Lincoln Park Subacute & Rehab Center

National Labor Relations Board - Board Decisions

Apr 26, 2001

333 N.L.R.B. 1137 (N.L.R.B. 2001)

LINCOLN PARK SUBACUTE & REHAB CENTER 1137
Lincoln Park Subacute and Rehab Center, Inc., One,
and Lincoln Park Subacute and Rehab Center,
Inc., Two and District 1199J, National Union of
Hospital & Healthcare Employees, AFSCME,
AFL–CIO. Cases 22–CA–22284, 22–CA–22528,
22–CA–22643, and 22–RC–11416
April 26, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On July 30, 1999, Administrative Law Judge Raymond
P. Green issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief, cross-exceptions, and a
brief in support of cross-exceptions. The Respondent
filed answering and reply briefs. The Charging Party
filed a letter in opposition to Respondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this matter to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
only to the extent consistent with this Decision, and to
adopt the recommended Order, as modified.
The Respondent has excepted to the judge’s finding
that it violated Section 8(a)(3) and (1) of the Act by issu-
ing a warning to porter David Aldorando on August 13,
1997, and by relying in part on that warning when dis-
charging Aldorando on January 11, 1998. The General
Counsel has excepted to the judge’s finding that the Re-
spondent did not violate Section 8(a)(3) and (1) when it
discharged certified nurse’s assistant Dorothy Baines on
February 11, 1998. As explained below, we find that a
remand to the judge for further findings and conclusions
is necessary for resolution of these issues.
With respect to Aldorando, it is undisputed that
Pacheco gave him a warning because he allegedly failed
to advise his department head that he would not be able
to work on the day of a Board representation election
because he was going to serve as an observer for the Un-
ion. Aldorando testified that he did give notice to super-
visor Tony Pacheco. Without resolving the credibility
issue raised by Aldorando’s testimony, the judge found
that the warning to Aldorando was unlawful on its face.
We disagree.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In affirming the judge’s conclusion that the Respondent’s interro-
gation of David Aldorando was unlawful, we note that Aldorando’s
credited testimony shows that Supervisor Tony Pacheco interrogated
him both about his own well-known union activity and about the union
activities of other employees.
The warning was not discriminatory on its face merely
because it referred to union activity as the undisputed
reason why Aldorando was not present at work. An em-
ployer can lawfully maintain and enforce a neutral rule
requiring advance notice of all employee absences, even
those absences that are due to participation in protected
concerted activity. The real question posed by Al-
dorando’s warning is whether the Respondent discrimi-
nated in its specific application of an existing rule to him.
The Respondent contends that it is company policy for
an employee to advise his/her supervisor before a shift if
they will not be working and that Aldorando failed to do
so. The General Counsel, however, contends that Al-
dorando did, in fact, give such notice. In order to resolve
this issue, the above-described conflict in the record must
be addressed. Accordingly, we will remand this issue to
the judge to make the appropriate credibility findings.
Since we are remanding the warning issue, we also
find that a remand of the Aldorando discharge issue is
necessary given the judge’s finding that the discharge
was unlawful because it was based in part on that warn-
ing. If the judge determines on remand that the Respon-
dent lawfully warned Aldorando in August 1997, then
there is no basis for finding the discharge unlawful.
Even if the judge reaffirms his finding that the warning
violated Section 8(a)(3), however, further findings and
conclusions are necessary with respect to the discharge.
In September and November 1997, and again in January
1998, Aldorando received written disciplinary warnings
for poor work performance. The judge found that the
Respondent lawfully issued each of these warnings, and
there are no exceptions to his dismissal of the complaint
allegations based on these actions. The Respondent ter-
minated Aldorando on January 11, 1998, after his last
warning. The termination notice referred to “substandard
work performance issues, in addition to other discipli-
nary problems,” (emphasis added) as the basis for the
discharge.
In his decision, the judge stated that an inference can
be drawn that “other disciplinary problems” referred to
the August 1997 warning for absenteeism when serving
as an election observer. He further stated that, “if that is
the case,” he would conclude that at least part of the Re-
spondent’s motivation for discharging Aldorando was the
August 1997 warning, “notwithstanding the assertion by
Pacheco that this warning played no part in the discharge
decision.”
333 NLRB No. 136
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1138
Ultimately, the judge construed “other disciplinary
problems” as being the August 1997 warning. However,
in doing so, he made no credibility finding as to
Pacheco’s contrary testimony mentioned above.
We believe it is necessary for the judge to make a
credibility finding about Pacheco’s testimony before re-
solving this issue. If Pacheco’s testimony is credited, it
would conflict with a finding that the subject language
referred, at least in part, to the August 1997 warning. On
the other hand, if Pacheco’s testimony is discredited,
there would be no such conflict. Accordingly, we find
that a remand is necessary for the judge to make a credi-
bility finding regarding this testimony by Pacheco.3
Finally, with respect to the discharge of Baines, we
find that the judge’s decision does not manifest full con-
sideration of the record evidence and does not provide a
sufficiently specific articulation of his Wright Line4
analysis. This analysis should include an explanation of
whether and how the General Counsel has satisfied the
initial burden of persuading that antiunion sentiment, or
animus, was a substantial or motivating factor, and if the
General Counsel has met this burden, whether and how
the Respondent has shown (or failed to show) that it
would have discharged Baines even in the absence of her
union activity. We must therefore also remand this issue
for the judge to make the appropriate analysis.
In sustaining the Union’s election objections and set-
ting aside the election results, the judge relied on the
unfair labor practice findings that are subject to our re-
mand. We shall therefore also remand Case 22–RC–
11416 to the judge for further consideration in light of
his supplemental findings and conclusion on the related
unfair labor practice issues.
None of the remaining issues are implicated by the is-
sues remanded for further consideration and there is no
reason to delay the resolution of those issues pending the
outcome of the limited remand we are ordering. Accord-
ingly, having considered the remaining exceptions and
found them without merit, we have decided it is appro-
priate to issue a final Order with respect to those viola-

