Somerset Valley Rehabilitation and Nursing Center

National Labor Relations Board - Administrative Judge Opinions

Nov 21, 2011

22-CA-029599 (N.L.R.B. Nov. 21, 2011)

JD(NY)–45–11
Bound Brook, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
1621 ROUTE 22 WEST OPERATING
COMPANY, LLC D/B/A SOMERSET
VALLEY REHABILITATION AND
NURSING CENTER
and Cases 22-CA-29599
22-CA-29628
22-CA-29868
1199 SEIU UNITED HEALTHCARE
WORKERS EAST, NEW JERSEY REGION
Saulo Santiago and Michael Silverstein, Esqs., Newark, NJ,
for the Acting General Counsel.
Ellen Dichner, Esq. (Gladstein, Reif & Meginniss, LLP),
New York, NY, for the Union.
Jay W. Kiesewetter and Steve W. Likens, Esqs.
(Kiesewetter Wise Kaplan Prather, PLC),
Memphis, TN, for the Respondent.
DECISION
Statement of the Case
STEVEN DAVIS, Administrative Law Judge: Based on various charges and amended
charges filed by 1199 SEIU, United Healthcare Workers East, New Jersey Region (Union), a
Second Order Consolidating Cases and Amended Consolidated Complaint was issued on April
6, 2011 against 1621 Route 22 West Operating Company, LLC d/b/a Somerset Valley
Rehabilitation and Nursing Center (Respondent, Employer or Somerset Valley).1
The complaint, as amended at the hearing, alleges that the Respondent violated Section
8(a)(1) of the Act by (a) interrogating its employees about their Union membership and (b)
soliciting its employees’ complaints and grievances, thereby promising its employees increased
benefits and terms and conditions of employment if they refrained from union organizational
activities.

1 The docket entries are as follows: Case No. 22-CA-29599: charge filed on August 31,
2010; first amended charge filed on September 10. Case No. 22-CA-29628: charge filed on
September 22; first amended charge filed on September 30; second amended charge filed on
October 22, third amended charge filed on October 26; fourth amended charge filed on
February 8, 2011; fifth amended charge filed on February 16; Case No. 22-CA-29868 filed on
March 1, 2011.
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The complaint also alleges that the Respondent unlawfully issued written warnings to
employees Sheena Claudio, Jillian Jacques, Shannon Napolitano, and Valarie Wells. It is also
alleges that the Respondent discharged Claudio, Jacques, Napolitano, Wells, and Lynette Tyler.
It is further alleged that the Respondent reduced the hours of per diem employees including
Daysi Aguilar, Dominique Joseph, Rita Onyeike, Gertrudis Rodriguez, and Annie Stubbs
because of their Union activities.
The Respondent’s answer denied the material allegations of the complaint and asserted
an affirmative defense that the complaint was barred by Section 10(b) of the Act.2 A hearing
was held on 19 days between April 27 and June 28, 2011 in Newark, New Jersey.3
Upon the evidence presented in this proceeding and my observation of the demeanor of
the witnesses and after consideration of the briefs filed by all parties, I make the following:
Findings of Fact
I. Jurisdiction and Labor Organization Status
The Respondent, a corporation having an office and place of business in Bound Brook,
New Jersey, has been engaged in the business of operating a nursing home and rehabilitation
center providing health care and related services. During the past 12 months, the Respondent
derived gross revenues in excess of $100,000 and received at its Bound Brook facility, goods
and services valued in excess of $50,000 directly from suppliers located outside New Jersey.
The 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 has been a health care institution within the
meaning of Section 2(14) of the Act.
The Respondent’s answer denied the labor organization status of the Union. On August
26, 2011, the Union was certified by the Board in a representation proceeding involving this
facility. Accordingly, I find that is a labor organization within the meaning of Section 2(5) of the
Act.
II. The Alleged Unfair Labor Practices
A. The Facts
1. Ownership and Hierarchy of the Respondent
In the Fall of 2006, the facility at issue was purchased and began to be operated by
Healthbridge Management, Inc., CareOne Management, Inc. which also owns and operates
other skilled nursing and rehabilitation centers. This facility, Somerset Valley, has 32 patient
rooms occupied by a maximum of 64 patients, also called residents. It is subject to New Jersey
and Federal Department of Health regulations.

2 No evidence was adduced concerning this affirmative defense. Accordingly, it is
dismissed.
3 Following the close of the hearing, certain subpoenaed documents were received in
evidence as Charging Party’s Exhibit 12.
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The Employer employs about 75 bargaining unit employees. The number of employees
scheduled to work at any given time depends on the number of patients residing at the facility,
called the “census.”
Jason Hutchens, the Regional Director of Operations for CareOne, has overall responsibility
for the operation of the facility. The top official at the facility itself is the administrator. CareOne’s
first administrator was Carolyn Allen, who was replaced by Elizabeth Heedles two years later, in
December, 2008. Doreen Illis
replaced Heedles on August 3, 2010.
The nursing department is the most important area in the facility because it is directly
involved with patient care. The facility has had several directors of nursing. Rebecca McCarthy
was the director of nursing under administrator Heedles. McCarthy was replaced by Christiana
Enworum, and then Eileen Meyer, who began work in Spring, 2009. Kamala Kovacs was the
next director of nursing, who was then replaced by Inez Konjoh on August 16, 2010. Jacqueline
Engram, the vice president of clinical operations, who replaced Konjoh in January, 2011, stated
that Konjoh was transferred due to poor and “inconsistent performance” in clinical meetings,
completing investigations in a timely manner, and her overall management of employees. She
stated that these performance issues began in November, 2010.
The Respondent employs three categories of nurses: registered nurses (RN), licensed
practical nurses (LPN), and certified nurses’ aides (CNA). The RNs and LPNs administer
medicine to the patients during a medication pass (med pass), and administer treatments to the
residents, such as applying bandages and lotions to their skin. The CNAs assist the residents
with activities of daily living, such as distributing food to them, feeding them, cleaning them and
helping them walk.
The Employer also employs supervisory nurses who act as “unit managers” and
supervisors. There are also nonsupervisory charge nurses who act as the “link between the
floor nurse and the physician,” whose duties include receiving orders for treatments and
medications from physicians and transcribing those orders onto written order sheets,4 calling the
pharmacy for medications, and scheduling appointments and tests for the patients. When a
charge nurse is not on duty, the supervisory nurse acts as the charge nurse.
The facility operates during three shifts: 7:00 a.m. to 3:00 p.m. (day shift), 3:00 p.m. to 11:00
p.m. (evening shift), and 11:00 p.m. to 7:00 a.m. (night shift).
The nursing staff is categorized in four ways: full time, where the nurse is scheduled to work
40 hours per week and the nurse receives benefits; part time with benefits, where the nurses
are scheduled to work at least 24 hours per week; part time without benefits, where the nurses
do not have to work a minimum number of hours; and per diem, where the nurse works on an
“as needed” basis without a regular schedule. Per diem employees earn about $2.00 more per
hour than the part time employees, but do not receive benefits. All nurses receive additional
pay, called a shift premium, for working at night and on weekends.
2. Employees’ Interest in the Union

4 The information is first written onto the Physician Order Sheet (POS) and then onto MAR
and TAR sheets, to be discussed below.
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In about June, 2010, nurse Sheena Claudio, who worked full-time on the day shift, was told
by administrator Elizabeth Heedles that the Employer was reducing the hours of work of the
employees and was also changing their schedules. The new changes were to be effective
August 1, 2010. Heedles offered her work on the night shift. Claudio refused that assignment
because she worked the night shift on another job. Heedles then offered her work as a per
diem.
Nurse Shannon Napolitano had worked on the day shift, but also worked double shifts two
days per week and every other weekend. She was also told by Heedles that her schedule would
be changed to a five day per week schedule. Napolitano told her that she had an agreement
with the Respondent to work double shifts and weekends because her home was one hour
away from the facility. Heedles told her that that arrangement “does not matter” and her new
schedule was designed to meet “the needs of the building.” Nurse Jillian Jacques worked a full-
time evening shift and was told by Heedles that her hours would be changed to part-time.
Jacques asked whether the change was “legal.” Unit manager Jacquie Southgate, who worked
a full-time, Monday to Friday shift for 10 years, was told by Heedles that she would be working
every other weekend.
The above employees spoke among themselves and with others, including supervisors,
concerning the proposed changes and Heedles’ abrupt manner in announcing them. Certain
workers called the Employer’s telephone “hotline” and advised them of the issue. Jacques
called vice-president of human resources Andrea Lee, who told her that she was aware of, but
surprised at the changes and promised to “look into it.”
Lee visited the facility in about June, 2010 and met with about 10 nurses. At the meeting,
Claudio showed her the 30-day notice of changes in schedules distributed by Heedles, adding
that the employees were “upset” at the changes. Lee responded that she was “unaware” of the
extent of the changes although she knew that some minor changes would be made. Lee
promised the workers to look into the matter and advise them, but she never did.
Claudio testified that after she did not hear from Lee, she learned the phone number of the
Union. She then spoke to her co-workers in the employees’ break room and at the nurses’
station about the need for a Union and she then contacted the Union and spoke to Brian Walsh,
its organizer.
Claudio and Napolitano met with Walsh in late June, 2010 and explained their disagreement
with the Respondent’s schedule changes. They gave him a petition which was distributed by
Claudio, Napolitano and Jacques, and signed by the workers at the facility. The petition set forth
their support for the Union. Walsh was told how many employees worked at the Respondent.
Claudio and Napolitano testified that upon their return to the facility after that meeting they
advised their co-workers and admitted statutory supervisor and manager Mary Apgar, and
Jacqueline Southgate, who became a statutory supervisor in August, 2010, wound nurse Irene
D’Ovidio, and Zoraydee (Heidi) Neer, the MDS coordinator who works with Mary Apgar, what
had occurred. They did not know if anyone advised administrator Heedles or director of nursing
Kovacs that the workers were pursuing union representation. Apgar, Southgate and D’Ovidio
told Claudio “ok, you got to do it; it’s unfair what’s going on,” and asked her to keep them
updated. There was a sentiment among the people Claudio spoke to that Heedles should be
discharged.
Claudio stated that she distributed seven or eight authorization cards at work and she
told manager Apgar, and Southgate, Neer and D’Ovidio that she was doing so. She also
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collected about 20 cards at work which had been solicited by her and others. Napolitano stated
that she distributed and received about 20 cards in the break room, near the nurses’ station and
at the nurses’ carts.
Southgate testified that she spoke to Napolitano on a daily basis, and also had
conversations with Claudio, Wells and others at the facility regarding contacting a union to
represent them. However, when she became the supervisory unit manager in August, 2010, she
told those nurses that she could not speak to them about the Union, and she did not.
Jacques spoke to her co-workers about the Union, and distributed about 20 Union cards
to them while at work. Some of the cards were returned to her at work. A Union YouTube video
was made at her home, on which employees including Claudio, Jacques, Tyler and Wells spoke
in favor of the Union.
Another meeting was held at which Wash asked for a list of employees. Napolitano
obtained a list from Sheena Orazco who worked in the business office. Orozco, the receptionist
and payroll benefits coordinator, testified that she did not give Napolitano a written list of all
employees because she did not have access to such information. Rather, Orazco orally gave
her the names of workers “off the top of [her] head.”
Claudio testified, at first, that she spoke to “mostly everyone” about the Union meetings, but
later amended that testimony to state that she spoke to six to eight workers. Claudio, Napolitano
and Jacques were the “most active” supporters of the Union, speaking to their co-workers at the
nurses’ station, by text-message and cell phone, and in the break room.
Three or four Union meetings were held in a diner, and others were held at employees’
homes. Napolitano estimated that she attended about 12 union meetings before the election.
Claudio stated that since she and Napolitano were the day shift workers who were most
interested in the Union, they spoke to about 10 employees on that shift about the Union
meetings.
Claudio and Napolitano wore, and according to Napolitano’s estimate, about 25 to 30
employees also wore a “respect-1199” purple sticker on their scrub top for one day during the
entire time they worked that day that summer before the election. Claudio stated that Apgar and
Southgate saw her wearing the sticker.
The Union filed a petition for an election on July 22, 2010. It was brought to the Board’s
office by Jacques, Napolitano and Walsh. Napolitano sent a text-message to Apgar and
Southgate that day telling them that she was going to file the petition. Southgate testified that
Napolitano and Claudio told her that they filed the petition.
About two weeks before the election, the Union distributed a brochure entitled “At Somerset
We’re voting Yes for 1199 SEIU.” It contained individual photographs of 35 employees including
Claudio, Jacques, Napolitano, and Wells. Next to each picture was a one-sentence statement of
support for the Union. The Union also distributed a wristband, hat, and a scrub-top which is a
shirt worn by medical personnel. All three items were purple and bore the Union logo.
Jason Hutchens, CareOne’s regional director of operations, and administrator Illis testified
that, before the election, they viewed the Union brochure containing the photographs of 35
employees, including Claudio, Jacques, Napolitano and Wells, with their statements of support
for the Union. Hutchens commented to Illis that he was surprised that all of the facility’s
employees were not in the brochure. He also told Illis that he had viewed the YouTube video
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produced by the Union in which employees of the Respondent voiced their support for the
Union. Illis told him that she did not want to look at the video because she did not want to see
that the staff was so unhappy that they believed that they needed a union.
The election was held on September 2, 2010 in a unit essentially of regular part-time and
per diem non-professional employees including licensed practical nurses, and certified nursing
assistants.
Of about 60 eligible employees, 38 voted for the Union, 28 voted against it, and there were
five challenged ballots. A hearing on the Employer’s objections to the election was held in
October and November, 2010. Certain objections were withdrawn by the Employer. On January
19, 2011, the Hearing Officer overruled all of the remaining Employer’s Objections. The
Employer appealed, and on August 26, 2011, the Board affirmed the Hearing Officer’s Report
and certified the Union. 357 NLRB No. 71.
3. The Employer’s Actions Following its Receipt of the Petition
Hutchens testified that he was “surprised” when he learned that a petition had been filed on
July 22 because the facility had a high patient census and “good performance” which were
apparently “masking issues” there.
On July 28, Heedles distributed a notice to all employees which stated, in part:
The decision [whether this Union is going to represent some of the
staff who work in our Center] is a very serious one. It could
change our relationship and the way we deal with one another.
The fact this petition has been filed is very disappointing. I think it
would be a mistake to bring in a union here at our Center. I
believe a union could do things that interfere with our business
and our lives. The way I see it, having a union here is not in the
best interest of our Company or the staff who work here.
Due to the serious consequences that could occur if a union is
voted in, we hope everyone will take the time to learn the true
facts before making a final decision about this important issue. I
am confident that when you have all of the facts and understand
the whole story, you will agree that we do not need a union here at
Somerset Valley Rehabilitation & Nursing Center.
In the meantime, we need to continue to work together and remain
focused on providing the very best services we can to our
residents and fulfilling our mission to our community.
4. The State Survey and Changes in the Employer’s Administration
The New Jersey Department of Health conducts annual surveys to ensure that facilities
such as the Respondent are in compliance with state and federal regulations concerned with
patient care. There is a “window period” within which the survey may take place two to four
months before or after the last survey.
During the survey, the surveyors examine each aspect of the facility’s operation,
focusing on patient care and nursing practices. The surveyors make rounds with the staff, speak
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to patients, families and staff members, and check the patient charts and records of medication
and treatment administration.
During the December, 2009 state survey, the facility received two “G” ratings for pain
assessment. The surveyors did not believe that a patient’s pain was adequately controlled by
the nurse assigned to her care. The facility corrected the deficiencies within a couple of weeks
after receiving the report, and submitted a written plan of correction in late December, 2009.
The New Jersey Department of Health accepted the plan as written and conducted a resurvey
in January, 2010.
Hutchens testified that it was “common” for a facility to be cited for deficiencies in a
survey. He was not aware of a monetary penalty being imposed as a result of the 2009 survey.
Hutchens stated that in order to prepare for the recertification survey scheduled for the
following year, January, 2010, CareOne brought in Jessica Arroyo, its Regional Nursing clinical
resource consultant, and Jacqueline Engram, the corporate vice president of clinical operations
to assist in the preparation and to ensure that the facility met the minimum requirements to
remain in compliance with state and federal regulations, and with the plan of correction.
The recertification survey was done on January 11, 2010, which found that the
Respondent was in substantial compliance, but it was recommended that it receive a $200 per
day penalty for 27 days. Hutchens did not know if the Employer paid the penalty.
Hutchens stated that in the months following the resurvey there was “increased scrutiny”
of the nursing department, including a greater oversight of the activities of the director of nursing
and the nurses, and a greater level of accountability was assigned by the administrator and the
director of nursing to the nursing staff. He learned from Heedles, Engram and Andrea Lee
during this time that scheduling the nursing staff for work was a concern, and that the
management of the facility was also a concern which he was “struggling to correct.” For
example, Lee reported to him that when she visited the facility in the Spring of 2010, the
employees complained that their schedules were being changed.
Heedles had been the administrator at the facility since December, 2008. On August 3,
2010, only 1½ weeks after the petition was filed, she was replaced by Doreen Illis. Hutchens
testified that he had “concerns” with Heedles’ administrative abilities. He stated that in the spring
and summer of 2009, there were issues concerning scheduling and staffing, and that she was
“struggling” to staff and schedule the Center. He further noted that the “data didn’t make sense”
in that the staff to resident ratios did not “match up at times.” Nevertheless, he transferred
Heedles to the Holmdel facility, a center with double the number of beds because it was a
“stable” facility with an experienced director of nursing and staff, and was a much easier facility
to operate. Hutchens was also concerned that the Employer did poorly on its last annual survey
which was conducted in December, 2009.
In June or July, 2010, Hutchens decided that Heedles could not handle the work of
director of nursing, and nursing services were not improving at an appropriate rate. Accordingly,
he decided to transfer Heedles in early August to the Holmdel facility, and replaced her with Illis
who had been at Holmdel and impressed him as having eight years of excellent service there.
Director of nursing Kovacs was also dismissed and Arroyo, the CareOne regional nurse, was
brought in to prepare for the next survey excepted in December, 2010.
Then in mid August, 2010, Konjoh was brought in as director of nursing and Southgate
was made unit manager. Southgate was employed for 18 years at the facility. She started as a
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CNA and then an LPN, and then was a supervisor in August, 2008, and then became a unit
manager in August, 2010. As unit manger she supervises the CNAs, ensuring that patient care
was being delivered correctly, and the supervisors reported to her. Southgate reported to the
director of nursing.
Similarly, Hutchens terminated director of nursing Kamala Kovacs in mid-August, 2010,
replacing her with Inez Konjoh, who began work at the facility on August 16. Konjoh testified
that she was hired to get the Employer “back in shape.” Konjoh was referring to the poor survey
reports the prior year.
5. The Respondent’s Meetings
a. Meetings with Employees
Hutchens stated that at meetings with employees beginning in late July or early August,
2010, after the petition was filed, employees complained to him about the proposed change in
schedule due to occur on August 1, 2010. The new schedule announced by Heedles was not
implemented, and the old schedule was retained.
The purpose of the meetings, according to Hutchens, was to provide information
concerning union organizing. He held meetings on three separate days with small groups of
employees. On each date, he held seven meetings so that each employee on each shift could
attend. The meetings took about 20 to 30 minutes.
The first meeting was in late July or early August, at which Lee was also present, and
during which a videotape was shown which demonstrated that employees did not need the
Union.
The second meeting, in the first week in August, and the third meeting, in about mid-
August, were also attended by Illis. According to Hutchens, none of the employees spoke at the
first two meetings. According to Napolitano, in one of the meetings, Hutchens announced that
he had “heard your complaints” and he transferred Heedles to the Holmdel facility and brought
Illis, the administrator there, to this location.
Hutchens testified that at the last meeting he announced that the purpose of the meeting
was to apologize to the staff for issues that he missed, saying that he thought he rectified the
problems by bringing in a new administrator and director of nursing, but apparently he had not.
He outlined the extant issues as low morale in the facility; turnover in the position of director of
nursing which resulted in a lack of consistency; Heedles’ poor management and lack of tact in
announcing schedule changes; the staffing and scheduling problems which left the facility short
of staff; and stress in the facility due to the number of surveys by regulators. Hutchens stated
that his presentation was interrupted by the employees who said that he was not seeing the
“entire picture here.” They related that the “real issues” were the lack of supplies, and treatment
by management, and they asked him what he was going to do about it. Hutchens replied that
“there is nothing I could do currently to rectify those things.”
According to Napolitano, at that meeting when employees complained, Hutchens said
that he “had no idea that these things were going on. I can’t make immediate changes at this
moment because it is illegal, but if we give them a chance they would try to show us.”
In that meeting, Claudio testified that Hutchens said that management wanted the
employees to give them a “chance to fix it.” Claudio also quoted Illis as saying that she did not
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want to work with a union facility. Claudio attempted to explain to Hutchens the workers’ reason
for seeking representation, saying that they believed that they had nowhere to go; they
contacted “corporate” but no one responded so they reached out to the Union. Hutchens offered
to have his and Illis’ cell phone numbers posted so that the workers could contact them if they
had any problems. Illis denied that Hutchens or she asked employees for a chance to fix things
without a union.
Jacques testified that at one meeting, Illis said that she wanted to “get a feel on what
made us want to introduce a union into” the Respondent, and wanted “to try and help fix things.”
She said she asked her superiors whether, in being transferred to the facility, she would be held
“responsible” if the Union was successful in organizing the center, and they said “no.” She
added that she would “feel offended if [the Union] came in. It would be like a slap in the face to
[me] if the union was brought in there.” Illis denied making those comments.
Unit secretary/CNA Lynette Tyler, and Napolitano testified that at the meeting with
Hutchens, he said that he was “very disappointed” that the employees sought union
representation, explaining that he believed that the facility was one of his “better run” buildings.
He was quoted as saying that “I was not aware but I would do whatever I could to remedy the
problem.” He asked what problems they had. Tyler responded that her job was “very
overwhelming” in that several people were giving her orders as to her work responsibilities, and
she had trouble leaving work on time to care for her disabled child. She testified that she took
orders from all the supervisors, performing work for the dietary manager and social workers.
Annie Stubbs testified that at one of the meetings, she complained that garbage bags
were kept in an office where the staff did not have access to them when the office was locked.
Hutchens told Illis to take care of the matter, and indeed, according to Stubbs, the following
morning, Illis distributed garbage bags to “everyone.” Hutchens denied that he asked Stubbs if
she had any complaints about her job. He stated that she raised this matter voluntarily.
Tyler, whose job consisted of assisting the nursing staff in preparing admission and
discharge records and making outside appointments for the patients, testified also that about
one week after Illis became employed at the facility, she told Illis that her job was overwhelming.
Illis asked her for a list of her responsibilities, and that, although she could make no promises,
she would see “what changes she could adjust.” Illis asked Tyler why the employees wanted a
union. She replied “why not?” Illis responded that she did not believe a union was needed,
adding that the facility she previously worked in was not a union shop, and that she did not
believe that the Union “would work for us.”
Tyler stated that one week later, a duty that she had since May, recording the weights of
patients, was removed by the dietary manager. At about the same as her duties were reduced,
Illis approached Tyler and asked what she thought about the meetings being held by
management concerning the Union. Tyler replied that they were “informative.” Illis then asked
“where are you in terms of voting? Do you know if you were going to vote for the Union or not?”
Tyler replied that she was unsure, was “sitting on the fence,” and that she was gathering
information from the Union and management at the meetings in order to make an informed
decision. Illis replied that “you do not need a union. Do you know how the rest of your co-
workers were voting?” Tyler answered that she did not know. Illis then asked her “can you
convince them to vote no?” Tyler responded that she had only been employed for nine months
while her co-workers had worked there for decades, and they could be expected to make their
own decision. Illis told her to “find out and ask who was going to vote yes and no. Question
employees about how they were going to vote.”
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Illis denied asking Tyler about her or her co-workers’ interest in the Union. She testified
that Tyler was a “marginal employee” who was “argumentative at times, abrupt and aggressive
occasionally, who would roll her eyes and walk away when being addressed.”
Stubbs stated that after one of the Employer meetings, director of nursing Konjoh
approached her and asked what she thought of the Union. Stubbs replied that she did not know,
and Konjoh said that she knew Stubbs had a union at her other job, “but we don’t want one
here.” Konjoh denied making those comments.
Claudio stated that about one or two weeks before the election, Konjoh approached her
and asked if they could speak in the supply room. She told Claudio that she had been speaking
to “everyone, I just didn’t get a chance to talk to you yet.” Konjoh asked Claudio “how did I feel
people were going to vote?” Claudio replied that she did not know how her co-workers would
vote. Konjoh said she worked at a facility prior to this one at which she was a staff nurse and
was in favor of the union then. Konjoh asked her to think about it, and “just give [her] a chance
and vote no.”
CNA Avian Jarbo who works on the evening shift, testified that about two weeks before
the election, Jessica Arroyo, the CareOne Regional Nursing clinical resource consultant, asked
him to substitute for a nurse who called out for the following day.5 Jarbo replied that he could
not work a morning shift. One week later, Arroyo approached him and asked “am I going to get
a ‘no’ vote from you?” Jarbo replied that he was not certain because he had the day off on
election day and was not sure that he would vote at all. Arroyo said that he must vote because if
he did not vote, his absence would be counted as an “automatic yes vote.” Jarbo expressed
disbelief at that remark. Arroyo did not testify.
Hutchens conceded that the Respondent ran a “vote no” campaign, urging the
employees to vote against unionization. He denied saying anything to employees regarding their
pay being reduced, and denied telling them that he would provide improved benefits and terms
and conditions of employment if they refrained from engaging in union activities. He also denied
asking the workers to tell him their complaints, or saying that he was present to fix their
problems or remedy their grievances. He did admit saying, however, that he could not make any
promises and could not rectify any problems “under the current situation.”
Hutchens stated that in addition to the meetings held by him, he spoke to nurses at the
nursing station and Lee held more than three meetings with the workers between the date the
petition was filed and the election.
Konjoh stated that during a conversation with Jacques and other employees before the
election, she was asked what she did that weekend, and the discussion involved church
attendance and the Union. Konjoh conceded saying “I pray to God that … there will be no union
or something to that effect” and Jacques responded that “your prayers will not be answered.”
Konjoh stated that Chris Foglio, the chief executive officer of CareOne met with the
employees before the election and spoke about ways in which the Employer was trying to bring
programs that would help the workers, such as affordable housing and tuition reimbursement.
Konjoh knew that Lynette Tyler wanted to return to school and Konjoh mentioned the tuition
plan to her.

