Altercare of Wadsworth Center for Rehabilitation

ALTERCARE OF WADSWORTH CENTER FOR REHABILITATION 355 NLRB No. 96 565 Altercare of Wadsworth Center for Rehabilitation and Nursing Care, Inc. and Service Employees International Union, District 1199. Case 8–CA– 37436 August 19, 2010 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND BECKER On September 12, 2008, Administrative Law Judge Michael A. Rosas issued the attached decision. The General Counsel filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge’s rulings, findings, and conclusions as modified and to adopt the recommended Order as modi- fied and set forth in full below. The judge found that the Respondent violated Section 8(a)(1) of the Act by promulgating and enforcing rules prohibiting employees from wearing prounion buttons and pulleys,1 and prohibiting employees from speaking with each other about union matters during worktime. No exceptions have been filed to those findings.2 The judge dismissed, however, the complaint allega- tions that the Respondent’s verbal directions to employ- ees to remove prounion buttons and pulleys, and verbal warnings to employees to refrain from discussing union matters during worktime, violated Section 8(a)(3) and (1) of the Act. The General Counsel has excepted to the judge’s dismissal of these allegations. We find that the judge properly dismissed the former allegation but we reverse as to the latter. Verbal counselings or warnings constitute disciplinary action sufficient to support a violation of Section 8(a)(3) where they “are part of a disciplinary process in that they lay ‘a foundation for future disciplinary action against [the employee].’” Promedica Health Systems, 343 NLRB 1351, 1351 (2004) (quoting Trover Clinic, 280 NLRB 6, 16 (1986)), enfd. in rel. part 206 Fed.Appx. 405 (6th Cir. 2006), cert. denied 127 S.Ct. 2033 (2007). The record here does not show that verbal directions are part of the Respondent’s progressive disciplinary system. As the judge observed, the parties’ collective-bargaining agreement specifically provides that “verbal counseling 1 A pulley is a lanyard used for displaying an ID badge. 2 There are also no exceptions to the judge’s findings that the Re- spondent’s unilateral implementation of those rules violated Sec. 8(a)(5) and (1) of the Act, and that the Respondent violated Sec. 8(a)(1) by polling and interrogating employees via contest-quizzes and by telling employees that it would be futile to support the Union. and coaching shall not count for purposes of progressive discipline.” The General Counsel acknowledges that verbal direc- tions are tantamount to counselings, but maintains in his exceptions that verbal directions or counselings consti- tute discipline. In support, he cites a provision of the Respondent’s employee handbook, which the judge did not reference in his decision that includes counselings as part of the Respondent’s progressive discipline system. The General Counsel, however, has failed to offer any explanation why that handbook provision is not overrid- den by the more specific collective-bargaining provision making clear that verbal directions are not considered part of the Respondent’s progressive disciplinary system. In these circumstances, we find that the General Counsel has not established that the verbal directions in this case constituted disciplinary action sufficient to support a violation of Section 8(a)(3) of the Act. See Lancaster Fairfield Community Hospital, 311 NLRB 401, 403–404 (1993) (Board dismissed 8(a)(3) allegation because the General Counsel failed to prove counseling was part of employer’s progressive disciplinary system). The judge thus properly dismissed this allegation. A different conclusion is warranted as to the Respon- dent’s verbal warnings to employees. As the General Counsel points out, the Respondent’s handbook specifi- cally includes verbal warnings as part of the Respon- dent’s progressive discipline system. For example, the handbook provides that “[i]n some instances it may be appropriate to repeat the verbal warning before moving to the next [disciplinary] step.” Moreover, in contrast to its treatment of verbal counselings, the collective- bargaining agreement does not exclude verbal warnings from the Respondent’s progressive disciplinary system. By providing only that “[v]erbal counseling and coach- ing shall not count for purposes of progressive disci- pline,” the agreement clearly indicates that verbal warn- ings do “count.” Given that circumstance, we find that the General Counsel has shown that verbal warnings are part of the Respondent’s progressive disciplinary system, and may be taken into consideration by the Respondent in deter- mining whether discipline is warranted for future infrac- tions. That conclusion is further supported by the fact that the Respondent’s verbal warnings to employees not to discuss union matters during worktime were adminis- tered by the Respondent’s highest-level officials: its chief administrator, Aaron Hetrick, who is in charge of the facility’s daily operations, and Dale Fryer, the human resources director at the facility. Director Fryer tele- phoned employee Jacque Smith at her home and directed DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 566 her to report to the facility immediately regarding a dis- ciplinary matter, i.e., the verbal warning. Hetrick then, as the judge found, “issued Smith a verbal warning” and further specifically cautioned Smith against future viola- tions of the Respondent’s proscription—found in this proceeding to be unlawful—against discussing union matters during worktime. We find that these facts but- tress the serious nature of the verbal warnings and their potential future implications for the affected employees. Our dissenting colleague contends, in essence, that the verbal warnings should not be considered discipline be- cause (1) they were not accompanied by adverse action and (2) the Respondent did not, at least in the instances before us, memorialize the verbal warnings in the af- fected employees’ personnel folders.3 We disagree with that reasoning. As stated above, the test is whether the warnings laid “a foundation for future disciplinary ac- tion.” Promedica Health Systems, supra, 343 NLRB at 1351. It is clear from the Respondent’s employee hand- book and collective-bargaining agreement that they do. The fact that the Respondent had not yet gone beyond verbal warnings at the time of the hearing in the in- stances at issue does not undercut that finding. The dis- sent’s second point, that the verbal warnings were not memorialized, does not advance its cause. In essence, the dissent suggests that the verbal warnings are not ver- bal warnings within the meaning of the progressive dis- cipline policy because they were not documented. But the judge finds that the Respondent’s administrator “is- sued [the two employees] a verbal warning” and no ex- ception was taken to that factual finding. Moreover, the Respondent’s human resource director himself character- ized the issuance of the warnings as “a disciplinary mat- ter.” Even though they were not memorialized, given the Respondent’s demonstrated antiunion animus, it is not likely that the Respondents’ officials who issued the warnings, for “infractions” such as refusing to refrain from discussing union matters, would forget about them the next time the Respondent decided to discipline one of the affected employees pursuant to its progressive disci- pline policy. In sum, we find that the Respondent’s verbal warnings to employees laid a foundation for future disciplinary action sufficient to establish a violation of Section 8(a)(3) of the Act. Promedica Health Systems, supra. 