Pontiac Care & Rehabilitation Center

National Labor Relations Board - Board Decisions

May 31, 2005

344 N.L.R.B. 761 (N.L.R.B. 2005)

PONTIAC CARE & REHABILITATION CENTER
344 NLRB No. 92
761
Pontiac Care and Rehabilitation Center and 1199 NY
Upstate Division, SEIU, AFL–CIO. Case 3–CA–
24724
May 31, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 28, 2004, Administrative Law Judge
Arthur J. Amchan issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and the
General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Pontiac Care and Rehabilita-
tion Center, Oswego, New York its officers, agents, suc-
cessors, assigns, shall take the action set forth in the Or-
der.
Nicole Roberts and Linda M. Kowalski, Esqs., for the General
Counsel.
Aaron C. Schlesinger, Esq. (Peckar & Abramson), of River
Edge, New Jersey, for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Oswego, New York, on July 27–29, 2004. The
charge was filed on February 27 and amended on March 23,

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 There are no exceptions to the judge’s dismissal of 8(a)(1) allega-
tions that: (1) the Respondent threatened employees with a loss of
future wage increases and with the reduction of their current wages; (2)
the Respondent engaged in various acts of surveillance of employees’
union activities; and (3) the Respondent prohibited employees from
wearing carnations as a show of support for the Union.
Member Schaumber finds it unnecessary to pass on the judge’s find-
ing that the Respondent violated Sec. 8(a)(1) by its interrogation of
employee Stout because any such finding would be cumulative in light
of his agreement with the judge’s findings that the Respondent violated
Sec. 8(a)(1) by its interrogations of employee Maldonado and employee
Ives.
and April 7 and 13, 2004. The complaint was issued May 25,
2004.
The General Counsel alleges that Respondent Pontiac Care
and Rehabilitation Center violated Section 8(a)(1) of the Act by
threatening and interrogating employees, by giving employees
the impression that their union activities were under surveil-
lance, by engaging in surveillance of employees’ union activi-
ties, and by prohibiting employees from wearing carnations as a
show of support for the Union. The General Counsel alleges
that Respondent violated Section 8(a)(3) and (1) by suspending
and then discharging employee Rebecca Gibson on March 25–
29, 2004.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Pontiac Care and Rehabilitation Center operates
a 2-story nursing home in Oswego, New York. It derives gross
revenues in excess of $100,000 and purchases and receives
goods and materials valued in excess of $5,000 directly from
points outside of the State of New York. Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union, Local 1199, New York Upstate Division, Service Em-
ployees International Union (SEIU), is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union began its organizing campaign at Respondent’s
nursing home in late January or early February 2004. Local
1199 filed a representation petition with the NLRB on February
25, withdrew this petition, and then refiled it on March 9. The
Union held a rally across the street from the nursing home on
the afternoon of March 17. A representation election was con-
ducted in April in which 36 employees voted to choose the
Union as their collective-bargaining representative and 20
voted against representation. The Respondent has filed objec-
tions to the election, which are currently pending before the
Board.
B. 8(a)(1) Allegations
1. Alleged threats at the February 25, 2004 in-service training
meeting (complaint paras. VI(a) & (b))
At about 7 a.m. on February 25, 2004, several hours before
Respondent received a copy of the representation petition, its
director of nursing, Helen Verceles, conducted an in-service
training session for several registered nurses (RNs) and li-
censed practical nurses (LPNs). Two of the General Counsel’s
witnesses, alleged discriminatee Rebecca Gibson and former
employee Pamela Bedford, testified that at the end of the meet-
ing Verceles told the nurses that if employees selected the Un-
ion that they would not receive raises that they would otherwise
receive in June or July and that Cosimo Mastropierro, Respon-
dent’s owner, would reduce their pay to $5.15 an hour. Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD762
spondent did not elicit any evidence that Bedford had a motive
to fabricate her testimony.
However, Verceles denies this, denies mentioning the Union,
and denies even being aware of union activity at the nursing
home at the time of the in-service meeting. Two of Respon-
dent’s witnesses, who also attended the meeting, RN Susan
Schaeffer and LPN Janette Farley, also testified that Verceles
said no such thing. Despite the absence of any evidence un-
dermining Bedford’s credibility, I credit Respondent’s wit-
nesses. First of all, there is no evidence establishing that Re-
spondent was aware of union activity prior to the February 25
meeting. Secondly, I deem it very implausible that Verceles
would threaten employees who made over $12 an hour, with a
reduction to the minimum wage. It is implausible that any
employee would find such a threat credible. It is highly
unlikely that Respondent would be able to retain any LPNs and
RNs to manage their facility at the minimum wage. Given
these credibility resolutions, I dismiss complaint paragraphs
VI(a) and (b).
2. Alleged interrogation and requests for information about
employee union activity by Supervisor Kimberly Norton
(complaint para. VI(d))
Heather Seaman-Stout, a certified nursing assistant (CNA),
currently employed by Respondent, testified that on February
26, 2004, she walked out of Respondent’s linen room to find
RN Kimberly Norton, a supervisor, discussing the Union with
two other CNAs. According to Stout, Norton then asked her
what she thought of the Union. Stout had not indicated whether
she favored or opposed the Union previously. Stout testified
that Norton then said for Stout to “keep her ears open.”1 Norton
then recounted how she had been a member of the Union at one
time and that the Union had not been responsive when she had
requested its assistance.
Norton, who left Pontiac on July 5, 2004, testified that she
discussed her experience with the Union with other employees.
Norton testified that she doesn’t “specifically” recall discussing
the Union with Stout. She also testified that she never asked
employees if they “if they were pro or anti-union.” Norton
testified that she didn’t recall asking any employee what they
thought about the Union. Finally, Norton testified that she
never asked any employees to inform her about the union
membership or sympathies of any other employees.
I credit Stout and find that Respondent, by Norton, violated
Section 8(a)(1), as alleged in complaint paragraph VI(d) (1) by
coercively interrogating an employee, who had not previously
demonstrated her support for the Union. Norton’s testimony
did not directly contradict Stout. She answered carefully
phrased leading questions to avoid having to do so. On the
other hand, I find Stout’s testimony too vague to conclude that
Norton was suggesting that Stout report to her regarding the
union sympathies or activities of other employees. “Keep your
ears open” may have merely conveyed Norton’s belief that
Stout should listen to what negative things people had to say
about the Union.