3 If the judge determines on remand that the warning was unlawful
and that the discharge was in fact based in part on that unlawful warn-
ing, then the discharge would be unlawful as well, unless the Respon-
dent has satisfied its Wright Line burden of showing that the discharge
would have occurred even in the absence of the unlawful warning. See,
e.g., E-Z Recycling, 331 NLRB 950, 952 (2000).
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). See also Manno Electric, 321
NLRB 280 fn. 12 (1995).
tions found by the judge that have not been remanded for
further consideration.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent, Lincoln
Park Subacute and Rehab Center Inc., One, and Lincoln
Park Subacute and Rehab Center Inc., Two, Lincoln
Park, New Jersey, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Delete paragraphs 1(a) and 2(a)–(c) and reletter sub-
sequent paragraphs accordingly.
2. Delete the final paragraph of the Order, which be-
gins “IT IS FURTHER ORDERED” and add the fol-
lowing:
“IT IS FURTHER ORDERED that the issues of
whether the Respondent violated Section 8(a)(3) and (1)
of the Act by warning and discharging employee Al-
dorando (Case 22–CA–22528) and by discharging em-
ployee Baines (Case 22–CA–22643), and whether there
was objectionable conduct that warrants setting aside the
results of the representation election held on August 8,
1997 (Case 22–RC–11416) are severed from the rest of
the proceeding and remanded to the administrative law
judge for appropriate action as noted above.
“IT IS FURTHER ORDERED that the administrative
law judge shall prepare a supplemental decision setting
forth credibility resolutions, findings of fact, conclusions
of law, and a recommended Order, as appropriate on
remand. Copies of the supplemental decision shall be
served on the parties, after which the provisions of Sec-
tion 102.46 of the Board’s Rules and Regulations shall
be applicable. ”
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
5 We note that there are no exceptions to the judge’s dismissal of
several allegations of 8(a)(1) violations and of the allegation that the
discharge of Christine Monroy violated Sec. 8(a)(3).
LINCOLN PARK SUBACUTE & REHAB CENTER 1139
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT interrogate our employees about their
membership in or support of any labor organization, or
about their knowledge of the union activities of other
employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
LINCOLN PARK SUBACUTE AND REHAB
CENTER INC.

