1621 ROUTE 22 WEST OPERATING COMPANY , LLC D/B/A SOMERSET VALLEY REHABILITATION AND NURSING CENTER

National Labor Relations Board - Board Decisions

Jul 13, 2016

364 NLRB No. 43 (N.L.R.B. 2016)

364 NLRB No. 43
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
1621 Route 22 West Operating Company, LLC d/b/a
Somerset Valley Rehabilitation & Nursing Cen-
ter and 1199 SEIU United Healthcare Workers
East, New Jersey Region. Cases 22–CA–069152
and 22–CA–074665
July 13, 2016
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
On January 15, 2013, Administrative Law Judge Lau-
ren Esposito issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, the General
Counsel and the Charging Party filed answering briefs,
and the Respondent filed a reply brief to each answering
brief. The General Counsel filed exceptions and a sup-
porting brief, the Charging Party filed exceptions and a
supporting brief, and the Respondent filed answering
briefs to each. In addition, on March 5, 2013, the Re-
spondent filed a motion to stay these proceedings, in re-
sponse to which the General Counsel filed an opposi-
tion;1 on May 21, 2013, the Respondent submitted a post-
briefing letter;2 and on August 30, 2013, the Respondent
filed a motion for the recusal of Chairman Pearce.3 Most
recently, on March 10, 2016, long after the filing period
for exceptions in this case had closed, the Respondent

1 The Respondent contended that the Board lacked a quorum be-
cause the President’s recess appointments of two Board members at the
time of the motion were constitutionally invalid. In light of the inter-
vening confirmation of the current Board members, we deny the motion
as moot.
2 The Respondent’s letter, submitted pursuant to Reliant Energy, 339
NLRB 66 (2003), calls the Board’s attention to the Third Circuit’s
opinion in NLRB v. New Vista Nursing & Rehabilitation, 719 F.3d 203
(2013). We find the Respondent’s arguments regarding the authority of
the Board to issue the Decision and Certification of Representative on
August 26, 2011, moot in light of the Supreme Court’s decision in
NLRB v. Noel Canning, 134 S.Ct. 2550 (2014).
3 The Respondent argues that Chairman Pearce must recuse himself
because his chief counsel, Ellen Dichner, prior to her service as chief
counsel, represented the Charging Party Union in this case. The Na-
tional Labor Relations Board has delegated its authority in this proceed-
ing to a three-member panel. Because the panel does not include
Chairman Pearce, and neither he nor Ms. Dichner has participated in
the Board’s consideration of this case, we deny the motion as moot.
See Somerset Valley Rehabilitation & Nursing Center (Somerset I), 362
NLRB No. 113, slip op. at 1 fn. 1 (2015) (incorporating by reference
358 NLRB 1361 (2012)), enfd. sub nom. 1621 Route 22 West Operat-
ing Co., LLC v. NLRB, Nos. 15-2466 & 15-2586, 2016 WL 3146014, at
*10 (3d Cir. June 6, 2016).
filed a motion to dismiss the proceedings, and the Gen-
eral Counsel filed an opposition to that motion.4

4 The Respondent requests that the Board “dismiss the above-
captioned unfair labor proceedings in their entirety on the grounds that
the complaint and amended complaints in this action were issued by
Lafe Solomon, who was serving as Acting General Counsel of the
National Labor Relations Board (NLRB or Board) in violation of the
Federal Vacancies Reform Act (FVRA).” The Respondent argues that
“[a]s the D.C. Circuit found, Solomon was not permitted to serve as
Acting General Counsel after the President nominated him in [sic]
January 5, 2011,” citing SW General, Inc. v. NLRB, 796 F.3d 67, 74–75
(D.C. Cir. 2015), petition for rehearing en banc denied Case No. 14-
1107 (January 20, 2016), petition for cert. granted __ S.Ct. __, 2016
WL 1381487 (U.S. June 20, 2016) (No. 15-1251). The Respondent
adds that the “Court of Appeals for the Ninth Circuit recently reached
the same conclusion,” citing Hooks v. Kitsap Tenant Support Services,
Inc. (Kitsap II), 816 F.3d 550 (9th Cir. 2016). For the reasons dis-
cussed below, we find no merit in the Respondent’s contentions.
Prior to filing the current motion to dismiss, the Respondent never
raised any issue regarding the FVRA or the authority of the Acting
General Counsel, and we therefore find that the Respondent has waived
the right to do so. See 1621 Route 22 West Operating Co., LLC v.
NLRB, supra, at *9 (quoting SW General, Inc. v. NLRB, 796 F.3d at
83). The Board’s Rules and Regulations preclude parties from belated-
ly raising new issues that were not preserved for appeal through the
filing of timely exceptions. See Sec 102.46(b)(2) and (g) of the
Board’s Rules and Regulations (“Any exception . . . not specifically
urged shall be deemed to have been waived,” and “[n]o matter not
included in exceptions . . . may thereafter be urged before the Board, or
in any further proceeding.”). The judge’s decision issued on January
15, 2013, and the Respondent’s exceptions were due and filed on
March 5, 2013. Inasmuch as the Respondent’s 2016 motion to dismiss
seeks to overturn the judge’s decision based on a newly raised argu-
ment, we reject the motion as an untimely effort to file additional ex-
ceptions. See Bloomingdale’s, Inc., 363 NLRB No. 172, slip op. at 2–3
fn. 4 (2016); The Boeing Co., 362 NLRB No. 195, slip op. at 1 fn. 1
(2015).
Moreover, even assuming, arguendo, that we were to consider the
Respondent’s challenge to the authority of the AGC under the FVRA,
we would not find it appropriate to dismiss the complaint. On June 18,
2010, the President directed Lafe Solomon, then-Director of the
NLRB’s Office of Representation Appeals, to serve as Acting General
Counsel pursuant to subsection (a)(3)—the senior agency employee
provision. Under that provision, Solomon was eligible to serve as
Acting General Counsel at the time the President directed him to do so.
See Kitsap II, 816 F.3d at 557; SW General, 796 F.3d at 73. The Re-
spondent does not contend otherwise.
We acknowledge that the decisions in Kitsap II and SW General also
held that Solomon lost his authority as Acting General Counsel on
January 5, 2011, when the President nominated him to be General
Counsel. Kitsap II, 816 F.3d at 558; SW General, 796 F.3d at 78.
Although that question is still in litigation, we find that subsequent
events have rendered moot the Respondent’s argument that Solomon’s
alleged loss of authority after his nomination precludes further litiga-
tion in this matter. Specifically, on March 21, 2016, General Counsel
Richard F. Griffin, Jr., issued a Notice of Ratification in this case that
states, in relevant part,
The prosecution of this case commenced under the authority of Acting
General Counsel Lafe E. Solomon during the period after his nomina-
tion on January 5, 2011, while his nomination was pending with the
Senate, and before my confirmation on November 4, 2013.
The United States Court of Appeals for District of Columbia Circuit
recently held that Acting General Counsel Solomon’s authority under
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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, findings,5 and conclusions as
modified below and to adopt the recommended Order as
modified and set forth in full below.6

the Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq.,
ceased on January 5, 2011, when the President nominated Mr. Solo-
mon for the position of General Counsel. SW General, Inc. v. NLRB,
__ F.3d __, 2015 WL 4666487, (D.C. Cir., Aug. 7, 2015). The Court
found that complaints issued while Mr. Solomon’s nomination was
pending were unauthorized and that it was uncertain whether a lawful-
ly-serving General Counsel or Acting General Counsel would have
exercised discretion to prosecute the cases. Id. at *10.
I was confirmed as General Counsel on November 4, 2013. After ap-
propriate review and consultation with my staff, I have decided that
the issuance of the complaint in this case and its continued prosecution
are a proper exercise of the General Counsel’s broad and unreviewa-
ble discretion under Section 3(d) of the Act.
My action does not reflect an agreement with the appellate court rul-
ing in SW General. Rather, my decision is a practical response aimed
at facilitating the timely resolution of the charges that I have found to
be meritorious while the issues raised by SW General are being re-
solved. Congress provided the option of ratification by expressly ex-
empting “the General Counsel of the National Labor Relations Board”
from the FVRA provisions that would otherwise preclude the ratifica-
tion of certain actions of other persons found to have served in viola-
tion of the FVRA. Id. at *9 (citing 5 U.S.C. § 3348(e)(1)). .
For the foregoing reasons, I hereby ratify the issuance and continued
prosecution of the complaint.
Thus, even assuming that the Respondent had not previously waived
its right to challenge the continued authority of the Acting General
Counsel following his nomination by the President, in view of the
independent decision of General Counsel Griffin to continue prosecu-
tion of this matter, we reject as moot the Respondent’s argument that
SW General and Kitsap II preclude further litigation.
Accordingly, the Respondent’s motion to dismiss is denied.
5 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. We include in those findings the
judge’s implicit discrediting of testimony by Danette Manzi,
Healthbridge and CareOne executive vice president of operations,
regarding her reasons for eliminating the Respondent’s LPN position.
The judge found that the Respondent violated Sec. 8(a)(5) by deny-
ing the Union access to its facility. Although healthcare employers
generally have a valid interest in controlling access to their facility for
patient-care purposes, the Respondent did not assert any such interest in
response to the Union’s request for access or discuss with the Union the
possibility of accommodating those interests. Instead, the Respondent
simply ignored the Union’s request for access. For the reasons stated
by the judge and this additional reason, we adopt her finding that the
Respondent’s denial of access violated Sec. 8(a)(5).
6 We have modified the recommended Order for the reasons stated
below and to conform to our standard remedial language. In accord-
ance with our decision in Advoserv of New Jersey, Inc., 363 NLRB No.
143 (2016), we shall modify the judge’s recommended tax compensa-
tion and Social Security reporting remedy and her recommended Order.
Facts
We include these facts only as a brief overview; the
judge’s decision below and the Board’s decision in Som-
erset I, supra, provide a thorough discussion of the rele-
vant evidence. The Respondent, a 64-bed nursing home
in Bound Brook, New Jersey, provides primarily sub-
acute care. It also provides long-term care, but it had no
more than five or six patients in long-term care at any
relevant time. The Respondent is one of a group of nurs-
ing homes owned or managed by two related companies,
CareOne Management, Inc. and Healthbridge Manage-
ment, which operate dozens of nursing homes throughout
New Jersey, Connecticut, Massachusetts, and Pennsylva-
nia.7
Starting in 2010, the Respondent’s nursing staff sought
representation by 1199 SEIU United Healthcare Workers
East, New Jersey Region (the Union). In response to the
employees’ vote to unionize, the Respondent committed
a series of unfair labor practices, including unlawfully
discharging several licensed practical nurses (LPNs).8 In
the unfair labor practice proceedings, the Board found
that the Respondent’s animus against the Union was “be-
yond question,” as demonstrated by its disparate treat-
ment of union supporters (who were primarily LPNs),
repeated unlawful interrogations of employees, solicita-
tions of employee grievances, and other unlawful state-
ments by managers. See Somerset I, supra (incorporating
by reference 358 NLRB at 1361). The Board further
found that the Respondent was extremely focused on
unseating the Union through a rerun election, to the ex-
tent of making major personnel decisions based on which
employees it perceived as likely to “be on [the Respond-
ent’s] side” in the event of a rerun election. Id. (incorpo-
rating by reference 358 NLRB at 1385). That focus con-
tinued even after the Union had been certified as the em-
ployees’ exclusive representative.
On April 7, 2011, the General Counsel petitioned a
United States district court for an injunction ordering
interim reinstatement of the nurses who had been dis-
criminatorily discharged, as found in Somerset I. In
May, the Respondent decided to eliminate its LPN classi-
fication and assign all floor nurse work to nonunit regis-

We shall substitute a new notice to conform to the Order as modified
and in accordance with our decision in Durham School Services, 360
NLRB No. 85 (2014).
7 The Respondent excepts to the judge’s finding that Healthbridge or
CareOne owns the Respondent. There is no dispute, however, that the
Respondent’s administration includes high-level managers employed
by Healthbridge or CareOne. Because the complaint names only the
Respondent as the employer here, we find it unnecessary to pass on the
precise relationship among the three entities.
8 See Somerset I, supra.
1621 ROUTE 22 WEST OPERATING CO., LLC 3
tered nurses (RNs).9 It is undisputed that the Respondent
failed to provide the Union with notice and an opportuni-
ty to bargain over that decision. The Respondent elimi-
nated the LPNs mainly through attrition but, when only
two LPNs, Irene D’Ovidio and Maharanie Mangal, re-
mained, it discharged them. Although the Respondent’s
Associate Medical Director, Dr. Anthony Frisoli, testi-
fied that the change from LPNs to RNs helped convince
him to start referring patients to the Respondent, a disin-
terested witness, Dr. Edward Buch, testified that he
stopped referring patients to the Respondent after the
change because the brand-new RNs could not provide the
level of care that D’Ovidio had provided. No other nurs-
ing home affiliated with Healthbridge or CareOne used
exclusively RNs as floor nurses.
1. The 8(a)(3) discrimination allegation
We adopt the judge’s finding, for the reasons she stat-
ed, that the Respondent violated Section 8(a)(3) and (1)
by eliminating the LPN position and transferring work to
nonunit RNs in retaliation for the LPNs’ union activity
and to evade its responsibility to reinstate its unlawfully
discharged LPNs.10 As we found in Somerset I, the Re-
spondent wished to erode the Union’s support to improve
its chances of winning a rerun election. Removing the
unit classification whose members had led the organizing
drive would go a long way towards accomplishing that
goal. And, as stated above, the Respondent decided to
eliminate the LPN classification just 1 month after the
General Counsel sought an injunction ordering the rein-
statement of several LPNs. We agree with the judge that
this timing supports an inference that the Respondent
eliminated the LPN classification in response to the
LPNs’ union activity, rather than to resolve patient-care
problems that had plagued the Respondent for years.11
The Respondent’s brief relies almost solely on challeng-
es to the Somerset I decision and on the testimony of
Danette Manzi, Healthbridge’s or CareOne’s Executive
Vice President. But the judge implicitly discredited
Manzi’s testimony, and we have expressly affirmed the

9 The Respondent contends that it made this change in order to pro-
vide better patient care in response to negative recertification surveys
that it had received in December 2009 and December 2010 from the
New Jersey Department of Health and Senior Services, which regulates
nursing homes. The judge rejected this claim.
10 In her analysis, the judge cited Relco Locomotives, Inc., 358
NLRB 298 (2012), a case decided by a panel that included two persons
whose appointments to the Board were not valid. See NLRB v. Noel
Canning, supra. Prior to the issuance of Noel Canning, however, the
United States Court of Appeals for the Eighth Circuit enforced the
Board’s Order in Relco Locomotives, see 734 F.3d 764 (2013), and
there is no question regarding the validity of that court’s judgment.
11 See also 1621 Route 22 West Operating Co. v. NLRB, supra, at
*12 (rejecting the Respondent’s similar assertion of the motivation for
its conduct in Somerset I).
judge’s credibility findings. We therefore adopt the
judge’s finding that the Respondent’s elimination of the
LPN classification and transfer of LPN work to RNs vio-
lated Section 8(a)(3).12
2. The 8(a)(5) unit scope and unlawful work transfer
allegations
The judge found that the Respondent’s unilateral deci-
sion to eliminate its LPN position and transfer floor
nurse work to nonunit RNs violated Section 8(a)(5) of
the Act under two theories. First, citing Fibreboard
Corp. v. NLRB13 and Torrington Industries,14 she found
that the Respondent unlawfully transferred bargaining
unit work without providing the Union with notice or an
opportunity to bargain. The judge further found that the
Respondent’s action altered the scope of the bargaining
unit: she stated that the elimination of the LPN classifi-
cation was a mandatory subject of bargaining, and there-
fore the Respondent violated Section 8(a)(5) by eliminat-
ing the classification without notice to or bargaining with
the Union.15 All parties contend that the judge erred in
the latter analysis. The General Counsel and the Union
contend that, because changing the unit scope is a per-
missive, not a mandatory, subject of bargaining, the Re-
spondent may not do so absent the Union’s consent or a
Board order. In contrast, the Respondent contends that
its elimination of the LPN position did not violate Sec-
tion 8(a)(5).
Under Section 8(d) of the Act, mandatory subjects of
bargaining include wages, hours, and other terms and
conditions of employment. A decision to subcontract or
transfer unit work alters the terms and conditions of em-
ployment and is therefore a mandatory subject of bar-
gaining. See Fibreboard Corp., 379 U.S. at 210. But
eliminating a unit classification alters the scope of the
unit, and such an action is a permissive subject of bar-
gaining. See, e.g., Shell Oil Co., 194 NLRB 988, 995
(1972), enfd. sub nom. OCAW v. NLRB, 486 F.2d 1266,
1268 (D.C. Cir. 1973). Accordingly, once a specific job
has been included in the bargaining unit, it cannot be
removed from the unit absent the union’s consent or a
Board order. Wackenhut Corp., 345 NLRB 850, 852
(2005).