5 “Calling out” means that an employee called the facility to report that she would not be at
work that day.
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Illis testified that when she arrived at the facility she spoke with employees in order to
educate them that as to why she believed that the Employer was a good place to work without a
union. One purpose of such conversation was to persuade them to vote “no” in the election, but
also to get to know them, and to learn whether the workers were aware of the benefits of
working for the Employer. She stated that she may have told the employees that she would only
address their issues if there was no union.
b. Meetings with Management Personnel
Pat Fleming, a labor relations advisor who works with the Respondent’s law firm, was at
the facility four days per week from the time the petition was filed to the election. Hutchens
attended three or four meetings in August with Fleming and the Respondent’s department
heads, at which they “polled the managers,” reading the names of each voter from the Excelsior
list, and asking each employee’s manager whether she believed that that employee would vote
for or against the Union in the upcoming election.
Hutchens stated that some of the supervisors knew their employees well and therefore
were “in a position to know which way employees felt about the union….” Indeed, Fleming and
Hutchens pressed the managers as to why they believed an employee would vote one way or
another. Hutchens stated that the managers were supposed to get “accurate information”
concerning the people they supervised, and “if they don’t know those employees, they should
know them certainly.” Illis testified that Fleming instructed them regarding how to speak to the
workers about the Union.
Illis stated that one of the purposes of the meetings was that the managers could report
any information about the Union that they may have heard. Also if the managers were
distributing information to the employees that day, they could ask questions about such
information at the meeting.
Unit manager and then supervisor Southgate attended the meetings with Hutchens, the
management staff, Illis, Konjoh, Apgar, Glen Zeller, and Ozvaldo Carpio, all of them admitted
statutory supervisors. Southgate stated that Fleming told her to listen to what the employees
were speaking about in the night shift, and if they were discussing union activities, she was to
report to him what they said. Fleming also told them that they should try to make employees
aware of the disadvantages of having a union represent them. He spoke to the managers about
the “negative consequences” of unionization at other facilities; that unions would make promises
and not fulfill them.
Fleming asked the managers to try to speak to the workers to “try to feel them out; how
they stood” concerning the Union, but that they should not put “undue pressure” on them. In this
regard Fleming advised them what they could and could not say to the workers.
However, Southgate testified that, as the election became closer in time, there was “less
concern” about how carefully they spoke to the workers, and they were assigned individual
employees to talk to. She stated that each unit employee was discussed. She recalled Fleming
speaking about Napolitano, and that it was believed that she was a “union organizer” and that it
would make “no sense” to convince her to vote “no” because it was expected that she would
vote in favor of the Union. Fleming also said that it was believed that Claudio was “very pro-
union.” Konjoh opined that she was not certain how Lynette Tyler would vote; that she was
“going back and forth” but that she would speak to Tyler. Fleming noted that Stubbs’ other job
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was with a unionized employer. He also said that he believed that Jacques would vote for the
Union.
Konjoh conceded that the Respondent attempted to persuade employees to vote against
the Union through leaflets distributed to the workers, and also admitted being told when she
arrived at the facility that the Employer wanted to remain “union free.”
Southgate testified that, at a managers’ meeting after the election, Illis announced that
the Employer would contest the election results and that she was “very disappointed in the
outcome”, adding that it was a “reflection upon her personally.” She also stated that she did not
want to work in a union facility.
Illis first testified that, after the election, she did not tell the workers that she felt
“betrayed” by them because the Union won the election. However, she then testified that she
told them that she was “disappointed” and she may have said that she felt betrayed at the
election results.
6. The Discipline and Discharges
a. The Alleged Accelerated Resignation or Termination
of Lynette Tyler
On September 9, 2010, only seven days after the election, Tyler gave Illis a letter,
advising that as of September 22 she would be resigning in order to pursue a nursing program.
The letter was in conformance with the handbook requirement that employees submit their
notice of resignation two weeks in advance of their last work day.
Illis told her that she did not have to continue to work until September 22, but that she
could leave immediately, and she did so. Tyler was paid for the two weeks that she had
intended to remain at work.6 In the personnel action form completed on September 9, Illis wrote
“not eligible for rehire – resigned with bad attitude toward company.”
Prior to her resignation, Tyler had announced to Illis and Konjoh that she wanted to
return to school to obtain a nursing license. Illis and Konjoh encouraged Tyler to remain
employed at the facility, citing a tuition reimbursement policy. Tyler testified that prior to the
election, Illis was friendly and that they spoke frequently, however, after the election she found
Illis to be distant and “cold” at a time that the work environment was “very, very hostile.”
Konjoh testified that Tyler advised her of her family situation and that Konjoh adjusted
her schedule to permit her to arrive at work a little later than usual, or even allow her to bring her
daughter to work. Konjoh denied that Tyler told her that she did not like the work environment or
Illis’ attitude or demeanor. Konjoh stated that she spoke very frequently to Tyler about events
occurring in the facility and the “whole atmosphere.” Konjoh told her that she hoped that “things
would change and that I’m there for them; if they need me they can feel free to come into my
office and talk to me.”
The General Counsel alleges that the Respondent acted unlawfully in accelerating
Tyler’s resignation date. Illis testified that it was her regular practice to have people leave the

6 Illis testified that due to a bookkeeping error, Tyler was not paid, in full, until months later. It
is not alleged that the failure to pay Tyler in a timely manner was unlawful.
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facility after they resigned rather than work during their notice period. In this regard, the
Respondent received resignations from supervisor Koottiyaniyil and food service director
Hoskins in January and April, 2011, respectively. Although both workers gave two-week notices
of their resignations, they were told that they could leave the facility immediately and were paid
for the notice period.
Illis testified that when Tyler announced that she was resigning, she and Konjoh
attempted to persuade Tyler to remain with the Employer. Illis denied asking Tyler what
problems she had with her job, and further denied any knowledge of Tyler’s union activities.
b. Attendance Issues
As will be noted below, prior to the election, employees who were late called the office
and told the person answering the phone that they would be late. They were told to get to work
as soon as possible, and they were not generally disciplined for lateness or absenteeism,
although the employee handbook provided that employees must arrive at work on time. The
handbook also provided that “the Center must be able to depend on you to report to work
regularly and on time. You are expected to work your full scheduled work day unless otherwise
agreed upon in advance between you and your Supervisors. If you anticipate a need for time
off, you should advise your Supervisor as soon as possible.” It also provides that “all non-
exempt employees must clock in prior to their scheduled start time….”
Illis noted that, upon her arrival at the facility in early August, she observed that the
facility experienced excessive absenteeism, but she apparently did not authorize the issuance
of discipline for such misconduct until after the election. She testified that she identified
absenteeism and lateness as “contributors” to the staffing issues present in the clinical areas,
and she addressed those issues. Thus, in mid-September, following the election, she did an
attendance assessment of all the employees and gave that information to Konjoh who issued
discipline to the “most serious offenders.” Although Illis had the managers decide who was to
receive the discipline and the level of discipline, she participated in meetings where discipline
was issued. The most serious offenders included Claudio, Jacques and Napolitano, the three
union leaders.
Konjoh testified that she did not choose to investigate Napolitano’s attendance record
alone. Rather, Illis “ran all the tardiness that were in the computer.” Indeed, Konjoh was told by
her supervisors that a common practice had been that employees would just “show up” at the
facility, with the supervisors unaware of when they were coming to work. Konjoh stated that,
despite the fact that she was told that this was a common practice, she decided to issue
discipline anyway. She added that she did not investigate whether, prior to her arrival at the
facility, employees had been disciplined for lateness or absenteeism.
With respect to discipline for lateness and absenteeism, Konjoh stated that when she
began work at the Respondent in August, 2010, she decided to give all employees a “clean
slate,” otherwise most employees would have been discharged. Accordingly, she stated that
she did not look at employee records pre-dating August, 2010. However, she also stated that
she disciplined employees for lateness and poor attendance based on their records from
January, 2010. For example, as will be seen below, Napolitano’s warning stated that her 93
latenesses since January 1, 2010 was excessive and unacceptable.
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In addition to the discipline given to Claudio, Jacques and Napolitano, the Respondent
issued verbal warnings, first written warnings and final warnings to other employees for
excessive lateness and absenteeism beginning after the election in September.7
i. Sheena Claudio
Claudio testified that prior to the election on September 2, if she expected to be only a
few minutes late to work, she would not call in. If she expected to be more than 15 to 20
minutes, late she would call the facility and tell the supervisor. The supervisor would ask how
late she expected to be and would say “okay.” Prior to the election, Claudio received no
discipline for lateness that she was aware of, and she was not spoken to about her lateness by
any supervisor.
Supervisor Southgate testified, similar to Claudio, that prior to the election, the nurses
simply called in that they would be late. The nurse answering the call would ask when they
would arrive, and no discipline would be issued concerning the matter. Southgate testified that
following the election, however, she was told by Konjoh that she should no longer accept calls
from late employees, and that she should direct them to Konjoh.
On September 13, 2010, following the election, Claudio was given a first written warning
for “pattern absenteeism” with the warning stating that “Sheena has called out sick 3 times
within the last 90 days … two have been prior to a day not scheduled.” Claudio stated that she
was not aware that she could not call in sick before or after a day off. She further noted that she
was not warned after the first call out on June 21. The employee handbook contains no
reference to calling out on a day before or after a scheduled day off.
The same day, September 13, Claudio received a second written warning for lateness
which stated that she had been late 64 times since January 1, 2010 and that within the last 30
days she was late 16 times. “This is excessive and requires immediate improvement.” Claudio’s
response was that she called and notified the supervisor when she expected to be more than 15
minutes late.
Claudio complained to Southgate that she had received two warnings for lateness when
she had never been disciplined before for that reason. Southgate told her to “be careful because
you already know what’s going to happen. What they’re trying to do. Just be careful and don’t
be late and just do what you have to do. Don’t give them a reason.”
ii. Jillian Jacques
On September 13, 2010, Jacques was given a “second written warning” by Illis and
Konjoh for “pattern absenteeism.” It stated that Jacques “called out 3 times within the last 60
days. Each occurrence was the day after an unscheduled day off therefore extending her period
of time off.” At the meeting regarding the warning, Jacques told the two officials that the
discipline was “unfair,” that she was sick on the days she was absent, and that they “were just
waiting for her to call out and counting the days.” Jacques testified that, prior to September 13,
she had not been spoken to by any manager about a “pattern of absence.”

