial inquiry is whether there is a common-law
employment relationship with the employees in question. If
this common-law employment relationship exists, the inquiry
then turns to whether the putative joint employer possesses
sufficient control over employees’ essential terms and condi-
tions of employment to permit meaningful collective bargain-
ing. Central to both of these inquiries is the existence, extent,
and object of the putative joint employer’s control.
The Board stated that since the TLI and Laerco decisions,
additional requirements for finding joint-employer status were
imposed, which it has never articulated how these additional
requirements are compelled by the Act and appear inconsistent

52 NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., 691
F.2d 1117 (3d Cir. 1982), enfd.
259 NLRB 148 (1981).
with prior case law that has not been expressly overruled.53
The Board specifically rejected those limiting requirements,
We will no longer require that a joint employer not only pos-
sess the authority to control employees’ terms and conditions
of employment, but also exercise that authority. Reserved au-
thority to control terms and conditions of employment, even if
not exercised, is clearly relevant to the joint-employment in-
quiry. Nor will we require that, to be relevant to the joint-
employer inquiry, a statutory employer’s control must be ex-
ercised directly and immediately. If otherwise sufficient, con-
trol exercised indirectly—such as through an intermediary—
may establish joint-employer status.
a. The Respondents Sprain Brook, Pinnacle and Budget are
Joint Employers of the Dietary Aides and Cooks
Respondent Sprain Brook claims that it only employed man-
agement employees as of September 13, 2012. Respondent
Pinnacle claims that its contract with Respondent Sprain Brook
only covered the management employees in the dietary and
cooking functions of the facility. Both entities deny employing
any dietary aides and cooks on September 13. Respondent
Budget Services also deny employing any dietary aides and
cooks at any time. If one is willing to accept the untenable
arguments of the three Respondents, the illogical conclusion
would be that the dietary aides and cooks worked for no em-
ployer after September 12, 2012.
Respondent Sprain Brook is engaged in the business of pa-
tient care in a nursing healthcare facility. Pursuant to an
agreement with Sprain Brook, Respondent Pinnacle provides
all the necessary management, food, and supplies necessary to
perform the food service operations at the facility. Respondent
Budget Services is a professional service organization and de-
nies having any employees except those performing payroll
services for clients. Unlike Pinnacle, Respondent Budget did
not have a contract to provide any services in the food opera-
tions at the facility.
Under Laerco, the joint employer concept recognizes that
two or more business entities are in fact separate but that they
share or codetermine those matters governing the essential
terms and conditions of employment. As stated in Laerco at
324 NLRB 324, 325, the test is
Whether an employer possesses sufficient indicia of control
over petitioned-for employees employed by another employer

53 The Board stated that “. . . these additional requirements—which
serve to significantly and unjustifiably narrow the circumstances where
a joint-employment relationship can be found—leave the Board’s joint-
employment jurisprudence increasingly out of step with changing eco-
nomic circumstances, particularly the recent dramatic growth in contin-
gent employment relationships. This disconnect potentially undermines
the core protections of the Act for
the employees impacted by these economic changes. . . Our aim to-
day is to put the Board’s joint-employer standard on a clearer and
stronger analytical foundation, and, within the limits set out by the Act,
to best serve the Federal policy of “encouraging the practice and proce-
dure of collective bargaining,”“ thus, echoing Chairman Liebman in her
concurring opinion in Airborne Express, above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD40
is essentially a factual issue. To establish joint employer status
there must be a showing that the employer meaningfully af-
fects matters relating to the employment relationship such as
hiring, firing, discipline, supervision, and direction.
In my opinion, I find that Respondents Sprain Brook, Pinna-
cle, and Budget were joint employers of the dietary aides and
cooks consistent with the legal framework articulated TLI and
Laerco.
With regard to the dietary aides and cooks, I find that the un-
disputed record shows Respondent Sprain Brook executed a
contract with Respondent Pinnacle on June 27, 2012, with an
effective of August 1, 2012, to manage the dietary and cooking
functions. The subcontracting occurred prior to the claimed
date of September 13, 2012, when Respondent Sprain Brook
became a successor. Respondent Pinnacle maintains that the
June 27 contract with Respondent Sprain Brook was not a valid
agreement and the only valid agreement is the one signed on
September 13 between Stein and St. Pierre (P Exh. 6).
However, I find that the logical and reasonable conclusion is
that the June 27 contract between Respondent Sprain Brook and
Pinnacle was a valid contract. A copy of the contract shows
that Stein did in fact sign his name, albeit, on his title line in-
stead on the signature line. Stein’s title on June 27 was “Presi-
dent” of Sprain Brook. The contract was also signed by the
Weiss, as the authorizing representative of Pinnacle (GC Exh.
16). I also credit the testimony of Warren and others who had
observed Ward, the Pinnacle dietary director, working at the
Sprain Brook premises prior to September 12.
The June 27 contract granted exclusive rights to Pinnacle to
manage and operate the dietary department at the nursing facili-
ty. Pinnacle denied recruiting, hiring or employing employees
at the Sprain Brook facility except for nonmanagement person-
nel. However, the contract clearly states that Pinnacle “. . .shall
assume payroll and benefit responsibilities for the facility’s
non-management dietary employees, including the responsibil-
ity of recruitment, employment, promotion, layoff, termination
of all dietary employees.” Respondent Pinnacle also supervises
and disciplines the nonmanagement employees under the con-
tract.
At the same time that Pinnacle assumed the employees’ pay-
roll and benefits; the payroll records show that Respondent
Sprain Brook was actually paying the salaries of the dietary
aides and cooks (GC Exhs. 82, 83). Indeed, Respondent Sprain
Brook continued to pay the salaries of the dietary staff through
the autumn of 2012 (GC Exh. 109).
Even if Respondents Pinnacle and Sprain Brook did not have
a contract with the dietary aides and cooks on June 27, the rec-
ord is clear that Respondents Pinnacle, Budget, and Sprain
Brook were joint employers as of September 13. Each Re-
spondent denied employing any dietary aides or cooks. How-
ever, each Respondent had the authority and exercise the man-
agement of nonmanagement employees, an element governing
the essential terms and conditions of employment under the
joint employer concept.
Carmen Smith attended the September 12 meeting where she
was informed of her discharge. Smith was informed that she
could be rehired and that Ward would be her new supervisor.
Smith was told that Ward was the Pinnacle manager overseeing
the dietary aides and cooks. However, Smith completed a job
application with Budget. Smith was also subsequently provid-
ed an employer’s time and attendance/tardiness policy in March
2013 that was given to her by a dietary supervisor who said it
was from Respondent Budget (GC Exh. 31).
Warren and Smith both credibly testified that they were su-
pervised by Pinnacle manager, Samantha Ward, at least 3
months prior to September 12. Warren insisted that he ob-
served Ward working at Sprain Brook in a supervisory capaci-
ty. He stated that Ward worked as the dietary assistant manag-
er for 3 months prior to September 12. Warren’s testimony was
corroborated by Nicholson, who recalled seeing and being su-
pervised by Ward at the facility prior to September 12.
Many of the factors that have led the Board to find a joint-
employer relationship exist in this case and I find that such a
relationship existed between Sprain Brook, Pinnacle, and
Budget. As noted by the Board in Painting Co., 330 NLRB
1000, 1007 (2000), the relationship between a typical contrac-
tor/subcontractor is one in which the subcontractor undertakes
to perform a particular task, as opposed to the situation herein
in which Sprain Brook treated the arrangement as one in which
Budget and Pinnacle jointly provided employees for Sprain
Brook’s use. Moreover, typically, a subcontractor provides at
least some of the equipment and materials needed to do their
job. Virtually all the equipment used by the Budget and Pinna-
cle employees to perform their jobs belonged to Sprain Brook.
Day-to-day control over labor relations was handled between
Pinnacle and Budget. The dietary aides and cooks were offered
employment by Pinnacle in their former positions but with
different employment benefits. Warren testified that he was
told Pinnacle would be hiring the dietary staff. There is noth-
ing of record to shows that Respondent Sprain Brook had en-
tered into a contract with Respondent Budget to manage the
dietary and cooking functions of the facility.54 Yet, Warren’s
job application stated that his employment was with Respond-
ent Budget Services. Nicholson’s offer of employment with
Pinnacle also had the Budget Services, Inc. and address on his
job application. Nevertheless, both individuals as well as the
remaining dietary staff received purple uniforms with the “Pin-
nacle Dietary” logo embossed on the shirts. Warren and Ni-
cholson’s wage rates were dictated by Pinnacle based upon its
contract with Sprain Brook. Ward informed them that their
hourly wage rate would be reduced to $10 dollars per hour and
other benefits eliminated.
Warren was discharged by Ward, a Pinnacle manager, and
rehired by Respondent Budget to the same position. After War-
ren was discharged, he received a letter from Respondent
Budget to inform him that there was a full-time vacant position
at the Sprain Brook facility and asked if he was interested in the
position he formerly held at the same hourly rate with retention
of his prior seniority. The record reflects his job application
was captioned “Pinnacle Employment Application” but com-
pleted a second application captioned “Employment Applica-

54 The record is void of any evidence to establish that Pinnacle had a
separate contract with Budget to manage the dietary and cook func-
tions.
SPRAIN BROOK MANOR REHAB, LLC 41
tion, Budget Services, Inc.” (GC Exhs. 37 and 38). Nicholson
also completed a Budget job application for a dietary aide posi-
tion with Pinnacle and was discharged by Ward. Nogueira
credibly testified that she was discharged by Perez, the regional
manager of Confidence, after Stein complained to him that she
was allegedly “harassing” other employees. Perez credibly
testified that he was instructed to discharge Nogueira at the
insistence of Stein and done so contrary to his understanding of
Confidence’s policy in disciplining employees.
Anthony Scierka testified that the Pinnacle managers super-
vised the staff hired by Budget to work in the dietary depart-
ment. Scierka states that if a dietary manager observes a health
violation or infraction, there is a Budget cosupervisor that
would conduct any progressive discipline on the employee.
Scierka believe that any supervisor or manager, including the
Pinnacle director and assistant director has the authority to
issue discipline to a nonmanagement dietary employee working
for Respondent Budget Services at Sprain Brook.
Moreover, Respondent Sprain Brook’s authority and control
over the unit employees was also not insignificant. Stein stated
that if Respondent Sprain Brook determines that an employee
contracted by another company was not performing in a satis-
factory manner (based upon the facility’s performance stand-
ard), Respondent Sprain Brook could demand another employ-
ee. Respondent Sprain Brook also had a significant role exer-
cising control over the unit employees. Stein testified that he
conveys to Pinnacle managers when a dietary aide’s perfor-
mance does not meet the standards established by Respondent
Sprain Brook and appropriate actions would be taken with the
employee based upon his comments.
There is little reason to doubt the credibility of the testimony
of Warren, Nicholson, Nogueira, and Perez. Each witness testi-
fied that Respondent Sprain Brook, Budget, and Pinnacle had a
substantial role and codetermined their hiring, discipline, and
discharge, all major elements of their terms and conditions of
employment.
Respondent Budget Services also denied employing any die-
tary aides and cooks at the Sprain Brook facility. Halverstam
and Weber both stated that Respondent Budget Services is a
professional employer organization and has no employees at
the facility. Halverstam denied that Budget has any job appli-
cations or any employee manuals. Halverstam testified “We
don’t have any (Budget) Employees, per say (sic). Our clients
have the employees submit an application. We don’t have any
employment applications” (Tr. 1139). Halverstam believed that
the job application with the Budget name was generated by
Pinnacle. Weber, the owner of Budget Services, insisted that
Budget had only provided payroll services to Respondent
Sprain Brook and categorically denied employing anyone at the
Sprain Brook facility. Halverstam testified that Budget has no
employees and therefore, there were no employment applica-
tions, work schedules, employer handbooks, policies, personnel
files, union check-off information, nor information on manag-
ers and supervisors working at Sprain Brook.
Halverstam also denied any knowledge that Budget is a party
to a collective-bargaining agreement with a labor organization.
Halverstam denied knowledge as to why Budget Services paid
the invoices that Respondent Local 713 charged to Respondent
Sprain Brook and Pinnacle. Halverstam also denied knowing
about any labor recognition agreement between Local 713 and
Budget Services and denied knowing the reason for certain
employment applications captioned with Budget’s name as the
employer.
In the instant case, there is no question that Budget per-
formed most of the traditional human resource functions with
regards to the housekeeping and dietary staff. Budget, among
many items, paid its employees, provided health insurance,
workers compensation insurance, and deducted union dues.
However, the payroll deductions, hours worked, vacation time,
union dues, personnel policy, and other human resources func-
tions were intrinsically tied between Budget and Pinnacle.
Crystel Ploschke from Pinnacle testified that the dietary aides
and cooks were hired by Respondent Budget Services and they
are all Budget employees. But it was Ploschke’s responsibility
for reviewing all the time records, including vacation, sick
leave and other accrued hours obtained through a Pinnacle
kitchen manager. Upon completion of Ploschke’ s review of
the records, only then she would forward the information to
Budget to issue the paychecks for its employees. It was also
Pinnacle, through Ploschke, that made sure that proper union
dues were deducted and other union benefits from Local 713
were accounted for in the paychecks of the dietary and house-
keeping staff.
In addition, an employee manual titled “Budget Agency
d/b/a Pinnacle Dietary Non-Exempt Employee Manual” was
introduced by the General Counsel demonstrating one element
of codetermination over employees’ terms and conditions of
reemployment by all three Respondents, but none of the Re-
spondents adequately explained the reasons for having this
manual (GC Exh. 125). Carmen Smith testified that she re-
ceived a time and attendance policy and rules that was issued to
her and other dietary aides by Respondent Budget in 2013 (GC
Exh. 31).
Further, there were sufficient indicia of control by Respond-
ent Sprain Brook, Pinnacle and Budget over the dietary aides
and cooks in the context of the collective-bargaining relation-
ship with Local 713 to establish a joint-employer relationship.
Ploschke states that Budget invoices Pinnacle for all employee
labor deductions, such as workers’ compensation, disability
benefits and union dues. Ploschke states that Pinnacle is not a
party to any collective-bargaining agreement with Local 713 or
any other union, yet she was very familiar with the agreement
and had experienced issues with the union regarding union
benefits and the nonpayment of union dues by Budget. Plosch-
ke also worked closely with Shaina Fekete from Budget Ser-
vices regarding the proper deductions for union dues, raises for
employees, and other payroll issues. For example, overtime
earned was recorded by Pinnacle managers and paid by Budget
to the employees, but any additional payroll expenses were
approved and paid by Sprain Brook. Respondent Pinnacle
would also receive a monthly invoice from Local 713 and Pin-
nacle pays the invoice and forwards the invoice to Budget for
reimbursement. The invoices from Local 713 were billed to
both Respondent Sprain Brook and Pinnacle and Sprain Brook
ultimately reimbursed the contractors pursuant to their agree-
ments.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD42
The testimony of Weber and Halverstam is given little credi-
ble weight in this area. Both testified that Budget Services did
not have any employees at the Sprain Brook facility. However,
Weber subsequently stated that the CNA, LPN, and housekeep-
ing staff were Budget employees but denied hiring them. We-
ber testified that “Sprain Brook sends us the employee and we
put them on our payroll and they become our employees.”
Weber also denied that these employees were supervised by
Budget and stated that Budget did not employ any supervisors
at Sprain Brook. Weber’s testimony that Budget did not have
any supervisors at the Sprain Brook facility is in direct contra-
diction to the testimony of Scierka on this point. Scierka testi-
fied that a Budget cosupervisor alongside with the Pinnacle
manager was available to monitor and discipline the dietary
aides. Weber also conceded that Budget has a collective-
bargaining agreement with Local 713 but failed to recall when
or how the agreement was negotiated.
It is undisputed that the major elements of the terms and
conditions of employment of the dietary aides and cooks were
codetermined by Respondents Sprain Brook, Pinnacle, and
Budget. The acquisition and retention of the dietary aides’ and
cooks’ employment was controlled by Sprain Brook, Pinnacle,
and Budget. Pinnacle and Budget hired the employees provid-
ed by Sprain Brook. According to Weber, Sprain Brook sends
the employees to Budget and they are placed on Budget’s pay-
roll. Pinnacle made the offers of employment, provided the
Pinnacle uniforms for those who were hired and set the initial
terms of their employment. Pinnacle would hire and discharge
the employees. Respondent Budget, in turn, rehired some of
these dietary aides and cooks and provided the salary and bene-
fits consistent with the collective-bargaining agreement with
Local 713. All three entities have the authority and codeter-
mined control over the employees.
The authority and exercise of control over these employees
by Respondents Sprain Brook, Pinnacle, and Budget were far
more significant than what the Board found in Laerco. In
Laerco, the Board held that there were only minimal day-to-day
supervision of the employees by Laerco and any major person-
nel problems were referred back to CTL for resolution. Laerco,
above at 325, 326. Here, as described above, the Respondents
had equal voice in the control, supervision, work assignments,
discipline and removal of the dietary aides and cooks staff
working at the Sprain Brook facility. As such, I find that Re-
spondents Sprain Brook, Pinnacle, and Budget were joint em-
ployers during all relevant period of time regarding the dietary
aides and cooks unit employees.
b. The Respondents Sprain Brook and Budget are Joint
Employers of the Nursing Staff
Sprain Brook insists that all nursing and recreational func-
tions were transferred to Respondent Budget and that Budget is
the sole employer of the nursing staff. Respondent Budget
asserts that it had no employees at the Sprain Brook facility.
Budget maintains that it only performed “pure ministerial
work” in connection with payroll for employees. Budget ar-
gues that “It was Sprain Brook that made all the decisions with
respect to hiring of employees, supervising employees, disci-
plining employees. . . . .” (R. Budget Br. at 11).
In my opinion, I find that Sprain Brook and Budget were
joint employers over the nursing staff. My review of the facts
show that Respondent Sprain Brook possesses sufficient indicia
of control over the nursing staff employed by Respondent
Budget that “. . . meaningfully affects matters relating to the
employment relationship such as hiring, firing, discipline, su-
pervision, and direction.” Laerco, above at 325.
With regard to the nursing staff, Stein announced by letter on
September 12 that Respondent Sprain Brook had contracted the
nursing functions at the facility to Budget and Budget would
rehire all CNAs and LPNs at their current wage rate if they
choose to accept the job offer from Budget. Shelly Ann Wil-
liams, a CNA, testified that she received a discharge notice
from Sprain Brook and an offer of employment as a CNA with
Respondent Budget Services. The offer stated that upon ac-
ceptance of the offer, Williams’ employment would continue
without interruption and at her current wage rate. Williams
said she completed a job application at the direction of the di-
rector of nursing, Amelia Mendizabal, and returned it to her.
Williams testified that her work duties and hours did not
change under the new ownership.
Paula Robinson provided testimony similar to Williams.
Robinson has been a CNA with predecessor Sprain Brook since
February 2004. She was asked to complete “some paperwork”
by Mendizabal for her rehiring by Budget. Robinson complet-
ed her job application with Budget Services and testified that
her hours and work duties did not change when she was hired.
Sanchez, as the HR assistant and staff coordinator working for
Respondent Sprain Brook would forward the job applications
and other personnel information to Fekete at Budget.
Sanchez would also provide the time and attendance and
payroll instructions to Fekete that she obtained from Nachfol-
ger. On occasions, Sanchez was involved with Fekete regarding
bounced checks received by a nursing staff employee or with
an issue regarding an employee not receiving a wage rate in-
crease (Tr. 1390–1397; GC Exhs. 86 and 87). Sanchez also
played a role as the staffing coordinator. At the time, she was
responsible for creating the work schedules for newly hired
CNAs in consultation with Mendizabal, the nursing director
employed by Respondent Sprain Brook (Tr. 1388–1390).
Under the contract, I find that Respondent Sprain Brook and
Budget codetermined the terms and conditions of employment
of the nursing staff. Respondent Budget was responsible for
the employees’ wages, insurance, payroll taxes, unemployment
insurance, disability benefits coverage and workers’ compensa-
tion, and any other employee benefits provided under the con-
tract. The payments of such benefits was provided by Budget
and Budget would invoice Respondent Sprain Brook on a
weekly basis on an agreed upon payment schedule. Any addi-
tional expenses incurred by Budget would be reimbursed by
Sprain Brook under their contract (GC Exh. 19(a).
I find it significant to note that the contract further stated that
Respondent Budget retains
. . . [t]he authority to hire, terminate and discipline the person-
nel (LPN and CNA) provided under this agreement. Howev-
er, the client (Respondent Sprain Brook) retains the right to
refuse to permit services performed herein by any of the con-
SPRAIN BROOK MANOR REHAB, LLC 43
tractor’s employees if the client (Respondent Sprain Brook)
has not authorized the services of such employees or consid-
ers such employees unqualified to provide such services or
determines that the services being provided are not to the Cli-
ent’s satisfaction. . .
Respondent Budget did not have a manager or supervisor at
the Sprain Brook facility to supervise the nursing staff. The
nursing staff accepted work assignments and schedules from
Mendizabal and Sanchez, both Sprain Brook management per-
sonnel. Stein stated if the director of nursing (a Sprain Brook
employee) is not satisfied with the work performance of a CNA
or LPN, the director would contact Budget for another employ-
ee. In turn, Respondent Budget would be responsible for dis-
charging the employee and provide Sprain Brook with another
employee. The nursing director, Mendizabal, was a Sprain
Brook employee and directly responsible for supervising the
nursing staff. Sprain Brook managers arrange for the work
schedules, assignments, and monitor the daily activities of the
nursing staff.
As noted above, Estefany Sanchez is employed by Respond-
ent Sprain Brook as a HR assistant and staffing coordinator and
responsible for ensuring that the job applications and resumes
of the nursing candidates were complete. She worked closely
with Mendizabal in scheduling job interviews with the candi-
date. Sanchez said that after the candidates were interviewed,
she would forward the application to Respondent Budget be-
cause Budget was the employer of the nursing staff. Sanchez
also played a role as the staffing coordinator and was responsi-
ble for creating the work schedules for newly hired CNAs in
consultation with Mendizabal.
Sanchez communicates with Shaina Fekete from Budget
Services on occasions regarding payroll issues by the nursing
staff. Sanchez said that she was responsible for ensuring that
the hours worked by the nursing staff matches up with the
clock-in and clock-out time. Nachfolger provides Sanchez with
the time and attendance and payroll instructions. Nachfolger
determines each employee’s number of hours work, vacation
time, overtime hours, and any time and attendance adjustments.
Sanchez would relay this information to Fekete to pay the nurs-
ing staff. Nachfolger would also initiate and approve bonuses
for the nursing staff and would inform to Fekete to ensure that
Budget cuts the checks for the bonuses consistent with his in-
structions (GC Exhs. 98 and 99).
I find and conclude that Respondents Sprain Brook and
Budget codetermine and share the essential terms and condi-
tions of employment of the nursing staff employees. Here, the
contract permits Respondent Sprain Brook to determine wheth-
er a nursing employee is meeting the standards of the facility.
Stein’s own testimony shows that Respondent Sprain Brook
may remove a nursing employee for performance issues and
Budget would be responsible for discharging or disciplining
that employee. Under the contract, Respondent Budget also
had the authority to hire, terminate, and discipline the nursing
personnel.
The director of nursing, a Sprain Brook employee along with
the Sprain Brook HR assistant, provided the Budget job appli-
cations, interviewed and hired the nursing staff. Respondent
Budget did not make any changes to the terms and conditions
of employment and any wage rate or other employee benefits
were dictated by Sprain Brook. The working hours and sched-
ule of the nursing staff were determined by Sanchez and Men-
dizabal. Sanchez and Fekete worked closing in ensuring the
correct time and attendance hours of the nursing employees and
the proper wage rate was applied. Based on the foregoing, and
relying particularly on the significant nature of Respondent
Sprain Brook’s supervision of the nursing staff, the evidence
overwhelmingly demonstrates a joint-employer relationship
between Sprain Brook and Budget Services.
c. The Respondents Sprain Brook and Budget are Joint
Employers of the Housekeeping and Maintenance Staff
The General Counsel alleges that Respondent Sprain Brook
and Budget were joint employers over the housekeeping and
maintenance staff starting in October 2014. Respondent Sprain
Brook executed a contract on September 16, 2012, with Confi-
dence for providing all the necessary management, which in-
cludes a housekeeping director and regional manager, to over-
see the housekeeping operation. Respondent Sprain Brook
replaced Confidence and signed a contract with Respondent
CBM, effective from July 1, 2013, through July 1, 2014.
Effective October 1, 2014, CBM was replaced by Respond-
ent Budget for the housekeeping functions.55 As noted above,
the General Counsel was unable to obtain a copy of the Sprain
Brook-Budget contract for the housekeeping functions. It is
also unclear as to which entity actually supervised the house-
keeping staff. Respondent Sprain Brook argues that the hiring,
discipline and firing of employees was the responsibility of
Respondent Budget because the housekeepers were employed
by Budget. Respondent Budget argues that it had no employees
working at the Sprain Brook facility and was only involved in
the payroll aspects for the housekeepers.
In my opinion, it is clear that Respondent Sprain Brook co-
determined with Budget Services over the essential terms and
conditions of employment of the housekeeping and mainte-
nance staff. Respondent Sprain Brook was responsible for
hiring the housekeeping and maintenance staff after contracting
out those functions to Respondent Budget. Further, Respond-
ent Sprain Brook dictated to Budget the employees that would
be absorbed by Budget and set the terms and benefits of their
employment at Budget. Respondent Sprain Brook instructed
Budget as to the wages paid and the deductions taken for the
housekeeping staff. Respondent Sprain Brook supervised and
provided the work assignments to the housekeeping staff
through the Mushell, the facility administrator.
Although a contract between Respondent Sprain Brook and
Budget was not obtainable by the General Counsel, I would
surmise that the terms of the contract for the housekeeping
functions would be similar to the contracts with CBM and Con-
fidence. Under those contracts, the subcontractors provided all
the necessary housekeeping services, including the employees,
management, and supplies. The owner of Budget, Weber, stat-
ed that the housekeeping staff were Budget employees but de-

