NOTICE: This opinion is subject to formal revision before publication in the 1. Substitute the following for paragraph 1(c).

bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C. “(c) Changing the terms and conditions of employ-
20570, of any typographical or other formal errors so that corrections can ment of its unit employees, including the paid-time off
be included in the bound volumes.
policy (PTO), without first notifying the Union and giv-
Mountain View Care and Rehabilitation Center, LLC ing it an opportunity to bargain.”
and Retail, Wholesale, and Department Store 2. Insert the following as paragraph 2(f) and reletter
Union. Cases 04–CA–235894 and 04–CA–238216 the subsequent paragraphs.
December 5, 2019 “(f) Before implementing any changes in wages,
hours, or other terms and conditions of employment of
DECISION AND ORDER unit employees, notify and, on request, bargain with the
BY CHAIRMAN RING AND MEMBERS KAPLAN AND Union as the exclusive collective-bargaining representa-
EMANUEL tive of employees in the following bargaining unit:
On August 23, 2019, Administrative Law Judge Rob- All full-time and regular part-time Certified Nursing
ert A. Giannasi issued the attached decision. The Re- Assistants (CNAs) and Restorative Aids employed by
spondent filed exceptions and a supporting brief, the the Employer at its 2309 Stafford Avenue, Scranton,
General Counsel filed an answering brief, and the Re- PA facility. EXCLUDED: All other employees,
spondent filed a reply brief. The General Counsel filed guards, and supervisors as defined in the Act.”
cross-exceptions and a supporting brief, and the Re- 3. Substitute the attached notice for that of the admin-
spondent filed an answering brief. istrative law judge.
The National Labor Relations Board has delegated its Dated, Washington, D.C. December 5, 2019
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record ______________________________________
in light of the exceptions, cross-exceptions, and briefs John F. Ring, Chairman
and has decided to affirm the judge’s rulings, findings,1
and conclusions and to adopt the recommended Order as
modified.2 ______________________________________
ORDER Marvin E. Kaplan, Member
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Moun- ________________________________________
tain View Care and Rehabilitation Center, LLC, Scran- William J. Emanuel Member
ton, Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the order as
modified. (SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
1 There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(1) of the Act by interrogating employee Yolanda NOTICE TO EMPLOYEES
Ramos. In adopting the judge’s finding that the Respondent violated POSTED BY ORDER OF THE
Sec. 8(a)(3) and (1) by suspending and discharging Ramos, we observe NATIONAL LABOR RELATIONS BOARD
that the judge’s credibility resolutions establish that the Respondent An Agency of the United States Government
disparately enforced its no-solicitation policy. While the Respondent’s
policy provides that “collections for charitable purposes” are prohibited The National Labor Relations Board has found that we
“unless approved by the Administrator [of the Respondent],” the judge violated Federal labor law and has ordered us to post and
discredited the Administrator’s testimony that she approved all the
assertedly charitable solicitation that occurred at the Respondent. The obey this notice.
Respondent thus ignored its own policy requirements with respect to FEDERAL LAW GIVES YOU THE RIGHT TO
charitable solicitation, but strictly enforced the policy with respect to
Ramos’ union activity. We find it unnecessary to rely on the judge’s Form, join, or assist a union
additional findings regarding disparate enforcement of the policy, but Choose representatives to bargain with us on
we agree with his conclusion that the Respondent’s disparate enforce-
ment of the policy defeats its attempt to establish an affirmative defense
your behalf
of Ramos’ discharge. Act together with other employees for your bene-
2 We have modified the judge’s recommended Order to reflect the
fit and protection
Board’s standard remedial language and have substituted a new notice Choose not to engage in any of these protected
to reflect these modifications.
activities.

368 NLRB No. 128

2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

WE WILL NOT coercively interrogate or question you MOUNTAIN VIEW CARE AND REHABILITATION
about your union activities or those of other employees. CENTER, LLC
WE WILL NOT suspend, discharge, or otherwise dis- The Board’s decision can be found at
criminate against any of you for supporting the Union or www.nlrb.gov/case/04-CA-235894 or by using the QR
any other labor organization. code below. Alternatively, you can obtain a copy of the
WE WILL NOT change your terms and conditions of decision from the Executive Secretary, National Labor
employment, including your paid time-off policy (PTO), Relations Board, 1015 Half Street, S.E., Washington,
without first notifying the Union and giving it an oppor- D.C. 20570, or by calling (202) 273-1940.
tunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
described above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Yolanda Ramos full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Yolanda Ramos whole for any loss of David Rodriguez, Esq. and Samuel E. Schwartz, Esq., for the
earnings and other benefits resulting from her suspension General Counsel.
and discharge, less any net interim earnings, plus inter- Brandon Williams, Esq. and Glenn A. Parno, Esq., for Re-
est, and WE WILL also make her whole for reasonable spondent.
search-for-work and interim employment expenses, plus DECISION
interest.
WE WILL compensate Yolanda Ramos for the adverse STATEMENT OF THE CASE
tax consequences, if any, of receiving a lump-sum back- ROBERT A. GIANNASI, Administrative Law Judge. This case
pay award, and WE WILL file with the Regional Director was tried in Philadelphia, Pennsylvania, on July 8, 2019. The
for Region 4, within 21 days of the date the amount of complaint alleges that the Respondent violated Section 8(a)(1)
backpay is fixed, either by agreement or Board order, a of the Act by interrogating an employee about her union activi-
ties and those of other employees, and Section 8(a)(3) and (1)
report allocating the backpay award to the appropriate of the Act by first suspending that same employee, Yolanda
calendar year. Ramos, and later discharging her because of her activities on
WE WILL, within 14 days from the date of the Board’s behalf of the Charging Party Union (hereafter, the Union). The
Order, remove from our files any reference to the unlaw- complaint, as amended at the hearing, also alleges that Re-
ful suspension and discharge of Yolanda Ramos, and WE spondent violated Section 8(a)(5) and (1) of the Act by chang-
WILL, within 3 days thereafter, notify her in writing that ing its paid time off policy to a new policy and eliminating
this has been done and that the suspension and discharge employees’ accrued leave balances under the old policy without
will not be used against her in any way. notifying the Union that represents its employees or giving it an
WE WILL restore your paid time-off policy as it existed opportunity to bargain over the changes. Respondent denied
the essential allegations in the complaint. After the trial, the
before we unlawfully changed it and make you whole, General Counsel and the Respondent filed briefs, which I have
with interest, for any losses suffered due to our unlawful read and considered. Based on the filed briefs and the entire
changes to that policy, including restoration of accrued record, including the testimony of the witnesses and my obser-
leave balances. vation of their demeanor, I make the following
WE WILL, before implementing any changes in wages, FINDINGS OF FACT
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the I. JURISDICTION
Union as the exclusive collective-bargaining representa- Respondent, a Pennsylvania limited liability company, pro-
tive of our employees in the following bargaining unit: vides rehabilitation services and nursing home care in a nursing
All full-time and regular part-time Certified Nursing home located in Scranton, Pennsylvania. In conducting its
Assistants (CNAs) and Restorative Aids employed by business operations during a representative 12-month period,
Respondent received gross revenues in excess of $100,000 and
the Employer at its 2309 Stafford Avenue, Scranton,
purchased and received at its location goods valued in excess of
PA facility. EXCLUDED: All other employees, $5,000 directly from points outside the Commonwealth of
guards, and supervisors as defined in the Act.” Pennsylvania. Accordingly, I find, as Respondent admits, that
it is an employer engaged in commerce within the meaning of
 MOUNTAIN VIEW CARE AND REHABILITATION CENTER, LLC 3