Marguerite R. Greenfield, Esq., for the General Counsel.
Richard M. Howard, Esq. and Joseph Matza Esq., for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was tried in Newark, New Jersey, on March 22, 23, and
May 5, 1999.
The petition in Case 22–RC–11416 was filed on June 13,
1997, and the first election was held on August 8, 1997. The
unit consisted of about 600 employees and challenges were
determinative. The employer filed objections to the election
and on October 6 to 24, the Regional Office conducted a hear-
ing. On November 6, 1997, the Region issued a report on chal-
lenges which resulted in the Union obtaining a majority of the
valid votes counted. Nevertheless, on December 19, 1997, the
hearing officer issued a report on objections and pursuant to an
order issued by the Board on February 25, 1998, the election
was set aside.
A notice of second election was issued by the Acting Re-
gional Director on March 5, 1998, and a second election was
conducted on April 19, 1998. The outcome of this second elec-
tion was that a majority of the valid votes were cast against
representation. Nevertheless, the Union, on April 24, 1998,
filed timely objections to the second election and those allega-
tions were consolidated with the allegations of the instant com-
plaint, insofar as conduct which was alleged to have occurred
during the period from August 8, 1997, the date of the first
election, through April 19, 1998, the date of the second elec-
tion.1
The charge and amended charges in Case 22–CA–22284
were filed on September 23, 1997, July 29, August 17 and 18,
1998. The charge and amended charges in Case 22–CA–22528
were filed on February 12, April 15, August 17 and 18, 1998.

1 Previously in 1993, another Union had filed a petition for an elec-
tion. Thus, by 1998, both the employees and management of the Re-
spondent had obtained a lot of experience with elections and election
campaigns.
The charge and amended charges in Case 22–CA–22643 were
filed on April 16, and August 18, 1998. A consolidated com-
plaint was issued on August 20, 1998, and alleged as follows:
1. That in the summer of 1997, the Respondent by Sonia
Velmonte and Myrna Calcagni, interrogated employees about
their union activities. (No evidence was presented as to this
allegation.)
2. That at various times from June 20, 1997, to January 20,
1998, the Respondent by Remy Aspril interrogated employees
about their union activities.
3. That on or about July 22, 1997, the Respondent by Susan
Fiesler asked employees to engage in surveillance of union
activities.
4. That on or about July 22, and in August 1997, the Re-
spondent, by Antonio Pacheco and Daisy Tavarez interrogated
employees about their union activities.
5. That in or about an unknown date in April 1998, the Re-
spondent by Elaine O’Keefe told employees that it would be
futile to support the Union.
6. That the Respondent, for discriminatory reasons issued
disciplinary warnings to Cristina Monroy on July 21 and 24,
and September 9, 1997, and thereafter discharged her on Sep-
tember 10, 1997.
7. That on September 13, 1997, the Respondent for discrimi-
natory reasons, issued a written warning to David Aldorando
and thereafter discharged him on January 1, 1998.
8. That on or about February 17, 1998, the Respondent for
discriminatory reasons, discharged Dorothy Baines.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The parties agree and I find that the company is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent operates a nursing home which employs
over 600 people in various categories. As noted above, the last
election was the third held within a 5-year period and both
management and employees had considerable experience with
this type of event.
A. Discharge of Christine Monroy
There are four social workers employed at the facility who
report to Sue Fiesler, the assistant administrator. Monroy be-
gan her employment in January 1997 and was discharged on
September 10, 1997.
When the Union first filed its petition in June 1997, there
was a question as to whether the social workers would be in-
cluded in the voting unit. But eventually they were and they
voted.
Monroy’s first evaluation was dated June 30, 1997, and was
given to her on July 4. This was a favorable review albeit, it
was noted that she was coming in late. At that time, Monroy
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1140
states that she was vaguely aware of union talk at the facility,
but was not involved.
According to Monroy, in about June 1997, she questioned
the employer about whether she was a salaried or hourly paid
employee. She states that in July 1997, she had a problem with
her check in that she had been docked for coming in late and
that she contacted the State wage-hour department to ascertain
if she should be classified as hourly or salaried. According to
Monroy, she was persistent and had further conversations about
this issue with Fiesler on July 23, 25, 29, and in August 1997.
As far as I can tell, Monroy’s position was that if she was a
salaried employee she shouldn’t be docked for lateness; but that
if she was an hourly paid employee, she should be paid over-
time for any time she spent after her normal schedule. This is of
course, not an unreasonable position, but was an issue that af-
fected her personally, was not raised by her in concert with the
other social workers, and was the issue that she made her cause.
Monroy testified that at one point before the election sched-
uled for August 8, 1997, Fiesler met with the social workers
and asked if they had heard anything on the floors from the
other workers. They said that they hadn’t. According to Mon-
roy, she was uncomfortable because she felt like she was being
asked “to sort of spy and report back to Fiesler what was being
said on the floors.“ This casual comment, which was denied by
Fiesler and another social worker, Alyse Jasinski, does not, in
my opinion, amount to an illegal inducement to engage in sur-
veillance and cannot, even if credited, support this allegation of
the complaint.
According to Monroy, the employer’s owner, CarlaTurco,
held a meeting with employees in late July or early August
1997 at which she stated, in substance, that the Teamsters had
tried to come in to one of her other facilities and that compared
to the Teamsters, Local 1199, were nothing but peons and that
she was not going to have 1199 break her. Monroy testified
that immediately after the meeting, she spoke to Colleen
Wheeler, the personnel director, and told her that she was of-
fended by Turco’s remarks which she felt were condescending
and threatening to the employees, many of whom were humble
immigrants who had families and were trying to earn a living.
Wheeler testified that she did not recall any such conversation
with Monroy and did not discuss the Union with her.
Monroy testified that at another preelection meeting, held by
O’Keefe, the social workers left the meeting asserting that they
had other things to do. She also testified that at a third preelec-
tion meeting O’Keefe told the employees that the company had
plenty of job applications if the Union was voted in and decided
to strike. She states that the employees were invited to look at
the applications in a box placed in the room. According to
Monroy, she told Wheeler that she thought that O’Keefe’s re-
marks were a violation of confidentiality regarding employee
applications.
The point of Monroy’s testimony regarding the three meet-
ings, is I believe, to show that although Monroy was not active
in support of the Union, the Respondent’s management may
have thought that she was and made decisions affecting Mon-
roy’s employment accordingly.
On July 21, 1997, Fiesler gave a verbal counseling to Mon-
roy which was documented as follows:

As per our conversation July 18, 1997, documentation
must be in the medical record unless due to a confidential
nature is placed in a file in the Social Services office. All
documentation must be current.
If any post charting is done, the date the documenta-
tion is written must be used.
The facility adheres to strict regulations and anticipates
that the employees will as well.

The above counseling involved a patient suffering from de-
mentia who had claimed that she was slapped by another em-
ployee and whose claim was being investigated by the em-
ployer’s ombudsman. In this connection, Monroy was asked
for any documentation that she had regarding conversations
about the patient’s dementia with the granddaughter. The evi-
dence shows that although Monroy claimed that she had docu-
mentation of a conversation on July 16, 1997, she did not, and
went down to her office to create it.
On July 24, 1997, Monroy and the other three social workers
all received warnings for eating lunch together after having
previously been told that at least one should be on duty at all
times. Monroy concedes that she and the others ignored the
earlier order. The warning read:

The first infraction is that all 4 social service employ-
ees were off duty at the same time. The 2nd and more se-
rious infraction involves the direct contravention of an or-
der of the Assistant Administrator.

On or about September 8, 1997, Judy Kaiser, a patient’s rela-
tive, came for a visit and discovered that the patient was no
longer in her room. Fearing that her relative was dead, Kaiser
made inquiries and found out that the patient had been moved
to another room without the legally required permission having
been sought and obtained from her as the responsible party.
She complained to Remy Aspril, director of nursing who in
turn, notified Fiesler. When Fiesler asked Monroy, whose re-
sponsibility it was to obtain permission for the move, Monroy
claimed that she had tried unsuccessfully to contact the respon-
sible party for a couple of days. Fiesler credibly testified that
she then contacted Kaiser who said that she had an answering
machine at home and work and that no one tried to contact her.
While all of that was going on, Monroy was given another
warning on September 9, 1997, which stated inter alia; “Tardi-
ness and failure to ask permission for overtime will no longer
be tolerated. Failure to show immediate improvement shall
result in further disciplinary action up to and including termina-
tion.”
On September 10, 1997, Monroy was told by Fiesler that she
was discharged.
There are three possible theories regarding the motivation for
Monroy’s discharge. Of these, the assertion that she was dis-
charged for union activity is the least probable.
The fact is that Monroy did not involve herself in any union
activity of any kind. To the extent that she had issues about
which she complained to management, these were related to her
personally and dealt with whether or not she was covered by
the overtime provisions of the Fair Labor Standards Act. While
such complaints may well have been legitimate, they did not
LINCOLN PARK SUBACUTE & REHAB CENTER 1141
constitute union activity or concerted activity protected by Sec-
tion 7 of the Act.
The employer presented evidence to show that prior to her
discharge, Monroy (along with the other social workers), re-
ceived a deserved warning regarding their lunch practices. The
employer also presented convincing evidence that Monroy did
not carry out her recordkeeping functions in a timely or accu-
rate fashion. Finally, the employer presented convincing evi-
dence that Monroy had failed to notify and obtain approval
from a family member before a patient was moved from one
room to another. Given the series of incidents involving Mon-
roy during the relatively short period of time that she was em-
ployed, it is my opinion that the employer has demonstrated
that its reason for discharging her were devoid of any anti-
union motivation. Accordingly, I shall recommend that this
allegation of the complaint be dismissed.
B. David Aldorando
Aldorando was employed as a porter whose job consisted of
cleaning up resident’s rooms. His supervisor was Tony
