Somerset Valley Rehabilitation and Nursing Center

National Labor Relations Board - Board Decisions

Sep 26, 2012

358 N.L.R.B. 1361 (N.L.R.B. 2012)

SUMMERSET VALLEY REHABILITATION & NURSING CENTER 1361

358 NLRB No. 146
1621 Route 22 West Operating Company, LLC d/b/a
Somerset Valley Rehabilitation and Nursing
Center and 1199 SEIU United Healthcare
Workers East, New Jersey Region. Cases 22–
CA–029599, 22–CA–029628, and 22–CA–029868
September 26, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On November 21, 2011, Administrative Law Judge
Steven Davis issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the Act-
ing General Counsel and the Charging Party Union each
filed an answering brief, and the Respondent filed a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,2 and conclusions,3 as
modified below, and to adopt the recommended Order.

1 The Respondent filed a motion to stay proceedings, arguing that
the Board lacks the necessary quorum to decide this case on the
grounds that the President's recess appointments of Members Block and
Griffin to the Board were invalid. For the reasons set forth in Center
for Social Change, Inc., 358 NLRB 161 (2012), we deny the motion.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent has attempted to undermine the judge’s credibility
findings by noting that he referred to Avian Jerboa, a minor witness for
the Acting General Counsel, as a male when she was female. However,
Jarbo testified on the 4th day of a 19-day trial, and her testimony was
brief. The judge’s gender mistake in later drafting his decision from a
lengthy record was unfortunate but minor. The Respondent also em-
phasizes that Rita Onyeike, at the hearing, identified the woman who
confronted her on September 12, 2010, concerning the union scrub she
was wearing at work as the Respondent’s director of nursing, Inez
Konjoh, but gave a physical description that did not fit Konjoh. The
transcript indicates, however, that even the Respondent’s own counsel
understood that Onyeike had simply mistaken the Respondent’s admin-
istrator, Doreen Illis, for Konjoh at the time of the incident. This was a
plausible mistake, as Onyeike had not previously met either woman.
3 The judge found that the Respondent unlawfully issued employee
Sheena Claudio a written warning on September 20 for a medication
administration error. However, based on the record evidence that,
during the same time period, the Respondent warned another employee
for a similar error, we find that the Respondent established that it would
have disciplined Claudio even in the absence of her union activity, and
we accordingly reverse the judge’s finding. See Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983).
This case arises from a union organizing campaign
among the Respondent’s nursing employees at its Som-
erset, New Jersey nursing home. The Union won a
Board-conducted representation election held on Sep-
tember 2, 2010, and was later certified by the Board as
the unit employees’ collective-bargaining representative.
As found by the judge, both before and after the election,
the Respondent committed a variety of serious unfair
labor practices, including disciplining and discharging
four union supporters, accelerating the resignation of
another union supporter, eliminating the work hours of
five per diem employees, interrogating employees about
their union sympathies, and soliciting and promising to
remedy employees’ grievances if they refrained from
supporting the Union. We agree with virtually all of the
judge’s findings for the reasons he gives, as modified
below.
1. The Respondent’s Antiunion Animus. Based on the
record as a whole, the judge found that the Respondent’s
animus toward the Union was “beyond question.” The
record fully supports the judge’s finding. The Respond-
ent manifested its antiunion animus in various ways, in-
cluding through its repeated unlawful interrogations of
employees, unlawful solicitations of grievances, dispar-
ate and inconsistent treatment of known union support-
ers, and a number of its managers’ additional statements
and actions. We find it unnecessary, however, to rely on
the judge’s comments that the Respondent’s animus was
also established by its “aggressive campaign” against the
Union and by its having “urge[d employees] to vote
against the Union,” as the balance of record still easily
supports his finding.
2. Discipline for Attendance Infractions. On Septem-
ber 13, just 11 days after the election, the Respondent
issued written warnings to prounion employees Jillian
Jacques, Shannon Napolitano, and Sheena Claudio for
excessive lateness. Each warning charged the employee
with having been late on multiple occasions since Janu-
ary 1. In addition, the Respondent gave Jacques and
Claudio separate written warnings for unexcused absenc-
es. We agree with the judge that all of those warnings
were unlawful.
The Respondent claims that the written warnings is-
sued to Jacques, Napolitano, and Claudio resulted from a
lawful decision made by Administrator Doreen Illis and
Director of Nursing Inez Konjoh in August—when they
first assumed their respective posts—to more strictly
enforce attendance requirements because of excessive
infractions. That claim cannot withstand scrutiny.
As found by the judge, the evidence establishes that
the Respondent targeted union supporters for more strict
enforcement of its attendance policy. Unit Manager and
1362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
admitted Supervisor Jackie Southgate testified that, prior
to the organizing campaign and election, no discipline
was issued for lateness. Employees calling in late for
work were simply referred to a charge nurse. During the
critical period before the election, however, Director of
Nursing Konjoh told Southgate that a union meeting was
being held that day and that, if Jacques arrived or called
in late, Jacques should be directed to Konjoh. If there
were any doubt about the reason for that change in pro-
cedure, Konjoh removed it after the election when she
explained to Southgate that “they would be obviously
looking at the people who they believed to be union or-
ganizers closely and if they were given a reason to write
them up they would write them up.” Against this back-
drop, we have little trouble affirming the judge’s findings
that the written warnings issued to Jacques, Napolitano,
and Claudio for lateness were unlawful.4
Similarly, we affirm the judge’s findings that the Re-
spondent unlawfully disciplined Jacques and Claudio for
absenteeism. Jacques received a written warning for
being absent three times within 60 days, all three times
on days before a nonworking day. Claudio received a
written warning for being absent three times in 90 days,
twice on days before a nonworking day. When Claudio
questioned Director of Nursing Konjoh whether the Re-
spondent had a rule prohibiting the use of sick days adja-
cent to nonworking days, Konjoh told her the rule was in
the Respondent’s employee handbook. In fact, the hand-
book contained no such rule. Moreover, when Claudio
complained to Unit Manager Southgate about the warn-
ings, Southgate told her to “be careful because you al-
ready know what’s going to happen. What they’re trying
to do. Just be careful and don’t be late. . . . Don’t give
them a reason.” Last, the Respondent’s unlawful motive
is further revealed by its more lenient treatment of anoth-
er employee, who received only a “documented verbal”
warning for four absences in 60 days, twice on days be-
fore a nonworking day. All of that evidence fully sup-
ports the judge’s findings that the Respondent’s disci-
pline of Jacques and Claudio for absenteeism was unlaw-
ful.
3. The Discipline and Discharge of Jacques. The
judge found that the performance related disciplinary
notices given to Jacques after the election, her suspen-