55 The General Counsel has not alleged that Respondent CBM is a
joint employer with Sprain Brook or with Budget Services.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD44
nied hiring them. Weber testified that “Sprain Brook sends us
the employee and we put them on our payroll and they become
our employees.”
Weber also denied that these employees were supervised by
Budget and stated that Budget did not employ any supervisors
at Sprain Brook. To that extent, Weber’s testimony has some
credibility in asserting that the hiring was done by Sprain
Brook and that there were no Budget supervisors at the Sprain
Brook facility for the housekeepers. This is consistent with one
of the General Counsel’s witnesses. Gjelaj credibly testified
that it was Mushell, the Sprain Brook administrator, who in-
structed her and other housekeepers to complete the Budget job
application and the union authorization cards for Local 713.
Gjelaj was also instructed by Mushell to perform additional
housekeeping assignments. There is no reason to discount her
testimony especially since it was not rebutted by the Respond-
ents.
Moreover, Respondent Sprain Brook dictated to Budget the
compliment of housekeeping employees that Budget would be
accepting on its payroll. Respondent Sprain Brook communi-
cated with Budget that there were two maintenance employees
that where not hired by Sprain Brook (GC Exh. 100). Re-
spondent Sprain Brook, through Nachfolger, also informed
Budget that the entire housekeeping department would be
moved over to Budget (GC Exh. 101). There were no objec-
tions, approval or agreement for this arrangement by Budget. It
was simply accepted by Budget. Finally, Respondent Sprain
Brook dictated the employees’ wage rate, bonuses, and to en-
sure that the rate of pay, vacation time, overtime, and other
employee emoluments were correctly recorded by Budget (tes-
timony of Sanchez, Fekete, and Ploschke).
Here, as in D&F Industries, Inc., above at 640, Respondents
Sprain Brook and Budget were joint employers based upon the
evidence that Respondent Sprain Brook hires its own employ-
ees, maintains all employment records, is responsible for work-
place injuries to its employees, determines the number of em-
ployees to be filled by Budget, and is responsible for disciplin-
ing its own employees. Weber insisted that the housekeeping
staff was Budget’s employees. The housekeeping staff was
supervised by the Sprain Brook administrator. It is clear that
Respondent Budget codetermined with Sprain Brook the essen-
tial terms and conditions of employment to the extent that both
companies dictated the terms and conditions of employment for
the housekeeping and maintenance staff.
Accordingly, based upon the foregoing, I find that Respond-
ents Sprain Brook and Budget jointly employed the housekeep-
ing and maintenance staff.
d. The Retroactive Application of the Board’s Decision in BFI
Newby Island Recyclery
In supplemental briefs submitted by the parties, the General
Counsel argued that the standard established by the Board for
determining joint employer status under BFI Newby Island
Recyclery should be retroactively applied in this decision. The
General Counsel further argued that even if not applied retroac-
tive, a joint employer status among the Respondents were nev-
ertheless established under TLI and Laerco. The Respondent
argues to the contrary.
In Fedex Home Delivery, 362 NLRB No. 29 (2015), that
Board held that the “. . . usual practice is to apply new policies
and standards “to all pending cases in whatever stage” citing,
Deluxe Metal Furniture Co., 121 NLRB 995, 1006–1007
(1958). In Securities & Exchange Commission v. Chenery
Corp., 332 U.S. 194, 203 (1947), the Supreme Court has in-
structed that in determining whether to apply a change in law
retroactively, it is necessary to balance the adverse consequenc-
es of retroactivity, if any, against “the mischief of producing a
result which is contrary to a statutory design or to legal and
equitable principles.”
In determining whether the “. . . retroactive application of a
Board decision will cause manifest injustice, the Board balanc-
es three factors: (1) the reliance of the parties on preexisting
law; (2) the effect of retroactivity on accomplishment of the
purposes of the Act; and (3) any particular injustice arising
from retroactive application.” Fedex Home Delivery, above,
citing Machinists Local 2777(L-3 Communications), 355
NLRB 1062, 1069 fn. 37 (2010).
Such a balancing test applied here leads to the conclusion
that the Board’s usual practice of retroactive application is ap-
propriate. In applying the Chenery balancing process, the ret-
roactive application of the BFI Newby Island Recyclery would
not work a “manifest injustice.” Pattern Makers (Michigan
Model Mfrs.), 310 NLRB 929, 931 (1993). Regarding the first
factor, I find that the Board’s approach in BFI Newby Island
Recylery did not represent a marked departure from TLI and
Laerco. Indeed, the Board reasserted the principles in TLI and
Laerco and expressly rejected the additional requirements sub-
sequent to these two cases. Regarding the second factor, I find
that the Board in BFI Newby Island Recyclery aided in accom-
plishing the purposes of the Act by clarifying and reasserting
the Board’s long-held joint employer standard. Regarding the
third and final factor, I do not find any particular injustice aris-
ing from the retroactive application.
The General Counsel correctly argues that even under pre-
BFI Newby Island Recyclery, joint-employer status was estab-
lished among Respondent Sprain Brook, Pinnacle, and Budget
over the dietary and cooking staff and between Sprain Brook
and Budget with the nursing and housekeeping unit employees.
The retroactive application of the BFI Newby Island Recyclery
standard would not have changed my own analysis of the joint-
employer status among the Respondents inasmuch as I had
analyzed the joint-employer status of the Respondents under
the pre-BFI Newby Island Recyclery standard. Accordingly,
while I believe that the retroactivity standard as set forth in
Fedex Home Delivery and Machinists is applicable here, I do
not find it necessary to retroactively apply the BFI Newby Is-
land Recyclery standard in finding that the Respondents were
joint employers.
VI. THE REFUSAL AND FAILURE TO BARGAIN
The General Counsel argues that Respondents Sprain Brook,
Pinnacle, and Budget as joint employers regarding the dietary
aides and cooks had an obligation to bargain with 1199 SEIU
before setting initial terms of employment or making unilateral
changes in their terms and conditions of employment in viola-
tion of Section 8(a)(5) and (1) of the Act.
SPRAIN BROOK MANOR REHAB, LLC 45
With regard to the housekeeping and maintenance staff, the
General Counsel argues that Respondent CBM was a Burns
successor with an obligation to bargain with the Union on or
about September 13, 2012.56 The General Counsel further
maintains that Respondent Sprain Brook and Budget were joint
employers as of October 2014 with an obligation to bargain
with 1199 SEIU before making setting initial terms of employ-
ment and unilateral changes to the housekeeping employees’
terms and conditions of employment.
With regard to the nursing staff, the General Counsel main-
tains that Respondent Sprain Brook and Budget as joint em-
ployers made initial unilateral changes to their terms and condi-
tions of employment without bargaining with the Union over
these initial terms and changes.
As noted above, even assuming that Sprain Brook and Budg-
et were not joint employers, the General Counsel argues in the
alternative that Budget was a successor employer of the nursing
staff unit as of September 13, 2012, with a bargaining obliga-
tion to the Union and a successor employer of the housekeeping
staff as of October 2014 with an obligation to bargain over
terms and conditions of employment with the Union.57
Discussion and Analysis
Where the parties are negotiating a collective-bargaining
agreement, the employer has an obligation to refrain from im-
plementing unilateral changes unless and until agreement or an
overall impasse is reached. Bottom Line Enterprises, 302
NLRB 373, 374 (1991). Moreover, an employer is obligated to
notify the employees’ exclusive collective-bargaining repre-
sentative and afford the representative an opportunity to bar-
gain about the changes. The notice given must be sufficient to
allow a meaningful opportunity to bargain before the changes
are implemented. An employer violates Section 8(a)(5) and (1)
if it makes a unilateral change in a mandatory subject of bar-
gaining without first giving the Union notice and an opportuni-
ty to bargain. See NLRB v. Katz, 369 U.S. 736, 743 (1962).
Under Section 8(d), “wages, hours, and other terms and condi-
tions of employment” are mandatory subjects of bargaining.
The Board has also held that an employer commits an unfair
labor practice if, without bargaining to impasse, it effects a
material and substantial unilateral change of an existing term or
condition of employment. Katz, above. In Katz, as in here, the
Union was newly certified and the parties had yet to reach an
initial agreement. An employer is required to bargain with its
employees’ exclusive collective-bargaining representative
when making a material and substantial change in wages,
hours, or any other term of employment that is a mandatory
subject of bargaining under Section 8(a)(5) and (1) of the Act.

56 The only violation of the Act argued by the General Counsel with
regard to Respondent CBM is its failure to bargain with the Union
when CBM became a successor of the housekeeping staff on September
13.
57 The General Counsel did not argue that Pinnacle was a successor
employer of the dietary aides and cooks (GC Br. at fn. 22).
a. Respondent Sprain Brook Violated Section 8(a)(5) and (1) of
the Act By Refusing and Failing to Bargain with 1199 SEIU
Paragraph 7 of the amended complaint alleges that Respond-
ent Sprain Book failed and refused to recognize and bargain
collectively with the 1199 SEIU as the exclusive collective-
bargaining representatives of unit employees. The complaint
further alleges that Respondent Sprain Brook made unilateral
changes by discharging all 1199 SEIU bargaining unit employ-
ees and contracting out the bargaining unit work in violation of
Section 8(a)(5) and (1) of the Act.58 The complaint in para-
graph 9 also alleges that Respondent Sprain Brook unilaterally
denied 1199 SEIU access to the facility in violation of Section
8(a)(5) and (1).
As stated in Burns and Fall River Dyeing, above, where, as
here, there is a substantial continuity between the predecessor’s
operations and a majority of its former employees, it is in the
interest of the Act’s policy to promote stability in collective-
bargaining relationships and preserving industrial peace by
imposing bargaining obligations. The successorship doctrine
serves the policies of the Act by preserving stability in the col-
lective-bargaining relationships and preserving industrial peace.
On September 29, 2006, the Board determined that 1199
SEIU was the exclusive bargaining representative for the unit
employees at the predecessor Sprain Brook facility. As of June
15, 2012, 1199 SEIU continued to be the exclusive bargaining
representative with Respondent Sprain Brook as the successor
to the business.
Respondent Sprain Brook and 1199 SEIU were engaged in
active bargaining during most of the transition period. There
were 16 bargaining sessions between July 2008 and June 2011
between 1199 SEIU and predecessor Sprain Brook. Speller
met Moses Strulovitch at a bargaining session as early as 2008
and Strulovitch was introduced to him as “somebody who was
helping to manage Sprain Brook and also a prospective buyer
. . . “ In my opinion, the first bargaining session between 1199
SEIU and Respondent Sprain Brook occurred at the July 14,
2009 bargaining session when Stein was introduced to Speller
and the 1199 SEIU bargaining team.

58 Par. 6(c) identified the dietary unit employed by Respondent
Sprain Brook as “All full-time and regular part-time and per-diem
dietary aides and cooks employed by the employer at the facility locat-
ed at 77 Jackson Avenue, Scarsdale, New York, but excluding all other
employees, including office clerical employees, managers and guards,
professional employees and supervisors as defined by the Act.”
Par.6(g) identified the nursing unit employed by Respondent Sprain
Brook as “All full-time and regular part-time and per-diem licensed
practical nurses, certified nurses’ aides, and geriatric techs/activity
aides, employed by the employer at the facility located at 77 Jackson
Avenue, Scarsdale, New York, but excluding all other employees,
including office clerical employees, managers, guards, professional
employees and supervisors as defined by the Act.” The housekeeping
unit is identified as “All full-time and regular part-time and per-diem
housekeeping employees and laundry employees/assistants employed
by the employer at the facility located at 77 Jackson Avenue, Scarsdale,
New York, but excluding all other employees, including office clerical
employees, managers and guards, professional employees and supervi-
sors defined under the Act.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD46
Even if it cannot be said that July 2008 was the period that
principals for Respondent Sprain Brook took over the negotia-
tions, I find it extremely credible that July 14, 2009, was the
date when Respondent Sprain Brook became earnestly involved
in the bargaining negotiations. The July 14 date was approxi-
mately 1 month prior to the August 2009 sales agreement
signed by Klein and the estate of Book with LNS. As such,
Stein as a partner of the buyer, LNS, had a vested financial
interest during the July/August timeframe to be materially in-
volved in the bargaining negotiations and several factors
showed that he was.
Speller credibly said that Stein was introduced to him as
someone working with Strulovitch to manage the nursing home
and as one of the prospective buyer of the home. Stein denied
that he was the chief member of Respondent Sprain Brook’s
bargaining team. On this point, I find that Stein was not credi-
ble in explaining that he was a mere agent or delegate of Klein
in the negotiations. It was not credibly disputed that Klein was
never present at any bargaining sessions and the record is void
of any evidence that Klein had provided instructions to Stein or
proposals for bargaining.
On the other hand, I find very credible the testimony of
Speller and Nogueira that Stein held himself out during the
negotiations as the new owner. I credit Speller and Nogueira
testimony that Stein repeatedly stated that he wanted a contract
and a good working relationship with the Union. Speller’s
credibility is buttressed by the active role taken by Stein in the
negotiations. Stein invited Speller to a meeting at a restaurant
on September 16, 2009. Stein repeated that he wanted a good
working relationship with the Union. Stein had already elevat-
ed Nachfolger from his payroll clerk position and had him ne-
gotiate with Speller. Stein put Nachfolger in contact with
Speller on the following day to continue discussions on a bar-
gaining contract. According to Speller, he was informed by
Nachfolger that he had experience in working with 1199 SEIU
at other nursing facilities.
The parties met at a bargaining session on September 22 and
Speller met Stein and Nachfolger at this session. Subsequently
Speller and Nachfolger exchanged emails on September 23 as a
follow up to the session. At this point, Nachfolger was actively
participating as member of the Respondent Sprain Brook bar-
gaining team and was more than a mere payroll clerk. Speller
testified to a subsequent bargaining session with Stein and Na-
chfolger on October 19, 2009. Stein and Nachfolger presented
a counter proposal received on October 19. Speller stated that
bargaining continued through 2010 and at a session in August
2010, Speller was informed that a certificate of need was filed
with the New York State Health Department by the buyers of
Sprain Brook. There were also discussions during this session
and one in December 2010 about negotiating the subcontracting
of the laundry department. The Union opposed the subcon-
tracting and ultimately, the Union agreed to have the one re-
maining laundry employee (Nogueira) reassigned to the house-
keeping department.
Throughout the bargaining sessions from July 2009 to June
2011, the parties continued to bargain. Speller inquired numer-
ous times about the status of the sale of the facility and a clos-
ing date for the sale but no answers were forthcoming. Bar-
gaining between 1199 SEIU and the principal agents for Re-
spondent Sprain Brook abruptly ended in 2011. Speller testi-
fied that the last bargaining session occurred on June 2, 2011.
The parties never reached a negotiated contract, but continued
to discuss a resolution of several unfair labor practice violations
against the nursing facility. No explanation was provided as to
Respondent Sprain Brook’s refusal to continue bargaining with
1199 SEIU after June 2011.59
Accordingly, I find that Respondent Sprain Brook refused
and failed to recognize and bargain with 1199 SEIU as the ex-
clusive bargaining representative for the unit employees de-
scribed above violated Section 8(a)(5) and (1) of the Act.
b. Respondents Pinnacle, Budget and CBM Violated Section
8(a)(5) and (1) of the Act By Refusing and Failing to
Bargain with 1199 SEIU
The complaint alleges that Respondents Pinnacle, Budget,
and CBM failed and refused to recognize and bargain collec-
tively with 1199 SEIU as the exclusive collective bargaining of
the dietary and housekeeping unit employees.
Prior to the discharge of unit employees, Respondent Sprain
Brook entered into a contract agreement with Pinnacle on June
27, 2012, with an effective date of August 1, to manage and
oversee the dietary and cooking staff working at the Sprain
Brook facility. Respondent Sprain Brook entered into a second
contract with Pinnacle on September 13. The terms of both
contracts are identical except for the date and without Stein’s
signature on the first contract. Respondent Sprain Brook sub-
contracted the nursing functions to Budget on an unspecified
date but effective on September 16, of the nursing staff, to in-
clude LPNs and CNAs. Finally Respondent Sprain Brook en-
tered into a contract agreement with Confidence on September
16 to assume the housekeeping functions at the facility. Re-
spondent Sprain Brook replaced Confidence with CBM on July
1 2013, and CBM was replaced by Budget Services on October
1, 2014.
In finding that Respondent Sprain Brook violated Section
8(a)(5) and (1) of the Act by refusing to recognize and an op-
portunity to bargain with the Union over substantial unilateral
changes of existing terms and conditions of employment, I now
find that Respondents Pinnacle, Budget, and CBM also violated
Section 8(a)(5) and (1) of the Act when they refused to recog-
nize and bargain with the Union before making unilateral
changes to the terms and conditions of employment of the die-
tary aides and cooking staff.
As a defense, it is maintained by the Respondents that there
was no legal obligation to bargain. Respondent Pinnacle main-
tains that it was not a joint employer with Respondent Sprain
Brook and did not employ any employees working at the Sprain

