Villa Maria Nursing Center

National Labor Relations Board - Board Decisions

Sep 26, 2001

335 N.L.R.B. 1345 (N.L.R.B. 2001)

VILLA MARIA NURSING CENTER 1345
Villa Maria Nursing and Rehabilitation Center, Inc.
and The Service Master Company and UNITE!
Union of Needletrades, Industrial and Textile
Employees, AFL–CIO/CLC. Cases 12–CA–
18137 and 12–RC–7957
September 26, 2001
DECISION, ORDER, DIRECTION OF SECOND
ELECTION, AND CERTIFICATION OF RESULTS
OF ELECTION
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On January 5, 2001, Administrative Law Judge Ben-
jamin Schlesinger issued the attached decision. Respon-
dent Villa Maria Nursing and Rehabilitation Center, Inc.
(Villa Maria) filed exceptions and a supporting brief.
The Charging Party Union filed an answering brief,
cross-exceptions, and a supporting brief. Villa Maria
filed answering and reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,2
except as discussed below, and to adopt the recom-
mended Order.

1 Respondent Villa Maria and the Charging Party Union have ex-
cepted to some of the judge’s credibility findings. The Board’s estab-
lished policy is not to overrule an administrative law judge’s credibility
resolutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
Contrary to our dissenting colleague, we would not reverse the
judge’s credibility resolutions supporting his finding that the Respon-
dent violated Sec. 8(a)(1) by threatening employee Villa Louis. Our
review of the record in accord with Standard Dry Wall does not con-
vince us that the judge’s credibility resolutions concerning the testi-
mony of Louis were incorrect, or that the adverse inference drawn by
the judge concerning the Respondent’s failure to call Robert Mullen
was inappropriate.
2 Contrary to the dissent, we agree with the judge’s conclusion that
the Respondent’s distribution of an unprecedented and previously un-
announced survey of employee working conditions during the Union’s
organization campaign violated Sec. 8(a)(1). The survey would rea-
sonably tend to persuade employees that the Respondent was soliciting
their grievances—indeed, the survey specifically inquired about em-
ployees’ satisfaction with the handling of grievances—with an implicit
promise to remedy them in order to counter the Union’s campaign. We
reach this conclusion regardless of whether the Respondent actually
decided to circulate the survey before it knew about that campaign.
The survey cannot be viewed as an existing benefit that the Respondent
was obliged to maintain as if there were no union present. Further-
more, the Respondent offered no contemporaneous explanation of the
survey’s purpose that would have rebutted its reasonable tendency to
interfere with employees’ Sec. 7 rights.
Part of this consolidated proceeding involves elections
held in Case 12–RC–7957 in two separate employee bar-
gaining units on May 31, 1996. One unit consists of cer-
tain classifications of employees of Respondent Villa
Maria. The other unit consists of certain classifications
of employees of Respondent Service Master Company
(Service Master) who work at Respondent Villa Maria’s
facility.
The Union lost each election. Thereafter, it timely
filed a single document entitled “Petitioner’s Objections
to Conduct Affecting Results of Election.” The caption
of this document identifies both Villa Maria and Service
Master as “Employers.” The introductory text preceding
specific objections stated that the election was held “at
the facility of Villa Maria Nursing and Rehabilitation
Center and the Service Master Company (hereinafter
‘Employer’) in Miami, Florida.” The objections them-
selves consistently refer to the “Employer” and the “elec-
tion” while alleging conduct that, with one exception
noted below, was also alleged in Case 12–CA–18137 as
unfair labor practices committed by Villa Maria and Ser-
vice Master. The Union served copies of the objections
on both Villa Maria and Service Master.
Emphasizing the Union’s repeated use of the singular
for “election” and “Employer” and the parenthetical
identification of “Employer” after the objections’ intro-
ductory mention of Service Master, the judge concluded
that the Union clearly intended to file objections only to
the conduct of the Service Master unit election. Having
found that Respondent Service Master committed no
unfair labor practices, the judge recommended dismissal
of the Union’s objections and certification of the results
of each election. In the alternative, in light of the possi-
bility that the Board might find that the Union objected
as well to the conduct of the Villa Maria unit election,
the judge conditionally recommended setting aside the
results of that election based on the preelection unfair
labor practices that he found Respondent Villa Maria had
committed.3
The Union argues in cross-exceptions that the judge
erred in finding that it failed to file valid objections to
conduct affecting the results of the Villa Maria unit elec-
tion. We agree. In contrast to the judge, we find that the
Union’s objections encompassed conduct allegedly af-
fecting the same-day elections held in both units. Not-
3 The judge also conditionally found merit in the Union’s objection
6, which alleged violation of the written, preelection eligibility list
requirements set forth in Excelsior Underwear, 156 NLRB 1236 (1966)
(The Union withdrew this allegation as to Service Master at the hear-
ing). In light of our determination to set aside the Villa Maria unit
election based on other objections, we find it unnecessary to pass on the
Excelsior list objection for that election.
335 NLRB No. 99
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1346
withstanding instances of arguably inartful or mistaken
grammar, the Union named both Villa Maria and Service
Master as “Employers” in the caption for its objections,
timely served the objections on both Employers, alleged
as objectionable conduct that corresponded directly to
unfair labor practice charges filed against Villa Maria,
and made these allegations while the joint employer
status of the relationship between the two Employers
remained in dispute.4 Moreover, all the issues were fully
litigated in the consolidated hearing. Therefore, we find
that the Union’s election objections were sufficient to
raise substantial and material issues concerning conduct
affecting the Villa Maria unit election. We further find,
in agreement with the judge’s alternative reasoning, that
the unfair labor practices committed by Villa Maria dur-
ing the critical period constituted conduct that interfered
with this election. This objectionable conduct requires
setting aside the election and directing a new election for
the Villa Maria unit.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Villa Maria Nursing and Re-
habilitation Center, Inc., North Miami, Florida, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order.
IT IS FURTHER ORDERED that the election in the
Villa Maria unit in Case 12–RC–7957 is set aside and the
representation issue with respect to employees in the
Villa Maria unit is severed from the rest of the case and
remanded to the Regional Director to conduct a new
election when she deems the circumstances permit the
free choice of bargaining representative.
[Direction of Second Election omitted from publica-
tion.]
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
in the unit found appropriate of employees of The Ser-
vice Master Company have not been cast for UNITE!
Union of Needletrades, Industrial and Textile Employ-
ees, AFL–CIO/CLC and that it is not the exclusive repre-
sentative of these bargaining unit employees.

CHAIRMAN HURTGEN, concurring and dissenting in
part.