Section 2(2), (6) and (7) of the Act and a health care institution she obtained another written statement from him, which is un-
within the meaning of Section 2(14) of the Act. I also find, as dated and is written on a separate piece of paper; it sets forth
Respondent admits, that the Union is a labor organization with- the time of the union solicitation, that it took place in the kitch-
in the meaning of Section 2(5) of the Act. en, and that neither employee was on break at the time. Tr.
II. ALLEGED UNFAIR LABOR PRACTICES
142, 145-146, GC Exh. 13. Respondent’s highest ranking offi-
cial on site, Administrator Donna Molinaro, never spoke with
A. The Facts Levi about the matter, although she read both statements and
apparently directed that the second one be taken. Tr. 166,
Background and Ramos’s Union Activity 173,176, 158.
Respondent took over operation of the nursing home from Yaros testified that Levi came to her “visibly upset” because
the previous owner in March of 2018. There are some 180 he did not want to sign anything having to do with a union. Tr.
people employed by Respondent at the nursing home. On June 136. I do not fully credit Yaros’s testimony on this point. She
14, 2018, the Union was certified by the Board as the exclusive was, as I describe later, not generally a reliable witness. More-
bargaining representative of the following employees of Re- over, Levi did not testify in this proceeding and neither of his
spondent: written statements reflect the concern attributed to him by Ya-
ros. Indeed, his first one explains in some detail Ramos’s re-
Included: All full-time and regular part-time Certified Nurs-
marks about the value of union representation, which suggests
ing Assistants
there was not an immediate rejection of the matter by Levi.
(CNAs) and Restorative Aides employed by the [Respondent]
Even if it could be found, however, that some kind of complaint
at its 2309 was made, it is not clear what exactly the complaint was or
Stafford Avenue, Scranton, PA facility. whether it was encouraged in whole or in part by Yaros. It is
well settled that the Act allows employees, like Ramos, to “en-
Excluded: All other employees, guards, and supervisors as gage in persistent union solicitation even when it annoys or
defined in the Act.
disturbs the employees who are being solicited.” And an em-
The parties started negotiations in the fall of 2018 and have ployer’s invitation to employees to report instances of “harass-
been bargaining ever since. As of the date of this trial, the par- ment” by employees engaged in union activity is itself a viola-
ties had not reached a completed collective bargaining agree- tion of Section 8(a)(1) of the Act. Ryder Truck Rental, 341
ment. NLRB 761, 761 (2004), enf’d 401 F.3d. 815 (7th Cir. 2005).
The Respondent also employs a number of dietary aides who The following work day, Monday, March 4, Ramos was
are not part of the bargaining unit described above and are not asked to come in to work 30 minutes before the beginning of
represented. Those employees, who prepare food and serve it her normal shift and report to Yaros’s office. When she ar-
to residents, work in the Respondent’s kitchen and dining room. rived, she was met by Yaros and Administrator Donna Moli-
Among those dietary aides is Yolanda Ramos, who worked for naro. Molinaro asked whether Ramos had talked to fellow
Respondent and its predecessor from September 2016 to March employees about a union petition. Ramos at first denied that
5, 2019, when she was fired by Respondent. she had. Molinaro then said she would investigate the matter
In late February 2019, Ramos became interested in the Un- and check the work-place cameras. Molinaro also asked Ra-
ion after speaking with a CNA who was represented by the mos to submit a written statement about the matter. Ramos did
Union. As a result, she signed a petition authorizing the Union so, but then, within minutes, she admitted that her previous
to represent the signers for collective bargaining. Over the statement was untrue and that she had indeed asked someone to
course of two days, February 28 and March 1, she talked to sign a union petition. At that point, Molinaro asked why Ra-
fellow dietary aides in support of the Union, asking them to mos would lie about the matter. Ramos replied that she was
sign the petition as well. On Friday, March 1, 2019, in the told, if anyone from management asked her about her union
kitchen, she spoke to fellow dietary aide, Levi Kania, about activity, she should deny her involvement. Tr. 44. Yaros con-
signing the petition. Levi said he was not sure about signing it firmed that Ramos said during this meeting that “she was told
and that he wanted to talk first to his father. Levi’s father is not to say anything because she would get in trouble if she said
Eric Kania, a supervisor, at the time, of the dietary employees. she was doing it for union purposes.” Tr. 138; see also Tr. 148.
Eric was no longer employed by Respondent at the time of the Molinaro then asked who told Ramos to lie about her union
trial. activity and Ramos refused to answer the question.1
Respondent’s Reaction to Ramos’s Union Activity
1 The above is based on the credible testimony of Ramos, much of
Respondent became aware of the union solicitation between which is corroborated by the other witnesses in the meeting, Yaros and
Ramos and Levi Kania. Human Resources Director Linda Molinaro. To the extent that there were differences, Ramos’s testimony
Yaros talked to Levi and took a written statement from him the was the most credible, as I point out later in the credibility section of
same day. Levi’s statement, which is dated March 1, states that this decision. Her testimony also made the most sense considering the
Ramos asked him to sign a union petition and mentioned sever- context of the meeting and the documentary evidence associated with
al benefits for going with the Union. The statement also notes it. As shown below in the credibility section, I did not find Molinaro to
that both employees were “clocked in” at the time. GC Exh. be a reliable witness. She did, however, admit that she asked a question
to initiate the meeting although she was somewhat evasive in describ-
12. Later, Yaros asked Levi to clarify his first statement and ing it. There is some confusion as to who asked the last questions
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

