Windsor Convalescent Center

National Labor Relations Board - Administrative Judge Opinions

Jan 31, 2006

21-CA-036422 (N.L.R.B. Jan. 31, 2006)

JD(SF)-08-06
Long Beach, CA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

S&F MARKET STREET HEALTHCARE LLC
d/b/a WINDSOR CONVALESCENT CENTER
OF NORTH LONG BEACH

and Case 21-CA-36422

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 434B, AFL-CIO

and Case 21-CA-36645

ANNIE MOSS, An Individual

and Case 21-CA-36650

TARA SMITH, An Individual

Alan L. Wu and Jean Libby, Attys., Counsel for the General Counsel,
Region 21, Los Angeles, California.
Laurence R. Arnold, Joshua M. Sable, and Scott P. Inciardi, Attys.,
Counsel for Respondent, Foley & Lardner LLP,
San Francisco, California,
Dana S. Martinez and Elizabeth Garfield, Attys., Counsel for Charging Party,
Holguin and Garfield, Los Angeles, California.

DECISION

Statement of the Case

Lana H. Parke, Administrative Law Judge. This matter was tried in Los Angeles,
California on September 14 through 16, October 19 through 21, and November 7 and 8,
20051 upon Amended Consolidated Complaint and Amended Notice of Hearing (the Complaint)
issued August 11, 2005 by the Regional Director of Region 21 of the National Labor Relations
Board (the Board) based upon charges filed by Service Employees International Union, Local
434B, AFL-CIO (the Union or the Charging Party), by Annie Moss, an individual, and by Tara
Smith, an individual. The Amended Consolidated Complaint, alleges S&F Market Street
Healthcare LLC d/b/a Windsor Convalescent Center of North Long Beach (Respondent) violated
Sections 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act). Respondent
essentially denied all allegations of unlawful conduct.

1 All dates herein are 2004 unless otherwise specified.

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Issues

1. Was Respondent a successor to Covenant Care Orange, Inc., d/b/a Candlewood
Care Center on and after July 1?
2. Did Respondent violate Section 8(a)(5) and (1) of the Act by refusing to bargain with
the Union concerning the terms and conditions of employment of employees in
appropriate units represented by the Union?
3. Did Respondent violate Section 8(a)(5) and (1) of the Act by unilaterally
implementing changes to the terms and conditions of employment of employees
employed in appropriate units represented by the Union without prior notice to the
Union and without affording the Union an opportunity to bargain regarding the
changes.
4. Did Respondent violate Section 8(a)(3) and (1) of the Act on and after June 30 by
refusing to hire Edna Colter, Debra Smith, Sharie Hailey, and Annie Moss?
5. Did Respondent violate Section 8(a)(3) and (1) of the Act on July 7 by suspending
employees Tracy Davenport, Nana Williams, Nereida Jimenez, and Tara Smith?
6. Did Respondent violate Section 8(a)(3) and (1) of the Act on July 23 by terminating
employees Tracy Davenport, Nana Williams, Nereida Jimenez, and Gladys Matos?
7. Did Respondent violate Section 8(a)(3) and (1) of the Act on August 10 by
terminating employee Tara Smith?
8. Did Respondent engage in the following independent violations of Section 8(a)(1) of
the Act: inform employees there was no union at its facility or that the facility was not
a union facility and promulgate and maintain a rule requiring employees not to
remain in the facility parking lot to talk to each other at the end of their shifts.

On the entire record,2 including my observation of the demeanor of witnesses and after
considering the briefs filed by the General Counsel, Respondent, and the Charging Party, I
make the following

Findings of Fact

I. Jurisdiction

Respondent, a California corporation, doing business as Windsor Convalescent Center
of North Long Beach has, at all relevant times, been engaged in the operation of a skilled
nursing facility located on Market Street in Long Beach, California (the North Long Beach
facility). During the 12-month period commencing July 1, Respondent derived gross revenues
in excess of $100,000 and purchased and received at the North Long Beach facility goods
valued in excess of $5,000, which originated from points located outside the state of California. I
find Respondent has at all relevant times been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Respondent admits, and I find, the Union has
at all relevant times been a labor organization within the meaning of Section 2(5) of the Act.3
2 Counsel for the General Counsel’s motion, joined in by the Charging Party, to strike the
documents attached to Respondent’s post-hearing brief that were not admitted into evidence
during the hearing, is granted. Respondent’s motion to strike Counsel for the General
Counsel’s references in his post-hearing brief to rejected exhibit GC 104 is granted. The
General Counsel’s motion to correct the transcript at 203:16 from “employees” to employers” is
granted.
3 Unless otherwise explained, findings of fact herein are based on party admissions,
stipulations, and uncontroverted testimony.

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II. Alleged Violations of 8(a)(5)

A. Successorship Issue and Refusal to Bargain

SnF Management, Inc. (SnF Management) operates skilled nursing facilities (SNFs) in
California under the name “Windsor.”4 Pursuant to its overall business plan, SnF Management
seeks to attract so-called high acuity patients to its SNFs who qualify for Medicare
reimbursement rates. For Respondent’s purposes, the optimal SNF residents are post-acute
care patients who need a SNF level of care, including rehabilitative services, for four to six
weeks after hospitalization.

Prior to July 1, Covenant Care Orange, Inc. (Covenant Care) operated the North Long
Beach facility under the business name, Candlewood Care Center (Candlewood). Covenant
Care was signatory to separate collective-bargaining agreements with the Union. The
agreements had respective terms of August 31, 2001 through August 1, 2003 and May 1, 2002
through August 1, 2004 and covered, respectively, the following units (the Base unit and the
LVN unit):5

The Base Unit6
All full-time and regular part-time nurses aides, certified nurse assistants, restorative
aides, orderlies, dietary employees, activity assistants and housekeeping employees
employed at the nursing facility.

The LVN Unit
All full-time and regular part-time Licensed Vocational Nurses (LVNs) employed at the
nursing facility.

Tracy Davenport (Ms. Davenport), Gladys Matos (Ms. Matos), Edna Colter (Ms. Colter),
Sharie Hailey (Ms. Hailey), Annie Moss (Ms. Moss), Nana Williams, and Debra Smith served as
union stewards at Candlewood.7
4 In addition to Respondent, SnF Management has SNFs in San Diego, National City,
Anaheim, Hawthorne, Los Angeles, Van Nuys, North Hollywood, and another in Long Beach
(Windsor Gardens of Long Beach).
5 Negotiations following the expiration of the Base unit agreement continued until the sale of
the nursing facility.
6 Respondent refers to this unit as the “Service Unit.”
7 Although Respondent denies knowing, prior to its takeover of the facility on July 1, which
employees were union stewards, I cannot accept that assertion. Respondent offered
supervisory employment to several Candlewood supervisors, including Candlewood
administrator, Carmen Hernandez. It is reasonable to assume Respondent did so prior to July 1
and to assume that Respondent worked with Ms. Hernandez in organizing the takeover.
Decisions relating to the takeover included whether or not to recognize the Union, and it is
reasonable to infer that Ms. Hernandez communicated union-related information to Respondent.
Logically, the identity of union stewards would have been pertinent information. Moreover, a list
of problem employees prepared by Ms. Hernandez in June distinguished the names
“Davenport,” “Haley,” “Moss,” and “Debra Smith” with heavy, adjacent black dots, and the name
of “Moss” bore the additional notation, “steward.” It is reasonable to infer that the dots signified
the employees’ union stewardship in the Candlewood bargaining units. I find that Respondent
knew that Ms. Colter, Ms. Smith, Ms. Hailey, and Ms. Moss were union stewards prior to July 1.

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By early 2004, SnF Management was considering acquiring the North Long Beach
facility. In February, SnF Management reviewed a property condition report on the facility
prepared by Eckland Consultants Inc. The report cited numerous maintenance problems
including damaged pavement, peeling paint, inappropriate roof storage, poor water drainage,
decayed window frames, deteriorated flooring and screening, moribund air conditioning, and
clogged plumbing. The report estimated improvement and repair costs at $187,500.
Respondent reviewed revenue calculations for the North Long Beach facility, which showed the
facility, as operated by Candlewood, primarily accommodated low acuity patients with
commensurately low reimbursement rates unlike Respondent’s overall SnF Management plan,
which was to attract high reimbursement rate patients. In the ensuing months, several
representatives of Respondent toured the North Long Beach facility.

Respondent called a number of witnesses to testify regarding the conditions at the North
Long Beach facility prior to July 1. The testimony of all Respondent’s witnesses need not be
fully recounted. Those of Ken Barry Dyches (Mr. Dyches), Vice President of Risk Management
and Corporate Compliance with SnF Management, and Kathleen Leonard (Ms. Leonard),
Respondent’s director of human resources, are generally illustrative of the evidence
Respondent offered on this issue. Mr. Dyches toured the North Long Beach facility during the
early weeks of June. He testified that he observed filthy and neglectful conditions in the facility,
e.g., residents drinking liquor they had purchased from the corner liquor store, unkempt
residents, insufficient supplies of bed linen, deteriorating mattresses, unexplained bruising on
residents, and pigeons, cockroaches, and rodents in the building. Ms. Leonard visited the North
Long Beach facility on several occasions between April and July. She testified she observed
the facility to be dark, dingy, noisy, and noisome, saw evidence of pigeons inside the building,
dead cockroaches, insects, and rodent droppings, saw cleaning equipment and carts crowding
the hallways, noticed inadequate cleaning and sanitation procedures, observed staff inattention
to patients, and found the medical patients to be inactive, bored, and untidy and the mental
patients to be agitated or restless. In Respondent’s opinion, the conditions it observed at the
North Long Beach facility evidenced an indifference by Candlewood staff toward maintaining a
quality work environment, as “no [employees] would allow themselves to work in a building that
was in [such a poor] condition.” Accordingly, Ms. Leonard recommended to upper management
that Respondent replace all the staff at the North Long Beach facility, take measures to provide
an appropriate level of care for its residents, and completely overhaul the facility.

The General Counsel, on the other hand, proffered contrary evidence from former
Candlewood employees to the following effect: the facility was well maintained with only rare
and isolated incidents involving pigeons or vermin, which were immediately and effectively
addressed by Candlewood management and staff; the facility’s odor, while intermittently and
inescapably reflecting the bodily functions of incontinent patients, generally manifested only the
antiseptic smell normally associated with nursing facilities; the nursing staff were attentive to

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patients and hygienic and professional in practice and demeanor; Candlewood regularly
provided the residents with mental and sensory stimulation, as well as physical and social
activities, including monthly candlelight dinners where nonalcoholic sparkling cider was served.8

Respondent found it was unable to eliminate the entire Candlewood staff prior to
takeover, as replacement employees were not immediately available. Respondent determined,
however, to weed out those Candlewood employees it deemed least suitable for employment.
Ms. Leonard directed Carol Spencer (Ms. Spencer), director of staff development, to obtain
assessments from Carmen Hernandez (Ms. Hernandez), Candlewood administrator, as to
which employees had objectionable work records and to conduct her own review of
Candlewood employee files with the purpose of identifying Candlewood employees to whom
Respondent would not offer employment. Further, Respondent determined that after eliminating
unacceptable applicants, it would offer only temporary employment for up to a 90-day period to
the remainder of the Candlewood staff.