1 After a prompt from the General Counsel, Stout testified that Nor-
ton told her to let her know if “anyone else is talking or whatever.”
3. Alleged threat and interrogation by Unit Manager Valerie
Rose on or about March 8, 2004 (complaint
pars. VI(c) and (f))
Jasmine Maldonado, a certified nursing assistant still em-
ployed by Respondent, testified about a conversation she had
with Unit Manager Valerie Rose on March 8, 2004. According
to Maldonado, she walked into Rose’s office to get her purse
before going on her break, and Rose asked her whether she was
for the Union, against, it or “on the fence.” Maldonado testi-
fied that Rose told her that Respondent’s owner, Coismo Mas-
terpierro, would cut employees’ pay to $5.50 an hour if they
selected the Union in a representation election. She continued
to testify that Rose told her benefits such as health insurance
could be lost in negotiations in exchange for other benefits
employees might want.
Valerie Rose’s testimony as to these matters appears at pages
496–500 of the transcript. Rose essentially conceded that she
had a conversation with Maldonado about the Union, although
she contends that it was Maldonado who initiated it. Upon
objection by the General Counsel, Respondent’s counsel with-
drew the following question:
Q. Did you ever ask any employee if they were for or
against the Union? (Tr. 497)
A. A minute later, I told Respondent’s counsel that I
thought the question was appropriate and that I would
overrule an objection to it. He continued,
Q. Did you ever ask any employees if they were pro
or against the Union?
A. Never asked them outright, no. Never.
Q. Did you ever make any inquiry at all about any
employees—
A. No, I—
Q. —feelings about the Union?
A. No, sir, I didn’t. I have too much work to do to
worry about that.
Tr. 498.
Later, Rose testified as to how she explained the negotiation
process to employees. When I asked her specifically whether
she ever offered employees an opinion as to what would hap-
pen to wages if employees selected the Union, Rose did not
answer directly but testified that the only thing she ever talked
about was the give and take of negotiations (Tr. 500).
I credit Maldonado’s testimony and find that Respondent, by
Valerie Rose, inquired about her union sympathies and inti-
mated that Respondent would lower wages if employees se-
lected the Union. Rose’s response that she never asked about
employees’ union sympathies “outright” suggests that she did
so indirectly. Her unwillingness to specifically contradict
Maldonado both with regard to the interrogation and the sug-
gestion that Respondent would lower wages, leads me to be-
lieve Maldonado’s account. Therefore, I find that Respondent
violated Section 8(a)(1) as alleged in complaint paragraphs
VI(c) and (f).
PONTIAC CARE & REHABILITATION CENTER 763
4. Alleged threats and conveyance of the impression of surveil-
lance by Helen Verceles in early March 2004 (complaint
para. VI(e), (h), and (i)).
Jasmine Maldonado also testified that on March 11, 2004,
she was summoned to Administrator Brian Chamberlin’s of-
fice. Chamberlin and Verceles assured Maldonado that her
health insurance, which had lapsed during her maternity leave,
was currently in force. Afterwards, she testified that Verceles
asked her to go into her office, where Verceles spoke to her
alone. Maldonado testified:
I was told that it had been observed that I speak to Rebecca
Gibson often on the unit. I was also told that I should [not]
believe what I hear from other people and things like that.
And, you know, if a union was voted in, that it wouldn’t be
such a friendly, laid back place. She would have to do things
by the book. That Pontiac had done a lot for me and, it would
no longer be that way.
Tr. 298.
On cross-examination, after being shown her affidavit,
Maldonado testified that she was told that her health insurance
was being reinstated. She also testified that Verceles told her
that she did not care if Maldonado spoke to Becky Gibson, but
that Verceles wanted her to see the big picture and that Verce-
les did not care if Maldonado signed an authorization card or
attended union meetings. Finally, she testified that Verceles
told her to look at “our side as well as the Union’s side” (Tr.
312). On redirect examination (Tr. 329), Maldonado testified
that Verceles did not say what specifically Maldonado and
Gibson were talking about when they were observed. How-
ever, her testimony, if credited, would lead me to be believe
that Verceles was intimating to Maldonado that she had been
observed discussing the Union with Gibson, and I infer from
this that Verceles knew or suspected that Gibson was a union
supporter.
Verceles testified very briefly about her meeting with
Maldonado (Tr. 397–98). She discussed the meeting with
Maldonado in Brian Chamberlin’s office regarding
Maldonado’s health insurance. Verceles did not address
Maldonado’s testimony that there was a second meeting in
Verceles’ office afterwards. Thus, she did not specifically take
issue with any of Maldonado’s assertions. Among
Maldonado’s uncontradicted assertions is that Verceles told her
that she had been observed speaking to Rebecca Gibson and
that she shouldn’t believe everything she was told by other
employees. In the absence of an alternative explanation, I infer
that Verceles meant that Maldonado was observed speaking to
Gibson and that they were observed when Gibson was speaking
in favor of the Union.
After Verceles testified about the meeting with Maldonado,
Respondent’s counsel asked her if she knew Cecilia Ives. Ives,
a certified nursing assistant who has worked at Pontiac for 16
years, testified that on March 4, 2004, Verceles spoke to her in
Tagalog or Tagalo, one of the principal Filipino languages, in
Respondent’s dining room (Tr. 351).2 Ives testified that Verce-