A one-page document dated March 4, 2019 and in Ramos’s solicitation policy. Even though Molinaro had a copy of the
handwriting is in evidence as GC Exh. 5. It states in its first handbook containing the policy in her hands, she would not
paragraph, “I have asked a coworker if they would like to join a show the applicable no-solicitation policy to Ramos. At first
union on Friday, March 1st,” followed by Ramos’s signature. Molinaro could not find the no-solicitation policy in the hand-
In the second paragraph, further down the same page, it states, book, which is 70 pages in length and contains many other
“I recently told Director and Human Resources that I didn’t rules and policies. Then, Molinaro said she would have to ask
because someone told me if I was asked to completely deny it,” Respondent’s attorney if Ramos could see the no-solicitation
also followed by Ramos’s signature. policy. Ramos never was shown the no-solicitation policy at
At the March 4 meeting, Ramos was suspended. She was is- this meeting. Nor has she ever been shown the no-solicitation
sued a form notice of disciplinary action memorializing her policy and did not even know that Respondent had such a poli-
suspension that stated she was “suspended per Administrator cy. Tr. 47-48.3
pending the investigation of the ‘union’ petition.” No other Respondent’s No-Solicitation Policy in Writing and in Practice
reason was given on the notice. Nor was any other reason giv-
At the end of July or the beginning of August 2018, all of
en orally for the suspension during the meeting by either of the
management representatives. Tr. 46, 159-160. Ramos signed Respondent’s employees were presented with Respondent’s 70-
the notice as did both Yaros and Molinaro. GC Exh. 6. page handbook, which contained, among many other rules, the
The next day, March 5, Ramos was asked to come into the two-page no-solicitation policy at pages 42 and 43. The effec-
facility for a meeting. At the March 5 meeting, which again tive date of the handbook was August 1, 2018. Tr. 55, 131-133.
included Molinaro and Yaros, Ramos was told by Molinaro that R. Exhs. 1-3.4 But there is no evidence that the two-page no-
she was being terminated for violating Respondent’s no- solicitation policy was highlighted or separately brought to the
solicitation policy. She was presented with the same form no- attention of employees, contrary to a specific acknowledgement
that the employees understood Respondent’s non-
tice of disciplinary action she was presented the day before.
This time, the notice set forth her termination. In the section discrimination policy (see R. Exh. 3). There is uncontradicted
titled “nature of violation,” a handwritten notation, “solicitation testimony that, despite management having held many meet-
policy” appeared next to the circled word “other” on the form. ings with employees about work-related rules, it never had
The violation was described as follows in a handwritten nota- meetings about the no-solicitation policy, including any excep-
tion: tions or any required permission. Nor is there evidence that
Respondent sent memos to employees notifying them specifi-
On 3/1/19, after clocking in, you solicited a fellow employee cally about or emphasizing the no-solicitation policy. Tr. 48-
who was also on the clock in a work area. In a statement you 49, 61, 96-97. It is also conceded that Ramos’s discharge was
provided on 3/4/19, you admitted this violation. Per Mt. the only discipline that Respondent ever issued for violation of
View’s Progressive Discipline Policy, a violation of mt. the no-solicitation policy. There were no documents submitted
View’s Solicitation Policy is a Group IV violation, which by Respondent in response to a General Counsel subpoena for
alone results in termination for a first offense. Additionally, documents that showed such discipline. Tr. 126-127, GC Exh.
you have a prior discipline from August of 2018 which also 11.
applies, placing you well over the threshold for The evidence shows that Respondent permitted much open
termination. GC Exh. 7. 2 work-time solicitation to sell and actual sales by employees
At the termination meeting, Ramos asked to see the no- without any sort of discipline. Four employees, including Ra-
mos, testified in detail that such solicitations and sales were
about why Ramos would lie about engaging in union activity and who done openly by employees with the knowledge of, and some-
asked Ramos to lie about it, but Molinaro admitted that it was she who times the participation by, supervisors on work time and in
asked these questions. Molinaro’s testimony in this respect was also work areas after the Respondent took over the facility in March
evasive because she seemed to go out of her way to avoid any reference 2018, including after the distribution of the handbook in August
to the union, but it is obvious from the context that these inquiries were, of 2018. No permission was sought or given for these solicita-
like the first question, about Ramos’s union solicitation. See Tr. 159, tions, some of which were advertised by posted notices. Cash
168-169. Significantly, in her testimony about these questions and was exchanged, transactions documented, and, in one case,
answers, Molinaro did not mention, as Yaros testified, that Ramos
explained, in the meeting, that she lied about her union activity, be-
tables set up for the sale of items. No one was disciplined for
cause otherwise she would get in “trouble.” this activity and the employees testified that they were unaware
2 The no-solicitation policy set forth at pages 42-43 of the Respond- of any rule against this activity or solicitation in general. The
ent’s handbook bans, among other things, “[s]olicitation by employees items sold and solicited included candy for the school projects
in non-resident care areas while on working time.” The policy also
states that “[c]ollections for charitable purposes shall be considered 3 The above is based on the credible uncontradicted testimony of

solicitations for the purposes of this policy, unless approved by the Ramos. Neither Yaros nor Molinaro denied that Ramos asked to see
Administrator.” The policy further states that employees who partici- the no-solicitation policy or the rest of Ramos’s testimony about not
pate or assist in solicitation that violates the policy are subject to disci- being shown the policy.
plinary action up to and including termination. The Respondent’s 4 The handbook may have been distributed to different employees at

handbook states in another section, at pages 63-65, that violation of the different times. The record mentions several dates, including one refer-
no-solicitation policy permits, but does not require, a discharge for a ence to August 8 (Tr. 178). For reasons of clarity, however, I will
first offense. accept as its distribution date its effective date, August 1, 2018.
 MOUNTAIN VIEW CARE AND REHABILITATION CENTER, LLC 5

