WOODCREST HEALTH CARE CENTER

National Labor Relations Board - Board Decisions

Apr 26, 2018

366 NLRB No. 70 (N.L.R.B. 2018)

366 NLRB No. 70
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Woodcrest Health Care Center and 1199 SEIU, Unit-
ed Health Care Workers East. Case 22–CA-
083628
April 26, 2018
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND KAPLAN
This case, on remand from the United States Court of
Appeals for the Third Circuit, requires us to determine
whether the Respondent’s announcement and implemen-
tation of improvements in healthcare benefits and reduc-
tion in coinsurance, copay, and contribution rates for all
employees except those eligible to vote in a pending rep-
resentation election was unlawfully motivated and there-
fore violated the National Labor Relations Act.1 The
court directed the Board, in addressing that question, to
apply the analytical framework established by the Su-
preme Court in NLRB v. Great Dane Trailers, Inc., 388
U.S. 26 (1967).
The Board has reviewed the record in light of the par-
ties’ statements of position and the court’s opinion,
which we accept as the law of the case. Applying Great
Dane as instructed, we reaffirm the Board’s prior finding
that the Respondent violated Section 8(a)(1) and (3) of
the Act by withholding benefit improvements from em-
ployees eligible to vote in a representation election,
while announcing its intent to grant the improvements to
other employees.
I. FACTS
The Respondent is one of four rehabilitation and nurs-
ing facilities in New Jersey that are managed by Health-
Bridge Management, LLC (HealthBridge). All four of

1 On February 27, 2014, the National Labor Relations Board issued
its Decision and Order in this proceeding. Woodcrest Health Care
Center, 360 NLRB 415 (2014). The Respondent petitioned the United
States Court of Appeals for the Third Circuit for review of the Board’s
Order, and the General Counsel cross-petitioned for enforcement. On
April 29, 2015, the court granted in part the Respondent’s petition for
review, vacating and remanding the benefit allegations to the Board for
reconsideration in light of its decision. 800 River Road Operating Co.,
LLC, d/b/a Woodcrest Health Care Center v. NLRB, 784 F.3d 902 (3d
Cir. 2015). The court upheld the Board’s findings that the Respondent
violated Sec. 8(a)(1) by coercively interrogating an employee and by
creating an impression of surveillance. Id. at 913–915, 917.
On September 13, 2017, the Board notified the parties that it had ac-
cepted the court’s remand and invited them to file statements of posi-
tion with respect to the issues raised by the remand. The Respondent,
the General Counsel, and the Charging Party filed statements of posi-
tion.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
the New Jersey HealthBridge-managed facilities provide
their employees with a common health insurance plan,
which is arranged through HealthBridge. On January 1,
2012, HealthBridge made changes to the common plan
that, among other things, reduced benefits and increased
costs for all employees.2 Employees complained about
the changes and, as a result of their dissatisfaction, some
employees changed or dropped their coverage.
On January 23, 1199 SEIU, United Health Care Work-
ers East (the Union) filed a petition to represent a unit of
approximately 200 of the Respondent’s employees. The
parties thereafter entered into a stipulated election
agreement which provided for a secret ballot election to
be held on March 9.3
On March 5, 4 days before the scheduled election, the
Respondent distributed a memorandum to all of its em-
ployees at the Woodcrest facility, except those involved
in the union representational campaign, announcing that
it was rescinding many of the January 1 changes to the
health insurance plan.4 The memorandum, which was
signed by the Respondent’s administrator, Lorri Senk,
announced as follows:
Three weeks ago I informed you that we were review-
ing the changes that were made to the 2012 health in-
surance benefits and employee contribution rates. . . . .
Our review is now complete. I am very pleased to an-
nounce that we have been able to improve the medical
insurance benefits offered to you and, in most cases,
lower the cost you pay.
The memorandum additionally advised employees that their
contribution rates would be reduced beginning March 23,
and that they would receive a credit for the difference be-
tween their January 1 and March 23 contribution rates. The
memorandum further advised employees that their coinsur-
ance and copay rates would be reduced for services received
on or after July 1.
It is undisputed that the election-eligible employees at
Woodcrest learned that they were being denied these
improvements in healthcare benefits while other employ-