2 Tagalo is rendered “Pigalo” in the transcript.
les asked her if, “I’m one of them,” but that Ives didn’t under-
stand what Verceles meant. Ives then testified that Verceles
told her that Cosimo Masterpierro would lower wages if em-
ployees selected the Union.
Respondent’s counsel asked Verceles on direct if she ever
had any discussions with Ives about the Union. Verceles an-
swered in the negative. Then Respondent’s counsel asked,
“Did you have any discussions with any other employee about
the Union?” Verceles again answered, No (Tr. 398). This
question and answer are ambiguous, in that it is not clear
whether “any other employee” refers to Ives and Maldonado, or
merely Ives.
Given this ambiguity and Respondent’s failure to directly
contradict Maldonado’s testimony, I credit Maldonado and find
that Respondent, by Verceles, violated Section 8(a)(1) by giv-
ing the impression that employees’ union activities were under
surveillance and that Respondent’s rules and policies would be
more strictly enforced if employees chose the Union, as alleged
in complaint paragraph VI(h).3
Similarly, I find that Verceles’ response to counsel’s ques-
tion as to whether she had any discussions about the Union with
Ives, does not directly contradict Ives’ testimony that Verceles
asked her “If she was one of them,” or that she told Ives that
Masterpierro would lower employees’ wages. I therefore credit
Ives and find that Respondent, by Helen Verceles, violated
Section 8(a)(1), as alleged in complaint paragraph VI(i).4
5. Allegations of management surveillance of employees’ union
activities on nights and weekends in March 2004 and during the
Union’s St. Patrick’s Day rally (complaint para. VI(g) and (j))
Pamela Bedford worked 4 years for Respondent and then
was terminated in June 2003. She was rehired in September
2003 and worked at Pontiac until May 2004. Bedford testified
that during her last 8 months she worked the 11 p.m. to 7 a.m.
shift. During that period she observed her unit manager at the
facility during her shift on only one occasion. In late March or
April 2004, Valerie Rose came to nursing home at 4 a.m.
When Bedford saw Rose she said, “See, we are doing our jobs.
We’re not sleeping.” Rose said she knew that because she had
been standing by the timeclock for 10 minutes and could hear
Bedford and the other staff people on duty. Rose then walked
up the back stairs to the second floor.
Bedford also testified that Supervisor Kim Norton told her
that when she was working the day shift, Norton had been
asked to come in early on one of her shifts to check up on the
night shift. There is no indication as to when this occurred.
Bedford also testified that throughout her last 8 months, Direc-

3 As the General Counsel points out at p. 38 of his brief, Verceles’
comment regarding how Respondent would be less flexible if employ-
ees selected the Union, is particularly coercive in light of the fact that
Respondent had just intimated to Maldonado that it had done her a
favor by reinstituting her health insurance. The comment carries with it
a not too subtle suggestion that if employees were to select the Union,
management would not make such accommodations on behalf of
Maldonado or any other employee.
4 In this regard, in crediting these two current employees,
Maldonado and Ives (who worked at Pontiac for 16 years), I also rely
on the fact that Respondent made virtually no effort to attack the credi-
bility of either one of them on cross-examination.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD764
tor of Nursing Helen Verceles came to the facility during her
shift if a resident died and on other occasions to do paperwork.
Jasmine Maldonado testified that she worked 7 a.m. to 3
p.m. on every other weekend from January through May and
that during that time she saw Respondent’s upper level man-
agement at the facility only once—on a Saturday and Sunday
on the same weekend. On these days she saw Administrator
Brian Chamberlin, Office Manager Theresa Moshier and Social
Worker Renee Ackles.
Respondent offered no evidence as to the reasons Bedford
and Maldonado observed upper management personnel on
these occasions. However, the General Counsel did not make a
prima facie case that these individuals came to the facility in
whole or in part to engage in the surveillance of union activity.
I therefore dismiss complaint paragraph VI(g).
6. The St. Patrick’s Day rally
The Union held a rally in an open area diagonally across
from the Nursing Home from 2 or 2:30 p.m. to either 4 or 5
p.m. on St. Patrick’s Day, March 17, 2004. Employees held up
signs encouraging passing motorists to honk their horns in sup-
port of the Union and employee Alice Griffin dressed up in a
leprechaun costume for the rally and there was a “pot of gold”
stage prop.
The allegations of surveillance are based on testimony that
members of management, including Administrator Brian
Chamberlin, Nursing Director Helen Verceles, and Dietary
Director Joseph Wells, stopped to look out of the window of
the facility at the rally for several minutes at a time. Rank and
file employees did so as well. Chamberlin told employees in-
side the facility that they should go across the street to get their
pot of gold. I assume Chamberlin was being facetious. The
following day, Helen Verceles asked Griffin how she liked
dressing up for the rally.
LPN Nicole Culp and Jasmine Maldonado observed Joseph
Verceles, Respondent’s director of housekeeping and purchas-
ing, and Victor Scoritano, the director of maintenance, sitting in
a Scoritano’s parked vehicle in Respondent’s lot facing the
rally, for a few minutes. Employee Randi Stevens saw Scori-
tano doing paperwork in his vehicle during the rally. Alice
Griffin testified that she observed Brian Chamberlin get into
Scoritano’s vehicle.
Respondent offered no testimony regarding these allegations.
However, the General Counsel’s uncontradicted evidence does
not establish a violation of Section 8(a)(1).
The idea behind finding, “an impression of surveillance” as a
violation of Section 8(a)(1) of the Act is that employees
should be free to participate in union organizing campaigns
without the fear that members of management are peering
over their shoulders, taking note of who is involved in union
activities, and in what particular ways . . . an employer creates
an impression of surveillance by indicating that it is closely
monitoring the degree of an employee’s union involvement.
Flexsteel Industries, 311 NLRB 257 (1993).
Nevertheless, it is not a violation of the Act for an employer
to merely observe open union activity, Hoschton Garment Co.,
279 NLRB 565, 567 (1986); Fred’k Wallace & Son, 331 NLRB
914 (2000). On the other hand, even with regard to open union
activity, an employer violates the Act if it takes down names or
videotapes the employees. Under this standard the only man-
agement activities that raises any issues of illegal conduct are
Helen Verceles’ comment to Alice Griffin about her costume,
and the fact that Dietary Director Joseph Wells, while standing
at the window, verbally tried to identify people and commented
on Alice Griffin’s leprechaun outfit (Tr. 304). I deem this in-
sufficient to find that Respondent was creating the impression
of surveillance, or engaging in unlawful surveillance. I there-
fore dismiss complaint paragraph VI(j).
The instant case is easily distinguished from Fred’k Wallace,
supra. There management personnel, who were not present
during employees’ conversations with union organizers, took
great pains to make sure that the employees knew that man-
agement knew what transpired. Additionally, the employer
interrogated an employee about his conversation with union
organizers. Here, there is no evidence that Respondent at-
tempted to record the identity of employees who attended the
rally. Moreover, while the employee in Wallace may have had
an expectation that higher level management would not observe
his union activities, the participants in the March 17 rally across
the street from Respondent’s nursing home should have rea-
sonably expected that every management official present that
day would observe the rally and notice who was there—
particularly someone like Griffin who wore a costume for the
occasion.
7. Respondent’s refusal to allow employees to wear carnations
at its facility on March 17, 2004, to show their support for the
Union (complaint para. VI(k)).
On the morning of March 17, 2004, the same day as the Un-
ion’s public rally, Local 1199 attempted to have its supporters
wear a carnation with a purple ribbon at work.5 In the presence
of rank and file employees, Administrator Brian Chamberlin
told Unit Manager Valerie Rose to have employees remove the
flowers because the straight pin affixing the flowers posed a
danger to the nursing home’s residents. Chamberlin initially
told cook Alice Griffin to remove her flower only if she was
going to come into contact with the residents. Later, however,
he directed Dietary Supervisor Joseph Wells to have Griffin
and other cooks remove the flowers on the grounds that the
carnations might fall into the food.
Respondent made no attempt to prohibit union supporters
from wearing other union badges or insignia at work and em-
ployees wore such insignia. However, on Nurse’s Day in 2003,
Respondent distributed flowers for the nurses to wear on duty.
These also were affixed with a straight pin.
In general, employees have a protected right under Section 7
of the Act to make known their concerns and grievances per-
taining to the employment relationship, which includes wearing
union insignia or buttons at work, Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 801–803 (1945). Section 7 rights, how-
ever, may give way when “special circumstances” override the
employees’ Section 7 interests and legitimatize the regulation