4 In their own defense, each discriminatee said she had not previous-
ly been disciplined for lateness, and that her “late” arrivals were due to
personal circumstances that were known to the Respondent and treated
as acceptable. The Respondent introduced lateness warnings purport-
edly issued to four other employees at the same time, but—unlike all of
the attendance warnings issued the discriminatees—only one of those is
signed and indicates that it was actually given to the employee. We
therefore give that evidence little weight.
sion on February 10, 2011, and her discharge the follow-
ing day were unlawful. We agree.
Jacques was a senior nurse at Somerset, having worked
on the evening shift for 11 years. On many occasions
during the 2 years preceding her discharge, the Respond-
ent had selected Jacques to serve as a charge nurse, an
acknowledgment of her experience and expertise.5 The
Respondent, however, took a decidedly different view of
Jacques after the election.
On September 28, the Respondent gave Jacques a first
written warning for failing to document the postfall and
postadmission status of two patients. Jacques pointed
out and Konjoh confirmed that another nurse, Patty
Beck, had been responsible for one of those incidents.
Konjoh, however, “forgot” to discipline Beck.
On November 1, Jacques received a written warning
for not fully completing an incident report while she was
acting as a charge nurse. Jacques had left a message for
Konjoh the morning after the incident, informing her that
the night aide involved had left the facility without giv-
ing Jacques her own written statement, but that Jacques
would obtain it (which she did). Jacques explained that
she had not completed the incident report in other re-
spects because the incident occurred late at night and she
was very busy that night. On October 21, by contrast,
Beck received only a verbal warning for failing to com-
plete incident reports in the same way as Jacques for two
separate incidents. The credited record also shows that
prior to the election the Respondent did not discipline
nurses for failing to fully complete incident reports.
On February 10, 2011, Jacques received a disciplinary
notice and suspension for three additional documentation
infractions. The disciplinary notice also cited the (un-
lawful) “lateness/pattern of absenteeism” notices Jacques
had received the previous September. The Respondent
discharged Jacques the next day based on that notice.
As stated, we agree with the judge’s finding that the
Respondent’s discipline and discharge of Jacques was
unlawful. Initially, we observe that the Respondent’s
scrutiny of Jacques followed Konjoh’s postelection ad-
mission to Unit Manager Southgate, described above,
that the Respondent would be closely monitoring sus-
pected union organizers and writing them up. Also fol-
lowing the election, Administrator Illis specifically in-
structed employee Mohamed Bockarie, whom Illis had

5 Charge nurses received orders for treatments and for medications
from physicians, transcribed those orders onto written physician order
sheets, called the pharmacy for prescribed medications, scheduled
appointments and tests for the residents, and sometimes acted as super-
visors on the evening shifts. Management witness confirmed that
charge nurses were “high performers” and “dependable” nurses “you
have confidence in,” and that not just “any nurse” would be made a
charge nurse.
1363
SOMERSET VALLEY REHABILITATION & NURSING CENTER

brought in from another facility to be her spy, to look for
documentation errors committed by Jacques. The Re-
spondent’s discipline and discharge of Jacques followed
in turn.6
The Respondent’s unlawful motivation is also shown
by its departure from its own disciplinary policy. Man-
agement witnesses confirmed that, under that policy,
attendance discipline and performance discipline were
segregated, and that discipline in one track did not affect
discipline in the other. In Jacques’ case, however, the
disciplinary notice that triggered her suspension and dis-
charge cited both Jacques’ attendance notice from the
previous September and the performance infractions de-
scribed above.
Finally, we observe that the Respondent continued to
assign Jacques to work as a charge nurse up until her
discharge. We find it implausible that the Respondent
would continue to confer such responsibility on Jacques
if the Respondent truly believed her performance had
deteriorated to a point warranting her discharge.7
For all of the above reasons, we affirm the judge’s
finding that the Respondent’s discipline and discharge of
Jacques was unlawfully motivated by her union activity,
and that the Respondent has not shown that it would have
taken the same action in the absence of that activity.8
5. Reduction in Hours for Per Diems. The credited
testimony also fully supports the judge’s finding that the
Respondent unlawfully reduced the work hours of five

6 We recognize that Jacques’ discharge on February 10, 2011, came
more than 5 months after the election. We do not find that lapse of
time significant, however. The Respondent’s unlawful discipline of
Jacques commenced within weeks of the election. That it was thereaf-
ter interspersed over the succeeding months reflects, as Director of
Nursing Konjoh acknowledged to Unit Manager Southgate, that
Jacques “‘was being very careful to follow all the rules and regulations;
being very careful so that she wouldn’t get written up.’”
7 The Respondent emphasizes that Jacques had also received a warn-
ing for improper pain assessment in December 2009. That incident
occurred more than a year before Jacques’ discharge, however, and the
Respondent did not even cite it as a basis for terminating her in Febru-
ary 2011. We therefore give it no weight.
8 The Respondent introduced evidence of performance related disci-
pline for 17 other LPNs during the same timeframe. However, the
Respondent’s imposition of oral, first written, second written, and final
warnings appears to have been arbitrary and inconsistent. Moreover, it
is clear from the record that other LPNs who committed errors that
were similar to or worse than those committed by the discriminatees
during the same timeframe were not discharged.
certified nursing assistants (CNAs) whom it employed on
a per diem basis. In particular, Konjoh told Southgate
not to call per diems to work without her permission,
explaining to her that in a second election per diem em-
ployees would need a minimum number of work hours to
be eligible to vote. Whether the Respondent targeted the
named per diem CNAs because it believed that each of
them supported the Union or targeted all per diem CNAs
on the assumption that most or all supported the Union—
both inferences are strongly supported by the record
here—its motivation was unlawful. See, e.g., Evenflow
Transportation, 358 NLRB 695, 697–698 (2012);
Delchamps, Inc., 330 NLRB 1310, 1315 (2000).9
6. Reinstatement. The Respondent contends that even
if the discharges of Napolitano, Wells, Claudio, and
Jacques were unlawful, we should not order their rein-
statement, because their performance errors create a “se-
rious risk” to residents’ health and safety. In certain lim-
ited circumstances, the Board has recognized that its cus-
tomary reinstatement remedy is not appropriate, 10 but
this is not one of those cases. Here, with one excep-
tion,11 the Respondent did not even allege that the dis-
criminatees committed any misconduct other than the