7 Those employees were Beatrice Beauvoir, Lusette Ceus, Soledad Guillaume, Dominique
Joseph, Novelete May, Patsy Benimadho, and Kassandra Burke.
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Again on September 13, 2010, Jacques was given a first written warning which stated
that she “has been late 109 times since January 1, 2010. Within the last 30 days (August 5 to
September 5) she was late 11 times. This is excessive and requires immediate improvement.”
Jacques explained that she was late because she had to arrange for nursing care at
home for her mother who is disabled, and that she had advised previous director of nursing
Meyer about it. Meyer told her to “improve on it.” Jacques stated that after that conversation with
Meyer she continued to be late, but was not disciplined or even spoken to about her lateness,
until Illis’ warning of September 13, 2010.
Southgate stated that on one occasion, Konjoh told her that she was aware that a union
meeting was held on that day and that if Jacques came in late or called to report that she would
be late, the call should be directed to Konjoh. Normally, said Southgate, the charge nurse
handled such calls.
Illis offered to change Jacques’ work shift so that she could come to work on time, but
Jacques declined, saying that she could not work another shift.
iii. Shannon Napolitano
Napolitano testified to the same practice as Claudio and Jacques concerning lateness,
noting that, prior to the election, she was not disciplined for lateness, and no one spoke to her
about her latenesses.
On September 13, 2010, Konjoh issued a first written warning to Napolitano, which
stated that she “has been late 93 times since January 1, 2010, and 9 times within the last 30
days (August 13 to September 13). This is excessive and unacceptable. Her attendance needs
immediate improvement or may result in termination upon the next episode of lateness.” A
three-page dossier of single-spaced punch in and out times was attached to the warning. When
she was given the warning, Napolitano told Konjoh that everyone at the facility was aware that
she arrived at 7:00 a.m. instead of her start time of 6:45 a.m. because she lived one hour from
the facility. Illis testified that she offered to carpool with Napolitano but she refused.
As noted above, Claudio, Jacques and Napolitano were issued warnings for absences
and latenesses on September 13, only 11 days after the election. Eight other employees were
also issued warnings for attendance issues on September 13 and 14. In addition, a “punch
detail report” for Gladys Amaka Agu for the period July 1, 2010 to September 30, 2010 was
received in evidence. The report bore a handwritten note from Illis which stated “Gladys, you
were late 34 out of 37 shifts. Why?” No evidence of any discipline issued to Agu was offered in
evidence.
c. Performance Issues
Illis testified that when she arrived at the facility on August 3, 2010, she observed its
operations and assessed its performance. She found that the operation was “chaotic and
needed a lot of improvement.” She noted that the clinical areas were very disorganized and
lacked strong leadership. She found irregularities in scheduling leading to chaotic staffing
patterns in which employees did not know if they were working or scheduled to work. She was
also concerned whether the facility would be ready for its annual survey, expected in December,
2010, about one year after the last survey which resulted in two “G” level deficiencies, depicting
actual harm to patients.
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Illis did not believe that the facility was ready to be surveyed. She noted that no systems
were in place to manage clinical information, no audits or reviews of medical records were being
performed, and nursing leadership had to be strengthened. The person primarily responsible for
performing these tasks was Inez Konjoh, the new director of nursing, who was assisted by
CareOne regional nurse Jessica Arroyo and CareOne official Engram.
Director of nursing Konjoh found similar disorganization in the Respondent’s operation
within the first three to four weeks of her beginning employment at the facility in mid August,
2010. She found many problem areas: problems with patient care and improper documentation
of patient care procedures, complaints from patients, families and employees, staffing issues
such as employees who arrived at work but were not on the work schedule, and employees
scheduled to work but were not registered on the computer system to work.
Konjoh was also aware that the window was open for a new survey, so that she had to
prepare the facility for that procedure. Konjoh believed that she had to address these issues
immediately. In doing so she began auditing records and charts and implementing measures to
“get us through the survey.”
i. Increased Scrutiny of Employee Performance
I find that the evidence does not support the reasons for the increased scrutiny of the
employees’ performance or the tightening of procedures which had been lax before the election.
Rather, the evidence supports a finding that the Employer took the major steps that it did in
response to the Union’s winning the election on September 2.
Thus, the Respondent took no affirmative steps relating to changes in its administration
or increased oversight of the employees’ performance immediately following the results of the
survey in December, 2009. Thus, Illis was not appointed as the new administrator of the facility
until, August, 2010, eight months after the December, 2009 survey which, according to the
Respondent, resulted in serious deficiencies.
Although there may have been heightened reviews of the MAR and TAR records from
August, 2010, even greater scrutiny was made following the September 2 election. There were
undoubtedly reviews of such records before the election, but the evidence supports a finding
that they were not as rigorous. Moreover, even if there were reviews before the election, it was
only after the election that discipline began to be regularly and consistently issued for the
mistakes found on those records.
In addition, CareOne had close oversight over Somerset Valley’s operations through its
ability to view the Smartlinx data concerning the facility’s census and employment of personnel.
Also, Hutchens, its regional director, visited the facility one full day per week from January, 2010
until Heedles left in August. During his visits he met with the administrator, made rounds with
her or the director of nursing, spoke to the workers, patients, families and physicians, viewed
the kitchen operation, and had communications meetings with the staff. Other CareOne
personnel who were involved in reimbursement issues, rehabilitation, marketing, human
resources and clinical services also visited the facility on a weekly basis during that period of
time.
It is inconceivable, given the strict oversight of the facility by CareOne, the frequent visits
by Hutchens and other specialists in the areas the Respondent cites as being critically deficient,
that Hutchens’ attention would have been brought to bear on the allegedly worsening situation
for the first time in the Spring of 2010, when he allegedly demanded increased accountability
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and performance improvements from Heedles and Meyers. This timing coincides with the
employees’ interest in the Union which began in late June. Accordingly, it is clear that no
definitive, consistent disciplinary actions were taken in the period prior to the September 2, 2010
election. Indeed, Hutchens testified that he was surprised, when on July 22, the petition was
filed since he believed that the facility had “good performance” and a high patient census. If
Hutchens believed that prior to July 22 the facility’s performance was good, what caused the
drastic change in monitoring of employee performance and the start of the imposition of
discipline and discharges within weeks of the election? The answer is that the timing of such
employee monitoring and disciplinary measures coincided with the Union’s election victory.
The Respondent’s witnesses, primarily Illis and Konjoh, denied that any disciplinary
actions were taken against the employees because of their activities in support of the Union,
and also denied any knowledge of their Union activities, except in those cases where they saw
the Union flyer. They also knew that Jacques and Napolitano were the Union’s election
observers, but nevertheless stated that their service as observers did not affect their decisions
to discipline the two workers.
The records reviewed by Konjoh included the MAR and TAR sheets. The Medication
Administration Record (MAR) and the medications are kept on the nurse’s cart. There are three
carts for each of the three working shifts. The MAR contains the name and amount of
medication to be given to each patient. That information comes from the physician’s order. The
physician writes an order for medications noting the name of the medication, the dose and the
number of days and times per day the medication is to be given. The nurse who does the
admission order prepares a Physician’s Order Sheet (POS), and transcribes that information
onto the MAR, writing the medications on the MAR that the patient arrived with from another
facility or home. Thereafter, if the physician writes additional orders for medication, the
supervisory nurse, the charge nurse, the night nurse, or the floor nurse writes the order onto the
MAR. The nurses on shifts thereafter are responsible to administer the medication to the patient
as set forth on the MAR. The nurse initials the MAR in the box for the day to indicate that she
administered the medication ordered. If the box is not initialed that means that the medication
was not administered during that shift. If the nurse administers the medication but does not
initial the box, that is considered a medication error because nurses on later shifts will not know
if the medication was actually administered.
The Treatment Administration Record (TAR) is a record of the treatments given the
patient such as applying salve or ointment, changing bandages, and treating a wound. The
nurse is responsible to complete each treatment when scheduled. If a bandage is applied, it is
the practice for the nurse to write her initials and the date the treatment was performed right on
the bandage so that later nurses can see when the bandage was placed. The TAR book is
maintained at the nurse’s station.
Konjoh began her review by examining the records of new patients who were just
admitted to the facility, their admissions records, physical assessments done by the floor nurse,
and the documentation of patient care for the new patients. Konjoh stated that she reviewed the
MAR and TAR records at the time the patient is admitted, adding that other than at that time,
she did not review those records unless she received a complaint from a patient, or there was
an issue that required her to review those documents, where, for example, the patient says that
he did not receive his medication or received the incorrect medication.
It also appears that the MAR and TAR sheets were reviewed by officials of CareOne
after the election. Jacqueline Engram, the vice president of clinical operations for CareOne in
New Jersey, visited the Employer once to three times per month between September, after the
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election, and December, 2010. Her assistant, Jessica Arroyo, visited the facility each day in
August during the union campaign, and was present for “clinical oversight” in support of the new
director of nursing. Her job consisted of performing medical record audits, ensuring that the
MAR and TAR sheets were done correctly. Arroyo reported to Engram weekly concerning
“overall clinical concerns” and what she found when making rounds. Konjoh testified that when
she arrived at the facility, she was assisted by Arroyo who audited the charts of the existing
patients while she (Konjoh) performed that function for the new patients. Engram and Konjoh
stated that such work was done in preparation for the survey.
Konjoh stated that she found omissions and errors in the charts that she audited and
issued discipline based on her findings. Konjoh testified that discipline, and not just “fixing the
problem” was the preferred course of conduct because the employee must be held accountable
so that she would not make the same mistake again.
As will be seen below, following the election, discipline was issued based on errors in
completion of the MAR and TAR records. The General Counsel argues that, prior to the
election, those records were not scrutinized as carefully as they were after the election, and that
any errors in those records were not the subject of discipline. That argument is supported by the
evidence. Thus, 11 year employee Jacques testified that reviews of past MAR records did not
occur “too often.” She stated that such a practice was not routine, but that it would take place
only if an incident occurred where the date and nature of a particular treatment had to be
determined. However, Jacques stated that after the election, she saw Illis and Konjoh behind
the nurse’s station where the TAR records are kept, reviewing and “combing through
everything” in the TAR book “all the time.”
Claudio testified that before the election, the Respondent’s supervisor did not “really”
review her administration of medications as set forth on the MAR or the TAR books. In fact,
according to Claudio, supervisors checked the MAR only once or twice per month. Supervisor
Southgate testified that before the election there was no set schedule for reviews of MAR
records. Rather, such reviews were done periodically as needed, about once per week, by the
unit manager, the director of nursing and the assistant director of nursing.
However, if a state survey was upcoming, or if a particular issue was raised, reviews
were made more often. Southgate added that before the survey, the nurses are reminded to be
“extra diligent” in their practices with in-service sessions being held to reinforce their training.
Southgate conceded that, prior to the 2009 survey, there was a “closer review” of MAR, TAR,
and admission records at the start of the window period before the survey. However, she stated
that, prior to the 2009 survey, if the Employer’s reviewers found that certain MAR records were
not initialed they, including Southgate, simply told the nurses to fill in the missing information,
and that those nurses would “generally not be disciplined” for the missing information in the
MAR and TAR records.
However, according to Southgate, after the election, MAR records were reviewed at
least once per day, occasionally by her, but usually by Konjoh. Southgate testified that she
knew that Konjoh was reviewing the MAR and TAR records because she saw her at the
medication cart at the nurse’s station reviewing those records, or occasionally she took them
into her office. Southgate added that she saw Konjoh review the MAR records more frequently
on the first shift to which Napolitano was assigned, and the second shift, to which Claudio was
assigned. Southgate stated that she (Southgate) reviewed the MAR and TAR sheets with about
the same frequency, once or twice per week, before and after the election, but after the election
she reviewed them more often.
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I recognize that Konjoh testified that she does not look at the MAR or TAR records any
more closely for some nurses than for others, but this is contradicted by supervisor Southgate’s
credible testimony that following the election, Konjoh spoke to her regarding disciplining
employees. She said that “they would be obviously looking at the people who they believed to
be union organizers … actively involved in trying to get a union in… closely and if they were
given a reason to write them up they would write them up.” However, according to Konjoh, she
had a “lot of respect” for Jacques, that Jacques “was being very careful to follow all the rules
and regulations; being very careful so that she wouldn’t get written up,” and accordingly, Konjoh
had not issued discipline to Jacques. Konjoh did not tell Southgate that she was looking for
something to write Jacques up for, but implied that such was the case, using words “to the effect
that if she was given an excuse to discipline her she would do so.”
Such testimony establishes that Konjoh was, indeed, looking at the union organizers
more closely and if she found a reason to issue discipline to them, she would.
Further evidence may be seen in employee Mohamed Bockarie’s testimony, that on his
first day of work at the facility, he was asked to look for errors… in their notes, in their charting,
the MARs and TARs” committed by people on a list which bore the names of Jillian, Shannie,
Jackie, and Avian.
I credit Bockarie over Illis’ denials that she asked him to look for employee errors. She
asked him to transfer to the facility from Holmdel where he worked with her for one year. Her
admission that, on Bockarie’s first day on the job at Somerset Valley, she thanked him for “being
in my life,” establishes that she held him in high, personal regard, and was a person she could
trust. This trust manifested itself in her asking him to look for errors committed by employees
who were involved in the Union’s successful campaign.
ii. Shannon Napolitano
Napolitano was employed from March, 2009 to September, 2010 as an LPN. She
testified that she was told by Southgate that “there is a lot of stuff going on in the building that
was making her sick to her stomach,” but that she could not elaborate.
On September 17, 2010, Napolitano was administering medications to her patients.
Patsy, a recreation department employee, was in a patient’s room when Napolitano gave the
patient her medication. Napolitano left the room and Patsy told her that the patient wanted to
see Konjoh. Konjoh visited the patient and then showed Napolitano a pink pill, zinc oxide, a
vitamin supplement, and told her that the patient was not supposed to be given that medication.
Napolitano testified that she did not recall whether she gave the patient a pink pill, but waited
until she swallowed all the medication she gave her.
Two hours later, Konjoh called Napolitano into her office in which Illis was present.
Konjoh told Napolitano that she gave the patient a zinc oxide pill that she was not supposed to
receive. Konjoh told her that the patient advised her sometime before the incident that
Napolitano was the only nurse who gave her the pink pill, and that she (Konjoh) told her that the
next time she was given the pill she should not ingest it, but rather should hold it and show it to
Konjoh.
Konjoh showed Napolitano the MAR for the prior and current month, August and
September. The zinc pill was not listed on the September MAR. However, the August MAR
showed that that medication was discontinued on August 24. However, Napolitano administered
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it on August 25 and 30. Other nurses also improperly gave the patient the zinc pill after it was
discontinued.
Jacques testified that if the medication is supposed to be given on only a certain day, the
nurse writing the order in the MAR is responsible to “box out” or “box off” the date by drawing a
box or line around the date to highlight it. Jacques also stated that if a medication is
discontinued, any nurse can remove the medication from the medication cart and bring it to the
medication room or write “dc” for “discontinued” on the medication label itself or on the box on
the MAR. However, usually the charge nurse, but occasionally the floor nurse receives the order
to discontinue the medication.
Jacqueline Engram, the director of nursing who replaced Konjoh, and who formerly was
the vice president of clinical operations for CareOne facilities in New Jersey, testified that if a
medication is discontinued it should be removed from the medication cart. She stated that that
was the responsibility of the nurse who received the order discontinuing the medication, the
nurse who administers the medication, or the night nurse who reviews the medications. She
stated that as the director of nursing, if she was told by a patient that she was receiving a
discontinued medication, she would check the cart to see if the medication is still there, then
check the MAR to verify that the medication was discontinued and investigate the matter. She
would not leave the discontinued medication in the cart, and if she became aware that it had
been discontinued, she would remove the medication herself.
Engram’s professional opinion is in stark contrast to Konjoh’s actions. After Konjoh
became aware that Napolitano was administering medication improperly she took no steps to
remove the medication from the cart or advise Napolitano of that fact. Rather, she permitted
Napolitano to give the discontinued pill to the patient, notwithstanding, according to her own
testimony, that since Konjoh did not know what the pink pill was, it may not have been a
relatively harmless zinc medication, but “could have been a pill that was more potent … than
zinc.”
Konjoh also told Napolitano that she made two additional errors: she documented an
incorrect pulse oxygen level by noting that the level was 0%, a level which would have meant
that the patient was deceased. Napolitano answered that she reviews her entries on the MAR at
the end of her shift and she would have caught the error. Konjoh replied that if a state survey
was done at that time it would have been recorded as a nursing error. Napolitano testified that
prior to a survey, all the nurses are told to review their entries on the MAR and TAR sheets to
ensure that there were no mistakes and no missing initials, and she would have done so.
Engram testified that some nurses, at the end of their shifts, review the entries they
made on the MAR and TAR in order to ensure that they made all the appropriate entries, and if
they noticed that they failed to initial a medication or treatment, they would initial the appropriate
box. Further, Southgate testified that nurses would routinely complete their entries in the TAR at
the end of their shift.
The final error complained of by Konjoh was that Napolitano did a pain assessment for a
patient at the start of the shift whereas it should have been done at the end of the shift.
Napolitano protested that in the past year, she did the pain assessment at the start of the shift
during the last state survey, and she did so when corporate nurse Jessica Arroyo watched her,
and her practice in that regard was deemed acceptable. In order to prove her point that pain
assessment must be done at the end of the shift, Konjoh invited three nurses into the meeting.
However, all the nurses agreed with Napolitano, telling Konjoh that pain assessment should be
done at the start of the shift.
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Konjoh asked Napolitano to leave and then called her back and presented her with a
letter of termination. It said, in part:
The reason for this termination is your failure to perform essential
nursing duties to provide proper patient care, including, but not
necessarily limited to, your failure to properly document the
oxygen saturation level for a resident, your failure to properly
administer medication to a resident, and your failure to properly
verify and administer the correct medication to a resident resulting
in the administration of incorrect medication to a resident. As you
are aware, you are already on a final warning related to your
failure to provide proper patient care.
The letter was supplemented by a note signed by Illis, Konjoh and Napolitano, in which
Napolitano agreed to the truth of the following facts: (a) that she gave a patient the wrong
medication on at least 4 occasions, and that the medication was discontinued on August 23,
2010 (b) medication was left with the patient at the bedside and she did not witness the patient
take the medications appropriately, and as a result, the patient gave the medication to Konjoh
and (c) she documented the oxygen saturation level at 0% which was incorrect.
It must be noted that part of the discipline included in the supplemental note was that
Napolitano left the medication at the bedside and did not witness the patient take the
medication. However, inasmuch as Napolitano was not supposed to have given the
discontinued medication to the patient, it seems that Konjoh was overreaching in disciplining her
for failing to ensure that the patient swallowed the unprescribed medicine.
The day after Napolitano was fired, supervisor Southgate confided in Claudio that
Napolitano had been “set up.” Southgate warned Claudio that she did not hear that from her, but
that she should “think about what happened.”
Konjoh testified that if a medication is discontinued, the nurse is asked to remove the
medicine form the cart. She stated that she did not remove the zinc pill from the cart because
she did not look at the cart. Rather, she examined the MAR and saw that since no zinc pill was
ordered, she left it at that and did “not think to look into the drawer because there was nothing
on the MAR that said to me that the patient was on a pink pill.” She noted that no harm was
done to the patient for taking the non-ordered zinc pill.
It must be noted that three other nurses, Claudio, Carol Chambers and Henrietta
Lezauba also signed the MAR that they gave the zinc pill to the patient after that medication had
been discontinued. When Konjoh asked them about their alleged misconduct, all three stated
that they did not administer the medication but had erroneously signed that they had. Although
Konjoh did not personally believe their denials, she “had to go by what the employees said,” and
did not discipline them.
Napolitano was the Union’s observer at the election 15 days before, which fact was
known to Illis at the time of her discharge.
iii. Sheena Claudio
Claudio was employed for the Respondent from January, 2010 to October, 2010 as an
LPN. On September 20, she received a written warning for administering aspirin to a patient on
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two consecutive days whereas the order called for it to be administered every other day.
Claudio’s response was that the person who wrote the order, usually the evening nurse, should
have “blocked off” on the MAR sheet those days on which the medications should not be given
so that she would know not to have given the medication on consecutive days. Another nurse,
Doreen Dande, also improperly administered the medication to the same patient on two
consecutive days and was issued similar discipline.
On October 1, Claudio received a written notice and a two-day suspension for failing to
document patient status on three separate patients: for a patient who fell; a patient who had
been admitted and she failed to provide an admission note; and did not provide documentation
during the first 5 days of the admission. Other errors that Konjoh noted were that Claudio
provided treatment to a patient without an order, and did not write an order for a skin tear
treatment, although the treatment was given. Claudio responded that she had completed the
admission note.
It must be noted, only four days before, employee Sandy Mootosamy received only a
first written warning on September 27, 2010 for virtually the same misconduct: she failed to
document a status post fall for two days, failed to do a post-admission documentation on
another patient, and failed to document vital signs on notes.8
Claudio testified that she kept a “personal sheet” of her TAR treatments on which she
recorded the patient’s name and the treatments she administered during her shift. Konjoh
testified that such practice is a violation of the HIPPA privacy law if that paper left the facility.
Claudio testified that on October 7, she performed all the TAR treatments assigned to
her, but forgot to initial in the TAR that any of the treatments were performed. She stated that it
was her practice to note the TAR treatments that she had done on her personal sheet and then,
at the end of the day, write in the TAR book that she had performed those treatments. On that
day she worked the day shift at the facility and then went to her other job.
She returned to the Respondent’s facility at 11:00 p.m. that evening, intending to initial in
the TAR book all the treatments she administered. She was admitted by supervisor Janet
Mathias. Claudio told her she forgot something and she went to the nursing station and began
writing in the TARS book. Janet asked her what she was doing and Claudio said she forgot to
sign the TAR book. Matthias said “okay,” and left the area. Illis and Matthias then approached
Claudio and asked her what she was doing. Claudio explained that she forgot to sign the TAR
book. Illis said that she could not do that because doing so is “forgery.” Illis replied that she was
not on duty and not working so she could not sign the book, and doing so would “put your
license at risk.” Illis told her to leave the facility and she did so. Claudio denied raising her voice
to Illis or using profanity. Claudio testified that prior to the election she occasionally completed
the entries in the TAR book the day after the treatments were administered.
Claudio was suspended pending an investigation. Konjoh testified that it is improper and
a violation of state and federal guidelines, to fill in the MAR or TAR record at the end of the day.
Rather, those records must be signed immediately upon administering the medication or giving
the treatment. Konjoh explained that if the nurse does not immediately sign that she gave the
medication, the facility or another nurse does not know if it was given, and another nurse may
give the same medication to the patient, resulting in an overdose.