2 All dates are in 2012 unless otherwise indicated.
3 An election was conducted on March 9. The Respondent filed ob-
jections. On November 26, 2014, the Board issued a Decision and
Certification of Representative, which is reported at 361 NLRB 1014
(affirming and incorporating by reference the vacated January 9, 2013
Decision and Certification of Representative reported at 359 NLRB 522
(2013)).
4 The memorandum was specifically addressed to those classifica-
tions at Woodcrest that were not part of the unit of employees that the
Union and the Respondent had stipulated were eligible to vote in the
March 9 election. Thus, on its face, the memorandum excluded em-
ployees who were eligible to vote in the election.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees were being granted them. Although the memoran-
dum was distributed solely to employees who held posi-
tions identified in the memorandum, a copy was left in
the employee breakroom. Unit employee Jeffrey
Jimenez testified that he observed the memorandum in
the breakroom prior to the March 9 representation elec-
tion. Jimenez further testified, without contradiction,
that at a communication meeting held shortly after the
election, another unit employee stated that she had ob-
served the memorandum in the breakroom and inquired
whether unit employees were eligible for the benefit im-
provements. Senk replied “we cannot negotiate your
contract, your benefits, and your insurance because right
now you are in the critical period with the Union.”
The parties stipulated that the healthcare benefit im-
provements were implemented in response to employee
complaints about the changes that were made on January
1. The parties further stipulated that the improvements
“applied to all employees except those involved in a un-
ion representational campaign” and that they were not
implemented as to the Respondent’s election-eligible
employees.
II. THE PRIOR BOARD DECISION
The Board adopted without modification the adminis-
trative law judge’s findings that the Respondent’s an-
nouncement and targeted withholding of the improved
healthcare benefits violated Section 8(a)(1) and (3) of the
Act. 360 NLRB at 415. The judge explained that, “[a]s
a general rule, an employer, in deciding whether to grant
benefits while a representation election is pending,
should decide that question as it would if a union was not
in the picture.” Id. at 424, citing Great Atlantic & Pacif-
ic Tea Co., Inc., 166 NLRB 27, 29 fn. 1 (1967), enfd. in
relevant part 409 F.2d 296 (5th Cir. 1969). The judge
found that, instead of proceeding as though there was no
ongoing union campaign, the record established that the
Respondent granted the benefit improvements to certain
employees “because they were not involved in a repre-
sentation campaign,” and failed to grant the improve-
ments to others “specifically because they were involved
in such a campaign.” 360 NLRB at 424.
The judge noted that Board law provides a safe harbor
whereby an employer may lawfully postpone, rather than
cancel, an adjustment in wages or benefits during the
pendency of a union campaign, so long as it makes clear
to the affected employees that the adjustment will occur
whether or not they select a union, and that the sole pur-
pose of the postponement is to avoid the appearance of
improperly trying to influence the election’s outcome.
Id., citing KMST-TV, Channel 46, 302 NLRB 381, 382
(1991); Atlantic Forest Products, Inc., 282 NLRB 855,
858 (1987). The judge found that the Respondent did not
qualify for this safe harbor because it failed to inform the
unit employees that the withholding was temporary and
that the benefits would be provided retroactively, leaving
them with the “clear impression” that they were being
deprived of these improved benefits because of their Sec-
tion 7 activity. 360 NLRB at 424.
III. THE DECISION OF THE THIRD CIRCUIT COURT
OF APPEALS
On review, the Third Circuit faulted the Board for fail-
ing to make a specific finding as to the Respondent’s
motive for withholding the benefit improvements from
the election-eligible employees, and instead treating the
inquiry “as a ‘but for’ test—i.e., asking only whether the
employees would have received benefits but for the Un-
ion’s presence.”5 784 F.3d at 910 (citations omitted).
Citing Third Circuit and Supreme Court precedent, the
court observed that the language of Section 8(a)(3)
demonstrates that, in order to find a violation, “consider-
ation must be given to the employer’s motive.” Id. at
908. It further remarked that the “Supreme Court has
held, time and again, that a violation of § 8(a)(3) normal-
ly turns on an employer’s antiunion purpose or motive.”
Id., citing American Ship Building Co. v. NLRB, 380 U.S.
300, 311 (1965); NLRB v. Brown, 380 U.S. 278, 287
(1965); Radio Officers’ Union v. NLRB, 347 U.S. 17, 44
(1954). The court found that, in the benefits context, the
requirement of antiunion motivation applies to Section
8(a)(1) as well. 784 F.3d at 909 fn. 4.
The court acknowledged, however, that in some cir-
cumstances, specific proof of improper motive may be
unnecessary. Id. at 909, citing Great Dane, 388 U.S. at
33–34; NLRB v. Hudson Transit Lines, Inc., 429 F.2d
1223, 1227–1229 (3d Cir. 1970); NLRB v. Fleetwood
Trailer Co., 389 U.S. 375, 380 (1967). The court de-
scribed the burden shifting framework established by the
Supreme Court in Great Dane for analyzing cases in
which the challenged conduct appears to be discriminato-
ry on its face:
As a threshold matter, [the Board] must make a finding
as to whether the employer engaged in one of two
kinds of “discriminatory conduct which could have ad-
versely affected employee rights to some extent.” That
is, first, if the Board finds the employer’s conduct to be
“ ‘inherently destructive’ of important employee
rights,” then the Board may presume an unlawful mo-
tive. The employer then would have the opportunity to
demonstrate “counter explanations” for its conduct, alt-
hough the Board “may nevertheless draw an inference