4 There are no exceptions to the judge’s finding that Service Master
and Villa Maria are not a joint employer of any unit employees working
at the Villa Maria facility. Of the complaint allegations against Villa
Maria that the judge recommended be dismissed, exceptions have been
filed only to the dismissal of the allegation that the “Nurses’ Week”
celebration was unlawful.
The judge found that the Respondent engaged in con-
duct that violated Section 8(a)(1) and interfered with the
election. Except as set forth below, I adopt the judge’s
findings and analysis.1
1. Section 10(b)
The judge found that the Respondent violated Section
8(a)(1) by unlawfully conferring benefits on employees
in order to discourage their union activities. Specifically,
the judge found that the Respondent unlawfully granted
employees the benefits of a casual dress day (the first of
which occurred on the date of the election), and cash
prizes for winners of an essay contest.2 In finding these
violations, the judge rejected the Respondent’s argument
that these grant-of-benefit allegations were barred under
Section 10(b) because no timely unfair labor practice
charges had been filed which would support these allega-
tions. For the following reasons, I agree with the judge.3
Under Redd-I, 290 NLRB 1115 (1988), otherwise un-
timely allegations will not be barred by Section 10(b)
when they are closely related to timely filed unfair labor
practice charges. In order to be “closely related” under
Redd-I, the Board evaluates whether the otherwise un-
timely allegations: (1) involve the same legal theory and
usually the same subsection of the Act as the timely filed
charges; (2) arise from the same factual circumstances or
sequence of events as the timely filed charge; and (3)
whether a respondent would raise similar defenses to
both allegations. Here, this test is met.
First, the legal theory and sections of the Act raised in
the grant-of-benefit allegations are the same as those
alleged in the original, timely filed unfair labor practice
charge. That charge—which alleged 8(a)(1) and (3) vio-
lations—asserted that the Respondent had violated the
Act “since on or about January 8, 1996, [when] Agents
of the . . . [Respondent] . . . changed working condi-
tions to thwart the Union drive.” That allegation of
“changed working conditions” is, on its face, broad
enough to encompass allegations that the Respondent
changed working conditions to the detriment of employ-
ees (e.g., reduced employee benefits) in violation of Sec-
tion 8(a)(3), or changed working conditions for the better
1 I agree with my colleagues that it is unnecessary to pass on the
judge’s finding that the Respondent-Employer interfered with the elec-
tion because the voter eligibility list it provided to the Region was
deficient under the requirements of Exelsior Underwear, 156 NLRB
1236 (1966).
2 This casual-dress-day benefit was also found to be objectionable
and one of the bases for setting aside the election.
3 However, I reject the judge’s reliance on Ross Stores, Inc., 329
NLRB 573 (1999), enf. denied in relevant part 235 F.3d 669, 672 (D.C.
Cir. 2001). See my dissenting opinion in Ross Stores. See also my
dissenting opinions in Dico Tire, Inc., 330 NLRB 1252 (2000); and
Tasty Baking Co., 330 NLRB 560 (2000).
VILLA MARIA NURSING CENTER 1347
(e.g., granted employee benefits) in order to thwart the
organizing drive, a violation of Section 8(a)(1).
Second, the grant-of-benefit allegations arise from the
same factual circumstances as did the timely filed charge.
Thus, all alleged unlawful changes in conditions oc-
curred in the first 5 months of 1996, in response to the
Union’s efforts to organize the Respondent’s employees.
Finally, the Respondent would raise the same defense
to the timely filed “change of working condition” allega-
tion and the grant-of-benefit allegations. That is, the
Respondent’s defense would be that it did not change
working conditions in order to discourage union support
or activity.
On these bases, I find that, under Redd-I, the grant-of-
benefit allegations are closely related to the timely filed
charge and are not barred by Section 10(b).
2. Solicitation of grievances
About 2 months before the May 31, 1996 election, the
Respondent distributed to its employees an “Employee
Satisfaction Survey” wherein the Respondent sought
their input on such issues as jobs, benefits, and supervi-
sion. The judge found that by distributing this survey,
the Respondent violated Section 8(a)(1) by soliciting
employee grievances and impliedly promising to remedy
them in order to discourage union support and activity.
In finding this violation, the judge rejected the Respon-
dent’s defense that it had approved the survey prior to the
Union’s organizing campaign. The judge concluded that
even were this true—which he doubted—“Board law
does not treat the solicitation of grievances in the same
way that it treats the continuation of the payments of
wages and other benefits” during an organizational cam-
paign. I disagree with the judge in several respects, and
would dismiss this allegation.
First, I find no record basis to support the judge’s
“doubt” that the Respondent had formulated its survey
prior to the Union’s organizing campaign. Indeed, the
judge’s own findings are inconsistent with this observa-
tion. The Respondent’s witness testified, without con-
tradiction, that the Respondent had approved the “Em-
ployee Satisfaction Survey” on January 4, 1996, prior to
the Union’s organizing campaign. The fact that January
4 preceded the organizing campaign was supported by
the judge’s own conclusion that the “Union began to
organize the employees of Villa Maria . . . on January 6,
1996.” However, in questioning the Respondent’s claim
that the formulation of the survey predated the campaign,
the judge relied on the fact that, before January 4, the
Union had already begun visiting employees at their
homes and organizing other facilities. In so doing, the
judge cited neither claims nor evidence that the Respon-
dent was aware of these earlier activities. Therefore, I
find no record basis to support the judge’s “doubt” con-
cerning the Respondent’s defense.
Next, I reject the judge’s finding that, even were he to
credit the Respondent’s claim that the survey predated
the organizing campaign, this defense lacks merit be-
cause a survey is not like predetermined wage or benefit
changes that are to be continued during an organizational
campaign. The judge cites no precedent for his conclu-
sion, nor do I find any analytical basis to support it. Em-
ployers are required, during an organizational campaign,
to act as they would have acted if there were no union on
the scene. In my view this includes circulating an em-
ployee survey that it had prepared and decided to circu-
late before the organizing campaign began.4
Finally, I reject the judge’s conclusion that the survey
was unlawful because, by distributing it, the Respondent
was inferentially promising to remedy employee griev-
ances. It is well established that a “solicitation of griev-
ances is not in and of itself an unfair labor practice.”
Hedstrom Co. v. NLRB, 558 F.2d 1137, 1142 fn. 12 (3d
Cir. 1977). “To listen to suggestion does not in and of
itself imply that the suggestions will be acted on.” Visa-
dor Co., 245 NLRB 508 (1979). Nor does the use of
opinion surveys per se violate Section 8(a)(1). NLRB v.
Tom Wood Pontiac, 447 F.2d 383 (7th Cir. 1971). Sec-
tion 8(a)(1) is violated only where the solicitation of
grievances—be it by survey or otherwise—is accompa-
nied by an implied or express promise to remedy those
grievances which promise is aimed at interfering with,
restraining or coercing employees in their organizational
effort, or conditioned on the union losing the election.
NLRB v. K&K Gourmet Meats, 640 F.2d 460, 466 (3d
Cir. 1981). Here, I find that no such express or implied
promise was made. In this regard, the overview accom-
panying the “Employee Satisfaction Survey” informed
employees that the survey “was a tool to determine what
you think about your job, pay, supervision, benefits and
the organization in general.” The overview further pro-
vided that “[y]ou will be informed of the results of the
survey upon the tabulation of the completed answers.”
Nothing in the overview stated or implied that any
changes would be made, or benefits granted, as a result
of the survey. Nor did the survey itself state or imply
that changes would be made. The survey merely asked
employees for their response to various employment-
related questions. In these circumstances, I do not find it

4 I recognize that if, in response to the survey, the employer thereaf-
ter offers benefits to employees during the critical period, the employer
may be found to have violated the Act where those benefits are not a
continuation of existing benefits or the conferral of benefits decided
prior to the advent of the organizing campaign. However, that is not
the case here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1348
reasonable to infer that employees would view the survey
as a promise by the Respondent to remedy employee
concerns, conditioned on the Union losing the election,
or to interfere with employees’ support for the Union. I
also believe that employer efforts to learn from employ-
ees can be a useful managerial tool. At least where they
are adopted prior to a union campaign, I believe that the
Board should be respectful of this tool.
Based on the above, I conclude that the Respondent’s
survey did not unlawfully promise a benefit. Nor was
the survey itself an unlawful grant of a benefit. Assum-
ing arguendo that the survey itself was a benefit, it was
decided upon prior to the Respondent’s knowledge of the
campaign. Thus, the Respondent would likely have
acted unlawfully if it had withdrawn the benefit when it
learned of the campaign. In sum, the Respondent did
what it was supposed to do; it carried out its plan as if
there were no union campaign.
Finally, because the survey was not an improper grant
of a benefit and because the employees would not rea-
sonably view the survey as a solicitation of grievances
and an implied promise to remedy them, I find no merit
in my colleagues’ reliance on the Respondent’s failure to
offer a contemporaneous explanation for its distribution
of the survey.
Accordingly, I would dismiss this allegation.
3. Threatened loss of benefits
Finally, I do not adopt the judge’s finding that the Re-
spondent violated Section 8(a)(1) by threatening employ-
ees with a loss of benefits if they chose union representa-
tion. In this regard, I note that the complaint alleged that
these threats were made by a labor consultant retained by
the Respondent during the organizational campaign. In
support of this allegation, employee Villa Louis testified
that consultant John Davis made these threats at em-
ployee meetings and in one-on-one discussions with
Louis. Crediting consultant Davis’ denials, the judge
found that neither Davis nor consultant Robert Mullen
made such threats at employee meetings, and that Davis
additionally did not make unlawful threats in one-on-one
discussions. However, because he concluded that, as to
the alleged one-on-one incidents, Louis really meant to
testify that consultant Mullen, and not Davis, made those
threats, the judge found a violation solely because the
Respondent did not call Mullen to refute the allegations.
The judge concluded that “because the one-on-one con-
versations were not denied by Mullen, and only because
of that, I credit Louis’ testimony and conclude that Villa
Maria violated Section 8(a)(1) of the Act.” (Emphasis
added.) I find that this is not a sufficient basis on which
to support a credibility determination.
In my view, the judge has piled inference upon infer-
ence. He inferred that Louis meant to name Mullen as
the person making the threat. Although the inference
may have been reasonable, it was an inference. Sec-
ondly, he inferred that, absent a denial from Mullen, the
testimony of Louis (as to the substance of what was said)
must be true. However, in my view, since Louis never
named Mullen, there was no point in calling Mullen to
elicit a denial. In addition, I note that Louis was discred-
ited in other respects and that Davis was expressly cred-
ited that neither he nor Mullen made unlawful threats
attributed to them, in the employee meetings.
Finally, I reject my colleagues’ argument that at issue
is a pure credibility resolution that the Board should not
set aside. If the judge had found that Louis’ demeanor
made her testimony credible, I would likely find the
8(a)(1) violation as to one-on-one incidents. However,
where, as here, the judge has credited Louis only on the
basis that Mullen did not testify, I find that there is an
insufficient basis to uphold the judge’s finding. As noted
above, the failure to call Mullen was entirely explainable.
Accordingly, I would dismiss this allegation.