9 Although the Respondent contends that it reduced the CNA dis-
criminatees’ and other CNAs’ work hours for legitimate business rea-
sons, it actually hired additional per diem CNAs during the same peri-
od. The Respondent also emphasizes that it offered two of the discrim-
inatees full-time or regular part-time positions, which they declined.
The judge found, however, that the Respondent knew those two indi-
viduals had other jobs or personal situations that would preclude their
accepting those offers. Finally, although the Respondent claimed that
three of the CNA discriminatees were insufficiently “flexible” in their
hours available for work, the record shows that it employed other per
diems and even licensed practical nurses (who were paid significantly
more than CNAs) in many of the same time slots the discriminatees had
formerly worked.
10 See, e.g., Hawaii Tribune-Herald, 356 NLRB 661 (2011) (dis-
cussing denial of reinstatement remedy (1) when employer, after un-
lawfully discharging employee, has discovered pre-discharge miscon-
duct that would warrant discharge or (2) when employee has engaged
in such serious postdischarge misconduct that employee is “unfit for
further service”), enfd. 677 F.3d 1241 (D.C. Cir. 2012).
11 After Wells’ discharge, Illis found that Wells had forwarded to her
home email address a number of September messages concerning the
events leading up to her termination. Illis testified that this violated
company policy and that, if she had discovered it earlier, Wells would
have been discharged for it. The judge correctly gave this issue no
weight in determining whether Wells’ discharge was unlawful and left
it to compliance. In any case, given the credited record, which indi-
cates that the only emails forwarded by Wells related to her discipline
over scheduling issues and therefore contained no confidential patient
information, it seems highly unlikely that the Respondent would have
discharged Wells for this “misconduct,” even under its confidentiality
policy.
1364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
infractions for which they were disciplined. Having
found virtually all of that discipline unlawful, there is no
basis for denying the discriminatees reinstatement and, of
course, backpay to remedy the Respondent’s unfair labor
practices.12
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, 1621 Route 22 West Operat-
ing Company, LLC d/b/a Somerset Valley Rehabilitation
and Nursing Center, Bound Brook, New Jersey, its offic-
ers, agents, successors, and assigns, shall take the action
set forth in the Order.

Saulo Santiago and Michael Silverstein, Esqs., for the Acting
General Counsel.
Jay W. Kiesewetter and Steve W. Likens, Esqs. (Kiesewetter
Wise Kaplan Prather, PLC), of Memphis, Tennessee, for
the Respondent.
Ellen Dichner, Esq. (Gladstein, Reif & Meginniss, LLP), of
New York, New York, for the Union.
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 (the Union), a

12 Following issuance of the judge’s decision, the Acting General
Counsel obtained an order for the interim reinstatement of Napolitano
and Claudio from the United States District Court for the District of
New Jersey under Sec. 10(j) of the Act. The court declined, however,
to reinstate Jacques and Wells. It is well established that 10(j) rulings
are not binding on the Board because the issues litigated in an injunc-
tion proceeding are different from the issues litigated before the Board.
Coronet Foods, Inc. v. NLRB, 981 F.2d 1284, 1287–1288 (D.C. Cir.
1993); Dorsey Trailers, 327 NLRB 835 fn. 2 (1999), enf. granted in
relevant part 233 F.3d 831 (4th Cir. 2000). Where reinstatement is
sought in a 10(j) proceeding, the court must determine whether that
remedy is appropriate, applying the standard for interim injunctive
relief under the Act, before the Board has made its own determination
on either the merits of the unfair labor practice proceeding or the ap-
propriate remedy. That standard for injunctive relief encompasses
concerns that are simply irrelevant to the Board’s determination of a
proper remedy. Conversely, under Sec. 10(c) of the Act, the Board is
directed to take “such affirmative action . . . . as will effectuate the
policies of [the] Act.” Moreover, where the Board concludes that the
respondent has acted unlawfully, it must determine the proper remedy
“with full weight given to the fact that the respondent’s unlawful con-
duct has been solidly established.” Coronet Foods, supra at 1287. The
Supreme Court has recognized that “[m]aking the workers whole for
losses suffered on account of an unfair labor practice is part of the
vindication of the public policy which the Board enforces.” See NLRB
v. Strong, 393 U.S. 357, 359 (1969) (quoting Phelps Dodge Corp. v.
NLRB, 313 U.S. 177, 197 (1941)). The Board’s reinstatement and
backpay remedy here will make Wells and Jacques whole. Finally, the
District Court’s discretion in awarding relief in a 10(j) proceeding is
constrained by standards established under that provision; in contrast,
Congress’ grant of remedial authority to the Board “is a broad one.” Id.
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 Reha-
bilitation and Nursing Center (the Respondent, the Employer,
or Somerset Valley).1
The complaint, as amended at the hearing, alleges that the
Respondent violated Section 8(a)(1) of the National Labor Re-
lations Act (the Act) by (a) interrogating its employees about
their union membership and (b) soliciting its employees’ com-
plaints and grievances, thereby promising its employees in-
creased benefits and terms and conditions of employment if
they refrained from union organizational activities.
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, Napo-
litano, 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 com-
plaint 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 New-
ark, New Jersey.3
Upon the evidence presented in this proceeding and my ob-
servation of the demeanor of the witnesses and after considera-
tion 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.

1 The docket entries are as follows: Case 22–CA–029599; charge
filed on August 31, 2010; first amended charge filed on September 10.
Case 22–CA–029628; 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 22–CA–029868 filed on March 1, 2011.
2 No evidence was adduced concerning this affirmative defense. Ac-
cordingly, it is dismissed.
3 Following the close of the hearing, certain subpoenaed documents
were received in evidence as CP Exh. 12.
1365
SOMERSET VALLEY REHABILITATION & NURSING CENTER

The Respondent’s answer denied the labor organization sta-
tus of the Union. On August 26, 2011, the Union was certified
by the Board in a representation proceeding involving this facil-
ity. Accordingly, I find that it 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., Care-
One Management, Inc. which also owns and operates other
skilled nursing and rehabilitation centers. This facility, Somer-
set 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.
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 2 years’ later, in December
2008. Doreen Illis replaced Heedles on August 3, 2010.
The nursing department is the most important area in the fa-
cility because it is directly involved with patient care. The facil-
ity 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 the spring of 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, stat-
ed 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: regis-
tered nurses (RNs), licensed practical nurses (LPNs), and certi-
fied nurses’ aides (CNAs). The RNs and LPNs administer med-
icine to the patients during a medication pass (med pass), and
administer treatments to the residents, such as applying band-
ages 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 treat-
ments and medications from physicians and transcribing those
orders onto written order sheets,4 calling the pharmacy for med-
ications, 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 a.m. to 3 p.m. (day
shift), 3 to 11 p.m. (evening shift), and 11 p.m. to 7 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 nurs-
es are scheduled to work at least 24 hours per week; part time
without benefits, where the nurses do not have to work a mini-
mum number of hours; and per diem, where the nurse works on
an “as needed” basis without a regular schedule. Per diem em-
ployees earn about $2 more per hour than the part-time em-
ployees, but do not receive benefits. All nurses receive addi-
tional pay, called a shift premium, for working at night and on
weekends.
2. Employees’ interest in the Union
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 2 days per week and every other
weekend. She was also told by Heedles that her schedule would
be changed to a 5-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 1 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 even-
ing 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.”