5 The court also faulted the Board for treating the safe harbor “as a
sword” and finding, in essence, that the Respondent violated the Act
because it did not comply with the safe harbor. 784 F.3d at 908.
WOODCREST HEALTH CARE CENTER 3
of improper motive from the conduct itself” and find an
unfair labor practice, if doing so would “strike the
proper balance between the asserted business justifica-
tions and the invasion of employee rights in light of the
Act and its policy.” Second, if the Board finds instead
that the employer’s conduct fell short of the “inherently
destructive” category—i.e., “the adverse effect of the
discriminatory conduct on employee rights is ‘compar-
atively slight’”—then the burden shifts to the employer
to “come forward with evidence of legitimate and sub-
stantial business justifications for the conduct.” If it
does not do so, it will be found to have violated §
8(a)(3). However, if the employer meets this burden,
then the burden shifts back to the charging party or the
NLRB to present “specific evidence” of the employer’s
intent to discourage [u]nion membership.
784 F.3d at 909–910 (emphasis in original, citations omit-
ted).
The court stated that the Board’s failure “to make a
finding as to the nature of the effect on employee rights
or the reason for, or purpose of, [the Respondent’s] dif-
ferent treatment of the election-eligible employees can-
not be reconciled with what the Supreme Court has in-
structed . . . the Board to do.”6 Id. at 910. The court
remanded the case to the Board “to modify its longstand-
ing mode of analysis in order to comply with the Su-
preme Court’s equally longstanding precedent to the con-
trary.” Id.
IV. DISCUSSION
We accept the court’s opinion as the law of the case.
Applying the Great Dane analytical framework as in-
structed, we find that the Respondent violated Section
8(a)(1) and (3) of the Act by announcing and implement-
ing improvements in healthcare benefits and a reduction
in coinsurance, copay, and contribution rates for all em-
ployees except those eligible to vote in a pending repre-
sentation election.
A. NLRB v. Great Dane Trailers, Inc., 388 U.S.
26 (1967)
In Great Dane, where the Board had found that an em-
ployer violated Section 8(a)(3) of the Act by withholding
vacation benefits from striking employees while at the
same time announcing that it intended to pay those bene-

6 The court acknowledged that the Respondent treated employees in
the stipulated bargaining unit differently because of the election, but
found that “the Board made no attempt to determine the reason [the
Respondent] decided to award benefits to some employees at the time
and in the manner that it did.” Id. at 910 fn. 5. It went on to state,
however, that the Respondent’s claim that it did not have an antiunion
motivation “would be exceedingly weak if all it could say was that it
was following faulty legal advice.” Id.
fits to nonstrikers,7 the Supreme Court observed: “There
is little question but that the result of the company’s re-
fusal to pay vacation benefits to strikers was discrimina-
tion in its simplest form.” 388 U.S. at 32. The Court
further observed: “The act of paying accrued benefits to
one group of employees while announcing the extinction
of the same benefits for another group of employees who
are distinguishable only by their participation in protect-
ed concerted activity surely may have a discouraging
effect on either present or future concerted activity.” Id.
Although the Court acknowledged that independent
evidence of antiunion motivation is normally required to
sustain a violation of Section 8(a)(3), it stated that some
conduct is so “‘inherently destructive of employees in-
terests’ that it may be deemed proscribed without need
for proof of an underlying improper motive.” Id. at 33,
quoting NLRB v. Brown, 380 U.S. at 287; American Ship
Building Co. v. NLRB, 380 U.S. at 311. Such conduct,
the Court stated, “carries with it ‘unavoidable conse-
quences which the employer not only foresaw but which
he must have intended’ and thus bears ‘its own indicia of
intent.’” Id., quoting NLRB v. Erie Resistor Corp., 373
U.S. 221, 228, 231 (1963). In such a situation, “the em-
ployer has the burden of explaining away, justifying or
characterizing ‘his actions as something different than
they appear on their face.’” Id., quoting Erie Resistor,
373 U.S. at 228. And even if the employer comes for-
ward with counter explanations for its conduct in this
situation, “the Board may nevertheless draw an inference
of improper motive from the conduct itself and exercise
its duty to strike the proper balance between the asserted
business justifications and the invasion of employee
rights in light of the Act and its policy.” 388 U.S. at 33–
34.
On the other hand, the Court stated that “when the re-
sulting harm to employee rights is comparatively slight,”
an antiunion motivation must be proved if the employer
has come forward with evidence of a substantial and le-
gitimate business justification for its conduct. Id. at 34
(quotation marks omitted), citing NLRB v. Brown, 380
U.S. at 289; American Ship Building Co. v. NLRB, 380
U.S. at 311–313.
Finally, the Court explained that “in either situation,
once it has been proved that the employer engaged in
discriminatory conduct which could have adversely af-
fected employee rights to some extent, the burden is up-
on the employer to establish that he was motivated by
legitimate objectives since proof of motivation is most
accessible to him.” 388 U.S. at 34.