12 As alleged in the complaint and found by the judge, the Respond-
ent’s decision resulted in the discharge of LPNs D’Ovidio and Mangal.
To fully remedy this violation, the judge properly ordered the Respond-
ent to offer D’Ovidio and Mangal full reinstatement and to make them
whole for losses resulting from their discharges.
13 379 U.S. 203 (1964).
14 307 NLRB 809 (1992).
15 See generally NLRB v. Wooster Div. of Borg-Warner Corp., 356
U.S. 342 (1958).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent admits that it eliminated the LPN
classification but contends that, “regardless of whether
the elimination of the LPN classification was a mandato-
ry or permissive subject of bargaining, no relief is war-
ranted here.” The Respondent does not state a position
about whether the elimination of the LPN classification
is a change in the scope of the unit, a transfer of work
outside the unit, or both. Instead, it simply raises several
defenses to the general duty to bargain that the Board and
courts have recognized in cases including First National
Maintenance v. NLRB, 452 U.S. 666 (1981), and Dubu-
que Packing, Co., 303 NLRB 386 (1991), enfd. 1 F.3d
24 (D.C. Cir. 1993), cert. denied 511 U.S. 1138 (1994).16
As we now show, those defenses are inapplicable here,
as well as unsupported by the record.17
First, the cases cited above concern refusals to bargain
over mandatory subjects of bargaining. The Board has
never found an exception to an employer’s duty to re-
frain from unilaterally changing the scope of a unit—
again, a permissive subject of bargaining—based on de-
fenses recognized in cases dealing with mandatory bar-
gaining subjects. Essentially, the Respondent argues that
it may make sweeping changes to its employees’ repre-
sentation not only without obtaining the Union’s consent,
but without even notifying the Union in advance. The
Respondent has not offered any rationale for applying
such ill-suited defenses here, and we decline to do so.
Second, unlike in all the cases that the Respondent cites,
employees of the Respondent indisputably still perform
all the work that the employees in the eliminated LPN
classification performed at the same location.18 Finally,
even if the defenses the Respondent raises were cogniza-

16 In particular, the Respondent argues that eliminating the LPNs
was a change in the scope and direction of the business, that labor costs
were not a factor in the decision, and that the decision was motivated
by “compelling economic circumstances.”
17 The Board has unanimously found that the Respondent violated
Sec. 8(a)(3) when it eliminated the LPN classification and transferred
LPN work to RNs. Because any additional finding that these same acts
also violated Sec. 8(a)(5) would not materially affect the remedy,
Member Miscimarra finds it unnecessary to reach or pass on the Sec.
8(a)(5) issues addressed by his colleagues.
18 The Respondent admits as much in its brief, but it draws the
wrong conclusion from this admission. In the Respondent’s view, this
case should be distinguished from Fibreboard because, here, the Re-
spondent did not hire permanent subcontractors to do the work that
LPNs had previously done. This fact undermines the Respondent’s
contention. The entire line of Board and court cases beginning with
Fibreboard, including First National Maintenance and Dubuque Pack-
ing, deals with transfers of work in which the employer moves the work
to employees of a different employer or its own employees at a different
location. A straightforward work reassignment to another (in this case,
nonrepresented) group of employees at the same location is not con-
templated by those cases.
ble here, we affirm the judge’s reasons for rejecting them
on the merits.
The Respondent also challenges the General Counsel’s
request for an order that it cease and desist from remov-
ing classifications from the unit without the Union’s con-
sent, contending that the General Counsel did not seek
that remedy in the complaint and citing TLI, Inc.19 But
TLI, Inc. is inapposite because the complaint in the pre-
sent case clearly alleges that the Respondent violated
Section 8(a)(5) by removing the LPN classification from
the unit. An order to restore the classification and to
cease and desist from removing classifications from the
bargaining unit, absent the Union’s consent or a Board
order, is the standard remedy for the violation alleged
and found, and it need not be separately requested. In
any event, the Board’s power to address remedial issues
is not limited to granting the remedies sought by the
General Counsel, in the complaint or otherwise. See,
e.g., J. Picini Flooring, 356 NLRB 11, 12 fn. 5 (2010)
(rejecting the argument that a requested remedy had been
waived because it was sought for the first time on excep-
tions); Indian Hills Care Center, 321 NLRB 144, 144 fn.
3 (1996) (citations omitted).
We agree with the General Counsel and the Union that
the scope of the bargaining unit may be altered only by
consent of the parties or Board order. Therefore, order-
ing the Respondent merely to give the Union notice and
an opportunity to bargain before implementing any
changes to the scope of the unit would not fully remedy
the violation found. Instead, we shall order the Re-
spondent to cease and desist from altering the bargaining
unit without the Union’s consent.20
3. Remedial matters
The Board has broad discretionary authority under
Section 10(c) to fashion appropriate remedies that will

19 271 NLRB 798, 805–806 (1984), enfd. 772 F.2d 894 (3d Cir.
1985).
20 We need not address whether, as the judge found, the Respond-
ent’s elimination of the LPN classification was also a unilateral transfer
of unit work in violation of Sec. 8(a)(5). The remedy for such a viola-
tion would essentially be subsumed by the remedies we order for the
8(a)(3) violation and the 8(a)(5) change of unit scope without consent.
Aggregate Industries v. NLRB, __ F.3d ___, Cases No. 14-1252 and 14-
1276, 2016 WL 3213001 (D.C. Cir. June 10, 2016) (denying enforce-
ment in relevant part to 359 NLRB No. 156 (2013)) does not require a
different result. There, the court held that the Board had erred in find-
ing a change in the unit’s scope, rather than a transfer of work, when
the employer moved a portion of its work from the employees in one
bargaining unit to those in another unit. In so finding, the court none-
theless distinguished cases in which “the employers did not simply
move work between positions in different units; they effectively elimi-
nated the position that had initially done the work.” Id. at *6. Here, the
Respondent effectively—and purposefully—eliminated the LPN posi-
tion that had performed the work at issue before the Union prevailed in
the election.
1621 ROUTE 22 WEST OPERATING CO., LLC 5
best effectuate the policies of the Act. See, e.g., J&J
Snack Foods Handhelds Corp., 363 NLRB No. 21, slip
op. at 1 (2015) (citing NLRB v. J. H. Rutter-Rex Mfg.
Co., 396 U.S. 258, 262–263 (1969)); see also 1621 Route
22 West Operating Co., LLC v. NLRB, supra, 2016 WL
3146014, at *11 (enforcing Somerset I) (“[C]ourts of
appeals should not substitute their judgment for that of
the NLRB in determining how best to undo the effects of
unfair labor practices, and the Board’s choice of a reme-
dy must be given special respect by reviewing courts,
and must not be disturbed unless it can be shown that the
order is a patent attempt to achieve ends other than those
which can fairly be said to effectuate the policies of the
Act.”) (internal quotation marks and citations omitted).
Consistent with that discretionary authority, we have
concluded that, in this case, remedies beyond those rec-
ommended by the judge are necessary to effectuate the
policies of the Act. As stated, the Board’s power to ad-
dress remedial issues sua sponte is well established.
In light of the Respondent’s demonstrated proclivity to
violate the Act, we will issue a broad remedial order re-
quiring it to cease and desist from “in any other manner
interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of
the Act.” Such broad orders are appropriate where the
respondent has shown a proclivity to violate the Act or
has committed particularly egregious violations. See
Hickmott Foods, 242 NLRB 1357, 1357 (1979). Alt-
hough no party excepted to the judge’s failure to recom-
mend a broad order, the Respondent’s violations are suf-
ficiently numerous and serious to warrant a broad order.
The Respondent has repeatedly violated the Act. In
Somerset I, we found that the Respondent violated Sec-
tion 8(a)(1) by engaging in multiple unlawful interroga-
tions and unlawful solicitations of employee grievances,
and Section 8(a)(3) and (1) by unlawfully disciplining
and discharging four employees, accelerating the resigna-
tion date of a fifth, and reducing the hours of per diem
employees, all in response to the Union’s organizing
drive. Now, the Respondent has taken its actions a step
further, violating Section 8(a)(5), (3), and (1) by elimi-
nating the LPN classification in retaliation for the union
activities of its LPNs and in order to avoid reinstating
unlawfully discharged employees.21 Its unlawful actions
have seriously depleted the size and strength of the bar-

21 We also note that some of the Respondent’s agents who commit-
ted the unfair labor practices here, including Manzi, are employees of
Healthbridge, which has shown a proclivity to violate the Act. See
Long Ridge of Stamford, 362 NLRB No. 33 (2015); Healthbridge
Mgmt., 360 NLRB No. 118 (2013), enfd. 798 F.3d 1059 (D.C. Cir.
2015). Although Healthbridge’s ownership of the Respondent is dis-
puted, its employees’ participation in the conduct that we find unlawful
is not.
gaining unit.22 The Respondent has also independently
violated Section 8(a)(5) and (1) by refusing to allow its
employees’ chosen bargaining representative any access
to its premises, failing even to respond to the Union’s
request. Therefore, in light of the Respondent’s demon-
strated proclivity to violate the Act, we amend the
judge’s remedy to include a broad cease-and-desist order.
Because of the Respondent’s proclivity for violating
the Act and its undermining of the bargaining unit, we
find that further remedies are appropriate. To dissipate
as much as possible any lingering effect of the Respond-
ent’s serious and widespread unfair labor practices and
enable employees to exercise their Section 7 rights free
of coercion, we will require that the remedial notice be
read aloud to the Respondent’s employees by a responsi-
ble management official of the Respondent, and in the
presence of a Board agent and an agent of the Union if
the Region or the Union so desires, or at the Respond-
ent’s option, by a Board agent in the presence of a re-
sponsible management official and, if the Union so de-
sires, of an agent of the Union. See, e.g., Texas Super
Foods, Inc., 303 NLRB 209, 220 (1991).
Finally, we will require that the remedial notice should
be mailed, at the Respondent’s expense, to all the Re-
spondent’s employees employed at any time since May
1, 2011 (the date of the first unfair labor practice by the
Respondent in these proceedings). We find that the Re-
spondent’s persistent goal of undermining the Union, the
length of time that has passed since the events of this
case, and especially the LPNs’ absence from the work
force during that time, warrant this additional notification
remedy. See Pacific Beach Hotel, 361 NLRB No. 65,
slip op. at 6–7 (2014) (noting that “the [r]espondents’
violations were unquestionably deliberate, targeted, and
egregious, designed to frustrate the exercise of Section 7
rights and undermine the [u]nion’s effectiveness. Mail-
ings will reach individuals who would not otherwise see
the posting but who were affected by the [r]espondents’
unlawful conduct, such as the [r]espondents’ former em-
ployees who lack access to the [r]espondents’ facility.”),
enfd. in relevant part sub nom. HTH Corp. v. NLRB, --
F.3d --, Case No. 14-1222, 2016 WL 2941936 (D.C. Cir.
May 20, 2016).23

22 Before the Respondent eliminated the LPN classification, it em-
ployed 19 LPNs, about a quarter of the total bargaining unit of about 75
employees.
23 Member Miscimarra would not order the Respondent to mail the
notice to employees absent a showing that the Respondent has gone out
of business or closed the facility involved in these proceedings. In his
view, unlike in Pacific Beach Hotel, cited by his colleagues, the length
of time during which the Respondent has undermined the bargaining
unit has not been so excessive and unusual as to warrant a notice mail-
ing.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board orders that the
Respondent, 1621 Route 22 West Operating Company,
LLC d/b/a Somerset Valley Rehabilitation & Nursing
Center, Bound Brook, New Jersey, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Eliminating classifications contained in the bar-
gaining unit represented by the Union and transferring
the work formerly performed by employees in those clas-
sifications to nonunit employees in retaliation for the
bargaining unit employees’ union activities. The bar-
gaining unit is:
All full-time and regular part-time and per diem non-
professional employees including licensed practical
nurses, certified nursing assistants, housekeepers, reha-
bilitation technicians, dietary cooks, dietary aides,
laundry aides, recreation assistants, unit secretaries,
medical records coordinators, maintenance workers,
porters and receptionists employed by the Employer at
its Bound Brook, New Jersey location, but excluding
all office clerical employees, registered nurses, dieti-
cians, physical therapists, physical therapy assistants,
occupational therapists, occupational therapy assistants,
speech therapists, social workers, staffing coordinators,
payroll/benefits coordinators, all other professional
employees, guards and supervisors as defined in the
Act.
(b) Eliminating classifications contained in the bar-
gaining unit without the consent of the Union or a Board
order.
(c) Refusing to provide the Union access to its Bound
Brook, New Jersey facility to obtain information regard-
ing the bargaining unit employees’ work processes and
working conditions, including health and safety condi-
tions.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, restore
the LPN classification and return to the LPNs any LPN
work transferred to RNs since May 2011.
(b) On the Union’s request, grant the Union’s desig-
nated representative access to the Bound Brook, New
Jersey facility for reasonable periods and at reasonable
times, sufficient to allow the Union’s representative to
observe the bargaining unit employees’ work processes
and working conditions, including health and safety con-
ditions.
(c) Within 14 days from the date of this Order, offer
Irene D’Ovidio and Maharanie Mangal full reinstatement
to their former jobs or, if such jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
(d) Make Irene D’Ovidio and Maharanie Mangal
whole, with interest, for any lost earnings and other ben-
efits suffered as a result of the above-described unlawful
unilateral and retaliatory changes, in the manner set forth
in the remedy section of the judge’s decision as amended
in this decision.
(e) Compensate Irene D’Ovidio and Maharanie
Mangal for the adverse tax consequences, if any, of re-
ceiving lump-sum backpay awards, and file with the Re-
gional Director for Region 22, within 21 days of the date
the amount of backpay is fixed, either by agreement or
by Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the August 18, 2011 and
October 17, 2011 unlawful discharges of Irene D’Ovidio
and Maharanie Mangal, and, within 3 days thereafter,
notify D’Ovidio and Mangal in writing that this has been
done and that the discharges will not be used against
them in any way.
(g) 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, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the
terms of this Order.
(h) Within 14 days after service by the Region, post at
its Bound Brook, New Jersey facility copies of the at-
tached notice marked “Appendix.”24 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 22, after being signed by Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent

24 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.”
1621 ROUTE 22 WEST OPERATING CO., LLC 7
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(i) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense, after being signed by
Respondent’s authorized representative, copies of the
attached notice to the last known addresses of all current
employees and former unit employees employed by the
Respondent at any time since May 1, 2011.
(j) Within 14 days after service by the Region, hold a
meeting or meetings during working hours, which shall
be scheduled to ensure the widest possible attendance of
unit employees, at which time the attached notice is to be
read to employees by a responsible management official
in the presence of a Board agent and an agent of the Un-
ion if the Region or the Union so desires, or, at the Re-
spondent’s option, by a Board agent in the presence of a
responsible management official and, if the Union so
desires, of an agent of the Union.
(k) 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.
Dated, Washington, D.C. July 13, 2016
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT eliminate classifications contained in the
bargaining unit represented by the Union and transfer the
work formerly performed by employees in those classifi-
cations to nonunit employees in retaliation for your union
activities. The bargaining unit is:
All full-time and regular part-time and per diem non-
professional employees including licensed practical
nurses, certified nursing assistants, housekeepers, reha-
bilitation technicians, dietary cooks, dietary aides,
laundry aides, recreation assistants, unit secretaries,
medical records coordinators, maintenance workers,
porters and receptionists employed by the Employer at
its Bound Brook, New Jersey location, but excluding
all office clerical employees, registered nurses, dieti-
cians, physical therapists, physical therapy assistants,
occupational therapists, occupational therapy assistants,
speech therapists, social workers, staffing coordinators,
payroll/benefits coordinators, all other professional
employees, guards and supervisors as defined in the
Act.
WE WILL NOT eliminate classifications contained in the
bargaining unit without the Union’s consent or a Board
order.
WE WILL NOT refuse to provide the Union access to our
Bound Brook, New Jersey facility to obtain information
about your work processes and working conditions, in-
cluding health and safety conditions.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights listed
above.
WE WILL, within 14 days from the date of the Board’s
Order, restore the LPN classification and return to the
LPNs any LPN work transferred to RNs since May 2011.
WE WILL, on the Union’s request, grant the Union’s
designated representative access to our Bound Brook,
New Jersey facility for reasonable periods and at reason-
able times, sufficient to allow the Union’s representative
to observe your work processes and working conditions,
including health and safety conditions.
WE WILL, within 14 days from the date of the Board’s
Order, offer Irene D’Ovidio and Maharanie Mangal full
reinstatement to their former jobs or, if those jobs no
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
WE WILL make Irene D’Ovidio and Maharanie Mangal
whole for any loss of earnings and other benefits result-
ing from their discharges, less any net interim earnings,
plus interest.
WE WILL compensate Irene D’Ovidio and Maharanie
Mangal for the adverse tax consequences, if any, of re-
ceiving lump-sum backpay awards, and WE WILL file
with the Regional Director for Region 22, within 21 days
of the date the amount of backpay is fixed, either by
agreement or by Board order, a report allocating the
backpay awards to the appropriate calendar years for
each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Irene D’Ovidio and Maharanie Mangal,
and WE WILL, within 3 days thereafter, notify them in
writing that this has been done and that the discharges
will not be used against them in any way.
WE WILL hold a meeting or meetings during working
hours and have this notice read to you and your fellow
workers by a responsible management official in the
presence of a Board agent and an agent of the Union if
the Region or the Union so desires, or by a Board agent
in the presence of a responsible management official and,
if the Union so desires, of an agent of the Union.
1621 ROUTE 22 WEST OPERATING
COMPANY, LLC, D/B/A SOMERSET VALLEY
REHABILITATION & NURSING CENTER
The Board’s decision can be found at
www.nlrb.gov/case/22–CA–069152 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
Nancy Slahetka, Esq., for the Acting General Counsel.
Steven W. Likens, Esq. and Amber Isom-Thompson, Esq. (Lit-
tler Mendelson, P.C.), for the Respondent.
Ellen Dichner, Esq. (Gladstein, Reif & Meginniss, LLP), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
LAUREN ESPOSITO, Administrative Law Judge. Based upon a
charge in Case 22–CA–69152 filed on November 17, 2011, and
amended on or about December 5, 2011, January 25, 2012, and
April 3, 2012, and upon a charge in Case 22–CA–74665 filed
on February 15, 2012, an Order consolidating cases, third
amended consolidated complaint, and notice of hearing issued
on April 26, 2012. The complaint alleges that 1621 Route 22
West Operating Company, LLC d/b/a Somerset Valley Reha-
bilitation & Nursing Center (“Somerset Valley” or “Respond-
ent”), violated Sections 8(a)(1), (3), and (5) of the Act by elim-
inating a bargaining unit classification and transferring work to
nonbargaining unit classifications without providing 1199
SEIU United Healthcare Workers East, New Jersey Region
(1199 or the Union), with notice or the opportunity to bargain,
and in retaliation for the bargaining unit employees’ union ac-
tivities. The complaint further alleges that as a result of the
unlawful elimination of a bargaining unit classification and
transfer of work, Respondent discharged employees Irene
D’Ovidio and Maharanie Mangal. Finally, the complaint alleg-
es that Somerset Valley unlawfully denied the Union access to
its facility, in violation of Sections 8(a)(1) and (5). Respondent
filed an answer denying the material allegations of the com-
plaint.
This case was tried before me on May 7, 8, 9, 10, and 11,
2012, in Newark, New Jersey.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits in its answer and I find that at all material
times it has been a limited liability company engaged in the
business of operating a rehabilitation and nursing facility in
Bound Brook, New Jersey, which provides health care and
related services. Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. Respondent admits and I find that
the Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Operations and Management
Respondent operates a 64-bed facility which provides pri-
marily sub-acute health care for illness, injury, or exacerbation
of a chronic condition immediately after or in lieu of hospitali-
zation. Respondent also has several long-term care patients,
who have resided at its facility for a number of years. These
long-term care patients generally require assistance with activi-
ties of daily living. Respondent is subject to regulation and
oversight by the New Jersey Department of Health and Senior
1621 ROUTE 22 WEST OPERATING CO., LLC 9
Services (the “NJDHSS”), which performs yearly Recertifica-
tion Surveys based upon visits to the facility, and by the Center
for Medicare and Medicaid Services (the “CMS”). At all times
material to the events at issue here, Respondent accepted self-
paying and Medicare patients, but not Medicaid patients.
Respondent is part of a group of health care facilities owned
and operated by Healthbridge Management, Inc. and CareOne
Management, Inc. Healthbridge Management operates three
skilled nursing facilities in New Jersey Somerset Valley,
Woodcrest, and South Jersey. CareOne Management operates
25 facilities in New Jersey which also provide 24-hour skilled
nursing services for both sub-acute and long-term care patients.
Healthbridge Management and CareOne Management both
maintain their corporate offices and an information technology
department at Bridge Plaza in Fort Lee, New Jersey.
Healthbridge Management and CareOne Management issue
policies applicable to the individual facilities they own and
manage.
Respondent’s administrator is the manager with the highest
level of authority at the Somerset Valley facility. Since August
1, 2011, this position has been held by Kristina Grasso, and
from August 2010 to August 2011 Respondent’s administrator
was Doreen Illis.1 Respondent’s administrator reports to a
regional director of operations, who is employed by either
Healthbridge Management, Inc. or CareOne Management, Inc.
Jason Hutchens was the regional director of operations until
November 2011, and in January 2012, Orrin Karstetter assumed
this position. The egional director of operations in turn reports
to the executive vice president of operations, who is employed
by both Healthbridge Management and CareOne Management.
The executive vice president of operations has ultimate opera-
tional control over HealthBridge Management facilities such as
Respondent, and CareOne Management facilities as well.
Danette Manzi has been executive vice president of operations
for HealthBridge Management and Care One Management
since January 2011.
Somerset Valley’s Nursing Department is headed by a direc-
tor of nursing (DON), who reports to its administrator. There is
also an assistant director of nursing (ADON), and a unit man-
ager in the Nursing Department. These positions have seen
significant turnover during the past several years. Doreen Illis
testified that when she became administrator in August 2010,
the DON position had been filled by an employee from
Healthbridge Management or CareOne Management. Illis then
hired Inez Konjoh as the DON, but discharged her 5 months
later. Subsequently Jackie Engram, vice president of clinical
services in New Jersey for either HealthBridge Management or
CareOne Management, became DON. Kristina Grasso testified
that when she became administrator in August 2011, Engram
was still the DON, but left shortly thereafter. Ruth Brown
Roper was then hired as the DON, but she was discharged by
Grasso in late October or early November 2011. Grasso then
promoted ADON Jennifer Lempke to interim DON from No-
vember 2011, until Lempke resigned in late April 2012.

1 Illis and Grasso worked together at the facility for 2 to 3 weeks in
August 2011.
Similarly, Illis testified that Francine O’Dominique was the
ADON from either October or November 2010 until August
2011. When Grasso became administrator, Lempke was appar-
ently the ADON, and after Grasso promoted Lempke to interim
DON, Ajoke Ogunwolere assumed the ADON position. Illis
and Grasso also both testified that there had been at least three
different employees in the unit manager position during their
respective tenures as administrator.
Kristina Grasso, Doreen Illis, and Danette Manzi testified at
the hearing for Respondent, as did Anthony Frisoli, MD, Re-
spondent’s associate medical director since November 2011.
Maharanie Mangal and Irene D’Ovidio, both formerly em-
ployed by Respondent as LPNs, testified for General Counsel,
as did Edward Buch, MD, formerly an attending physician at
Respondent’s facility, and Ricky Elliott, a vice president of
1199.
Grasso and Dr. Frisoli testified regarding impending regula-
tory changes in conjunction with the recently enacted federal
healthcare reform measures. Under these new rules, if a patient
with a diagnosis of congestive heart failure, pneumonia, or
myocardial infarction is readmitted to a hospital within 30 days
of discharge, the hospital will incur a financial penalty. Hospi-
tals are therefore seeking out facilities for sub-acute care refer-
rals with lower hospital readmission rates, and facilities which
provide sub-acute care, such as Respondent, are in turn attempt-
ing to decrease the rates at which their patients are readmitted
to a hospital. Healthbridge Management and CareOne Man-
agement had therefore issued to their facilities, and Respondent
was to implement, a series of measures designed to reduce the
rate at which patients who are referred by hospitals to Re-
spondent are readmitted to a hospital within thirty days, such as
the Acute Transfer Alternative Program, or ATAP. Illis testi-
fied that during her tenure as administrator, she and Engram
participated in a weekly conference call with Jeff Slocum, a
manager with Healthbridge Management responsible for quali-
ty assurance,2 regarding patients transferred from Somerset
Valley to a hospital. Illis testified that other facilities partici-
pated in conference calls with Slocum before and after hers.
B. The Union’s Organizing Campaign, the Representation
Election, and the Union’s Certification
On July 22, 2010, 1199 filed a petition for a representation
election in Case 22–RC–13139. The election was conducted on
September 2, 2010, pursuant to a Stipulated Election Agree-
ment, and 38 votes were cast for 1199, with 28 votes cast
against the Union and five challenged ballots. Respondent filed
Objections, and in a Decision issued August 26, 2011, the
Board adopted the Hearing Officer’s findings and recommenda-
tions overruling Respondent’s objections, and certified 1199 as
the exclusive collective bargaining representative of the em-
ployees in the following unit:
All full-time and regular part-time and per diem non-
professional employees including licensed practical nurses,
certified nursing assistants, housekeepers, rehabilitation tech-
nicians, dietary cooks, dietary aides, laundry aides, recreation

2 Illis apparently could not provide specific information regarding
Slocum’s title or employer during her testimony (Tr. 493–495).
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
assistants, unit secretaries, medical records coordinators,
maintenance workers, porters and receptionists employed by
the Employer at its Bound Brook, New Jersey location, but
excluding all office clerical employees, registered nurses, die-
ticians, physical therapists, physical therapy assistants, occu-
pational therapists, occupational therapy assistants, speech
therapists, social workers, staffing coordinators, pay-
roll/benefits coordinators, all other professional employees,
guards and supervisors as defined in the Act.
Somerset Valley Rehabilitation & Nursing Center, 357
NLRB 736. Respondent subsequently refused to bargain with
1199 and provide requested information, and on December 30,
2011, the Board issued a Decision and Order requiring that
Respondent do so. Somerset Valley Rehabilitation & Nursing
Center, 357 NLRB 1866. Respondent has filed a Petition for
Review of the Board’s August 26, 2011 Decision and Order
with the United States Court of Appeals for the Third Circuit.
C. Other Previous Unfair Labor Practice Charges and
Federal Litigation
Beginning on August 31, 2010, 1199 filed a series of unfair
labor practice charges and amended charges alleging that Re-
spondent had issued written warnings to employees, discharged
them, and reduced their hours in retaliation for their activities
on behalf of the Union. The charges also alleged that Respond-
ent unlawfully interrogated employees and solicited employee
grievances. A hearing was conducted from April 27 to June 28,
2011 before Administrative Law Judge Steven Davis, and on
November 21, 2011, Judge Davis issued a Decision and Rec-
ommended Order. Somerset Valley Rehabilitation & Nursing
Center, JD(NY)–45–11. Respondent filed Exceptions, and on
September 26, 2012 the Board issued a Decision and Order in
Somerset Valley Rehabilitation & Nursing Center, 358 NLRB
1361. The Board affirmed Judge Davis’s conclusions that Re-
spondent had violated Sections 8(a)(1) and (3) by unlawfully
issuing written discipline to and discharging employees Shan-
non Napolitano, Jillian Jacques, and Valerie Wells, by dis-
charging Sheena Claudio, by accelerating the resignation date
of Lynette Tyler, and by reducing the hours of per diem em-
ployees.3 The Board also affirmed Judge Davis’s findings that
Respondent violated Section 8(a)(1) by repeatedly interrogating
employees in an unlawful manner, and by unlawfully soliciting
employee complaints and grievances.
In April 2011, prior to the opening of the administrative
hearing, the Regional Director, Region 22, filed an action seek-
ing injunctive relief pursuant to Section 10(j) of the Act in the
United States District Court for the District of New Jersey. On
April 16, 2012, the District Court issued a memorandum opin-
ion and order granting and denying in part the relief sought.
The District Court order enjoined and restrained Respondent
from interrogating employees, promising increased benefits,
and improved terms and conditions of employment if employ-