3 It is for this reason that we do not order expungement, i.e., there is nothing to expunge. ORDER4 The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, Altercare of Wadsworth Center for Reha- bilitation and Nursing Care, Inc., Wadsworth, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Instituting work rules prohibiting employees from wearing prounion buttons and pulleys. (b) Instituting work rules prohibiting employees from speaking with each other about union-related matters, and pursuant to those rules verbally warning employees not to discuss union-related matters, while permitting employees to speak with others about other nonwork- related matters. (c) Conducting contests or quizzes that poll and inter- rogate employees about their union activities and support for the Union. (d) Telling employees that it would be futile to support the Union as its bargaining representative. (e) Unilaterally instituting work rule changes regarding the use of buttons and pulleys, and nonwork-related dis- cussions between employees during worktime, without giving notice to and bargaining with the Union. (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) Rescind the work rule prohibiting employees from talking to each other about union-related matters, while also permitting employees to talk with each other about other nonwork matters. (b) Rescind the work rule prohibiting employees from wearing buttons and pulleys displaying support for the Union. (c) Within 14 days from the date of this Order, notify Jacque Smith and Diana Martin in writing that the unlawful verbal warnings issued to them will not be used against them in any way. (d) Within 14 days after service by the Region, post at its facility in Wadsworth, Ohio, copies of the attached notice marked “Appendix.”5 Copies of the notice, on 4 We have modified the judge’s recommended Order to comport with the 8(a)(3) violation we have found herein, and to correct certain inadvertent language errors in the judge’s recommended Order. We have substituted a new notice to comport with these modifications. Because no documentation of the warnings were placed in employees’ files, a document expungement remedy is unnecessary. See Jensen Enterprises, 339 NLRB 877, 891 fn. 19 (2003). 5 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- ALTERCARE OF WADSWORTH CENTER FOR REHABILITATION 567 forms provided by the Regional Director for Region 8, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, it shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re- spondent at any time since June 4, 2007. (e) 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. MEMBER SCHAUMBER, dissenting in part. I agree with my colleagues that the General Counsel has not established that the Respondent’s “verbal direc- tions” to employees to remove prounion buttons and pul- leys constituted disciplinary action sufficient to support a violation of Section 8(a)(3) of the Act. Unlike my col- leagues, however, I would find that the General Counsel also failed to show that the Respondent’s “verbal warn- ings” to employees not to discuss the Union constituted disciplinary actions. In neither situation did the General Counsel prove that the “direction” or “warning” at issue laid a foundation for future disciplinary action against the employee under the Respondent’s progressive discipline system. My colleagues find that the “verbal warnings” to em- ployees Jacque Smith and Diana Martin are disciplinary because such warnings are specifically referenced in the progressive discipline system contained in the Respon- dent’s employee handbook, and, unlike “verbal counsel- ing and coaching,” the collective-bargaining agreement does not exclude “verbal warnings” as progressive disci- pline. But merely characterizing the enforcement of the rule against union talk as a “verbal warning” does not transform it into disciplinary action. Although the judge adopted the employees’ testimony that they were given “verbal warnings,” he concluded that those warnings were not disciplinary action.1 The 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.” 1 My colleagues note that the Respondent did not except to the judge’s finding that the statements to employees were “verbal warn- ings.” That absence of exceptions is hardly surprising, however, given judge found no evidence of any adverse action having been taken against the employees or any change made in their terms and conditions of employment. Significantly, the judge found that the “verbal warnings” were not documented in the personnel folders of employees Smith and Martin—just as the “verbal directions” to remove the prounion buttons and pulleys were not documented in the personnel folders of employees Diane Sams, Sonya Man- ley, and Cathy Peterson. There are no exceptions to the judge’s findings in that regard.2 The judge’s finding that the verbal warnings at issue here were not discipline within the meaning of the Re- spondent’s progressive discipline policy is consistent with the express terms of that policy. The policy states that when an employee is given a “verbal warning,” “[a] record of this [verbal] warning must be made on the Per- sonnel Action Form to be kept in the employee’s person- nel folder.” (Emphasis added.) Yet there is no evidence that the Respondent’s officials recorded the “verbal warnings” on personnel action forms, placed them in any employee’s personnel folder, or that the officials other- wise treated the enforcement of the no-union-talk rule as “verbal warnings” under the discipline policy.3 The fact that the collective-bargaining agreement does not exclude “verbal warnings” from progressive disci- pline begs the question whether that Respondent’s en- forcement of the rule actually was a “verbal warning” within the meaning of that system. Rather, the lack of documentation of the “verbal warnings” in the employ- ees’ personnel files is consistent with the lack of docu- mentation of the verbal directions, and supports the con- clusion that the “verbal warnings” similarly did not con- stitute disciplinary action.4 the judge’s conclusion that the statements did not violate Sec. 8(a)(3) because the statements were not “verbal warnings” within the meaning of the Respondent’s progressive disciplinary system. 2 Because there are no exceptions, the majority finds it unnecessary to include an expungement remedy for the verbal warnings. 3 The majority points out that verbal warnings are “specifically” part of the progressive discipline in the employee handbook. But the hand- book also “specifically” requires that verbal warnings be documented in the employee’s personnel folder so that they may be considered in the future. Here there was no documentation, nor is there a shred of evidence that the Respondent will treat the undocumented verbal warn- ings any differently from the nondisciplinary verbal directions. The majority’s assertion that the Respondent will use the warnings for fu- ture discipline of these employees is utter speculation. 4 The majority asserts that the serious nature of the warnings sup- ports their finding. They point out that employee Smith was called at home to meet with the Respondent’s two highest-level officials at the facility who gave her the “verbal warning.” However, the fact the officials who enforced the rule were high ranking does not establish disciplinary action. Indeed, one of those senior officials, Human Re- sources Director Fryer, also verbally directed employees to remove the union buttons and pulleys, and my colleagues agree that those direc- tions were not discipline. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 568 Accordingly, in agreement with the judge, I would dismiss the allegation that the Respondent violated Sec- tion 8(a)(3) by verbally warning employees against talk- ing about union matters during worktime. 