Sweet Brook Transitional Care and Living Centers

National Labor Relations Board - Administrative Judge Opinions

Mar 9, 2010

01-CA-045210 (N.L.R.B. Mar. 9, 2010)

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Williamstown, MA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NORTHERN BERKSHIRE COMMUNITY
SERVICES, INC. d/b/a SWEET BROOK
TRANSITIONAL CARE AND LIVING CENTERS
and Case 1—CA—45210
1199 SERVICE EMPLOYEES INTERNATIONAL
UNION, UNITED HEALTHCARE WORKERS EAST

Jo Anne P. Howlett, Esq., for the General Counsel.
Steven M. Swirsky, Esq., and Phillip H. Wang, Esq.,
of New York, New York, for the Respondent.
Alfred Gordon, Esq., of Boston, Massachusetts, for
the Charging Party.
DECISION
Statement of the Case
PAUL BUXBAUM, Administrative Law Judge. This case was tried in North Adams,
Massachusetts, on September 22—24 and November 3—5, 2009.1 The charge was filed
February 27, 2009.2 This charge was amended and the complaint issued on June 30. At the
beginning of the trial, I granted counsel for the General Counsel’s oral motion to further amend
the complaint by changing the date of the alleged misconduct described in paragraph 9(a) and
by altering a reference in paragraph 9(b). See Tr. 16—17.
The complaint alleges that the Employer, Northern Berkshire Community Services, Inc.,
d/b/a Sweet Brook Transitional Care and Living Centers (Sweet Brook), engaged in a variety of
unlawful acts during the course of an organizing campaign among its work force conducted by
the 1199 Service Employees International Union, United Healthcare Workers East (the Union).
Specifically, the General Counsel alleges that Sweet Brook implemented an overly broad

1 The Board’s judges regularly hear cases in Federal, State, and local courthouses. I
conducted this trial as a guest of the Northern Berkshire District Court. I can confidently state
that no traveling judge has ever received more gracious and friendly treatment than I
experienced there. The citizens of western Massachusetts should take justifiable pride in the
conduct and professionalism of the entire staff of their local court. I wish to extend my particular
thanks to the judge of that court, the Hon. Michael Ripps.
2 All dates are in 2009 unless otherwise indicated.
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solicitation policy in response to union activity; promulgated an overly broad distribution policy;
engaged in surveillance and the creation of an impression of surveillance of employees’
activities; and interrogated, coerced, intimidated, and impliedly threatened its employees in
violation of Section 8(a)(1) of the Act. In addition, the General Counsel contends that Sweet
Brook committed an act of unlawful discrimination against its employee, Elise Martin, by
refusing to permit her to withdraw her notice of resignation because of her union activities and in
order to discourage its employees from engaging in such activities in violation of Section 8(a)(3)
and (1) of the Act. The Employer’s answer to the complaint denied the material allegations of
wrongdoing and raised various defenses.3
For the reasons described in detail in this decision, I find that the Employer did engage
in certain conduct that interfered with, restrained, and coerced its employees in their exercise of
the rights guaranteed in Section 7 of the Act. This conduct violated Section 8(a)(1) of the Act.
With respect to other conduct alleged to violate the same subsection, I have concluded that the
General Counsel failed to meet his burden of proof. As a consequence, I will recommend that
those allegations be dismissed. I further find that the Employer did discriminate against Martin
by refusing to permit her to withdraw her resignation based on her union sympathies and
activities in violation of Section 8(a)(3) and (1) of the Act.
On the entire record,4 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Charging Party, and the
Respondent, I make the following
Findings of Fact
I. Jurisdiction
The Employer, a corporation, provides rehabilitative and skilled nursing care to residents
at its facility in Williamstown, Massachusetts, where it annually derives gross revenues in
excess of $250,000 and purchases and receives goods valued in excess of $5000 directly from
points outside the Commonwealth of Massachusetts. The Employer admits5 and I find that it is
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, a
health care institution as defined in Section 2(14) of the Act, and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Facts

3 Among the Employer’s stated defenses was an assertion that all or part of the allegations
in the complaint were barred by the statute of limitations contained in Sec. 10(b) of the Act. The
Employer did not address this defense at trial or in its brief. As a result, it has been waived.
Wisconsin Bell, 346 NLRB 62, fn. 8 (2005). Furthermore, examination of the chronology of
events and the filing dates of the charges related to those events demonstrates that the defense
lacks merit.
4 The transcript of the proceedings is generally accurate. During the second week of trial,
the lawyers and I made certain corrections to the first portion of the transcription. See Tr. 613—
616. As to the second week, two corrections are required. At p. 1112, l. 25, “Gulutea” should
be “Gulotta.” At p. 1236, l. 24, “candles” should be “panels.” Any remaining errors are not
significant or material.
5 See pars. 6 and 7 of the Employer’s answer to the complaint. (GC Exh. 1(k).)
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1. The background
Sweet Brook is a residential care facility that employs approximately 200 people. Its
residents fall into two broad categories, those admitted for relatively short stays for purposes of
rehabilitation and permanent residents who are suffering from chronic impairments such as
dementia. While the facility is housed in a single building, there are various units within that
structure. These units include Dorothy Hickey (DH), used primarily for short term rehabilitation,
as well as, Collier-Wright (CW) and Linden Court, units designed to provide long term care.
Linden Court is subdivided into components named Baxter and Davis.
During the period at issue, Sweet Brook’s administrator was Susan Gancarz. In
addition, Gancarz served as vice president for continuing care services for the parent
organization, Northern Berkshire Community Services. Her office was physically located at
Sweet Brook. Subsequent to the events involved in this case, Gancarz transferred to a position
as Northern Berkshire’s director of projects and planning. She continues to serve in that role.
Serving in key supervisory positions under Gancarz’ direction during the events in
controversy were Cindy Dix, the director of nursing, Nora Whitney, assistant director of nursing,
and Sharon Moresi, director of human resources. Dix left Sweet Brook’s employ in October
2009 in order to return to school.6 Whitney left Sweet Brook’s employ in the final months of
2008. Moresi assumed the duties of director of human resources on December 8, 2008,
replacing Kathy Denault. Prior to that time, she had been employed in an administrative
position handling payroll and benefits. She was formally promoted to the human resources
directorship in January 2009 and continues to hold that position.
Apart from these key management officials, several other supervisors played a role in
the events that must be addressed in this case. Linda Card is currently the director of
admissions for Sweet Brook. During the period at issue, she served as the nurse manager of
the CW Unit and the admission coordinator for the entire facility. Another unit manager whose
activities figure in this trial was Linda Sherman. Sherman is no longer employed by Sweet
Brook and did not testify at trial. Terri Willard also served as a nurse supervisor during this
period. Finally, Wendy Kelly serves as a scheduler, a supervisory position within the meaning
of the Act.7
During the course of the trial, there was considerable controversy about the Employer’s
staff handbook. The discussion centered on the question of which version of that handbook
was actually in effect during the period under examination. A review of the evidence on this
question demonstrates that the handbook that governed the conduct of employee relations
during these events was the edition that was written in 1997 and revised in March 2008. That
version was authenticated by Moresi and admitted into evidence as GC Exhibit 7. Some
confusion arose from the fact that a later version of the handbook does exist. That revision is
dated October 2008. Moresi and Gancarz testified that the October 2008 draft was never
implemented or issued to any employees. It remains in draft form, subject to further review by

6 Although Dix was a key figure in several of the events at issue in this case, the Employer
chose not to call her as a witness in this proceeding. I will discuss the significance of this later
in this decision.
7 The Employer does not dispute the supervisory status of the management personnel
alleged to have engaged in wrongdoing in this case. See, answer to the complaint at par. 8.
(GC Exh. 1(k).)
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upper management. I find that counsel for the Employer is correct in stating that, “[t]he
handbook in effect during all relevant periods to the Complaint is the March 2008 Handbook.”
(R. Br. at p. 27, fn. 20.) The October 2008 draft is only relevant in so far as it illuminates
management’s evolving thought process as to issues under scrutiny in this case.
The staff at Sweet Brook is not represented by a union. Management’s position
regarding this question is clearly described in the handbook. It explains the Employer’s policy
on unions as follows:
In our opinion, a union would impair efficient operation of the
organization and our ability to deliver quality care and services
to our residents. It would hurt the business on which we all
depend for our livelihood. We believe that unions are not
necessary at Sweet Brook. We do not want a union here, and
we will use every legal means to keep our facility free from
unions. [Underlining in the original.]
(Handbook, GC Exh. 7, p. 111.)
In the latter months of 2008, the Union initiated an organizing campaign among the
employees of Sweet Brook. Two of its organizers, Peter Hasegawa and Phoebe Rollins, were
assigned primary responsibility to manage this effort. As part of the campaign, an organizing
committee was created. One member of that committee, Elise Martin, figures prominently in the
events of this case. Martin was first hired by Sweet Brook in 2002. She served as a certified
nursing assistant (CNA). As will be discussed later in this decision, Martin’s service with Sweet
Brook over the following 7 years was somewhat intermittent. However, she was employed as a
CNA at the facility on a continuous basis from April 2007.
Martin testified that she attended her first union meeting in November 2008. Apart from
her service on the organizing committee, she attended all meetings, discussed the campaign
with fellow employees, and distributed union literature to those employees in the parking lot,
breakroom, and at the nurses’ station.
On January 7, the Union filed a petition with the Regional Director, seeking a
representation election at Sweet Brook. Later in the month, the parties participated in a lengthy
representation hearing. Subsequently, an election was scheduled for March 26. The parties
agree that the election was never held because the Regional Director determined that the
Board’s longstanding general policy of refusing to continue to process representation petitions
when unfair labor practice charges are pending should apply to this situation. U.S. Coal Co., 3
NLRB 398 (1937). Since the conclusion of the trial in this case, the Regional Director has
approved the Union’s request to withdraw its representation petition without prejudice.8

8 I include this information regarding the withdrawal of the representation petition at the
request of counsel for the Employer who filed a motion for this purpose. I do not agree with his
contention that this information constitutes grounds to reopen the record to receive newly
discovered evidence. Under the Board’s standards, the information does not qualify for such
treatment as it is not such evidence “that if adduced and credited it would require a different
result.” APL Logistics, Inc., 341 NLRB 994 (2004), enf. 142 Fed. Appx. 869 (6th Cir. 2005).
However, I agree with counsel that it is nevertheless appropriate to take administrative notice of
the Regional Director’s action. See Benson Wholesale Co., 164 NLRB 536, 537 (1967) (Board
adopts judge’s decision taking “official notice” of the contents of the Regional Director’s
Continued
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2. Events during the organizing campaign
Contemporaneously with its filing of an election petition, the Union issued a flyer for
distribution at Sweet Brook. It announced the Union’s “formal request for a secret ballot union
election” and asserted that it had obtained authorization cards from “nearly three quarters” of
the employees. (GC Exh. 2.) (Italics in the original.) This flyer was notable in that it contained
the photographs of five union supporters accompanied by their names and a prounion quotation
from each. Among the group of five was Martin. Underneath her photograph, she was quoted
as saying, “I want a union because I want to be treated with respect.” (GC Exh. 2.)
Kim Carmain, a former employee at Sweet Brook, testified that she distributed copies of
this flyer. She also observed copies placed at a nurses’ station in the CW unit of the facility. In
fact, she saw Unit Manager Card pick up one of the copies at the nurses’ station. In addition,
Moresi testified that she “[p]robably” saw the flyer containing Martin’s photograph.
Apart from this flyer bearing Martin’s photograph, the Union issued numerous other
campaign materials that were distributed among the work force.9 Some of these documents
were distributed at nurses’ stations. This provoked a negative response from management. For
example, Melinda Gulotta, a former CNA at Sweet Brook, testified that early in the Union’s
campaign, she was present at the Baxter nurses’ station along with Assistant Director of
Nursing Whitney. Gulotta provided uncontroverted testimony that Whitney, “picked up a union
flyer and handed it to me and told me, it couldn’t be at the nurses’ station.” (Tr. 496.)
Controversy about the distribution of union literature intensified during the month of
February. Martin testified regarding an incident that took place at the Baxter nurses’ station.
When she reported to work at 7 a.m. on the day in question, she observed a stack of union
flyers that had been placed on the desk at the station. They remained there until approximately
9:30 to 10 a.m. At that time, Unit Manager Sherman confiscated them. Martin asked her why
they were being removed, observing that management also distributed its own flyers. Sherman
responded, “Sweet Brook is Sweet Brook and the Union is the Union.” (Tr. 107, 217.)
Later that day, Martin observed another employee, Brittany Maxwell, bring more flyers to
the nurses’ station. Maxwell taped one of them to a vertical portion of the nurses’ station desk
where it would be visible to persons seated at the desk but could not be seen by individuals
located outside the nurses’ station.10 Thereafter, Sherman arrived at the station, observed the
posted flyer, and departed. She returned a few minutes later, accompanied by Director of
Nursing Dix. Dix confiscated the flyer and ordered Martin to report with her to Dix’s office.
_________________________
representation case file in a related matter).
9 This was matched by similar activity from management. Kathleen Wilton, a retired unit
assistant, testified that management “very often” handed out flyers opposing the Union and held
one-on-one meetings with employees for the same purpose. (Tr. 562.)
10 Gancarz testified that she was told by Dix that the flyer had been “displayed on the glass”
that separated the nurses’ station from the hallway used by residents and outsiders. (Tr. 1166.)
There was no eyewitness testimony that supported this contention. Martin’s description of
where she actually saw the flyer being posted is partially corroborated by the Employer’s own
photographic evidence. R. Exh. 13, p. 5, consists of a photograph of the nurses’ station that
clearly shows the existence of the vertical portion of the desk with numerous postings on it. It is
clear from this view that Martin’s description of the union flyer’s location would limit its visibility
to those inside the nurses’ station in precisely the manner she described.
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Once there, Dix instructed Martin that “it was unacceptable to hang flyers in the nurses’ desk.”
(Tr. 111.) When Martin protested that she had not done so, Dix replied that, “Well I assumed it
was you.” (Tr. 111.) Dix advised Martin that it was only permissible to distribute flyers in the
employees’ breakroom. She added that, “[i]f I see anyone doing it again they will be
reprimanded.” (Tr. 111.)
Martin’s testimony regarding these events at the Baxter nurses’ station was
uncontroverted. In addition, it was significantly corroborated by Gancarz who testified that Dix
informed her that she and Sherman had removed flyers from the nurses’ station. Gancarz
added that she subsequently “spoke with staff that they should not display those flyers at the
Nurse’s Station for residents and families to see.” (Tr. 1166.) While Gancarz was not an
eyewitness, her account clearly confirms that the events occurred. As to the precise manner in
which they occurred, I find Martin’s testimony to be credible as it is not only undisputed, but also
consistent with photographic evidence and considerable additional testimony regarding the
Employer’s practices as to this issue.11
Both Martin and Gulotta testified that shortly after the Union’s supporters began
distributing their literature the Employer posted no-soliciting signs on the doors of the facility.
This represented a new initiative by Sweet Brook as no such notices had previously been
posted on the premises. Indeed, both Martin and Gulotta opined that they had not heard of any
solicitation policy prior to this posting. Their testimony was further corroborated by that of
another former CNA at Sweet Brook, Carmain. She reported that the no-soliciting signs were
posted on the doors, “[w]ithin days after our first Union flyer was distributed.” (Tr. 687.)
Although she had worked at the institution continuously since 2001, she had never seen such
signs before.
Definitive insight into the Employer’s newly implemented decision to post no-soliciting
signs was provided through the testimony of Jeffrey Gulotta.12 He is currently employed in the
maintenance department at Sweet Brook. He reported that he personally observed his
supervisor, Steve Gengris, give a fellow maintenance worker, Keith Hewitt, signs to be posted
on the doors. He testified that this occurred “after all this stuff started.” (Tr. 649.) He explained
that his reference was to the Union’s organizing campaign. He also reported that he witnessed
Hewitt put one of the signs on the fire door of the DH Unit. Finally, Gulotta identified GC Exhibit
20 as a photographic representation of one of the posted signs. That exhibit shows a sign
bearing the legend, “NO SOLICITING.”
On Saturday, February 21, the Union staged a campaign event that it referred to as
“Sticker Day.” Hasegawa stationed himself in the Sweet Brook parking lot and distributed
stickers for union supporters to wear while on duty at the facility on that day. The stickers were
purple in color and were described as being of button size (approximately 2 inches in diameter).
They contained the logo for SEIU, Local 1199. They also bore the slogan, “Be fair to those who
care.” Some union supporters also wore other insignia such as lanyards and bracelets.
The weekend nurse manager on duty that day was Linda Card. Her behavior on Sticker
Day is a source of controversy. Martin testified that she was on duty and wearing a sticker.
She described Card as, “walking around with a clipboard looking at all of us. I noticed her

