Windsor Convalescent Center of North Long Beach

WINDSOR CONVALESCENT CENTER OF NORTH LONG BEACH 351 NLRB No. 44 975 S&F Market Street Healthcare LLC d/b/a Windsor Convalescent Center of North Long Beach and Service Employees International Union, Local 434B1 and Annie Moss and Tara Smith. Cases 21–CA–36422, 21–CA–36645, and 21–CA–36650 September 30, 2007 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW On January 31, 2006, Administrative Law Judge Lana H. Parke issued the attached decision. The General Counsel, the Union, and the Respondent each filed ex- ceptions and a supporting brief; the General Counsel and the Union each filed an answering brief to the Respon- dent’s exceptions, and the Respondent filed an answering brief to the exceptions of the General Counsel and the Union. The General Counsel filed a reply brief to the Respondent’s answering brief, and the Respondent filed reply briefs to the General Counsel’s and the Union’s answering briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings,2 findings,3 and conclusions only to the extent consistent with this Decision and Or- der.4 This case involves the Respondent’s takeover of Can- dlewood Care Center, a skilled nursing facility in North Long Beach, California, on July 1, 2004.5 The complaint alleged that the Respondent was a successor to Candle- wood Care Center and that it violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union, 1 We have amended the caption to reflect the disaffiliation of the Service Employees International Union from the AFL–CIO effective July 25, 2005. 2 The Respondent excepts that the judge erred in granting the Gen- eral Counsel’s and Charging Party’s motion to strike documents from the Respondent’s posthearing brief. The Respondent presented no argument in support of this exception. Thus, in accordance with Sec. 102.46(b)(2) of the Board’s Rules and Regulations, we find that the Respondent’s exception should be disregarded. See Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006). 3 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance 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. 4 We will amend the remedy and modify the judge’s recommended Order to reflect the additional violations we find herein, and in accor- dance with Planned Building Services, 347 NLRB 670 (2006). We will substitute a new notice in conformity with the Order as modified. 5 All dates are in 2004, unless otherwise stated. Service Employees International Union, Local 434B, after July 1. The Respondent denied that a bargaining obligation attached on July 1, arguing that it did not hire a full complement of employees until October 1 because it hired former Candlewood employees only on a tempo- rary basis. Alternatively, the Respondent argued that it had no successorship obligation as to one of the two bar- gaining units at issue (the LVN unit) because, under the Respondent’s management, the bargaining-unit employ- ees are all supervisors and hence the LVN unit was no longer an appropriate unit. As explained below, we adopt the judge’s findings that the Respondent is a suc- cessor employer with a bargaining obligation as of July 1, and that it violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union thereafter. Con- trary to the judge’s decision, however, we find that the Respondent additionally violated Section 8(a)(5) and (1) by unilaterally changing terms and conditions of em- ployment. The complaint further alleged that the Respondent vio- lated Section 8(a)(3) and (1) by (a) refusing to hire, (b) suspending, and (c) terminating certain employees be- cause of their protected, concerted, and/or union activi- ties. We adopt the judge’s findings that the Respondent violated the Act by suspending and/or terminating the discriminatees as alleged. However, for the reasons stated below, we find, contrary to the judge, that the Re- spondent additionally violated Section 8(a)(3) and (1) of the Act by refusing to hire four union stewards. Finally, as discussed below, we adopt the judge’s find- ings that the Respondent violated Section 8(a)(1) by in- forming employees that there was no union at its facility or that its facility was nonunion.6 I. FACTS The Respondent, Windsor Convalescent Center of North Long Beach, operates skilled nursing facilities in California under the “Windsor” name. Its business plan is to attract high-acuity patients who qualify for high insurance reimbursement rates. Prior to July 1, Covenant Care Orange, Inc. (Covenant) operated the North Long Beach facility under the name Candlewood Care Center (Candlewood). Candlewood and the Union had entered into two collective-bargaining agreements; one covered nurses aides, CNAs, restorative aides, orderlies, dietary employees, activity assistants, and housekeeping employees (the Base unit), and the other covered licensed vocational nurses (the LVN unit). 6 The complaint also alleged that the Respondent violated Sec. 8(a)(1) by the Respondent’s representative Kathleen Leonard telling employees that they could no longer talk in the parking lot at the end of their shifts. No exceptions were filed to the judge’s finding that Leo- nard did not make the alleged statement. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 976 The Respondent acquired Candlewood and assumed operations on July 1. Prior to the takeover, the Respon- dent’s representatives Barry Dyches (vice president, risk management) and Kathleen Leonard (director, human resources) toured the facility and were dissatisfied with the conditions there. Leonard recommended that the Respondent overhaul the facility and replace all of the staff. The Respondent came to realize, however, that its plan to replace all of the staff prior to the takeover was unrealistic, so it decided to rid itself of the “worst of the worst” and to offer the remaining staff “temporary” em- ployment not to exceed 90 days while it continued to recruit new employees (both from its other facilities and from the general public) to replace them.7 To this end, Leonard directed Carol Spencer (director, staff develop- ment) to identify those Candlewood employees that the Respondent would not hire. Spencer compiled two lists of problem employees. The first was based on her independent review of em- ployee files (the Spencer list). Two versions of the Spencer list are in the record: General Counsel’s Exhibit 70 (an “incomplete” version of the list) and Respondent’s Exhibit 82. The second list recorded Candlewood ad- ministrator Carmen Hernandez’ assessment (the Hernan- dez list). Spencer took notes as Hernandez told her which employees she thought posed problems. The Her- nandez list has heavy black dots adjacent to the names Davenport, Haley,8 Smith, and Moss, and the latter name bears the additional notation “steward.”9 The incomplete version of the Spencer list (GC Exh. 70) proceeds alpha- betically until the last three names, which are Smith, Hailey, and Moss. Davenport, Hailey, Smith, and Moss were all union stewards. Spencer provided both lists to Leonard prior to July 1. At the end of June, Leonard, Spencer, and Carren Chastek (regional director, clinical services) interviewed Candlewood employees, including those on the lists. The interviewers did not mention the Union in any of the interviews. The judge found that while Leonard, Spencer, and Chastek told applicants that the Respondent was hiring them as “temporary” employees, they also “conveyed the clear understanding that Respondent was hiring them as ‘temporary’ employees in order to assess their skills and abilities and that Respondent would review their work 7 According to the Respondent’s employee handbooks, “[t]emporary employees are those who are hired on an interim basis to temporarily supplement the work force or to assist in the completion of a specific project. Employment assignments in this category are of a limited duration.” 8 “Haley,” a misspelling, refers to employee Sharie Hailey. 9 Having reviewed the exhibits, we reject the Respondent’s assertion that the notation next to Moss’ name is actually “Stewart,” a reference to Dorothy Stewart, who kept the Respondent’s personnel files. during the 90-day period and offer regular employment to those who passed the review.” No changes to terms and conditions of employment were discussed with em- ployees during the interviews (other than the imposition of a “review” period), nor were employees invited to accept employment under specified new terms. The judge further found that, after the interviews, the Re- spondent mailed or hand-delivered written offers of “temporary employment,” dated June 30, to those Can- dlewood employees it hired. These offers stated that, as a “temporary employee,” the employee was not eligible for company benefits, and that “[o]ther terms and condi- tions of your employment will be set forth in Windsor’s personnel policies and its employee handbook.” The Respondent did not otherwise give the carry-over em- ployees notice of any specific changes that would be made to their terms and conditions of employment. Edna Colter, Tracy Davenport, Sharie Hailey, Gladys Matos, Annie Moss, Debra Smith, and Nana Williams served as union stewards at Candlewood. Colter, Hailey, Moss, and Smith were listed as problem employees on both the Spencer and the Hernandez lists.10 Because the Respondent was having trouble meeting its staffing needs, it hired almost half of the problem employees on the lists, but it did not hire those four. Although the Re- spondent denied knowing, prior to July 1, which employ- ees were union stewards, the judge discredited this de- nial.11 On July 1, the Respondent employed approximately 120 individuals at the North Long Beach facility, over 75 percent of whom were former Candlewood employees. Ten to 12 were non-Candlewood recruits, whom the Re- spondent considered “probationary” or “regular” em- ployees. At a July 9 staff meeting, the Respondent dis- tributed employee handbooks to “temporary” employees; probationary employees were given a handbook in their employment packet. The handbooks differed in that those distributed to temporary employees listed only le- gally mandated benefits, whereas those given to proba- tionary employees listed additional benefits the employ- ees would receive as “regular” employees after complet- ing their 90-day probationary period. During the initial 10 Davenport, Williams, and another employee, Nereida Jimenez (who was not a union steward), were hired on July 1. Davenport’s name appeared on both lists; Williams’ and Jimenez’ names appeared on the Spencer list only. 11 In finding knowledge, the judge observed that the Respondent hired Hernandez, assumed that the hiring occurred before July 1, and inferred that Hernandez communicated union-related information to the Respondent, including the identity of union stewards. The judge also relied on the heavy black dots next to the names of four union stewards on the Hernandez list, and the additional “steward” notation next to one of those names. WINDSOR CONVALESCENT CENTER OF NORTH LONG BEACH 977 90-day period, however, temporary and probationary employees enjoyed the same terms and conditions of employment. In addition, temporary (i.e., former Can- dlewood) employees selected for regular employment did not serve a probationary period. That is, upon the com- pletion of 90 days of employment, temporary and proba- tionary employees alike began receiving identical bene- fits as regular employees. Union Representative William Hirst sent the Respon- dent letters, dated June 29 and July 1, apprising the Re- spondent of the Union’s representational status and re- questing a meeting. By letter dated July 7, the Respon- dent rejected the Union’s request for recognition, stating that the Union’s representational claim could only be determined once the Respondent had reached a “repre- sentative complement of regular employees.” On July 1, the Respondent hosted a staff barbeque. Union President Tyrone Freeman and Hirst attempted to visit employees on the patio during the barbeque. Credit- ing Hirst and employee Tara Smith, the judge found that Leonard, in the employees’ presence, confronted Free- man and Hirst, asked them to leave, and said that there was “no union in the facility,” the facility was “not a union building,” and that the Union “was not welcome there.” When Freeman and Hirst refused to leave, Leo- nard called the police. They left before the police ar- rived. On July 7, Spencer found employee Shronda Williams cowering in an empty room. Williams told Spencer that she was frightened because some employees were threat- ening her and pressuring her to do something that she did not want to do. Spencer reported this incident to Leo- nard, who asked for a written statement; Spencer ob- tained one and gave it to Leonard. Williams’ written statement said that Smith, Davenport, and some other people (identified verbally to Spencer as Nereida Jimenez, Michelle Carrizalez,12 and Nana Williams) had asked her to go to a union meeting. Leonard asked to speak to Williams, but Williams insisted that she just wanted to go home. Leonard then called Davenport, Jimenez, Carrizalez, and Smith into her office and sum- marily suspended them,13 along with Nana Williams (who was not scheduled to work that day), pending in- vestigation for harassing a coworker. The employees asked for particulars of the accusation; Leonard refused their request. By memo dated July 9, Leonard notified Chastek that 14 employees would be replaced by month’s end, including Davenport, Jimenez, and Nana 12 In her decision, the judge inadvertently misspelled Carrizalez as “Cozalles.” 13 Although suspended, Carrizalez was not named in the complaint because she did not cooperate in the investigation. Williams. After subsequently interviewing Shronda Wil- liams, Leonard determined that there had been no wrongdoing and, nearly 2 weeks later, on July 20, rein- stated the suspended employees with pay. The Respon- dent’s policy is to investigate allegations of wrongdoing within 24–72 hours. On July 23, 3 days after they had been reinstated, Leo- nard notified Tracy Davenport, Nana Williams, and Ne- reida Jimenez that the Respondent no longer needed their services. No further explanation of their discharge was given to them.14 Also on July 23, the Respondent termi- nated Union Steward Gladys Matos, who had not been listed on either the Spencer or the Hernandez list, alleg- edly because she had a confrontation with Hernandez over a change to Matos’ work schedule.15 In addition, during a staff meeting conducted on July 23, Leonard told about 40 employees that the facility was “not a un- ion building,” that the “employees were not union,” and that, like other Windsor facilities, the facility was “un- ion-free.” Also in July, while the Union was trying to garner support, the Respondent posted and distributed antiunion flyers. The judge credited the testimony of Antoinette Harris (activity director) that the Respondent, in man- agement meetings, instructed its supervisors to watch for and discourage union activity. On August 10, the Respondent discharged Tara Smith, purportedly for insubordination and absenteeism (feign- ing illness to avoid working over the weekend). The judge did not fully credit either Smith’s or her Supervisor Jeanne Mawak’s account of the incidents leading up to Smith’s termination. Based on the testimony she did credit, the judge found that Smith argued with her super- visors regarding her work assignment when she returned to work on Monday, but that she did not leave the facility or otherwise refuse to work. A few weeks after Smith was discharged, Mawak gave a verbal warning to a CNA for arguing with her supervisor over her assignment, threatening to clock out, and reassigning herself. In the 90 days following July 1, the Respondent de- cided to retain certain temporary employees based on their work performance, and it highlighted those em- ployment offers at staff meetings and in newsletters. As 14 The fourth suspended employee, Tara Smith, was not discharged on July 23. Smith testified that, about July 26, Hernandez told her that “she [Hernandez] had put her butt on the line for my job, and just to keep my mouth shut.” As discussed more fully below, Smith was discharged on August 10. By that date, Hernandez had lost her job. Hernandez did not testify. Smith was not named on either the Spencer list or the Hernandez list. 15 The judge credited Matos’ version of her discharge over Leo- nard’s, including her specific denial that she had publicly argued with Hernandez. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 978 of October 1, the Respondent had “transitioned” 30–40 temporary employees to regular status. These transi- tioned employees were then given the same employee handbooks that the probationary employees had been given and did not have to serve a “probation” period. Also following its takeover, the Respondent expended approximately $500,000 on repairs and improvements to the facility. One of the first improvements made by the Respondent was to repaint the employee lounge and the hallway where the union bulletin board was hanging, at which time it removed the bulletin board.16 Although the facility had consistently sustained losses under Cove- nant’s management, the Windsor facility began to turn profits under the Respondent’s control. II. THE 8(a)(5) ALLEGATIONS A. Successorship and Refusal to Recognize and Bargain Citing NLRB v. Burns Security Services, 406 U.S. 272 (1972), and Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987), the judge found that the Re- spondent violated Section 8(a)(5) by refusing to recog- nize and bargain with the Union since July 1. In Burns, the Supreme Court held that a successor employer has a duty to recognize and bargain with an incumbent union where two factors are present: continuity of the enter- prise and continuity of the work force. The judge found that the first Burns factor, continuity of the enterprise, was not in dispute, and the Respondent did not except to that finding. The judge further found that the second Burns factor, continuity of the work force, also existed, despite the Respondent’s labeling of the former Candlewood em- ployees as “temporary.” The judge reasoned that, con- trary to the definition of “temporary employee” in the Respondent’s employee handbooks, the former Candle- wood employees were not hired to temporarily supple- ment the work force or assist in the completion of a spe- cific project, nor were they given a definite termination date. Rather, all had a prospect of continued employ- ment based upon their performance. Given that the Re- spondent’s temporary and probationary employees had the same terms and conditions of employment during their “introductory” period, and that temporary employ- ees did not have to serve a probationary period if they were retained, the judge found that the temporary em- ployees “were in the same employment posture as Re- spondent’s probationary employees.” Citing Sahara Las Vegas Corp., 284 NLRB 337, 337 fn. 4, 342–344 (1987), enfd. 886 F.2d 1320 (9th Cir. 1989), for the proposition that a work force continuity determination is not deferred 16 After the walls had been repainted, the Respondent posted anti- union flyers on the walls. until after completion of a probationary period, the judge reasoned that the Burns work force continuity require- ment must be assessed as of July 1, the date the Respon- dent began operating the facility. Because, on July 1, both bargaining units were “overwhelmingly composed of former Candlewood employees who had been repre- sented by the Union,” the judge found that a bargaining obligation attached as of that date. We agree with this analysis. We find no merit in the Respondent’s exceptions regarding the “temporary” status of former Candlewood employees and the date a “substantial and representative complement of regular employees” was achieved.17 Accordingly, for the rea- sons stated by the judge, we affirm the judge’s findings that the Respondent incurred a Burns successor’s duty to bargain with the Union as of July 1. As there is no dis- pute that the Respondent thereafter failed and refused to recognize and bargain with the Union, we affirm the judge’s finding that the Respondent thereby violated Sec- tion 8(a)(5). We also affirm the judge’s ruling precluding the Re- spondent from relitigating the supervisory status of its LVNs. As stated above, the Respondent attempted to introduce evidence purportedly showing that the LVNs are statutory supervisors and, hence, that the LVN unit is no longer appropriate. The judge ruled that all issues regarding the appropriateness of the bargaining units were resolved in a previous representation case and thus excluded the Respondent’s proffered evidence. In adopt- ing the judge’s ruling, we acknowledge the Respondent’s argument that, regardless of what the LVNs’ duties may have been under Candlewood, under the Respondent’s operations the LVNs have the duties of supervisors.18 17 The General Counsel also filed exceptions, arguing that the judge failed to rule on the alternate theory that, at the end of the 90-day pe- riod, which the General Counsel maintains was September 29, a major- ity of the Base unit was still composed of the predecessor’s employees. However, the General Counsel acknowledged that there is no need to reach this exception if the Board affirms the judge’s finding that the Respondent became a Burns successor on July 1. Because we so find, we find it unnecessary to pass on the General Counsel’s alternate the- ory. 18 As the judge found, the supervisory status of the LVNs under Candlewood’s management was previously litigated. As the judge further found, in the absence of newly discovered or previously un- available evidence or special circumstances, a respondent may not defend against an 8(a)(5) allegation by relitigating issues that were or could have been litigated in a prior representation proceeding. See, e.g., Pepsi-Cola Bottlers of Atlanta, 267 NLRB 1100 (1983) (refusing to allow relitigation where the successor challenged unit by claiming that it inappropriately included supervisors). Although we acknowl- edge the Respondent’s argument, along with our dissenting colleague’s position below, we find no prejudicial error in the judge’s ruling pre- cluding relitigation of the LVNs’ status here. As discussed more fully below, a successor may unilaterally establish only those initial terms and conditions of employment that were specifically announced prior to WINDSOR CONVALESCENT CENTER OF NORTH LONG BEACH 979 We observe, however, that the Respondent remains free to litigate that issue by filing a unit clarification peti- tion.19 B. Unilateral Changes The judge dismissed the complaint allegations con- cerning unilateral changes. The judge found that the Respondent did not violate the Act by setting initial terms and conditions of employment because the Re- spondent did not fall within the “perfectly clear” excep- tion to the Burns rule that a successor employer has the right to set new initial terms and conditions of employ- ment without bargaining. Consistent with this finding, the judge also found that the Respondent had no obliga- tion to provide a union bulletin board, and thus it was not unlawful to take it away in setting initial terms; rather, the Respondent’s only obligation was to bargain over the bulletin board after setting its initial terms. The Respondent, the General Counsel, and the Union each filed relevant exceptions. The Respondent, consis- tent with its argument that it had no bargaining obliga- tion whatsoever because it was not a successor employer, excepts to the judge’s finding that it had an obligation to bargain with the Union after July 1 over mandatory sub- or simultaneously with the hiring of its work force; general and vague statements portending future changes are not sufficient to establish initial terms. Banknote Corp. of America, 315 NLRB 1041, 1045 fn. 5 (1994). Because there is no evidence that the Respondent announced any changes to LVN duties prior to July 1, when its bargaining obliga- tion attached, the Respondent would have had to bargain with the Un- ion concerning any subsequent changes to LVN job duties. See, e.g., Boise Cascade Corp., 283 NLRB 462, 467 (1987) (holding work as- signments to be mandatory subject of bargaining). Hence, in our view, the Respondent should not be allowed to avoid its bargaining obligation with respect to the LVN unit on the basis that it unilaterally changed LVN duties, where those very changes would be unlawful. 