59 The parties never reached lawful impasse in June 2011. To find
impasse, the Board considers, among other things, the Taft factors: (a)
the parties’ bargaining history; (b) whether they negotiated in good
faith; (c) the length of their negotiations; (d) the importance of the
issues over which they disagreed; and (e) their contemporaneous under-
standing as to the state of their negotiations. The Sheraton Anchorage,
359 NLRB No. 95, slip op. at 44 (quoting Taft, 163 NLRB at 478).
Respondent Sprain Brook never argued that the parties were at impasse
consistent with the Taft factors.
SPRAIN BROOK MANOR REHAB, LLC 47
Brook facility. Respondent Budget also maintains that it was
neither a joint employer with Sprain Brook nor a successor with
an obligation to bargain. As already addressed by me above in
finding that Sprain Brook, Pinnacle, and Budget were joint
employers for the various different unit employees, it follows
that Respondents Pinnacle and Budget were obligated to recog-
nize and bargain with the Union. Similarly, CBM as a succes-
sor was also obligated to bargain with 1199 SEIU.
There are no factual dispute that Respondent Sprain Brook
and Pinnacle, as joint employers, never provided notice to 1199
SEIU and an opportunity to bargain over the changes in the
terms and conditions of employment of the dietary aides and
cooks. It also not in dispute that Respondent CBM never pro-
vided notice and an opportunity to bargain over the changes in
the terms and conditions of employment regarding the subcon-
tracting of housekeeping functions. Similarly, it is not disputed
that Respondent Sprain Brook and Budget, as joint employers,
never provided 1199 SEIU with notice and the opportunity to
bargain over the substantial changes in terms and conditions of
employment of the nursing staff unit. Moreover, Respondent
Sprain Brook and Budget did not provide notice to 1199 SEIU
or an opportunity to bargain in regard to the terms and condi-
tions of employment of the housekeeping and maintenance staff
after Respondent Budget’s commenced of such functions
around October 2014 (Jt. Exhs. 1 and 2.)
Accordingly, I find that Respondents Pinnacle, Budget, and
CBM refused and failed to recognize and bargain with 1199
SEIU as the exclusive bargaining representative for the unit
employees described above violated Section 8(a)(5) and (1) of
the Act.
c. The Respondents Sprain Brook, Pinnacle, Budget, and CBM
Violated Section 8(a)(5) and (1) of the Act by Making
Unilateral Changes
The General Counsel alleges that Respondent Sprain Brook
violated Section 8(a)(5) and (1) of the Act by subcontracting
unit work without first providing 1199 SEIU notice and an
opportunity to bargain over the contracting. The General
Counsel maintains that subcontracting is a mandatory subject of
bargaining. The General Counsel further alleges that Respond-
ents Pinnacle, Budget, and CBM made unilateral changes with-
out providing notice to 1199 SEIU and a good-faith opportunity
to bargain over the changes.
Discussion and Analysis
In a unilateral-change case, “the relevant inquiry . . . is
whether any established employment term on a mandatory
subject of bargaining has been unilaterally changed.” Daily
News of Los Angeles v. NLRB, 73 F.3d 406, 411 (D.C. Cir.
1996), cert. denied 519 U.S. 1090 (1997). An unlawful unilat-
eral change “frustrates the objectives of Section 8(a)(5),” be-
cause such a change ‘“minimizes the influence of organized
bargaining’ and emphasizes to the employees ‘that there is no
necessity for a collective bargaining agent.’” Pleasantview
Nursing Home v. NLRB, 351 F.3d 747, 755 (6th Cir. 2003)
(quoting Katz, supra at 744, and Loral Defense Systems-Akron
v. NLRB, 200 F.3d 436, 449 (6th Cir. 1999)); Mercy Hospital of
Buffalo, 311 NLRB 869, 873 (1993).60
1. The Unilateral Change in Subcontracting the Unit
Employees
The present situation is governed by the principles set forth
in Fibreboard, and that the Respondents were under a legal
obligation to afford the Union an opportunity to negotiate and
bargain over the contracting. Remington Lodging & Hospitali-
ty, LLC, 363 NLRB No. 112 (2016).
In Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203
(1964), the Supreme Court held that a decision to subcontract
bargaining unit work is a mandatory subject of bargaining
where the employer is merely replacing employees in the bar-
gaining unit with employees of an independent contractor to do
the same work under similar working conditions. Id. at 215.
See, also, O.G.S. Technologies, Inc., 356 NLRB 642, 644–647
(2011) (subcontracting of bargaining unit die-cutting work to
other firms); Sociedad Espanola de Auxilio Mutuo y Benefi-
cencia de P.R., 342 NLRB 458, 467–469 (2004), enfd. 414
F.3d 158 (1st Cir. 2005) (subcontracting of bargaining unit X-
ray technician and respiratory therapy work performed in Re-
spondent hospital); Torrington Industries, Inc., 307 NLRB at
810–811; St. George Warehouse, Inc., 341 NLRB 904 (2004),
enfd. 420 F.3d 294 (1st Cir. 1005) (replacement of directly
employed bargaining unit warehouse employees with tempo-
rary agency employees); Regal Cinemas, Inc., 334 NLRB 304,
312–313 (2001), enfd., 317 F.3d 300 (D.C. Cir. 2003) (transfer
of bargaining unit projectionist work to non-bargaining unit
managers and assistant managers).
The Board stated in Mi Pueblo Foods and International
Brotherhood of Teamsters Local 853, a/w Change To Win, 360
NLRB No. 116 (2014), that
Under Fibreboard, supra, and Torrington Industries, 307
NLRB 809 (1992), the Respondent was required to bargain
with the Union prior to contracting out this work. And bar-
gaining is not excused simply because no driver was laid off
or experienced a significant negative impact on his employ-
ment. In Torrington, the Board applied the Supreme Court’s
holding in Fibreboard that an employer has a duty to bargain
over decisions to subcontract work when the employer re-
places employees in the existing bargaining unit with those of
a contractor to perform the same work. The Court explained
that requiring bargaining under these circumstances would not
abridge an employer’s freedom to conduct its business, par-
ticularly when the subcontracting involved no capital invest-

60 “Unilateral action by an employer without prior discussion with
the union does amount to a refusal to negotiate about the affected con-
ditions of employment under negotiation, and must of necessity ob-
struct bargaining, contrary to the congressional policy.” Katz, supra at
747.
“‘The vice involved in [a unilateral change] is that the employer has
changed the existing conditions of employment. It is this change which
is prohibited and which forms the basis of the unfair labor practice
charge.” Daily News of Los Angeles, 315 NLRB 1236, 1237 (1994)
(Board’s brackets) (quoting NLRB v. Dothan Eagle, Inc., 434 F.2d 93,
98 (5th Cir. 1970) (court’s emphasis)), enfd. 73 F.3d 406 (D.C. Cir.
1996), cert. denied 519 U.S. 1090 (1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD48
ments or change in the company’s basic operations. The
Court reasoned that the factors driving the decision to subcon-
tract, such as cost reduction through work force reduction, or
decreasing fringe benefits or overtime, are matters “peculiarly
suitable for resolution within the collective bargaining frame-
work.” Id. at 213–214.
Respondent Sprain Brook was under a legal obligation to
bargain with 1199 SEIU concerning its unilateral decision to
discharge and to subcontract unit work. The decision to use
subcontractors to perform all the work by replacing the existing
employees with those of an independent contractor to do the
same work under similar conditions of employment and the
basic business operation was not altered is a mandatory subject
of bargaining. More so here than in Fibreboard, Respondent
Sprain Brook did not simply replace the existing employees;
Sprain Brook substituted one group of workers with the same
group of workers performing the same work ostensibly under a
different employer. The result was it paid an outside company
to perform essentially the same work its unit employees had
previously performed. See Acme Die Casting, 315 NLRB 202
fn. 1 (1994).
The basic nature of the Respondent Sprain Brook’s opera-
tions remained the same, as did the work of the unit employees.
The same employees, now as employees for different contrac-
tors, were doing the identical work at the same facility and
within the facility using the same tools and equipment to do so.
PCMC/Pacific Crane Maintenance Co., 359 NLRB No. 136
(2013).61 Sprain Brook was not changing the scope, nature, or
direction of its business but, rather, shifting several integral
components of its operations to other companies. “Contracting
bargaining unit work under such circumstances by substituting
one group of workers for another to perform the same work is
clearly a mandatory subject of bargaining.” American Benefit
Corp., 354 NLRB 1039, 1051 (2010); citing Fibreboard Paper
and Spurlino Materials, Inc., 353 NLRB 1198, 1217 (2009).
Having already determined that Respondent Sprain Brook is
a Burns successor, I now find that Sprain Brook unilaterally
discharged all its employees on September 12, 2012, and sub-
contracted unit work without first providing notice and a good-
faith opportunity to bargain over the discharges and subcon-
tracting with 1199 SEIU in violation of Section 8(a)(5) and (1)
of the Act. I would note that many of the changes Sprain
Brook rely upon in arguing that it is not a successor were viola-
tions of Section 8(a)(5) of the Act. Respondent was not entitled
to unilaterally discharge its unit employees and contract their
initial terms and conditions of employment to third parties due
to its illegal refusal recognize and bargain with the Union. It
cannot rely on illegal unilateral changes to prove it is not a
successor. Precision Industries, 320 NLRB 661, 711 (1996).
Here, 1199 SEIU was never informed of these changes in the
term and condition of employment and was never provided an
opportunity to bargain over these changes. Upon learning of
the subcontracting from unit employees working at the facility,

61 Reconsidered by the Board de novo in light of Noel Canning and
affirmed the judge’s rulings, findings and conclusions at 363 NLRB
No. 120 (2015).
Speller wrote a letter to attorney Meyer on September 13, 2012,
regarding sale of the facility and the subsequent subcontracting
of the dietary, housekeeping and maintenance departments by
Respondent Sprain Brook. In the letter, Speller requested to
negotiate over the changes and information on the subcontract-
ing. Speller never received a response from Meyer. Speller
also sent a letter to Stein on October 8, 2012, protesting the
unilateral changes in subcontracting the departments and re-
quested to negotiate the changes and their effects.
Moreover, the actions of Sprain Brook by not providing no-
tice to SEIU 1199 about the subcontracting and dismissing its
employees one day prior to them being rehired by the contrac-
tors, is a clear indication that Sprain Brook was not intent on
engaging in meaningful bargaining with 1199 SEIU and tanta-
mount to a fait accompli. The announcement made directly to
the employees that a change in a mandatory subject is being
implemented—instead of proposing it to the employee’s bar-
gaining representative—suggests a fait accompli and is incon-
sistent with the duty to bargain. Brannan Sand & Gravel Co.,
314 NLRB 282 (1994). See also Burrows Paper Corp., 332
NLRB 82, 83 (2000) (“after . . . announcement of the wage
increase to employees, we find that the Union could reasonably
conclude that the matter at this point was a fait accompli, i.e.,
that the Respondent had made up its mind and that it would be
futile to object to the pay raises”); Ciba-Geigy Pharmaceuti-
cals, 264 NLRB 1013, 1017 (1982) (“most important factor”
dictating finding that employer’s announcement of change was
“fait accompli” was that it was made without “special notice”
in advance to the union, the union’s officers “having become
aware of this merely because they themselves were employ-
ees”), enfd. 772 F.2d 1120 (3d Cir. 1983). In circumstances
where it is clear that the employer has no intention of bargain-
ing, the Board has found the implementation of the changes to
be nothing more than fait accompli. Ciba-Geigy Pharm. Div.
264 NLRB 1013, 107 (1982); FirstEnergy Generation Corp.
and International Brotherhood of Electrical Workers, Local
Union (2012).62
2. The Unilateral Changes to Wages, Work Schedules and
Assignments
Paragraph 9(b)(i) of the complaint alleges that
On or about September 12, 2012, Respondents Sprain Brook
Rehab and/or Pinnacle, as joint employers, made changes to

62 Although Speller had written a letter to Budget to bargain over the
changes to the terms and conditions of employment with the nursing
staff, there is no indication that 1199 SEIU had made a request to bar-
gain over Budget’s assumption the housekeeping functions in October
2014. Assuming that 1199 SEIU had an obligation to request bargain-
ing with Respondent Budget in or around October 2014 as the succes-
sor to CBM when the housekeeping functions were contracted to Budg-
et, it did not waive its rights because the Union was faced with a fait
accompli. In this situation, the Union was never informed of this deci-
sion until after it was made, and communicated to the housekeeping
staff. The record thus establishes that by the time 1199 SEIU learned
of Sprain Brook’s decision to terminate the CBM contract, it was a
final decision about which Sprain Brook and Budget, as joint employ-
ers, had no intent to bargain. Pontiac Osteopathic Hospital, 336 NLRB
1021, 1023–1024 (2001).
SPRAIN BROOK MANOR REHAB, LLC 49
the terms and conditions of employment of employees in the
Dietary Unit, including: (1) decrease employees’ wages; (2)
decreased employees’ hours; (3) eliminated health insurance
benefits; and (4) eliminate paid holidays.
The complaint further alleges that Respondent CBM also as
a successor, made unilateral changes regarding the housekeep-
ing staff on September 13. The complaint also alleges that Re-
spondent Budget, as a successor, made unilateral changes to the
nursing staff in September 2012 and to the housekeeping and
maintenance staff in October 2014 after becoming a successor
to CBM. General Counsel argues that the changes to the em-
ployees’ benefits and other emoluments were mandatory sub-
jects for collective bargaining.
Having determined that Respondents Sprain Brook, Pinna-
cle, CBM, and Budget violated Section 8(a)(5) and (1) of the
Act when they refused to recognize and bargain with the exclu-
sive collective-bargaining representative of its employees, I
now find that Respondents Pinnacle, CBM, and Budget made
unilateral changes in the terms and conditions of employment
of unit employees at the Sprain Brook facility without notifying
and bargaining with the Union in violation of Section 8(a)(5)
and (1) of the Act. Provena St. Joseph, supra; Champion Parts
Rebuilders, 260 NLRB 731, 733–734 (1982).
Respondents Sprain Brook and Pinnacle, as joint employers,
were under a legal obligation to provide notice to 1199 SEIU of
the planned changes in the terms and conditions of employment
of the dietary aides and cooks and an opportunity to bargain
over these changes. Respondent Sprain Brook and Budget, as
joint employers, were legally obligated to provide notice to
1199 SEIU and bargain over the nursing staff unit employees.
CBM as a successor to Confidence of the housekeeping staff,
was also legally required to provide notice and bargain over the
terms and conditions of employment that were changed under
the housekeeping contract with Respondent Sprain Brook.
The 1199 SEIU representative, Speller, sent letters to bargain
and request information to Respondents Budget and Pinnacle.
His letter to Respondent Pinnacle stated the Union’s opposition
to the changes in the dietary unit and a request to bargaining
over the changes. Speller never received a response from
Sprain Brook or Pinnacle on his request to bargain over the
changes. His letter to Budget referenced the nursing staff and
the Union’s opposition to the changes in the terms and condi-
tions of employment with the nursing functions. Speller testi-
fied he received no responses from any of the Respondents
except for Confidence. Speller also sent a similar letter to
CBM on July 18, 2013, when CBM assumed successorship of
the housekeeping functions.
Ample credible testimony from the General Counsel’s wit-
nesses showed that unilateral changes were made after the em-
ployees were rehired. The dietary aides and cooks that were
rehired by Respondent Pinnacle retained their positions but had
to accept changes in their wages, benefits and working condi-
tions. Those accepting the employment offer were rehired
performing the same duties. Vernon Warren was rehired to the
same position and but received less money and his work sched-
ule changed from6 days to working only 5 days. Warren also
said that his breaktime was changed and was no longer paid for
his 30 minute break.
Alvin Nicholson was also rehired as a dietary aide at a lower
wage rate. Nicholson’s new wage rate was $10 dollars an hour.
Nicholson said he was receiving $11.75 before he was rehired
by Pinnacle. Nicholson agreed to perform cooking functions
soon after he was rehired but never received the higher wage
rate of $14 per hour that was promised to him in his new posi-
tion. Carmen Smith was employed as a dietary aide at $14.75
per hour. Smith was rehired as a dietary aide and her salary
was reduced to $10 dollars per hour.
With regard to the housekeeping and cleaning staff, Clarisse
Nogueira stated that her hourly wages went down from $16 to
$12 dollars and she lost her uniform allowances when Re-
spondent Sprain Brook contracted the housekeeping functions
to Confidence. Nogueira said that she also lost her paid vaca-
tion and sick leave days. She stated that there were no health
benefits unless she signed up with another union local.
The foregoing changes affected employee terms and condi-
tions of employment and were, thus, mandatory subjects of
bargaining. See Mid-Continent Concrete, 336 NLRB 258
(2001), enfd. 308 F.3d 859 (8th Cir. 2002) (health insurance);
Desert Toyota, 346 NLRB 132 (2005), citing Abernathy Exca-
vating, Inc., 313 NLRB 68 (1993) (regularly scheduled pay
dates); Migali Industries, 285 NLRB 820, 825–826 (1987)
(vacation scheduling); E. I. du Pont & Co., 346 NLRB 553, 579
(2006) (severance pay).63
I find that Respondents Sprain Brook, Pinnacle, and Budget,
jointly and severally, violated Section 8(5) and (1) of the Act
when unilateral changes were made without first providing
notice and an opportunity to bargain with 1199 SEIU over
changes in the terms and conditions of employment of the die-
tary and cook staff.
I find that Respondents Sprain Brook and Budget violated
Section 8(5) and (1) of the Act as joint employers made unilat-
eral changes without first providing notice and an opportunity
to bargain with 1199 SEIU over the in the terms and conditions
of employment of the nursing and housekeeping and mainte-
nance staff. 64
Finally, I find that CBM, as a successor employer as of July
18, 2013, violated Section 8(5) and (1) of the Act when it made
unilateral changes without first providing notice and an oppor-
tunity to bargain with 1199 SEIU over the in the terms and