Shelley B. Plass, Esq. (Jennifer Burgess-Solomon, Esq.), on the
brief, for the General Counsel.
Michael R. Miller, Esq. (Kunkel, Miller & Hament), of Tampa,
Florida, for Respondent Villa Maria.
Kelly O. Ludwick, Esq. (Seyfarth, Shaw, Fairweather & Ger-
aldson), of Atlanta, Georgia, for Respondent Service Mas-
ter.
Ira J. Katz, Esq., of New York, New York, for the Union.
DECISION
FINDINGS OF FACT
BENJAMIN SCHLESINGER, Administrative Law Judge.
This case involves numerous allegations of surveillance,
threats, solicitations, establishment of a new policy providing
benefits to employees, and change in the employees’ schedules,
in violation of Section 8(a)(3) and (1) of the National Labor
Relations Act, as well as objections to the conduct of two
Board-conducted representation elections held on May 31,
1996. Respondents Villa Maria Nursing and Rehabilitation
Center, Inc. (Villa Maria) and The Service Master Company
(Service Master) deny that they violated the Act in any man-
ner.1
Jurisdiction is conceded. Villa Maria, a Florida corporation
with an office and place of business in North Miami, Florida, is
a long-term care facility, a skilled nursing facility, a rehabilita-

1 The relevant docket entries are as follows: The charge in Case 10–
CA–18137 was filed on June 17 and amended on August 29, 1996. The
complaint issued on August 30, 1996. The hearing was held in Miami,
Florida, on 5 days, between December 11, 1996, and January 7, 1997.
The administrative law judge who heard the case decided it on January
9, 1998. On June 28, 2000, the Board ordered on that the proceeding be
remanded to a new administrative law judge; and in August 2000 the
parties stipulated to waive a trial de novo.
VILLA MARIA NURSING CENTER 1349
tion hospital, an outpatient center, an adult daycare center, and
a home health agency. It is owned by the Archdiocese of Miami
and managed by the Catholic Health Services (CHS). During
the 12 months preceding the issuance of the complaint, it de-
rived gross revenues in excess of $100,000 and purchased and
received at its facility goods and materials valued in excess of
$10,000 from other enterprises located within Florida, each of
which other enterprises had received the goods and materials
directly from points outside Florida. Service Master, organized
under the laws of Delaware, with an office and place of busi-
ness located at the Villa Maria facility in North Miami, has
provided housekeeping and laundry services to Villa Maria.
During the year preceding the issuance of the complaint, it
purchased and received at its Florida facility goods and materi-
als valued in excess of $50,000 directly from points located
outside Florida. I conclude that Villa Maria and Service Master
are employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. I also conclude, as Re-
spondents admit, that UNITE! Union of Needletrades, Indus-
trial and Textile Employees, AFL–CIO/CLC (Union) is a labor
organization within the meaning of Section 2(5) of the Act.
The Union began to organize the employees of Villa Maria,
thinking that all in the facility were employed by Villa Maria,
on January 6, 1996,2 by distributing literature at each of the two
vehicular entrances and the one pedestrian walkway to the em-
ployer’s property. Two days later, the Union held an open
house for employees at a nearby Howard Johnson to find out
from them their interest in unionization, to distribute authoriza-
tion cards, and to educate them on what the Union was about.
The session was attended by about 10 to 15 persons, some of
whom were employees of Service Master. As one of the union
organizers was answering questions from the employees, a
man, dressed not in uniform, like the employees, but in plain
clothes, was walking around in the hallway for a while and then
came into the room. He was greeted and given a union card to
sign. The other employees turned around, saw him come in, and
became quiet. They stopped asking questions. The organizers
asked if there were any more questions, and no one raised a
hand. There was silence. The meeting ended; and, as it did so,
the employees were talking among themselves. One of the
workers, Francena Sheffield, whispered to union organizer
Cassandra Davis that the man who had walked into the room
was one of Villa Maria’s supervisors, George Saenz.
Saenz testified that he was not a supervisor and that he had
been invited to the meeting, which he attended because he was
curious. But the record demonstrates that he was a supervisor.
In a memo dated September 15, 1995, George Miraglia, Villa
Maria’s director of engineering, announced to all employees of
Saenz’ promotion to engineering supervisor, with congratula-
tions, a fact that no doubt contributed to the employees’ uni-
form understanding and belief that he was a supervisor. A year
later, Villa Maria gave him a written appraisal, praising his
abilities in accomplishing a series of supervisory functions
during the preceding year, including his ability to make rec-
ommendations regarding terminations, training, promotions,
and disciplines; to supervise schedules and participate in dis-

2 All dates refer to the year 1996, unless otherwise stated.
cussions for final dispositions; to plan work schedules and
make job assignments; to provide training and in-service to
employees; to instruct staff; to coordinate, schedule, and super-
vise repairs; to handle inventory; and to oversee the daily per-
formance and ground care work of employees. Saenz gave
orders to engineers and assisted with ensuring that the con-
tracted security guards were doing what they should during the
organizing drive. Indeed, in addition to the security guards,
Saenz and Miraglia were the two Villa Maria employees who
were responsible for security. Finally, Saenz received addi-
tional vacation time and punched the timeclock only once,
rather than twice daily, as the other employees did.
Villa Maria contends that Saenz could not be a supervisor
because there were only five full-time employees and one part-
time employee in the department, making it unlikely that there
would be two supervisors in the same department. However,
Miraglia also was the director at another facility run by the
CHS, Saint John’s Nursing Center in Ft. Lauderdale, located
about 45 minutes from Villa Maria, and he split his time be-
tween the two facilities, spending about 40 percent of his time
at Saint John’s. Therefore, for the time that he was away, with-
out Saenz being a supervisor, the department would have
lacked supervision. I find that Saenz actually supervised em-
ployees and possessed ample authority of a supervisor and con-
clude that he is one. Regarding his supervisory status, I specifi-
cally reject Saenz’ testimony, and that of George Miraglia,
Saenz’ supervisor and Villa Maria’s director of engineering,
and employee David Fleitas to the contrary. Saenz downplayed
his functions in order to mislead about his supervisory duties.
Saenz’ explanation that he signed an authorization card there
because he was “caught off guard” and that he signed the card
in a name not his own because he wanted to remain anonymous
indicates that he did not want his identity to be proved at a later
date, because it was obvious that he was well known at the
facility. He was there to see what was going on and to report
that fact to the representatives of Villa Maria. On his return to
his job, he told Miraglia that he had been to the union meeting.
Because the record demonstrates that Villa Maria was overly
interested, albeit not in all instances illegally interested, as the
complaint alleges, in what the employees were doing and be-
cause Saenz was not candid about his actions at the meeting,3 I
conclude that he attended the employees’ meeting at the How-
ard Johnson to spy on their union activities on behalf of Villa
Maria, in violation of Section 8(a)(1) of the Act.
The complaint alleges that this violation, as well as many
others, were the responsibility of not only Villa Maria, Saenz’
and Fleitas’ employer, but also Service Master, which the com-
plaint seeks to implicate as the joint employer of all the em-
ployees at the premises. In M. B. Sturgis, Inc., 331 NLRB
1298, 1301 (2000), the Board held:

[T]o establish that two . . . employers are joint employers,
the entities must share or co-determine matters governing es-
sential terms and conditions of employment. The employers
must meaningfully affect matters relating to the employment
3 I note Saenz’ curious answer when asked if he reported any em-
ployee whom he saw speaking to a union representative or taking a
flyer: “I was told it wasn’t important.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1350
relationship such as hiring, firing, discipline, supervision, and
direction. [Citations omitted.]

Villa Maria and Service Master entered into a management
services agreement on March 14, 1995, to provide housekeep-
ing and laundry services to Villa Maria. The agreement pro-
vided that Service Master would “train, manage and direct” its
employees to support the housekeeping and laundry depart-
ments of Villa Maria. Service Master was required to procure
all required licenses and permits and to comply with all statutes
and regulations necessary to the performance of its functions
and to furnish management personnel and the necessary em-
ployees and supervisory, training, and technical personnel re-
quired to perform its functions. The General Counsel relies on
such diverse provisions of the agreement that permitted Villa
Maria to ask for the removal of any of Service Master’s man-
agement personnel who are not acceptable to Villa Maria; that
required Service Master to follow the appropriate disciplinary
action policies and procedures regarding service workers who
are “not acceptable” to Villa Maria; and that established a joint
review committee of representatives of Villa Maria and Service
Master to meet quarterly to review Service Master’s perform-
ance under the agreement. The General Counsel also relies on
the facts that Lawrence Stallcup, Service Master’s director of
environmental services, meets with Rutenberg on committees
relating to resident care or department head meetings; that
Rutenberg reports on activities scheduled at Villa Maria; that
Joseph Charles had been employed at Villa Maria since 1974 as
a porter/housekeeper/cleaner, but became an employee of Ser-
vice Master in or around February 1995, after the contract be-
tween Villa Maria and Service Master was signed; that Mi-
raglia, who is responsible for facility maintenance and security,
instructed Service Master’s employees about fire and life safety
matters, such as how to open up an extinguisher, extinguish a
fire, and ring the bell on the pull stations; and that Service Mas-
ter’s employees contacted him directly to report repairs that
needed to be performed.
None of these prove that Villa Maria oversees the daily work
or exercises indirect but effective control over Service Master’s
laundry and housekeeping employees. Further, the General
Counsel has not shown, contrary to his contention, that Service
Master did not have an assigned on-site supervisor performing
the tasks of director of environmental services. The facts that
Villa Maria ensures that the work performed by Service Master
is adequate shows its control over Service Master, not Service
Master’s employees. The General Counsel contends that there
were meetings of employees of both Villa Maria and Service
Master regarding the Union, but there was no showing that the
meetings were mandatory or that Villa Maria directed Service
Master employees to attend. That is insufficient in meaning-
fully contradicting the otherwise separate functioning of the
two entities. In fact, Stallcup conducted his own meetings with
the laundry and housekeeping employees in May 1996. The
General Counsel’s reliance on Pacemaker Driver Service, 269
NLRB 971 (1984), is misplaced. The findings in that decision
show far more jointly exercised control than the minor facts
present here. Villa Maria does not have any authority to hire,
fire, suspend or otherwise discipline, transfer, promote or re-
ward, or lay off or recall from layoff Service Master’s employ-
ees. Villa Maria does not evaluate them or address their griev-
ances. Service Master has no role regarding the security opera-
tions at Villa Maria, which alone contracted with West Florida
Detective Service (Service) to provide security services at its
facility. The guards are not agents of Service Master, as the
Union contends. Accordingly, there being no allegations that
Service Master independently violated the Act, except as de-
rivatively engaged in by Villa Maria, I dismiss the entire com-
plaint against Service Master.
The complaint alleges that Villa Maria also attempted to spy
on another meeting of the employees at the Subway sandwich
shop across the street from the facility. The union representa-
tives met several times with employee-members of the organiz-
ing committee who reported what was occurring at the facility
and delivered signed authorization cards. On one occasion
(when was never stated), according to former employee Rich-
ard Brown, Jack Rutenberg, Villa Maria’s administrator, having
seen a union supporter heading in that direction, asked over the
walkie-talkie for a volunteer to go to the Subway shop to watch
over the employees’ union activities. David Fleitas volunteered
“to go over there and take down tag numbers of the people who
was over there talking to the union people.” Fleitas denied that,
and Villa Maria generally attacks Brown’s testimony on the
ground that it forced him to resign and that he was thus biased
and prejudiced against it. Brown offered testimony to the Un-
ion, thus indicating that he might seek revenge for being asked
to resign because of an incident that he felt was unjustified. On
the other hand, Brown had no interest in the outcome of this
proceeding; but I found his recollections exaggerated and inac-
curate and pitched against Villa Maria, although I could not
sense that he was not making a good-faith effort to testify as
best as he believed he recalled. No matter whether I believe
Brown, there is no evidence here that Fleitas actually followed
through and looked at and copied the license plates. Accord-
ingly, I dismiss this allegation.
The complaint alleges numerous other acts of surveillance,
all of which involved watching union representatives distribute
literature 2 or 3 days each week, at least at the beginning of the
campaign, the number of days growing to every day by the time
of the election, twice each day, in the morning from 6 through
7:30 a.m., and in the afternoon from 2 to 3:30 p.m. An em-
ployer’s mere observation of open, public, union activity on or
near its property does not constitute unlawful surveillance.
Fred'k Wallace & Son, Inc., 331 NLRB 914 (2000); Hoschton
Garment Co., 279 NLRB 565, 567 (1986). In the latter deci-
sion, supra at 568 fn. 5, the Board quoted one administrative
law judge, “The notion that it is unlawful for a representative of
management to station himself at a point on management’s
property to observe what is taking place at the plant gate is too
absurd to warrant comment.” Tarrant Mfg. Co., 196 NLRB
794, 799 (1972). Thus, I dismiss the allegation involving
Rutenberg, who is alleged to have watched the leafleting while
he was smoking at the front entrance of the facility, smoking
being prohibited inside. I also dismiss the allegation involving
Kimberly Pero, the director of nursing, who, Brown testified,
was watching from the roof of the building. As a matter of law,
that claim cannot stand. In addition, she denied that she ever
VILLA MARIA NURSING CENTER 1351
had been on the roof, and I credit her denial. Pero could have
looked out from any window to see what the Union organizers
were doing without climbing up to the roof. Brown’s testimony
was baseless and his wavering between the fact that Pero was
or was not on the roof and whether he heard her speak or did
not was particularly unconvincing.
In dismissing these allegations, I deny Respondents’ defense
that no unfair labor practice charges were filed that would sup-
port various allegations of the complaint. The original charge,
filed against both Respondents, alleged that they engaged in
surveillance of employees as they received and distributed un-
ion literature, changed working conditions “to thwart the Union
drive,” threatened employees with loss of jobs and benefits if
they supported the Union, solicited and remedied employees’
grievances in an attempt to discourage membership in the Un-
ion, threatened employees that contract negotiations with the
Union would inevitably lead to loss of jobs and benefits, and
changed the employees’ terms and conditions of employment
by changing their work and pay schedules in order to discour-
age their support for the Union. The amended charge withdrew
the allegations about the threat that negotiations would lead to
strikes, the remedy of grievances, and the change of work and
pay schedules.
In considering the general sufficiency of a charge to support
allegations of the complaint, the Board has generally held that a
complaint is proper if the allegations are related to and arise out
of the same factual situation as the conduct alleged to be unlaw-
ful in the underlying charge. Paragraphs 6(c), (g), and (h) allege
surveillance; 6(d) and (I) allege threats of loss of employment
and benefits; and 6(e) alleges solicitation of grievances, all in
complete conformity with the amended charge. Paragraph 6(b)
adds the name of Gloria Hanson to representatives of Respon-
dents who allegedly threatened employees with loss of jobs and
benefits; paragraph 6(f) alleges that Respondents established a
new policy of casual days, designated a “CNA week” and gave
parties with free food and drink, and held raffles with prizes, to
discourage employees from voting for the Union; and para-
graph 7 reinserted the allegation of a change of schedules that
had been earlier withdrawn. As the Board stated in Office De-
pot, 330 NLRB 640 (2000):