19 While Member Schaumber agrees with his colleagues that the Re- spondent was a successor to Candlewood and thus violated Sec. 8(a)(5) when it refused to recognize and bargain with the Union regarding the Base unit, he disagrees with their approval of the judge’s refusal to consider evidence about the continuing appropriateness of the LVN unit. The Respondent argued that, under its management policies, the LVN-unit employees were statutory supervisors. Contrary to the judge’s ruling, the status of the Respondent’s employees under its unique operational structure could not have been raised in its predeces- sor’s representation case. Cf. Hotel del Coronado, 345 NLRB 306, 307 (2005) (successor employer may not defend refusal-to-bargain charges “by alleging matters that its predecessor could have raised” in an ear- lier proceeding) (emphasis added). Accordingly, the judge erred in refusing to consider this evidence relevant to the Respondent’s defense. See Banknote Corp. of America, 315 NLRB 1041, 1043–1044 (1994) (considering, but finding insufficient, evidence in support of successor employer’s argument that operational changes rendered preexisting bargaining units inappropriate). Deferral of this issue to a subsequent representation proceeding precludes final disposition here of the re- fusal-to-bargain charge insofar as it relates to the LVN unit. For these reasons, Member Schaumber would remand this issue to the judge with instructions to consider and make findings regarding the appropriate- ness of the LVN unit. jects of bargaining. Given our finding that the Respon- dent is a successor employer with a duty to bargain after July 1, we find no merit in that exception. The Respon- dent also repeats its alternative argument, which the judge accepted, that even if it is a successor, it is not a “perfectly clear” successor;20 thus, according to the Re- spondent, the judge correctly found that it could lawfully establish initial terms and conditions of employment. The General Counsel excepts to the judge’s finding that the Respondent did not violate the Act by setting initial terms and conditions of employment. The General Counsel argues that, having found that a bargaining obli- gation attached on July 1, the judge erred in failing to find that the Respondent’s subsequent issuance of new employee handbooks setting forth new terms and condi- tions of employment violated the Act. The General Counsel further argues that the Respondent’s contention that it could lawfully implement new employee hand- books as part of its initial terms and conditions of em- ployment because its temporary employment offer stated that “[o]ther terms and conditions of employment will be set forth in . . . employee handbooks” is flawed because a successor employer cannot rely on such a general state- ment as an announcement of initial terms. The Union, relying on Advanced Stretchforming Intl.,21 argues that the judge, having found that the Respondent violated Section 8(a)(1) by its “no union here” statements, failed to recognize that the Respondent thereby forfeited the 20 The Respondent also argues, citing Monterey Newspapers, 334 NLRB 1019 (2001), that its inability to have its new employee hand- books ready on July 1, does not detract from its stated intent to set new initial terms and conditions of employment. In Monterey Newspapers, the judge dismissed an allegation that a successor employer violated Sec. 8(a)(5) by reclassifying employees from nonexempt to exempt status for Fair Labor Standards Act purposes without bargaining. Mon- terey Newspapers is not precedential as to this issue because there were no exceptions to the judge’s dismissal of this 8(a)(5) allegation. Supra at 1019 fn. 1. Moreover, Monterey is distinguishable. The judge found that Spruce Up concerns (see discussion infra) were not present because the reclassification was specifically raised during interviews and appli- cants expressed no concerns; moreover, subsequent overtime payments made in error and corrected upon discovery did not establish that the successor had failed to lawfully establish initial terms. Supra at 1028– 1029. Here, employees consistently testified that no changes to terms and conditions of employment were discussed with them during inter- views, other than the imposition of a “review” period. Merely telling employees that their work would be reviewed does not constitute a clear announcement of changes to terms and conditions of employment. As explained below, Member Schaumber disagrees with his col- leagues’ characterization of the message the Respondent conveyed to Candlewood interviewees. Nevertheless, he agrees that Monterey Newspapers has no precedential value on this issue because there were no exceptions to the judge’s dismissal of the relevant allegation in that case. 21 323 NLRB 529, 530–531 (1997), enfd. 233 F.3d 1176 (9th Cir. 2000), cert. denied 534 U.S. 948 (2001). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 980 Burns right to set initial terms. We find merit in the General Counsel’s exceptions.22 Under Burns, supra at 294–295, a successor employer is free to set the initial terms on which it will hire its predecessor’s employees without first bargaining with an incumbent union, unless it is “perfectly clear” that the successor “plans to retain all” of the unit employees. The Board’s lead case interpreting the “perfectly clear” exception to a successor’s Burns right is Spruce Up Corp., 209 NLRB 194 (1974), enfd. per curiam 529 F.2d 516 (4th Cir. 1975). There, the Board declined to find an 8(a)(5) violation where the successor employer expressed a general willingness to hire the predecessor’s employ- ees, but simultaneously indicated that their employment was conditioned on their willingness to accept new terms.23 The Board reasoned that when an employer who has not yet commenced operations announces new terms “prior to or simultaneously with his invitation to the pre- vious work force to accept employment under those terms,” it cannot be a “perfectly clear” successor because it does not know if the predecessor’s employees will ac- cept employment on those terms; therefore, it cannot be said that the successor “plans” to retain “all” unit em- ployees. The Spruce Up Board thus held that the Burns “perfectly clear” exception, and the consequent forfeiture of the right to set initial terms, should be restricted to circumstances where the new employer has “either ac- tively or, by tacit inference, misled employees into be- lieving they would all be retained without change in their wages, hours, or conditions of employment, or at least to circumstances where the new employer . . . has failed to clearly announce its intent to establish a new set of con- ditions prior to inviting former employees to accept em- ployment.” Id. at 195 (footnote omitted). The Board applied the Spruce Up analysis in Fremont Ford, 289 NLRB 1290 (1988). Reviewing its prece- dents, the Board stated: “Since Spruce Up the Board has adhered to this distinction based on when the successor employer announces its offer of different terms of em- ployment in relation to its expression of intent to retain the predecessor’s employees unless the successor has misled them.” Id. at 1296. The Fremont Board found that the successor there had forfeited the right to set ini- tial terms, since it was “perfectly clear” under Burns and 22 Because we find merit in the General Counsel’s exceptions, we need not and do not pass on the Union’s exception relying on Advanced Stretchforming, supra. 23 Prior to the takeover, the new employer in Spruce Up told the un- ion what he planned to pay the predecessor employees (barbers). He also distributed individual form letters to the barbers, setting forth new commission rates (rates differing from those paid by the predecessor Spruce Up Corp.), and requested that all those who desired to work on the new commission basis return a signed form letter. Spruce Up that it planned to retain a majority of the predecessor’s employees: a supervisor told certain em- ployees that they would be retained when the successor took over and that “nothing was going to change”; the successor instructed supervisors to conceal or make false or misleading statements to employees who inquired about prospective working conditions; and it was not until after the hiring process had begun that the successor first informed the predecessor’s employees that there would be significantly different employment condi- tions.24 The Fremont Board concluded that, unlike the situation presented in Spruce Up, the respondent had “failed to clearly announce its intent to establish a new set of conditions prior to inviting former employees to accept employment”; hence, it was not free to unilater- ally set initial terms of employment. Id. at 1297.25 Turning to the instant case, the judge, applying Spruce Up, found that the Burns “perfectly clear” exception does not apply because the Respondent informed Candlewood applicants that they would be employed only in a tempo- rary or probationary status. This, the judge reasoned, “should have signaled” to them that their terms and con- ditions of employment would change, thus raising the possibility that some might decline employment and ren- dering the “perfectly clear” exception inapplicable. We disagree. Although the Respondent did subject former Candlewood employees to what amounted to a probationary period, we nonetheless find, applying Spruce Up, that the Burns “perfectly clear” exception does apply because the Respondent “failed to clearly announce its intent to establish a new set of conditions prior to inviting former [Candlewood] employees to ac- cept employment.”26 209 NLRB at 195. The judge found that, after interviewing the Candle- wood employees, the Respondent mailed or hand- delivered written offers of “temporary” employment, dated June 30, which incorporated by reference “[o]ther terms and conditions of your employment . . . set forth in 24 Cf. Williams Enterprises, 301 NLRB 167 (1991) (finding no for- feiture of Burns right where evidence showed announcement of new terms—notably, changes in job functions, insurance carrier, insurance plan, premiums and deductibles, vacations, and holidays, and elimina- tion of mid-afternoon break—simultaneously with invitation to prede- cessor’s work force to accept employment under those terms), enfd. in relevant part 956 F.2d 1226 (D.C. Cir. 1992). 25 See also Galloway School Lines, 321 NLRB 1422 (1996), where the Board, again interpreting Burns, stated that a duty to bargain over initial terms “can arise not only in situations where the new employer’s plan is to retain virtually every predecessor employee, but also in cases where, although the plan is to retain a fewer number of predecessor employees, it is still evident that the union’s majority status will con- tinue.” Id. at 1426 (fn. omitted). 26 As explained below, Member Schaumber dissents from this con- clusion. WINDSOR CONVALESCENT CENTER OF NORTH LONG BEACH 981 Windsor’s personnel policies and its employee hand- book.” The judge further found that the Respondent first distributed employee handbooks to the “temporary” em- ployees at a staff meeting held on July 9. Significantly, the judge made no findings as to whether, or when, em- ployees actually received the June 30 letter purportedly informing them of the Respondent’s intent to change terms and conditions of employment.27 At the hearing, several former Candlewood employees—Nereida Jimenez, Nana Williams, Gladys Matos, Tracy Daven- port, and Tara Smith—were shown a copy of the June 30 letter specifically addressed to them, and they each de- nied receiving it. Two of the Respondent’s witnesses, Lawrence Norvick and Victoria Mejia, testified that they received the letter at work, not by mail at their house; and Norvick’s testimony revealed that he received it after July 1. The Respondent did not submit any signed and dated copies of its letter into evidence. Thus, even if the June 30 letter conveyed an intent to change employment terms, the evidence fails to show that the Candlewood employees actually received that letter before they com- menced work with the Respondent. Moreover, the judge failed to address other significant evidence relevant to this issue. Thus, the judge did not address the Respondent’s June 8 cover sheet attached to the job applications distributed to Candlewood employ- ees, which informed employees that the Respondent in- tended to hire a “full complement of employees” and to implement “operational changes,” including upgrading patient care and changing the resident mix, but which conspicuously lacked any mention of intended changes to employees’ terms and conditions of employment.28 27 One could reasonably take the position that saying “[o]ther terms and conditions of your employment will be set forth in Windsor’s per- sonnel policies and its employee handbook” falls short of expressing an intent to change existing employment terms, as it leaves open the pos- sibility that the terms to be thus set forth will be unchanged from those of the predecessor. But, as explained more fully below, even assuming the Respondent’s June 30 letter announced an intent to change em- ployment terms, it did not inform the predecessor’s employees what specific terms the Respondent planned to implement. It did not even put the Candlewood employees on general notice that the planned employment terms, although unspecified, would be less favorable than the predecessor’s. 28 In finding, contrary to our conclusion, that the Respondent was not a “perfectly clear” successor, our dissenting colleague relies on Ridge- well’s, Inc., 334 NLRB 37 (2001), enfd. 38 Fed. Appx. 29 (D.C. Cir. 2002). Ridgewell’s is clearly distinguishable. There, the successor employer announced to the union, prior both to finalization of its sub- contract and to hiring, that it would utilize the predecessor’s employees only on an independent contractor basis. An announcement that work- ers will be hired as “independent contractors” necessarily signals an “intent to establish a new set of [employment] conditions,” Spruce Up, supra at 195, because it signals an intent to divest the predecessor’s employees of “employee” status altogether. Of course, the Respon- The judge also did not discuss employee testimony that employees who, prior to the takeover, asked about their employment status or about intended changes were told variations of “don’t worry” or “nothing will change.”29 Most of these statements allegedly were made by former Candlewood supervisors who were later retained by the Respondent when it took over the facility. The Respondent contends that it did not authorize those individuals to speak for it before the takeover. It also argues that none of the individuals who did speak for it promised employees that their terms and conditions of employment would not change. Even if that is true, however, none of the Respondent’s witnesses testified that prior to the takeover they informed Candlewood employees (other than via the offer letters) that their terms and conditions of employment under the Respon- dent would change. In sum, there is no evidence that the Respondent’s June 30 job-offer letters purportedly announcing an in- tent to change employment terms were received prior to the July 1 takeover. Moreover, there is no evidence that the Respondent, prior to the takeover, informed Candle- wood employees that those who were retained would be working under different core terms and conditions of employment. On this record, we find that the Respon- dent “failed to clearly announce its intent to establish a new set of conditions prior to inviting former [Candle- wood] employees to accept employment.”30 Spruce Up, supra at 195. dent’s pre-July 1 communications to the predecessor’s employees did nothing of the sort. 29 For example, Debra Smith’s uncontroverted testimony was that she asked Supervisor Elaine Griswold, in anticipation of the July 4 holiday, first, if she could have the holiday off, and second, if she would still be on the schedule for July. Griswold responded, “Why of course . . . don’t even worry about it.” Griswold was the director of nursing at Candlewood, a position she retained under the Respondent. Nana Williams testified about a staff meeting conducted in May or June 2004, where Candlewood representative Dava Ashley announced that the facility was going to be sold and introduced Leonard to employees; according to Williams, when employees got in an “uproar” about whether their salaries would be decreased, both Ashley and Leonard reassured employees that “nothing was going to change.” Ashley did not testify; although Leonard testified that Ashley did not make repre- sentations as to specific terms and conditions of employment, Leonard conceded that Ashley made a “motivating talk.” Similarly, Jimenez’ uncontroverted testimony was that she asked Carmen Hernandez at a July 6 meeting about pay rates; Hernandez said “everybody would stay at their same amount until the yearly evaluations.” 30 Member Schaumber disagrees with his colleagues’ decision to re- verse the judge and find that the Respondent was a “perfectly clear” successor to Candlewood. As the judge found, the Respondent made clear during its interviews with former Candlewood employees that any employment relationship they might enter into with it would be tempo- rary, with only a chance of regular employment. Further limiting those chances were the Respondent’s requirements, set forth in its June 8 solicitation for applications, that all Candlewood interviewees pass “a DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 982 Even assuming arguendo that most employees actually received the written offer of temporary employment be- fore they commenced work with the Respondent, the June 30 letter, apart from informing employees that they were not eligible for certain benefits because of their “temporary” status, merely states, in relevant part: “Other terms and conditions of your employment will be set forth in Windsor’s personnel policies and its em- ployee handbook.” A general statement that new terms will subsequently be set is not sufficient to fulfill the Respondent’s Spruce Up obligation to announce new terms prior to or simultaneous with the takeover.31 In- preemployment physical, drug test and acceptable reference and back- ground checks.” By signaling to the Candlewood interviewees that their very status as regular employees was in question, much less guar- anteed, the Respondent made clear that its initial terms and conditions of employment would differ from those in the Union’s collective- bargaining agreement with Candlewood; thus, the Respondent was not a “perfectly clear” successor to Candlewood. See Ridgewell’s, Inc., supra (finding employer who announced pretakeover that it intended to hire predecessor’s employees as independent contractors was not a “perfectly clear” successor because it “clearly signaled” that its terms of employment would differ from its predecessor’s). Accordingly, Member Schaumber would adopt the judge and dismiss this allegation. 31 Cf. Banknote Corp. of America, 315 NLRB 1041 (1994), enfd. 84 F.3d 637 (2d Cir. 1996), cert. denied 519 U.S. 1109 (1997), in which the Board found an employer was not a “perfectly clear” successor where, before assuming operations, it disavowed statements that it had agreed to recognize the unions and be bound by the existing collective- bargaining agreements; met with the unions and informed them that it intended to attempt to hire its initial work force from among existing employees, but reiterated that it would not honor the then existing collective-bargaining agreements; and told the unions and certain em- ployees during their job interviews that it intended to introduce flexibil- ity in terms of jobs and that health benefits would continue for 60 days. Under those circumstances, the Board found that the successor was free to set initial terms and conditions prior to its takeover date, but that, thereafter, a bargaining obligation attached with respect to any subse- quent changes the employer wished to make. By implication, the Board also found that changes made after the successor assumed opera- tions to employees’ hours, pension, vacation and sick pay plans, health and welfare benefits, and holidays were unlawful unilateral changes because the successor had not announced changes to those terms and conditions prior to the takeover. Thus, under the rationale of Banknote Corp., even if the Respondent’s June 30 letter expressed a sufficiently clear intent to change employment terms to remove the Respondent from “perfectly clear” successor status, the Respondent still had an obligation to bargain over any unannounced specific changes to terms and conditions of employment occurring after July 1, including disman- tling the bulletin board and issuing new handbooks. While he does not rely on the contents of the June 30 job-offer letter in reaching his conclusion, Member Schaumber notes that, had the letter been timely distributed, its contents would have satisfied the Respondent’s Spruce Up obligation. In addition to the notice that cer- tain terms and conditions of employment would be set forth in the employee handbook, that letter again informed employees that their employment was “temporary . . . for a period of up to 90 days,” that they “[were] not eligible for company benefits,” and that their employ- ment would be at-will, i.e., terminable “at any time, without advance notice, and with or without cause.” Thus, in Member Schaumber’s deed, the Respondent’s position runs counter to the Board’s rationale underpinning Spruce Up, which is that where a successor has clearly announced new terms prior to or simultaneous with the takeover, it is not “perfectly clear” that the successor plans to retain its predecessor’s employees because of the genuine possibility that those employees will reject the offer of employment under those announced terms.32 Conversely, where a successor has hired a majority of the predecessor’s employees but deprived them of the ability to make an informed choice by not clearly announcing that it will operate under dif- ferent terms than the predecessor’s, the successor is pre- cluded from thereafter unilaterally imposing new terms upon those employees. Applying this logic here, because the Respondent failed to clearly announce its intent to establish new terms prior to the July 1 takeover, and no new terms were set on July 1, the Respondent’s subse- quent setting of new terms on July 9 through distribution of its handbook was not a lawful setting of initial terms but an unlawful unilateral change in existing terms. view, the letter clearly stated the Respondent’s intention to establish a new set of conditions for the former Candlewood employees. Moreover, in Member Schaumber’s view, a general statement of in- tent to change the terms of employment is sufficient to fulfill a succes- sor employer’s Spruce Up obligation, so long as it implements those initial terms contemporaneously with its initiation of operations. Spruce Up does not require employers to announce prior to the take- over all new terms it intends to establish; it merely requires an an- nouncement of an intention to establish new terms. The Board stated: “We believe the caveat in Burns, therefore, should be restricted to circumstances in which the new employer has either actively or, by tacit inference, misled employees into believing they would all be re- tained without change in their wages, hours, or conditions of employ- ment, or at least to circumstances where the new employer, unlike the Respondent here, has failed to clearly announce its intent to establish a new set of conditions prior to inviting former employers to accept em- ployment.” Spruce Up, supra at 195 (footnote omitted). Thus, Spruce Up clearly indicates that timely notification that the successor intends to set new terms and conditions of employment frees it to establish unilaterally the initial terms and conditions of employment for its em- ployees. 