Mediplex of Stamford

National Labor Relations Board - Board Decisions

Aug 2, 2001

334 N.L.R.B. 903 (N.L.R.B. 2001)

MEDIPLEX OF STAMFORD 903
Sunrise Health Care Corporation d/b/a Mediplex of
Stamford nd New England Health Care Em-
ployees Union, District 1199, AFL–CIO. Cases
34–CA–7692–1, 34–CA–7691–2, 34–CA–7709,
and 34–CA–7751
a

August 2, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On February 4, 1999, Administrative Law Judge How-
ard Edelman issued the attached decision. The General
Counsel filed exceptions and a brief in support. The Re-
spondent filed an answering brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions,3 as
modified below, and to adopt the recommended Order.
The judge dismissed the complaint allegations that Su-
pervisor Carlos Pena threatened employees with more
onerous working conditions and that various actions
taken by the Respondent against certified nursing assis-
tants (CNAs) Marie Montas, Judy Davis, Minouche Fer-
dinand, and Marie Duclos, including changes in working
hours, suspensions, and terminations, were discrimina-
tory. With respect to the actions taken against the four
CNAs, the judge concluded that the General Counsel
failed to establish knowledge or animus.
Contrary to the judge, we find that the General Coun-
sel established that the Respondent had knowledge that
Montas, Davis, Ferdinand, and Duclos supported, and
were active on behalf of, the Union. All 4 CNAs, along
with approximately 75 other union supporters, signed a
petition on the eve of the August 1996 election indicating
their support for the Union. The Respondent received a
copy of this petition and carefully reviewed the signa-
tures. Indeed, it based two of its objections to the August
1996 election on the petition. The Respondent alleged
that the Union “fraudulently published the forged signa-
tures of employees misrepresenting that they endorsed
the Union” and “fraudulently procured signatures indi-
cating the employees who supported the Union.” At the
objections hearing, Lynn Hawkins-Winslow, the Re-
spondent’s administrator, testified that she reviewed the
petition on the morning of the election and circled certain
names that she believed were forged.4 The Respondent’s
handwriting expert also testified that he believed that as
many as 11 signatures were forged. Obviously, in order
to determine which signatures were not authentic, the
Respondent had to review all the signatures on the peti-
tion, including those of Montas, Davis, Ferdinand, and
Duclos (whose signatures the Respondent did not chal-
lenge).5

1 The Respondent has filed a motion to strike portions of the General
Counsel’s brief. In light of our disposition of this case, we find it un-
necessary to pass on the Respondent’s motion.
2 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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.
3 The judge’s third conclusion of law is amended to read, “Respon-
dent did not violate Section 8(a)(1), (3), and (4) of the Act as alleged in
the complaint.”
The judge also found that the General Counsel failed
to establish antiunion animus.6 The judge acknowledged
that Board law permits the use of evidence of an em-
ployer’s election campaign in order to show animus in an
unfair labor practice trial.7 Nevertheless, he found that
such evidence could not be used by the General Counsel
in the instant case to establish animus.
The judge’s finding directly contravenes well-
established Board precedent holding that while protected
speech, such as an employer’s expression of its views or
opinions against a union, cannot be deemed a violation in
and of itself, it can nonetheless be used as background
evidence of antiunion animus on the part of the em-
ployer. See, e.g., Affiliated Foods, Inc., 328 NLRB 1107
(1999); Lampi, LCC, 327 NLRB 222 (1998), enf. denied
240 F.3d 931 (11th Cir. 2001); and Gencorp, 294 NLRB
717 fn. 1, 731 (1989). However, even assuming that the
General Counsel established animus, we find, given the
judge’s credibility based findings, that the Respondent
met its Wright Line8 burden of showing that it would
have taken the same actions even in the absence of any
union activity on the part of Montas, Duclos, Ferdinand,
4 All of the alleged actions against the CNAs occurred after the Au-
gust election. Contrary to the judge’s finding, Davis was suspended on
September 25, rather than June 25.
5 Moreover, the record establishes that both Ferdinand and Montas
attended the objections hearing on behalf of the Union. While only
Ferdinand actually testified, the Respondent’s management observed
Montas sitting at the hearing with other union witnesses.
6 The judge states that he refused to accept evidence regarding the
nature of the Respondent’s campaign in order to establish animus, but
that he permitted the General Counsel to make an offer of proof regard-
ing such evidence. The record clearly shows that the judge did not
require such an offer of proof and that he accepted such evidence in its
entirety.
7 Holo-Krome Co., 293 NLRB 594 (1989), enf. denied 907 F.2d
1343 (2d Cir. 1990).
8 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
334 NLRB No. 111
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 904
and Davis. Accordingly, on this basis, we adopt the
judge’s dismissal of the complaint allegations.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

CHAIRMAN HURTGEN, concurring.
I join my colleagues in dismissing the complaint.
I have previously stated, and I repeat here, that I do not
believe that employer statements protected by Section
8(c) of the Act may be used to establish antiunion animus
in support of an 8(a)(3) violation.1 Nonetheless, assum-
ing arguendo that the General Counsel in this case estab-
lished both that the Respondent had knowledge of the
employees’ union support and that the Respondent har-
bored antiunion animus, I would dismiss the complaint.
I find, as do my colleagues, that the Respondent met its
rebuttal burden of demonstrating that it would have taken
the same actions even in the absence of union activity.
I reach the same conclusion in regard to the 8(a)(4) al-
legations. That is, assuming arguendo, an animus against
employee use of the Board’s processes, the Respondent
would have taken the same action even if that animus
were not present.

Rick Concepcion, Esq., for the General Counsel.
Thomas R. Gibbons, Esq. (Jackson, Lewis, Schnitzler & Krup-
man), for the Respondent.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This
case was tried before me on August 18 through 21 and on De-
cember 15 and 16, 1997. On various dates in November 1996
through April 1997, New England Health Care Employees
Union, District 1199, AFL–CIO (the Union) filed unfair labor
practice charges against Sunrise Health Care Corporation, d/b/a
Mediplex of Stamford (Respondent). On June 17, 1997, a
complaint issued alleging violations of Section 8(a)(1), (3), and
(4) of the Act.
On the entire record in this case, including my observation of
the demeanor of the witnesses and a consideration of the briefs
submitted by counsels for the General Counsel and Respondent,
I make the following
FINDINGS OF FACT
Respondent is a corporation with an office and place of busi-
ness in Stamford, Connecticut, engaged in the operation of a
health care facility. Respondent annually derives gross income
exceeding $100,000 from the operation of this facility. Re-
spondent, in connection with its operation of this facility, annu-
ally purchases and receives goods valued in excess of $50,000
directly from points outside the State of Connecticut.