8 Respondent’s Exhibit No. 92.
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According to Konjoh, the nurse must initial the MAR and TAR books immediately after
the medication is administered or the treatment is given. However, the nurse may make a “late
entry” in the appropriate box if the medication or treatment was actually given. She noted that
when Claudio failed to initial any of the TAR boxes she could not go back after her shift ended
and do so. One reason was that there was no evidence that she performed all the treatments.
Konjoh testified that she investigated the matter, checked some of the dressings that Claudio
said she applied and found no initials on those dressings. Nevertheless, Claudio’s termination
letter did not state that she was being terminated for failing to perform the treatments. It
mentioned only that she failed to properly initial the TAR.
By letter dated October 21, Claudio was terminated for her “inappropriate and/or
unprofessional conduct including, but not necessarily limited to, your failure to complete
required clinical documentation. As you are aware, you have received prior discipline, including
a suspension and final warning on October 4, 2010, for such performance related issues.” Illis
testified that Claudio was fired for returning to the facility to sign the TAR sheets. She was not
aware of Claudio’s union activities.
Nurse Napolitano testified that nurses routinely fill in the MAR and TAR boxes with their
initials after their shifts, and that practice was well known to supervisors Apgar, Southgate and
the directors of nursing. She did not believe that nurses were disciplined for not initialing their
records during their shift. Nevertheless, Napolitano conceded that it is important for the nurse to
initial the record so that there is documentation that the patient received the medication or
treatment ordered. She also conceded that it is a nursing error for a nurse to fail to initial the
records before she left the building.
Nurse Jacques testified that nurses should fill out and complete the TAR before they
leave the facility at the end of their shift. If not, there is no record that the treatments were given,
which is an important part of the nurse’s responsibility.
Southgate testified that nurses are supposed to complete their entries on the TAR
sheets during the shift that they are assigned, however, usually they do so at the end of their
shift. She further stated that, prior to the election, it was “not uncommon” for nurses to complete
their TAR entries the day after the treatments had been administered, and that she did so
without being disciplined. Further, she stated that even after the election many nurses
completed their TAR entries the following day but were not disciplined for doing so. However,
she did not know which, if any manager, was aware of such alleged misconduct. She called this
an ongoing problem and was the subject of in-service training sessions. The night shift nurses
were supposed to have checked the MAR and TAR sheets to ensure that the nurses had signed
the sheets appropriately. Indeed, the plan of correction imposed by the surveyors in the Spring
of 2010 following the 2009 survey included a requirement that the night shift check the
completion of the MAR and TAR on a daily basis. However, Konjoh was not aware of that
requirement, and did not enforce it.
Director of nursing Engram testified that a nurse must sign the MAR and TAR sheets at
the time the medication is administered or the treatment performed, but as noted above, also
stated that the nurse may review those records at the end of her shift for completion and initial
any box that was left empty if the medication had been given and the treatment administered.
Southgate also testified that, prior to the election, she was occasionally told by a patient
that he did not receive a medication. She checked the MAR sheet, and if a box was not filled in,
she asked the nurse if she administered the medication. If she did not, she told the nurse to give
the patient the medication. If the nurse said that she did administer the medication, she simply
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told the nurse to initial the box to document that she gave the dose to the patient. She did not
discipline the nurse for not initialing the box. Two cases she cited in this respect involved nurses
Bockarie and Dande. Southgate did not know whether management personnel were aware of
Dande’s error but she stated that she told Konjoh that Bockarie had not given medications and
had not given a treatment to patients. Her memory was not precise concerning further details of
that incident concerning Bockarie.
Konjoh testified that Dande charted that she gave vitamin B to a patient when she had
not. The medical error was investigated by the assistant director of nursing and the
investigation’s results were given to Konjoh.
iv. Jillian Jacques
Jacques worked at Somerset Valley for 11 years as an LPN. On September 28, 2010,
she was given a first written warning for failing to document the post fall and post admission
status of two patients. Later, Jacques told Konjoh that Patty Beck, and not she, was the nurse
involved in one of the incidents. Konjoh checked the schedule and agreed. Although Konjoh
testified that Beck should have been disciplined for this misconduct, and that she had intended
to discipline her, she forgot to do so.
As set forth above, Bockarie testified that on October 25, Illis told him to look for errors
committed by Jacques in her charting and MAR and TAR sheets.
On November 1, 2010, Jacques received a written warning from Southgate who told her
that Konjoh told her to issue it. The notice charged Jacques with not fully completing incident
reports in that statements therein were unclear and that signatures, interventions, the CNA
statement, and the supervisor’s review were missing. Jacques testified that the CNA was
supposed to have prepared a written statement but did not. Jacques stated that she called
Konjoh the next morning and left her a message that she (Jacques) prepared the incident report
but the CNA’s statement was not attached because she had left the building, but that Jacques
would have the CNA prepare her statement. Jacques conceded that she (Jacques) had not
completed her report because it was late at night and she was very busy that night.
Southgate stated that she believed that Konjoh was being “very picky” about the way in
which incident reports were completed by the nurses, and believed that she was being “unfair”
in disciplining employees for the way in which they filled out the reports. She stated that,
following the election, some, but not all employees who made errors in their incident reports
were disciplined, adding that if Konjoh said that they should be disciplined they were. She could
not recall which specific employees were disciplined. Southgate gave in-service sessions to the
nurses concerning the completion of incident reports.
Southgate testified that prior to the election, she did not know of anyone who was
disciplined for not fully completing her incident report. Indeed, Engram, the vice president of
clinical operations and later, director of nursing at Somerset Valley, stated that if a nurse failed
to complete an admission report or an incident report due to being interrupted, and had failed to
finish the report that day, she would ask the nurse to complete it the next day and add a note
that it was being done the following day for “lack of documentation the prior day.”
Southgate stated that Konjoh showed her the errors that Patty Beck, Doreen Dande,
Jacques, and Bockarie made in their incident reports. Jacques was disciplined, and Beck
received discipline in late October, 2010, but she did not believe that Bockarie was disciplined
for his mistake. Konjoh told Southgate not to discipline Dande – that she would “take care of it.”
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Jacques stated that in November or December, 2010, Konjoh told her and other nurses
that “if you don’t do it the union won’t be able to save you. You’ll lose your job and the union
won’t be able to protect you. You should know that because, Jillian, you are a union delegate.”
Jacques denied that she was a delegate and Konjoh said “oh yes you are. We all know you
are.” Jacques again denied that role and Konjoh said “Oh, yeah.” Konjoh denied making those
statements.
On February 10, 2011, Jacques received discipline for failing to transcribe a medication
order accurately. She wrote “ASA” (aspirin) on the MAR whereas she should have written
“enteric coated ASA,” the medication ordered by the physician. It was also noted that she did
not write the medication on the MAR. The discipline also stated that on February 2, she failed to
complete the required documentation for her shift. Her explanation was that, as the charge
nurse, she was extremely busy that day, her work was delayed because the fax machines were
not working, but she conceded that she could have called Illis or Konjoh to report that problem.
Jacques was suspended by Southgate while the incident concerning the administration
of the wrong aspirin was being investigated. Jacques said there was nothing to investigate,
admitting that she made the error because she was very busy admitting five patients, and she
asked why the 24 hour chart check done by the night nurse did not pick up the error. According
to Jacques, those nurses go through every chart and look at the physician order sheet and see
if the physician wrote new orders and then check the MAR or TAR to ensure that the order was
executed. Southgate said that the two night nurses did not catch the error. Southgate also told
her that she did not chart a patient’s day two of a status post fall. If a patient falls, the nurse is
supposed to chart the patient, meaning check and document the status of the patient for three
consecutive days. Jacques said that she would not dispute that error but was very busy and
distracted.
Illis wrote the description of the issue on the February 9, 2011 notice of disciplinary
action discharging Jacques. It stated that “on February 7, 2011, you failed to transcribe a med
order accurately. You transcribed ASA on the POS when it should have been enteric coated
ASA as ordered by the MD;. You also failed to … the medication to the MAR. Additionally, on
February 2, 2011, you were the primary nurse and failed to complete the required
documentation for your shift. Specifically, … JG was not documented on. Additionally, on the
same resident there was no post fall note as required.” Jacques commented that she was
extremely busy that evening with five admissions with confused patients. She agreed that she
may have overlooked documenting a post fall patient.
Director of nursing Engram stated that the reasons for the discharge were contained in
audits done by assistant director of nursing Francia Dominique as part of her duties. Engram
denied asking Dominique to “find information” so that she could issue discipline to her. Engram
also testified that administering regular aspirin to a patient who is supposed to receive enteric
coated aspirin may be harmful if given “over a period of time” to a patient with a history of
stomach bleeding since enteric aspirin has a coating which protects the stomach lining. She did
not know if this patient had such a history. She stated that Jacques could have asked the unit
manager or a maintenance person for help with the fax machine. However, she did not need a
fax machine to properly transcribe the order on the MAR.
Engram stated that she, Illis, and the human resources department decided to discharge
Jacques. They met with Jacques and told her that she was discharged. Engram stated that she
had no personal knowledge of whether Jacques supported the Union or engaged in union
activities.
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Konjoh and Illis testified that the Employer has checks in place to ensure that patient
records and charts are accurate and complete. One of these checks is a 24 hour chart check,
performed on the 11:00 p.m. to 7:00 a.m. night shift, during which the orders received in the
past 24 hours are examined. The purpose of those checks is to prevent medication and
transcription errors.
Engram testified that such checks include the night nurse looking at the chart for a new
admission, checking the medication that the patient came with from his prior institution, and
examining the physician’s order sheet and the MAR to ensure that the patient’s medications are
correctly recorded onto the MAR. Engram stated that it would be “expected” that Jacques’ error
of not writing the order correctly on the MAR would have been caught in the 24 hour check, but
was not certain that anyone was disciplined for not catching Jacques’ error. The plan of
correction imposed by the surveyors in the Spring of 2010 following the 2009 survey included a
requirement that the night shift check the completion of the MAR and TAR on a daily basis.
However, Konjoh was not aware of that requirement and did not enforce it.
Significantly, other nurses received less discipline for committing similar errors. For
example, nurse Doreen Dande was issued only a written warning on September 17, 2010 for
failing to properly administer medication She administered regular aspirin for two days when
enteric coated aspirin should have been given every other day – the same error committed by
Jacques. Dande’s disciplinary record in this regard illustrates the disparate treatment accorded
to Jacques. Thus, following the September 17 discipline, Dande received another written
warning on November 8 for failing to notify the physician or family of a wound, and also did not
initial the treatment administered or complete documentation related to the wound. On
November 23, Dande received a first written warning for failing to timely change a patient’s
colostomy appliance, saying that she was too busy, and on November 26, she received a
second written notice for failing to administer medication to a patient. On February 12 and 13,
2011, Dande received a notice for stating in the TAR that she administered treatments but she
did not. Upon receiving the last notices, Dande resigned.
In addition, on November 29, 2010, LPN Conteh Salaimatu received only a documented
verbal notice for failing to transcribe a physician’s telephonic order onto the POS or MAR.
Salaimatu was ordered to receive training in transcribing phone orders appropriately.
Further, on March 4, 2010, Michelle Moore received a written notice for not reporting
clinically significant changes in a patient’s status and also did not report a patient’s fall. On June
3, 2010, Moore left medication at a patient’s bedside table and did not check his bed/chair
alarm. She also did not place a bed/chair alarm for another patient. On December 23, 2010,
Moore received a written notice for a medication error; failing to transcribe an order; failing to
write a discharge order; failing to transcribe an order for medication in the physician’s order
sheet. Lastly, she received a final warning on February 9, 2011 for failing to document treatment
for a dressing, and failing to date the dressing. These several warnings for misconduct similar to
that committed by Jacques, did not result in Moore being discharged for them.
On September 10, 2010, Patty Beck received a written warning for documenting that the
patient had medication patches on her back when the patches had been removed the day
before. On September 28, Beck received a verbal notice for failing to complete an admission
chart for a patient. On October 21, she received another verbal warning for two incidents of
failing to properly complete incident paperwork inasmuch as the CNA statements were missing
and there were “blanks on forms.” On February 15, 2011, Beck received a final warning for
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failing to properly change a dressing although she documented that the dressing was changed
according to the order.
Konjoh testified that she did not require the night shift to check the completion of MAR
and TAR records, notwithstanding that the plan of correction imposed by the surveyors in the
Spring of 2010 following the 2009 survey included a requirement that the night shift check the
completion of the MAR and TAR on a daily basis. Konjoh stated that she was not aware of that
requirement. Konjoh stated that when she saw a blank box on a MAR or TAR sheet she asked
the nurse whether the medication or treatment was given, and the reason for the blank box. She
then took the action called for. Thus, if the medication or treatment was given and the nurse
failed to complete the box indicating that she took that action, Konjoh would issue discipline. If
the medication or treatment was given, and one day elapsed without the nurse signing the
appropriate box, the nurse could sign a “late entry” that day or the next day, if the medication or
treatment was actually given.
Southgate testified that following the election, Konjoh spoke to her regarding disciplining
employees. She said that “they would be obviously looking at the people who they believed to
be union organizers closely and if they were given a reason to write them up they would write
them up.” And that there were employees “believed to be actively involved in trying to get a
union in.” However, according to Konjoh, she had a “lot of respect” for Jacques, that Jacques
“was being very careful to follow all the rules and regulations; being very careful so that she
wouldn’t get written up,” and accordingly, Konjoh had not issued discipline to Jacques. Konjoh
did not tell Southgate that she was looking for something to write Jacques up for, but implied
that such was the case, using words “to the effect that if she was given an excuse to discipline
her she would do so.”
Mohamed Bockarie stated that on October 25, when he began work on the day shift,
after being solicited by Illis to transfer to Somerset Valley, he received a text-message from Illis
which said “thank you for being in my life.” On his first day at work, Illis asked him to interview
employees, “look for errors” committed by people on a list which bore the names of Jillian,
Shannie, Jackie, and Avian. Bockarie stated that Illis asked him to look for errors “in their notes,
in their charting, the MARs and TARs.” Illis denied asking Bockarie to do any of these things.
Bockarie met with Illis in her office, sometimes for 30 to 60 minutes, and texted Illis very
frequently from October and November. The nature of the text-messages were “what’s going on
in the building, and who are not doing well, who are not in her favor….” He told Illis that the
employees did not like her. Their in-person meetings included suggestions to improve the
Respondent, who to “get rid of,” his advice that the staff was not in her favor and wanted the
Union. Illis conceded that she knew of no other employee who she texted with or met with as
much as Bockarie.
Illis testified that she spoke with Bockarie in her office in October and November, 2010
about two or three times per week for about 15 minutes at each session. In their text messages,
Bockarie, responding to her requests, told her what was going on in the building, they spoke
about patients who were admitted or discharged, the availability of supplies, employees who
treated him nicely and those who were not helpful to him. He also told Illis that the workers did
not like her, and that if there was another election, the Employer would lose it. She denied
asking him who she should discharge and did not give him any reason that she would discharge
anyone.
Bockarie stated that during these meetings, Illis asked him whether he believed that the
workers would vote for the Union in another election, or would they vote for “her?” Bockarie
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advised her that the staff did not like her and would not vote for “her.” Bockarie told her that the
focus of the facility should be on patient care, but the focus was “really on the union issue.” Illis
responded that she was working on improving patient care, and that it would take time, but that
she “just want to get over this union issue.” Illis denied saying these things.
Bockarie stated that he made copies of documents containing medication errors. He
asked Francia Dominique, the acting director of nursing, whether she was looking for errors.
Francia replied that she was given a job and she is doing it. From December, 2010 and
thereafter, Bockarie made copies of the documents and gave them to Illis. Bockarie saw Francia
copying MAR and TAR sheets and when she was asked why she was copying them, she said
that they were not signed. Bockarie conceded that occasionally patient records are copied so
that they can be sent with the patient to another facility or to home, and also when employees
are disciplined.
Bockarie stated that when the Union held a meeting at a local hotel, Illis asked him to
take time off and “go there to witness” and observe “who is attending.” He refused, saying that
he had to work, but apparently went to the meeting anyway. Illis denied asking him to do that.
v. Valerie Wells
Valerie Wells worked as a CNA for ten to twelve years, during which, for about seven
years, she worked part-time as the staffing coordinator. She then became the full time staff
coordinator in January, 2010. She also helped on the nursing floor while working as the staff
coordinator.
Wells signed a card for the Union. She stated that before and after the petition was filed,
she spoke with Claudio, Napolitano and Jacques occasionally at work concerning the Union
campaign. Those conversations took place in the office she shared with D’Ovidio. She appeared
in the Union flyer seen by Hutchens and Illis before the election, and in the YouTube video seen
by Hutchens. She also attended union meetings held prior to the election.
While working as the staff coordinator, she reported first to director of nursing Kovacs,
and occasionally administrator Heedles, and then to Illis and Konjoh.
In 2003, CareOne began using a computer program called Schedule
Optimizer/Smartlinx, and in the Fall of 2006, Somerset Valley implemented the system. The
program is a time clock system used for scheduling, labor analysis, forecasting, and payroll
purposes. When the schedule of an employee is entered into the Smartlinx system, the
employee cannot punch in or out unless the schedule is current and reflects that the worker is
due to punch in or out at that time. The Respondent keeps track of the employees’ shifts in
which they are scheduled to work and their days off. It is connected to the time clock which
employees use when they enter and leave work. Others who had access to this system were
the facility administrator, the director of nursing, CareOne officials, the human resources
department, and the business manager.
The staffing coordinator is responsible for ensuring that the facility is appropriately
staffed, schedules are up to date, and if an employee calls out she has to fill the position. John
Kokorus, the CareOne director of workforce management and the person in overall charge of
the Smartlinx program, stated that he did not know if Wells attended training for the program,
which was voluntary and not mandatory. He stated that when an employee calls out, the staffing
coordinator calls a per diem employee and places that worker on the work schedule. If an
employee calls out when the coordinator is not on duty, the supervisor makes the replacement,
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but the staffing coordinator must reconcile the system thereafter by updating the system to show
that the new employee replaced the worker who called out.
Wells generated a monthly master schedule and daily assignment sheets. She put the
assignment sheets in a staffing book which she kept in her office until the end of the day when
she placed it at the nurse’s station. She also submitted a census report to CareOne, the
administrator and the director of nursing, setting forth the daily census number and the number
of nurses and aides who were scheduled to work, and who actually worked that day. CareOne
official Hutchens received the daily census report.
Wells stated that prior to Illis becoming the new administrator, she utilized the same
schedule that the director of nursing created and, for each of the following weeks, she kept the
same employees on the same schedule. Depending on the census of patients she would adjust
the number of employees scheduled on any particular day. She stated that if the census was 60
patients she tried to have at least five or six CNAs on duty. If there were fewer patients, she
would cancel the shift of an employee. Prior to the arrival of Illis, she used a table which showed
that for a certain census, she would need to schedule a certain number of workers. Illis did not
want her to use that table.
Wells stated that if a nurse called out during Wells’ working hours, Monday to Friday,
6:30 a.m. to 3:00 p.m., she would attempt to find a replacement by calling employees who are
scheduled to work that day or asking an employee who was already at work. She would first call
the per diem and part time workers as suggested by director of nursing Rebecca McCarthy.
Wells also stated that she maintained a “cheat sheet” with the knowledge of director of
nursing Meyers. She used it as a “guide” to where additional staff was needed, and notes as to
who she called to replace employees who called out.
Regarding the per diem employees, Wells stated that, when she generated a monthly
schedule, most per diems worked every other weekend so she “automatically planted” them in
that schedule. She did the same for the part-time employees.
Wells stated that, prior to the election, she received no discipline for her work
performance as a staff coordinator under any administrator or director of nursing. Moreover, she
stated that prior to the election, while under the supervision of Illis and Konjoh, neither of them
referred to any problems with her performance as a staff coordinator, but she did admit to
making certain mistakes in her work while under their supervision.
Illis testified that after she arrived at the facility in early August, 2010, she learned that
the problems with scheduling were caused by Wells using an Excel spreadsheet to prepare a
manually created daily attendance and master schedule. Konjoh testified that many errors in
scheduling and staffing were caused by Wells’ use of four or five different schedules of
paperwork which resulted in errors. Konjoh stated that she had many meetings with Wells which
did not result in an improvement in her performance, and that Wells did not request more
training in the use of Smartlinx.
Illis testified that Wells should have been using the Schedule Optimizer/Smartlinx
program to prepare the schedules. Illis stated that she told Wells in August that she (Illis) was
“fluent” in Smartlinx and was available to help her. Wells sought her help regarding one issue in
which the schedule had to be manually adjusted for the hours worked by an employee who did
not work a full eight hour shift.
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Illis stated that in August, despite the fact that Wells was not keeping the Smartlinx data
current and accurate, she did not issue discipline to her for certain discrepancies between the
schedule (which stated whether the employee was due to be on duty) and the actual fact (that
the employee actually punched in and/or worked), or for her failure to use Smartlinx. The reason
that discipline was not issued was that Illis believed that by “daily constant communication her
behavior would be modified to what I wanted.” Nevertheless, according to Illis, Wells’
performance did not improve and the schedules remained “chaotic.”
Wells was on vacation on the day of the election but returned to vote. On the day she
returned from vacation, September 7, Illis and Konjoh met with her at about 10:00 or 10:30 a.m.
and went over a list of six “discrepancies” between the manually typed schedule for September
6 and that entered in Smartlinx.
Wells stated that she did not dispute that the six mistakes were made, and that she was
asked not to use her “cheat sheet.” Wells testified that she told Illis and Konjoh that she did not
know how to input into Smartlinx that an employee worked for a one-half shift. After the meeting,
Illis showed her how to perform that function. The main objection to Wells’ work at that time was
that certain employees were listed on a typed work schedule but not entered into the Smartlinx
program. In other words, Smartlinx was not “updated” or “reconciled” to reflect the changes in
the schedule. Similarly, other employees were inputted into Smartlinx but not listed on the typed
schedule, and yet others worked a shift but were not on the Smartlinx program. Wells stated
that prior to her leaving for vacation, Illis did not mention that she wanted Wells to keep the
information on Smartlinx up to date. Rather, Illis made that a requirement after Wells returned
from vacation on September 7.
Illis testified that the September 7 meeting was not disciplinary in nature. Rather, the
purpose of that session was to point out the many inaccuracies and discrepancies which took
place during the prior weekend, to let Wells know Illis’ expectations so that Wells’ performance
would improve, and to “change her behavior” as to how she operated and maintained the
schedule.
It must be noted that these “reconciliations” concerning discrepancies concerned events
that occurred in the weekend before Wells returned from vacation. Significantly, Illis testified that
reconciliations for discrepancies that occur on the weekend should be inputted by Monday at
10:00 or 10:30 a.m. Accordingly, the meeting on September 7 took place at a time when Wells
should have been permitted to input those reconciliations, but instead, she was being
disciplined at that premature meeting for not yet doing so.
At the September 7 meeting, Wells explained that the work she was assigned to do was
very time consuming and she had also been performing work as a CNA. “Sometime before”
September 7, Illis told her to focus on the scheduling and not to perform CNA work.
A plan of correction containing a list of eight items of specific instructions of work to be
done, was given to Wells at that meeting. Illis asked how long it world take to complete that list
and Wells said “maybe by Friday,” September 10. Illis testified that Wells said that she did not
need additional training and that she fully understood everything that was expected of her.
On the day of the meeting, September 7, an employee complained to Wells that she was
in the Smartlinx program which authorized her to punch in, but her name was not on the written
schedule. Wells told her “sorry, many things are going on; once I get my angel wings and my
halo there will be no more mistakes.” Illis, who heard the comment, told her to “get rid of the
attitude.” Wells responded that she had no attitude, but believed that she was being “picked on
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for little things that weren’t a problem in the past due to this campaigning election that we are
going through or went through.” Illis denied that her treatment of Wells was related to the
election, adding that she (Illis) had “time and time again” addressed errors that Wells had made.
Illis stated that she knew that Wells knew how to perform the tasks required on Smartlinx
but she was just “not changing her behavior and being attentive to details.”
On September 9, Illis asked Wells to manually adjust an employee’s work hours on a
shift, and Wells asked her how that was done, as she did not “clearly know how to perform that
task.” On that day or the next, Illis showed her how to perform that job.
By September 13, Wells had not completed the work on the September 7 list. That day,
she, Illis and Konjoh spent a few hours completing the work, by inputting each employee’s
schedule into the system. Konjoh testified that their work corrected the master schedule, and
was current when they finished the task. Illis stated that after this work was done, she spoke
with Wells about the issues she was concerned about. Illis stated that Wells acted like she did
not care and was “very nonchalant” that they had just spent over two hours doing the work that
she asked Wells to do more than one week before. Accordingly, Illis decided to issue discipline
to Wells to make her understand that this is “serious.”
On the same day, September 15, Wells received a first written warning for certain
mistakes in inputting certain changes to employees’ schedules. Her response was that she was
not trained completely in performing those tasks. In response, Illis wrote that Wells has the
ability to do these tasks but that this was an issue of “laziness and lack of attention to detail.”
Illis stated that up until that point, Wells had not requested training on Smartlinx.
On September 15, Wells was given a second written warning for failing to give Konjoh a
daily schedule and not giving her certain changes on September 14 made to the schedule for
the working shifts of September 15, as was directed at the meeting of September 7. Illis wrote
that Wells said that she forgot to do so. Wells agreed that she forgot, stating that she was busy
trying to get the staffing records done, but also stated that she believed that she had placed a
copy of the daily schedule with the daily attendance sheet which was kept at the nurses station
in plain sight.
On September 20, Wells received a third written notice for “continuing to have issues
with scheduling staff and removing them from Optimizer when cancelled or removed.” Attached
was a sheet of six “multiple issues” in which Wells failed to have adjusted the schedule or put
items in Smartlinx. At hearing, Wells offered explanations of each of the six items. One of the
items for which Wells was disciplined that day included the allegedly improper listing of CNA
Guerline for the 7:00 a.m. to 3:00 p.m. shift. Wells protested that Guerline should not have been
listed on that shift, but should have been listed for the 3:00 p.m. to 11:00 p.m., the shift she
always worked. Konjoh answered that Guerline was in Smartlinx for the 7:00 to 3:00 shift and
could not punch in. Wells stated that she properly placed Guerline on the daily attendance sheet
for the correct 3 to 11 shift, and in looking at the Smartlinx program on her computer, found that
Illis had deleted Guerline’s 3 to 11 shift and changed it to the 7 to 3 shift. Konjoh said that she
would speak to Illis about the matter, but the discipline remained.
Wells stated that the following day, September 21, Konjoh went over the list with Wells,
explaining that employees were not inputted into Smartlinx, the daily attendance sheet was not
provided or updated, and told her that she was fired. Wells testified that she had made mistakes
in performing some of her duties on Smartlinx. Konjoh testified that after the September 20
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meeting, Wells’ performance did not improve inasmuch as there continued to be errors in
scheduling, although she could not recall any specifics.
Wells’ termination letter of September 21 stated that she was being discharged for her
“failure to meet expected performance standards…. You have been counseled as to the
expectations in managing the staffing schedule, and you have been given warnings, including a
final warning, but your performance has remained substandard.” Konjoh and Illis denied
knowing of Wells’ union activities prior to her discharge.
Following her discharge, Illis found numerous e-mails that Wells sent to her home e-mail
address from September 16 to September 21, 2010. The e-mails consisted of copies of staff
schedules, instructions from Heedles in July, 2010, and instructions from Illis and Konjoh in
September, 2010. Illis stated that Wells had no permission to send those e-mails, and that such
conduct violates company policy and is a terminable offense for which, if known to Illis while she
was employed, would have caused her to terminate Wells.9
7. The Reduction in Hours of the Per Diem Employees
Prior to the election, per diem employees were scheduled to work a regular schedule, on
weekends, having specific days and hours of work being scheduled by staff coordinator Wells.
Illis and CareOne official Hutchens testified that per diem employees, who are paid
$2.00 per hour more than full-time and part-time employees, should be used on an “as needed”
basis. Because of their higher rate of pay, they should not be placed on a regular work
schedule, but rather should work to cover “last minute call outs” just for that day, and as a “last
resort.” Hutchens testified that in looking at the Smartlinx schedule he knew that per diems were
regularly scheduled to work, which was “wrong.” Southgate testified that administrator Heedles
told her that she did not like the use of per diem workers and was trying to reduce the amount of
overtime in the facility.
Another reason for favoring regular full-time and part-time employees for the weekend
work that per diems performed was that there would be greater consistency and continuity of
care, with the regularly scheduled workers knowing their patients and the patients’ needs better
since they were at the facility more often than once every other weekend.
Nevertheless, despite the fact that Hutchens, and the facility’s administrators and
directors of nursing had access to the schedules of employees, which listed their per diem
status, apparently no correction was made to this long-standing practice until after the election.
The election agreement executed on August 9, 2010 provided that in order to be eligible
to vote, per diem employees must have worked an average of at least four hours per week
during the 13 weeks preceding August 7, 2010 eligibility date. On September 9, the Employer
filed Objections to the election, arguing that a new election be held.
Southgate stated that one week after the election, Konjoh told her that she was not to
use any per diem employee without “clearing it with her.” She added that a couple of weeks
after the election, Konjoh told her that the Employer was contesting the election and if another
election was held, the per diem employee would have to work a certain number of hours in