11 For example, Kelly Miller, another former CNA employee, testified that shortly after the
election petition was filed management “put notices up saying that we couldn’t post any flyers
that were pro-union.” (Tr. 56.)
12 Gulotta is married to Melinda Gulotta.
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glancing at the sticker and writing something down and she would walk away.” (Tr. 121.)
Martin clarified that, as Card passed her, “she looked down at my sticker, wrote something
down and walked away.” (Tr. 121.) Martin added that it was not normal to observe Card
carrying a clipboard.
Melinda Gulotta also testified regarding Card’s behavior. She reported that she obtained
a sticker from Martin and was wearing it while she and a colleague were feeding a resident in
the Baxter day room. Card, “peeked her head in and looked at us and wrote on her clip board;
said good morning and went on about her way.” (Tr. 501.) Gulotta characterized Card’s
behavior as “very unusual.” (Tr. 502.)
Card, herself, reported that after she arrived at work that day she went to the CW unit.
At the desk area, she encountered CNA Theresa McClain who was wearing one of the stickers.
Card testified that she asked McClain, “What’s that on your uniform?” (Tr. 1208.) McClain
responded that it was a sticker that another employee “slapped on me.” (Tr. 1208.) Upon
hearing this, Card then asked what the sticker said. McClain responded by repeating the
wording of the sticker to Card. Card indicated that she resumed making her rounds of the
institution and observed other employees wearing the stickers. She did not discuss the matter
with any of those employees.
At this point, Card returned to her office and sent an e-mail to Administrator Gancarz.
She informed Gancarz that it had been reported to her that Hasegawa had been in the parking
lot and had provided stickers to Brittney Maxwell. Card went on to describe the contents of the
stickers and asked if, “you want me to ask the staff who are wearing them to remove them.”
(GC Exh. 17.) She suggested that Gancarz telephone her. In response to Card’s inquiry,
Gancarz did call her and “asked if I knew the Staff Members who were wearing them, which I
did know. And if I could keep a—write them down on a piece of paper—identify who they were.”
(Tr. 1211.) Card further reported that,
[W]e were asked just to review with the Staff Members that
[it] was their right to wear the sticker, but what message does
that send to our residents and to our family members about
the Employees who are not wearing the stickers? Does that
mean because I’m not wearing a sticker that I don’t care for
my residents and that I’m not fair?
(Tr. 1216—1217.) Interestingly, while Gancarz corroborated Card’s testimony that she
telephoned her on Sticker Day, she did not confirm Card’s account of the details of that
conversation. While Gancarz agreed that she instructed Card that the employees were allowed
to wear the stickers, she contended that this instruction was “the gist of the conversation.” (Tr.
1170.) She omitted any reference to a directive to interrogate the employees about the
“message” that the stickers were sending to “our residents and to our family members.” (Tr.
1216—1217.) She also omitted any reference to the creation of a list of sticker wearers.
In resolving this rather telling conflict between the versions provided by the two
supervisors, I credit Card. As to the directive to confront employees regarding the “message”
they were sending I can conceive of no reason why Card would invent such an instruction,
particularly since it happens to be a rather bizarre one. Given that it makes little sense to
suggest that the slogan, “Be fair to those who care,” creates an inference that employees who
do not support the Union are indifferent to the needs of their patients, it likely represents a
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hasty, off-the-cuff, reaction to the news being conveyed by Card.13 I find Card’s account to be a
credible depiction of Gancarz’ immediate response to the news about Sticker Day.
My conclusion in this regard is reinforced by the other matter that was omitted in
Gancarz’ testimony about her discussion with Card. As to that matter, the order to create a list
of sticker wearers, Card’s testimony is undoubtedly accurate because it is compellingly
corroborated by contemporaneous documentary evidence. That evidence shows that Card sent
a second e-mail to Gancarz on Sticker Day. The e-mail tells Gancarz that, “[t]he employees
who have chosen to wear the stickers are . . . .” (GC Exh. 15.) This is followed by a list of 16
names of employees.14 The e-mail concludes with Card’s observation that, “I will keep a list of
any one else that I notice.” (GC Exh. 15.) I find it entirely likely that Card would send such a list
to Gancarz in response to an order to do so, rather than as a spontaneous act. This is
particularly the case where it is undisputed that Card had made a written request for instructions
and Gancarz had telephoned her in response to that request. As a result, I conclude that
Gancarz instructed Card to take two steps in reaction to Sticker Day. The first step was to
compile a list of sticker wearers. The second instruction was to confront the sticker wearers
regarding the “message” that they were choosing to send to others.
There remains one further issue that needs to be resolved regarding the events on
Sticker Day. It will be recalled that employees testified that Card made a highly visible point of
noting the identities of the sticker wearers while writing on a clipboard. By contrast, Card
disputed this. She testified that she created the list in her office based entirely on her
recollection of whom she had observed wearing the stickers. She claimed that she did not rely
on any prior written notations.
In this instance, I do not credit Card’s testimony.15 In the first place, I agree with counsel
for the Union’s assessment, expressed as follows:
Card’s suggestion that she acted normally while among the
employees and did not write down the names as she saw the
stickers defies common sense and credulity. As an initial
matter, the employees specifically remember her writing
something down immediately after looking directly at their

13 I note that there is nothing troubling about the slogan printed on the stickers. It is clear to
me that the wording is a gentle exhortation to management to improve the terms and conditions
of employment for Sweet Brook’s caregivers. As such, it does not raise the concerns cited by
the Board in Sacred Heart Medical Center, 347 NLRB 531, 532 (2006), remanded 526 F.3d 577
(9th Cir. 2008) (employer demonstrated special circumstances supporting prohibition of buttons
that read, “RNs Demand Safe Staffing,” because those buttons sent “a clear message to
patients that their care is currently in jeopardy.”)
14 Among the named employees were Martin and Melinda Gulotta.
15 I recognize that I have accepted other aspects of Card’s account as true. As the Board
has observed, “nothing is more common in all kinds of judicial decisions than to believe some
and not all” of a witness’ testimony. Amber Foods, Inc., 338 NLRB 712, 715, fn. 13 (2002),
quoting Chief Judge Learned Hand in NLRB v. Universal Camera Corp., 179 F. 2d 749, 754 (2d
Cir. 1950), revd. on other grounds 340 U.S. 474 (1951). In this particular instance, it is relatively
easy to understand why portions of Card’s account are more reliable than other parts. When
Card was relating the behavior of others, she did not feel a need to be defensive. However,
when her own conduct in making the list of sticker wearers was under direct scrutiny, she
reacted in a decidedly less candid manner.
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stickers. And the sheer number of names on her list . . .
makes it exceedingly unlikely that Card remembered all the
names of people she noticed throughout her rounds and wrote
the names down when she returned to her office.
(CP Br. at p. 6.)
This analysis is reinforced when one examines GC Exhibit 16. That document is a hand
written list of the sticker wearers created by Card.16 The employees’ names are written down in
the precise order that they were later included in Card’s e-mail to Gancarz. Given that Card
created two identical lists of the names it appears far more plausible that she made the hand
written list while on her rounds and the computerized list when back in her office. The
suggestion that she sat at her desk and laboriously hand wrote the list and then typed the
identical list into her computer appears both illogical and inefficient. Instead, I accept the
credible testimony of the employees who observed her behavior on that day.
After Sticker Day, the Union intensified its activities. On February 27, it filed the initial
charge in this case alleging that Dix’s warning to Martin regarding the posting of flyers in the
nurses’ station was an unfair labor practice. (GC Exhs. 1(a) and 6.) Early in the morning of the
next day, Hasegawa returned to the Sweet Brook parking lot in his automobile with the purpose
of delivering some union flyers to Melinda Gulotta. He testified that he spotted Gulotta and bent
over to pick up the leaflets. At that moment, “I looked up and Sharon Moresi was in my
window.” (Tr. 392.) He called to Gulotta and attempted to give her the flyers. Moresi stationed
herself so as to block this attempt. He told Moresi that, “I’m just trying to give these leaflets to
Mindy.” (Tr. 393.) Hasegawa reported that Moresi responded, “[N]o, I’m not going to let you
give the leaflets to Mindy. No you can’t do that.” (Tr. 395.) At that point, Hasegawa attempted
to maneuver his car in order to evade Moresi’s blocking action. Moresi shifted her position to
maintain her stance between Hasegawa and Gulotta. Ultimately, Hasegawa left the parking lot
without giving the materials to Gulotta. Both Gulotta and Moresi also described this incident. All
three accounts were entirely consistent in depicting the event.
In the first week of March, management took actions to address the Union’s most recent
activities, the filing of the unfair labor practice charge and the attempted distribution of literature
from Hasegawa to Gulotta. As to the first matter, Martin testified that she was on duty at
approximately 3 p.m. when Moresi approached her and asked to speak with her. They went
into the hallway and Moresi showed her the unfair labor practice charge describing Dix’s
reprimand of Martin and identifying Martin by name. Martin testified that Moresi, “asked me if I
had ever seen it.” (Tr. 116.) Martin responded that she had not seen it before.17 Moresi then
observed, “[W]ell, your name is on it.” (Tr. 116—117.) At this, Martin began to cry. Moresi told
her, “don’t worry, Cindy’s not mad at you . . . . We know it’s the union that’s doing this, not you.”
(Tr. 118.) Moresi’s reference was to Director of Nursing Cindy Dix. Finally, Martin reported that
Moresi addressed her on this same topic later in the day. As Martin was leaving the building at
the end of her shift, Moresi stopped and “asked if I was okay.” (Tr. 234.) Martin responded
affirmatively.
Moresi’s own description of these events is essentially the same. She confirmed that

16 The document also contains dots placed next to three of the employees’ names on Card’s
list. In her testimony, Card explained that she put the dots next to those names, “[b]ecause I
was surprised of those people wearing them—the sticker.” (Tr. 1214—1215.)
17 Hasegawa testified that he had neglected to show Martin the charge before filing it.
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she approached Martin at the nurses’ station and asked, “if she had a moment.” (Tr. 804.) The
two then went down the hall together and Moresi showed Martin the unfair labor practice charge
in which she was named. She asked Martin, “Elise, do you know this?” (Tr. 804.) Martin
replied, “I hate that f’ing Union. I can’t believe they did this without telling me.” (Tr. 804.) She
then, “burst into tears.” (Tr. 804.) Moresi told her to calm down. After a few minutes, Martin
regained her composure, “but she was still upset.” (Tr. 804.) Moresi also confirmed that she
approached Martin a second time about the matter. In that instance, she asked if Martin were
“okay,” and Martin told her that she was “fine.” (Tr. 805.)
One aspect of Moresi’s testimony about these events requires further comment. I
inquired of Moresi why she had chosen to broach the subject of the unfair labor practice charge
with Martin. Moresi replied that her purpose was, “[t]o make sure that she was okay. I had
heard that she was upset.” (Tr. 805.) I reject this attempt to propose a benign or even friendly
purpose for Moresi’s questioning of Martin about the charge. I find it incredible that Moresi
would have somehow heard that Martin was upset about the matter. The uncontroverted
testimony is that Martin was entirely unaware of the filing of the charge containing her name
until the moment when she was shown the document by Moresi herself. That testimony is
amply supported by Martin’s shocked reaction when Moresi raised the subject with her. I
conclude that Moresi’s purported justification for addressing the topic with Martin is simply a
rather lame effort to put a better face on her own conduct.
Management’s second response to the recent union organizing activity was to write a
letter to Hasegawa regarding the parking lot encounter between him and Moresi. The letter was
dated March 6, and signed by Gancarz. It was addressed to Hasegawa at an office maintained
by the Union in Dorchester. It made specific reference to his confrontation with Moresi and
characterized his behavior as, “nothing more than common trespass.” (GC Exh. 9.) Gancarz
expressed the Employer’s responsibility for the safety of residents and concluded the letter with
the following sentence:
For this reason—and given the high value your organization says
it places on “respect” for the rights of others18—I expect you to refrain
from being on Sweet Brook’s property again between now and the
National Labor Relations Board election scheduled for March 26th.
(GC Exh. 9.) Gancarz testified that she sent the letter by certified mail. She reported that she
never distributed the letter among the rank-and-file employees, nor did she direct other
managers to do so. Nevertheless, she conceded that she did distribute copies of the letter to
the “Management Team” at a morning management meeting.19 (Tr. 1192.) She thought that
the meeting in question occurred on March 7, the day after she mailed the letter to the Union’s
office in Dorchester.
Hasegawa reported that he did not receive the letter because he visited the Union’s
offices in Dorchester only infrequently. He first learned about the letter from Sweet Brook

18 Gancarz’ rather sarcastic reference to the concept of “respect” is certainly suggestive. It
will be recalled that the union flyer announcing the representation petition quoted Martin as
desiring a union, “because I want to be treated with respect.” (GC Exh. 2.)
19 Gancarz noted that it was routine to pass out campaign materials to managers at these
meetings for distribution by them to the rank-and-file employees. However, she observed that
such materials intended for further dissemination were provided in batches, whereas the letter
to Hasegawa was given out in single copies.
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employees. Only after hearing about it from them did he obtain a copy from the office in
Dorchester. Hasegawa testified that he never distributed the letter to any employees. He did
acknowledge that it was possible that he and Rollins may have brought a copy of it to union
meetings held approximately a week later.
While neither Gancarz nor Hasegawa testified that they distributed or directed the
distribution of the letter to rank-and-file employees, the fact remains that it was available at the
facility for those employees to read. For example, Carmain testified that she discovered a copy
of the letter on her desk. After reading it, she telephoned Hasegawa and told him, “I can’t
believe that letter that they sent to you.” (Tr. 696—697.)
While Carmain’s testimony, standing alone, does not establish how the letter was made
available to her, much more direct testimony was provided by Jeffrey Gulotta. Gulotta reported
that management maintained a bulletin board for the maintenance department employees. The
board was divided into sections for each member of the department. On one day in March, a
copy of Gancarz’s letter to Hasegawa was posted in each section of the bulletin board. His own
copy contained his name written on the upper corner. Gulotta testified that he recognized the
handwriting as belonging to his supervisor, Gengris.
As may be expected, the upcoming election continued to be a topic of discussion during
this period. On March 12, Gulotta was in the Baxter day room feeding a resident. Unit Manager
Sherman entered and engaged Gulotta in conversation. She informed Gulotta that she was
particularly busy since she was required to supervise two units due to a vacant position. She
added that the Employer was thinking about selecting a nurse named Simi Norilla to fill that
opening. According to Gulotta, Sherman then observed that “they wouldn’t hire Simi because
they felt that would take a vote away from you guys.” (Tr. 511.) Gulotta responded that this
made no sense because Norilla was opposed to the Union. On hearing this, Sherman “raised
her hands and said, ‘I don’t know what Simi is. I have my own group to take care of.’” (Tr. 511.)
That was the end of the discussion. Sherman was not called as a witness. In consequence,
analysis of the meaning and significance of this conversation depends entirely on Gulotta’s brief
description.
In contrast to the sparse evidence regarding the March 12 discussion, there was much
testimony presented by both sides concerning discussions that took place 2 days later. Wilton,
a longtime Sweet Brook employee who had retired shortly before the trial commenced, testified
regarding a meeting held at the Baxter day room. The meeting was convened by Supervisors
Nancy Liss and Terry Willard.20 After the employees gathered for the meeting, Liss held a flyer
in her hand. This flyer was a four-page document that discussed the presence of an individual
named Mike Shuey at Sweet Brook. The flyer described him as a “union buster.” (GC Exh. 19,
p. 2.) It contained several caricatures of Shuey.21 The document alleged that Shuey had a
history of labor-relations misconduct. The text of the last page was as follows:
Did our nursing home spend resident-care money to get the advice

20 Liss was the director of social work. Willard was a nurse supervisor. The Employer
admits that both are statutory supervisors. See, answer to complaint, par. 8 (GC Exh. 1(k)), and
Tr. 1119—1120.
21 These drawings were in no way obscene or degrading. Instead, they appear to have
been drawn in light-hearted fashion. For instance, the primary aspects of Shuey’s personality
that were depicted in them involved the artist’s impression that he was fond of suspenders and
candy bars.
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of a law-breaker? He sure doesn’t seem like a nice guy . . . In fact,
we’ve even heard rumors that he’s humiliated our own
supervisors in meetings. We don’t think that’s right.
So what do we say to all of this?
Mike, it’s about time for you to go back to Ohio! Leave us and our
supervisors alone. (We’ll all chip in and give you some candy bars for
the road if it would help.) [Boldface in the original.]
(GC Exh. 19, p. 4.)
Wilton testified that while Liss displayed the flyer to the employees she said, “this is
disgusting.” (Tr. 567.) She followed this expression of opinion with a question, asking, “Who
did this?” (Tr. 567.) While posing this question, she directed her gaze at Doris Tondreau, a
nurse. Tondreau did not respond. Liss then asked another employee, Barbara St. Pierre. She
also declined to respond. She then directed the question to Wilton who also remained silent.
Finally, she asked yet another employee named Grace who did not reply. Wilton testified that,
at this point, Liss again opined that the flyer was “disgusting” and added, “I want to know who
did this.” (Tr. 568.) She expressed her belief that Shuey was “a very nice gentleman.” (Tr.
568.) Rising to the bait, Wilton responded, “[Y]ou mean the union buster?” (Tr. 568.) Liss
replied in kind, asserting that “[t]he union’s going to take your money and the union isn’t going to
do anything for you.” (Tr. 568.) At which, Wilton countered that, “[W]e’re the union.” (Tr. 568.)
As matters escalated, Liss accused the Union of damaging a car in the parking lot. Wilton
reported that, at this juncture, Gulotta “had words” with Liss. (Tr. 569)
Gulotta also testified regarding this event. She confirmed that Liss asked the assembled
employees where the flyer came from. When nobody answered, she again asked, “where it
came from. If we knew who made it.” (Tr. 499.) There was still no reply.22 Liss asked yet
again, adding that she thought the flyer was “rude” and that Shuey was “a nice man.” (Tr. 499.)
At this point, St. Pierre spoke up, accusing Shuey of being a union buster. This prompted a
rejoinder from Willard who also asserted that Shuey was a nice person. Liss again demanded
to know the author of the flyer, adding, “Do you guys think this is a nice thing to do?” (Tr. 500.)
Gulotta seized the opportunity to bait Liss, telling her that she thought she knew who wrote the
flyer. Taking the bait, Liss asked whom she thought was its author. Gulotta responded that, “it
was probably a group of employees that were insulted by accusations being made by
management.” (Tr. 500.)
Liss provided detailed testimony regarding this confrontation and the events that
preceded it. She explained that a food service manager brought her the flyer, telling her that it
had been placed in the breakroom. After examining the flyer, Liss telephoned Gancarz to seek
instructions. As with an earlier occasion when a supervisor sought guidance from Gancarz,
there is an evidentiary question about the precise extent of Gancarz’ directives. Although the
Employer called Gancarz as a witness, she was not asked about this matter.23 Liss did testify