1 See, e.g., my statement set forth in Affiliated Foods, Inc., 328
NLRB 1107 fn. 3 (1999).
It is admitted, and I conclude, Respondent is an employer
within the meaning of Section 2(2), (6), and (7) of the Act.
It is also admitted, and I conclude, the Union is a Labor or-
ganization within the meaning of Section 2(5) of the Act.
Respondent owns a chain of nursing home facilities in Con-
necticut, including the Stamford facility.
At this facility, Respondent provides skilled nursing and
convalescent services to elderly patients and houses a total of
approximately 120 patients on its three floors. Respondent
provides rehabilitative services, known as subacute care, on
two of its three floors. This service provides either rehabilita-
tive or other specific treatment courses to short-term patients
who are subsequently discharged on receiving their respective
treatment. Of Respondent’s 120 patients, approximately 35
live at the facility on a long-term basis.
On its first floor, Respondent houses the sickest patients, ap-
proximately 30 at any time. On its second floor, Respondent
maintains about 45 beds dedicated to its rehabilitative services.
On its third floor, Respondent maintains about 45 beds which it
reserves for both short-term and long-term case patients. Pa-
tients on the third floor range in age between about 65 and over,
and suffer from physical and/or mental infirmities, including
dementia. Some of these patients can therefore pose a danger
to either themselves or others by engaging in activities that are
otherwise unsuitable for them.
Responsible for the facility’s day-to-day operations is Ad-
ministrator Lynn Hawkins-Winslow. Those reporting to Haw-
kins-Winslow include the director of nursing services (DNS),
Rosella Crowley. On each of its three floors, Respondent has a
nurse manager who is responsible on a 24-hour basis for the
overall operations of that floor, including patient care and per-
sonnel issues. Each of these nurse managers reports directly to
Crowley. The nurse manager on the first floor is Jackie Pinto
and the nurse manager on the third floor is Carlos Pena. Pena
works all of the first shift and into the second shift, usually
working until 7 p.m.
At its facility, Respondent employs approximately 150
nurses, including registered nurses (RNs), licensed practical
nurses (LPNs),. and certified nurse’s aides (CNAs), and main-
tains three shifts—7 a.m. to 3 p.m. (first shift), 3 to 11 p.m.
(second shift), and 11 p.m. to 7 a.m. (third shift) (Tr. 32, 895).
Respondent’s RNs and LPNs are not represented by a union.
Respondent schedules more nurses during the first shift than on
its other two shifts. All of Respondent’s nurses report directly
to the nurse manager on their respective floor. CNA are as-
signed to primarily provide care to approximately 9 or 10 pa-
tients per shift. Generally, CNAs remain assigned to the same
patient for approximately 1 month before being rotated to a
new set of patients.
All of Respondent’s nurses are primarily responsible for en-
suring proper patient care, and to this end, “are expected to
work together and assist one another” in providing care. CNAs
are primarily responsible for assisting RNs and LPNs. When a
patient rings for assistance on the call bell, all personnel are
responsible for answering the call bells and responding to resi-
dent requests.
During the course of their shift, CNAs are responsible for
monitoring and charting certain of a patient’s daily activities,
MEDIPLEX OF STAMFORD 905
such as the percentage of a patient’s food intake during meals,
the number of bowel movements experienced by the patient,
whether a patient has showered, has undergone daily physical
therapy or changed position while sleeping, etc. CNAs record
this activity on a patient flow sheet, adjusting their entries
throughout their shift as patients’ daily activities and conditions
occur or change.
At its facility, Respondent maintains, a progressive discipline
policy which applies to all employees. Under this policy, Re-
spondent will use a progressive discipline for most disciplinary
actions, as follows: Verbal warning, written warning, suspen-
sion (or final written warning), and termination. According to
Crowley, all terminations” must be for just cause.
Federal and State Regulations specifically protect residents
From abuse. Residents of nursing facilities are a particularly
exposed population. Their stay in such a facility is necessitated
by a short- or long-term illness or infirmity. These weaknesses
leave them vulnerable on many fronts.
These protections include the right to be free from restraints.
The right to be free from physical or mental abuse, corporal
punishment, involuntary seclusion, and any physical or chemi-
cal restraints imposed for purposes of discipline or convenience
and not required to treat the resident’s medical sympto
Ultimately, if a facility does not meet the Federal and State
standards it will suffer financially. If it is determined that a
facility is not in compliance with Federal Regulations, Medi-
care reimbursement is interrupted. Continued violations could
require closure of the facility. State agents periodically exam-
ine the health facility. This is termed a “Survey.” It involves
interviews, onsite inspections, and record analysis to determine
whether the facility is meeting the statutory and regulatory
requirements.
In addition to these statutory restrictions, Respondent main-
tains an internal policy further regulating patient abuse. The
facility’s patient abuse policy proscribes abuse generally and
also specifically forbids verbal, sexual, physical, and mental
abuse. These events are defined in the policy as follows:

“Verbal Abuse” refers to any use of oral, written or
gestured language that includes disparaging and deroga-
tory terms to residents or their families, or within their
hearing distance, to describe residents, regardless of their
age, ability to comprehend or disability.
“Physical Abuse” includes hitting, slapping, pinching,
kicking etc. It also includes controlling behavior through
corporal punishment.
“Mental Abuse” includes but is not limited to, humilia-
tion, harassment, threats of punishment or deprivation.

Respondent’s attempts to prohibit this misconduct are far
reaching. The rule against abuse is applicable to everyone re-
lated to the facility. Facility staff specifically must “refrain
from all actions that could be considered abuse, mistreatment,
and/or neglect.” The rule however, is applied beyond only
staff. According to the policy, residents of Respondent will not
be subjected to abuse by anyone, including but not limited to
facility staff, other residents, consultants, volunteer staff, family
members, friends, or other individuals.
Respondent also commits not to employ persons who have
been found to be abusers, to thoroughly investigate abuse alle-
gations, and to “ensure that further potential abuse will not
occur while the investigation is in progress.” Finally, the pol-
icy enunciates the penalties for abuse by staff, “Based on the
results of the facility’s investigation, appropriate disciplinary
action will be taken, up to and including termination of an em-
ployee.”
Respondent enforces a four-step system of progressive disci-
pline. The first step is a recorded verbal warning. The second
step is a written warning. The third step is a final written warn-
ing or disciplinary suspension. Termination is the final step in
the system.
The steps of progression are generally applicable to disci-
pline. There are circumstances however, when the step system
is not followed. In situations of severe misconduct, one or
more of the steps may not be applied.
As set forth above Federal regulations govern the facility’s
reaction to allegations of resident abuse. The facility is specifi-
cally required to “prevent further potential abuse” while it in-
vestigates abuse allegations.
Prior to June 13, 1995, the Union commenced a campaign to
organize Respondent’s service and maintenance employees.
The CNAs were included in this unit. LPNs and RNs were not
included.
On June 13, 1995, the Union filed a representation petition
seeking to represent the above unit. On June 26 of that year the
Regional Director approved a Stipulated Election Agreement
calling for an election to be conducted on August 3, among the
“unit” employees.
The Union lost the election 51 to 50. There were 2 chal-
lenged ballots. The Union filed timely objections to the elec-
tion.
A hearing on the Union’s objections was conducted on No-
vember 27 and 28, 1995. The hearing officer found, and the
Board affirmed, that Jose Charles, a low-level supervisor in the
dietary department, told approximately four kitchen employees
that he would surveil their union activity and impose discipline
on them. Charles was also found to have told employees that
receiving a raise depended on the failure of the Union’s cam-
paign. These statements found to have been made to a very
small percentage of the more than 100 voters, there was no
allegation or evidence of any impermissible conduct in the
nursing department, the department in which all of the alleged
discriminatees in the instant case worked.
The hearing officer concluded that Charles’ statements to the
employees, set forth above, were made pursuant to a manage-
ment meeting of all managers about a week before the election.
At this meeting Respondent’s then labor relations consultant,
Davey James, suggested that Respondent get rid of the active
union supporters. The other objections were set aside. In this
regard the hearing officer found that Respondent otherwise
conducted itself appropriately during the union organizing
campaign. Respondent thereafter terminated its relationship
with James and subsequently hired its present counsel Thomas
Gibbons, a member of the the firm Jackson, Lewis, Schnitzler
& Krupman, a specialized law firm engaged in labor law.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 906
A second election was ordered on July 19, 1996. On August
15, 1996, over a year after the first election. The Union won
this election. During the year period between elections the
Union did not file any unfair labor practice charges, or in any
other manner allege that Respondent was engaging in any
unlawful conduct. It is admitted that both the Union and Re-
spondent waged intensive election campaigns.
Counsel for the General Counsel attempted to call witnesses
and introduce other evidence to establish that Respondent con-
ducted an intense campaign and to establish union animus,
although admitting that such campaign did not violate the pa-
rameters of Section 8(c) of the Act. I refused to hear such evi-
dence, but permitted counsel for the General Counsel to make
an offer of proof. I affirm my ruling.
My ground for such ruling was that the General Counsel had
alleged independent violations of Section 8(a)(1), and had al-
ready introduced testimony concerning various statements by
Floor Supervisor Pena, discussed below, which the General
Counsel contended would add something in establishing union
animus. I concluded that taking evidence on the lawful election
campaign could result in calling witnesses to give testimony
and to identify and introduce, documents, cross-examination by
Respondent on such testimony; that Respondent would call his
own witnesses to establish the Union’s extensive campaign
against Respondent, and why Respondent had to wage such an
extensiive campaign; and then cross-examination by counsel
for the General Counsel. I concluded that although such testi-
mony concerning a lawful election campaign, may have some
slight relevance, it was far outweighed by the time such ligation
might extend an already long and complicated case.
Section 8(c) of the Act provides;

(c) [Expression of views without threat of reprisal or force or
promise of benefit] The expressing of any views, argument,
or opinion, or the dissemination thereof, whether in written,
printed, graphic, or visual form, shall not constitute or be evi-
dence of an unfair labor practice under any of the provisions
of this Act [subchapter], if such expression contains no threat
of reprisal or force or promise of benefit.