3 Napolitano, Jacques, and Claudio were LPNs; Wells, Tyler, and the
per diem employees at issue in that case were CNAs. Judge Davis
found that Napolitano, Jacques, and Claudio were “the three leading
union advocates at Somerset Valley.” Somerset Valley Rehabilitation
& Nursing Center, 358 NLRB 1361, at p. 387.
ees refrained from union activities, and discharging and disci-
plining employees in retaliation for their union support and
activities. The District Court further ordered the reinstatement
of Napolitano and Claudio. However, the District Court de-
clined to order the reinstatement of Wells and Jacques, rescind
written discipline, and restore the hours of the per diems.
Lightner v. Somerset Valley Rehabilitation & Nursing Center,
2012 WL 1344731 and 2012 WL 1372177 (D.N.J. April 16,
2012).
D. Respondent’s Elimination of the LPN Job Classification and
Move to an All-RN Model of Health Care Delivery
At all times material to the events at issue in this case, Re-
spondent’s nursing staff has been assigned to three shifts. Prior
to the spring of 2011, there were three floor nurses and four to
five CNAs on the 7 a.m. to 3 p.m. shift, three floor nurses and
three to four CNAs on the 3 p.m. to 11 p.m. shift, and two floor
nurses on the 11 p.m. to 7 a.m. shift. These shifts overlapped
by 15 minutes, so that the nursing staff finishing one shift could
consult with the staff beginning the following shift. LPNs
worked as floor nurses, as did three RNs; both classifications of
employees performed the same tasks.4 Illis testified that during
this period Respondent employed 19 LPNs and eight RNs,
including part-time and per diem LPNs. Each LPN was re-
sponsible for approximately 2022 patients or residents each
day.
Mangal and D’Ovidio testified regarding the daily activities
of the floor nurses. After receiving a report from the floor
nurse on the prior shift, the LPNs distributed medication and
performed treatments and assessments, involving a physician as
necessary. Treatments included those necessary for the care of
wounds (such as suctioning and changing bandages and dress-
ings) and tracheotomies (such as suctioning and cannula clear-
ance), treatments for infections, starting and maintaining IV
lines,5 treatments involving respiration such as nebulizers, in-
halers, and BIPAP and CPAP machines, the use of continuous
passive motion machines, maintenance of correct posture, and
tasks involved in peritoneal dialysis. In addition, LPNs assisted
chronic heart failure and other patients with activities of daily
living (“ADLs”).
LPNs and RNs also performed assessments. In the admis-
sions process, LPNs performed an assessment regarding the
patient’s pain, wounds, sensory perception, alertness and con-
sciousness, and capabilities in terms of standing and performing
ADLs independently. A group of employees, including the
Minimum Data Set (“MDS”) Coordinator, the dietician, social
worker, therapeutic recreation, and other nurses, then devel-
oped a comprehensive plan of care for the patient or resident.
LPNs also performed specific assessments for pain while dis-
tributing medications, and assessed each patient when begin-
ning their shift each day. Under their professional license, RNs
are permitted to develop a plan of care for the patient based
upon the assessments they perform, whereas an LPN’s assess-

4 In addition, the unit manager, assistant director of nursing, director
of nursing, and MDS coordinator are RNs.
5 Only RNs are permitted under their license to administer a bolus or
“IV push” medication through an IV line, as opposed to medication
administered via an IV pump.
1621 ROUTE 22 WEST OPERATING CO., LLC 11
ment involves only observing and recording various aspects of
the patient’s condition. Finally, only RNs are permitted to
make a pronouncement of death.
Mangal and D’Ovidio testified that beginning in June 2011,
Respondent began using a number of RNs referred from an
agency to replace LPNs as the LPNs resigned or were dis-
charged. D’Ovidio testified that Respondent had never before
used agency nurses in such a large capacity. Mangal and
D’Ovidio both testified that they trained the agency RNs to
perform specific floor nurse tasks, such as passing medication,
starting an IV, dialysis procedures, and suctioning, because
several had little or no actual nursing experience.6 The agency
RNs then proceeded to perform the same work that LPNs had
performed as floor nurses, described above.
Eventually these agency RNs were replaced by RNs who
were hired as floor nurses on a permanent basis, and by July
2011, Mangal and D’Ovidio were the only LPNs remaining at
the facility. Mangal and D’Ovidio testified that they provided
orientation and training to the newly-hired RNs, some of whom
had no nursing experience. For example, Mangal and D’Ovidio
testified that they trained the new employee RNs regarding
starting an IV, dialysis, pleural evacuation, wound and trache-
otomy suctioning, and changing wound dressings. The evi-
dence establishes that none of the RNs initially hired by Re-
spondent are still employed at the facility except for one, who
at the time of the hearing was suspended and on a final warning
for permitting a patient to go outside the facility in order to
smoke a cigarette, providing them with cigarettes and a lighter,
in violation of Respondent’s policies.7
Dr. Edward Buch, a general and vascular surgeon who had
provided wound care at Somerset Valley from about the spring
of 2010 until the fall of 2011, testified regarding the impact of
the transition from LPNs to RNs on patient care. Dr. Buch
testified that his practice at Somerset Valley focused on wound
care, including bed sores, leg wounds, and surgical wounds,
and that he visited the facility once a week. Dr. Buch testified
that he ended his relationship with Respondent because the care
he was able to provide began deteriorating when D’Ovidio was
removed from her wound care duties and replaced with other
nurses who did not share her expertise. According to Dr. Buch,
eventually there were nurses assigned to his wound care pa-
tients who had no clinical experience with major wounds or
dressings at all. Dr. Buch testified that he communicated his
dissatisfaction with the lack of trained nurses and its impact on
care to two different directors, to no avail, and eventually ended
his association with Respondent and stopped referring patients
there. Dr. Buch testified that in his opinion, in the context of
Respondent’s patient population and the care being provided, a
nurse’s professional qualification was irrelevant in light of their
practical experience and knowledge of the particular patient.

6 Illis testified that the LPNs were not instructed to train the RNs,
only to provide an orientation to the facility and patients, but also stated
that she had no personal knowledge of what actually occurred during
the initial interactions between the LPNs and the agency RNs. All of
the agency RNs Mangal and D’Ovidio referred to during their testimo-
ny are no longer employed at the facility.
7 The evidence also establishes that this RN had been disciplined
previously for eight medication errors.
E. The Discharge of Irene D’Ovidio and Maharanie Mangal
D’Ovidio and Mangal had both been employed by Respond-
ent for a number of years. Mangal worked as a CNA for 7
years before becoming an LPN in May of 2009, and worked as
a floor nurse until her discharge on November 17, 2011.
D’Ovidio began her employment with Respondent as an LPN
floor nurse in August 2002, and was employed as a nurse until
her discharge on August 18, 2011. D’Ovidio also had specific
duties as a wound care nurse and MDS assistant, in conjunction
with the special wound care program directed by Dr. Buch.
These duties ended in January 2011, at which point D’Ovidio
returned to her floor nurse position.
D’Ovidio testified that on August 18, 2011, she noticed
when arriving at work that an extra nurse had been assigned to
the day shift. Soon after she had arrived, Grasso called her into
the office, and Illis was also present. Illis told D’Ovidio that
the facility was moving in a different direction, and that
D’Ovidio “wasn’t part of the plan.” Illis told D’Ovidio to hand
in her keys and badge, and said that D’Ovidio could not return
to or call the facility again.8
Mangal had a number of conversations with Respondent’s
managers regarding the elimination of the LPN positions and
transition to an all-RN model of care prior to her discharge.
Mangal testified that some time during August 2011, she spoke
to Ruth Roper Brown, who was then the DON, about a friend
who was interested in working for Respondent. Roper Brown
asked whether Mangal’s friend was an LPN or an RN, and told
Mangal that Respondent was only hiring RNs with a Bachelor
of Arts degree. Later that month, Grasso called Mangal to her
office, and told Mangal that there were only two LPNs still
employed at Somerset Valley. Grasso told Mangal that in order
to remain employed she would have to enroll in an RN program
as soon as possible. Mangal responded that she was interested
in becoming an RN and would investigate the programs availa-
ble. Grasso testified that during this conversation she told
Mangal that Mangal needed to enroll in an RN program for the
fall semester in order to remain employed. Illis testified that
she also spoke with Mangal prior to leaving the Administrator
position in August 2011, and was under the impression that
Mangal had enrolled in an RN program. Illis testified that she
discussed the issue with Engram, Grasso, and Hutchens.
After her discussion with Grasso, Mangal began contacting
educational institutions to obtain information about RN pro-
grams. Mangal was told that it was too late at that point to
enroll for the fall semester, but she would be able to enroll to
begin the coursework the following spring. Mangal also dis-
covered that she would be required to complete a number of
prerequisite courses when beginning the degree program.9

8 The evidence establishes that D’Ovidio received a verbal warning
in early spring 2011 for failing to provide documents in a timely man-
ner, specifically a summary of wound care treatments that she had
already performed. Although D’Ovidio prepared and submitted this
summary on a daily basis, it was not a part of any patient’s official
medical record. In any event, the evidence does not establish that this
verbal warning played any role in D’Ovidio’s discharge.
9 D’Ovidio testified that she is currently enrolled in a program to ob-
tain an Associate’s Degree and become an RN. D’Ovidio testified that
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mangal testified that toward the end of August 2011, Roper
Brown asked whether she was enrolled in an RN program, and
Mangal explained that it was too late for her to enroll for the
fall semester, that she would have to enroll for the spring, be-
ginning with the prerequisite courses. Mangal testified that
during the first week of October 2011, Roper Brown provided
her with a card containing information about a college network
for an RN program. Mangal investigated this program, but
found that its cost was prohibitive, and felt that she would be
more successful with a live teaching format, as opposed to clas-
ses conducted electronically. Grasso testified that she was not
aware of these impediments to Mangal’s enrolling in the col-
lege network RN program.
Mangal testified that approximately 2 weeks prior to her dis-
charge, she spoke to Hutchens while distributing medications
on the floor. Hutchens asked Mangal whether she was enrolled
in an RN program, and Mangal told him that it was too late to
enroll for the fall semester, but she intended to enroll to begin
in the spring. On October 17, 2011, Grasso called Mangal into
her office. Grasso told Mangal that she was “the last one stand-
ing,” and that she would have to let Mangal go if Mangal had
no proof that she was enrolled in an RN program. Mangal testi-
fied that she tried to explain that she intended to enroll for the
spring semester, but eventually asked Grasso whether she was
firing her. Grasso said that she was discharging her because
she had no proof of her enrollment in an RN program. The
Termination Personnel Action Form Grasso signed that day
states that Mangal was discharged because she had not enrolled
in an RN program.
F. Respondent’s Decision to Eliminate the LPN Classification
and Move to an All-RN Model
Danette Manzi, executive vice president of operations for
both Healthbridge Management and CareOne Management,
testified that in May 2011 she made the determination to elimi-
nate the LPN job classification at Somerset Valley, and to have
RNs perform the floor nurse work formerly performed by the
LPNs. Manzi testified that she made this decision after discus-
sions with Hutchens, who was concerned that Somerset Valley
was providing services similar to its competitors, and that all of
the competing facilities were accepting the same types of pa-
tients. Manzi testified that in Hutchens’s opinion Somerset
Valley needed to provide a unique service in relation to com-
petitor businesses. Manzi and Hutchens therefore decided to,
as she put it, “go all sub-acute.” Manzi testified that she be-
lieved that only RNs could effectively provide the level of care
required by a population of sub-acute patients, because only
RNs had the assessment skills necessary to adequately address
the various medical issues involved.
Manzi testified that her decision to eliminate the LPN classi-
fication was also based upon “concerns” she and Hutchens
shared regarding the standard of care the LPNs were providing,
given the number of citations and deficiencies noted in the
December 2010 Recertification Survey performed by the

the application process took 4 weeks, and that completion of the pre-
requisites for the program will take 9 months.
NJDHSS.10 Manzi stated that Hutchens reported to her that
some of the systems for patient care delivery at Somerset Val-
ley, in particular medication administration, were not “sustain-
able” with LPNs. According to Manzi, Hutchens informed her
that despite teaching, training, and mentoring that Respondent
had implemented, the quality of care being provided by the
LPNs had not risen to an acceptable level.11
The record indicates that Hutchens received his information
regarding the standard of care being provided and attempts to
remedy the issues revealed in the NJDHSS surveys from Illis,
who at that time was Respondent’s administrator. Illis testified
that a week or two after arriving at Somerset Valley in August
2010 she determined that the LPNs were not capable of provid-
ing adequate care for patients at the acuity level of the facility’s
population, based upon the findings of the NJDHSS December
2009 Recertification Survey.12 Illis testified that she initially
reached this conclusion after her first month at Somerset Val-
ley, or in September 2010. Illis testified that she and Hutchens
spoke at least once each week, and that it would be unusual if
she had not informed Hutchens of this conclusion at that time.
Illis testified that she subsequently attempted to remedy the
problems and improve the standard of care through education
and subsequently discipline.
After the December 2010 Survey revealed a significant
number of deficiencies, Illis met with the staff on about five to
seven occasions to discuss the Survey’s results. During these
meetings, Illis told the staff that failure to administer medica-
tions, failure to act in accordance with to resident rights, and
failure to follow nursing policy and professional standards of
care would be subject to disciplinary action.13 Illis testified that
despite these meetings she still noticed problems involving
wound care, IV care, medication management issues, and the
overall standard of care being provided. She therefore con-
cluded that the nursing staff was not capable of providing the
level of care that the residents or patients required.
Manzi testified that in May 2011 she told Hutchens that as
floor nurse positions became available due to attrition, they
should be offered solely to RNs. Illis testified that Hutchens
subsequently informed her that the facility was moving to an
all-RN model of health care delivery in order to improve the
quality of care and raise standards, and that as LPNs left RNs
should be hired to replace them. Although Illis informed En-
gram, then the director of nursing, that the LPNs would be re-
placed by RNs through attrition, no one from Respondent’s
management informed the staff regarding this decision.