22 As to her own lack of response, Gulotta explained that, “I was afraid to answer.” (Tr.
499.)
23 This failure to solicit Gancarz’ recollection of her discussion with Liss is noteworthy. See
Dayton Newspapers, 339 NLRB 650, 652 (2003) (Board finds violation based, in part, on a
party’s failure to ask its witness about a disputed conversation in which he had been a
participant.)
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about what Gancarz told her to do, but that testimony was contradictory and confusing. Initially,
Liss reported that after her discussion with Gancarz, she located Willard and explained to her
that Gancarz wanted them to “address the flyer.” (Tr. 1105.) She explained that Gancarz
wanted them “mostly to address” the flyer’s allegation that Shuey had humiliated managers in
meetings.24 (Tr. 1106.)
Liss reported that she and Willard then proceeded to hold a series of meetings with
employees in the various units. Although elsewhere Liss testified that she was instructed to
“mostly” confine her comments to the alleged humiliation of supervisors, when she described
the key meeting at Baxter she took great pains to explain that she limited herself strictly to that
subject matter. She testified that she told the assembled employees:
I can’t speak to anything else but the last line that says that this
gentleman does not—that it says that there are rumors that he
humiliates Supervisors in morning meetings. I’m here to tell you
that I sit in those morning meetings and this gentleman has not
humiliated any of us in those morning meetings. I’m here to address
that. So, I’m here to [tell] you that this is not true.
(Tr. 1113.) I find this a very odd formulation. Liss repeats four times in four sentences that she
has only convened this employee meeting to convey one piece of information consisting of the
fact that Shuey did not humiliate supervisors. As the Bard famously put it, “The lady doth
protest too much, methinks.”25 Indeed, under cross-examination, Liss’ testimony reinforced my
sense that Gancarz’ instructions had been broader than a mere discussion of the allegation
about supervisors being humiliated. She responded affirmatively when asked if Gancarz “told
you that you were supposed to go and tell them the truth about this flyer.” (Tr. 1125.) In follow-
up, Liss was asked:
GENERAL COUNSEL: Is it correct that she told you that you’re to
tell Employees that the truth was that none
of the Supervisors were humiliated by Mr. Shuey?
LISS: No, she did—no.
(Tr. 1125.)
In addition to contending that she very carefully confined her remarks at Baxter to the
subject of Shuey’s behavior at management meetings, Liss also stressed that she did not ask
any questions about the flyer or about the Union.26 She also denied characterizing the flyer as

24 I find her use of the term “mostly” to be significant. Indeed, she repeatedly used this term
in her testimony about her statements regarding the flyer. For instance, in her meeting with
employees of the DH Unit, she told them that, “I was just here to address this flyer that was
brought to my attention, mostly the last line, which states that this gentleman that is here
humiliates the Supervisors in morning meetings.” (Tr. 1110.) Her use of this term appears to be
an attempt to avoid a definitive statement that Gancarz only instructed her to address one
relatively minor point involving the flyer.
25 Hamlet (III, ii, 239).
26 In what I can only view as a proverbial attempt to “gild the lily,” Liss recounted that at her
next employee meeting at the Davis unit, one of the employees examined the flyer and told Liss,
“Oh, I know who did this.” (Tr. 1117.) Liss claimed that she replied, “Oh, you do? Oh, oh, I
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disgusting or accusing union supporters of damaging a car.
In resolving the conflict in testimony about the Baxter meeting, I readily conclude that the
accurate version was presented by the employee witnesses. Their testimony was detailed and
consistent. On the other hand, Liss’ testimony was inconsistent, illogical, and implausible.
Specifically, I agree with counsel for the Union’s assessment of the logic and plausibility of Liss’
claim to have rigidly restricted herself to one small topic of discussion. As he describes it,
When Ms. Liss took the witness stand in this hearing, she testified
that Administrator Gancarz instructed her “mostly” to address a
single statement on page four of the flier regarding the way Shuey
had reportedly treated supervisors at meetings; however this
suggestion strains credulity. It would serve no conceivable purpose
for Sweet Brook to interrupt the work of its employees to assert that
Mr. Shuey had not humiliated any managers when that assertion
would have absolutely no impact on employees’ decision as to
whether having a Union was worthwhile.
(CP Br. at p. 19.) While this puts it a bit strongly, I essentially agree that it is unlikely that a
series of employee meetings would be convened solely to discuss a topic of only marginal
interest to those employees who were affected by the organizing campaign. Instead, I find that
Wilton and Gulotta’s contention that the meeting included repeated interrogations regarding the
authorship of the flyer is credible and accurate.
These events arising from management’s responses to the Union’s organizing effort led
to the filing of a flurry of charges in the latter part of March. In those charges, the Union alleged
that the Company committed unfair labor practices in the conversation regarding Simi Norilla, in
the interrogations about the Shuey flyer, in the distribution of copies of the letter to Hasegawa,
and in the response by Card to Sticker Day. (R. Exhs. 21, 22, 30, & 32.)
During this unsettled and contentious period, a former employee of Sweet Brook, Nicole
Moran, started a home healthcare business named Compassionate Care. In her efforts to staff
the new organization, she engaged in recruitment of some of her former colleagues at Sweet
Brook. Among the employees who accepted her offers of new positions were Carmain and
Miller. More significantly for this case, Moran also offered employment to Martin. Because the
new job would include a pay raise, Martin decided to accept.
On March 26, Martin wrote her letter of resignation from Sweet Brook. It was direct and
to the point, providing in its entirety, “[t]his is my two week notice. My last day will be April 8th.
Thank you.” (R. Exh. 8.) She hand-delivered this letter to a supervisory employee, Wendy
Kelly. Because another person was present in Kelly’s office at the time, Martin did not engage
Kelly in conversation. Later that day, Martin returned to Kelly’s office and the two spoke about
the resignation. Martin provided uncontroverted testimony that Kelly “asked me to stay and if
there [w]as anything they could do to keep me.” (Tr. 127.) Martin responded in a joking manner
by asking for more money. Kelly replied that, “I wish I could do that.” (Tr. 127.) The two then
agreed that Martin would work on April 7 and 8, days on which she had previously been
scheduled for time off.
On April 2, Martin’s career plans received an unexpected jolt when she learned that she
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don’t want to know.” (Tr. 1117.)
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was pregnant. This posed a dilemma since, “[w]ith the job at Compassionate Care the benefits
weren’t as good. I wouldn’t accrue benefit time like I would at Sweet Brook . . . . Maternity leave
was my big issue.” (Tr. 127.) In consequence, Martin decided to remain at Sweet Brook. She
telephoned Kelly and “told her what I decided and she said I’m going to talk to Cindy [Dix] and
I’ll call you back.” (Tr. 128.) Martin reported that she understood that Kelly lacked authority to
accept Martin’s request to retract her resignation and that the decision would have to come from
Dix.
When Martin did not receive a follow-up telephone call from Kelly, she contacted her
again on the following morning. Kelly reported that she had raised the matter with Dix and that
Dix wanted to meet with Martin about it. Although Martin worked over the next 2 days, Dix was
not on duty.27 It was not until April 6 that a meeting could be arranged.
During the intervening period between Martin’s request to withdraw her resignation and
her meeting with Dix, upper level managers were informed of Martin’s request. Moresi indicated
that she heard about it on April 6 from either Dix or Kelly. Moresi testified that she believed that
it would fall to Dix to make the decision about whether to permit Martin to withdraw her
resignation. As she described it, “She was Elise’s supervisor or manager. She’s the director of
nursing, at that time. It was ultimately her decision.” (Tr. 919.)
As is increasingly becoming a feature of both modern life and modern litigation, the
course of management’s deliberations about Martin’s future may be closely observed through a
string of e-mails that were generated among the participants. At 8:29 a.m. on April 6, Moresi
addressed an e-mail to Dix and Gancarz with a copy to Kelly. In it, she advised that Kelly had
just asked her what had been decided regarding Martin. Moresi added “My thoughts is that we
let her leave, she had done this in the past and we are trying to Change the environment here.
Your thoughts”28 (GC Exh. 28.)
Gancarz testified that this e-mail represented her first knowledge that Martin was
seeking to withdraw her resignation. Upon receiving this e-mail, Gancarz reports that she
engaged in the following analysis:
I reflected on conversations with Sharon and Cindy Dix about
Elise’s history of absenteeism and her history of coming to the
facility and leaving and coming back to the facility and leaving.
And decided that based on the culture change that we needed
with employees in the building that we should not hire her back.
(Tr. 1140.) Gancarz indicated that she did not recall whether she actually spoke to Moresi or
Dix about Martin’s request at that point. However, Moresi testified that she did not speak with
Gancarz or Dix after sending her e-mail about Martin. I readily credit Moresi’s testimony on this
point as it conforms to the clear evidence provided by the e-mail string. That record of
correspondence shows that Gancarz replied to Moresi’s e-mail precisely 2 minutes later, at 8:31
a.m.
Gancarz’ response to Moresi’s inquiry about Martin’s request was as brief as the time it
took her to engage in her reflections on the issue. She simply informed Moresi and Dix that,
“We should not let her come back.” (GC Exh. 28.) Eight minutes later, Moresi responded to

27 Those 2 days were the weekend of April 4—5.
28 I have not altered the original’s grammar, capitalization, and punctuation.
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Gancarz and Dix with the comment that, “[t]hose were my thoughts as well.” (GC Exh. 29.)
Somewhat superfluously, Dix finally joined the e-mail discussion 2 minutes later, observing that,
“Elise . . . as I explained to Wendy, I do not want to keep her.” (GC Exh. 29.) [Ellipsis in the
original.] Thus was the matter of Martin’s fate decided. Moresi testified that there were no
conversations among the three managers after this chain of brief e-mail messages. Gancarz
readily noted that she had been the actual decisionmaker. All that remained was to convey the
decision to Martin.
Martin testified that she performed her usual duties during the morning of April 6. At the
time of her normal morning break, approximately 9:30 to 9:45 a.m., she went to Kelly’s office
and asked to speak with Dix. Kelly called Dix and arranged a meeting. The meeting was
attended by Dix, Moresi, and Martin. Moresi was present as a witness and did not speak during
the brief encounter.
According to Martin, Dix began the meeting by observing that, “I hear a rumor that you
want to take your notice back.” (Tr. 251.) Martin confirmed this. Dix’s response, in its entirety,
was that, “[Y]ou hated your job enough to put in your notice, we’re not going to take you back.”
(Tr. 251.) On hearing this, Martin says that she burst into tears and fled the office.
Moresi’s version of what transpired at the brief meeting is substantially similar to Martin’s
account.29 As she described, Dix began the meeting by reporting that, “I hear you want to take
back your resignation.” (Tr. 937.) Moresi was unable to recall whether Martin made any
response to this introductory comment. Dix went on to tell Martin that, “I don’t really think that’s
a good idea, you have decided to put in your resignation and you’re unhappy; sometimes, it’s
okay to leave the job that you’re in and you might find a different position that’s better for you, so
we’re not going to let you take your resignation back.” (Tr. 937.) Moresi agreed that, on hearing
this news, Martin began to cry and “stormed out of the door.” (Tr. 937.)
At this juncture, it is appropriate to make two further comments regarding the Employer’s
position as to the contents of this crucial exchange between Dix and Martin. First, it must be
noted that the Employer failed to call Dix as a witness regarding either the decision to refuse
Martin’s request or the manner in which that decision was conveyed to Martin. The Employer
has utterly failed to offer any reasonable explanation for this. Dix remained employed as a
supervisor at Sweet Brook throughout the first week of this trial. She departed in October 2009
in order to resume her education. Prior to resigning, she provided the Employer with a full
month’s notice. As her departure occurred after the initial week of testimony, the Employer was
clearly on notice as to the significance of her role in these matters. The record contains
absolutely no indication of any difficulty in securing her cooperation as a witness. Nor does it
indicate that she was ever issued a subpoena. As I result, I conclude that it is appropriate to
draw an adverse inference from the Employer’s failure to elicit testimony from Dix.30

29 I agree with counsel for the Union’s characterization of the two descriptions of this key
meeting. As he puts it, “Ms. Moresi’s version of this conversation is slightly different (in a
watered-down sort of way.)” He also colorfully described it was a “milquetoast version.” (CP Br.
at p. 24, fn. 7.) I agree with him that, to the extent there are any material differences in the two
accounts, it is Martin’s account that should be credited. Even months later on the witness
stand, I was struck by her sense of genuine shock and dismay at the manner in which the
meeting was conducted. Her demeanor and presentation reinforced my conclusion that she
was a reliable witness.
30 In describing the nature of this inference, the Board has quoted a well-known legal
encyclopedia stating that, “where relevant evidence which would properly be part of a case is
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The second item of significance in determining what took place between the Employer
and Martin on April 6 is the Employer’s version presented in its position statement dated May
21, 2009.31 In that document, counsel for the Employer asserts:
While the Union now claims that Martin was not permitted to
withdraw her resignation, that is not true. At the point that
Martin walked out of the April 6th meeting with Dix and Moresi,
Sweet Brook had neither approved nor denied Martin’s request
to withdraw the resignation. Rather, Dix and Moresi were
attempting to discuss the request with Martin and understand
the basis for the request and gather the facts they needed to
make a decision.
(GC Exh. 25, p. 5.) Whatever minor differences in nuance exist between Moresi’s account and
Martin’s testimony, neither version in any way supports this description of the meeting.
Furthermore, the e-mails exchanged among the managers conclusively demonstrate that this
version is entirely fictional.
Martin testified that after leaving this meeting in tears she returned to the Davis unit and
spoke to her charge nurse, Anne Powers.32 Martin reported that, “I told her what happened and
I told her I was leaving and gave her a hug and left.” (Tr. 143.) Powers responded by observing
that, “I can’t believe they’re doing this.” (Tr. 262.) Martin advised Powers that she had a
“couple of people left” that needed services. (Tr. 143.) She conceded that she then departed
the facility and failed to swipe out when doing so.
At 9:59 a.m., Dix e-mailed Gancarz to inform her that, “Elise came to me just now to
withdraw her resignation. I had Sharon Moresi sit with us. I told Elise that we would not
withdraw the resignation, she didn’t say a word, got up went to Davis, grabbed her things and
walked out of the building.” (GC Exh. 30.)
On April 30, the Union filed a charge alleging that the Employer’s refusal to permit Martin
to withdraw her resignation was unlawful because it was based on a prohibited discriminatory
motivation. (R. Exh. 71.) At no time since April 6 has the Employer offered employment to
Martin.
B. Legal Analysis
The General Counsel contends that the Employer’s actions and statements made during
the Union’s organizing campaign violated the Act in numerous instances. I will assess each
such claim in chronological order.33
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within the control of the party whose interest it would naturally be to produce it, and he fails to
do so, without satisfactory explanation, the [trier of fact] may draw an inference that such
evidence would have been unfavorable to him.” Martin Luther King, Sr., Nursing Center, 231
NLRB 15, fn.1 (1977). See also, Daikichi Sushi, 335 NLRB 622 (2001), enf. 56 Fed. Appx. 516
(D.C. Cir. 2003).
31 The Board holds that position statements submitted by respondents are admissible.
Roman, Inc., 338 NLRB 234 (2002).
32 Moresi confirmed that Powers was Martin’s charge nurse on that day.
33 In a few cases, the chronology may not be exact. The Board has recently held that
precision as to dates is not mandatory. Thus, where the evidence demonstrates that the
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1. The Employer’s policy regarding solicitation
Prior to the Union’s campaign, Sweet Brook maintained a policy regarding solicitation on
its premises. That policy was contained in its handbook issued to all incoming employees. The
policy provided that nonemployees were prohibited from engaging in any solicitation of
employees. As to staff members, the policy stated:
Staff may not solicit other staff members for any purpose, at
any time, in any area devoted to resident services. Staff who
are on their free time or break time, may not solicit or distribute
literature to staff members who are working . . . . Violations of
the preceding guidelines will result in appropriate disciplinary
action.
(GC Exh. 7, p. 93.)
This policy, which was in effect well before the initiation of the Union’s organizing effort,
appears to be generally consistent with the Board’s legal requirements. The Board has
summarized the content of its precedents in this area as follows:
Under that precedent, a hospital’s prohibition of solicitation or
distribution of literature in immediate patient care areas even
during employees’ nonworking time, is presumptively lawful.
Restrictions on solicitation, during nonworking time and in
nonworking areas, however, are presumptively unlawful even
with respect to areas that may be accessible to patients. The
Supreme Court has upheld these presumptions as consistent
with the Act, and we find no support in the record of this case
for departing from these well-settled principles. [Footnotes
omitted.]
Brockton Hospital, 333 NLRB 1367, 1368 (2001), enf. in pertinent part 294 F.3d 100 (D.C. Cir.
2002), cert. denied 537 U.S. 1105 (2003).
In my view, a fair reading of the Employer’s policy indicates that it permits solicitation
among employees during nonworking time and in areas that are not devoted to resident care.
Unfortunately, once the Union began its activities directed at organizing the employees,
management abruptly altered its preexisting rule. Martin and Gulotta provided uncontroverted
and credible testimony that, shortly after employees began distributing prounion literature, signs
were posted on the doors of the building that prohibited all solicitations. Carmain pinpointed the
timing of this as coming “[w]ithin days after our first Union flyer was distributed.” (Tr. 687.)
Even more clearly, Gulotta’s husband, an employee in the maintenance department, testified
_________________________
unlawful conduct did occur, “minor discrepancies” as to the chronology are not problematic.
The key determination is whether the General Counsel has presented a “satisfactory
foundation” such that “there is no indication that the date uncertainty caused any party” to
experience prejudice. Empire State Weeklies, 354 NLRB No. 91, slip op. at 2 (2009). I have
carefully considered this question regarding those events whose precise dates are not fully
delineated. It is clear that all parties understood the allegations of misconduct and the Employer
was not hampered in its ability to defend against the allegations due to any imprecision.
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that he witnessed his supervisor ordering another member of that department to post the signs.
This took place after the union campaign began. He observed this fellow employee as he
implemented the directive by sticking one of the signs on the fire door of the DH unit.
The Employer does not dispute the timing or content of the newly posted signs that were
placed at the entry points of the facility. Indeed, the Employer provided a photocopy of one of
those signs. It clearly states, “NO SOLICITING.” (GC Exh. 20.) It is obvious that these new
signs represent a significant tightening of the Employer’s preexisting solicitation policy. The
signs mandate a complete prohibition of solicitation, including solicitation among employees
who are not on working time or in a resident care portion of the facility. Furthermore, there was
no contention by the Employer that it issued any statement or clarification of the newly posted
blanket prohibition.34 A reasonable employee would be compelled to conclude that solicitation
within the building was now prohibited under all circumstances.
It is clear that the new prohibition on solicitation contravenes the Board’s guidelines for
such work rules and violates the Section 7 rights of the employees by prohibiting solicitations
that did not involve worktime or resident care areas of the facility. As such, it represents an
overbroad work rule whose implementation violates Section 8(a)(1) of the Act. Beth Israel
Hospital v. NLRB, 437 U.S. 483 (1978).
Beyond this, the decision to post the new rule immediately after the Union’s campaign
began also represents conduct that unlawfully restrains, coerces, and interferes with the rights
of the employees in violation of that subsection of the Act. As the Board has explained:
While the Act does not prevent an employer from making and
enforcing reasonable rules addressing employee conduct during
worktime, it is a violation of the Act for an employer to make
changes to established practices . . . when its motivation for doing
so is the protected activity of its employees . . . . The Respondent’s
failure to offer any persuasive explanation for the imposition of new
restrictions on employee conduct previously allowed supports our
finding that the restriction was in retaliation for the organizational
effort. [Citations omitted.]
Cast-Matic Corp., 350 NLRB 1349, at fn. 4 (2007). In this case, the Employer never attempted
to offer any explanation that would justify its implementation of a new and total prohibition of
solicitation imposed at the precise time that the Union decided to engage in its organizing
campaign. The Employer’s conduct was clearly unlawful.
2. The Employer’s distribution policy
The General Counsel contends that, on February 17, Director of Nursing Dix
promulgated an overly broad distribution policy. It will be recalled that the Employer’s handbook
contains a solicitation policy that had been in effect prior to the Union’s campaign. That policy