The Board held in Holo-Krome Co., 293 NLRB 594 (1989),
reversing the administrative law judge, that notwithstanding
Section 8(c), evidence concerning an employer’s election cam-
paign can be introduced as evidence to show animus in an un-
fair labor practice trial.
The Second Circuit reversed the Board in Holo-Krome, find-
ing that it was improper to refer to an employer’s lawful ex-
pressions of opinion during a representation election campaign,
as a basis for finding anti-union animus. 907 F.2d 1343 (2d
Cir. 1990). The court pointed out that

Several circuits have construed Section 8(c) as barring the
“use [of] protected expression to build a case” against an em-
ployer or union, NLRB v. Eastern Smelting & Refining Corp.,
598 F.2d 666, 670 (1st Cir. 1979), and have found substantial
evidence lacking where the Board makes reference to a com-
pany’s lawful expression of opposition to the union as a basis
for concluding that subsequent acts or statements were unlaw-
ful. See Florida Steel Corp. v. NLRB, 587 F.2d 735, 750–54
(5th Cir. 1979); NLRB v. Rockwell Manufacturing Co., 271
F.2d 109, 118-19 (3d Cir. 1959); Pittsburgh Steamship Co. V.
NLRB, 180 F.2d 731, 735 (6th Cir. 1950) (‘Section 8(c) of the
Taft-Hartley Act was specifically intended to prevent the
Board from using unrelated non-coercive expressions of opin-
ion on union matters as evidence of a general course of unfair
labor conduct’), aff’d, 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed.
479 (1951).

I conclude that the language in Section 8(c): “the expressing of
views . . . shall not constitute evidence of an unfair labor prac-
tice”; means what it says. Animus is a necessary element to
establish a violation of Section 8(a)(1) and (3). The election
campaign evidence the General Counsel wanted to introduce
was for the purpose of establishing a necessary element to the
commission of an unfair labor practice. To permit the General
Counsel to routinely try the facts of a lawful 8(c) campaign
would in my opinion intrude on the protection established by
Section 8(c) of the Act.
In order to support a prima facie case of discrimination the
General Counsel must prove unlawful motivation. Unlawful
motive can be proven by direct evidence or by circumstantial
evidence which would establish general animus, Lewis Grocer
Co., 282 NLRB 166 (1986).
Independent violations of Section 8(a)(1) constitute evidence
of animus toward a union. The instant complaint alleged a
single 8(a)(1) violation. Respondent is alleged to have threat-
ened employees with more onerous working conditions in Au-
gust 1996, sometime prior to the August 15 election. Specifi-
cally, Floor Supervisor Pena is alleged to have made such
threat.
The General Counsel tried to support this allegation with tes-
timony from Marie Cadot, a CNA. Cadot testified about a
meeting in the third floor lounge before the August 1996 elec-
tion. According to Cadot, Pena was discussing the Union with
employees. Cadot testified that Pena said that if employees
were represented by the Union, things would be different. She
also testified that Pena said, with the Union, employees would
not be able to talk to management as they “do now.” During
cross-examination, Cadot amplified this statement. She testi-
fied Pena told her, “There would be delegates and stewards,
and people would have to go through the Union.”
The Board has held that an employer is allowed to tell em-
ployees that union organization will result in, “a change in the
manner in which employer and employee deal with each other.”
Tri-Cast, Inc., 274 NLRB 377 (1985). Specifying that the
change which will occur will result in loss of direct access to
management is similarly legitimate. Koons Ford of Annapolis,
282 NLRB 506 (1986). These principles were recently reaf-
firmed by the Board. Ben Venue Laboratories, 317 NLRB 900
(1995).
An employer is also privileged to point out legal facts to em-
ployees. It is legal fact that if employees are represented, the
union is their collective voice. This is the essence of 9(a) rep-
resentation. I conclude the statements ascribed to Pena merely
reflect these facts.
According to Cadot, Pena first said that things would change
with unionization. He then explained that employees would not
MEDIPLEX OF STAMFORD 907
be able to go directly to management with problems but would
have to go through their union representatives.
These statements simply reflect the legal realities of organi-
zation. If the employees select the union as their representa-
tive, the union is their spokesman. Rather than dealing directly
with supervision, represented employees must utilize their rep-
resentative as an intermediary.
I conclude the statements attributed to Pena are not threaten-
ing or coercive. Rather they merely reflect the effect of 9(a)
representation and are thus not violative. Ben Venue Laborato-
ries, supra at 900.
Accordingly, I conclude this 8(a)(1) allegation in the con-
solidated complaint should be dismissed.
The General Counsel called Donna Brown, a former em-
ployee, employed by Respondent from October to December
1996; as a per diem LPN.
Brown testified that almost immediately on her employment
she attended an orientation meeting with other LPNs and RNs.
The meeting was conducted by the Staff Development Coordi-
nator Sue Bocchetta. According to Brown, during the course of
orientation, Bocchetta told the new employees that the Union
represented certain employees at Respondent. The Union had
won the August 15, 1996 election. These employees were also
informed that Respondent had been mismanaged, but those
mistakes were being remedied. According to Brown examples
of poor management were given. These included letting nurses
work without current licenses, not checking references, and not
requiring 1-9 for Brown also testified that Bocchetta told the
new employees that certain people were causing problems and
should be written up if they did something wrong.
Brown also testified that shortly after Bocchetta’s meeting,
DNS Crowley met with the group. According to Brown, Crow-
ley mentioned the Union represented employees and said that
employees had sought representation because previous manag-
ers had done a poor job. Brown testified that Crowley told the
nurses to discipline CNAs if they saw them acting improperly.
Brown also testified that she later attended a floor meeting
conducted by Pena to discuss a staff member being struck by a
resident. According to Brown, after the full meeting, Pena
spoke to the nurses by themselves. In addition to Brown,
Penaredondo, and Quiblan, Respondent’s nurses were present
at this smaller meeting. According to Brown, Pena told the
three nurses that some people at Respondent were problems and
they needed to get rid of them. She testified he also told them
to “write them up” for anything they do. However, according
to Brown, Pena did not mention the Union during this meeting.
I conclude Brown’s testimony was not credible. She was
evasive and hostile during cross-examination. She was reluc-
tant to answer questions on cross-examination and equivocated
on harmless questions. Brown’s lack of candor was apparent at
the very beginning of cross-examination. Brown had been
terminated by Crowley for several No Call-No Show incidents.
Brown acknowledged that per diem status did not excuse em-
ployees from the obligation to follow Respondent’s procedures
regarding callouts. Nonetheless, in her testimony she tried to
show that she did not have any such obligation. Moreover, she
even denied being terminated, claiming that she left because
Crowley did not respect her children.
Brown’s incredible statements were at times made gratui-
tously. When she was questioned as to the circumstances of
her leaving Respondent, Brown was evasive. After she had
maneuvered around several questions in this vein, I concluded
on the record, that she “left with ill feeling.” Notwithstanding
such conclusions, and the improbability of her claim, Brown
denied any bias. In fact, she testified incredibly that she “liked
Mediplex!”
Even crediting Brown’s testimony, it does not show any hos-
tility, or unlawful intent on the part of Respondent. Brown
admitted that as an LPN it was her responsibility to discipline
CNAs who act improperly. After more of reluctance and eva-
sion, Brown acknowledged that this is something expected of
nurses, even in the organized facility where she now works.
Careful examination of her testimony reveals that this is all she
claimed was said to her by Pena. She was instructed to do what
she knew to be her duty as a nurse. If CNAs made mistakes,
they were to be disciplined. She was not told to fabricate per-
formance errors. Nor was she told to “set up” certain aides for
discipline. Rather, she was simply told to hold the CNAs to the
appropriate standard of care. This is particularly significant
because these statements were not linked to the Union. Even
according to Brown’s testimony, at orientation, new employees
were merely told certain employees were represented. Finally,
during the meeting with Pena, Brown said he made no mention
of the Union at all.
Bocchetta, the facility staff development coordinator, testi-
fied that Pena is responsible for conducting new employee ori-
entation. She specifically recalled orienting Brown when she
started at Respondent. Bocchetta was new herself and Brown’s
group was the first orientation she conducted. She also remem-
bered Brown because Brown asked many questions.
During orientation Bocchetta testified she made a very lim-
ited mention of the Union. When she described the chain of
command, she told the orientees that the Union represented
certain employees. Bocchetta denied that she said that some
CNAs were “troublemakers and would have to be fired because
of the Union.” She denied telling nurses to write CNAs up for
no reason. She denied saying that the Union had to go. She
also denied she was instructed by anyone else in Respondent to
do these things.
Rosella Crowley testified she did not conduct orientation
meetings. She admitted addressing one group regarding sched-
uling; this was the exception and not her practice. Crowley
testified (she) never attended a meeting where she told Brown
or anyone else that the Union has “got to go,” or gave instruc-
tions to write up CNAs. Crowley denied making such com-
ments to Brown in any other setting, nor was she given any
such instructions by other respondent officials.
I conclude Crowley’s testimony was credible.1 Crowley had
no ax to grind with the Union. She has worked in the organized
facilities, and in fact, has been both director and assistant direc-
tor of nursing in homes represented by District 1199. When
Crowley interviewed for the DNS position with Respondent,
she knew that a representation election was scheduled. When