In preparation for its assumption of the Candlewood business, Respondent actively
recruited employees for the North Long Beach facility from staff at its other facilities and from
the general population. Respondent also provided job applications to the existing Candlewood
staff, and Ms. Leonard, Ms. Spencer, and Carren Chastek (Ms. Chastek), Respondent’s
regional director of clinical services, conducted brief job interviews with interested employees.

There is no evidence Respondent’s interviewers mentioned the Union in any job
interview. There is conflicting evidence as to whether Respondent told the Candlewood job
seekers that the employment offered was temporary. Ms. Leonard, Ms. Chastek, and
Ms. Spencer testified they told employees that any employment offered would be temporary for
up to 90 days. When employees asked what was meant by “temporary,” Ms. Leonard told them
Respondent would look at their work and assess them. Respondent did not tell any former
Candlewood employee that its goal was to replace them within 90 days.

Former Candlewood employees testifying for Respondent either corroborated
Ms. Leonard, Ms. Chastek, and Ms. Spencer’s testimony or recalled, essentially, that
Respondent’s interviewers said employees would be reviewed for 90 days or would be on a 90-
day probation, during which period Respondent would notify them whether they had “passed”
the review. Former Candlewood employees testifying for the General Counsel generally denied
that Respondent’s interviewers said employment would be temporary. I do not specifically
credit the accounts of one set of witnesses over the other. Rather, the record supports a finding
that while Ms. Leonard, Ms. Spencer, and Ms. Chastek told applicants their employment would
be temporary for up to 90 days, they also conveyed the clear understanding that Respondent
was hiring them as “temporary” employees in order to assess their skills and abilities and that
Respondent would review their work during the 90-day period and offer regular employment to
those who passed the review.

8 The Charging Party sought to introduce a multipage report on Southern California Windsor
facilities’ regulatory compliance, entitled “Crisis of Care” prepared by Ari Yampolski, researcher
for the Union, which addressed asserted patient care deficiencies in Windsor facilities. The
purpose of the proffered evidence was to show that Respondent, being itself remiss in patient
care quality, must have been disingenuous in criticizing Candlewood’s standards or in deciding
not to hire certain employees because of past work performance issues. As the report is not
clearly probative of the issues before me, I declined to receive it.

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Following the interviews, Ms. Leonard offered employment to 94 Candlewood
employees and managers. Respondent mailed or hand-delivered offers of employment dated
June 30, 2004 to Candlewood employees, which read, in pertinent part, as follows:

SUBJECT: OFFER OF TEMPORARY EMPLOYMENT
…
Congratulations! We are pleased to offer you temporary employment with
Windsor Gardens-North Long Beach (“Windsor”) for a period of up to 90
days…we look forward to the contributions you will make during your temporary
employment.
…
Because Windsor will not have purchased or taken over the operations of the
facility currently known as Candlewood until July 1st, we have been unable to
assess your skills and abilities, as well as the building’s ongoing operational and
staffing needs. It is for this reason that your offer of employment is temporary in
nature. No later than the expiration of the 90-day period, which ends on
September 29th, your employment with Windsor will end, unless you are selected
for regular employment. We will select our workforce from among the most
qualified candidates, whether from Candlewood or elsewhere. If you express a
continued interest in employment during this 90-day period, you will be notified if
selected for regular employment.9

SnF Management assumed ownership and management of the North Long Beach
facility on July 1. Respondent was aware the Union had represented the Candlewood
employees at the facility and had been signatory to collective bargaining agreements with
Covenant Care. By letter dated June 29, Mr. Hirst had advised Respondent that the Union was
the recognized representative of the Candlewood workers and requested a meeting to discuss
the terms of the collective bargaining agreements covering those workers. By letter dated
July 1, Mr. Hirst notified Respondent that the Union represented a majority of the Candlewood
employees and again requested a meeting.

Upon its July 1 takeover of the North Long Beach facility, Respondent employed
approximately 120 individuals there, over 75 percent of whom had been Candlewood
employees. Ten to 12 employees were non-Candlewood recruits, whom Respondent
considered probationary or regular employees.

Respondent issued employee handbooks to both temporary and probationary
employees. Respondent included an employee handbook in each probationary employee’s
employment packet. Respondent distributed employee handbooks to the temporary
employees at an employee meeting held July 9. Both handbooks contained Respondent’s
terms and conditions of employment for employees in the classifications covered by the
Base and LVN units. Both handbooks contained the following language:

9 It is unnecessary to determine whether all hirees received the letter; the record as a whole
supports a finding that Respondent informed all former Candlewood employees that it would
review their work performance over a 90-day period, during which Respondent would select
qualified employees for regular status and that Respondent termed the 90-day period as
“temporary” employment.

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EMPLOYEE STATUS AND COMPENSATION
A. INTRODUCTORY PERIOD
All new and rehired employees work on an introductory basis for the first ninety-
(90) calendar days after their date of hire. The introductory period is intended to
give new employees the opportunity to demonstrate their ability to achieve a
satisfactory level of performance and to determine whether the new position
meets their expectations. The Company uses this period to do an initial
evaluation of employee capabilities, work habits and overall performance…
….
Upon satisfactory completion of the introductory period, employees enter one of
the “regular” employment classifications.
….
Regular Employee
Employees who have completed their introductory period of employment…
….
Temporary Employee
Temporary employees are those who are hired on an interim basis to temporarily
supplement the work force or to assist in the completion of a specific project.
Employment assignments in this category are of a limited duration. Employment
beyond any initially stated period does not in any way imply a change in
employment status. Temporary employees retain that status unless and until
notified of a change by the Office Manager. Temporary employees are ineligible
for any of the Company benefit programs, except those mandated by law.

The employee handbooks given to probationary employees differed from the handbooks
given to temporary employees in that the former listed ten categories of employee benefits,
including vacation pay, holiday pay, sick pay, group health and dental insurance, and employee
education reimbursement,10 whereas the latter listed only five categories, all of which were
mandated by law: workers compensation, state disability insurance, unemployment insurance,
social security, and paid family leave.

By letter dated July 7, Respondent’s attorneys replied to the Union’s earlier requests for
bargaining, stating, in pertinent part:

While we understand that your labor organization was the recognized
representative of certain employees of the previous owner/employer, it is
premature for your organization to claim representation rights for any of our
employees at that location. Whether or not you can rightfully and lawfully claim
representation rights as to any group of such employees will depend upon a
determination that can only be made once we have a representative complement
of regular employees. That has not yet occurred. Accordingly, we reject your
request for recognition, and each of your other requests and demands at this
time.

During the 90-days following July 1, Respondent’s supervisors at the North Long Beach
facility observed both probationary and temporary employees’ work and decided to retain
certain former Candlewood employees based on work performance, how they handled their

10 Probationary employees did not, however, become eligible for these benefits until after
completion of their 90-day probationary period.

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jobs, attendance, and skill level “just like every other employee.”11 During the 90-day period,
Respondent notified various temporary employees that Respondent had selected them for
regular employment. On Aug 10, for example, Ms. Leonard offered ten temporary employees
regular jobs. Respondent also listed the names of Candlewood employees who had been
offered and accepted regular employment in its weekly newsletters to staff. As of October 1,
Respondent had “transitioned” 30-40 temporary employees to regular status.12

Upon their transition into regular employment, Respondent gave the temporary
employees the same handbooks probationary employees received. Temporary employees who
attained regular status did not have to commence a 90-day probationary period but, like
probationary employees, became permanent employees upon completion of 90 days’
employment. Both former Candlewood and non-Candlewood employees, were eligible for
benefits after completion of 90 days employment.

In the weeks following its takeover of the North Long Beach facility, SnF Management
replaced the facility’s air conditioning systems, repaired sewage lines, repainted resident rooms,
wallpapered hallways, rebuilt nursing stations, redid the dining room, purchased shower chairs,
and replaced about 70 resident mattresses, expending between $450,000 and $500,000 on the
repairs/improvements.

As part of its defense to the 8(a)(5) allegations herein, Respondent sought to present
evidence that the alleged predecessor’s bargaining units were inappropriate as all LVNs, under
Respondent’s management policies, possessed supervisory authority as specified in Section
2(11) of the Act; therefore, the bargaining unit composition under Respondent had so altered as
to obviate its successorship to Candlewood. All issues regarding appropriateness of the above-
described units, including the supervisory status of LVNs, were resolved by Decision and
Direction of election in 28-RC-6030 (formerly 21-RC-20417) issued March 22, 2002, resulting in
Certification of Representative on April 25, 2002. The Board refuses to allow relitigation of unit
appropriateness where a predecessor employer, in whose shoes the successor employer
stands, has or could have litigated that issue. See Hotel Del Coronado, 345 NLRB No. 24, slip
op. 2 and cases cited therein. Accordingly, I have rejected Respondent’s offer of proof as to the
supervisory status of its LVNs.

B. Respondent’s Position Regarding
Union Representation of Its Employees

On July 1, Tyrone Freeman (Mr. Freeman), general president of the Union, and Mr. Hirst
visited the North Long Beach facility while an employer-sponsored employee barbeque was in
process. In a contentious confrontation, Ms. Leonard told them to leave. According to
Ms. Leonard, she told the two representatives that Windsor had purchased the operations and
the employees were now Windsor employees. Mr. Hirst testified that, in the presence of
employees, Ms. Leonard said there was no union in the facility. According to employee Tara
11 Ms. Leonard admitted she testified to this effect at her pre-trial deposition. I do not credit
Ms. Leonard’s denial at trial that employee performance was a consideration in retention of
former Candlewood employees.
12 The parties dispute whether former, unionized Candlewood employees formed a majority
of the employees in the Base unit at the expiration of the 90-day period. Given my conclusions
hereafter, I do not find it necessary to resolve this disagreement.

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Smith, Ms. Leonard said the facility was not a union building and the union was not welcome
there. I credit Mr. Hirst and Tara Smith accounts. They testified forthrightly, and their
recollections are consistent with Ms. Leonard’s later admitted statements.

During July, various union members and representatives passed out fliers at the
North Long Beach facility in an effort to generate support for the Union. During that
same month, Respondent posted and distributed anti-union flyers to its employees that
addressed such topics as the mercenary motives behind the Union’s efforts to represent
employees at the North Long Beach facility, what a union could and could not do, the
Union’s empty claims, and how the Union spends members’ dues. On July 23, at a staff
meeting of about 40 employees, Ms. Leonard told employees that, like other Windsor
facilities, the North Long Beach facility was union-free.

Antoinette Harris (Ms. Harris), activity director for both Candlewood and Respondent
respectively during relevant times, testified that in management meetings she attended,
Ms. Leonard, Ms. Spencer, and Mr. Dyches repeatedly asked the managers to keep them
informed of employee interest in the Union and to try to discourage employees from seeking
union representation. Respondent urges that Ms. Harris’ testimony be discredited, pointing out
the implausibility of testimony to the effect that Respondent’s managers repeated anti-union
cautions at every single management meeting. While exaggeration unquestionably detracts
from credibility, I am unwilling to conclude that Ms. Harris entirely fabricated the statements. It
is inherently probable, particularly after the union representatives’ acrimonious visit to the
facility, that some mention of the Union occurred in management meetings, and I observed
Ms. Harris to be direct and clear in her testimony, if hyperbolic. I find, therefore, that
Respondent instructed its supervisors to watch for and to discourage union activity. The
complaint does not allege that Respondent’s instructions violate the Act, and there is no
evidence Respondent intended for any supervisor to effect its directives in an unlawful
manner.13 However, Ms. Harris’ testimony, as well as Respondent’s statements that the facility
was nonunion and its dissemination of anti-union fliers, establish that Respondent strongly and
actively preferred not to have union representation of its employees at the North Long Beach
facility.