34 As the Board has explained, “[t]o be effective, narrowing interpretations of overly broad
rules must be communicated to the entire work force covered by the rule.” Guardsmark, LLC,
344 NLRB 809, 811 (2005). While Moresi and Gancarz reported that solicitation remained
permissible “in the staff dining room and in break areas,” this was never communicated to the
employees. (Tr. 829.) The Employer took no action whatsoever to suggest that there were any
permissible exceptions to the total prohibition on solicitation announced by the new signs.
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also governed distribution of literature by employees while on the premises. The policy
prohibited such distribution during working time and in “resident service areas.” (GC Exh. 7, p.
93.) It also prohibited employees who are not on working time from distributing items to
employees who are on working time.
On the date in question, Martin testified that she was present at the Baxter nurses’
station. She observed a coworker bring union flyers into the nurses’ station and post one of
them on a vertical surface that would make it visible to employees in the station. Unit Manager
Sherman saw the posted flyer and left the area. Shortly thereafter, Sherman returned in the
company of Dix. Dix confiscated the flyer and ordered Martin to report to her office. Once
there, Dix told Martin that hanging flyers in the nurses’ station was “unacceptable.” (Tr. 111.)
Dix added that it was only permitted to distribute flyers in the employees’ breakroom. She
warned that, “[I]f I see anyone doing it again they will be reprimanded.” (Tr. 111.) I have
previously explained my conclusion that Martin’s testimony regarding this event is both reliable
and substantially corroborated by testimony from Gancarz and Kelly Miller.
The General Counsel advances two rationales for concluding that Dix violated Section
8(a)(1) when she met with Martin regarding the distribution of union literature. In the first place,
counsel for the General Counsel correctly observes that the rule articulated by Dix is
significantly different from the preexisting rule set forth in the handbook. While the handbook
permits distribution of literature during employees’ nonworking time in any area of the facility
that is not a so-called resident service area, Dix’s directive limited such distribution solely to the
employees’ breakroom. As the General Counsel notes, this newly promulgated construction of
the distribution policy would eliminate the preexisting authorization to engage in distribution in
such areas as the employees’ dining room, the employees’ parking lot area, and various mixed-
use portions of the facility such as the kitchenettes.35
It is obvious that Dix’s newly established policy was issued in direct and immediate
response to the initiation of the organizing campaign and her discovery of the presence of union
literature in the nurses’ station. The Board holds that, absent proof of a genuine need to
prevent work disruption, implementation of an otherwise facially valid work rule will violate
Section 8(a)(1) if “the Respondent instituted it specifically in response to its employees’ union
organizing activities.” City Market, Inc., 340 NLRB 1260 (2003). Here, the nexus between the
announcement of this newly restrictive distribution rule and the union’s organizing effort is
obvious. The Employer did not attempt to offer any justification for the new policy grounded in
concern about the disruption of work or the impact on patient care. Indeed, it would be difficult
to visualize any impact on the work process given that the effect of the new rule on the
preexisting policy was simply to preclude distribution during nonworking times in places outside
of resident services areas. As a result, I find that Dix’s announcement of new restrictions on
employees’ distribution of literature was made in violation of Section 8(a)(1) of the Act.
I also agree with the General Counsel’s secondary argument regarding this rule. It is not
entirely clear whether the nurses’ station represents a resident care area of the facility as
defined in the handbook’s distribution rule. Even if it is assumed that such is the case, the fact
remains that the Employer has tolerated solicitation and distribution by employees at the station
in the past. Various witnesses testified that the nurses’ stations were the scene of solicitations
and distributions of literature for Avon products, Tupperware, fund raising campaigns,

35 That Dix’s new policy represented a change from the existing work rule was underscored
by Gancarz’ testimony that, “any literature would be allowed in the Staff Dining Room but not
out on the Nurse’s Unit.” (Tr. 1168.) Under Dix’s rule, this would no longer be true.
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Pampered Chef items, and bake sales. Martin reported that members of management
participated in these activities and never attempted to discourage them. Gulotta confirmed this,
citing three specific instances when she made sales to supervisors. Wilton testified to the same
effect, noting that such activities in the nurses’ stations were, “perfectly all right” as far as
management was concerned. (Tr. 565.) Indeed, Wilton reported that Avon catalogs remained
at the nurses’ station after the union campaign was underway. This testimony was also
consistent with the fact that management witnesses never contended that they had enforced the
no-distribution policy regarding the placement of such materials in the nurses’ stations.
The Board prohibits disparate enforcement of work rules. For example, in Verizon
Wireless, 349 NLRB 640 (2007), the employer maintained a written policy against solicitation
during working time. Pursuant to this work rule, it imposed discipline on an employee named
Neubauer for attempting to obtain signatures on union authorization cards during work time.
The Board noted that, despite the existence of the written policy, “employees were seen during
working time going from cubicle to cubicle selling items (such as candy, meals, and Girl Scout
cookies) to their coworkers.” Id. at 641. In finding the discipline of Neubauer to be unlawful, the
Board discussed the principle involved:
[T]he Respondent maintained a rule prohibiting solicitation for
any purpose on working time. Such rules are presumptively
lawful . . . . However, the presumption of lawfulness is effectively
rebutted here, as the record reflects that the Respondent
permitted a variety of nonunion solicitations during working
time and sought to enforce its rule only against Neubauer’s
union solicitation . . . . In these circumstances, the Respondent’s
. . . . disparately applied rule violated Section 8(a)(3). [Citations
omitted.]
349 NLRB at 642.36
While the placement of union literature in the nurses’ station may have constituted a
violation of the handbook’s distribution policy, the Employer nevertheless engaged in an unfair
labor practice where it threatened discipline “pursuant to an otherwise valid no-solicitation rule,
when it intentionally target[ed] union solicitors while tolerating nonunion solicitations by other
employees.” SNE Enterprises, Inc., 347 NLRB 472, 473 (2006), enf. 257 Fed. Appx. 642 (4th
Cir. 2007).
Under both legal theories advanced by the General Counsel, I conclude that the
Employer violated the provisions of the Act by announcing a newly restrictive rule on distribution
and by disparately threatening enforcement of its distribution policies against union activity while
accepting violations of the policy by employees engaged in distribution of nonunion-related
materials.
3. The Employer’s response to Sticker Day
One of the major events conducted by the Union during its campaign was a
demonstration of its support among Sweet Brook employees that it called Sticker Day. On

36 Because the employer in Verizon actually imposed discipline, the Board referred to the
violation as involving Sec. 8(a)(3). However, in the citation in support of its conclusion, it added
that the same course of conduct would also violate Sec. 8(a)(1).
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February 21, Hasegawa stationed himself outside the workplace and distributed stickers to
employees who wished to show their support for the Union. The stickers bore the Union’s logo
and the slogan, “Be fair to those who care.” Numerous employees chose to place the stickers
on their clothing. This was observed by the weekend nurse manager, Linda Card. By her own
account, Card e-mailed Gancarz to ascertain the appropriate response by management. For
reasons already discussed, I have determined that Gancarz instructed Card to prepare a list of
employees who had chosen to wear the stickers. There is no doubt that Card complied with this
instruction. Indeed, the evidence of record contains two such lists compiled by Card. The first
list is a handwritten document while the second is an e-mail that transmitted the names to
Gancarz.
The General Counsel alleges that one particular aspect of Card’s behavior on Sticker
Day constituted an unfair labor practice because it consisted of unlawful surveillance of
protected activity and also the creation of an impression of such unlawful surveillance. At the
outset of my analysis, I note that the Board has authorized a finding of both such forms of
unlawful conduct where the course of events contravenes the Board’s prohibition against both
surveillance and creation of an impression of surveillance as has been alleged here. In Ivy
Steel & Wire, 346 NLRB 404 (2006), the administrative law judge found that the employer
violated the Act by “engag[ing] in, and/or creat[ing] the impression that it was engaging in
surveillance.” Id. at 404. The Board adopted this approach, noting that such a dual finding had
an impact on the appropriate remedy since the dual finding would require an order that the
employer “cease and desist from engaging in both kinds of unlawful conduct.” Id. at 404. In my
view, Card’s response to Sticker Day involved both sorts of misconduct and requires a remedial
approach consistent with that conclusion.
The starting point for evaluation of Card’s behavior must be the clear recognition that
there was nothing unlawful about her natural human inclination to take note of which employees
chose to wear the stickers. Indeed, it is entirely possible that one of the reasons the employees
chose to engage in this behavior was to send a message to management regarding their
support for the Union. As the Board has explained:
We have no quarrel with the judge’s observation that
those who choose openly to engage in union activities at or
near the employer’s premises cannot be heard to complain
when management observes them. The Board has long held
that management officials may observe public union activity
without violating the Act so long as those officials do not “do
something out of the ordinary.” [Footnotes omitted.]
Eddyleon Chocolate Co., 301 NLRB 887, 888 (1991). However, as indicated by the language of
the final sentence of this quotation, the Board does prohibit an employer from conveying a
message to its employees that “it is closely monitoring the degree of an employee’s union
involvement.” Flexsteel Industries, 311 NLRB 257, 258 (1993).
I have carefully examined Card’s behavior on Sticker Day and conclude that it was
designed to send a coercive message to those employees who elected to manifest their union
support by wearing the stickers. There was consistent and credible testimony from the affected
employees that Card’s behavior was notably peculiar. She took pains to ostentatiously examine
the sticker wearers and follow this scrutiny with an immediate written notation on a clipboard.
As Melinda Gulotta phrased it, Card’s behavior was “very unusual.” (Tr. 502.) The testimony of
the employees was strongly corroborated by the evidence of management’s reaction to Sticker
Day, including Gancarz’ directive to Card to prepare this list of employees and to confront the
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employees regarding their judgment in choosing to display the stickers.
In sum, I find that Card engaged in a deliberate effort to convey a coercive and
intimidating message by making a great show of noting and recording the names of those
employees who wore stickers.37 Because her conduct was designed to interfere with the
protected activities of the employees, it violated Section 8(a)(1). In addition, because it bore
aspects of both an actual surveillance conducted in an unlawful manner and the deliberate
creation of an impression of surveillance, I will recommend that the Employer be ordered to
cease both forms of intimidation.
4. Moresi’s presence in the parking lot
The General Counsel next alleges that Moresi engaged in unlawful surveillance of
employees by maintaining a vigil in the facility’s parking lot during a period from “about mid-
February and early March.” (GC Exh. 1(e), p. 3.) This allegation is premised on testimony from
two employees and Moresi’s participation in a confrontation with Hasegawa.
The first such testimony consisted of very brief statements by Wilton. She reported that
after the organizing campaign began she observed Moresi sitting in her car in the parking lot.
When asked for details as to Moresi’s behavior, Wilton simply reiterated that Moresi was, “[j]ust
sitting.” (Tr. 571.) Under cross-examination, Wilton reported that she made this observation on
two occasions.
The second witness to report Moresi’s presence in the parking lot was a custodial
employee, Gary Charron. Charron reported that after the Union’s campaign began he observed
Moresi, Kelly, and Sherry Sprague standing outside their vehicles in the parking lot. I asked
what he saw them doing and learned that the three were “[j]ust standing there, talking.” (Tr.
453.) On cross, Charron was asked how often he had witnessed this behavior and reported that
he had observed it “[a] couple of times, three times. That’s about it.” (Tr. 480.)
Finally, there is no dispute that Moresi was involved in an incident with Hasegawa that
took place in the parking lot. Hasegawa testified that he was present in his automobile at
approximately 6:30 to 7 a.m. He was there to deliver union leaflets to Melinda Gulotta. He
testified that once he spotted Gulotta he looked inside his vehicle in order to pick up the leaflets.
He described what happened next as follows: “I looked up and Sharon Moresi was in my
window.” (Tr. 392.) As indicated earlier in this decision, Moresi then blocked Hasegawa’s
attempt to pass the leaflets to Gulotta and ordered him to depart from the property.
Moresi testified that during the period under examination she came to work “between
6:00 and 6:30 every day.” (Tr. 816.) The Employer’s time and attendance records corroborate
this testimony.38 (R. Exh. 34, pp. 29 & 30.) Like all the employees, she parked her car in the