7 Great Dane Trailers, Inc., 150 NLRB 438 (1964).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ultimately, the Court found that it was unnecessary to
decide whether the employer’s denial of vacation pay to
strikers while paying those same benefits to nonstrikers
was “inherently destructive” of employees’ interests, or
had a comparatively slight impact on those interests,
since the employer came forward with no evidence of
legitimate motives for its conduct. Because the employ-
er’s conduct “could have adversely affected employee
rights to some extent,” and “no evidence of a proper mo-
tivation appeared in the record,” the Court held that the
Board’s conclusion that the conduct violated Section
8(a)(3) of the Act was supported by substantial evidence
and should have been sustained. Id. at 34–35.
B. Application of Great Dane to this case
Applying the analytic framework of Great Dane to the
facts of this case,8 we find that the Respondent’s with-
holding of improved healthcare benefits from employees
in the stipulated unit while announcing an intent to grant
those benefits to other employees was “discriminatory
conduct which could have adversely affected employee
rights to some extent.” Id. at 34. There is no dispute that
the Respondent would have extended the benefit im-
provements to the employees in the stipulated unit were
it not for their protected activity. As the judge in this
case found, the Respondent granted the improvements to
certain employees “because they were not involved in a
representation campaign,” and failed to grant the im-

8 The Respondent contends that the record should be reopened and
additional evidence admitted if the Board is not persuaded on the exist-
ing record that the complaint allegations should be dismissed. We find
that it is unnecessary to reopen the record for the following reasons.
First, the material facts are stipulated or undisputed. Second, the par-
ties were afforded the opportunity to file statements of position regard-
ing the issues presented in the remand and to identify any new argu-
ments or evidence that they would introduce if the record were reo-
pened. The Respondent does not claim that it has any new arguments
to advance, and it has identified no additional relevant evidence that it
might present. Finally, the Great Dane framework is not a novel stand-
ard in the context of targeted withholding cases. See, e.g., Great Atlan-
tic and Pacific Tea Co., 166 NLRB at 29 fn. 3 (applying Great Dane
and concluding that “the discriminatory treatment of employees was
violative of Sec. 8(a)(1) and (3) whether or not there is proof that Re-
spondent was motivated by an unlawful purpose as it was ‘inherently
destructive of employee interests,’ and no persuasive evidence of a
legitimate purpose appears therefor”). In light of the foregoing, and
especially given the Respondent’s failure to identify any new argu-
ments or relevant evidence that it would present, we deny the Respond-
ent’s request to reopen the record. See also NLRB v. Frick Co., 397
F.2d 956, 964 (3d Cir. 1968) (denying employer’s request that case be
remanded and the record reopened to enable it to present evidence of its
business justification, noting “the Supreme Court did not afford the
employer in the Great Dane case an opportunity to present evidence of
business justification by ordering the suit remanded to the Board but
rather remanded the case to the Court of Appeals with directions to
enforce the Board’s order”).
provements to others “specifically because they were
involved in such a campaign.” 360 NLRB at 424.
The evidence establishes, moreover, that the employ-
ees in the stipulated unit became aware before the elec-
tion that they were being denied the benefit improve-
ments. And Senk’s response when questioned about the
matter shortly after the election that “we cannot negotiate
. . . your benefits, and your insurance because . . . you are
in the critical period with the Union” placed the onus for
the denial squarely on the Union. The foreseeable effect
of this conduct was to discourage the future exercise of
Section 7 rights by sending an unmistakable message to
the employees in the stipulated unit that they were being
punished for their support of the Union and to warn them
and others—including those who received the benefit
improvements - that they cannot engage in organizational
activity without jeopardizing their eligibility for benefits
and risking detriment to their terms and conditions of
employment.
Since it was proven that the Respondent engaged in
“discriminatory conduct which could have adversely
affected employee rights to some extent,” under Great
Dane the burden shifted to the Respondent to show that
its conduct was motivated by substantial and legitimate
business objectives. 388 U.S. at 34. We find that the
Respondent has failed to carry that burden.
Although the Respondent has maintained throughout
the litigation of this case that it withheld the benefit im-
provements from the employees in the stipulated unit in
order to maintain the status quo and avoid impacting the
election or exposing itself to unfair labor practice charg-
es, it offered no evidence that this was its actual motive.
The Respondent did not present testimony from its offi-
cials who actually made the decision to withhold, and
there is no evidence in the record establishing how,
when, or why the decision was made.9 The Respondent
does not contend that it was prevented from introducing
such evidence because the case was litigated under a “per
se” theory of violation, and it has not identified any rele-
vant evidence that it would introduce if the record were
reopened. The Respondent’s bald assertion unaccompa-
nied by any proof or offer of proof does not fulfill its