5 The purple ribbon signified support for the SEIU and I infer that
Respondent’s management was aware that it did so.
PONTIAC CARE & REHABILITATION CENTER 765
of such apparel. However, rules forbidding organizational
activities in the patient care areas of a health care facility are
not presumptively invalid, Beth Israel Hospital v. NLRB, 438
U.S. 483, 506 (1978).
Absent the fact that Respondent gave its nurses flowers to
wear on Nurses’ Day, it would be clear that Respondent could
prohibit nurses from wearing flowers with a pin in patient care
areas. Pamela Bedford conceded that nurses have to lift pa-
tients on occasion and that a patient could be stuck with the pin.
Similarly, I find that Respondent has established sufficient
special circumstances with regard to the resident’s food to law-
fully prohibit the wearing of the carnations by its cooks.
Despite the fact that Respondent appears to promote the
wearing of flowers affixed by pins on Nurse’s Day, I decline to
find a violation of Section 8(a)(1) simply on the basis on this
inconsistency. Respondent allowed employees to demonstrate
their support for the Union by wearing several other forms of
insignia, such as badges and purple clothing. Thus, in balanc-
ing Respondent’s interest in protecting its residents and the
employees’ right to organize, I conclude that Pontiac was enti-
tled to prohibit the wearing of carnations affixed with a straight
pin. Moreover, in light of the fact that Respondent did not
interfere with employees’ right to wear other forms of union
insignia, I deem that prohibiting the wearing of the carnations
was at worst a de minimis violation of the Act, Yellow Ambu-
lance Service, 342 NLRB 804, 810 (2004). I therefore dismiss
complaint paragraph VI(k).
8. The suspension and termination of Rebecca Gibson
(complaint pars. 7(c) & (d))
Respondent initially hired Rebecca Gibson, an LPN, in Sep-
tember 2001. Nine months later she quit without giving notice.
In September 2002, Helen Verceles rehired Gibson for the day
shift where she worked until March 25, 2004, when she was
terminated. Gibson committed a “medication error” on No-
vember 7, 2003, by withholding Dilantin from a patient on the
wrong date. She committed another medication error when she
gave a blood pressure medication at 8 a.m. instead of 8 p.m. on
December 5, 2003. Nurses at Pontiac commit similar medica-
tion errors on a recurring basis, either several times a month or
possibly even several times a week. Almost all the nurses em-
ployed by Respondent, if not all, have committed a medication
error at some time during their employment.
Director of Nursing Helen Verceles conducts quarterly meet-
ings with the nurses in which she issues discipline for errors
committed during the last quarter. Pursuant to Respondent’s
medication error policy (GC Exh. 3) the nurse manager or su-
pervisor conducts a verbal counseling for nurses who have
accumulated 1–15 points and a written counseling if a nurse has
accumulated 16–30 points. The policy provides that, “points
are cumulative. To have points removed, employee must be
error free for one year.”
Verceles conducted a written counseling for Gibson on
March 23, 2004.6 She gave Gibson a written warning and as-
sessed 21 disciplinary points for the November and December

6 Although the warning is dated March 22, Verceles most likely met
with Gibson on March 23, as Gibson initially testified. R. Exh. 6 sug-
gests that Gibson worked on March 23, but not on March 22.
2003 errors, based on a number of factors including the type of
error and type of drug (GC Exh. 7). Verceles issued a written
warning dated March 22, 2004, to Janna Purchase, assessing 29
points for medication errors and verbal warnings the same day
to Kimberly Jeremenko (15 points) and Nicole Kulp (14 points)
(GC Exhs. 11, 20, and 28).
Respondent’s procedure for the distribution of medications is
that they are put on a cart in a blister pack, and as the nurse
comes to each resident’s room, the nurse puts that resident’s
medications into a paper cup. The nurse then initials each
block on the medication administration record (MAR) to attest
to the fact that the resident has received his or her prescribed
medications. Nurses then take the cup into the patient’s room
and insure that the resident takes his or her medication. If the
resident refuses or is unable to do so, the RN or LPN circles the
nurse’s initials on the MAR and writes an explanation as to
why the medication was not taken on the back of the MAR. (R.
Exh. 1.)7
On Thursday, March 25, 2004, starting at about 7 a.m., Gib-
son, who was the only LPN on the first floor, other than Unit
Manager Valerie Rose, passed out medications to the residents
on her floor.8 At the room of a resident who was suffering
from dementia, she circled the blocks for eight medications but
left the cup with pills in the room without observing the patient
taking the medications. Gibson testified that she did not do so
because a certified nursing assistant interrupted her and indi-
cated that she thought there was an emergency with a resident
in another room.9 Director of Nursing Verceles and Unit Man-
ager Valerie Rose discovered the pills in the room about noon.
At about 10 a.m., the same day, Gibson was sitting at the
nurse’s station doing paperwork when Certified Nursing Assis-
tant Alethea Matott approached the station and told Gibson and
Unit Manager Valerie Rose that a patient’s bandage had fallen
off of his foot.10 Gibson testified that Rose said nothing at this
time. Rose, on the other hand, testified that she said, “you guys
have work to do.” I credit Rose in that I find she said some-
thing to indicate that Gibson should attend to the bandage. Her
testimony regarding “you guys” doesn’t make literal sense in
that Matott could not have replaced the bandage or performed
the treatment. However, Gibson signed a warning notice that
states that she was told to do the treatment.
Gibson continued to do her paperwork. Rose testified that a
half-hour later, the same nurse’s assistant returned to the
nurse’s station and told Rose that there was still no bandage on
the patient’s foot. Matott, called as a rebuttal witness by the

