Sunrise Senior Living, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 2005

344 N.L.R.B. 1246 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 151
1246
Sunrise Senior Living, Inc. and United Food & Com-
mercial Workers Union Local 880, AFL–CIO.
and Rosie Howard. Cases 8–CA–34969 and 8–
CA–35060
July 29, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On March 3, 2005, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief and one cross-
exception, and the Respondent filed a reply brief.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions3 and to adopt the recommended
Order as modified and set forth in full below.4
To remedy the Respondent’s unlawful demotion of
Coty Smith from a lead care aide position to a care aide
position, the judge ordered the Respondent to reinstate
Smith to her former position. However, as both the Gen-
eral Counsel and the Respondent point out, reinstatement
is inappropriate because Smith voluntarily resigned her
employment with the Respondent approximately 2
months after her demotion.5 Accordingly, we shall mod-
ify the recommended Order to remove the reinstatement
requirement for Smith, and we shall toll the Respon-

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by demoting employee Coty Smith because of her protected
concerted activity, we find it unnecessary to rely on the judge’s finding
that “Smith’s statements to Dousa were themselves part of the res
gestae of Smith’s protected activity of supporting the petition.”
No exceptions have been filed to the judge’s dismissal of the com-
plaint allegation that the Respondent violated Sec. 8(a)(1) by discharg-
ing Supervisor Rosie Howard.
Chairman Battista and Member Schaumber find that the Respondent
did not establish that the work stoppage advocated by Samantha Reyes
would have been unprotected. Accordingly, they do not reach the hypo-
thetical issue of whether her advocacy of an unprotected work stoppage
would have been protected.
4 We shall also substitute a new notice in conformity with the Order
as modified.
5 There is no complaint allegation, or evidence, that Smith’s volun-
tary resignation was caused by her demotion.
dent’s backpay liability to Smith as of the date of her
resignation.
We also reject the Respondent’s contention that the
discriminatees should be denied make-whole relief alto-
gether for presenting allegedly false testimony. Al-
though the judge discredited portions of the discrimina-
tees’ testimony, there is no evidence that the discrimina-
tees engaged in deliberate and malicious misconduct that
abused and undermined the integrity of the Board’s proc-
esses. Cf. Precoat Metals, 341 NLRB 1137 (2004) (in
prehearing affidavit and at hearing, employee lied about
core issue and wholly invented conversations which
likely contributed to the General Counsel’s decision to
pursue the complaint and prolonged the Board proceed-
ing); Toll Mfg. Co., 341 NLRB 832 (2004) (employee
repeatedly lied under oath about a central issue and un-
necessarily prolonged the litigation). Accordingly, we
conclude that the circumstances of this case do not re-
quire the withholding of the Board’s traditional remedies
for the Respondent’s unlawful conduct. See ABF
Freight System, Inc., v. NLRB, 510 U.S. 317, 323–324
(1994) (Board has discretion to grant full relief to em-
ployee-victim of an unfair labor practice, even if the em-
ployee lied in some respects).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Sunrise Senior Living, Inc., Parma, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about pro-
tected concerted activities.
(b) Discharging, demoting, warning, disciplining, or
otherwise discriminating against any employee for en-
gaging in protected concerted activity.
(c) 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) Within 14 days from the date of this Order, offer
Samantha Reyes full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Samantha Reyes whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against her, in the manner set forth in the
remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
SUNRISE SENIOR LIVING, INC. 1247
Samantha Reyes, and within 3 days thereafter notify her
in writing that this has been done and that the discharge
will not be used against her in any way.
(d) Make Coty Smith whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against her, from the date of her demotion until the
date of her voluntary resignation, with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
(e) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful demotion and
final warning issued to Coty Smith, and within 3 days
thereafter notify her in writing that this has been done
and that the discipline will not be used against her in any
way.
(f) 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 re-
cords 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) Within 14 days after service by the Region, post at
its facility in Parma, Ohio, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms
provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since March 10, 2004.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

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.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively question you about your or
other employees’ protected concerted activities.
WE WILL NOT discharge, demote, warn, discipline, or
otherwise discriminate against you for engaging in pro-
tected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Samantha Reyes full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Samantha Reyes whole for any loss of
earnings and other benefits resulting from the discrimina-
tion against her, less any net interim earnings, plus interest.
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 Samantha Reyes, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the discharge will not be used against her
in any way.
WE WILL make Coty Smith whole for any loss of earn-
ings and other benefits resulting from the discrimination
against her, from the date of her demotion until the date
of her voluntary resignation, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful demotion and final warning issued to Coty Smith, and
WE WILL, within 3 days thereafter, notify her in writing
that this has been done and that the discipline will not be
used against her in any way.
SUNRISE SENIOR LIVING, INC.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1248
Susan Fernandez, Esq., for the General Counsel.
Fred Freilicher, Esq. and Thomas P. Murphy, Esq. (Hunton &
Williams), for the Respondent.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in Cleveland, Ohio, on September 30 and October 1 and 14,
2004. The United Food & Commercial Workers Union Local
880, AFL–CIO (the Union), filed the charge in Case 8–CA–
34969–1 on April 7, 2004, and an amended charge on June 23,
2004. Rosie Howard, an individual, filed the charge in Case 8–
CA–35060–1 on May 18, 2004. The Director for Region 8 of
the National Labor Relations Board (the Board) issued the con-
solidated complaint on June 30, 2004. The complaint alleges
that Sunrise Senior Living, Inc. (the Respondent) violated Sec-
tion 8(a)(1) of the Act by: interrogating employees about con-
certed protected activities; discharging one employee and de-
moting another because they submitted a petition complaining
to the Respondent about terms and conditions of employment;
and discharging one of its supervisors because of her refusal to
commit an unfair labor practice. The Respondent filed a timely
answer in which it denied that it committed any violation of the
Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Delaware corporation, with an office and
place of business in Parma, Ohio (the Parma facility), operates
assisted living facilities. In conducting this business it annually
receives at the Parma facility goods valued in excess of $50,000
directly from points outside the State of Ohio and derives gross
revenues in excess of $100,000. The Respondent admits, and I
find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent operates a chain of long-term care facilities
for elderly individuals. The allegations in this case involve the
Respondent’s Parma, Ohio facility—one of five locations it has
in the Cleveland area. The Parma facility is divided into two
sections. The “reminiscence” section is designed for the facil-
ity’s more severely debilitated residents and is kept locked.
Many of these residents have Alzheimer’s disease or other
forms of dementia and require intense supervision. The other
section is referred to as “assisted living.” Although this section
is designed for the facility’s less severely debilitated residents,
its inhabitants nevertheless include many who require assis-
tance with daily activities such as dressing, bathing, and groom-
ing. Approximately half of the Parma facility’s residents are
incontinent.
Direct care to residents is generally provided by care aides1
who are not professional nurses. A number of the care aides
are designated as “lead” care aides who are responsible both for
providing direct care and overseeing the care provided by other
care aides. Samantha Reyes and Coty Smith, two of the indi-
viduals the General Counsel alleges the Respondent discrimina-
torily disciplined, were both lead care aides at the time the chal-
lenged discipline was imposed. In that capacity, Reyes and
Smith were designated to receive complaints from care aides
about payroll record errors. The care aides, including those
designated as lead care aides, have not been represented by a
labor organization at any time relevant to this case.
The care aides and lead care aides are directly supervised by
the facility’s resident care coordinator. The resident care coor-
dinator’s responsibilities include maintaining adequate staffing
at the facility, helping to hire and train care aides and lead care
aides, and disciplining care aides and lead care aides. The resi-
dent care coordinator also has authority over the care aides’
schedules, although the lead care aides are responsible for
communicating employees’ scheduling desires to the resident
care coordinator for approval. Rosie Howard, an alleged dis-
criminatee in this case, was the facility’s resident care coordi-
nator from the fall of 2002 until her discharge in March 2004.2
As resident care coordinator, Howard was one of five depart-
ment heads at the facility. The department heads report di-
rectly to the facility’s executive director.
At the time when the violations are alleged to have occurred,
the Parma facility had approximately 68 residents, of whom 21
were in the reminiscence unit. Depending on the shift, there
were generally anywhere between three and seven care aides on
duty at the facility to attend to the residents’ needs. The care
aides duties were extensive and included: dressing, bathing, and
toileting the residents; ordering and dispensing incontinence
products; making the residents’ beds and taking off soiled lin-
ens; removing soiled incontinence products from residents;
transferring residents from beds to chairs; vacuuming and
cleaning carpets; taking meal orders from residents; setting the
dining room table and serving meals; hand feeding residents
who required such help; cleaning up after meals; and washing
dishes.
During the period leading up to the alleged violations in this
case, some care aides at the facility found that the Respondent
was requiring them to perform duties in addition to those they
were accustomed to performing. These duties included wash-
ing the residents’ clothes, carrying soiled incontinence products
out of the facility, assessing whether residents in distress should
be referred for care outside the facility, participating directly in
the residents’ recreational activities, and dispensing prescrip-