9 Acting Director of Nursing Chereece Steele was the only official
of the Respondent to testify regarding the benefit improvements. Steele
testified that she observed supervisors distributing the March 5 memo-
randum in closed envelopes to approximately 25 employees. She fur-
ther testified that when an employee in the stipulated unit asked about
the benefit improvements at a communications meeting, the Respond-
ent’s attorney replied “we [are] not allowed to discuss that matter at this
time.”
WOODCREST HEALTH CARE CENTER 5
obligation to “come forward with evidence of legitimate
and substantial business justifications” for its conduct.10
In any case, even if the record supported the Respond-
ent’s claim that it withheld the benefit improvements in
order to maintain the status quo and avoid impacting the
election or exposing itself to potential unfair labor prac-
tice charges, we would not find that to be a legitimate
justification. In NLRB v. Exchange Parts Co., the Su-
preme Court explained: “The danger inherent in well-
timed increases in benefits is the suggestion of a fist in-
side the velvet glove. Employees are not likely to miss
the inference that the source of benefits now conferred is
also the source from which future benefits must flow and
which may dry up if it is not obliged.” 375 U.S. 405,
409 (1964). The Board has long recognized that the
Court’s rationale is applicable to both the granting and
the withholding of benefits. Accordingly, the Board has
repeatedly held that due to the coercive effect of with-
holding benefits from eligible voters while granting them
to others, an employer is required to proceed in the same
manner as it would absent the presence of the union.
Care One at Madison Avenue, 361 NLRB 1462, 1474
(2014), enfd. 832 F.3d 351 (D.C. Cir. 2016); Associated
Milk Producers, Inc., 255 NLRB 750, 755 (1981); Great
Atlantic & Pacific Tea Co., 166 NLRB at 29 fn. 1.
“When an employer follows this course of action it, in
fact, maintains the status quo, in accordance with the
rationale of Exchange Parts.” Care One at Madison
Avenue, 361 NLRB at 1475.
In cases involving company or system-wide adjust-
ments in benefits, these principles apply regardless of
whether the adjustments are part of a regular pattern or,
as in this case, are made on a one-time basis. If the em-
ployer would have granted the benefits because of eco-
nomic circumstances unrelated to union organization, the
grant of those benefits would not have violated the Act.
As the Board explained in Associated Milk Producers:
Where, as here, a systemwide increase is put in
effect in a manner free from union considerations,

10 Great Dane, 388 U.S. at 34. See also Otis Hospital, 222 NLRB
402, 404 (1976) (employer failed to establish that withholding prom-
ised wage increase after employees petitioned for an election was mo-
tived by concern over exposure to unfair labor practice charges where it
presented no testimony or other evidence to that effect), enfd. 545 F.2d
252 (1st Cir. 1976); GAF Corp. v. NLRB, 488 F.2d 306, 309 (2d Cir.
1973) (same); NLRB v. Frick Co., 397 F.2d at 962–963 (explaining that
once it was proven employer engaged in “discriminatory conduct which
could have adversely affected employee rights to some extent,” the
burden shifted to employer to come forward with evidence that its
action was motivated by a substantial and legitimate business justifica-
tion and employer’s “bald statement” was not sufficient to meet that
burden), citing NLRB v. Fleetwood Trailer Co., 389 U.S. at 378 fn. 4;
NLRB v. Great Dane, 388 U.S. at 34.
the withholding of that increase at a subdivision unit
undergoing union organization is not necessary to
avoid risking unlawful interference . . . . This is so
because the systemwide application does what a
regular pattern of wage increases does in other cir-
cumstances–provides the evidence necessary to
demonstrate that the increase was given free from
union or other prohibited considerations. . . .
The Board has considered systemwide changes in
wages and benefits as “normal” or free from im-
proper considerations without inquiry as to their his-
torical pattern and has found the withholding of such
an increase at a single facility during preelection
campaigning to be violative of Section 8(a)(1) and
(3) of the Act.
255 NLRB at 755, citing Russell Stover Candies, Inc., 221
NLRB 441 (1975); see also Network Ambulance Services,
Inc., 329 NLRB 1, 1 fn. 4 (1999) and cases cited therein;
Pennsylvania Gas and Water Co., 314 NLRB 791, 793
(1994), enfd. mem 61 F.3d 895 (3d Cir. 1995).
As the foregoing precedent demonstrates, the Re-
spondent here could have avoided influencing the elec-
tion and exposing itself to potential unfair labor practice
charges by granting the benefit improvements to all of its
employees, including those subject to the petition. Al-
ternatively, it could have deferred the announcement and
implementation of the improvements until after the elec-
tion.11 Although the Third Circuit pointed out that “the
Board made no attempt to determine the reason [the Re-
spondent] decided to award benefits to some employees