III. Alleged Violations of 8(a)(3)

A. Respondent’s Refusal to Hire Edna Colter,
Debra Smith, Sharie Hailey, and Annie Moss

As noted above, Ms. Spencer obtained from Ms. Hernandez a list of 22 employees with
allegedly problematic work records (Hernandez list). The list included the names of Ms. Colter,
Debra Smith, Ms. Hailey, and Ms. Moss. Ms. Spencer also reviewed Candlewood employees’
files in about the third week of June with the object of identifying misconduct and disciplinary
issues. Ms. Spencer pinpointed 26 employees, including Ms. Colter, Debra Smith, Ms. Hailey,
and Ms. Moss, whose employee records assertedly revealed undesirable past work
performance and/or misconduct and prepared a summary of the 26 names and findings
(Spencer list). Thereafter, and prior to July 1, Ms. Spencer furnished both the Hernandez and
the Spencer lists to Ms. Leonard. The Spencer list showed the following notations for the
following alleged discriminatees:

13 Watching for union activity does not automatically denote unlawful surveillance and
discouraging it may be lawfully accomplished by attentiveness to employee concerns.

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Edna Colter -- Insubordination 03
Insubordination 4/04

Debra Smith -- Poor attendance
5 in 4 months for ‘04
Since 2002 started
Med error – not giving meds to Res.

Sharie Hailey -- Insubordination/confrontation
Attendance—poor 7x’s ‘04

Annie Moss -- Creating hostile work environment [with] other
[licensed nurses] 14

Because response to its employment advertising was less enthusiastic than anticipated,
Respondent revised its estimate of how many Candlewood employees it could initially reject for
employment. Respondent hired almost half the employees named on the Hernandez and
Spencer lists despite their past work records because of Respondent’s staffing needs.15
Respondent declined to hire Ms. Colter, Ms. Smith, Ms. Hailey, and Ms. Moss. In early July,
Respondent sent letters to rejected Candlewood employees stating, in pertinent part:

Thank you for expressing interest in a position with Windsor Gardens-North Long
Beach …Unfortunately, based upon a review of your qualifications & other
documentation available to us, we are not in a position to offer you employment
at this time.

B. Respondent’s July 7 Suspensions of Tracy Davenport,
Nana Williams, Nereida Jimenez, and Tara Smith

On July 7, Ms. Spencer found employee Shronda Williams cowering in an empty
patient’s room. Shronda Williams told Ms. Spencer she was frightened because a group of
employees was threatening her and pressuring her to do something she did not want to do.
Ms. Spencer reported the matter to Ms. Leonard, who requested information in writing from
Shronda Williams. Shronda Williams gave a brief, handwritten statement to Ms. Spencer, which
she turned over to Ms. Leonard. In pertinent part, the statement reads:

14 The summary Respondent introduced into evidence listed twenty-six names with
attendant notations. Counsel for the General Counsel produced another document, retrieved
from files subpoenaed from Respondent, which did not list the names Debra Smith, Sharie
Hailey, and Annie Moss. Ms. Spencer and Ms. Leonard both testified the summary produced by
Counsel for the General Counsel was an incomplete list, created before all employee files had
been reviewed. I credit Ms. Spencer and Ms. Leonard’s testimony in this regard, as their
recollections were clear and detailed. Although Respondent could not produce documentary
evidence to corroborate all the information on the Spencer list, I note the underlying records
were not in Respondent’s possession or control at all relevant times. Therefore, I find the lack
of corroborative evidence does not negate Ms. Spencer’s testimony, which I find reliable.
15 As of the hearing date, two employees on the unsatisfactory list were still employed by
Respondent.

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When I came to work some people came to me and ask me to go to union
meeting and I was very nerv[ous] so I ask to go home
employee Tara, Tracy and some other people.

Although the note only named two employees, Ms. Spencer informed Ms. Leonard that
Shronda Williams had also accused Nereida Jiminez (Ms. Jimenez), Michelle Cozalles
(Ms. Cozalles),16 and Nana Williams of threatening her. Ms. Leonard asked to speak to
Shronda Williams, but Ms. Spencer said the employee was frightened and wanted to go home.

Ms. Leonard called in Tracy Davenport (Ms. Davenport), Ms. Jimenez, Ms. Cozalles,
and Tara Smith.17 Without asking them for their versions of what had transpired among them
and Shronda Williams or otherwise investigating the matter, Ms. Leonard told them they were
suspended pending investigation for harassing a coworker.

By memorandum dated July 9, Ms. Leonard notified Ms. Chastek that 14 employees
would be replaced by the end of the month. The memorandum included the names of
Ms. Davenport, Ms. Jimenez, and Nana Williams, all of whom were still on suspension.

Nearly two weeks after the suspensions and following an interview by Ms. Leonard with
Shronda Williams, Respondent determined the evidence was insufficient to show wrongdoing by
the suspended employees. On July 20, Respondent reinstated Ms. Davenport, Nana Williams,
Ms. Jimenez, and Tara Smith and paid them for the work they had missed because of the
suspension.

C. Respondent’s July 23 Termination of Gladys Matos

According to Ms. Leonard, one day in July, Respondent notified Gladys Matos
(Ms. Matos) that she had been taken off the schedule. Later that day, Ms. Hernandez reported
to Ms. Leonard that Ms. Matos had come to the facility and angrily confronted her in the facility’s
front lobby over the schedule change. Ms. Hernandez asked Ms. Leonard for approval to fire
Ms. Matos, and Ms. Leonard directed Ms. Hernandez to terminate Ms. Matos.18 Ms. Leonard
did not date the alleged confrontation between Ms. Matos and Ms. Hernandez,19 but her
testimony indicated it occurred on a day when Ms. Matos was not scheduled to work.
Ms. Leonard “subsequently” drafted a Notice of Employee Separation for Ms. Matos, on which
“insubordination” and “violation of company policies” were circled as reasons for separation.
Ms. Leonard wrote on the notice, “Yelling @ administ. about assignment confrontational [with]
mgmt—per Carmen.” The separation notice is dated July 23, which is the date of Ms. Matos’
discharge, but there is no evidence the separation notice was prepared on the same day as the
alleged confrontation or ever shown to Ms. Matos. Ms. Hernandez did not testify.

16 Ms. Cozalles is not named in the complaint; Counsel for the General Counsel states in his
post-hearing brief that she did not cooperate in the investigation. Hereafter, I have omitted her
name in describing and discussing the suspensions.
17 Nana Williams was unavailable.
18 Ms. Leonard’s testimony is inconsistent on this point. She initially testified that Ms.
Hernandez reported she had already terminated Ms. Matos, which action Ms. Leonard
approved. She later testified that she directed Ms. Hernandez to terminate Ms. Matos.
19 Respondent states in its post-hearing brief that the incident occurred on July 23 but does
not explain the evidentiary basis for this assertion.

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Ms. Matos testified that her name was removed from the work schedule on July 7 and 8,
which deletions she was able to reverse after discussion with Ms. Spencer and Ms. Hernandez.
On the following day, July 9, Ms. Matos’ cousin reported to her that Ms. Matos’ name had again
been left off the schedule, but her cousin was able to resolve the omission. Ms. Matos denied
having any scheduling problems thereafter and denied having any confrontation with
Ms. Hernandez. Regarding her discharge, Ms. Matos testified that she worked her scheduled
shift on July 23 and attended the employee meeting held that afternoon. At the end of the
meeting, Ms. Matos picked up her paycheck, noticed a four-day pay shortage, which she
discussed with Ms. Leonard, who verified the shortage with accounting personnel, and told
Ms. Matos she would have a supplemental check to cover the missing four days by the end of
the day.

According to Ms. Matos, at about 4 p.m. on July 23, Ms. Leonard called her to her office
and gave her the supplemental check followed by a final paycheck, saying Respondent did not
need her services any longer. Ms. Matos requested an exit interview. According to Ms. Matos,
Ms. Leonard said something about Ms. Matos’ warning and incident reports. Ms. Matos denied
receiving any such discipline and accused Ms. Leonard of not looking at her file. Ms. Leonard
agreed she had not done so but said Ms. Matos was not qualified to work at the facility, which
Ms. Matos contradicted. Ms. Leonard asked Ms. Matos to gather her belongings and leave the
facility.

Ms. Leonard and Ms. Matos’ versions of Ms. Matos’ July 23 discharge are irreconcilably
dissimilar. In resolving the credibility of the two accounts, I have considered not only the
manner and demeanor of the witnesses, but Respondent’s failure to produce available
corroborative or refutative evidence. I note that Ms. Leonard was unclear as to whether
Ms. Hernandez had already fired Ms. Matos when she sought Ms. Leonard’s approval or
whether Ms. Leonard directed her to fire Ms. Matos. I also note that Ms. Leonard was vague as
to when the alleged insubordination took place. While the date Ms. Leonard placed on
Ms. Matos’ separation notice suggests the claimed insubordination occurred on July 23, the day
of discharge, Respondent has not otherwise provided evidentiary support for such a conclusion.
Ms. Leonard testified to the effect that Ms. Matos was not scheduled to, and did not work on the
date she was discharged. In contrary testimony, Ms. Matos’ said that on her date of discharge,
she worked, attended the employee meeting held that day, pointed out shortages in her
paycheck, and received a supplemental check from Ms. Leonard. If Ms. Matos did not, in fact,
work on July 23, then it is reasonable, indeed requisite, to disbelieve her account of her
discharge. Conversely, if Ms. Matos did work that day, then Ms. Leonard’s testimony cannot be
accurate. Disproving Ms. Matos’ testimony that she worked on July 23 should have been a
simple matter for Respondent, given its access to attendance and payroll records, but
Respondent adduced no evidence relevant to that issue. It is reasonable to draw an adverse
credibility inference from its unexplained failure to do so. Ms. Matos, on the other hand, was
clear and detailed as to working on July 23, her attendance at the employee meeting, her
interaction with Ms. Leonard regarding inaccurate pay, her receipt of a supplemental check, and
her discharge. I therefore credit Ms. Matos’ testimony.

D. Respondent’s July 23 Termination of
Tracy Davenport, Nereida Jimenez, and Nana Williams

The Spencer list showed the following notations for the following three employees:

Tracy Davenport -- Excessive absences 01

Nereida Jimenez -- refusal – Insub. 3/04

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Nana Williams -- Visitor grievance re conduct
2 family c/o roughness/attitude
Resident c/o re verbal [illegible], insulting,
manner toward Res.
Eval poor supv./communic
Suspended
Rude to Surveyor—toss a book in front
Of her
Ret’d wk 1/1/03

Notwithstanding the work performance information on the Spencer list, Respondent
hired Ms. Jimenez, Ms. Davenport, and Nana Williams on July 1. As detailed above,
Respondent suspended them on July 7 and by memorandum dated July 9, scheduled them for
discharge by the end of July. Respondent reinstated them from suspension on July 20. On
July 23, without further explication, Ms. Leonard notified Ms. Jimenez, Ms. Davenport, and Nana
Williams that Respondent no longer needed their services.