37 In my view, the message Card was sending on behalf of the Employer was the one
epitomized by the old military expression of “kicking a- - and taking names.”
38 The best indication of the date of the Hasegawa-Moresi parking lot confrontation is
Gancarz’ subsequent letter to Hasegawa. In that letter, she asserted that Hasegawa was in the
parking lot on February 28 and March 2. (GC Exh. 9.) Moresi’s time records for those dates
show that she clocked into work at 6:40 a.m. on each day. Given that Hasegawa testified that
the confrontation occurred between 6:30 and 7 a.m., it is certainly reasonable to conclude that
the event happened as Moresi was reporting to work. As a result, her appearance at
Hasegawa’s car window is at least as likely to represent a coincidence rather than some
Continued
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employee portion of the facility’s parking area located in the rear portion of the lot. She then
walked through the visitors’ parking area in order to enter the building. She flatly denied
engaging in any intentional plan of surveillance of employees’ activities in the lot.
As I have already noted, the Board’s jurisprudence in this area recognizes that open
union activity may well be observed by supervisors. The Board’s analysis focuses on whether
these observations were ordinary or represented unusual behavior. In Aladdin Gaming, LLC,
345 NLRB 585 (2005), rev. denied 515 F.3d 942 (9th Cir. 2008), the Board explained:
A supervisor’s routine observation of employees engaged in
open Section 7 activity on company property does not constitute
unlawful surveillance. However, an employer violates Section 8(a)(1)
when it surveils employees engaged in Section 7 activity by
observing them in a way that is “out of the ordinary” and thereby
coercive.
. . . .
In Wal-Mart Stores, 340 NLRB 1216, 1223 (2003), for example, the
Board found that a manager’s 30-minute observation while sitting on
a bench outside the store of union handbilling taking place in the
employer’s public parking lot, unaccompanied by other coercive
behavior, did not constitute unlawful surveillance. Similarly, in Metal
Industries, 251 NLRB 1523, 1523 (1980), the Board found that an
employer did not unlawfully surveil its employees where the employer
had a longstanding practice of going to the employee parking lot to say
goodbye to its departing employees at the end of the workday. The
employer’s observance of the employees’ Section 7 activity was inseparable
from its regular and noncoercive practice.
345 NLRB at 586. [Some citations omitted.]
Applying this test, there is simply insufficient evidence to conclude that Moresi engaged
in unlawful surveillance in the facility’s parking lot. There was nothing unusual in her presence
on the lot as it was her pattern to drive to work in the early morning and park her vehicle in that
location. There was no testimony indicating that she was engaged in behavior suggestive of
coercive observation of protected activity. Standing in the lot and engaging in conversation with
colleagues is not out of the ordinary. Isolated instances of sitting inside her vehicle before
entering the building are likewise not probative of unlawful conduct. While the encounter with
Hasegawa is more suggestive, there is no evidence that it was the product of surveillance as
opposed to happenstance. The incident occurred in a location and at a time when Moresi was
commonly present in that area.39
_________________________
evidence of surveillance.
39 This contrasts with the Board’s finding of a violation in Sprain Brook Manor Nursing
Home, LLC, 351 NLRB 1190 (2007), where a supervisor stationed herself to observe union
activity in the nursing home’s parking lot. In that case, the evidence demonstrated that the
surveillance occurred on a weekend, a time when the supervisor was not ordinarily present at
the facility. Indeed, the supervisor testified that the reason she was there on the day in question
was solely for the purpose of watching the union activity. All of this stands in sharp contrast to
Moresi’s routine presence in the parking lot.
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The Board has cautioned that “mere suspicion cannot substitute for proof of an unfair
labor practice.” Lasell Junior College, 230 NLRB 1076 (1977). Based on the totality of
circumstances, I conclude that the General Counsel has failed to meet his burden of proving
that Moresi’s behavior in the parking lot represented any violation of the Act. I will recommend
dismissal of this allegation of unlawful surveillance.
5. Moresi’s questioning of Martin regarding an unfair labor practice charge
The General Counsel alleges that Moresi engaged in another episode of unlawful
conduct consisting of an improper interrogation and the making of an implied threat of reprisal
for protected activities. Unlike the surveillance allegation, I conclude that the evidence clearly
established that Moresi did engage in this unlawful behavior.
The episode in question occurred on March 2. That afternoon, Moresi approached
Martin and asked to speak with her. They stepped into a hallway where Moresi showed Martin
a copy of an unfair labor practice charge filed by the Union. The charge concerned Dix’s
admonition of Martin for her supposed distribution of union flyers. Martin was specifically
named in the charging document. I credit Martin’s report of the ensuring conversation which
began with Moresi “ask[ing] me if I had ever seen it.” (Tr. 116.) When Martin replied that she
had not seen it, Moresi retorted that, “[W]ell, your name is on it.” (Tr. 116—117.) On hearing
this, Martin began to cry. Moresi then advised her, “[D]on’t worry, Cindy [Dix]’s not mad at you
. . . . We know it’s the union that’s doing this, not you.” (Tr. 118.) Later that day, Moresi again
addressed Martin on this topic, asking if she was “okay.” (Tr. 234.)
Counsel for the General Counsel contends that Moresi’s statements constitute two
separate violations of Section 8(a)(1), an unlawful interrogation and an unlawful threat. I agree.
As to interrogation, the standard for analysis is as follows:
Under Board law, it is [well-established] that
interrogations of employees are not per se unlawful, but
must be evaluated under the standard of “whether under
all the circumstances the interrogation reasonably tended
to restrain, coerce, or interfere with rights guaranteed by
the Act.” In making that determination, the Board considers
such factors as the background, the nature of the information
sought, the identity of the questioner, the place and method
of interrogation, and whether or not the employee being
questioned is an open and active union supporter. [Footnote
omitted.]
Norton Audubon Hospital, 338 NLRB 320, 320—321 (2002).
In this situation, the context, including the hotly contested organizing campaign,
heightens the coercive nature of the exchange. The identity of the questioner is also a factor
that supports a finding of illegality as Moresi was outside Martin’s normal chain of command and
was customarily involved in matters of employee discipline. The place of interrogation, a
hallway, was not indicative of coercion, but the method of interrogation was since it involved
Martin’s removal from her work location for a private discussion with a high management official.
Since Martin was an open union supporter, this factor does not support a finding of misconduct.
Finally, and most significantly, I conclude that the nature of the information being sought was a
powerful factor demonstrating a clear intent to restrain, coerce, and interfere with Martin’s right
to engage in union activity.
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Moresi’s primary question of Martin, whether Martin had seen the unfair labor practice
charge filed by the Union, was clearly designed to ascertain the extent of Martin’s involvement
in protected union activities. The Board has strongly expressed its particular concern regarding
interrogations that represent “a pointed attempt to ascertain the extent of the employees’ union
activities.” SAIA Motor Freight, Inc., 334 NLRB 979, 980 (2001). Furthermore, the Board has
stated its condemnation of the interrogation of employees “because they have filed an unfair
labor practice charge or because someone has filed such a charge on their behalf.” Quality
Engineered Products, 267 NLRB 593, fn. 3 (1983).40 This is precisely what Moresi did. Based
on the totality of the circumstances, I conclude that her questions to Martin regarding the unfair
labor practice charge constituted an unlawful interrogation and violated Section 8(a)(1).
The General Counsel also argues that Moresi’s statements to Martin represented an
implied threat against her due to her participation in protected activities. Counsel for the
General Counsel explained her reasoning as follows:
[B]y linking her assurance that “Cindy is not mad at you” to
her belief that the Union, and not Martin, was responsible for
the charge, she gave the clear impression that if Martin had
been responsible, then Dix would be “mad” at her—a fact that
would easily be perceived as a basis for discipline. [Italics in the
original.]
(GC Br. at p. 37.)
I agree with this analysis. Moresi’s remarks were a sly attempt to insinuate that Martin’s
involvement in the Union’s filing of unfair labor practice charges would anger management.
This point was underscored by the fact that it followed on the heels of Moresi’s interrogation of
Martin regarding her knowledge about the filing of the charge.
The Board’s jurisprudence recognizes that alleged threats by employers must be
examined in a worldly, realistic, and thorough manner. As the Board has put it,
[W]ords must be analyzed in terms of the context in which they
appear, for . . . “[w]ords are not pebbles in alien juxtaposition; they
have only a communal existence; and not only does the meaning
of each interpenetrate the other, but all in their aggregate take
their purport from the setting in which they are used, of which the
relation between the speaker and the hearer is perhaps the most
important part. What to an outsider will be no more than the
vigorous presentation of a conviction, to an employee may be the
manifestation of a determination which it is not safe to thwart.”

40 The General Counsel does not allege that Moresi’s interrogation of Martin regarding her
participation in the filing of an unfair labor practice charge also violated Sec. 8(a)(4). That
subsection prohibits discrimination against employees based on their filing of charges or
participation in proceedings before the Board. In my view, Moresi’s behavior clearly implicates
the concerns underlying that provision of the statute. Nevertheless, I recognize that the Board,
in Quality Engineered Products, supra at fn. 3, while facing the same situation, opined that it
was “unnecessary” to address the matter in light of the finding of a violation of Sec. 8(a)(1). As
a result, I will not go beyond the confines of the General Counsel’s legal theory.
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[Quotation marks supplied.]
L.W.D., Inc., 335 NLRB 241, 242, fn. 6 (2001), enf. in part 76 Fed. Appx. 73 (6th Cir. 2003),
citing language from Judge Learned Hand in NLRB v. Federbrush Co., 121 F. 2d 954, 957 (2d
Cir. 1941).
I conclude that Moresi’s statements, taken in their proper context, represented an
unlawful threat of unspecified reprisal against Martin. As the Board has explained, “the test for
whether a statement violates Section 8(a)(1) is not whether the statement is unambiguous; it is
whether, from the standpoint of the employees, it has a reasonable tendency to interfere with,
restrain or coerce the employees in the exercise of protected rights.” Joseph Chevrolet, Inc.,
343 NLRB 7, 9 (2004), enf. 162 Fed. Appx. 541 (6th Cir. 2006). [Citations omitted.] This
conversation had precisely such a reasonable tendency to restrain Martin from the future
exercise of her right to participate in union activities.
6. Management’s response to Hasegawa’s presence in the parking lot
It is undisputed that the Union’s organizer, Hasegawa, drove his vehicle onto the
Employer’s parking lot for the purpose of conducting organizing activities in that location. This
led to his confrontation with Moresi. Shortly thereafter, the situation prompted Gancarz to draft
a letter to Hasegawa regarding his entry onto the Sweet Brook property. That letter, dated
March 6, warned him that his behavior was “nothing more than common trespass” and
instructed him to refrain from similar conduct. (GC Exh. 9.)
At the outset, it is important to note that the General Counsel does not contend that
Gancarz’ letter constituted an unfair labor practice against Hasegawa. (See tr. 426—428.)
Nevertheless, the General Counsel does assert that the subsequent distribution of that letter
among the employees did represent unlawful activity consisting of the creation of an impression
of surveillance and the intimidation of employees regarding their association with Hasegawa.
Once again, applying a totality of circumstances analysis, I agree.
While Gancarz testified that she did not direct that her letter to Hasegawa be distributed
to employees, she did report that she personally distributed it to managers and supervisors at a
meeting held shortly after the letter was written. Employee Carmain testified that a copy
appeared on her desk. More significantly, Jeffrey Gulotta provided direct and uncontroverted
testimony regarding the distribution of the letter by management. He reported that multiple
copies of the letter were posted on the maintenance department’s bulletin board. The copy
posted in his own section of the message board included his own name which was handwritten
in the corner of the document. He testified that he recognized the handwriting as belonging to
his supervisor, Gengris. I credit his account and conclude that, whether or not Gancarz ordered
it, managers did distribute copies of her letter to Hasegawa among rank-and-file employees.
The General Counsel contends that such distribution created an unlawful impression
among those employees that their union activities in the parking lot were being observed by
management. The Board’s rationale for the impression of surveillance violation is that
employees should be shielded from fear that “members of management are peering over their
shoulders, taking note of who is involved in union activities, and in what particular ways.” Fred’k
Wallace & Son, Inc., 331 NLRB 914 (2000). The analytical test has been described as follows:
In order to establish an impression of surveillance violation,
the General Counsel bears the burden of proving that the
employees would reasonably assume from the statement in
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question that their union activities had been placed under
surveillance.
Heartshare Human Services of New York, 339 NLRB 842, 844 (2003).
I conclude that Gengris’ posting of copies of Hasegawa’s letter annotated by the addition
of each employee’s name on that letter conveyed a subtle but unmistakable impression that
their employer was engaged in careful surveillance of union organizing activity in the parking lot.
Gancarz’ letter to Hasegawa took pains to describe the precise dates and times of his visits to
the lot. The letter went on to assert in the strongest terms that management objected to his
presence and that his presence was viewed as unlawful. By forcefully drawing the contents of
the letter to the attention of individual employees, an unlawful impression of surveillance was
conveyed to them.41 I conclude that a reasonable employee would have been restrained and
coerced from engaging in protected activities in the parking lot based on the implicit message
conveyed by the distribution of the letter to the Employer’s staff.
By the same token, I conclude that the posting of the letter to Hasegawa served to
coerce and intimidate employees by indicating that their association with him in the parking lot
would be offensive to management. This message was underscored by Gancarz’ assertion to
Hasegawa that his presence in the parking lot constituted criminal activity.42 Clearly, no
reasonable employee would wish to become involved in conduct that the employer had deemed
to be illegal in a published communication posted on the bulletin board. As the Board has
observed, “[t]he test of whether a statement is unlawful is whether the words could reasonably
be construed as coercive, whether or not that is the only reasonable construction.” Double D
Construction Group, 339 NLRB 303 (2003). Such is the case here.
7. Sherman’s statements regarding Nurse Norilla
As his next allegation, the General Counsel contends that Unit Manager Sherman
committed two unfair labor practices during a brief conversation with Melinda Gulotta on March
12. At the time, Gulotta was feeding residents in the Baxter day room. Gulotta’s testimony
indicated that Sherman entered the room in order to respond to Gulotta’s request for certain
scheduling information.
In the course of providing Gulotta with the schedule that she had sought, Sherman

41 Counsel for the Employer attempts to argue that the letter was distributed to maintenance
department employees because those employees are supposed to keep watch against
unauthorized visitors to the facility. (See, R. Br. at fn. 36.) There was absolutely no evidence to
support this claim. The portion of the handbook cited by counsel (GC Exh. 7, p. 62) makes no
mention of such a responsibility for maintenance employees and Gulotta denied that such a job
duty existed. (See Tr. 672—674.)
42 It is far from clear that this was true. For example, on the day that Hasegawa was
confronted by Moresi, he was present in the parking lot to meet with Melinda Gulotta. The
Employer’s handbook instructs that, “Staff members should inform others who may be waiting
for them that non-staff may not loiter inside the building nor in areas in front of the building.
They should park in the parking lot while waiting for staff members.” (GC Exh. 7, p. 96.) The
fact that employees were authorized to permit visitors to meet with them in the parking lot
distinguishes this case from North Hills Office Services, 345 NLRB 1262 (2005) (employer may
instruct employee not to speak to union organizer in parking lot where it maintains a rule against
all nonemployee visitors and premises were considered to be a possible target for terrorists).
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apologized for the delay in furnishing this information, explaining that she was “having a hard
time” completing the schedules because she had “been very busy.” (Tr. 510.) Obviously feeling
defensive about her performance, she continued to justify the delay by noting that “she was
having to take care of two units, so she had a lot on her plate.” (Tr. 510—511.) Her dual
responsibilities arose due to a vacancy for a supervisory position on the Davis unit.
In the course of justifying her tardiness and complaining about her workload, Sherman
added that management was thinking of promoting a nurse, Simi Norilla, to fill the vacant
position. Gulotta reported that Sherman observed that she thought they would not hire Norilla
because “they felt that would take a vote away from you guys.” (Tr. 511.) Gulotta opined that
this view was “crazy” since Norilla was actually opposed to the Union.43 At that point, Sherman
threw up her hands and said, “I don’t know what Simi is. I have my own group to take care of.”
(Tr. 511.) That was the end of their exchange.
The General Counsel argues that Sherman’s brief comments violated Section 8(a)(1) in
two ways. First, it is alleged that the remarks created an impression of surveillance presumably
by suggesting that the Employer was aware of the employees’ opinions regarding the
representation issue.44 Second, it is asserted that Sherman’s remarks constituted an unlawful
threat because they suggested that the Employer was “making a decision whether or not an
employee should be promoted based on that employee’s union activities.” (GC Br., at p. 38.)
I am at a complete loss to understand how Sherman’s comments could be construed as
creating an unlawful impression of employer surveillance of union activity. It was apparent that
the actual impression that Gulotta drew from Sherman’s remarks was precisely the opposite.
She boldly informed her supervisor that she was “crazy” to think that Norilla was a union
supporter. (Tr. 511.) If anything, Sherman’s statement appears to have revealed to Gulotta that
management had no idea regarding the views of at least this particular employee. Furthermore,
to the extent that Sherman’s statement appeared to suggest what she had heard about Norilla’s
opinions, they did not reasonably give rise to an impression of surveillance. As the Board has
noted,
[a] statement as to what someone has heard could be based
on (1) what he had heard from the grapevine or (2) what he
had picked up from spying. There is no reason to infer the
latter as the source over the former. [Italics in the original.]
SKD Jonesville Division L.P., 340 NLRB 101, 102 (2003). Sherman’s comment did nothing to
indicate the source of her opinion regarding Norilla’s sympathies.
The contention that Sherman’s comments were coercive because they linked Norilla’s

43 Gulotta’s response was fairly incoherent. She told Sherman that Norilla “was a no vote.
They want Simi to vote no.” (Tr. 511.) She went on to add, “Why would they want her to vote?”
(Tr. 511.) Of course, if Norilla was opposed to the Union it seems obvious why management
would seek to have her participate in the representation election. All of this illustrates why I
have struggled to comprehend the General Counsel’s position regarding Sherman’s brief
conversation with Gulotta.
44 I say “presumably” because neither counsel for the General Counsel nor counsel for the
Charging Party addressed this aspect of the allegations against Sherman in their briefs.
Instead, their arguments focused on the question of whether Sherman’s statements were an
implied threat.
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possible promotion to her attitude toward the Union presents a closer question. On careful
reflection, I conclude that the General Counsel did not meet his burden of proving that the
statements violated the Act in that manner. The evidentiary record regarding the conversation
is truly scarce. It consists of roughly one page of transcript from a single witness. I have
already indicated that the testimony was difficult to understand as it contained internal
contradictions.45
Fundamentally, I find that Sherman was not engaged in an exercise of intimidation or
coercion. Rather, her comments reveal that she was focused on justifying her tardiness in
responding to an employee’s legitimate need for scheduling information and on complaining
about her workload. The brief discussion strikes me as simply a bit of typical workplace gossip
and griping. To infuse it with a more sinister meaning would be to engage in an impermissible
degree of conjecture and speculation. See Neptco, Inc., 346 NLRB 18 (2005).
For these reasons, I conclude that Sherman’s statements to Gulotta regarding Nurse
Norilla have not been shown to constitute violations of the Act. As a result, I will recommend
that the two unfair labor practice allegations arising from those statements be dismissed.
8. Management’s response to the Shuey flyer
On March 14, management received a copy of a piece of union campaign literature that
provoked a strong response. The item in question was a flyer that discussed the activities of a
consultant hired by the Employer, including several drawings of this individual that were
somewhat unflattering caricatures. The contents of the flyer were reported to the highest levels
of management, specifically Administrator Gancarz. She instructed Liss and Willard, two
supervisors, to convene a series of employee meetings to address the flyer. Several such
meetings were held, including one attended by Wilton and Melinda Gulotta.
The General Counsel contends that during this meeting Liss conducted an unlawful
interrogation of employees regarding their protected activities. Strong evidence establishes the
accuracy of this contention. Wilton provided credible testimony that Liss displayed the flyer and
commented that she considered it to be “disgusting.” (Tr. 567.) Immediately following this
comment, she directed her gaze at a nurse, Tondreau, and asked, “Who did this?” (Tr. 567.)
When she failed to elicit a response, she posed the same question to another employee, St.
Pierre. Not receiving satisfaction, she then queried Wilton. Having again been met with silence,
she asked yet another employee who did not respond. Obviously angry and frustrated, Liss
again opined that the flyer was “disgusting” and added that, “I want to know who did this.” (Tr.
568.) All of this was corroborated by Gulotta’s account of this tense confrontation. While Liss
denied that she posed any questions about the flyer, I have already explained that her account
was inconsistent, illogical, and implausible.
I have previously outlined the factors that the Board considers in evaluating an alleged
unlawful interrogation. Among the most salient of those factors is, “whether the questioner
appeared to be seeking information upon which to take action against individual employees.”

