Camelot Terrace, Inc.

National Labor Relations Board - Board Decisions

Sep 20, 2008

353 N.L.R.B. 151 (N.L.R.B. 2008)

CAMELOT TERRACE, INC.
353 NLRB No. 20
151
Camelot Terrace, Inc. and Service Employees Inter-
national Union, Local 4. Cases 13–CA–43936
and 13–CA–44044
September 29, 2008
DECISION AND ORDER REMANDING
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On March 4, 2008, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The Re-
spondent, the General Counsel, and the Union filed ex-
ceptions and supporting briefs, the General Counsel and
the Union filed answering briefs to the Respondent’s
exceptions, the Respondent filed answering briefs to the
General Counsel’s exceptions and to the Union’s excep-
tions, and the Union filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order Remanding, and to adopt the
recommended Order as modified.1
We adopt the judge’s finding that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by issuing warn-
ings to and discharging employee Cheryl Henson, and
we adopt the judge’s entire remedial order, which con-
cerned only those violations.
However, the complaint allegation that the Respondent
violated Section 8(a)(3) and (1) by discharging employee
Crystal Lopez turned on disputed facts and significant
credibility issues that were not adequately resolved for
our review by the judge. While he exhaustively re-
counted the testimony of each witness, the judge failed to
articulate a basis for many of his credibility determina-
tions and did not address evidence that arguably contra-
dicted a number of his factual findings. Though the
“Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us
that they are incorrect,”2 here we are unable to fulfill our
review function.

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 Wegmans Food Markets, 351 NLRB 1073 fn. 1 (2007), citing Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). The judge’s credibility resolutions in the present case,
unlike Standard Dry Wall, were not based on witness demeanor.
We shall therefore sever and remand the complaint al-
legation regarding the alleged unlawful discharge of Lo-
pez to the judge for reasoned credibility resolutions and
for findings of fact that detail the evidence supporting his
factual findings and either discredit or reconcile the evi-
dence that contradicts those resolutions and factual find-
ings.
By way of example, the judge found that, on the morn-
ing of February 25, 2007,3 Lopez uttered an expletive
and said, “I quit,” following a heated exchange with em-
ployee Diana Keith in the Respondent’s dining room. In
making this finding, the judge relied solely on Keith’s
testimony, which he credited because Keith was no
longer employed by the Respondent and “there was no
evidence that she had any stake in the case.”4 However,
the judge failed to discredit or otherwise address the tes-
timony of two witnesses, employees Jessica Palko and
Melissa Wilson, or that of Lopez herself, each of whom
testified that Lopez neither said that she quit nor used an
expletive on that occasion.
Additionally, the chronology of key events relating to
Lopez’ discharge remains unclear. The judge credited
the testimony of nurse Noreen Hayes that she saw Lopez
and Palko leave on break at 9 a.m. and return at 9:15 a.m.
However, the testimony of four other witnesses—Lopez,
Palko, Wilson, and Director of Nursing Julie Huffman—
puts Lopez in the dining room assisting residents with
breakfast during this same timeframe,5 and both Lopez
and Palko specifically denied that they were on break
between 9 and 9:15 a.m. The judge failed to adequately
reconcile this conflicting evidence and to explain why he
was crediting one account over others.
There are other instances where the judge failed to
adequately address conflicts in the evidence. For exam-
ple, the judge found that Lopez left the building after her
argument with Keith and upon her return (which was at
approximately 9:30 or 9:35 a.m.), wrote “9:18 a.m.” over
her sign-out time of 9 a.m. in the break log and “9:30
a.m.” over her sign-in time of 9:15 a.m. In so finding,
the judge credited Hayes’ testimony. The judge’s ac-
count of Hayes’ testimony, however, is inaccurate in a
potentially significant respect. Hayes testified that it was
at 9:18 a.m. that Lopez wrote “9:18 a.m.” over her sign-
out time of 9 a.m. in the break log. If this is so, it con-

3 All dates are in 2007, unless otherwise indicated.
4 We note that Keith had been an antagonist in the argument with
Lopez, a fact which may or may not have influenced her testimony, a
determination we leave to the judge to make and explain.
5 Huffman testified that she was summoned to the dining room due
to the altercation there, but Lopez was no longer present. Huffman then
went to the timeclock and found Lopez had clocked out. At this point,
she testified, “It was about 9:15. She [Lopez] clocked out at 9:18.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD152
flicts with the Respondent’s version of the events, which
the judge apparently accepted, that Lopez quit, left the
building, then changed her mind and, upon returning to
the building around 9:30–9:35 a.m., made entries in the
break log to make it appear that she had been on break.
The judge also failed to address certain discordant
findings and evidence pertinent to his conclusion that
Lopez voluntarily quit. For example, the judge found
that, on February 26, Administrator Marna Anderson told
Director of Nursing Huffman that Lopez had been dis-
charged, but the judge did not reconcile this finding with
his ultimate conclusion. Nor did he address Lopez’ tes-
timony that she was told by the Respondent’s observer at
the February 28 election that she had been terminated or
her testimony that, when she tried to report for work on
that day, Anderson told Lopez she had been terminated.
Moreover, the judge apparently credited Huffman’s tes-
timony that Lopez told Huffman that she quit upon her
return to the building on February 25.6 It is undisputed,
however, that, immediately thereafter, Lopez completed
her work shift. The judge did not explain why Lopez
would have told Huffman that she had quit and then im-
mediately resume working.
Accordingly, we shall sever and remand the complaint
allegation regarding Lopez’ alleged unlawful discharge
to the judge for reasoned credibility resolutions and find-
ings of fact, including, but not limited to, resolution of
the issues identified above. In remanding, we stress that
we do not pass on the merits of this allegation or the ul-
timate validity of the judge’s prior findings and credibil-
ity resolutions; we simply ask that he explain his findings
and credibility resolutions in sufficient detail for our re-
view.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Camelot Terrace, Inc.,
Streator, Illinois, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
IT IS FURTHER ORDERED that the allegation that the Re-
spondent discharged Crystal Lopez in violation Section
8(a)(3) and (1) is severed and remanded to the judge for
appropriate action as described above.
IT IS FURTHER ORDERED that the judge shall prepare a
supplemental decision setting forth credibility resolu-
tions, findings of fact, conclusions of law, and a recom-

6 Huffman testified that Lopez, on her way into the building, told
Huffman that she quit and that she did so because “she thought it was
going to get better but it had gotten worse.” Although not expressly
finding that Lopez told Huffman that she had quit, the judge found that
Lopez told Huffman that she thought things would get better but they
had not and that Huffman accepted Lopez’ resignation at that point.
mended Order, as appropriate on remand. Copies of the
supplemental decision shall be served on all parties, after
which the provisions of Section 102.46 of the Board’s
Rules shall be applicable.
Charles Muhl, Esq., for the General Counsel.
Michael Lerner, President, pro se, for the Respondent.
Stephanie Brinson, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me in Peoria, Illinois, on August 28 and
29, 2007. The complaint is based on charges filed by Service
Employees International Union, Local 4 (the Charging Party or
the Union) against Camelot Terrace, Inc. (the Respondent or
Camelot Terrace).
The complaint alleges violations of Section 8(a)(1) and (3) of
the National Labor Relations Act (the Act). The complaint is
joined by the answer filed by the Respondent wherein it denies
the commission of any violations of the Act.
After due consideration of the testimony and evidence re-
ceived at the hearing and the briefs filed by the parties, I make
the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The complaint alleges, Respondent admits, and I find, that at
all material times, Respondent, an Illinois corporation, with an
office and place of business located at 516 Frech Street,
Streator, Illinois, has been engaged in the business of providing
long-term residential nursing and rehabilitation services, that
during the past calendar year, a representative period, Respon-
dent in conducting its business operations described above, had
gross revenues in excess of $100,000 and purchased goods and
services valued at more than $3000 from points directly outside
the State of Illinois and that at all material times, Respondent
has been an employer within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find, that at
all times material, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
III. SUPERVISORY AND AGENCY STATUS
It is further alleged, admitted, and I find, that at all material
times, Michael Lerner, president/owner; Julie Huffman, direc-
tor of nursing (DON); Marna Anderson, administrator; and
Debbie Kipp, operations manager, have been supervisors of
Respondent within the meaning of Section 2(11) of the Act and
agents of Respondent within the meaning of Section 2(13) of
the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that about February 13, 2007, Re-
spondent issued a written warning to its employee Cheryl
Henson, that about April 24, 2007, Respondent issued a verbal
CAMELOT TERRACE, INC. 153
warning to Henson, and that about May 10, 2007, Respondent
issued a written warning to Henson and discharged Henson.
The complaint also alleges that about February 25, 2007, Re-
spondent discharged its employee Crystal Lopez.
1. Background and facts
This case involves the issues of whether Camelot Terrace
terminated Crystal Lopez in violation of Section 8(a)(1) and (3)
of the Act and whether Camelot Terrace disciplined and termi-
nated Cheryl Henson in violation of Section 8(a)(1) and (3) of
the Act because of their union and protected concerted activi-
ties. Lopez had been employed as a certified nursing assistant
(CNA) for 9 years. As a CNA, Lopez assisted residents of the
nursing home with their daily living activities such as feeding,
bathing, and dressing them. Lopez was also responsible for
charting the residents’ daily activities such as eating. Respon-
dent’s director of nursing (DON), Julie Huffman, testified that
Lopez was good in performing her job. Five months prior to
her termination, Respondent named Lopez as the “Employee of
the Month” in recognition of her excellent job performance. In
October 2006, Lopez met the Union’s organizer, Thomas
Zablocki, who was involved with an organizing campaign at
Respondent’s facility. Lopez had been involved in an organiz-
ing campaign at another nursing home facility in Ottawa, Illi-
nois. Lopez was recruited by the Union to assist in organizing
Camelot Terrace and became the leading employee union ad-
herent. Lopez solicited union cards from her fellow employees
and personally obtained signed union cards from one-third of
the bargaining unit employees. She attended union meetings,
telephoned her fellow employees on behalf of the Union, and
held union meetings at her home in addition to speaking to the
employees on a daily basis in support of the Union. In addi-
tion, Lopez testified on behalf of the Union in an arbitration
hearing and in a National Labor Relations Board (the Board)
hearing and served as a union observer at a Board supervised
union election held at the Camelot Terrace facility in December
2006.