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 institute work rules prohibiting employ- ees from wearing prounion buttons and pulleys. WE WILL NOT institute work rules prohibiting employ- ees from speaking with each other about union-related matters, or issue verbal warnings to employees who do so, while permitting employees to speak with others about other nonwork-related matters. WE WILL NOT conduct contests or quizzes that poll and interrogate employees about their union activities and support for the Union. WE WILL NOT tell employees that it would be futile to support the Union as its bargaining representative. WE WILL NOT unilaterally institute work rule changes regarding the use of buttons and pulleys, and nonwork- related discussions between employees during worktime, without giving notice to and bargaining with the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. WE WILL rescind the work rule prohibiting employees from talking to each other about union-related matters, while also permitting employees to talk with each other about other nonwork matters. The majority implies that Fryer testified that the issuance of the warnings was a “disciplinary matter.” He did not. The judge’s finding in that regard is derived from Smith’s testimony. Despite accepting her characterization, the judge concluded that no disciplinary action was taken against her. WE WILL rescind the work rule prohibiting employees from wearing buttons and pulleys displaying support for the Union. WE WILL, within 14 days from the date of this Order, notify Jacque Smith and Diana Martin in writing that the unlawful verbal warnings issued to them will not be used against them in any way. ALTERCARE OF WADSWORTH CENTER FOR REHABILITATION AND NURSING CARE, INC. Rudra Choudhury, Esq., for the General Counsel. Scott Salsbury, Esq. (Salsbury & Salsbury), of Hudson, Ohio, for the Respondent. DECISION STATEMENT OF THE CASE MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Cleveland, Ohio, on May 28–29, 2008. The charge was filed October 3, 2007, an amended charge was filed De- cember 21, 2007, a second charge was filed February 26, 2008,1 and the complaint issued February 29, 2008. The com- plaint, as amended, alleges the Respondent violated Section 8(a)(1) of the National Labor Relations Act (the Act): (1) on or about June 4 by promulgating a rule prohibiting employees from wearing prounion buttons while working; on or about June 4 and July 9,2 10, and 11 by enforcing the rule through verbal warnings to employees against wearing prounion but- tons; on or about June 26, by promulgating a rule prohibiting employees from engaging in union-related discussion during worktime and then issuing verbal warnings to two employees for violating such a rule; in or around early June by unlawfully polling and interrogating its employees about their union mem- bership, activities, and sympathies through weekly “contest- quizzes” distributed to employees; and in or around July by posting answers to the “contest-quizzes” in the employee breakroom suggesting it would be futile for employees to con- tinue to support the Union as their bargaining representative. The amended complaint further alleges that the aforementioned warnings to employees violated Section 8(a)(3). Finally, the amended complaint further alleges that the Respondent’s prom- ulgation of rules prohibiting employees from wearing union insignia and discussing the Union during worktime, and grant- ing benefits to employees in July through the contest-quizzes, all without prior notice to the Union and affording it an oppor- tunity to bargain, violated Section 8(a)(5). In its answer, filed March 14, 2008, denied the material allegations in the com- plaint. Upon the conclusion of the trial, I directed that posthearing briefs be filed by July 3, 2008. The General Counsel transmit- ted its posthearing brief by overnight mail on July 2 and it was 1 All dates are in 2007, unless otherwise indicated. 2 Upon motion of the General Counsel and over the objection of the Respondent, the complaint was amended at trial to add a paragraph 8(g), charging a verbal warning by Unit Manager Loretta Heath on July 9. (Tr. 16–24.) ALTERCARE OF WADSWORTH CENTER FOR REHABILITATION 569 received by the Judges Division on July 3. The Respondent transmitted its posthearing brief to the Judges Division by fac- simile transmission on July 3 and sent another copy by regular mail on that date. The Respondent was notified by the Judges Division on July 7 that facsimile transmission is not an ac- cepted method of filing posthearing briefs. On that date, the Respondent re-filed, submitting its brief through the Board’s electronic filing system. Subsequent to receipt of posthearing briefs, the General Counsel moved pursuant to Section 102.24 of the Board’s Rules and Regulations to strike the Respondent’s posthearing brief on the ground that it was not timely filed be- cause it was sent improperly by facsimile transmission on July 3. The Respondent opposes the motion, acknowledges its pro- cedural error, and requests that the resubmitted version of its brief be accepted in substitution of the earlier-filed brief. Section 102.11(b) requires that briefs be received “before the official closing time of the receiving office on the last day of the time limit.” Therefore, filing by regular mail on the due date renders the filing untimely. In addition, Section 102.114(g) prohibits the filing of posthearing briefs by facsim- ile. Finally, Section 102.111(c) authorizes acceptance of late- filed briefs upon good cause shown based on a showing of ex- cusable neglect and when no undue prejudice would result. The Respondent improperly filed its posthearing brief by the due date, thus rendering it late. This was due to an inadvertent error, as counsel failed to take note of the applicable Board Rules as noted in my closing instructions. Nevertheless, coun- sel electronically filed the brief the next business day upon learning of his mistake. Furthermore, there is no prejudice to the General Counsel, as the electronically filed brief is identical to the one transmitted by facsimile on the due date. Recent Board decisions indicate a reluctance to impose the harsh pen- alty of forfeiture under such circumstances. See Barstow Com- munity Hospital, 352 NLRB 1052, 1055 fn. 4 (2008) (judge accepted brief improperly filed by due date with Regional Of- fice instead of Judges Division due to “inadvertent errors, their diligent attention to them, and the fact that no undue prejudice has resulted to any party”); WGE Federal Credit Union, 346 NLRB 183 (2005) (Board accepted brief electronically with the Board on the due date, but after office closing time, as “no one was prejudiced by the delay”). Accordingly, I deny the General Counsel’s motion to strike the Respondent’s posthearing brief, and have accepted the Respondent’s posthearing brief for con- sideration. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the follow- ing FINDINGS OF FACT I. JURISDICTION The Respondent, an Ohio corporation, engaged in the opera- tion of a long-term care facility in Wadsworth, Ohio, where it annually derives gross revenues in excess of $100,000 and purchases and receives products valued in excess of $50,000 directly from points outside the State of Ohio. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Parties The Schroer Group, Inc. (Schroer Group) owns numerous long-term nursing care facilities in Ohio and Michigan, includ- ing the Altercare of Wadsworth Center for Rehabilitation and Nursing Care, Inc. (the Respondent or Altercare of Wadsworth). Another subsidiary, Altercare of Ohio, Inc. (Al- tercare of Ohio), serves as the management company and issues the rules, regulations, policies, and procedures for all of the Schroer Group’s long-term care facilities.3 The Respondent employs approximately 115 employees at its facility in Wadsworth, Ohio. Aaron Hetrick is the Respon- dent’s administrator and in charge of the facility’s daily opera- tions. Dale Fryer is the facility’s human resource director. Diane Geis is the Schroer Group’s executive vice president for human resources. The facility has several departments, includ- ing a nursing department. The nursing department consists of four nurses’ stations or units. Each nurse unit is managed by a care coordinator. Loretta Heath is a care coordinator and unit manager who is responsible to supervise, evaluate, and disci- pline the State-tested nursing assistants (nursing assistants) on her unit.4 Diane Sams, Cathy Peterson, Sonya Manley, Dianna Morris, Diana Martin, and Jacque Smith are nursing assistants. Nursing assistants assist the facility’s residents with all activi- ties of daily living, including bathing, dressing, and toileting. The Respondent and the Union are parties to a collective- bargaining agreement with a term of August 31, 2007, to Au- gust 31, 2009.5 The bargaining unit is defined to include “all full-time and regular laundry aides, dietary aides, cooks, nurses aides,6 porters, restorative aides, housekeeping aides, and stu- dents working more than 16 hours a week, but excluding all office clerical employees, guards and supervisors as defined in the Act.” Manley and Sams currently serve as union delegates. Smith served as a union steward until January 2008.7 This controversy relates to the period between May 30, 2007, when 3 Diane Geis, the Schroer Group’s principal human resource official, with authority explained that Altercare of Ohio is the “management entity” and not the parent company for Altercare of Wadsworth, lead- ing me to conclude that the Schroer Group is the parent company, while Altercare of Ohio and Altercare of Wadsworth are its subsidiaries. (Tr. 396–397.) 4 It is not disputed that care coordinators, including Heath, disci- pline, evaluate and supervise nursing assistants. (Tr. 61, 63–65, 71–73, 168–170, GC Exhs. 16–17.) 5 The parties stipulated to amend par. 7(b) of the complaint, which stated the term of the most recent agreement as January 1, 2006, to August 31, 2007, to reflect the newer period. (Tr. 10–11, 361–362; GC Exh. 28.) 6 Nurses aides, as referred to in the bargaining unit’s description, is the functional equivalent of the State-licensed position of nursing assis- tant. I adopted the latter, as it is the term generally referred to by the parties. 7 Smith left the bargaining unit and her position as a union steward in January 2008 when she transferred to the nonbargaining unit position of activity aide. (Tr. 341–342.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 570 a decertification petition was filed in Case 8–RD–2083, and August 10, 2007, the date of the decertification election (decer- tification campaign period). B. The Respondent’s Policies and Practices Upon being hired, every employee is given a copy of the Re- spondent’s handbook (handbook). In addition, any time any policy in the handbook changes, the entire handbook is re- printed and employees are given a copy of the new one. The Respondent’s handbook was developed by Diane Geis, the Schroer Group’s executive vice president of human resources. The handbook includes several policies relevant to this contro- versy. It has one provision relating to the uniform policy and another policy addressing personal appearance. The handbook also lists 44 specific instances of prohibited conduct by em- ployees. It further states, in pertinent part, that commission of any of the listed prohibited actions “will be grounds for disci- plinary action in the form of a written warning, suspension or discharge.”8 Discipline is also addressed in the collective- bargaining agreement, which states in pertinent part, that “[v]erbal counseling and coaching shall not count for purposes of progressive discipline.”9 The personal appearance policy requires direct care workers to wear name badges, but forbids them from wearing jewelry while working. The badges are fastened to employees’ uni- forms by pulleys. Pulleys are not, however, mentioned in the handbook.10 Nevertheless, nursing assistants, based upon in- struction at employee orientation and during periodic in- services, have always been mindful to avoid wearing anything that “might get tangled up with” the frail residents that they serve. Hetrick, the facility administrator, has on occasion asked employees to remove buttons, whether union-related or not. With the exception of offensive or political campaign buttons, employees have always been permitted to wear buttons, includ- ing union buttons, in nonpatient care areas such as the break- room.11 As a general practice, however, neither Hetrick nor other any supervisors have enforced a policy of prohibiting employees from wearing buttons, pins, or pulleys displaying insignia other than their names, in resident care areas. Prior to May 2007, when the decertification election petition was filed, several employees wore nonunion buttons and pulleys in resident care areas without any objection or comment by supervisors with whom they frequently interacted and encountered, including Fryer, Heath, and nursing director Marge Carrey. Sams wore numerous buttons, pins, pulleys, and lanyards. The objects displayed insignias such as national and religious holidays, and 8 R. Exh. 1, pp. 60–61, 64–67. 9 GC Exh. 28, p. 18. 10 There was no dispute that name badges were affixed to employee uniforms by a pulley. (GC Exhs. 23, 25–27.) 11 Hetrick conceded that the Respondent did not have a written pol- icy against the use of buttons. (Tr. 123–132.) On the other hand, Sams confirmed his assertion that direct care providers need to be concerned about anything, including a name badge, which could cause a skin tear. (Tr. 196–197.) She also confirmed that employees have been permitted to wear prounion buttons in the breakroom. (Tr. 162.) others paying homage to her son’s service in the Iraq War.12 Manley wore a large button, attached by a pin, displaying her daughter’s high school basketball picture. In fact, upon seeing the pin, Heath and Nursing Director Carrey remarked about how much Manley’s daughter had grown. Peterson wore, and continues to wear, a pulley bearing a “Purrell” logo. Morris has worn and continues to wear a pulley with a pink breast cancer ribbon logo. She has also worn a pin with a Cleveland Indians logo on her name badge.13 The 44 listed rules include prohibitions against neglect of residents, intimidation of other employees, and disruptive or distracting behavior while working. The list does not, however, include a rule prohibiting employees from speaking about non- work matters while working. In fact, the Respondent does not have such a rule in writing. The Respondent has, however, instructed nursing assistants that they are to limit discussion with other employees about nonwork-related matters while working with residents or are in resident care areas. The “di- viding line” is when the conversation distracts nursing assis- tants from taking care of the resident. This policy is communi- cated to employees at orientation and reinforced during peri- odic in-service training. Employees are permitted to discuss nonpatient care issues, including those concerning the Union, in noncare areas.14 Prior to May 2007, employees, including discriminatees Smith and Martin, regularly engaged in conversations with other employees about nonwork matters during worktime. As such, they would speak with other employees about personal matters in work areas such as the hallway and resident dining room. Prior to the decertification campaign, Smith, as a union 12 I found Sams quite credible and reject the Respondent’s conten- tion that she attempted to exaggerate the items that she claimed to attach to the lanyard. It was quite obvious that she was not claiming that all of the pins and buttons attached to the lanyard were on it at one time at work. Upon more specific questioning, she clarified that she attached them all to the lanyard for demonstrative purposes at the hear- ing. (Tr. 154–157, 159, 163–165, 190–194, 215–219, 222–227; GC Exhs. 22–23.) 