10 This Survey identified 25 deficiencies, approximately 13 of which
are attributable to the operations of the nursing department (including
management and physicians).
11 Hutchens did not testify at the hearing.
12 This Survey identified six deficiencies, four of which were at-
tributable to nursing department employees, including management and
physicians. Two of the six deficiencies were “G” level deficiencies,
indicating that they involved actual harm to a patient.
13 The record does not establish that any LPNs were disciplined as a
result of the patient care deficiencies Illis discussed with them between
the time that the December 2010 Survey was issued and May 2011,
when Manzi made the decision to eliminate the classification.
1621 ROUTE 22 WEST OPERATING CO., LLC 13
Dr. Anthony Frisoli, who became Respondent’s associate
medical director in November 2011, testified that he took that
position and began admitting patients to Somerset Valley after
Respondent moved to an all-RN model of health care delivery.
Dr. Frisoli testified that for many years prior to this change,
Respondent’s reputation in the community regarding the quality
of the nursing care it provided was not very good. Dr. Frisoli
testified that in his opinion, given the higher acuity level and
comorbidities of patients now receiving sub-acute care at facili-
ties such as Somerset Valley, an ability to perform assessments
and develop care plans on an emergency basis at the RNs’ cre-
dentialed level is necessary in order to provide optimal care.14
Dr. Frisoli testified that Somerset Medical Center, an acute care
facility where he is an attending physician, and Bridgeway Care
Center, where he serves as medical director, had both eliminat-
ed LPNs from their sub-acute care areas for this reason. How-
ever, Dr. Frisoli had no knowledge of Respondent’s staffing
and the specific work performance of its LPNs or RNs prior to
November 2011, when he became associate medical director.
It is undisputed that Respondent did not provide 1199 with
notice or the opportunity to bargain prior to its decision to elim-
inate the LPN classification through attrition and henceforth
assign the floor nurse work to RNs. The Union was notified
regarding Respondent’s decision in November 2011, in the
context of the 10(j) proceeding. Lightner v. Somerset Valley
Rehabilitation & Nursing Center, 2012 WL 1344731 at *3, fn.
7.
G. Evidence Involving Respondent’s Alleged Denial of
Access to 1199
On January 30, 2012, Milly Silva, 1199’s executive vice
president for the New Jersey Region, wrote to Grasso and re-
quested access to the bargaining unit members’ “work areas” in
Respondent’s facility, “in order to observe work processes and
working conditions, including health and safety conditions.”
Silva asked that Grasso contact her and schedule a time for
1199 representatives to visit the facility. Elliott testified that
1199 sought access to the facility in order to conduct bargain-
ing surveys regarding the employees’ terms and conditions of
employment, and in order to formulate bargaining proposals,
select a negotiating committee, and otherwise prepare for col-
lective bargaining negotiations. Elliott stated that the Union
also wanted to observe the bargaining unit employees at work,
to personally observe their work environment and working
conditions, and to ensure that there were no outstanding health
and safety problems, such as the unavailability of Hoyer lifts
which reduce the number of back injuries. Elliott testified that
the bargaining unit CNAs had complained that the nursing staff
was inadequate to perform all of the tasks which needed to be
completed during a shift, and the Union wanted to visit the
facility to determine exactly what the employees’ job assign-
ments entailed. Elliott testified that 1199 also wanted to deter-
mine whether the employees had access adequate supplies in
order to perform their jobs. Respondent admitted in its answer

14 Frisoli testified that changes in medication require a doctor’s or-
der, which can be obtained by either an LPN or an RN in the same
manner.
that it never responded to Elliott’s request, and it is undisputed
that Respondent did not provide the Union with access to the
facility.
III. ANALYSIS AND CONCLUSIONS
A. Respondent Violated Sections 8(a)(1) and (5) of the Act by
Eliminating the LPN Classification and Transferring Bargain-
ing Unit Work to Non-Bargaining Unit RNs Without Providing
1199 with Notice and the Opportunity to Bargain
1. The transfer of bargaining unit work
General Counsel argues that the complaint’s allegation that
Respondent unilaterally transferred bargaining unit work out-
side of the bargaining unit in violation of Sections 8(a)(1) and
(5) of the Act is properly evaluated under Fibreboard Corp. v.
NLRB, 379 U.S. 203 (1964), and the Board’s line of cases be-
ginning with Torrington Industries, 307 NLRB 809 (1992).
These cases generally hold that an employer’s decision to sub-
contract bargaining unit work is a mandatory subject of bar-
gaining where the employer simply substitutes one group of
workers for another that performs the same work, without a
substantial capital input or change in the nature or type of busi-
ness. See, e.g., O.G.S. Technologies, Inc., 356 NLRB 642, at p.
644–647 (2011) (subcontracting of bargaining unit die-cutting
work to other firms); Sociedad Espanola de Auxilio Mutuo y
Beneficencia de P.R., 342 NLRB 458, 467469 (2004), enfd.
414 F.3d 158 (1st Cir. 2005) (subcontracting of bargaining unit
X-ray technician and respiratory therapy work performed in
Respondent hospital); Torrington Industries, Inc., 307 NLRB at
810811. This analysis has also been applied in cases involving
the transfer of bargaining unit work to supervisors, managers,
and other nonbargaining unit employees, where the work has
not been subcontracted. See, e.g., St. George Warehouse, Inc.,
341 NLRB 904 (2004), enfd. 420 F.3d 294 (1st Cir. 1005) (re-
placement of directly employed bargaining unit warehouse
employees with temporary agency employees); Regal Cinemas,
Inc., 334 NLRB 304, 312–313 (2001), enfd, 317 F.3d 300
(D.C. Cir. 2003) (transfer of bargaining unit projectionist work
to non-bargaining unit managers and assistant managers).
General Counsel contends that here Respondent merely sub-
stituted nonbargaining unit RNs for the bargaining unit LPNs,
and that the RNs thereafter performed the same floor nurse
work as had the LPNs, in the employer’s facility, without any
substantial capital infusion or change in the nature or type of
business on Respondent’s part. General Counsel further asserts
that Respondent’s removal of bargaining unit work did not
involve a change in the nature, scope, or direction of its enter-
prise for reasons of profitability, “akin to the decision whether
to be in business at all.” First National Maintenance Corp. v.
NLRB, 452 U.S. 666, 667 (1981); see also O.G.S. Technologies,
Inc., 356 NLRB 642, at p. 645 (2011). General Counsel there-
fore argues that Respondent was not relieved of its obligation to
provide 1199 with notice and the opportunity to bargain regard-
ing the transfer of work outside of the bargaining unit.
Respondent contends that the appropriate standard for de-
termining whether it was obligated to bargain with 1199 regard-
ing the transfer of bargaining unit work is the balancing test
articulated in Dubuque Packing Co., 303 NLRB 386 (1991),
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
enf. denied in part, 1 F.3d 24 (D.C. Cir. 1993), which involved
a relocation of bargaining unit work. Thus, Respondent con-
tends that General Counsel must first establish a prima facie
case by showing that Respondent’s decision to transfer the
work was not accompanied by “a basic change in the nature of
the employer’s operations.” Dubuque Packing Co., 303 NLRB
at 391. Respondent may counter by demonstrating that the
work performed at the new location “varies significantly” from
the work performed at the former site, that the work at the for-
mer site was discontinued entirely, or that the relocation of the
work involves “a change in the scope and direction of the en-
terprise.” Id. Alternatively, Respondent may defend by estab-
lishing that labor costs were not an issue in its decision, or that,
in the event labor costs were a factor, the union could not have
offered “labor cost concessions” sufficient to alter Respond-
ent’s decision. Id. Here, Respondent argues that labor costs
were not a factor in its decision to transfer bargaining unit work
to non-bargaining unit RNs, and contends that its move to an
all-RN model of health care delivery involved a change in the
nature, scope, and direction of its business. Respondent there-
fore asserts that its transfer of floor nurse work from the LPNs
to RNs was not a mandatory subject of bargaining.
I find that the allegations at issue here are more appropriately
considered using the Fibreboard Corp. and Torrington Indus-
tries, Inc. line of cases, as opposed to the Dubuque Packing Co.
burden shifting analysis. I find, as argued by General Counsel,
that the evidence establishes that Respondent substituted one
group of employees, the nonbargaining unit RNs, for another,
the bargaining unit LPNs, and that the RNs continued to per-
form the floor nurse work formerly performed by the LPNs in
the same location and manner. In addition, there is no evidence
here that bargaining unit work was geographically relocated, as
in Dubuque Packing Co. 303 NLRB at 391. As a result, the
instant case is more appropriately susceptible to the Fibreboard
Corp./Torrington Industries analysis, and the balancing analy-
sis articulated in Dubuque Packing is inapposite. See, e.g.,
Sociedad Espanola de Auxilio Mutuo y Beneficencia de P.R.,
342 NLRB at 467–469 (applying Fibreboard/Torrington line of
cases to replacement of bargaining unit employees with sub-
contractor employees who performed work in employer’s fa-
cility); St. George Warehouse, Inc., 341 NLRB at 904 (transfer
of bargaining unit work performed in employer’s facility to
temporary agency employees analyzed under Fibre-
board/Torrington standard).
In particular, I concur with General Counsel that the facts at
issue here are similar to the scenario addressed in St. George
Warehouse, Inc., where bargaining unit employees were effec-
tively replaced through attrition by temporary agency employ-
ees, which had been explicitly excluded from the bargaining
unit, and ultimately performed the same work in the employer’s
facility. 341 NLRB at 904, 924. Here Respondent did exactly
that, replacing LPNs as they resigned or were discharged with
RNs from an agency, and then hiring RNs directly to perform
the floor nurse work previously performed by the LPNs on a
permanent basis. Eventually the LPNs, a group of employees
explicitly included in the certified bargaining unit, had been
entirely replaced by RNs, a job classification which had been
explicitly excluded. Furthermore, Respondent has not provided
any evidence of a substantial capital outlay which accompanied
its shift to an all-RN model of health care delivery or, as dis-
cussed in further detail below, a change in the nature or type of
its business. As a result, I find that Respondent’s transfer of
bargaining unit work was a mandatory subject of bargaining
under the Fibreboard/Torrington standard.
Respondent also contends that it was not obligated to bargain
with 1199 because the transfer of bargaining unit floor nurse
work was effected in conjunction with a change in the nature,
scope and direction of its overall enterprise, citing First Na-
tional Maintenance Corp. v. NLRB, 452 U.S. at 677. In First
National Maintenance Corp., the Supreme Court held that deci-
sions which affect conditions of employment but involve such a
change, “akin to the decision whether to be in business at all,”
are not ultimately based upon conditions of employment, and
are thus not amenable to the collective-bargaining process. 452
U.S. at 677–678, 687.
However, I find that the evidence does not substantiate this
contention. The evidence establishes that Respondent is
providing the same services, sub-acute and long-term health
care, with employees who perform the same patient care tasks
with the same equipment and materials. O.G.S. Technologies,
Inc., 356 NLRB 642 at p. 645; Torrington Industries, 307
NLRB at 810. There is no evidence that Respondent has aban-
doned a line of business or otherwise made a change in its
overall scope of its operations, made a substantial capital com-
mitment, or implemented more sophisticated technologies
which have changed the nature of its business. O.G.S. Tech-
nologies, Inc., 356 NLRB 642 at p. 645. Respondent’s princi-
pal contention in this regard is that it is no longer accepting
long-term care patients, and is seeking to become a facility
which provides sub-acute care only. However, the testimony at
the hearing established that Respondent has never had more
than a handful of long-term care patients, and that the majority
of the patients for which it provided care required sub-acute
services. In addition, Respondent’s website, as of May 9, 2012,
states that it offers “complete clinical programs” in not only
sub-acute but also long-term care (GC Exh. 12, p. 1), and a
brochure distributed during Illis’s tenure as administrator ad-
vertises long-term care services as well (R.S. Exh. 13, p. 5).
Nor did the elimination of Respondent’s wound care program,
which involved one attending physician and one LPN, consti-
tute a fundamental change in its business. As a result, the evi-
dence overall establishes that Respondent continues to operate
the same facility, providing the same health care services in the
same manner that it has for a number of years, to a substantially
similar patient population in terms of overall acuity level. The
evidence fails to establish a change in the nature, type, scope,
or direction of the business under either Fibreboard/Torrington
or First National Maintenance which would exempt the trans-
fer of work from Respondent’s obligation to bargain.
Respondent also contends that its transition to an all-RN
model of staffing was a change in the nature, scope and direc-
tion of its business because it was implemented based upon a
concern with reducing rates of readmission to hospitals from
which its patients had been referred, pursuant to ongoing regu-
latory changes. Respondent contends that its replacement of
LPNs with RNs was therefore ultimately effected based upon
1621 ROUTE 22 WEST OPERATING CO., LLC 15
concerns regarding the quality of care it was able to provide in
light of the implementation of new regulations, as opposed to
issues involving labor costs. However, the Board has on sever-
al occasions found that subcontracting decisions constitute a
mandatory subject of bargaining despite employer contentions
that the decisions were motivated by concerns unrelated to
labor costs, such as the speed of the work performed, the sea-
sonal nature of the business, equipment out of compliance with
regulatory standards, or difficulties in obtaining adequate
staff.15 See O.G.S. Technologies, Inc., 356 NLRB 642, at p.
645–646; Sociedad Espanola de Auxilio Mutuo y Beneficencia
de P.R., 342 NLRB at 468–469; Torrington Industries, 307
NLRB at 810–811.
In addition, Respondent offered no evidence to demonstrate
how new protocols being developed to reduce readmission rates
would affect the actual day-to-day work performed by its em-
ployees, or require the services of RNs, as opposed to LPNs. In
fact, Dr. Frisoli’s testimony established that, as of the time of
the hearing, these new protocols were still in the process of
being developed. The testimony at the hearing establishes that
RNs are capable of performing three functions that LPNs may
not under their respective licensesadministering an “IV push,”
making a pronouncement of death, and developing a plan of
care for the patient based upon a more interpretive as opposed
to observational assessment. Dr. Frisoli testified that the RNs’
ability to develop a plan of care in emergent situations was
most critical to providing a standard of care appropriate to sub-
acute patients, and a significant component of his preference
for working with RNs as opposed to LPNs. However, Re-
spondent provided no evidence to substantiate how the RNs’
superior assessment capabilities, or their other additional func-
tions, were necessary to the protocols being developed, or to
the reduction of readmission rates overall given the daily work
of the floor nurses.16 This is particularly the case because the
record establishes that Respondent had always employed RNs
in addition to LPNs. As a result, I find that the evidence is
insufficient to substantiate Respondent’s claim that the effort to
reduce hospital readmission rates, and admittedly evolving
protocols, required the replacement of Respondent’s LPNs with
RNs as part of a change in the nature, scope, and direction of