Cheryl Henson was employed as a medical records/transport
aide over 17 years and had not received any discipline for over
16 years. Henson testified that she had received only one dis-
cipline in her first week of employment in October 1989. As a
medical records aide, Henson prepared Medicare and public aid
forms for new residents and performed general filing duties and
prepared new resident charts. She was also responsible for
obtaining signed medical forms from physicians who had called
in medical and treatment orders and for ordering medical sup-
plies and medicines to keep the medical room stocked for the
facility’s requirements. She also transported residents to vari-
ous locations for doctors’ visits. She was also responsible for
taking photographs of new residents to be placed in their files.
Henson testified that she was an open supporter of the Union
and that she told DON Huffman of her support of the Union
shortly before a second election which was held on February
28, 2007. She also testified that she spoke to union representa-
tives at Camelot Terrace during the union campaign and that
she testified as a witness for the Union at an arbitration hearing
held on January 17, 2007, concerning objections to the first
election. Additionally, Henson’s daughter, Melissa Wilson,
was a housekeeper/CNA at Camelot Terrace. Wilson testified
she is a union adherent and testified at a January 17, 2007 arbi-
tration hearing. Camelot Terrace Administrator Marna Ander-
son testified she was aware that Wilson was a union adherent
and that Wilson had testified at the arbitration hearing.
The Union and Illinois Association of Healthcare Facilities
(IAHF) are parties to a master agreement which was in effect
from April 20, 2005, to December 31, 2007. This agreement
contained regulations controlling the Union’s engagement in
organizing of unorganized nursing homes owned by IAHF
members, such as Michael Lerner, whose company, GEM,
owns Camelot Terrace. In October 2006, the Union and Came-
lot Terrace executed a settlement agreement whereby they
agreed to be bound by the neutrality provisions of the master
agreement including the appointment of a neutral arbitrator to
resolve disputes of matters arising under the neutrality agree-
ment. Edward B. Krinsky was mutually selected as the neutral
arbitrator. During the fall of 2006, Union Representatives
Andy Friedman and “Shannon” met with employees to discuss
the employees’ concern that Respondent’s timeclock was inac-
curate and docking the employees 15 minutes. On September
21, 2006, Lopez and 10 other employees signed and sent a let-
ter to Lerner concerning the timeclock and asserted that the
Union was their representative concerning this issue and re-
quested certain information be sent to Friedman. Soon thereaf-
ter Lopez and Union Representative Friedman met with Debbie
Kipp, the director of operations of GEM, concerning the time-
clock issue. About a week later, Lopez and Union Representa-
tive George Hemberger met with Kipp, Lerner, and Anderson
concerning the timeclock issue.
On October 23, 2006, the Respondent and the Union held a
joint meeting at Respondent’s facility in accordance with the
settlement agreement. Lerner, Kipp, and Anderson were all
present on behalf of the Respondent at the meeting and each
spoke from a script in which the Respondent purported to be
neutral and stated that it would not campaign against the Union.
However, the statements disparaged the Union as follows:
. . . We are not going to campaign against unionization, we
are not going to try to convince you that you’d be better off
without them; we will let you decide for yourselves whether
you can rely on the promises given to you by these people or
whether they are empty promises, made by people who don’t
have even the slightest ability to give you the things they
promise.
. . . We know that you are intelligent people, and you will de-
cide for yourselves who you can trust for your future—GEM
Healthcare, a solid company whom you have steadily relied
on in the past; or strangers from Chicago, that you have never
met before, who keep knocking on your doors, badgering you
to hire them.
. . . Presently, all of you receive an annual merit raise . . . Un-
der a union contract the facility won’t have to do that. If a
raise would be agreed to, the contract would require us to give
each of you the same raise as everyone else; no matter how
much more superior your work is than theirs . . . .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD154
. . . If you want a union, it’s your prerogative to do either . . .
But if you don’t want a union, you must act by not signing
any Union cards, since that can force an election, or actually
be accepted as an election. Don’t believe anyone who tells
you that signing a card is meaningless.
If there is an election, and you don’t want a union, you need
to come and vote NO. Don’t stay home and think nothing
will happen—you must come and vote your choice, since you
and your paycheck will directly be affected by the vote.
If the union is voted in, many of you could be unhappy with
some of the contract’s provisions. Since there are a lot of de-
tails in a contract, you’d be forced to accept whatever the ma-
jority agreed to. But when you don’t have a union contract,
you are not tied down to those rules. If you have a personal
situation, often flexibility can be worked out with your super-
visors . . .
Although unions can promise a greater future, they can only
guarantee one economic thing—that you will always pay
them union dues. No matter how little they may actually do
for you, you will forever be paying them a deduction of your
paycheck.
Immediately after reading these statements, all three of Re-
spondent’s representatives left the room and turned out the
lights as the Union’s president tried to answer questions from
employees. The Union filed a grievance with Arbitrator Krin-
sky alleging that Respondent’s speech was in violation of the
settlement agreement. An arbitration hearing was held in this
matter on November 7, 2006, wherein employees Crystal Lo-
pez, Pamela Northrup, and Debbie Brennan testified in support
of the Union. On November 29, 2006, the arbitrator issued his
award in which he found that the aforesaid statements were not
neutral but rather were adversarial.
On December 13, 2006, the Board conducted the first elec-
tion pursuant to the Union’s petition for election which had
been filed on November 22, 2006. However, on December 12,
2006, the day prior to the election, the Respondent gave the
employees a holiday party and gave the unit employees gift
cards in the amount of 40 percent greater than in the preceding
year. Lopez was the Union’s observer for the election. There
were 42 bargaining unit employees who voted. There were 18
votes for the Union and 23 votes against the Union. On De-
cember 20, 2006, the Union filed objections to the election with
Region 13 of the Board and Arbitrator Krinsky. On January 17,
2007, Arbitrator Krinsky conducted an arbitration hearing on
the objections at Respondent’s facility in its conference room
which was located approximately 5 feet from Administrator
Anderson’s office. Anderson was present during the hearing
and her door was opened. Employees Crystal Lopez, Cheryl
Henson, Melissa Wilson, Jessica Palko, Deanna Chalky, Diane
Bour, and Barbara Rubrecht all testified in support of the Un-
ion. Lerner and Kipp represented Respondent at the hearing.
On cross-examination of Lopez, Lerner contended that she was
a vocal prounion supporter and asked her whether she had re-
ceived money or gifts from the Union. On February 5, 2007,
Arbitrator Krinsky rendered his award in this matter. He found
that the holiday party and the gift distribution the day prior to
the election would influence a vote against the Union and that
the failure of the Employer to post the arbitrator’s November
29, 2006 decision 48 hours in advance of the hearing as ordered
by the arbitrator may have reduced the number of employees
who attended the meeting potentially affecting the vote of the
entire bargaining unit. He thus concluded that the results of the
December 13, 2006 election should be voided and a new elec-
tion should be held. He also ordered that Camelot Terrace as
“the party violating the rules of conduct shall join in a stipula-
tion setting aside the results of the election and providing for a
rerun election . . . .” Initially, the Respondent refused to sign
the rerun election stipulation but later, under the pressure of an
impending temporary restraining order in Federal court, the
Respondent signed the Board approved rerun election stipula-
tion. On February 28, 2007, the rerun election was held. Forty
bargaining unit employees voted at the election. There were 21
votes for the Union and 17 against. On March 3, 2007, Re-
spondent filed election objections with the Board in Case 13–
RC–2169, but not with Arbitrator Krinsky. On May 8, 2007,
the Board’s hearing officer issued a report and recommendation
which overruled Respondent’s objections. Respondent filed
exceptions to the report and recommendation which are pend-
ing before the Board.
2. The alleged discharge of Crystal Lopez
Lopez testified that on Sunday, February 25, 2007, she re-
ported for work at 6 a.m. for her scheduled shift of 6 a.m. to 2
p.m. There were three other CNAs besides herself between
6:30 to 7 a.m. However, a CNA quit, leaving only three CNAs
including Lopez. About 8 a.m. Lopez was in the B-wing by the
utility room in the hallway. CNA Jessica Palko and Melissa
Wilson, a housekeeper, were also present. Wilson told them
that Amy Gaydos, a unit aide who was not a housekeeper, was
going to be receiving housekeeping hours and Wilson was not
being offered them. Lopez said it was not right for Respondent
not to offer Melissa more hours instead of offering them to
someone from a different department. Lopez and Palko contin-
ued getting residents up since there were only three CNAs on
duty that day. When they finished bringing residents out to the
dining room it was shortly after 9 a.m. Palko was helping Lo-
pez. Also in the dining room were Wilson and Cecilia
Selvidge, another CNA. There were about 15 to 20 residents in
the dining room at that point. Lopez was charting the residents’
appetites and had a clipboard in her hand. Selvidge had left the
room, leaving Wilson, Palko, Lopez, and the residents. At that
point Diana Keith, a housekeeper, started screaming at Wilson.