11 The Board also permits an employer, if it is uncertain whether it
can sustain its burden of proving that improvements in wages or bene-
fits were given free from union considerations, to postpone the im-
provements so long as it makes clear that the improvements will be
granted whether or not the employees select a union, and that the sole
purpose of the postponement is to avoid the appearance of attempting
to influence the election. Kauai Coconut Beach Resort, 317 NLRB
996, 997 (1995); KMST-TV, Channel 46, 302 NLRB at 382; Atlantic
Forest Products, Inc., 282 NLRB at 858; Uarco Inc., 169 NLRB 1153,
1154 (1968). By making such an announcement, the employer neutral-
izes the natural inference drawn by employees that the improvements
were withheld in order to influence the election and punish them for
their union activity. Uarco, 169 NLRB at 1154. As the Board has
previously emphasized, an employer is not obligated to take this course
of action. It is “an optional exception to the general rule that the em-
ployer is required to proceed with projected wage or benefit improve-
ments as if the union were not on the scene.” Network Ambulance
Services, 329 NLRB at 2.
Member Kaplan expresses no opinion concerning the Board’s safe
harbor policy in the benefits context. Rather, in the instant case, he
agrees with his colleagues that, under Great Dane, the Respondent
engaged in “discriminatory conduct which could have adversely affect-
ed employee rights to some extent,” and has failed to establish a “legit-
imate and substantial business justification” for its discriminatory con-
duct. 388 U.S. at 34.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at the time . . . that it did,”12 tellingly, the Respondent
offers no explanation for the timing of the announce-
ment, a mere 4 days before the election and more than 2
months after the unpopular changes were instituted. Nor
is there any evidence or claim that the timing of the an-
nouncement and implementation was compelled by exi-
gency or external factors.
Moreover, the Board, with court approval, has repeat-
edly held that neither an employer’s good-faith belief
that a pending representation election precluded the grant
of wage or benefit improvements nor the fear of being
charged with unfair labor practices justifies the withhold-
ing of improvements which normally would have been
extended to the affected employees. See, e.g., Care One
at Madison Avenue, LLC v. NLRB, 832 F.3d at 359–360;
Pennsylvania Gas and Water, 314 NLRB at 793; Gerry’s
I.G.A., 238 NLRB 1141, 1153 fn. 33 (1978), enfd. 602
F.2d 1021 (1st Cir. 1979); Associated Milk Producers,
255 NLRB at 755; Otis Hospital, 222 NLRB 402, 404–
405 (1976), enfd. 545 F.2d 252 (1st Cir. 1976); Florida
Steel Corp., 220 NLRB 260, 266 (1975), enfd. mem. 543
F.2d 1389 (D.C. Cir. 1976).13
Contrary to the Respondent’s contention in its position
statement, the fact that it distributed the March 5 memo-
randum announcing the benefit improvements only to
employees outside the stipulated unit does not rebut the
inference of unlawful motive. The January 1 benefit
changes were extremely unpopular. It was certainly
foreseeable that their rescission would become known to
employees in the stipulated unit. And it is undisputed
that those employees did learn that the changes had been
rescinded and that healthcare benefits were improved for
other employees. Moreover, even after the Respondent
became aware that employees in the stipulated unit knew
they were not receiving the benefit improvements given
the other employees, it made no attempt to assure them

12 784 F.3d at 910 fn. 5.
13 To the extent the Respondent’s briefs and position statement can
be construed as arguing that its conduct is lawful because it relied on
advice of counsel, that argument is rejected. See Care One at Madison
Avenue, LLC v. NLRB, 832 F.3d at 360; NLRB v. Hendel Manufactur-
ing Co., Inc., 483 F.2d 350, 353 (2d Cir. 1973); Great Atlantic & Pacif-
ic Tea Co., 166 NLRB at 28. As the Third Circuit Court of Appeals has
explained:
[G]ood faith, based upon an erroneous interpretation of the law, is not
available as a defense. . . . An employer who pursues a course of con-
duct later determined to be an unfair labor practice does so at his peril.
. . . The equities [in such a case] favor the employees; it would be in-
equitable to require them to absorb pay losses ascribable to the unfair
labor practice of the Company.
International Union of Electrical, Radio and Machine Workers, Local 613,
AFL–CIO (Erie Technological Products, Inc.) v. NLRB, 328 F.2d 723, 727
(3d Cir. 1964) (citations omitted). See also NLRB v. Clearfield Cheese Co.,
Inc., 322 F.2d 89, 93 (3d Cir. 1963).
that the improvements would be granted to them after the
election and regardless of the outcome. See Gerry’s
I.G.A., 238 NLRB at 1153–1154. Instead, Senk placed
the onus squarely on the Union. In these circumstances,
it is immaterial that the Respondent did not make a pre-
petition announcement to employees in the stipulated
unit of its intent to grant the improvements to all other
employees or that it allegedly attempted to withhold
knowledge of the improvements from the unit employ-
ees. The result is the same—the employees in the stipu-
lated unit learned that they were being denied benefit
improvements that were granted to other employees, and
they would reasonably infer that the denial was intended
to punish them for their union activity or to influence
their vote in the election.14 Furthermore, the Respond-
ent’s conduct would foreseeably discourage all of its
employees—including those who received the benefit
improvements—from engaging in future union activity.
Thus, the inference of wrongful motive is left intact.
In sum, we find that the Respondent engaged in “dis-
criminatory conduct which could have adversely affected
employee rights to some extent.” NLRB v. Great Dane
Trailers, Inc., 388 U.S. at 34. Therefore, under Great
Dane, the burden shifted to the Respondent to show that
its conduct was motivated by a substantial and legitimate
business justification. Because the Respondent has failed
to establish or even assert such a justification, and since
no evidence of a proper justification appears in the rec-
ord, it is unnecessary to determine whether the record
contains independent evidence of improper motivation.
NLRB v. Fleetwood Trailer Co., 389 U.S. at 380; NLRB
v. Great Dane Trailers, Inc., 388 U.S. at 34–35. Ac-
cordingly, we affirm the Board’s prior finding that the
Respondent violated Section 8(a)(1) and (3) of the Act
by announcing and implementing improvements in
healthcare benefits and a reduction in coinsurance, co-
pay, and contribution rates for all employees except
those who were eligible to vote in the representation
election.