7 Some residents are allowed to self-medicate in certain circum-
stances. In such cases the nurse does not have to insure that the medi-
cations are taken.
8 There are generally 35–40 residents per floor.
9 Certified nursing assistants cannot pass out medications or perform
treatments ordered by a physician. They generally assist residents in
personal tasks such as bathing, using the toilet, etc.
10 Rose testified that the nurse’s assistant said that the patient’s
wound was bleeding on the sheets, (Tr. 501, 519); Gibson denies this
(Tr. 193). Althea Matott, the certified nurses assistant in question,
testified that all she said to Rose and Gibson was that a certain resident
had to have a dressing put on (Tr. 530). I credit Matott, a witness who
has no apparent stake in the outcome of this matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD766
General Counsel, does not recall either going into the resident’s
room a second time or talking to Rose about the bandage a
second time. However, Matott was not the only certified
nurse’s assistant on duty that day.
Rose testified that she told Gibson that she shouldn’t be do-
ing paperwork, she needed to go do “the treatment.” The doc-
tor’s orders required that on the day shift that accuzyme be
applied to the right lateral foot of the patient after it was
cleaned with wound cleaner. A dry dressing was then to be
applied (Tr. 195; R. Exh. 6). Gibson testified that neither Ma-
tott nor Rose indicated that replacing the bandage was an emer-
gency and that she planned to do it sometime during her shift
when she performed the treatment in accordance with the doc-
tor’s orders. Gibson concedes that the wound was open and
that leaving it uncovered exposed the resident to the risk of
infection. However, she testified that bandages fall off resi-
dents all the time and she did not believe that Matott’s report
called for immediate attention to the resident. She also testified
that Rose did not indicate to her that she needed to immediately
replace the bandage.
At about 11 a.m., Gibson went to an in-service training ses-
sion. When she returned, Valerie Rose told Gibson that Rose
had replaced the bandage. Gibson denies that Rose at anytime
said anything else to her about this matter. I credit her testi-
mony in this regard. Gibson concedes that she initialed the
treatment book signifying that she had performed the treatment
for the patient when she had not done so. However, she testi-
fied that later in the day she performed other treatments on this
patient; putting bandages on his hips and attending to his G-
tube site.
Rose reported the incident to Helen Verceles. At trial, Rose
testified that she told Verceles that she had told Gibson to do
the treatment (which would include replacing the bandage)
twice and that Gibson refused to do so. Gibson denies refusing
to perform the treatment and refusing to replace the bandage.
Her termination notice (GC Exh. 8) states:
Failure to render a personal service to a resident.
Failure to comply with infection control issues.
Neglect of resident needs.
Was told to do the treatment. Did not do the treatment.
Failure to do treatment under direct order
Insubordination
CNA told nurse wound was exposed and draining.11
I find that Gibson did not affirmatively state or indicate that
she would not do the treatment or replace the bandage. I con-
clude that she simply didn’t do it in a timely fashion.
At the end of Gibson’s shift on March 25, Rose escorted her
to Helen Verceles’ office. Verceles told Gibson that she was
suspending her for 2 days (March 26 and 29) for insubordina-
tion on account of her failure to replace the resident’s bandage.
She also told Gibson that she was going to investigate the

11 Gibson denies that the last three lines were on her termination no-
tice when she signed it. Based on Matott’s testimony, I do not find that
she told Gibson that the wound was exposed and draining. I assume
Gibson knew the resident had an open wound on his foot from treating
him prior to March 25, R. Exh. 6.
medication error and that Gibson should call her on Monday
morning, March 29, to find out the result. Verceles then called
the New York State Department to Health regarding Gibson’s
failure to replace the bandage and do the treatment on the pa-
tient’s right foot. She also sent documentation to the State
Board of Professions regarding Gibson’s March 25 medication
error.
Verceles testified that her investigation consisted of deter-
mining which medications Gibson had left in the resident’s
room. She calculated that Gibson incurred 56 disciplinary
points for the March 25 medication error (based in large part on
the number and type of medications left in the cup), which
when added to her 21 points from the fall totaled 77 points.
Respondent’s medication error policy (GC Exh. 3, p. 2) pro-
vides that a nurse with 46–60 disciplinary points will be sus-
pended for 3 days and that “after review of work record and
discussion with the director of nursing, will be terminated, if
warranted.” Verceles does not contend that Gibson was termi-
nated simply on the basis of the number of points she had ac-
cumulated, but rather due to Verceles’ cumulative assessment
of the two incidents on March 25.
Nursing Home Administrator Brian Chamberlin and Verce-
les met on Monday morning to discuss Gibson. Neither testi-
fied as to what was discussed or whether any penalty less se-
vere than termination was considered. After this meeting, Gib-
son called Respondent. Verceles then informed Gibson that she
was being terminated as the result of the two March 25 inci-
dents.
III. ANALYSIS
In order to prove a violation of Section 8(a)(3) and (1), the
General Counsel must generally make an initial showing that
(1) the employee was engaged in protected activity; (2) the
employer was aware of the activity; and (3) that animus to-
wards the protected activity was a substantial or motivating
reason for the employer’s action. Once the General Counsel
makes this initial showing, the burden of persuasion shifts to
the Respondent to prove its affirmative defense that it would
have taken the same action even if the employee had not en-
gaged in protected activity, Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (lst Cir. 1981); La Gloria Oil & Gas
Co., 337 NLRB 1120 (2002).
The Board requires the General Counsel to make an initial
showing sufficient to support an inference that the alleged dis-
criminatee’s protected conduct was a “motivating factor” in the
employer’s decision. Then the burden shifts to the employer to
demonstrate that the same action would have taken place even
in the absence of protected conduct, American Gardens Man-
agement Co., 338 NLRB 644 (2002). Unlawful motivation is
most often established by indirect or circumstantial evidence,
such as the suspicious timing of disciplinary action, pretextual
reasons given for the discipline and disparate treatment of the
discriminatees compared with employees without known union
sympathies.
PONTIAC CARE & REHABILITATION CENTER 767
1. The record evidence with regard to Gibson’s union activity,
Respondent’s knowledge of that activity and its animus towards
Gibson’s union activity
Apart from Gibson’s testimony, there is virtually no direct
evidence that Gibson engaged in union activity. On the other
hand, there is no evidence contradicting her testimony that she
did so. Gibson testified that she was the employee who initi-
ated contact with the Union. She also testified that several
union meetings were held at her home and that she distributed
union authorization cards.
There is no evidence that Gibson attended the Union’s rally
across the street from Respondent’s facility on March 17, nor is
there any explanation as to why she didn’t attend. From Re-
spondent Exhibits 5 and 6 (a MAR and treatment sheet for the
month of March), it appears that Gibson may not have worked
on March 17.
Gibson testified to meeting with Helen Verceles on March
23, 2004 to discuss her medication errors in November and
December 2003. Her testimony is totally uncontradicted in that
Verceles did not address the March 23 meeting at all in her
testimony.12
Significantly, Gibson testified that she was wearing a purple
SEIU badge when she met with Verceles alone on March 23.
While Verceles testified that Gibson was not wearing such a
badge when she met with Gibson on March 25, she did not
address Gibson’s claim that she was wearing a union badge on
March 23. Gibson’s uncontradicted testimony is as follows:
Yes, after we had got done discussing the med errors that I
had had, she asked
If I was wearing my Union pin, and I stated yes.
. . . .
Yeah, she asked me at that point, what was going on with eve-
rybody, and I asked her what she meant, and she stated that I
knew what she was talking about. And I said, “About the Un-
ion stuff?” and she said “Yes.” And I explained to her that
people were just upset with stuff that was going on. She
asked me “Like what?” I stated that people were upset that
they were not getting paid for what was on their timecards
and that their vacation time and their sick time was no longer
on their paystubs.
. . . .
Helen had asked, stated that she thought that her and I were
becoming friends, and I stated so did I. She stated that if I
could see myself sitting in her spot in five to 10 years, then
me and Pat Poole [a union organizer] can come in and sit
down and talk to her.
. . . .