4 The information is first written onto the physician order sheet
(POS) and then onto medication administration record (MAR) and
treatment administration record (TAR) sheets, to be discussed below.
1366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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, add-
ing that the employees were “upset” at the changes. Lee re-
sponded 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
coworkers 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 sched-
ule 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 Respond-
ent.
Claudio and Napolitano testified that upon their return to the
facility after that meeting they advised their coworkers 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 Ap-
gar, 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, “[O]k, 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 authoriza-
tion cards at work and she told Manager Apgar, and Southgate,
Neer, and D’Ovidio that she was doing so. She also 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 coworkers about the Union, and dis-
tributed about 20 union cards to them while at work. Some of
the cards were returned to her at work. A Union YouTube vid-
eo was made at her home, on which employees including Clau-
dio, 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 Na-
politano 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 every-
one” about the union meetings, but later amended that testimo-
ny to state that she spoke to six to eight workers. Claudio, Na-
politano, and Jacques were the “most active” supporters of the
Union, speaking to their coworkers 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 1 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 2 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 com-
mented 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 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 essen-
tially of regular part-time and per diem nonprofessional em-
ployees 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 5 challenged ballots. A hearing
on the Employer’s objections to the election was held in Octo-
ber and November 2010. Certain objections were withdrawn by
1367
SOMERSET VALLEY REHABILITATION & NURSING CENTER

the Employer. On January 19, 2011, the hearing officer over-
ruled all of the remaining Employer’s objections. The Employ-
er appealed, and on August 26, 2011, the Board affirmed the
hearing officer’s report and certified the Union. 357 NLRB
736.
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 ap-
parently “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 is-
sue. 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 & Nurs-
ing 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 sur-
veys 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 sur-
vey may take place 2 to 4 months before or after the last sur-
vey.
During the survey, the surveyors examine each aspect of the
facility’s operation, focusing on patient care and nursing prac-
tices. The surveyors make rounds with the staff, speak to pa-
tients, 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 deficien-
cies 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 mone-
tary 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, Care-
One 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 compli-
ance, 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, in-
cluding 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 De-
cember 2008. On August 3, 2010, only 1-1/2 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 resi-
dent ratios did not “match up at times.” Nevertheless, he trans-
ferred Heedles to the Holmdel facility, a center with double the
number of beds because it was a “stable” facility with an expe-
rienced director of nursing and staff, and was a much easier
facility to operate. Hutchens was also concerned that the Em-
ployer did poorly on its last annual survey which was conduct-
ed 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 8 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.
1368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 CNA
and then an LPN, and then was a supervisor in August 2008,
and then became a unit manager in August 2010. As unit man-
ger, 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 3 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 com-
plaints” 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 is-
sues 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 man-
agement, 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 want
to work with a union facility. Claudio attempted to explain to
Hutchens the workers’ reason for seeking representation, say-
ing that they believed that they had nowhere to go; they con-
tacted “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 em-
ployees for a chance to fix things without a union.
Jacques testified that at one meeting, Illis said that she want-
ed 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, “[N]o.”
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 “bet-
ter 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 testi-
fied 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 com-
plained that garbage bags were kept in an office where the staff
did not have access to them when the office was locked. Hutch-
ens 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 1 week
after Illis became employed at the facility, she told Illis that her
job was overwhelming. Illis asked her for a list of her responsi-
bilities, 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, “[W]hy not?”
Illis responded that she did not believe a union was needed,
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SOMERSET VALLEY REHABILITATION & NURSING CENTER

adding that the facility she previously worked in was not a un-
ion shop, and that she did not believe that the Union “would
work for us.”
Tyler stated that 1 week later, a duty that she had since May,
recording the weights of patients, was removed by the dietary
manager. At about the same time 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,
“[W]here 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 respond-
ed that she had only been employed for 9 months while her
coworkers 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.”
Illis denied asking Tyler about her or her coworkers’ interest
in the Union. She testified that Tyler was a “marginal employ-
ee” 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, Direc-
tor 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 1 or 2 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, “[H]ow did I feel people were going to vote?”
Claudio replied that she did not know how her coworkers
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 2 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, “[A]m I going
to get a ‘no’ vote from you?” Jarbo replied that he was not cer-
tain 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

5 “Calling out” means that an employee called the facility to report
that she would not be at work that day.
“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 peti-
tion 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 attend-
ance 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 hous-
ing and tuition reimbursement. Konjoh knew that Lynette Tyler
wanted to return to school and Konjoh mentioned the tuition
plan to her.
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 4 days per week from
the time the petition was filed to the election. Hutchens attend-
ed three or four meetings in August with Fleming and the Re-
spondent’s department heads, at which they “polled the manag-
ers,” 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 up-
coming election.
Hutchens stated that some of the supervisors knew their em-
ployees 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”
1370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
concerning the people they supervised, and “if they don’t know
those employees, they should know them certainly.” Illis testi-
fied 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 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 out-
come,” 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 7 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 em-
ployees submit their notice of resignation 2 weeks in advance
of their last workday.
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 2 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 testi-
fied 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 situa-
tion 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 Acting General Counsel alleges that the Respondent act-
ed unlawfully in accelerating Tyler’s resignation date. Illis
testified that it was her regular practice to have people leave the
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 2-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 resign-
ing, 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 un-
ion activities.

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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SOMERSET VALLEY REHABILITATION & NURSING CENTER

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 pro-
vided that employees must arrive at work on time. The hand-
book 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 Supervi-
sor 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 Au-
gust, she observed that the facility experienced excessive ab-
senteeism, but she apparently did not authorize the issuance of
discipline for such misconduct until after the election. She testi-
fied that she identified absenteeism and lateness as “contribu-
tors” 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 disci-
pline, 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 Napo-
litano’s attendance record alone. Rather, Illis “ran all the tardi-
ness that were in the computer.” Indeed, Konjoh was told by
her supervisors that a common practice had been that employ-
ees 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 facili-
ty, employees had been disciplined for lateness or absenteeism.
With respect to discipline for lateness and absenteeism, Kon-
joh stated that when she began work at the Respondent in Au-
gust 2010, she decided to give all employees a “clean slate,”
otherwise most employees would have been discharged. Ac-
cordingly, she stated that she did not look at employee records
predating August 2010. However, she also stated that she disci-
plined 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.
In addition to the discipline given to Claudio, Jacques, and
Napolitano, the Respondent issued verbal warnings, first writ-
ten warnings and final warnings to other employees for exces-
sive lateness and absenteeism beginning after the election in
September.7

7 Those employees were Beatrice Beauvoir, Lusette Ceus, Soledad
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 su-
pervisor 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 sched-
uled.” 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 employ-
ee handbook contains no reference to calling out on a day be-
fore 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 immedi-
ate 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 writ-
ten 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.”
Again on September 13, 2010, Jacques was given a first
written warning which stated that she “has been late 109 times