E. Respondent’s August 10 Termination of Tara Smith

According to Ms. Leonard, prior to the weekend of August 7 and 8, she heard from
employees that Tara Smith intended to avoid her scheduled work assignment that weekend by
calling in sick. When Tara Smith called in sick as predicted, Ms. Leonard decided to terminate
her because she believed she had falsely claimed illness to avoid working the weekend shifts.
When Tara Smith returned to work on Monday, August 9, she presented a doctor’s excuse
stating that Tara Smith required medical leave of absence from August 7 to August 8.
Ms. Leonard discounted the doctor’s note, as she believed doctors’ excuses to be readily
accessible and frequently unreliable. However, before Ms. Leonard could terminate Tara Smith
for absenteeism, a problem arose regarding Tara Smith’s work station assignment on August 9.

According to Jeanne Mawak (Ms. Mawak), who supervised Tara Smith at the North Long
Beach facility, Tara Smith was assigned on August 9 to work at Station 2, rather than Station
1A, her usual work area. Upon finding out that her work assignment had been changed, Tara
Smith told Ms. Mawak she was going home. A short time thereafter, Ms. Mawak saw Tara
Smith leaving the facility. According to Ms. Mawak, she told Tara Smith not to leave but to wait
until the assistant director, Edna Mapoy (Ms. Mapoy) spoke to her, but Tara Smith exited the
building. Ms. Mawak reported to Ms. Mapoy that Tara Smith was upset about her assignment
and had left the building. Ms. Mapoy said Tara Smith commonly left work when unhappy about
an assignment but would return. About 15-20 minutes later, Tara Smith returned, and
Ms. Mawak told her she had changed her assignment back to Station 1A, where Tara Smith
worked for the remainder of the day. At Ms. Leonard’s request, Ms. Mawak gave a written
statement of what had occurred, dated August 10, which reads, in pertinent part:

On Aug 9th, 2004 (approx 0655)…Tara Smith, LVN approached me. She said if I
couldn’t get her to work on 1A she would go home. I told Edna about it &
advised me to tell Tara to speak with the Administrator when she arrives…I admit
that I changed the rotation with Tara…Later on, Edna asked me why I did that & I
told her that my intention was to keep the LVN’s in their stations as they
requested so Tara would stay.

Ms. Mapoy also submitted a written statement to Ms. Leonard, dated August 10, which
reads, in pertinent part:

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Tara Smith…wants to be assigned on station 1A only. Gets upset if assignment
changed. Explained to her all charge nurses will have rotation with their
assignment, so all nurses are familiar with all the residents. Have been very
argumentative. Questions supervisor and will not go on assigned task, that she
feels she does not want to do at that time. Regardless of anyone around, she will
argue with the supervisor. Does not take the time to address the resident’s
concern regarding medication in a professional way.

Tara Smith’s account of the incident is significantly different. According to Tara Smith,
upon reporting for work, she and Elaine Moore (Ms. Moore) noticed their assignments had been
changed, and Tara Smith asked Ms. Mapoy what was going on. Ms. Mapoy said Respondent
wanted the nurses to rotate. Tara Smith denied being argumentative with Ms. Mapoy or telling
Ms. Mawak she would leave if the assignment were not changed, saying she was fine with the
new assignment. However, Tara Smith admitted she may have told Ms. Mapoy she was being
harassed, and she admittedly told Ms. Leonard it was mighty strange and mighty funny that
rotations were assigned on Tara Smith’s scheduled shifts and asked whether the supervisor
was also going to rotate. Tara Smith denied leaving the facility following the assignment
discussion, saying she went to Station 2 where she was assigned and commenced working. In
Tara Smith’s recollection of the events, Ms. Mawak, sua sponte, changed the assignments,
putting Tara Smith back to her regular assignment at Station 1A.

After considering all the testimony, I decline to give full credence to either Ms. Mawak’s
or Tara Smith’s accounts of what occurred on August 9. Tara Smith minimized her
confrontation with her supervisors over her changed assignment, claiming on one hand that she
was fine with the change, but admitting on the other hand that she accused her supervisor of
harassment. As to Ms. Mawak’s account, although she testified that Tara Smith left the facility
against Ms. Mawak’s express directive, neither she nor Ms. Mapoy mentioned that in their
written statements, and neither statement reflects any particular concern about Tara Smith’s
threat to go home. It is clear from her statement that Ms. Mawak voluntarily changed the
assignments, albeit to keep peace. I find that Tara Smith engaged in argumentative behavior
with her supervisors concerning her assignment but that she did not leave the facility or
otherwise refuse to work.

On August 10, Judy Gonzalez, North Long Beach facility administrator, and
Ms. Leonard met with Tara Smith. One of the two managers told Tara Smith that she was
terminated for her weekend absence and for her response to the assignment change.
Respondent’s separation notice, dated August 10, noted the reasons for separation as
insubordination and absenteeism.

A few weeks later, Respondent issued a warning notice, dated September 4 and signed
by Ms. Mawak, to a non-Candlewood CNA, which stated, “argued [with] RN Supervisor about
assignment; could not comprehend that there is no such thing as ‘my run,’ changed assignment
on own…wasted time complaining about her assigned run for time that could’ve been spent on
working in getting things done.” There is no evidence the CNA was otherwise disciplined.

IV. Alleged Independent Violations of 8(a)(1)

On July 1, Respondent hosted a staff barbecue for North Long Beach facility employees
on the facility’s patio. During the festivities, Tyrone Freeman (Mr. Freeman), general president
of the Union, and Mr. Hirst went to the patio and spoke to various employees. Ms. Leonard
asked them to leave. According to Ms. Leonard, she told the two representatives that Windsor

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had purchased the operations and the employees were now Windsor employees. Mr. Hirst
testified that, in the presence of employees, Ms. Leonard said there was no union in the facility.
According to Tara Smith, Ms. Leonard said that the facility was not a union building and the
union was not welcome there. When the two men refused to leave, Ms. Leonard called the
police and so informed the two men who left before the authorities arrived.

On July 23, Respondent held a staff meeting of about 40 employees. Ms. Leonard
spoke at the meeting. According to Ms. Jimenez and Tara Smith, Ms. Leonard told the group of
employees that the North Long Beach facility was not a union building and the employees were
not union. Ms. Davenport also recalled that Ms. Leonard told the employees they could no
longer converse in the building or after work but must clock out and go straight home.20
Ms. Leonard explained that, like other Windsor facilities, the North Long Beach facility was
union-free.

DISCUSSION

I. Alleged Violations of Section 8(a)(5)

A. Successorship Issue and Refusal to Bargain

The Supreme Court, in NLRB v. Burns International Security Services, 406 U.S. 272
(1972), held that a new employer has a duty to recognize and bargain with an incumbent Union
when two general factors, which can be summarized as (1) continuity of the enterprise and (2)
continuity of the work force, are present. The Burns rationale applies to situations where the
Union is the established bargaining agent. Fall River Dyeing and Finishing Corp. v. NLRB, 482
U.S. 27 (1987). Continuity of the work force requires that the former employees of the
predecessor employer who were employed in the predecessor's bargaining unit(s) must
comprise a majority of the new employer's complement within the same bargaining unit(s) at the
point where the employer has achieved a “substantial and representative complement” of
employees. Fall River, supra at 47.

Here, it is clear, and no party contends otherwise, that continuity of the enterprise exists.
Although Respondent intended to upgrade the patient acuity level, and consequently the
Medicare reimbursement rate, of the North Long Beach facility, the enterprise continued as a
skilled nursing facility, subject to the same nursing protocols and regulatory requirements as
before. The issue in contention is whether continuity of the work force existed. Respondent
does not dispute that its initial work force was substantially the same as that employed by
Candlewood, the predecessor employer. However, Respondent argues that it purchased the
operations with the fully formed and justifiable intention of discharging all the predecessor’s
employees as soon as possible. While exigent circumstances forced Respondent to hire the
predecessor’s employees in order to keep the facility running, it hired them only as temporary
workers who would be replaced as soon as practicable. Employment of temporary workers,
Respondent insists, does not establish continuity of the work force; ergo, Respondent was not a
successor to Candlewood on July 1 and therefore not obliged to recognize and bargain with the
incumbent union representing Candlewood’s employees at that time. Respondent further
argues that determination of any bargaining obligation should be deferred until the point where
20 Ms. Davenport was the only one of five employee witnesses to the meeting to recall the
statement. Ms. Leonard denied hearing or making any such statement. Given the lack of
corroborative testimony by witnesses who might be expected to remember such a statement if it
were made, I decline to credit Ms. Davenport’s testimony.

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Respondent achieved a substantial and representative complement of “regular” employees, that
is, after the completion of the former Candlewood employees’ 90-day temporary employment
(October 1). As of October 1, Respondent points out, its relevant employee complement was
composed of less than fifty percent of the former Candlewood employees, thereby negating any
obligation to bargain with the Union at that time.

The General Counsel, on the other hand, contends that essentially the same work force
existed after Respondent took over the North Long Beach facility as before and that
Respondent’s claimed intention of replacing the Candlewood employees was spurious;
therefore Respondent meets the Supreme Court’s tests for successorship.

The parties generated considerable evidence and argument regarding Respondent’s
motivation in initially staffing the North Long Beach facility upon its takeover on July 1. In
defending the temporary hiring of Candlewood employees, Respondent portrayed the North
Long Beach facility as a dilapidated establishment where its predecessor warehoused elderly
inhabitants in a neglectful, noisome, grimy muddle of Dickensian proportions. The General
Counsel’s witnesses, on the other hand, described a hygienically snug establishment where
cosseted residents toasted each other with nonalcoholic sparkling cider at monthly candlelight
dinners. I suspect reality lies somewhere between the parties’ polarized views. It is not,
however, incumbent upon me to determine the cleanliness and patient-care quality of the facility
at the time Respondent decided to purchase the business. The issue here is not the objective
accuracy of Respondent’s opinion, but the sincerity of it. In other words, was Respondent
genuinely appalled at the condition of the Candlewood facility and its residents, or did
Respondent feign revulsion in order to justify hiring former Candlewood employees on a
temporary basis so as to avoid successorship obligations and/or to justify discharge of union
adherents among its predecessor’s employees.21

No evidence was adduced to justify an inference that Respondent mendaciously
maligned the Candlewood facility. Rather, the evidence suggests that, at least as of June, the
Candlewood facility could indeed have used a little (hygienic) spit and polish. Moreover, after its
takeover, Respondent expended nearly half a million dollars on repairs/improvements to the
facility, which is potent evidence of the sincerity of Respondent’s opinion. Whether the facility’s
need of a good spring cleaning justified Respondent’s rejection of the Candlewood staff as
regular employees is another question, but here again, there is little evidence to gainsay
Respondent’s assertion.22

A more pertinent question, at least as it relates to the successorship issue, is whether
the hiring of predecessor employees as something other than regular or permanent employees
negates continuity of the work force. Respondent argues that because it classified the
Candlewood employees as 90-day temporary employees and so notified them, any
determination of continuity of the work force must be delayed until the expiration of the 90-day
period, i.e. until October 1, by which time Respondent’s work force was no longer composed of
21 Evidence could, theoretically at least, demonstrate that the Candlewood facility was
maintained in so pristine and exemplary a condition that any criticism of the facility must
perforce stem from ulterior motives. Conversely, as the Charging Party attempted to show
through its proffer of “Crisis of Care,” evidence could, again theoretically, prove Respondent’s
patient-care standards to be so low as to brand its criticism of any other nursing home a
transparent subterfuge. The evidence does not support either view.
22 The Complaint does not allege that Respondent discriminatorily hired the former
Candlewood employees as temporary employees.