15 Respondent relies on two decisions of the United States Court of
Appeals for the Third Circuit which criticized the Board’s Fibre-
board/Torrington analysis, and ultimately found that specific subcon-
tracting decisions were not in fact mandatory subjects of bargaining. In
Dorsey Trailers, Inc. v. NLRB, 134 F.3d 125 (1998), and Furniture
Rentors of America, Inc. v. NLRB, 36 F.3d 1240 (1994), the Third
Circuit rejected the Board’s application of the Fibreboard/Torrington
analysis, and instead considered whether the employers were motivated
by labor cost issues amenable to collective bargaining, or other, entre-
preneurial, factors. However, the Board has declined to apply the anal-
ysis articulated by the Third Circuit in these cases in favor of the tradi-
tional Fibreboard Corp./Torrington Industries analysis. See Overnite
Transportation Co., 330 NLRB 1275, 1276–1279 (2000), affd. and
revd. in part, 248 F.3d 1131 (3rd Cir. 2000). As a result, they are inap-
posite here.
16 For the reasons discussed in Sec. III(B)(3), below, the evidence
does not substantiate Respondent’s contention that 30-day readmission
rates were in fact reduced as a result of the transfer of floor nurse work
from LPNs to RNs.
Respondent’s business. I therefore find that Respondent’s
transfer of bargaining unit LPN work to nonbargaining unit
RNs was a mandatory subject of bargaining, regardless of its
purported genesis in quality of care concerns.
For all of the foregoing reasons, the evidence establishes and
I find that Respondent’s transfer of floor nurse work from bar-
gaining unit LPNs to nonbargaining unit RNs was a mandatory
subject of bargaining. As a result, I find that Respondent’s
failure to provide 1199 with notice and the opportunity to bar-
gain regarding the decision to transfer bargaining unit work
violated Sections 8(a)(1) and (5) of the Act.
2. The elimination of the LPN classification
General Counsel contends that Respondent violated Sections
8(a)(1) and (5) of the Act by unilaterally eliminating the LPN
job classification, which is explicitly included in the bargaining
unit certified by the Board in its August 26, 2011 Decision. It
is well-settled that the unilateral removal of a position which
has been explicitly included within the scope of a bargaining
unit, either by the parties’ consent or the Board’s processes,
violates Sections 8(a)(1) and (5). Wackenhut Corp., 345 NLRB
850, 852 (2005); Mt. Sinai Hospital, 331 NLRB 895 fn. 2
(2000). Respondent argues that it was not obligated to bargain
with 1199 regarding the decision to eliminate the LPN classifi-
cation because the decision was made in May 2011, while Re-
spondent’s Objections to the conduct of the election were pend-
ing before the Board, and because it has petitioned for review
of the Board’s August 26, 2011 Decision certifying 1199 as
exclusive bargaining representative. However, it is well settled
that Respondent’s bargaining obligation attached as of the date
of the election, September 2, 2010, and was not suspended
pending the outcome of subsequent litigation. See, e.g., Jason
Lopez’ Planet Earth Landscape, 358 NLRB 383, at p. 392
(2012); Alta Vista Regional Hospital, 357 NLRB 326, at p. 327
(2011), enfd. 697 F.3d 1181 (D.C. Cir. 2012).
Respondent argues that it was relieved of any obligation to
bargain with 1199 because its elimination of the LPN classifi-
cation was motivated by “compelling economic circumstanc-
es.” Mike O’Connor Chevrolet, 209 NLRB 701, 703 (1974).
Respondent argues that the compelling economic circumstances
it faced involved the improvement of patient care and a need to
“position itself in the marketplace as an all-subacute facility.”
However, Respondent offers no substantive evidence to support
this contention, only the argument that the purportedly lower
standard of care provided by the bargaining unit LPNs could
have resulted in regulatory sanctions and penalties, which in
turn could have had a detrimental impact on Respondent’s
overall financial condition. This sort of hypothetical specula-
tion is insufficient to establish that compelling economic cir-
cumstances excused Respondent from its obligation to bargain.
See Jason Lopez’ Planet Earth Landscape, 358 NLRB 383, at
p. 393 (“self-serving and conclusory statements” insufficient to
establish compelling economic circumstances, where record
was devoid of evidence “showing extraordinary, unforeseen
events occurring that had a major economic effect on the Re-
spondent”). As a result, I find that Respondent’s elimination of
the bargaining unit LPN classification was a mandatory subject
of bargaining, and that by doing so without providing 1199
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with notice and the opportunity to bargain, Respondent violated
Sections 8(a)(1) and (5) of the Act.
B. Respondent Violated Sections 8(a)(1) and (3) of the Act by
Eliminating the LPN Classification and Transferring Bargain-
ing Unit work to Non-Bargaining Unit RNs in Retaliation for
its Employees’ Union Activity
1. The applicable legal standard
Under Section 8(a)(3) of the Act, an employer may not dis-
criminate with regard to the hire, tenure, or any term or condi-
tion of employment in order to encourage or discourage mem-
bership in a labor organization. In order to determine whether a
transfer of bargaining unit work violated the Act in this manner,
the Board applies the analysis articulated in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert
denied, 455 U.S. 989 (1982), approved in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983). See, e.g.,
Gaetano & Associates, 344 NLRB 531, 533–534 (2005), enfd.
183 Fed.Appx. 17 (2nd Cir. 2006) (applying Wright Line analy-
sis to allegation of retaliatory subcontracting); St. Vincent Med-
ical Center, 338 NLRB 888, 892 (2003), enf. denied and re-
manded, 463 F.3d 909 (9th Cir. 2006). To establish unlawful
activity under Wright Line, the General Counsel must first
prove, by a preponderance of the evidence, that the employees’
union sympathies or activities were a substantial or motivating
factor in the employer’s decision here the decision to eliminate
the LPN classification and transfer the floor nurse work the
LPNs performed to nonbargaining unit RNs. Manno Electric,
Inc., 321 NLRB 278, 280 (1996). The General Counsel makes a
showing of discriminatory motivation by proving employee
union support or activity, employer knowledge of that activity,
and animus against protected employee conduct. Gaetano &
Associates, 344 NLRB at 533; see also Naomi Knitting Plant,
328 NLRB 1279, 1281 (1999). Proof of an employer's motive
may be based upon direct evidence or can be inferred from
circumstantial evidence, based on the record as a whole. Ronin
Shipbuilding, 330 NLRB 464 (2000); Robert Orr/Sysco Food
Services, 343 NLRB 1183 (2004).
If the General Counsel is successful, the burden of persua-
sion then shifts to the employer to show that it would have
taken the same action even in the absence of the employees’
union support or activities. Gaetano & Associates, 344 NLRB
at 533; St. Vincent Medical Center, 338 NLRB at 888 fn. 4;
Wright Line, 251 NLRB at 1089. Once the General Counsel
has met its initial burden under Wright Line, an employer does
not satisfy its burden merely by stating a legitimate reason for
the action taken, but instead must persuade by a preponderance
of the credible evidence that it would have taken the same ac-
tion in the absence of the protected conduct. St. Vincent’s Med-
ical Center, 338 NLRB at 888 fn. 4, 894895; T&J Trucking
Co., 316 NLRB 771 (1995). When General Counsel presents a
strong prima facie showing of discrimination, Respondent’s
burden in this regard is “substantial.” Vemco, Inc., 304 NLRB
911, 912 (1991).
2. General Counsel has established a prima facie case
General Counsel has established a prima facie case that Re-
spondent eliminated the LPN classification, and transferred the
bargaining floor nurse unit work previously performed by
LPNs to nonbargaining unit RNs, in retaliation for the LPNs’
union activities. The evidence establishes that Respondent was
aware, beginning at the very least with the filing of the petition
for a representation election on July 22, 2010, that its employ-
ees were engaged in union activity. In particular, the three
principal employee advocates for 1199 discharged by
RespondentSheena Claudio, Shannon Napolitano, and Jillian
Jacqueswere LPNs. Somerset Valley Rehabilitation & Nursing
Center, 358 NLRB 1361, at p. 674, 675, 676, 687. As dis-
cussed above, significant litigation regarding the election, certi-
fication and Respondent’s unfair labor practices has followed.
In addition, at the time that the LPNs’ work was transferred,
and the position eliminated, General Counsel and Respondent
were involved in an ongoing proceeding for injunctive relief
under Section 10(j) to reinstate the three LPNs. As a result,
Respondent’s knowledge of the LPNs’ union activities at the
time their work was transferred and the classification eliminat-
ed is indisputable.
The Board’s findings in the previous case evince Respond-
ent’s animus toward the union activities of its employees, and
the union activities of the LPNs in particular. See, e.g., St.
George Warehouse, 349 NLRB 870, 878 (2007) (relying on
previous Board decision finding violations of Sections 8(a)(1)
and (3) as evidence of animus); Wallace International de Puer-
to Rico, 324 NLRB 1046fn. 1 (1997) (same). As discussed
above, the Board explicitly affirmed Judge Davis’s conclusion
that Respondent’s antiunion animus was “beyond question,” as
well as his findings that Respondent committed multiple viola-
tions of Sections 8(a)(1) and (3), including unlawful discharges,
discipline, reduction of employee hours, interrogations and
solicitation of employee complaints and grievances, which took
place in the fall of 2010. Somerset Valley Rehabilitation &
Nursing Center, 358 NLRB 1361, at p. 1361. The evidence in
that case also establishes that Hutchens, who was involved in
the determination to eliminate the LPN classification and trans-
fer work, personally committed violations of Section 8(a)(1),
instructing managers to obtain information as to how they be-
lieved the employees under their supervision would vote, re-
quiring that managers provide a basis for their predictions, and
soliciting employee grievances, promising increased benefits
and improved terms and conditions of employment. Somerset
Valley Rehabilitation & Nursing Center, 358 NLRB 1361, at p.
685, 686. In addition, the Board found that Illis, the Adminis-
trator at the time of the decision at issue here, repeatedly inter-
rogated an employee, accelerated the employee’s resignation,
unlawfully solicited employee grievances, and subjected em-
ployees to increased disciplinary scrutiny. Somerset Valley
Rehabilitation & Nursing Center, 358 NLRB 1361, at p. 688,
690, 691. Illis was also directly involved in unlawful written
discipline, and asked a supervisor to prepare a list of potential
per diem employees who would vote against the Union if a new
election were held. Id. As a result, the evidence is more than
sufficient to demonstrate Respondent’s animus against the em-
ployees’ union activity, and the active participation by Hutch-
ens and Illis in unlawful conduct designed to thwart it.
I further find that the timing of Respondent’s transfer of bar-
gaining unit LPN work militates substantially in favor of a
1621 ROUTE 22 WEST OPERATING CO., LLC 17
finding that Respondent’s decision was unlawfully motivated.
See St. Vincent Medical Center, 338 NLRB at 893 (considering
the timing of employer’s subcontracting in order to determine
unlawful motivation). The administrative hearing before Judge
Davis opened on April 27, 2011, and the Regional Director’s
petition for injunctive relief pursuant to Section 10(j), including
the interim reinstatement of the three LPNs that were 1199’s
principal employee advocates, was filed at around that time.
Somerset Valley Rehabilitation & Nursing Center, 358 NLRB
1361, at p. 1364; Lightner v. Somerset Valley Rehabilitation
and Nursing Center, 2012 WL 1344731. Manzi testified that
she made the decision to eliminate the LPN classification, and
transfer the work previously performed by the LPNs to RNs by
attrition, in May 2011, only weeks afterward. Such timing is
evidence of unlawful motivation. Relco Locomotives, Inc., 358
NLRB 298 (2012), at p. 310–311 (timing of discipline imposed
two months after employer learned of protected activities and
two weeks after representation election suspect); St. Vincent
Medical Center, 338 NLRB at 893 (subcontracting of bargain-
ing unit work 3 weeks after representation election “suspi-
cious”). In addition, the administrative proceeding continued
throughout the summer of 2011. Somerset Valley Rehabilita-
tion & Nursing Center, 358 NLRB 1361, at p. 1364. However,
the evidence establishes that it was not until November 2011, in
the context of the 10(j) proceeding, that Respondent informed
the General Counsel and 1199 that it had in fact eliminated the
LPN position and transferred by attrition the floor nurse work
formerly performed by the LPNs to RNs explicitly excluded
from the bargaining unit. This sequence of events, together
with the evidence of animus discussed above, is sufficient to
generate the inference that Respondent transferred the work of
the LPNs to RNs in retaliation for the LPNs’ union activity, and
in order to avoid reinstating them should the General Counsel
obtain an order in the 10(j) proceeding requiring that it do so.
For all of the foregoing reasons, I find that General Counsel
has established a strong prima facie case that Respondent elim-
inated the LPN classification and transferred bargaining unit
work to nonbargaining unit RNs in retaliation for the union
activities of the LPNs who had previously performed it.
3. The preponderance of the evidence does not support Re-
spondent’s contention that it would have transferred bargaining
unit work in the absence of the employees’ union activity
Respondent contends that it transferred the bargaining unit
floor nurse work formerly performed by the LPNs to RNs as
part of an effort to offer a unique service in comparison to
competitor facilities by providing solely sub-acute care. Re-
spondent claims that RNs’ higher level of education and cre-
dentialing, and ability to perform a more extensive assessment
and develop a plan of care, made them a more appropriate clas-
sification for a population consisting solely of sub-acute pa-
tients. Respondent also asserts that it eliminated its LPNs and
transferred their work in response to the results of NJDHSS
Surveys conducted in December 2009 and 2010. Respondent
argues that the deficiencies revealed by these surveys led it to
conclude that the acuity level of its patients was too intense for
LPNs, as opposed to RNs, to provide adequate care. I find that
the preponderance of the record evidence ultimately does not
substantiate these claims. Respondent presented evidence that
RNs have more extensive education, and are permitted to per-
form more sophisticated evaluations of patient status and a
wider range of procedures than LPNs. Respondent also pre-
sented evidence of a general trend, at least in the acute care
setting, toward employing solely RNs. However, the prepon-
derance of the evidence overall does not ultimately support
Respondent’s contention that it made the specific determination
in May 2011 to eliminate the LPN classification at Somerset
Valley, and transfer the bargaining unit floor nurse work to
RNs, as a result of those general factors.
The evidence, as discussed in Section III(A)(1), above, does
not substantiate Respondent’s assertion that it eliminated the
LPN classification and transferred the work to nonbargaining
unit RNs because it ceased to provide long-term care, creating
an exclusively sub-acute patient population. The evidence
establishes that both before and after the elimination of the
LPN position and transfer of work, Respondent provided care
to a population of predominantly sub-acute patients, with a few
long-term patients who had resided at the facility for a number
of years. There is simply no evidence of any change in Re-
spondent’s patient population, let alone the sort of dramatic
change which would establish that it eliminated the LPN posi-
tion and transferred the work outside the bargaining unit for
legitimate, nondiscriminatory reasons. Respondent’s claim that
it eliminated the LPNs and transferred their work because of a
change in the overall acuity level of its patient population is
therefore not supported by the record. In addition, although
Respondent contends that it no longer accepts long-term care
patients, a brochure advertising such services was disseminated
during Illis’ tenure as Administrator, and as of May 2012, its
website indicated that it provided long-term as well as sub-
acute care.
Respondent also argues that its elimination of the LPN posi-
tion and transfer of the work to RNs was consonant with broad-
er trends in patient care delivery emphasizing a preference for
RNs, given their education and the scope of their licensure,
particularly in acute care facilities. For example, Respondent’s
associate medical director, Dr. Anthony Frisoli, testified that in
his experience and opinion RNs can more reliably provide a
higher standard of care overall, regardless of their individual
experience.17 Dr. Frisoli testified that the general trend in
health care delivery, particularly in acute care facilities, is to
maintain a nursing staff consisting solely of RNs. Respondent
also notes that Kathleen Martin, who was called by General
Counsel as an expert witness in the areas of long-term care
nursing administration, nursing practices, and State survey
requirements, testified during the 10(j) proceeding that given
their additional education, a staff consisting of solely RNs
would be optimal, all else being equal, for patient care stand-
ards.18 R.S. Exh. 21, p. 52, 201–204. However, regardless of