9 Inasmuch as this issue was not fully litigated, it will be left to decided in a Compliance
proceeding.
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order to be eligible to vote in the next election. Therefore, said Konjoh, Southgate should not
call per diems to work on a regular basis. Southgate stated that, following that conversation, she
called only one per diem employee, Stubbs, to replace a worker who called out. When she told
Konjoh that she called Stubbs to work, Konjoh told her that she should not have called her to
work, but did not say why. Konjoh denied telling Southgate that she should not have called
Stubbs to work.
The General Counsel argues that Konjoh’s tying the issue of hiring per diem workers to
another election may provide proof of an unlawful motive in the Respondent’s reduction of hours
of the per diem workers who were employed at the time of the election and voted therein.
However Konjoh testified that she told Southgate not to use per diem employees to fill a shift
unless she cleared it with her because she wanted to use full timers first. She denied telling
Southgate not to use per diems because she did not want them to have enough hours to vote in
a new election.
Following Wells’ discharge on September 21, her replacement advised Illis that there
were many per diems who had not worked for a long time, at least 60 days. Illis removed them
from the system and put them on “inactive” status meaning that they were no longer employees
of the Employer because they had no “active” hours of work. Illis did not know the Union status
of those per diem workers. The staff coordinator, and not Illis, constructed the list of per diem
employees who were removed from the system.
Illis conceded that after she arrived at the facility in early August, additional per diem
employees were hired. She stated that the Employer was not cutting back on per diems’ hours
of work. Rather, it was hiring those per diems who had the flexibility to work multiple days and
multiple shifts, and those who were able to report to work on short notice. She noted that a per
diem is called to work when the Employer has an available opening, not when they call the
Respondent and say that they are available to work.
a. Daysi Aguilar
Aguilar began work in October, 2005 as a CNA in the evening shift, working every other
weekend from the time of her hire until September, 2009. At some time she requested and
received permission to work on Sundays from 3:00 p.m. to 8:00 p.m. instead of the regular 3:00
p.m. to 11:00 p.m. shift because of her need to be home with her daughter. That request was
accommodated and another nurse worked the remaining three hours of her shift.
Aguilar attended two union meetings and signed a card for the Union and returned it to
Claudio in the Respondent’s cafeteria. When she voted in the election on September 2, she saw
Jacques holding up a flyer. She sought to greet Jacques but Jacques backed away, shunning
her greeting and waving her away. Aguilar noticed Konjoh standing nearby. Later that day,
Konjoh asked Aguilar if she could stay after her shift ended and work that afternoon. Aguilar
said that she could not. Konjoh denied seeing any interaction between Aguilar and Jacques on
the day of the election, and in any event Konjoh testified that the sign that Jacques was holding
said “it’s time to go” which was alerting employees to vote. Konjoh noted that the Employer’s
observer was holding a sign bearing the same message.
Aguilar worked her regular schedule the following weekend, September 11. The
following Monday, Konjoh called her and asked for her position and days of work. Aguilar
replied that she was a per diem who works every other weekend. Konjoh replied that a per diem
does not work every other weekend. Rather, a per diem works one weekend per month. Aguilar
agreed and said that she would let Konjoh know which weekend she was available. In a note to
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Konjoh dated September 14, Aguilar wrote that she could work on the weekend of September
25 or the weekend of October 9.
Aguilar stated that on September 24, she asked Konjoh if she was needed for the
weekend of September 25 and Konjoh said that she was not. Aguilar made a similar call
regarding the weekend of October 9 and she was told by Konjoh that she was not needed, and
that if she was needed she would be called. Konjoh admitted receiving a call from Aguilar after
the election regarding her availability to work. However, Aguilar asked to work on a specific
weekend and Konjoh could not schedule her for that weekend.
Illis testified that Aguilar was removed from the system for not having active hours. She
did not know of any union activities engaged in by Aguilar.
b. Gertrudis Rodriguez-Arias
Arias worked from May, 2007 to September, 13, 2010 as a part-time CNA. Beginning in
November, 2009 she began work as a per diem employee because of a health related issue
with her child. As a per diem, she worked flexible hours on the day shift every Monday and
every other weekend, averaging 32 hours biweekly. She signed a card for the Union solicited by
Napolitano in a patient‘s room.10 She appeared on the Union’s flyer, and in the Union’s video.
On August 26, 2010, Arias was offered a full-time job but rejected it.
Arias stated that she worked on September 13, 2010. She was scheduled to work
thereafter on September 18, 19 and 20. When she reported to work on September 18, her time
card punch was not accepted. A charge nurse told her that her name was not on the work
schedule. That nurse called Konjoh who said that she knew that Arias was not on the schedule
and could go home. Her name was also omitted from the schedule for September 19 and 20.
About two weeks later, Arias called Konjoh and asked if she could come to work. Konjoh
said that she needed Arias but she (Arias) did not have a “steady schedule” so she would call
when she needed Arias to work. Arias complained that she had worked for 3½ years and had
always been on the schedule. Konjoh offered her a position in the evening or night shifts, but
Arias refused because she had to work the day shift due to her personal situation.
Receptionist and payroll benefits coordinator Orozco testified that Arias called, asking
why she was not working the hours she worked before. Orozco replied that since she was a per
diem worker, presumably the Respondent did not then have the hours to give her as a per diem
worker. Orozco called Konjoh who said that she offered Arias a full-time position which Arias
said she could not take at the time. Arias confirmed to Orozco that she was given that offer.
Orozco advised her to speak to Konjoh, and that the Employer would call her when it had the
hours to offer her.
Illis testified that Arias was removed for not having active hours.
c. Dominique Joseph