1 The Respondent refers to these individuals as “care managers,” but
the parties agree that they are rank-and-file employees—not manage-
ment officials or supervisors for purposes of the Act. This is also true
of those designated as “lead” care managers. In order to avoid any
confusion about their status as employees under Sec. 2(3) of the Act, I
refer to these individuals throughout the decision as “care aides” and
“lead care aides.” The Parma facility generally has between 25 and 35
such employees.
2 The parties agree that Howard was a supervisor within the meaning
of Sec. 2(11) of the Act during the relevant time period.
SUNRISE SENIOR LIVING, INC. 1249
tion medication and ointments.3 A number of care aides and
lead care aides felt that they were being overburdened with
expanded responsibilities. Two testified that whenever other
types of employees did not want to do their job duties, the care
aides would end up having to perform the tasks. Some care
aides routinely expressed their dissatisfaction with the job by
joking that they were going to quit or were not going to appear
when scheduled to work. Such comments were made to How-
ard on a daily basis when she was resident care coordinator, but
she did not take the statements seriously and typically gave
responses such as: “I’ll be here, and I know you will be too”;
“You do what you have to do;” or, simply, “I’ll see you tomor-
row.” The record does not show any instance when a care aide
actually failed to appear for work after Howard reacted in this
manner.
On March 1, 2004, shortly before the violations are alleged
to have occurred, a new executive director started at the Parma
facility. This individual, Susan Johnson, had begun working
for the Respondent 6 weeks earlier, on January 15, as an “ex-
ecutive director in training,” and the Parma facility was her first
assignment as an actual executive director. To help Johnson
adjust to her new responsibilities, the Respondent arranged to
have two executive directors from other facilities each spend 1
day a week at the Parma facility for a period of 6 weeks. One
of those executive directors, Natalie Antosh, managed the Re-
spondent’s Rocky River facility and came to Parma every
Wednesday. The other, Ann Worley, was the executive direc-
tor at the Respondent’s Wooster facility and came to Parma on
Tuesdays.
B. The Care Aides’ Petition and Discussion of Work Stoppage
On Friday, March 5—just 4 days after Johnson began as the
Parma facility’s executive director—care aides created, and
began to circulate, a petition stating that they were overbur-
dened by their expanded responsibilities. The petition com-
plained not only about the additional duties it said care aides
had been performing, but also about the prospect of having
“colostomy care”—i.e., care of a resident’s colostomy bag4
added to their responsibilities. The petition stated that the care
aides felt colostomy care went “above and beyond what [they]
should be doing as unskilled care [aides] in assisted living.”
Twenty-four care aides and lead care aides signed the petition.
The evidence did not show that any of the petition’s proponents
used threats or undue pressure to obtain the signatures on the
petition. Some of the care aides read the petition before signing

3 There was testimony that it is impermissible under Ohio law for
care aides who are not licensed practical nurses or registered nurses to
“pass” medications to residents in assisted living homes. Nothing in
this decision is meant as, or should be construed to be, a determination
as to whether the care aides dispensed prescription medication under
circumstances that were inconsistent with any State or local law or
regulation.
4 A colostomy bag is a plastic bag that fits over a stoma, or hole, in
the individual’s abdomen through which feces are diverted. The bag
can be opened and emptied without being removed from the individual.
The bag itself must be changed periodically, but not on a daily basis.
The Respondent’s officials testified, without contradiction, that chang-
ing a colostomy bag is a skilled task for a nurse, but that emptying a
colostomy bag is work that care aides could be trained to perform.
it, but other chose to sign based on another employee’s verbal
description of the petition’s contents. In its entirety the petition
read as follows:
To Whom It May Concern:
On behalf of all the Sunrise of Parma Care [Aides],
we would like to let it be known that we have talked
among each other and have all agreed that we are unwill-
ing to accept responsibility for any colostomy care. We do
more than our share of work here. We are responsible for
all resident care, we are laundry attendants, housekeepers,
dishwashers, servers, cooks, maintenance, marketing, re-
ceptionist, entertainment, we do activities, we are plumb-
ers, physical therapist[s], we even on occasion pass pills to
residents, we change resident bandages, we apply prescrip-
tion creams on residents. The care [aides] collect urine
and fecal specimens; we have to get all of the resident’s
weights monthly sometimes even several times. We are
subjected to verbal abuse by angered family members, and
were disrespected by the management team. We don’t
feel as if we are a part of this team, we are never included
in any decisions that are made in this home and we are the
ones that deal the most with these residents! Out of sixty-
seven residents forty-four of them are total care. Total
care is A.L.++ or Rem+. We have twelve two person as-
sist, nine feeds and forty incontinent residents, and three
hoyer lifts. We are also expected to come in and nurture
these residents and create pleasant days. The one and only
daily assignment that is assigned to the management staff,
which is to [a]ssist in the dining room in both neighbor-
hoods never occurs, which puts additional work on the
care managers. Finally, we feel that colostomy care goes
above and beyond what we should be doing as unskilled
care [aides] in assisted living. We as a group have all
reached our limit in additional job assignments and hope
this situation is addressed without further action needed.
Thank you,
[24 Signatures]
On Tuesday, March 9, three lead care aides—Nadiya
Balukh, Samantha Reyes, and Coty Smith—presented the
signed petition to Johnson. Johnson read the petition while the
three presenters waited. After reading it, Johnson asked who
had written the petition, but no one answered. Johnson told the
three presenters that the Parma facility’s care aides were over-
paid, earning more than those at other facilities in the area.
Regarding colostomy care, Johnson stated that a resident who
required that service was returning to facility regardless of the
concerns expressed by the care aides. She said that colostomy
care was “not bad,” and that they should not be worried about
providing it. Smith explained to Johnson that the petition was
not really about the colostomy care, but about the fact that
whenever other personnel at the facility did not want to do a
task, that task ended up being added to the care aides’ duties.
Smith told Johnson: “If nurses didn’t want to pass pills, the care
[aides] did it. If the toilet needed plunged, the care [aides] did
it. There were times when the care [aides] had to cook.” Reyes
commented that given their expanded duties, she did not be-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1250
lieve that the care aides were being allowed the time they
needed to provide direct care to residents. She complained that
the maintenance coordinator, William Hackett, tried to assign
tasks to care aides. One of the presenters complained that the
care aides were being required to take out the garbage. It is not
clear that Balukh said anything of substance during the meet-
ing. Johnson told the presenters that she would look into their
concerns. Despite this statement by Johnson, Smith felt that
Johnson had evidenced a negative attitude toward the petition.
On that basis, Smith told other care aides after the meeting that
she did not believe anything was going to change as a result of
their petition. A copy of petition was presented to Howard that
day, but Howard was speaking by telephone with a resident’s
family at the time, and did not discuss the petition with the
presenters.
Johnson testified that she was troubled that the employees
had chosen to communicate their complaint to her in the form
of a group petition. She said that in her view “it would have
been nice if they had come and talked to me one on one instead
of just all of a sudden presenting me with the letter.” Johnson
told Cynthia Boldan, one of the petition’s signatories, that if
employees had concerns they could be dealt with by talking to
her, and that it was not necessary to put their problems down in
a “letter.”
Minutes after the meeting at which the petition was pre-
sented, Johnson contacted Charles Latta, the area manager for
the Respondent’s northern Ohio operations, and read the peti-
tion to him. Latta told Johnson to discuss the petition with
Laurel Thomas, a corporate human resources director. Latta
also contacted his own superior about the petition. As a result
of one or more conference calls, the Respondent decided that
Johnson would meet with the care aides in small groups to dis-
cuss the petition.
After Balukh, Reyes, and Smith left the meeting at which
they presented the petition to Johnson, they paused to discuss
what had happened. Balukh said that they should give Johnson
a chance to address their concerns. Reyes disagreed, and sug-
gested that the care aides engage in a work stoppage. Smith
was present, but did not take a position for or against the idea
of a work stoppage. This discussion took place in an office that
was putatively Howard’s, but which other employees used
when they wanted to make phone calls or discuss something
out of the hearing of residents. Howard was in the office—
eight to ten feet from Reyes—during this discussion, but she
was working at a computer and did not participate in the con-
versation, or give any indication that she was paying attention
to what was being discussed.
Later on March 9, Smith told Cynthia Boldan, a care aide,
that some employees were thinking about participating in a
work stoppage because they felt overwhelmed with work, and
that a number had already agreed to participate. Smith asked
Boldan whether she would take part in such an action, and
Boldan said that she would not do so.5 The next day, March