63 There were nominal unilateral changes regarding the nursing staff.
Shelly Ann Williams received an offer of employment as a CNA from
Respondent Budget. Williams’ employment continued without inter-
ruption and at her current wage rate. Williams testified that her work
duties and hours did not change under the new ownership. Paula Rob-
inson, also a CNA, testified her hours and work duties did not change
when she was rehired by Budget. However, as noted above, Respond-
ents Sprain Brook and Budget were nevertheless legally obligated to
recognize and bargain with 1199 SEIU.
64 Having analyzed in the alternative that Respondent Budget was al-
so a successor, I would also find that Budget has a legal obligation to
bargain with the Union on the material and substantial changes in the
terms and conditions of employment of the nursing and housekeep-
ing/maintenance staff.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD50
conditions of employment of the housekeeping and mainte-
nance staff.
VII. THE RESPONDENT SPRAIN BROOK VIOLATED SECTION 8(A)(5)
AND (1) WITH REGARD TO THE UNION ACCESS POLICY
Paragraph 9 (a)(1) of the second amended complaint (GC
Exh. 2) states that
In or around June 2012, and continuing thereafter, Respond-
ent Sprain Brook Rehab denied representatives of the Charg-
ing Party Union access to its facilities for purposes of meeting
with Respondents’ management and/or employees.
The General Counsel argues that access to the facility was a
policy change and a mandatory subject for collective bargain-
ing. Inasmuch as having find that Sprain Brook is a successor
to the predecessor entity at the latest by June 15, 2012, the
question is whether Sprain Brook, as the successor employer,
violated Section 8(a)(5) and (1) of the Act when it refuse to
bargain collectively with the representative of its employees
over the change in the Union’s access policy at the Sprain
Brook facility.
a. Denial of 1199 SEIU Access to its Facility
It was the practice of 1199 SEIU representative Adrien
Trumpler to visit the Sprain Brook facility once or twice per
month. Trumpler said he never made an appointment with the
facility management before accessing the facility. This practice
changed in late June 2012 when he arrived at the Sprain Brook
facility to hand out union flyers. Trumpler had finished meeting
and speaking with employees in the dining area and was pre-
paring to leave the facility when Stein walked in. Stein told
Trumpler that he was not welcome in the facility and demanded
that he leave the premises. Stein also told Trumpler to make an
appointment with management in the future before he could
access the facility.
It is not disputed that Trumpler never previously had to make
an appointment before entering the facility on union business.
Further, no explanation was provided to him by Stein for the
change in access policy. Trumpler attempted to arrange for a
meeting with Sprain Brook management over the union’s ac-
cess to the facility in August 2012 but was not able to arrange
for a meeting. The record is also devoid of any notice provided
by Respondent Sprain Brook to the Union for the change in
policy and for the opportunity of the Union to bargain over this
change. It is also undisputed that Respondent did not provide
the Union with access to the facility after August 2012.
Discussion and Analysis
The Board applies a balancing test to determine whether a
union is entitled to access an employer’s facility in order to
perform its representative functions. In Holyoke Water Power
Co., the Board held that when “responsible representation” can
only be accomplished through access to the employer’s premis-
es, the employer’s property rights “must yield to the extent
necessary to achieve this end.” 273 NLRB 1369, 1370, enfd.
778 F.2d 49 (1st Cir. 1985).
However, when the union can effectively represent the bar-
gaining union members “through some alternate means other
than entering on the employer’s premises,” the employer’s
property rights are paramount, and the union may be lawfully
denied access. Holyoke Water Power Co., above at 1370; see
also Nestle Purina Petcare Co., 347 NLRB 891 (2006); New
Surfside Nursing Home, 330 NLRB 1146, 1146 fn. 1, 1150
(2000). It is the employer’s burden to present evidence estab-
lishing that its property rights predominate over the union’s
right to reasonable access, and to demonstrate there are alter-
nate means of obtaining the information necessary for the union
to adequately represent the bargaining unit employees. Nestle
Purina Petcare Co., above at 891; New Surfside Nursing Home,
330 NLRB at 1150; see also New Surfside Nursing Home, 322
NLRB 531, 535 (1996).
Here, the information sought by the Union—direct interac-
tion with the employees and observation of their work areas,
working conditions, and work processes—was presumptively
relevant to its responsibilities as a collective-bargaining repre-
sentative. New Surfside Nursing Home, 330 NLRB 1146, 1150
(2000). The Board has stated that in the context of collective-
bargaining negotiations,
There can be no adequate substitute for the Union representa-
tive’s direct observation of the plant equipment and condi-
tions, and employee operations and working conditions, in
order to evaluate matters such as job classifications, safety
concerns, work rules, relative skills, and other matters neces-
sary to develop an informed and reasonable negotiating strat-
egy. CCE, Inc., 318 NLRB 977, 978 (1995).
As in the present situation, the Board has held that these con-
siderations are particularly acute in the case of bargaining for
an initial contract by a newly certified union. CCE, Inc., above
at 978, 979; see also Washington Beef, Inc., 328 NLRB 612,
618–619 (1999). As a result, I find that General Counsel has
met its burden to establish that the information sought by the
Union was presumptively relevant to its representation of the
bargaining unit employees and that Sprain Brook failed to meet
its burden to establish that its property rights predominate over
the Union’s right to reasonable access. Accordingly, I find that
Respondent Sprain Brook violated Section 8(a)(5) and (1) of
the Act by unilaterally changing the Union’s access policy
without first bargaining with 1199 SEIU over the policy
change.
b. Parking Lot Incident
I also find that Respondent Sprain Brook violated Section
8(a)(1) of the Act when Stein called the police to remove the
union supporter and representative engaged in protected activi-
ty in the parking area. On October 17 2012, Trumpler and
Nicholson attempted to distribute union flyers in the parking
area of the Sprain Brook facility as a reasonable alternative to
convey the union message, after having been denied access
inside the facility. They were both met by Stein who threat-
ened them with arrest by the police. The police was called by
Stein and Trumpler and Nicholson were instructed by the police
to leave the parking area, which they did.
It is the Respondent’s burden to establish that it had a prop-
erty interest to exclude individuals from its property in a situa-
tion such as this involving a purported conflict between the
exercise of Section 7 rights and private property rights. It is
SPRAIN BROOK MANOR REHAB, LLC 51
well established that an employer may properly prohibit solici-
tation by a nonemployee union representative on its property if
reasonable efforts by the union through other available chan-
nels of communication will enable it to convey its message.
Wild Oats Community Market, 336 NLRB 179 (2001).
There is no credible evidence that the conduct of the Union
representative and employee on that date interfered with ingress
to or egress from the facility. The Board noted in Sprain Brook
Manor Nursing Home, LLC, 351 NLRB 1190, 1191 (2007),
that: “It is well established that an employer may seek to have
police take action against pickets where the employer is moti-
vated by some reasonable concern, such as public safety or
interference with a legally protected interest.” In Sprain Brook
Manor Nursing Home, however, the Board found there was no
evidence that the nonemployee organizers were encroaching on
the respondent’s property on the days that police were called
and thus there was no reasonable concern regarding the protec-
tion of its private property interests. In addition, there was no
evidence on the days that police were called that the union or-
ganizer or employee were blocking traffic or creating safety
problems. The Board therefore found that the respondent was
not motivated by any reasonable concerns when it called the
police and, without any evidence establishing a need for police
presence, the Board found the respondent’s actions violated
Section 8(a)(1). In the instant case, I also find that there is no
evidence to establish that the Respondent Sprain Brook was
motivated by any reasonable concerns when Stein called the
police on October 17.
Accordingly, on the basis of the foregoing, I find that the Re-
spondent violated Section 8(a)(1) of the Act by calling the po-
lice to remove the 1199 SEIU representative and employee
supporter from the parking lot on October 17 by calling the
police while union representative and employee were engaged
in Section 7 activity on the parking lot near the Sprain Brook
facility.
VIII. THE 8(A)(3) VIOLATIONS
The General Counsel alleges that Respondents Sprain Brook,
Pinnacle and Budget violated Section 8(a)(3) of the Act by
discharging employees because they engaged in union activity
and Sprain Brook violated the Act by subcontracting unit work
because employees engaged in union activity (GC Br. at 68–
74).
Discussion and Analysis
Section 8(3) of the Act prohibits employer interference, re-
straint, or coercion of employees for their exercise of the rights
guaranteed in Section 7 of the Act. Those rights include “the
right to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities of the
purpose of collective bargaining or other mutual aid or protec-
tion.” Section 8(3) prohibits employers from discriminating in
regard to an employee’s “tenure of employment . . . to encour-
age or discourage membership in any labor organization.” An
employer violates Section 8(a)(3) by disciplining employees for
antiunion motives. Equitable Resources, 307 NLRB 730, 731
(1992). To establish a violation of Section 8(a)(3) and (1) in
cases where a discharge is alleged in a joint employer (or suc-
cessorship) context, the General Counsel has the burden to
prove that the discharged employees was motivated by employ-
er antiunion animus.
In assessing Respondent’s motive, this case is no different
than any other 8(a)(3) case. The Board requires the General
Counsel to make an initial showing sufficient to support an
inference that the alleged discriminatees’ protected conduct was
a ‘motivating factor’ in the employer’s decision. Then the bur-
den shifts to the employer to demonstrate that the same action
would have taken place even in the absence of protected con-
duct. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393,
399–403 (1983); American Gardens Management Co., 338
NLRB 644 (2002).
The Wright Line test requires the General Counsel to make a
prima facie showing sufficient to support an inference that the
employee’s protected conduct motivated the employer’s ad-
verse action. Unlawful motivation is most often established by
indirect or circumstantial evidence, such as suspicious timing
and pretextual or shifting reasons given for the employer’s
actions. Discriminatory motivation may reasonably be inferred
from a variety of factors, such as the company’s expressed
hostility towards unionization combined with knowledge of the
employees’ union activities; inconsistencies between the prof-
fered reason for discharge or refusal to hire and other actions of
the employer; disparate treatment of certain employees with
similar work records or offenses; a company’s deviation from
past practices in implementing the discharge and proximity in
time between the employees’ union activities and their dis-
charge. WF. Bolin Co. v. NLRB, 70 F. 3d 863, 871 (6th Cir.
1995).
a. The Respondent Sprain Brook Violated Section 8(a)(3) and
(1) of the Act by Subcontracting Unit Work
I agree with the General Counsel that Respondent Sprain
Brook engaged in antiunion animus by subcontracting unit
work to avoid bargaining with the 1199 SEIU and because
employees engaged in union activity in violation of Section
8(a)(3) of the Act. The General Counsel has met its prima facie
case by showing union activity, employer’s knowledge of that
activity, and animus. See, e.g., Approved Electric Corp., 356
NLRB 238 (2010). That Respondent Sprain Brook was aware
that the predecessor employees were organized is uncontrovert-
ed. It also knew which of the job applicants held union posi-
tions with 1199 SEIU. That the decision to embark upon sub-
contracting all the unit employee functions was part of an over-
all plan motivated by antiunion animus is established by the
following direct evidence and circumstantial evidence.
Predecessor Sprain Brook had a long contentious labor histo-
ry with 1199 SEIU. Since June 2006 when the Union was cer-
tified as the exclusive collective-bargaining representative of
unit employees, there have been numerous unfair labor practic-
es, particularly in antiunion animus against the Union. Since
certification, the parties never reached a first collective-
bargaining agreement and the Union continued to bargain with
Respondent Sprain Brook through 2011. Stein, the majority
owner of Respondent Sprain Brook, was well aware of the on-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD52
going unfair labor practices, including the initial subcontracting
of the housekeeping functions and the elimination of the laun-
dry department, resulting in the discharge of Nogueira in 2011
and the findings made against the predecessor by the Board
inasmuch as Stein was present at the Sprain Brook facility as
early as 2007. Stein’s efforts to stave off a first bargaining
agreement by delaying the bargaining negotiations until the
subcontracts were in place and eventually ignoring the Union’s
effort to continue bargaining is indicative of his antiunion ani-
mus. The decision to subcontract shortly after Respondent
Sprain Brook discontinued its bargaining with the Union
strongly supports a prima facie that the decision was motivated
by antiunion considerations. Best Plumbing Supply, Inc., 310
NLRB 143, 144 (1993); Flat Rate Moving, Ltd., 357 NLRB
1321, 1328 (2011).
Moreover, Stein’s effort to prevent a union shop is evidenced
by Respondent Sprain Brook’s contract with Pinnacle. The
contract plainly states that the “Facility (Sprain Brook) and
Pinnacle recognizes the facility as a non-unionized facility (GC
Exh. 16) and clearly contrary to the fact that 1199 SEIU has
been the exclusive collective-bargaining representative of unit
employees at the facility since 2006. Respondent Sprain
Brook’s animus toward union activity is further established by
Stein’s unlawful unilateral change in the Union access policy in
May/June 2012 and his threats to have Trumpler and Nicholson
arrested when they were distributing union flyers on the facili-
ty’s open parking area in October. Atelier Condominium &
Cooper Square Realty, 361 NLRB No. 111 (2014) (unlawful
interrogations and threats evidenced antiunion animus).
Stein’s business model for Respondent Sprain Brook that on-
ly cares for the patients and not to deal with nonmanagement
personnel is also suspect of antiunion animus and smacks of
pretext. Respondent Sprain Brook, as a joint employer with
Pinnacle and Budget, was intimately involved with all aspects
of the facility personnel. Respondent Sprain Brook continued
to supervise the nursing staff with the nursing director and HR
assistant, both employed by Sprain Brook. Respondent Sprain
Brook directed the discharge of Nogueira by Confidence. Re-
spondent Sprain Brook continued to pay the salaries and bene-
fits of the nonmanagement unit employees through an elaborate
reimbursement scheme with Pinnacle, Budget, and CBM.
Sprain Brook dictated the wages, benefits and other employee
emoluments to Pinnacle, Budget and CBM and any additional
expenses incurred by the contractors were approved by Sprain
Brook. Sprain Brook continued to supervise these employees,
either directly as in the nursing staff or indirectly by its contrac-
tual relationship with the other Respondents.
Inasmuch as the evidence establishes that Respondent Sprain
Brook’s proffered reasons are pretextual, the Respondent nec-
essarily fails to meet its rebuttal burden. Remington Lodging &
Hospitality, LLC, 363 NLRB No. 112 (2016). Accordingly, I
find that Respondent Sprain Brook violated Section 8(a)(3) and
(1) of the Act by subcontracting the dietary aide, nursing and
housekeeping unit work.
b. The Respondents Sprain Brook and Pinnacle Violated Sec-
tion 8(a)(3) and (1) of the Act by discharging Key
Union Supporters
The complaint alleges that Alvin Nicholson and Vernon
Warren were discharged by Respondents Sprain Brook and
Pinnacle acting in concert as joint employers and that Clarisse
Nogueira was discharged by Confidence at the direction of
Respondent Sprain Brook. The General Counsel argues that
Respondents Sprain Brook, Pinnacle, and nonparty Confidence
unlawfully discharged key union employees, including Noguei-
ra, Nicholson and Warren because the three employees (and
others) supported 1199 SEIU and refused to sign union mem-
bership cards with Local 713.
Under Wright Line, above, the General Counsel must
demonstrate by a preponderance of the evidence that the em-
ployee was engaged in protected activity, that the employer had
knowledge of that activity, and that the employer’s hostility to
that activity “contributed to” its decision to take an adverse
action against the employee. Director, Office of Workers’
Comp. Programs v. Greenwich Collieries, 512 U.S. 267, 278
(1994); Sea-Land Service, 837 F.2d 1387 (5th Cir. 1988).
In the matter before me, I find that the General Counsel has
made a prima facie showing that the three employees’ union
activity was a motivating factor in the Respondents’ decisions
to discharge them. In Tracker Marine, LLC, 337 NLRB 644
(2002), the Board affirmed the administrative law judge who
evaluated the question of the employer’s motivation under the
framework established in Wright Line. Under the framework,
the judge held that the General Counsel must establish four
elements by a preponderance of evidence. First, the General
Counsel must show the existence of activity protected by the
Act. Second, the General Counsel must prove that the Re-
spondent was aware that the employee had engaged in such
activity. Third, the General Counsel must show that the alleged
discriminatee suffered an adverse employment action. Fourth,
the General Counsel must establish a link, or nexus, between
the employees protected activity and the adverse employment
action. In effect, proving these four elements creates a pre-
sumption that the adverse employment action violated the
Act.65
1. The Discharge of Warren and Nicholson
In October 2012, Vernon Warren met with his supervisor,
along with six dietary aides, and was presented with two cards
to complete and sign. Warren said that one card (blue) was for
health insurance benefits with Local 713 (GC Exh. 26b) and the
second card (yellow) was a check off authorization card (GC
Exh. 26a). Warren and the other dietary aides were instructed
to complete the two cards within 24 hours. Warren was asked
twice to sign the two cards, but he refused.

65 However, more recently the Board has stated that, “Board cases
typically do not include [the fourth element] as an independent ele-
ment.” Wal-Mart Stores, Inc., 352 NLRB 815 fn. 5 (2008) (citing
Gelita USA, Inc., 352 NLRB 406, 407 fn. 2 (2008)); SFO Good-Nite
Inn, LLC, 352 NLRB 268, 269 (2008); also see Praxair Distribution,
Inc., 357 NLRB 1048 fn. 2 (2011).
SPRAIN BROOK MANOR REHAB, LLC 53
On October 25, 2012, Warren arrived at work and met with
Samantha Ward.66 Ward informed him that he was fired from
his dietary aide position. Warren recalled Ward saying to him
“It sucks but I have to fire you.” On the employee disciplinary
action form, it was stated that Warren was fired due to unsatis-
factory work performance. Warren said that he has never been
previously disciplined for his work performance. Ward never
explained the unsatisfactory work that resulted in his discharge.
The record is void of any documents evidencing of any prior
discipline or unsatisfactory work performance issued to War-
ren.
Alvin Nicholson, as a former cook at the Sprain Brook facili-
ty, was required to attend a physical examination on routine
basis. Nicholson’s medical examination had been provided free
of charge by predecessor Sprain Brook. On October 22, 2012,
Nicholson was directed to take a medical examination. Nichol-
son was asked by the HR assistant Estefany Sanchez67 to com-
plete some forms and then to visit the nurse at the facility.
According to Nicholson, Sanchez provided him with two cards
to complete. Like Warren, the blue card was for union authori-
zation with Local 713 and the yellow card was for health bene-
fits.
Nicholson refused to sign the two cards and also told
Sanchez that his physical examination should be free. Subse-
quently, on the same day, he received a telephone call from
Ward. At the meeting, Nicholson was informed by Ward that
his cook position was being eliminated. Nicholson asked for
his former dietary aide position, but was informed by Ward that
someone else was being trained for that position. Nicholson
was then discharged on October 22 by Ward.
I find that the General Counsel has established by a prepon-
derance of the evidence that Warren and Nicholson were dis-
charged due to the antiunion animus of Respondents Sprain
Brook and Pinnacle. To rebut the presumption established by
the General Counsel, the Respondents bears the burden of
showing the same action would have taken place even in the
absence of protected conduct. See Manno Electric, Inc., 321
NLRB 278, 280 fn. 12 (1996); Farmer Brothers, Co., 303
NLRB 638, 649 (1991). To meet this burden “an 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 pro-
tected conduct.” Roure Bertrand Dupont, Inc., 271 NLRB 443
(1984); Durham School Services, L.P., 360 NLRB No. 85
(2014).
Discriminatory motive may be established in several ways
including through statements of animus directed to the employ-
ee or about the employee’s protected activities, Austal USA,
LLC, 356 NLRB No. 65, slip op. at p. 1 ( 2010); the timing
between discovery of the employee’s protected activities and
the discipline, Traction Wholesale Center Co. v. NLRB, 216
F.3d 92, 99 (D.C. Cir. 2000); evidence that the employer’s
asserted reason for the employee’s discipline was pretextual,
such as disparate treatment of the employee, shifting explana-

66 As noted, Ward was the director of the dietary aides and cooks and
employed by Pinnacle.
67 As noted, Sanchez is an employee of Sprain Brook.
tions provided for the adverse action, failure to investigate
whether the employee engaged in the alleged misconduct, or
providing a nondiscriminatory explanation that defies logic or
is clearly baseless, Lucky Cab Co., 360 NLRB No. 43 (2014);
ManorCare Health Services—Easton, 356 NLRB 202, 204
(2010); Greco & Haines, Inc., 306 NLRB 634, 634 (1992);
Wright Line, 251 NLRB at 1088 fn. 12, citing Shattuck Denn
Mining Co. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Cin-
cinnati Truck Center, 315 NLRB 554, 556–557 (1994), enfd.
sub nom. NLRB v. Transmart, Inc., 117 F.3d 1421 (6th Cir.
1997)).
Turning to the Respondent’s defense, the Respondent con-
tends that Warren was discharged due to his unsatisfactory job
performance and Nicholson was discharged because his cook
position was eliminated.
I find that the nondiscriminatory reason for the discharge of
Warren and Nicholson as clearly baseless.
With regard to Warren, the Respondents did not provide
credible evidence to document the incident that caused his dis-
charge or that Warren had a work history of unsatisfactory
performance. Respondents Sprain Brook and Pinnacle did not
provide any personnel records evidencing that Warren had been
disciplined in the past nor identified the incident that was so
serious that resulted in his immediate discharge. The Board has
held that an employer’s failure to conduct a fair and full inves-
tigation into the incident causing the employee’s discharge and
to give the employee the opportunity to explain his action be-
fore imposing discipline is a significant factor in finding dis-
criminatory motivation. Publishers Printing Co., 317 NLRB
933, 938 (1995), enfd. 106 F.3d 41 (6th Cir. 1996).
With regard to Nicholson, the Respondents never articulated
the rationale for the elimination of his cook position. The rec-
ord is void of any evidence indicating that there were layoffs of
cooks at the facility or that there was a budget short-fall for the
elimination of the cook position. Moreover, the Respondents
failed to provide any credible reason as to why Nicholson could
not return to his former dietary aide position. The alleged rea-
son provided to Nicholson was because another person was
being trained in the same position. However, the Respondent
provided no evidence to support this rationale.
On the other hand, Respondents Sprain Brook and Pinnacle
were anxious to rid themselves of Warren and Nicholson. War-
ren has been an 1199 SEIU delegate since his employment with
predecessor Sprain Brook. Warren objected to signing the
Local 713 union card and voiced his opposition to the presence
of Local 713 to Ward. Nicholson supported 1199 SEIU and his
support was known to Stein. Nicholson was involved in dis-
tributing 1199 SEIU flyers in early October when Stein threat-
ened to have him (and Trumpler) arrested. When Warren and
Nicholson refused to sign Local 713 union cards, they were
discharged.
I find that the timing of the discharges, shortly after they
voiced their support for 1199 SEIU and refused to sign union
cards for a different union supports an inference that the Re-
spondents’ discipline was motivated by their support for 1199
SEIU. State Plaza Hotel, 347 NLRB 755, 755–756 (2006);
Toll Mfg. Co., 341 NLRB 832, 833 (2004); Davey Roofing,
Inc., 341 NLRB 222, 223 (2004) (temporal proximity between
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD54
union activity and employer’s adverse action is evidence of
unlawful motivation).
Nicholson and Warren were discharged less than 48 hours
after they made their support of the 1199 SEIU clear to Sprain
Brook and Pinnacle supervisors. This timing represents signifi-
cant evidence of unlawful motivation. Such coincidence in time
between Respondents’ knowledge of the employees’ union
activity, and their discharge is strong evidence of an unlawful
motive for his discharge. Trader Horn of New Jersey, 316
NLRB 194, 198 (1995). As stated by the administrative law
judge in AdvoServ of N.J., 363 NLRB No. 143 slip op. at 31
(2016), “Indeed, “timing alone may be sufficient to establish
that union animus was a motivating factor in a discharge deci-
sion.” Sawyer of NAPA, 300 NLRB 131, 150 (1990); NLRB v.
Rain-Ware, 732 F.2d 1349, 1354 (7th Cir. 1084), NLRB v.
Windsor Industries, 730 F.2d 860, 864 (2d Cir. 1984); Manor
Care Health Services—Easton, 356 NLRB 202, 204, 226
(2010) (Proximity in time between discriminatee’s union activi-
ty and discharge supports finding of unlawful motivation for
the termination); LaGloria Oil & Gas, 337 NLRB 1120, 1123,
1132 (2002). (Discharge shortly after Employer learned of em-
ployee’s union activities, strongly supports a finding that dis-
charge motivated by union animus”).”
The Respondents have demonstrated antiunion animus in vi-
olation of Section 8 (a)(3) and (1). I find that the discharge of
Warren and Nicholson was motivated by their union support
and activity for 1199 SEIU, and that the Respondents have not
met their burden of persuasion to demonstrate the same action
would have taken place even in the absence of the protected
conduct. Wright Line, above, at 1089.
2. The Discharge of Nogueira
Nogueira has been a union delegate for 1199 SEIU for sev-
eral years before she, and the housekeeping staff, met with Jose
Perez, the regional manager with Confidence on September 25,
2012. Nogueira was introduced to Ken Franz, a business agent,
from Local 312. Nogueira informed Franz that she is a member
of 1199 SEIU. According to Nogueira, Franz left the Local 312
authorization form to sign and his business agent card. Noguei-
ra did not complete the union card. Nogueira was also aware of
Local 713’s drive to recruit employees in October 2012.
Nogueira was given Local 713 health and welfare fund enroll-
ment cards and Local 713 application and check off authoriza-
tion form by Sanchez to complete.
As a union delegate, Nogueira was disturbed that employees
were being intimidated to sign with another local. Nogueira
advocated on behalf of CNA Galina not to sign the Local 713
union card and told her that 1199 SEIU was the rightful union.
Nogueira said this conversation occurred on October 23 in an
elevator in the presence of Sanchez who held a stack of Local
713 union cards.
On the next day, Nogueira had a conversation with Jose Pe-
rez regarding her conversation with Galina. Nogueira told
Perez that she is a delegate with Local 1199 and had the right to
tell Galina about her union rights. On the following day, Perez
told Nogueira that Stein and Strulovitch believe that she was
harassing the staff and not fulfilling her duties. Nogueira re-
plied that management was harassing the staff and she was
simply voicing her opposition to the signing of Local 713 union
and benefit cards. Nogueira testified that at this point she was
informed by Perez that Stein and Strulovitch said she was fired.
No apparent reason was provided for her discharge and no doc-
umentation of her termination was completed by Respondent
Sprain Brook or Confidence.
Perez testified that Stein spoke to him about Nogueira. Ac-
cording to Perez, Stein said that Nogueira was harassing the
staff and she was not meeting the standard of the housekeeping
department. Perez said that Stein told him, “Jose, you have to
terminate her. You have to fire her.” Perez responded that he
needed to investigate these allegations and get back to Stein.
Perez found that no employee had any issues with Nogueira.
Perez also spoke to Nogueira’s immediate supervisor, Brian
John, and was informed that Nogueria was not interfering with
any employees. Perez said he was instructed to discharge No-
gueria by Stein. Perez contacted his supervisor, Patrick Egan,
and was told that there were disciplinary protocols that Confi-
dence follows in discharging an employee. Perez told Nogueria
she was harassing the staff and her duties were not being ful-
filled. Perez admitted that this was not true based upon his own
investigation but was directed to discharge Nogueria. Perez
believed that Nogueria was discharged in October.
In assessing the Respondent’s defense, I note that the Board
has held “[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.,
above, 1118, 1119 (1993). In order to meet the Wright Line
burden of persuasion, an employer must establish that it is con-
sistently and evenly applied its disciplinary rules. DHL Ex-
press, Inc., 360 NLRB No. 87, slip op. at 7 (2014). In Septix
Waste, Inc., 346 NLRB 494 (2006), the Board held that in order
to establish a valid Wright Line defense, an employer must
establish that it is applied its disciplinary rules regarding the
conduct at issue consistently and evenly.
Respondent Sprain Brook argued that Nogueria was dis-
charged because she was harassing other employees (R SB Br.
at 28). I find that Nogueira’s discharge was a pretext and I find
it appropriate to reasonably inferred that the real motive was
due to Nogueira’s union activity. Nogueria has never been
subjected to discipline during her employment years with pre-
decessor Sprain Brook. In the instant case, Respondent Sprain
Brook produced no evidence of employees who allegedly had
harassed other employees and were immediately discharged.
Perez credibly testified that Confidence had “protocols” or
procedures for disciplining employees, which were not fol-
lowed because Sprain Brook insisted to a Confidence principal,
Patrick Egan, that Nogueria must be fired. Perez also credibly
testified that he was directed by Stein to discharge Nogueira
without following proper protocols. Respondent Sprain Brook
proffered no credible evidence that it had a policy to discharge
an employee found interfering or harassing other employees.
Nothing was proffered by Respondent Sprain Brook of any
comparative evidence of other employees that were discharged
for intimidating or interfering with coworkers.
On the other hand, Nogueria was known in the past by Stein
as an advocate of other employees at the facility. Nogueira had
SPRAIN BROOK MANOR REHAB, LLC 55
met and spoken to Stein and Moses Strulovitch in November
2010 regarding the discipline of another employee. Nogueira
also had another occasion to speak to Stein during this same
time frame over Stein’s criticism of another housekeeper’s
ability to clean the windows. According to Nogueira, Stein
responded “You don’t tell me what to do. I’m your boss.”
Stein was also aware and had knowledge of Nogueira’s union
activity since 2009 since both individuals attended the bargain-
ing sessions between 1199 SEIU and Respondent Sprain
Brook.68
Accordingly, Respondent Sprain Brook violated Section
8(a)(3) and (1) of the Act when it directed Confidence, as
agent, to discharge Nogueria because of her union activity and
support for 1199 SEIU and failed to demonstrate that Nogueira
would have been discharged absence her protected activity.
IX. THE 8(A)(2) VIOLATIONS OF THE ACT
The General Counsel maintains that Respondents Sprain
Brook, Pinnacle, and Budget unlawfully aided and abetted Re-
spondent Local 713 by (1) soliciting, threatening, and coercing
employees to support Local 713; (2) recognizing Local 713 as
the exclusive collective-bargaining representative for employ-
ees working at Sprain Brook; (3) entering into a collective-
bargaining agreement with Local 713 at a time that Local 713
did not have an uncoerced majority of employees because each
employer was obligated to recognized 1199 SEIU as the exclu-
sive collective-bargaining representative of the employees; and
(4) deducting and remitting dues to Local 713.
Discussion and Analysis
Section 8(a)(2) of the Act prohibits an employer to dominate
or interfere with the formation or administration of a labor or-
ganization or contribute financial or other support to it. The
complaint alleges that Respondents Sprain Brook, Pinnacle, and
Budget violated Section 8(a)(2) of the Act when they extended
recognition to Respondent Local 713, International Brother-
hood of Trade Unions when they owe a bargaining obligation
to 1199 SEIU. The General Counsel argues that in the process
of extending recognition to Local 713, the Respondents violat-
ed Section 8(a)(2) of the Act by interfering with the employees’
right to bargain collectively through representatives of their
own choosing with 1199 SEIU by directly requesting employ-
ees to sign Local 713 union cards and threatening employees
with discharge for their refusal to sign with the Respondent
Union.
An employer violates Section 8(a)(2) when it recognizes a
minority union as the exclusive bargaining representative, and
that a union violates Section 8(b)(1)(A) when it accepts such
recognition. Although the law permits certain forms of coopera-
tion between employers and unrecognized unions, “. . . an em-
ployer crosses the line between cooperation and support, and
violates Section 8(a)(2), when it recognizes a minority union as
the exclusive bargaining representative.” Dana Corp. and In-
ternational Union, 356 NLRB 256, 260 (2010); also, Ladies