10 Her pre-trial affidavit which states that she signed the card at a co-worker’s house does
not fatally harm her credibility.
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Joseph began work in 2007 as a CNA per diem worker who worked every other
weekend. She was hired to work on the 3:00 p.m. to 11:00 p.m. shift, but actually worked 4:00
p.m. to 11:15 p.m. She has a full-time job elsewhere where she is a member of the Union. She
learned from Jacques that the Union sought to represent the Respondent’s employees, and
spoke about the Union to other workers.
Joseph stated that prior to being introduced to corporate human resources official
Andrea Lee at a meeting, she mistakenly believed that Lee was affiliated with the Union, and
Joseph began to speak in favor of the Union to her. At one of the meetings, when Hutchens told
the workers that the Union would take a lot of money from them, Joseph replied that she only
works 13 hours every 2 weeks, and that was too little money for the Union to take a lot of money
from her. Hutchens asked her if she would vote in the election, and Joseph said that she was
uncertain.
Joseph testified that about one week after the election, she was supposed to report for
work on September 11, 2010. Her car was not working and she called Konjoh on September 10
and told her that she could not come to work and that she should be taken off the schedule.
Konjoh told her she would do so, and that Joseph should call when her car was fixed.
Two weeks later, Joseph reported to work but the time clock did not accept her punch.
She noted that her name was not on the assignment sheet for that night. She then spoke to Illis
who told her that her name was not on the schedule for that day or the next, and that she should
call Konjoh the next day, Monday. It had been Joseph’s practice to call just before reporting to
work to make certain that her name was on the schedule.
Thereafter, Joseph called Konjoh a number of times but did not receive a call back from
her or anyone from the Respondent. Joseph denied telling anyone that she was available for
different hours since she already had a full-time job elsewhere. Konjoh denied receiving any
voicemails from Joseph asking her to return her calls.
Illis testified that Joseph was removed from the system for not having active hours.
d. Rita Onyeike
Rita Onyeike worked as a CNA since July, 2010, performing a double shift, working both
the day shift and the night shift on weekends only. She is employed full-time for another
employer.
By memo to staff coordinator Wells and Konjoh dated September 9, Illis stated that she
had some concerns about Onyeike’s schedule and status. Her concerns were that Onyeike
“does not have rotations set up,” does not work enough hours to be considered “part time
benefits eligible,” and following her hire on July 22, 2010 she was “no call-no show” on August
21. Illis recommended that Onyeike’s status be changed to per diem effective immediately, and
asked that, if both agree with her suggestion, that they call Onyeike to discuss the matter. Wells
denied being told by Illis to speak to Onyeike about a possible change to per diem status, and
Onyeike was changed from a part time benefits eligible workers to a per diem worker. Illis
testified that Onyeike was changed from a part time benefit eligible worker to a per diem
employee.
After the election, on September 12, 2010, Onyeike wore the purple Union scrub top to
work on her night shift tour of duty. Onyeike testified that at the end of her shift, in the morning
of September 13, she asked staffing coordinator Valerie Wells for a document. Konjoh, who was
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in the area at the time, asked Onyeike for her name. Onyeike identified herself and Konjoh
introduced herself as the director of nursing. Konjoh asked her to leave the facility. Onyeike
asked for a reason. Konjoh told her to leave or she would “call the cops.” Onyeike asked what
she did, and Konjoh demanded that she leave. Onyeike left the area and attempted to punch
out. Konjoh followed her, telling her that she could not punch out. Onyeike protested that if she
did not punch out she would not be paid for the shift she just worked. Konjoh refused to permit
Onyeike to punch out. Onyeike asked what she did wrong, but Konjoh insisted that “you are
leaving here right now.” Onyeike told her to call the police because she would not leave until
she punched out. Finally, Konjoh told Onyeike to punch out, which she did, and left. Konjoh
followed her, saying “you only come here when we call you and if you come here don’t come
with that scrub.”
Konjoh stated that the dress code for CNAs is a yellow scrub top and white pants. She
testified that on September 13, she was told by the night supervisor that Onyeike was out of
uniform and was asked by Illis to issue discipline. Konjoh was not told that if she saw CNAs
wearing Union purple scrubs she should send them home.
Southgate stated that during the election campaign, Illis told her and other supervisors
that they would not permit any employee to wear a Union scrub top in the facility, and that
employees wearing such a garment should be sent home. Illis denied giving such an instruction
to the managers. Rather, she testified that if an employee was out of uniform they should
address the problem, not necessarily send them home. Indeed, CNAs Maria Granda and Avian
Jarbo received documented verbal warnings on September 9, 2010 and January 27, 2011,
respectively, for violating the dress code.
A letter dated September 13 was sent to Onyeike, signed by Illis, Konjoh and Wells,
which stated that “in reviewing your schedule you have not met the requirements for the Part
Time Benefits Eligible position” because she had only worked four shifts from the date of her
hire, and was available for work only very other weekend. The letter advised that she must work
more than 24 hours to be a part time benefits eligible employee. The letter concluded that
“effective today your status will be changed to per diem” with an increase in pay from $11.10 per
hour to the per diem rate of $12.00 per hour. Konjoh testified that she did not know why Onyeike
was not offered the status of part-time without benefits since an employee could work less than
24 hours and receive such status.
A review of Onyeike’s work records, however, indicates that she worked more than four
shifts since her hire. Thus, she worked on July 27 and 28, 31, and August 1 while being given
orientation training. She also worked a regular shift on August 7, 8, 28, a double shift on
September 4, and a regular shift on September 11 and 12.
Also on the same day, September 13, a documented verbal notice for a violation of the
dress code was signed by Konjoh relating to Onyeike. It states “employee was out of uniform,
had purple t-shirt on. Uniform dress code is yellow top and white pants.” Onyeike denied seeing
that document.
The following day, September 14, Onyeike phoned Illis and asked if the September 13
letter was related to her confrontation with Konjoh. Illis said yes, “you should have known if you
are wearing an 1199 scrub, we would look at you as part of the union.” Onyeike asked if the
issue related to the Union and Illis said “yes, it was written on the scrub.” Onyeike looked at the
scrub and apparently for the first time realized it was a Union scrub, asking Illis if that was why
Konjoh asked her to leave the facility. Illis said that was the reason.
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Onyeike testified that the following weekend, September 18, before her usual weekend
shift, she was called by the night supervisor and told that Konjoh said she should not come to
work because of a low census. Onyeike replied that since she began work the census has been
low. In fact, Onyeike testified that the census has remained the same during the entire time of
her employment. On the next Saturday night, September 25, Onyeike received the same call
giving the same reason why she should not report to work, this time the supervisor said that she
had been taken off the schedule pursuant to Konjoh’s orders. Konjoh denied authorizing anyone
to tell Onyeike that she was not being called because the census was low.
No record of the census for the weekend of September 19 was received in evidence.
However, on the weekends of October 2, and 9, the census was 59 and 56, respectively.
Onyeike has not worked for the Respondent since September 14. She stated that in
January, 2011, she called the Employer and asked the staffing coordinator to be reinstated on
the schedule since she had not worked for three months. The coordinator said “oh, sure, we
need people tonight” and said that she would call back. She did not call Onyeike back.
e. Annie Stubbs
Stubbs was employed as a per diem CNA since May, 2009. Her picture was on the
Union flyer. She worked on the weekends and occasionally during the week.
As set forth above, Stubbs complained at a meeting with Hutchens and other employees
that garbage bags were not made available to the staff. Illis denied that Hutchens told her that
Stubbs had made such a complaint. Rather, she stated that Hutchens told her to look into the
supplies issue and make sure the staff had what they needed. She did so and arranged that
employees had access to the bags. Illis did not know of any union activities engaged in by
Stubbs. According to Stubbs, after the meeting, director of nursing Konjoh approached her and
asked what she thought of the Union. Stubbs replied that she did not know, and Konjoh said
that she knew Stubbs had a union at her other job, “but we don’t want one here.” Konjoh denied
making those comments. In his meeting with the managers, Fleming noted that Stubbs worked
for a unionized employer.
Staff coordinator Wells stated that Stubbs was on the schedule for every other weekend.
Wells told her what days of the week extra workers were needed, and Stubbs advised her which
days she was available. Wells also called her if an employee called out, and she was utilized to
replace that worker.
Stubbs testified that she worked her usual day shift on September 19, 2010, and was
asked the following day by staffing coordinator Valerie Wells to work on certain nights. Stubbs
called to tell Wells that she was interested and was told that Wells was no longer employed.
She left a message with Konjoh who did not return her call. On Friday, September 24, Konjoh
left a message asking whether she could work that weekend. Ten minutes later, Stubbs called
and was told that another employee already accepted the assignment. Stubbs told her that she
was available to work at night depending on her availability. Konjoh said that she was not on the
schedule for the following weekend.
Thereafter, Stubbs did not receive a call asking her to work, and she was not on the
work schedule. She stated that, in the past, she worked a regular day shift on the weekends,
and did not have to call in to see if she was on the work-schedule.
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Illis testified that Stubbs was offered a change in position from per diem to part time in
early September, and she refused the offer. She wanted to remain as a per diem worker and
was removed form the system for not having active hours.
f. The Replacement of the Per Diem Employees with other Per Diem Workers
It is apparent that inasmuch as the five per diem employees were terminated, their shifts
had to be replaced by other workers.
LPN Mohamed Bockarie worked at CareOne at Holmdel, New Jersey from 2009 to
October 24, 2010. Bockarie testified that while working at Holmdel he was asked to call Illis,
who told him to transfer to Somerset Valley because the Employer lost a union election and she
needed more employees to work there and “be on their side … in favor of them, not in favor of
the union” at a “re-election.” Illis asked if he knew who else would like to transfer. He named
three Holmdel employees, Abdul Mansaray, Irene Donker and Elzira. Illis asked him to speak to
them about transferring, and he did. They eventually transferred to Somerset Valley.
Bockarie stated that Illis told him that, normally, a transfer takes 30 to 45 days but that
she would “speed it up,” and in fact he was transferred in less than two weeks. Illis said that he
could select any shift he wanted because he would “be her eyes … to monitor stuff in the
building.”
Illis conceded that she may have told Bockarie that she could accelerate his transfer
form Holmdel faster than was usually the case because there were open positions there and
that she was looking forward to working with someone she had previously worked with.
Nevertheless, she stated that she did not do anything to make Bockarie’s transfer proceed at a
faster pace.
The evidence also establishes that the Respondent replaced the five per diem
employees above with other per diem workers who it transferred from CareOne’s Holmdel
facility. As noted above, Bockarie, who transferred from Holmdel to Somerset Valley, testified
that he was told by Illis that she needed more workers to transfer so that they would vote for the
Employer in another election, and he recommended Mansaray and two others.
Accordingly, it appears that, based on Bockarie’s testimony, Illis preferred to hire per
diem employees who she believed would support the Employer’s re-election effort rather than
retain the per diem employees who were employed at the facility during the Union’s successful
campaign.
While it is true that certain of the dismissed per diem workers were offered part-time jobs
at the facility, or a full-time job, or a change in shift, the question is whether those positions were
offered in good faith. The offerees were working per diem on weekends because they had other,
full-time jobs or because of their personal situations, and the fact that, at least one of them,
Stubbs, worked at a full-time job was known to the Respondent. Thus, there was testimony that
Pat Fleming, the Respondent’s labor relations adviser, announced at a management meeting
that he knew that Stubbs worked at another job.
Analysis and Discussion
I. Credibility
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As set forth in this Decision, I have credited the testimony of the employees where it
conflicts with the testimony of the Respondent’s witnesses. As a group, the employees testified
in a straightforward, confident, consistent manner with respect to conversations and events
which must have made an indelible mark on their memories. Those discussions occurred during
heightened tension in the facility due to the Union’s organizing drive, the participation therein by
many employees, several of whom became leaders of the campaign, and, on the other hand,
the Respondent's attempts to encourage them to vote against union representation.
I also credit the testimony of Southgate, an 18-year employee who became a statutory
supervisor in August, 2010. Southgate attended management meetings with Fleming and other
managers and was a person in whom the Respondent’s officials, including Illis and Konjoh
confided.
Illis’ testimony was contradicted by that of her superior, Hutchens. Thus, Hutchens
testified that when Illis was hired to become the administrator she “was aware of everything”
including the Union petition having been filed “before she got there.” However Illis testified that
before she accepted the position she was not told that the Union filed a petition, and that she
first learned that a Union campaign was underway when she arrived at the facility on August 3.
It is hard to believe that the Respondent would not have made Illis aware that a union campaign
was ongoing for nearly two weeks when it asked her to transfer to Somerset Valley. As the
administrator in charge of the facility she certainly should have, and was indeed, advised as
confirmed by Hutchens before she arrived at the facility that she faced the challenge of a union
election.
Hutchens’ testimony, too, in certain respects is less than credible. His statement that the
employees pictured and who were quoted in a Union booklet as being in support of the Union in
fact “did not support the Union” defies credulity. Hutchens based his belief that although they
may have wanted the Union when they were quoted, they may have changed their minds later
based on the season in which he believed the photos were taken.11
Konjoh’s exaggeration, at hearing, of the reasons for Claudio’s termination harms her
credibility. Thus, Konjoh testified that Claudio had not performed certain of the treatments listed
in the TAR sheet, but no mention of such serious misconduct was made in her termination
letter.
II. The Violations of Section 8(a)(1) of the Act
A. The Interrogations of Employees
The complaint alleges that in August, 2010, the Respondent interrogated its employees
about their union membership, sympathies and/ or activities.
I credit the following employees’ testimony concerning their being asked by supervisors
and officials of the Respondent about how they or their co-workers would vote. Their testimony
is supported by the Employer’s admitted efforts, led by its labor relations advisor Pat Fleming, to
identify where the employees’ union sympathies lie. Thus, according to official Hutchens,