The Board stated in Nickles Bakery of Indiana, 296
NLRB 927 (1989), that in considering the sufficiency of a
charge to support an allegation in the complaint under Sec-
tion 10(b), “the Board has generally required that the
complaint allegation be related to and arise out of the same
situation as the conduct alleged to be unlawful in the un-
derlying charge.” To determine whether the complaint al-
legations are sufficiently related to the charge allegations,
the Board applies a “closely related” test comprised of the
following factors: (1) whether the allegations involve the
same legal theory; (2) whether the allegations arise from
the same factual circumstances or sequence of events; and
(3) whether a respondent would raise similar defenses to
the allegations.3 In Ross Stores, Inc., 329 NLRB 573
(1999), the Board reaffirmed Nickles Bakery and other
precedent consistently holding that the requisite factual re-
lationship under the “closely related” test may be based on
acts that arise out of the same antiunion campaign.4
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1352
__________________________

3 See also Redd-I, Inc., 290 in-text fn. NLRB 1115, 1118
(1988).
4 Although Ross Stores addressed the test for determining
whether otherwise time-barred allegations in an amended charge
relate back to allegations of an earlier timely filed charge, the
same test applies to determining the relatedness of complaint alle-
gations to an unfair labor practice charge. Ross Stores, 329 NLRB
573 fn. 6.

All the acts alleged occurred within the first 5 months of
1996 and were based on an overall plan to resist the union
campaign. They thus arose from the same factual circumstances
or series of events, meeting the Board’s second test. Further-
more, Respondents’ defense is similar in that they assert that
they did not attempt to engage in acts that would discourage the
union activities of their employees, a pattern that is alleged in
the numerous 8(a)(1) violations alleged in the complaint. That
leaves the first test, whether these acts involve the same theory
as the acts alleged in the charge. Regarding the addition of
Hanson as a person who also engaged in illegal surveillance,
there can be no question. (The complaint as to her was dis-
missed during the hearing.) However, the remainder of the
charges alleged acts which were intended to scare the employ-
ees from their support of the Union, either by watching over
them or by convincing them of the harm (loss of benefits and
wages) that would result from their support. The new claim,
that they were given new benefits, such as casual days and
parties and raffles with prizes, is hardly different, because the
natural result of those actions would also be intended to con-
vince the employees to look elsewhere and not to the Union to
support them. So closely are they related that the Board has
often referred to them as the “carrot and stick,” Overnite
Transportation Co., 329 NLRB 990 (1999), a device frequently
used to thwart union activity. I conclude that the additional
allegations are sufficiently related that they satisfy the basic
Nickles Bakery test. To the extent that Villa Maria continues to
maintain its 10(b) defense, which it did not brief, I reject it for
the same reasons. Finally, I reject Villa Maria’s defense that the
complaint should be dismissed because the unfair labor practice
charge was filed against “Villa Maria Rehab. Center.” Villa
Maria had to know that the charge was leveled against it and no
other entity.
The remaining surveillance allegations concern the conduct
of uniformed security guards, sometimes accompanied and
supplemented by Miraglia and Saenz, who watched the leaflet-
ing. About six union representatives4 began leafleting on Janu-
ary 6 in Villa Maria’s parking lot, which was private property.
Villa Maria’s security guard asked them to leave, as did city
police who were called when they did not, complaining that
others had used the lot for solicitation. Eventually, the police

4 The witnesses’ recollection of the number of organizers present
varied widely. Brown recalled there being 10 or 20 or 30 or even 40,
depending on the day. Cassandra Davis came closest to Brown’s high-
est number, testifying that on one day there were probably 15. Organ-
izer John Belizaire testified that there were no more than 8; Rutenberg
testified that there were 6 to 12; and Pero and Mattie Reddick, human
resources manager, testified that they saw 3 or 4.
told the representatives that they could not distribute from the
parking lot, but had to go to the sidewalk and were not to block
the driveway entrances. The representatives then went to cover
the two driveway entrances to Villa Maria, as well as the pedes-
trian walkway. Despite union organizer Gihan Perera’s initial
claim that they remained on the sidewalk for the rest of the
campaign, they did not stay where they should have. In fact,
Perera conceded that “some people like volunteers who came
out every once in a while stepped on the grass in order to line
up on the sidewalk.” He added: “There’s a sidewalk and there’s
a grass. Sometimes, they would have 1 foot on the sidewalk and
1 foot on the grass.” The union representatives were repeatedly
told that they were not to be on Villa Maria property, and the
police were called two to three times a week throughout the
campaign, up to the day of the election. The police not only
responded but also stayed, and it is probable that they would
not have remained had the union representatives actually stayed
where they were told to leaflet. Furthermore, had the local po-
lice not thought that the complaints had some basis, they would
have refused to answer them after a period of time.
Villa Maria had concerns other than with trespass on its
property. It also had to keep open access to its facility. Patients,
staff members, family members, doctors, allied health profes-
sionals, and ambulances come to and leave from Villa Maria
daily. One of the two driveways had a large pothole and had
been closed off for construction even before the Union started
organizing and, when it was open during the campaign, the
pothole was marked off by cones. On other occasions, it was
closed, probably to limit the union activity or to maintain moni-
toring.5 As a result, the traffic at the other driveway was dou-
bled, and it was only predictable that there might be congestion
in entering and leaving the property, which could only be exac-
erbated by the union representatives’ distribution of leaflets,
two on each side, and talking with employees for “couple of
minutes,” according to union organizer Richard Resua,6 or for 3
to 5 minutes, according to Brown. To do so, the organizers
would stop the vehicles by walking in front of them or holding
their hand up. One tieup was perhaps seven cars deep, and the
backup of cars caused delays, particularly of critical traffic,
such as doctors and ambulances.
Rutenberg’s first response to the leafleting and trespass was to
hire additional guards, two of whom, some employees said, were
dressed in plain clothes. There was not credible corroboration on
that issue, and I find that the ones in plain clothes, identified by
the fact that they carried walkie-talkies, were probably Saenz and
Miraglia, who carried that equipment and were advised by the
guards each time the union representatives appeared. The guards
5 For example, regarding the pothole and construction, Rutenberg
testified that “[i]t was blocked after May 31st for a little while. And
then I'm not really sure why we took that chain down. It was either
because construction was starting or it just wasn’t necessary to keep
such close monitoring on the three exits.”
6 Resua, aware that Villa Maria was claiming that the Union inter-
fered with the free flow of traffic, when asked for his estimation about
how long he spoke to employees, initially answered: “The intent of the
organizers was not to stop ingress and egress, so that the conversations
were generally limited, but—” at which point there was an objection
raised that his answer was not responsive.
VILLA MARIA NURSING CENTER 1353
who were hired, the ones from Service, wore uniforms. When the
Union began its leafleting, Villa Maria employed only one secu-
rity guard for each of its three shifts. Despite Rutenberg’s testi-
mony that on January 8, Villa Maria increased the number of
guards to two per shift because there had been an incident where
union personnel refused to leave, and after 2 or 3 days reverted to
one security guard per shift, the security logs demonstrate that
there were up to six security officers as “special reinforcements”
present during one shift during the next 3 days. In addition,
Rutenberg asked a guard to remain on duty after his normal shift
on 2 days, as late as January 19, because Rutenberg was expect-
ing “the Union people” to arrive; so that guard joined the guard
coming on duty to monitor the leafleting.
Some of the General Counsel’s witnesses testified that, as
the campaign progressed, Villa Maria increased its contingent
of security personnel stationed within sight of the distribution
activity to two or three guards by April, and to four guards by
May. However, Rutenberg testified that only in the 2 weeks
prior to the election did he increase the number to two. Ser-
vice’s records do not support the General Counsel’s witnesses’
testimony about the April increases and about the number of
guards hired in May. I thus find that Rutenberg’s testimony
about the number of guards in May was correct and the testi-
mony of the witnesses for the General Counsel, which varied
greatly,7 was inflated. But I also find that the two guards were
frequently supplemented in May by Saenz and Miraglia, total-
ing four people watching the leafleting activities conducted by
four union representatives.
The May increase was prompted, according to Rutenberg, by
telephone threats made to two patients, graffiti (swastikas and
“death to whitey”), desecration of a religious painting, cut ca-
bles and call bells, oil sprayed or glue pasted into a VCR, and
death or other threats to himself, Miraglia, and Villa Maria’s
assistant director of nursing, Georgianna Barley. According to
Brown, there had been no vandalism at Villa Maria prior to the
union campaign. The General Counsel and the union contest
these events, but there is corroboration from Brown that Ruten-
berg stated that he had been threatened, the police were called
because of the threats to the patients, and Barley’s compelling
testimony about the threat to her. I also found convincing
Rutenberg’s testimony that he took his car out of town for a
month because he felt that no one would think twice about
damaging his car, which he “loved.” I find, therefore, that what
Rutenberg relied on occurred and that he hired additional
guards in good faith.
The mere presence of a security guard does not constitute
surveillance. Seton Co., 332 NLRB 979 (2000). Villa Maria had
the right to watch the union representatives to ensure that they
did not trespass on its property and that they did not block traf-
fic. It also had the right to resort on a number of occasions to
calling for police help in ensuring that its property rights would