5 I credit Boldan’s testimony that Smith asked her whether she
would be willing to participate in a work stoppage, Tr. 379–380, over
Smith’s somewhat ambiguous testimony that she does not “believe” she
posed that question, Tr. 470. In general, Boldan’s testimony regarding
10, Reyes told three care aides—Tania Kaufman, Lisa Dousa,
and Olexander Chepak—that they should not come into work
on March 11 because the care aides were staging a work stop-
page.6 Reyes said that if they came to work, they would be the
only ones on duty and would end up having to do everything by
themselves. The three care aides told Reyes that they would
not participate in a work stoppage. Kaufman testified that she
did not want to participate because there would be no one to
take care of the residents and was concerned about losing her
job. Chepak told Reyes that she would not participate because
she did not want to be fired.7
Within minutes of hearing about the work stoppage from
Reyes, Kaufman approached Howard and told her that care
aides were talking about staging a work stoppage and asked
“what should be done about it.” Howard responded in the same
vein as she typically did when care aides said that they would
not come to work; she said, “Do what you have to do.” Balukh
also approached Howard and told her that she did not “think it’s
[a] good idea” for the care aides to engage in a work stoppage.
Howard answered, “Do what you got to do.” Another lead
care aide, Katherine Sobolewski also came to Howard after
Reyes encouraged her to engage in a work stoppage. Sobo-
lewski told Howard that she was not going to participate in the
work stoppage, and Howard responded more or less as she had
to Kaufman and Balukh.8
C. Johnson Seeks Information about Petition and Work
Stoppage Discussions
As Howard was leaving the building on March 9, she passed
Johnson’s office and Johnson called her in. Johnson asked
Howard whether she had seen the care aides’ petition, and
Howard responded that she had. Then Johnson asked whether
Howard knew who wrote the petition. Howard said she did not
know, and Johnson asked whether Howard had tried to find out.
Howard said she had not, and Johnson said, in a raised voice,
“You supervise these people and you don’t know who wrote
the letter?” Johnson told Howard that they had to find out who
wrote the petition. Howard pointed out that the petition was

the conversation was clearer and more certain than Smith’s. Compare,
Tr. 379–381 with 467–470. Based on that, and the witnesses’ respec-
tive demeanors, I believe Boldan’s account of the exchange was more
reliable than Smith’s. Both witnesses testified on behalf of the General
Counsel.
6 I found Reyes a less than fully credible witness based on her de-
meanor and testimony, and do not accept her claim that she never dis-
cussed a work stoppage with other employees. Tr. 402. That testimony
was contradicted by multiple witnesses, including Smith who, like
Reyes, testified on behalf of the General Counsel. Tr. 452–453, 494–
496, 559–560, 672, 692–694.
7 The record does not substantiate the Respondent’s assertion, brief
of Respondent at 51, that Reyes was encouraging employees to use sick
leave on March 11.
8 The General Counsel argues that I should not credit the testimony
of Kaufman, Balukh, and Sobolewski about what transpired when they
informed Howard about the possible work stoppage. However, I found
their testimony on this subject plausible, credible, and mutually cor-
roborative. Moreover, Howard conceded that she had heard rumors
about a work stoppage, and that when employees threatened not to
come to work she typically made responses along the lines of those
attributed to her by Kaufman, Balukh, and Sobolewski.
SUNRISE SENIOR LIVING, INC. 1251
signed by about “95 percent” of care aides, and said that she
was more concerned about the contents of the petition than
about the identity of its authors. She told Johnson that she
would not ask the care aides to divulge who had authored the
petition. That day Johnson also had a conversation about the
petition with her administrative assistant, Crystal Ferguson.
During that conversation Ferguson discussed with Johnson the
potential for a work stoppage by care aides.
On March 10, Johnson held meetings with the care managers
in the Parma facility’s private dining room in groups of be-
tween three and five. The private dining room is a glass-
enclosed area, adjacent to the resident dining area. Other man-
agement officials attending these meetings were Linda Ol-
savsky—the Respondent’s area director of resident care—and
Antosh. Johnson and Antosh did most of the talking and ques-
tioning at the meetings and their focus was on finding out how
the petition had been drafted, circulated, and signed—not on
addressing the complaints stated in the petition. They asked
whether the care aides knew who had written the petition.
When care aides denied knowledge, Johnson and Antosh some-
times posed the question repeatedly. Johnson and Antosh also
asked the care aides to reveal who had given them the petition
and to state whether they had read the petition before signing.
A number of care aides answered that they had not read the
petition, including at least one, Amber Hines, who had actually
read it, but lied because she felt intimidated during the ques-
tioning and feared her job was in jeopardy. One or more care
aides identified Reyes as the person who had solicited them to
sign the petition. Another care aide, Lisa Dousa, told Johnson
that Reyes and Smith had drafted the petition.9 Olsavsky told
the care aides that they would receive training on how to pro-
vide colostomy care. Johnson did not tell the care aides that the

9 I found Dousa to be lacking in credibility, and reject most of her
testimony about the creation of the petition, her discussions with em-
ployees and company officials, and matters disputed by other wit-
nesses. Dousa testified in an unusually stiff, almost mechanical, man-
ner, and did not appear to be responding spontaneously or candidly to
questions. Moreover, Dousa’s hostility towards Howard for demoting
her from the position of “lead” care aide, and towards Smith for replac-
ing her in that position, was palpable during her testimony. Dousa said
that Howard wanted to “get rid” of her. She volunteered negative in-
formation in an effort to portray Howard and Smith in an unfavorable
light. At times she also strained to minimize her own role in the crea-
tion of the petition that so disturbed Johnson. Moreover, much of
Dousa’s testimony was implausible. For example, she testified that
even after she told proponents of the work stoppage that she opposed it
and would not participate, those same individuals repeatedly confided
in her about their efforts, and asked her to assist in convincing others to
participate. Despite finding Dousa an unreliable witness, I do credit her
testimony that she told Johnson that Smith and Reyes had written the
petition. I can see no motivation for Dousa, who testified on behalf of
the Respondent, to falsely provide this testimony, which undercut the
Respondent’s claim that Johnson did not know who wrote the petition
when she issued the challenged discipline. See American Pine Lodge
Nursing, 325 NLRB 98 fn. 1 (1997) (“A trier of fact is not required to
accept the entirety of a witness’ testimony, but may believe some and
not all of what a witness says.”), enf. granted in part, denied in part 164
F.3d 867 (4th Cir. 1999); Excel Containers, Inc., 325 NLRB 17 fn. 1
(1997) (nothing is more common in all kinds of judicial decisions than
to believe some and not all, of a witness’ testimony).
meetings were voluntary or that their jobs were not in jeop-
ardy.10 In fact, when one care aide asked Johnson whether the
person who wrote the letter was going to be in trouble, Johnson
provided no assurances to her. A number of care aides testified
that they feared for their jobs during Johnson’s questioning
about the petition. One care aide, Paula Fuller, was visibly
shaking when she left the interrogation.
After the care aide meetings, but before leaving the facility
on March 10, Johnson heard from multiple sources that care
aides were planning to stage a work stoppage on March 11.
Hackett, the facility’s maintenance coordinator, told Johnson
that Kaufman and Balukh had expressed concern to him that
care aides would not appear for work the following day.
Chepak came to Johnson and told her about the possibility that
the care aides would not appear for work. Johnson asked
Chepak whether she thought that Howard knew about it and
Chepak answered that she believed Howard did because con-
versations regarding the work stoppage had taken place in an
area that was only 6 feet from Howard’s office at a time when
the office door was open.
After receiving the information about a potential work stop-
page, and discussing it with Latta, Johnson arranged to have
managers and personnel from nearby facilities present at the
Parma facility on March 11 to cover for the expected absentees.
In addition, Latta called the Respondent’s other executive di-
rectors in the Cleveland area and told them to be available in
the event of a work stoppage at the Parma facility. As a result
of telephone discussions on the evening of March 10, the Re-
spondent decided to place Smith, Reyes, and Howard on paid
administrative leave pending investigation.
On the morning of March 11, individuals from nearby facili-
ties were at the Parma facility prepared to work if, as the Re-
spondent feared, care aides failed to report for work. However,
no work stoppage occurred. Every care aide who was sched-
uled to work at the Parma facility on March 11 appeared for
work. Not a single care aide abandoned her duties before the
end of the shift, or, as far as the record shows, was even tardy.
Although no work stoppage had occurred, Johnson ques-
tioned approximately 12 employees individually on March 11
about employees’ discussions regarding such a work action.
She also questioned the employees again about the petition and
the identity of its author or authors. This questioning took
place in Johnson’s office, and in at least some instances was