12 Although the disciplinary warning for Gibson is dated March 22,
2004, her meeting with Verceles occurred on March 23, as Gibson
testified. R. Exhs. 5 and 6, a medical administration record and a sheet
from the treatment book, indicate that Gibson worked on the March 23,
but not on 22.
After she had made, I think it was before she made that state-
ment, she told me not to play both sides of the fence and I
stated that I wasn’t, she knew where I stood.
Tr. 126–27.
Gibson testified that the conversation concluded with Verce-
les and Gibson discussing why Verceles hadn’t been talking to
Gibson. She stated that Verceles accused her of “doing this
behind my back.” According to Gibson, Verceles gestured with
her middle finger.
As indicated previously, the testimony of Jasmine
Maldonado also suggests that Respondent was aware that Gib-
son was engaging in union activity. Maldonado’s uncontra-
dicted testimony is that on March 11, 2004, immediately after
Verceles told Maldonado that she had been observed talking to
Gibson, Verceles started a discussion about the Union. Verce-
les told Maldonado that Pontiac would not be such a friendly
place if employees selected the Union. On the basis of the
uncontradicted testimony of Gibson and Maldonado I find that
Gibson engaged in union activity, Respondent knew or sus-
pected that she was engaged in union activity and bore animus
towards her as a result.
The record evidence with regard to discriminatory motive
The National Labor Relations Board may infer discrimina-
tory motive from the record as a whole and under certain cir-
cumstances, indeed not uncommonly, infers discrimination in
the absence of direct evidence. When the Respondent’s stated
reasons for its actions are found to be false (i.e., “pretextual
reasons”), discriminatory motive may be inferred. In turn,
“pretext” is sometimes, if not often, inferred from a blatant
disparity in the manner is which an alleged discriminatee is
treated as compared with similarly situated employees with no
known union sympathies or activities (i.e., disparate treatment),
New Otani Hotel & Garden, 325 NLRB 928 fn. 2 (1998); Fluor
Daniel, Inc., 304 NLRB 970 (1991); Citizens Investment Ser-
vices Corp., 342 NLRB 316, 330 (2004).
Much if not all of the General Counsel’s case of discrimina-
tory motive rests on his contention that Rebecca Gibson’s
treatment was blatantly disparate when compared to several
nurses, for whom there is no evidence of union activity or sym-
pathy. The employees who were treated less severely accord-
ing to the General Counsel include the following:
2. LPN Kimberly Jeremenko
Kimberly Jeremenko received a Personal Warning Notice
from Helen Verceles on October 17, 2003 (GC Exh. 24). This
notice listed several deficiencies:
Failure to do a treatment on time on October 16;
Some treatments not done.
Between November 21 and 25, 2003, Jeremenko gave the
wrong doses of a medication 4 days in a row. Helen Verceles
gave her a “verbal warning” and 15 disciplinary points for these
errors on March 22, 2004 (GC Exhs. 20, 22).
On the same day as Jeremenko’s fourth medication error on
November 25, 2003, Verceles suspended her for 2 days for the
following omissions:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD768
Treatments not done Room 213A, dated initialed tape still af-
fixed to old dressing (date 11/23) foul odor, soaked dressing
removed by D.O.N., U.M.13
Koskin-not done
Boltwood treatment-not done
Adelie Gould-dressing not done
C. Green-not done
Treatment book not signed or circled.
Two months later on January 22, 2004, Verceles gave Jere-
menko another warning notice. This notice (GC Exh. 21) states
that Jeremenko:
[was] asked to do PPD (a tuberculin skin test)14 for new ad-
mits, per job description of charge nurse
PPDs not done
MD in new orders given to Kimberly to take off
4 orders were given by Kimberly to Med Nurse to do.
Others were not called in or faxed by Kimberly J—faxed by
3–11 shift nurse. Kimberly did not punch out until 4:46 p.m.
On Friday, March 26, 2004, the day after Verceles met with
Rebecca Gibson, she gave Kimberly Jeremenko another warn-
ing. This one (GC Exh. 19) states:
Treatments not done 7-3 shift Room 204B, 208B, 217B. 216
Not signed for, not done, not endorsed to next shift—not
signed or circled.
This is 2nd warning further violation will lead to disciplinary
measures and/or termination.
As of the instant hearing, Jeremenko was still employed by
Respondent. Respondent has never reported Jeremenko to the
State Department of Health or the Board of Professional Li-
censing.
3. LPN Janna Purchase
On November 8, 2003, Purchase failed to administer a dose
of dilantin, an anticonvulsant. (GC Exh. 30).
On November 21, 2003, Purchase did not follow the medical
administration record for a patient by failing to notify a physi-
cian when a resident’s blood sugar was low (GC Exh. 31).
On November 23, 2003, she applied a transdermal patch,
containing a narcotic, on the wrong day.
On March 22, 2004, Helen Verceles gave Janna Purchase a
written warning for the disciplinary point total of 29, incurred
for the three November 2003 incidents.
On April 14, 2004, Purchase failed to administer a prescribed
dose of dilantin. Prior to April 14, the physician had prescribed
phenytoin sodium, an extended 100 mg dilantin capsule. On
April 14, he discontinued the 100 mg capsule and substituted a
200 mg capsule twice daily (bid). Purchase erroneously gave
the 100 mg capsule.
Purchase received another warning from Helen Verceles on
May 20, 2004. The warning notice states that Purchase failed
to do treatments for two second floor residents during her shift