7 According to Cassandra Davis, in early February, the number of
guards increased in early February from one to two, then later to three,
and by late April into May to four. Sheffield stated that there were four
or five guards in January; employee Villa Louis stated that there were
four throughout 1996, and a few more plus the maintenance employees
during the few weeks before the election.
be honored. The placement of the guards halfway between the
sidewalk and the building, approximately 25 feet away from the
leafleting, does not appear to be obtrusive and is not unlawful.
Because of the activity in May, Rutenberg had the right to hire
additional security to protect the patients and staff, including
himself, and Villa Maria’s property.
Villa Maria, however, never explained the reason that so
much time was spent by the security guards and Miraglia and
Saenz watching the activities of the union representatives. Villa
Maria’s conduct went far beyond the “mere observation” per-
mitted by Hoschton Garment. The guards engaged in continu-
ous scrutiny. Impact Industries, 285 NLRB 5, 7 (1987); Arthur
Briggs, Inc., 265 NLRB 299 (1982), enfd. mem. 729 F.2d 1441
(2d Cir. 1983). Not only was there monitoring by one guard on
patrol, as there had been prior to January 6, but the numbers
increased dramatically, to six for 3 days beginning on January
8, and two for 2 days starting on January 18, and two guards,
plus Miraglia and Saenz, for the 2 weeks in May before the
election, when there were as many guards and security person-
nel watching the leafleting as there were union representatives
doing the leafleting.
Villa Maria did not show that the increased number of per-
sonnel was necessary to ensure the protection of its residents or
any of its property rights. The leafleting could have been ob-
served from any window in the three-floor facility that faced
the front. The patients and property could have been protected
from the inside of the facility. Rather than ordinary or casual
observation, the increased number of guards, supplemented by
Villa Maria’s internal security staff, was intended to intimidate
employees engaging in protected and union activities. Epic
Security Corp., 325 NLRB 772, 776–777 (1998); Sands Hotel
& Casino, 306 NLRB 172 (1992), enfd. mem. sub nom.
S.J.P.R. Inc. v. NLRB, 993 F.2d 913 (D.C. Cir. 1993); Arrow
Automotive Industries, 258 NLRB 860 (1981), enfd. 679 F.2d
875 (4th Cir. 1982); and Shrewsbury Nursing Home, 227
NLRB 47, 50 (1976). Indeed, had Rutenberg been so concerned
with vandalism and threats, one wonders why he did not per-
manently station the guards inside the building, where the dam-
age was being done and the threats were being made.
In addition, the guards went far beyond merely watching the
leafleting. Shortly after filing the petition for an election on
April 22, the guards stood much closer to the union representa-
tives, sometimes 6 feet away, sometimes 1 foot, despite the
union representative’s complaint that it was illegal for them to
monitor the leafleting in that manner. They replied that they
were just doing their jobs and doing what they had been told to
do. Miraglia told a guard to keep an eye on those speaking with
the union representatives and accepting union literature. They
discussed names of employees and license tag numbers of their
vehicles. Guards wrote on their clipboard after employees ob-
tained literature. The day after the election, a security guard
told Resua “that his job had simply been to write down the
names and license plates of people who stopped to take Union
literature or who spoke to organizers.” Resua complained that it
was objectionable conduct for them to be writing names and
license plate numbers of union supporters, and the guard re-
sponded that Resua did not have to worry because the guards
already had a complete list of the union supporters. I conclude,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1354
from all the facts, that Villa Maria violated Section 8(a)(1) of
the Act by engaging in surveillance.8
The complaint contains a number of allegations that Villa
Maria solicited grievances, changed its conditions of employ-
ment, and threatened various adverse consequences to discour-
age its employees’ support of the Union. About 2 months be-
fore the May 31 election, for the first time, Barbara Griffith,
director of human resources, distributed satisfaction surveys to
determine what the employees thought about their jobs, pay,
supervision, and benefits, and asked that the employees answer
three pages of questions. Included in the questions were the
employees’ satisfaction with how individual complaints and
problems were handled, whether their coworkers were satisfied
with working there, their interest in an alternative health plan,
and their satisfaction with employee benefits and the salary
administration program based on performance evaluations that
generated salary increases. At the end of the survey the em-
ployees were asked to fill in a fourth page with any other
thoughts that they had regarding their working environment,
supervisor, compensation and benefits, recognition, and com-
munication. Villa Maria defends this survey on the ground that
it had been approved on January 4, prior to the Union’s attempt
to organize the employees. However, the Union started organiz-
ing the employees even earlier, in October 1995, albeit only by
visits to the employees’ homes, and the Union also began orga-
nizing the employees at other facilities owned by the Archdio-
cese.
It is well established that when an employer institutes a new
practice of soliciting employee grievances during a union or-
ganizational campaign, “there is a compelling inference that he
is implicitly promising to correct those inequities he discovers
as a result of his inquiries and likewise urging his employees
that the combined program of inquiry and correction will make
union representation unnecessary.” Orbit Lightspeed Courier
System, 323 NLRB 380, 393 (1997); Embassy Suites Resort,
309 NLRB 1313, 1316 (1992), citing Reliance Electric Co.,
191 NLRB 44, 46 (1971). I so conclude. Villa Maria’s reliance
on Grove Valve & Regulator Co., 262 NLRB 285 (1982), is
misplaced. There, the survey was distributed with the express
notice, repeated twice, that the employer was, by distributing
the survey, making no promise of any changes of employee
wages, benefits, or working conditions. Even if Villa Maria had
decided to issue the survey before it learned of the union cam-
paign, a position that I doubt, Board law does not treat the so-
licitation of grievances in the same way that it treats the con-
tinuation of the payment of wages and other benefits. I reject,
therefore, Villa Maria’s reliance on Churchill’s Supermarkets,
285 NLRB 138 (1987), enfd. 857 F.2d 1474 (6th Cir. 1988),
cert. denied 490 U.S. 1046 (1989).