45 I was so troubled by the incoherent nature of the evidence on these allegations that I
abandoned traditional notions of judicial reticence by telling the lawyers that “I frankly couldn’t
make heads or tails” about the meaning of Gulotta’s description of this conversation. (Tr. 1160.)
Despite this broad hint, no further evidence was adduced. To be fair, this may well be due to
the impossibility of producing more evidence regarding a brief snippet of workplace
conversation.
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John W. Hancock, Jr., Inc., 337 NLRB 1223, 1224 (2002), citing Bourne v. NLRB, 332 F. 2d 47,
48 (2d Cir. 1964). Any reasonable employee participant in this meeting would have concluded
that this was the clear purpose of Liss’ repeated inquiry as to the authorship of the “disgusting”
pamphlet. The situation is indistinguishable from that described by the Board in United Services
Auto Assn., 340 NLRB 784, 786 (2003), enf. 387 F.3d 908 (D.C. Cir. 2004):
The employees would reasonably perceive that the Respondent
had only one objective in questioning [the employees]—to identify
who had been engaged in the flier distribution. We find such
questioning would reasonably tend to interfere with or deter the
exercise of employees’ Section 7 rights. [Footnote and citation
omitted.]
See also Parts Depot, Inc., 332 NLRB 670, 674—675 (2000), enf. 24 Fed. Appx. 1 (D.C. Cir.
2001) (unlawful to interrogate even an open union supporter about what his face was doing on a
prounion flyer).
I find that Liss’ persistent questioning of employees regarding their involvement in the
protected activity of creating prounion literature constituted a clear interference with the Section
7 rights of those employees. As a result, it was conduct that violated Section 8(a)(1) of the Act.
9. The Employer’s refusal to permit Martin to withdraw her resignation
The General Counsel’s ultimate allegation, both chronologically and in terms of its
impact on the employee involved, is the contention that the Employer engaged in unlawful
discrimination against Martin due to her participation in union activities and in order to
discourage other employees from doing the same. The Employer counters this contention by
asserting that it declined to permit Martin to withdraw her resignation for legitimate reasons
unrelated to her prounion activities and attitudes.
In resolving this dispute, I must apply the analytical framework devised by the Board in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 399—403
(1983). A comprehensive exposition of that test was provided by the Board in American
Gardens Management Co., 338 NLRB 644, 645 (2002):
Wright Line is premised on the legal principle that an employer’s
unlawful motivation must be established as a precondition to finding
an 8(a)(3) violation. In Wright Line, the Board set forth the causation
test it would henceforth employ in all cases alleging violations of
Section 8(a)(3). The Board stated that it would, first, require the General
Counsel to make an initial showing sufficient to support the inference
that protected conduct was a motivating factor in the employer’s decision.
If the General Counsel makes that showing, the burden would then shift
to the employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The ultimate burden
remains, however, with the General Counsel.
To establish his initial burden under Wright Line, the General
Counsel must establish four elements by a preponderance of the evidence.
First, the General Counsel must show the existence of activity protected by
the Act. Second, the General Counsel must prove that the respondent was
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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 motivational
link, or nexus, between the employee’s protected activity and the adverse
employment action.
If, after considering all of the relevant evidence, the General Counsel
has sustained his burden of proving each of these four elements by a
preponderance of the evidence, such proof warrants at least an inference
that the employee’s protected conduct was a motivating factor in the
adverse employment action and creates a rebuttable presumption that a
violation of the Act has occurred. Under Wright Line the burden then shifts
to the employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. [Internal quotation
marks, citations, footnotes, and language not relevant to this case have
been omitted.]
See also the Board’s discussion of this quoted language and Member Schaumber’s additional
commentary in Frye Electric, Inc., 352 NLRB 345, fn. 2 (2008).
Before commencing this analytical process, it is useful to review Martin’s history at
Sweet Brook. She was initially hired as a certified nursing assistant on April 10, 2002. She was
on maternity leave for an 8-week period in 2003 and for a similar period in 2005. In her annual
evaluation for that year, she met every performance standard except in the area of
absenteeism. The evaluator noted that, “Elise is a great worker.” (R. Exh. 27, p. 2.) The report
cited her need to improve her attendance record but praised her as “a great person [who] cares
about the residents.” (R. Exh. 27, p. 2.)
In June 2005, Martin resigned from Sweet Brook in order to accept employment as a
private duty nursing assistant for an elderly lady. This job ended 6 months later when that
person died. Martin then contacted Denault, Sweet Brook’s director of human resources. As
Martin described in uncontroverted testimony, “I told her that I wanted to come back and that
was it . . . . She said, you’re back on the schedule and I started work.” (Tr. 86.) One year later,
Martin was terminated for excessive absenteeism. She testified that her termination for this
cause was due to her medical condition consisting of torn ligaments in her knee. As a
consequence, she filed for unemployment benefits. Sweet Brook contested the issue,
contending that Martin had been discharged for cause. Martin prevailed. Approximately a week
later, Denault telephoned her and, “asked me if I would like to come back to Sweet Brook.” (Tr.
90.) She accepted this offer and resumed her employment in October 2006.46 Indeed, the offer
of employment included a $2500 hiring bonus that Martin received. Moresi testified that the
purpose of this type of bonus payment was to encourage “longevity of the employee.” (Tr.
1041.)
In March 2007, Martin took a 3-week maternity leave. She returned to work during the
following month and was continuously employed by Sweet Brook thereafter until management
refused to permit her to withdraw her resignation almost exactly 2 years later. During those 2

46 Moresi confirmed these events, reporting that she objected to Denault’s decision to rehire
Martin. As Moresi described, “I told her [Denault] that, again, she’d been come and gone in the
past and we’re going to let her come back again?” (Tr. 930.) To which Denault responded,
“she wants to come back and I’m going to take her back.” (Tr. 930.)
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years, she received the usual annual competency evaluations. The December 2007 evaluation
rated her as meeting expectations in every category except absenteeism. It noted that Martin
needed to “[w]ork on absenteeism.” (GC Exh. 15, p. 12.) Thereafter, Martin received a verbal
warning for absences, followed by a first written warning.
On December 4, 2008, Martin received what proved to be her final competency
evaluation. Interestingly, it contained her best annual ratings since her original hire date. She
was rated on 39 separate job categories and was listed as meeting the Employer’s standards in
every one of them. The evaluation form explains that such a rating means that the employee,
“[p]erforms skillfully on the standard [and r]equires normal amount of supervision.” (GC Exh. 10,
p. 1.) Of particular significance to this case, Martin received this rated level of performance in
the area of absenteeism. This represented an improvement from her performance in this area
as reflected on prior annual evaluations. The rating form was signed by Assistant Director of
Nursing Whitney on January 7, 2009, a mere 3 months prior to management’s decision to
refuse to let her remain on the staff.47
At approximately the same time, Whitney prepared another evaluation of Martin’s
performance. Overall, Whitney characterized Martin as “a competent employee, which has a
firm grasp of her job expectations. She is able to assist in orientation of new employees and
helping them to be a positive member of the team here at Sweet Brook.” (R. Exh. 5.) The only
cautionary note in this assessment was that Martin’s attendance record required close
monitoring. As predicted by Whitney, Martin did continue to struggle with the attendance issue.
She received a verbal warning as to this in February. That verbal admonition also informed her
that if she had two additional absences prior to the next October, she would receive a first
written warning. Two months later, she decided to accept the job offer from Compassionate
Care. Immediately thereafter, she learned that she was expecting another child and sought
permission to remain at Sweet Brook because of its superior maternity benefits.
With this background in mind, it is necessary to apply the Wright Line methodology. At
the first step in that assessment process, there can be no doubt that Martin was a prominent
supporter of the Union’s organizational campaign. She served on the Union’s organizing
committee, attended union meetings, distributed union literature throughout the Employer’s
premises, and discussed the Union with her coworkers. The degree of her union sympathies
can best be gauged by recalling that she authorized the Union to feature her photograph and
comments in its flyer announcing the filing of its representation petition. I readily find that Martin
engaged in a course of protected conduct through her active participation in the Union’s attempt
to organize the work force.
Similarly, the evidence is clear that the Employer was well aware of Martin’s union
activities and sympathies. This knowledge included awareness of Martin’s photograph and
prounion commentary on the Union’s election petition announcement. Apart from the clear
evidence that union literature routinely came to the attention of management, Moresi testified
that she “probably” saw the flyer with Martin’s picture on it. (Tr. 963.) In addition, Carmain
testified that she observed Unit Manager Card pick up one of the same flyers from a nurses’
station. She also reported that she saw other supervisors in possession of union literature,
including Assistant Director of Nursing Whitney. Of course, Card’s knowledge of Martin’s union

47 In a praiseworthy example of candor, counsel for the Employer concedes that, apart from
the issue of attendance, Martin’s competency evaluations were “commendable.” (R. Br., at p.
62.) As I have noted, the most recent such evaluation also showed satisfactory performance in
that previously troublesome area of attendance.
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activities is also established by her inclusion of Martin’s name on the list of union supporters that
Card e-mailed to Gancarz on Sticker Day. It also follows that Gancarz’ knowledge of Martin’s
attitude is demonstrated by the receipt of that e-mail. Gancarz also testified that she was aware
that Martin had been specifically named in the unfair labor practice charge regarding the
distribution policy. Furthermore, Moresi chose to interrogate Martin regarding this unfair labor
practice charge in which she was named. Finally, it will be recalled that Dix admonished Martin
regarding which she considered to be Martin’s improper distribution of union literature.48 The
evidence clearly establishes that knowledge of Martin’s strong union sympathies was
widespread among the ranks of management, including awareness at the highest levels.
At the third analytical step, it must be shown that the employee suffered an adverse
action. Typically, this issue requires little discussion. In this case, however, it must be the
subject of at least some brief commentary. It is undisputed that Martin was not discharged by
her employer. Instead, the action taken against her was the decision to refuse her request to
rescind her letter of resignation. Despite this distinction, it is clear to me that the Employer’s
decision represented an adverse action for purposes of the Wright Line analysis. The direct
result of the refusal to allow rescission of the resignation was Martin’s loss of further
employment at Sweet Brook. As another administrative law judge has observed, “[L]oss of
employment [is] frequently referred to as the ‘capital punishment’ of the workplace.” Reno
Hilton, 320 NLRB 197, 209 (1995). More pertinently, the Board has addressed the identical
question in Merrow Machine Co., 337 NLRB 421 (2002). In that case, it characterized the issue
as, “whether the Respondent’s refusal to allow [an employee] to rescind her subsequent
voluntary quit was unlawfully motivated. In resolving this issue, we find that the judge correctly
analyzed the case under Wright Line.” 337 NLRB at fn. 1. [Citation omitted.] Implicit in this
holding is the conclusion that a refusal to allow the retraction of a voluntary resignation
constitutes an adverse action.49
Having found that Martin engaged in protected activities that were known to her
employer and that the Employer took adverse action against her, I must next assess the crucial
issue of motivation. In evaluating whether the adverse action taken against Martin was
substantially motivated by unlawful animus against her union sympathies and activities, it is
necessary to undertake a comprehensive and wide ranging examination of the context
surrounding the refusal to allow her to retract her resignation. The Board has long recognized
that direct evidence of unlawful animus may be difficult to obtain. As a result, “[i]t is well
established that a discriminatory motive may be inferred from circumstantial evidence and the
record as a whole, and that direct evidence of union animus is not required.” Tubular Corp.of

48 Martin testified that she had not engaged in the particular conduct that prompted the
admonition from Dix. This is immaterial because the Board will find the element of knowledge
where the Employer suspects or assumes that the employee engaged in prounion conduct.
See, Martech MDI, 331 NLRB 487, 488 (2000), enf. 6 Fed. Appx. 14 (D.C. Cir. 2001).
49 Over the years, the Board has found unlawful discrimination arising from employers’
refusals to permit revocation of resignations on a number of occasions. See: Charles
Batchelder Co., 250 NLRB 89, 90—91 (1980), enf. denied in pertinent part, 646 F. 2d 33 (2d
Cir. 1981); EDP Medical Computer Systems, 284 NLRB 1232, 1276 (1987); Southwire Co. v.
NLRB, 820 F. 2d 453 (D.C. Cir. 1987); Aero Industries, 314 NLRB 741 (1994); and Star Trek,
the Experience, 334 NLRB 246, 247—248 (2001). In several of these cases, the Board has
taken note that a distinguishing feature of such situations could be a defense that the employer
has already hired a replacement for the worker who tendered the resignation. In this case,
there is absolutely no contention that Sweet Brook had secured a replacement to fill Martin’s
vacancy.
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America, 337 NLRB 99 (2001). [Citations omitted.]
Examining the events involved in this case, I find that a broad and compelling variety of
circumstantial evidence supports a conclusion that the adverse action taken against Martin was
substantially, if not completely, motivated by animus against her involvement with the Union’s
organizing campaign. Naturally, the starting point for an assessment of the Employer’s state of
mind must be the findings I have already made regarding the Employer’s behavior during the
organizing campaign. I have concluded that the General Counsel has proven that management
unlawfully implemented a no-solicitation policy, promulgated an overbroad distribution policy,
engaged in unlawful surveillance and in the creation of an impression of surveillance, conducted
improper interrogations, and made statements that constituted implied threats against
employees due to their union activities. These unfair labor practices constitute clear and
persuasive evidence of management’s willingness to violate the Act in order to frustrate the
Union’s organizing campaign. As such, they represent powerful evidence of unlawful animus.
See, St. Margaret Mercy Healthcare Centers, 350 NLRB 203, 204 (2007), enf. 519 F. 3d 373
(7th Cir. 2008) (animus established by pattern of unfair labor practices, including overbroad
applications of no-solicitation and distribution policies and threats of reprisal).
The Employer’s unfair labor practices go beyond the demonstration of a generalized
attitude of animus against union supporters. It will be recalled that Martin was the direct subject
of the announcement of the overly broad distribution policy by Dix. She was also the target of
the unlawful interrogation and implicit threats made by Moresi in response to Martin’s name
being contained in the Union’s unfair labor practice charge arising from the promulgation of that
unlawful distribution policy. Finally, Martin was among the employees unlawfully subject to
intimidation by Card in response to Sticker Day. These unfair labor practices that directly
targeted Martin in the weeks preceding the refusal to permit her to withdraw her resignation are
highly probative of a specific discriminatory mindset directed toward her particular situation.
See, Waste Management of Arizona, 345 NLRB 1339, 1341 (2005) (inference of animus
appropriate when discharged employee had been “the specific target of two contemporaneous
unfair labor practices”).
Apart from the clear evidence of animus against employees who supported the Union’s
campaign and specific animus against Martin for her involvement in that campaign, I find that
the particular circumstances involved in the Employer’s decision-making process and the
manner in which it chose to explain that decision to Martin are highly revealing. In the first
instance, it is worth noting the Employer’s own policy regarding termination of employment. In
its handbook, it advises the staff that:
Involuntary termination occurs when Sweet Brook initiates
termination of a staff member’s employment. Usually, though
not necessarily, this occurs following progressive discipline
for performance or conduct problems that are severe or
continuing in nature.
(GC Exh. 7, p. 30.) Quite logically, the Employer notes that termination is normally the result of
“performance or conduct problems.”
Interestingly, the record of management’s deliberations regarding Martin’s situation and
the statements made to Martin in explanation of management’s ultimate decision demonstrate
that the adverse action against her did not flow from any such performance or conduct issues.
Instead, it is clear that it was a product of management’s dissatisfaction with her attitude. As
Moresi put it in her e-mail to Gancarz recommending refusal of Martin’s request to remain
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employed, the key factor was management’s “trying to [c]hange the environment here.” (GC
Exh. 28.) This was echoed by Gancarz in her testimony about the decision-making process.
She explained that she decided not to permit Martin to remain on staff, “based on the culture
change that we needed with Employees in the building.” (Tr. 1140.)
Shortly after the decision was made, Dix met with Martin in order to convey the result
and to articulate management’s reasoning underlying the decision to deny her request to remain
on the staff. Dix’s explanation underscores the central importance of attitude as opposed to
performance or conduct deficiencies. In Moresi’s account of that meeting, Dix explains to Martin
that the basis for refusing continuing employment to her was the fact that she was “unhappy” in
her work. (Tr. 937.) In Martin’s version of the conversation, Dix told her that the reason for the
adverse decision was that, “[Y]ou hated your job enough to put in your notice, we’re not going to
take you back.” (Tr. 251.) Under either version, it is evident that the reason for management’s
decision was a negative opinion of Martin’s attitude rather than any misconduct or poor
performance of her job duties.50 Indeed, given Martin’s recent competency evaluation indicating
that she had performed satisfactorily in every area of assessment, it would have been surprising
if management had chosen to cite a performance or conduct issue in support of the decision to
deny Martin’s request to remain employed at Sweet Brook.
The Board has a long history of understandable skepticism regarding employers’
justifications of discharges based on assessment of the terminated employee’s attitude,
particularly when such justifications come within the context of a union organizing campaign.
Given the wonderful breadth of vocabulary in the English language, those justifications are
expressed in many guises similar to this employer’s concerns about “environment,” “culture,”
and the perception that the individual employee was “unhappy” in her job. Thus, the Board
found animus where an employer justified discharge because the employee was a “disruptive
force in the workforce.” Skyline Lodge, 305 NLRB 1097, fn. 1 (1992), enf. 983 F. 2d 1068 (6th
Cir. 1992). Similarly, in James Julian Inc. of Delaware, 325 NLRB 1109 (1998), the Board
rejected the explanation that the former employee was not rehired due to his “attitude.” In so
doing, it underscored that, “[t]he Board has repeatedly found, with court approval, that, in a
labor-relations context, company complaints about a ‘bad attitude’ are often euphemisms for
prounion sentiments.” Id. at 1109. In Boddy Construction Co., 338 NLRB 1083 (2003), the
rejected formulation was that the discharged employee was an “instigator.” In United Parcel
Service, 340 NLRB 776 (2003), the unsuccessfully proffered justification was that the
discharged employee was a “troublemaker.” Finally, in yet another case where the asserted
reason for discharge was simply put as the employee’s “attitude,” the Board found animus and
noted that “[i]t is well settled that an employer’s reference to an employee’s ‘attitude’ can be a
disguised reference to the employee’s protected concerted activity.” Rock Valley Trucking Co.,
350 NLRB 69 (2007). 51