10 In general, I did not find Johnson a very credible witness based on
her demeanor and testimony and do not credit her self-serving asser-
tions that she put the care aides at ease by opening each meeting with a
statement that attendance was voluntary and that the care aides’ jobs
were not in jeopardy. Johnson’s testimony on this score was given
without much conviction, generally in response to suggestive questions
by Respondent’s counsel. Tr. 122–123, 135, 137. Moreover, although
Johnson’s claim was supported by the testimony of two other manage-
ment officials, I consider it very telling that not one of the care aides
who testified, including those called by the Respondent, corroborated
Johnson’s claim that she had provided these assurances. To the con-
trary, care aides credibly testified that they were afraid their jobs were
in jeopardy during the meetings and\or that Johnson did not assure
them that the meetings were voluntary and would not result in job loss.
Tr. 345–347, 374–376, 508, 538–539.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1252
attended by Antosh, who took notes. The Respondent’s offi-
cials did not inform the employees that the meetings were vol-
untary or that their jobs were not in jeopardy. A number of
those questioned informed Johnson that Reyes had been en-
couraging care aides not to come to work on March 11. John-
son asked at least one care aide whether Smith was involved in
preparing the petition.
D. Howard, Reyes, and Smith Placed on Administrative Leave
On March 11, the Respondent placed Smith, Reyes, and
Howard on paid administrative leave pending an investigation.
Johnson called Smith at her home at 6:30 a.m. and told her to
come to the facility that morning even though Smith’s shift did
not start until mid-afternoon. Smith arrived at the facility at
about 10 a.m. and was escorted to a meeting with Johnson,
Antosh, and Olsavsky in the private dining room. Johnson told
Smith that she was being placed on administrative leave pend-
ing an investigation. No one told Smith why she was being
placed on leave, and she did not ask. She was not shown any-
thing in writing, or told when she would hear from the Respon-
dent about the matter. That same day, Smith called Dousa after
receiving information that led her to believe Dousa had told
management that Smith was one of the authors of the petition.
Smith felt that Dousa was responsible for getting her in trouble,
and she called to confront Dousa about implicating her in the
writing of the petition. During the phone call, Dousa denied
implicating Smith, although the record indicates that she had, in
fact, told Johnson that Smith and Reyes wrote the petition.
Smith did not yell at, or threaten, Dousa during the conversa-
tion. According to both Smith and Dousa, there had been fric-
tion between them for some time—going back, it seems, to
when Howard demoted Dousa from lead care aide and pro-
moted Smith to the lead position. According to Smith, Dousa
had repeatedly tried to get her in trouble. At any rate, Dousa
told management about the March 11 phone call from Smith.
Reyes appeared for work as scheduled on March 11. During
her shift, she was summoned to Johnson’s office, where John-
son and Antosh were present. At this meeting, Reyes was
placed on administrative leave. Reyes asked why this was be-
ing done, but no one provided an explanation. Reyes said she
wanted to speak to Howard, who she believed would explain
the reason for the Respondent’s action, but Antosh would not
permit her to use the phone and threatened to call the police
unless Reyes left the premises immediately.
When Howard appeared for work on March 11, she was
called into a meeting with Johnson, Antosh, and Olsavsky.
Johnson asked Howard whether she knew about the work stop-
page. Howard responded that she had “heard talk” about em-
ployees not coming to work, but had treated it as a joke. John-
son placed Howard on a paid administrative leave of unspeci-
fied duration pending an investigation. When Howard asked
why this was being done, Antosh responded that they did not
have to give her a reason. Antosh told Howard to turn over all
of the Respondent’s papers and property. Howard asked if she
could retrieve a printer from her office that was her personnel
property, and Antosh said that she should wait at the back door
of the facility where the printer would be brought to her. An-
tosh also told Howard to surrender her pager because “there’s
no reason” for Howard “being contacted if she’s on a leave.”
During its investigation, the Respondent obtained signed
statements from a number of witnesses. However, it did not
obtain signed witness statements from Smith, Reyes, or How-
ard.
E. Smith Demoted
On March 16, 5 days after placing Smith on administrative
leave, the Respondent demoted her from the lead care position
and issued her a final warning.11 Johnson decided upon this
discipline after discussions with Latta and others. Latta credi-
bly testified that the Respondent had concluded that Smith
“probably was involved in some way about writing the letter
and encouraging employees to call off.” However, the discipli-
nary paperwork did not mention the petition or the work stop-
page, but rather stated that the reason for the action was that
Smith had “harass[ed] a fellow employee.” The harassment
referred to by the disciplinary paperwork was the phone call
that Smith made to Dousa on March 11. Before presenting
Smith with the final warning letter, the Respondent did not ask
her to state her side of the story. Indeed, Johnson admitted that
she had made the determination to issue the final warning even
before she met with Smith. When presented with the demotion
and final warning that described the supposed harassment,
Smith admitted that she spoke to Dousa, but denied harassing
her. Smith signed the warning notice, but wrote on it that she
had had problems with Dousa in the past and did not know that
she was harassing her on March 11. The disciplinary paper-
work does not specify the harassing language that the discipline
was based on, nor did Johnson, Antosh, Olsavsky or Latta re-
count any such language during their testimony. The Respon-
dent does not claim that Smith made threats or used obscenities.
Prior to March 2004, Smith had received written warnings from
the Respondent in April 2002 (for wearing improper attire and
leaving the facility to get breakfast during worktime), July 2002
(for failure to provide the appropriate level of care to residents),
and in January 2003 (for an improper schedule change). None
of Smith’s prior discipline was for harassment or other miscon-
duct directed at another employee. These prior warnings were
not mentioned in the Respondent’s report relating to Smith’s
demotion and final warning.
The General Counsel presented evidence of lesser discipline
received by other employees in an effort to show that Smith
was treated more severely than individuals who committed
comparable offenses, but who had not been involved with the
petition or work stoppage discussions. This included a verbal
warning that the Respondent issued in July 2001 to Cheryl
Whitt, a lead care aide, after determining that Whitt had yelled
at another employee in the presence of residents and family
members. Whitt was apparently not demoted from her lead
position or even given what the Respondent considered to be a
written warning, although the verbal warning was documented
in writing. In December 2002, the Respondent counseled Whitt
again, this time because Whitt had pointed to a picture of an-
other employee and made a throat-cutting gesture. Based on
the Respondent’s reports regarding these incidents, it does not