17 I note that opinions on this issue vary, as Dr. Buch testified that he
considers the specific degree and license held by a particular nurse to
be less important than their actual experience in terms of their overall
competence.
18 I note that during her testimony Ms. Martin emphasized that she
was basing this opinion on an assumption that the facility employs the
same number of RNs as they would have employed LPNs, and stated
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the general evidence regarding overall trends in health care
delivery involving RNs and LPNs, the preponderance of the
record evidence does not establish that Respondent made the
specific decision in May 2011 to eliminate the LPN position
and transfer the floor nurse work performed by the LPNs for-
merly employed to nonbargaining unit RNs for that reason.
Instead, the timing of the decision in the context of the litiga-
tion following the Union’s organizing campaign and certifica-
tion, and the animus with which Respondent targeted the LPNs
as found by the Board, strongly indicates that Respondent’s
decision in May 2011, was made for unlawful, retaliatory rea-
sons.
Given this background, the specific evidence Respondent
presented regarding its decision-making process is inadequate
to establish that Respondent legitimately concluded in May
2011 that LPNs were incapable of competently providing care
to the acuity level of its patient population. For example,
Manzi initially testified that she made the decision to eliminate
the LPN classification because of the facility’s transition to a
population of solely sub-acute patients, a transition which the
evidence does not establish actually occurred. Although Manzi
then testified that she and Hutchens also decided that LPNs
could not provide adequate care for Respondent’s patient popu-
lation based upon the results of the NJDHSS December 2010
Survey, this rationale was elicited after a specific suggestion by
Respondent’s counsel (Tr. 541). Indeed, in the previous case
Hutchens apparently testified that “it was ‘common’ for a fa-
cility to be cited for deficiencies in a survey,” which contradicts
Respondent’s argument that it decided to implement a signifi-
cant reconfiguration of its employee complement on that basis.
Somerset Valley Rehabilitation & Nursing Center, 358 NLRB
1361, at p. 1367. In addition, the 2010 Survey, while contain-
ing more citations than the 2009 Survey overall, did not contain
any citations at the “G” level, which denotes a situation involv-
ing actual harm to a patient. In any event, if the December
2010 survey formed the basis for Hutchens and Manzi’s deci-
sion to replace the LPNs with RNs, no explanation was provid-
ed as to why Manzi waited five months to do so, given the pur-
ported gravity of the situation.
Illis’s testimony regarding her assessment of the LPNs’ work
performance and the standard of care being provided only com-
plicates the scenario further. Manzi testified that all of the
information she relied on to conclude that the LPNs should be
replaced with RNs was provided by Hutchens, who told her that
despite teaching and training provided to the LPNs, certain care
delivery systems such as medication administration were not
“sustainable.” In the absence of any evidence to the contrary, it
is reasonable to assume that Hutchens obtained whatever in-
formation he used to determine that LPNs were fundamentally
inadequate and required wholesale replacement from Illis, who
testified that as Administrator she reported to him directly and
spoke to him every week. Illis also testified, however, that she
first reached the conclusion that LPNs were not capable of
adequately providing care to Respondent’s patient population
given its overall acuity level 1 to 2 months after becoming Re-

that this was unlikely for budgetary reasons, given the higher compen-
sation required for RNs. R.S. Exh. 21, p. 203.
spondent’s administrator in August 2010. Illis testified that she
formed her opinion based upon the results of the December
2009 NJDHSS Survey, and that she probably communicated
this conclusion to Hutchens immediately after she reached it.
However, for reasons unexplained by Manzi or any of Re-
spondent’s other witnesses, the determination to replace LPNs
with RNs was not made for another 7 months. Given what
Respondent contends is the severity of the issue in terms of its
regulatory status and financial situation, its unexplained delay
in addressing what it contends was the wholesale inadequacy of
the LPNs as a classification militates against a finding that its
asserted reason for replacing them with RNs was legitimate.19
The record also does not substantiate Illis’ testimony, and
Hutchens’ assertion (according to Manzi), that the LPNs re-
ceived additional training, education, and discipline in an at-
tempt to raise the standard of care prior to Respondent’s ulti-
mate decision that LPNs simply could not cope with the acuity
level of its patient population. The evidence establishes that the
sole training and education the LPNs received after the
NJDHSS December 2010 Survey was a series of meetings Illis
conducted with the nursing staff to discuss the agency’s find-
ings. The record establishes that this was the only training or
education provided to the LPNs between the December 2010
Survey, supposedly the impetus for Manzi and Hutchens’ con-
clusion that LPNs were incapable of providing adequate care
for a sub-acute patient population, and Respondent’s eliminat-
ing the entire classification. Illis contended in her testimony
that she decided to implement educational and disciplinary
measures after the December 2009 Survey indicated that the
LPNs were incapable of providing patient care to an adequate
standard. However, the Board found in the previous case that
Respondent increased its scrutiny of the employees’ work per-
formance only in response to the representation election in
September 2010, and not immediately after the December 2009
Survey or in response to the citations the NJDHSS issued.
Somerset Valley Rehabilitation & Nursing Center, 358 NLRB
1361 at p. 1362–1363, 688–689. In fact, it appears from the
Board’s previous decision that a significant amount of the dis-
ciplinary action taken by Respondent against the LPNs during
the period August 2010 through May 2011 was imposed for
unlawful, retaliatory reasons.20 Somerset Valley Rehabilitation

19 I also do not find the material contained in 2011 Objectives form,
dated June 25, 2011, to be probative in this regard. The 2011 Objec-
tives form indicates that the level of acute discharges at that time was
engendered by a “lack of RNs on all shifts to do comprehensive as-
sessments,” and that problems with “Level One Basic Require-
ments/Center Level Certification” were caused by the need for an
“Acuity Based Staffing Model.” However, Illis testified that Engram,
who was the administrator at that time, completed the 2011 Objectives
form, and Engram did not testify at the hearing. Illis testified that she
did not know what Engram meant specifically by her statement that
there was a lack of RNs on all shifts to do comprehensive assessments,
nor did she know what was meant by “Level One Basic Require-
ments/Center Level Certification.” As a result, I find that the responses
contained in the 2011 Objectives form have little probative value.
20 The Board’s decision indicates that Respondent legitimately is-
sued a written warning issued to LPN Sheena Claudio for a medication
error in September 2010. Somerset Valley Rehabilitation & Nursing
Center, 358 NLRB 1361, at p. 1361, fn. 3. Judge Davis’ decision also
1621 ROUTE 22 WEST OPERATING CO., LLC 19
and Nursing Center, 358 NLRB 1361 at p. 1361–1364, and at
p. 1361, fn. 3. All of this evidence undermines Respondent’s
contention that it eliminated the LPN classification and trans-
ferred the work performed to non-bargaining unit RNs based
upon legitimate, non-discriminatory concerns regarding quality
of care.
Nor does the record contain any evidence that Manzi, Hutch-
ens, or Illis considered factors, other than the purported inade-
quacy of the LPNs, in evaluating the problems revealed by the
NJDHSS Survey citations. For example, there is no evidence
that Respondent discussed or considered whether the near-
continuous turnover in Nursing Department management—the
positions of DON, ADON, and unit manager—contributed to
the standard of care the Department’s employees were able to
provide. Indeed, Hutchens testified in the previous case that
former Administrator Elizabeth Heedles was replaced by Illis in
August 2010 due to his “concerns” regarding Heedles’ “admin-
istrative abilities,” as evinced by inadequate staff to resident
ratios attributable to her “struggling” to staff and schedule the
facility.21 Somerset Valley Rehabilitation & Nursing Center,
358 NLRB 1361, at p. 1367. Although Illis and Dr. Frisoli
testified that the incessant managerial turnover in the Nursing
Department could have affected the quality of the nursing care
provided, there is no evidence that Respondent considered this
factor at all. Similarly, although Illis admitted during her tes-
timony that there were problems with the work performance of
both LPNs and RNs which the NJDHSS surveys documented,
there is no evidence as to why Respondent focused on the
LPNs, as opposed to RNs, as the ultimate source of the prob-
lem. Illis also admitted that Respondent had not fully imple-
mented other programs designed by CareOne Management
and/or Healthbridge Management in order to improve quality of
care and reduce readmission rates, such as 72-hour care plan
meetings and Interact II.22 In fact, during her testimony Kristi-
na Grasso attributed a purported improvement in readmission
rates in January 2012 to additional in-service training in the
Acute Transfer Alternative program, or ATAP. Finally, despite
the critical nature of the problems allegedly caused by the
LPNs’ inability to provide care at the acuity level required and

indicates that Respondent also disciplined another “nurse,” Doreen
Dande, for a similar medication administration error, but it is not clear
whether Dande was an LPN or an RN, or when Dande was disciplined.
Somerset Valley Rehabilitation & Nursing Center, 358 NLRB 1361, at
p. 1375, 689. The record in the instant case establishes that D’Ovidio
received a verbal warning in the early spring of 2011 for failing to
timely provide a daily summary of treatments administered to wound
patients; the General Counsel does not allege that this warning was
issued for retaliatory reasons.
21 Respondent’s then-DON, Kamala Kovacs, was dismissed at this
time as well. Somerset Valley Rehabilitation & Nursing Center, 358
NLRB 1361, at p. 1367.
22 According to Illis, 72-hour care plan meetings were supposed to
take place in order to formulate the initial care plan for every patient
admitted, but were not being held on a consistent basis. Interact II was
a program intended to monitor a patient’s condition and assessment,
which provided education to nurses regarding effective communication
with physicians when a patient’s condition changed. Although Interact
II was to have been implemented in the spring of 2011, according to
Illis it was delayed.
her weekly conversations with Hutchens, Manzi testified that
she had no knowledge as to whether the RNs who replaced the
LPNs as floor nurses had received discipline based upon work
performance issues. Indeed, Manzi admitted that she never
even inquired as to whether the RNs at Somerset Valley were
performing at a higher level overall than had the LPNs.
And in fact, the evidence does not establish that this was the
case. Respondent’s witnesses testified primarily regarding
differences in the education, training, and licensure of RNs, as
opposed to their actual work performance at Respondent’s fa-
cility. Dr. Frisoli’s testimony regarding his overall preference
for working with RNs for example, was articulated in that man-
ner. As a result, I credit Mangal and D’Ovidio’s testimony that
some of the RNs which replaced the LPNs at Respondent’s
facility, both those initially referred from an agency beginning
in the spring of 2011 and those hired to replace the agency RNs
as employees, had to be shown how to begin IVs, administer
dialysis, perform pleural evacuation and tracheostomy suction-
ing, and perform wound care. Indeed, the evidence demon-
strates that the only one of the initial employee RNs still em-
ployed by Respondent is suspended and on a final warning for
permitting a patient to leave the facility in order to smoke a
cigarette, and has committed eight medication errors. I also
credit the testimony of Dr. Buch that wound care deteriorated
after D’Ovidio was replaced with nurses who did not share her
expertise, and that eventually his wound care patients were
assigned nurses who had no clinical experience with major
wounds or dressings at all. I further credit Dr. Buch’s testimo-
ny that he ended his association with Respondent, and no long-
er refers patients there, as a result. Furthermore, the December
2011 NJHSS Survey, while significantly improved over the
December 2010 Survey, contains as many citations attributable
to the operations of Respondent’s Nursing Department as did
the December 2009 survey, when the majority of the patient
care was provided by LPNs (although none of the December
2011 citations involve actual patient harm). Indeed, the De-
cember 2011 survey found deficiencies in specific areas, such
as assessments of functional capacity and patient needs, devel-
opment of comprehensive care plans, and adequate care stand-
ards, which Respondent contends the replacement of LPNs with
RNs was intended to improve given the scope of the RNs’ li-
censure. The evidence therefore does not substantiate Re-
spondent’s contention that RNs necessarily perform at a higher
level, and that an all-RN model substantially improved the
standard of care provided, in the context of Respondent’s par-
ticular facility and patient population.
Nor did Respondent present probative evidence establishing
that 30-day hospital readmission rates from its facility, purport-
edly a critical issue given impending regulatory changes, im-
proved after Respondent replaced the LPN floor nurses with
RNs. Kristina Grasso, Respondent’s administrator since Illis
left the facility in August 2011, testified that since January
2012 readmission rates had been “on the decline,” and that
what Respondent refers to as the “acute discharge rate” was the
lowest in April 2012, that it had been in over a year. I do not,
however, find this testimony to have much probative value,
given the documentary evidence Respondent attempted to in-
troduce in order to corroborate it. This consisted of what
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Grasso described as a tabulation of the number of acute dis-
charges per month, divided by Respondent’s average patient
census for that same month. However, Grasso testified that the
“acute discharges per month” figure included all patients who
were admitted to an acute care facility, and was not limited to
patients readmitted within 30 days of their arrival at Somerset
Valley. Ultimately, the documentary evidence purporting to be
an accurate calculation of readmission rates was withdrawn,
and Grasso provided no other basis for her testimony regarding
changes in readmission rates overall. Finally, as discussed
above, during her testimony Grasso attributed the reduction in
readmission rates since January 2012 to additional training
provided in the ATAP program, and not to the replacement of
LPNs with RNs. As a result, I do not find Grasso’s testimony
probative on the issue of changes in readmission rates, and the
cause of any such fluctuation, after Respondent eliminated the
LPN classification and transferred the floor nurse work to
RNs.23
Finally, Respondent stipulated at the hearing that Somerset
Valley is the only one of the New Jersey facilities managed by
CareOne Management or Healthbridge Management to have
eliminated LPNs and implemented a model where nursing care
is provided solely by RNs. The evidence establishes that
Healthbridge Management and CareOne Management operate
approximately 28 facilities in New Jersey, a number of which
provide subacute care. All of these facilities would face the
same issues regarding quality of care engendered by the im-
pending financial penalties to be imposed upon hospitals which
readmit patients within 30 days. As a result, the ATAP pro-
gram and the monitoring of acute transfers conducted by
Healthbridge Management and/or CareOne Management were
not measures restricted in their application to Respondent
alone. Despite this, the record establishes that an all-RN model
of health care delivery was not implemented at any other
Healthbridge Management or CareOne Management facility in
New Jersey, regardless of whether subacute or long-term care
was being provided. Although Manzi, who made the determi-
nation to implement an all-RN model of care at Somerset Val-
ley, has been the executive vice president of operations for both
Healthbridge Management and CareOne Management since
January 2011, with overall responsibility for all of the compa-
nies’ New Jersey facilities, she did not address this discrepancy
in any way during her testimony, and Respondent provided no
other evidence to explain it. Overall, this evidence militates in
favor of a finding that Respondent’s asserted reasons for elimi-
nating the LPN classification and transferring the work to non-
bargaining unit RNs are pretextual. Pepsi-Cola Bottling Co. of
Fayetteville, 330 NLRB 900, 901, 910–911 (2000), enfd. 2001
WL 791645 (4th Cir.), enfd. in relevant part on rehearing 24
Fed.Appx. 104 (4th Cir. 2001) (considering treatment of em-
ployees at other facilities in order to determine whether em-
ployer unlawfully withheld wage increase at facility where
employees engaged in union activities).

23 For the reasons discussed in fn. 19, above, I also do not find the
material contained in the “2011 Objectives” form completed by En-
gram to be probative on this issue.
For all of the foregoing reasons, the preponderance of the ev-
idence does not substantiate Respondent’s defense that it elimi-
nated the LPN position and transferred the floor nurse work
formerly performed by the LPNs to nonbargaining unit RNs
due to a change in market positioning, patient population, or
quality of care issues. As a result, I find that Respondent has
not rebutted General Counsel’s prima facie case, and that Re-
spondent eliminated the LPN classification and transferred
work to RNs in retaliation for the LPNs’ union support and
activities, in violation of Sections 8(a)(1) and (3) of the Act.
C. Respondent Violated Sections 8(a)(1), (3), and (5) of the Act
by Discharging Mangal and D’Ovidio as Part of its Unlawful
Elimination of the LPN Classification and Transfer of Bargain-
ing Unit Work to RNs
The evidence establishes that Mangal and D’Ovidio were
discharged by Respondent as part of its unlawful elimination of
the LPN classification and transfer of bargaining unit floor
nurse work to RNs. I credit D’Ovidio’s testimony that on Au-
gust 18, 2011, she was discharged by Illis, who informed her
that the facility was moving in a different direction and that
D’Ovidio “wasn’t part of the plan.” I find it reasonable to infer
that Illis’s remarks referred to the elimination of the LPN posi-
tion, and transfer of work to the RNs, which had been ongoing
throughout the summer. I further credit Mangal’s testimony
that on October 17, 2011, Grasso discharged her, telling her
that she could not establish that she was enrolled in an RN Pro-
gram. Mangal’s testimony in this respect was consistent with a
Termination Personnel Action Form signed by Grasso, which
gave that same reason for her discharge. Respondent provided
no evidence to establish that Mangal and D’Ovidio were dis-
charged for any reason other than their being LPNs, as opposed
to RNs. As a result, I find that their discharges were engen-
dered by Respondent’s unlawful elimination of the LPN posi-
tion, and transfer of bargaining unit floor nurse work to non-
bargaining unit RNs. Their discharges therefore violated Sec-
tions 8(a)(1), (3) and (5) of the Act.24 See, e.g., Alta Vista Re-
gional Hospital, 357 NLRB 326 at p. 326–327 (employer vio-
lated Sections 8(a)(1) and (5) by discharging employee pursu-
ant to unlawful unilateral changes in Fit Test practice);
Aldworth Co., 338 NLRB 137, 144–145 (2002), enfd. 363 F.3d
437 (D.C. Cir. 2004) (employer violated Sections 8(a)(1) and

24 Respondent also contends that the charge alleging that D’Ovidio’s
discharge violated Sec. 8(a)(3) of the Act is time barred. Respondent
argues that while D’Ovidio was discharged on August 18, 2011, an
unfair labor practice charge specifically alleging that her discharge
violated Sec. 8(a)(3) was not filed until April 3, 2012, and that there-
fore the allegation is precluded by Sec. 10(b). However, I find that the
allegation that D’Ovidio was discharged in violation of Sec. 8(a)(3) is
closely related to the timely filed allegation that Respondent violated
Sec. 8(a)(3) by eliminating the LPN classification and transferring
bargaining unit floor nurse work to RNs in retaliation for the LPNs’
union activity. Both allegations involve the same legal theory, the
same fact situation or sequence of events, and involve the same or
similar defenses. See Carney Hospital, 350 NLRB 627, 628 (2007),
application dismissed 2008 WL 2223220 (D.C. Cir. 2008), citing Redd-
I, Inc., 290 NLRB 1115 (1988). Respondent’s motion to dismiss the
allegation that D’Ovidio was discharged in violation of Sec. 8(a)(3) is
therefore denied.
1621 ROUTE 22 WEST OPERATING CO., LLC 21
(3) by discharging employees for violation of Selection Accu-
racy Policy altered for retaliatory reasons).
D. Respondent Violated Sections 8(a)(1) and (5) of the Act by
Denying the Union Access to its Facility
General Counsel contends that Respondent violated Sections
8(a)(1) and (5) of the Act by denying the Union’s request for
access to the Somerset Valley facility. The evidence establish-
es that on January 30, 2012, Union Executive Vice president
Milly Silva wrote to Grasso requesting access to the bargaining
unit’s work areas in the facility, to ”observe work processes and
working conditions, including health and safety conditions.” It
is undisputed that Respondent did not provide the Union with
access to the facility.
The Board applies a balancing test to determine whether a
union is entitled to access to an employer’s facility in order to
perform its representative functions. In Holyoke Water Power
Co., the Board held that when “responsible representation” can
only be accomplished through access to the employer’s premis-
es, the employer’s property rights “must yield to the extent
necessary to achieve this end.” 273 NLRB 1369, 1370, enfd.
778 F.2d 49 (1st Cir. 1985). However, when the union can
effectively represent the bargaining union members “through
some alternate means other than entering on the employer’s
premises,” the employer’s property rights are paramount, and
the union may be lawfully denied access. Holyoke Water Pow-
er Co., 273 NLRB at 1370; see also Nestle Purina Petcare Co.,
347 NLRB 891 (2006); New Surfside Nursing Home, 330
NLRB 1146, 1146 fn. 1, 1150 (2000). It is the employer’s
burden to present evidence establishing that its property rights
predominate over the union’s right to reasonable access, and to
demonstrate there are alternate means of obtaining the infor-
mation necessary for the union to adequately represent the bar-
gaining unit employees. Nestle Purina Petcare Co., 347 NLRB
at 891; New Surfside Nursing Home, 330 NLRB at 1150; see
also New Surfside Nursing Home, 322 NLRB 531, 535 (1996).
Here, the information sought by the Union – direct interac-
tion with the employees and observation of their work areas,
working conditions, and work processes – was presumptively
relevant to its responsibilities as a collective-bargaining repre-
sentative. New Surfside Nursing Home, 330 NLRB at 1150.
The Board has stated that in the context of collective bargaining
negotiations,
There can be no adequate substitute for the Union representa-
tive’s direct observation of the plant equipment and condi-
tions, and employee operations and working conditions, in
order to evaluate matters such as job classifications, safety
concerns, work rules, relative skills, and other matters neces-
sary to develop an informed and reasonable negotiating strat-
egy.
CCE, Inc., 318 NLRB 977, 978 (1995). The Board has held
that these considerations are particularly acute in the case of
bargaining for an initial contract by a newly certified union.
CCE, Inc., 318 NLRB at 978, 979; see also Washington Beef,
Inc., 328 NLRB 612, 618–619 (1999). As a result, I find that
General Counsel has met its burden to establish that the infor-
mation sought by the Union was presumptively relevant to its
representation of the bargaining unit employees.
The evidence does not establish that, as Respondent argues,
the Union had alternative means at its disposal to obtain the
information it sought by visiting Respondent’s premises. Re-
spondent contends that Elliott admitted during his testimony
that he could obtain the information necessary to prepare for
collective bargaining by speaking with the employees, as op-
posed to visiting the facility. However, Elliott made clear dur-
ing his testimony that simply discussing the employees’ terms
and conditions of employment with them was not an adequate
substitute for actually observing their workplace and work ac-
tivities (Tr. 99–100). This would be particularly true in the
context of negotiations for an initial collective-bargaining
agreement, where the union has no prior experience with the
employer’s facility and practices, and the employees are rela-
tively unlikely to have experience with collective bargaining
negotiations. As a result, I find that Respondent has not met its
burden to demonstrate that the Union had adequate alternative
means of obtaining the information, other than access to the
facility.
For the foregoing reasons, I find that Respondent violated
Sections 8(a)(1) and (5) of the Act by denying the Union’s
January 30, 2012 request for access to its facility.
CONCLUSIONS OF LAW
1. The Respondent, 1621 Route 22 West Operating Compa-
ny, LLC d/b/a Somerset Valley Rehabilitation and Nursing
Center, is an employer engaged in commerce within the mean-
ing 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. At all times since August 26, 2011, the Union has been
the certified exclusive collective-bargaining representative,
within the meaning of Section 9(a) of the Act, of an appropriate
unit of employees consisting of the following:
All full-time and regular part-time and per diem non-
professional employees including licensed practical nurses,
certified nursing assistants, housekeepers, rehabilitation tech-
nicians, dietary cooks, dietary aides, laundry aides, recreation
assistants, unit secretaries, medical records coordinators,
maintenance workers, porters and receptionists employed by
the Employer at its Bound Brook, New Jersey location, but
excluding all office clerical employees, registered nurses, die-
ticians, physical therapists, physical therapy assistants, occu-
pational therapists, occupational therapy assistants, speech
therapists, social workers, staffing coordinators, pay-
roll/benefits coordinators, all other professional employees,
guards and supervisors as defined in the Act.
4. By eliminating the licensed practical nurse job classifica-
tion and transferring bargaining unit work formerly performed
by the license practical nurses to nonbargaining unit registered
nurses without providing the Union with notice and the oppor-
tunity to bargain, Respondent violated Sections 8(a)(1) and (5)
of the Act.
5. By eliminating the licensed practical nurse job classifica-
tion and transferring bargaining unit work to registered nurses
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in retaliation for the employees’ activities on behalf of the Un-
ion, Respondent violated Sections 8(a)(1) and (3) of the Act.
6. By discharging Irene D’Ovidio and Maharanie Mangal as
part of its unlawful unilateral and retaliatory elimination of the
licensed practical nurse job classification and transfer of bar-
gaining unit work to registered nurses, Respondent violated
Sections 8(a)(1), (3), and (5) of the Act.
7. By refusing to provide the Union with access to its Bound
Brook, New Jersey facility in order to inspect the bargaining
unit employees’ work processes and working conditions, in-
cluding health and safety conditions, Respondent violated Sec-
tions 8(a)(1) and (5) of the Act.
8. The above-described unfair labor practices affect com-
merce within the meaning of Sections 2(2), (6), and (7) of the
Act.
THE REMEDY
Having found that Respondent has violated Sections 8(a)(1)
and (5) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action necessary to ef-
fectuate the Act’s purposes.
Having found that Respondent violated the Act by unilateral-
ly eliminating the bargaining unit LPN classification and trans-
ferring the work formerly performed by the LPNs to non-
bargaining unit RNs, Respondent shall be ordered to rescind
these unilateral changes and bargain with the Union regarding
any changes in the wages, hours, working conditions, and other
terms and conditions of employment for the bargaining unit
employees. Respondent shall further be ordered to restore the
status quo ante existing prior to its unfair labor practices, by
restoring the LPN classification as it existed prior to May 2011,
and by returning the work transferred to the non-bargaining unit
RNs to the LPN classification in the manner that it existed prior
to May 2011. Respondent shall be ordered to reinstate Irene
D’Ovidio and Maharanie Mangal to their former or substantial-
ly equivalent positions, dismissing, if necessary, any employees
hired subsequently, without prejudice to their seniority or other
rights and privileges previously enjoyed. Respondent shall
further be ordered to make Irene D’Ovidio and Maharanie
Mangal whole for any loss of earnings they may have suffered
as a result of its unlawful conduct, as prescribed in F.W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as set forth in
New Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010), enf. denied on other grounds, 647 F.3d 1137 (D.C. Cir.
2011). Respondent shall file a report with the Social Security
Administration allocating backpay to the appropriate calendar
quarters, and shall compensate D’Ovidio and Mangal for the
adverse tax consequences, if any, of receiving one or more
lump-sum backpay award covering periods longer than one
year. Latino Express, Inc., 359 NLRB No. 44 (2012). I shall
further order Respondent to provide access to its Bound Brook,
New Jersey facility to a representative of the Union for a rea-
sonable period of time to obtain information regarding the bar-
gaining unit employees’ work processes and working condi-
tions, including health and safety conditions. Finally, Re-
spondent shall be ordered to post a notice informing its em-
ployees of its obligations herein.
Upon the foregoing findings of fact and conclusions of law,
and upon the entire record, I issue the following recommend-
ed25
ORDER
Respondent 1621 Route 22 West Operating Company, LLC
d/b/a Somerset Valley Rehabilitation and Nursing Center,
Bound Brook, New Jersey, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the Union, as the exclusive col-
lective-bargaining representative of the bargaining unit em-
ployees, by unilaterally eliminating classifications contained in
the bargaining unit, and transferring the work formerly per-
formed by employees in such classifications to nonbargaining
unit employees.
(b) Eliminating classifications contained in the bargaining
unit, and transferring the work formerly performed by employ-
ees in such classifications to nonbargaining unit employees, in
retaliation for the bargaining unit employees’ union activities.
(c) Refusing to provide the Union with access to its Bound
Brook, New Jersey facility to obtain information regarding the
bargaining unit employees’ work processes and working condi-
tions, including health and safety conditions.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind the
unilateral changes made with respect to the elimination of the
LPN classification and transfer of bargaining unit work former-
ly performed by the LPNs to nonbargaining unit RNs
(b) On the request of the Union, bargain collectively and in
good faith regarding any decision to eliminate the LPN classifi-
cation and transfer of bargaining unit work formerly performed
by the LPNs to nonbargaining unit employees.
(c) On the request of the Union, grant access to the Bound
Brook, New Jersey facility to a representative designated by the
Union for reasonable periods and at reasonable times, sufficient
to allow the Union’s representative to observe the work process
and working conditions, including health and safety conditions,
of the bargaining unit employees.
(d) Within 14 days from the date of this Order, offer imme-
diate and full reinstatement to Irene D’Ovidio and Maharanie
Mangal to their former positions or, if such positions no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or to other rights and privileges they previously
enjoyed.
(e) Make whole with interest Irene D’Ovidio and Maharanie
Mangal for any lost wages they may have suffered as a result of
the above-described unlawful unilateral and retaliatory changes,
in the manner set forth in the remedy section of this decision.

25 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
1621 ROUTE 22 WEST OPERATING CO., LLC 23
(f) Within 14 days of the date of this Order, remove from all
files any reference to the discharges of Irene D’Ovidio and
Maharanie Mangal on August 18, 2001, and October 17, 2011,
respectively, and within 3 days thereafter, notify D’Ovidio and
Mangal in writing that this has been done and that the discharg-
es will not be used against them in any way.
(g) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records 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,
if any, due under the terms of this Order.
(h) Within 14 days after service by the Region, post at the
facility at Bound Brook, New Jersey, copies of the attached
notice marked “Appendix.”26 Copies of the notice, on forms
provided by the Regional Director for Region 22, after being
signed by Respondent’s authorized 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. In addition to physical post-
ing of paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means if Respondent customarily com-
municates with its employees by such means. 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 in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since May 1, 2011.
(i) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
Dated: Washington, DC January 15, 2013
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this No-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

26 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.”
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT eliminate bargaining unit job classifications
and transfer the work formerly performed by employees in
those job classifications to nonbargaining unit employees with-
out providing 1199 SEIU United Healthcare Workers East,
New Jersey Region, with notice and the opportunity to bargain.
WE WILL NOT eliminate bargaining unit job classifications
and transfer the work formerly performed by employees in
those job classifications to nonbargaining unit employees in
retaliation for the employees’ union activities.
WE WILL NOT refuse to bargain with 1199 SEIU United
Healthcare Workers East, New Jersey Region by refusing to
grant the Union’s request for access by the Union’s representa-
tives to our Bound Brook, New Jersey facility
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
WE WILL on request of the Union, restore to our bargaining
unit employees all terms and conditions of employment exist-
ing prior to May 2011, including restoring the LPN job classifi-
cation and returning to the LPNs the work transferred begin-
ning in May 2011 from the LPNs to nonbargaining unit RNs.
WE WILL on request of the Union bargain in good faith with
the Union, as the exclusive representative of our employees in
the following unit, regarding any decision to eliminate bargain-
ing unit job classifications and transfer bargaining unit work
formerly performed by bargaining unit employees to
nonbargaining unit employees:
All full-time and regular part-time and per diem non-
professional employees including licensed practical nurses,
certified nursing assistants, housekeepers, rehabilitation tech-
nicians, dietary cooks, dietary aides, laundry aides, recreation
assistants, unit secretaries, medical records coordinators,
maintenance workers, porters and receptionists employed by
the Employer at its Bound Brook, New Jersey location, but
excluding all office clerical employees, registered nurses, die-
ticians, physical therapists, physical therapy assistants, occu-
pational therapists, occupational therapy assistants, speech
therapists, social workers, staffing coordinators, pay-
roll/benefits coordinators, all other professional employees,
guards and supervisors as defined in the Act.
WE WILL, on request, grant access to our Bound Brook, New
Jersey facility to a representative designated by the Union for
reasonable periods and at reasonable times, sufficient to allow
the Union’s representative to observe the work processes and
working conditions, including health and safety conditions, of
the bargaining unit employees.
WE WILL within 14 days of the date of the Board’s Order, of-
fer Irene D’Ovidio and Maharanie Mangal full reinstatement to
their former positions, or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or any other rights and privileges previously enjoyed.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL make Irene D’Ovidio and Maharanie Mangal whole
for any loss of earnings and other benefits suffered as a result
of their discharges, less any net interim earnings, plus interest
compounded daily
WE WILL file a report with the Social Security Administrative
allocating backpay to the appropriate calendar quarters.
WE WILL compensate Irene D’Ovidio and Maharanie Mangal
for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than
one year.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharges
of Irene D’Ovidio and Maharanie Mangal, and within 3 days
thereafter, notify them in writing that this has been done and
that the discharges will not be used against them in any way.
1621 ROUTE 22 WEST OPERATING COMPANY, LLC
D/B/A SOMERSET VALLEY REHABILITATION & NURSING
CENTER