1 As set forth below, I conclude that Crowley was a very credible
witness throughout her entire testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 908
she accepted the position, she did not know if the employees
had chosen to be represented or not. Crowley had nothing to do
with the union campaigns and had no dealings with her superi-
ors regarding hostility toward the Union.
Pena supervised nurses Penaredondo and Quiblan. He also
recalled working with Brown. Pena denied he ever held a
meeting with Brown, Penaredondo, and Quiblan, where he told
them to write CNAs up for any thing they did. Nor did he ever
tell them to write employees up in order “to get rid of them.”
Further, Pena denied making any such statements in any con-
text, in or out of a meeting.
Pena’s testimony in this regard was very clear and definite.
He admitted to having worked with Brown and was unequivo-
cal in his responses on both direct and cross-examination.
Moreover, his testimony was consistent with that of Penare-
dondo and Quiblan, discussed below.
Shantii Penaredondo is a registered nurse assigned to the day
shift on the third floor. She had been employed at Mediplex
since July 1995. During the time in question in this case,
Penaredondo’s immediate supervisor was Pena.
Penaredondo works with Dennis Quiblan, an LPN who is
also assigned to the third floor. Penaredondo remembered
Brown to be an LPN who had worked various shifts on the
third floor.
Penaredondo specifically denied, during her testimony, ever
being present at a meeting with Quiblan and Brown where she
heard Pena said, “guys, this is what I want you to do, anything
the CNAs do, I want you to write them up.” Nor was she ever
at a meeting where she heard Pena say, I want you to write
them up and get rid of them.” Penaredondo, denied ever hear-
ing Pena make any such statement, in any context.
As a registered nurse Penaredondo is not a bargaining unit
employee. However, neither is she a supervisor or agent of
Respondent. As set forth in detail below, I conclude she was a
truthful witness who was not too reluctant to make admissions
during her testimony, which were not in her best interests.
There is no evidence that she was granted any particular favors
or special treatment. In fact, she was disciplined as the result of
one of the incidents at issue in this case. Her testimony was
direct and forthright. Her demeanor made it clear she was only
interested in presenting the truth. Moreover, counsel for the
General Counsel elected not to cross-examine Penaredondo on
this issue.
Quiblan is employed by Respondent as an LPN. He works
the evening shift on the third floor. Quiblan has been employed
at Respondent for about 3 years.
Pena is Quiblan’s unit manager. Quiblan works with
Penaredondo on the third floor.
Quiblan remembered Donna Brown. He credibly testified
she was a per diem nurse with whom Quiblan worked with “a
few times.” Quiblan testified that Pena conducted frequent
meetings with nurses. He specifically testified that he was
never at a meeting with Penaredondo and Brown when Pena
told them to write the CNAs up for anything they did. Quiblan
never heard Pena say anything like this in any context.
Karen Consavage is an LPN employed by Respondent. She
usually works the evening shift. She is a “floating” nurse and is
not assigned a regular unit. Consavage began her employment
with Respondent in October 1996. She was in the same orien-
tation group as Brown. Consavage credibly testified that the
orientation meetings were conducted by Bocchetta. Consavage
credibly testified that in these meetings the only mention of the
Union was when Bocchetta told the new employees that the
CNAs were in the process of organizing.
Consavage credibly testified that neither Bocchetta, nor any
other respondent official made any other statements relating to
the Union. She denied that anyone said, “the Union was going
to have to go.” She denied being asked to write CNAs up no
matter what they said or did. Consavage testified she did not
attend any meetings with Brown where Crowley said “the Un-
ion has got to go. Some CNAs have got to go and to write up
CNAs no matter what they do.”
Consavage is an LPN. While she is not in the bargaining
unit, she is not a supervisor. I found her testimony, was forth-
right and candid. She did not exhibit bias or enmity toward
Brown. I credit her entire testimony.
All the above witnesses called by Respondent clearly and
credibly refuted Brown’s testimony. They were similarly con-
sistent in their denials of Brown’s allegations.
Bocchetta admitted that she mentioned the Union’s organiz-
ing campaign. It is clear however, that this was merely general
information for new employees. Bocchetta and Crowley were
newcomers to the facility. They started with Respondent when
the campaign was over. They had no interest in the CNAs’
organizing activities. The Union was nonissue as far as they
were concerned.
Pena also credibly denied making the threats Brown attrib-
uted to him. In order to believe Brown’s allegations regarding
Pena, two non upervisory employees have to be discredited.
Quiblan and Penaredondo both testified that they participated in
Pena’s nurse meetings. They clearly and credibly testified that
Pena did not make the statements Brown attributed to him in
those meetings.
I credit the testimony of all Respondent’s witnesses. These
witnesses’ recollections were definite. Their versions were
consistent with each other and make sense. Three of them were
not agents of Respondent. I set forth, I have concluded Brown
was not a credible witness.
In summary, the credible evidence establishes that prior to
the August 1995 election, Respondent hired Davey Jonas as a
labor relations consultant, and that in a meeting of Respon-
dent’s supervisors, he advised them to fire active union sup-
porters. However, Respondent, contrary to such advice, fired
no one. The first election was held on August 3, 1995. Chal-
lenges were determinative. Objections were filed by the Union.
The Board found that the only objectionable conduct was by
Respondent that a low-level supervisor told four nonunit
kitchen employees that he would surveil their union activity
and impose discipline on them, and that getting a raise de-
pended upon the Union losing the election. The election was
set aside. Respondent thereafter terminated Jones’ services,
and hired its present labor attorney.
Thereafter, Respondent conducted on election campaign to
persuade its employees to vote for no representation. This elec-
tion was free of any unfair labor practices and was conducted
within the limits of conduct permitted by Section 8(c) of the
MEDIPLEX OF STAMFORD 909
Act. I conclude the low-level kitchen supervisor’s conduct was
isolated, and did not involve unit employees. I conclude there
was no union animus between the first and second elections. A
second election was then conducted which the Union won.
Thereafter, the Union was certified.
Following the certification, the parties began collective-
bargaining negotiations; Respondent bargained in good faith,
and within a brief period of negotiations, agreed to a 3-year
collective-bargaining agreement.
I conclude Respondent’s conduct throughout this entire case
was free of any 8(a)(1) conduct, and was within the clear mean-
ing of Section 8(c) of the Act. Any objectionable statements
that might arguably reflect animus, were isolated and did not
relate to unit employees. Moreover, following the Board’s
certification, Respondent bargained in good faith and agreed on
collective bargaining with a term of 3 years.
The General Counsel has failed to establish independent vio-
lations of the Act by Pena. Similarly, the discredited testimony
of Brown of an overarching plan to fire CNAs was convinc-
ingly refuted.
An additional weakness in the General Counsel’s argument
is the major source from which the “animus” supposedly ema-
nates. A great deal of testimony was dedicated to Pena’s sen-
timents during the campaign. Witnesses testified that Pena did
not want employees to vote in favor of representation and that
he expressed this to employees in different ways. I find such
statements are within the meaning of Section 8(c) and do not
establish animus.
There is no dispute that the disciplinary decisions regarding
all four of the alleged discriminatees were made by DNS Crow-
ley. She received information from various sources, including
Pena, but the actual decision to suspend or terminate was Crow-
ley’s.
I conclude Crowley’s lack of animus toward the Union can
also not be disputed. It is uncontroverted that she came to
Mediplex after the election campaigns which the General
Counsel has tried to paint as so bitter. She has worked before
in an organized environment. In fact, she had held a director of
nursing position in a facility in which District 1199 represented
employees. When she took her present position with Respon-
dent she was aware that it was possible that the Union would
come to represent nursing department employees. However, I
found her an extremely credible and non-biased witness. Her
excellent recollection of details during both cross and direct
testimony and her demeanor, convince me entirely that she is a
truthful witness.
The Board looks at the lack of animus on the part of the de-
cisionmaker to negate any discriminatory motive. In Alexian
Bros. Medical Center, 307 NLRB 389 (1992), the Board over-
ruled the judge’s findings that the employer discriminatorily
withheld a raise from a union supporter. In that case, the al-
leged discriminatee’s immediate supervisor, Carney, initially
evaluated his performance as “meets expectations.” Carney’s
supervisor, Schmitt, however reviewed the evaluation and di-
rected Carney to redo the evaluation giving an “unsatisfactory”
rating. Id. at 390.
In Alexian Bros. the Judge found that Carney told the alleged
discriminatee the negative reevaluation was, “because of the
Union.” Id. at 396. The Board discounted Carney’s statement
however, and noted the lack of animus “on the part of Respon-
dent’s higher management.” Id. at 389. In this regard the
Board noted several legitimate reasons which were the basis for
Schmitt directing Carney to change the review. These reasons
“were free of any suggestion of discriminatory intent.”
The same reasoning applies in the instant case. The actual
events which are alleged to be discriminatory were directed by
“higher management” i.e., Crowley. Even if some animus were
assigned to Pena, there is no basis for laying any hostility at
the feet of Crowley. Moreover, the record reveals as set forth
in detail below, that Crowley made her decisions based on le-
gitimate concerns.
I conclude there is insufficient animus, if any, to support any
of the allegations set forth in the complaint.
Concerning knowledge of union activities, the credible evi-
dence fails to establish that the union organizational activities
of the four alleged discriminatees was substantial, or that Re-
spondent was aware of such activities.2
Although a representative of the Union was present everyday
during the trial of this case, the General Counsel called no un-
ion representative, or any other witness to establish that these
alleged discriminatees were any more active then at least 75
other union supporters.
Judy Davis, an alleged discriminatee attended union meet-
ings. However, there is no evidence that Respondent was
aware of such meetings. Davis also signed a union petition
along with at least 75 other active union supporters. Davis also
spoke out to other employees in favor of the Union in a variety
of places inside Respondent’s facility and outside, in Respon-
dent’s parking lot. Davis also distributed union bottoms, worn
by many union supporters, including Davis on three separate
dates. However, there is no credible evidence that Respondent
was specifically aware of any of her union activity. Moreover,
many other employees engaged in similiar activities and were
not discriminated against.
With regard to Marie Duclos, she became active on behalf of
the Union before the August election by signing the above un-
ion petition, speaking with coworkers about the benefits of
joining the Union in Respondent’s parking lot during her
breaks, distributing union flyers; and by wearing the Union’s
button during the entire course of her shift on two separate
occasions. However, there is no credible evidence that Re-
spondent was specifically aware of Duclos’ union activity.
Similarly, most other employees engaged in such conduct with-
out suffering any discrimination.
Minouche Ferdinand attended union meetings at the union
hall, signed the above union petition, spoke with coworkers in
favor of the Union inside Respondent’s facility, wore a union
button on her uniform on three separate occasions, and distrib-
uted union flyers and buttons in Respondent’s employee park-
ing lot before and after her shifts and during her breaks specifi-
cally. There is no credible evidence that Respondent was aware