11 Smith’s demotion was not accompanied by a reduction in pay.
SUNRISE SENIOR LIVING, INC. 1253
appear that Whitt received a written warning in that instance
either, nor was she demoted or otherwise punished for the con-
duct.
The General Counsel also showed that the Respondent is-
sued a written warning to the facility’s maintenance coordina-
tor, Mark Kelly, in October 2002, after Dousa complained that
he had behaved towards her in a way she found threatening.
According to Dousa’s written complaint, Kelly threw paper-
work Dousa was completing on the floor, screamed at her, drew
back his hand as if preparing to strike her, and “got in
[Dousa’s] face so close that [she] could lick him.” The disci-
plinary report stated that the allegations could not be substanti-
ated through witnesses but that this was “not the first time”
Kelly’s “demeanor ha[d] come across the [executive director’s]
desk,” and that Kelly had jeopardized the Respondent’s “repu-
tation” and “placed Sunrise in a very awkward position because
[he had] affected team members.” In the report, the Respon-
dent warned Kelly that if he engaged in conduct that created a
threatening or hostile environment in the future, the Respondent
would discharge him. In addition, Kelly was directed to par-
ticipate in an employee counseling program. Dousa also re-
ceived a notice from the Respondent regarding the incident
with Kelly. The notice observed that Dousa was constantly “at
odds” with Kelly and that this was “causing mayhem” and
making other employees “uncomfortable.” Dousa was directed
to participate in the same employee counseling program as
Kelly, but apparently did not receive what the Respondent des-
ignated as a warning of any kind.
The Respondent introduced disciplinary paperwork stating
that Shanda Davis, a care aide, was terminated in July 2001 for
verbally abusing another care aide. Davis’ verbal abuse in-
cluded threats of bodily harm. The Respondent based the ter-
mination not only on that incident, but on the fact that Davis
had received warnings twice in the previous 2 months—once
for conduct involving a coworker and once for problems “meet-
ing resident and family needs.”
F. Reyes Discharged
After Reyes was placed on leave, no one from the Respon-
dent contacted her until March 15, when Johnson directed her
to come to the facility the following day. Reyes appeared on
March 16 and met with Johnson and Antosh. Antosh asked
whether Reyes had written the petition. Reyes said that she did
not know who wrote the petition. Johnson said that the investi-
gation found that Reyes had actively encouraged a work stop-
page. Reyes denied this. Antosh told Reyes that she was ter-
minated and had to leave. This discipline decision was made
by Johnson, as a result of discussions with Latta and others.
Reyes was not given, or shown, a written statement of the dis-
cipline or the reasons for it, during the meeting. Later, the Re-
spondent told Reyes that she could send a request by certified
mail for the disciplinary report, but Reyes never made such a
request. The Respondent’s report, which is dated March 16,
states that Reyes was discharged under the rule prohibiting
employees from “[c]ommitting any unlawful act on the com-
munity’s property that brings discredit to Sunrise, which affects
its normal operation.” The disciplinary report explains that
Reyes “was telling several care [aides] to call off for 3/11/04.”
Johnson signed the disciplinary report, but during her testimony
she was unable to specify the “unlawful act” that Reyes had
committed. She stated, instead, that Reyes had put the facility’s
license at risk by advocating a work stoppage. Reyes had not
received any other discipline from the Respondent between the
time of her most recent hiring on August 18, 2002, and the time
of her discharge on March 14, 2004.
The Respondent introduced documentary evidence showing
that it had discharged approximately 10 employees since 2000
for failing to appear for scheduled work without calling the
Respondent. According to Latta, under those circumstances the
Respondent would first attempt to contact the individuals to let
them know they were scheduled to work. If the individuals
could not be reached, and did not explain their absences, they
were terminated because the Respondent concluded that they
no longer wished to continue in the position. The Respondent
also showed that during the same time period it had terminated
employees for a variety of other reasons, including: leaving
work without permission; doing personal laundry at facility
while on-duty; sleeping on the job; insubordination; poor per-
formance; and, abusing a resident.
G. Howard Discharged
The record is clear that the Respondent considered Howard
an exemplary supervisor prior to March 9, 2004. Howard’s last
performance appraisal, dated November 19, 2003, awarded her
an overall score of “5” on a scale of 1 to 5—the highest possi-
ble rating.12 The appraisal states that Howard “epitomizes
Sunrise philosophies day in day out.” The section on customer
service reads: “Look up Sunrise Customer Service—see Rosie
for details—SUPER JOB !!” (Capitalization in Original.)
Regarding her communications with other department heads,
the appraisal states that Howard “has developed trust in the
other Dept. Heads which has lead to the Whole Home working
more cohesively.” The appraisal concluded that Howard
“knows, practices and preaches the Sunrise way!!!” The Re-
spondent had never disciplined Howard prior to March 2004. It
was common for Howard to work at the Parma facility 12 to 18
hours a day, 5 or 6 days a week.
The day after Johnson informed Howard that she was being
placed on administrative leave, Howard took a trip out-of-town
until March 17. During the period prior to her return, Howard
did not attempt to contact officials of the Respondent to tell
them how to reach her or to tell her side of the story.13 On
March 15, Johnson called Howard’s residence and left one or
more messages asking Howard to come in for an interview.
Howard did not retrieve these messages until March 18. In the
meantime, on March 16, prior to talking to Howard about the
investigation, Johnson executed disciplinary paperwork termi-
nating Howard’s employment. Johnson arrived at this disci-

12 In this rating system, “1” standards for “review needed,” “2” for
“development needed,” “3” for “quality,” “4” for “model,” and “5” for
“exemplary.”
13 Howard stated that she left town after being placed on administra-
tive leave because the Respondent had not given her a timeline for its
decision. She stated that she had been working hard and that her
mother had recently died, and that these factors played into her decision
to leave town and visit her daughter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1254
pline after discussions with Latta and others. The same day
that Johnson executed paperwork for Howard’s termination,
she sent a letter to Howard by regular mail, airborne express,
and a courier service. The letter stated that unless the Respon-
dent heard from Howard by the close of business the next day,
March 17, a disciplinary decision would be made “with or
without” Howard’s “side of the story.” The attempts to deliver
the letter by airborne express and courier were not successful.
Howard credibly testified that she had never seen the letter, but
Johnson testified, also credibly, that she had not received any-
thing indicating that the copy of the letter sent by regular mail
was undeliverable.14
When Howard retrieved her recorded phone messages on
March 18, she discovered that Johnson had left one. Howard
contacted Johnson by phone, and the two arranged to meet at
the Parma facility the next day. On March 19, Howard met
with Johnson and Antosh at the facility. Antosh told Howard
that she was being terminated. Antosh said that this was being
done because “there was going to be a walkout and you didn’t
tell Sue [Johnson] about it.” At this meeting, the Respondent
did not give Howard an opportunity to provide a written state-
ment. However, Howard verbally stated that she did not think
the talk of a work stoppage was serious. Howard refused to
sign the disciplinary paperwork.
The paperwork for Howard stated that the reason for her dis-
charge was violation of the Respondent’s policy against
“[c]ommitting any unlawful act on the community’s property
which affects its normal operation.” However, during her trial
testimony, Johnson could not identify any unlawful action by
Howard. Instead, she stated that Howard’s supposed acquies-
cence in a staff work stoppage could have put the facility’s
license at risk. In addition to the language about an “unlawful
act,” the disciplinary paperwork states that Howard’s “[f]ailure
to inform the Executive Director to prevent a complete walk
out” of care aides and “complete lack of action” when ap-
proached by staff about this had “endanger[ed] residents.”
In an effort to show that it had treated Howard the same as
other supervisory personnel who engaged in comparable con-
duct, the Respondent introduced evidence showing that it dis-
charged Michelle Myers, who supervised the kitchen at the
Respondent’s Rocky River facility, for “lack of communication
with Executive Director regarding serious employee relations
issues in a timely fashion.”
H. The Complaint Allegations
The complaint alleges that the Respondent violated section
8(a)(1) of the Act: on about March 11, 2004, and on about
March 16, 2004, by unlawfully interrogating employees con-
cerning their protected concerted activities and the protected
concerted activities of others; on about March 16, 2004, by
discriminatorily demoting Coty Smith because she had concert-
edly complained about wages, hours, and working conditions;
on March 16, 2004, by discharging employee Samantha Reyes
because she had concertedly complained about wages, hours,
and working conditions; and, on about March 19, 2004, by

14 The record does not show whether anyone other than Howard had
access to her mail deliveries.
discharging Rosie Howard, a supervisor, because she refused to
commit unfair labor practices.
III. ANALYSIS AND DISCUSSION
A. Alleged Violations of Section 8(a)(1)
1. Interrogations
The General Counsel alleges that the Respondent unlawfully
interrogated employees on March 10 when Johnson, Antosh,
and Olsavsky met with small groups of employees and ques-
tioned them about the petition, and on March 11 when Johnson
called care aides to her office one-at-a-time to question them
about the petition and employee discussions regarding a work
stoppage.15 The Board has held that an interrogation is unlaw-
ful if, in light of the totality of the circumstances, it reasonably
tends to interfere with, restrain, or coerce employees in the
exercise of their Section 7 rights. Matthews Readymix, Inc.,
324 NLRB 1005, 1007 (1997), enfd. in part 165 F.3d 74 (D.C.
Cir. 1999); Emery Worldwide, 309 NLRB 185, 186 (1992);
Liquitane Corp., 298 NLRB 292, 292–293 (1990). Relevant
factors include whether proper assurances were given concern-
ing the questioning, the background and timing of the interro-
gation, the nature of the information sought, the identity of the
questioner, and the place and method of the interrogation.
Stoody Co., 320 NLRB 18, 18–19 (1995); Rossmore House
Hotel, 269 NLRB 1176, 1177–1178 (1984), affd. 760 F.2d
1006 (9th Cir. 1985).
Given the totality of the circumstances in this case, I con-
clude that the Respondent engaged in interrogations on March
10 and 11 that reasonably tended to coerce employees in the
exercise of their Section 7 rights. The persons acting as inter-
rogators included the highest-ranking official at the Parma fa-
cility—Johnson, the executive director—and in most cases one
or two management officials from outside the facility. The
Board has viewed the fact that an interrogator is a high-level
supervisor as one factor supporting a conclusion that question-
ing was coercive. See, e.g., Stoody, supra. In addition, the
individuals being questioned were generally low-level employ-
ees who did not report directly to the executive director. More-
over, Johnson was not only a high-level supervisor, but also
one who had only recently come to the facility. As a result, the
employees had very little chance to get to know her and limited
experience regarding her management style and proclivities
with respect to discipline. Because of these factors, employees
would reasonably tend to find an interrogation by Johnson even
more intimidating than it might otherwise be.
The way in which Johnson and Antosh conducted the ques-
tioning was also coercive. They did not assure the interviewees
that their participation was voluntary or that the purpose of the
interviews was something other than to discipline those who
actively supported the petition. Indeed, when one employee
sought such assurances—asking Johnson whether the person
who wrote the petition would be in trouble—Johnson declined
to reassure her. On the other hand, Johnson chastised a care