13 Testimony by Manley, Morris, and Peterson that they wore but- tons or pins prior to the period leading up to the decertification election, without any objection by management, was credible and unrefuted by the Respondent. (Tr. 242–245, 264–265, 284–286, 294–296, 298, 310– 315; GC Exhs. 24, 24(a), 26, 27.) In addition, Morris provided de- tailed, credible testimony concerning permission she received a year earlier from Deb Lougheed, the previous facility administrator, as to union or political buttons. (Tr. 290–291.) 14 Hetrick’s testimony regarding the Respondent’s policy on em- ployees’ talking while working was ambiguous and less than credible. It was also glaring that the Respondent’s handbook, upon which the Respondent relied as a foundation for its rules, failed to mention talking amongst employees while they work. There can be no doubt that the Respondent’s primary mission, as a regulated long-term nursing care facility is to ensure that the needs of its residents are taken care of. (Tr. 136–138.) However, it was also clear from Hetrick’s testimony that it was not a rule prohibiting absolutely all nonwork conversations while employees were in resident care areas—“I mean, we just want to limit all discussion, you know, and that’s not centered around the resident . . . . If it’s a brief reference [to the Union or some union activity] and it’s not, you know, intended, you know, for residents to hear, be disrup- tive, and those type of things. . . .” (Tr. 138–139.) ALTERCARE OF WADSWORTH CENTER FOR REHABILITATION 571 steward, also spoke to employees about the Union and potential grievances.15 In addition to issuing a handbook governing employee con- duct at its managed facilities, Altercare of Ohio, Inc. also con- ducts an employee recognition and motivation program, com- monly referred by the acronym “RAMP.” At the Respondent’s facility, the RAMP has resulted in “fun” events for employees, including drawings, ice cream socials, gifts, and prizes. Occa- sionally, RAMP events are tied to facility initiatives, such as getting employees to respond to call lights in a timelier manner. The Respondent’s prizes have included small cash prizes and turkeys. Since 2000, the Respondent has also conducted anonymous employee satisfaction surveys every 6 months. Employees completed the surveys and the results are tabulated and analyzed. The Respondent has never provided notice of RAMP to, or bargained with respect any of its activities with, the Union.16 C. Employee Use of Buttons and Pulleys During the Campaign At various times during the decertification campaign period, issues arose over prounion buttons worn by several employees on their uniforms. The standard button promoting the Union displayed the words “District 1199” and “SEIU Stronger To- gether” (SEIU button).17 On June 4, Sams had just completed caring for a resident when Fryer directed her to remove an SEIU button that she was wearing. Fryer explained that the only place that she could wear the button was in the employee breakroom. On July 9, Heath directed Sams to remove an SEIU pulley that attached her name badge to her uniform. At the time Heath issued this directive, Sams was not performing direct care to residents. Sams responded by covering the SEIU logo with tape and wrote the word “yes” and placed a black checkmark across the pulley. Sams continued to wear the pulley, as modified, and received no further directives about it. Upon comparison, the SEIU pulley worn by Sams was similar to or smaller in size than nonunion buttons and pulleys previously worn by Sams, Manley, Martin, and Peterson. In any event, the incident was not documented in Sams’ personnel file.18 On July 10, Peterson wore a name badge attached to her uni- form by an SEIU pulley as she worked in a resident care area. 15 I found the spontaneous and detailed testimony of Smith and Mar- tin to be credible and indicative of a work environment in which super- visors, with whom employees came in contact frequently, were aware of the nonwork-related discussion that would take place. (Tr. 327, 329–332, 334, 343–344.) Significantly, there was no testimony offered by the Respondent suggesting they were unaware that employees en- gaged in nonwork-related conversation while in resident care areas. 16 Geis’ testimony regarding the development of the RAMP program and its continued implementation at the Respondent’s facility, was not disputed. The photographs of winners of such contests are frequently posted in the facility. (Tr. 372–375, 395–396; GC Exhs. 3–4.) Sams also corroborated that the Respondent conducted such activities, includ- ing drawings, and awarded prizes in the past. (Tr. 419–420.) 17 GC Exhs. 20–21. 18 Sams did not refute Fryer’s testimony regarding the June 4 inci- dent. On the other hand, Fryer did not refute Sams’ assertion as to the circumstances of the July 9 directive. (Tr. 135, 160–162, 164–166, 171, 176–177, 200–204; GC Exhs. 20–21.) Heath did not testify. As she prepared to go to lunch, Fryer approached her and asked her to remove the pulley and to refrain from wearing it in resi- dent care areas. This encounter was not documented in Peter- son’s personnel file.19 During late June 2007, Manley and Sams were greeting a new resident at the facility when Carrey ordered Manley to remove the SEIU button from her uniform and not wear it in resident care areas.20 On July 11, as Manley prepared to leave for lunch, Fryer ordered her to remove an SEIU pulley she was wearing. This incident, like the others, was not documented in Manley’s personnel file. Like Sams, Manley responded by covering the union logo with tape bearing the word, “Yes.” She wore that pulley until the decertification election was held. After the election, she replaced the tape on the pulley with one bearing the word, “Alright.” The SEIU button was signifi- cantly smaller than the basketball pin worn by Manley prior to the decertification campaign.21 D. Employees Prohibited from Discussing the Union While Working During the decertification campaign, issues arose concerning conversations between employees while they worked. Some- time in late June, Smith engaged in discussion about the decer- tification election with other employees while working. On June 25, Fryer called Smith at home and told her to come in immediately and meet with Hetrick regarding a disciplinary matter. Smith was, however, caring for her disabled husband, and could not report to work until the next day. On June 26, Smith, accompanied by Carol Wolf, a union representative, met with Fryer and Hetrick in Hetrick’s office. During the meeting, Hetrick issued Smith a verbal warning for talking about the Union while working. She responded that she was simply re- sponding to questions by other employees about the Union and the decertification petition. At that point, Hetrick cautioned her to make sure that, in the future, she only spoke about the Union during her break or outside the facility. Smith then inquired as to why she was being admonished if other people were talking about the Union while working. Hetrick concluded with a re- mark that others were also being issued verbal warnings for the same conduct. The warning was not, however, documented in Smith’s personnel file.22 19 Peterson’s testimony on this issue also went unchallenged. (Tr. 315–319.) 