Guillaume, Dominique Joseph, Novelete May, Patsy Benimadho, and
Kassandra Burke.
1372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
since January 1, 2010. Within the last 30 days (August 5 to
September 5) she was late 11 times. This is excessive and re-
quires immediate improvement.”
Jacques explained that she was late because she had to ar-
range 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 warn-
ing to Napolitano, which stated that she “has been late 93 times
since January 1, 2010, and 9 times within the last 30 days (Au-
gust 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 a.m. instead of her start time of 6:45 a.m. because she lived
1 hour from the facility. Illis testified that she offered to carpool
with Napolitano but she refused.
As noted above, Claudio, Jacques, and Napolitano were is-
sued 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 evi-
dence.
c. Performance issues
Illis testified that when she arrived at the facility on August
3, 2010, she observed its operations and assessed its perfor-
mance. 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 irregu-
larities in scheduling leading to chaotic staffing patterns in
which employees did not know if they were working or sched-
uled to work. She was also concerned whether the facility
would be ready for its annual survey, expected in December
2010, about 1 year after the last survey which resulted in two
“G” level deficiencies, depicting actual harm to patients.
Illis did not believe that the facility was ready to be sur-
veyed. She noted that no systems were in place to manage clin-
ical information, no audits or reviews of medical records were
being performed, and nursing leadership had to be strength-
ened. 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 Care-
One official Engram.
Director of Nursing Konjoh found similar disorganization in
the Respondent’s operation within the first 3 to 4 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 regis-
tered 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 immedi-
ately. 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 tight-
ening 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 em-
ployees’ 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, 8 months
after the December 2009 survey which, according to the Re-
spondent, resulted in serious deficiencies.
Although there may have been heightened reviews of the
MAR and TAR records from August 2010, even greater scruti-
ny 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 Val-
ley’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 1-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, pa-
tients, families, and physicians, viewed the kitchen operation,
and had communications meetings with the staff. Other Care-
One personnel who were involved in reimbursement issues,
rehabilitation, marketing, human resources, and clinical ser-
vices also visited the facility on a weekly basis during that peri-
od of time.
1373
SOMERSET VALLEY REHABILITATION & NURSING CENTER

It is inconceivable, given the strict oversight of the facility
by CareOne, the frequent visits by Hutchens and other special-
ists in the areas the Respondent cites as being critically defi-
cient, 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 ac-
countability 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, Hutch-
ens testified that he was surprised, when on July 22, the petition
was filed since he believed that the facility had “good perfor-
mance” 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 perfor-
mance and the start of the imposition of discipline and dis-
charges 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, de-
nied that any disciplinary actions were taken against the em-
ployees 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 observ-
ers, 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 physi-
cian 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 ad-
mission order prepares a physician’s order sheet (POS), and
transcribes that information onto the MAR, writing the medica-
tions 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 admin-
ister 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 ini-
tialed, 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 respon-
sible 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 nurses’ 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 medica-
tion.
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 election, and December 2010. Her
assistant, Jessica Arroyo, visited the facility each day in August
during the union campaign, and was present for “clinical over-
sight” in support of the new director of nursing. Her job con-
sisted 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 (Kon-
joh) 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 find-
ings. Konjoh testified that discipline, and not just “fixing the
problem” was the preferred course of conduct because the em-
ployee 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 Acting 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 na-
ture of a particular treatment had to be determined. However,
Jacques stated that after the election, she saw Illis and Konjoh
behind the nurses’ 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 medi-
cations as set forth on the MAR or the TAR books. In fact,
1374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 nurs-
ing, 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 infor-
mation 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 nurses’ station review-
ing 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 as-
signed, 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.
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 care-
ful so that she wouldn’t get written up”; and accordingly, Kon-
joh 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 not 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 facili-
ty, 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 facil-
ity from Holmdel where he worked with her for 1 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 elabo-
rate.
On September 17, 2010, Napolitano was administering med-
ications to her patients. Patsy, a recreation department employ-
ee, 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 re-
ceive. 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 cur-
rent 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 it on August 25 and 30. Other nurses
also improperly gave the patient the zinc pill after it was dis-
continued.
Jacques testified that if the medication is supposed to be giv-
en on only a certain day, the nurse writing the order in the
MAR is responsible to “box out” or “box off” the date by draw-
ing a box or line around the date to highlight it. Jacques also
stated that if a medication is discontinued, any nurse can re-
move 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 re-
ceives 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
1375
SOMERSET VALLEY REHABILITATION & NURSING CENTER

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 Kon-
joh’s actions. After Konjoh became aware that Napolitano was
administering medication improperly she took no steps to re-
move 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 testi-
mony, 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 er-
rors: she documented an incorrect pulse oxygen level by noting
that the level was 0 percent, 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 sur-
vey 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. Napo-
litano protested that in the past year, she did the pain assess-
ment 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. How-
ever, all the nurses agreed with Napolitano, telling Konjoh that
pain assessment should be done at the start of the shift.
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 es-
sential nursing duties to provide proper patient care, includ-
ing, but not necessarily limited to, your failure to properly
document the oxygen saturation level for a resident, your fail-
ure to properly administer medication to a resident, and your
failure to properly verify and administer the correct medica-
tion 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 pa-
tient care.

The letter was supplemented by a note signed by Illis, Kon-
joh, and Napolitano, in which Napolitano agreed to the truth of
the following facts: (a) that she gave a patient the wrong medi-
cation on at least four 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 percent 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 en-
sure 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 from 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
nonordered 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 al-
leged misconduct, all three stated that they did not administer
the medication but had erroneously signed that they had. Alt-
hough 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 dis-
charge.
iii. Sheena Claudio
Claudio was employed for the Respondent from January
2010 to October 2010 as an LPN. On September 20, she re-
ceived a written warning for administering aspirin to a patient
on 2 consecutive days whereas the order called for it to be ad-
ministered 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 2 consecutive days and was issued similar
discipline.
1376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On October 1, Claudio received a written notice and a 2-day
suspension for failing to document patient status on three sepa-
rate 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 admis-
sion. Other errors that Konjoh noted were that Claudio provid-
ed treatment to a patient without an order, and did not write an
order for a skin tear treatment, although the treatment was giv-
en. Claudio responded that she had completed the admission
note.
It must be noted, only 4 days before, employee Sandy
Mootosamy received only a first written warning on September
27, 2010, for virtually the same misconduct: she failed to doc-
ument a status postfall for 2 days, failed to do a postadmission
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 Health Insurance Porta-
bility and Accountability Act (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 p.m. that
evening, intending to initial in the TAR book all the treatments
she administered. She was admitted by Supervisor Janet Mathi-
as. 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, “[O]kay,” 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 work-
ing 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 profan-
ity. Claudio testified that prior to the election she occasionally
completed the entries in the TAR book the day after the treat-
ments 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 R. Exh. 92.
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 investi-
gated the matter, checked some of the dressings that Claudio
said she applied and found no initials on those dressings. Nev-
ertheless, Claudio’s termination letter did not state that she was
being terminated for failing to perform the treatments. It men-
tioned 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 dis-
cipline, 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 com-
plete 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 as-
signed, 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 fol-
lowing 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 admin-
istered or the treatment performed, but as noted above, also
stated that the nurse may review those records at the end of her
1377
SOMERSET VALLEY REHABILITATION & NURSING CENTER