2 In connection with the 8(a)(1) and (3) violations alleged, I have
credited Respondent’s wintesses and not credited the General Counsel’s
witnesses. My reasons supporting such findings are set forth below.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 910
of activities. Many other employees engaged in such activities
without suffering any discrimination.
Marie Montas, similar to the other discriminatees, became
active on behalf of the Union. In this regard, Montas signed the
above union petition, and spoke with coworkers regarding the
benefits of joining the Union, usually either in Respondent’s
parking lot or in the employee lunchroom. There is no credible
evidence that Respondent was specifically aware of her activi-
ties. Many other employees engaged in these same activities
without discrimination.
It is clear that over 75 unit employees were active union sup-
porters. At least that many signed the Union’s petition. Many
others distributed the petition for additional signatures, distrib-
uted and wore union buttons and were talking to other unit
employees in favor of the Union. Respondent was generally
aware of such activity. However there is no evidence that the
alleged discriminatees were any more active than any other
union supporters. Nor is there sufficient evidence to establish
that Respondent was specifically aware of their activities.
Significantly, I find no evidence as to why Respondent
would discriminate against only these employees. There is no
evidence that they were more active then other employees.
Moreover, no union representative testified as to any union
activities in which they were engaged.
In determining whether an employer discriminates against an
employee because of his or her membership in or activity on
behalf of a labor organization, the General Counsel has the
burden of proving that the employee’s membership in, or
activities on behalf of such labor organization was a motivating
factor in the discrimination alleged. Once such factor is estab-
lished, the burden then shifts to the employer to establish that
such action would have taken place in the absence of the em-
ployee’s membership in, or activities on behalf of such labor
organization, NLRB v. Transportation Management Corp., 462
U.S. 393 (1982); Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Knowledge of an alleged discriminatee’s union activities and
union animus are necessary elements in order to establish the
General Counsel’s burden. Tri-State Truck Service v NLRB,
616 F.2d. 65 (3d Cir. 1980).
As set forth and discussed above, the General Counsel con-
tend that animus can be established by the 8(a((1) conduct al-
leged in the complaint and by Respondent’s general antiunion
attitude as evidenced by the Respondent’s lawful 8(c) election
campaign. Based on my conclusions, discussed above, I con-
clude the Union has failed to establish such animus which
would support the 8(a)(1) and (3) violations.
Accordingly, I conclude the General Counsel has failed to
establish union animus and knowledge and therefore failed to
meet its Wright Line burden.
Concerning Respondent’s knowledge—the evidence estab-
lishes that many employees, if not all, engage in activities simi-
lar to those of the alleged discriminatees without suffering any
discrimination. There is no evidence that the alleged discrimi-
natees were more active than the other employees. There is no
evidence as to why Respondent would single them out for dis-
crimination. Nor is there any evidence that Respondent was
aware of their particular union activities. Accordingly, I con-
clude that Respondent had no knowledge of the discriminatees’
union activities. I also conclude the alleged violations of Sec-
tion 8(a)(1) and (3) in the complaint be dismissed.
In connection with the credibility of witnesses, I conclude
that the General Counsel’s witnesses, Montas, Duclos, Ferdi-
nand, Davis, and Brown are not credible witnesses.
My reasons for not crediting Brown are set forth above.
As to Duclos, Ferdinand, Montas, and Davis, I was very un-
impressed with their demeanor. Duclos, Ferdinand, and Mon-
tas were very vague as to the details of the 8(a)(1) and (3) alle-
gations concerning them. Their testimony, during cross-
examination, impressed me as being evasive. Moreover, their
demeanor when testifying as to the details of their conduct with
patients strongly impressed me as completely disinterested,
indifferent, and totally unconcerned, consistent with discharge
for patient abuse and falsification of patient records.
With respect to Davis, her demeanor throughout her entire
testimony impressed me as arrogant, with a chip on the shoul-
der, an attitude consistent with her discharge for insubordina-
tion.
I credit Respondent’s witnesses. I was extremely impressed
with their demeanor. They testified in detail, with excellent
recollection, were responsive to questions put to them on direct
and cross-examination, and displayed an impartial attitude
throughout their testimony. Moreover their testimony was
mutually corroborated, in several important areas by obviously
neutral witnesses, including the daughter of an abused patient
and several witnesses no longer working for Respondent, de-
scribed in detail below. Further, much of their testimony was
corroborated by official nursing home records, like patients
flow charts, and employee files which established in significant
part, Respondent’s progressive discipline policy, and the disci-
pline of nurses who were involved, to some extent, with the
conduct resulting in the alleged discriminatory allegations de-
scribed in the complaint.
I conclude that the General Counsel has failed to establish
animus and knowledge. Accordingly, I further conclude the
General Counsel has failed to meet his Wright Line burden, and
that the allegations of 8(a)(1) and (3) conduct alleged in the
complaint be dismissed.
Assuming arguendo, that I were to conclude that the General
Counsel met his Wright Line burden, I would nevertheless con-
clude that on the basis of the credible testimony of Respon-
dent’s witnesses, Respondent has conclusively established by
such testimony that the action taken by Respondent, as alleged
in the complaint would have taken place in the absence of any
organizational activities of the Union.
The General Counsel alleges that Montas’ hours were re-
duced about October 14, 1996. This was allegedly in retalia-
tion for Montas’ participation in the objections hearing of Oc-
tober 1996. However, schedule and payroll documents estab-
lish that Montas’ work assignments were consistent throughout
the period in issue.
Montas was originally hired to work on a part-time basis.
She also worked as needed to “cover” for other employees who
took time off. At times these coverage assignments were
known ahead of time and Montas was scheduled to work. That
she was covering for others was apparent from the schedule.
MEDIPLEX OF STAMFORD 911
The summer and fall of 1996 schedule sheets establish the
anticipated worktime of all the aides. These documents show
that Montas was scheduled when other employees were not
scheduled to work vacations. Whatever the reason, when regu-
lar aides were off the schedule Montas filled in.
As would be expected during the summer, Montas covered
vacations for other aides. She also covered when another aide
was moved to a different shift. There were weeks however,
when Montas was not scheduled full time. During 2 weeks in
August, well before the objections hearing, she was scheduled
for 8 to 16 hours. This was because there were no leaves
planned for other employees.
There were times when the schedule did not reflect actual
hours worked. Call outs or other changes happened after the
schedule was set and were not reflected on it. Montas’ actual
hours worked, however, are generally consistent with the
schedule.
For 3 weeks in October, Montas worked 24 or 16 hours.
This was down from 40 the weeks before. However, the
schedule shows that during those October weeks no leaves were
scheduled.
There were also weeks before the hearing when Montas did
not work full time. In each of the months of May, June, July,
August, and September, Montas worked at least 1 week under
40 hours, sometime as low as 16 hours. Even after October she
had slow weeks. In November she worked only 27 hours 1
week.
Thus, the evidence establishes that there was no reduction in
Montas’ hours. Rather, she worked the same pattern she had
throughout the summer and fall of 1996. When people were
out on leave or otherwise, she filled in for them. When there
were no vacations scheduled she did not work. The number of
hours she worked each week varied overall. There were times
in each month for 5 months preceding the objections hearing
when she worked less than full time. There was no change at
the time of the hearing.
Accordingly, I conclude that the reductions of hours alleged
in the complaint was not attributable to her testimony in the
objection hearing. Accordingly, I conclude that Respondent
did not violate Section 8(a)(1) and (3) as alleged in the com-
plaint.
In September 1996, Montas was assigned to provide care for
patient Susan Annerichio. Annerichio was an elderly, wheel-
chair bound resident. She was active and mobile with her
wheelchair and was usually lucid and communicative. On a
weekend day in September, her breakfast tray was missing
coffee flavoring. Annerichio wheeled herself into the hallway
to ask Montas for the missing flavoring. Montas responded to
this request by shouting at Annerichio and angrily pointing her
finger at her, telling her to go back to her room.
Annerichio was visited frequently by her niece. She told her
niece of Montas’ shouting and misbehavior. Later that day her