Pacheco. He was active for the Union from the start of the
Union’s campaign and indeed had been an active and open
supporter for a different union in a previous election campaign
in 1994.
The employer concedes that its managers were aware that
Aldorando was an active union supporter. And Aldorando
testified that at a meeting before the first election, he directly
challenged statements made by O’Keefe about the Union, stat-
ing that they were lies and that he was organizing for the Un-
ion. His position in favor of the Union was clearly well known
among employees and supervisors alike.
Aldorando testified that on about three occasions before the
first election (held August 8, 1997), his supervisor Antonio
Pacheco asked him about the Union and if he was organizing
for the Union. Aldorando asserts that he told Pacheco that he
didn’t know who was involved. This was denied by Pacheco
and the Respondent argues that it was not necessary for
Pacheco to question Aldorando about the Union, because Al-
dorando’s feelings were openly expressed and well known. In
this instance I shall credit Aldorando and conclude that Pacheco
interrogated Aldorando about the union activities of other em-
ployees.
There was also one other employee, Michael Pierre, who tes-
tified that before the first election, Remy Aspril asked him what
he thought of the Union to which he responded that he thought
that a union would be good. Here too, I shall credit Pierre, who
was a disinterested witness on a very limited point.
Prior to the first election, Aldorando was designated by the
Union to be one of its observers and notice to this effect was
sent to the employer at least 2 days before the election. He did
in fact act as an observer and on August 13, 1997, Aldorando
received a warning because he allegedly failed to advise his
department head that he would not be able to work on the elec-
tion day because he was designated to be one of the Union’s
observers. In my opinion, this warning, on its face, was a
violation of Section 8(a)(1) of the Act.
On September 19, 1997, Aldorando received a warning from
Antonio Pacheco for failing to completely clean his assigned
rooms. This stated:

Failure to follow instructions. Today 9/19/97, an inspection
was made on your wing. The inspection clearly shows that
you have not been carrying out your responsibilities as you
should be. Underneath the majority of all the beds need dust
mopping and mopping. Closet tracks and floors have not been
swept or mopped. Window curtains found to be missing
hooks causing the curtains to hang inappropriately. Please be
advised that failure on your behalf to correct these discrepan-
cies, will lead to further disciplinary action to include possible
suspension and/or termination of employment.

On November 28, 1997, Pacheco issued a second warning to
Aldorando. This warning stated:

On 11/26/97 an inspection was done on your wing . . . and all
your closet floors with the exception of room 203 and 201
were found dirty. Please be advised that the quality of your
work must improve. You have become inconsistent with
your work performance. Please be advised that a failure on
your behalf to correct this discrepancy will result in further
disciplinary action.

On or about January 9, 1998, Antonio Pacheco issued a third
warning to Aldorando which stated:

Today 1/9/98 an inspection was made on your wing and the
following discrepancies were noted. 8 rooms had the cubicles
[curtains] off the hooks. We found 7 rooms where the floors
had not been properly swept and mopped. And we also found
5 closets to be dusty. This is the 3rd time we have had prob-
lems with your wing. This type of work performance on your
behalf can no longer be tolerated. Be advised that effective
1/12/97 you are hereby suspended pending an investigation.

Thereafter, the Respondent by a notice of termination dated
January 11, 1998, advised Aldorando that he was being dis-
charged. This states:

After a thorough investigation regarding substandard work
performance issues, in addition to other disciplinary prob-
lems, it is the decision of the facility to terminate your em-
ployment with Lincoln Park.effective January 16, 1998.
[Emphasis added by me.]