13 D.O.N stands for director of nursing; U.M. stands for unit man-
ager.
14 MedicineNet.com; Medterms Dictionary.
and that the treatment record was not signed (Tr. 478). Verce-
les was warned that a recurrence would lead to further discipli-
nary action (GC Exh. 28).
Respondent never reported any of Purchase’s errors to the
New York State Department of Health nor to the State Board of
Professional Licensing. Indeed, Purchase was promoted to unit
manager in June or July 2004 (Tr. 515).
4. RN Kimberly Norton
Kimberly Norton’s employment with Respondent ended vol-
untarily on July 5, 2004. Norton, who was a registered nurse
and a supervisor, committed a number of medication errors
during the last 6 months of her tenure at Pontiac:
On January 19, 2004, Norton left a cup of with a laxative and
vitamins in a patient’s room (GC Exh. 10);
On February 3, 2004, Norton failed to give a patient an-
tiarrythmic medication on three occasions (GC Exh. 25);
On February 4, 2004, Norton failed to check the blood sugar
of a diabetic patient and administer insulin, which the patient
needed as the result of elevated blood sugar (GC Exh. 26);
On February 5, 2004, Norton failed to follow Respondent’s
safety procedures and protocol by leaving eight pre-filled sy-
ringes of vaccine in a refrigerator. This created a risk that the
vaccine would become contaminated or that the vaccine
would expire before it was administered (GC Exh. 27; Tr.
474–475);
On February 10, 2004, Norton was suspended for the Janu-
ary and February errors—apparently for 3 days (R. Exh. 12).
Norton’s suspension notice notes the following:
Accumulated total of 46 points per point system for medica-
tion error.
Did not follow facilities protocol for informing MD for unsta-
ble condition.
Leaving pre-filled syringes (vaccine) in med room refrigera-
tor.
The calculation of 46 disciplinary points does not include the
19 points assessed for leaving the syringes in the refrigerator.
The actual total accumulated by Norton in January and Febru-
ary is 65 points.
On June 11, 2004, Norton gave Adivan, a narcotic to the
wrong patient (Tr. 276–282). Nurse Nicole Kulp informed Unit
Manager Valerie Rose of the error. There is no evidence that
Norton was disciplined for this mistake. This mistake should
have resulted in additional points being assessed under Re-
spondent’s medication error policy.
Respondent never reported Norton to the State Department
of Health or the Board of Professional Licensing.
5. Other nurses disciplined by Respondent
On March 18, 2004, Respondent suspended Certified Nurs-
ing Assistant Jennifer Cahill for insubordination. Cahill walked
out of the room during a verbal counseling session with her unit
manager and the director of nursing, (R. Exh. 13(h)).
PONTIAC CARE & REHABILITATION CENTER 769
Respondent has terminated several nurses.15 Certified Nurs-
ing Assistant Tina Mansfield was terminated on May 2, 2003.
Mansfield refused to assist Respondent’s office manager,
Theresa Moshier, in getting residents off a bus and into the
building. (R. Exh. 13(d) & (e).)16
On May 7, 2003, Administrator Brian Chamberlin termi-
nated LPN Daneen Bowman. Bowman had made several unau-
thorized changes in the nurses’ work schedules on the same
day. Bowman had taken herself off the schedule without ap-
proval and was warned that she would be terminated if she was
guilty of further misconduct. That night, without authorization,
Bowman told another nurse not to report to work. (R. Exh.
13(g).)
Pontiac terminated Darlene Austine on January 8, 2004 for
dishonesty to a direct supervisor; failure to assist with staffing
for call-ins; refusing to comply with an order from Verceles to
transport and accompany a patient to an appointment on Janu-
ary 7, 2004; using foul language and exhibiting disrespect to
management. (R. Exh. 13-c.)17
On June 5, 2004, LPN Kelly Broadwell initially refused to
comply with Chamberlin’s directive to come into his office and
responded, “no f—king way!” Broadwell eventually went into
Chamberlin’s office where he told her that one nurse must al-
ways be in the building and available. Chamberlin also told
Broadwell that he would be setting a schedule for nurses’
breaks and mealtimes. At this, Broadwell started yelling and
swearing at Chamberlin, who fired her. (R. Exh. 13(f).)
6. Analysis of the disparate treatment evidence and
conclusions inferred
First of all, there is no merit to the General Counsel’s allega-
tion that Rebecca Gibson was discriminatorily suspended for 2
days on March 25. Her failure to replace the resident’s ban-
dage demonstrated a serious lack of judgment, at best, as did
her inaccurate completion of the treatment book. The suspen-
sion of Kimberly Jeremenko on November 25, 2003, and of
Kimberly Norton on February 10, 2004, establishes that Gib-
son’s suspension was not discriminatory, or at least that Re-
spondent met its affirmative burden of proving that Gibson
would have been suspended even in the absence of protected
activity.
Gibson’s termination, however, is a wholly different matter.
Respondent admittedly did not fire her for either failing to re-
place the bandage or failing to insure that the resident took his
medications; it contends, however, that the combination of the