68 Respond First Aid, 299 NLRB 167, 169 fn. 13 (1990), enfd. mem.
940 F.2d 661 (6th Cir. 1991) (“The Board and the courts have long held
that when the General Counsel provides an employer suspects discrim-
inatees of union activities, the knowledge requirement is satisfied”).
Garment Workers v. NLRB (Bernhard-Altmann), 366 U.S. 731
(1961).
The record shows that on January 15, 2008, Budget Services
entered into a collective-bargaining agreement with Local 619
IUJAT signed by the president of Local 619 and Weber for
Budget. The CBA between Local 619 and Budget covered a
unit of “aides who are dispatched from Renaissance” (GC Exh.
52).69 Weber testified that he negotiated the contract but could
not remember the details. Weber recalled that the CBA would
only cover a specific group of Budget employees working at
the Renaissance nursing facility (Tr. 1320–1323).
During the April 2009 time frame, Local 619 merged with
Local 713 and Local 713 became a successor to Local 619. In
an undated assumption of agreement and merger, the two un-
ions agreed that Local 713 will adopt the current collective-
bargaining agreement of Local 619 and to assume all the rights,
duties, and obligations of the agreement. Weber, as president
of Budget Services Inc., signed and agreed to recognize Local
713 as the collective-bargaining representative of the unit em-
ployees “employed by Budget Services, Inc.” (GC Exh. 53).
On September 10, 2012, Weber on behalf of Budget Services
and the president of Local 713 entered into a memorandum of
agreement to continue the collective-bargaining agreement on
“day to day basis” after the expiration date of the CBA on Jan-
uary 4, 2011. The agreement was for a period from January 15,
2012, to January 14, 2015. Curiously, the memorandum of
agreement expanded the Budget employees from “aides who
are dispatched from Renaissance” to now include full-time and
regular part-time LPNs, CNAs, activity aides, home health
aides, personal care aides, and dietary employees and other
related jobs regularly scheduled to work 20 or more hours per
week at this location and any other location in the New York
Metropolitan area” (GC Exh. 54).
Weber testified that it was his signature on the memorandum
of agreement but did not recall the discussions surrounding the
agreement. Weber also could not recall seeing any signed au-
thorization cards or whether there was an election to include the
other categories of employees. Weber could not recall how the
memorandum of agreement now included LPNs, CNAs, activi-
ty aides, home health aides, personal care aides, and dietary
employees (Tr.1329–1335).
On November 1, 2012, Budget Services and Local 713 en-
tered into a recognition agreement for unit employees working
for Respondent Sprain Brook in the dietary unit. The recogni-
tion agreement stated that Local 713 had demanded that the
employer recognize it as the collective bargaining representa-
tive of the dietary unit; that at the request of the employer, the
union has produced authorization cards; that the employer had
compared the signatures on the authorization cards’ the em-
ployer has verified that the authorization cards are genuine
signatures from a majority of the employees employed in the
dietary unit. The recognition agreement further stated that
Budget Services recognizes and acknowledges Local 713 as the
sole and exclusive collective-bargaining representatives for all
its full-time and regular dietary employees, excluding tempo-

69 As noted, Renaissance was and is a healthcare facility and a client
of Budget Services at the time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD56
rary and seasonal employees, clerical, managerial and profes-
sional employees, guards and supervisors. The parties agreed
to execute a collective-bargaining agreement “as soon as there-
after practicable” (GC Exh. 55).
Weber could not recall signing the recognition agreement
and had no recollection as to the circumstances in signing this
agreement. Weber stated that he did not recall Local 713 mak-
ing a demand to represent the dietary employees and failed to
remember requesting or seeing any authorization cards. Weber
could not recall if a subsequent CBA was signed (Tr. 1338–
1341). No evidence has been produced to show that a collec-
tive-bargaining agreement was entered into by Budget Services
and Local 713 to cover the dietary employees at Sprain Brook
Rehab.
Pinnacle, who had the contract for the dietary department,
was not a party to the recognition agreement and had never
entered into a collective-bargaining agreement with a union.
Pinnacle denied that it had a collective-bargaining relationship
with Local 713. However, Pinnacle worked in tandem with
Budget and Sprain Brook to sign up the dietary aides with Lo-
cal 713. At a meeting with their supervisors in early October
2012, Warren and the six dietary aides were told by a Pinnacle
supervisor that he had two cards for the dietary aides to com-
plete and sign. Warren said that one card (blue) was for health
insurance benefits with Local 713 (GC Exh. 26b) and the sec-
ond card (yellow) was a check off authorization card (GC Exh.
26a). Warren and the other dietary aides were instructed to
complete the two cards within 24 hours. Warren did not sign
the two cards (Tr. 461–466).
Warren was also approached by an individual by the name of
Foruq Rahim believed to be a representative from Respondent
Budget at work and request that Warren sign the same two
cards. Warren again refused to sign up with Local 713. War-
ren was subsequently discharged by Ward, the Pinnacle director
of dietary, on October 25, 2012.
Warren was subsequently hired by Respondent Budget. He
was approached by a representative from Local 713 to sign the
aforementioned two Local 713 union and health benefits cards
before he could receive health benefits. Warren again refused.
Warren said there was a third occasion in January/February
2014 when he was approached by another Local 713 repre-
sentative and was told that he needed to sign the union card
before he could receive any health benefits. Warren again re-
fused to sign (Tr. 486–495).
I credit Warren’s testimony that he was first coerced by a
Pinnacle representative to complete a union card for Local 713
and was approached a second time after he was rehired by a
Budget and a Local 713 representative to sign up with Local
713. None of the Respondents Pinnacle, Budget, or Local 713
presented any credible witnesses to refute Warren’s testimony
and certainly his testimony was consistent with testimony pro-
vided by Nicholson and others. I find that Weber’s testimony
was confusing and inconsistent. As the owner of Budget and
other affiliated companies, Weber first insisted he had no em-
ployees working at the Sprain Brook facility. He then insisted
he had employees but they were hired by Respondent Sprain
Brook. Weber then could not remember negotiating and sign-
ing a collective-bargaining agreement with either Local 619 or
an assumption of agreement with Local 713. Nevertheless,
Respondents Budget and Pinnacle attempted to coerce unit
employees of 1199 SEIU to sign union cards with Local 713
knowing that Local 713 did not represent these employees.
I also credit Nicholson’s testimony when he described how
he was approached by Sanchez; the HR assistant employed by
Respondent Sprain Brook, and was provided with two cards
and instructed to complete them. Like Warren, Nicholson was
given a yellow card for Local 713 authorization for union dues
and a blue card for health benefits (GC Exhs. 26a and 26b).
Nicholson refused to sign the two cards. Nicholson was also
informed that his health benefits, including a free medical ex-
amination, were dependent upon him signing the two cards.
Nicholson refused and was subsequently discharged.
Similarly, Katrina Gjelaj, a member of 1199 SEIU, was also
instructed by Sanchez to complete her job application for a
housekeeping position with Respondent Budget and was also
given “union card” authorization card by Sanchez to complete
for Local 713. I credit Gjelaj’s unrebutted testimony that the
Sprain Brook administrator, Shlomo Mushell, instructed the
housekeeper to complete the Local 713 union authorization
cards. Gjelaj needed her health insurance and was told she
would receive health benefits with Local 713. She refused to
sign with Local 713. Gjelaj testified that she is now receiving
her health insurance from another entity and not with Local
713. Gjelaj insisted that union dues were nevertheless taken
out of her paycheck even though she never signed up with Lo-
cal 713. The record reflects that union dues to Local 713 were
deducted from Gjelaj’s paycheck for the pay period ending on
October 24, 2014 (GC Exh. 105).
Respondent Budget never had a collective-bargaining
agreement with Local 713 regarding the former Sprain Brook
employees who were rehired by Budget. At best, Respondent
Budget entered into a collective-bargaining agreement with
Local 713 after the merger with Local 619 pertaining to work-
ers at a the Renaissance healthcare facility.
Respondents Sprain Brook and Pinnacle never had a collec-
tive-bargaining agreement with Local 713 but nevertheless both
employers sought to bring the dietary aides, cooks and house-
keepers under the bargaining agreement between Budget and
Local 713. In doing so, Respondents Sprain Brook, Pinnacle,
and Budget as joint employers violated Section 8(a)(2) by rec-
ognizing Local 713 and interfering with 1199 SEIU as the ex-
clusive bargaining representative of the unit employees. More-
over, said Respondents, as joint employers, violated Section
8(a)(2) of the Act when they threatened and then discharged
Nicholson and Warren for their refusal to sign up with the Re-
spondent Union. Myers Transport of New York, Inc., 338
NLRB 958 (2003).
The clear evidence shown above is without dispute that Re-
spondents Sprain Brook, Pinnacle, and Budget, as joint em-
ployers, maintained and enforced a collective-bargaining
agreement with Respondent Union to the detriment of the 1199
SEIU unit employees when the employers were aware that
Local 713 did not represent an uncoerced majority of employ-
ees in the unit.
The overwhelming corroborating testimony clearly impli-
cates Sprain Brook, Pinnacle, and Budget as working jointly
SPRAIN BROOK MANOR REHAB, LLC 57
and severally to entice and encourage unit employees to sign
with Local 713. By such actions, I find that Respondents
Sprain Brook, Pinnacle, and Budget jointly and severally vio-
lated Section 8(a)(2) by granting assistance and recognition to
Local 713 as the exclusive collective-bargaining representative
of the unit employees, and by applying the Budget-Local 713
agreement, including its union-security provisions, to the unit
employees at a time when Local 713 did not represent an unas-
sisted and uncoerced majority of the employees in the units.
X. THE 8(B)(1)(A) VIOLATIONS OF THE ACT
Finally, the General Counsel argues that Respondent Local
713 IBOTU violated the Act by accepting such unlawful assis-
tance, recognition, and contracting with each employer.
Discussion and Analysis
Section 8(b)(1)(A) of the Act makes it unlawful for a labor
organization to restrain or coerce employees in exercise of their
rights under Section 7 (to join or assist a labor organization or
to refrain). The General Counsel alleges that Respondent Local
713 violated 8(b)(1)(A) when it accepted recognition from
Respondents Sprain Brook, Pinnacle, and Budget as the repre-
sentative of the predecessor Sprain Brook’s former employees
as part of Local 713 unit of employees and applied the terms
and conditions of the Budget-Local 713 collective-bargaining
agreement, including the contract’s union-security clause, to the
former unit employees, all at a time when Local 713 did not
represent an uncoerced majority of those former employees. It
is further alleged that Local 713 solicited and encouraged em-
ployees to sign authorization cards with Local 713 and enticed
these employees with much needed health insurance benefits
and other employee emoluments knowing that such employees
were already members of 1199 SEIU. The complaint alleges
that this conduct violates Section 8(b)(1)(A) of the Act.
I find that Respondent Union violated Section 8(b)(1)(A) of
the Act when it accepted recognition from the employer know-
ing it did not have a majority support of the unit employees. I
credit the testimony of Carmen Smith, who was also ap-
proached by Pinnacle’s supervisor, Ward, and encouraged to
join Local 713. Smith also met with Kevin Watts from Local
713 and was asked to sign a Local 713 check off (yellow) au-
thorization card and a health insurance (blue) card (GC Exh.
29). Smith said she was coerced to sign the two cards because
she needed her job and health insurance (for her illness) and no
longer had health benefits unless she signed with Local 713 (Tr.
365–370). Smith in fact, joined Local 713 and had her union
dues deducted from the paystub by Respondent Budget Ser-
vices, Inc.
Shelly Williams’ testimony was also fully credible and cor-
roborates the testimony of others on this point. Williams was
coerced to sign a Local 713 membership card. Williams was
called to the recreational center along with other employees a
few days after she had completed her job application. Williams
stated that there was a Budget representative and a person from
Local 713, who she identified as Kevin Watts. Williams com-
pleted the Local 713 union cards. Paula Robinson similarly
testified that she was given two sets of documents sealed in
envelopes. Robinson refused to sign the union card with Local
713 but noticed in her paycheck that union dues were deducted
anyway from her salary. She subsequently complained to
Watts in January 2013, but she continued to have Local 713
union dues deducted from her paycheck.
The Respondent Union’s answer is a general denial that it
violated Section 8(b)(1)(A) of the Act. The Respondent Union
did not provide Kevin Watts or another union representative to
explain the solicitation of new members by the Respondent
Union. On the other hand, unit employees affiliated with 1199
SEIU clearly informed the Respondent Union of their opposi-
tion to sign Local 713 union and benefits cards. Based upon
the corroborated testimony provided by Smith, Williams,
Gjelaj, Nicholson, and Warren, it is without dispute that Re-
spondent Union had constructively knowledge, if not actual
knowledge, that Respondents Sprain Brook, Pinnacle, and
Budget were coercing 1199 SEIU unit employees to sign up
with Respondent Union on an implied threat of discharge.
Kevin Watts, identified as a representative of Local 713 was
made aware by Williams and Smith that they were being co-
erced to sign Local 713 union cards in order to obtain benefits,
such as health insurance. Moreover, as credibly described by
Robinson and Gjelaj, Respondent Union was aware of their
refusal to accept Local 713 but Local 713 union dues were
deducted nevertheless in complicity with Respondents Budget,
Pinnacle, and Sprain Brook.
Section 8(b)(1)(A) of the Act makes it an unfair labor prac-
tice to restrain or coerce employees in the exercise of their
rights. The collection of union dues from employees who are
not members of the Respondent Union and making clear to the
Respondent Union’s representative that the employees are still
members of 1199 SEIU and being coerced to sign upon threat
of discharge constituted such restraint and coercion. Service
Employees Local 121RN (Pomona Valley Hospital Medical
Center), 355 NLRB 234 (2010).
Accordantly, I also find and conclude that Local 713 violated
Section 8(b)(2)(A) and (1) of the Act by accepting such recog-
nition and applying the Budget-Local 713 agreement, including
its union-security provisions, to the unit employees at a time
when it had not demonstrated that it had exclusive majority
representative status.
CONCLUSIONS OF LAW
1. The Respondents Sprain Brook Manor Rehab, LLC, Pin-
nacle Dietary, Inc., Budget Service, Inc., Commercial Building
Maintenance and Confidence are employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union, 1199 SEIU United Healthcare Workers East,
and Local 713, International Brotherhood of Trade Unions are
labor organizations within the meaning of Section 2(5) of the
Act.
3. The Union 1199 SEIU is, and at all material times, has
been the exclusive joint bargaining representative for the fol-
lowing appropriate unit:
4. The Respondent Sprain Brook as a Burns successor vio-
lated Section 8(a)(5) and (1) of the Act by withdrawing recog-
nition from the Union as the exclusive collective-bargaining
representative of the unit employees and thereafter continuous-
ly failing and refusing to bargain on request with 1199 SEIU as
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD58
the exclusive collective-bargaining representative of the unit
employees concerning wages, hours, and other terms and con-
ditions of employment.
5. The Respondent Sprain Brook violated Section (a)(5) and
(1) of the Act when it subcontracted the work of the unit em-
ployees to Pinnacle, Budget, CBM, and nonparty Confidence
without first notifying 1199 SEIU and giving it a meaningful
opportunity to bargain with regard to the decision to subcon-
tract unit work.
6. The Respondent Sprain Brook violated Section 8(a)(5)
and (1) of the Act by notifying the dietary aide and cook unit
employees that they would be discharged and employees inter-
ested in continuing to perform unit work could do so only if
they were hired as employees of Respondent Pinnacle without
first notifying 1199 SEIU and giving it a meaningful opportuni-
ty to bargain regarding the decision to subcontract unit work.
7. The Respondent Sprain Brook violated Section 8(a)(5)
and (1) of the Act by notifying the nursing unit employees that
they would be discharged and employees interested in continu-
ing to perform unit work could do so only if they were hired as
employees of Respondent Budget without first notifying 1199
SEIU and giving it a meaningful opportunity to bargain regard-
ing the decision to subcontract unit work.
8. The Respondent Sprain Brook violated Section 8(a)(5)
and (1) of the Act by notifying the housekeeping and mainte-
nance unit employees that they would be discharged and em-
ployees interested in continuing to perform unit work could do
so only if they were hired as employees of nonparty Confidence
without first notifying 1199 SEIU and giving it a meaningful
opportunity to bargain regarding the decision to subcontract
unit work.
9. The Respondent Sprain Brook violated Section 8(a)(5)
and (1) of the Act by unilaterally changing the facility access
policy and denying 1199 SEIU representatives access to the
Sprain Brook facility without providing notice to and an oppor-
tunity to bargain over the change.
10. The Respondent Sprain Brook violated Section 8(a)(1)
of the Act by directing an 1199 SEIU representative and an
employee supporter to remove themselves from the parking lot
at the Scarsdale, New York facility.
11. The Respondent Sprain Brook violated Section 8(a)(1)
of the Act by calling the police to prevent an 1199 SEIU union
representative and employee supporter from distributing union
handbills and removing the representative from the parking lot
without having a reasonable basis to do so.
12. The Respondents Sprain Brook, Pinnacle, and Budget
jointly and severally violated Section 8(a)(5) and (1) of the Act
by altering the dietary aide and cook unit employees’ terms and
conditions of employment without first notifying 1199 SEIU
and bargaining to agreement or impasse regarding such changes
in the wages, hours, and working conditions of the unit em-
ployees.
13. The Respondents Sprain Brook and Budget jointly and
severally violated Section 8(a)(5) and (1) of the Act by bypass-
ing 1199 SEIU and directly offering the nursing unit employees
continued employment with initial terms and conditions of
employment, including their wages and fringe-benefit provi-
sions.
14. The Respondent Budget as of October 1, 2014, jointly
with Respondent Sprain Brook, violated Section 8(a)(5) and (1)
of the Act by bypassing 1199 SEIU and setting terms and con-
ditions of employment for the housekeeping and maintenance
unit employees, including their wages and fringe-benefit provi-
sions, on the basis of an unlawful collective-bargaining agree-
ment with Local 713.
15. The Respondents Sprain Brook, Pinnacle, and Budget
violated Section 8(a)(5) and (1) of the Act by withdrawing
recognition from 1199 SEIU, extending recognition to Local
713, and applying the Budget collective-bargaining agreement
with Local 713 to the unit employees.
16. The Respondent CBM violated Section 8(a)(5) and (1)
of the Act by failing to recognize and bargain with 1199 SEIU
as the exclusive collective-bargaining representative of the
housekeeping and maintenance unit employees.
17. The Respondent CBM as a Burns successor to Confi-
dence violated Section 8(a)(5) and (1) of the Act as of Septem-
ber 13, 2012, by altering the housekeeping and maintenance
unit employees’ terms and conditions of employment without
first notifying 1199 SEIU and bargaining to agreement or im-
passe regarding such changes in the wages, hours, and working
conditions.
18. The Respondent Budget as a Burns successor violated
Section 8(a)(5) and (1) of the Act as of September 13, 2012,
without first notifying 1199 SEIU and bargaining to agreement
or impasse regarding such changes in the wages, hours, and
working conditions of the nursing staff unit employees.
19. The Respondent Budget as a Burns successor to CBM
violated Section 8(a)(5) and (1) of the Act as of October 1,
2014, by altering the housekeeping and maintenance unit em-
ployees’ terms and conditions of employment without first
notifying 1199 SEIU and bargaining to agreement or impasse
regarding such changes in the wages, hours, and working con-
ditions of the housekeeping and maintenance unit employees.
20. The Respondents Sprain Brook and Pinnacle jointly and
severally violated Section 8(a)(3) and (1) of the Act when
Vernon Warren and Alvin Nicholson were unlawfully dis-
charged because of their protected activities.
21. The Respondent Sprain Brook violated Section 8(a)(3)
and (1) of the Act when it directed nonparty Confidence to
discharge of Clarisse Nogueira because of her protected activi-
ty.
22. The Respondents Sprain Brook, Pinnacle, and Budget
violated Section 8(a)(2) and (1) of the Act by granting assis-
tance to the Respondent Union and recognizing it as the exclu-
sive collective-bargaining representative of the unit employees,
and by applying the terms and conditions of employment of the
Budget-Local 713 Agreement, including its union-security
provisions, to the unit employees, at a time when the Respond-
ent Union did not represent an unassisted and uncoerced major-
ity of the employees in the unit, and when 1199 SEIU was the
exclusive collective-bargaining representative of the unit em-
ployees.
23. The Respondent Local 713 IBOTU violated Section
8(b)(1)(A) and (2) by accepting recognition from the Respond-
ents as the exclusive collective-bargaining representative of the
unit employees, and by agreeing to the application of the Budg-
SPRAIN BROOK MANOR REHAB, LLC 59
et-Local 713 Agreement, including its union-security provi-
sions, to the unit employees, at a time when it did not represent
an uncoerced majority of the employees in the unit when 1199
SEIU was the exclusive collective-bargaining representative of
the employees in the unit.
24. The unfair labor practices set forth above affect com-
merce within the meaning of the Section 8(a)(3) and (1) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents Sprain Brook, Pinnacle,
Budget, and CBM and the Respondent Union have engaged in
certain unfair labor practices, I shall order them to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondents Sprain Brook, Pinnacle, and Budget shall
be ordered to withdraw recognition from the Respondent Union
as the collective-bargaining representative of the unit employ-
ees unless and until the Respondent Union has been certified by
the Board as their collective-bargaining representative.
In addition, the Respondent Union shall be ordered to cease
accepting the Respondents recognition unless and until it is so
certified. The Respondents Sprain Brook, Pinnacle, and Budget
and Respondent Union will be ordered to cease and desist ap-
plying the Local 713-Budget Agreement, including its union-
security provisions, and any extension, renewal, or modifica-
tion thereof, to the unit employees.
The Respondent Sprain Brook also will be ordered to recog-
nize and, on request, bargain with the 1199 SEIU United
Healthcare Workers East as the exclusive bargaining repre-
sentative of the unit employees with respect to wages, hours,
and other terms and conditions of employment and, if an
agreement is reached, embody it in a signed document. As
discussed below, I find that an affirmative bargaining order is
warranted in this case as a remedy for the Respondent Sprain
Brook’s unlawful withdrawal of recognition.
The Respondent Sprain Brook shall also be ordered to re-
scind the unlawful contracts with Pinnacle and Budget and, on
the 1199 SEIU’s request, any or all of the unilateral changes to
the unit employees’ terms and conditions of employment made
on or after June 15, 2012, and to make the unit employees
whole for any loss of earnings and other benefits attributable to
its unlawful conduct. The make-whole remedy shall be com-
puted in accordance with Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as
prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010).
The Respondent Sprain Brook will be required to make
whole for any loss of earnings and other benefits suffered as a
result of the unilateral changes in the terms and conditions of
employment, including wages and healthcare insurance, of the
unit employees after they were discharged and rehired by Re-
spondent Pinnacle, Budget and nonparty Confidence. Backpay
shall be computed in accordance with F.W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New Horizons,
supra, compounded daily as prescribed in Kentucky River Med-
ical Center, supra.
The Respondent Sprain Brook will be required to offer rein-
statement to Vernon Warren, Alvin Nicholson, and Clarisse
Nogueira for their discriminatory discharge and to make them
whole for any loss of earnings and other benefits suffered as a
result of their unlawful discharge. Backpay shall be computed
in accordance with F.W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons, supra, compound-
ed daily as prescribed in Kentucky River Medical Center, supra.
The Respondent Sprain Brook additionally will be required
to offer reinstatement to all employees discharged on Septem-
ber 12, 2012, whether they were reemployed or not by Re-
spondents Pinnacle, Budget, and nonparty Confidence, and to
make them whole for any loss of earnings and other benefits
suffered as a result of their unlawful discharge. Backpay shall
be computed in accordance with F.W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New Horizons,
supra, compounded daily as prescribed in Kentucky River Med-
ical Center, supra. The Respondent Sprain Brook also will be
required to expunge from its files and records any and all refer-
ences to the unlawful discharges and notify the affected em-
ployees in writing that this has been done and that the discharg-
es will not be used against them in any way.70
The Respondent Sprain Brook additionally shall be ordered
to (1) compensate the unit employees for any adverse income
tax consequences of receiving their backpay in one lump sum
and (2) file a report with the Social Security Administration
allocating the backpay to the appropriate calendar quarters, as
set forth in Don Chavas, LLC d/b/a Tortillas Don Chavas, 361
NLRB No. 10 (2014). Consistent with the Board holding in
AdvoServ of N.J., 363 NLRB No. 143 (2016), the Respondent
Sprain Brook shall be required within 21 days of the date the
amount of backpay is fixed, either by agreement or Board or-
der, to file its report allocating backpay with the Regional Di-
rector and not with the Social Security Administration. The
Respondent will be required to allocate backpay to the appro-
priate calendar years only.
Further, the Respondents Sprain Brook, Pinnacle and Budget
and the Respondent Union shall ordered as jointly and severally
liable for reimbursing all claims of present and former unit
employees who were coerced to join the Respondent Union on
or since September 13, 2012, for any initiation fees, periodic
dues, assessments, or any other monies they may have paid or