14 The Board has rejected the claim that mere silence suffices to dis-
pel the coercive effect of withholding benefits from election-eligible
employees. See Medical Center at Bowling Green, 268 NLRB 985,
985 (1984), enf. denied on other grounds 756 F.2d 41 (6th Cir. 1985);
Gerry’s I.G.A., 238 NLRB at 1152–1153. Contrary to the Respond-
ent’s contention, Bowling Green is not distinguishable on the basis that
the employer there made a pre-petition announcement of its intent to
grant a pay increase to all employees. As discussed above, given the
widespread opposition to the January 2012 benefit reductions, it was
foreseeable that employees in the stipulated unit would learn that bene-
fit improvements had been granted to other employees and that they
would infer that the Respondent’s failure to extend the same benefits to
them was intended to influence their vote in the election or to punish
them for their union activity.
WOODCREST HEALTH CARE CENTER 7
REMEDY
Having found that the Respondent violated Section
8(a)(1) and (3) of the Act by withholding the improve-
ments in healthcare benefits and reduction in coinsur-
ance, copay, and contribution rates from employees who
were eligible to vote in the March 9, 2012 representation
election in order to discourage union activity and sup-
port, we shall order the Respondent, upon union request,
and to the extent it has not already done so, to retroac-
tively grant the benefit improvements and reduction in
coinsurance, copay, and contribution rates to the em-
ployees in the stipulated bargaining unit. We shall also
order the Respondent to make unit and former unit em-
ployees whole for any losses suffered as a result of its
unlawful conduct in the manner set forth in Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest as prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6
(2010). We shall further order the Respondent to com-
pensate affected unit employees and former unit employ-
ees for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and file with the Regional
Director a report allocating the backpay awards to the
appropriate calendar years for each employee. AdvoServ
of New Jersey, Inc., 363 NLRB No. 143 (2016).
ORDER15
The National Labor Relations Board orders that the
Respondent, 800 River Road Operating Company LLC
d/b/a Woodcrest Health Care Center, New Milford, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Announcing and implementing improvements in
healthcare benefits and a reduction in coinsurance, co-
pay, and contribution rates that excludes employees eli-
gible to vote in a representation election, in order to dis-
courage employees from supporting a union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Upon union request, and to the extent it has not al-
ready done so, implement the January 1, 2012, improve-
ments in healthcare benefits and reduction in coinsur-
ance, copay, and contribution rates for the unit of em-
ployees who were eligible to vote in the March 9, 2012,

15 The Order shall not be construed as requiring or authorizing the
Respondent to implement changes in the unit employees’ current
healthcare benefits unless requested to do so by the Union.
representation election but were specifically excluded
from those benefits.
(b) Make current and former unit employees whole,
with interest, for any losses resulting from their exclu-
sion from the improvements in healthcare benefits and
reduction in coinsurance, copay, and contribution rates
available to other employees, in the manner set forth in
the remedy section of the judge’s decision as amended in
this decision.
(c) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region
22, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at
its New Milford, New Jersey facility, copies of the notice
marked “Appendix.”16 Copies of the notice, on forms
provided by the Regional Director for Region 22, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since March 5, 2012.