She came into the room screaming and got up in front of Lo-
pez’ face and said the housekeeping department was none of
Lopez’ business and she would have never brought the matter
up this way. Lopez said that they were in front of the residents
and needed to quit it. Keith kept it up and Lopez became ag-
gravated and took the clipboard and threw it on the table, and
said, “I’ve had it. I can’t take it anymore,” and left the dining
room. Lopez was by the door when Keith came in. Keith came
up to Lopez when Lopez told her they were not talking about
the housekeeper, Amy Gaydos. Keith had started “yelling” at
Wilson about talking about Amy Gaydos. Lopez was not ini-
CAMELOT TERRACE, INC. 155
tially involved until about 5 minutes later, when Lopez told
Keith it was not fair that somebody in the housekeeping de-
partment did not get the housekeeping hours which were in-
stead offered to a unit aide. Keith was loud and screaming.
Lopez testified she, herself did raise her voice and told Keith
they were in front of the residents and needed to stop. Lopez
threw the clipboard down on the table. Lopez testified she
went to the nurses’ station to sign out for her break and went
out of the building to her van to calm down as she was aggra-
vated. She testified there was no break sign-out sheet so she
clocked out on the timeclock. She was in her van when the
nurse for the day, May Nelson, came and asked her what was
going on. She told Nelson that she was aggravated about what
had happened in the dining room and told her, she did not think
she could work there anymore because managers, coworkers,
and residents were screaming at them. She was in the van
about 15 minutes and then left the van to go back in the build-
ing. Director of Nurses Julie Huffman was there at the entrance
and was talking on the phone to someone. She heard Huffman
say, “I don’t know what is going on with Crystal Lopez.” Lo-
pez then said, “Well, I’m going back to work.” She then
walked back in the building and clocked back in and went to
work. May Nelson witnessed this conversation, as Huffman
was there outside the door as Nelson was coming in at the same
time. Lopez then worked until 20 minutes to 3 that day. Her
shift was scheduled to end at 2 p.m. that day. Lopez’ next
scheduled workday was Monday, February 26, 2007. She testi-
fied she called in sick to the nurse on the midnight shift 2 hours
in advance of her shift as required. She was called by Adminis-
trator Anderson but did not initially answer the phone as she
was ill. When she saw it was Anderson, she returned the call
but Anderson was at lunch. Anderson called her back about
noon or 1 p.m. that date. Anderson said, “Crystal, you quit, so
I’m taking that as your resignation.” Lopez said, “What are
you talking about Marna I did not quit.” Lopez denied that she
had quit and attempted to explain the incident to her but Ander-
son repeatedly continued to say that Lopez had quit and she
would not listen to Lopez, who became irritated and hung up.
Lopez testified that she did not tell anyone involved in the
dining room incident that she had quit. Nor did she tell DON
Huffman on February 25, 2007, that she had quit. Lopez was
not scheduled to work on Tuesday. She was scheduled to work
on Wednesday, February 28, 2007, which was also the date of
the scheduled election. She appeared to vote at 5:45 a.m. and
her vote was challenged by Respondent’s election observer,
Amy Black, who told her she was terminated. At 6 a.m., Lopez
entered the building and clocked in and went to the nurses’
station. The midnight nurse asked her what she was doing
there as her name was not on the schedule to work. Lopez told
her she was to be working this date. Angie Smith, a nurse, then
told Lopez that Anderson wanted to see her. Lopez took Wil-
son with her as a witness and prior to reaching Anderson’s
office she met Anderson who asked her, “[W]hat the hell,” she
was doing there. There were residents around the area. Ander-
son said, “Crystal, you know you were fired on Monday, so
what are you doing here?” Lopez told Anderson that Anderson
had not told her she was fired. Lopez told Anderson that she
had told her that she had not quit and that she was there to
work. At this point Anderson told Lopez that if she wanted to
leave peacefully, she could or if she did not, she would call the
police. Anderson was screaming at Lopez when she told Lopez
to leave. Lopez left.
On cross-examination, Lopez testified that in her conversa-
tion with Nurse May Nelson, she told Nelson she did not know
if she could continue working there because the management
and residents were screaming at her because they were working
so “short.” When Nelson and Lopez walked up to the building
she observed that DON Huffman was on a cell phone standing
outside the building. She told Huffman she was going back
into work and did so. She heard Huffman say to someone on
the phone that she did not know what was going on with Lopez.
Lopez said, “Well, I’m going back into work.” With respect to
breaks, Lopez testified that the policy on notifying management
varied from being required to sign out on break, to telling the
charge nurse, or to signing themselves out. She had punched
out on the timeclock for her break prior to February 25. On
Sunday, February 25, she had not written anything on the sign-
out sheet and did not see the charge nurse and was not aware
that Huffman was still in the building, as Huffman had worked
the night shift. Accordingly, she punched out on the time clock
prior to going on her break. She did not say, “Fuck it, I’m quit-
ting.” She did say, “I’ve had it. I can’t take this.” She did not
have any conversation with Huffman after her return to the
building. The Respondent has a policy referred to as the no-
call/no-show policy. This applies to employees who do not call
off work and inform the Employer that they will be absent and
who do not show up. This policy changes regularly and sub-
jects the affected employees to termination for a single offense
or up to three times prior to termination. On February 26,
2007, she called in to the nurse on the midnight shift. When
she talked to Marna Anderson on the morning of February 26,
2007, Anderson told her that since she had quit, she would take
this as her resignation. She told Anderson that she had not quit.
On redirect by the General Counsel, Lopez testified that the
break policy changed often. At one point the employees did
not have to notify anyone that they were going to take a break.
At other times the employees were required to notify the
nurses. If they were leaving the building, they were required to
clock out sometimes. There was never a written policy, but
notification of changes in the policy were communicated by
word of mouth and were not always communicated. On Febru-
ary 25, Huffman had worked the midnight shift and Lopez did
not know she was still in the building at 9 a.m. Anderson was
not in the building on this date. Often (10 or 15 times a
month), the employees took breaks in the parking lot without
notifying the Administrator, the DON or a charge nurse. No
one has ever told her that she was terminated as a “no-call/no-
show.” On re-cross-examination by the Respondent, Lopez
testified that she did not sign herself out and in on her break
sign-out sheet on February 25 because she did not know where
the sign-out sheet was the entire day.
Melissa Wilson testified she is a CNA and has been em-
ployed at Camelot Terrace about a year. On February 25, 2007,
she was a housekeeper cleaning rooms. She was working a 7
a.m. to 3 p.m. shift. About 9 a.m. there was an argument in the
dining room. Present were Lopez, Jessica Palko, and Diana
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD156
Keith and about 8 to 10 residents. She was beginning to clean
the dining room and Keith came in and was yelling about peo-
ple backstabbing other people and about a conversation con-
cerning hours of employment. Lopez and Palko tried to calm
Keith down and Keith turned around and started yelling at Lo-
pez. When Keith first entered the dining room, she told Wilson
that if there was anything going to be said about hours, it
should be said to Joyce Wahl who was the supervisor for
housekeeping and laundry. Lopez told Keith that no one was
talking behind anyone’s back. It was just a conversation about
hours being cut and that is when Keith turned around and
started yelling at Lopez. Keith yelled at Lopez that it was none
of her business and that it was a conversation that should not
have been held with other people and it should have been ad-
dressed to Joyce Wahl. Crystal then said she couldn’t take it
anymore and threw down her clipboard and went out and took a
break. Keith was yelling during this incident. Lopez started
yelling toward the end of the conversation. Lopez did not say
anything else prior to leaving the dining room. Prior to the
argument, Lopez had been charting residents’ appetites. Lopez
did not use profanity and did not say, “I quit.” Shortly before 2
p.m. Huffman asked Wilson to tell her what had happened.
Wilson told her they were all in the dining room talking and
Keith came in and started yelling and Lopez and Palko tried to
calm her down and this is when Keith started yelling at Lopez
and things progressed and Lopez walked out. Huffman told
Wilson that she (Huffman) was outside the doors of the dining
room. However, Wilson testified she did not see Huffman
there but saw Huffman coming out of her office. Huffman
asked Wilson if Lopez had used any profanity and also asked if
Lopez said she quit. Wilson told Huffman she did not hear
Lopez use profanity or say that she quit. While Wilson was
talking, Huffman was taking down notes, but she did not give
Wilson an opportunity to review what she had written. Wilson
did not provide a statement that she (herself) had written. On
the day of the election, Lopez was called into Anderson’s of-
fice. Lopez asked Wilson to accompany her. Wilson did so
and Anderson met them at the secretary’s office. There were
also some residents out in the sitting area. When Anderson met
Lopez she asked Lopez, “[W]hat the hell,” she was doing there
because Lopez had told her she had quit. Lopez then told her,
“I did not quit.” Anderson then said she, “called you on Mon-
day and said that you no longer had a job here.” Anderson then
told Lopez to leave on good terms or she would call the police
and have her escorted out. Wilson testified further that about a
week prior to the hearing in this case, Anderson called her into
Social Services to talk to Wilson. Wilson complied and Ander-
son gave her a statement to read that Huffman had written of
the events of the Sunday prior to the election concerning the
argument in the dining room. Wilson read the statement and
found it inaccurate. Specifically, the statement said that Wilson
had told Huffman that Lopez had said, “Fuck it, I quit.” She
told Anderson this statement was not accurate and Anderson
then crossed out this portion of the statement and Wilson then
signed her initials to it. Wilson was given a disciplinary
writeup by the Respondent for arguing in front of residents.
She was not discharged. Her supervisor, Joyce Wahl, told Wil-
son that her conduct was inappropriate and should not occur in
the workplace. Wilson testified further that she was involved in
the Union’s organizing campaign and spoke to other employees
on behalf of the Union. She also testified on behalf of the Un-
ion in two arbitrations.