32 Hence, we are unpersuaded by our dissenting colleague’s view that a general statement of intent to change terms of employment is sufficient to fulfill a successor employer’s Spruce Up obligation. Un- der our colleague’s view, a successor may implement new terms, even terms it does not disclose to employees until after the takeover, if it merely announces at or before the takeover that terms will change. Clearly, this view cannot be squared with Banknote Corp., supra. We think that most employees put in the unenviable position of choosing between certain and immediate unemployment, on the one hand, and on the other, a job with a successor employer who has said only that em- ployment terms will change, without specifying how, would accept the employment. After all, the announcement that terms will change leaves open the possibility that they will change for the better, or only mini- mally for the worse. In our view, an employer that forces a choice between a certain evil and hope-inducing uncertainty must be deemed to have planned to retain all employees and thus to be a perfectly clear successor. WINDSOR CONVALESCENT CENTER OF NORTH LONG BEACH 983 In sum, the Respondent forfeited the right to set initial terms under Spruce Up because it failed, prior to inviting former Candlewood employees to accept employment on or after July 1, to clearly announce its intent to establish new terms.33 Accordingly, we find that the Respondent violated Section 8(a)(5) and (1) when it subsequently and unilaterally discontinued the use of a union bulletin board34 and implemented new employee handbooks. III. SECTION 8(a)(3) ALLEGATIONS A. The Suspensions and Terminations As stated above, the complaint alleged that the Re- spondent violated Section 8(a)(3) and (1) by suspending and terminating certain employees because of their pro- tected, concerted, and/or union activities. The judge ana- lyzed the suspensions and terminations under Wright Line.35 She found, and we agree, that the Respondent violated Section 8(a)(3) by suspending Tracy Davenport, Nana Williams, Nereida Jimenez, and Tara Smith be- cause they invited employee Shronda Williams to a un- ion meeting. The judge further found, and we again agree, that the Respondent subsequently violated the Act by terminating these four employees (Davenport, Wil- liams, and Jimenez on July 23, and Smith on August 10), and also a fifth employee, former Union Steward Gladys Matos, due to their union and/or protected, concerted activities.36 33 Moreover, as noted above, it is at least arguable that the Respon- dent misled employees into thinking that their terms of employment would not change. Cf. Elf Atochem North America, Inc., 339 NLRB 796 (2003) (employer was “perfectly clear” successor when it informed employees they would keep their employment, their seniority would be recognized, and they would receive equivalent salaries and comparable benefits). Member Schaumber disagrees with any contention that the Respon- dent misled the Candlewood employees into thinking that their terms of employment would not change. First, as the majority acknowledges, the judge made no finding that the alleged “don’t worry” or “nothing will change” statements were made at all, much less that they were made by the Respondent’s agents. Second, Williams’ testimony about Leonard’s alleged assurance was denied by both Leonard and Daven- port. In light of this disputed testimony, and in the absence of a credi- bility determination resolving that dispute, Member Schaumber consid- ers the evidence insufficient to support a finding that the Respondent misled the Candlewood employees. 34 The use of a bulletin board is a mandatory subject of bargaining. ATC/Vancom of California, L.P., 338 NLRB 1166, 1169 (2003), affd. 370 F.3d 692 (7th Cir. 2004); RCN Corp., 333 NLRB 295, 310 (2001). 35 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The judge’s decision also cites Shearer’s Foods, Inc., 340 NLRB 1093, 1094 fn. 4 (2003), as part of the Board’s decision in that case. The cited footnote, however, was Member Schaumber’s concurring footnote. 36 We find no merit in the Respondent’s contention that the judge erred in finding that it had knowledge of the alleged discriminatees’ protected activities. As the judge found, Shronda Williams identified to the Respondent’s managers the four employees who had invited her to a union meeting. Further, as to knowledge of protected activity of In arriving at these conclusions, we find that antiunion animus was a motivating factor in the Respondent’s ac- tions against those employees. In this regard, however, we find it unnecessary to rely on several factors cited by the judge—the Respondent’s antiunion campaign, its instructions to supervisors to keep managers informed of employee interest in the Union and to discourage union support, its refusal to recognize the Union, and its state- ments to employees that the facility was nonunion.37 We rely instead on other factors considered by the judge, which, taken together, establish unlawful motivation: • Disparate treatment. As the judge found, the Respondent discharged Smith for en- gaging in confrontational behavior, while giving only a verbal warning to a non- Candlewood employee for a similar of- fense. And, as discussed in sec. III,B be- low, the Respondent refused to hire four union stewards, allegedly because of prior disciplinary problems, yet hired several employees who had similar or worse dis- ciplinary records.38 • False or pretextual reasons given for the Respondent’s actions. The judge found that the Respondent gave a false account of Matos’ discharge, which supported an Union Stewards Davenport and Williams, steward certificates were displayed on the union bulletin board at the time that Spencer and Leo- nard toured the facility prior to July 1, and also on July 1, the date the Respondent took over the facility and operated with former Candle- wood supervisors. Plus, there was a heavy black dot by Davenport’s name on Hernandez’ list of problem employees, apparently indicating that she was a known steward. The General Counsel need not prove knowledge by direct evidence; knowledge may be reasonably inferred or imputed. See Active Transportation, 296 NLRB 431, 431–432 (1989) (knowledge inferred where, inter alia, three of four discharged employees engaged in union activities in the presence of employee who was an informer for the employer), enfd. 924 F.2d 1057 (6th Cir. 1991); Clark & Wilkins Industries, 290 NLRB 106 (1988) (imputing supervisor’s knowledge to employer where supervisor observed orga- nizing campaign in small shop), enfd. 887 F.2d 308 (D.C. Cir. 1989), cert. denied 495 U.S. 934 (1990); Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 814 (3d Cir. 1986) (permissible inference that supervisor communicated his knowledge of union activity to superiors), cert. de- nied 481 U.S. 1069 (1987). 37 Member Liebman does not disavow the judge’s reliance on state- ments to employees that the facility was nonunion. However, we are all in agreement that there is sufficient evidence of antiunion animus even without those statements. 38 See, e.g., Embassy Vacation Resorts, 340 NLRB 846, 848 (2003), rev. denied 2004 WL 210675 (D.C. Cir. 2004) (Board may draw infer- ence of unlawful motive from, inter alia, disparate treatment of certain employees compared with employees with similar work records or offenses). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 984 inference that the true motive was unlaw- ful.39 • The Respondent’s handling of the suspen- sions and discharges. As the judge found, the Respondent failed to investigate the Shronda Williams incident or to ask Dav- enport, Williams, Jimenez, or Smith their versions of what had occurred before sus- pending them. Similarly, concerning Smith’s discharge, the judge reasoned that Leonard’s failure to tell Smith that she suspected Smith had feigned illness to avoid weekend work, coupled with her failure to investigate (rejecting out of hand the doctor’s note Smith presented excusing her absence on medical grounds), sup- ported an inference that “something other than good faith prompted the leap to judg- ment.”40 • The Respondent’s unlawful conduct. Like the judge, we rely on the unlawful suspen- sions of Davenport, Williams, Jimenez, and Smith as evidence that their subse- quent discharges were unlawfully moti- vated. We also rely on the unlawful sus- pensions and discharges in finding that the refusals to hire discussed below were also unlawfully motivated. 39 See Jack in the Box Distribution Center Systems, 339 NLRB 40, 53 (2003). Matos’ positive evaluations support this inference, describ- ing her as “pleasant even in difficult situations” and “an inspiration,” and saying that she “seldom” or “never complains.” Even assuming that Matos had been insubordinate, the Respondent does not explain why it waited to discharge her from early July (when the Matos- Hernandez encounter allegedly took place) until July 23; moreover, the Respondent’s records reveal that employee Katrina Carpenter also had a conflict with management over work assignments but was not termi- nated for this reason. (Carpenter was subsequently terminated for “violation of company policies, inability-unsatisfactory work.”) Regarding motive (and in weighing credibility), the judge was rightly troubled by Leonard’s inconsistent explanations for Matos’ termination: at the hearing, Leonard testified that Matos was dis- charged for insubordination; in her deposition, Leonard testified that Matos’ termination was part of the plan to replace all staff. The judge was also rightly troubled by the inconsistent testimony concerning who actually fired Matos. Matos said Leonard fired her; Leonard said Her- nandez fired Matos; Hernandez did not testify. 40 Enforcement of rules against employees without sufficient prior investigation of their alleged misconduct, including withholding from the accused details of the accusation and denying them an opportunity to explain or deny their alleged misconduct, is evidence of unlawful motive. Joseph Chevrolet, Inc., 343 NLRB 7, 8 (2004), enfd. mem. 162 Fed. Appx. 541 (6th Cir. 2006); W. W. Grainger, Inc., 229 NLRB 161, 162 (1977), enfd. 528 F.2d 1118 (7th Cir. 1978). Consistent with his dissenting position in Joseph Chevrolet, supra at 11 fn. 3, Member Schaumber does not rely on the Respondent’s failure to investigate in finding antiunion animus. We also agree with the judge, for the reasons set forth in her decision, that the Respondent failed to establish that it would have suspended and later discharged the discriminatees even in the absence of their union and other protected conduct. Thus, • With regard to the suspensions, the judge relied, inter alia, on the Respon- dent’s “inexplicable willingness to forego even minimal investigation while hastily suspending employees for pro- moting a union meeting,” especially viewed against Shronda Williams’ inci- dent report, which revealed “neither word nor deed that might account for her extreme alarm.”41 • The judge rejected the Respondent’s ex- planation that the discharges of Daven- port, Williams, and Jimenez were merely part of its plan to replace all Candlewood employees. The judge noted that the Respondent had initially hired those three employees, that there was no evidence that they had per- formed unsatisfactorily during their “as- sessment” period, and that the Respon- dent had failed to explain why they were selected for termination over similarly situated employees.42 41 Member Schaumber relies solely on the insufficiency of Shronda Williams’ incident report in finding that the Respondent did not sustain its Wright Line rebuttal burden. As the judge stated, the Respondent “fail[ed] to explain how Shronda Williams’ vague and mild account of being invited to a union meeting could reasonably have prompted im- mediate suspension of five employees. . . .” Suspension of employees for union activities violates Sec. 8(a)(3). Krystal Enterprises, 345 NLRB 227, 227 (2005). Even assuming that Leonard held a good-faith belief that the employees had engaged in misconduct, her suspension of them based on her mistaken belief that they committed misconduct in the course of their protected activity still violated the Act. See NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964); Keco Industries, 306 NLRB 15, 17 (1992). 42 See SCA Tissue North America, LLC, 338 NLRB 1130, 1137– 1138 (2003), enfd. 371 F.3d 983 (7th Cir. 2004); Wright Line, 251 NLRB at 1090. Employees Keith Lacon and Linda Russo were both on the Spencer list, having negative records for patient care and safety, yet the Respondent retained them. Similarly, B. Rodriguez, M. Guzman, C. Guzman, and J. Fisher were also retained despite having as many or more absences than Davenport, who was ostensibly terminated for excessive absences. In fact, Davenport’s most recent evaluation rated her four out of five on “attendance” with the notation “seldom absent but gives prior notice,” and her overall evaluations are positive. More- over, as the General Counsel argues, the Respondent’s claim that it terminated the discriminatees because it had found replacements for them is undercut by Jt. Exh. 2 (titled “Reporting of New Hires from 07/01/04 through 12/21/04”), which shows no new hires between July WINDSOR CONVALESCENT CENTER OF NORTH LONG BEACH 985 • As stated above, the judge found that the Respondent gave a false account of Matos’ discharge. Having rejected the Respondent’s proffered reason for dis- charging Matos as pretext, it followed that the Respondent had not met its re- buttal burden.43 • Finally, as to Smith’s termination, the judge found that, although Smith’s con- frontational behavior on August 9 could have provided a legitimate basis for dis- charge, the Respondent failed to sustain its burden of proving that it would have discharged Smith for that confrontation even in the absence of her protected un- ion activity because, less than one month later, it punished similar behavior by a non-Candlewood employee by is- suing a mere verbal warning.44 B. Refusal to Hire Colter, Debra Smith, Hailey, and Moss Contrary to the judge, we find that the Respondent also violated Section 8(a)(3) by discriminatorily refusing to hire Union Stewards Edna Colter, Debra Smith, Sharie Hailey, and Annie Moss. The judge analyzed the refusal-to-hire issue under FES, 331 NLRB 9, 12 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). She found that the General Counsel had estab- lished all three elements of his initial burden: (1) the Respondent was hiring, (2) the applicants (by virtue of their previous employment at the facility) had relevant experience and training, and (3) antiunion animus con- tributed to the decision not to hire them. However, the judge then found that the Respondent had met its burden of demonstrating that it would not have hired Colter, Hailey, Moss, and Debra Smith even in the absence of their past union activities. Citing Neptco, Inc., 346 NLRB 18, 20 fn. 16 (2005), the judge reasoned that the 17 (3 days before the postsuspension reinstatement date) and July 28 (5 days after the date of discharge). 43 Limestone Apparel, 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982) (finding of pretext necessarily means that reasons ad- vanced by the employer either did not exist or were not, in fact, relied on). 44 The General Counsel alleged, alternatively, that the Respondent violated Sec. 8(a)(1) by terminating Smith for protected concerted activity. Because she found the 8(a)(3) violation, the judge found it unnecessary to pass on this alternative theory. The General Counsel excepts to the judge’s failure to rule on this theory. The General Coun- sel also takes issue with the judge’s statement, at sec. II,E (fn. 36) of her decision, that the Respondent’s wisdom in assigning work is not relevant. Because we affirm the judge’s findings of 8(a)(3) violations, we find it unnecessary to pass on these exceptions. Respondent’s “managerial opinion” that those four appli- cants’ past derelictions made them less fit for employ- ment than other applicants was entitled to deference, in the absence of evidence that its opinion was disingenu- ous.45 The judge stated that mere suspicion that union activity motivated the refusal to hire is insufficient to reject the Respondent’s otherwise cogent defense. After the judge issued her decision, the Board, in Planned Building Services, 347 NLRB 670 (2006), ad- dressed “the appropriate analytical framework to be ap- plied in determining whether an alleged successor em- ployer has unlawfully refused to hire its predecessor’s employees to avoid a bargaining obligation,” id. at 670. The Board reasoned that in a successorship context, a refusal to hire is analogous to a discriminatory discharge, and accordingly held that the Wright Line rather than the FES standard should be applied in such situations. Id. at 673. Planned Building Services was a “successorship avoidance” case; it involved a situation where an em- ployer had intentionally refused to hire predecessor em- ployees in such numbers that the union could not attain majority status. Id. at 672. The Respondent in this case took a different approach to avoiding Burns successor- ship from that of the respondent in Planned Building Services, supra. As discussed above, the Respondent did hire a majority of the predecessor’s employees, but main- tained that the “count” must be delayed until that group had shrunk to less than 50 percent of its unit-employee complement. Nonetheless, the Board’s logic in Planned Building Services and analogy to a discriminatory dis- charge situation apply equally here. Applying a Wright Line standard to the instant facts,46 as required by Planned Building Services, we conclude that the Re- spondent violated Section 8(a)(3) by refusing to hire Un- ion Stewards Colter, Debra Smith, Hailey, and Moss. As stated in Planned Building Services, to establish a refusal-to-hire violation in a successorship context, the General Counsel must prove that the employer failed to hire employees of its predecessor and was motivated by antiunion animus.47 Id. at 673. There is no dispute here that the Respondent failed to hire these four applicants. 45 We note that the judge declined to defer to the Respondent’s “business judgment” elsewhere in her decision. 46 Because we analyze this case under Wright Line, we need not ad- dress the Respondent’s exception that the General Counsel did not establish that the alleged discriminatees were “qualified.” 47 Member Schaumber adheres to his previously stated position that Wright Line requires a showing of a causal nexus between the union animus and the refusal to hire. Planned Building Services, above at 673 fn. 10 (citing North Fork Services Joint Venture, 346 NLRB 1025, 1026 fn. 7 (2006)). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 986 However, the Respondent disputes that it was motivated by antiunion animus. Applying Wright Line, there is no dispute that the four applicants, as former union stewards, had engaged in protected activity. In addition, we adopt the judge’s finding that the Respondent had knowledge of these four union stewards’ protected activities48 and that the refus- als to hire were unlawfully motivated. In so doing, we adopt the judge’s finding that the General Counsel estab- lished antiunion animus, but only for the reasons set forth in sec. III,A, above. We further find that the Respondent did not establish that it would have taken the same action in the absence of these applicants’ protected activities. The Respon- dent’s rebuttal boils down to an argument that these four stewards were bad employees. The Respondent supports this argument by its submission of the notated “Spencer list.” The Respondent did not introduce all of the under- lying disciplinary records that purportedly support Spencer’s notations. At the hearing, Spencer claimed that she could not locate those records—notably, those corresponding to Smith, Hailey, and Moss—and she im- plied that predecessor Covenant removed the documents. However, the General Counsel found most of the source documents related to the other employees on the 48 We reject the Respondent’s contention that the judge erred in find- ing knowledge. The judge found knowledge based, in part, on the “steward” notation next to Moss’ name on the “Hernandez list” and the heavy black dots adjacent to the names of union stewards on that list. We agree with the judge that it is reasonable to infer that the dots signi- fied the employees’ union stewardship, and also reasonable to infer that Hernandez communicated certain union-related information to the Respondent—particularly in light of the otherwise inexplicable appear- ance of the names Smith, Hailey, and Moss at the end of an otherwise alphabetical listing of names in GC Exh. 70, the incomplete version of the “Spencer list.” The judge also based her knowledge finding on certain “assumptions,” including the Respondent offering former Can- dlewood supervisors employment prior to July 1, and “work[ing] with Ms. Hernandez in organizing the takeover.” The record supports a factual finding that the Respondent initially retained Candlewood man- agers and supervisors who had direct knowledge of these employees’ union activities at Candlewood; the record also supports a finding that Hernandez helped “organize” the takeover in the sense that she pro- vided information to the Respondent and distributed and received em- ployment applications. In adopting the judge’s finding of knowledge, however, we rely on the Hernandez list and GC Exh. 70, rather than on the judge’s “assumptions,” at least to the extent that the latter reach beyond the record. We also rely on the clear record evidence that stew- ard certificates were posted on the bulletin board at the time that Spencer and Leonard toured the facility prior to the takeover, and that Spencer spent some time reviewing general personnel files, which contained documents (such as time adjustment forms or e-mails) that signaled an employee’s union involvement. While we agree with the Respondent that these latter facts do not directly establish knowledge, we think that it was reasonable for the judge to infer from the totality of the circumstances herein, that the Respondent had knowledge of the applicants’ union sympathies. “Spencer list,” and it strains reason to believe that Cove- nant would have sifted through the files to remove disci- plinary notices pertaining only to certain employees, let alone to certain employees who, coincidentally, hap- pened to be union stewards and would later be refused hire by its successor. We draw an adverse inference from these circumstances that, had they been introduced into evidence, the disciplinary records would not have supported the Respondent’s position.49 Extreme Building Services Corp., 349 NLRB 914, 931 (2007). We also rely on a comparison of the “Spencer list” submitted by the Respondent (R. Exh. 82) to the General Counsel’s Exhibit 70. Spencer and Leonard testified that Counsel’s Exhibit 70 was an “incomplete” version of Respondent’s Exhibit 82, which testimony the judge credited. We think it completely logical that Spencer, in reviewing files, would begin at the alphabetical begin- ning and proceed accordingly; and the “incomplete” list suggests that this is, indeed, exactly what Spencer did. In our view, however, the judge failed to see the signifi- cance in the manner in which Spencer completed the “incomplete” list, which suggests to us, by the addition of the names Smith, Hailey, and Moss at the end of an otherwise generally alphabetical list, that those stewards were targeted—an inference that