8 Villa Maria contends that a review of all of the reports of the secu-
rity guards shows that they did not write the license plates of the em-
ployees and that the guards were required to note the license plates of
every vehicle that made deliveries. Miraglia testified, however, the
guards would write on a piece of paper the license plates of those com-
ing into the facility to make deliveries. I find that the guards could just
as easily, and did, write the license plate numbers on papers other than
their official reports.
On May 13, Barbara Griffith, the director of human re-
sources of the CHS, announced a new rule permitting employ-
ees of Villa Maria to wear casual clothing, not their uniforms,
the last Friday of each month. Villa Maria instituted that rule on
Friday, May 31, the day of the election. There is nothing in the
record that shows that wearing apparel was at all an issue
among the employees, but permitting them to wear casual
clothes, rather than their uniforms, was obviously not intended
to make their working conditions more harsh. Rather, the logi-
cal intent was to make them feel good, and the change of the
rule geared to the day of the election cannot be looked at as
anything other than an effort by Villa Maria to encourage a vote
against representation by the Union. I conclude that Villa Maria
violated Section 8(a)(1) of the Act.
In 1995, all nurses, including certified nursing assistants
(CNAs), celebrated a “nurses’ week” during May. In 1996, Villa
Maria divided that week into two weeks, one for the registered
nurses and one exclusively for the CNAs, during which there was
musical entertainment with a band and a disk jockey, food and
drinks from Subway and Pizza Hut, raffles, and prizes awarded
for dancing, including cash or gift certificates. The credible evi-
dence, including the testimony of employee Villa Louis and
Brown on cross-examination and the failure of the Counsel for
the General Counsel to ask Sheffield, a longtime CNA, about this
allegation, convinces me that the CNA week was celebrated in
June, after the election, rather than in May, a fact on which the
complaint is apparently predicated. There is nothing in the record
that indicates when the separate CNA week was announced, if it
was. Accordingly, I find that the mere separation of the one-week
celebration into two weeks, with the second week being held
after the election, could not be understood as an attempt to dis-
suade employees from supporting the Union and conclude that
there is no violation here.
However, on April 3, Villa Maria also announced a new essay
contest, with monetary awards, one sponsored by the Florida
Health Care Association for CNAs with 1 year of service. In
addition, the CHS was to judge all entries, without regard to the
length of service of an CNA, with separate cash awards from $75
to $150, with winners, according to the written announcement, to
be announced on May 3, but, according to the testimony, to be
given during the CNA week. The contest announced by the Flor-
ida Health Care Association is not subject to Villa Maria’s con-
trol, and the announcement cannot constitute an unfair labor
practice. However, Villa Maria’s addition of its own award to
CNAs was a new benefit intended to influence them in their
choice in the election. I conclude that that violated Section
8(a)(1) of the Act. Grove Valve & Regulator Co., supra.
The complaint alleges that Villa Maria changed employees’
work schedules on or about January 9, an allegation supported by
Louis, who testified that before the Union began its campaign,
she was scheduled to work every other weekend, or twice a
month, but after the union campaign began, Villa Maria re-
quired her to work three weekends each month, a schedule that
continued until a month after the election, when she returned to
working two weekends each month. Villa Maria’s schedules
demonstrate that Louis erred: her schedule changed in 1995,
long before the Union began to organize the employees. Shef-
VILLA MARIA NURSING CENTER 1355
field’s testimony appears to support Villa Maria’s defense that
the schedule change was made earlier. I dismiss this allegation.
The complaint also alleges that Villa Maria threatened em-
ployees with the loss of employment and benefits if they voted
in the Union, an allegation supported by Sheffield, who testi-
fied that at a meeting on January 8, Rutenberg told all the em-
ployees of both Villa Maria and Service Master that, if they
signed papers concerning the Union, they “would” lose their
pension and their homes. I discredit her testimony for several
reasons. First, I found that she generally exaggerated. Second, I
found that, although she remembered these statements, she
could remember little else of all the meetings that she attended,
claiming that “it’s been so long, I don’t remember.” Third,
during cross-examination, she changed her testimony from
“would” to “could.” Fourth, despite the fact that the meeting
was attended by more than 150 employees, Sheffield was the
only one who testified that she heard these remarks. Finally,
Rutenberg testified that he informed the employees that in col-
lective bargaining everything goes on the table and that what
the employees have now does not mean that that would be what
they would have after the Union and management reached a
contract. Their conditions might be better, worse, or the same.
Furthermore, in discussing the possibility of strikes, he men-
tioned that when employees strike, some unions pay strike
benefits that are not a lot of money. He asked whether those
benefits would be sufficient for employees to make their house
and car payments. From those remarks, Sheffield may have
thought that Rutenberg was making a threat, but he was not. I
dismiss this allegation.
A number of allegations concern two labor consultants, John
Davis and Robert Mullen, retained by both Villa Maria and
Service Master. Louis testified that, about 2 weeks before the
election, at a meeting conducted by them, the person she identi-
fied as John said that, if the employees joined the Union, they
were going to lose their benefits, such as their pension plan, and
Villa Maria would reduce their days and hours. Furthermore, if
the employees paid $10 every month to the Union, the Union
would not “do any good for you, because they always rent,
using rent car. They always living in the hotel. They get our,
they going to get our money to pay their bills.” Finally, in two
one-on-one conversations within 2 or 3 weeks of the election,
“John” also threatened that Villa Maria would reduce the em-
ployees’ vacations from 2 weeks to 1 and their holidays from 8
days to 4. Louis testified that the two consultants were both tall
and that John was white and was a member of the Union (she
“used to call him to come in to help us”) when she was working
at Bayshore Convalescent Center and Bob was black. In reality,
she had their skin colors reversed, and Davis denied ever hear-
ing of Bayshore and denied that he had made the statements
that obviously were being attributed to the white Mullen, who
Davis testified was previously a union organizer in a union that
represented nursing home employees and who did not testify.
The General Counsel asks that I draw an adverse inference
from Mullen’s failure to testify, and I will do so. Villa Maria
clearly knew that it was Mullen that Louis was testifying about
but tried to take advantage of her mistake in calling him
“John.” I find that Davis was the more credible witness and
credit his denial that neither he nor Mullen made the comments
attributed to them at the meeting. However, because the one-
on-one conversations were not denied by Mullen, and only
because of that, I credit Louis’ testimony and conclude that
Villa Maria violated Section 8(a)(1) of the Act. I specifically do
not credit her testimony, supporting an allegation that admit-
tedly was not made in the complaint, that Human Resources
Manager Mattie Reddick promised that if the Union did not win
the election, the employees would get everything they needed.
Reddick denied making that statement and Louis admitted that
Reddick talked to the employees about the benefits that they
already had without a union and said that they could do just as
well without a union as with a union.
Finally Joseph Charles, an employee of Service Master, testi-
fied that at a meeting about 2 weeks before the election Davis
or Mullen told the Service Master employees that they would
have no benefits if they voted for the Union. The counsel for
the General Counsel represented that she had called Joseph as a
witness to testify about Saenz’ duties as a supervisor. There
was no allegation in the complaint against Service Master about
this incident, and I find that it was not fully litigated, in light of
counsel’s representation. Similarly, I will not consider Brown’s
testimony that Mullen told Service Master employee Jeff Wor-
thy that Sheffield tricked people into signing union membership
cards and that people lost jobs working in a union. I find that
this was not alleged and not litigated.
The Objections
On April 22, the Union filed a representation petition for an
election naming both Respondents as the Employer. On May 8,
1996, the Regional Director for Region 12 approved a Stipu-
lated Eection Agreement for Villa Maria employees in the fol-
lowing unit:

All full-time and regular part-time employees employed by
Villa Maria Nursing and Rehabilitation Center, Inc. (Villa
Maria), in the following classifications: CNAs, Restorative
CNAs, Unit Clerks, Health Information Management (Medi-
cal Records) Clerks, Engineering (Maintenance) employees,
Patient Representatives (Admission Clerks), Purchasing As-
sistant, Pharmacy Drivers, Recreation Therapy Assistants, and
Dietary employees (including cooks), employed by Villa
Maria at its facility located at 1050 NE 125th Street, Miami,
Florida; excluding all employees, housekeeping, office cleri-
cal employees, LPNs, RNs, professional and technical em-
ployees, guards and supervisors as defined in the Act.