15 The General Counsel appears to have abandoned the complaint
allegation that the Respondent unlawfully interrogated employees on or
about March 16, 2004.
SUNRISE SENIOR LIVING, INC. 1255
aide, Cynthia Boldan, for signing the petition—stating that if
anyone had a problem it could be dealt with by talking directly
to Johnson, and that there was no need to write anything down
in a group letter. It is not surprising that during the questioning
Johnson betrayed hostility towards the petition, since Johnson’s
testimony indicated that in her view it was not “nice” of the
employees to present their concerns collectively in the form of
a written petition, rather than by coming to her individually.
The questions that Johnson and Antosh asked contributed to
the coercive character of the interrogations. Those questions did
not focus on understanding or addressing the concerns that the
care aides had expressed, but rather on getting the interviewees
to unmask the person or persons behind the petition and the
work stoppage discussions.16 When two employees denied
knowing who had written the petition, Johnson and Antosh did
not accept this, but rather pressed those employees again and
again to reveal the information. The coercive effect of the in-
terrogations was heightened when, days later, the Respondent
disciplined Smith, Reyes, and Howard. Other employees
would reasonably conclude that by participating in a petition, or
discussing a work stoppage, they could expose themselves to
the risk of discipline.
According to Johnson and Antosh, they made the interview-
ees relaxed and comfortable during the interrogations. This
assertion, even if true, would not change the outcome here
since the Board generally does not consider whether an interro-
gation actually coerced employees in the exercise of their rights
under the Act, but whether the interrogation would reasonably
tend to have that effect. See Williamhouse of California, 317
NLRB 699, 713 (1995); El Rancho Market, 235 NLRB 468,
471 (1978), enfd. 603 F.2d 223 (9th Cir. 1979); American
Freightways Co., 124 NLRB 146, 147 (1959). At any rate, the
claims by management witnesses that they could tell the em-
ployees were not intimidated or coerced during the interroga-
tions is rebutted by the testimony of the interviewees them-
selves. Tania Kaufmann, one of the Respondent’s own wit-
nesses, testified that it was during the questioning by Johnson

16 Johnson claimed that she had to find out who the authors of the
petition were because many of those who signed had not read it and she
wanted to talk to those employees whose views the petition expressed.
This contention does not hold water. First, the Respondent has not
provided a reasonable basis for believing that the petition did not ex-
press views held by most of its signatories. A number of care aides had
signed the petition based on a verbal description of its contents, but the
record does not show that most had done this. Nor does the record
show that care aides who signed based on a verbal description necessar-
ily did not agree with what the petition stated. Indeed, there was testi-
mony that care aides who signed the petition without reading it shared
one or more of its concerns. At any rate, if Johnson legitimately
needed more facts relating to the petition concerns she could have
ascertained those facts from people familiar with them, without seeking
to identify the petition’s organizers. As is their right under Sec. 7 of
the Act, those individual organizers had chosen to protest their working
conditions by joining with other employees to complain in a concerted
manner. Even if Johnson’s only motive in seeking their identities was
to ask them why they had organized the petition—and the record leaves
little doubt that that was not her only, or even her primary, motive—it
was coercive to question employees with the intention of unmasking
the organizers and forcing them to stand before her as individuals.
that she began to regret that she had signed the petition. An-
other care aide, Amber Hines, testified that during the question-
ing she lied and said she had not read the petition because she
feared she might loss her job. A third care aide, Boldan, testi-
fied that she was fearful of losing her job during the interroga-
tion and therefore made no response when Johnson asserted
that the employees did not have to express their complaints in
the form of a group letter. Another care aide was seen visibly
shaking when she left the interrogation.
The record contains little credible evidence that weighs in
favor of finding the interrogations noncoercive. With respect to
the March 10 interrogations, the coercive character was mini-
mally diminished by the fact that the questioning took place in
an area that was visible to others, as well as by the fact that the
interviewees were questioned in small groups, rather than in
isolation. However, even the March 10 interrogations were
coercive given the other indicia discussed above.
For the reasons discussed above I conclude that the Respon-
dent violated Section 8(a)(1) on March 10 and 11, 2004, by
coercively interrogating employees about protected concerted
activities.
2. Discipline
a. Coty Smith
In order to establish that the Respondent violated Section
8(a)(1) by demoting and issuing a final warning to Smith, the
General Counsel must show that Smith “had engaged in activity
which was both concerted and protected and that such activity
was the cause, in whole or in part, of the [discipline].” Liberty
Natural Products, Inc., 314 NLRB 630, 637 (1994), enfd. mem.
73 F.3d 369 (9th Cir. 1995) cert. denied 518 U.S. 1007 (1996);
see also Kathleen’s Bakeshop, LLC, 337 NLRB 1081, 1088–
1089 (2002), enfd. 2003 WL 22221353 (2d Cir. 2003); C.D.S.
Lines, Inc., 313 NLRB 296, 300 (1993), enfd. mem. 39 F.3d
1168 (3d Cir. 1994); Meyers Industries, 268 NLRB 493, 497
(1984), remanded by 755 F.2d 941 (D.C Cir. 1985), cert denied
474 U.S. 971 (1985), decision on remand 281 NLRB 882
(1986), affd. 835 F.2d 1481 (D.C. Cir. 1987), cert denied 487
U.S. 1205 (1988).
I conclude that the General Counsel easily establishes the
elements of a violation with respect to Smith. Smith engaged
in concerted activity by signing a group petition regarding em-
ployees’ terms and conditions of employment and acting as one
of the three employees who presented the petition to Johnson.
The Board has held that this type of group approach to an em-
ployer is concerted and protected by the Act. See, e.g., Liberty
Natural, 314 NLRB at 630 (1994); Kysor Industrial Corp., 309
NLRB 237, 237–238 (1992). There is no dispute that several of
the Respondent’s officials, including Johnson and Latta, were
aware of the petition and knew that it represented the group
action of a number of its employees.
I also conclude that Smith and other employees engaged in
protected activity by discussing whether they should engage in
a work stoppage to protest their working conditions. Employ-
ees of health care institutions have the right to engage in strikes
that are not “unlawful, violent, in breach of contract, or other-
wise indefensible.” Bethany Medical Center, 328 NLRB 1094
(1999). The Board has, on numerous occasions, found health
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1256
care institutions in violation of the Act for issuing discipline
based on an employee’s participation in a work stoppage. See,
e.g., Vencare Ancillary Services, 334 NLRB 965, 968–971
(2001), enf. denied 352 F.3d 318 (6th Cir. 2003); Bethany
Medical Center, supra; Health Care & Retirement Corp., 310
NLRB 1002, 1017–1018 (1993); East Chicago Rehabilitation
Center, Inc., 259 NLRB 996 fn. 2 (1982), enfd. 710 F.2d 397
(7th Cir. 1983), cert. denied 465 U.S. 1065 (1984); Mercy Hos-
pital Assn. 235 NLRB 681, 683 (1978). Section 8(g) of the Act
creates a narrow exception requiring labor organizations to give
advance notice before striking against health care institutions,
but the Act does not extend that exception to work stoppages
that are called by unorganized employees. Bethany Medical
Center, 328 NLRB at 1094; Mercy Hosp. Ass’n, Inc., 235
NLRB at 683 (1978); Walker Methodist Residence & Health
Care Center, 227 NLRB 1630, 1631 (1977). The Parma facil-
ity’s care aides were not, and as far as the record shows have
never been, represented by a labor organization.
At any rate, the question in this case is not whether a work
stoppage by the Parma facility’s care aides would have been
protected, since neither Smith nor any other employee actually
engaged in such an action. Rather the question is whether the
Respondent can lawfully discharge employees for discussing
whether they should engage in a work stoppage. The answer to
that question is “no.” In Magnolia Manor Nursing Home, 260
NLRB 377, 386 (1982), the Board affirmed that a nursing home
could not lawfully discharge an employee for unsuccessfully
trying to organize an employee walkout. In another case,
Three Fountains Nursing Center, 184 NLRB 294, 295 (1970), a
nursing home was found to have violated the Act by discharg-
ing a nursing aide who it believed had made statements threat-
ening and instigating a walkout. Moreover, Board precedent
makes clear that the care aides’ discussions of a work stoppage
would still be protected activity even if the work stoppage they
were discussing was not itself protected.17 See, e.g., KQED,
Inc., 238 NLRB 1, 2 (1978) (employee is engaged in protected
activity when talking in support of a work stoppage, even
though the work stoppage itself would have been forbidden),
enfd. mem. 605 F.2d 562 (9th Cir. 1979); Can-Tex Industries,
256 NLRB 863, 872 (1981) (employee’s “mere talk” in support
of a shutdown is protected activity, even if shutdown itself was