gains force from the heavy black dots placed next to the same names, along with the “steward” notation next to Moss’ name, on the Hernandez list. Also significant is the Respondent’s hiring of employ- ees listed on the “Spencer list” with similar or demon- strably worse records than the union-steward applicants it refused to hire.50 Of the 26 employees on the “Spencer 49 Moss testified that, in the 15 years she had worked at the facility, she had been disciplined only once, in 1993 or 1994. Smith admitted that she had been disciplined for a medication error, but (contrary to the Spencer list notations) she denied ever being disciplined for absentee- ism. The Respondent submitted three verbal counselings for Colter, which Colter claimed she had never been shown. While Member Schaumber would not draw an adverse inference from the Respondent’s failure to provide documentation supporting the Spencer notations, he acknowledges that, in light of the conflicting testimony about prior discipline, the notations carry significantly less evidentiary weight than they would if supported by other documenta- tion. 50 For example, according to the “Spencer list,” Moss’ vague trans- gression was “[c]reating hostile work environment.” The “Spencer list” notes that Carrizalez had problems with “Res. Care” and “Team Work”; Hayes with resident “roughness,” for which he was suspended twice; and Lacon with “feeding technique,” “Res care,” and “t[aking leave of absence without supervisor] approval.” Nonetheless, the Re- spondent hired Carrizalez, Hayes, and Lacon. Similarly, according to the “Spencer list,” D[ebra] Smith had “[p]oor attendance” and a “[m]ed error.” The “Spencer list” shows that Dixon was listed for “[t]ardiness/attendance” and not “follow[ing instructions]”; Gibbs for “attendance”; and Groves for possibly “throwing out meds.” The Re- spondent hired Dixon, Gibbs, and Groves, too. WINDSOR CONVALESCENT CENTER OF NORTH LONG BEACH 987 list,” only eight were not hired; four of those were union stewards. Thus, even assuming that Respondent’s Ex- hibit 82 is a reliable indicator of problems (if not disci- pline), the Respondent’s hiring decisions reflect a dispa- rate treatment of union stewards vis-à-vis similarly situ- ated nonsteward applicants.51 Faced with the General Counsel’s evidence of dispa- rate treatment, the Respondent failed to counter with examples of similar treatment, nor did the Respondent offer any evidence that any of the replacements hired were superior to the Candlewood applicants it rejected. See Jennifer Matthew Nursing & Rehabilitation Center, 332 NLRB 300, 303–304 (2000). While the Respondent cites precedent holding generally that the Board cannot substitute its business judgment for an employer’s, the Board has previously stated that “[a]nalyzing the relevant evidence is not an exercise in second-guessing the [r]espondent.” Midnight Rose Hotel & Casino, 343 NLRB 1003, 1005 (2004), affd. mem. 2006 WL 2848103 (10th Cir. 2006). We do no more than that here. In sum, although mere suspicion is insufficient to es- tablish unlawful motivation,52 the Respondent’s failure to produce any disciplinary records for Moss,53 Smith54 and Hailey, along with the augmentation of the incomplete “Spencer list” by the nonalphabetical addition of their names at the end of an otherwise alphabetical listing, considered in conjunction with the black dots next to the same names and the “steward” notation on the “Hernan- dez list,” constitute a set of circumstances that are far 51 For this reason, we find it unnecessary to pass on the General Counsel’s exception that Spencer’s notations were inadmissible hearsay or improperly admitted under the “best evidence rule.” Moreover, the Respondent’s disparate treatment of steward and nonsteward applicants is apparent even excluding from consideration disciplinary records of other employees dated after October 31, 2004, which the judge ex- cluded from evidence. For this reason, we find it unnecessary to pass on the General Counsel’s exception that the judge improperly restricted disparate treatment evidence by rejecting these exhibits. 52 Neptco, Inc., 346 NLRB 18, 19 (2005). 53 Moss’ case presents a good example of more than suspicious cir- cumstances. She had worked as an LVN at Candlewood since 1989; testified at the representation case hearing; was a steward and had rep- resented employees in disciplinary meetings attended by former Can- dlewood supervisors retained by the Respondent; and was a member of the Union’s negotiating team. Her sense of identification with her union role is revealed by an e-mail in evidence concerning negotiations, which notes that “Annie [Moss] needs to get over [it] and get on with her life.” Despite having received a commendation (in evidence as GC Exh. 24) and a recent excellent evaluation (GC Exh. 25), and with no disciplinary write-ups, she was asked only three questions during her interview and was rejected for employment by the Respondent. Simi- larly, Hailey had good evaluations, and Colter’s file contained a certifi- cate of appreciation. 54 While the Respondent produced no disciplinary write-ups for Smith, she admitted that she probably received more than one write-up for medication errors. more than merely suspicious. On the basis of these cir- cumstances, in conjunction with the disparate treatment evidence discussed above, and in the absence of evidence demonstrating that the Respondent would have taken the same action absent these four applicants’ union activities, we find that the Respondent violated Section 8(a)(3) by refusing to hire them. IV. THE 8(a)(1) ALLEGATIONS The judge found that the Respondent violated the Act by its July 1 statements to union representatives, in em- ployees’ presence, that there was no union at the facility and that the facility was not a union facility, and by its July 23 statements at an employee staff meeting that the facility was not a union facility and that employees were not union employees. The judge found that the Respon- dent’s statements, at a time when it had an obligation to recognize the Union, negated the Union’s representative role and reasonably tended to undercut the Union’s standing among employees, and thus independently vio- lated Section 8(a)(1). Excepting, the Respondent first contends that Leonard did not make these statements. We have rejected that contention in adopting the judge’s credibility findings. The Respondent also contends that even if Leonard made the statements, they were protected under Section 8(c) of the Act because they contained no threats of reprisal and were based on the objective fact that Windsor’s other facilities were nonunion.55 We adopt the judge’s findings that Leonard’s state- ments violated the Act. First, as found by the judge, at the time that Leonard made these statements, the Re- spondent had hired a majority of its predecessor’s em- ployees, and had, as we have found above, an obligation to bargain with the Union. Certainly, as the judge rea- soned, to tell employees that there was no union when, in fact, there was, undermined the Union’s representative role. As for the Respondent’s argument that Leonard honestly believed that the Respondent was nonunion, motive is not a necessary element of an 8(a)(1) violation. The Board’s well-settled test is whether the employer’s conduct reasonably tends to interfere with employees’ Section 7 rights. American Freightways Co., 124 NLRB 55 In support, the Respondent cites P.S. Elliott Services, 300 NLRB 1161, 1162 (1990). However, in Eldorado, Inc., 335 NLRB 952, 953 (2001), a Board majority distinguished P.S. Elliot on the basis that, there, the new employer “could not have inherited any bargaining obli- gation even if it had hired all 8 of the predecessor’s employees”; thus, the employer’s statement that the new business would be nonunion truthfully stated objective fact. Here, however, like the successor in Eldorado, the Respondent had no objective basis on either July 1 or 23, for stating that Windsor would be nonunion; it could, and in fact did, inherit a bargaining obligation by retaining a majority of its predeces- sor’s employees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 988 146, 147 (1959). Thus, assuming arguendo that Leonard sincerely but mistakenly believed that the Respondent’s Windsor facility was nonunion, her statements neverthe- less negated the Union’s legitimate status as the employ- ees’ bargaining representative. The Board has found violative of the Act statements that convey the futility of selecting a union as bargaining representative or that suggest that the employer may refuse to bargain with the union,56 and statements that convey an intent to repudiate a union’s representative status.57 Finally, Leonard’s “no union here” statements must be considered in context. Venture Industries, supra. On both occasions, July 1 and July 23, Leonard’s statements were not made in response to employee questions.58 When Leonard made her statements on July 1, the Re- spondent had, as found above, unlawfully failed to hire four union stewards. By the time she made her state- ments on July 23, the Respondent had unlawfully sus- pended employees for inviting another employee to a union meeting; and on that same day, the Respondent unlawfully terminated five employees for their protected and/or union activities. Employees hearing these state- ments at the July 23 staff meeting and considering them in the context of the suspensions and terminations would reasonably be reluctant to avail themselves of their Sec- tion 7 rights for fear of similar treatment. Thus, at a minimum, Leonard’s July 23 statements violated the Act, as they reasonably tended to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.59 V. AMENDED REMEDY We amend the judge’s proposed remedy to address the additional 8(a)(5), (3), and (1) violations that we have 56 Venture Industries, 330 NLRB 1133 (2000). 57 Hotel Roanoke, 293 NLRB 182, 189 (1989) (finding unlawful statement that the “union will not be there much longer”). See also Soltech, Inc., 306 NLRB 269 (1992) (finding that employer conveyed futility and thus violated Sec. 8(a)(1) by stating that the union was not coming in, it was not and would not be a union company, it would not have a union in the plant, it did not need a union, and that it would do everything it could to run the company in a nonunion fashion). 58 Compare Brown & Root, Inc. v. NLRB, 333 F.3d 628 (5th Cir. 2003), where the Fifth Circuit denied enforcement of a Board decision holding that an employer’s pretakeover statements to prospective em- ployees who were union members that the employer was a “non-union company” and “intended to stay that way” violated Sec. 8(a)(1). The court noted that the remarks were in response to employee questions at meetings held to inform employees of job opportunities with the new employer, and made in a context where the employer already employed nonunion employees in another operation at the facility; thus, in the absence of other violations, employees could not reasonably conclude that the employer was threatening reprisals for their union support. 59 From a remedial perspective, the July 1 statements were cumula- tive of the July 23 statements. Thus, even assuming the July 1 state- ments were not unlawful, our Order would remain unchanged. found. To remedy the 8(a)(5) violations, the Respondent must, at the Union’s request, restore the terms and condi- tions of employment established by its predecessor, re- scinding the unilateral changes it has made; recognize and bargain with the Union; and make its employees whole for their losses. See, e.g., Planned Building Ser- vices, 347 NLRB 670, 674 (2006). The make-whole remedy for these violations shall be computed in accor- dance with Ogle Protection Service, 183 NLRB 602 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent shall also remit any payments it owes to employee benefit funds in the manner set forth in Merryweather Optical Co., 240 NLRB 1213 (1979), and reimburse its employees for any expenses resulting from its failure to make such pay- ments as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). The Board’s traditional make-whole remedy runs from the date of the successor’s unlawful refusal to bargain (here, July 1, 2004) until the successor, consistent with the Board’s order, reaches a new agreement or bargains to a lawful impasse. Planned Building Services, supra at 675. However, in a compliance proceeding, the Respon- dent will be permitted to introduce evidence establishing that, had it lawfully bargained with the Union, “it would not have agreed to the monetary provisions of the prede- cessor employer’s collective-bargaining agreement, and further establishing either the date on which it would have bargained to agreement and the terms of the agree- ment that would have been negotiated, or the date on which it would have bargained to good-faith impasse and implemented its own monetary proposals.” Id. at 676.60 60 Member Schaumber emphasizes, as he did in Planned Building Services, supra at 676 fn. 24, that to avoid a penal remedy, the terms of the predecessor should be imposed “‘only for a period allowing for a reasonable time of bargaining.’” Capital Cleaning Contractors, Inc. v. NLRB, 147 F.3d 999, 1011 (D.C. Cir. 1998) (quoting Kallmann v. NLRB, 640 F.2d 1094, 1103 (9th Cir. 1981)). Moreover, in determin- ing both the length of that period and the terms the Respondent would have agreed to, the Board’s obligation is simply to “approximate what would have occurred,” Capital Cleaning Contractors, Inc., supra at 1011, for, as the courts have cautioned us, “[n]o one can know with certainty what wage[s] [the Respondent] would have agreed to.” Id. See also Kallmann, supra at 1103 (recognizing that “in all probability” Kallmann’s refusal to pay the rate established by its predecessor would have led to an impasse allowing Kallmann to reduce wages). Member Schaumber concurs with the D.C. Circuit that the best evidence of the wage a successor likely would have agreed to pay may well be the rate it actually did pay to secure labor to perform the work previously done by its predecessor’s employees. Capital Cleaning Contractors, Inc., supra at 1011. WINDSOR CONVALESCENT CENTER OF NORTH LONG BEACH 989 To remedy the 8(a)(3) refusal-to-hire violation, the Re- spondent must offer employment to the individuals it discriminatorily refused to hire and make them whole for their losses. Id., slip op. at 7. Thus, we will require the Respondent to offer Edna Colter, Debra Smith, Sharie Hailey, and Annie Moss employment in their former positions or, if those positions no longer exist, in sub- stantially equivalent positions, and to make them whole for any loss of earnings or other benefits, computed on a quarterly basis from July 1, 2004, to the date it offers to instate them, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus in- terest as computed in New Horizons for the Retarded, supra.61 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as 61 The General Counsel excepts to the judge’s failure to order notice posting in both English and Spanish. Although the Board has previ- ously ordered postings in both languages, it has generally done so under circumstances where “a substantial number” or a “majority” of the respondent’s employees are Spanish-speaking. Bergensons Property Services, 338 NLRB 883 (2003); Tres Estrellas de Oro, 329 NLRB 50, 50 fn. 3 (1999); Three Sisters Sportswear Co., 312 NLRB 853 (1993), enfd. mem. 55 F.3d 684 (D.C. Cir. 1995), cert. denied 516 U.S. 1093 (1996). The General Counsel supports its exception only by citation to Leonard’s testimony that Spencer interviewed housekeeping depart- ment employees because “a lot of them did not speak English and Carol Spencer can speak Spanish.” Documents in evidence show that house- keeping employees comprised only approximately 10 percent of the Base unit employees. Under these circumstances, we reject the General Counsel’s request that we modify the judge’s recommended Order to require bilingual notice posting. Member Liebman would require the Respondent to post remedial notices in Spanish as well as English. The Respondent chose a man- agement representative fluent in Spanish to interview the housekeeping employees because “a lot” of those employees did not speak English. The Respondent, who does not object to posting in Spanish, clearly recognizes the need to communicate with the employees in Spanish, and so should the Board. Unless the Board’s notice is also posted in Spanish, a significant portion of the Respondent’s employees will ef- fectively be deprived of the information contained in the notice. In Member Liebman’s view, the majority wrongly suggests that bilingual notice posting is warranted only when a majority or a “substantial number” of employees speak a foreign language. In fact, the Board has ordered postings in languages other than English on lesser showings. Thus, the Board required the employer to post notices in Spanish, Por- tuguese, and Haitian Creole, as well as English, when “some unit em- ployees [were] not native English speakers and may have difficulty understanding a notice posted . . . in English.” Jewish Home for the Elderly of Fairfield County, 343 NLRB 1069, 1071, 1123 (2004) (em- phasis added), enfd. 174 Fed. Appx. 631 (2d Cir. 2006). And in the absence of opposition, the Board ordered notices to be posted in Span- ish and English when the two discriminatees had limited proficiency in English. Barnard College, 340 NLRB 934 fn. 2 (2003). When the need for posting in Spanish is so apparent and the burden of a second posting is so minimal, Member Liebman sees no justification for de- priving employees of the opportunity to be informed as to their rights under the Act. modified and set forth in full below and orders that the Respondent, S&F Market Street Healthcare LLC d/b/a Windsor Convalescent Center of North Long Beach, Long Beach, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and to bargain in good faith with Service Employees International Union, Local 434B (the Union), as the collective-bargaining representative of its employees in the following separate appropriate units: The Base Unit All full-time and regular part-time nurses aides, certi- fied nurse assistants, restorative aides, orderlies, dietary employees, activity assistants and housekeeping em- ployees employed at the nursing facility. The LVN Unit All full-time and regular part-time Licensed Vocational Nurses (LVNs) employed at the nursing facility. (b) Unilaterally changing wages, hours, and other terms and conditions of employment of employees in the Base and LVN units, without first giving notice to and bargaining with the Union. (c) Refusing to hire job applicants because of their un- ion membership or sympathies. (d) Suspending or discharging any employee for en- gaging in union or other concerted protected activities. (e) Informing employees that its North Long Beach fa- cility is not a union facility. (f) 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) Recognize and, on request, bargain collectively with the Union as the exclusive representative of the em- ployees in both the Base and LVN units with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if agreements are reached, em- body such agreements in signed documents. (b) On request of the Union, rescind any departures from terms and conditions of employment that existed prior to its commencing operations at the North Long Beach facility on July 1, 2004, retroactively restoring preexisting terms of employment, as set forth in the rem- edy section of this decision. (c) Make whole, in the manner set forth in the remedy section of this decision, the unit employees for losses caused by the Respondent’s failure to apply the terms and conditions of employment that existed prior to its DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 990 commencing operations at its North Long Beach facility, subject to the Respondent demonstrating in a compliance hearing that, had it lawfully bargained with the Union, it would have, at some identifiable time, lawfully imposed less favorable terms than those that had existed under its predecessor. (d) Within 14 days from the date of this Order, offer employment to former Candlewood employees Edna Colter, Debra Smith, Sharie Hailey, and Annie Moss in the positions they formerly occupied or, if such positions no longer exist, in substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, discharging if necessary any employees hired in their place. (e) Within 14 days from the date of this Order, offer full reinstatement to Tracy Davenport, Nana Williams, Nereida Jimenez, Gladys Matos, and Tara Smith to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their sen- iority or any other rights or privileges previously en- joyed. (f) Make Edna Colter, Debra Smith, Sharie Hailey, Annie Moss, Tracy Davenport, Nana Williams, Nereida Jimenez, Gladys Matos, and Tara Smith whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of the judge’s decision as supple- mented by the remedy section of this decision. (g) Within 14 days from the date of this Order, remove from its files any reference to the unlawful suspensions and discharges of Tracy Davenport, Nana Williams, Ne- reida Jimenez, and Tara Smith, the unlawful discharge of Gladys Matos, and the unlawful refusal to hire Edna Colter, Debra Smith, Sharie Hailey, and Annie Moss and, within 3 days thereafter, notify them in writing that this has been done and that the suspensions, discharges, and/or refusals to hire will not be used against them in any way. (h) 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 re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (i) Within 14 days after service by the Region, post at its facility in Long Beach, California, copies of the at- tached notice marked “Appendix.”62 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 21, after being signed by the Respondent’s author- ized representative, 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. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by Respondent at any time since July 1, 2004. (j) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 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 vio- lated 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 fail or refuse to recognize and to bargain in good faith with Service Employees International Un- ion, Local 434B (the Union), as the collective-bargaining representative of our employees in the following separate appropriate units. The Base Unit All full-time and regular part-time nurses aides, certi- fied nurse assistants, restorative aides, orderlies, dietary 62 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” WINDSOR CONVALESCENT CENTER OF NORTH LONG BEACH 991 employees, activity assistants and housekeeping em- ployees employed at the nursing facility. The LVN Unit All full-time and regular part-time Licensed Vocational Nurses (LVNs) employed at the nursing facility. WE WILL NOT unilaterally change wages, hours, and other terms and conditions of employment of employees in the Base and LVN units, without first giving notice to and bargaining with the Union. WE WILL NOT refuse to hire job applicants because of their union membership or sympathies. WE WILL NOT suspend or discharge any employee for engaging in union or other concerted protected activities. WE WILL NOT inform employees that our North Long Beach facility is not a union facility. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights listed above. WE WILL recognize and, on request, bargain collec- tively with the Union as the exclusive representative of the employees in both the Base and LVN units with re- spect to rates of pay, wages, hours, and other terms and conditions of employment and, if agreements are reached, embody such agreements in signed documents. WE WILL, on request of the Union, rescind any depar- tures from terms and conditions of employment that ex- isted prior to our commencing operations at the North Long Beach facility on July 1, 2004, retroactively restor- ing preexisting terms of employment. WE WILL make whole the unit employees for losses caused by our failure to apply the terms and conditions of employment that existed immediately prior to our com- mencing operations at our North Long Beach facility, subject to our demonstrating in a compliance hearing that, had we lawfully bargained with the Union, we would have, at some identifiable time, lawfully imposed less favorable terms than those that had existed under our predecessor, Covenant Care Orange, Inc. WE WILL, within 14 days from the date of the Board’s Order, offer employment to former Candlewood employ- ees Edna Colter, Debra Smith, Sharie Hailey, and Annie Moss in the positions they formerly occupied or, if such positions no longer exist, in substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges previously enjoyed, discharging if neces- sary any employees hired in their place. WE WILL, within 14 days from the date of the Board’s Order, offer full reinstatement to Tracy Davenport, Nana Williams, Nereida Jimenez, Gladys Matos, and Tara Smith to their former jobs or, if those jobs no longer ex- ist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Edna Colter, Debra Smith, Sharie Hailey, Annie Moss, Tracy Davenport, Nana Williams, Nereida Jimenez, Gladys Matos, and Tara Smith whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful suspensions and discharges of Tracy Davenport, Nana Williams, Nereida Jimenez, and Tara Smith, the unlawful discharge of Gladys Matos, and the unlawful refusal to hire Edna Colter, Debra Smith, Sharie Hailey, and Annie Moss, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the suspen- sions, discharges, and/or refusals to hire will not be used against them in any way. S&F MARKET STREET HEALTHCARE LLC D/B/A WINDSOR CONVALESCENT CENTER OF NORTH LONG BEACH Alan L. Wu and Jean Libby, Esqs., for the General Counsel. Laurence R. Arnold, Joshua M. Sable, and Scott P. Inciardi, Esqs. (Foley & Lardner LLP), of San Francisco, California, for the Respondent. Dana S. Martinez and Elizabeth Garfield, Esqs. (Holguin and Garfield), of Los Angeles, California, for the Charging Party. DECISION STATEMENT OF THE CASE LANA H. PARKE, Administrative Law Judge. This matter was tried in Los Angeles, California, on September 14 through 16, October 19 through 21, and November 7 and 8, 2005,1 upon amended consolidated complaint and amended notice of hear- ing (the complaint) issued August 11, 2005, by the Regional Director for Region 21 of the National Labor Relations Board (the Board) based upon charges filed by Service Employees International Union, Local 434B, AFL–CIO (the Union or the Charging Party), by Annie Moss, an individual, and by Tara Smith, an individual. The amended consolidated complaint, alleges S&F Market Street Healthcare LLC d/b/a Windsor Convalescent Center of North Long Beach (Respondent) vio- lated Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act (the Act). Respondent essentially denied all allega- tions of unlawful conduct. ISSUES 1. Was Respondent a successor to Covenant Care Orange, Inc., d/b/a Candlewood Care Center on and after July 1? 2. Did Respondent violate Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union concerning the terms and 1 All dates herein are 2004, unless otherwise specified. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 992 conditions of employment of employees in appropriate units represented by the Union? 3. Did Respondent violate Section 8(a)(5) and (1) of the Act by unilaterally implementing changes to the terms and condi- tions of employment of employees employed in appropriate units represented by the Union without prior notice to the Un- ion and without affording the Union an opportunity to bargain regarding the changes. 4. Did Respondent violate Section 8(a)(3) and (1) of the Act on and after June 30 by refusing to hire Edna Colter, Debra Smith, Sharie Hailey, and Annie Moss? 5. Did Respondent violate Section 8(a)(3) and (1) of the Act on July 7 by suspending employees Tracy Davenport, Nana Williams, Nereida Jimenez, and Tara Smith? 6. Did Respondent violate Section 8(a)(3) and (1) of the Act on July 23 by terminating employees Tracy Davenport, Nana Williams, Nereida Jimenez, and Gladys Matos? 7. Did Respondent violate Section 8(a)(3) and (1) of the Act on August 10 by terminating employee Tara Smith? 8. Did Respondent engage in the following independent vio- lations of Section 8(a)(1) of the Act: inform employees there was no union at its facility or that the facility was not a union facility and promulgate and maintain a rule requiring employ- ees not to remain in the facility parking lot to talk to each other at the end of their shifts. On the entire record,2 including my observation of the de- meanor of witnesses and after considering the briefs filed by the General Counsel, Respondent, and the Charging Party, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a California corporation, doing business as Windsor Convalescent Center of North Long Beach has, at all relevant times, been engaged in the operation of a skilled nurs- ing facility located on Market Street in Long Beach, California (North Long Beach facility). During the 12-month period commencing July 1, Respondent derived gross revenues in excess of $100,000 and purchased and received at the North Long Beach facility goods valued in excess of $5000, which originated from points located outside the state of California. I find Respondent has at all relevant times been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent admits, and I find, the Union has at all relevant times been a labor organization within the meaning of Section 2(5) of the Act.3 2 Counsel for the General Counsel’s motion, joined in by the Charg- ing Party, to strike the documents attached to Respondent’s post- hearing brief that were not admitted into evidence during the hearing, is granted. Respondent’s motion to strike counsel for the General Coun- sel’s references in his posthearing brief to rejected GC Exh. 104 is granted. The General Counsel’s motion to correct the transcript at 203:16 from “employees” to “employers” is granted. 3 Unless otherwise explained, findings of fact herein are based on party admissions, stipulations, and uncontroverted testimony. II. ALLEGED VIOLATIONS OF SECTION 8(a)(5) A. Successorship Issue and Refusal to Bargain SnF Management, Inc. (SnF Management) operates skilled nursing facilities (SNFs) in California under the name “Win- dsor.”4 Pursuant to its overall business plan, SnF Management seeks to attract so-called high acuity patients to its SNFs who qualify for Medicare reimbursement rates. For Respondent’s purposes, the optimal SNF residents are post-acute care patients who need a SNF level of care, including rehabilitative services, for 4 to 6 weeks after hospitalization. Prior to July 1, Covenant Care Orange, Inc. (Covenant Care) operated the North Long Beach facility under the business name, Candlewood Care Center (Candlewood). Covenant Care was signatory to separate collective-bargaining agreements with the Union. The agreements had respective terms of Au- gust 31, 2001 through August 1, 2003 and May 1, 2002 through August 1, 2004, and covered, respectively, the following units (the Base unit and the LVN unit):5 The Base Unit6 All full-time and regular part-time nurses aides, certified nurse assistants, restorative aides, orderlies, dietary employees, ac- tivity assistants and housekeeping employees employed at the nursing facility. The LVN Unit All full-time and regular part-time Licensed Vocational Nurses (LVNs) employed at the nursing facility. Tracy Davenport (Davenport), Gladys Matos (Matos), Edna Colter (Colter), Sharie Hailey (Hailey), Annie Moss (Moss), Nana Williams, and Debra Smith served as union stewards at Candlewood.7 By early 2004, SnF Management was considering acquiring the North Long Beach facility. In February, SnF Management reviewed a property condition report on the facility prepared by 4 In addition to Respondent, SnF Management has SNFs in San Diego, National City, Anaheim, Hawthorne, Los Angeles, Van Nuys, North Hollywood, and another in Long Beach (Windsor Gardens of Long Beach). 5 Negotiations following the expiration of the Base unit agreement continued until the sale of the nursing facility. 6 Respondent refers to this unit as the “Service Unit.” 7 Although Respondent denies knowing, prior to its takeover of the facility on July 1, which employees were union stewards, I cannot accept that assertion. Respondent offered supervisory employment to several Candlewood supervisors, including Candlewood administrator, Carmen Hernandez. It is reasonable to assume Respondent did so prior to July 1, and to assume that Respondent worked with Hernandez in organizing the takeover. Decisions relating to the takeover included whether or not to recognize the Union, and it is reasonable to infer that Hernandez communicated union-related information to Respondent. Logically, the identity of union stewards would have been pertinent information. Moreover, a list of problem employees prepared by Her- nandez in June distinguished the names “Davenport,” “Haley,” “Moss,” and “Debra Smith” with heavy, adjacent black dots, and the name of “Moss” bore the additional notation, “steward.” It is reasonable to infer that the dots signified the employees’ union stewardship in the Candle- wood bargaining units. I find that Respondent knew that Colter, Smith, Hailey, and Moss were union stewards prior to July 1. WINDSOR CONVALESCENT CENTER OF NORTH LONG BEACH 993 Eckland Consultants Inc. The report cited numerous mainte- nance problems including damaged pavement, peeling paint, inappropriate roof storage, poor water drainage, decayed win- dow frames, deteriorated flooring and screening, moribund air conditioning, and clogged plumbing. The report estimated improvement and repair costs at $187,500. Respondent re- viewed revenue calculations for the North Long Beach facility, which showed the facility, as operated by Candlewood, primar- ily accommodated low acuity patients with commensurately low reimbursement rates unlike Respondent’s overall SnF Management plan, which was to attract high reimbursement rate patients. In the ensuing months, several representatives of Respondent toured the North Long Beach facility. Respondent called a number of witnesses to testify regarding the conditions at the North Long Beach facility prior to July 1. The testimony of all Respondent’s witnesses need not be fully recounted. Those of Ken Barry Dyches (Dyches), Vice Presi- dent of Risk Management and Corporate Compliance with SnF Management, and Kathleen Leonard (Leonard), Respondent’s director of human resources, are generally illustrative of the evidence Respondent offered on this issue. Dyches toured the North Long Beach facility during the early weeks of June. He testified that he observed filthy and neglectful conditions in the facility, e.g., residents drinking liquor they had purchased from the corner liquor store, unkempt residents, insufficient supplies of bed linen, deteriorating mattresses, unexplained bruising on residents, and pigeons, cockroaches, and rodents in the build- ing. Leonard visited the North Long Beach facility on several occasions between April and July. She testified she observed the facility to be dark, dingy, noisy, and noisome, saw evidence of pigeons inside the building, dead cockroaches, insects, and rodent droppings, saw cleaning equipment and carts crowding the hallways, noticed inadequate cleaning and sanitation proce- dures, observed staff inattention to patients, and found the medical patients to be inactive, bored, and untidy and the men- tal patients to be agitated or restless. In Respondent’s opinion, the conditions it observed at the North Long Beach facility evidenced an indifference by Candlewood staff toward main- taining a quality work environment, as “no [employees] would allow themselves to work in a building that was in [such a poor] condition.” Accordingly, Leonard recommended to up- per management that Respondent replace all the staff at the North Long Beach facility, take measures to provide an appro- priate level of care for its residents, and completely overhaul the facility. The General Counsel, on the other hand, proffered contrary evidence from former Candlewood employees to the following effect: the facility was well maintained with only rare and iso- lated incidents involving pigeons or vermin, which were imme- diately and effectively addressed by Candlewood management and staff; the facility’s odor, while intermittently and inescapa- bly reflecting the bodily functions of incontinent patients, gen- erally manifested only the antiseptic smell normally associated with nursing facilities; the nursing staff were attentive to pa- tients and hygienic and professional in practice and demeanor; Candlewood regularly provided the residents with mental and sensory stimulation, as well as physical and social activities, including monthly candlelight dinners where nonalcoholic sparkling cider was served.8 Respondent found it was unable to eliminate the entire Can- dlewood staff prior to takeover, as replacement employees were not immediately available. Respondent determined, however, to weed out those Candlewood employees it deemed least suit- able for employment. Leonard directed Carol Spencer (Spencer), director of staff development, to obtain assessments from Carmen Hernandez (Hernandez), Candlewood administra- tor, as to which employees had objectionable work records and to conduct her own review of Candlewood employee files with the purpose of identifying Candlewood employees to whom Respondent would not offer employment. Further, Respondent determined that after eliminating unacceptable applicants, it would offer only temporary employment for up to a 90-day period to the remainder of the Candlewood staff. In preparation for its assumption of the Candlewood busi- ness, Respondent actively recruited employees for the North Long Beach facility from staff at its other facilities and from the general population. Respondent also provided job applica- tions to the existing Candlewood staff, and Leonard, Spencer, and Carren Chastek (Chastek), Respondent’s regional director of clinical services, conducted brief job interviews with inter- ested employees. There is no evidence Respondent’s interviewers mentioned the Union in any job interview. There is conflicting evidence as to whether Respondent told the Candlewood job seekers that the employment offered was temporary. Leonard, Chastek, and Spencer testified they told employees that any employment offered would be temporary for up to 90 days. When employ- ees asked what was meant by “temporary,” Leonard told them Respondent would look at their work and assess them. Re- spondent did not tell any former Candlewood employee that its goal was to replace them within 90 days. Former Candlewood employees testifying for Respondent ei- ther corroborated Leonard, Chastek, and Spencer’s testimony or recalled, essentially, that Respondent’s interviewers said em- ployees would be reviewed for 90 days or would be on 90-days probation, during which period Respondent would notify them whether they had “passed” the review. Former Candlewood employees testifying for the General Counsel generally denied that Respondent’s interviewers said employment would be temporary. I do not specifically credit the accounts of one set of witnesses over the other. Rather, the record supports a find- ing that while Leonard, Spencer, and Chastek told applicants their employment would be temporary for up to 90 days, they also conveyed the clear understanding that Respondent was hiring them as “temporary” employees in order to assess their skills and abilities and that Respondent would review their 8 The Charging Party sought to introduce a multipage report on Southern California Windsor facilities’ regulatory compliance, entitled “Crisis of Care” prepared by Ari Yampolski, researcher for the Union, which addressed asserted patient care deficiencies in Windsor facilities. The purpose of the proffered evidence was to show that Respondent, being itself remiss in patient care quality, must have been disingenuous in criticizing Candlewood’s standards or in deciding not to hire certain employees because of past work performance issues. As the report is not clearly probative of the issues before me, I declined to receive it. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 994 work during the 90-day period and offer regular employment to those who passed the review. Following the interviews, Leonard offered employment to 94 Candlewood employees and managers. Respondent mailed or hand-delivered offers of employment dated June 30, 2004, to Candlewood employees, which read, in pertinent part, as fol- lows: SUBJECT: OFFER OF TEMPORARY EMPLOYMENT . . . . Congratulations! We are pleased to offer you tempo- rary employment with Windsor Gardens-North Long Beach (“Windsor”) for a period of up to 90 days . . . we look forward to the contributions you will make during your temporary employment. . . . . Because Windsor will not have purchased or taken over the operations of the facility currently known as Can- dlewood until July 1st, we have been unable to assess your skills and abilities, as well as the building’s ongoing op- erational and staffing needs. It is for this reason that your offer of employment is temporary in nature. No later than the expiration of the 90-day period, which ends on Sep- tember 29th, your employment with Windsor will end, unless you are selected for regular employment. We will select our workforce from among the most qualified can- didates, whether from Candlewood or elsewhere. If you express a continued interest in employment during this 90- day period, you will be notified if selected for regular em- ployment.9 SnF Management assumed ownership and management of the North Long Beach facility on July 1. Respondent was aware the Union had represented the Candlewood employees at the facility and had been signatory to collective bargaining agreements with Covenant Care. By letter dated June 29, Hirst had advised Respondent that the Union was the recognized representative of the Candlewood workers and requested a meeting to discuss the terms of the collective-bargaining agreements covering those workers. By letter dated July 1, Hirst notified Respondent that the Union represented a majority of the Candlewood employees and again requested a meeting. Upon its July 1 takeover of the North Long Beach facility, Respondent employed approximately 120 individuals there, over 75 percent of whom had been Candlewood employees. Ten to 12 employees were non-Candlewood recruits, whom Respondent considered probationary or regular employees. Respondent issued employee handbooks to both temporary and probationary employees. Respondent included an em- ployee handbook in each probationary employee’s employment packet. Respondent distributed employee handbooks to the temporary employees at an employee meeting held July 9. 9 It is unnecessary to determine whether all hirees received the letter; the record as a whole supports a finding that Respondent informed all former Candlewood employees that it would review their work per- formance over a 90-day period, during which Respondent would select qualified employees for regular status and that Respondent termed the 90-day period as “temporary” employment. Both handbooks contained Respondent’s terms and conditions of employment for employees in the classifications covered by the Base and LVN units. Both handbooks contained the fol- lowing language: EMPLOYEE STATUS AND COMPENSATION A. INTRODUCTORY PERIOD All new and rehired employees work on an introduc- tory basis for the first ninety-(90) calendar days after their date of hire. The introductory period is intended to give new employees the opportunity to demonstrate their ability to achieve a satisfactory level of performance and to de- termine whether the new position meets their expectations. The Company uses this period to do an initial evaluation of employee capabilities, work habits and overall perform- ance. . . . . . . . Upon satisfactory completion of the introductory pe- riod, employees enter one of the “regular” employment classifications. . . . . Regular Employee Employees who have completed their introductory pe- riod of employment. . . . . . . . Temporary Employee Temporary employees are those who are hired on an interim basis to temporarily supplement the work force or to assist in the completion of a specific project. Employ- ment assignments in this category are of a limited dura- tion. Employment beyond any initially stated period does not in any way imply a change in employment status. Temporary employees retain that status unless and until notified of a change by the Office Manager. Temporary employees are ineligible for any of the Company benefit programs, except those mandated by law. The employee handbooks given to probationary employees differed from the handbooks given to temporary employees in that the former listed ten categories of employee benefits, in- cluding vacation pay, holiday pay, sick pay, group health and dental insurance, and employee education reimbursement,10 whereas the latter listed only five categories, all of which were mandated by law: workers compensation, state disability insur- ance, unemployment insurance, social security, and paid family leave. By letter dated July 7, Respondent’s attorneys replied to the Union’s earlier requests for bargaining, stating, in pertinent part: While we understand that your labor organization was the recognized representative of certain employees of the previ- ous owner/employer, it is premature for your organization to claim representation rights for any of our employees at that 10 Probationary employees did not, however, become eligible for these benefits until after completion of their 90-day probationary pe- riod. WINDSOR CONVALESCENT CENTER OF NORTH LONG BEACH 995 location. Whether or not you can rightfully and lawfully claim representation rights as to any group of such employees will depend upon a determination that can only be made once we have a representative complement of regular employees. That has not yet occurred. Accordingly, we reject your re- quest for recognition, and each of your other requests and demands at this time. During the 90-days following July 1, Respondent’s supervi- sors at the North Long Beach facility observed both probation- ary and temporary employees’ work and decided to retain cer- tain former Candlewood employees based on work perform- ance, how they handled their jobs, attendance, and skill level “just like every other employee.”11 During the 90-day period, Respondent notified various temporary employees that Re- spondent had selected them for regular employment. On Aug 10, for example, Leonard offered ten temporary employees regular jobs. Respondent also listed the names of Candlewood employees who had been offered and accepted regular em- ployment in its weekly newsletters to staff. As of October 1, Respondent had “transitioned” 30–40 temporary employees to regular status.12 Upon their transition into regular employment, Respondent gave the temporary employees the same handbooks probation- ary employees received. Temporary employees who attained regular status did not have to commence a 90-day probationary period but, like probationary employees, became permanent employees upon completion of 90 days’ employment. Both former Candlewood and non-Candlewood employees, were eligible for benefits after completion of 90 days employment. In the weeks following its takeover of the North Long Beach facility, SnF Management replaced the facility’s air condition- ing systems, repaired sewage lines, repainted resident rooms, wallpapered hallways, rebuilt nursing stations, redid the dining room, purchased shower chairs, and replaced about 70 resident mattresses, expending between $450,000 and $500,000 on the repairs/improvements. As part of its defense to the 8(a)(5) allegations herein, Re- spondent