11 In assessing Hutchens’ credibility I have not taken into consideration the fact that certain
subpoenaed documents were not available at the time of his examination. After the documents
were received by the General Counsel and the Union, Hutchens could have been recalled to
testify concerning them.
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Fleming asked the managers how the employees under their supervision were expected to vote,
reading their names from the Excelsior list. Indeed, Hutchens asked the managers for reasons
why they believed an employee would vote one way or another, and he stated that the
managers were expected to get “accurate information” concerning their charges – “if they don’t
know those employees, they should know them certainly.” Supervisor Southgate quoted
Fleming as telling them to “feel out” the workers to see “where they stood.”
It is clear that the managers followed the instructions of Fleming and questioned the
employees regarding their Union sympathies, as set forth below.
I credit Claudio’s testimony that Konjoh asked her “how did I feel people were going to
vote?” When Claudio replied that she did not know how her co-workers would vote, Konjoh
asked her to give her a chance and vote “no.” This instance of interrogation by the director of
nursing Konjoh constituted questioning of an employee regarding her belief as to the union
sympathies of her co-workers, and as such constitutes illegal interrogation.
I credit the unrebutted testimony of CNA Avian Jarbo who stated that shortly before the
election, CareOne nursing official Jessica Arroyo asked Jarbo whether she was “going to get a
‘no’ vote from you?” Jarbo replied that he was not certain. Inasmuch as Arroyo was present at
the facility every day during the campaign and the Respondent was urging employees to vote
“no” in its literature, I find that this statement was made. The questioning of Jarbo was by a high
Respondent official and was a direct inquiry as to how he intended to vote. As such it
constitutes illegal interrogation.
I also credit Stubbs’ testimony that Konjoh asked her what she thought of the Union.
Stubbs replied that she did not know, and Konjoh said that she knew Stubbs had a union at her
other job, “but we don’t want one here.” The question concerning Stubbs’ feelings about the
Union constituted illegal interrogation.
I credit Lynette Tyler’s testimony that Illis asked her what she thought about the
meetings being held by management concerning the Union. Tyler replied that they were
“informative.” Illis then asked her “where are you in terms of voting? Do you know if you were
going to vote for the Union or not?” Tyler replied that she was unsure, was “sitting on the fence,”
and that she was gathering information from the Union and management at the meetings in
order to make an informed decision. Illis replied that “you do not need a union. Do you know
how the rest of your co-workers were voting?” Tyler answered that she did not know. Illis then
asked her “can you convince them to vote no?” Tyler responded that she had only been
employed for nine months while her co-workers had worked there for decades and they could
be expected to make their own decision. Illis told her to “find out and ask who was going to vote
yes and no. Question employees about how they were going to vote.” Here again, the
questioning by the highest ranking official in the facility, administrator Illis, constituted illegal
interrogation.
The Board has held that an interrogation is unlawful if, in light of the totality of the
circumstances, it reasonably tends to interfere with, restrain, or coerce employees in the
exercise of their Section 7 rights. Relevant factors include whether proper assurances were
given concerning the questioning, the background and timing of the interrogation, the nature of
the information sought, the identity of the questioner, and the place and method of the
interrogation.
Given the totality of the circumstance here, I conclude that the questioning set forth
above reasonably tended to coerce employees in the exercise of their Section 7 rights. The
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questioners included Illis and Konjoh, the two highest ranking officials at the facility, as well as
corporate officials Hutchens and Arroyo. No assurances were made to the employees
concerning the questioning, and the questions asked directly inquired as to the employees’’
union sympathies, an improper inquiry by supervisory personnel. Sunrise Senior Living, Inc.,
344 NLRB 1246, 1254 (2005).
I accordingly find that the Respondent unlawfully interrogated its employees in violation
of Section 8(a)(1) of the Act.
B. The Solicitations of Employees’ Complaints and Grievances and Promises of
Increased Benefits and Improved Terms and Conditions of Employment
The complaint alleges that by soliciting employee complaints and grievances, the
Respondent promised its employees increased benefits and improved terms and conditions of
employment if they refrained from union organizational activities.
The employees’ interest in the Union began as a result of administrator Heedles’
advising them in private meetings that their schedules would be changed, effective August 1,
2010. They complained to CareOne officials, and human resources executive Andrea Lee
visited the facility in June and heard about the schedule changes. Nevertheless, the new
scheduling remained in place until after the petition was filed in late July, and Illis replaced
Heedles as the new administrator.
Thus, following the filing of the petition, Illis, in about mid-August directed that the
schedule changes directed by Heedles two months earlier be withdrawn, and the prior schedule
remain in effect.
The Respondent’s officials told the workers at various meetings that they were not aware
of the extent of employee unhappiness at working conditions at the facility. Hutchens and Illis
were quoted as having said that they would try to “fix” things. I cannot credit the denials of
Hutchens and Illis. He and Illis clearly “fixed” the employees’ grievance regarding Heedles’
schedule changes.
In addition, I credit Lynette Tyler’s testimony that shortly after Illis began work at the
facility she was told by Tyler that her job was “overwhelming.” Illis asked her to prepare a list of
her duties and told her that although she could not make promises, she would see what
“changes she could adjust.” About one week later, one of her tasks, recording the weights of
patients, was removed.
At a meeting of employees, Annie Stubbs complained to Hutchens that garbage bags
which the workers needed to maintain the sanitary conditions in the facility were kept locked in
an office and inaccessible to the employees until the office was opened in the morning.
Hutchens immediately instructed Illis to ensure that the bags were available at all times, and Illis
did so.
The Board has held that, “in the absence of a previous practice of doing so, the
solicitation of grievances by an employer during an organizational campaign violates the Act
when the employer promises to remedy those grievances. Uarco, Inc., 216 NLRB 1, 2 (1974).
The solicitation of grievances alone is not unlawful, but it raises an inference that the employer
is promising to remedy the grievances.” Center Service System Division, 345 NLRB 729, 730
2005). Here, by advising the employees that they would attempt to “fix” or “adjust” the
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grievances they had, Illis and Hutchens solicited their grievances, promised to resolve them,
and did resolve them.
I accordingly find and conclude that the Respondent solicited employee grievances,
promised to remedy them, and did remedy them in violation of Section 8(a)(1) of the Act.
III. The Violations of Section 8(a)(3) of the Act
A. Legal Standard
The question of whether the Respondent's discipline and discharges of its employees
and its reduction of the hours of the per diem employees were unlawful is governed by Wright
Line, 251 NLRB 1083 (1980). Under that test, the General Counsel must prove by a
preponderance of the evidence that union animus was a substantial or motivating factor in the
actions taken. He must show union activity by the employees involved, employer knowledge of
such activity, and union animus by the Respondent.
Once the General Counsel has made the requisite showing, the burden then shifts to the
Respondent to prove, as an affirmative defense, that it would have discharged the employees
even in the absence of their union activity. To establish this affirmative defense “an employer
cannot simply present a legitimate reason for its action but must persuade by a preponderance
of the evidence that the same action would have taken even in the absence of the protected
activity.” L.B.&B. Associates, Inc., 346 NLRB 1025, 1026 (2006). “The issue is, thus, not simply
whether the employer ‘could have’ disciplined the employee, but whether it ‘would have’ done
so, regardless of his union activities.” Carpenter Technology Corp., 346 NLRB 766, 773 (2006).
Accordingly, the Respondent may present a good reason for discharge, but unless it can prove
that it would have discharged the worker absent her union activities, the Respondent has not
established its defense. If the General Counsel presents a strong prima facie showing of
discrimination, the Respondent's burden is “substantial.” Vemco, Inc., 304 NLRB 911, 912
(1991). “The policy and protection provided by the Act does not allow the employer to substitute
‘good’ reasons for ‘real’ reasons when the purpose of the discharge is to retaliate for an
employee's concerted activities. Under Wright Line, an employer cannot carry its burden of
persuasion by merely showing that it had a legitimate reason for taking the action in question;
rather it “must show by a preponderance of the evidence that the action would have taken place
even without the protected conduct.” North Carolina Prisoner Legal Services, 351 NLRB 464,
469, fn. 17 (2007).
A careful examination of the Respondent's record of disciplining other employees for the
same offense must be made. Differences in treatment of employees who committed the same
or similar offenses is an important factor to be considered in evaluating the Respondent's
defense. The presence of disparate treatment toward the dischargees indicates a discriminatory
motive. Central Valley Meat Co., 346 NLRB 1078, 1079 (2006). “To support an inference of
unlawful motivation, the Board looks to such factors as inconsistencies between the proffered
reasons for the discipline and other actions of the employer, disparate treatment of certain
employees compared to other employees with similar work records or offenses, deviations from
past practice, and proximity in time of the discipline to the union activity.” Robert Orr/Sysco
Food Services, 343 NLRB 1183, 1184 (2004).
B. Special Considerations Applicable to Medical Care Facilities
In St. John’s Community Services-New Jersey, 355 NLRB No. 70, slip op. at 10,11
(2010), the Board found that the respondent unlawfully more strictly enforced its medication
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administration policy upon its employees and discharged them pursuant to a stricter
enforcement of such policy because of its employees' union activities. The considerations
applied to medical care facilities set forth in that case are also applicable here:
I do not question the legitimacy of the Respondent's need to
enforce its medication administration policy. The absolute
importance that the Respondent attaches to its policy is not at
issue. Similarly, the gravity of the harm to the [patient] because of
such an error is also not at issue. The issue here concerns how
the Respondent dealt with its employees who committed
medication errors.
As the Board stated in Schrock Cabinet, Co., 339 NLRB 182, 183-184 (2003), my finding
that the employees’ discipline and discharges violated the Act
[d]oes not alter or undermine an employer's authority to implement
or enforce work rules. Nor does it cast doubt on an employer's
ability to more strictly enforce its work rules. (Emphasis in original)
An employer's more stringent enforcement of its work rules will not
constitute a violation of the Act unless it is a consequence of
employee participation in protected activity. The existence of
protected activity alone, however, does not foreclose an employer
from more strictly enforcing its work rules, even where the
employer previously tolerated infractions of those rules …. A
violation of the Act will be found, however, where—as in this
case—an employer more strictly enforces a work rule in response
to protected activity.
The question that must be answered is not whether the employees involved committed
errors in their work, or even if they were serious or terminable offenses, but whether the
Respondent would have disciplined and discharged them even in the absence of their union
activities. As will be described below, I conclude that the Respondent disciplined and
discharged employees for errors because of the Union being selected as the employees’
representative in the September 2 election. Immediately thereafter, the Respondent began
disciplining and discharging employees for errors that would not have merited such treatment
prior to the election.
C. The Union Activities of Claudio, Jacques and Napolitano
and the Respondent’s Animus
Claudio, Jacques and Napolitano were the three leading Union advocates at Somerset
Valley. Claudio spoke to other employees about the need for union representation and
contacted the Union and arranged meetings between organizer Walsh and the workers. She
and Napolitano met with Walsh. They and Jacques distributed a union petition among the
workers and spoke with supervisor Apgar and also to Southgate who became a supervisor in
August about the process. Claudio, Jacques and Napolitano distributed union cards at work and
collected them there. They appeared in the Union’s brochure which was seen by Hutchens and
Illis before the election. In addition, Claudio and Jacques appeared in the Union’s YouTube
video which was seen by Hutchens before the election. Jacques and Napolitano served as the
Union’s election observers.
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As set forth above, supervisor Southgate recalled labor relations adviser Fleming telling
the managers that Napolitano was a “union organizer” and that Claudio was “very pro-union.”
Accordingly, I find that Claudio, Jacques and Napolitano engaged in activities in support
of the Union and that their union activities were well known to the Respondent.
The Respondent’s animus toward the Union is beyond question. After the petition was
filed, it waged an aggressive campaign designed to encourage employees to vote against union
representation. Its officials met with employees both at meetings and individually to urge them to
vote against the Union in the election. In addition, as set forth above, the Respondent
conducted illegal interrogations of employees and unlawfully solicited and resolved employees’
grievances.
D. The Discipline for Attendance
On September 13, only 11 days after the election, the Respondent issued two written
warnings to Jacques, two written warnings to Claudio, and a first written warning to Napolitano
for attendance issues. They had not received written discipline prior to the election for their
deplorable attendance records.
The evidence strongly supports a finding that the Respondent’s policy toward employee
lateness and absence from work became more strict after the Union won the election. Thus, as
set forth above, supervisor Southgate credibly testified that, following the election, she was told
by Konjoh that she should no longer accept calls from late employees, and that she should
direct them to Konjoh.
Although Illis stated that she became aware of excessive absenteeism among
employees when she began work on August 3, no action was taken against anyone for six
weeks, not until shortly after the election. A finding may properly be made that, in doing so, the
Respondent sought to retaliate against employees for the Union’s election victory. This finding is
supported by Illis’ concession that she told the workers that she was “disappointed” in the
election results, and may have said that she felt betrayed at those results. Her disappointment
and betrayal manifested itself in her post-election examination of the lateness records and
decision to issue discipline to the “worst offenders” who happened to include Jacques, Claudio
and Napolitano.
Certainly, Illis could have reviewed the attendance records immediately after beginning
work at the facility on August 3. Indeed, as mentioned above, she became aware of excessive
absenteeism after her arrival at the facility. But, nevertheless, waited until the results of the
election. Certainly, if she was attempting, in issuing discipline, to correct the employees’
misconduct and improve their attendance, the most appropriate time to issue discipline was as
soon as she became aware that employees were excessively late and absent.
The issuance of multiple disciplinary notices to the three leading Union advocates on the
same day for attendance issues sent a clear message to the Union’s supporters. The fact that
Konjoh, in deciding to whom the discipline should be issued, did not investigate whether, in the
past, employees were disciplined for such matters, and that she was told that discipline for such
misconduct was not a “common practice,” evidenced a desire to pursue such discipline without
regard to the past history of the facility. Further, the fact that Konjoh decided who to discipline
does not minimize Illis’ involvement in the process because they both discussed the discipline
and obviously Illis knew which employees would be disciplined.
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Moreover, although Konjoh testified that, when she began work at the facility, she
decided to give employees a “clean slate” and did not look at their attendance records before
August, 2010, she nevertheless, she disciplined employees for lateness and absences based
on their records from January, 2010. For example, on September 13, Claudio was written up for
being late 64 times since January 1, 2010, Jacques received discipline for being late 109 times
since January 1, 2010, and Napolitano, for being late 93 times since January 1, 2010.
The inconsistency in Konjoh’s approach to disciplining the three union leaders, in
considering past lateness although she wanted to give them a “clean slate” is evidence of an
unlawful motive. Indeed, supervisor Southgate told Claudio to “be careful and don’t be late….
Don’t give them a reason.”
The Respondent offered evidence that other employees were also issued discipline for
absences and latenesses.12 However, all of those disciplines, except for a final written warning
issued to Jennifer McCauley in February, 2010 for excessive absences, were issued after the
election. Accordingly, no history of consistent application of discipline predating the election, or
even predating the filing of the petition, was presented. This is so notwithstanding that
excessive latenesses and absences were common at the facility prior to the election with
virtually no discipline being imposed.
I accordingly find and conclude that the General Counsel has made a prima facie
showing that the Respondent’s issuance of discipline to Claudio, Jacques and Napolitano by
more strictly enforcing its attendance policies was motivated by their union activities, and that
the Respondent has not proven that it would have issued discipline to the three workers in the
absence of their union activities. Wright Line, above.
E. Discipline for Performance Issues
1. Initial Observations
Many of the errors and mistakes in documentation were discovered as a result of an
increased scrutiny of the MAR and TAR books. As will be seen below, following the election,
discipline was issued based on errors in completion of the MAR and TAR records.
It appears that those records were not scrutinized as carefully before the election as
they were after the election, and that any errors in those records found prior to the election were
rarely the subject of discipline. For example, the Respondent offered in evidence numerous
examples of discipline given to employees after the election for performance issues, but could
only present three instances of discipline prior to the election. Even as to them, the maximum
discipline issued was a written warning.
Thus, on February 1, 2010, Beatrice Beaviour was issued a verbal warning for not
recording weights of patients. On March 10, 2010, Jerry Santos was issued a verbal warning for
not reordering a medication in a timely manner. On March 10, 2010, Michelle Moore was issued
a verbal warning for not reporting significant changes to a patient, and on June 10, she was
given a written warning for failing to check a bed alarm, failing to ensure that a bed alarm was in
place, and leaving medication at a patient’s bedside.