and trips of children of employees, girl scout cookies, raffle In contrast, I found Yaros and Molinaro to be unreliable wit-
tickets, and the sale and purchase of purses, scarves and jewelry nesses. Yarros in particular reflected a lack of candor in her
items from a business entity called Sophisticated Lady, which demeanor. I have earlier rejected her testimony about the al-
remained at the facility for “[a] few hours” (Tr. 99). See Tr. leged concern Levi reported to her about the union solicitation.
49-53, 66-73, 91-92, 95-105, 109-112,115-118.5 She often could not remember dates and times, the locations of
I reject testimony from Molinaro, and to a lesser extent from meetings, or what happened in what meeting. For example, she
Yaros, that all the work-time solicitations tolerated by Re- testified that the suspension meeting was in Molinaro’s office,
spondent were treated as charitable contributions and that Mo- but both Ramos and Molinaro testified that the meeting was in
linaro approved them all, as permitted by an exception to the her office. She also seemed to suggest that Ramos wrote some
Respondent’s no-solicitation policy. As indicated below, I of her statement in the second meeting, which is contrary to the
found both generally unreliable witnesses. Their testimony on testimony of both Ramos and Molinaro and contrary to uncon-
this point is contrary the more credible and mutually corrobo- tested fact and common sense. Most importantly, Yaros sug-
rated testimony of employee witnesses on the issue. Moli- gested that violation of the no-solicitation policy was men-
naro’s testimony also amounted to a conclusory and general tioned in the suspension meeting. Tr. 138, 151-152. On this
catch-all answer without any supporting detail. There was no point, she seemed to have been prodded by a leading question
documentary support for what constituted a charitable contribu- on the subject earlier put to her by Respondent’s counsel, which
tion or for Molinaro’s asserted approvals. Moreover, in view of resulted in an objection that was sustained. Tr. 136. But it is
the extensive examples of tolerated work-time solicitations and clear from Yaros’s pre-trial affidavit that that policy was not
sales described above, one of which lasted a few hours, it is mentioned at all in the suspension meeting. Tr. 153-155, G.C.
hard to square Molinaro’s testimony in this respect with her Exh. 14. Indeed, Molinaro conceded that “there was no men-
other testimony that she was concerned only with work-time tion of the solicitation policy” at that meeting. Tr. 159.
solicitations and even conversations that were “deterring [em- Molinaro was also not a reliable witness. I have earlier re-
ployees] from their job duties.” Tr. 171. 6 jected her testimony about the tolerated work-time solicitations.
In any event, as I point out in the analysis section of this de- Significantly, Molinaro’s testimony about her first question to
cision, well settled Board law does not permit employers to Ramos in the suspension meeting was somewhat of a circumlo-
discriminate in their treatment of the solicitations, as described cution to avoid mentioning the word “union.” Here is her tes-
above, and to discipline only union solicitation. This is true timony: “I just said that an employee had some concerns that
whether the employer considers them charitable contributions you had approached them while they were working and asked
or not or whether they are approved by management or not. you to sign a petition. I didn’t talk about what the petition was
Credibility or what he claimed it was. That’s all I had asked her.” Tr. 159.
But Molinaro signed the suspension notice, which specifically
I found Ramos to be an entirely credible witness, whose tes-
stated that Ramos was being suspended pending an investiga-
timony was consistent with the context of the entire story of her tion about the “union” petition. In addition, Molinaro was
activity and Respondent’s treatment of that activity. She exhib- aware prior to the meeting of Levi’s first written statement,
ited complete candor and a lack of guile. Her testimony was which clearly stated that the solicitation by Ramos was a union
direct and detailed and survived strong cross-examination. Her solicitation. Moreover, Ramos’s two statements were clearly
testimony about the meetings with Yaros and Molinaro was framed in the context of union solicitation. In these circum-
often consistent with their testimony, and, in one particular stances, Ramos’s testimony that union solicitation was a specif-
case—that involving her request for a copy of the no- ic part of Molinaro’s admitted first question is far more credible
solicitation policy at the termination meeting, was uncontra-
than what I considered Molinaro’s evasive testimony on the
dicted. Moreover, her testimony about other work-time solici- point. In addition, as indicated above at footnote 1, I also
tations tolerated by Respondent was corroborated by other em- viewed Molinaro’s testimony about her last questions to Ra-
ployee witnesses. mos—why she lied about not engaging in union solicitation and
5 Yaros confirmed that, during her entire 25-year tenure in the hu-
who told her to lie—as evasive.
Not only was Molinaro evasive in some of her testimony, but
man relations department at the facility, including under the former
owner, such solicitations took place without any discipline. Tr. 28. she also embellished her testimony beyond what would be ex-
6 Respondent’s position that the tolerated work-time solicitations pected from a credible witness. She seemed to be intent on
described in this record were considered approved charitable contribu- supporting Respondent’s litigation theory. For example, she
tions fails even apart from the testimonial evidence. Its no-solicitation went out of her way to add an additional element to Ramos’s
policy makes clear that “collections for charitable contributions” are alleged dereliction—the harm Ramos’s brief union solicitation
considered solicitations unless they are approved by the Administrator. in the kitchen caused Respondent, particularly threats to “resi-
But, in the absence of documentary evidence defining the term, the dent safety” or “patient safety.” Tr. 166-167, 170. Molinaro’s
examples of tolerated work-time solicitations described in this record
testimony about resident safety concerns was unconvincing and
were not collections for charitable contributions as those words are
ordinarily understood. The solicitations and sales involved transactions she ultimately admitted that there were no connections to pa-
where cash was either promised or exchanged for items passing from tient safety in Ramos’s union solicitation. Tr. 171-173. Moli-
seller to buyer. These were commercial transactions. Even if part of naro also conceded that all kinds of conversations go on during
the proceeds went to a charity that does not bring them into the realm of work time, which do not concern her unless they interfere with
collections for charitable contributions. work. Tr. 171. But she never mentioned work-time interfer-
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

ence with work in the suspension meeting. And she never spoke Unit employee Danielle Albano described a similar change
to Levi or anyone else in the kitchen about whether the union and deficiency in her time-off hours. She also brought her
solicitation interfered with work even after the suspension complaints about the changes to the attention of Yaros, who
meeting when she was supposedly engaged in an investigation told Albano, as she had told Young, that there was a glitch in
of the Ramos union solicitation. Moreover, Molinaro initially the payroll system and that “everything would be taken care
testified that she was concerned about Ramos’s alleged lying of.” Tr. 105-106. But, according to Albano, nothing was taken
(Tr. 160), but she later admitted that, in her view, that was not care of, despite repeated complaints to Yaros, who never told
important because Ramos corrected the matter within minutes. Albano that she was not “getting her hours back.” Tr. 106-107.
Tr. 161. I also found unconvincing Molinaro’s attempt to The unit employees were never told that the PTO policy had
blame Yaros for adding a 6-month old verbal unsatisfactory changed even in bargaining after negotiations began in October
work warning to Ramos as a reason for the termination in the of 2018. Tr. 108. Nor was the Union notified of such a
termination notice, even though past disciplines were not nec- change. According to the Union’s chief negotiator, Danie Tar-
essary to support the discharge. Tr. 167-168. Yaros denied row, she first learned from unit employees, in January of 2019,
that she added that language. Tr. 150. Molinaro was, after all, that the PTO balances of employees had disappeared from their
the top Respondent official involved in the discharge. She pay stubs and that they were told by Respondent that they did
presumably made the termination decision and is ultimately not have any. Tr. 121-122. Before the Union found out about
responsible for the decision, as well as the termination notice the changes from the employees, Respondent never notified it
and what it contains. Molinaro’s unreliability as a witness of the changes in the PTO policy, even though, in bargaining,
leads me to conclude that I cannot rely on her testimony on any Respondent submitted a PTO policy proposal of its own, sup-
significant issue in this case, particularly with respect to the posedly the one in the handbook, although that is not clear on
alleged reason for the termination of Ramos. this record. Tr. 123. Tarrow also testified that, about a month
The Change in Respondent’s Paid Time-Off Policy before the start of negotiations, she received a copy of the 70-
page handbook from Respondent in response to a Union request
Part of the case deals with a change in paid time-off (PTO) for information. Tr. 124.
policy that applied to unit employees represented by the Union. The above is based on uncontradicted testimony and support-
The predecessor employer had a PTO policy that was continued ing documentary evidence that Respondent does not dispute.
under Respondent after it took over the nursing home in March Although the extent and exact dimensions of the changes in the
2018. That policy included 4 different types of paid time off: PTO policy are not altogether clear on this record, it is clear
vacations, personal time, paid holidays, and personal illness. that there were significant changes in the policy, all to the det-
They were combined to permit employees to bank unused time
riment of unit employees. Respondent also stipulated that the
off for future use. Employees were also permitted to purchase payroll documents supporting the changes for all unit employ-
back 40 hours at a time of accrued time-off totals on a quarterly ees would show the same changes as reflected in the payroll
basis. They were also permitted to cash out their totals at documents of employee Young that were received in evidence.
100%. Running totals were provided to employees for each Tr. 128-129.
type of time off periodically by email. Tr. 73-79, Jt. Exh. 1.
On or about August 1, 2018, Respondent distributed its B. Discussion and Analysis
handbook of applicable rules to all employees. The handbook
The Questioning of Employee Ramos
included a two-page description of it paid time-off policy; it
was contained at pages 26 to 29 of the 70-page handbook. Jt. Questioning employees about their union activities or those
Exh. 2. That policy was different than the existing policy de- of others has long been found to be unlawful “because of its
scribed above. But there is no evidence that employees or the natural tendency to instill in the minds of employees fear of
Union were specifically notified that the policy had changed. discrimination on the basis of the information the employer has
Some of the changes in the PTO policy included an inability obtained.” NLRB v. West Coast Casket Co., 205 F.2d 902, 904
to carry over accrued time off, thereby losing it if it was not (9th Cir. 1953). In determining whether an employer’s ques-
used, and a difference in the cash-out feature to 50% instead of tioning of employees about union activity violates Section
100%. These changes were described in detail by unit employ- 8(a)(1) of the Act, the Board considers whether, in all the cir-
ee Cynthia Young. Tr. 77, 78. Young described the changes in cumstances, the questioning would reasonably tend to restrain,
her own situation at Tr. 79-82, 84-88 and 92-93, and submitted coerce or interfere with the Section 7 rights of employees.
supporting documents in the form of payroll information that Hard Hat Services, LLC, 366 NLRB No. 106, slip op. 6-7
were received in evidence as GC Exhs. 9 and 10. (2018), and cases there cited, including Bourne v. NLRB, 332
Since the changes were to her detriment, Young went to F.2d 47, 48 (2nd Cir. 1964), which lists the following relevant
Human Resources Director Yaros to complain about the chang- factors to be considered in determining whether such question-
es in the early part of 2019. Yaros told her that there was a ing is coercive:
“glitch” in the payroll system and that the matter would be (1) The background, i.e., is there a history of employer hostil-
“straightened out.” Tr. 89. Later, Young had occasion to again ity and discrimination?
complain about a change the PTO policy to her detriment. On (2) The nature of the information sought, e.g. did the interro-
that occasion, Yaros made a correction to give Young credit for gation appear to be seeking information on which to base tak-
her deficiency in time-off hours. Tr. 89-90. ing action against individual employees?
 MOUNTAIN VIEW CARE AND REHABILITATION CENTER, LLC 7

