MEK ARDEN, LLC d/b/a Arden Post Acute Rehab,

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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.

Mek Arden, LLC d/b/a Arden Post Acute Rehab and Service Employees International Union, United Long Term Care Workers. Cases 20–CA– 156352, 20–CA–156362, 20–CA–156378, 20–CA– 156408, 20–CA–157363, and 20–RC–154840

July 25, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On May 27, 2016, Administrative Law Judge Ariel L. Sotolongo issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party each filed an answering brief. The General Counsel filed cross-exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings, findings,¹ and conclusions only to the extent consistent with this Decision and Order, to amend the conclusions of law and remedy, and to adopt the judge’s recommended Order as modified and set forth in full below.²

¹ The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

There are no exceptions to the judge’s dismissal of the complaint allegations that the Respondent violated Sec. 8(a)(1) of the Act by requiring certified nursing assistants to post their break times on whiteboards, changing employees’ break schedules in the housing department, “floating” the work assignment of employee Camilla Holcomb on one day and cancelling her shift on another day, and engaging in surveillance of employees’ union or protected activity through the use of video cameras in the facility. There are also no exceptions to the judge’s dismissal of the complaint allegation that statements made by Jacinth Castellano and Ricki Collins created the impression that the Respondent was surveilling employees’ union activities, in violation of Sec. 8(a)(1), because the General Counsel failed to establish that Castellano and/or Collins were agents of the Respondent within the meaning of Sec. 2(13) of the Act.

² We shall amend the judge's conclusions of law and remedy in accordance with our findings herein, and modify the judge's recommended Order to conform to our findings and the Board's standard remedial language. We shall substitute a new notice to conform to the Order as modified.

Chairman Miscimarra agrees that the Respondent engaged in objectionable conduct that warrants setting aside the results of the election

We adopt, for the reasons stated by the judge, his findings that the Respondent violated Section 8(a)(1) of the Act by instructing employees not to visit other areas of the facility, directing employees not to wear union scrubs or logos, directing employees to wear attire associated with the Respondent’s campaign, creating the impression that the employees’ union or protected activities were under surveillance, and prohibiting the posting of union literature and removing such postings.³

held on July 24, 2015, in Case 20–RC–154840. In recommending that the election be set aside, the judge applied Dal-Tex Optical Co., 137 NLRB 1782 (1962), and Clark Equipment Co., 278 NLRB 498 (1986), which stand for the proposition that “[c]onduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election,” Dal-Tex, 137 NLRB at 1786, unless “it is virtually impossible to conclude that the misconduct could have affected the election results,” Clark Equipment, 278 NLRB at 505. Chairman Miscimarra applies Dal-Tex and Clark Equipment in the instant case as existing Board precedent, but he expresses no view on the soundness of the “virtually impossible” standard. See Intertape Polymer Corp., 360 NLRB No. 114, slip op. at 6 fn. 2 (2014) (Member Miscimarra, dissenting in part), enf. denied in part 801 F.3d 224 (4th Cir. 2015).

³ In affirming the judge’s finding that the Respondent violated Sec. 8(a)(1) by prohibiting the posting of union literature or removing union-related postings from its bulletin board, we note that Register Guard, 351 NLRB 1110 (2007), enfd. in part 571 F.3d 53 (D.C. Cir. 2009), states the applicable standard for determining whether an employer has violated the Act by discriminating in the use by employees of its equipment, including its bulletin boards. In Register Guard, the Board observed that “discrimination means the unequal treatment of equals,” 351 NLRB at 1117, and it clarified that “unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7–protected status.” Id. at 1118 (emphasis added). Here, the evidence shows that the Respondent treated employee bulletin-board postings of a similar character disparately based on their union or nonunion status: postings in support of the Union were removed from the bulletin board while postings in support of nonunion entities (e.g., advertising a fundraiser for a children’s school, selling Avon products, and selling cookies in support of the Girl Scouts) were allowed to remain. Indeed, the record shows that the only employee postings the Respondent removed from the bulletin board were union-related postings. Accordingly, we find that the Respondent violated Sec. 8(a)(1). Members Pearce and McFerran agree that a violation has been established under the standard adopted in Register Guard, supra, but they express no opinion on whether Register Guard was correctly decided.

For the reasons set forth in his separate opinion in William Beaumont Hospital, 363 NLRB No. 162, slip op. at 7–24 (2016) (Member Miscimarra, concurring in part and dissenting in part), Chairman Miscimarra disagrees with the “reasonably construe” prong of Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004), which the judge applied in this case to find unlawful the Respondent’s directives prohibiting employees from visiting areas of the facility outside their assigned work areas and from wearing union scrubs (SEIU-purple in color and bearing the union logo). He agrees, however, that the Respondent violated Sec. 8(a)(1) with regard to these directives on the basis—also relied on by the judge—that they were promulgated in response to and applied to restrict Sec. 7 activity. In addition, the prohibition against wearing union scrubs explicitly restricted Sec. 7 activity and was also unlawful on this basis.

365 NLRB No. 109

2

Contrary to the judge, however, we find that the Respondent violated Section 8(a)(1) by soliciting employee grievances and impliedly promising to remedy them.⁴

The Respondent operates a long-term care and rehabilitation facility in Sacramento, California. At some point in mid-June 2015, CNA Marlene Anderson complained to Interim Facility Administrator Mary Perez about the new interim director of nursing (DON), Shirin Ramsini. Around June 21, Perez relayed complaints raised by Anderson and some other employees to Markus Mettler, the chief operations officer of the Respondent’s corporate parent. On June 24, during one of Mettler’s infrequent visits to the Sacramento facility, he spoke with some of the employees. Mettler testified as follows:

I went around and spoke with some of the employees that I knew had concerns or issues. Specifically, I met with [Anderson] because she had the complaints that she shared with [Perez] regarding [Ramsini], so I want-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

⁴ Contrary to his colleagues, Chairman Miscimarra agrees with the judge’s conclusion that the Respondent did not solicit grievances and impliedly promise to remedy them when its chief operations officer, Markus Mettler, visited the Respondent’s Sacramento facility soon after the onset of the organizing campaign. The relevant events were as follows. Unsolicited, CNA Marlene Anderson complained to Interim Facility Administrator Mary Perez that Interim Director of Nursing Shirin Ramsini was intimidating the CNAs. Perez reported Anderson’s complaint to Mettler. During a previously scheduled visit to the facility, Mettler asked several employees outside of the proposed bargaining unit how things were going. One of these employees complained about Ramsini. Mettler then encountered Anderson and asked her how things were going as well. Anderson repeated her complaint about Ramsini, and Mettler said he would “look into” it.

On these facts, Chairman Miscimarra agrees with the judge that Mettler did not solicit grievances and impliedly promise to remedy them when he spoke with CNA Anderson. At the outset, the judge found that Mettler’s query about “how things were going”—something Mettler also asked employees outside the bargaining unit—was not a solicitation of grievances at all. Indeed, “how are things going?” is a familiar, commonplace greeting. But even if the greeting is deemed a solicitation, “[i]t is . . . well established that it is not the solicitation of grievances itself that violates the Act, but the employer's explicit or implicit promise to remedy the solicited grievances that impresses upon employees the notion that union representation is unnecessary.” Johnson Technology, Inc., 345 NLRB 762, 764 (2005) (emphasis added). Under the circumstances described above,...