sought to present evidence that the alleged predeces- sor’s bargaining units were inappropriate as all LVNs, under Respondent’s management policies, possessed supervisory authority as specified in Section 2(11) of the Act; therefore, the bargaining unit composition under Respondent had so altered as to obviate its successorship to Candlewood. All issues re- garding appropriateness of the above-described units, including the supervisory status of LVNs, were resolved by Decision and Direction of Election in Case 28–RC–6030 (formerly Case 21– RC–20417) issued March 22, 2002, resulting in Certification of Representative on April 25, 2002. The Board refuses to allow relitigation of unit appropriateness where a predecessor em- 11 Leonard admitted she testified to this effect at her pretrial deposi- tion. I do not credit Leonard’s denial at trial that employee perform- ance was a consideration in retention of former Candlewood employ- ees. 12 The parties dispute whether former, unionized Candlewood em- ployees formed a majority of the employees in the Base unit at the expiration of the 90-day period. Given my conclusions hereafter, I do not find it necessary to resolve this disagreement. ployer, in whose shoes the successor employer stands, has or could have litigated that issue. See Hotel Del Coronado, 345 NLRB 306, 307 (2006), and cases cited therein. Accordingly, I have rejected Respondent’s offer of proof as to the supervisory status of its LVNs. B. Respondent’s Position Regarding Union Representation of Its Employees On July 1, Tyrone Freeman (Freeman), general president of the Union, and Hirst visited the North Long Beach facility while an employer-sponsored employee barbeque was in proc- ess. In a contentious confrontation, Leonard told them to leave. According to Leonard, she told the two representatives that Windsor had purchased the operations and the employees were now Windsor employees. Hirst testified that, in the pres- ence of employees, Leonard said there was no union in the facility. According to employee Tara Smith, Leonard said the facility was not a union building and the union was not wel- come there. I credit Hirst’s and Tara Smith’s accounts. They testified forthrightly, and their recollections are consistent with Leonard’s later admitted statements. During July, various union members and representatives passed out fliers at the North Long Beach facility in an effort to generate support for the Union. During that same month, Re- spondent posted and distributed antiunion flyers to its employ- ees that addressed such topics as the mercenary motives behind the Union’s efforts to represent employees at the North Long Beach facility, what a union could and could not do, the Un- ion’s empty claims, and how the Union spends members’ dues. On July 23, at a staff meeting of about 40 employees, Leonard told employees that, like other Windsor facilities, the North Long Beach facility was union-free. Antoinette Harris (Harris), activity director for both Candle- wood and Respondent respectively during relevant times, testi- fied that in management meetings she attended, Leonard, Spencer, and Dyches repeatedly asked the managers to keep them informed of employee interest in the Union and to try to discourage employees from seeking union representation. Re- spondent urges that Harris’ testimony be discredited, pointing out the implausibility of testimony to the effect that Respon- dent’s managers repeated antiunion cautions at every single management meeting. While exaggeration unquestionably detracts from credibility, I am unwilling to conclude that Harris entirely fabricated the statements. It is inherently probable, particularly after the union representatives’ acrimonious visit to the facility, that some mention of the Union occurred in man- agement meetings, and I observed Harris to be direct and clear in her testimony, if hyperbolic. I find, therefore, that Respon- dent instructed its supervisors to watch for and to discourage union activity. The complaint does not allege that Respondent’s instructions violate the Act, and there is no evidence Respon- dent intended for any supervisor to effect its directives in an unlawful manner.13 However, Harris’ testimony, as well as Respondent’s statements that the facility was nonunion and its 13 Watching for union activity does not automatically denote unlaw- ful surveillance and discouraging it may be lawfully accomplished by attentiveness to employee concerns. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 996 dissemination of antiunion fliers, establish that Respondent strongly and actively preferred not to have union representation of its employees at the North Long Beach facility. III. ALLEGED VIOLATIONS OF SECTION 8(a)(3) A. Respondent’s Refusal to Hire Edna Colter, Debra Smith, Sharie Hailey, and Annie Moss As noted above, Spencer obtained from Hernandez a list of 22 employees with allegedly problematic work records (Her- nandez list). The list included the names of Colter, Debra Smith, Hailey, and Moss. Spencer also reviewed Candlewood employees’ files in about the third week of June with the object of identifying misconduct and disciplinary issues. Spencer pinpointed 26 employees, including Colter, Debra Smith, Hailey, and Moss, whose employee records assertedly revealed undesirable past work performance and/or misconduct and prepared a summary of the 26 names and findings (Spencer list). Thereafter, and prior to July 1, Spencer furnished both the Hernandez and the Spencer lists to Leonard. The Spencer list showed the following notations for the following alleged dis- criminatees: Edna Colter — Insubordination 03 Insubordination 4/04 Debra Smith — Poor attendance 5 in 4 months for ‘04 Since 2002 started Med error—not giving meds to Res. Sharie Hailey— Insubordination/confrontation Attendance—poor 7x’s ‘04 Annie Moss — Creating hostile work environment [with] other [licensed nurses]14 Because response to its employment advertising was less en- thusiastic than anticipated, Respondent revised its estimate of how many Candlewood employees it could initially reject for employment. Respondent hired almost half the employees named on the Hernandez and Spencer lists despite their past work records because of Respondent’s staffing needs.15 Re- spondent declined to hire Colter, Smith, Hailey, and Moss. In early July, Respondent sent letters to rejected Candlewood employees stating, in pertinent part: Thank you for expressing interest in a position with Windsor Gardens-North Long Beach. . . . Unfortunately, based upon a 14 The summary Respondent introduced into evidence listed 26 names with attendant notations. Counsel for the General Counsel pro- duced another document, retrieved from files subpoenaed from Re- spondent, which did not list the names Debra Smith, Sharie Hailey, and Annie Moss. Spencer and Leonard both testified the summary pro- duced by counsel for the General Counsel was an incomplete list, cre- ated before all employee files had been reviewed. I credit Spencer and Leonard’s testimony in this regard, as their recollections were clear and detailed. Although Respondent could not produce documentary evi- dence to corroborate all the information on the Spencer list, I note the underlying records were not in Respondent’s possession or control at all relevant times. Therefore, I find the lack of corroborative evidence does not negate Spencer’s testimony, which I find reliable. 15 As of the hearing date, two employees on the unsatisfactory list were still employed by Respondent. review of your qualifications & other documentation available to us, we are not in a position to offer you employment at this time. B. Respondent’s July 7 Suspensions of Tracy Davenport, Nana Williams, Nereida Jimenez, and Tara Smith On July 7, Spencer found employee Shronda Williams cow- ering in an empty patient’s room. Shronda Williams told Spencer she was frightened because a group of employees was threatening her and pressuring her to do something she did not want to do. Spencer reported the matter to Leonard, who re- quested information in writing from Shronda Williams. Shronda Williams gave a brief, handwritten statement to Spencer, which she turned over to Leonard. In pertinent part, the statement reads: When I came to work some people came to me and ask me to go to union meeting and I was very nerv[ous] so I ask to go home employee Tara, Tracy and some other people. Although the note only named two employees, Spencer in- formed Leonard that Shronda Williams had also accused Ne- reida Jiminez (Jimenez), Michelle Cozalles (Cozalles),16 and Nana Williams of threatening her. Leonard asked to speak to Shronda Williams, but Spencer said the employee was fright- ened and wanted to go home. Leonard called in Tracy Davenport (Davenport), Jimenez, Cozalles, and Tara Smith.17 Without asking them for their versions of what had transpired among them and Shronda Wil- liams or otherwise investigating the matter, Leonard told them they were suspended pending investigation for harassing a co- worker. By memorandum dated July 9, Leonard notified Chastek that 14 employees would be replaced by the end of the month. The memorandum included the names of Davenport, Jimenez, and Nana Williams, all of whom were still on suspension. Nearly 2 weeks after the suspensions and following an inter- view by Leonard with Shronda Williams, Respondent deter- mined the evidence was insufficient to show wrongdoing by the suspended employees. On July 20, Respondent reinstated Dav- enport, Nana Williams, Jimenez, and Tara Smith and paid them for the work they had missed because of the suspension. C. Respondent’s July 23 Termination of Gladys Matos According to Leonard, one day in July, Respondent notified Gladys Matos (Matos) that she had been taken off the schedule. Later that day, Hernandez reported to Leonard that Matos had come to the facility and angrily confronted her in the facility’s front lobby over the schedule change. Hernandez asked Leo- nard for approval to fire Matos, and Leonard directed Hernan- dez to terminate Matos.18 Leonard did not date the alleged 16 Cozalles is not named in the complaint; counsel for the General Counsel states in his posthearing brief that she did not cooperate in the investigation. Hereafter, I have omitted her name in describing and discussing the suspensions. 17 Nana Williams was unavailable. 18 Leonard’s testimony is inconsistent on this point. She initially tes- tified that Hernandez reported she had already terminated Matos, which WINDSOR CONVALESCENT CENTER OF NORTH LONG BEACH 997 confrontation between Matos and Hernandez,19 but her testi- mony indicated it occurred on a day when Matos was not scheduled to work. Leonard “subsequently” drafted a notice of employee separation for Matos, on which “insubordination” and “violation of company policies” were circled as reasons for separation. Leonard wrote on the notice, “Yelling @ administ. about assignment confrontational [with] mgmt—per Carmen.” The separation notice is dated July 23, which is the date of Matos’ discharge, but there is no evidence the separation notice was prepared on the same day as the alleged confrontation or ever shown to Matos. Hernandez did not testify. Matos testified that her name was removed from the work schedule on July 7 and 8, which deletions she was able to re- verse after discussion with Spencer and Hernandez. On the following day, July 9, Matos’ cousin reported to her that Ma- tos’ name had again been left off the schedule, but her cousin was able to resolve the omission. Matos denied having any scheduling problems thereafter and denied having any confron- tation with Hernandez. Regarding her discharge, Matos testi- fied that she worked her scheduled shift on July 23, and at- tended the employee meeting held that afternoon. At the end of the meeting, Matos picked up her paycheck, noticed a 4-day pay shortage, which she discussed with Leonard, who verified the shortage with accounting personnel, and told Matos she would have a supplemental check to cover the missing 4 days by the end of the day. According to Matos, at about 4 p.m. on July 23, Leonard called her to her office and gave her the supplemental check followed by a final paycheck, saying Respondent did not need her services any longer. Matos requested an exit interview. According to Matos, Leonard said something about Matos’ warning and incident reports. Matos denied receiving any such discipline and accused Leonard of not looking at her file. Leo- nard agreed she had not done so but said Matos was not quali- fied to work at the facility, which Matos contradicted. Leonard asked Matos to gather her belongings and leave the facility. Leonard and Matos’ versions of Matos’ July 23 discharge are irreconcilably dissimilar. In resolving the credibility of the two accounts, I have considered not only the manner and demeanor of the witnesses, but Respondent’s failure to produce available corroborative or refutative evidence. I note that Leonard was unclear as to whether Hernandez had already fired Matos when she sought Leonard’s approval or whether Leonard directed her to fire Matos. I also note that Leonard was vague as to when the alleged insubordination took place. While the date Leonard placed on Matos’ separation notice suggests the claimed insub- ordination occurred on July 23, the day of discharge, Respon- dent has not otherwise provided evidentiary support for such a conclusion. Leonard testified to the effect that Matos was not scheduled to, and did not work on the date she was discharged. In contrary testimony, Matos’ said that on her date of dis- charge, she worked, attended the employee meeting held that action Leonard approved. She later testified that she directed Hernan- dez to terminate Matos. 19 Respondent states in its posthearing brief that the incident oc- curred on July 23, but does not explain the evidentiary basis for this assertion. day, pointed out shortages in her paycheck, and received a sup- plemental check from Leonard. If Matos did not, in fact, work on July 23, then it is reasonable, indeed requisite, to disbelieve her account of her discharge. Conversely, if Matos did work that day, then Leonard’s testimony cannot be accurate. Dis- proving Matos’ testimony that she worked on July 23, should have been a simple matter for Respondent, given its access to attendance and payroll records, but Respondent adduced no evidence relevant to that issue. It is reasonable to draw an ad- verse credibility inference from its unexplained failure to do so. Matos, on the other hand, was clear and detailed as to working on July 23, her attendance at the employee meeting, her interac- tion with Leonard regarding inaccurate pay, her receipt of a supplemental check, and her discharge. I therefore credit Ma- tos’ testimony. D. Respondent’s July 23 Termination of Tracy Davenport, Nereida Jimenez, and Nana Williams The Spencer list showed the following notations for the fol- lowing three employees: Tracy Davenport — Excessive absences 01 Nereida Jimenez — Refusal—Insub. 3/04 Nana Williams — Visitor grievance re conduct 2 family c/o roughness/attitude Resident c/o reverbal—[illegible], insulting, manner toward Res. Eval poor supv./communic Suspended Rude to Surveyor—toss a book in front of her Ret’d wk 1/1/03 Notwithstanding the work performance information on the Spencer list, Respondent hired Jimenez, Davenport, and Nana Williams on July 1. As detailed above, Respondent suspended them on July 7, and by memorandum dated July 9, scheduled them for discharge by the end of July. Respondent reinstated them from suspension on July 20. On July 23, without further explication, Leonard notified Jimenez, Davenport, and Nana Williams that Respondent no longer needed their services. E. Respondent’s August 10 Termination of Tara Smith According to Leonard, prior to the weekend of August 7 and 8, she heard from employees that Tara Smith intended to avoid her scheduled work assignment that weekend by calling in sick. When Tara Smith called in sick as predicted, Leonard decided to terminate her because she believed she had falsely claimed illness to avoid working the weekend shifts. When Tara Smith returned to work on Monday, August 9, she presented a doc- tor’s excuse stating that Tara Smith required medical leave of absence from August 7 to August 8. Leonard discounted the doctor’s note, as she believed doctors’ excuses to be readily accessible and frequently unreliable. However, before Leonard could terminate Tara Smith for absenteeism, a problem arose regarding Tara Smith’s work station assignment on August 9. According to Jeanne Mawak (Mawak), who supervised Tara Smith at the North Long Beach facility, Tara Smith was as- signed on August 9, to work at station 2, rather than station 1A, her usual work area. Upon finding out that her work assign- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 998 ment had been changed, Tara Smith told Mawak she was going home. A short time thereafter, Mawak saw Tara Smith leaving the facility. According to Mawak, she told Tara Smith not to leave but to wait until the assistant director, Edna Mapoy (Mapoy) spoke to her, but Tara Smith exited the building. Mawak reported to Mapoy that Tara Smith was upset about her assignment and had left the building. Mapoy said Tara Smith commonly left work when unhappy about an assignment but would return. About 15–20 minutes later, Tara Smith returned, and Mawak told her she had changed her assignment back to station 1A, where Tara Smith worked for the remainder of the day. At Leonard’s request, Mawak gave a written statement of what had occurred, dated August 10, which reads, in pertinent part: On Aug 9th, 2004 (approx 0655) . . . Tara Smith, LVN ap- proached me. She said if I couldn’t get her to work on 1A she would go home. I told Edna about it & advised me to tell Tara to speak with the Administrator when she arrives . . . I admit that I changed the rotation with Tara. . . . Later on, Edna asked me why I did that & I told her that my intention was to keep the LVN’s in their stations as they requested so Tara would stay. Mapoy also submitted a written statement to Leonard, dated August 10, which reads, in pertinent part: Tara Smith . . . wants to be assigned on station 1A only. Gets upset if assignment changed. Explained to her all charge nurses will have rotation with their assignment, so all nurses are familiar with all the residents. Have been very argumenta- tive. Questions supervisor and will not go on assigned task, that she feels she does not want to do at that time. Regardless of anyone around, she will argue with the supervisor. Does not take the time to address the resident’s concern regarding medication in a professional way. Tara Smith’s account of the incident is significantly differ- ent. According to Tara Smith, upon reporting for work, she and Elaine Moore (Moore) noticed their assignments had been changed, and Tara Smith asked Mapoy what was going on. Mapoy said Respondent wanted the nurses to rotate. Tara Smith denied being argumentative with Mapoy or telling Mawak she would leave if the assignment were not changed, saying she was fine with the new assignment. However, Tara Smith admitted she may have told Mapoy she was being har- assed, and she admittedly told Leonard it was mighty strange and mighty funny that rotations were assigned on Tara Smith’s scheduled shifts and asked whether the supervisor was also going to rotate. Tara Smith denied leaving the facility follow- ing the assignment discussion, saying she went to station 2 where she was assigned and commenced working. In Tara Smith’s recollection of the events, Mawak, sua sponte, changed the assignments, putting Tara Smith back to her regular as- signment at station 1A. After considering all the testimony, I decline to give full cre- dence to either Mawak’s or Tara Smith’s accounts of what occurred on August 9. Tara Smith minimized her confrontation with her supervisors over her changed assignment, claiming on one hand that she was fine with the change, but admitting on the other hand that she accused her supervisor of harassment. As to Mawak’s account, although she testified that Tara Smith left the facility against Mawak’s express directive, neither she nor Mapoy mentioned that in their written statements, and nei- ther statement reflects any particular concern about Tara Smith’s threat to go home. It is clear from her statement that Mawak voluntarily changed the assignments, albeit to keep peace. I find that Tara Smith engaged in argumentative behav- ior with her supervisors concerning her assignment but that she did not leave the facility or otherwise refuse to work. On August 10, Judy Gonzalez, North Long Beach facility administrator, and Leonard met with Tara Smith. One of the two managers told Tara Smith that she was terminated for her weekend absence and for her response to the assignment change. Respondent’s separation notice, dated August 10, noted the reasons for separation as insubordination and absen- teeism. A few weeks later, Respondent issued a warning notice, dated September 4, and signed by Mawak, to a non- Candlewood CNA, which stated, “argued [with] RN Supervisor about assignment; could not comprehend that there is no such thing as ‘my run,’ changed assignment on own . . . wasted time complaining about her assigned run for time that could’ve been spent on working in getting things done.” There is no evidence the CNA was otherwise disciplined. IV. ALLEGED INDEPENDENT VIOLATIONS OF SECTION 8(a)(1) On July 1, Respondent hosted a staff barbecue for North Long Beach facility employees on the facility’s patio. During the festivities, Tyrone Freeman (Freeman), general president of the Union, and Hirst went to the patio and spoke to various employees. Leonard asked them to leave. According to Leo- nard, she told the two representatives that Windsor had pur- chased the operations and the employees were now Windsor employees. Hirst testified that, in the presence of employees, Leonard said there was no union in the facility. According to Tara Smith, Leonard said that the facility was not a union building and the union was not welcome there. When the two men refused to leave, Leonard called the police and so in- formed the two men who left before the authorities arrived. On July 23, Respondent held a staff meeting of about 40 em- ployees. Leonard spoke at the meeting. According to Jimenez and Tara Smith, Leonard told the group of employees that the North Long Beach facility was not a union building and the employees were not union. Davenport also recalled that Leo- nard told the employees they could no longer converse in the building or after work but must clock out and go straight home.20 Leonard explained that, like other Windsor facilities, the North Long Beach facility was union-free. 20 Davenport was the only one of five employee witnesses to the meeting to recall the statement. Leonard denied hearing or making any such statement. Given the lack of corroborative testimony by witnesses who might be expected to remember such a statement if it were made, I decline to credit Davenport’s testimony. WINDSOR CONVALESCENT CENTER OF NORTH LONG BEACH 999 DISCUSSION I. ALLEGED VIOLATINOS OF SECTION 8(a)(5) A. Successorship Issue and Refusal to Bargain The Supreme Court in NLRB v. Burns Intl. Security Services, 406 U.S. 272 (1972), held that a new employer has a duty to recognize and bargain with an incumbent Union when two general factors, which can be summarized as (1) continuity of the enterprise and (2) continuity of the work force, are present. The Burns rationale applies to situations where the Union is the established bargaining agent. Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987). Continuity of the work force requires that the former employees of the predecessor employer who were employed in the predecessor’s bargaining unit(s) must comprise a majority of the new employer’s com- plement within the same bargaining unit(s) at the point where the employer has achieved a “substantial and representative complement” of employees. Fall River, supra at 47. Here, it is clear, and no party contends otherwise, that conti- nuity of the enterprise exists. Although Respondent intended to upgrade the patient acuity level, and consequently the Medicare reimbursement rate, of the North Long Beach facility, the en- terprise continued as a skilled nursing facility, subject to the same nursing protocols and regulatory requirements as before. The issue in contention is whether continuity of the work force existed. Respondent does not dispute that its initial work force was substantially the same as that employed by Candlewood, the predecessor employer. However, Respondent argues that it purchased the operations with the fully formed and justifiable intention of discharging all the predecessor’s employees as soon as possible. While exigent circumstances forced Respon- dent to hire the predecessor’s employees in order to keep the facility running, it hired them only as temporary workers who would be replaced as soon as practicable. Employment of tem- porary workers, Respondent insists, does not establish continu- ity of the work force; ergo, Respondent was not a successor to Candlewood on July 1, and therefore not obliged to recognize and bargain with the incumbent union representing Candle- wood’s employees at that time. Respondent further argues that determination of any bargaining obligation should be deferred until the point where Respondent achieved a substantial and representative complement of “regular” employees, that is, after the completion of the former Candlewood employees’ 90-day temporary employment (October 1). As of October 1, Respon- dent points out, its relevant employee complement was com- posed of less than 50 percent of the former Candlewood em- ployees, thereby negating any obligation to bargain with the Union at that time. The General Counsel, on the other hand, contends that essen- tially the same work force existed after Respondent took over the North Long Beach facility as before and that Respondent’s claimed intention of replacing the Candlewood employees was spurious; therefore Respondent meets the Supreme Court’s tests for successorship. The parties generated considerable evidence and argument regarding Respondent’s motivation in initially staffing the North Long Beach facility upon its takeover on July 1. In de- fending the temporary hiring of Candlewood employees, Re- spondent portrayed the North Long Beach facility as a dilapi- dated establishment where its predecessor warehoused elderly inhabitants in a neglectful, noisome, grimy muddle of Dicken- sian proportions. The General Counsel’s witnesses, on the other hand, described a hygienically snug establishment where cosseted residents toasted each other with nonalcoholic spar- kling cider at monthly candlelight dinners. I suspect reality lies somewhere between the parties’ polarized views. It is not, however, incumbent upon me to determine the cleanliness and patient-care quality of the facility at the time Respondent de- cided to purchase the business. The issue here is not the objec- tive accuracy of Respondent’s opinion, but the sincerity of it. In other words, was Respondent genuinely appalled at the con- dition of the Candlewood facility and its residents, or did Re- spondent feign revulsion in order to justify hiring former Can- dlewood employees on a temporary basis so as to avoid succes- sorship obligations and/or to justify discharge of union adher- ents among its predecessor’s employees.21 No evidence was adduced to justify an inference that Re- spondent mendaciously maligned the Candlewood facility. Rather, the evidence suggests that, at least as of June, the Can- dlewood facility could indeed have used a little (hygienic) spit and polish. Moreover, after its takeover, Respondent expended nearly half a million dollars on repairs/improvements to the facility, which is potent evidence of the sincerity of Respon- dent’s opinion. Whether the facility’s need of a good spring cleaning justified Respondent’s rejection of the Candlewood staff as regular employees is another question, but here again, there is little evidence to gainsay Respondent’s assertion.22 A more pertinent question, at least as it relates to the succes- sorship issue, is whether the hiring of predecessor employees as something other than regular or permanent employees negates continuity of the work force. Respondent argues that because it classified the Candlewood employees as 90-day temporary employees and so notified them, any determination of continu- ity of the work force must be delayed until the expiration of the 90-day period, i.e., until October 1, by which time Respon- dent’s work force was no longer composed of a majority of the Candlewood employees. Respondent cites Houston Building Service, 296 NLRB 808 (1989), for the proposition that the Board will not consider “temporary” employees for the purpose of determining successorship. In Houston, the Board did not squarely address the question of whether temporary employees are employees for the purpose of determining successorship, as the Board therein determined the employees in question did not have temporary status. However, the case demonstrates the necessity of determining the actual status of the former Can- dlewood employees whom Respondent hired. 21 Evidence could, theoretically at least, demonstrate that the Can- dlewood facility was maintained in so pristine and exemplary a condi- tion that any criticism of the facility must perforce stem from ulterior motives. Conversely, as the Charging Party attempted to show through its proffer of “Crisis of Care,” evidence could, again theoretically, prove Respondent’s patient-care standards to be so low as to brand its criticism of any other nursing home a transparent subterfuge. The evidence does not support either view. 22 The complaint does not allege that Respondent discriminatorily hired the former Candlewood employees as temporary employees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1000 In arguing that Respondent hired the former Candlewood employees as temporary employees, Respondent distinguishes between temporary employees and probationary employees. In Respondent’s view the latter category consists of individuals who are regular employees, but who must wait a 90-day evalua- tion period before becoming permanent employees. Respon- dent’s employee handbook describes this “introductory period” as “an opportunity [for new employees] to demonstrate their ability to achieve a satisfactory level of performance . . . [which] the Company uses . . . to do an initial evaluation of employee capabilities, work habits and overall performance . . . .” During the 90-day probationary period, the hiree may be dismissed if he/she does not meet Respondent’s expectations and standards. Temporary employees, at least according to Respondent’s employment handbooks are “hired on an interim basis to temporarily supplement the work force or to assist in the completion of a specific project.” In the absence of evidence to the contrary, I accept that Re- spondent had nondiscriminatory and perhaps even justifiable reservations about the quality of work Respondent could expect from the Candlewood employees. I also accept that Respon- dent thought it expedient to have a period of time in which to assess and evaluate the Candlewood staff before recruiting them as regular or permanent employees and, accordingly, told Candlewood applicants they would be hired as temporary em- ployees. A label does not, however, establish status, and no evidence was adduced herein to show that Respondent intended to hire the Candlewood employees “on an interim basis to tem- porarily supplement the work force or to assist in the comple- tion of a specific project,”23 after which the employment could be expected to end. On the contrary, in both employment inter- views of and written employment offers to Candlewood appli- cants, Respondent gave them to understand that the 90-day temporary employment period was to permit assessment of employee skills and abilities and that “qualified” employees might be selected for regular employment. Although the tem- porary period of employment would end on September 30, as of their July 1 hiring date all of the former Candlewood employ- ees worked regular hours on regular schedules, performed du- ties that were a regular part of Respondent’s operation, received regular wages and benefits, and were listed on Respondent’s payroll as employees. None had a definite or anticipated termi- nation date, and all had a reasonable prospect of continuing employment based solely on Respondent’s assessment of their work performance. See Hicks Oil & Hicksgas, Inc., 293 NLRB 84, 86 (1989), Wayside Realty Group, 281 NLRB 357 fn. 2 (1986); J. P. Sand & Gravel Co., 222 NLRB 83, 84 fn. 2 (1976). Respondent’s employee “introductory period” applied equally to former Candlewood employees and probationary employees.24 Both groups enjoyed the same terms and condi- tions of employment, and both were excluded from discretion- 23 Respondent’s employee handbook. 24 As stated in the handbooks given to both groups, the introductory period would “give new employees the opportunity to demonstrate their ability to achieve a satisfactory level of performance and to determine whether the new position meets their expectations.” ary benefit coverage until the expiration of a 90-day period. If selected for regular employment, former Candlewood employ- ees did not then commence a probationary period; like proba- tionary employees, they were eligible for all benefits upon completion of 90 days employment, regardless of which portion of the 90 days was designated as temporary. While Respondent may have more intensely scrutinized the Candlewood employ- ees’ work than it did that of non-Candlewood hires, in actuality the former Candlewood workers were in the same employment posture as Respondent’s probationary employees: they could anticipate continued employment if their work satisfied Re- spondent. Thus, the former Candlewood employees hired by Respondent on July 1, are distinguishable from temporary em- ployees (as defined by either the Board or Respondent) and are appropriately analogous to probationary employees. See Hicks Oil, supra at 87. Establishment of a 90-day employee probationary period does not create doubt about the makeup of a work force suffi- cient to defer a work-force-continuity determination until after completion of the 90-day period. Sahara Las Vegas Corp., 284 NLRB 337 fn. 4 (1987), enfd. NLRB v. Sahara Las Vegas Corp., 886 F.2d 1320 (9th Cir. 1989). Therefore, the question of whether Respondent met the continuity of the work force requirement of Burns is answered by an examination of Re- spondent’s work force as of its takeover of the North Long Beach facility on July 1. At that time, the BASE and LVN units of Respondent’s work force were overwhelmingly com- posed of former Candlewood employees who had been repre- sented by the Union. As both Burns factors, i.e. continuity of the enterprise and continuity of the work force, were present July 1, it follows that Respondent was a successor employer to Candlewood on that date. See Siemens Building Technologies, Inc., 346 NLRB 53 fn. 1 (2005). As such, Respondent had a duty to recognize and bargain with the Union upon the Union’s July 1 and 6 requests that it do so. Respondent’s refusal to recognize and bargain with the Union since July 1, constitutes an ongoing violation of Section 8(a)(5) and (1) of the Act. B. Alleged Unilateral Changes The General Counsel alleges that Respondent’s post- takeover, unilateral elimination of the union bulletin board and prohibition of union-related postings constitutes unilateral changes unlawful under Section 8(a)(5) of the Act. The Gen- eral Counsel also alleges that Respondent’s implementation of a new employee handbook with terms and conditions of em- ployment different from those effected by the predecessor em- ployer is an unlawful unilateral change. A successor employer is generally permitted to set new ini- tial terms and conditions of employment without first bargain- ing with the employees’ bargaining representative. See SFX Target Center Arena Management, LLC, 342 NLRB 725 fn. 3 (2004). The Burns Court, however, recognized an exception to this principle where “it is perfectly clear that the new employer plans to retain all of the employees in the unit. . . .” Burns, supra at 294–295. The Board has found the exception applies if either of the following circumstances exist: (1) the new em- ployer has actively or, by tacit inference, misled employees into believing they would be retained without change in their wages, WINDSOR CONVALESCENT CENTER OF NORTH LONG BEACH 1001 hours, or conditions of employment; or (2) the new employer has failed to announce its intent to establish a new set of condi- tions prior to inviting former employees to accept employment. Spruce Up Corp., 209 NLRB 194, 195 (1974). Here, Respon- dent informed employees they would be hired as temporary employees, describing a 90-day probationary period. As the Board noted in Spruce Up: When an employer who has not yet commenced operations announces new terms prior to or simultaneously with his invi- tation to the previous work force to accept employment under those terms, we do not think it can fairly be said that the new employer “plans to retain all of the employees in the unit,” as that phrase was intended by the Supreme Court.25 When the possibility that the predecessor’s employees may not enter into an employment relationship with the new em- ployer is a real one, the Board does not consider it “perfectly clear” that the new employer “plans to retain all of the employ- ees in the unit.” Ibid. Here, Respondent informed the Candle- wood applicants that they would be employed only in a tempo- rary or probationary status for 90 days. That should have sig- naled to the applicants that terms and conditions of employment with Respondent were not going to be identical with those of its predecessor, and they could have declined employment upon learning they would have to complete a probationary period. Thus, although Respondent’s obligation to recognize and bar- gain with the Union attached when, on July 1, Respondent had hired a “substantial and representative” compliment within the units, Respondent did not violate the Act by setting initial terms of employment. Contrast Elf Atochem North America, Inc., 339 NLRB 796 (2003) (Employer a “perfectly clear” successor when it informed employees it would provide them employ- ment, recognize their seniority, and grant equivalent salaries and benefits.)26 Regarding the alleged unilateral elimination of the union bul- letin board and prohibition of union-related postings, it is clear that bulletin board matters are mandatory subjects of bargain- ing. ATC/Vancom of California, L.P., 338 NLRB 1166 (2003); RCN Corp., 333 NLRB 295 (2001); Arizona Portland Cement Co., 302 NLRB 36, 44 (1991). Concerning bulletin board post- ings, the Board has stated: The legal principles applicable to cases involving access to company-maintained bulletin boards are simply stated and well established. In general, “there is no statutory right of employees or a union to use an employer’s bulletin board.” However, where an employer permits its employees to utilize its bulletin boards for the posting of notices relating to per- 25 Spruce Up Corp., supra at 196. 26 Citing NLRB v. Advanced Stretchforming Intl., 233 F.3d 1176, 1180 (9th Cir. 2000), the Charging Party argues that Respondent for- feited its right to set initial terms by informing employees there would be no union at the facility. The instant facts are distinguishable. In Stretchforming, the employer told its predecessor’s employees prior to interviewing and hiring them that there would be no union at its facil- ity. The Board considered such to be imposition of an unlawful condi- tion, which vitiated the employer’s right to determine other legitimate initial terms. See Advanced Stretchforming Intl., 323 NLRB 529 (1997). Here Respondent set no unlawful preemployment conditions. sonal items . . ., it may not “validly discriminate against no- tices of union meetings which employees also posted.” More- over, in cases such as these, an employer’s motivation, no matter how well meant, is irrelevant. [Footnotes omitted.]27 Consistent with Respondent’s above-enunciated right to set initial terms and conditions of employment for the Base and LVN unit employees it hired on July 1, Respondent had no obligation to provide a bulletin board for union postings; its only obligation in that regard was to bargain over the institution of a union bulletin board along with all other terms and condi- tions of employment of the Base and LVN unit employees.28 As described earlier, Respondent has violated Section 8(a)(5) of the Act by refusing to recognize and bargain with the Union regarding its employees in the BASE and LVN units, which encompasses the obligation to bargain over all terms and condi- tions of such employees’ employment, including provision for union bulletin boards. However, Respondent did not violate the Act by setting initial terms of employment for the Candlewood unit employees; I shall, therefore, dismiss the complaint allega- tions of unlawful unilateral changes. II. ALLEGED VIOLATIONS OF SECTION 8(a)(3) A. Respondent’s Refusal to Hire Edna Colter, Debra Smith, Sharie Hailey, and Annie Moss The complaint alleges that Respondent violated Section 8(a)(3) and (1) by failing and refusing to hire Colter, Debra Smith, Hailey, and Moss on July 1 because of their positions as union stewards during their employment with Respondent’s predecessor. In alleged refusal-to-hire cases, the General Counsel bears the burden under FES29 of showing the follow- ing: Respondent was hiring at the time the alleged discrimina- tees applied for employment, the alleged discriminatees had experience and training relevant to the requirements of the available employment positions, and antiunion animus contrib- uted to Respondent’s decision not to hire them. It is clear Respondent was hiring during the relevant time pe- riod. It is also clear that Colter, Debra Smith, Hailey, and Moss had experience and training relevant to the available positions. Accordingly, the General Counsel has met its burden as to the first two elements of FES. As to the third element, “the allega- tions of unlawful discrimination . . . must be supported by af- firmative proof establishing by a preponderance of the evidence that the Respondent’s conduct was unlawfully motivated.” Ken Maddox Heating & Air Conditioning, 340 NLRB 43, 45 (2003). Unlawful motivation may be established by circumstantial evidence, the inferences drawn therefrom, and the record as a 27 Honeywell, Inc., 262 NLRB 1402 (1982), enfd. 722 F.2d 405 (8th Cir. 1983); see also Johnson Technology, Inc., 345 NLRB 762 (2005). 28 Irrespective of its obligation to bargain with the Union, Respon- dent could not discriminate against employee use of company bulletin boards for union postings if Respondent otherwise permitted personal postings. The General Counsel did not plead such discrimination in the complaint, and contrary to counsel for the General Counsel’s post- hearing argument, the matter was not fully litigated. Accordingly, I decline to address this issue. 29 331 NLRB 9 (2000), affd. 301 F.3d 83 (3d Cir. 2002). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1002 whole. Tubular Corp. of America, 337 NLRB 99 (2001). Unlawful motive may, for example, be inferred from such cir- cumstantial evidence as animus and disparate treatment. Over- nite Transportation, 335 NLRB 372, 375 (2001). The General Counsel adduced evidence of Respondent’s animus toward unionization of its employees: (1) Respondent waged an anti- union campaign; (2) Respondent told employees the North Long Beach facility was nonunion; (3) Respondent directed its supervisors to keep its managers informed of employee interest in the Union and to discourage union support; (4) Respondent unlawfully refused to recognize the Union as its employees’ bargaining representative. Considering Respondent’s demon- strated animus, I find the General Counsel has met his initial burden of showing that the refusal to hire Colter, Debra Smith, Hailey, and Moss on July 1, was unlawfully motivated. Since the General Counsel has met his initial burden for the refusal- to-hire allegations, the burden shifts to Respondent to show it would not have hired the four individuals even in the absence of their union activities or affiliation while employed by Re- spondent’s predecessor. FES, supra at 12; Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Respondent maintains that Candlewood employees’ past work performance was the sole measure by which Respondent gauged Candlewood applicants. Respondent investigated the work records of the Candlewood employees by consulting with Candlewood’s administrator, Hernandez, as well as conducting its own review of Candlewood personnel files, resulting in a compilation of problem-employee names (the Hernandez and Spencer lists). Respondent points out that it declined to hire to nearly half the Candlewood employees whose names appeared on the Hernandez and Spencer lists, not just the four named in the complaint, and in each instance made a nondiscriminatory determination that the documented misconduct rendered the applicant unfit for employment. According to Respondent, the Candlewood personnel files of Colter, Debra Smith, Hailey, and Moss showed significant performance blemishes. The files recorded Colter as being insubordinate in both 2003 and 2004, Debra Smith as having poor attendance and an error in adminis- tering medication, Hailey as being insubordinate and confronta- tional and having poor attendance, and Moss as creating a hos- tile work environment for other employees. The General Counsel argues that the past misconduct of Colter, Debra Smith, Hailey, and Moss was no more significant that that of other listed employees whom Respondent hired, which in itself demonstrates discriminatory motivation. While the misconduct distinctions among the four former union stew- ards and the listed employees who were hired may be subtle, I cannot, from that alone, reject Respondent’s explanation of why it hired certain employees over others. As the Board has pointed out, “In passing the Act, Congress never intended to authorize the Board to question the reasonableness of any managerial decision nor to substitute its opinion for that of an employer in the management of a company or business, whether the decision of the employer is reasonable or unrea- sonable, too harsh or too lenient. The Board has no authority to sit in judgment on managerial decisions.” Neptco, Inc., 346 NLRB 18 fn. 16 (2005), quoting NLRB v. Florida Steel Corp., 586 F.2d 436, 444–445 (5th Cir. 1978). I cannot, therefore, simply discount Respondent’s managerial opinion that the past derelictions of Colter, Debra Smith, Hailey, and Moss rendered them more unfit for employment than other employees; I can only determine whether probative evidence shows Respon- dent’s opinion to be disingenuous, which I have not found. Respondent’s animus coupled with Colter, Debra Smith, Hailey, and Moss’ status as union stewards may create suspi- cion as to the legitimacy of Respondent’s reason for including them in its rejected Candlewood employee pool. However, mere suspicion that union activity was a basis for Respondent’s refusal to hire is insufficient to reject Respondent’s otherwise cogent defense of its hiring decisions. See Neptco, Inc., supra, slip op. at 2. Accordingly, I find that Respondent has met its shifted burden of demonstrating that it would not have hired Colter, Debra Smith, Hailey, and Moss even in the absence of their past union activities and adherence, and I will dismiss the complaint allegations relating to them. B. Respondent’s July 7 Suspensions of Tracy Davenport, Nana Williams, Nereida Jimenez, and Tara Smith On July 7, Davenport, Nana Williams, Jimenez, and Tara Smith invited coworker Shronda Williams to a union