50 It is significant that the uncontroverted evidence establishes that during their meeting Dix
never raised any performance or conduct issue as forming part of management’s rationale for
denying Martin’s request. The Board treats the failure to inform the employee that misconduct
is the basis for action being taken against them as a factor adverse to an employer’s defense.
See Corrections Corp. of America, 354 NLRB No. 105 (2009), slip op. at 4, citing Yellow
Ambulance Service, 342 NLRB 804, 805 (2004).
51 It is also noteworthy that the Board does not hesitate to find violations of Sec. 8(a)(1)
when an employer observes to an employee that he or she appears to be unhappy with their job
and should seek other employment. See Paper Mart, 319 NLRB 9 (1995); Hialeah Hospital,
343 NLRB 391 (2004); and Jupiter Medical Center, 346 NLRB 650 (2006). If such utterances,
in and of themselves, constitute unlawful threats and coercion, adverse action taken against an
Continued
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Apart from the general aura of suspiciousness arising from an adverse action taken
against a prounion employee in the midst of an organizing campaign and premised entirely on a
perception of that employee’s attitude rather than performance or conduct issues, there are
other aspects of the decision-making process in this case that strike me as highly probative of a
discriminatory motivation. It is uncontroverted that the Employer’s first reaction to news of
Martin’s intended departure was utterly inconsistent with the eventual refusal to allow her to
remain. Martin presented her letter of resignation to Wendy Kelly, a supervisory employee.
Later that day, the two had their first opportunity to discuss the matter. Kelly asked Martin,
“what she could do to get me to stay.” (Tr. 240.) Martin responded by suggesting a pay raise.
Kelly ruefully replied that, “I wish I could do that.” (Tr. 240.) This initial response by a line
supervisor to Martin’s stated intention to leave Sweet Brook stands in stark and unexplained
contrast to the eventual position taken by top management. Kelly’s spontaneous reaction to the
news of Martin’s planned departure is probative evidence regarding management’s true attitude
toward Martin’s conduct and performance at the institution.
Another troubling and unexplained oddity involved in the manner of Martin’s departure
from Sweet Brook concerns the deviation from normal procedure involved in the decision-
making process. Moresi testified that she expected that the decision whether to grant Martin’s
request to rescind her resignation would be made by Dix. As Moresi clearly explained, “[I]t was
ultimately Cindy’s decision. She was Elise’s supervisor or manager. She’s the director of
nursing, at that time. It was ultimately her decision.” (Tr. 919.)
Despite this definitive statement regarding the chain of command, the evidence reveals
that Dix did not make the decision or even participate in the process in any way. While Moresi
raised the matter in an e-mail addressed to Dix and Gancarz (with a copy to Kelly), Dix was
never given a chance to offer an opinion. A mere 2 minutes after receiving the e-mail, Gancarz
sent a reply instructing Moresi and Dix to refuse Martin’s request. The fact that the decision to
end a longtime staff member’s employment was made outside the normal lines of authority and
at the highest level of management is indicative of something other than the routine and
impartial operation of the personnel process. The extraordinary nature of the decision-making
process, coupled with the startling and unseemly haste involved in reaching a determination,
suggests something much more personal at work here. I find these unusual circumstances to
be probative evidence of unlawful animus directed against Martin.
Lastly, I was also struck by the tone and content of Dix’s conversation with Martin
regarding the matter. Under either version of that event, Dix’s comments were peculiarly
personal and unprofessional. According to Martin, Dix told her that she was being denied
permission to remain employed because she “hated” her job. (Tr. 251.) This resembles
something approaching a schoolyard taunt rather than a calm and objective explanation of a
personnel action. It reeks of animus. Under Moresi’s version of the same conversation, a
similar conclusion must be reached. According to this account, Dix began by confirming that
Martin sought to revoke her resignation. She continued:
I don’t really think that’s a good idea, you have decided to put
in your resignation and you’re unhappy; sometimes, it’s okay
to leave the job that you’re in and you might find a different
position that’s better for you, so we’re not going to let you take
your resignation back.
_________________________
employee based on such sentiments is clearly an even more serious violation of the Act.
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(Tr. 937.) This explanation drips with condescension and borders on sarcasm. It is certainly the
rare employer who couches the decision to end the employment relationship as one designed to
benefit the soon-to-be-former employee. Under either version of Dix’s statements, it is hardly
surprising that Martin burst into tears and fled. The inappropriate tone and content of the
explanation for the refusal to grant Martin’s request is further evidence of a personal and
discriminatory animus directed against her.
I have found that the Employer’s pattern of unlawful reactions to the organizing
campaign and peculiar method of responding to Martin’s request to revoke her resignation are
strongly indicative of a discriminatory intent underlying the treatment of Martin. I will now
evaluate management’s stated reasons for deciding not to retain her services to see if those
reasons support a finding of animus or demonstrate that the decision was based on a lawful and
nondiscriminatory rationale. The Board has specifically authorized this approach of assessing
the Employer’s stated rationale when deciding whether animus is present, observing that:
[I]t is well settled that, where an employer’s stated motive is
found to be false, an inference may be drawn that the true
motive is an unlawful one that the employer seeks to conceal.
[Citations omitted.]
Key Food, 336 NLRB 111, 114 (2001).52
In examining this employer’s asserted rationales, I must begin by noting that they have
shifted over time. The contemporaneous documentary evidence and the undisputed testimony
regarding the meeting at which the Employer’s decision was announced to Martin clearly
establish that the original stated rationale was that Martin’s attitude toward her work (i.e., the
fact that she was “unhappy” and “hated” her job) was the basis for concluding that she would
not be allowed to revoke her resignation. By the time of trial, this reasoning was no longer
asserted to be the determinative factor. Instead, the newly articulated rationales were described
by Gancarz as follows:
The basis of my decision was based on Elise’s history of
absenteeism and resigning and returning and leaving and
returning. Also based on Sharon [Moresi] and my and
Cindy’s [Dix] goal to improve employee retention and be
more diligent in hiring processes and having Employees who
are committed to the facility. I thought that based on Elise’s
history she wasn’t really an Employee that would meet our
expectations.
(Tr. 1144.) Moresi elaborated on this explanation by reporting that the decision to preclude

52 It is interesting to note that the Supreme Court has strongly endorsed this methodology in
the context of a statute prohibiting age discrimination. As the Court stated, “Proof that the
defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence
that is probative of intentional discrimination, and it may be quite persuasive . . . . [O]nce the
employer’s justification has been eliminated, discrimination may well be the most likely
alternative explanation, especially since the employer is in the best position to put forth the
actual reason for its decision.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
147 (2000). [Citations omitted.]
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further employment for Martin was part of a newly devised revamp of the Employer’s hiring and
retention practices. As she explained,
We wanted to change the environment of the revolving door
and that’s why we put in place the new hiring process, because
we wanted to look at the whole picture, past performances that
people applied when they left Sweet Brook and when they
reapplied to come back to Sweet Brook. We looked at every
aspect of their whole file, their performance, their absenteeism,
how they worked, how they got along with coworkers.
(Tr. 931—932.)
In assessing this newly announced set of rationales, the starting point is the Board’s
longstanding belief that, “when an employer vacillates in offering a rational and consistent
account of its actions, an inference may be drawn that the real reason for its conduct is not
among those asserted.” Sound One Corp., 317 NLRB 854, 858 (1995) [Citation omitted.]
Indeed, the Board has variously described such behavior by employers as “grasping for
reasons” and “simply making up its defense as it went along.” Meaden Screw Products
Co., 336 NLRB 298, 302 (2001) and Desert Toyota, 346 NLRB 118, 120 (2005), rev. denied 265
Fed. Appx. 547 (9th Cir. 2008). [Citations omitted from both quotations.] I conclude that this
description readily applies to the rationales now being asserted in this case.
The Employer’s current explanation for declining to permit Martin to remain employed
consists of two parts. First, it contends that it had just implemented a new set of hiring and
retention procedures. Under those new procedures, Martin would not qualify for retention.
Second, the refusal to permit Martin to revoke her resignation was justified due to Martin’s
record of absenteeism.
In examining the alleged revision of personnel policies, apart from representing a new
and different rationale from that given to Martin at the time of her denial of further employment, I
conclude that this explanation is simply a pretext created to justify unlawful discrimination. It
rests heavily on a contention that the Employer had recently changed its longstanding practices
regarding hiring and retention in such a way as to require that Martin’s request be denied.
There is simply no credible evidence to support this assertion. To begin with, it is undisputed
that Sweet Brook’s historical policy regarding reemployment was to encourage experienced and
competent staff to remain employed or to return to employment after prior departures. For
example, Wilton provided uncontroverted testimony that there “was always an open door policy,
as long as I was there” regarding the rehire of former employees. (Tr. 572.) She added that
management was “very open to taking people back, very open.” (Tr. 573.) Wilton also reported
that management never announced any change in this policy.
Wilton’s testimony is strongly corroborated by the Employer’s handbook. For example,
the edition in effect during this period provides that “[f]ormer staff members who are rehired
within three months of their termination date will maintain previous seniority as of the last date of
termination.” (GC Exh. 7, p. 19.) Similarly, the handbook also provides:
If Sweet Brook is unable to grant leave requests, staff members
have the option of resigning and reapplying when they are ready
to work. If reinstated within three months of termination date, they
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may regain seniority and certain benefits eligibility.53
(GC Exh. 7, p. 62.) It is apparent that these handbook provisions are designed to encourage
veteran former staff members to reapply by giving successful reapplicants seniority and benefit
privileges.54 As such, they reflect a common sense policy articulated long ago by Judge
Learned Hand, who explained that “seasoned men are better than green hands.”55 NLRB v.
Remington Rand, 94 F. 2d 862 (2d Cir. 1938), cert. denied 304 U.S. 590 (1938). It is a
noteworthy feature of this litigation that Sweet Brook chose to depart from this logical,
preexisting employment practice in the case of Martin.
Although the evidence demonstrates that the Employer had a venerable policy designed
to encourage the retention and return to employment of experienced staff members, Moresi
contended that it was her plan to alter that policy. She testified that, upon assuming the position
of director of human resources in December 2008, she embarked on a revision of hiring
practices to improve the quality of the staff. For instance, she drafted position descriptions and
developed a plan to have current employees participate in hiring interviews. She further
contended that part of her plan was to tighten policies regarding reemployment so as to prevent
employees from engaging in a pattern of resignations and reapplications. While I credit her
account regarding the revision of hiring procedures, I reject her attempt to sweep rehiring
policies into this new plan. In the first place, there is absolutely nothing in the way of
documentary evidence to support such a claim.56 To the contrary, Moresi’s proposed handbook
revisions retain all of the existing incentives for rehire. More importantly, Moresi’s claim was
directly contradicted by Gancarz. She testified that,
We [Gancarz and Moresi] talked about retention rewards and
those kinds of things. We had a discussion about it but we
didn’t move forward with anything other than the hiring, the
participation and the hiring and interview process.

53 Of course, I recognize that the handbook policies encouraging former employees to
reapply are not strictly applicable to Martin’s situation as she was a current employee at the time
of her request to revoke her resignation. Nevertheless, as counsel for the Respondent
conceded in his position statement, “While they do not apply strictly to the case of the
withdrawal of a resignation, the Handbook provisions concerning Rehire are relevant and
describe the factors that Sweet Brook will consider in such cases as well.” (GC Exh. 25, p. 6.)
54 It is also interesting to note that the revised handbook that had not yet been finally
approved by management retained the same provisions designed to encourage former
employees to reapply. (Compare: GC Exh. 7 and GC Exh. 34.) This strongly undercuts
Moresi’s claim that Sweet Brook intended to change its practices in this area.
55 In fact, it could be readily argued that this concept applies even more in the health care
field. Judge Hand was referring to a company that manufactured office equipment.
Undoubtedly, a manufacturer would normally prefer experienced machine operators, even
though the manufacturing process is industrial and impersonal. Such a preference makes even
more sense in the case of certified nursing assistants, employees who provide highly personal
care to aged and infirm residents. Clearly, it would be advantageous to retain the services of a
competent nursing assistant who knows the particular needs of the individual residents and has
an established relationship with those residents. This is confirmed by counsel for the
Employer’s assertion that nursing assistants are the “backbone” of the institution due to the
crucial role they fulfill in “responding to resident needs and requests.” (R. Br. at p. 9.)
56 This stands in contrast to the detailed materials submitted by the Employer documenting
Moresi’s changes in interviewing and hiring policies. See, for example, R. Exhs. 36 & 39.
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(Tr. 1177.) As I have already indicated, Gancarz’ account is entirely corroborated by the lack of
revisions to the handbook on the subjects of “retention rewards and those kinds of things.” I
conclude that the contention that Martin’s treatment was consistent with a newly implemented
policy against rehire of former employees with a history of intermittent employment is simply a
pretext manufactured in an attempt to explain the blatantly disparate treatment of Martin. This
disparity of treatment is highlighted by comparison with the treatment afforded to a similarly
situated coworker, Kelly Miller.
Miller was hired as a certified nursing assistant in July 2006. In April 2008, Miller
submitted her resignation. Shortly thereafter, she experienced a change of heart and sought
permission to revoke her resignation. Director of Nursing Dix granted this request and Miller
remained employed. In common with Martin, Miller’s personnel file reflects difficulties in
complying with the Employer’s attendance requirements. She received a string of verbal and
written warnings for “excessive absences.” (GC Exh. 14, p. 9.) In another similarity to Martin,
Miller’s most recent preceding competency evaluation showed her as performing satisfactorily in
all areas. Unlike Martin, the evaluation contained an additional notation concerning her need to
improve her attendance.
Miller testified that once the organizing campaign began she never spoke up on behalf of
the Union and never informed management of her views about that issue.57 In April, she was
recruited by Compassionate Care and submitted her second resignation from Sweet Brook.
She did advise the Employer that she would remain “willing to work per diem.” (Tr. 71.) Both
Miller and Moresi testified that Moresi told her that per diem work would not provide benefits.
Moresi urged Miller to “think about it, and to come back to me and let me know her decision.”
(Tr. 992.) Miller testified that, a few days later, “I went in and told [Moresi] that I changed my
mind and I would like to be put on the schedule to the full-time position and she said okay.” (Tr.
75.) Tellingly, Gancarz testified that she did not recall any personal involvement in responding
to Miller’s request to rescind her resignation.
The Board has long held that “blatantly disparate treatment supports an inference of
unlawful motivation.” Watkins Engineers & Constructors, 333 NLRB 818 (2001). (Internal
punctuation omitted.) Here, the evidence reveals that two nursing assistants with similar work
histories attempted to revoke their resignations. The active union supporter was denied
permission to do so, while the identical request from the employee who concealed her views
about the Union was granted. Such conduct reeks of unlawful animus.58

57 Miller’s contention that her union sympathies remained private is corroborated by the fact
that Card did not list Miller among the many employees who wore prounion stickers on Sticker
Day.
58 The Employer attempts to rebut this evidence of disparate treatment by citing the
circumstances of five former employees who were denied rehire by Sweet Brook. All of these
cases are distinguishable. Applicant Clairmont had previously been discharged for
unacceptable performance. Applicant Embry has a history of job abandonment and poor
performance in such areas as quantity of work, teamwork, and attendance. Applicant Gretchner
has a history of interpersonal problems during his prior employment at Sweet Brook and was
given a poor reference from a subsequent employer due to concerns about patient care.
Applicant Mongeon had been previously fired from Sweet Brook for both failing to report for
work and failing to notify management that she was going to be absent. Finally, Applicant
Shutters had a history of insubordination and problems with the level of her care of residents.
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The final rationale cited by the Employer in support of its decision to deny Martin the
further opportunity to work at Sweet Brook was concern about her record of absenteeism. This
explanation comes perilously close to constituting an admission of unlawful discrimination. I say
this because the Board holds that an Employer’s conduct that is “inconsistent with its
progressive discipline system” may be found to constitute probative evidence of unlawful
animus. Tubular Corp. of America, 337 NLRB 99 (2001). For the reasons about to be
discussed, it is obvious that this Employer engaged in precisely that form of discrimination.
To begin, it must be noted that the Employer has, in the words of counsel for the Union,
“what is commonly referred to as a no-fault attendance policy.”59 (CP Br., at p. 21.) All of the
testimony and documentary evidence are consistent in reflecting that the policy provides for a
verbal notification after three absences for any cause. After six such absences, the employee is
subject to a first written warning. After eight, this is followed by a second written warning. Upon
accumulating ten absences, the employee may receive a third written warning or may be placed
on probation or terminated from employment. The rigor of this policy is mitigated, however, by
the fact that each employee’s slate is wiped clean on every annual anniversary date. All
employees, including Martin, were required to sign a form acknowledging that this was the
Employer’s disciplinary policy on the topic of attendance. (R. Exh. 2.)
Under the Employer’s strict rules, an employee becomes liable to discharge for
accumulating ten or more absences during a year of employment.60 Had Martin accumulated
such a quantity of absences, this case would resemble a typical dual motive discharge case. In
other words, the factfinder would be required to grapple with the relative weight to be given to
an employer’s unlawful animus versus the employee’s violation of a legitimate, preexisting
attendance policy. What is so striking about this case is that there is absolutely no contention
that Martin had accumulated the necessary absences to justify her termination under the
Employer’s rules. Indeed, the Employer introduced a complete compilation of Martin’s entire
record of absences over the period of her employment from October 2006 through April 2009.
That document demonstrates that since the anniversary date of her hiring she had not
accumulated 10 absences and was not eligible for termination.61 Indeed, the Employer’s own
record reflects that she was “due” for a first written warning at the time she was denied
permission to revoke her resignation. (R. Exh. 48.) This was further confirmed by Moresi, who
agreed that Martin “was going to get a first written warning for the absence of March 30th and
March 31st, ’09.” (Tr. 966.) Far from serving to justify the Employer’s decision to deprive Martin
of further opportunity to work at Sweet Brook, the attendance issue underscores the disparate
and inconsistent treatment afforded to her.