niece experienced Montas’ abuse first hand. While she was
visiting with her aunt in the dining room, Montas came in and
confronted them. Montas went to Annerichio and demanded to
know what she was telling her niece, saying that she did not do
anything. When the niece told Montas her conduct was inap-
propriate, Montas began to argue with her.
Annerichios’ niece complained of Montas’ misconduct to the
social service department. The social service worker docu-
mented her complaint and forwarded it to Pena, Montas’ super-
visor.
Pena then investigated the allegation. He interviewed An-
nerichio. She confirmed the report from social services. After
speaking to Annerichio, Pena spoke to her niece. The niece
also confirmed the report from social services.
Pena reported his findings to Crowley. She decided that she
had sufficient information to conclude that verbal abuse had
taken place. Not only had these individuals detailed these
events independently to Pena, but the niece had earlier reported
the same complaint to Social Services.
Based on this information, Crowley decided Montas should
be disciplined. She reviewed Montas’ file and noticed that she
had received no previous discipline. Crowley considered this
and decided that since the abuse was not physical, immediate
termination was not appropriate. However, he concluded that
any form of abuse is extraordinary and demands strict punish-
ment. Crowley therefore suspended Montas.
Crowley credibly testified that she did not want there to be
recurrence of the verbal abuse, or even possibly a worse event.
To guard against this, Montas’ return to work was made condi-
tional. Before she came back Montas was reeducated in resi-
dents rights and abuse. Thus, if there were any gaps in her
training or any misunderstandings which had contributed to her
misconduct with Annerichio and her niece, they would be ad-
dressed. To make sure that Montas knew what behavior was
expected of her, she, Montas, was required to work on the day
shift. As set out in detail above, there are many more supervi-
sors working on the day shift than at any other time. These
people would be available as a resource for Montas if needed.
Montas in fact complied with these conditions and returned to
work.
I conclude that Respondent’s actions in this regard were
completely legitimate and Respondent could have seized on the
initial complaint to social services and fired Montas, immedi-
ately. This was not done. Respondent, at that point had two
consistent statements from two people detailing abusive con-
duct. There was clearly grounds to terminate Montas. Yet,
Crowley did not take advantage of the “opportunity.” She con-
sidered Montas’ record and decided to give her another chance.
In fact, in giving her a second chance she made sure that Mon-
tas was not confused or uninformed as to what was expected of
her. Montas was specifically trained resident rights and abuse
before she came back. Further, she was put back on the shift
that had the most supervisory support available to her to insure
proper training.
If Respondent simply wanted to get rid of Montas, for her
union activity, the opportunity was there after this incident.
Respondent did not take this “opportunity” and fire Montas. I
conclude that Respondent did not violate Section 8(a)(1) and
(3) by the suspension of Montas.
In January 1997, Montas was assigned to work the third
floor. Also working on that floor was nurse Shantii Penare-
dondo. One of the patient residents on the third floor was a
male patient, Derigibus. Derigibus was an elderly paraplegic,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 912
who was incontinent. Because of his condition he wore a dia-
per and needed to be changed regularly.
At around noon, Derigibus called the nurses station and
asked to be changed. Penaredondo told Montas to change
Derigibus. A short time later, when Derigibus was not
changed, Penaredondo reminded Montas of her instructions.
Montas acknowledged the assignment and told Penaredondo
that she would change Derigibus.
At about 1 p.m. Penaredondo was administering medications
to the residents. This is a function that can only be performed
by a licensed nurse and involves the nurse going into resident
rooms. While she was medicating the residents, Penaredondo
spoke to Derigibus. Derigibus told Penaredondo that he had
not yet been changed. Because she was involved in administer-
ing medications and because Derigibus indicated he would wait
for Montas, Penaredondo instructed Montas, once again, to
change Derigibus. Montas said again, she would do so.
When Penaredondo completed her medication duties she
asked Montas if she had changed Derigibus. Montas said she
had not and told Penaredondo that she was scheduled for lunch.
Penaredondo told her to check with Derigibus to see if he had
wanted to be changed before Montas took her break. Montas
reported that Derigibus said he would wait. Shortly after Mon-
tas left, Derigibus called the nurses station and said that he had
still not been changed. He also said that Montas had not
checked with him before she went on break. Penaredondo
again told Montas to change him. Rather then comply, Montas
went to work with another resident first and finally changed
Derigibus only after Penaredondo told her to do, yet again, one
more time. Approximately, 2 hours went by between the first
instruction to clean Dregibus, and the time he was finally
changed. At the end of the shift Penaredondo told the nurse
manager, Pena, about the event.
Pena investigated this situation after Penaredondo’s report.
He asked Penaredondo to reduce her story to writing. She did
this and it was consistent with her oral report. Pena also spoke
to Derigibus. The resident told Pena that he has asked to be
changed but had waited 2 hours before he was given care. He
also stated that Montas did not ask him if he would wait until
she took her break. Pena also interviewed Derigibus’ therapist
and unit clerk.
The therapist told Pena that Derigibus was upset that day and
said he had been left unchanged. The unit clerk confirmed that
Penaredondo had instructed Montas to change Derigibus at
about noon and that Montas said she would do so. The unit
clerk also told Pena that Derigibus told her Montas had not
asked him if he would wait to be changed until after her break.
She thus concluded that Montas had lied to Penaredondo. The
unit clerk gave Pena a written statement detailing this informa-
tion.
Pena and Crowley reviewed their results of Pena’s investiga-
tion. This included the written statements that were provided.
Crowley determined that Montas has neglected Derigibus’ care.
She had been given an assignment and had acknowledged it,
saying she would take care of the resident. Despite this she
simply ignored him. When reminded again, she lied, saying
that Derigibus told her he would wait for her to finish her break
to work with him. Crowley concluded that Montas ignored the
instructions she was given, ignored the resident and finally, she
lied about what the patient said. Crowley further concluded
such conduct was even more egregious when the condition of
the resident was considered. Crowley finally concluded that
Montas’ conduct was blantently negligent.
Crowley testified that she then considered Montas’ discipli-
nary history. Montas had been verbally abusive to a resident
and her family just a few months before. At that time Crowley
had considered Montas’ then clean record and decided to give
her a second chance. Based on Montas’ record and the facts of
the Derigibus incident, Crowley terminated Montas. The facts
establish that such termination followed Respondent’s usual
discipline procedure.
Crowley also reviewed Penaredondo’s conduct in this mat-
ter. Crowley concluded that although it is not a licensed
nurse’s function to change patients diapers, she should have
checked to see if Derigibus’ diaper had been changed and that
she should have supervised Montas more closely. Accordingly,
following Respondent’s discipline procedure, since Penare-
dondo had received an oral warning on another matter, she
received a written warning for her neglect.
Accordingly, I conclude that the discharge of Montas did not
violate Section 8(a)(1) and (3) of the Act as alleged in the com-
plaint.
In January 1997, the family of patient Musilli reported find-
ing him tied into his wheelchair, facing a wall. The family had
confronted Duclos who admitted leaving him in this condition
when she went to help another aide. Respondent investigated
these allegations. The family member gave a written statement
which was consistent with the initial report. Duclos also gave a
statement and admitted improperly restraining the resident.
Federal regulations and State statutes govern all aspects of
nursing home operation. These include prohibitions of patient
abuse and neglect. Crowley considered Duclos’ admission in
light of these regulations. She testified she considered termi-
nating Duclos but instead decided to give her another chance.
Rather than being terminated, Duclos was suspended for 3
days.
Before Respondent could allow Duclos to interact with resi-
dents again, however, Crowley concluded she needed to be
assured that Duclos knew what was required of her. As a con-
dition of her return, Duclos was required to undergo reeduca-
tion. She was retrained in resident rights and restraint policy.
Further, she was required to work on the first shift as was Man-
tos, so there would be more supervisory nurses available to her
for assistance if she needed it.
Respondent’s policy was not applied only to Montas and
Duclos. In 1994, alleged discriminate Ferdinand, had also been
involved in an abuse allegation. She was suspended just a