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 medica-
tion. 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 simp-
ly 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 ini-
tialing 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 medica-
tions and had not given a treatment to patients. Her memory
was not precise concerning further details of that incident con-
cerning Bockarie.
Konjoh testified that Dande charted that she gave vitamin B
to a patient when she had not. The medical error was investi-
gated 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 postfall and postadmission 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, Il-
lis 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 signa-
tures, interventions, the CNA statement, and the supervisor’s
review were missing. Jacques testified that the CNA was sup-
posed 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 com-
pleted 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 “un-
fair” 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 em-
ployees 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 clini-
cal 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 inci-
dent reports. Jacques was disciplined, and Beck received disci-
pline 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.”
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, “[O]h 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 com-
plete 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 work-
ing, but she conceded that she could have called Illis or Konjoh
to report that problem.
Jacques was suspended by Southgate while the incident con-
cerning the administration of the wrong aspirin was being in-
vestigated. Jacques said there was nothing to investigate, admit-
ting that she made the error because she was very busy admit-
ting 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 pa-
tient’s day two of a status postfall. If a patient falls, the nurse is
supposed to chart the patient, meaning check and document the
status of the patient for 3 consecutive days. Jacques said that
she would not dispute that error but was very busy and distract-
ed.
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
1378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
have been enteric coated ASA as ordered by the MD. You also
failed to . . . the medication to the MAR. Additionally, on Feb-
ruary 2, 2011, you were the primary nurse and failed to com-
plete the required documentation for your shift. Specifically,
. . . JG was not documented on. Additionally, on the same resi-
dent there was no post fall note as required.” Jacques comment-
ed that she was extremely busy that evening with five admis-
sions with confused patients. She agreed that she may have
overlooked documenting a postfall 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 admin-
istering 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 en-
teric 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 mainte-
nance 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 de-
partment 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.
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, per-
formed on the 11 p.m. to 7 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 er-
rors.
Engram testified that such checks include the night nurse
looking at the chart for a new admission, checking the medica-
tion 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 any-
one was disciplined for not catching Jacques’ error. The plan of
correction imposed by the surveyors in the spring of 2010 fol-
lowing 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 com-
mitting similar errors. For example, nurse Doreen Dande was
issued only a written warning on September 17, 2010, for fail-
ing to properly administer medication. She administered regular
aspirin for 2 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 dispar-
ate treatment accorded to Jacques. Thus, following the Septem-
ber 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 no-
tice for failing to administer medication to a patient. On Febru-
ary 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 tran-
scribe 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 writ-
ten 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 simi-
lar to that committed by Jacques, did not result in Moore being
discharged for them.
On September 10, 2010, Patty Beck received a written warn-
ing 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 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, notwithstand-
ing that the plan of correction imposed by the surveyors in the
spring of 2010 following the 2009 survey included a require-
ment 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 medi-
cation 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 disci-
pline. If the medication or treatment was given, and 1 day
elapsed without the nurse signing the appropriate box, the nurse
could sign a “late entry” that day or the next day, if the medica-
tion or treatment was actually given.
Southgate testified that following the election, Konjoh spoke
to her regarding disciplining employees. She said that “they
1379
SOMERSET VALLEY REHABILITATION & NURSING CENTER

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 be-
gan work on the day shift, after being solicited by Illis to trans-
fer to Somerset Valley, he received a text message from Illis
which said, “[T]hank you for being in my life.” On his first day
at work, Illis asked him to interview employees, “look for er-
rors” 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 No-
vember. 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
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 De-
cember 2010 and thereafter, Bockarie made copies of the doc-
uments 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 de-
nied asking him to do that.
v. Valerie Wells
Valerie Wells worked as a CNA for 10 to 12 years, during
which, for about 7 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 work-
ing 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 cam-
paign. Those conversations took place in the office she shared
with D’Ovidio. She appeared in the union flyer seen by Hutch-
ens 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, Somer-
set Valley implemented the system. The program is a timeclock
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 timeclock which employees
use when they enter and leave work. Others who had access to
this system were the facility administrator, the director of nurs-
ing, 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 work force 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, 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.
1380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wells generated a monthly master schedule and daily as-
signment 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 nurses’ 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 administra-
tor, 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 pa-
tients she tried to have at least five or six CNAs on duty. If
there were fewer patients, she would cancel the shift of an em-
ployee. 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 p.m., she would at-
tempt 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 McCar-
thy.
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 eve-
ry 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 disci-
pline 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 per-
formance 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 Au-
gust 2010, she learned that the problems with scheduling were
caused by Wells using an Excel spreadsheet to prepare a manu-
ally created daily attendance and master schedule. Konjoh testi-
fied 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 meet-
ings 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 manu-
ally adjusted for the hours worked by an employee who did not
work a full 8-hour shift.
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’ per-
formance did not improve and the schedules remained “chaot-
ic.”
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 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 sched-
ule, 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 discipli-
nary 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 dis-
crepancies concerned events that occurred in the weekend be-
fore Wells returned from vacation. Significantly, Illis testified
that reconciliations for discrepancies that occur on the weekend
should be inputted by Monday at 10 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” Sep-
tember 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 specif-
ic 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, “[M[aybe by Friday,” September 10. Illis testi-
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SOMERSET VALLEY REHABILITATION & NURSING CENTER

fied 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 com-
plained 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 mis-
takes.” 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 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 em-
ployee’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 cor-
rected 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 stat-
ed that Wells acted like she did not care and was “very noncha-
lant” that they had just spent over 2 hours doing the work that
she asked Wells to do more than 1 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 writ-
ten 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 try-
ing 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 hear-
ing, 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 a.m. to 3
p.m. shift. Wells protested that Guerline should not have been
listed on that shift, but should have been listed for the 3 to 11
p.m., the shift she always worked. Konjoh answered that
Guerline was in Smartlinx for the 7 a.m. to 3 p.m. shift and
could not punch in. Wells stated that she properly placed
Guerline on the daily attendance sheet for the correct 3 to 11
p.m. shift, and in looking at the Smartlinx program on her com-
puter, found that Illis had deleted Guerline’s 3 to 11 p.m. shift
and changed it to the 7 a.m. to 3 p.m. shift. Konjoh said that she
would speak to Illis about the matter, but the discipline re-
mained.
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 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 emails that
Wells sent to her home email address from September 16 to 21,
2010. The emails consisted of copies of staff schedules, instruc-
tions from Heedles in July 2010, and instructions from Illis and
Konjoh in September 2010. Illis stated that Wells had no per-
mission to send those emails, 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 ter-
minate 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 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