20 This incident was not included in the charges, but was considered as background evidence. (Tr. 246–247.) 21 This finding is based on Manley’s credible and unrefuted testi- mony. (Tr. 247–254, 265–267; GC Exhs. 20, 21, 24, 24(a), 25.) How- ever, in the absence of testimony indicating otherwise, I also find that the incident was not documented in Manley’s personnel file. 22 Again, I found Smith’s version of the meeting to be more credible than Hetrick’s contention that there was no meeting or warning issued. (Tr. 345–352.) Hetrick denied counseling Smith and insists he merely had a discussion with her about intimidating and being “gruff” with a housekeeping employee, Barbara Tachitie, about how to vote in the upcoming election. (Tr. 139–142, 146–148.) However, Hetrick did not witness the incident, Trachitie did not testify and, even though intimi- dation would have violated rule 5 in the employee section of the Re- spondent’s handbook, the alleged incident was not even documented. (R. Exh. 1, p. 61.) Moreover, Fryer testified as a 611(c) witness during DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 572 During the morning of June 26, Martin was approached by several coworkers while working in a resident area and asked her if she had signed a letter calling for decertification of the Union. Martin told the employees that, “if it ain’t broke don’t fix it.” Later that day, Martin was summoned to meet with Hetrick and Fryer. At the meeting, Hetrick issued Martin a verbal warning for discussing the union during company time. Hetrick did not explain to Martin or offer testimony explaining the underlying circumstances for the warning to Martin. In any event, there was no written warning placed in Martin’s person- nel file as a result of this encounter.23 E. The Respondent’s Contest-Quiz During the decertification campaign period, and without giv- ing notice to the Union,24 Hetrick implemented a RAMP con- test focusing on the issues relevant to the impending election.25 The contest consisted of “contest-quiz” forms containing ques- tions,26 which were placed in the employee breakroom on Mondays, along with a box for the voluntary submission of contest entries.27 The questionnaires, prepared by Altercare of Ohio, were ac- tually statements by the Respondent regarding its views of the Union. The first contest-quiz asked whether the Respondent provided health insurance a few years earlier and gave employ- ees turkeys at Thanksgiving time because the Union required it. The second contest-quiz asked whether the Union uses its the General Counsel’s case, but was not called on rebuttal to refute Smith’s testimony that he contacted her on June 25 and was present at the June 26 meeting. As such, Smith’s contention stands essentially unchallenged. 23 This finding is based on Martin’s credible and unrefuted testi- mony. (Tr. 328–336.) 24 It is not disputed that Respondent did not give the Union notice of this contest and an opportunity to bargain over its implementation. (Tr. 357–358.) 25 Hetrick’s lack of credibility regarding the circumstances leading to his placing the contest-quizzes in the employee breakroom strongly suggests that it was not disseminated in the regular course of the Re- spondent’s past practice of holding contests for “fun.” His vague and evasive explanation as to how he got the form from an employee at the Respondent’s parent company concluded with the admission that the Respondent’s labor counsel, in addition to the parent company’s presi- dent and in-house counsel, told him what to do with the flyer. (Tr. 77– 85, 110–112.) 26 Given the objective standard applied in determining whether the quiz tended to be coercive, the Respondent’s assertions as to its inten- tions in not eliciting information from participants, its intentions to “provide information in a fun atmosphere like past contests, and its assertion that it did not review who responded and their responses are irrelevant. (Tr. 142, 377, 394.) Similarly, in the absence of evidence that the Respondent actually told employees that it did not care what their responses were, Sams’ testimony that management “didn’t care what our answers were” is purely subjective. (Tr. 210.) 27 As the forms, as well as the box for submitting the entries, were placed in the employee breakroom, it is reasonable to assume that the contest was effectively limited to the employees who used that room. Furthermore, although the contest-quiz forms did not refer to an actual gift prize, consistent with past practice, employees reasonably expected that a winner would receive a gift of some type. (Tr. 76, 87–88, 95, 105–107, 116, 181–189, 211–213, 259–264, 269–276, 376–378, 393– 394, 405–408.) members’ dues to pay for political contributions and whether union members have control over how the Union spends mem- bers’ dues. The third contest-quiz asked whether members’ dues directly improve their wages and benefits or are used for extravagant expenses, and whether the Union “buys American” and has enough funds to pay members’ bills during a strike. The fourth contest-quiz asked whether a member’s vote at the decertification election could be discovered, the Union could make the Respondent change its values, and whether the Union would be more responsive to workers’ concerns if it won the election.28 Each contest-quiz form stated at the bottom that providing one’s names was “optional” and “no participant is required to sign his or her name.” However, in order to be eligible to win the weekly drawing and get a gift cards, employees had to iden- tify themselves on the questionnaire.29 Bargaining unit em- ployees submitted entries for all four contest-quizzes. The Respondent retained eight entries for contest-quiz 4, which was held during the week of the decertification election, and dis- carded entries for the other contest-quizzes.30 Each of these entries identified the participant by name and their responses to the questions.31 Hetrick collected the questionnaires each Friday and con- ducted a random drawing of the winning entry. In addition to awarding employees gift cards for the contest-quiz, Hetrick posted an announcement of the name and photograph of the winning employee, with whom he posed, in the elevator and next to the timeclock in the breakroom. Of particular note, Manley won the contest drawing for the week of July 27. Each announcement remained posted for a week until the next con- test-quiz winner was announced. Along with each announce- ment of a winner, Hetrick would also post its “quiz answers” in the employee breakroom.32 The answer checked off by the Respondent to every question was “no” and was followed by narrative responses that included direct statements about the Union such as: the Respondent “was there to help when the union let these employees down;” the Union “absolutely uses dues money to pay lobbyists and make contributions to political campaigns and candidates;” the Union spends dues money on whatever its leadership in Columbus wants;” members’ dues are spent in “a variety of places far from Ohio for purposes unrelated to your wages and benefits;” the Union spend members’ dues on extravagant expenses such 28 Geis and Hetrick conceded that the “answers” were intended to convey the Respondent’s views about the Union. (Tr. 99, 377; GC Exhs. 3, 6, 9, 12.) 29 Geis’ testimony that employees could submit valid contest-quiz entries with their names on them, but without completing the answers, is not supported by the evidence. (Tr. 378, 411–412.) 