17 The cases cited earlier, finding that health care institutions vio-
lated the Act by disciplining employees who engaged in strikes, suggest
that an actual work stoppage by the care aides might well have been
protected activity. However, a definitive determination would depend
on factors such as the number of employees who participated, the
strike’s duration, and the steps employees took to safeguard the resi-
dent’s well-being before leaving the facility—details that would have to
be invented in this case since no work stoppage occurred. In making its
arguments, the Respondent assumes that the work stoppage would have
involved all the facility’s care aides and serious danger to residents.
However, the evidence it presented did not show that a widespread
work stoppage by care aides was ever a real possibility. A number of
employees testified that they had been approached by Reyes or Smith
about participating, but most of those employees also testified that they
responded by saying they would not take part. The Respondent has
failed to show that it could not have covered for the absences of a few
care aides given that it employed 25 or more such employees at the
Parma facility, and had four other facilities in the Cleveland area.
not protected), enfd. in relevant part 683 F.2d 1183 (8th Cir.
1982). That precedent is consistent with the purposes and
policies of the Act since allowing employers to discipline em-
ployees for discussing concerted protests that might fall outside
the protection of the Act would undoubtedly chill employees
from discussing other forms of concerted activity, including
many forms that are protected by Section 7.
The Respondent relies on the testimony of Kurt Haas, an ex-
pert on the regulation of long-term care providers in the state of
Ohio, to argue that such regulations required it to take the dis-
ciplinary action it did against Smith. Haas testified that a nurs-
ing home could be “in harm[,]s way, in terms of [its] license” if
it did not discipline workers who engaged in a 1-day work
stoppage. The Respondent provides no authority for its un-
stated assumption that State regulations regarding long-term
health care providers would take precedence over the policies
or provisions of the National Labor Relations Act in the event
that the two came into conflict. In any case, no conflict was
shown here since even Haas did not testify that Ohio regula-
tions required long-term providers to discipline workers for
discussing or debating whether to engage in a work stoppage.
To the contrary, Haas testified that he was not aware of a single
case in which a facility had lost its license based on employee
discussions regarding a work stoppage.
The Board has held that an employee engaged in protected
discussions of concerted activity can forfeit the protections of
the Act by making remarks that are “so offensive, defamatory
or opprobrious” as to remove the activity from the protection of
the Act. KBO, Inc., 315 NLRB 570 (1994), enfd. mem. 96 F.3d
1448 (6th Cir. 1996; Ben Pekin Corp., 181 NLRB 1025 (1970),
enfd. 452 F.2d 205 (7th Cir. 1971). Nothing in Smith’s re-
marks regarding a work stoppage removes the conversation
from the zone of protected activity. Smith did not threaten or
apply undue pressure to Boldan or anyone else in support of the
idea of a work stoppage. She did not state, or imply, that she
would use her position as lead care aide to reward or punish
anyone based on whether he or she participated. Smith was not
shown to have used obscenities or other offensive language.
The record does not even show that Smith ever said that she
herself supported, or planned to participate in, a work stoppage.
The requirement that the General Counsel show that the ad-
verse decision was motivated in whole or in part by the pro-
tected activity is satisfied in this instance by direct evidence of
animus. Johnson was annoyed that the employees had chosen
to present their complaints in the form of a group petition,
rather than by coming to her individually. Indeed, Johnson was
so disturbed by the petition that she resorted to unlawful ques-
tioning of employees in an effort to discover its authorship.
There is no doubt that the Respondent knew that Smith had
signed and presented the petition, and that it believed she had
been involved in discussions regarding a possible work stop-
page. As Latta stated, the Respondent’s prediscipline investi-
gation showed that Smith “was probably involved in some way
about writing the letter and encouraging employees to call off.”
The timing of Smith’s demotion also supports the conclusion
that the petition and the discussions of a work stoppage moti-
vated, in whole or in part, the Respondent’s decision. See De-
troit Paneling Systems, Inc., 330 NLRB 1170 (2000); Bethle-
SUNRISE SENIOR LIVING, INC. 1257
hem Temple Learning Center, 330 NLRB 1177, 1178 (2000);
American Wire Products, 313 NLRB 989, 994 (1994). The
Respondent placed Smith on involuntary leave only 2 days after
she, along with Reyes and Balukh, presented the petition to
Johnson. Smith was demoted 5 days later, on March 16, im-
mediately after the Respondent concluded that she had helped
write the letter and advocate a work stoppage.
For the reasons discussed above, I conclude that the General
Counsel has established the elements of a violation by showing
that Smith engaged in activity that was both concerted and
protected and that such activity was the cause, in whole or in
part, of the Respondent’s decision to demote her and issue the
final warning. Once the General Counsel shows that the em-
ployer’s decision to discipline an employee was motivated by
unlawful discrimination, the Respondent can avoid liability by
showing that it would have issued the same discipline even in
the absence of the protected activity. Wright Line, 251 NLRB
1083, 1087–1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Corp., 462 U.S. 393 (1983); Vico Products Co., 336
NLRB 583, 587 fn. 15 (2001), enfd. 333 F.3d 198 (D.C. Cir.
2003); see also Holder Construction Co., 327 NLRB 326
(1998) (Wright Line burdens apply to question of whether em-
ployee was discriminatorily disciplined on the basis of pro-
tected concerted activities in violation of Section 8(a)(1).). The
Respondent cannot meet that burden merely by showing that
employee misconduct also factored into the Respondent’s deci-
sion. Rather, the Respondent must show by a preponderance of
the evidence that the misconduct would have resulted in the
same discipline even in the absence of the employee’s protected
activities. Monroe Mfg. 323 NLRB 24, 27 (1997).
The Respondent claims that it disciplined Smith for harass-
ing another employee, Dousa, on the morning of March 11.
The record shows that after being ordered to meet with John-
son, Smith initiated a phone call with Dousa during which she
accused Dousa of implicating her as an author of the petition.
It was not shown that during this conversation Smith explicitly
or impliedly threatened to harm Dousa in any way, or used any
abusive, obscene or offensive language. I believe that Smith’s
statements to Dousa were themselves part of the res gestae of
Smith’s protected activity of supporting the petition. Those
statements were not shown to be so flagrant or egregious as to
warrant denying them the protection of the Act. Tri-County
Mfg. & Assembly, 335 NLRB 210, 219 (2001), enfd. 2003 WL
21675335 (6th Cir. 2003); Traverse City Osteopathic Hospital,
260 NLRB 1061 (1982), enfd. 711 F.2d 1059 (6th Cir. 1983);
see also McCarty Foods, Inc., 321 NLRB 218 (1996) (em-
ployee’s “alleged ‘harassment’ of fellow employees” about
union cards was “protected union activity”). The burden is on
the Respondent to show that Smith made statements to Dousa
that removed her from the protections of the Act. NLRB v. Bur-
nup & Sims, 379 U.S. 21, 23, and fn. 3 (1964). The Respon-
dent has not met that burden. Therefore, the Respondent’s
claim that it disciplined Smith on the basis of her phone call to
Dousa, even if true, does not excuse its unlawful motivation,
but confirms it.
Assuming that Smith’s phone call was not itself protected ac-
tivity, the Respondent has failed to carry its burden of showing
that the phone call would have resulted in the same discipline
absent Smith’s involvement in the protected petition and\or the
work stoppage discussions. Indeed, Smith was not shown to
have said anything during the phone call that would reasonably
be expected to warrant any type of discipline at all. Moreover,
before deciding to discipline Smith, the Respondent inter-
viewed Dousa, but not, as required by its own investigations
policy, Smith. This failure is an indicia of discriminatory in-
tent. See Government Employees (IBPO), 327 NLRB 676,
700–701 (1999), enfd. mem. 205 F.3d 1324 (2d Cir. 1999);
New Orleans Cold Storage & Warehouse Co., 326 NLRB
1471, 1477 (1998), enfd. 201 F.3d 592 (5th Cir. 2000). As
discussed above, the Respondent issued lesser discipline to two
employees—Cheryl Whitt and Mark Kelly—for coworker har-
assment that was at least as serious as anything attributed to
Smith. The Respondent introduced evidence showing that it
terminated another care aide, Shanda Davis, for verbally abus-
ing a coworker. However, the verbal abuse for which this
supposed comparator was terminated included threatening a co-
worker with bodily harm, something the Board has always
viewed as particularly serious. See Briar Crest Nursing Home,
333 NLRB 935, 937–938 (2001). Smith, on the other hand,
was not shown to have said anything that could even be charac-
terized as “verbal abuse,” much less as a threat of bodily harm.
The paperwork regarding the supposed comparator showed that
the Respondent based its disciplinary action on the two other
warnings she had received in the prior 2 months, one of which
also involved her conduct towards a coworker. Although Smith
had previously received warnings, that discipline was not men-
tioned in the paperwork explaining the basis for her demotion,
and the Respondent did not show that it played a part in its
decision. Smith’s prior discipline was issued more than a year
before her demotion, and did not involve conduct similar to that
for which the Respondent claims it demoted her. I find that the
evidence presented by the Respondent falls far short of proving
that it would have issued the same discipline to Smith absent
her protected activity.
For the reasons discussed above, I conclude that the Respon-
dent violated Section 8(a)(1) of the Act by demoting and issu-
ing a final warning to Coty Smith on March 16, 2004, because
she had engaged in protected concerted activity.
b. Samantha Reyes
I also find that the General Counsel has shown that the Re-
spondent’s decision to discharge Reyes was unlawfully moti-
vated. Reyes was one of the employees who presented the
petition to the Respondent, and during conversations with other
employees she advocated that they protest their working condi-
tions by engaging in a group work stoppage. Reyes did not
unduly pressure anyone to join in the petition or the work stop-
page. The record does not show that she stated, or implied, that
she would use her position as lead care aide to reward or punish
anyone depending on whether they agreed to participate, nor
did it show that she used obscenities or offensive language. In
reaching this conclusion, I considered that while advocating a
work stoppage, Reyes exaggerated the amount of support her
position had among other employees. Such exaggerations,
however, do not remove Reyes’ efforts to encourage a work
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1258
stoppage from the protection of the Act. The Board has repeat-
edly held that an employee’s overstatement of support among
other employees is mere “puffery,” not objectionable conduct.
See Brylane, L.P., 338 NLRB 538, 543 (2002); Rapera, Inc.,
333 NLRB 1287, 1288 (2001); Winco Petroleum Co., 241
NLRB 1118 (1979), enfd. 668 F.2d 973 (8th Cir. 1982); Marie
Phillips, Inc., 178 NLRB 340 (1969), enfd. 443 F.2d 667 (D.C.
Cir. 1970), cert. denied 403 U.S. 905 (1971). For these rea-
sons, as well as those discussed earlier, I conclude that Reyes’
support for the petition and the idea of a work stoppage were
protected concerted activities.
There is no doubt that Reyes’ discharge on March 16 was
motivated by these protected activities. Indeed, with respect to
Reyes’ advocacy of a work stoppage, the Respondent continues
to state that this was the reason that Reyes was discharged. The
record also leads me to conclude that Reyes’ participation in
the petition, and the belief that Reyes was an author and organ-
izer of the petition, played some part in the discipline. Johnson
was shown to be hostile toward the petition and her insistence
on trying to unmask its authors—in some cases through unlaw-
ful interrogations—leaves little doubt of her willingness to act
against those behind the petition once she identified them. As
with Smith, the Respondent did not give Reyes an opportunity
to provide her version of events before deciding on discipline—
a further indicia of discriminatory motive. See Government
Employees (IBPO), supra; New Orleans Cold Storage, supra.
Under Wright Line, supra, the Respondent can avoid liability
by showing that it would have issued the same discipline absent
the protected activity. In this case, the Respondent has not
asserted any basis for its action other than Reyes’ protected
activity of encouraging employees to engage in a work stop-
page. Therefore, the Respondent has failed to meet its burden.
The Respondent introduced evidence that other employees
were terminated because they had failed to report to work with-
out calling the Respondent. The conduct of those individuals is
not comparable. First, Reyes did not fail to report for work.
The Respondent did not show that it had ever terminated any-
one under its no call/no show policy who had not actually failed
to work as scheduled. Second, none of the other incidents of
discipline raised by the Respondent involved employees who
failed to report to work as part of a concerted protest over
working conditions. To the contrary, Latta testified that the
persons terminated under the no call\no show policy were em-
ployees who the Respondent concluded were not interested in
continued employment because they had stopped coming to
work without explanation. Under the Act, that individual mis-
conduct cannot be equated with Reyes’ protected discussions of
a concerted employee protest.
For the reasons discussed above, I conclude that the Respon-
dent violated Section 8(a)(1) of the Act by terminating the em-
ployment of Samantha Reyes on March 16, 2004, because she
had engaged in protected concerted activity.
c. Rosie Howard
The General Counsel alleges that the Respondent unlawfully
discharged Howard because she refused to carry out Johnson’s
order to discover who authored the petition. Howard was a
statutory supervisor pursuant to Section 2(11) and therefore
may legally be discharged for refusing to support the Respon-
dent’s opposition to protected activities. Pontiac Osteopathic
Hospital, 284 NLRB 442, 442–443 (1987); Parker-Robb Chev-
rolet, Inc., 262 NLRB 402 (1982). However, even a supervi-
sor’s discharge violates the Act if that discharge is motivated
by the supervisor’s refusal to commit an unfair labor practice.
Trus Joist MacMillan, 341 NLRB 369, 390 (2004), Parker-
Robb Chevrolet, Inc., 262 NLRB at 402–403 (1982).
On March 9, after Johnson received the care aides’ petition,
she asked if Howard knew who had written it. Howard said she
did not know, and Johnson expressed dissatisfaction with that
response. Then Johnson told Howard that they had to find out
who wrote the petition. Howard said that she would not ask the
care aides to reveal the petition’s author. The General Counsel
contends that the Respondent unlawfully discharged Johnson
for refusing to violate the Act by “carry[ing] out Johnson’s
directive” that they “find out who wrote the petition.” The
Respondent counters that Johnson’s statement that “we” have
to find out who wrote the petition, was not a directive that
Howard seek that information, and that even if it was, Howard
could have complied by “going about her normal business and
keeping her ears tuned and her eyes open,” without committing
any unfair labor practice.
The question of whether Howard refused to commit an unfair
labor practice is a close one, as is the question of whether How-
ard’s response to Johnson was a motivation for the discharge.
However, I need not decide those issues because the Respon-
dent has met its burden of showing that it would have dis-
charged Howard based on her response to the rumors of a work
stoppage, even if she had not declined to find out who wrote the
petition. See Wright Line, 251 NLRB at 1089.18 The record
shows that, rightly or wrongly, the Respondent took the rumors
of a work stoppage far more seriously than Howard did. John-
son and Latta went to considerable trouble on March 10 to
make personnel from other facilities available on March 11 to
cover for the anticipated absences at the Parma facility. It is
inconceivable to me that they would have taken these steps,
which were sure to cause some disruptions for the other loca-
tions and their personnel, unless Johnson and Latta believed the
possibility of a widespread, potentially harmful, work stoppage
at the Parma facility was very real. Therefore, I would fully
expect Johnson to be appalled when she discovered that How-
ard, who received essentially the same information about the
potential work stoppage as Johnson, had treated it as a joke.
Under these circumstances, I accept that the Respondent con-
sidered it an extremely serious lapse in judgment, necessitating
discharge, that Howard did not report the rumors of a work
stoppage to her superiors and did not actively discourage the
employees who sought her guidance from taking part in such an
action. The record shows that the Respondent had previously
discharged another supervisor, Myers, for failing to report labor