9 Inasmuch as this issue was not fully litigated, it will be left to de-
cided in a compliance proceeding.
1382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 facili-
ty’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 longstanding practice
until after the election.
The election agreement executed on August 9, 2010, provid-
ed that in order to be eligible to vote, per diem employees must
have worked an average of at least 4 hours per week during the
13 weeks preceding August 7, 2010 eligibility date. On Sep-
tember 9, the Employer filed objections to the election, arguing
that a new election be held.
Southgate stated that 1 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 em-
ployee would have to work a certain number of hours in order
to be eligible to vote in the next election. Therefore, said Kon-
joh, 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 Acting General Counsel argues that Konjoh’s tying the
issue of hiring per diem workers to another election may pro-
vide 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 testi-
fied 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 replace-
ment 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 re-
moved 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 flexi-
bility 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 even-
ing 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 to 8 p.m. in-
stead of the regular 3 to 11 p.m. shift because of her need to be
home with her daughter. That request was accommodated and
another nurse worked the remaining 3 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 cafe-
teria. 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 Employ-
er’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 1 weekend per month. Aguilar agreed
and said that she would let Konjoh know which weekend she
was available. In a note to 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 activi-
ties 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
1383
SOMERSET VALLEY REHABILITATION & NURSING CENTER

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 re-
jected 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 timecard
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 2 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 3-1/2 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 testi-
fied 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 Kon-
joh 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
Joseph began work in 2007 as a CNA per diem worker who
worked every other weekend. She was hired to work on the 3 to
11 p.m. shift, but actually worked 4 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 mis-
takenly 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 1 week after the election, she was
supposed to report for work on September 11, 2010. Her car

10 Her pretrial affidavit which states that she signed the card at a
coworker’s house does not fatally harm her credibility.
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 timeclock
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 Respond-
ent. Joseph denied telling anyone that she was available for
different hours since she already had a full-time job elsewhere.
Konjoh denied receiving any voice mails 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 employ-
er.
By memo to Staff Coordinator Wells and Konjoh dated Sep-
tember 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 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.
1384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Finally, Konjoh told Onyeike to punch out, which she did, and
left. Konjoh followed her, saying, “[Y]ou 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 uni-
form 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 em-
ployee to wear a union scrub top in the facility, and that em-
ployees wearing such a garment should be sent home. Illis de-
nied 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
every 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 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, 28, and 31, and August 1 while being given
orientation training. She also worked a regular shift on August
7, 8, and 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 confronta-
tion with Konjoh. Illis said, yes, “[Y]ou 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, “[Y]es, 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.
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 Octo-
ber 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 3 months. The coordina-
tor said, “[O]h, 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 week-
ends 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 man-
agers, Fleming noted that Stubbs worked for a unionized em-
ployer.
Staff coordinator Wells stated that Stubbs was on the sched-
ule 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 Sep-
tember 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 em-
ployee already accepted the assignment. Stubbs told her that
she was available to work at night depending on her availabil-
ity. Konjoh said that she was not on the schedule for the follow-
ing 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.
Illis testified that Stubbs was offered a change in position
from per diem to part time in early September, and she refused
1385
SOMERSET VALLEY REHABILITATION & NURSING CENTER

the offer. She wanted to remain as a per diem worker and was
removed from 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 work-
ers.
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 2 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 from 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 any-
thing 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 oth-
ers.
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 facili-
ty during the Union’s successful campaign.
While it is true that certain of the dismissed per diem work-
ers 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 Re-
spondent. Thus, there was testimony that Pat Fleming, the Re-
spondent’s labor relations adviser, announced at a management
meeting that he knew that Stubbs worked at another job.
Analysis and Discussion
I. CREDIBILITY
As set forth in this decision, I have credited the testimony of
the employees where it conflicts with the testimony of the Re-
spondent’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 employ-
ee 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” in-
cluding 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 be-
lieve that the Respondent would not have made Illis aware that
a union campaign was ongoing for nearly 2 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 Clau-
dio’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.

11 In assessing Hutchens’ credibility I have not taken into considera-
tion the fact that certain subpoenaed documents were not available at
the time of his examination. After the documents were received by the
Acting General Counsel and the Union, Hutchens could have been
recalled to testify concerning them.
1386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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, sym-
pathies, 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 coworkers 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,
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 certain-
ly.” 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, “[H]ow
did I feel people were going to vote?” When Claudio replied
that she did not know how her coworkers 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 coworkers, 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 interroga-
tion.
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 “informa-
tive.” Illis then asked her, “[W]here 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 de-
cision. 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, “[C]an you convince
them to vote no?” Tyler responded that she had only been em-
ployed for 9 months while her coworkers 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 back-
ground and timing of the interrogation, the nature of the infor-
mation 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 ques-
tioners included Illis and Konjoh, the two highest ranking offi-
cials 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 interrogat-
ed 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 in-
creased benefits and improved terms and conditions of em-
ployment 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
2 months earlier be withdrawn, and the prior schedule remain in
effect.
The Respondent’s officials told the workers at various meet-
ings that they were not aware of the extent of employee unhap-
piness 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 af-
ter 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
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SOMERSET VALLEY REHABILITATION & NURSING CENTER

duties and told her that although she could not make promises,
she would see what “changes she could adjust.” About 1 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 main-
tain 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 prac-
tice 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 promis-
ing 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 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 reme-
dy 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 ani-
mus was a substantial or motivating factor in the actions taken.
He must show union activity by the employees involved, em-
ployer 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 affirm-
ative 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 legit-
imate reason for its action but must persuade by a preponder-
ance of the evidence that the same action would have taken
even in the absence of the protected activity.” L.B.&B. Associ-
ates, 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 bur-
den 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 employ-
ee’s concerted activities. Under Wright Line, an employer can-
not 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 disci-
plining 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 prof-
fered reasons for the discipline and other actions of the em-
ployer, disparate treatment of certain employees compared to
other employees with similar work records or offenses, devia-
tions 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
414, 423–424 (2010), the Board found that the respondent un-
lawfully more strictly enforced its medication 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] be-
cause of such an error is also not at issue. The issue here con-
cerns 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 im-
plement 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 en-
forcement 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
1388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
more strictly enforces a work rule in response to protected ac-
tivity.