30 The General Counsel noted that he served a subpoena duces tecum on the Respondent requesting production of all entries to its weekly contest-quizzes. (GC Exh. 2, Request 9.) The Respondent produced only the entries for contest quiz 4 and Hetrick testified, in less than credible fashion, that he may have discarded the responses to the other contests: “I don’t recall. I think I threw them away.” (Tr. 121.) In any event, it is not disputed that the employees submitted completed ques- tionnaires for contests 1 through 3 as well. 31 GC Exh. 15. 32 GC Exhs. 5, 8, 11, 14. ALTERCARE OF WADSWORTH CENTER FOR REHABILITATION 573 as Merrill Lynch ($51,102), Embassy Suites ($256,716), the Radisson Hotel ($23,569), Columbus Convention Center ($30,624), Busca Di Beppo ($6,407), a “Promotion Products” company ($46,617) and the Sunburst Travel Agency ($22,634); the Union has less than $4 available for each member in the case of a strike; in 2006, the Union’s largest investment of $225,000 was in an Asian currency company; and “the union has no incentive to change its ways. The revolving door of union representatives will continue.” One answer went as far as strongly suggesting that the Respondent would not negotiate with the Union regarding wages, benefits, and working condi- tions because they were “consistent throughout its facilities.” As to those terms and conditions of employment, the Respon- dent proclaimed: “We’re not changing because our residents and employees depend on us.”33 Legal Analysis A. The 8(a)(1) Charges 1. The Respondent’s prohibition against the use of prounion buttons during worktime Prior to the decertification election campaign period, the Re- spondent occasionally ordered employees to remove buttons that could cause injury to its elderly clients. However, it did not generally enforce a policy prohibiting employees from wearing nonwork-related buttons or pulleys. It took a decid- edly different tack, however, on June 4, when Hetrick directed an employee to remove a prounion button attached to her uni- form. The Respondent then enforced this newly-enforced rule on at least three other occasions during the decertification elec- tion campaign period—July 9, 10, and 11—when its supervi- sors directed employees to remove prounion buttons or pulleys. The buttons and pulleys at issue were mostly smaller in size, but certainly no larger than the pulleys used to attach name tags to uniforms or other personal buttons worn previously by em- ployees as they worked. Union members’ Section 7 rights generally entitle them to wear union insignia in the workplace. Washington State Nurses Assn. v. NLRB, 526 F.3d 577 (9th Cir. 2008); Mt. Clemens General Hospital v. NLRB, 328 F.3d 837 (6th Cir. 2003); and London Memorial Hospital, 238 NLRB 704, 708 (1978). As applied to health care facilities, however, employers’ restric- tions on the wearing of union insignia in “immediate patient care” areas are presumptively valid. On the other hand, restric- tions on union insignia in nonworking areas of such a facility are presumptively invalid. Casa San Miguel, 320 NLRB 534, 540 (1995). A complete restriction on the use of union insignia may be validated, however, where the employer demonstrates the existence of “special circumstances” that are “necessary to avoid disruption of health-care operations or disturbance of patients.” Beth Israel Hospital v. NLRB, 437 U.S. 483, 507 (1978); and NLRB v. Los Angeles New Hospital, 640 F.2d 1017, 1020 (9th Cir. 1981). In such an instance, the employer bears the burden of proving an adverse impact on patient care. Washington State Nurses Assn., 526 F.3d at 581; NLRB v. Bap- 33 GC Exhs. 4, 7, 10, 13. tist Hospital, 442 U.S. 773, 781 (1979); Mesa Vista Hospital, 280 NLRB 298, 299 (1986). The Respondent’s policy as to what employees could attach to their uniforms while working in patient care areas was so vague and, for the most part, unenforced that it could hardly be considered a rule at all. Moreover, the Respondent’s acquies- cence to the use of other buttons and pulleys by employees that were larger than those at issue here negates its special circum- stances allegation—that the prounion buttons and pulleys posed a danger to the facility’s residents. As such, the Respondent’s refinement and enforcement of its vague policy so as to prohibit employees from wearing prounion buttons in the midst of a decertification election campaign period was clearly discrimi- natory and calculated to restrain union activity. Under the cir- cumstances, the implementation and enforcement of such a prohibition violated Section 8(a)(1). Mt. Clemens General Hospital v. NLRB, 335 NLRB 48 (2001). 2. The Respondent’s prohibition against employees discussing the Union during worktime Prior to the decertification election, the Respondent in- structed nursing assistants to limit discussion with other em- ployees about nonwork-related matters that may distract them from caring for the facility’s residents. It did not have a rule prohibiting employees from speaking about nonwork matters while working. As a result, nursing assistants regularly en- gaged in such conversation and were not disciplined or other- wise prohibited from doing so. Such a rule, however, was en- acted and enforced against two employees—Martin and Smith—during the midst of the decertification election cam- paign on June 26. There was no credible evidence that they were distracted from performing their responsibilities at the time. An employer violates Section 8(a)(1) when it permits em- ployees to discuss nonwork-related subjects during worktime, but prohibits employees from discussing union-related matters. Orval Kent Food Co., 278 NLRB 402, 407 (1986); Olympic Medical Corp., 236 NLRB 1117, 1122 (1978), enfd. 608 F.2d 762 (9th Cir. 1979); Williamette Industries, 306 NLRB 1010, 1017 (1992); and Larid Printing, Inc., 264 NLRB 369, 374, 376 (1982). This is especially the case when the prohibition is an- nounced during a union organizing campaign. In re Teledyne Advanced Materials, 332 NLRB 539 (2000); and Olympic Medical Corp., 236 NLRB 1117, 1122 (1978) enfd. 608 F.2d 762 (9th Cir. 1979). Under the circumstances, by promulgating and enforcing a policy allowing employees to discuss nonwork- related subjects, but forbidding Martin and Smith from discuss- ing union matters during the decertification election campaign period, the Respondent violated Section 8(a)(1). 3. The Respondent’s implementation of a contest-quiz The Respondent’s implementation of a contest in June and July was not a new concept. It had held such events before. However, the contest-quizzes at issue consisted of questions relating to the upcoming union decertification election and sought to elicit the views of bargaining unit members regarding the Union. In order to be eligible to win the weekly drawing, employees had to identify themselves on their entries. The Respondent also posted its answers to the contest-quiz ques- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 574 tions in the employee breakroom. Each answer was “no,” fol- lowed by a narrative as to the merits and ramifications of union representation, and clearly reflected an antiunion bias. Just as in the “Union Truth Quiz” used in the controlling case of Sea Breeze Health Care Center, Inc., 331 NLRB 1131, 1132–1133 (2000), the Respondent’s contest-quizzes here were placed by supervisors in the sanctuary of the employee break- room, reflected an antiunion bias and required entrants to iden- tify themselves in order to be eligible for a cash prize. Citing earlier decisions finding such contests objectionable under the Act, the Board in Sea Breeze found such a contest or quiz “tan- tamount to effectively polling employees about their union sentiments” and violated Section 8(a)(1). See Melampy Mfg. Co., 303 NLRB 845 (1991); Houston Chronicle Publishing Co., 293 NLRB 332 (1989); and National Gypsum Co., 280 NLRB 1003 (1986). Similarly, the contest-quizzes at issue here were unlawful mechanisms for the polling and interrogation of employees about their union membership, activities, and sympathies. Such a strategy was calculated to apprise the Respondent as to which employees were familiar with its campaign material. It also enabled the Respondent to ascertain where to focus its addi- tional campaign tactics. Sea Breeze Health Care Center, Inc., supra at 1132–1133. In addition, one of the Respondent’s an- swers published to employees in the breakroom suggested it would be futile for them to continue to support the Union as their bargaining representative. Such communication to em- ployees violated Section 8(a)(1). Goya Foods, 347 NLRB 1118, 1135 (2006); and Wellstream Corp., 313 NLRB 698, 706 (1994). B. The 8(a)(3) Charges The amended complaint further alleges that the Respondent’s aforementioned directives to employees constituted warnings in violation of Section 8(a)(3). The evidence revealed four in- stances in which the Respondent unlawfully directed employees to remove prounion buttons from their uniforms while work- ing—on June 4 and July 9, 10, and 11. In addition, on June 26, the Respondent warned two employees to refrain from discuss- ing matters involving the Union during worktime. In assessing the evidence under the analytical framework of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), it is irrefutable that employees engaged in protected concerted activity by wearing prounion buttons and discussing union matters while working. It is also clear the Respondent was aware of that activity. Its antiunion animus is established through the warnings, directives, and questions and answers provided in the four contest-quizzes. Whether the warnings constitute the requisite adverse action under the analysis, how- ever, leads to a different result. The Respondent’s handbook defines disciplinary action to include written warning, suspension, or discharge. Furthermore, the collective-bargaining agreement states that “[v]erbal coun- seling and coaching shall not count for purposes of progressive discipline.” As previously stated, the directives and/or warn- ings were coercive in nature and constituted violations of Sec- tion 8(a)(1). Nevertheless, there is no indication that any of the employees received adverse action as a result. No documenta- tion was placed in any employee’s file. Nor was there any indication of a change to the terms and conditions of any of the warned or counseled employees. Under the circumstances, the Section 8(a)(3) charges are dismissed. C. The 8(a)(5) Charges The amended complaint further alleges that the Respondent’s promulgation of rules prohibiting employees from wearing union insignia and discussing the Union during worktime, and granting benefits to employees in July through the contest- quizzes, all without prior notice to the Union and affording it an opportunity to bargain, constituted unilateral changes in viola- tion of Section 8(a)(5). The Respondent denies that such events constituted changes and contends that such contests and rules were long in place and never objected to by the Union. Section 8(a)(5) requires employers to provide the Union with notice and an opportunity to bargain before instituting changes in any matter that constitutes a mandatory bargaining subject. Pepsi-Cola Bottling Co., 330 NLRB 900 (2000); NLRB v. Katz, 369 U.S. 736 (1962). A mandatory bargaining matter is one that is “material, substantial, and significant” and an employer’s failure to provide notice of such a change to the appropriate bargaining agent is a violation of Section 8(a)(5). Crittenton Hospital, 342 NLRB 686 (2004). Contests at the Respondent’s facility were not new. The Re- spondent periodically, and since 2000, conducted a voluntary employee recognition and motivation program known as RAMP. RAMP included a wide variety of events, ranging from ice cream socials to contests in which gifts and small cash prizes were awarded to the facility’s employees. The Respon- dent has also periodically conducted anonymous employee satisfaction surveys. However, it has never provided notice of RAMP to the Union or bargained about any of the activities involved. As noted above, RAMP was utilized during the de- certification election campaign for the commission of 8(a)(1) violations discussed above. That development does not change the fact, however, that such contests and social events were voluntary. As such, they were not a term or condition of bar- gaining unit members’ employment. Under the circumstances, the Section 8(a)(5) allegation regarding the contest-quizzes is dismissed. The Respondent’s rule changes regarding the use of buttons and pulleys, and nonwork discussions between employees dur- ing worktime, however, are a different story. Before the decer- tification election campaign period, employees were generally permitted to engage in personal conversation and wear personal buttons while working in resident care areas. Such restrictions, which clearly affected how they were to behave and what they could wear in those instances, thus constituted material, sub- stantial, and significant changes to bargaining unit members’ terms and condition of employment. See United Rentals, Inc., 350 NLRB 627, 628 (2007) (uniform rule change); and San Luis Trucking, Inc., 352 NLRB 211, 228–229 (2008) (rule pro- hibiting employees from talking to one another). Accordingly, the Respondent’s unilateral changes violated Section 8(a)(5) and (1). ALTERCARE OF WADSWORTH CENTER FOR REHABILITATION 575 CONCLUSIONS OF LAW 1. The Respondent, Altercare of Wadsworth Center for Re- habilitation and Nursing Care, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Service Employees International Union, District 1199 (the Union) is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. The Union is the exclusive representative of the following employees of the Respondent, which constitutes a unit appro- priate for the purposes of collective bargaining: All full-time and regular laundry aides, dietary aides, cooks, nurses aides,34 porters, restorative aides, housekeeping aides, and students working more that 16 hours a week, but excluding all office clerical employees, guards and supervisors as defined in the Act. 4. The Respondent violated Section 8(a)(1) of the Act by promulgating and enforcing a rule prohibiting employees from wearing prounion buttons and pulleys in the midst of a decerti- fication election campaign. 5. The Respondent violated Section 8(a)(1) of the Act by promulgating and enforcing a rule allowing employees to dis- 34 See fn. 6, supra. cuss nonwork-related subjects, but prohibiting them from dis- cussing union matters during a decertification election cam- paign. 6. The Respondent violated Section 8(a)(1) of the Act by polling and interrogating bargaining unit members as to their union membership, activities, and sympathies through the use of four contest-quizzes, one of which included a statement indi- cated that it would be futile to retain the Union as their bargain- ing representative. 7. The Respondent violated Section 8(a)(5) and (1) of the Act by instituting work rule changes regarding the use of but- tons and pulleys, and nonwork-related discussions between employees during worktime, without giving notice to and bar- gaining with the Union. 8. The unfair labor practices set forth above affect com- merce within the meaning of Section 2(6) and (7) of the Act. 9. All other charges not specifically referred to above are dismissed. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. [Recommended Order omitted from publication.]