Montas and Duclos were. Also, just as they were, she was
required to undergo retraining and work the day shift.
Thus, a year before the Union’s first campaign, Respondent
imposed retraining and enhanced supervision as conditions of
reinstatement after abuse suspensions. Requiring Duclos to be
retrained and work the day shift was nothing new. It was
merely a continuation of Respondent’s established policy im-
plemented for the protection of residents.
MEDIPLEX OF STAMFORD 913
There is no credible evidence which would establish that.
Duclos was singled out for this requirement. She was merely
treated as any other aide would be. She was told what would
be required of her before she could return, yet she resisted.
Duclos was not satisfied with working the first shift.
Duclos claimed she could not work days because of child
care problems. Crowley gave her suggestions to help. She had
difficulty resolving these problems, so Respondent let her come
to work late until she made arrangements. Finally, when Du-
clos was able to return to work on the first shift, she immedi-
ately hurt herself. She was then out of work or on modified
duty for several weeks.
On her first day back to full duty, Duclos was assigned to the
first floor under Unit Manager Jackie Pinto. She was assigned
to care for an elderly, wheelchair bound female resident. The
resident, Cordaro, spoke only Italian.
The credible testimony of registered nurse, Andan, estab-
lished that she helped Duclos put Cordaro on the toilet at about
10:40 a.m. Andan credibly testified that she was aware of the
time because she had spoken to Duclos about showering and
dressing another resident who had an 11 a.m. therapy appoint-
ment. Andan clearly remembered the conversation about the
therapy appointment as occurring before 11 a.m.
At 11 a.m. therapist Roberts brought Cordaro’s roommate
back to their room. She saw Duclos and Cordaro in the room.
As she was working with Cordaro’s roommate, Roberts saw
Duclos wheel Cordaro into the bathroom. Roberts then heard
Duclos shouting at Cordaro. When Roberts went to offer her
help, Duclos slammed the bathroom door in her face. Roberts
reported this to Andan who later checked the room but did not
see Duclos or Cordaro.
Within a short time, Therapist Barcia, who spoke Italian and
frequently visited with Cordaro and interpreted for her, stopped
in Cordaro’s room. Barcia saw that Cordaro was upset and
covered with excrement. Cordaro told Barcia that Duclos had
shouted at her and pushed her.
Cordaro’s daughter also visited her mother that same day.
She credibly testified that her mother was upset and asked her
what was wrong. Cordaro told her daughter that her Duclos
had mistreated her. Cordaro’s daughter smelled and then no-
ticed her mother had feces on her hands but had not been incon-
tinent in her chair. She reported this to Andan.
Respondent collected written statements from all parties in-
volved. Barcia memorialized what Cordaro said to her. Rob-
erts wrote what she had seen and heard in the room. Cordaro’s
daughter and Andan also gave written statements. These
documents were all consistent with initial reports and indicated
Duclos mistreated Cordaro.
Duclos was asked to provide a statement detailing her ac-
tions that morning. Rather than do so, a union representative
gave Respondent an incomplete version of Duclos’ position.
Nonetheless, Respondent followed up on Duclos’ apparent
contention that she had never helped Cordaro to the toilet with
another aide or a nurse. Respondent also interviewed CNA
Faustin. Faustin said that he had helped Duclos once with
Cordaro but had left with Cordaro on the toilet and had not
returned.
Faustin saw nothing improper when he was with Duclos, but
was not with her other than for a brief time. Faustin was thus
not in a position to clear Duclos. He did not claim to be with
her in the bathroom when Roberts heard her shout at Cordaro.
Moreover, he only helped toilet Cordaro once. Cordaro was
known to use the toilet several times a morning.
Duclos also indicated that Andan had helped her toilet
Cordaro. As set out above, Andan did this one time, before
Roberts saw Duclos take her into the bathroom and shout at
her.
Crowley reviewed the results of the investigation. This in-
cluded all the written statements including Duclos’. Crowley
concluded that Duclos had neglected her responsibility to clean
Cordaro, had shouted at her and treated her roughly, pushing
her into the chair as Cordaro reported. Crowley credibly testi-
fied that she considered this information in conjunction with
Duclos’ record, specifically her recent suspension for improper
restraint. She concluded that notwithstanding having received
the suspension and then being retrained, Duclos had again
abused a patient. Crowley ordered her terminated.
Duclos denied the patient abuse attributed to her by Crowley.
However both Barcia and Cardaro’s daughter had no reason to
give false testimony. Barcia has left and has no connection
with the Respondent’s employ. Cordaro has since died, and her
daughter has no connection with Respondent at the time she
testified. As set forth above, I have concluded Respondent’s
witnesses, including Barcia and Cordaro’s daughter, to be en-
tirely credible.
I conclude that both Andan and Faustin helped Duclos toilet
Cordaro on that morning. Andan at about 10:40 a.m. and
Faustin around the same time. Then at about 11 a.m. Cordaro
needed to go to the bathroom again. This was not unusual since
she went to the toilet several times in the morning. This trip to
the bathroom was the one Roberts observed. During this time,
Duclos became frustrated with Cordaro and verbally abused
her, shouting at her, and pushed her. Duclos also left Cordaro
to attempt to clean herself and neglected to wash Cordaro’s
hands afterward. This resulted in Cordaro sitting in her wheel-
chair, upset about having been mistreated and left with feces on
her hands.
I further conclude that her initial suspension for patient abuse
and subsequent discharge for a second patient abuse did not
violate Section 8(a)(1) and (3) as alleged
The physical and emotional condition of Respondent’s pa-
tients is closely monitored. One document used in this moni-
toring is a “Daily Flow Sheet.” CNAs are responsible for accu-
rately completing this sheet. Ferdinand, an alleged discrimina-
tee, completed and initialed a resident’s sheet barely halfway
through a shift. In doing so, she put in information that she
could not have known. She inaccurately completed the pa-
tient’s medical record. She acknowledged having done so,
contending that everyone did. Respondent investigated her
contention and discovered that, in fact, she was the only CNA
acting in this fashion. Each patient has a chart in their file log-
ging various daily activities. These range from food and fluid
intake and output to hygiene and sleep patterns. This informa-
tion is critical to making current assessments of each patient’s
physical and emotional well being and is noted by each shift
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 914
each day. Based on information contained in the charts, medi-
cations are prescribed and changed and various therapies are
ordered. It is the primary responsibility of the CNA to com-
plete the chart. However, a licensed nurse must cosign at the
end of each shift.
Because of the requirement for accuracy, CNAs are in-
structed to wait until about 1 hour before the end of their shift
to complete their charts. A chart is completed when all the
information is filled in and the aide has initialed the document.
If a chart is completed early, it is by definition going to be an
inaccurate and false record. The information on the chart re-
flects the patient’s status for the entire shift.
Ferdinand was an evening shift aide. Her shift began at 3
and ended at 11 p.m. On October 25, Pena had reason to speak
to Ferdinand at dinnertime in the middle of her shift. As the
result of instructions from Pena, Ferdinand went to pick up
dinner trays and left her chart book at the nurses station. Pena
reviewed the chart book and discovered that several flow sheets
for patients assigned to Ferdinand were completed. Pena noted
particularly that patient Love’s chart was complete and ini-
tialed.
Pena confronted Ferdinand with her having completed her
charting too early. Ferdinand did not deny her actions. She
claimed in her defense that she had worked with the resident
the previous day so she knew what information to log in and,
that all the CNAs did the same thing.
I conclude Ferdinand’s first defense is invalid on its face.
For Ferdinand to be able to accurately chart a patient early be-
cause she had worked with her previously, Ferdinand would
have to be able to see the future. No patient, no matter how
stable, can be assumed to be in exactly the same condition day
after day. Love’s hygiene record, her waste functions, whether
she had visitors, and how long she slept, whether she takes food
orally, are all important facts which should be accurately re-
corded for review by LPNs or doctors, if necessary, of whether
she takes food orally. Yet each of these factors was completed
less than halfway through the shift. There is no way at 6 or 7
p.m., Ferdinand could know how much sleep the resident was
going to get by the end of the shift 4 or 5 hours later! Ferdi-
nand could not know early in the evening if the resident would
have a visitor later!
When Crowley was informed of Ferdinand’s flow sheet she
commenced an investigation to determine how the other CNA’s
charted their flow sheets. Crowley credibly testified that all the
other CNA’s charted their flow sheets within an hour before the
end of their shift.