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a majority of the Candlewood employees. Respondent cites Houston Building Service, Inc., 296
NLRB 808 (1989) for the proposition that the Board will not consider “temporary” employees for
the purpose of determining successorship. In Houston, the Board did not squarely address the
question of whether temporary employees are employees for the purpose of determining
successorship, as the Board therein determined the employees in question did not have
temporary status. However, the case demonstrates the necessity of determining the actual
status of the former Candlewood employees whom Respondent hired.

In arguing that Respondent hired the former Candlewood employees as temporary
employees, Respondent distinguishes between temporary employees and probationary
employees. In Respondent’s view the latter category consists of individuals who are regular
employees, but who must wait a 90-day evaluation period before becoming permanent
employees. Respondent’s employee handbook describes this “introductory period” as “an
opportunity [for new employees] to demonstrate their ability to achieve a satisfactory level of
performance…[which] the Company uses…to do an initial evaluation of employee capabilities,
work habits and overall performance…” During the 90-day probationary period, the hiree may
be dismissed if he/she does not meet Respondent’s expectations and standards. Temporary
employees, at least according to Respondent’s employment handbooks are “hired on an interim
basis to temporarily supplement the work force or to assist in the completion of a specific
project.”

In the absence of evidence to the contrary, I accept that Respondent had
nondiscriminatory and perhaps even justifiable reservations about the quality of work
Respondent could expect from the Candlewood employees. I also accept that Respondent
thought it expedient to have a period of time in which to assess and evaluate the Candlewood
staff before recruiting them as regular or permanent employees and, accordingly, told
Candlewood applicants they would be hired as temporary employees. A label does not,
however, establish status, and no evidence was adduced herein to show that Respondent
intended to hire the Candlewood employees “on an interim basis to temporarily supplement the
work force or to assist in the completion of a specific project,”23 after which the employment
could be expected to end. On the contrary, in both employment interviews of and written
employment offers to Candlewood applicants, Respondent gave them to understand that the
90-day temporary employment period was to permit assessment of employee skills and abilities
and that “qualified” employees might be selected for regular employment. Although the
temporary period of employment would end on September 30, as of their July 1 hiring date all of
the former Candlewood employees worked regular hours on regular schedules, performed
duties that were a regular part of Respondent’s operation, received regular wages and benefits,
and were listed on Respondent’s payroll as employees. None had a definite or anticipated
termination date, and all had a reasonable prospect of continuing employment based solely on
Respondent’s assessment of their work performance. See Hicks Oil & Hicksgas, Inc., 293
NLRB 84, 86 (1989), Wayside Realty Group, 281 NLRB 357 fn. 2 (1986); J.P. Sand & Gravel
Co., 222 NLRB 83, 84 fn. 2 (1976).

Respondent’s employee “introductory period” applied equally to former Candlewood
employees and probationary employees.24 Both groups enjoyed the same terms and conditions
of employment, and both were excluded from discretionary benefit coverage until the expiration
23 Respondent’s employee handbook.
24 As stated in the handbooks given to both groups, the introductory period would “give new
employees the opportunity to demonstrate their ability to achieve a satisfactory level of
performance and to determine whether the new position meets their expectations.”

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of a 90-day period. If selected for regular employment, former Candlewood employees did not
then commence a probationary period; like probationary employees, they were eligible for all
benefits upon completion of 90 days employment, regardless of which portion of the 90 days
was designated as temporary. While Respondent may have more intensely scrutinized the
Candlewood employees’ work than it did that of non-Candlewood hires, in actuality the former
Candlewood workers were in the same employment posture as Respondent’s probationary
employees: they could anticipate continued employment if their work satisfied Respondent.
Thus, the former Candlewood employees hired by Respondent on July 1 are distinguishable
from temporary employees (as defined by either the Board or Respondent) and are
appropriately analogous to probationary employees. See Hicks Oil, supra at 87.

Establishment of a 90-day employee probationary period does not create doubt about
the makeup of a work force sufficient to defer a work-force-continuity determination until after
completion of the 90-day period. Sahara Las Vegas Corp., 284 NLRB 337, FN 4 (1987) enfd.
N.L.R.B. v. Sahara Las Vegas Corp., 886 F.2d 1320 (9th Cir. 1989). Therefore, the question of
whether Respondent met the continuity of the work force requirement of Burns is answered by
an examination of Respondent’s work force as of its takeover of the North Long Beach facility
on July 1. At that time, the BASE and LVN units of Respondent’s work force were
overwhelmingly composed of former Candlewood employees who had been represented by the
Union. As both Burns factors, i.e. continuity of the enterprise and continuity of the work force,
were present July 1, it follows that Respondent was a successor employer to Candlewood on
that date. See Siemens Building Technologies, Inc., 346 NLRB No. 9, FN1 (2005). As such,
Respondent had a duty to recognize and bargain with the Union upon the Union’s July 1 and
July 6 requests that it do so. Respondent’s refusal to recognize and bargain with the Union
since July 1 constitutes an ongoing violation of Section 8(a)(5) and (1) of the Act.

B. Alleged Unilateral Changes

The General Counsel alleges that Respondent’s post-takeover, unilateral elimination of
the union bulletin board and prohibition of union-related postings constitutes unilateral changes
unlawful under Section 8(a)(5) of the Act. The General Counsel also alleges that Respondent’s
implementation of a new employee handbook with terms and conditions of employment different
from those effected by the predecessor employer is an unlawful unilateral change.

A successor employer is generally permitted to set new initial terms and conditions of
employment without first bargaining with the employees' bargaining representative. See SFX
Target Center Arena Management, LLC, 342 NLRB No. 71, FN 3 (2004). The Burns Court,
however, recognized an exception to this principle where “it is perfectly clear that the new
employer plans to retain all of the employees in the unit…” Burns, supra at 294-295. The
Board has found the exception applies if either of the following circumstances exist: (1) the new
employer has actively or, by tacit inference, misled employees into believing they would be
retained without change in their wages, hours, or conditions of employment; or (2) the new
employer has failed to announce its intent to establish a new set of conditions prior to inviting
former employees to accept employment. Spruce Up Corporation, 209 NLRB 194,195 (1974).
Here, Respondent informed employees they would be hired as temporary employees,
describing a 90-day probationary period. As the Board noted in Spruce Up:

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When an employer who has not yet commenced operations announces new
terms prior to or simultaneously with his invitation to the previous work force to
accept employment under those terms, we do not think it can fairly be said that
the new employer "plans to retain all of the employees in the unit," as that phrase
was intended by the Supreme Court.25

When the possibility that the predecessor’s employees may not enter into an
employment relationship with the new employer is a real one, the Board does not consider it
“perfectly clear” that the new employer “plans to retain all of the employees in the unit.” Ibid.
Here, Respondent informed the Candlewood applicants that they would be employed only in a
temporary or probationary status for 90 days. That should have signaled to the applicants that
terms and conditions of employment with Respondent were not going to be identical with those
of its predecessor, and they could have declined employment upon learning they would have to
complete a probationary period. Thus, although Respondent’s obligation to recognize and
bargain with the Union attached when, on July 1, Respondent had hired a "substantial and
representative" compliment within the units, Respondent did not violate the Act by setting initial
terms of employment. Contrast Elf Atochem North America, Inc., 339 NLRB 796 (2003)
(Employer a “perfectly clear” successor when it informed employees it would provide them
employment, recognize their seniority, and grant equivalent salaries and benefits.)26

Regarding the alleged unilateral elimination of the union bulletin board and prohibition of
union-related postings, it is clear that bulletin board matters are mandatory subjects of
bargaining. ATC/Vancom of California, L.P. 338 NLRB 1166 (2003); RCN Corporation, 333
NLRB 295 (2001); Arizona Portland Cement Co., 302 NLRB 36, 44 (1991). Concerning bulletin
board postings, the Board has stated:

The legal principles applicable to cases involving access to company-maintained
bulletin boards are simply stated and well established. In general, "there is no
statutory right of employees or a union to use an employer's bulletin board."
However, where an employer permits its employees to utilize its bulletin boards
for the posting of notices relating to personal items…, it may not "validly
discriminate against notices of union meetings which employees also posted."
Moreover, in cases such as these, an employer's motivation, no matter how well
meant, is irrelevant. [footnotes omitted.]27

25 Spruce Up Corporation, supra, at 196.
26 Citing NLRB v. Advanced Stretchforming Int’l, Inc., 233 F.3d 1176, 1180 (9th Cir. 2000),
the Charging Party argues that Respondent forfeited its right to set initial terms by informing
employees there would be no union at the facility. The instant facts are distinguishable. In
Stretchforming, the employer told its predecessor’s employees prior to interviewing and hiring
them that there would be no union at its facility. The Board considered such to be imposition of
an unlawful condition, which vitiated the employer’s right to determine other legitimate initial
terms. See Advanced Stretchforming Int’l, Inc., 323 NLRB 529 (1997). Here Respondent set
no unlawful pre-employment conditions.
27 Honeywell, Inc., 262 NLRB 1402 (1982), enfd. 722 F.2d 405 (8 Cir. 1983); see also th
Johnson Technology, Inc., 345 NLRB No. 47 (2005).

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Consistent with Respondent’s above-enunciated right to set initial terms and conditions
of employment for the Base and LVN unit employees it hired on July 1, Respondent had no
obligation to provide a bulletin board for union postings; its only obligation in that regard was to
bargain over the institution of a union bulletin board along with all other terms and conditions of
employment of the Base and LVN unit employees.28

As described earlier, Respondent has violated Section 8(a)(5) of the Act by refusing to
recognize and bargain with the Union regarding its employees in the BASE and LVN units,
which encompasses the obligation to bargain over all terms and conditions of such employees’
employment, including provision for union bulletin boards. However, Respondent did not violate
the Act by setting initial terms of employment for the Candlewood unit employees; I shall,
therefore, dismiss the complaint allegations of unlawful unilateral changes.

II. Alleged Violations of Section 8(a)(3)

A. Respondent’s Refusal to Hire Edna Colter,
Debra Smith, Sharie Hailey, and Annie Moss

The complaint alleges that Respondent violated Section 8(a)(3) and (1) by failing and
refusing to hire Ms. Colter, Debra Smith, Ms. Hailey, and Ms. Moss on July 1 because of their
positions as union stewards during their employment with Respondent’s predecessor. In
alleged refusal-to-hire cases, the General Counsel bears the burden under FES29 of showing
the following: Respondent was hiring at the time the alleged discriminatees applied for
employment, the alleged discriminatees had experience and training relevant to the
requirements of the available employment positions, and antiunion animus contributed to
Respondent’s decision not to hire them.