meeting, after which Shronda Williams accused them of harassment and intimidation. Respondent argues that its subsequent suspension of Davenport, Nana Williams, Jimenez, and Tara Smith was a reasonable response to the serious coworker accusation leveled against them and that it was entitled to treat the four employees “as it would any other employees accused of harassing cowork- ers, notwithstanding that the alleged harassment also involved union activity.” Respondent contends the General Counsel has failed to establish that the suspensions were imposed because of the union activities of the suspended employees. There is neither dispute nor question that inviting another employee to a union meeting is activity protected by the Act. The four suspended employees’ conduct in inviting Shronda Williams to a union meeting is protected. There is no question Respondent knew the nature of the employees’ conduct before it suspended them, and Respondent’s post-suspension investi- gation admittedly revealed no misconduct to negate the Act’s protection. Nevertheless, Respondent argues it did not violate Section 8(a)(3) of the Act, as it was not motivated by antiunion animus in suspending the employees. Rather, Respondent as- serts, it believed in good faith, albeit mistakenly, that the sus- pended employees had engaged in misconduct. As Respondent points out, the question of whether Respon- dent violated Section 8(a)(3) in terminating Davenport, Nana Williams, and Jimenez rests on its motivation.30 The Board has established an analytical framework for deciding cases turning on employer motivation in Wright Line, supra. To prove an employee was discharged in violation of Section 8(a)(3), the General Counsel must first persuade, by a preponderance of the evidence, that an employee’s protected conduct was a motivat- ing factor in the employer’s decision. If the General Counsel 30 An employer’s reasonable belief of misconduct may justify ad- verse employment action. McKesson Drug Co., 337 NLRB 935, 936 (2002). WINDSOR CONVALESCENT CENTER OF NORTH LONG BEACH 1003 makes such a showing, the burden of persuasion shifts to the employer “to demonstrate that the same action would have taken place even in the absence of the protected conduct.” Wright Line, supra at 1089. The burden shifts only if the Gen- eral Counsel establishes that protected conduct was a “substan- tial or motivating factor in the employer’s decision.” Bud- rovich Contracting Co., 331 NLRB 1333 (2000). Put another way, “the General Counsel must establish that the employees’ protected conduct was, in fact, a motivating factor in the [em- ployer’s] decision.” Webco Industries, 334 NLRB 608 fn. 3 (2001). The elements of discriminatory motivation are union activ- ity, employer knowledge, and employer animus. Farmer Bros. Co., 303 NLRB 638, 649 (1991). Here, these elements are clearly met: in approximately the same time period as the sus- pensions, Respondent demonstrated animus toward employees’ union sympathies and protected activities, as stated earlier, by stressing that the North Long Beach facility was nonunion, by directing its supervisors to watch for and discourage employee interest in the Union, and by unlawfully refusing to recognize and bargain with the Union. Moreover, in suspending the four employees, Respondent failed to ask any of them for their ver- sions of what occurred with Shronda Williams. Rather, Re- spondent relied solely on Shronda Williams’ reported panic at being invited to a union meeting, although her written report reveals neither word nor deed that might account for her ex- treme alarm: “When I came to work some people came to me and ask me to go to union meeting and I was very nerv[ous] so I ask to go home.” These circumstances support an inference that the protected activities of Davenport, Nana Williams, and Jimenez were mo- tivating factors in Respondent’s decision to suspend them. Wright Line, supra at 1089. Accordingly, I find the General Counsel has met his initial burden. Such a finding does not mean that the discharges were in fact “unlawfully motivated.” Id. As the Board has noted, “The existence of protected activ- ity, employer knowledge of the same, and animus . . . may not, standing alone, provide the causal nexus sufficient to conclude that the protected activity was a motivating factor for the ad- verse employment action.” Shearer’s Foods, Inc., 340 NLRB 1093, 1094 fn. 4 (2003); see also American Gardens Manage- ment Co., 338 NLRB 644, 645 (2002). The General Counsel’s establishment of the Wright Line factors does, however, shift the burden to Respondent to demonstrate that it would have discharged Davenport, Nana Williams, and Jimenez even in the absence of their protected activities. Respondent has not met its burden. Not only did Respondent fail to explain how Shronda Williams’ vague and mild account of being invited to a union meeting could reasonably have prompted immediate suspension of five employees, it also failed to explain why Leonard neglected to ask any of the sus- pended employees their version of what had occurred before summarily suspending them.31 Respondent’s vigorous opposi- 31 I have not overlooked Spencer’s description of Shronda Williams’ abject terror, but a comparison of that description with the tame content of her written account would surely suggest to a sensible administrator, tion to unionization, its unlawful refusal to bargain with the Union, and its inexplicable willingness to forego even minimal investigation while hastily suspending employees for promot- ing a union meeting reasonably lead to a conclusion that the suspensions were discriminatorily motivated. See Midnight Rose Hotel & Casino, 343 NLRB 1003, 1004 (2004); Hewlett Packard Co., 341 NLRB 492 fn. 2 (2004) (failure to conduct investigation evidence of discriminatory intent.) I find, there- fore, that Respondent violated Section 8(a)(3) of the Act by suspending Davenport, Nana Williams, Jimenez, and Tara Smith on July 7.32 C. Respondent’s July 23 Terminations of Tracy Davenport, Nana Williams, and Nereida Jimenez Davenport, Nana Williams, and Jimenez had been back to work from unlawful suspension for only a few days when Re- spondent fired them. The question of whether Respondent violated the Act in terminating Davenport, Nana Williams, and Jimenez rests on its motivation. As to their terminations, the General Counsel has clearly proven Wright Line’s requisite elements of union activity, employer knowledge, and employer animus toward union representation of its employees: Daven- port, Nana Williams, and Jimenez were union proponents and Respondent’s managers knew them to be so, as Leonard had suspended them when they engaged in union activity only 16 days earlier. Respondent demonstrated animus toward employ- ees’ union sympathies and protected activities, as discussed earlier, by stressing that the North Long Beach facility was nonunion, by directing its supervisors to watch for and discour- age employee interest in the Union, by unlawfully refusing to recognize and bargain with the Union, and by discriminatorily suspending Jimenez, Davenport, and Nana Williams on July 7. Accordingly, I find the General Counsel has met his initial burden by “making a showing sufficient to support the infer- ence” that the protected activities of Davenport, Nana Wil- liams, and Jimenez were motivating factors in Respondent’s decision to discharge them. Wright Line, supra at 1089. The General Counsel’s establishment of the Wright Line factors shifts the burden to Respondent to demonstrate that it would have discharged Davenport, Nana Williams, and Jimenez even in the absence of their protected activities. Respondent contends that the termination of these three em- ployees was merely part and parcel of Respondent’s legitimate and established plan to replace all Candlewood employees who had not proven themselves worthy of Windsor employment. Respondent points out that on July 9, Leonard named 14 em- ployees whose employment Respondent intended to terminate by the end of July. According to Respondent, the names of Davenport, Nana Williams, and Jimenez, who were at that time in unlawful suspension, were included among the 14 to be dis- charged because their names had appeared on the Spencer list which I have no doubt Leonard is, that a little more inquiry, such as asking the involved employees what happened, might be prudent. 32 In light of my finding that Leonard did not have a good-faith be- lief that the five employees had engaged in misconduct when she sus- pended them, NLRB v. Burnup & Sims, 379 U.S. 21 (1964), does not apply. See Primo Electric, 345 NLRB 1187 (2005). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1004 (although not on the Hernandez list.) The Spencer list noted the derelictions of the three as follows: Ms. Davenport — excessive absences [in 2001] Ms. Jimenez — refusal Insub[ordination] 3/04 Nana Williams — Family c/o roughness/attitude Resident c/o . . . manner toward Res[ident] Eval poor supv./communic Suspended Rude to [state inspector] Ret’d wk 1/1/03 Respondent obviously did not think the above-recorded mis- conduct rendered the three unfit for initial employment, and it cannot be that Respondent intended to fire all employees whose names appeared on the Hernandez or Spencer lists since Re- spondent retained other listed employees. Presumably, when hired, Davenport, Jimenez, and Nana Williams joined the cadre of former Candlewood employees whose work Respondent would assess in determining whether to offer them regular em- ployment, and there is no evidence Davenport, Jimenez, or Nana Williams were unsatisfactory employees during their approximately 3 weeks of employment. Since Respondent bears the burden of showing that it would have discharged Davenport, Nana Williams, and Jimenez regardless of their union activities, Respondent must explain why they were se- lected for termination over other employees similarly situated. Respondent has not done so. In view of its demonstrated ani- mus, Respondent’s failure to state any basis for the discharge of Davenport, Jimenez, or Nana Williams beyond its general de- sire to replace most former Candlewood employees compels the conclusion that their discharges were invidiously moti- vated.33 Respondent has not, therefore, met its shifted burden of demonstrating that it would have discharged Davenport, Nana Williams, and Jimenez even in the absence of their pro- tected activities.34 Accordingly, I find Respondent violated Section 8(a)(3) and (1) of the Act by discharging Davenport, Nana Williams, and Jimenez on July 23. D. Respondent’s July 23 Termination of Gladys Matos Respondent discharged Matos on July 23. As noted above, Respondent contends that its discharge of Matos was a nondis- criminatory consequence of Hernandez’ report of insubordina- tion, while the General Counsel argues that Respondent’s ani- mosity toward Matos’ union activities, presumed from her for- 33 While wanting to replace former Candlewood employees may have been a legitimate reason for discharging some or even most such employees, an employer “cannot simply present a legitimate reason for its action but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the pro- tected activity.” Yellow Ambulance Service, 342 NLRB 804, 804 (2004). 34 The fact that Respondent did not also fire Tara Smith does not al- ter this conclusion. Evidence suggests that Hernandez may have inter- vened to save Tara Smith’s job, as Hernandez told Tara Smith on July 26, that she had “put her butt on the line for [Tara Smith’s] job.” Re- gardless, an employer’s failure to retaliate against all union activists does not disprove a discriminatory motive. Volair Contractors, 341 NLRB 673 fn. 17 (2004). mer position as a Candlewood union shop steward, motivated her discharge. As set forth above, I have resolved the respec- tive credibility of Leonard and Matos regarding the circum- stances of Matos’ discharge in favor of Matos. With regard to the discharge of Matos, the General Counsel has clearly proven Wright Line’s requisite elements of union activity, employer knowledge, and employer animus toward union representation of its employees.35 Given the extent of Respondent’s animosity toward unionization of its employees, which, as a former Union Steward Matos would be expected to promote, the General Counsel has adduced sufficient evidence to support an inference that Matos’ pretakeover protected con- duct was a “substantial or motivating factor in the employer’s decision” to terminate her. See Budrovich Contracting Co., supra. Even more compellingly, the General Counsel has also shown that Respondent presented a false account of Matos’ discharge. False explanations for an employer’s actions sup- port an inference that the true motive is an unlawful one. Southside Hospital, 344 NLRB 634 (2005); Fluor Daniel, Inc., 304 NLRB 970 (1991). Accordingly, I find the General Coun- sel has met his initial Wright Line burden in this instance. The burden of persuasion thus shifts to Respondent to “demonstrate that the same action would have taken place even in the ab- sence of the protected conduct.” Wright Line, supra at 1089. Having rejected as false Respondent’s only explanation for the discharge of Matos, it follows that Respondent has not met its burden. Accordingly, I find that Respondent discharged Matos in violation of Section 8(a)(3) of the Act. E. Respondent’s August 10 Termination of Tara Smith Under Wright Line, the General Counsel must prove the req- uisite elements of union activity, employer knowledge, and employer animus. As discussed above, the General Counsel has proven Respondent’s knowledge of Tara Smith’s union activity; Respondent knew Tara Smith was one of five employ- ees who invited another employee to a union meeting on July 7. Further, Respondent’s reaction to those employees’ protected union activities evidences animus toward their union partisan- ship. Specifically, I have found that Respondent discriminato- rily suspended Tara Smith because of her union activity. Given Respondent’s contemporaneous, unlawful conduct toward Tara Smith, the General Counsel has also adduced evidence suffi- cient to support an inference that her union activity was a “sub- stantial or motivating factor in the employer’s decision” to terminate her. See Budrovich Contracting Co., supra. Accord- ingly, I find the General Counsel has met his initial Wright Line burden in Tara Smith’s discharge. The burden of persuasion thus shifts to Respondent to “demonstrate that the same action would have taken place even in the absence of the protected conduct.” Wright Line, supra at 1089. Respondent maintains that it would have discharged Tara Smith regardless of her union activity because of her question- able weekend absence and her insubordination. The General Counsel contends that Respondent’s absenteeism and insubor- 35 It is unnecessary to repeat the evidence establishing the Wright Line criteria, which has been earlier detailed. WINDSOR CONVALESCENT CENTER OF NORTH LONG BEACH 1005 dination defenses are pretexts for ridding itself of a union sup- porter. Tara Smith was absent from work on the weekend of August 7 and 8, and there is no dispute that Leonard accused her of falsely calling in sick. Further, on August 9, Tara Smith argued with her supervisors about her work assignment. Either or both of those circumstances could form a lawful basis for discharge, and the Board does not substitute its business judgment for that of an employer in deciding what employee conduct justifies discipline.36 However, it is not enough for Respondent to show conduct occurred that might justify a discharge; the Board must analyze relevant evidence to determine whether the conduct, rather than unlawful considerations, actually motivated the discharge. See Midnight Rose Hotel & Casino, supra at 1005. Respondent asserts that unnamed employees informed Leo- nard that Tara Smith intended to claim a spurious illness to avoid work the weekend of August 7 and 8. According to Re- spondent, that alone provoked Leonard’s decision to discharge Tara Smith, a decision Respondent made without ever mention- ing the accusations to Tara Smith, much less investigating them. Tara Smith submitted a doctor’s excuse for her absence, which Respondent rejected out of hand without any further inquiry. Respondent produced no corroborative evidence that Tara Smith deceptively claimed illness to cover for a volitional absence, and Leonard’s failure even to broach the matter with Tara Smith before deciding on discharge supports an inference that something other than good faith prompted the leap to judgment. Respondent also claimed that Leonard terminated Tara Smith for her conduct on August 9: refusing to work if she did not get the desired assignment, leaving the building, and being insub- ordinate to a supervisor, the last being the most damning point. It is true that Tara Smith protested her changed assignment, accused her supervisor of harassment, and threatened to leave work. It is equally true that such conduct could form a legiti- mate basis for discharge. It is not, however, clear that Respon- dent would normally discharge an employee in similar circum- stances. Indeed, the evidence is to the contrary. On September 4, less than a month after Tara Smith argued with her supervi- sor over her assignment, Mawak issued a warning notice to a non-Candlewood CNA for the following conduct: “argued [with] RN Supervisor about assignment; could not comprehend that there is no such thing as ‘my run,’ changed assignment on own . . . wasted time complaining about her assigned run for time that could’ve been spent on working in getting things done.” The CNA’s reported conduct is not appreciably differ- ent than that resulting in Tara Smith’s discharge. In the ab- sence of a cogent explanation for the disparate discipline ac- corded the two employees, I am forced to conclude that Re- spondent has not met its burden of demonstrating that it would have discharged Tara Smith even in the absence of her pro- tected union activity. Accordingly, I find Respondent violated 36 Counsel for the General Counsel argues, essentially, that Respon- dent’s assignment change was not in the best interests of its patients, but Respondent’s wisdom in making work assignments is not relevant. Section 8(a)(3) and (1) of the Act by discharging Tara Smith on August 10.37 III. ALLEGED INDEPENDENT VIOLATIONS OF SECTION 8(a)(1) The complaint alleges that Respondent committed the fol- lowing independent violations of 8(a)(1) by the following con- duct: 1. On July 1, telling union representatives in the presence of employees that there was no union at the North Long Beach facility and that the facility was not a union facility. 2. On July 23, telling employees at a staff meeting that the North Long Beach facility was not a union facility and that the employees were not union employees. 3. About July 23, announcing and promulgating a rule re- quiring all employees to leave Respondent’s premises at the end of their shifts and not remain in the parking lot to talk to each other. On the July 1 and 23 occasions that Respondent’s representa- tives told employees, or others in employees’ hearing, that the North Long Beach facility was not a union facility, Respondent was legally obligated to recognize and bargain with the Union regarding the Base and LVN unit employees. Respondent’s continuing refusal to recognize and bargain with the union was an unfair labor practice, and its continued assertion that it had no such obligation or that the facility was “not a union facility,” was of a nature tending to disparage and cause disaffection from the Union. See Westgate Corp., 196 NLRB 306, 313 (1972) (when an employer delays bargaining, “unrest and sus- picion are generated . . . and the status of the bargaining repre- sentative is disparaged”). Respondent’s conduct negated the Union’s representative role and could reasonably be expected to undercut the Union’s standing among employees, particu- larly where employees were in the vulnerable probationary period of employment and might reasonably believe that union support would jeopardize permanent employment. See Frue- hauf Trailer Services, 335 NLRB 393, 394 (2001). Accord- ingly, I find that by communicating to employees that the North Long Beach facility was not a union facility, Respondent vio- lated Section 8(a)(1) of the Act. As to the allegation that Respondent unlawfully announced and promulgated a rule requiring all employees promptly to quit Respondent’s premises after work, no credible evidence supports the allegation. Accordingly, I shall dismiss this alle- gation of the complaint. 37 In light of this finding, it is unnecessary to address counsel for the General Counsel’s alternative theory that Respondent violated 8(a)(1) of the Act by the discharge, as Tara Smith was engaged in protected concerted activity by expressing concern over her changed assignment. I note, however, that while the Board has found concerted conduct when an individual employee seeks to initiate group action or brings a group complaint to management attention, Phillips Petroleum Co., 339 NLRB 916, 918 fns. 11 and 12 (2003), there is no evidence that Tara Smith acted in other than her own self-interest. See K-Mart Corp., 341 NLRB 702, 703 (2004) (protest unauthorized by other employees and not intended to initiate group action not concerted). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1006 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent is, and has been since July 1, 2004, a succes- sor to Covenant Care Orange, Inc., d/b/a Candlewood Care Center. 4. The following units of Respondent’s employees are ap- propriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: The Base Unit All full-time and regular part-time nurses aides, certified nurse assistants, restorative aides, orderlies, dietary employees, ac- tivity assistants and housekeeping employees employed at the nursing facility. The LVN Unit All full-time and regular part-time Licensed Vocational Nurses (LVNs) employed at the nursing facility. 5. The Union has been at all times since July 1, 2004, and is, the exclusive bargaining representative of the employees in said units for the purposes of collective bargaining within the mean- ing of Section 9(a) of the Act. 6. Since July 1, 2004, Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union concerning the terms and conditions of employment of employ- ees in the above-described appropriate units. 7. Respondent violated Section 8(a)(3) and (1) of the Act on July 7, by suspending employees Tracy Davenport, Nana Wil- liams, Nereida Jimenez, and Tara Smith. 8. Respondent violated Section 8(a)(3) and (1) of the Act on July 23 by terminating employees Tracy Davenport, Nana Wil- liams, Nereida Jimenez, and Gladys Matos. 9. Respondent violated Section 8(a)(3) and (1) of the Act on August 10 by terminating employee Tara Smith. 10. Respondent violated Section 8(a)(1) of the Act by in- forming employees there was no union at its facility or that its facility was not a union facility. 11. The unfair labor practices set forth above affect com- merce within the meaning of Section 8(a)(1) and (3) and Sec- tion 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Respondent having discriminatorily suspended employees Tracy Davenport, Nana Williams, Nereida Jimenez, and Tara Smith on July 7, 2004, and having discriminatorily discharged employees Tracy Davenport, Nana Williams, Nereida Jimenez, and Gladys Matos on July 23, 2004, and employee Tara Smith on August 10, 2004, it must offer them reinstatement insofar as it has not already done so and make them whole for any loss of earnings and other benefits, computed on a quarterly basis from date of suspension and/or discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com- puted in New Horizons for the Retarded, 283 NLRB 1173 (1987). The recommended Order will also provide that Re- spondent bargain in good faith with the Union as the exclusive collective bargaining representative of the above-described units. [Recommended Order omitted from publication.]