On cross-examination by Respondent, Wilson testified that
Lopez took her break about 9:15 or 9:20 a.m. When Wilson
was interviewed by Huffman, Huffman told her that she heard
Lopez say, “Fuck it, I quit.” Wilson testified that Huffman was
nowhere near the dining room but rather was in her office with
the door closed and that Huffman was not aware of the situation
until Cee Cee (another aide) went in and got her. In addition to
striking the words on the statement “Fuck it, I quit,” Wilson
had Anderson add that Lopez had said, she couldn’t take it
anymore, that she was stressed. Wilson made public that she
was in favor of the Union. Palko also made public that she was
in favor of the Union. When Wilson’s hours were cut back, she
was told it was because the census showed that the ratio of
residents was down.
Jessica Palko testified she has been employed by Respondent
4 years. She is a CNA and works 6 a.m. to 2 p.m. On Sunday,
February 25, 2007, she worked the same shift. At the start of
the day they were getting residents up and she moved from
different wings of the facility. She and Lopez were getting
residents up on B-wing. They were approached by Melissa
Wilson who told them that a person in another department was
receiving housekeeping hours whereas Wilson, a housekeeper
who was in the housekeeping department, was not getting
enough housekeeping hours. That conversation only lasted 5
minutes and they commented that this does “stink.” Lopez and
Palko proceeded to get the residents up for their meal. They
took the residents to the dining room. Present in the dining
room were Lopez, Wilson, and Palko. Then Diana Keith
walked into the dining room and went after Wilson saying,
“Why would you be talking about Amy.” Amy Gaydos was the
person who they were talking about earlier as having received
the additional housekeeping hours although she was not in the
housekeeping department. Wilson told Keith that she was not
talking about Amy as a person, but was just stating a fact that
she was getting hours. Palko testified that she and Lopez stood
up to stop the conversation because Keith was using a raised
voice and they were just telling Keith that Wilson was not talk-
ing about Amy. Wilson was just stating that she needed more
hours and someone else was getting them. Keith then turned
her attention to Lopez and got in her face and was yelling at
her. Lopez then said, “I’ve had enough of this. I’m done.”
Lopez threw the clipboard on the floor and then left the dining
room. Palko asked Nurse May Nelson to go after Lopez to
calm her down because Lopez was crying. She never heard
Lopez say, “I quit” or “Fuck this, I quit.” Nor did Lopez use
any other profanity. Later on that day she was approached by
Huffman who told Palko she needed to take her statement.
Huffman sat down where Palko was at a table in the breakroom
and Palko told Huffman what had happened. When she was
finished writing it down, Huffman said, “[T]hank you” and
walked away. Palko told Huffman that Lopez had tried to act
as a buffer between Keith and Wilson. Huffman asked Palko if
Lopez had quit and Palko told her, “No, she didn’t quit.” She
said, “I’ve had enough. I’m done with this.” Huffman did not
CAMELOT TERRACE, INC. 157
show the note to her. Palko does not recall if Huffman asked
her if Lopez used profanity. About a month prior in an investi-
gation on another matter, she was asked to provide a statement
and she wrote it, signed it, and dated it herself. Prior to Febru-
ary 25, 2007, she observed Lopez engage in activities on behalf
of the Union such as talking with other employees at break and
lunchtimes, and making home visits from October 2006 to Feb-
ruary 2007. She was approached by Anderson on Monday,
February 26, who asked her the same questions that Huffman
had asked her. Anderson asked if Lopez used any profanity
and had said she quit and Palko said no. Palko further testified
that years ago two CNAs got into an argument and used foul
language toward each other. The employees were suspended
but were not discharged. Palko participated in an arbitration at
Camelot Terrace and also testified at a Board hearing in Chi-
cago.
Diana Keith was called as a witness by Respondent. She tes-
tified she worked in housekeeping and was a union supporter
and was friendly with Lopez. On the morning of February 25,
she was getting ready to go to lunch and Respondent’s staff was
running late with the residents in the dining room. She walked
in to ask Wilson if she needed help. She did not get a chance to
talk with Wilson because she heard someone call her name and
it was Lopez. Lopez started asking her why Amy Gaydos, a
unit aide, was getting housekeeping hours instead of Wilson,
who was a housekeeper. Keith said she did not know. Lopez
said she didn’t think it was right. She told Lopez to call her
(Keith’s) supervisor and took out her phone. Lopez kept saying
she did not think it was fair and that she thought it was a bunch
of “b. s.” and then Lopez said, “Fuck it. I quit. I am out of
here.” and Lopez threw the clipboard. Lopez was upset. The
residents were within hearing distance seated at nearby tables in
the dining room. She wrote a statement which she signed and
gave to DON Huffman. She was interviewed by Huffman. She
received a disciplinary warning for her role in this incident
from Marna Anderson and Joyce Wahl. She protested the dis-
cipline but was told she should have walked away. She had
talked to Huffman on February 25 concerning this matter.
Then Anderson told her she had to write up the statement. She
also testified that Lopez did not act as a peacemaker but “[s]he
was the one who was going at it.” Keith is no longer employed
by Respondent.
Noreen Hayes, a licensed practical nurse (LPN) at Camelot
Terrace, testified she supervises the aides who give direct care
to the patients. On February 25, 2007, Crystal Lopez was un-
der her supervision and was working two wings of the facility
that Hayes was in charge of. The employee break sign-out
sheet is kept at the nurses’ station and was at the nurses’ sta-
tion, where she was assigned on February 25. The CNAs are
allowed to go on break for 15 minutes in the morning, 30 min-
utes for lunch, and a 15-minute break in the afternoon. Hayes
testified at the hearing that she had signed Lopez and Palko out
at 9 a.m. and back in at 9:15 a.m. on the break sheet for Febru-
ary 25. The aides usually tell Hayes when they are going on
break and she signs them out. At times the CNAs sign them-
selves out. On February 25 she saw Lopez go on break at 9
a.m. and return at 9:15 a.m. She saw Lopez go out on break to
the breakroom. CNAs do not punch out on the timeclock dur-
ing their shift except if they are going to leave the building and
have received permission to leave the building. Hayes testified
that later, on February 25, she observed Lopez write in 9:18
a.m. as her time out and 9:35 a.m. as the time in on top of
Hayes’ writing of their time on the break sheet.
On cross-examination, Hayes testified that on February 25,
she was at the nurses’ station and she took “report” (received
status reports) from the aides and then started passing “meds”
(medicines) and giving treatments to residents which takes
about an hour and she was back and forth from the nurses’ desk
to the telephone. At noon she passed meds again. She also
takes orders from doctors and then it is time for the next shift to
come on and she gives report. On February 25, she was taking
a phone call from a doctor on orders between 8:45 and 9 a.m.
She was not at the nurses’ desk all day when she was perform-
ing other tasks. However, when she saw Lopez and Palko go
on break from 9 to 9:15 a.m., she was at the nurses’ station.
She saw them go out the glass door toward the breakroom.
Lopez did not ask her for permission to go on break but rather
asked Hayes to sign her out for a break. Lopez did not tell her
what times to put down on the break sheet. Hayes wrote the
times down because she could see the clock across from the
nurses’ station. Employees have left the building without per-
mission before. Lopez later wrote over the 9 a.m. sign-out
sheet and the 9:15 a.m. sign-in sheet. Hayes was at the nurses’
station the entire time from 9 to 9:15 a.m. In addition to taking
a doctor’s call during this time, she was also charting a resi-
dent’s chart. Hayes testified that Lopez returned and signed the
break sign-out sheet over the 9 a.m. time for Lopez that Hayes
had entered and later returned at 9:30 a.m. and wrote 9:30 a.m.
over the 9:15 a.m. time that Hayes had entered for the return of
Lopez, thus apparently taking another break. She did not say
anything to Lopez about her taking two breaks as it was a Sun-
day and there was only herself and another nurse there and
there were no “higher ups.” Hayes reported this to DON Julie
Huffman on the next day.
Julie Huffman testified as follows: She became the director
of nursing (DON) in January 2007. As DON she supervised
the CNAs including Lopez and the nurses and the unit aides
who assisted the CNAs in their duties. On the morning of Feb-
ruary 25, 2007, she was in charge as Administrator Marna
Anderson was off work on that date. As of February 25, 2007,
Huffman had only recently been appointed as DON for the
facility. She was in her office that morning when Cecilia, one
of the CNAs, came in and said that Huffman needed to go to
the dining room right away and that Lopez had just quit. When
Huffman arrived at the dining room, Lopez was not there and
she went to the timeclock and Lopez had already clocked out at
9:18 a.m. according to her timecard. She saw Jessica Palko
feeding and Wilson was standing there and there was a clip-
board on a table and “there was paper all over the floor.” She
went back to the nurse’s station and told them she was going to
pick up unit aide Debbie Morris to replace Lopez. She then
went outside and saw Lopez in her van talking to Nurse May
Nelson. She called Nelson to come back into the building be-
cause it was cold outside and Nelson had only recently been in
the hospital. As Nelson returned, Lopez followed her in and
came to where Huffman was standing. Lopez told her that she
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD158
had quit because she thought it was going to get better but it
was worse. Huffman told Lopez she could not deal with her
then and she went to her car to pick up Morris. After she
picked up Morris and returned to work, she saw Lopez was still
in the building. She told Lopez, “[I]f you had quit, you know,
you need to go home but she got very upset. She started
screaming at me.” She said, “[N]o, I am not . . . I am not going
home. She got right in my face and I got really scared so I just
kind of back(ed) off.” Lopez was “screaming and . . . got right
in my face.” Lopez is substantially larger than Huffman.
Huffman testified she did not call the police because she was
aware that Camelot Terrace had a “bad reputation” as a result
of two residents who had committed suicide at the nursing
home a number of years ago and also because a current resident
persists in calling the police because he enjoys their company.