It is clear Respondent was hiring during the relevant time period. It is also clear that Ms.
Colter, Debra Smith, Ms. Hailey, and Ms. Moss had experience and training relevant to the
available positions. Accordingly, the General Counsel has met its burden as to the first two
elements of FES. As to the third element, “the allegations of unlawful discrimination…must be
supported by affirmative proof establishing by a preponderance of the evidence that the
Respondent’s conduct was unlawfully motivated.” Ken Maddox Heating & Air Conditioning, Inc.,
340 NLRB No. 7, slip op. 3 (2003).

Unlawful motivation may be established by circumstantial evidence, the inferences
drawn therefrom, and the record as a whole. Tubular Corporation of America, 337 NLRB 99
(2001). Unlawful motive may, for example, be inferred from such circumstantial evidence as
animus and disparate treatment. Overnite Transportation, 335 NLRB 372, 375 (2001). The
General Counsel adduced evidence of Respondent’s animus toward unionization of its
employees: (1) Respondent waged an antiunion campaign; (2) Respondent told employees the
North Long Beach facility was nonunion; (3) Respondent directed its supervisors to keep its
managers informed of employee interest in the Union and to discourage union support;
(4) Respondent unlawfully refused to recognize the Union as its employees’ bargaining
28 Irrespective of its obligation to bargain with the Union, Respondent could not discriminate
against employee use of company bulletin boards for union postings if Respondent otherwise
permitted personal postings. The General Counsel did not plead such discrimination in the
complaint, and contrary to Counsel for the General Counsel’s post-hearing argument, the matter
was not fully litigated. Accordingly, I decline to address this issue.
29 331 NLRB 9 (2000), aff’d 301 F.3d 83 (3rd Cir. 2002).

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representative. Considering Respondent’s demonstrated animus, I find the General Counsel
has met his initial burden of showing that the refusal to hire Ms. Colter, Debra Smith, Ms. Hailey,
and Ms. Moss on July 1 was unlawfully motivated. Since the General Counsel has met his
initial burden for the refusal-to-hire allegations, the burden shifts to Respondent to show it would
not have hired the four individuals even in the absence of their union activities or affiliation while
employed by Respondent’s predecessor. FES, supra, at 12; Wright Line, 251 NLRB 1083, 1089
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).

Respondent maintains that Candlewood employees’ past work performance was the
sole measure by which Respondent gauged Candlewood applicants. Respondent investigated
the work records of the Candlewood employees by consulting with Candlewood’s administrator,
Ms. Hernandez, as well as conducting its own review of Candlewood personnel files, resulting in
a compilation of problem-employee names (the Hernandez and Spencer lists). Respondent
points out that it declined to hire to nearly half the Candlewood employees whose names
appeared on the Hernandez and Spencer lists, not just the four named in the complaint, and in
each instance made a nondiscriminatory determination that the documented misconduct
rendered the applicant unfit for employment. According to Respondent, the Candlewood
personnel files of Ms. Colter, Debra Smith, Ms. Hailey, and Ms. Moss showed significant
performance blemishes. The files recorded Ms. Colter as being insubordinate in both 2003 and
2004, Debra Smith as having poor attendance and an error in administering medication,
Ms. Hailey as being insubordinate and confrontational and having poor attendance, and
Ms. Moss as creating a hostile work environment for other employees.

The General Counsel argues that the past misconduct of Ms. Colter, Debra Smith,
Ms. Hailey, and Ms. Moss was no more significant that that of other listed employees whom
Respondent hired, which in itself demonstrates discriminatory motivation. While the misconduct
distinctions among the four former union stewards and the listed employees who were hired
may be subtle, I cannot, from that alone, reject Respondent’s explanation of why it hired certain
employees over others. As the Board has pointed out, "In passing the Act, Congress never
intended to authorize the Board to question the reasonableness of any managerial decision nor
to substitute its opinion for that of an employer in the management of a company or business,
whether the decision of the employer is reasonable or unreasonable, too harsh or too lenient.
The Board has no authority to sit in judgment on managerial decisions." Neptco, inc., 346 NLRB
No. 6, FN 16 (2005), quoting NLRB v. Florida Steel Corp., 586 F.2d 436, 444-445 (5th Cir.
1978). I cannot, therefore, simply discount Respondent’s managerial opinion that the past
derelictions of Ms. Colter, Debra Smith, Ms. Hailey, and Ms. Moss rendered them more unfit for
employment than other employees; I can only determine whether probative evidence shows
Respondent’s opinion to be disingenuous, which I have not found.

Respondent’s animus coupled with Ms. Colter, Debra Smith, Ms. Hailey, and Ms. Moss’
status as union stewards may create suspicion as to the legitimacy of Respondent's reason for
including them in its rejected Candlewood employee pool. However, mere suspicion that union
activity was a basis for Respondent’s refusal to hire is insufficient to reject Respondent’s
otherwise cogent defense of its hiring decisions. See Neptco, inc., supra, slip op. 2 (2005).
Accordingly, I find that Respondent has met its shifted burden of demonstrating that it would not
have hired Ms. Colter, Debra Smith, Ms. Hailey, and Ms. Moss even in the absence of their past
union activities and adherence, and I will dismiss the complaint allegations relating to them.

B. Respondent’s July 7 Suspensions of Tracy Davenport,
Nana Williams, Nereida Jimenez, and Tara Smith

On July 7, Ms. Davenport, Nana Williams, Ms. Jimenez, and Tara Smith invited

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coworker Shronda Williams to a union meeting, after which Shronda Williams accused them of
harassment and intimidation. Respondent argues that its subsequent suspension of
Ms. Davenport, Nana Williams, Ms. Jimenez, and Tara Smith was a reasonable response to the
serious coworker accusation leveled against them and that it was entitled to treat the four
employees “as it would any other employees accused of harassing coworkers, notwithstanding
that the alleged harassment also involved union activity.” Respondent contends the General
Counsel has failed to establish that the suspensions were imposed because of the union
activities of the suspended employees.

There is neither dispute nor question that inviting another employee to a union meeting
is activity protected by the Act. The four suspended employees’ conduct in inviting Shronda
Williams to a union meeting is protected. There is no question Respondent knew the nature of
the employees’ conduct before it suspended them, and Respondent’s post-suspension
investigation admittedly revealed no misconduct to negate the Act’s protection. Nevertheless,
Respondent argues it did not violate Section 8(a)(3) of the Act, as it was not motivated by
antiunion animus in suspending the employees. Rather, Respondent asserts, it believed in
good faith, albeit mistakenly, that the suspended employees had engaged in misconduct.

As Respondent points out, the question of whether Respondent violated Section 8(a)(3)
in terminating Ms. Davenport, Nana Williams, and Ms. Jimenez rests on its motivation.30 The
Board has established an analytical framework for deciding cases turning on employer
motivation in Wright Line, supra. To prove an employee was discharged in violation of Section
8(a)(3), the General Counsel must first persuade, by a preponderance of the evidence, that an
employee's protected conduct was a motivating factor in the employer's decision. If the General
Counsel makes such a showing, the burden of persuasion shifts to the employer “to
demonstrate that the same action would have taken place even in the absence of the protected
conduct." Wright Line, supra at 1089. The burden shifts only if the General Counsel establishes
that protected conduct was a "substantial or motivating factor in the employer's decision."
Budrovich Contracting Co., 331 NLRB 1333 (2000). Put another way, "the General Counsel
must establish that the employees' protected conduct was, in fact, a motivating factor in the
[employer's] decision." Webco Industries, 334 NLRB 608, fn. 3 (2001).

The elements of discriminatory motivation are union activity, employer
knowledge, and employer animus. Farmer Bros. Co., 303 NLRB 638, 649 (1991). Here,
these elements are clearly met: in approximately the same time period as the
suspensions, Respondent demonstrated animus toward employees’ union sympathies
and protected activities, as stated earlier, by stressing that the North Long Beach facility
was nonunion, by directing its supervisors to watch for and discourage employee interest
in the Union, and by unlawfully refusing to recognize and bargain with the Union.
Moreover, in suspending the four employees, Respondent failed to ask any of them for
their versions of what occurred with Shronda Williams. Rather, Respondent relied solely
on Shronda Williams’ reported panic at being invited to a union meeting, although her
written report reveals neither word nor deed that might account for her extreme alarm:
“When I came to work some people came to me and ask me to go to union meeting and
I was very nerv[ous] so I ask to go home.”

30 An employer’s reasonable belief of misconduct may justify adverse employment action.
McKesson Drug Co., 337 NLRB 935, 936 (2002).

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These circumstances support an inference that the protected activities of Ms. Davenport,
Nana Williams, and Ms. Jimenez were motivating factors in Respondent’s decision to suspend
them. Wright Line, supra at 1089. Accordingly, I find the General Counsel has met his initial
burden. Such a finding does not mean that the discharges were in fact “unlawfully motivated.”
Id. As the Board has noted, “The existence of protected activity, employer knowledge of the
same, and animus…may not, standing alone, provide the causal nexus sufficient to conclude
that the protected activity was a motivating factor for the adverse employment action.” Shearer’s
Foods, Inc., 340 NLRB No. 132, at slip op. 2, fn. 4 (2003); see also American Gardens
Management Company, 338 NLRB 644, 645 (2002). The General Counsel’s establishment of
the Wright Line factors does, however, shift the burden to Respondent to demonstrate that it
would have discharged Ms. Davenport, Nana Williams, and Ms. Jimenez even in the absence of
their protected activities.

Respondent has not met its burden. Not only did Respondent fail to explain how
Shronda Williams’ vague and mild account of being invited to a union meeting could
reasonably have prompted immediate suspension of five employees, it also failed to
explain why Ms. Leonard neglected to ask any of the suspended employees their
version of what had occurred before summarily suspending them.31 Respondent’s
vigorous opposition to unionization, its unlawful refusal to bargain with the Union, and its
inexplicable willingness to forego even minimal investigation while hastily suspending
employees for promoting a union meeting reasonably lead to a conclusion that the
suspensions were discriminatorily motivated. See Midnight Rose Hotel & Casino, Inc.,
343 NLRB No. 107, at slip op.3 (2004); Hewlett Packard Company, 341 NLRB No. 62,
fn. 2 (failure to conduct investigation evidence of discriminatory intent.) I find, therefore,
that Respondent violated Section 8(a)(3) of the Act by suspending Ms. Davenport, Nana
Williams, Ms. Jimenez, and Tara Smith on July 7.32

C. Respondent’s July 23 Terminations of Tracy Davenport,
Nana Williams, and Nereida Jimenez

Ms. Davenport, Nana Williams, and Ms. Jimenez had been back to work from unlawful
suspension for only a few days when Respondent fired them. The question of whether
Respondent violated the Act in terminating Ms. Davenport, Nana Williams, and Ms. Jimenez
rests on its motivation. As to their terminations, the General Counsel has clearly proven Wright
Line’s requisite elements of union activity, employer knowledge, and employer animus toward
union representation of its employees: Ms. Davenport, Nana Williams, and Ms. Jimenez were
union proponents and Respondent’s managers knew them to be so, as Ms. Leonard had
suspended them when they engaged in union activity only 16 days earlier. Respondent
demonstrated animus toward employees’ union sympathies and protected activities, as
discussed earlier, by stressing that the North Long Beach facility was nonunion, by directing its
supervisors to watch for and discourage employee interest in the Union, by unlawfully refusing
to recognize and bargain with the Union, and by discriminatorily suspending Ms. Jimenez,
31 I have not overlooked Ms. Spencer’s description of Shronda Williams’ abject terror, but a
comparison of that description with the tame content of her written account would surely
suggest to a sensible administrator, which I have no doubt Ms. Leonard is, that a little more
inquiry, such as asking the involved employees what happened, might be prudent.
32 In light of my finding that Ms. Leonard did not have a good faith belief that the five
employees had engaged in misconduct when she suspended them, NLRB v. Burnup & Sims,
379 U.S. 21 (1964) does not apply. See Integrated Electrical Services, Inc., d/b/a Primo
Electric, 345 NLRB No. 99 (2005).