On the same date the Regional Director approved a Stipulated
Election Agreement for Service Master employees in the fol-
lowing unit:

All full-time and regular part-time housekeeping and laundry
employees employed by The Service Master Company at
Villa Maria Nursing and Rehabilitation Center, Inc., at 1050
NE 125th Street, North Miami, Florida; excluding all other
employees, office clerical employees, managerial employees,
guards and supervisors as defined in the Act.

Separate elections were conducted on May 31, 1996. The
Union lost in the Villa Maria unit, with 59 votes cast for it, 65
votes cast against, and 6 challenged ballots, which were insuf-
ficient to change the results of the election. The Union also
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1356
lost the Service Master unit, 15 to 8. On June 7, 1996, the
Union, by one of its attorneys, timely filed objections, which
essentially complain about the same alleged in the complaint.
In the caption named both Respondents are named and re-
ferred to as “Employers.” However, the objections were titled
“Petitioner’s Objections to Conduct Affecting Results of
Election.” There is no reference to two elections being held.
Rather, only the singular “Election” is referred to, not the
plural “Elections.” Thus, the objections end with the prayer
“that the election be set aside and a new election held at the
earliest possible date and time.”
In the body of the objections, the title of the objections,
quoted above, is repeated, with the modification that the
“election” was held “at the facility of Villa Maria Nursing and
Rehabilitation Center and The Service Master Company in
Miami, Florida (hereinafter ‘Employer’).” “Employer” clearly
is intended to refer to Service Master and not both Respon-
dents, because the word is used repeatedly only in the singu-
lar. The reference is not “(hereinafter collectively ‘Em-
ployer’).” The only evidence that would at all show that the
Union intended to object to the conduct of Villa Maria was
the fact that, at least according to the Regional Director’s
order directing a hearing on the objections, the Union served
the objections on both Respondents. However, that may have
been merely a courtesy mailing of copies on all parties to
these proceedings and does not vary the language of the ob-
jections that the Union filed. Accordingly, I conclude that the
only valid objections served were those on Service Master,
and the only objection that was not also an unfair labor prac-
tice allegation was that Service Master gave to the Union an
incorrect Excelsior9 list, an objection that was withdrawn at
the hearing. Accordingly, because I conclude that there is no
proof that Service Master violated the Act, I conclude that the
objections have no merit and remand Case 12–RC–7957 to
the Regional Director for Region 12 for further action.
In the event, however, that the Board should find that the ob-
jections were validly filed against Villa Maria, some of the
unfair labor practices that I have found occurred before the
filing of the petition and do not constitute objectionable con-
duct. The announcement of the new casual day, the surveillance
in May, and the threats by Mullen to Louis occurred between
the filing of the petition and the election and constituted con-
duct which interfered with the election, requiring the schedul-
ing of a new election for the Villa Maria unit. In addition, the
Union contends that 13 of the 147 addresses contained on Villa
Maria’s Excelsior list were inaccurate. Villa Maria Administra-
tive Assistant Glennis Wallace testified that she compared the
addresses with Villa Maria’s records and that nine were consis-
tent with Villa Maria’s records (the Union found one of these
employees), one contained a typographical error, and three
contained the addresses of other employees. In sum, Villa
Maria submitted a list with four mistakes of its own. That is
less than 3 percent, far less than the 7 percent that the Board
found not objectionable in Bear Truss, Inc., 325 NLRB 1162
(1998). I dismiss this objection.

9 Excelsior Underwear, 156 NLRB 1236 (1966).
In doing so, I note the Board’s recent decision in Woodman’s
Food Markets, 332 NLRB 503 (2000), which involved the
omission of 12 eligible employees from the Excelsior list where
the union lost the election by 13 votes. The Board reconfirmed
that “employees have a Section 7 right to make a ‘fully-
informed’ choice in an election, and . . . the purpose of the Ex-
celsior rule is to protect that right,” quoting from Thiele Indus-
tries, 325 NLRB 1122 (1998), and held that:

in determining whether an employer has substantially com-
plied with the Excelsior requirements, the Board must con-
sider not only the number of names omitted from the Excel-
sior list as a percentage of the electorate, but also other fac-
tors, including the potential prejudicial effect on the election
as reflected by whether the omissions involve a determinative
number of voters and the employer’s reasons for omitting the
names.

The Board specifically, at footnote 11, did “not reach . . .
whether the policy adopted . . . with respect to the omission of
names should also apply to incorrect addresses.” Because the
Board did not reach that issue, which is the issue presented
here, I am bound by current Board law. However, just as in
Woodman’s Food Markets, the votes of the employees with bad
addresses could have made a difference. If all the challenged
employees voted for the Union, the election would have been
tied, 65 votes for union representation and 65 votes against.
Thus, consistent with the remedy afforded in Woodman’s Food
Markets, the matter might have to be returned to the Regional
Director for determination of the challenged ballots; and, if
their votes, or the votes of some of them were opened and it
was determined that the Union lost by three votes, then Villa
Maria’s objection would be sustained and the election would be
set aside.
In addition, the Board has held that a finding of bad faith will
preclude a finding that an employer was in substantial compli-
ance with the Excelsior rule. Bear Truss, Inc., 325 NLRB at
1162 fn. 3. The Union advised the Board of the bad addresses,
and the Board agent called back giving the Union the addresses
that Villa Maria had given him. Why the errors that were testi-
fied to by Villa Maria at the hearing could not have been de-
termined when the Union complained was not explained and
evidences Villa Maria’s bad faith. Medtrans, 326 NLRB 925
(1998).
REMEDY
Having found that Villa Maria 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.
On these findings of fact and conclusions of law and on the
entire record,10 I issue the following recommended11
10 The Union’s motion to correct the reference in the official tran-
script to the year “1992” to “1996” on p. 523 is granted, without oppo-
sition.
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
VILLA MARIA NURSING CENTER 1357
ORDER
The Respondent, Villa Maria Nursing and Rehabilitation
Center, Inc., North Miami, Florida, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Engaging in surveillance of its employees engaged in un-
ion and concerted protected activities.
(b) Threatening its employees with loss of benefits if they
voted in UNITE! Union of Needletrades, Industrial and Textile
Employees, AFL–CIO/CLC (Union).
(c) Soliciting complaints and grievances from its employee
through surveys.
(d) Establishing new benefits, such as casual days and prizes,
to discourage its employees from voting for or supporting the
Union.
(e) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in North Miami, Florida, copies of the attached notice
marked “Appendix.”12 Copies of the notice, on forms provided
by the Regional Director for Region 12, after being signed by
Villa Maria’s authorized representative, shall be posted by Villa
Maria immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by Villa Maria 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, Villa Maria has
gone out of business or closed the facility involved in these
proceedings, Villa Maria shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and for-
mer employees employed by Villa Maria at any time since
January 8, 1996.
(b) 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 against
Villa Maria is dismissed insofar as it alleges violations of the
Act not specifically found.
IT IS FURTHER ORDERED that the complaint against The
Service Master Company is dismissed in its entirety.

adopted by the Board and all objections to them shall be deemed
waived for all purposes.
12 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice “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.’’
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
the National Labor Relations Act and has ordered us to post and
abide by this notice.

WE WILL NOT engage in surveillance of our employees
engaged in union and concerted protected activities.
WE WILL NOT threaten our employees with loss of bene-
fits if they voted in UNITE! Union of Needletrades, Industrial
and Textile Employees, AFL–CIO/CLC.
WE WILL NOT solicit complaints and grievances from our
employee through surveys.
WE WILL NOT establish new benefits, such as casual days
and prizes, to discourage our employees from voting for or
supporting the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the National Labor Relations
Act.

VILLA MARIA NURSING AND
REHABILITATION CENTER, INC.