15 Respondent attempted to introduce evidence that it terminated
Nurse Joanne Davenport. The General Counsel objected on the
grounds that documents pertaining to Davenport were not properly
produced pursuant to its subpoena. In response, Respondent withdrew
documentary evidence. As a result, I will not consider her termination
in analyzing the motive for Rebecca Gibson’s discharge—in so far as
this record is concerned, the termination never occurred.
16 Respondent offered no testimony about the circumstances of
Mansfield’s termination; it merely introduced documents. Moshier
testified, but not about the Mansfield termination.
17 There is very little in the record as the specific circumstances sur-
rounding Austine’s termination; Respondent simply introduced her
termination document.
two errors establishes a nondiscriminatory basis for Gibson’s
termination.
The record as a whole indicates, however, that Respondent
would not have terminated Gibson absent its animus towards
her union activity. First of all, with one exception, there is no
evidence that Respondent ever reported a nurse other than Gib-
son to the Department of Health or State Board of Professional
Licensing for similar mistakes. Respondent may have reported
Linda Wheeler to one or more state agencies prior to time that
Verceles became director of nursing (Tr. 429). However, Re-
spondent concedes that it did not report Jeremenko, Norton, or
Purchase to either the Department of Health or Board of Pro-
fessional Licensing (Tr. 471–472, 475, 488). Additionally,
several of the General Counsel’s witnesses testified that they
were unaware of any nurse who had been reported to either
agency (e.g., Pamela Bedford at Tr. 68; Gibson at Tr. 151; for-
mer supervisor Cheri Swan [aka Cheri Caldrome] at Tr. 248).
Helen Verceles stated that Gibson’s failure to replace the
resident’s bandage in a timely fashion created “a dignity issue.”
However, Jeremenko’s failure to do prescribed treatments ap-
pears to have raised similar “dignity issues,” particularly Jere-
menko’s failure to do a treatment and apply a dry dressing for 2
days between November 23 and 25, 2003. Respondent has
offered no evidence distinguishing Jeremenko’s situation from
Gibson’s. Moreover, Jeremenko’s failure to do tuberculin skin
tests, after having been told to do so in January 2004, is every
bit as insubordinate as Gibson’s conduct. The day after Re-
spondent fired Gibson, Verceles warned Jeremenko for a sec-
ond time about her failure to perform prescribed treatments for
a number of residents.
Moreover, the fact that Gibson committed two serious errors
on the same day does not distinguish her situation from that of
Jeremenko, Janna Purchase or Kimberly Norton. Jeremenko
committed medication errors at the same time she failed to do a
number of treatments in November 2003. The same month
Purchase committed three medication errors in a 15-day period.
Norton committed significant errors on 3 successive days (3 on
February 3) in early February 2004 and was suspended, not
terminated. Moreover, Norton incurred 65 disciplinary points
in January and February 2004 pursuant to Respondent’s medi-
cation error policy and additional points in June. If Verceles
was “going by the book” in terminating Gibson, as she warned
Maldonado, she certainly didn’t “go by the book” in adminis-
tering discipline to Norton.
Although Verceles testified that she was required by law to
report Gibson’s medication errors to the Department of Health,
there is no explanation as to why she did not report the medica-
tion errors of other nurses. There is no evidence indicating that
Respondent was not required to report these mistakes.
The cases of the nurses who were fired by Respondent are
clearly distinguishable from Gibson’s situation. In each case,
the nurse reacted in a defiant manner to a supervisor or man-
ager’s request and in several cases used grossly insubordinate
and/or profane language in responding to the request.
In summary, I draw the inference that Respondent would not
have terminated Rebecca Gibson for the two March 25, 2004
incidents had it not known or suspected her of union activity
and bore animus towards her as a result. I thus find that Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD770
spondent violated Section 8(a)(3) and (1) in terminating Re-
becca Gibson, as alleged in complaint paragraph VII(d). I dis-
miss the allegation in paragraph VII(c) regarding her 2-day
suspension.
CONCLUSIONS OF LAW
1. Respondent, by Kimberly Norton, violated Section 8(a)(1)
in interrogating employee Heather Seaman-Stout about her
union activities.
2. Respondent, by Valerie Rose, violated Section 8(a)(1) in
interrogating employee Jasmine Maldonado regarding her un-
ion sympathies and threatening Maldonado with a reduction of
wages if employees selected the Union as their collective-
bargaining representative.
3. Respondent, by Helen Verceles, violated Section 8(a)(1)
in conveying to Jasmine Maldonado the impression that her
discussions with Rebecca Gibson concerning the Union were
under surveillance; by threatening unspecified reprisals, i.e.,
that Respondent’s nursing home would not be such a “friendly
place” if employees selected the Union as their bargaining rep-
resentative and by interrogating employee Cecilia Ives about
her union sympathies.
4. Respondent violated Section 8(a)(3) and (1) in terminating
the employment of Rebecca Gibson on March 29, 2004.
The Respondent having discriminatorily discharged Rebecca
Gibson, it must offer her reinstatement and make her whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted 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 recommended18
ORDER
The Respondent, Pontiac Care and Rehabilitation Center,
Oswego, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting Local 1199 New York Upstate Division,
Service Employees International Union (SEIU), or any other
union.
(b) Coercively interrogating any employee about union sup-
port or union activities.
(c) Threatening employees with a reduction in wages or un-
specified reprisals if employees select a union as their collec-
tive-bargaining representative.
(d) Conveying the impression to employees that their union
activities are under surveillance.

18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
(e) 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.
(a) Within 14 days from the date of the Board’s Order, offer
Rebecca Gibson full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Rebecca Gibson whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
her in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge, and
within 3 days thereafter notify Rebecca Gibson in writing that
this has been done and that the discharge will not be used
against her in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its
Oswego, New York facility copies of the attached notice
marked “Appendix.”
19
Copies of the notice, on forms provided
by the Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous 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 involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since February
26, 2004.
(f) 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.
(g) IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.

19
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.”
PONTIAC CARE & REHABILITATION CENTER 771
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Local 1199 New York Upstate Divi-
sion, Service Employees International Union (SEIU), or any
other union.
WE WILL NOT coercively question you about your union sup-
port or activities.
WE WILL NOT threaten you with a reduction in wages or with
unspecified reprisals if you select the Union as your collective-
bargaining representative.
WE WILL NOT convey the impression to employees that their
union activities are under surveillance.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Rebecca Gibson full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Rebecca Gibson whole for any loss of earn-
ings and other benefits resulting from her discharge, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Re-
becca Gibson, and WE WILL, within 3 days thereafter, notify her
in writing that this has been done and that the discharge will not
be used against her in any way.
PONTIAC CARE AND REHABILITATION CENTER