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Ms. Davenport, and Nana Williams on July 7. Accordingly, I find the General Counsel has met
his initial burden by “making a showing sufficient to support the inference” that the protected
activities of Ms. Davenport, Nana Williams, and Ms. Jimenez were motivating factors in
Respondent’s decision to discharge them. Wright Line, supra at 1089. The General Counsel’s
establishment of the Wright Line factors shifts the burden to Respondent to demonstrate that it
would have discharged Ms. Davenport, Nana Williams, and Ms. Jimenez even in the absence of
their protected activities.

Respondent contends that the termination of these three employees was merely part
and parcel of Respondent’s legitimate and established plan to replace all Candlewood
employees who had not proven themselves worthy of Windsor employment. Respondent points
out that on July 9, Ms. Leonard named 14 employees whose employment Respondent intended
to terminate by the end of July. According to Respondent, the names of Ms. Davenport, Nana
Williams, and Ms. Jimenez, who were at that time in unlawful suspension, were included among
the 14 to be discharged because their names had appeared on the Spencer list (although not on
the Hernandez list.) The Spencer list noted the derelictions of the three as follows:

Ms. Davenport -- excessive absences [in 2001]
Ms. Jimenez -- refusal Insub[ordination] 3/04
Nana Williams -- Visitor grievance re conduct
Family c/o roughness/attitude
Resident c/o …manner toward Res[ident]
Eval poor supv./communic
Suspended
Rude to [state inspector]
Ret’d wk 1/1/03

Respondent obviously did not think the above-recorded misconduct rendered the three
unfit for initial employment, and it cannot be that Respondent intended to fire all employees
whose names appeared on the Hernandez or Spencer lists since Respondent retained other
listed employees. Presumably, when hired, Ms. Davenport, Ms. Jimenez, and Nana Williams
joined the cadre of former Candlewood employees whose work Respondent would assess in
determining whether to offer them regular employment, and there is no evidence
Ms. Davenport, Ms. Jimenez, or Nana Williams were unsatisfactory employees during their
approximately three weeks of employment. Since Respondent bears the burden of showing
that it would have discharged Ms. Davenport, Nana Williams, and Ms. Jimenez regardless of
their union activities, Respondent must explain why they were selected for termination over
other employees similarly situated. Respondent has not done so. In view of its demonstrated
animus, Respondent's failure to state any basis for the discharge of Ms. Davenport,
Ms. Jimenez, or Nana Williams beyond its general desire to replace most former Candlewood
employees compels the conclusion that their discharges were invidiously motivated.33
Respondent has not, therefore, met its shifted burden of demonstrating that it would have
33 While wanting to replace former Candlewood employees may have been a legitimate
reason for discharging some or even most such employees, an employer “cannot simply
present a legitimate reason for its action but must persuade by a preponderance of the evidence
that the same action would have taken place even in the absence of the protected activity.”
Yellow Enterprise Systems, 342 NLRB No. 77, slip op. 1, citation omitted.

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discharged Ms. Davenport, Nana Williams, and Ms. Jimenez even in the absence of their
protected activities.34 Accordingly, I find Respondent violated Sections 8(a)(3) and (1) of the
Act by discharging Ms. Davenport, Nana Williams, and Ms. Jimenez on July 23.

D. Respondent’s July 23 Termination of Gladys Matos

Respondent discharged Ms. Matos on July 23. As noted above, Respondent contends
that its discharge of Ms. Matos was a nondiscriminatory consequence of Ms. Hernandez’ report
of insubordination, while the General Counsel argues that Respondent’s animosity toward
Ms. Matos’ union activities, presumed from her former position as a Candlewood union shop
steward, motivated her discharge. As set forth above, I have resolved the respective credibility
of Ms. Leonard and Ms. Matos regarding the circumstances of Ms. Matos’ discharge in favor of
Ms. Matos.

With regard to the discharge of Ms. Matos, the General Counsel has clearly proven
Wright Line’s requisite elements of union activity, employer knowledge, and employer animus
toward union representation of its employees.35 Given the extent of Respondent’s animosity
toward unionization of its employees, which, as a former union steward Ms. Matos would be
expected to promote, the General Counsel has adduced sufficient evidence to support an
inference that Ms. Matos’ pre-takeover protected conduct was a "substantial or motivating factor
in the employer's decision" to terminate her. See Budrovich Contracting Co., supra. Even
more compellingly, the General Counsel has also shown that Respondent presented a false
account of Ms. Matos’ discharge. False explanations for an employer's actions support an
inference that the true motive is an unlawful one. Southside Hospital, 344 NLRB No. 79 (2005);
Fluor Daniel, Inc., 304 NLRB 970 (1991). Accordingly, I find the General Counsel has met his
initial Wright Line burden in this instance. The burden of persuasion thus shifts to Respondent
to “demonstrate that the same action would have taken place even in the absence of the
protected conduct." Wright Line, supra at 1089. Having rejected as false Respondent’s only
explanation for the discharge of Ms. Matos, it follows that Respondent has not met its burden.
Accordingly, I find that Respondent discharged Ms. Matos in violation of Section 8(a)(3) of the
Act.

E. Respondent’s August 10 Termination of Tara Smith

Under Wright Line, the General Counsel must prove the requisite elements of union
activity, employer knowledge, and employer animus. As discussed above, the General Counsel
has proven Respondent’s knowledge of Tara Smith’s union activity; Respondent knew Tara
Smith was one of five employees who invited another employee to a union meeting on July 7.
Further, Respondent’s reaction to those employees’ protected union activities evidences animus
toward their union partisanship. Specifically, I have found that Respondent discriminatorily
suspended Tara Smith because of her union activity. Given Respondent’s contemporaneous,
unlawful conduct toward Tara Smith, the General Counsel has also adduced evidence sufficient
to support an inference that her union activity was a "substantial or motivating factor in the
34 The fact that Respondent did not also fire Tara Smith does not alter this conclusion.
Evidence suggests that Ms. Hernandez may have intervened to save Tara Smith’s job, as Ms.
Hernandez told Tara Smith on July 26, that she had “put her butt on the line for [Tara Smith’s]
job.” Regardless, an employer’s failure to retaliate against all union activists does not disprove
a discriminatory motive. Volair Contractors, 341 NLRB No. 98, fn. 17 (2004).
35 It is unnecessary to repeat the evidence establishing the Wright Line criteria, which has
been earlier detailed.

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employer's decision" to terminate her. See Budrovich Contracting Co., supra. Accordingly, I
find the General Counsel has met his initial Wright Line burden in Tara Smith’s discharge. The
burden of persuasion thus shifts to Respondent to “demonstrate that the same action would
have taken place even in the absence of the protected conduct." Wright Line, supra at 1089.

Respondent maintains that it would have discharged Tara Smith regardless of her union
activity because of her questionable weekend absence and her insubordination. The General
Counsel contends that Respondent’s absenteeism and insubordination defenses are pretexts
for ridding itself of a union supporter.

Tara Smith was absent from work on the weekend of August 7 and 8, and there is no
dispute that Ms. Leonard accused her of falsely calling in sick. Further, on August 9, Tara Smith
argued with her supervisors about her work assignment. Either or both of those circumstances
could form a lawful basis for discharge, and the Board does not substitute its business judgment
for that of an employer in deciding what employee conduct justifies discipline.36 However, it is
not enough for Respondent to show conduct occurred that might justify a discharge; the Board
must analyze relevant evidence to determine whether the conduct, rather than unlawful
considerations, actually motivated the discharge. See Midnight Rose Hotel & Casino, supra, at
slip op. 3.

Respondent asserts that unnamed employees informed Ms. Leonard that Tara Smith
intended to claim a spurious illness to avoid work the weekend of August 7 and 8. According to
Respondent, that alone provoked Ms. Leonard’s decision to discharge Tara Smith, a decision
Respondent made without ever mentioning the accusations to Tara Smith, much less
investigating them. Tara Smith submitted a doctor’s excuse for her absence, which Respondent
rejected out of hand without any further inquiry. Respondent produced no corroborative
evidence that Tara Smith deceptively claimed illness to cover for a volitional absence, and Ms.
Leonard’s failure even to broach the matter with Tara Smith before deciding on discharge
supports an inference that something other than good faith prompted the leap to judgment.

Respondent also claimed that Ms. Leonard terminated Tara Smith for her conduct on
August 9: refusing to work if she did not get the desired assignment, leaving the building, and
being insubordinate to a supervisor, the last being the most damning point. It is true that Tara
Smith protested her changed assignment, accused her supervisor of harassment, and
threatened to leave work. It is equally true that such conduct could form a legitimate basis for
discharge. It is not, however, clear that Respondent would normally discharge an employee in
similar circumstances. Indeed, the evidence is to the contrary. On September 4, less than a
month after Tara Smith argued with her supervisor over her assignment, Ms. Mawak issued a
warning notice to a non-Candlewood CNA for the following conduct: “argued [with] RN
Supervisor about assignment; could not comprehend that there is no such thing as ‘my run,’
changed assignment on own…wasted time complaining about her assigned run for time that
could’ve been spent on working in getting things done.” The CNA’s reported conduct is not
appreciably different than that resulting in Tara Smith’s discharge. In the absence of a cogent
explanation for the disparate discipline accorded the two employees, I am forced to conclude
36 Counsel for the General Counsel argues, essentially, that Respondent’s assignment
change was not in the best interests of its patients, but Respondent’s wisdom in making work
assignments is not relevant.

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that Respondent has not met its burden of demonstrating that it would have discharged Tara
Smith even in the absence of her protected union activity. Accordingly, I find Respondent
violated Section 8(a)(3) and (1) of the Act by discharging Tara Smith on August 10.37

III. Alleged Independent Violations of 8(a)(1)

The complaint alleges that Respondent committed the following independent violations
of 8(a)(1) by the following conduct:

1. On July 1, telling union representatives in the presence of employees that there was no
union at the North Long Beach facility and that the facility was not a union facility.
2. On July 23, telling employees at a staff meeting that the North Long Beach facility was
not a union facility and that the employees were not union employees.
3. About July 23, announcing and promulgating a rule requiring all employees to leave
Respondent’s premises at the end of their shifts and not remain in the parking lot to talk
to each other.