59 The policy clearly warns employees that the reasons for any absences are irrelevant. For
example, each employee is issued written notice that, “sick hours are accrued each month so
that staff have paid time when ill but does not negate the absence policy,” and that notes from a
physician “may validate illness but does not excuse it” under the policy. (GC Exh. 14, p. 1.)
60 The policy also permits termination if an employee receives four warnings in a 2-year
period. Martin did not receive this level of discipline and was not eligible for termination under
this provision.
61 It is also worth noting that this record of absences does not in any way reflect an
irresponsible pattern of behavior by Martin. Virtually every absence was caused by her illness
or the illness or injury of her children. On only two occasions in over 2 years was an absence
caused by any other issue. In both those cases, she was unable to work due to a lack of
daycare. Of course, I recognize that the Employer’s no-fault policy would not excuse any type
of absence. Nevertheless, it is worthwhile to observe that Martin’s record shows no pattern of
abuse, merely the common problems of juggling work, health, and parenting.
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Ordinarily, under Wright Line, once it has been shown that an employer possessed an
unlawful motivation for taking adverse action against an employee, the burden shifts to permit
the employer to attempt to demonstrate that it would have taken the same adverse action
regardless of the existence of such animus. Nevertheless, the Board has explained:
If, however, the evidence establishes that the reasons given
for the employer’s action are pretextual—that is, either false
or not in fact relied upon—the employer fails by definition to
show that it would have taken the same action for those
reasons, and thus there is no need to perform the second part
of the Wright Line analysis.
SFO Good-Nite Inn, L.L.C., 352 NLRB 268, 269 (2008). That is precisely the situation here. As
a consequence, the Wright Line analysis is complete.
Based on the totality of the evidence, I readily conclude that Martin was denied further
employment because of her activities and sympathies in support of the Union and for the
purpose of discouraging such activities and sympathies in her coworkers. This behavior
constituted unlawful discrimination against her in violation of Section 8(a)(3) and (1) of the Act.
Conclusions of Law
1. The Employer promulgated an overbroad solicitation policy and announced that
policy in response to the protected concerted activities of its employees in violation of Section
8(a)(1) of the Act.
2. The Employer announced an overbroad distribution policy and threatened to enforce
that policy in a disparate manner in response to the protected concerted activities of its
employees in violation of Section 8(a)(1) of the Act.
3. The Employer engaged in improper surveillance of its employees and created an
improper impression of surveillance among its employees in violation of Section 8(a)(1) of the
Act.
4. The Employer coercively interrogated its employees regarding their protected
concerted activities in violation of Section 8(a)(1) of the Act.
5. The Employer impliedly threatened one of its employees due to her participation in
protected concerted activities and with the intention of restraining, coercing, and intimidating its
employees from exercising their Section 7 rights in violation of Section 8(a)(1) of the Act.
6. The Employer coerced and intimidated its employees from associating with an official
of the Union in violation of Section 8(a)(1) of the Act.
7. The Employer engaged in unlawful discrimination against its employee, Elise Martin,
by refusing to permit her to withdraw her resignation and continue her employment due to her
union sympathies and activities in violation of Section 8(a)(3) and (1) of the Act.
8. The Employer did not violate the Act in any other manner alleged in the complaint.
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Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. I will recommend that it be ordered to rescind its unlawful
solicitation and distribution policies and that it be required to post a notice in the usual manner.
With regard to the remedy for the Employer’s unlawful discrimination against Martin, the
customary measures include an order directing that she be offered reinstatement and restitution
for the loss of pay and benefits from the date of the discrimination until the date of such offer of
reinstatement. In this case, the Employer asserts two reasons that these remedies should not
apply. The first contention is described by counsel for the Respondent as follows:
Even if Martin’s Section 7 rights may have been violated,
reinstatement and/or backpay are improper because Sweet
Brook could have legitimately terminated Martin at any time
for “just cause”—i.e., chronic absenteeism.
(R. Br. at p. 78.)
The Board will not countenance such a claim. Its reasoning was well-explained in
Joseph Chevrolet, Inc., 343 NLRB 7, fn. 9 (2004), enf. 162 Fed. Appx. 541 (6th Cir. 2006):
The Respondent argued that even if the discharge of [the
employee] is found unlawful, it should not have to pay backpay
because [that employee] was discharged “for cause.” This argument
is another attempt by the Respondent to assert its rebuttal defense
under Wright Line, which we reject.
The Board’s reasoning in Joseph Chevrolet is particularly applicable to this case since I have
previously explained that the claim that Martin was denied further employment based on her
record of absenteeism is entirely false. Beyond this, my analysis revealed that Martin had not
engaged in any violation of the Employer’s attendance policies sufficient to trigger such a
disciplinary measure even if the Employer had been sincerely motivated.
The Employer’s second argument bears more consideration. It asserts that Martin’s
behavior subsequent to her being told that she would not be allowed to remain at Sweet Brook
constituted a degree of misconduct sufficient to preclude her further employment and to deprive
her of the right to backpay. This argument is based on the Employer’s characterization of
Martin’s behavior as described below:
Martin not only failed to work out her two week notice period, she
walked off the job with five hours remaining on her shift and then
was a “no call—no show” for the next two days.
(R. Br., at p. 73.) The Employer views Martin’s conduct as resulting in her having “abandoned
her patients.” (R. answer to complaint, GC Exh. 1(k), p. 5 and R. Br. at p. 4.)
The evidence shows that immediately after being told by Dix that she was not going to
be allowed to remain at Sweet Brook because she hated her job Martin burst into tears and fled
the meeting room. In my view, this was an entirely understandable, spontaneous, and sincere
response to the act of discrimination to which she had just been subjected. Upon leaving the
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room, Martin returned to her unit and spoke to Powers, her charge nurse. She explained what
had happened and told Powers that, “I was leaving.” (Tr. 143.) She also advised Powers that,
“I have a couple of people left.” (Tr. 143.) This was a reference to the fact that she had not
completed all of the assignments for the residents on the unit. Martin and Powers hugged and
Martin departed the facility. She failed to swipe out as she left. Although she had been
scheduled to work on the following 2 days, she did not return to the facility.
While it is clear that Martin violated the Employer’s policies by failing to swipe out upon
leaving and by failing to report for work on the succeeding 2 days, I reject the contention that
she abandoned her patients. Counsel for the Union asked Administrator Gancarz to describe
the proper procedure in the event an employee planned to leave her shift early. Gancarz
explained that, “[t]he process is to notify the Charge Nurse that you’re leaving and the Charge
Nurse would let the Manager know and the Scheduler.” (Tr. 1191—1192.) This description of
the proper procedure was corroborated by Melinda Gulotta who testified that an employee who
needed to leave early would report to the charge nurse. With regard to any uncompleted patient
care tasks, she reported that “generally we [the remaining employees] take care of it ourselves.”
(Tr. 523.) Thus, it is apparent that Martin followed expected procedures for early departure and
her behavior did not constitute an abandonment of her patients.
Counsel for the Employer correctly notes that the Board will deny reinstatement and
backpay to employees who engage in severe misconduct subsequent to the employer’s act of
discrimination against them. Berkshire Farm Center, 333 NLRB 367 (2001). Nevertheless, this
principle must be balanced against another significant policy articulated by the Board as a
reflection of the realities involved, given the likelihood of highly emotional responses by
employees to acts of unlawful discrimination committed against them by their employers. The
Fourth Circuit has described the Board’s doctrine in the following manner:
An employer cannot provoke an employee to the point where she
commits such an indiscretion as is shown here and then rely on this
to terminate her employment. The more extreme an employer’s
wrongful provocation the greater would be the employee’s justified
sense of indignation and the more likely its excessive expression. To
accept the argument addressed to us by the company would be to
provide employers a method of immunizing themselves from the only
real sanction against violations of Section 8(a)(3). Reinstatement in
the instant case is not, as the employer puts it, a reward to the
employee for insurgency. Rather, as we see it, refusal to reinstate
her would put a premium on the employer’s misconduct.
NLRB v. M & B Hardware Co., 349 F. 2d 170, 174 (4th Cir. 1965).62
In my view, Martin’s failure to swipe out and to report for work during the remaining 2
days of her notice period was both understandable and excusable. Her neglect in failing to
swipe out was obviously a product of her distress at having just been subjected to unlawful
discrimination. Her decision not to return to the facility is a reasonable response to the clear
message from the Employer that she was no longer welcome at Sweet Brook due to her union
sympathies and activities. The situation in which she was placed strikes me as fundamentally
similar to that of the discriminatee in Paradise Post, 297 NLRB 876 (1990). In that case, in

62 Relatively recently, the Board has cited the Fourth Circuit’s opinion in that case with
approval. See Key Food, 336 NLRB 111, 113 (2001).
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reaction to an employer’s provocation, an employee named Brown left work early and without
permission. The Board rejected the employer’s attempt to use this as a justification for denial of
further employment, observing:
As compared to the gravity of Respondent’s wrongful provocation,
Brown’s reaction was quite mild and consisted of removing himself
from the scene when he understandably became angered and
frustrated over what the judge properly termed the Respondent’s
“brittle approach to the problem.” The Board and the courts have found
employee conduct more extreme than Brown’s to be excusable under
the provocation doctrine. [Citations omitted.]
Id. at fn. 2.
I conclude that Martin did not abandon her patients. While she did fail to follow the
proper time and attendance documentation procedure when departing and did not return on the
following 2 days, her violation of the Employer’s rules was a direct and excusable response to
the provocation caused by the Employer’s unlawful discrimination against her. In consequence,
I will recommend that the Employer be ordered to reinstate Martin and to reimburse her in the
customary manner for the discrimination it committed against her. Thus, the Employer must
offer her reinstatement and make her whole for any loss of earnings and other benefits,
computed on a quarterly basis from the date of the unlawful discrimination against her to the
date of a 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).63
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended64
ORDER
The Respondent, Northern Berkshire Community Services, Inc. d/b/a Sweet Brook
Transitional Care and Living Centers, Williamstown, Massachusetts, its officers, agents,
successors, and assigns, shall

63 As has become a tiresome ritual, the General Counsel asks me to ignore longstanding
Board precedent by ordering that interest on this award be compounded quarterly. On
numerous prior occasions, I have expressed my concern about this litigation tactic of seeking
such relief from administrative law judges who are clearly not authorized to grant it. For
example, see Frye Electric, Inc., 352 NLRB 345, 358 (2008). Nothing has changed. Given the
current lack of a full complement of Board members, I think it fair to say that nothing can
change. It is certainly clear that the Board continues to reject the General Counsel’s position.
See, Quanta, 355 NLRB No. 8, slip op. at 3, fn. 4 (2010), citing Rogers Corp., 344 NLRB 504
(2005). Thus, it remains improper for me to consider the General Counsel’s request for the
seasons explained in Frye.
64 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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1. Cease and desist from
(a) Promulgating, maintaining, or enforcing an overbroad policy against solicitation by
employees and from promulgating or enforcing a policy against solicitation by employees in
response to the protected concerted activities of its employees.
(b) Promulgating, maintaining, or enforcing an overbroad policy against distribution of
literature by employees and from disparately enforcing its distribution policies in a manner
designed to impair the Section 7 rights of its employees.
(c) Engaging in improper surveillance of the protected concerted activities of its
employees and from creating an impression that it is engaging in such surveillance.
(d) Coercively interrogating its employees regarding their union sympathies or their
participation in protected concerted activities or regarding the union sympathies or participation
in protected concerted activities of other employees.
(e) Threatening, coercing, or intimidating its employees due to their union
sympathies or their participation in protected concerted activities.
(f) Refusing to permit Elise Martin or any other of its employees, to withdraw their
resignations because of their union sympathies or their participation in protected, concerted
activities or in any other manner discriminating against them due to their union sympathies or
their participation in protected concerted activities.
(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.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind its overbroad work rule against all solicitation by employees on its
premises, notify its employees that this rule has been rescinded, and remove all “NO
SOLICITING” signs from the entry points to the building.
(b) Rescind its overbroad rule against distribution of union literature in all locations
except employee breakrooms and notify its employees that this rule has been rescinded.
(c) Within 14 days from the date of the Board’s Order, offer Elise Martin 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.
(d) Make Elise Martin whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her in the manner set forth in the remedy section of the
decision.
(e) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful refusal to permit Elise Martin to withdraw her resignation and the
ensuing termination of her employment and, within 3 days thereafter, notify her in writing that
this has been done and that the refusal to permit her to withdraw her resignation and the
ensuing termination of her employment will not be used against her in any way.
(f) Preserve and, within 14 days of a request, or such additional time as the
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Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.
(g) Within 14 days after service by the Region, post at its facility in Williamstown,
Massachusetts, copies of the attached notice marked “Appendix.”65 Copies of the notice, on
forms provided by the Regional Director for Region 1, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since January 9, 2009.
(h) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. March 9, 2010
____________________
Paul Buxbaum
Administrative Law Judge

65 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD-10-10
Williamstown, MA
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT promulgate, maintain, or enforce an overbroad policy against solicitation by our
employees and WE WILL NOT promulgate or enforce a policy against solicitation by employees
in response to their participation in protected union activities.
WE WILL NOT promulgate, maintain, or enforce an overbroad policy against distribution of
literature by our employees and WE WILL NOT disparately enforce our distribution policies in a
manner that impairs our employees’ rights under Federal labor law.
WE WILL NOT engage in improper surveillance of our employees’ union activities and WE WILL
NOT create an impression among our employees that we are engaging in such surveillance.
WE WILL NOT coercively interrogate our employees about their union sympathies or their
participation in union activities or about the union sympathies or the participation in union
activities of other employees.
WE WILL NOT threaten, coerce, or intimidate our employees due to their union sympathies or
their participation in union activities.
WE WILL NOT refuse to permit Elise Martin or any of our other employees to withdraw their
resignations because of their union sympathies or their participation in union activities, and WE
WILL NOT discriminate against our employees in any other manner due to their union
sympathies or participation in union activities.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed by Federal labor law.
WE WILL rescind our overbroad work rule against all solicitation by employees on our premises,
notify our employees that we have done so, and remove all “NO SOLICITING” signs from the
entrances of our facility.
WE WILL rescind our overbroad rule against all distribution of union literature in places other
than the employee breakrooms and notify our employees that we have done so.
JD-10-10
Williamstown, MA
WE WILL, within 14 days from the date of the Board’s Order, offer Elise Martin 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.
WE WILL make Elise Martin whole for any loss of earnings and other benefits resulting from the
discriminatory refusal to permit her to continue her employment, 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 our unlawful refusal to permit Elise Martin to continue her employment, and WE
WILL, within 3 days thereafter, notify her in writing that this has been done and that the refusal
to permit her to continue her employment will not be used against her in any way.
NORTHERN BERKSHIRE COMMUNITY
SERVICES, INC. d/b/a SWEET BROOK
TRANSITIONAL CARE AND LIVING CENTERS
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National
Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation
and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights
under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
10 Causeway Street, Boston Federal Building, 6th Floor, Room 601
Boston, Massachusetts 02222–1072
Hours of Operation: 8:30 a.m. to 5 p.m.
617-565-6700.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 617-565-6701.