18 The General Counsel and the Respondent both state, and I agree,
that the Respondent’s defense that it would have discharged Howard
for nondiscriminatory reasons should be analyzed pursuant to the
Wright Line standards. Brief of General Counsel at 44 (citing Pioneer
Hotel Gambling Hall, 324 NLRB 918, 929 (1997)); Brief of Respon-
dent at 53.
SUNRISE SENIOR LIVING, INC. 1259
relations information to the executive director. I conclude that
the Respondent has met its burden of showing that it would
have discharged Howard even if she had not declined to try to
discover who wrote the petition.
For the reasons stated above, I conclude the allegation that
Howard was unlawfully discharged in violation of Section
8(a)(1) should be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by
coercively interrogating employees about protected activities
on March 10 and 11, 2004.
3. The Respondent violated Section 8(a)(1) of the Act by
demoting and issuing a final warning to Coty Smith on March
16, 2004, because she had engaged in protected concerted ac-
tivities.
4. The Respondent violated Section 8(a)(1) of the Act by
terminating the employment of Samantha Reyes on March 16,
2004, because she had engaged in protected concerted activi-
ties.
5. The Respondent was not shown to have violated the Act
by terminating the employment of Rosie Howard on March 19,
2004.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The Respondent discriminatorily
terminated Samantha Reyes and therefore must offer her rein-
statement and make her whole for any loss of earnings and
other benefits, computed on a quarterly basis from date of dis-
charge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). The Respondent has
discriminatorily demoted Coty Smith, and therefore must offer
her reinstatement to the position from which she was unlaw-
fully demoted and make her whole for any loss of earnings and
other benefits,19 calculated in the same manner as for Reyes.
[Recommended Order omitted from publication.]

19 The record shows that Smith’s pay was not reduced at the time she
was demoted, however, the record does not rule out the possibility that
her demotion subsequently resulted in a loss of benefits.