On the July 1 and July 23 occasions that Respondent's representatives told employees,
or others in employees’ hearing, that the North Long Beach facility was not a union facility,
Respondent was legally obligated to recognize and bargain with the Union regarding the Base
and LVN unit employees. Respondent’s continuing refusal to recognize and bargain with the
union was an unfair labor practice, and its continued assertion that it had no such obligation or
that the facility was “not a union facility,” was of a nature tending to disparage and cause
disaffection from the Union. See The Westgate Corp., 196 NLRB 306, 313 (1972) (when an
employer delays bargaining, "unrest and suspicion are generated…and the status of the
bargaining representative is disparaged"). Respondent’s conduct negated the Union's
representative role and could reasonably be expected to undercut the Union's standing among
employees, particularly where employees were in the vulnerable probationary period of
employment and might reasonably believe that union support would jeopardize permanent
employment. See Fruehauf Trailer Services, 335 NLRB 393, 394 (2001). Accordingly, I find that
by communicating to employees that the North Long Beach facility was not a union facility,
Respondent violated Section 8(a)(1) of the Act.

As to the allegation that Respondent unlawfully announced and promulgated a rule
requiring all employees promptly to quit Respondent’s premises after work, no credible evidence
supports the allegation. Accordingly, I shall dismiss this allegation of the complaint.

Conclusions of Law

1. Respondent is an employer engaged in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
37 In light of this finding, it is unnecessary to address Counsel for the General Counsel’s
alternative theory that Respondent violated 8(a)(1) of the Act by the discharge, as Tara Smith
was engaged in protected concerted activity by expressing concern over her changed
assignment. I note, however, that while the Board has found concerted conduct when an
individual employee seeks to initiate group action or brings a group complaint to management
attention, Phillips Petroleum Co., 339 NLRB 916,918 and fns. 11 and 12 (2003), there is no
evidence that Tara Smith acted in other than her own self-interest. See K-Mart Corporation,
341 NLRB No. 102, slip op. 2 (protest unauthorized by other employees and not intended to
initiate group action not concerted).

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2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent is, and has been since July 1, 2004, a successor to Covenant Care Orange,
Inc., d/b/a Candlewood Care Center.
4. The following units of Respondent's employees are appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the Act:

The Base Unit
All full-time and regular part-time nurses aides, certified nurse assistants, restorative
aides, orderlies, dietary employees, activity assistants and housekeeping employees
employed at the nursing facility.

The LVN Unit
All full-time and regular part-time Licensed Vocational Nurses (LVNs) employed at the
nursing facility.

5. The Union has been at all times since July 1, 2004, and is, the exclusive bargaining
representative of the employees in said units for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
6. Since July 1, 2004, Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to
bargain with the Union concerning the terms and conditions of employment of employees in
the above-described appropriate units.
7. Respondent violated Section 8(a)(3) and (1) of the Act on July 7 by suspending employees
Tracy Davenport, Nana Williams, Nereida Jimenez, and Tara Smith.
8. Respondent violated Section 8(a)(3) and (1) of the Act on July 23 by terminating employees
Tracy Davenport, Nana Williams, Nereida Jimenez, and Gladys Matos.
9. Respondent violated Section 8(a)(3) and (1) of the Act on August 10 by terminating
employee Tara Smith.
10. Respondent violated Section 8(a)(1) of the Act by informing employees there was no union
at its facility or that its facility was not a union facility.
11. The unfair labor practices set forth above affect commerce within the meaning of Section
8(a)(1) and (3) and Section 2(6) and (7) of the Act.

Remedy

Having found that Respondent has engaged in certain unfair labor practices, I find it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

Respondent having discriminatorily suspended employees Tracy Davenport, Nana
Williams, Nereida Jimenez, and Tara Smith on July 7, 2004, and having discriminatorily
discharged employees Tracy Davenport, Nana Williams, Nereida Jimenez, and Gladys Matos
on July 23, 2004, and employee Tara Smith on August 10, 2004, it must offer them
reinstatement insofar as it has not already done so and make them whole for any loss of
earnings and other benefits, computed on a quarterly basis from date of suspension and/or
discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). The recommended Order will also provide that
Respondent bargain in good faith with the Union as the exclusive collective bargaining
representative of the above-described units.

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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended38

ORDER

Respondent, S&F Market Street Healthcare LLC d/b/a Windsor Convalescent Center of
North Long Beach, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Failing and refusing to bargain in good faith with Service Employees International
Union, Local 434B, AFL-CIO, as the collective bargaining representative of its
employees in the Base and LVN units.
(b) Suspending or discharging any employee for engaging in union or other concerted
protected activities.
(c) Informing employees that its North Long Beach facility is not a union facility.
(d) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) On request, bargain with Service Employees International Union, Local 434B, AFL-
CIO as the exclusive representative of the employees in the following appropriate
units concerning terms and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement(s):

The Base Unit
All full-time and regular part-time nurses aides, certified nurse assistants,
restorative aides, orderlies, dietary employees, activity assistants and
housekeeping employees employed at the nursing facility.

The LVN Unit
All full-time and regular part-time Licensed Vocational Nurses (LVNs)
employed at the nursing facility.

(b) Within 14 days from the date of this Order, insofar as it has not already done so,
offer full reinstatement to Tracy Davenport, Nana Williams, Nereida Jimenez, Gladys
Matos, and Tara Smith to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
38 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.

JD(SF)–08-06

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(c) Make Tracy Davenport, Nana Williams, Nereida Jimenez, Gladys Matos, and Tara
Smith whole for any loss of earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the remedy section of the
decision.39
(d) Expunge from its files any reference to the unlawful suspensions of Tracy
Davenport, Nana Williams, Nereida Jimenez, and Tara Smith and thereafter notify
them in writing that this has been done and that the suspensions will not be used
against them in any way.
(e) Expunge from its files any reference to the unlawful discharges of Tracy Davenport,
Nana Williams, Nereida Jimenez, Gladys Matos, and Tara Smith and thereafter
notify them in writing that this has been done and that the discharges will not be
used against them in any way.
(f) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place 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 Long Beach,
California copies of the attached notice marked “Appendix.”40 Copies of the notice,
on forms provided by the Regional Director for Region 21 after being signed by
Respondent's authorized representative, shall be posted by Respondent
immediately upon receipt 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 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, Respondent has gone out of business or closed the
facility involved in these proceedings, Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees
employed by Respondent at any time since July 1, 2004.
(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 Respondent has taken to comply.

39 The question of whether Respondent’s reimbursement of Tracy Davenport, Nana
Williams, Nereida Jimenez, and Tara Smith following their suspensions makes them whole for
the unlawful suspensions is left to the compliance stage of these proceedings.
40 If this Order is enforced by a Judgment of the 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.”

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IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated: January 31, 2006

Lana H. Parke
Administrative Law Judge

JD(SF)-08-06
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 do anything that interferes with these rights. More particularly,
WE WILL NOT refuse to bargain in good faith with Service Employees International Union,
Local 434B, AFL-CIO (the Union) over the terms and conditions of employment of employees in
the following units:
The Base Unit
All full-time and regular part-time nurses aides, certified nurse assistants,
restorative aides, orderlies, dietary employees, activity assistants and
housekeeping employees employed at the nursing facility.

The LVN Unit
All full-time and regular part-time Licensed Vocational Nurses (LVNs)
employed at the nursing facility.

WE WILL NOT suspend or discharge any of you for supporting the Union or any other labor
organization.
WE WILL NOT inform any of you that there is no union at our North Long Beach facility.
WE WILL NOT In any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights listed above.

WE WILL, on request, bargain with the Union and put in writing and sign any agreement
reached on terms and conditions of employment for our employees in the above-described
bargaining units.
WE WILL, within 14 days from the date of the Board’s Order, insofar as we have not already
done so, offer Tracy Davenport, Nana Williams, Nereida Jimenez, Gladys Matos, and Tara
Smith full reinstatement to their former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL, insofar as we have not already done so, make Tracy Davenport, Nana Williams,
Nereida Jimenez, Gladys Matos, and Tara Smith whole for any loss of earnings and other
benefits resulting from their suspensions and/or discharges, less any net interim earnings, plus
interest.
JD(SF)-08-06
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful suspensions and/or discharges of Tracy Davenport, Nana Williams,
Nereida Jimenez, Gladys Matos, and Tara Smith, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the suspensions and/or discharges will not be
used against them in any way.

S&F Market Street Healthcare LLC d/b/a Windsor
Convalescent Center of North Long Beach
(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.
888 South Figueroa Street, 9th Floor
Los Angeles, California 90017-5449
Hours: 8:30 a.m. to 5 p.m.
213-894-5200.
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, 213-894-5229.

JD(SF)-08-06
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

S&F MARKET STREET HEALTHCARE LLC
d/b/a WINDSOR CONVALESCENT CENTER
OF NORTH LONG BEACH

and Case 21-CA-36422

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 434B, AFL-CIO

and Case 21-CA-36645

ANNIE MOSS, An Individual

and Case 21-CA-36650

TARA SMITH, An Individual

TABLE OF CONTENTS

DECISION......................................................................................................................................................... 1
Statement of the Case .............................................................................................................................. 1
Issues ....................................................................................................................................................... 2
Findings of Fact ........................................................................................................................................ 2
I. Jurisdiction............................................................................................................................................ 2
II. Alleged Violations of 8(a)(5) ................................................................................................................ 3
A. Successorship Issue and Refusal to Bargain.............................................................................. 3
B. Respondent’s Position Regarding............................................................................................... 8
Union Representation of Its Employees ........................................................................................... 8
III. Alleged Violations of 8(a)(3) ............................................................................................................... 9
A. Respondent’s Refusal to Hire Edna Colter, ................................................................................ 9
Debra Smith, Sharie Hailey, and Annie Moss .................................................................................. 9
B. Respondent’s July 7 Suspensions of Tracy Davenport,.............................................................. 10
Nana Williams, Nereida Jimenez, and Tara Smith ........................................................................... 10
C. Respondent’s July 23 Termination of Gladys Matos................................................................... 11
D. Respondent’s July 23 Termination of ......................................................................................... 12
Tracy Davenport, Nereida Jimenez, and Nana Williams .................................................................. 12
E. Respondent’s August 10 Termination of Tara Smith .................................................................. 13
IV. Alleged Independent Violations of 8(a)(1) .......................................................................................... 14
DISCUSSION ........................................................................................................................................... 15
I. Alleged Violations of Section 8(a)(5)..................................................................................................... 15
A. Successorship Issue and Refusal to Bargain .............................................................................. 15
........................................................................................................ 18B. Alleged Unilateral Changes
II. Alleged Violations of Section 8(a)(3).................................................................................................... 20
A. Respondent’s Refusal to Hire Edna Colter, ................................................................................ 20
Debra Smith, Sharie Hailey, and Annie Moss .................................................................................. 20
B. Respondent’s July 7 Suspensions of Tracy Davenport,.............................................................. 21
Nana Williams, Nereida Jimenez, and Tara Smith ........................................................................... 21
C. Respondent’s July 23 Terminations of Tracy Davenport, ........................................................... 23
Nana Williams, and Nereida Jimenez .............................................................................................. 23
D. Respondent’s July 23 Termination of Gladys Matos................................................................... 25
E. Respondent’s August 10 Termination of Tara Smith .................................................................. 25
III. Alleged Independent Violations of 8(a)(1)........................................................................................... 27
Conclusions of Law ........................................................................................................................................ 27
Remedy............................................................................................................................................................. 28
ORDER ............................................................................................................................................................. 29
APPENDIX ........................................................................................................................................................ 32