70 Having concluded that Sprain Brook illegally made the decision to
contract out the housekeeping, nursing, and dietary aides and cooks
departments, Sprain Brook is legally responsible as to what happens to
those employees thereafter. Thus, to the extent that some of the em-
ployees were not rehired by the contractors, those employees would be
entitled to reinstatement and backpay from September 12, 2012, to such
time as they receive an unconditional offer of reinstatement. As to
those former Sprain Brook employees rehired by the contractors, they
would also be entitled to reinstatement by Sprain Brook. Their em-
ployment with the contractors shall be considered as interim employ-
ment for purposes of calculating backpay owed by Sprain Brook. Any
Sprain Brook employees who had their employment with the contrac-
tors terminated for any reason (other than gross misconduct) would be
entitled to backpay starting from the date of their termination to such
time as they receive unconditional offers of reinstatement. Remington
Lodging, above at slip op. at 17.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD60
that may have been withheld from their pay pursuant to the
Budget-Local 713 Agreement, together with interest as pre-
scribed in New Horizons, supra, compounded daily as pre-
scribed in Kentucky River Medical Center, supra.
I also shall order the Respondent Sprain Brook and the Re-
spondent Union to post the Board’s standard Notice to Employ-
ees and Notice to Employees and Members, respectively.
In addition, in light of the close factual connection between
the unfair labor practices committed by Respondent Sprain
Brook and the Respondent Union, I will further order each
Respondent to post a signed copy of the other Respondent’s
Notice, which will be provided by the Region, in the same
places and under the same conditions as each posts its own
Notice.
The General Counsel requests that I order an affirmative
bargaining order requiring Respondent Sprain Brook (or any
other appropriate respondent) to bargain upon request within 15
days of a Board Order; bargain on request for a minimum of 15
hours of week until an agreement or lawful impasse is reached
or until the parties agree to a respite in bargaining; and to pre-
pare written bargaining progress reports every 15 days to the
Regional Director and a copy of the report to the Union with an
opportunity to reply (See, GC Br. at 78, 79).
For the reasons set forth in Caterair International, 322
NLRB 64 (1996), I find that an affirmative bargaining order is
warranted in this case as a remedy for Respondent Sprain
Brook’s unlawful withdrawal of recognition. The Board has
consistently held that an affirmative bargaining order is “the
traditional, appropriate remedy for an 8(a)(5) refusal to bargain
with the lawful collective-bargaining representative of an ap-
propriate unit of employees.” Id. at 68; Anderson Lumber, 360
NLRB No. 67 (2014), quoting Caterair.
In Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727,
738 (D.C. Cir 2000), the court summarized its requirement that
an affirmative bargaining order “must be justified by a reasoned
analysis that includes an explicit balancing of three considera-
tions: ‘(1) the employees’ Section 7 rights; (2) whether other
purposes of the Act override the rights of employees to choose
their bargaining representatives; and (3) whether alternative
remedies are adequate to remedy the violations of the Act.’”
An affirmative bargaining order in this case vindicates the Sec-
tion 7 rights of the unit employees who were denied the bene-
fits of collective bargaining through their designated repre-
sentative by Respondent Sprain Brook’s withdrawal of recogni-
tion, its resultant refusal to bargain collectively with 1199
SEIU, and its recognition of Local 713 and by Local 713’s
acceptance of that recognition. It is particularly appropriate
here, where Respondent Sprain Brook not only discharged the
unit employees and significantly changed their terms and con-
ditions of employment without notice to or bargaining with
1199 SEIU, but also overrode the unit employees’ exercise of
their Section 7 rights by their choice to be represented by 1199
SEIU, and further conditioned their continued employment on
their acceptance of representation by Local 713. Indeed, here-
in, Respondent Sprain Brook committed a hallmark unfair labor
practice violation when it discharged Nicholson, Warren, and
Nogueria in violation of Section 8(a)(3) and (1) of the Act. The
Board has long held that the discharge of a union supporter is
one of the most flagrant forms of interference with Section 7
rights because it tends to reinforce the fear of employees that
they will lose their employment if they persist in engaging in
union activity. Michael’s Painting, Inc., 337 NLRB 860
(2002); A.P.R.A Fuel Oil, 309 NLRB 480, 481 (1992). An
affirmative bargaining order also serves the policies of the Act
by fostering meaningful collective bargaining and industrial
peace. It removes Respondent Sprain Brook’s incentive to de-
lay bargaining in the hope of discouraging support for 1199
SEIU.
For all the foregoing reasons, I find that an affirmative bar-
gaining order consistent with the General Counsel’s request is
necessary to fully remedy the violations in this case.
The General Counsel also requests that I order a responsible
management official read the notice to the assembled employ-
ees or to have a Board agent read the notice in the presence of a
responsible management official (GC Br. at 78). I note that the
Board has held that in determining whether additional remedies
are necessary to fully dissipate the coercive effect of unlawful
discharges and other unfair labor practices, it has broad discre-
tion to fashion a remedy to fit the circumstances of each case.
Casino San Pablo, 361 NLRB No. 148, slip op. at 6–7 (2014);
Excel Case Ready, 334 NLRB 4, 4–5, (2001). In the instant
case, I find that the unfair labor practices of the Respondent
Sprain Brook justify the additional remedy of a notice reading.
I agree with the General Counsel that Sprain Brook is a recidi-
vist Respondent, having found that it was managing the facility
at a time that the Board found violations of the Act, citing to
Sprain Brook Manor Nursing Home, LLC, supra. The Re-
spondent, as described above, also engaged in numerous viola-
tions of Section 8(a)(5) and (1) of the Act. In addition, the
Respondent discharged Nicholson, Warren, and Nogueira, the
primary supporters of 1199 SEIU, in violation of Section
8(a)(3) and (1) of the Act. The Board has held that the unlaw-
ful discharges of union supporters are highly coercive. Excel
Case Ready, supra at 5.
I find that a public reading of the remedial notice is appro-
priate here. The Respondent’s violations of the Act are suffi-
ciently serious and widespread such that a reading of the notice
is necessary to dissipate as much as possible any lingering ef-
fects of the Respondent’s unfair labor practices. Accordingly, I
will require the attached notice to the read publicly by the Re-
spondent’s representative or by a Board agent in the presence
of the Respondent’s representative.
Finally, in light of the serious, extensive and pervasive na-
ture of the unfair labor practices found to have been committed
by Respondent Sprain Brook, it is recommended that a broad
cease and desist order be issued. Hickmott Foods, 242 NLRB
1357 (1979); Evergreen America Corp., 348 NLRB 178 (2006),
at 264; Remington Lodging, supra.
ORDER
On these findings of facts and conclusions of law and on the
entire record, I issue the following recommended71

71 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Section 102.48 of the Rules, be
SPRAIN BROOK MANOR REHAB, LLC 61
A. The Respondent Sprain Brook, as a successor to Sprain
Brook Manor Nursing Home, LLC, shall
1. Cease and desist from
(a) Refusing to bargain collectively with 1199 SEIU United
Healthcare Workers East, as the exclusive collective-bargaining
representative of the employees in the following appropriate
bargaining units (the units) concerning wages, hours, and other
terms and conditions of employment:
All full-time and regular part-time and per-diem dietary aides
and cooks employed by the employer at the facility located at
77 Jackson Avenue, Scarsdale, New York, but excluding all
other employees, including office clerical employees, manag-
ers and guards, professional employees and supervisors as de-
fined by the Act.
All full-time and regular part-time and per-diem housekeep-
ing employees and laundry employees/assistants, employed
by the employer at the facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employees, in-
cluding office clerical employees, managers and guards, pro-
fessional employees and supervisors as defined by the Act.
All full-time and regular part-time and per-diem licensed
practical nurses, certified nurses’ aides, and geriatric
techs/activity aides, employed by the employer at the facility
located at 77 Jackson Avenue, Scarsdale, New York, but ex-
cluding all other employees, including office clerical employ-
ees, managers and guards, professional employees and super-
visors as defined by the Act.
(b) Withdrawing recognition from 1199 SEIU as the exclu-
sive collective-bargaining representative of the unit employees.
(c) Granting assistance to Local 713, International Brother-
hood of Trade Unions (Respondent Union) and recognizing it
as the exclusive collective-bargaining representative of the unit
employees at a time when Local 713 IBOTU did not represent
an unassisted and uncoerced majority of the employees in the
unit, and when 1199 SEIU was the exclusive collective-
bargaining representative of the unit employees.
(d) Applying the terms and conditions of employment of the
collective-bargaining agreement between the Respondent
Budget and Local 713 Agreement (Budget-Local 713), includ-
ing its union-security provisions, to the unit employees at a
time when the Local 713 did not represent an unassisted and
uncoerced majority of the employees in the unit, and when
1199 SEIU was the exclusive collective-bargaining representa-
tive of the unit employees.
(e) Subcontracting unit work without first notifying 1199
SEIU and giving it a meaningful opportunity to bargain regard-
ing the decision to subcontract unit work.
(f) Discharging unit employees without first notifying 1199
SEIU and giving it a meaningful opportunity to bargain regard-
ing the decision to discharge unit employees.

adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(g) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
(h) Threatening employees with discharge or other reprisals
if the unit employees choose to be represented by 1199 SEIU,
their exclusive collective-bargaining representative.
(i) Discharging or refusing to offer employment to individu-
als because of their union or protected concerted activity.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Withdraw and withhold all recognition from Local 713
IBOTU as the exclusive collective-bargaining representative of
the unit employees, unless and until that labor organization has
been certified by the National Labor Relations Board as the
exclusive representative of those employees.
(b) Refrain from applying the terms and conditions of em-
ployment of a collective-bargaining agreement with Local 713,
including its union-security provisions, to the unit employees,
unless and until that labor organization has been certified by the
National Labor Relations Board as the exclusive representative
of those employees.
(c) Rescind the unlawful contract arrangements with Re-
spondents Pinnacle and Budget and restore the status quo ante
to ensure meaningful bargaining.
(d) Recognize and, on request, bargain with 1199 SEIU as
the exclusive collective-bargaining representative of the unit
employees concerning wages, hours, and other terms and con-
ditions of employment. Bargaining on request with 1199 SEIU
shall be at a minimum of 15 hours per week until an agreement
or lawful impasse is reached or until the parties agree to a res-
pite in bargaining; and to prepare written bargaining progress
reports every 15 days to the Regional Director, Region 2, and a
copy of the report to the Union with an opportunity to reply.
(e) Notify 1199 SEIU in writing of all changes made to the
unit employees’ terms and conditions of employment on and
after September 12, 2012, and, on request of 1199 SEIU, re-
scind any or all changes and restore terms and conditions of
employment retroactively to September 12, 2012.
(f) Make the unit employees whole, with interest, for any
losses sustained due to the unlawfully imposed changes in wag-
es, hours, benefits, and other terms and conditions of employ-
ment in the manner set forth in the remedy section of this deci-
sion.
(g) Within 14 days from the date of this Order, offer full re-
instatement to all employees discharge from Sprain Brook on
September 12, 2012, and not reemployed by Sprain Brook, to
their former jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
(h) Make whole all employees discharged from Sprain Brook
on September 12, 2012, and jointly reemployed by Sprain
Brook and the Respondent contractors for any loss of earnings
and other employee benefits.
(i) Make whole all employees discharge from Sprain Brook
on September 12, 2012, and not reemployed by the Respondent
contractors for any loss of earnings and other benefits suffered
as a result their unlawful discharge, in the manner set forth in
the remedy section of this decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD62
(j) Compensate the unit employees for any adverse income
tax consequences of receiving their backpay in one lump sum,
and file with the Regional Director for Region 2, within 21
days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
award to the appropriate calendar year(s).
(k) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges and, within 3
days thereafter, notify the affected employees in writing that
this has been done and that the unlawful discharges will not be
used against them in any way.
(l) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(m) Jointly and severally with the Local 713, reimburse all
unit employees for all initiation fees, dues, and other moneys
paid by them or withheld from their wages pursuant to the
Budget-Local 713 Agreement, with interest.
(n) Within 14 days after service by the Region, post at its fa-
cility in Scarsdale, New York a copy of the attached notice
marked “Appendix A.” Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by
Respondent Sprain Brook’s authorized representative, shall be
posted by Respondent Sprain Brook and maintained for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. In addition
to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an
internet site, or other electronic means, if the Respondent
Sprain Brook customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent
Sprain Brook to ensure that the notices are not altered, defaced,
or covered by any other material.
If Respondent Sprain Brook has gone out of business or
closed the facility involved in this proceeding, the Respondent
shall duplicate and mail, at its own expense, a copy of the no-
tice to all current and former employees employed by Respond-
ent Sprain Brook at its Scarsdale, New York facility at any time
since June 15, 2009.
(o) Within 14 days after service by the Region, post at the
same places and under the same conditions as in the preceding
subparagraph signed copies of the Respondent Union’s notice
to members and employees marked “Appendix F.”
(p) Furnish the Regional Director with signed copies of Re-
spondent Sprain Brook’s notice to employees marked “Appen-
dix A” for posting by the Respondent Union at its facilities
where notices to members and employees are customarily post-
ed. Copies of the notice, to be furnished by the Regional Direc-
tor, shall be signed and returned to the Regional Director
promptly.
(q) Within 21 days after service by the Region, file with the
Regional Director for Region 2, a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent Sprain Brook has taken to com-
ply.
B. The Respondent Sprain Brook, Respondent Pinnacle, and
Respondent Budget, as joint employers, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with 1199 SEIU United
Healthcare Workers East, as the exclusive collective-bargaining
representative of the employees in the following appropriate
bargaining unit (the unit) concerning wages, hours, and other
terms and conditions of employment:
All full-time and regular part-time and per-diem dietary aides
and cooks employed by the employer at the facility located at
77 Jackson Avenue, Scarsdale, New York, but excluding all
other employees, including office clerical employees, manag-
ers and guards, professional employees and supervisors as de-
fined by the Act.
(b) Withdrawing recognition from 1199 SEIU as the exclu-
sive collective-bargaining representative of the unit employees.
(c) Granting assistance to Local 713, International Brother-
hood of Trade Unions (Respondent Union) and recognizing it
as the exclusive collective-bargaining representative
of the unit employees at a time when Local 713 IBOTU did
not represent an unassisted and uncoerced majority of the em-
ployees in the unit, and when 1199 SEIU was the exclusive
collective-bargaining representative of the unit employees.
(d) Applying the terms and conditions of employment of the
collective-bargaining agreement between the Respondent
Budget and Local 713 (Budget-Local 713) Agreement, includ-
ing its union-security provisions, to the unit employees at a
time when the Local 713 did not represent an unassisted and
uncoerced majority of the employees in the unit, and when
1199 SEIU was the exclusive collective-bargaining representa-
tive of the unit employees.
(e) Discharging unit employees without first notifying 1199
SEIU and giving it a meaningful opportunity to bargain regard-
ing the decision to discharge unit employees.
(f) Bypassing 1199 SEIU and directly offering unit employ-
ees continued employment in the unit on the basis of terms and
conditions of employment different from those enjoyed under
predecessor Sprain Brook and on condition that they be repre-
sented by Local 713.
(g) Altering the unit employees’ terms and conditions of em-
ployment without first notifying 1199 SEIU and bargaining to
agreement or impasse regarding such changes in the wages,
hours, and working conditions of the unit employees.
(h) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
(i) Threatening employees with discharge or other reprisals if
the unit employees choose to be represented by 1199 SEIU,
their exclusive collective-bargaining representative.
(j) Discharging or refusing to offer employment to individu-
als because of their union or protected concerted activity.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
SPRAIN BROOK MANOR REHAB, LLC 63
(a) Withdraw and withhold all recognition from Local 713
IBOTU as the exclusive collective-bargaining representative of
the unit employees, unless and until that labor organization has
been certified by the National Labor Relations Board as the
exclusive representative of those employees.
(b) Refrain from applying the terms and conditions of em-
ployment of a collective-bargaining agreement with Local 713,
including its union-security provisions, to the unit employees,
unless and until that labor organization has been certified by the
National Labor Relations Board as the exclusive representative
of those employees.
(c) Recognize and, on request, bargain with 1199 SEIU as
the exclusive collective-bargaining representative of the unit
employees concerning wages, hours, and other terms and con-
ditions of employment.
(d) Notify 1199 SEIU in writing of all changes made to the
unit employees’ terms and conditions of employment on and
after September 12, 2012, and, on request of 1199 SEIU, re-
scind any or all changes and restore terms and conditions of
employment retroactively to September 12, 2012.
(e) Make the unit employees whole, with interest, for any
losses sustained due to the unlawfully imposed changes in wag-
es, hours, benefits, and other terms and conditions of employ-
ment in the manner set forth in the remedy section of this deci-
sion.
(f) Make whole all unit employees discharged since Sep-
tember 12, 2012, for any loss of earnings and other benefits
suffered as a result their unlawful discharge, in the manner set
forth in the remedy section of this decision.
(g) Compensate the unit employees for any adverse income
tax consequences of receiving their backpay in one lump sum,
and file with the Regional Director for Region 2, within 21
days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
award to the appropriate calendar year(s).
(h) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges and, within 3
days thereafter, notify the affected employees in writing that
this has been done and that the unlawful discharges will not be
used against them in any way.
(i) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(j) Jointly and severally with the Local 713, reimburse all
unit employees for all initiation fees, dues, and other moneys
paid by them or withheld from their wages pursuant to the
Budget-Local 713 Agreement, with interest.
(k) Within 14 days after service by the Region, post at the
Respondent Sprain Brook’s facility in Scarsdale, New York a
copy of the attached notice marked “Appendix B.” Copies of
the notice, on forms provided by the Regional Director for Re-
gion 2, after jointly signed by the authorized representatives of
Respondents Sprain Brook, Pinnacle, and Budget shall be post-
ed by Respondent Sprain Brook and maintained for 60 consecu-
tive days in conspicuous places, including all places where
notices to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an
internet site, or other electronic means, if the Respondent
Sprain Brook customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent
Sprain Brook to ensure that the notices are not altered, defaced,
or covered by any other material.
If Respondent Sprain Brook has gone out of business or
closed the facility involved in this proceeding, the Respondents
Sprain Brook, Pinnacle, and Budget shall jointly duplicate and
mail, at their own expense, a copy of the notice to all current
and former unit employees employed by Respondent Sprain
Brook at its Scarsdale, New York facility at any time since
September 12, 2012.
(l) Within 21 days after service by the Region, file with the
Regional Director for Region 2, a sworn certification of respon-
sible officials on a form provided by the Region attesting to the
steps that Respondents Sprain Brook, Pinnacle, and Budget
have taken to comply.
C. The Respondent Sprain Brook and Respondent Budget,
as joint employers, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively with 1199 SEIU United
Healthcare Workers East, as the exclusive collective-bargaining
representative of the employees in the following appropriate
bargaining units (the unit) concerning wages, hours, and other
terms and conditions of employment:
All full-time and regular part-time and per-diem licensed
practical nurses, certified nurses’ aides, and geriatric
techs/activity aides, employed by the employer at the facility
located at 77 Jackson Avenue, Scarsdale, New York, but ex-
cluding all other employees, including office clerical employ-
ees, managers and guards, professional employees and super-
visors as defined by the Act.
(b) Withdrawing recognition from 1199 SEIU as the exclu-
sive collective-bargaining representative of the unit employees.
(c) Granting assistance to Local 713, International Brother-
hood of Trade Unions (Respondent Union) and recognizing it
as the exclusive collective-bargaining representative of the unit
employees at a time when Local 713 IBOTU did not represent
an unassisted and uncoerced majority of the employees in the
unit, and when 1199 SEIU was the exclusive collective-
bargaining representative of the unit employees.
(d) Applying the terms and conditions of employment of the
collective-bargaining agreement between the Respondent
Budget and Local 713 IBOTU (Budget-Local 713) Agreement,
including its union-security provisions, to the unit employees at
a time when the Local 713 did not represent an unassisted and
uncoerced majority of the employees in the unit, and when
1199 SEIU was the exclusive collective-bargaining representa-
tive of the unit employees.
(e) Bypassing 1199 SEIU and directly offering unit employ-
ees continued employment in the unit on the basis of terms and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD64
conditions of employment different from those enjoyed under
predecessor Sprain Brook and on condition that they be repre-
sented by Local 713.
(f) Altering the unit employees’ terms and conditions of em-
ployment without first notifying 1199 SEIU and bargaining to
agreement or impasse regarding such changes in the wages,
hours, and working conditions of the unit employees.
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
(h) Threatening employees with discharge or other reprisals
if the unit employees choose to be represented by 1199 SEIU,
their exclusive collective-bargaining representative.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Withdraw and withhold all recognition from Local 713
IBOTU as the exclusive collective-bargaining representative of
the unit employees, unless and until that labor organization has
been certified by the National Labor Relations Board as the
exclusive representative of those employees.
(b) Refrain from applying the terms and conditions of em-
ployment of a collective-bargaining agreement with Local 713,
including its union-security provisions, to the unit employees,
unless and until that labor organization has been certified by the
National Labor Relations Board as the exclusive representative
of those employees.
(c) Recognize and, on request, bargain with 1199 SEIU as
the exclusive collective-bargaining representative of the unit
employees concerning wages, hours, and other terms and con-
ditions of employment.
(d) Notify 1199 SEIU in writing of all changes made to the
unit employees’ terms and conditions of employment on and
after September 12, 2012, and, on request of 1199 SEIU, re-
scind any or all changes and restore terms and conditions of
employment retroactively to September 12, 2012.
(e) Make the unit employees whole, with interest, for any
losses sustained due to the unlawfully imposed changes in wag-
es, hours, benefits, and other terms and conditions of employ-
ment in the manner set forth in the remedy section of this deci-
sion.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Jointly and severally with the Local 713, reimburse all
unit employees for all initiation fees, dues, and other moneys
paid by them or withheld from their wages pursuant to the
Budget-Local 713 Agreement, with interest.
(h) Within 14 days after service by the Region, post at the
Respondent Sprain Brook’s facility in Scarsdale, New York a
copy of the attached notice marked “Appendix C.” Copies of
the notice, on forms provided by the Regional Director for Re-
gion 2, after being jointly signed by the authorized representa-
tives of Respondents Sprain Brook and Budget, shall be posted
by Respondent Sprain Brook and maintained for 60 consecutive
days in conspicuous places, including all places where notices
to employees are customarily posted. In addition to physical
posting of paper notices, notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet
site, or other electronic means, if the Respondent Sprain Brook
customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent Sprain
Brook to ensure that the notices are not altered, defaced, or
covered by any other material.
If Respondent Sprain Brook has gone out of business or
closed the facility involved in this proceeding, Respondent
Sprain Brook and Budget shall jointly duplicate and mail, at
their own expense, a copy of the notice to all current and for-
mer employees employed by Respondent Sprain Brook at its
Scarsdale, New York facility at any time since September 12,
2012.
(i) Within 21 days after service by the Region, file with the
Regional Director for Region 2, a sworn certification of respon-
sible officials on a form provided by the Region attesting to the
steps that the Respondents Sprain Brook and Budget have taken
to comply.
D. The Respondent Budget, as a successor to Commercial
Building Maintenance Corp., its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with 1199 SEIU United
Healthcare Workers East, as the exclusive collective-bargaining
representative of the employees in the following appropriate
bargaining units (the unit) concerning wages, hours, and other
terms and conditions of employment:
All full-time and regular part-time and per-diem housekeep-
ing employees and laundry employees/assistants, employed
by the employer at the facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employees, in-
cluding office clerical employees, managers and guards, pro-
fessional employees and supervisors as defined by the Act.
(b) Withdrawing recognition from 1199 SEIU as the exclu-
sive collective-bargaining representative of the unit employees.
(c) Granting assistance to Local 713, International Brother-
hood of Trade Unions (Respondent Union) and recognizing it
as the exclusive collective-bargaining representative
of the unit employees at a time when Local 713 IBOTU did
not represent an unassisted and uncoerced majority of the em-
ployees in the unit, and when 1199 SEIU was the exclusive
collective-bargaining representative of the unit employees.
(d) Applying the terms and conditions of employment of the
collective-bargaining agreement between the Respondent
Budget and Local 713 IBOTU (Budget-Local 713) Agreement,
including its union-security provisions, to the unit employees at
a time when the Local 713 did not represent an unassisted and
uncoerced majority of the employees in the unit, and when
1199 SEIU was the exclusive collective-bargaining representa-
tive of the unit employees.
(e) Bypassing 1199 SEIU and directly offering unit employ-
ees continued employment in the unit on the basis of terms and
conditions of employment different from those enjoyed under
SPRAIN BROOK MANOR REHAB, LLC 65
predecessor Sprain Brook and on condition that they be repre-
sented by Local 713.
(f) Altering the unit employees’ terms and conditions of em-
ployment without first notifying 1199 SEIU and bargaining to
agreement or impasse regarding such changes in the wages,
hours, and working conditions of the unit employees.
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
(h) Threatening employees with discharge or other reprisals
if the unit employees choose to be represented by 1199 SEIU,
their exclusive collective-bargaining representative.
(i) Discharging or refusing to offer employment to individu-
als because of their union or protected concerted activity.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Withdraw and withhold all recognition from Local 713
IBOTU as the exclusive collective-bargaining representative of
the unit employees, unless and until that labor organization has
been certified by the National Labor Relations Board as the
exclusive representative of those employees.
(b) Refrain from applying the terms and conditions of em-
ployment of a collective-bargaining agreement with Local 713,
including its union-security provisions, to the unit employees,
unless and until that labor organization has been certified by the
National Labor Relations Board as the exclusive representative
of those employees.
(c) Recognize and, on request, bargain with 1199 SEIU as
the exclusive collective-bargaining representative of the unit
employees concerning wages, hours, and other terms and con-
ditions of employment.
(d) Notify 1199 SEIU in writing of all changes made to the
unit employees’ terms and conditions of employment on and
after October 1, 2014, and, on request of 1199 SEIU, rescind
any or all changes and restore terms and conditions of employ-
ment retroactively to October 1, 2014.
(e) Make the unit employees whole, with interest, for any
losses sustained due to the unlawfully imposed changes in wag-
es, hours, benefits, and other terms and conditions of employ-
ment in the manner set forth in the remedy section of this deci-
sion.
(f) Make whole all unit employees discharged since October
1, 2014, for any loss of earnings and other benefits suffered as a
result their unlawful discharge, in the manner set forth in the
remedy section of this decision.
(g) Compensate the unit employees for any adverse income
tax consequences of receiving their backpay in one lump sum,
and file with the Regional Director for Region 2, within 21
days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
award to the appropriate calendar year(s).
(h) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges and, within 3
days thereafter, notify the affected employees in writing that
this has been done and that the unlawful discharges will not be
used against them in any way.
(i) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(j) Jointly and severally with the Local 713, reimburse all
unit employees for all initiation fees, dues, and other moneys
paid by them or withheld from their wages pursuant to the
Budget-Local 713 Agreement, with interest.
(k) Within 14 days after service by the Region, post at the
Respondent Sprain Brook’s facility in Scarsdale, New York a
copy of the attached notice marked “Appendix D.” Copies of
the notice, on forms provided by the Regional Director for Re-
gion 2, after being signed by the authorized representative of
Respondent Budget, shall be posted by Respondent Sprain
Brook and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, or other elec-
tronic means, if the Respondent Sprain Brook customarily
communicates with its employees by such means. Reasonable
steps shall be taken by the Respondent Sprain Brook to ensure
that the notices are not altered, defaced, or covered by any other
material.
If Respondent Sprain Brook has gone out of business or
closed the facility involved in this proceeding, Respondent
Budget shall duplicate and mail, at its own expense, a copy of
the notice to all current and former unit employees employed
by Respondent Sprain Brook at its Scarsdale, New York facility
at any time since October 1, 2014.
(l) Within 21 days after service by the Region, file with the
Regional Director for Region 2, a sworn certification of respon-
sible officials on a form provided by the Region attesting to the
steps that the Respondents Sprain Brook and Budget have taken
to comply.
E. The Respondent Commercial Building Maintenance
Corp. (CBM), as a successor to non-party Confidence, its offic-
ers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively, on request, with 1199
SEIU United Healthcare Workers East, as the exclusive collec-
tive-bargaining representative of the employees in the follow-
ing appropriate bargaining unit (the unit) concerning wages,
hours, and other terms and conditions of employment:
All full-time and regular part-time and per–diem housekeep-
ing employees and laundry employees/assistant, employed by
the Employer at the facility located at 77 Jackson Avenue,
Scarsdale, New York but excluding all other employees, in-
cluding office clerical employees, managers and guards, pro-
fessional employees and supervisors as defined by the Act.
(b) Withdrawing recognition from 1199 SEIU as the exclu-
sive collective-bargaining representative of the unit employees.
(c) Altering the unit employees’ terms and conditions of em-
ployment without first notifying 1199 SEIU and bargaining to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD66
agreement or impasse regarding such changes in the wages,
hours, and working conditions of the unit employees.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Recognize and, on request, bargain with 1199 SEIU as
the exclusive collective-bargaining representative of the unit
employees concerning wages, hours, and other terms and con-
ditions of employment.
(b) Notify 1199 SEIU in writing of all changes made to the
unit employees’ terms and conditions of employment on and
after July 1, 2013, and, on request of 1199 SEIU, rescind any or
all changes and restore terms and conditions of employment
retroactively to July 1, 2013.
(c) Make the unit employees whole, with interest, for any
losses sustained due to the unlawfully imposed changes in wag-
es, hours, benefits, and other terms and conditions of employ-
ment in the manner set forth in the remedy section of this deci-
sion.
(d) Compensate the unit employees for any adverse income
tax consequences of receiving their backpay in one lump sum,
and file with the Regional Director for Region 2, within 21
days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
award to the appropriate calendar year(s).
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at the
Respondent Sprain Brook’s facility in Scarsdale, New York, a
copy of the attached notice marked “Appendix E.” Copies of
the notice, on forms provided by the Regional Director for Re-
gion 2, after being signed by Respondent CBM’ s authorized
representative, shall be posted by the Respondent Sprain Brook
and maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, or other electronic means, if Re-
spondent Sprain Brook customarily communicates with its
employees by such means. Reasonable steps shall be taken by
the Respondent Sprain Brook to ensure that the notices are not
altered, defaced, or covered by any other material.
If Respondent Sprain Brook has gone out of business or
closed the facility involved in this proceeding, Respondent
CBM shall duplicate and mail, at its own expense, a copy of the
notice to all current and former unit employees employed by
Respondent CBM at the Sprain Brook Scarsdale, New York
facility at any time since July 1, 2013.
(g) Within 21 days after service by the Region, file with the
Regional Director for Region 2, a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that Respondent CBM has taken to comply.
F. The Respondent Union, Local 713 International Brother-
hood of Trade Unions, its officers, agents and representatives,
shall
1. Cease and desist from
(a) Accepting assistance and recognition from Respondent
Sprain Brook, Pinnacle and Budget as the exclusive collective
bargaining representative of the employees in the units de-
scribed below (the unit) at a time when the Respondent Union
did not represent an uncoerced majority of the employees in the
unit, and when 1199 SEIU was the exclusive collective bar-
gaining representative of the employees in that unit.
(b) Maintaining and enforcing the Budget-Local 713 Agree-
ment, or any extension, renewal, or modification thereof, in-
cluding its union-security provisions, so as to cover the unit
employees, unless and until it has been certified by the Board
as the collective-bargaining representative of those employees.
(c) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Decline recognition as the exclusive collective bargaining
representative of the unit employees, unless and until Local 713
IBOTU has been certified by the National Labor Relations
Board as the exclusive representative of those employees.
(b) Jointly and severally with the Respondents Sprain Brook,
Pinnacle and Budget, reimburse all present and former unit
employees for all initiation fees, dues, and other moneys paid
by them or withheld from their wages pursuant to the Budget-
Local 713 Agreement, with interest.
(c) Preserve and, within 14 days of a request or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents all records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the
amount due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its
headquarters and at its offices and meeting halls in Garden
City, New York, copies of the attached notice marked “Appen-
dix F.”72 Copies of the notice, on forms provided by the Re-
gional Director for Region 2, after being signed by the Re-
spondent Union’s authorized representative, shall be posted by
the Respondent Union and maintained for 60 consecutive days
in conspicuous places, including all places where notices to
employees and members are customarily posted. In addition to
physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an
internet site, or other electronic means, if the Respondent Union
customarily communicates with its members by such means.
Reasonable steps shall be taken by the Respondent Union to