Because she was a new employee, Crowley testified that she
did not know what the practice was regarding when charts were
completed. If the staff were routinely completing the charts
early, the improper practice would have to be stopped. Ferdi-
nand would have then been only one of many making the same
mistake. If that were the case everyone would have to be re-
trained and it would have been unfair to single out Ferdinand
for any action. To answer this question and follow up on Fer-
dinand’s claim, Crowley had the rest of the CNAs polled to see
when they charted. The CNAs all indicated that they charted at
appropriate times. Not one indicated that they charted the way
Ferdinand did.
The General Counsel contends that this survey is somehow
tainted. Despite such contention, there is no evidence that Re-
spondent did anything other than try to investigate Ferdinand’s
claim fairly. There is no testimony that the investigation was
conducted coercively. Crowley relied on the integrity of Re-
spondent’s employees and presumed that it would receive hon-
est answers. In fact, the results of the investigation were sub-
stantiated by testimony of the General Counsel’s own witness.
CNA Faustin testified that he does not complete his charting
until the last hour of his shift. Faustin’s testimony was consis-
tent with the results of the investigation of the evening aides.
Despite Ferdinand’s claim that “everybody does it,” Ferdi-
nand simply knew better. Respondent uses a document which
details the approximate times for the aides on each shift to per-
form their different tasks. This document clearly tells the aides
that they are to chart at the end of the shift, just as Faustin and
the evening aides all said they did. Ferdinand received a copy
of this list when she started and signed the front page. I con-
clude that for her to claim that she did not know that she was
doing anything wrong is disingenuous at best. Moreover, I
conclude that it is a matter of common sense that these records
cannot be completed beforehand.
Based on Crowley’s investigation, Crowley credibly testified
she was convinced that Ferdinand was not merely one part of a
larger record keeping problem. Rather, the facts indicated to
her that Ferdinand was intentionally completing her charts well
before they should be done.
Crowley testified she viewed this as a very serious matter. It
involved a patient’s medical records. Completing the flow
sheet early, at a time when it was impossible to know that the
information was accurate, demonstrated a complete lack of
concern for the validity of such official records. Since the
charts are important information sources for evaluation and
treatment of patients, Crowley concluded this conduct jeopard-
ized the case of the patients.
Crowley was aware of the Respondent’s progressive disci-
pline policy, which also allows for immediate termination un-
der proper circumstances. She concluded that falsification of
such records was extraordinary circumstance. She based such
conclusion on the fact that such flow sheets bear on the health
and safety of its patients. Invalid information on the chart can
result in errors in assessment or treatment of a patient. Crowley
thus concluded that Ferdinand should be terminated. Crowley
credibly testified she had made the same decision when faced
with this situation at a previous employer. Crowley made the
decision to terminate Ferdinand.
I conclude that Respondent did not violate Section 8(a)(1)
and (3) of the Act by such termination.
Davis started working for Respondent in April 1996. Within
a month she was leaving work early. During the first week of
June, she was given a verbal warning about her attendance
problem. She was cautioned that this conduct was not accept-
able. The narrative in the warning told Davis she would re-
ceive further discipline for any further misconduct. At the time
of this warning, Davis admitted she was aware of Respondent’s
disciplinary policy. This warning was not alleged to be viola-
tive of the Act.
MEDIPLEX OF STAMFORD 915
On June 25, Davis did not show up for her work shift. Pena,
Davis’ supervisor, called her at home to see if she was coming
in. When Pena told Davis she was supposed to be at work, she
cursed at him and said she was not scheduled. She accused
Pena of sabotaging her schedule for some unknown reason.
After first arguing about the schedule and challenging Pena,
Davis then claimed not to feel well. Pena asked Davis again if
she was coming into work. Davis did not give Pena a straight
answer. He asked her again. This call took place at a desk in
the open area around the administrative offices. Crowley was
using a telephone near to Pena and overheard the repeated
questions from Pena. She went to Pena to see if she could help.
When she was next to him, Pena moved the receiver slightly
away from his ear. This allowed both Pena and Crowley to
hear what Davis was saying. Both Pena and Crowley credibly
testified they heard Davis state to Pena: “I’ll fucking be there
when I’m there.”
Based on her discussion with Pena concerning that part of
the conversation she did not overhear, and that which she did
overhear, Crowley reviewed Davis’ personnel record and de-
cided that suspension was the appropriate level of discipline.
Davis admitted the details of this conversation but denied curs-
ing at Pena. In view of my credibility resolutions described
above, I do not credit Davis. Moreover, both Pena and Crow-
ley testified consistently as to the vulgar statement overheard
by Crowley.
Crowley credibly testified that in view of Davis’ length of
employment, 2 months, in view of her prior warning, and the
nature of her insubordination directed to her supervisor, Pena,
suspension was appropriate.
Accordingly, I conclude that Davis’ suspension was appro-
priate and did not violate Section 8(a)(1) and (3) of the Act.
On November 26 all the CNAs, on the day shift, on the third
floor, heard an employee “calling out.” As frequently happens
in these situations, the remaining staff have to carry a heavier
load because the callout’s assignment is divided among them.
Pena was attempting to rearrange the workload. Davis was
assigned to help with an admittedly difficult patient. She
wanted a different assignment. Pena assigned her to another
patient. As Davis was voicing her reluctance to work with this
second patient, LPN Pizzutti walked by. Pizzutti overheard
Davis, and told her, “Somebody has to care of her.” Davis was
visibly angry at Pizzutti’s remark and left the area.
Davis went to Crowley to complain about her assignment. In
an attempt to accommodate Davis, Crowley told Pena to allow
the CNAs as a group to determine how the extra work would be
assigned. The group of CNAs by a majority vote gave Davis
yet a third assignment with which she was not happy, but ac-
cepted such assignment.
At about mid-shift Davis asked Pizzutti for help using a me-
chanical lift with one of the patients she had initially resisted
being assigned to at the beginning of the shift. Pizzutti decided
that necessary preliminary work had not yet been done and told
Davis that she would help her once this preliminary work had
been completed.
The anger between Davis and Pizzutti described above, then
resurfaced. Davis walked away from caring for the resident
and stormed into the nurses station. Pizzutti asked Davis what
she was doing. Davis announced that she was taking her break
and leaving the floor. Pizzutti and Davis began to argue, in
loud voices, at the nurses station. Their voices were so loud
that Pena heard them and went to the station to see what the
ruckus was about.
When Pena saw them, his first act was to stop the argument.
Their argument was taking place at the very hub of the patient
care area. After Davis and Pizzutti stopped arguing, Pena tried
to find out what had happened. He first spoke to Pizzutti and
then to Davis. Their versions were consistent. Each felt put on
by the other and neither denied that they were arguing loudly in
a patient care area.
Shortly thereafter, Pena made rounds of the patients rooms
He noticed several rooms were not straightened and that several
patients had not yet received their scheduled care. The assign-
ments sheets established that these rooms and patients were
assigned to Davis.
A short while later Pena told Davis and Pizzutti that their
conduct was unprofessional and they would receive discipline.
He discussed the incident with Crowley. She agreed that Davis
and Pizzutti behaved unprofessionally and decided to discipline
both employees.
Crowley then reviewed Davis’ and Pizzutti’s files. Davis
had been suspended just a month before and had been warned
then that further misconduct would result in termination.
Crowley acting consistently with both the progressive disci-
pline policy and the warning that had been given to Davis, de-
cided that termination was in order and told Pena to deliver a
termination notice to Davis.
Crowley also concluded that Davis was not the only one who
had acted inappropriately. There was no dispute that Puzzutti
was arguing just as loudly. Crowley determined both employ-
ees were to be disciplined. Unlike Davis however, Pizzutti had
a clean file. Accordingly, Pizzutti was disciplined at the first
step. She was given a verbal warning.
Given Davis’ work record over a short period of time, that
Pizzutti was also disciplined, and that both Pizzutti and Davis
were disciplined in accordance with Respondent’s progressive
disciplined policy, I conclude that Davis’ termination did not
violate Section 8(a)(1) and (3) of the Act.
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 as alleged in the complaint.
ORDER
The complaint is dismissed in its entirety.