Except as to the inspection of January 9, 1998, Aldorando
does not dispute the facts set forth in the warnings. His expla-
nation is that patients in the rooms assigned to him have ob-
jected to him cleaning under their beds or in their closets and
therefore, pursuant to the employer’s policy, he left those areas
alone. As far as the curtains, Aldorando asserts that this was
not his job.
Regarding the January 9 warning, Aldorando states that he
told Pacheco that he did in fact clean the rooms and that it was
the nurses who sometimes pulled the curtains off the tracks.
The credible evidence is that for a period of time, Aldorando
did not fully clean the rooms assigned to him which had been
discovered by Pacheco on inspections. Aldorando’s excuse is
that the patients refused to allow him to do his job and in this
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1142
respect, Pacheco acknowledged that from time to time, resi-
dents do object and that the porter in such a case is not sup-
posed to clean the area; instead reporting the incident to him
and having social services try to handle the situation.
It would be one thing, if there had been one or two residents
who objected to Aldorando’s cleaning. But it seems from this
record that Aldorando, at times, was not cleaning most of the
rooms assigned to him. His testimony was that most of the
residents on his wing made objections to him cleaning in their
closets or under their beds and that he complied with their de-
sires. He also testified that he told Pacheco of this but Pacheco
testified that this was not so. I must say that it seems odd to me
and highly improbable that the majority of the residents in a
given area would object to having their rooms fully cleaned or
that the employer would allow that situation to continue for an
extended period of time. (Especially in a nursing home where
infections can spread.)
While I find that Aldorando truthfully asserted that there are
times when porters will abstain from cleaning portions of a
room when a patient objects, it stretches credulity to believe
that most of the patients in the rooms to which he was assigned,
refused to allow him to clean the spaces that needed to be
cleaned. Cleaning the rooms was Aldorando’s job. And he
admits that as to most of the rooms assigned to him, there were
occasions when he did not do his job. Accordingly, I find that
the September and November 1997 and the January 9, 1998
warnings were properly issued and did not violate the Act.
If Aldorando had not received the warning in August 1997 in
relation to his acting as a union election observer, I would have
little hesitation in dismissing the 8(a)(3) allegations regarding
his discharge notwithstanding the employer’s knowledge that
Aldorando was a union activist.
The August 1997 warning does, however, give me pause as
it indicates, on its face, that Pacheco and the Respondent were
willing to retaliate against Aldorando because of his union ac-
tivity. Also, the termination notice states that he was being
fired because of his substandard work performance in addition
to other disciplinary problems. An inference therefore can be
drawn that Aldorando’s other disciplinary problems refer to the
warning that was issued to him back in August 1997 and which
was never withdrawn. And if that is the case, and notwithstand-
ing the assertion by Pacheco that this warning played no part in
the discharge decision, then I would conclude that at least part
of the Respondent’s motivation for Aldorando’s discharge was
the fact that he had received this earlier warning which was
based on his union activity.
Under Wright Line, 251 NLRB l083 (l980), enfd. 622 F.2d.
899 (1st Cir. l98l), cert. denied 455 U.S. 989 (1982), once the
General Counsel has established a prima facie showing of
unlawful motivation, the burden is shifted to the Respondent to
establish that it would have laid off or discharged the employee
for good cause despite his other union or protected activities. In
the present case, the termination notice indicates, on its face,
that Aldorando’s work performance problems were not the only
reason that he was discharged. In fact, a fair reading of this
notice indicates to me that but for the “additional disciplinary
problems” which I construe as being the August 13 warning,
Aldorando would not have been fired. Therefore, I conclude
that as the General Counsel has made out a primae facie case
and that the Respondent has failed to establish that it would
have discharged Aldorando for good cause despite his union
activity, I shall conclude that his discharge violated Section
8(a)(1) & (3) of the Act.
C. The Discharge of Dorothy Baines
Dorothy Baines was employed as a certified nurse’s assistant
since 1988. She testified, and employee Ghisline Demesier
corroborated, that she was a union supporter whose activities
including passing out union cards and soliciting union support.
According to Baines, at company preelection meetings held by
Peter Bremer, he asked what a union could do that the Com-
pany could not do. Baines states that she responded that the
Union gave health and dental benefits.
Prior to the events in this case, Baines had been advised on
more than one occasion that patient’s relatives had complained
about her. However no adverse actions were ever taken against
her by the company because its internal investigations did not
prove the allegations. (In the context of a nursing home, which
operate under governmental regulations and where some of the
older residents may be suffering from dementia, accusations by
patients against staff present really difficult problems of balanc-
ing patient and employee rights. Such complaints have to be
investigated and taken both seriously and skeptically.) Not-
withstanding such complaints, Baines’ last job appraisal, dated
March 31, 1997, was very favorable in all respects.
On February 11, 1998, one of the patients assigned to Baines
(May Kuebler), suffered from bed sores and therefore was not
in diapers. Her shift was from 3 to 11 p.m. and Baines was
responsible for the care and feeding of six residents. Near the