72 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
SPRAIN BROOK MANOR REHAB, LLC 67
ensure that the notices are not altered, defaced, or covered by
any other material.
(e) Within 14 days after service by the Region, post at the
same places and under the same conditions as in the preceding
subparagraph signed copies of the Respondent Sprain Brook’s
notice to employees marked “Appendix A.”
(f) Furnish the Regional Director with signed copies of the
Respondent Union’s notice to members and employees marked
“Appendix F” for posting by the Respondent Sprain Brook at
its facility where notices to employees are customarily posted.
Copies of the notice be furnished by the Regional Director,
shall be signed and returned to the Regional Director promptly.
(g) Within 21 days after service by the Region, file with the
Regional Director for Region 2, a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent Union has taken to comply
Dated, Washington D.C. April 29, 2016
APPENDIX A
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
To organize
To form, join, or assist a union
To bargain collectively through representatives of their
own choice
To act together with other employees for your benefit
and protection
To choose not to engage in any of these protected ac-
tivities.
WE WILL NOT refuse to bargain collectively, on request,
with 1199 SEIU United Healthcare Workers East (1199
SEIU) as the exclusive collective-bargaining representative
of the employees in the following appropriate bargaining
unit (the unit) concerning wages, hours, and other terms and
conditions of employment:
All full-time and regular part-time and per-diem dietary aides
and cooks; all full-time and regular part-time and per-diem
housekeeping employees and laundry employees/assistants;
all full-time and regular part-time and per-diem licensed prac-
tical nurses, certified nurses’ aides, and geriatric techs/activity
aides, employed by the employer at the facility located at 77
Jackson Avenue, Scarsdale, New York, but excluding all oth-
er employees, including office clerical employees, managers
and guards, professional employees and supervisors as de-
fined by the Act.
WE WILL NOT withdraw recognition from 1199 SEIU as the
exclusive collective-bargaining representative of the unit em-
ployees and thereafter fail and refuse to recognize 1199 SEIU
as the exclusive collective-bargaining representative of the unit
employees.
WE WILL NOT change the unit employees’ wages, hours, or
other terms and conditions of employment without first notify-
ing 1199 SEIU and giving it a meaningful opportunity to bar-
gain about such changes to agreement or impasse regarding
such changes in the wages, hours, and working conditions of
the unit employees.
WE WILL NOT notify the unit employees that the unit employ-
ees will be discharged without first providing 1199 SEIU with
notice and a meaningful opportunity to bargain regarding the
decision to discharge unit employees.
WE WILL NOT subcontract unit work without first providing
1199 SEIU with notice and a meaningful opportunity to bargain
regarding the decision to subcontract unit work.
WE WILL NOT discharge or otherwise discriminate against
you for supporting 1199 SEIU United Healthcare Workers East,
or any other labor organization.
WE WILL NOT threaten employees with discharge or other re-
prisals if the unit employees choose to be represented by 1199
SEIU, their exclusive collective-bargaining representative.
WE WILL NOT grant assistance to Local 713 International
Brotherhood of Trade Unions (IBOTU) or recognize it as the
exclusive collective-bargaining representative of the unit em-
ployees at a time when the IBOTU does not represent an unas-
sisted and uncoerced majority of the employees in the unit, and
when 1199 SEIU is the exclusive collective-bargaining repre-
sentative of the unit employees.
WE WILL NOT apply the terms and conditions of employment
of our collective-bargaining agreement with IBOTU (the Budg-
et-Local 713 Agreement), or any extensions, renewals, or modi-
fications of that agreement, including its union-security provi-
sions, to the unit employees unless and until the IBOTU has
been certified by the National Labor Relations Board as the
collective-bargaining representative of those employees.
WE WILL NOT promise our employees wage increases, medi-
cal benefits or other improvements in their terms and conditions
of employment in order to induce them to sign authorization
cards for or otherwise support Local 713.
WE WILL NOT discriminate against our employees in regard to
their hire or tenure of employment in order to encourage mem-
bership in Local 713.
WE WILL NOT notify the unit employees that the unit employ-
ees will be discharged without first providing 1199 SEIU with
notice and a meaningful opportunity to bargain regarding the
decision to discharge unit employees.
WE WILL NOT threaten to discharge, discharge, or take any
discipline against you for engaging in protected concerted ac-
tivities.
WE WILL NOT in any manner interfere with, restrain, or co-
erce you in the exercise of the rights guaranteed you by Section
7 of the Act.
WE WILL withdraw and withhold all recognition from Local
713 IBOTU as the exclusive collective-bargaining representa-
tive of our employees in the unit described above, unless and
until the Local 713 has been certified by the National Labor
Relations Board as the exclusive collective-bargaining repre-
sentative of those employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD68
WE WILL refrain from applying the terms and conditions of
employment of a collective-bargaining agreement with Local
713, including its union-security provisions, to the unit em-
ployees, unless and until that labor organization has been certi-
fied by the National Labor Relations Board as the exclusive
representative of those employees.
WE WILL recognize and, on request, bargain with 1199 SEIU
as the exclusive collective-bargaining representative of our
employees in the unit described above concerning wages,
hours, and other terms and conditions of employment.
WE WILL notify 1199 SEIU in writing of any changes made
on and after September 12, 2012, in the rates of pay, hours of
work, job benefits, and other terms and conditions of employ-
ment of the unit employees, and
WE WILL, on the 1199 SEIU’s request, rescind any or all of
our unlawfully imposed changes and restore the terms and con-
ditions of employment that existed prior to September 12, 2012.
WE WILL make the unit employees whole, with interest, for
any losses sustained due to our unlawfully imposed changes in
wages, benefits, and other terms and conditions of employment.
WE WILL make Alvin Nicholson, Vernon Warren, and
Clarisse Nogueira whole for any loss of earnings and other
benefits resulting from their unlawful discharge, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Order,
offer full reinstatement to all unit employees discharged on and
after September 12, 2012, from Sprain Brook Manor Rehab,
LLC, to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
WE WILL make whole all unit employees discharged from
Sprain Brook Manor Rehab, LLC on and after September 12,
2012, for any loss of earnings and other benefits suffered as a
result of their unlawful discharge, less any net interim earnings,
with interest.
WE WILL compensate the unit employees for any adverse in-
come tax consequences of receiving their backpay in one lump
sum, and we will file a report with the Regional Director, for
Region 2, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allocating
the backpay award to the appropriate calendar year(s).
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the September 12, 2012
discharge of the unit employees, and we will, within 3 days
thereafter, notify the affected employees in writing that this has
been done and that we will not use the unlawful layoffs against
them in any way.
WE WILL, jointly and severally with Local 713 IBOTU, re-
imburse all unit employees for all initiation fees, dues, and
other moneys paid by them or withheld from their wages pur-
suant to the Budget-Local 713 Agreement, with interest.
SPRAIN BROOK MANOR REHAB, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02-CA-089480 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.
APPENDIX B
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
To organize
To form, join, or assist a union
To bargain collectively through representatives of their
own choice
To act together with other employees for your benefit
and protection
To choose not to engage in any of these protected ac-
tivities.
WE WILL NOT refuse to bargain collectively, on request, with
1199 SEIU United Healthcare Workers East (1199 SEIU) as the
exclusive collective-bargaining representative of the employees
in the following appropriate bargaining unit (the unit) concern-
ing wages, hours, and other terms and conditions of employ-
ment:
All full-time and regular part-time and per-diem dietary aides
and cooks, employed by the employer at the facility located at
77 Jackson Avenue, Scarsdale, New York, but excluding all
other employees, including office clerical employees, manag-
ers and guards, professional employees and supervisors as de-
fined by the Act.
WE WILL NOT withdraw recognition from 1199 SEIU as the
exclusive collective-bargaining representative of the unit em-
ployees and thereafter fail and refuse to recognize 1199 SEIU
as the exclusive collective-bargaining representative of the unit
employees.
WE WILL NOT bypass 1199 SEIU and directly offer unit em-
ployees continued employment in the unit on the basis of terms
and conditions of employment different from those enjoyed and
on condition that they be represented by Local 713.
WE WILL NOT change the unit employees’ wages, hours, or
other terms and conditions of employment without first notify-
ing 1199 SEIU and giving it a meaningful opportunity to bar-
SPRAIN BROOK MANOR REHAB, LLC 69
gain about such changes to agreement or impasse regarding
such changes in the wages, hours, and working conditions of
the unit employees.
WE WILL NOT grant assistance to Local 713 International
Brotherhood of Trade Unions (IBOTU) or recognize it as the
exclusive collective-bargaining representative of the unit em-
ployees at a time when the IBOTU does not represent an unas-
sisted and uncoerced majority of the employees in the unit, and
when 1199 SEIU is the exclusive collective-bargaining repre-
sentative of the unit employees.
WE WILL NOT apply the terms and conditions of employment
of our collective-bargaining agreement with IBOTU (the Budg-
et-Local 713 Agreement), or any extensions, renewals, or modi-
fications of that agreement, including its union-security provi-
sions, to the unit employees unless and until the IBOTU has
been certified by the National Labor Relations Board as the
collective-bargaining representative of those employees.
WE WILL NOT promise our employees wage increases, medi-
cal benefits or other improvements in their terms and conditions
of employment in order to induce them to sign authorization
cards for or otherwise support Local 713.
WE WILL NOT discriminate against our employees in regard to
their hire or tenure of employment in order to encourage mem-
bership in Local 713.
WE WILL NOT discharge or otherwise discriminate against
you for supporting 1199 SEIU United Healthcare Workers East,
or any other labor organization.
WE WILL NOT threaten employees with discharge or other re-
prisals if the unit employees choose to be represented by 1199
SEIU, their exclusive collective-bargaining representative.
WE WILL NOT threaten to discharge, discharge or take any
discipline against you for engaging in protected concerted ac-
tivities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL withdraw and withhold all recognition from Local
713 IBOTU as the exclusive collective-bargaining representa-
tive of our employees in the unit described above, unless and
until the Local 713 has been certified by the National Labor
Relations Board as the exclusive collective-bargaining repre-
sentative of those employees.
WE WILL refrain from applying the terms and conditions of
employment of a collective-bargaining agreement with Local
713, including its union-security provisions, to the unit em-
ployees, unless and until that labor organization has been certi-
fied by the National Labor Relations Board as the exclusive
representative of those employees.
WE WILL recognize and, on request, bargain with 1199 SEIU
as the exclusive collective-bargaining representative of our
employees in the unit described above concerning wages,
hours, and other terms and conditions of employment.
WE WILL notify 1199 SEIU in writing of any changes made
on and after September 12, 2012, in the rates of pay, hours of
work, job benefits, and other terms and conditions of employ-
ment of the unit employees, and
WE WILL, on the 1199 SEIU’s request, rescind any or all of
our unlawfully imposed changes and restore the terms and con-
ditions of employment that existed prior to September 12, 2012.
WE WILL make the unit employees whole, with interest, for
any losses sustained due to our unlawfully imposed changes in
wages, benefits, and other terms and conditions of employment.
WE WILL make Alvin Nicholson and Vernon Warren whole
for any loss of earnings and other benefits resulting from their
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Order,
offer full reinstatement to Alvin Nicholson, Vernon Warren,
and all unit employees unlawfully discharged on and after Sep-
tember 13, 2012, to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
WE WILL make whole all unit employees unlawfully dis-
charged on or after September 13, 2012, for any loss of earn-
ings and other benefits suffered as a result of their unlawful
discharge, less any net interim earnings, with interest.
WE WILL compensate the unit employees for any adverse in-
come tax consequences of receiving their backpay in one lump
sum, and we will file a report with the Regional Director, for
Region 2, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allocating
the backpay award to the appropriate calendar year(s).
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the discharges of the
unit employees, and we will, within 3 days thereafter, notify the
affected employees in writing that this has been done and that
we will not use the unlawful layoffs against them in any way.
WE WILL, jointly and severally with Local 713 IBOTU, re-
imburse all unit employees for all initiation fees, dues, and
other moneys paid by them or withheld from their wages pur-
suant to the Budget-Local 713 Agreement, with interest.
SPRAIN BROOK MANOR REHAB, LLC PINNACLE DIETARY
INC., BUDGET SERVICES, INC., A JOINT EMPLOYER
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02-CA-089480 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD70
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
To organize
To form, join, or assist a union
To bargain collectively through representatives of their
own choice
To act together with other employees for your benefit
and protection
To choose not to engage in any of these protected ac-
tivities.
WE WILL NOT refuse to bargain collectively, on request, with
1199 SEIU United Healthcare Workers East (1199 SEIU) as the
exclusive collective-bargaining representative of the employees
in the following appropriate bargaining unit (the unit) concern-
ing wages, hours, and other terms and conditions of employ-
ment:
All full-time and regular part-time and per-diem licensed
practical nurses, certified nurses’ aides, and geriatric
techs/activity aides, employed by the employer at the facility
located at 77 Jackson Avenue, Scarsdale, New York, but ex-
cluding all other employees, including office clerical employ-
ees, managers and guards, professional employees and super-
visors as defined by the Act.
WE WILL NOT withdraw recognition from 1199 SEIU as the
exclusive collective-bargaining representative of the unit em-
ployees and thereafter fail and refuse to recognize 1199 SEIU
as the exclusive collective bargaining representative of the unit
employees.
WE WILL NOT bypass 1199 SEIU and directly offer unit em-
ployees continued employment in the unit on the basis of terms
and conditions of employment different from those enjoyed and
on condition that they be represented by Local 713.
WE WILL NOT change the unit employees’ wages, hours, or
other terms and conditions of employment without first notify-
ing 1199 SEIU and giving it a meaningful opportunity to bar-
gain about such changes to agreement or impasse regarding
such changes in the wages, hours, and working conditions of
the unit employees.
WE WILL NOT grant assistance to Local 713 International
Brotherhood of Trade Unions (IBOTU) or recognize it as the
exclusive collective-bargaining representative of the unit em-
ployees at a time when the IBOTU does not represent an unas-
sisted and uncoerced majority of the employees in the unit, and
when 1199 SEIU is the exclusive collective-bargaining repre-
sentative of the unit employees.
WE WILL NOT apply the terms and conditions of employment
of our collective-bargaining agreement with IBOTU (the Budg-
et-Local 713 Agreement), or any extensions, renewals, or modi-
fications of that agreement, including its union-security provi-
sions, to the unit employees unless and until the IBOTU has
been certified by the National Labor Relations Board as the
collective-bargaining representative of those employees.
WE WILL NOT promise our employees wage increases, medi-
cal benefits or other improvements in their terms and conditions
of employment in order to induce them to sign authorization
cards for or otherwise support Local 713.
WE WILL NOT discriminate against our employees in regard to
their hire or tenure of employment in order to encourage mem-
bership in Local 713.
WE WILL NOT threaten unit employees with discharge, repris-
als or otherwise discriminate against you for supporting 1199
SEIU or if unit employees choose to be represented by 1199
SEIU, their exclusive collective-bargaining representative.
WE WILL NOT threaten to discharge, discharge, or take any
discipline against you for engaging in protected concerted ac-
tivities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL withdraw and withhold all recognition from Local
713 IBOTU as the exclusive collective-bargaining representa-
tive of our employees in the unit described above, unless and
until the Local 713 has been certified by the National Labor
Relations Board as the exclusive collective-bargaining repre-
sentative of those employees.
WE WILL refrain from applying the terms and conditions of
employment of a collective-bargaining agreement with Local
713, including its union-security provisions, to the unit em-
ployees, unless and until that labor organization has been certi-
fied by the National Labor Relations Board as the exclusive
representative of those employees.
WE WILL recognize and, on request, bargain with 1199 SEIU
as the exclusive collective-bargaining representative of our
employees in the unit described above concerning wages,
hours, and other terms and conditions of employment.
WE WILL notify 1199 SEIU in writing of any changes made
on and after September 12, 2012, in the rates of pay, hours of
work, job benefits, and other terms and conditions of employ-
ment of the unit employees, and
WE WILL, on the 1199 SEIU’s request, rescind any or all of
our unlawfully imposed changes and restore the terms and con-
ditions of employment that existed prior to September 11, 2012.
WE WILL make the unit employees whole, with interest, for
any losses sustained due to our unlawfully imposed changes in
wages, benefits, and other terms and conditions of employment.
WE WILL, jointly and severally with Local 713 IBOTU, re-
imburse all unit employees for all initiation fees, dues, and
other moneys paid by them or withheld from their wages pur-
suant to the Budget-Local 713 Agreement, with interest.
SPRAIN BROOK MANOR REHAB, LLC AND BUDGET
SERVICES, INC A JOINT EMPLOYER
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02-CA-089480 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.
SPRAIN BROOK MANOR REHAB, LLC 71
APPENDIX D
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey this
notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
To organize
To form, join, or assist a union
To bargain collectively through representatives of their
own choice
To act together with other employees for your benefit
and protection
To choose not to engage in any of these protected ac-
tivities.
WE WILL NOT refuse to bargain collectively, on request, with
1199 SEIU United Healthcare Workers East (1199 SEIU) as the
exclusive collective-bargaining representative of the employees
in the following appropriate bargaining unit (the unit) concern-
ing wages, hours, and other terms and conditions of employ-
ment:
All full-time and regular part-time and per-diem housekeep-
ing employees and laundry employees/assistants, employed
by the employer at the facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employees, in-
cluding office clerical employees, managers and guards, pro-
fessional employees and supervisors as defined by the Act.
WE WILL NOT withdraw recognition from 1199 SEIU as the
exclusive collective-bargaining representative of the unit em-
ployees and thereafter fail and refuse to recognize 1199 SEIU
as the exclusive collective-bargaining representative of the unit
employees.
WE WILL NOT change the unit employees’ wages, hours, or
other terms and conditions of employment without first notify-
ing 1199 SEIU and giving it a meaningful opportunity to bar-
gain about such changes to agreement or impasse regarding
such changes in the wages, hours, and working conditions of
the unit employees.
WE WILL NOT grant assistance to Local 713 International
Brotherhood of Trade Unions (IBOTU) or recognize it as the
exclusive collective-bargaining representative of the unit em-
ployees at a time when the IBOTU does not represent an unas-
sisted and uncoerced majority of the employees in the unit, and
when 1199 SEIU is the exclusive collective-bargaining repre-
sentative of the unit employees.
WE WILL NOT apply the terms and conditions of employment
of our collective-bargaining agreement with IBOTU (the Budg-
et-Local 713 Agreement), or any extensions, renewals, or modi-
fications of that agreement, including its union-security provi-
sions, to the unit employees unless and until the IBOTU has
been certified by the National Labor Relations Board as the
collective-bargaining representative of those employees.
WE WILL NOT promise our employees wage increases, medi-
cal benefits or other improvements in their terms and conditions
of employment in order to induce them to sign authorization
cards for or otherwise support Local 713.
WE WILL NOT discriminate against our employees in regard to
their hire or tenure of employment in order to encourage mem-
bership in Local 713.
WE WILL NOT threaten unit employees with discharge, repris-
als or otherwise discriminate against you for supporting 1199
SEIU or if unit employees choose to be represented by 1199
SEIU, their exclusive collective-bargaining representative.
WE WILL NOT threaten to discharge, discharge or take any
discipline against you for engaging in protected concerted ac-
tivities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL withdraw and withhold all recognition from Local
713 IBOTU as the exclusive collective-bargaining representa-
tive of our employees in the unit described above, unless and
until the Local 713 has been certified by the National Labor
Relations Board as the exclusive collective bargaining repre-
sentative of those employees.
WE WILL, within 14 days from the date of the Board’s Order,
offer full reinstatement to all unit employees unlawfully dis-
charged on and after October 1, 2014, to their former jobs or, if
those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make whole all unit employees unlawfully dis-
charged on and after October 1, 2014, for any loss of earnings
and other benefits suffered as a result of their unlawful dis-
charge, less any net interim earnings, with interest.
WE WILL compensate the unit employees for any adverse in-
come tax consequences of receiving their backpay in one lump
sum, and we will file a report with the Regional Director, for
Region 2, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allocating
the backpay award to the appropriate calendar year(s).
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the discharge of the unit
employees, and WE WILL, within 3 days thereafter, notify the
affected employees in writing that this has been done and that
we will not use the unlawful layoffs against them in any way.
WE WILL refrain from applying the terms and conditions of
employment of a collective-bargaining agreement with Local
713, including its union-security provisions, to the unit em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD72
ployees, unless and until that labor organization has been certi-
fied by the National Labor Relations Board as the exclusive
representative of those employees.
WE WILL recognize and, on request, bargain with 1199 SEIU
as the exclusive collective-bargaining representative of our
employees in the unit described above concerning wages,
hours, and other terms and conditions of employment.
BUDGET SERVICES, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02-CA-089480 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.
APPENDIX E
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
To organize
To form, join, or assist a union
To bargain collectively through representatives of their
own choice
To act together with other employees for your benefit
and protection
To choose not to engage in any of these protected ac-
tivities.
WE WILL NOT refuse to bargain collectively, on request, with
1199 SEIU United Healthcare Workers East (1199 SEIU) as the
exclusive collective-bargaining representative of the employees
in the following appropriate bargaining unit (the unit) concern-
ing wages, hours, and other terms and conditions of employ-
ment:
All full-time and regular part-time and per-diem housekeep-
ing employees and laundry employees/assistants, employed
by the employer at the facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employees, in-
cluding office clerical employees, managers and guards, pro-
fessional employees and supervisors as defined by the Act.
WE WILL NOT withdraw recognition from 1199 SEIU as the
exclusive collective-bargaining representative of the unit em-
ployees and thereafter fail and refuse to recognize 1199 SEIU
as the exclusive collective-bargaining representative of the unit
employees.
WE WILL NOT change the unit employees’ wages, hours, or
other terms and conditions of employment without first notify-
ing 1199 SEIU and giving it a meaningful opportunity to bar-
gain about such changes to agreement or impasse regarding
such changes in the wages, hours, and working conditions of
the unit employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL recognize and, on request, bargain with 1199 SEIU
as the exclusive collective-bargaining representative of our
employees in the unit described above concerning wages,
hours, and other terms and conditions of employment.
WE WILL notify 1199 SEIU in writing of any changes made
on and after July 1, 2013, in the rates of pay, hours of work, job
benefits, and other terms and conditions of employment of the
unit employees, and
WE WILL, on the 1199 SEIU’s request, rescind any or all of
our unlawfully imposed changes and restore the terms and con-
ditions of employment that existed prior to July 1, 2013.
WE WILL make the unit employees whole, with interest, for
any losses sustained due to our unlawfully imposed changes in
wages, benefits, and other terms and conditions of employment.
COMMERCIAL BUILDING MAINTENANCE CORP.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02-CA-089480 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.
APPENDIX F
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 no-
tice.
SPRAIN BROOK MANOR REHAB, LLC 73
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT accept assistance or recognition from Sprain
Brook Manor Rehab, LLC, Pinnacle Dietary Inc. or Budget
Services, Inc. as the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit (the
unit), at a time when we do not represent an uncoerced majority
of the employees in the unit, and when 1199 SEIU United
Healthcare Workers East is the exclusive collective-bargaining
representative of those employees:
All full-time and regular part-time and per-diem dietary aides
and cooks; all full-time and regular part-time and per-diem
housekeeping employees and laundry employees/assistants;
all full-time and regular part-time and per-diem licensed prac-
tical nurses, certified nurses’ aides, and geriatric techs/activity
aides, employed by the employer at the facility located at 77
Jackson Avenue, Scarsdale, New York, but excluding all oth-
er employees, including office clerical employees, managers
and guards, professional employees and supervisors as de-
fined by the Act.
WE WILL NOT maintain or enforce our collective bargaining
agreement with Budget Services (the Budget-Local 713
Agreement), or any modifications, renewals, or extensions of
that agreement, including its union-security provisions, so as to
cover the unit employees, unless and until we have been certi-
fied by the National Labor Relations Board as the collective-
bargaining representative of those employees.
WE WILL NOT restrain or coerce you in the exercise of your
right to refrain from protected union activity by soliciting your
membership and threatening employees with adverse conse-
quences if they refuse to join Local 713 International Brother-
hood of Trade Unions.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed by
Section 7 of the Act.
WE WILL decline recognition as the exclusive collective-
bargaining representative of Sprain Brook employees in the
unit described above, unless and until we have been certified by
the National Labor Relations Board as the exclusive collective-
bargaining representative of those employees.
WE WILL, jointly and severally with the Respondent Sprain
Brook, Pinnacle and Budget, reimburse all present and former
employees in the unit described above for all initiation fees,
dues, and other moneys paid by them or withheld from their
wages pursuant to the Budget-Local 713 Agreement, with in-
terest.
LOCAL 713, INTERNATIONAL BROTHERHOOD OF TRADE
UNIONS
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02-CA-089480 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.