The question that must be answered is not whether the em-
ployees involved committed errors in their work, or even if they
were serious or terminable offenses, but whether the Respond-
ent 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 em-
ployees for errors because of the Union being selected as the
employees’ representative in the September 2 election. Imme-
diately thereafter, the Respondent began disciplining and dis-
charging 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 un-
ion advocates at Somerset Valley. Claudio spoke to other em-
ployees 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 be-
came 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 elec-
tion. Jacques and Napolitano served as the Union’s election
observers.
As set forth above, Supervisor Southgate recalled labor rela-
tions 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 un-
ion activities were well known to the Respondent.
The Respondent’s animus toward the Union is beyond ques-
tion. After the petition was filed, it waged an aggressive cam-
paign designed to encourage employees to vote against union
representation. Its officials met with employees both at meet-
ings 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 Re-
spondent 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 Respond-
ent’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 ab-
senteeism among employees when she began work on August
3, no action was taken against anyone for 6 weeks, not until
shortly after the election. A finding may properly be made that,
in doing so, the Respondent sought to retaliate against employ-
ees for the Union’s election victory. This finding is supported
by Illis’ concession that she told the workers that she was “dis-
appointed” in the election results, and may have said that she
felt betrayed at those results. Her disappointment and betrayal
manifested itself in her postelection 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 disci-
plined 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 histo-
ry 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.
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 Au-
gust 2010, she nevertheless, she disciplined employees for late-
ness 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 care-
ful 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 con-

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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SOMERSET VALLEY REHABILITATION & NURSING CENTER

sistent 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 Acting 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 dis-
covered 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 employ-
ees 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 warn-
ing.
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 re-
ordering 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.
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 protect-
ed 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 particu-
lar day should have been reviewed by the 11 p.m. to 7 a.m.
nurse, that procedure, mandated by the Plan of Correction fol-
lowing 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 review-
ing 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 em-
ployer 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 ex-
amination of the MAR and TAR books were due to the upcom-
ing, expected state survey. The last survey was performed in
December 2009, and even assuming that a new survey would
occur within a 4-month window as early as September 2010,
there was no showing that errors in past presurvey audits re-
sulted in discipline to any employees.
2. Sheena Claudio
Claudio, a leader in the Union’s campaign, was employed by
the Respondent for 9 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 2 consecutive days whereas the order required it
to be administered every other day. As set forth above, the Re-
spondent had a practice whereby the night shift was supposed
to have reviewed the charts each night to ensure that the medi-
cations 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 disci-
plined 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 2-day suspension on
October 1 for failing to document patient status for three pa-
tients, as set forth above, failing to write an admission note, and
failing to document a patient for 5 days after his admission.
However, employee Mootosamy received only a first written
warning for failing to document a status postfall for 2 days and
failing to do a postadmission documentation on another patient,
and failing to document vital signs on her notes. In this case,
the misconduct of both Claudio and Mootosamy was substan-
tially similar to provide a comparison of the discipline given
both employees. Clearly, the discipline issued to Claudio, par-
ticularly a 2-day suspension was far in excess of that given to
Mootosamy for virtually identical misconduct.
In addition, the evidence supports a finding that documenta-
tion issues were a longstanding concern of the Respondent. It
dealt with them, prior to the election, primarily with in-service
training sessions.
Claudio was terminated on October 8, 5 weeks after the elec-
tion, for failing to document her TAR treatments. As set forth
1390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 dis-
charge. Such an effort by Konjoh tends to undermine the Re-
spondent’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. Fur-
ther, 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 disci-
pline 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.
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 2 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 discon-
tinued. 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 Napoli-
tano to again administer the medication after being advised that
she was doing so.
Further, as set forth above, three other nurses also adminis-
tered the same discontinued medication and were not disci-
plined. Although they initialed the box in the MAR sheet indi-
cating 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 er-
rors—documenting an incorrect pulse oxygen level by noting
that the level was 0-percent 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 Napoli-
tano 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 coworkers 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 5 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 oc-
curred only 5 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 ex-
pected to make those reconciliations, and disciplined for not
making them.
Wells received a first and second written warning on Sep-
tember 15, a third written warning on September 20 and was
discharged on September 21. It is important to note that alt-
hough 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 er-
rors 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,
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SOMERSET VALLEY REHABILITATION & NURSING CENTER

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 Re-
spondent would have discharged Wells in the absence of her
union activities. Wells performed her job without discipline for
5 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 elec-
tion that Illis brought Wells’ errors to her attention and issued
discipline. These factors lead me to conclude that the Respond-
ent 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 termi-
nated Tyler on September 9, 2010.
As set forth above, Tyler resigned her position 1 week after
the election, giving 2 weeks notice that she would be leaving
her job on September 22. Illis told her to leave immediately and
paid Tyler for the 2-week notice period. The Acting 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 2 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 Ty-
ler as quickly as possible and accelerated her resignation or
discharged her when she gave 2 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 at-
tempted 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 atti-
tude. 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 Respond-
ent’s accelerated resignation of Tyler was undertaken to re-
move her from the Respondent’s premises because of her union
activities. See Gelita USA Inc., 352 NLRB 406, 415 (2008),
where the employer, in advance of an election and after unlaw-
fully 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 find-
ing that the Respondent would have followed the same proce-
dure prior to Tyler’s resignation, or with nonsupervisors.
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 or-
der to be eligible to vote. The difference in what actually hap-
pened after the election, however, is that those per diem em-
ployees who were eligible to vote were prevented from work-
ing, 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 2 or 3 weeks after the election, per diem work-
ers 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.
1392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In addition, the Respondent’s reasons for terminating its per
diem employees is undermined by Bockarie’s credited testimo-
ny 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 em-
ployee at the same time that it was removing its own experi-
enced 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 di-
em employees would not have been reduced in the absence of
their union activities. Wright Line, above.
CONCLUSIONS OF LAW
1. By interrogating its employees about their union member-
ship, 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 Napo-
litano on about September 13, 2010, and by terminating Napoli-
tano on about September 17, 2010, the Respondent violated
Section 8(a)(3) and (1) 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 sus-
pending Jacques on about February 9, 2011, and by discharging
Jacques on about February 10, 2011, the Respondent violated
Section 8(a)(3) and (1) 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 issu-
ing 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)(3) and (1) 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 termi-
nating Wells on about September 9, 2010, the Respondent vio-
lated Section 8(a)(3) and (1) 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 un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, 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 rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as comput-
ed in New Horizons, 283 NLRB 1173 (1987).
The Respondent having discriminatorily discharged employ-
ees, 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 F. W. Woolworth Co., above,
with interest at the rate prescribed in New Horizons, above,
compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010). 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 warn-
ings 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 member-
ship, 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.

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
1393
SOMERSET VALLEY REHABILITATION & NURSING CENTER

(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 effec-
tuate 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 Val-
arie Wells full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or privileges
previously enjoyed.
(b) Make employees Sheena Claudio, Jillian Jacques, Shan-
non Napolitano, and Valarie Wells, Lynette Tyler, Daysi Agui-
lar, 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, re-
move 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 addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, 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 con-
spicuous 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 al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since August 1, 2010.

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(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.
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT 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 con-
ditions 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 organiza-
tion.
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, sympa-
thies, and/or activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL within 14 days from the date of 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, with-
out 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 Rodri-
guez, and Annie Stubbs whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
them.
1394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful employ-
ment 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 CO., LLC D/B/A
SOMERSET VALLEY REHABILITATION AND NURSING
CENTER