(3) The identity of the questioner, i.e. how high was he in the Other circumstances confirm the coercive nature of the ques-
company hierarchy? tions. The setting of the questioning was a meeting in the offic-
(4) Place and method of interrogation, e.g. was employee es of the Human Resources Director and the questioning was
called from work to the boss’s office? Was there an atmos- done by Respondent’s highest ranking official, the Administra-
phere of “unnatural formality?” tor. The purpose of the meeting was to inquire into what was
(5) Truthfulness of the reply. described by Respondent, in writing, as an incident of “union”
solicitation. Moreover, as shown above, Ramos gave one un-
While the Bourne factors are not to be mechanically applied,
truthful response and declined to answer another question. The
the last factor mentioned above—the questioned employee’s
understandable attempt to conceal union activity—has been case law cited above recognizes that such responses are not
cited repeatedly in support of a finding of coercive interroga- only normal because of employee fears that a truthful response
tion. See Hard Hat Services, cited above; Bristol Industrial might reveal information useful for subsequent retaliation, but
also recognizes that an untruthful response or a non-response is
Corp., 366 NLRB No. 101, slip op. 2 (2018); Gunderson Rail
itself an indication of coercion. Nor was the questioning lim-
Services, LLC, 364 NLRB No. 30, slip op. 36 (2016); Portola
ited or isolated; there were 3 different probing questions in the
Packaging, Inc., 361 NLRB 1316, 1337-1338 (2014); Camaco
Lorain Mfg. Plant, 356 NLRB 1182, 1182-1183 (2011); and meeting. Indeed, the meeting resulted in the discriminatory
suspension of Ramos, as shown below, an independent unfair
Sproule Construction Co., 350 NLRB 774, 774 fn. 2 (2007).
An employee’s refusal to answer a question about the subject is labor practice. Accordingly, I find that, in all the circumstanc-
likewise an indicator of coercion. See Grill Concepts Services, es, the questioning of Ramos about her union activities and
those of others was coercive and violative of Section 8(a)(1) of
Inc., 364 NLRB No 36, slip op. 16 (2016); and Chipotle Ser-
vices LLC, 363 NLRB No. 37, slip op. 11-12 (2015). the Act.
Applying the above principles to the facts set forth in my The Suspension and Discharge of Employee Ramos
credited findings, I find that three aspects of the questioning of It is unlawful for an employer to punish an employee for en-
employee Ramos in the suspension meeting were coercive. gaging in union activity. Section 8(a)(3) of the Act specifically
Respondent was certainly entitled to get Ramos’s side of the prohibits such discrimination that tends to discourage union
story in a meeting that focused only on whether Ramos misused activity. Radio Officers v. NLRB, 347 U.S. 17, 42-43 (1954).
work time or violated the facially valid no-solicitation policy, Although a discriminatory motive is usually part of the proof of
although the inquiry had to be done carefully to avoid sugges- a violation in these cases, there is some conduct that carries
tions or implications of discriminatory reprisals. But neither with it “unavoidable consequences which the employer not
the subject of the no-solicitation policy nor the notion that em- only foresaw but which he must have intended” and thus bears
ployees should not be engaged in non-work conversations or “its own indicia of intent.” In those cases, the employer is re-
activity on work time was ever raised during the suspension quired to prove that the conduct is something different than
meeting. Instead, Molinaro opened the meeting by asking Ra- what it appears on its face. NLRB v. Great Dane Trailers, 388
mos whether she had asked an employee to sign a union peti- U.S. 26, 33-34 (1967), citing and discussing NLRB v. Erie Re-
tion. Understandably, Ramos answered the question untruthful- sistor Corp., 373 U.S. 221 (1963), where the Court found un-
ly fearing that Respondent would not like a truthful answer, lawful the grant of super-seniority for non-strikers. A docu-
which, of course, when eventually given, resulted in her termi- ment that on its face admittedly penalizes employees for engag-
nation. Indeed, Ramos testified that she was “afraid of retalia- ing in union activity surely falls within this category of viola-
tion and getting fired.” Tr. 60. When Ramos recanted and tions.
admitted she had indeed engaged in union solicitation, Moli- Where a lawful reason is offered in support of an employer’s
naro asked why she would lie about the matter. Ramos replied adverse employment action alleged to be unlawful, an inquiry
that she was told, if she was asked about union activity, she into motive is necessary and the Board applies the mixed mo-
should not say anything about it. Yaros’s version of Ramos’s tive analysis set forth in Wright Line, 251 NLRB 1083 (1980),
reply is more realistically ominous—Ramos was told she would enf’d on other grounds 662 F.2d 899 (1st Cir. 1981), cert. de-
get in “trouble” if she replied truthfully. Then Molinaro asked nied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Ramos who told her to conceal her union activity. Because that Management Corp., 462 U.S. 393 (1983). Under Wright Line,
answer might have implicated another employee, Ramos under- the General Counsel must satisfy an initial burden of showing
standably refused to answer that question. The questions by a preponderance of the evidence that the employee’s pro-
whether Ramos engaged in union solicitation, why she would tected or union activity was a motivating factor in a respond-
lie about the union solicitation and who asked her to lie about ent’s adverse action. If the General Counsel meets that initial
her union solicitation all went beyond the legitimate bounds of burden, the burden shifts to the respondent to show that it
a proper inquiry about non-work work-time activity. Those would have taken the same action even absent the employee’s
questions were thus coercive. 7
lie related solely to one’s union affiliation or unionizing intentions” is
7 Respondent turns the coercive questioning on its head by calling not a subject that warrants employer probing where, as here, that sub-
Ramos’s initial response—an attempt to conceal her union activity—a ject is not a proper inquiry in the circumstances. Hartman Brothers v.
lie. But calling her response a lie does not diminish the coercive effect NLRB, 280 F.3d 1110, 1113 (7th Cir. 2002) (lying about union affilia-
of questioning that results in an understandable concealment of activity tion in an employment interview not germane to a legitimate inquiry
that might well result in retaliation. As Judge Posner has observed, “a into qualifications for employment).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