start of her shift, she attended a half hour training session. At
around 6 p.m., when the residents are normally fed, a male
resident, to whom she was not assigned, insistently asked her to
put him to bed. Rather than ignoring him, Baines assisted this
patient before returning to her regular patients.
When Baines returned to her regular patients, she discovered
that Kuebler’s bed was soiled and that some of the fecal matter
had dried. (Indicating that this situation had lasted for some
time.) The patient’s relative who was present, complained and
Baines pulled the curtain surrounding the bed while telling the
relative that she couldn’t be in two places at the same time.
Baines heard the relative say that she was not going to let this
pass.
The patient’s relative made a complaint to the employer, as-
serting that Baines had neglected the patient and had been rude
as well. After investigating the matter, Aspril decided to dis-
charge Baines and this occurred on February 18, 1998. Aspril
asserted that this incident was the only reason that Baines was
discharged and that the decision was based on her conclusion
that Baines had neglected the patient and had been rude to the
patient’s family.
There is no question but that Baines, instead of attending to
her own assigned patients on February 11, assisted another
person who was assigned to another aide. Whatever her moti-
vation, (probably altruistic), the fact is that Ms. Kuebler was
left alone for quite a while in a bed which she had soiled and
which should have been cleaned up earlier. While Baines’
LINCOLN PARK SUBACUTE & REHAB CENTER 1143
actions at the bedside do not strike me as being particularly
rude, I could imagine that a patient’s relative, in these circum-
stances, might construe her abruptness as constituting rudeness.
In any event, there is no dispute that the patient’s relative did in
fact make a complaint about Baines which was acted on by
management.
It is difficult for me to say, given my experience and the re-
cord in this case, whether the employer’s decision to discharge
Baines for the events of February 11, 1998, were disproportion-
ate to her conduct. My gut reaction is that it was, given her 10
years of service and her prior evaluation. On the other hand,
the discharge occurred well after the first election and before
the Board ordered a second election. Thus, the discharge did
not occur at a time of union activity or electioneering.
Inasmuch as the employer has presented evidence of conduct
which supports its decision to discharge Baines for reasons
other than her union or protected activity, it is my opinion, that
on balance, the employer has met its Wright Line burden. Ac-
cordingly, I shall recommend that this allegation of the com-
plaint be dismissed.
D. Miscellaneous
Prior to the second election, Elaine O’Keefe held meetings
with groups of employees. The only two employees to testify
about these meetings were Millicent Hopper and Ghisline De-
mesier. Both described a meeting with balloons and it seems
that they are either describing the same meeting or two separate
meetings with different groups of employees held on the same
day.
Demesier testified that at the meeting she attended with
about 25 to 30 employees, O’Keefe held up a balloon labeled
Local 1199 and said that this represented the Union; that you
“don’t need or want it” and that she then popped the balloon.
However, her description of what else O’Keefe said is com-
pletely disjointed and incomprehensible.
Millicent Hopper testified that about 2 weeks before the sec-
ond election, O’Keefe addressed employees at a meeting. Her
memory of what was said was not particularly good and Hop-
per testified that O’Keefe said, “that with a union or without a
union, if we, whatever the owner want to give us, will give us.“
Hopper also testified that about 2 weeks before the second
election, Daisy Tavares asked her how she was going to vote
and said that she hoped that Hopper wouldn’t vote for the Un-
ion. She also testified that about a week before the election,
Pacheco asked her how she was going to vote and said that he
hoped that Hopper was for the company. Tavares and Pacheco
credibly denied the interrogations.
In my opinion neither the testimony of Hopper or Demesier
was sufficiently specific or reliable to warrant a finding that
O’Keefe, at a preelection meeting, told employees that select-
ing a union would be futile. Nor will I conclude that the em-
ployer, before the second election, coercively and unlawfully
interrogated Hopper about how she intended to vote in the up-
coming election.
Objections to the Election
The Union filed objections to the second election on April
24, 1998, but withdrew its Objections 1, 3, 4, and 5. It also
withdrew part of its objection 2, except to the extent that it
alleged that the employer illegally discharged Christina Mon-
roy, Dorothy Baines, and David Aldorando. In the second re-
port on objections, the Regional Director ordered a hearing on
the Union’s second objection, to the extent not withdrawn. He
also ordered a hearing on allegations that the employer unlaw-
fully disciplined these three employees; that it interrogated
employees about their union activities; that it told employees
that it would be futile to support the Union; and that it re-
quested that employees engage in surveillance of union activi-
ties. These allegations, which are coextensive with the allega-
tions of the complaint, were consolidated for hearing.
I have reached conclusions on all of these allegations which
need not be repeated. Although I have concluded that most of
the allegations lack merit, I have concluded that the employer
violated the Act by issuing a warning to Aldorando regarding
his participation in the election as an observer and that it further
violated Section 8(a)(1) and (3) of the Act by unlawfully dis-
charging him on January 11, 1998. Both of these actions oc-
curred between the time of the first and second elections.
In Novotel New York, 321 NLRB 624, 639 fn. 68 (1996), the
Board set out the rules regarding the critical period after a first
election has been set aside.