12 There was no showing that Gladys Amaka Agu, who was late 34 out of 37 shifts, was
issued discipline by Illis, who simply asked why she was late so often.
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Accordingly, as set forth above, the question is not whether the Respondent could have
issued discipline to the Claudio, Jacques and Napolitano. The proper inquiry is whether the
Respondent would have done so in the absence of their protected conduct. The evidence
supports a finding that even assuming that the Respondent would have issued discipline to the
three union leaders, it would not have discharged them in the absence of their union activities.
Although the MAR and TAR sheets completed on a particular day should have been
reviewed by the 11:00 p.m. to 7:00 a.m. nurse, that procedure, mandated by the Plan of
Correction following the September, 2009 survey was not followed.
The procedure following the election was that, according to the credited testimony of
supervisor Southgate, she saw Illis and Konjoh behind the nurse’s station where they “kept
reviewing and combing through everything all the time.” Indeed, as again testified by Southgate,
Konjoh told her that they would be looking at the union organizers and if given a reason to write
them up, she would do so. In addition, as credibly testified by 11 year employee Jacques,
reviews of those records by Employer officials were not regularly done before the election, but
only took place if an incident was brought to their attention.
Further evidence of increased scrutiny is apparent from Bockarie’s credited testimony,
that on his first day of work at the facility, he was asked by Illis to look for errors… in their notes,
in their charting, the MARs and TARs. committed by people on a list which included Jacques.
The Respondent’s witnesses testified that any increased examination of the MAR and
TAR books were due to the upcoming, expected state survey. The last survey was performed in
December, 2009, and even assuming that a new survey would occur within a four month
window as early as September, 2010, there was no showing that errors in past pre-survey
audits resulted in discipline to any employees.
2. Sheena Claudio
Claudio, a leader in the Union’s campaign, was employed by the Respondent for nine
months. The first disciplinary warning for performance issues was issued to her on September
20 and then on September 27. On October 21, she was discharged.
The warning on September 20 was for administering aspirin to a patient on two
consecutive days whereas the order required it to be administered every other day. As set forth
above, the Respondent had a practice whereby the night shift was supposed to have reviewed
the charts each night to ensure that the medications ordered were given.
Although nurse Dande was issued the same discipline for committing the same error, it
is apparent that the night shift nurse should have noticed that two nurses were improperly
administering medication to a patient. Although the night nurse’s failure to do so does not
minimize the error committed by Claudio, there is no showing that the night nurse was
disciplined for failing to perform the 24 hour check. As set forth above, that check was required
in the plan of correction, but Konjoh claimed not to be aware of that requirement.
Claudio received a written notice and a two-day suspension on October 1 for failing to
document patient status for three patients, as set forth above, failing to write an admission note,
and failing to document a patient for five days after his admission.
However, employee Mootosamy received only a first written warning for failing to
document a status post fall for two days and failing to do a post-admission documentation on
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another patient, and failing to document vital signs on her notes. In this case, the misconduct of
both Claudio and Mootosamy was substantially similar to provide a comparison of the discipline
given both employees. Clearly, the discipline issued to Claudio, particularly a two-day
suspension was far in excess of that given to Mootosamy for virtually identical misconduct.
In addition, the evidence supports a finding that documentation issues were a long-
standing concern of the Respondent. It dealt with them, prior to the election, primarily with in-
service training sessions.
Claudio was terminated on October 8, five weeks after the election, for failing to
document her TAR treatments. As set forth above, she kept a record of the treatments she
administered but forgot to initial them in the TAR book.
Although nurses Jacques and Napolitano testified that nurses should complete the TAR
entries before the end of their shift, and before they leave the building, Southgate stated that it
was “not uncommon” for nurses to complete such entries the day after the treatments had been
administered. She stated that she did so without discipline being issued, but was not aware if
any Respondent official or supervisor was aware that she did so.
Konjoh attempted to embellish the reason for terminating Claudio by testifying that
Claudio had not done certain of the treatments she claimed she performed. Nevertheless, the
letter of termination did not mention that as a reason for the discharge. Such an effort by Konjoh
tends to undermine the Respondent’s defense to her discharge.
The question that must be answered is whether Claudio would have been disciplined or
discharged for the misconduct she committed. The above evidence indicates that she would not
have been. Thus, Mootosamy was treated more leniently than Claudio for committing essentially
the same errors. Further, supervisor Southgate stated that she has completed entries after her
shift has been completed, and even the day following the administration of treatment. Here,
Claudio attempted to do the same as soon as possible following the end of her shift but was
prevented from doing so.
I accordingly find and conclude that the Respondent has not proven that it would have
disciplined and discharged Claudio in the absence of her union activities. Wright Line, above.
3. Jillian Jacques
Jacques, a long-term, 11 year employee, was a leader in the Union’s campaign and its
election observer. She received discipline for not fully completing incident reports due to the
CNA’s report not being included in hers, and for failing to transcribe a medication order
accurately.
Prior to the election, these errors would have been remedied with in-service training.
Even after the election, as set forth above, other nurses received less discipline for committing
similar errors.
Further, the fact that Jacques was disciplined for these errors must be viewed in light of
Bockarie’s credited testimony that Illis told him to look for errors committed by Jacques in her
charting and MAR and TAR sheets. In addition, Konjoh told Southgate, as set forth above, that
the Respondent would be looking at the union organizers closely and if they had a reason to
write them up they would do so, but that Jacques was being very careful, and had so far
avoided discipline.
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I accordingly find and conclude that the Respondent has not proven that it would have
disciplined and discharged Jacques in the absence of her union activities. Wright Line, above.
4. Shannon Napolitano
Napolitano was discharged only two weeks after the election, at which she was the
Union’s observer. There is no dispute that she administered a zinc pill to a patient which had
been discontinued. However, the circumstances concerning that event put in question the
motivation behind the discharge.
Thus, Konjoh was aware that Napolitano was administering a discontinued medication
but did not advise her not to do so until after the patient held the pill given to her and presented
it to Konjoh. Further, Konjoh’s replacement, Engram, testified that proper nursing procedure
required any nurse, including the director of nursing, who was aware of such an error, to remove
the medication from the cart. Instead, Konjoh permitted Napolitano to again administer the
medication after being advised that she was doing so.
Further, as set forth above, three other nurses also administered the same discontinued
medication and were not disciplined. Although they initialed the box in the MAR sheet indicating
that they had administered the zinc pill, they told Konjoh that they did not give the patient the pill
and erroneously signed the MAR. Although she stated that she did not believe them, she
excused their two errors - their alleged administration of the discontinued medication and their
falsifying the MAR. Konjoh’s lenient treatment of the three other nurses stands in stark contrast
to her treatment of Napolitano.
Konjoh’s discipline of Napolitano for two additional errors - documenting an incorrect
pulse oxygen level by noting that the level was 0% differs from the treatment a nurse would
have received before the election: simply correcting an obvious error in documentation.
I accordingly find and conclude that the Respondent has not proven that it would have
disciplined and discharged Napolitano in the absence of her union activities. Wright Line, above.
5. Valerie Wells
The complaint alleges that the Respondent unlawfully issued written warnings to Wells
on September 15, 16, and 20, 2010, and discharged her on September 21.
Wells spoke to her co-workers and supervisors Apgar and Southgate regarding the
Union and appeared in the Union flyer seen by Hutchens and Illis before the election. In this
regard, Illis’ denial of knowledge of Wells’ union interest or activities cannot be credited.
Wells served as staffing coordinator for about five years under various administrators
and directors of nursing, yet she was not disciplined for her work during such time.
As set forth above, her first discipline, on September 7 occurred only five days after the
election. Thus, the September 7 discipline took place on the day Wells returned from vacation,
and involved occurrences which took place the prior weekend. Ordinarily she would have been
given until the morning of September 7 to reconcile any differences in the schedule with the
actual attendance of employees that weekend. However, she was called into a meeting at the
precise time that she was expected to make those reconciliations, and disciplined for not
making them.
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Wells received a first and second written warning on September 15, a third written
warning on September 20 and was discharged on September 21. It is important to note that
although Illis claimed to have spoken to Wells numerous times in August about her
performance, there is no written record of such conversations.
Although Illis certainly could have disciplined Wells for errors in her work performance
prior to the election she did not do so, but took the opportunity to discipline her repeatedly and
in short order for errors after the election. As set forth above, Wells gave reasonable
explanations for certain of the items complained of, including that Illis improperly scheduled
Guerline for a shift.
The question which must be answered is whether the Respondent would have
discharged Wells in the absence of her union activities. Wells performed her job without
discipline for five years before the election, and CareOne official Hutchens was able to access
Smartlinx and Wells’ work and did not inquire into any problems he may have seen. It was only
after the election that Illis brought Wells’ errors to her attention and issued discipline. These
factors lead me to conclude that the Respondent would not have disciplined and discharged
Wells in the absence of her union activities.
F. The Accelerated Resignation Date of Lynette Tyler
The complaint alleges that the Respondent unlawfully terminated Tyler on September 9,
2010.
As set forth above, Tyler resigned her position one week after the election, giving two
weeks notice that she would be leaving her job on September 22. Illis told her to leave
immediately and paid Tyler for the two week notice period. The General Counsel alleges that
the Respondent unlawfully accelerated her departure date.
As set forth above, Tyler appeared in the Union’s YouTube video supporting the Union,
and was unlawfully interrogated by Illis about her union sympathies. She conceded that Illis
asked her to remain employed by the Respondent and not quit. But that was two weeks before
the election, and apparently Illis sought to obtain her vote in the election. Although Tyler gave
an equivocal answer to Illis’ question as to why do you need a union, saying “why not,”
nevertheless, according to Southgate, it was believed that, prior to the election, Tyler was “going
back and forth.” Indeed, in answer to Illis’ question as to how she would vote, Tyler said that she
was not certain.
Following the election, the Respondent sought to remove Tyler as quickly as possible
and accelerated her resignation or discharged her when she gave two weeks notice of quit. Illis
wrote on her personnel action form “not eligible for rehire – resigned with bad attitude toward
company” which differs markedly from her alleged efforts to retain her as an employee before
the election. I cannot credit Illis’ testimony that when Tyler announced that she was resigning,
she and Konjoh attempted to persuade Tyler to remain with the Employer. It is unlikely that Illis
would have done so in view of her notation, above, concerning her ineligibility for rehire and her
bad attitude. Rather, the evidence supports a finding that prior to the election, Tyler was
encouraged to remain employed because the Employer hoped to persuade this uncertain voter
to vote against the Union.
Based on the above, I find and conclude that the Respondent’s accelerated resignation
of Tyler was undertaken to remove her from the Respondent’s premises because of her union
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activities. See Gelita USA Inc., 352 NLRB 406, 415 (2008), where the employer, in advance of
an election and after unlawfully interrogating an employee, accelerated his departure date.
The evidence that Illis accelerated the departure date of two supervisors in January and
April, 2011, does not support a finding that the Respondent would have followed the same
procedure prior to Tyler’s resignation, or with non-supervisors.
G. The Per Diem Employees
The complaint alleges that since on or about September 18, 2010, the Respondent
unlawfully reduced the hours of per diem employees, including Daysi Aguilar, Annie Stubbs,
Gertrudis Rodriguez, Dominique Joseph and Rita Onyeike.
The union activities of the per diem employees are set forth above.
As set forth above, Southgate credibly testified that Konjoh told her that the Respondent
was asking for another election and if that occurred, per diem employees must have worked a
minimum number of hours in order to be eligible to vote in the new election.
Nevertheless, it was also required, in the first election, that the per diem employees work
a certain number of hours in order to be eligible to vote. The difference in what actually
happened after the election, however, is that those per diem employees who were eligible to
vote were prevented from working, thereby ensuring that they would not be eligible to vote in the
new election. This marked difference in attitude toward the per diem employees must have been
because they voted in the election which was won by the Union.
Thus, within two or three weeks after the election, per diem workers Aguilar, Arias,
Joseph, and Stubbs were all removed from the schedule which they worked on a regular,
weekend or every other weekend basis for a period of time: Aguilar since 2005, Arias since
November, 2009, Joseph since 2007, Onyeike since July, 2010, and Stubbs since May, 2009.
They were removed for not having “active hours.” That term was not explained at
hearing. Nevertheless, their hours had been deemed sufficient to permit them to vote in the
election only weeks before.
The Respondent’s defense that per diem employees should not have been given a
regular schedule is undermined by the fact that CareOne official Hutchens possessed
knowledge, through his access to Smartlinx that they had been working pursuant to a regular
schedule. He did not protest that fact and nothing was done to remove them until after the
election.
In addition, the Respondent’s reasons for terminating its per diem employees is
undermined by Bockarie’s credited testimony that Illis told him that she sought to hire
employees who would vote in the Respondent’s favor in a new election and asked for names of
people he could recommend. Mansaray, a per diem, was included in the list, and he eventually
was hired. Accordingly, the Respondent hired at lease one per diem employee at the same time
that it was removing its own experienced per diems. The Respondent argues that per diem
workers were needed, but on an “as-needed” basis. Nevertheless, these employees had been
working a regular schedule without change until after the election.
I accordingly find and conclude that the hours of the per diem employees would not have
been reduced in the absence of their union activities. Wright Line, above.
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Conclusions of Law
1. By interrogating its employees about their union membership, sympathies and/or
activities, the Respondent violated Section 8(a)(1) of the Act.
2. By soliciting employee complaints and grievances, the Respondent promised its
employees increased benefits and improved terms and conditions of employment if they
refrained from union organizational activities, in violation of Section 8(a)(1) of the Act.
3. By issuing a written warning to employee Shannon Napolitano on about September
13, 2010, and by terminating Napolitano on about September 17, 2010, the Respondent
violated Section 8(a)(1) and (3) of the Act.
4. By issuing two written warnings to employee Jillian Jacques on about September 13,
2010, and by issuing a written warning to Jacques on about November 5, 2010, and by
suspending Jacques on about February 9, 2011, and by discharging Jacques on about
February 10, 2011, the Respondent violated Section 8(a)(1) and (3) of the Act.
5. By issuing two written warnings to employee Sheena Claudio on about September 14,
2010, and by issuing a written warning to Claudio on about September 20, 2010, and by issuing
a written warning to Claudio on about September 27, 2010, and by terminating Claudio on about
October 21, 2010, the Respondent violated Section 8(a)(1) and (3) of the Act.
6. By issuing a written warning to employee Valerie Wells on about September 15, 2010,
and by issuing a written warning to Wells on about September 16, 2010, and by issuing a
written warning to Wells on about September 20, 2010, and by terminating Wells on about
September 9, 2010, the Respondent violated Section 8(a)(1) and (3) of the Act.
7. By accelerating the resignation date of its employee Lynette Tyler on about
September 9, 2010, the Respondent violated Section 8(a)(1) and (3) of the Act.
8. By reducing the hours of per diem employees, including Daysi Aguilar, Dominique
Joseph, Rita Onyeike, Gertrudis Rodriguez, and Annie Stubbs, the Respondent violated Section
8(a)(1) and (3) of the Act.
The Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged employees, it must offer them
reinstatement and make them whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
The Respondent having discriminatorily discharged employees, it must offer them
reinstatement and shall make them whole for any loss of earnings and other benefits suffered
as a result of the unlawful action against them. Backpay shall be computed in accordance with
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F.W. Woolworth Co., above, with interest at the rate prescribed in New Horizons for the
Retarded, above, compounded daily as prescribed in Kentucky River Medical Center, above.
The Respondent shall also be required to remove from its files any and all references to the
unlawful warnings issued to the employees who received warnings and to their suspensions and
discharges, and to notify them in writing that this has been done and that such adverse actions
will not be used against them in any way.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended13
ORDER
The Respondent, 1621 Route 22 West Operating Company, LLC d/b/a Somerset Valley
Rehabilitation and Nursing Center, Bound Brook, New Jersey, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their union membership, sympathies and/or
activities.
(b) Soliciting employee complaints and grievances, thereby promising its employees
increased benefits and improved terms and conditions of employment if they refrained from
union organizational activities.
(c) Issuing written warnings to employees because of their union membership,
sympathies and/or activities.
(d) Suspending, discharging, or otherwise discriminating against any employee for
supporting 1199 SEIU United Healthcare Workers East, New Jersey Region, or any other labor
organization.
(e) Accelerating the resignation dates of employees because of their union membership,
sympathies and/or activities.
(f) Reducing the hours of per diem employees, because of their union membership,
sympathies and/or activities.
(g) 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 effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Sheena Claudio, Jillian
Jacques, Shannon Napolitano, and Valarie Wells full reinstatement to their former jobs or, if

13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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those jobs no longer exist, to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
(b) Make employees Sheena Claudio, Jillian Jacques, Shannon Napolitano, and Valarie
Wells, Lynette Tyler, Daysi Aguilar, Dominique Joseph, Rita Onyeike, Gertrudis Rodriguez, and
Annie Stubbs whole for any loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful employment actions taken against the employees named above, and
within 3 days thereafter notify the employees in writing that this has been done and that the
unlawful employment actions will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, 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 Bound Brook, New Jersey
facility, copies of the attached notice marked “Appendix.”14 Copies of the notice, on forms
provided by the Regional Director for Region 22, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
August 1, 2010.
(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.
Dated, Washington, D.C., November 21, 2011.
____________________
Steven Davis
Administrative Law Judge

14 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)-45-11
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 activities
WE WILL NOT question you about your union membership, sympathies and/or activities.
WE WILL NOT solicit your complaints and grievances, thereby promising you increased benefits
and improved terms and conditions of employment if you refrain from union organizational
activities.
WE WILL NOT issue written warnings to you because of your union membership, sympathies
and/or activities.
WE WILL NOT suspend, discharge, or otherwise discriminate against you for supporting 1199
SEIU United Healthcare Workers East, New Jersey Region, or any other labor organization.
WE WILL NOT accelerate your resignation date because of your union membership,
sympathies and/or activities.
WE WILL NOT reduce the hours of employees, including per diem employees because of your
union membership, sympathies and/or activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order, offer Sheena Claudio, Jillian
Jacques, Shannon Napolitano, and Valarie Wells full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
WE WILL make employees Sheena Claudio, Jillian Jacques, Shannon Napolitano, and Valarie
Wells, Lynette Tyler, Daysi Aguilar, Dominique Joseph, Rita Onyeike, Gertrudis Rodriguez, and
Annie Stubbs whole for any loss of earnings and other benefits suffered as a result of the
discrimination against them.
JD(NY)-45-11
WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful employment actions taken against the employees named above, and
within 3 days thereafter notify them in writing that this has been done and that the unlawful
employment actions will not be used against them in any way.
1621 Route 22 West Operating Company, LLC d/b/a
Somerset Valley Rehabilitation and Nursing Center
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
20 Washington Place, 5th Floor
Newark, New Jersey 07102-3110
Hours: 8:30 a.m. to 5 p.m.
973-645-2100.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 973-645-3784.