protected activity. The respondent does not meet its burden interrogation, the General Counsel has easily established the
merely by showing that it had a legitimate reason for its action; initial burden of proving improper motivation for the discharge.
it must persuasively demonstrate that it would have taken the And, as shown below, the Respondent has not rebutted that
same action in the absence of the protected conduct. And if the initial showing by showing that it would have discharged Ra-
respondent’s proffered reasons are pretextual—either false or mos in the absence of her union activity.
not actually relied on—the respondent fails by definition to With respect to Respondent’s assertion that it discharged
meet its burden of showing it would have taken the action for Ramos for violating its no-solicitation policy, it is settled law
those reasons absent the protected activity. See Pro-Spec Paint- that rules prohibiting solicitation on working time are presump-
ing, Inc., 339 NLRB 946, 949 (2003); and BHC Northwest tively lawful, but that presumption may be rebutted by a show-
Psychiatric Hospital, 365 NLRB No. 79, slip op. 6 (2017). ing that the employer permitted something more than isolated
A showing of pretext also supports the initial showing of an- non-union solicitations during work time and enforced its rule
imus and discrimination. See Wright Line, supra, 251 NLRB at only against union solicitation. Thus, imposing discipline only
1088 n.12, citing Shattuck Denn Mining Corp. v. NLRB, 362 against an employee for union solicitation where there has been
F.2d 466, 470 (9th Cir. 1966) (where a respondent’s reasons are disparate application of a valid rule is a violation of Section
false, it can be inferred “that the [real] motive is one that the 8(a)(3) and (1) of the Act. Verizon Wireless, 349 NLRB 640,
[respondent] desires to conceal—an unlawful motive—at least 642 (2007). See also Hammary Mfg. Corp., 265 NLRB 57
where . . . the surrounding facts tend to reinforce that infer- (1982); W.D Mechanical Manor Contractors, 357 NLRB 1526,
ence.”). Moreover, a trier of fact may not only reject a wit- 1526 n. 1 (2011); and Wal-Mart Stores, 350 NLRB 879, 881
ness’s testimony about his or her reasons for an adverse action, (2007). The disparate treatment in Verizon Wireless was pun-
but also find that the truth is the opposite of that testimony. ishing union solicitation while tolerating the work-time solicita-
Pratt (Corrugated Logistics), LLC, 360 NLRB 304, 314 (2014), tion and sale of items such as candy, meals and Girl Scout
citing NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). cookies. 349 NLRB at 641. With respect to tolerating similar
Applying the above principles, I find that Respondent dis- sales and solicitations while punishing union solicitation, see
criminatorily suspended employee Ramos for union solicitation also SNE Enterprises, Inc., 347 NLRB 472, 473-474 (2006);
and thereafter discharged her for the same reason. and Our Way, Inc., 268 NLRB 394, 394-395, 402, 411 (1983).
It is clear that the suspension of Ramos on March 4, 2019, Turning to the asserted violation of the no-solicitation policy
which was accompanied by the unlawful interrogation de- for the discharge of Ramos, it is noteworthy, as I have men-
scribed above, was itself discriminatory. The Respondent’s tioned, that the suspension that immediately preceded her dis-
own notice stated that Ramos was being suspended for her charge did not mention violation of the no-solicitation policy.
“union” solicitation. No other reason was given for her suspen- It appears that that reason was dredged up during the post-
sion on the notice, even though there was an option for giving suspension investigation, which consisted only of an internal
other reasons on the form notice. And no other reason was deliberation about facts already known and considered in the
offered orally by either of the management representatives at unlawful suspension. The investigation did not address any
the meeting they conducted during which Ramos was suspend- non-discriminatory concern for misuse of work-time, which
ed. Significantly, the alleged violation of Respondent’s no- would be a legitimate reason for the no-solicitation policy’s ban
solicitation rule that was mentioned for the first time in the on work time solicitation. Molinaro did not inquire of Levi or
subsequent termination meeting was not an issue raised or dis- any other dietary aide or even a supervisor about whether Ra-
cussed in the suspension meeting. Since the admitted unlawful mos’s union solicitation caused problems in “resident safety”, a
reason was the only reason for the action taken, there is no concern she specifically expressed about the union solicitation.
mixed motive associated with the suspension and no occasion Nor did she investigate how much time away from work the
to engage in a Wright Line analysis. Accordingly, I find that union solicitation consumed, even though she conceded that
Respondent’s suspension of Ramos constituted a violation of employees could engage in whatever conversations on work
Section 8(a)(3) and (1) of the Act.8 time they wanted, so long as they are “not deterring from their
Moreover, the discriminatory suspension colored Respond- job duties.” Tr. 171. The investigation apparently was ad-
ent’s decision made the next work day—to discharge Respond- dressed to finding some reason to terminate Ramos that did not
ent for the same act of union solicitation that resulted in her sound discriminatory, as did the suspension notice.
suspension. But, here, after a so-called investigation, Respond- I find that the asserted violation of the no-solicitation policy
ent added other reasons for her discharge, most notably a viola- was not the real reason for the discharge not only because it
tion of Respondent’s no-solicitation rule. Thus, consideration was an afterthought—not mentioned in the earlier suspension,
of the discharge case calls for a Wright Line analysis. Because but because the policy was discriminatorily applied to Ramos.
of the discriminatory suspension in the context of an unlawful Significantly, the suspension and discharge of Ramos constitut-
ed the only discipline of any employee for the violation of its
8 Respondent’s contention (R. Br. 9) that the General Counsel has no-solicitation policy. And it was applied only to discipline
failed to demonstrate union animus is absurd. Even apart from the someone for union solicitation. Moreover, the evidence shows
unlawful interrogation of Ramos, which Respondent did not even ad- a disparate enforcement of the policy because employees re-
dress in its brief, the suspension notice itself not only admits the anti- peatedly and openly engaged in other non-union solicitation on
union animus but also admits the causation for Respondent’s adverse
work time, including solicitation for the sale and the actual sale
action.
of candy, other items, including jewelry, scarves and purses,
 MOUNTAIN VIEW CARE AND REHABILITATION CENTER, LLC 9