16 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.”
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 22, a sworn certi-
fication of a responsible official on a form provided by
the Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. April 26, 2018
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER PEARCE, concurring.
I agree with my colleagues in all respects except that I
would additionally find that even assuming the justifica-
tion advanced by the Respondent would qualify as a
“substantial and legitimate business end,” the record con-
tains sufficient affirmative evidence of improper motiva-
tion to sustain the Board’s finding that Section 8(a)(1)
and (3) has been violated. NLRB v. Great Dane Trailers,
388 U.S. 26, 34 (1967); NLRB v. Brown, 380 U.S. 278,
289 (1965).
It is beyond dispute that the Respondent would have
granted the improvements in healthcare benefits and re-
duction in coinsurance, copay, and contribution rates to
the employees in the stipulated bargaining unit if they
were not eligible to vote in the pending representation
election. The announcement and implementation of im-
proved benefits for one group of employees while with-
holding the same benefits from another group of employ-
ees “who are distinguishable only by their participation
in protected concerted activity” is “discrimination in its
simplest form.” Great Dane, 388 U.S. at 32. See also
NLRB v. Great Atlantic & Pacific Tea Co., 409 F.2d 296,
298 (5th Cir. 1969).
I find, moreover, that the business justification ad-
vanced by the Respondent for its conduct was, in fact,
pretextual. As my colleagues point out, the Respondent
has maintained throughout the litigation of this case that
it withheld the benefit improvements from the employees
in the stipulated unit in order to maintain the status quo
and avoid illegally influencing the election. However,
the Respondent presented no testimony or other evidence
at the hearing to substantiate that claim and it has identi-
fied no additional relevant evidence it would introduce if
the record were reopened.
The Respondent’s failure to postpone the benefit im-
provements only for the duration of the campaign also
undermines its attempt to establish a legitimate justifica-
tion. If the Respondent’s motive for withholding the
improvements was to avoid illegally influencing the elec-
tion, as it claims, it could have granted the improvements
to the employees in the stipulated unit once the election
was over or at least conferred with the Union about the
matter. There is no claim that it did either.1 When an
employer presents a legitimate justification for its actions
which is found to be pretextual, “the [Board] may not
only properly infer that there is some other motive, but
that the motive is one that the employer desires to con-
ceal—an unlawful motive.” Laro Maintenance Corp. v.
NLRB, 56 F.3d 224, 230 (D.C. Cir.1995), quoting Shat-
tuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470
(9th Cir.1966) (internal quotation marks omitted)).
The timing of the Respondent’s announcement is also
strongly indicative of unlawful motivation. There ap-
pears to have been no urgent requirement that the Re-
spondent announce its decision to rescind the unpopular
changes in the employees’ healthcare benefits—
implemented more than 2 months earlier—just 4 days
before the election. And the Respondent makes no at-
tempt to explain why, if it was concerned about influenc-
ing the election, it did not simply defer the announce-
ment until after the election. Finally, administrator Lorri
Senk’s response, when asked whether unit employees
were eligible for the benefit improvements, that she
could not discuss the matter “because you are in a critical
period with the Union,” essentially encouraged the em-
ployees to blame the Union for the Respondent’s deci-
sion to withhold the improvements.
In sum, substantial evidence supports the conclusion
that the Respondent’s motive for withholding the benefit
improvements from the employees in the stipulated unit
was to influence the outcome of the election, to punish
the employees for their support of the Union, and to
serve as a warning to others. See, e.g., Care One of
Madison Avenue, LLC v. NLRB, 832 F.3d 351, 358 (D.C.
Cir. 2016); Pennsylvania Gas and Water Co., 314 NLRB
791, 793 (1994), enfd. mem 61 F.3d 895 (3d Cir. 1995).

1 The Respondent contends that if the record were reopened, it
would submit evidence that “all of its employees . . . . have received the
same insurance benefits since January 2013.” However, the Respond-
ent does not specify whether it granted the improvements to the em-
ployees in the stipulated bargaining unit, rescinded the improvements
for the employees outside of the stipulated bargaining unit, or imple-
mented an entirely new health care plan for all of its employees. Fur-
ther, if the Respondent granted the improvements to the unit employ-
ees, there is no evidence or claim that it credited them the difference
between the contribution rate they paid since January 1, 2012, and the
new lower contribution rate, as it did for its other employees.
WOODCREST HEALTH CARE CENTER 9
Accordingly, in finding the violation, I would rely on this
additional rationale.
Dated, Washington, D.C. April 26, 2018
______________________________________
Mark Gaston Pearce, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT announce and implement improvements
in healthcare benefits and a reduction in coinsurance,
copay, and contribution rates that excludes employees
eligible to vote in a representation election, in order to
discourage you from supporting a union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, upon union request, and to the extent we
have not already done so, implement the January 1, 2012
improvements in healthcare benefits and reduction in
coinsurance, copay, and contribution rates for our unit
employees who were eligible to vote in the March 9,
2012 representation election and were specifically ex-
cluded from those benefits.
WE WILL make current and former unit employees
whole, with interest, for any losses resulting from their
exclusion from the improvements in healthcare benefits
and reduction in coinsurance, copay, and contribution
rates available to other employees.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 22, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
800 RIVER ROAD OPERATING COMPANY, LLC,
D/B/A WOODCREST HEALTH CARE CENTER
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-083628 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.