Lopez went back to work and worked until 2 p.m. that day. In
her written report of February 26, 2007, of the incident, Huff-
man wrote that “Crystal Lopez gave her verbal resignation to
staff nurse after she threw the clipboard in the dining room and
said . . . fuck it, I quit, in front of other staff while residents
were still in the dining room. Then she clocked out and left the
building.” Huffman also wrote in this report that “[s]he con-
firmed her verbal resignation to me at 9:20 a.m. outside of the
employees’ entrance door.” She did not hand this report to
Lopez because she was a no-call-no-show the next day. Rather
she addressed this matter with Marna Anderson the next day.
Anderson told her that Lopez was discharged and that Respon-
dent does accept verbal resignations.
On cross-examination, Huffman testified she supervises pa-
tient care, hiring and firing, and disciplining nursing staff in-
cluding nurses, CNAs, and unit aides. She also testified that
the Respondent uses progressive discipline ranging from verbal
warning to termination although some offenses warrant imme-
diate termination. The unit aides are the CNAs assistants.
They do work which is similar to the CNAs work but are not
allowed to lift and do not do vital signs. Huffman acknowl-
edged that she did not observe the incident in the dining room.
The disciplinary reports which she prepared regarding that
incident are based on information she received from others.
Diana Keith was the only person that personally wrote out a
statement of the incident. In her own affidavit, Huffman stated
that she supervised Lopez who “was pretty good at her job
performance wise” but that she did not give Lopez an entire
appraisal as she only supervised her about a month. Huffman
interviewed other employees concerning the dining room inci-
dent with Lopez and gave these reports to Anderson.
Respondent’s administrator of its facility, Marna Anderson,
testified as follows: She did not work on Sunday, February 25,
2007, as this was her day off. She returned to work on Mon-
day, February 26, when she received a report from DON Huff-
man that Lopez had used the “f-word” and said, “I quit.” Huff-
man told her that there was a loud argument in the dining room
between staff members and that one of the CNA’s ran into her
office and told her to hurry up and go to the dining room.
Anderson investigated this incident and interviewed residents
and staff members. She also reviewed attendance records and
documents from the dining room. She received a statement
from Diana Keith that Lopez had come up to Keith in the din-
ing room and asked her what was going on and why Amy Gay-
dos (a unit aide) was getting housekeeping hours over Melissa
(a housekeeping aide) and that Keith said she did not know and
to ask her supervisor and that Lopez became angry and said she
quit, and was out of there and threw the clipboard and walked
out. Anderson also took a statement from nurse May Nelson
who had worked on February 25. In her statement Nelson said
that about 9:15 a.m. she saw Lopez—“storming” across the
corridor in front of her while she was sitting at the nurses’ sta-
tion and that she heard Lopez loudly scream, “This is it. I am
quitting.” Lopez then went to the timeclock and punched out
and left the building. In her statement, Nelson stated that she
followed her outside and found her in her vehicle and tried to
calm her down, but that Lopez kept saying she was quitting.
Nelson further stated that Huffman came outside and told Nel-
son to come back inside because of the severe cold as Nelson
had recently been in the hospital. In her statement, Nelson also
noted that Lopez did not ask Nelson for permission to leave the
facility premises on a break. Nelson did not testify at the hear-
ing in this case and I accordingly do not rely on this statement
for the truth of its contents but I find it is relevant to demon-
strate what Nelson told Anderson.
Anderson testified that when she was in the process of get-
ting documents together for this hearing she noticed that she
had forgotten to have Wilson sign the statement Huffman took
of Wilson. She asked Wilson to sign it and Wilson agreed to
sign it but wanted Anderson to cross out the statements “Fuck
it” and “I am quitting.” Wilson also wanted Anderson to add
the statement that she (Lopez) couldn’t take it anymore, that
she was too stressed and left on her own. Anderson did so.
Anderson testified that on Monday morning February 26, Lo-
pez called her and said, “I did not quit. Marna I did not quit.”
Anderson asked who it was and Lopez said, “Crystal.” Ander-
son told her that Huffman had informed her that Lopez had
said, “I quit and I am out of here” and that she left. Lopez said
she did not say that. Anderson told her that she believed Huff-
man. Other CNAs have quit in the past and she has always
accepted their resignations. She has never hired a CNA who
has previously quit for several reasons such as patient abuse,
falsification of records, or no-call-no-show. The employee
handbook provides that “employees who fail to give two weeks
written notice or fail to complete working out the time will not
be paid for accrued vacation and are not eligible for rehire.”
Anderson also testified that employees punch in and out on the
timeclock when they come to work and when they are finished
for the day but that they do not ever punch out for their 15-
minute break. A review of Lopez’ timecards going back about
a year shows that she has never punched out for a 15-minute
break. Lopez’ timecard for February 25 shows she punched out
at 9:19 a.m. and punched in at 9:35 a.m. The break sheet shows
that Lopez’ break was from 9 to 9:15 a.m. that day as was that
of Jessica Palko. The nurse on duty at that time was Noreen
Hayes and she informed Anderson that she was the one who
recorded the breaktime and that Lopez came back in and wrote
over the top of the previous time which had been written down
by Hayes. After her investigation Anderson concluded that
Lopez had gone on a break from 9 to 9:15 a.m., that there was
an incident in the dining room and that Lopez punched out on
CAMELOT TERRACE, INC. 159
the timeclock and left and came back in and wrote on the break
sheet 9:18 to 9:30 a.m. to make it look like she was just out on
a break when actually she had quit and left and came back in.
She issued a disciplinary writeup to Diana Keith and Melissa
Wilson for their loud behavior in the dining room and accepted
Lopez’ resignation. No one told Anderson that there was diffi-
culty in finding the break sheet for February 25. She did not
consider rehiring Lopez because she had violated the Respon-
dent’s rules and also Federal and State rules by swearing in
front of residents, engaging in loud and disruptive behavior,
falsification of a record, being a no-call-no-show, and abandon-
ing her patients when she left while the CNAs were in the din-
ing room feeding the residents. Federal guidelines prevent the
nursing home from employing her because of her verbal abuse
by swearing in front of residents. Respondent has terminated
employees in the past for using foul language. Lopez did not
call in on February 26, 2007, prior to her absence and was
therefore a no-call-no-show and Respondent did not receive a
call off slip indicating she had called in to notify Respondent
that she was going to be absent on February 26. Respondent
has terminated other CNAs who were no-call-no-shows.
3. The warnings and discharge of Cheryl Henson
Cheryl Henson testified she worked for Respondent for 17-½
years until her discharge in May 2007. She was employed as a
medical records/transport aide. She did paperwork for Medi-
care and public aid. She filled out forms to be sent to the doc-
tors to be signed for new residents and residents who came
back from the hospital. She cleaned the charts of residents and
made up new charts for residents coming into Camelot Terrace.
She filed paperwork and made copies for others. Julie Huffman
was her direct supervisor. She became familiar with the Union
in the course of the last year prior to her discharge. Union rep-
resentatives approached her and explained why they were at
Camelot. She did not have any further meetings with the union
representatives. She testified in an arbitration hearing in Janu-
ary 2007. She was called as a witness by the Union. She was
asked what was going on with the Union and the employees at
Camelot Terrace. She was asked about a Christmas party given
by Respondent for the employees and about conversations she
had overheard at the nurses’ station. Respondent Owner Lerner
and Respondent’s operations manager, Debbie Kipp, were pre-
sent at the hearing. Prior to 2007, she had never received a
discipline after the first week of her 17-½ years employment
with Respondent. She also had duties with respect to picking
up and dropping off paperwork from doctor’s offices. The
nurses would receive telephone orders from doctors for their
patients for either medication or treatments. The nurses would
write the orders down which would have to be signed by the
doctors as well as other paperwork. She would put them in an
envelope with the doctors’ name on them. She did this for a
week at a time. On Tuesdays she would take the orders to the
doctors’ offices and on Thursdays she would pick them up.
She would place these forms in the residents’ charts.
In the beginning of April 2007, Henson was called into
Anderson’s office with both Anderson and Huffman present.
Anderson told her that she and Huffman had been making the
rounds to the doctors’ offices for Huffman as the new DON, to
meet the doctors and when they stopped at Dr. Indira Pal’s
office, he handed her paperwork that Henson had dropped off
in his office but that had not been picked up for a couple of
weeks. Henson told Anderson that her schedule for transport-
ing residents to and from doctors’ appointments and other du-
ties had become busy and she had also been busy with paper-
work and filing and she apologized. She contended there were
times when she had to wait a week or two to get the paperwork
back from the doctors. There were other times when she had
not picked up or dropped off doctors’ paperwork for 1 or 2
weeks. She had never received any discipline for this and no
managers or supervisors spoke to her about it. She had been
responsible for picking up and dropping off the doctor’s order
forms for about 3 years at the time of her discharge. She re-
ceived a verbal warning in the beginning of April 2007 for this
incident which had actually occurred on February 13, 2007.
Henson was also responsible for ordering all of Respon-
dent’s medical supplies such as oxygen masks, tubing, needles,
treatment items, gauzes, and tapes. She also ordered general
resident supplies such as toothpaste, alcohol wipes, briefs, and
other necessities for the residents. As part of her job of order-
ing medical supplies and general resident supplies she would
check out the supplies in the med room and would then order
what was needed. She received a writeup for a verbal warning
from Anderson on April 25, 2007. With respect to this writeup,
Owner Michael Lerner had come to the facility and she was
called to the med room and he asked if she knew where the IV-
flow meters were. (These items go directly on the IVs which
eliminates the use of a pump to regulate the IVs.) Lerner,
Anderson, Huffman, and Henson were all in the medical room
looking for the IV-flow meters. Huffman asked her if she had
ordered them. Henson said she did not know that they needed
them. Huffman said she had left a note on Henson’s desk to
order them. Henson said she had not received a note and left
the med room and she and another employee searched her desk
without success. Henson testified she had not previously or-
dered the devices and Huffman was showing them to Anderson
as Huffman had brought them to the facility to try out. Henson
ordered the flow-meters immediately and they received them
the next day. Anderson told her she was giving her a writeup
as Lerner wanted her written up because he was upset that this
product was not on hand. Henson told Anderson that she had
told Huffman that she had never received a note concerning this
device. After the meeting Huffman approached Henson and
told her that she was sorry she had to say something but that
she had no choice. There had been no other incidents in the 13
years that she had been restocking supplies where an item that
was needed, had not been ordered or was out of stock.
With respect to the final writeup and termination, this inci-
dent emanated from a task for which Henson had volunteered
to help with the paperwork for new residents. New residents
required paperwork and the taking of their picture for inclusion
on their identification cards with the residents’ names, doctors,
and personal information being used by the Social Services
Department at the time. She offered to assist with this by tak-
ing the photographs of the new residents in order to assist that
department which was overbooked. Henson took this task over
within 8 months to a year prior to her termination. She was not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD160
given a timeframe for taking the photographs. She always took
the pictures when the residents came in unless the residents or
their family asked her to wait until they were settled, possibly
the next day. She was notified that new residents had come in
by Barb Lopez of the Social Services Department. The last
discipline she received is actually a termination form issued on
May 10, 2007. It shows that on 3 days, May 2, 3, and 4, 2007,
three residents came in. The first resident went to the hospital
the next day and she was unable to get the resident’s picture.
That resident came in on the morning of May 2, and was sent to
the hospital the afternoon of May 3. The second resident came
in on May 3. Henson took her picture but the resident’s daugh-
ter asked her to wait until she had her hair done the next day
and Henson agreed. This was not the first time a resident had
asked her to delay their photograph. This had happened a few
times. The third resident came in on May 4. On May 10, 2007,
Henson received the termination notice from Anderson in the
administrative secretary’s office in the presence of Huffman
and the secretary. Anderson told her that Lerner had come into
the facility and looked through the medical administration re-
cords (MARs) of the new residents and noted that pictures were
missing out of the new residents MARs and that he came in
again and the pictures were still missing. The MARs are a list
of medications and orders from the doctors which the nurses
write out to give them their medications. The MARs forms
contain the resident’s pictures. They are all placed in a binder
on the nurses’ medication carts and show the picture and the
medications. When Anderson gave her the disciplinary form,
Henson told Anderson that she had been busy and had to do the
transporting and other things and that she had sat behind the
secretary’s desk for 2 weeks while the secretary was on vaca-
tion and had been doing paperwork. There had been quite a
few prior occasions when she was unable to take the residents’
pictures within the first 24 hours they were there, and she had
not received any discipline on those occasions. She received
the writeup on May 10, and was scheduled to work the next
day. She showed up the next day and commenced performing
her duties. About a quarter after 9 a.m., Anderson called her
into the secretary’s office and handed her a termination notice
and said that she thought Henson had understood it was a ter-
mination. Anderson had just previously told her it was a
writeup. Henson testified there was no written policy with
respect to picking up and dropping off the doctors’ forms. She
was only told to drop off on Tuesday and to pick up on Thurs-
day, which is on the front of the envelopes for the doctors’
forms, by the former director of nursing, Marsha Yeck. There
was no written policy for the ordering of supplies. She was
taught by the former director of nursing, Anna Ford, who gave
her a list of what supplies were needed and she followed this.
There was no written policy for the taking of photographs of
the new residents.
On cross-examination by Respondent, Henson testified she
openly supported the Union. When asked, she told people she
was voting for the Union. She told Huffman she supported the
Union. At the arbitration hearing Anderson and Huffman saw
her going in to testify. She testified about a Christmas party.
Henson testified she told Huffman that she was not picking up
the doctors’ order forms in a timely fashion. When she re-
ceived the first discipline, she did not deny that she was delin-
quent in picking up the doctors’ orders. When she received the
second discipline she denied to Anderson that she was delin-
quent in obtaining the supplies. She told Anderson she did not
order the IV-flow meters because it was a new product and she
had not received a note telling her to order it. In the meeting in
the med room, Huffman said she had left the package of flow
meters on Henson’s desk with a note on it to order more.
Henson testified that this was the first time she was aware she
needed to order them.
Administrator Marna Anderson testified regarding the warn-
ing and discharge of Cheryl Henson as follows: She never
observed Henson promoting the Union. She never received any
reports that Henson was supporting the Union. She was not
aware in any way of Henson’s position regarding the Union.
Nor did she suspect that Henson supported the Union. At the
beginning of the union campaign, she was involved in provid-
ing a list of employees eligible to vote in the election. The
Union objected to several people who were on the list and con-
tended they should not be included in the unit. Cheryl Henson
was on the list. The Union did not want Henson on the list.
Anderson contended she should be eligible to be on the list.
Anderson testified she “fought hard for her to be on the list.”
She did so because, “Well, frankly, I didn’t think that she was a
union supporter so I fought hard for her to be on the list.”
Henson was ultimately included in the unit. The issue at the
January 17, 2007 arbitration hearing was whether Respondent
had violated the neutrality clause in the election agreement.
Anderson testified at the hearing. She gave her testimony and
then went back to work. She does not know who else testified
at the hearing. She was unaware whether Henson had testified
at the hearing when she issued the three disciplines to Henson.
She did not know who went in and out of the conference room.
She was not involved in the planning of the arbitration hearing.
Lerner and Debbie Kipp represented the facility at the hearing.
Other than her own testimony, she has no idea what went on
during the arbitration hearing. After the arbitration hearing, she
did not know whether Henson was a union supporter. She dis-
charged Henson for some major violations that occurred while
she was working at Camelot Terrace. The first incident oc-
curred when she learned from Dr. Indira Pal, who showed her
an envelope containing doctors’ correspondence and orders,
that he had signed that should have been picked up weeks ago.
The Illinois administrative code provides that all orders shall be
countersigned by the licensed prescriber within 10 calendar
days. She discussed this incident with Henson who did not
deny that she had failed to pick up the envelopes. Anderson
disciplined Henson on February 13, 2007. Anderson consid-
ered this a major offense because it affected Camelot Terrace’s
reputation in the community. She was not aware of any prior
incidents of this type engaged in by Henson. She counseled
Henson verbally for this infraction.
Anderson testified that the second incident involving Henson
was her failure to order the IV-flow meter that is used for resi-
dents who receive IV antibiotics and IV medications. Henson’s
responsibilities were to order supplies before the facility ran out
and she was to check on the inventory on a regular basis. She
was to order these supplies when the facility needed them.
CAMELOT TERRACE, INC. 161
Anderson came to the facility in 2004 and the IV-flow pumps
were being used then. There was a supply of these IV-flow
meters. When Anderson came to the facility, Henson was al-
ready ordering the IV-flow meters. She discussed this matter
with Henson and Henson did not deny that she had not ordered
the IV-flow meters. On April 25, 2007, she issued Henson a
verbal warning for not ordering the IV-flow meters. She was
never made aware that Henson had not ordered supplies prior to
this. Anderson considered the failure to order the IV-flow me-
ters a major offense because they are a piece of equipment
needed to administer medication. Huffman had given Henson
the product package and taped it to Henson’s desk and said,
please order this. Anderson made the decision to discipline
Henson on her own. Huffman did not bring the IV-flow meters
from another hospital.
The third incident occurred when it was brought to Ander-
son’s attention that there were some newly admitted residents
that did not have picture IDs on their charts. There were three
residents involved. The pictures are a patient identifier and are
necessary to prevent residents from receiving the wrong medi-
cation. Anderson issued Henson the writeup for not taking the
pictures of the residents. Henson did not deny that she had
failed to take the pictures of the three new residents and did not
offer any excuses for failing to do so. Henson did not say any-
thing to her about a family member asking her to wait for a
beauty shop appointment before taking the picture. There was
sufficient time for the pictures to have been taken of the three
residents. One of the residents went to the hospital the next
afternoon but there was 24 hours for her picture to have been
taken prior to her leaving for the hospital. Henson’s obligation
was to take the pictures within 12 hours. During her final con-
versation with Henson, Anderson told Henson that Lerner was
asking for the IV-flow meter because he wanted to take it to
another building. Lerner’s name did not come up during the
conversation regarding the photographs. Lerner did not tell
Anderson to terminate Henson for her failure to take the photo-
graphs. The nurse who was working on the floor that day
brought Anderson’s attention to the lack of the photographs in
the MARs records. Anderson did not tell Henson that Lerner
had been reviewing the MARs and had discovered the lack of
the pictures. Henson was terminated after her third major vio-
lation which occurred over a several month period. Henson
never told her that she had too many work responsibilities. Nor
did she ask to be relieved of any of her work responsibilities.
At the time that the incidents involving Henson occurred, there
were about 50 residents at the facility whereas 2 years ago there
were approximately 75 residents at the facility. She terminated
Henson on May 10, 2007, which was several months after the
election. She was not directed by any supervisor or manager to
discharge Henson and the termination had nothing to do with
any alleged support for the Union.
Anderson testified further that one of the requests for infor-
mation in this case was for documents requesting orders for IV-
flow meters from August 1, 2005, to the present (date of hear-
ing). The documents which were turned over in response to
that request reflect all IV-flow meters and show there were no
orders for IV-flow meters prior to May 4, 2007. After Huffman
left the meeting discussing this matter, Henson told Anderson
“Marna, I didn’t get anything stating that I needed to order
those supplies.” With respect to the photographs, Anderson
testified that the pictures are to be taken on admission with very
little delay time after the residents come in and get in their bed.
On cross-examination by the Charging Party, Anderson testi-
fied that she read part of the Arbitrator’s decision, including the
issue of gift cards.
Director of Nurses (DON) Julie Huffman testified she was
Cheryl Henson’s direct supervisor. She never saw Henson
promoting the Union. Henson never told her she was in favor
of the Union. She did not receive any reports that Henson sup-
ported the Union and was not aware of Henson’s position on
the Union. She was not aware that Henson had testified for the
Union in an arbitration hearing. She had no idea what went on
during the arbitration hearing and never saw a transcript of the
arbitration hearing. No one told her that Henson testified at the
arbitration hearing. She was involved in the three disciplines of
Henson. The first was regarding medical records. It was
Henson’s job to pick up signed physicians’ orders from the
physicians’ offices which she failed to do. The papers sat in the
doctors’ offices for several weeks. There is a maximum of 10
days in which the signed order must be placed back in the chart.
She had been brought into Dr. Indira Pal’s office by Anderson
to be introduced as the new director of nursing. Dr. Pal was
upset because of the failure of Henson to pick up the orders.
Huffman was involved in the disciplinary action which was
issued on February 13, 2007, and Henson was given a copy of
the discipline on the same day. The second discipline was for
Henson’s failure to order medical supplies. The facility was
running low on IV-flow meters. Henson’s job was to order
these when they are low and she did not do this so Huffman
took a packet with the label on it and wrote a note to Henson, “I
need this,” and taped it on Henson’s desk. Seventy-two hours
later, Huffman had still not received the flow-meters. She
talked to Anderson about it. Huffman always has a “stash” in
her office and so she used the last one and after 72 hours she
still did not have it so she told Henson “I need this. This is my
last one.” She thus had asked Henson on two different occa-
sions to order the flow meter. Henson was responsible for tak-
ing inventory daily and ordering the supplies needed. This
particular IV-flow meter was in use at Camelot Terrace when
Huffman started as a nurse in 2005. She did not bring it from
St. Mary’s Hospital. Anderson had to show her how to use it.
Huffman issued a verbal warning to Henson which stated,
“Verbal warning given for not ordering needed supplies for the
nurse department. IV-flow meters were not purchased despite
order from DON to do so, leaving the facility with no supply to
use.” She discussed this with Henson and Henson did not deny
that she had not ordered the IV supplies. Huffman considered
this a major offense, as the IV-flow meter is necessary to give
antibiotics and IV fluids. There are three methods of infusing
IVs. They are the drip rate, the IV pump and the IV-flow me-
ter. The facility uses the IV pump and the flow-meter. The
flow-meter is to replace the IV pump. Without this it would be
difficult to regulate on a drip and would cause medication error.
The IV-flow meter has been in the facility since Huffman came
to the facility. No one else was responsible for medication
ordering other than Henson. The third discipline of Henson
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD162
was for her failure to take pictures of new patients which are
necessary for identification purposes for the administration of
medication. She considers this a major infraction as a medica-
tion error could kill the patient. This failure had not happened
before. After this third offense, they decided to discharge
Henson. The discharge discipline stated “Residents admitted to
Camelot Terrace on 5/2 of ‘07 and 5/3 of ‘07, as of 5/10 of ‘07,
no pictures are on the medication administration records as
required for resident safety. Failure to perform job duty.”
Henson was written up on May 10. The nurse administering
the medication informed Huffman of the failure to take the
photographs. She decided to discharge Henson because
Henson had made three major errors. The decision to terminate
Henson was not motivated by Henson’s support for the Union.
Huffman did not apologize to Henson at the time of her termi-
nation. Huffman did not tell Henson that she had no choice.
Henson threw the paper and walked out.
On cross-examination by the General Counsel, Huffman tes-
tified that the new admission resident’s identification policy
and procedure was in effect in 2007. The policy states: “A
photograph of the residents will be taken and placed in the
MAR upon admission. On admission an identification bracelet
will be placed on all new residents. Identification bracelet may
be removed after seven days.” With respect to the IV, Huffman
testified that on April 24, 2007, there were no IV pumps or IV-
flow meters in the med room in the facility as all of them were
being used in the facility. General Counsel Exhibit 26 is a pink
slip dated May 4, 2007, that came with a UPS form for a reor-
der of an IV-flow meter. Huffman testified that the flow-
meters had been ordered prior to the April 24 discipline. She is
certain that the discipline was given to Henson on February 13,
2007.
Analysis
Under Wright Line, 251 NLRB 1083 (1980) enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Gen-
eral Counsel has the initial burden to establish that:
1. The employee engaged in protected concerted ac-
tivities.
2. The employer had knowledge or at least suspicion
of the employee’s protected activities.
3. The employer took adverse action against the em-
ployee.
4. A nexus or link between the protected activities and
the adverse action underlying motive.
Once these four elements have been established, the burden
shifts to the Respondent to prove, by a preponderance of the
evidence, that it took the action for a legitimate nondiscrimina-
tory business reason. In Fluor Daniel Inc., 304 NLRB 970
(1991), the Board held that once the General Counsel estab-
lishes a prima facie case that protected conduct was a motivat-
ing factor in the employer’s decision, the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct.
The aforesaid evidence demonstrates that both Crystal Lopez
and Cheryl Henson were union supporters and that Respondent
was aware of their support of the Union and their engagement
in protected concerted activities on behalf of the Union. With
respect to Lopez it is undisrupted that she was the leading em-
ployee union adherent and was instrumental in initiating the
Union’s campaign to organize the Respondent’s employees and
that Respondent was aware of the various activities she partici-
pated in such as the solicitation of union cards, her service as an
observer in the first election, her representation of her fellow
employees with the aid of union organizers regarding the em-
ployees’ concern that they were being wrongfully docked be-
cause of an erroneous timeclock, her testimony in support of
the Union in an arbitration and in a representation case before
the National Labor Relations Board. With respect to Henson,
she testified that she told others, including DON Huffman that
she was a union supporter. She was called to testify by the
Union in an arbitration hearing and her daughter, Melissa Wil-
son, was also a union supporter. The evidence further supports
a finding that the Respondent had animus toward the Union and
against Lopez and Henson because of their support of the Un-
ion.
As the General Counsel states, in his brief, the threshold is-
sue in the Lopez case is whether Lopez quit her job voluntarily
or was otherwise terminated by Respondent. I find the evi-
dence establishes that Lopez quit her job voluntarily. It is un-
disputed that Lopez threw the clipboard on which she was
charting residents’ appetites. I credit Keith’s testimony that
Lopez threw the clipboard and said, “Fuck it. I quit,” and left
the dining room. I found Keith’s version of this incident to be
credible. I note that Keith is no longer employed by Respon-
dent and there was no evidence that she has any stake in this
case. However, assuming arguendo that the testimony of Lo-
pez, Wilson, and Palko that Lopez did not use profanity and did
not say she quit, it is nonetheless true that Lopez expressed her
frustration and left the dining room and went to her van in the
parking lot. I credit the testimony of Nurse Hayes that she
signed out both Lopez and Palko for their break at 9 a.m. and
back in at 9:15 a.m. and that she personally observed both Lo-
pez and Palko leave on their break and return at those times. I
further credit Hayes that she witnessed Lopez return and write
in 9:18 a.m. over her sign out time of 9 a.m. that had been
placed there by Hayes and write in 9:30 a.m. over her sign-in
time of 9:15 a.m. that had been placed there by Hayes. I credit
the testimony of Hayes who was not otherwise involved in this
incident. I do not credit the testimony of Lopez that she could
not find the break log that day and that she punched out on the
timeclock because she could not find the break log. I also do
not credit the testimony of Palko which indicated she was un-
able to locate the break log for a portion of the day. The record
discloses that Lopez punched out on her timecard at the time-
clock at 9:19 a.m. and returned and punched back in at 9:35
a.m. I find it likely that Lopez clocked out with the intention of
quitting but during this 16 minute period went to sit in her van
and then was joined by Nurse Nelson to whom she expressed
her frustration and her intent to quit. I further find that Lopez
returned to the facility following Nurse Nelson and expressed
to DON Huffman that she thought things would get better but
that they had not. Huffman testified that she was preparing to
pick up another aide to replace Lopez and told Lopez that she
did not have time to deal with her at that time. I find that
CAMELOT TERRACE, INC. 163
Huffman accepted the resignation of Lopez at this time and was
preparing to obtain another aide to replace Lopez. I do not find
that this was to replace another aide who had quit earlier that
day as it was not until Huffman was apprised of the incident
involving Lopez that Huffman made arrangements for another
aide to take her place. I credit Huffman’s testimony that when
she returned to the facility after picking up the replacement
aide, she saw Lopez was still on the premises. She questioned
Lopez as to why she was still on the premises since she had
quit. She testified that Lopez refused to leave and became an-
gry and got in her face. Lopez is substantially larger than
Huffman. Huffman testified she just backed off and did not
make any additional efforts to cause Lopez to leave. The next
morning Huffman related to Anderson what had occurred and
Anderson told Huffman that Lopez was discharged. Lopez did
not show up on the next morning which was Monday, February
26, although she was scheduled to work on that date. Lopez
testified that she called in to the night nurse and gave her the
required 2-hour notice that she was sick and would not be in on
that Monday. Anderson testified that there was no record of
Lopez having made this call. Lopez testified that she did not
initially answer her phone on Monday, February 26, because
she was ill until she noticed that the caller was Anderson and
that she then tried to reach Anderson by telephone but Ander-
son was out. Lopez testified that when she reached Anderson,
Anderson said, “Crystal I am taking this as your resignation.”
Anderson testified that when they reached each other on the
phone, Lopez said “Marna (Anderson), I did not quit.” Thus,
Anderson affirmed on Monday, February 26, that she was ac-
cepting Lopez’ resignation. On Wednesday, February 28, Lo-
pez was met at the facility by Anderson who told her she was
discharged. I find that Lopez quit her job, I find that no adverse
action was taken against Lopez. In Aluminum Industries, 343
NLRB 939, 940 fn. 11 (2004), the Board held that a finding of
adverse action is an essential element of the General Counsel’s
burden to make a prima facie case under Wright Line, 251
NLRB 1083, 1089 (1980). I have considered Di Marco Paving
& Construction, Inc., 341 NLRB 330, 333 (2004), cited by the
General Counsel in which the Board rejected the respondent’s
claim that the employee quit on the same date that he worked a
full day. However, in the instant case before me, Lopez re-
turned to work after announcing that she was quitting and after
her resignation had been accepted by Huffman who had made
arrangements for another employee to replace Lopez. I have
also considered Swardsron Painting Co., 340 NLRB 179, 180
(2003), where the employees were found to have quit as they
did not return to work following their alleged resignation. In
the instant case Lopez did not report for work on the day after
the dining room incident, and contended she had called in.
However, there was no record of her call to the night nurse to
support her testimony.
I find that Respondent violated Section 8(a)(1) and (3) of the
Act by the issuance of the three warnings to Henson and by its
discharge of Henson. The evidence supports a finding that
Respondent had knowledge of Henson’s engagement in union
and protected concerted activities by her testimony on behalf of
the Union in the arbitration hearing in January 2007. It also
supports a finding that Respondent had antiunion animus and
took adverse action against Henson by the issuance of the three
warnings to Henson and its discharge of Henson. Henson’s
testimony was protected under the Act. See Bruce Hardwood
Floors, 314 NLRB 996, 998 (1994), where an employer was
held to have violated the Act by discharging an employee for
offering to act as another employee’s witness in a grievance
matter. It is amply demonstrated in the record that Respondent
was aware of Henson’s support of the Union as Henson was
called as a witness by the Union and was questioned by Re-
spondent’s owner, Lerner. It is clear that both Anderson and
Huffman were aware of Henson’s testimony and her support of
the Union. Anderson admitted she read the arbitrator’s deci-
sion including a description of Henson’s testimony. I credit
Henson that both Anderson and Huffman were in the hallway
outside of the room where the arbitration was held and saw her
go into the room. Anderson admitted she read about the gift
card issue and its early distribution which Henson had testified
about and which was supportive of the rerun election that was
ordered by the arbitrator. Anderson admitted she was aware
that Henson’s daughter, Melissa Wilson, testified at the arbitra-
tion hearing. I find Respondent’s antiunion animus has been
established as discussed supra in this decision. The timing of
the adverse actions of the issuance of the warnings and the
discharge of Henson establishes the discriminatory motive on
the part of the Respondent. The first discipline on February 13,
2007, was approximately a week after the arbitrator ordered the
rerun election. There were no prior instances of discipline is-
sued to Henson in her over 17 years of employment.
The issuance of the first discipline was for her failure to pick
up signed doctors’ orders and other documents as required in-
cluding a State of Illinois requirement that the signed doctors
orders be placed in the residents’ file within 10 days of an order
given telephonically. Henson testified she had become busy
and was not aware of the 10-day requirement and had never
been told of this prior to the issuance of the discipline. I credit
this unrebutted testimony.
The issuance of the second discipline was for failure to order
IV-flow meters which regulate the flow of intravenous medica-
tion without the necessity of having an IV pump to control the
medication. Henson testified she did not order the flow meters
because she had never ordered them prior to this incident when
she was called into the medical supply room on April 24, 2007,
in the presence of Lerner, Anderson, and Huffman and was
questioned as to where the IV-flow meters were and whether
she had ordered them. She said she did not know they were
needed, Huffman then stated she had written on the package of
a flow-meter that she needed it and placed it on Henson’s desk.
Henson checked her desk but was unable to find the note. On
that afternoon Henson was called into Anderson’s office and
given a “verbal warning,” Henson refused to sign the warning.
Anderson told her that Lerner had ordered that she be given the
writeup because he was upset that the product was not there. In
her testimony in answer to an inquiry from Lerner, Anderson
testified that in her final conversation with Henson she told
Henson that Lerner was asking for the IV-flow meter because
he wanted to take it to another building. Thus, I find there was
no immediate need for the IV-flow meter at the time that
Henson was called into the med room and questioned about it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD164
Although both Anderson and Huffman testified that the IV-
flow meter had been in use prior to this incident, I credit
Henson’s testimony that she had never been required to order it
before. Henson’s testimony is supported by the lack of orders
for IV-flow meters in the past 2 years and Respondent’s docu-
ments, subpoenaed by the General Counsel produced only one
order dated May 4, 2007 which was after the events herein.
Anderson confirmed in her testimony that the May 4, 2007,
order was the only order for IV-flow meters in the last 2 years.
It is clear that Lerner wanted to take this new product to an-
other of his facilities and that he ordered Anderson to discipline
Henson when she was unable to find the IV-flow meters.
The third and final discipline culminating in Henson’s dis-
charge was for Henson’s failure to timely photograph new resi-
dents on three occasions and to place their photographs in their
medical assessment records of the three new residents on May
2, 3, and 4, 2007. I find that Respondent seized on these inci-
dents to justify the issuance of this additional warning and dis-
charge of Henson. I find unpersuasive Respondent’s reliance
on its written policy for “New Admission Resident Identifica-
tion” which provides that a photograph of a resident must be
taken “upon admission” as there is no specific timeframe set-
ting out the meaning of “upon admission.” The new admission
policy also requires an identification bracelet be placed on all
new residents and may be removed after 7 days. These brace-
lets provide identification of a resident for any and all purposes.
It follows that if these alleged failures to timely photograph the
residents were so serious as to warrant discipline including
discharge, Henson would not have been permitted to return to
work the next day only to then be advised that she was termi-
nated. In summary, I find that, General Counsel has established
a prima facie case that each of the three warnings and the dis-
charge of Henson were contrived and motivated by Respon-
dent’s animus against the Union and Henson because of her
support of the Union in her testimony at the arbitration hear-
ings. I do not credit Respondent’s explanations for its actions
and find that Respondent has failed to rebut the prima facie
case. I find that the Respondent’s imposition of the warnings
and discharge on the basis of alleged failures of performance
was pretextual, Limestone Apparel Corp., 255 NLRB 722
(1981), enfd. 705 F.2d 799 (6th Cir. 1982); Bardaville Electric,
Inc., 309 NLRB 337 (1992). Assuming arguendo that a Wright
Line analysis is necessary, I would find that the Respondent
failed to rebut the prima facie case established by the General
Counsel. See Consolidated Bus Transit, Inc., 350 NLRB 1064.
1065–1066 (2007), where the Board stated that under the
Wright Line test, “the General Counsel must prove by a pre-
ponderance of the evidence that union animus was a substantial
or motivating factor in the adverse employment action. The
elements commonly required to support such a showing are
union or protected activity by the employee, employer knowl-
edge of that activity and union animus on the part of the em-
ployer.” If the General Counsel makes the required initial
showing, “the burden then shifts to the employer, to prove, as
an affirmative defense, that it would have taken the same action
even in the absence of the employee’s union activity,” Manno
Electric, 321 NLRB 278, 289 fn. 12 (1996).
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent did not violate Section 8(a)(1) and (3) of the
Act with suspect to Crystal Lopez.
4. Respondent violated Section 8(a)(1) and (3) of the Act by
its issuance of the warnings to Cheryl Henson and its discharge
of Cheryl Henson.
5. The aforesaid actions taken against Henson, in connection
with Respondent’s status as an employer, affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in the above
violations of the Act, it shall be recommended that Respondent
cease and desist therefrom and take certain affirmative actions,
designed to effectuate the policies and purposes of the Act and
post the appropriate notice. It is recommended Respondent
rescind and expunge from its files the discharge and warnings
issued to Cheryl Henson and offer her immediate reinstatement
to her position or to a substantially equivalent one if her prior
position no longer exists. She shall be made whole for any loss
of backpay and benefits sustained as a result of the Respon-
dent’s unfair labor practices. The backpay amount shall be
computed in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987), at the “short term
federal rate” for the underpayment of taxes as set out in the
1986 amendment to 26 U.S.C. § 6621.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended1
ORDER
The Respondent, Camelot Terrace, Inc., Streator, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Issuing unlawful warnings to its employees because of
their engagement in protected concerted activities.
(b) Discharging its employees because of their engagement
in protected concerted activities.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative actions necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order rescind the
warnings issued against Cheryl Henson and the discharge of
Henson and offer her full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent job with-
out prejudice to her seniority or any other rights or privileges

1 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
CAMELOT TERRACE, INC. 165
previously enjoyed, and expunge from its files the unlawful
warnings and discharge.
(b) Make whole Henson for any loss of earnings and other
benefits suffered as a result of the discrimination against her
with interest.
(c) 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 re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of the records if stored in
electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post copies
of the attached notice marked “Appendix”2 at its facility in
Streator, Illinois. Copies of the notice, on forms provided by
the Regional Director for Region 13, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
days in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since September 2006.
(e) 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 the
Respondent has taken to comply.
The complaint is dismissed with respect to Crystal Lopez.

2 If this Order is enforced by a judgment of the 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.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY THE 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
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 issue our employees warnings because of their
engagement in union and other protected concerted activities.
WE WILL NOT discharge our employees because of their en-
gagement in union and other protected concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights
under Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
rescind the unlawful warnings and discharge of Cheryl Henson
and offer her reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent job, without preju-
dice to her seniority or any other rights or privileges previously
enjoyed.
WE WILL make her whole for any loss of earnings and other
benefits as a result of the discrimination against her, with inter-
est.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful warnings
and the discharge, and WE WILL, within 3 days thereafter, notify
her in writing that this has been done and that the unlawful
actions will not be used against her in any way.
CAMELOT TERRACE, INC.