and Girl Scout cookies—all without discipline. Thus, the as- See Tr. 123-124.
serted violation of the no-solicitation policy was a pretext and It is settled law that the Section 10(b) period begins only af-
cannot overcome the initial showing of discrimination in the ter a party has “clear and unequivocal notice of a violation.”
termination of Ramos. Rather use of this pretext strengthens Leach Corp., 312 NLRB 990, 991-992 (1993), enfd. 54 F.3d
the finding of discrimination. See St. Margaret Mercy 802 (D.C. Cir. 1995). It is also settled that a respondent urging
Healthcare Centers, 350 NLRB 203, 203-204 (2007). a Section 10(b) defense bears the burden of establishing that the
Accordingly, I find that the discharge of Ramos for engaging charging party had such notice more than 6 months before fil-
in union solicitation violated Section 8(a)(3) and (1) of the Act. ing the charge. Nursing Center of Vineland, 318 NLRB 337,
The Unilateral Changes 339 (1995). In that case, the Board also stated that a union
bargaining representative is not presumed to have constructive
It is well settled that an employer who makes substantial and knowledge of all changes in the wages and benefits of unit
material changes to existing terms and conditions of employ- employees whether or not employees expressly notified the
ment of represented employees without first notifying the union union of those changes. It further stated:
that represents them and giving it an opportunity to bargain
over the changes violates Section 8(a)(5) and (1) of the Act. The concept of constructive knowledge incorporates the no-
NLRB v. Katz, 369 U.S. 736 (1962). The changes in the com- tion of “due diligence,” i.e., a party is on notice not only of the
putation of paid time off for the employees in the unit repre- facts actually known to it but also facts that with “reasonable
sented by the Union are set forth in the factual statement. The diligence” it would necessarily discovered. Ibid.
changes obviously involved terms and conditions of employ- The Board continued by stating that there is no strict rule that
ment and Respondent does not deny that changes were made in imputes employee knowledge to a union bargaining agent.
the existing PTO policy and that the Union was not notified or Rather, “whether unit employees’ knowledge is imputed to
given an opportunity to bargain about the changes. Respond- their bargaining representative for purposes of determining
ent’s only defense to this part of the case is that the relevant when the 10(b) limitations period commences depends of the
complaint allegation should be dismissed because a charge was factual circumstances.” Ibid.
not filed within 6 months of the alleged change in violation of The Respondent has not met its burden of proving that the
Section 10(b) of the Act. Tr. 7-9. As shown below, Respond- Union had actual or constructive notice of the unilateral change
ent’s defense is without merit. Accordingly, Respondent’s more than 6 months prior to its filing of the relevant charge.
unilateral change violated Section 8(a)(5) and (1) of the Act.9 There is no evidence that Respondent ever notified the Union
Respondent’s Section 10(b) defense is based on its conten- of the unilateral change and certainly none until well within the
tion that the Union should have filed its unilateral change Section 10(b) period. Nor did the employees notify the Union
charge within 6 months of the distribution to unit employees of of the changes until January of 2019, again well within the
the handbook that set forth Respondent’s new policy on paid Section 10(b) period. The notion that distribution of the hand-
off time. Tr 82-83. The handbook was distributed to unit em- book to the employees on August 1, 2018, without more, was
ployees on August 1, 2018, but there is no evidence that the constructive notice to the Union is without merit. The employ-
employees were alerted to the PTO policy that appears over the ees themselves did not realize that the handbook even contained
course of two pages in the middle of the handbook or that the a change in the PTO policy, and they were not specifically
employees were told that that policy was an actual change to notified of such a change by Respondent. Indeed, there is evi-
existing PTO policy. The handbook was not provided to the dence that, when employees noticed the change in their
Union at that time; it was provided to the Union shortly before paycheck stubs—and that was well within the 6-month period,
bargaining began in October of 2018. But there was no specific they brought the matter to the attention of Human Resources
notification to the Union at that time of any change in the PTO Director Yaros, who told them that the change was a technical
policy. Nor is there any other evidence that the Union had “glitch” that would be resolved. It never was, but the employ-
actual knowledge of the change until January of 2019 when it ees were led to believe that the problem was not a substantive
learned from unit employees that they had found changes in one and that there was no change in policy. Thus, Respondent
their paid time off in their payroll information. The charge was actually concealed the actual changes, which would have tolled
filed shortly thereafter, on February 13, 2019, well within 6 the limitations period in any event. See Burgess Construction,
months of the Union’s actual notification and knowledge of the 227 NLRB 765, 766 (1977), enfd. 596 F.2d. 378 (9th Cir. 1979),
alleged violation. Respondent apparently contends that, since cert. denied 444 U.S. 940 (1979).
the handbook containing the PTO policy was distributed to the Respondent’s position would require a finding that the Union
employees on August 1, 2018, that distribution constituted had clear and unequivocal notice of the violation on August 1,
constructive knowledge of a change in policy attributed to the when the handbook was distributed to employees, notwith-
Union. According to Respondent, the Union should have filed standing that its own director of human resources was telling
its charge within 6 months of August 1, which would have been employees, well after that date, not to be concerned because
February 1, 2019, 12 days before the charge was actually filed. their loss of hours was only a payroll glitch that would be re-
solved. That does not make sense. In any event there certainly
9 Respondent did not raise a Section 10(b) defense in its answer, but
was no way for the Union—or even the employees—to know,
I am permitting it to, in effect, amend its answer to make that assertion
from what Yaros was telling employees, that there had been a
because it was done at the beginning of the hearing and there is no
prejudice to the General Counsel. change of benefits. The Union did not know for sure that there
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