As a general rule, the period during which the Board will con-
sider conduct as objectionable (the critical period), is the pe-
riod between the filing of the petition and the date of the elec-
tion. Ideal Electric & Mfg. Co., 134 NLRB 1275 (1961). If
the election is set aside, the critical period for the second elec-
tion begins running from the date of the first election. Singer
Co., 161 NLRB 956 fn. 2 (1966).

Apart from the two actions taken against David Aldorando,
the Respondent, in the main, seems to have comported itself
with the intent to have a second election that would not be sub-
ject to being overturned. This is not always so easy given the
number of employees and supervisors involved and the length
of time that passed between the holding of the first and second
election.
The Respondent cites cases for the proposition that in certain
circumstances, unfair labor practice violations may nevertheless
be insufficient to overturn an election where it is impossible to
conclude that conduct affecting one or a few employees in a
relatively large voting unit would have affected the results of
the election. Caron International, 246 NLRB 1120 (1979);
Super Thrift Markets, 233 NLRB 409 (1977); and Coca Cola
Bottling Co., 232 NLRB 717 (1977).2
It is my opinion, however, that a disciplinary warning given
to an employee because of his participation in the first election
as an observer and his subsequent discharge, in part, because of
his union activity, is not de minimus, not inconsequential and
likely to have an affect on the other employees who are eligible
to vote. For this reason I shall recommend that the objections

2 In Caron International, supra, the Board stated that; “In resolving
the question of whether certain Employer misconduct is de minimis
with respect to affecting the results of an election, the Board takes into
consideration the number of violations, their severity, the extent of
dissemination, the size of the unit, and other relevant factors.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1144
be sustained and that the second election be set aside and a new
election held.
CONCLUSIONS OF LAW
1. By interrogating employees about their union activities,
the Respondent has violated Section 8(a)(1) of the Act.
2. By warning and discharging David Aldorando because of
his activities on behalf of District 1199J, National Union of
Hospital and Healthcare Employees, AFSME, AFL–CIO, the
Respondent has violated Section 8(a)(1) & (3) of the Act.
3. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
4. The Respondent has not violated the Act in any other
manner alleged in the complaint.
5. The Union’s objections are sustained.
6. The conduct found to be objectionable are sufficiently se-
rious to set aside the election and to hold a new one.3
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily disciplined and dis-
charged David Aldorando, it must offer him reinstatement and
make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of his discharge to date
of his reinstatement or a valid reinstatement offer, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, Lincoln Park Subacute and Rehab Center
Inc., Lincoln Park, New Jersey, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Disciplining or discharging employees because of their
membership in or activities on behalf of District 1199J, Na-
tional Union of Hospital and Healthcare Employees, AFSME,
AFL–CIO.
(b) Interrogating employees about their union activities or
the union activities or sympathies of other employees.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

3 See Playskool Mfg. Co., 140 NLRB 1417, 1419; Dal-Tex Optical
Co., 137 NLRB 1782, 1786–1787 (1962).
4 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
(a) Within 14 days from the date of this Order, offer David
Aldorando, full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed and make him whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful warning dated August 13,
1997, and to the suspension and discharge of David Aldorando
and within 3 days thereafter notify him in writing that this has
been done and that the suspension and/or discharge will not be
used against him in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Within 14 days after service by the Region, post at its fa-
cility in Lincoln Park, New Jersey, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 22, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, 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 in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since August 13, 1997.
(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.
IT IS FURTHER ORDERED that Case 22–RC–11416 be
remanded to the Regional Director and that the election held on
April 19, 1998, be set aside and that a new election be sched-
uled.

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”