was a change until it learned from employees what was hap- bargaining unit represented by the Union, shall rescind the
pened to their paid time off hours in their payroll data. That changes it made in its existing PTO policies and make the af-
occurred in January 2019. The Union then rather quickly filed fected employees whole for any losses they have suffered as a
the applicable charge, well within the Section 10(b) period. result as a result of the unilateral changes. The make whole
Accordingly, the charge in this case was timely filed and Re- remedy shall be computed in accordance with Ogle Protection
spondent’s Section 10(b) defense is rejected. Service, Inc., 183 NLRB 682 (1970), enfd 444 F.2d 502 (6th
CONCLUSIONS OF LAW Cir. 1971), with interest as prescribed above. Adverse tax con-
sequences or proper allocation of backpay, if any, are to be
1. By coercively interrogating an employee about union ac- handled as set forth above.
tivities, Respondent violated Section 8(a)(1) of the Act. On these findings of fact and conclusions of law, and on the
2. By discriminatorily suspending and thereafter discharging entire record, I issue the following recommended11
employee Yolanda Ramos because of her union activities,
Respondent violated Section 8(a)(3) and (1) of the Act. ORDER
3. By unilaterally changing its paid time-off (PTO) policy Respondent, Mountain View Care and Rehabilitation Center,
without first notifying the Union and giving it the opportunity LLC, its officers, agents, successors and assigns, shall
to bargain over the change, Respondent violated Section 8(a)(5) 1. Cease and desist from
and (1) of the Act. (a) Coercively interrogating employees about their union ac-
4. The above violations constitute unfair labor practices tivities or those of other employees.
within the meaning of the Act. (b) Suspending, discharging or otherwise disciplining em-
Remedy ployees because of their union activity.
(c) Unilaterally changing existing wages, hours or terms and
Since Respondent has engaged in certain unfair labor prac- conditions of employment, including the existing paid time-off
tices, it must be ordered to cease and desist from its unlawful policy, of employees represented by Retail, Wholesale, and
conduct and take certain affirmative action designed to effectu- Department Store Union in the appropriate bargaining unit
ate the policies of the Act, including the posting of an appropri- without first notifying the Union and offering it an opportunity
ate notice.10 to bargain over the changes.
Having unlawfully suspended and discharged Yolanda Ra- (d) In any like or related manner, interfering with, restrain-
mos, Respondent must offer her reinstatement to her former job ing, or coercing employees in the exercise of the rights guaran-
or, if that job no longer exits, to a substantially equivalent posi-
teed them by Section 7 of the Act.
tion without prejudice to her seniority of any other rights or 2. Take the following affirmative action necessary to effec-
privileges previously enjoyed. The Respondent shall also make tuate the policies of the Act:
Ramos whole for any loss of earnings and other benefits she (a) Within 14 days from the date of this order, offer Yolanda
may have suffered as a result of the unlawful discrimination Ramos reinstatement to her former job or, if that job no longer
against her. The make whole remedy shall be computed in exists, to a substantially equivalent position, without prejudice
accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), to her seniority or any other rights and privileges previously
plus interest as prescribed in New Horizons, 283 NLRB 1173 enjoyed.
(1987), compounded daily as prescribed in Kentucky River
(b) Make Yolanda Ramos whole for any loss of earnings
Medical Center, 356 NLRB No. 8 (2010). In accordance with and other benefits suffered as a result of the discrimination
King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in pertinent against her, in the manner set forth in the remedy section of
part 859 F.3d 23 (D.C. Cir. 2017), Respondent shall compen- this decision.
sate Ramos for search-for-work and interim employment ex- (c) Compensate Yolanda Ramos for the adverse tax conse-
penses regardless of whether those expenses exceed her interim quences, if any, of receiving a lump-sum backpay award, and
earnings. Respondent shall also compensate Ramos for the file with the Regional Director for Region 4, within 21 days of
adverse tax consequences, if any, of receiving a lump sum back the date the amount of backpay is fixed, either by agreement or
pay award and file a report allocating backpay to appropriate
Board order, a report allocating the backpay award to the ap-
years in accordance with AdvoServ of New Jersey, Inc., 363 propriate calendar years.
NLRB No. 143 (2016). (d) Within 14 days from the date of this order, remove from
Respondent, having unilaterally and unlawfully changed the its files any reference to the unlawful suspension and discharge
terms and conditions of employment of unit employees in the of Yolanda Ramos, and, within 3 days thereafter, notify her in
10 The General Counsel requests that the cease and desist order in-
writing that is has been done and that neither of the unlawful
actions will be used against her in any way.
clude specific language prohibiting Respondent from discriminatorily
applying its no-solicitation rule. G.C. Br. 31. But, although the matter
(e) Restore the PTO policy as it existed before the unlawful
was litigated as part of the Ramos discrimination matter, discriminatory unilateral change and make whole any unit employees adverse-
application of the rule was not specifically alleged as a separate unfair
11 If no exceptions are filed, as provided by Sec. 102.46 of the
labor practice. Thus, I will not include that specific language in the
cease and desist order. General Counsel also suggests (G.C. Br. 34-35) Board’s Rules and Regulations, the findings, conclusions, and recom-
that the notice be read to assembled employees. I do not believe that mended order shall, as provided in Sec. 102.48 of the Rules, be adopted
the unfair labor practices in this case, although serious, warrant this by the Board and all objections to them shall be waived for all purpos-
additional remedy. es.
 MOUNTAIN VIEW CARE AND REHABILITATION CENTER, LLC 11

ly affected by or who suffered losses due to the unlawful uni- Act together with other employees for your benefit and
lateral changes to the PTO policy, including restoration of ac- protection
crued leave balances, made by Respondent in accordance with Choose not to engage in any of these protected activi-
the remedy section of this decision. ties.
(f) Preserve and, within 14 days of a request, or such addi-
WE WILL NOT interrogate or question employees about their
tional time as the Regional Director may allow for good cause
union activities.
shown, provide at a reasonable place designated by the Board
WE WILL NOT suspend, discharge or otherwise discipline em-
or its agents, all payroll records, social security payment
ployees because of their union activities.
records, timecards, personnel records and reports, and all WE WILL NOT unilaterally change existing wages, hours or
other records, including an electronic copy of such records terms and conditions of employment of employees in the
if stored in electronic form, necessary to analyze the amount bargaining unit represented by the Retail, Wholesale, and De-
of back pay due under the terms of this Order.
partment Store Union without giving it prior notice and an op-
(g) Within 14 days after service by the Region, post, at its
portunity to bargain over the change.
Scranton, Pennsylvania facility, copies of the attached notice
WE WILL NOT, in any like or related manner, interfere with,
marked “Appendix.”12 Copies of the notice, on forms provid- restrain, or coerce employees in the exercise of the rights
ed by the Regional Director for Region 4, after being signed by
listed above.
the Respondent’s authorized representative, shall be posted by WE WILL offer Y o l a n d a R a m o s i m m e d i a t e a n d f u l l
the Respondent and maintained for 60 consecutive days in r e instatement to her former job, or if that job no longer ex-
conspicuous places, including all places where notices to
ists, to a substantially equivalent position, without prejudice
employees are customarily posted. In addition to physical to her seniority or any other rights and privileges previously
posting of paper notices, the notices shall be distributed elec-
enjoyed.
tronically, such as email, posting on an intranet or an internet
WE WILL make Yolanda Ramos whole, with interest, for
site, and/or other electronic means, if the Respondent custom-
any loss of earnings and other benefits suffered as a result of
arily communicates with employees by such means. Reason-
our discrimination against her, less net interim earnings, plus
able steps shall be taken by the Respondent to ensure that
reasonable search-for-work and interim employment expenses.
the notices are not altered, defaced, or covered by any other
WE WILL remove from our files any references to the unlaw-
material. In the event that, during the pendency of these ful actions taken against Yolanda Ramos, notify her that this has
proceedings, the Respondent has gone out of business or been done, and those unlawful actions will not be used against
closed the facility involved in these proceedings, the Re-
her in any way.
spondent shall duplicate and mail, at its own expense, a
WE WILL compensate Yolanda Ramos for the adverse tax
copy of the notice to all current employees and former em-
consequences, if any, of receiving a lump-sum backpay award,
ployees employed by the Respondent at any time since March
and file with the Regional Director for Region 4, within 21
4, 2019.
days of the date the amount of backpay is fixed, either by
(h) Within 21 days after service by the Region, file with the
agreement or Board order, a report allocating the backpay
Regional Director a sworn certification of a responsible offi- award to the appropriate calendar years.
cial on a form provided by the Region attesting to the steps
WE WILL restore the paid time-off policy as it existed before
that the Respondent has taken to comply.
we unlawfully changed it and make whole, with interest, any
Dated at Washington, D.C., August 23, 2019.
employees who may have suffered losses by our unlawful
APPENDIX changes to that policy, including restoration of accrued leave
NOTICE TO EMPLOYEES balances.
POSTED BY ORDER OF THE MOUNTAIN VIEW CARE AND
NATIONAL LABOR RELATIONS BOARD REHABILITATION CENTER, LLC
An Agency of the United States Government The Administrative Law Judge’s decision can be found at
The National Labor Relations Board has found that we violated www.nlrb.gov/case/04-CA-235894 or by using the QR code
Federal labor law and has ordered us to post and obey this no- below. Alternatively, you can obtain a copy of the decision
tice. from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
FEDERAL LAW GIVES YOU THE RIGHT TO (202) 273-1940.
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half

12 If this Order is enforced by a judgment of a United States court

of appeals, the words in the notice reading “Posted by Order of the

National Labor Relations Board” shall read “Posted pursuant to a
Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.”
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD