St. John's Community Services

National Labor Relations Board - Administrative Judge Opinions

May 4, 2006

22-CA-026934 (N.L.R.B. May. 4, 2006)

JD(NY)-19-06
Hamilton, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE

ST. JOHN’S COMMUNITY SERVICES – NEW JERSEY

and Case No. 22-CA-26934

COMMUNICATIONS WORKERS OF AMERICA,
LOCAL 1037, AFL-CIO

Brian A. Caufield, Esq., Newark, NJ, for the General Counsel.
Julius M. Steiner and Thomas Hearn, Esqs. (Obermayer Rebmann
Maxwell & Hippel, LLP), Philadelphia, PA, for the Respondent.
William G. Schimmel, Esq. (Weissman & Mintz, Esqs.), Somerset, NJ,
for the Union.

DECISION

Statement of the Case

STEVEN DAVIS, Administrative Law Judge. Based on a charge and a first amended
charge filed by Communications Workers of America, Local 1037, AFL-CIO (Union) on June 3,
2005, and November 30, 2005, respectively, a complaint was issued against St. John’s
Community Services – New Jersey (Respondent) on December 8, 2005. On February 28 and
March 1, 2006, a hearing was held before me in Newark, New Jersey.

The complaint alleges, essentially, that the Respondent more strictly enforced its
medication administration policy upon its employees, including employee Nia Gibson, and
discharged her in violation of Section 8(a)(1) and (3) of the Act because of its employees’ union
activities. The complaint further alleges that the Respondent unilaterally changed the
enforcement of its medication administration policy by more strictly enforcing its provisions
without affording the Union an opportunity to bargain with it about such conduct, in violation of
Section 8(a)(1) and (5) of the Act.

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by all parties, I make the following

Findings of Fact

I. Jurisdiction

The Respondent, a corporation having its office and place of business in Hamilton, New
Jersey, has been engaged in the provision of social services to residents at group homes
located throughout New Jersey, including its group home in Brick, New Jersey. During the
preceding 12 months, the Respondent derived gross revenues from its operations in excess of
$250,000, and purchased and received goods and services valued in excess of $50,000 directly
from suppliers located outside New Jersey. The Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and
has been a health care institution within the meaning of Section 2(14) of the Act. The
Respondent also admits, and I find that the Union is a labor organization within the meaning of

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Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

A. The Facts

1. Background

The Respondent, a non-profit agency established in 1868, has its headquarters in
Washington, D.C., and facilities in four states including New Jersey. Its mission includes the
provision of support and programs to individuals with developmental and other disabilities,
including the operation of residential group homes. The Respondent’s New Jersey headquarters
is in Hamilton, where it oversees the operations of its 10 New Jersey facilities, including one in
Brick Township, the group home at issue here.

At the time of the incidents at issue, the Respondent’s hierarchy consisted of its
president Thomas Wiles, its chief operating officer Genni Sasnett, and director of human
services Cheryl Wesley, all three of whom were located in Washington, D.C. The New Jersey
acting state director was William Loyd, Jr., the program director was Michael Peniston, and the
program coordinator was Glenda (Vickie) Atkins. The residential team leader supervised the
staff who worked in the group homes, whose titles were support specialists, acting support
specialists, and checkers.

In September, 2004, the Union began an organizing drive among the support specialists
employed at the Respondent’s 10 New Jersey facilities. The campaign became active in
November and December, 2004. On December 13, 2004, the Union filed a petition for an
election, and on March 29, 2005, it was certified as the exclusive collective-bargaining
representative of the Respondent’s employees in the following appropriate bargaining unit:

All full-time and regular part-time support specialists and
substitute support specialists employed by the Employer at its 10
New Jersey locations located in Lawrenceville, Roselle, South
Plainfield, Orange, Farmingdale, Long Branch, Rahway, Cedar
Grove, Brick Township and Trenton, New Jersey, but excluding all
office clerical employees, managerial employees, professional
employees, guards and supervisors (including team leaders) as
defined in the Act.

2. Nia Gibson

The occupants at the Brick, New Jersey group home at issue here were four
“consumers,” the term applied to the individuals whom the Respondent serves, and one staff
person, Nia Gibson. She was responsible for their care and for the administration of their
medication. It is the Respondent’s policy that it “shall properly manage the acquisition,
administration and storage of all medications, prescription and over the counter, for each
consumer.”

Gibson began work as a substitute support specialist in July, 2003, working weekends
and evenings at group homes. Four months later, in November, 2003, she began work full time
as an administrative assistant in the human resources department at the Respondent’s
Hamilton, New Jersey office. She held both positions at the time of her discharge in April, 2005,
and had worked at the Brick facility regularly prior to her termination.

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Gibson testified that when she first heard that the Union was organizing the employees,
she told her then supervisor, program director John H. Williams and her supervisor, office
manager Amirah Johnson that the employees were “starting a union,” and that she was
interested in joining. She quoted Williams as saying “no, Nia, that’s not good. Don’t say that.” In
addition, she told Johnson that they would have to “get the numbers” so they could get the
employees together who want to join the Union. Johnson told her that if the employees want to
join a union, “just let them do it.” Both Williams and Johnson told Gibson that she could not be
involved because she was employed in the human resources department.

Gibson testified that she had no involvement with the Union, and conceded that no
supervisor or management official questioned her concerning her Union interest or threatened
her for supporting the Union.

Williams and Johnson both testified, denying that Gibson told them of her sympathies
toward the Union. Johnson conceded, however, that Gibson asked her whether she could
participate in a Union if one was chosen by the employees. Johnson replied that she did not
believe that Gibson could be included in the bargaining unit because her title of office
administrative assistant was excluded from the unit. As set forth above, the unit excludes office
clerical employees, and the parties agreed that Gibson was appropriately excluded from the
voting unit on that basis. Acting state director Loyd testified that he was unaware of Gibson’s
sympathies toward the Union, but recalled a conversation in which she told him that Union
pickets were outside the office and asked whether she should call the police.

There is no allegation, and I do not find, that the above evidence supports a finding that
Gibson engaged in protected, concerted activities. This case is solely based upon an allegation
that the Respondent more strictly enforced its medication administration policy upon its
employees, including Gibson, and discharged her, because of its employees’ union activities
including their joining and voting for the Union.

In the evening of April 3, 2005, Gibson worked as the substitute support specialist at the
Brick, New Jersey group home. She was required to administer medication to all four of the
consumers, but administered medication to only three.

At hearing, Gibson stated that she forgot to administer Haldol to one of the consumers,
and did not do so because she was distracted by persuading one of the consumers to leave the
bathroom so that another consumer could use it. Convincing the consumer to leave the
bathroom during his regular and extensive use of it was an ongoing problem. She also stated
that no checker was employed at the facility, whose job it is to verify that the medications were
given and that proper documentation made that the medication was administered. Gibson also
testified that the Respondent was supposed to have a consumer to staff ratio of 3 to 1, but
conceded that she did not attempt to obtain additional staff or tell anyone that she was short-
staffed because that condition was not unusual.

The following day, April 4, the relief support specialist checked the medication
administration log and discovered that Gibson had not given medication to one consumer and
had not documented that she had. Program director Michael Peniston immediately met with her,
and she explained that she was preoccupied attempting to have one consumer leave the
bathroom, and she “just forgot.” She asked Peniston what would happen. He replied that she
would probably be suspended from working as a support specialist and be retrained in
medication administration, but would not be terminated since her error was not related to her full
time work as an administrative assistant.

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Peniston testified that prior to her discharge, Gibson enumerated certain extenuating
circumstances which, in his opinion, should have prevented her termination. She said that she
had no checker, and she was the only staff person among four consumers at the home, which
was “a little chaotic.” She was preoccupied with persuading one consumer to leave the
bathroom, and the consumers had just returned from visits and were taking showers. It was
Peniston’s belief that these constituted valid extenuating circumstances because Gibson’s
complete concentration was perhaps not attuned to the administration of the medication.

Gibson stated that the Respondent is supposed to have no more than three consumers
to each staff member, and that the four to one ratio in effect on April 3 violated state policy. She
also noted that if a checker was present he or she may have caught her error.

Regarding the absence of a second staff member or a checker, Loyd testified that the
State Division of Developmental Disabilities has a staff to consumer ratio which must be
followed on a house-by-house basis. He noted that a 1:3 ratio is typical, but not a requirement.
In his opinion, based on his knowledge of the functional abilities of the consumers at the Brick
facility, one staff member and four consumers was “manageable.” In contrast, Peniston testified
that the state requires a 3:1 ratio with which the Respondent was not in compliance on the
evening of Gibson’s error. Peniston also stated that ordinarily there are two staff members in
attendance at the group homes – one to administer the medications, and the other who acts as
a checker.

On April 4, Peniston completed an “Initial Incident Report Form” which noted the incident
status as “pending,” and as actions to be taken, “training” and “staff disciplinary action.”
Peniston stated that the incident was pending because he had to consult with Loyd, the
Respondent’s acting state director. Based on his initial investigation, including his speaking to
the consumer’s physician, Peniston recommended that Gibson be retrained, which involves
classroom training regarding medication administration, a test, and several observed “pours” of
medications. Following successful retraining, the employee is permitted to administer
medications. Peniston did not set forth any extenuating circumstances in this report. This was
Gibson’s first discipline in her nearly two years of work for the Respondent.

Peniston testified that he recommended to Loyd that Gibson be retrained, and that Loyd
told him that ordinarily Gibson would be suspended, but since she was also employed in the
office, she could continue to work in that position. Peniston and Loyd both testified that Loyd
suggested that Gibson’s work as a support specialist be terminated, but that she continue to
work in the office. Peniston responded that he believed that that was a fair resolution.

Peniston did not tell Loyd of any extenuating circumstances mentioned by Gibson
because he believed that Loyd’s recommendation that she work solely in the office would be the
final disposition of the matter. Loyd’s testimony was quite different. He stated that he specifically
asked Peniston if there were “extenuating circumstances” that should be considered, and
Peniston answered that there were none – that it was a typical weekend. Loyd stated that he
also spoke to Gibson between the time of her error and her termination, and she did not tell him
of any extenuating circumstance which would persuade the Respondent not to terminate her.
When Loyd asked her at that time what happened, she simply told him that she forgot to
administer the medication and apologized. Following her error, Gibson continued to work in the
office as an administrative assistant until her termination one week later.

A letter of termination dated April 11, signed by Loyd with a copy to human resources
director Wesley, was issued to Gibson. It stated that she was discharged because she failed to
administer a consumer’s evening psychotropic medication in violation of Policy No. 140 X.B.1.b

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which states:

Medication Errors – Failures of staff performance in medication
administration will have the following consequences:
Administration Errors – For errors related to medication
administration:
Failing to give medication to consumer at all without extenuating
circumstances (e.g. staff simply fails to give medication without
emergency circumstances occurring which prevented the staff
from being able to do so) – termination.

On April 15, Peniston prepared a final “Incident Follow-Up Report.” He testified that
although he disagreed with the decision to discharge her because he was aware of extenuating
circumstances, he completed the Report because it simply reported the action the Respondent
took. Peniston completed the “Actions to be Taken” part of the report, noting that the medication
administration error was in violation of Policy X.B.1.b. – errors related to medication
administration without extenuating circumstances.

3. The Change in the Disciplinary Procedure

Peniston testified that up to the point that he met with Loyd the steps ordinarily taken in a
disciplinary matter were followed: He (a) completed an Initial Incident Report Form (b)
conducted a follow-up investigation in which he interviewed Gibson and the employee reporting
the error (c) visited the home and examined the medication log (d) spoke to the consumer’s
physician and (e) met with acting state director Loyd.

After these steps were taken, typically, both Peniston and Loyd would then call the
Respondent’s Washington headquarters and speak with human resources director Wesley or
chief operating officer Sasnett or both. In that call, the participants would discuss the findings of
the investigation, any extenuating circumstances, and the action to be taken against the
employee. If it was decided that the employee would be terminated, Peniston, as program
director, prepared the termination letter. He would then give the letter to the state director and
the human resources director to review for accuracy, and then the employee would meet with
the program director and another manager, usually the state director or program coordinator, at
a termination interview.

However, unlike the usual procedure, following his meeting with Loyd, Peniston was no
longer involved in any actions taken concerning Gibson. He did not participate in a conference
call with headquarters, and was not included in any other meeting or discussion regarding
Gibson’s error or the decision to terminate her during which he would have had an opportunity
to discuss any extenuating circumstances contributing to her error. Peniston did not prepare
Gibson’s termination letter, and learned of her discharge only by e-mail. Peniston was excluded
from the discussion concerning Gibson’s termination, and apparently because of that Loyd
signed the termination letter.

Peniston and Loyd testified to the reasons for the change in procedure. Peniston stated
that after he became aware in September, 2004 that the Union was organizing the employees of
the Respondent, he was told by president Wiles, chief operating officer Sasnett, human
resources director Wesley, and Brian Hudson, the attorney who then represented the
Respondent, that before a disciplinary action letter was given to an employee, it must be sent to
Wesley and Hudson for their review and advice as to how to proceed. He was also informed
that draft termination letters had to be sent to Washington to be proofread.

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Loyd stated that after his being appointed as acting state director in January, 2005, one
of the “aims” of the Respondent was to “make sure that there was consistency in
implementation of the policy” – “[s]ubsequent to my coming in, in January, we really wanted to
make sure that the policies were consistently implemented.”1 Loyd testified that prior to his
becoming acting state director in January, 2005, consistency in the implementation of the
enforcement of the medication administration policy had been an “issue.” I interpret this as
meaning that there had not been consistent enforcement of the policy prior to January. This will
be illustrated below.

Loyd further testified that after meeting with Peniston regarding Gibson, he consulted
with the human resources department and attorney Hudson in order to decide on a course of
action. In doing so, he followed his usual procedure of checking with the human resources
department regarding a decision to terminate an employee. However, his checking with attorney
Hudson was different than the usual procedure because “as a cautionary measure we were
running most things by the attorney in those days because of the activities that were occurring
regarding the unionization. We were trying to make sure that we were being consistent and fair.”

Gibson’s pre-trial affidavit, which she affirmed at the hearing, stated that Loyd told her at
her termination interview that “with all this stuff with the union, everything goes through our
lawyers now, and we have to go by the book.” She further testified that Loyd told her that
“because of everything that’s going on with the Union, everything that when an employee does
something, it has to go through their lawyers, first, for their lawyers to look at it. Everybody’s
looking at it. It’s not just one person, like Cheryl [Wesley, human resources director]. Cheryl
would just look at disciplinary, you know. Now, it was more people involved. It wasn’t just her
decision, alone.” Gibson believed that Loyd was not involved in the decision to terminate her.
She stated that he told her that he was waiting for attorney Hudson and human resources
director Wesley to make their decision “because everything that’s going on with the union, they
have to do things different.”

Loyd stated that according to the policy which Gibson violated, the action called for
would be termination or, if extenuating circumstances were present, retraining. Since no
extenuating circumstances were presented to him, the decision was made to discharge her.
Then a question was presented as to whether she could be terminated just from her job as a
support specialist, or from her office position as well.

Loyd stated that the Respondent had no policy as to whether to retain a support
specialist who committed a medication error requiring termination, but who is also employed in a
clerical capacity. The team consisting of Loyd, Wesley and attorney Hudson examined a
previous instance where employee Drew Zimmerman held two positions, committed a
medication error “of the same caliber and category” as Gibson’s, and was terminated. In that
situation, they decided that the Respondent could not “partially terminate” an employee. They
concluded that either the person remained an employee or was no longer an employee. It was
accordingly decided that in order to “maintain … consistency in implementing the procedure”
Zimmerman’s case was a precedent which would be applied to Gibson, and she should be
terminated.

Drew Zimmerman was a program coordinator and a substitute support specialist. On
1 The quoted sentence, as set forth in the transcript, contains a period after “January,” but
the context of the sentence convinces me that it should read as set forth above.

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November 14, 2004, as the program coordinator, he directed a staff specialist to take
medication from one consumer’s supply and administer it to another consumer. The Disciplinary
Action Form noted that this action was a medication error, and “as the administrator who must
guide staff through problem situations, your judgment is crucial.” Zimmerman received a written
warning and retraining for this error notwithstanding that the medication administration policy
states in X.B.1.a. that “giving incorrect medication, e.g., one consumer’s medication given to
another consumer” requires termination. He continued to work thereafter in both positions.

Thereafter, on January 31, 2005, Zimmerman administered a consumer’s psychotropic
medication at the wrong time. In considering what disciplinary action to take, program director
Robert Schwartz, who succeeded Peniston, sent an e-mail to Loyd on February 3, describing
Zimmerman’s November 14 error as “procedural,” and the January error one of “[medication]
administration with extenuating circumstances. Vis-a-vis policy I feel termination is not required,
but I want to make sure our standards are being upheld evenly for managers. Do you think
suspension from meds admin. responsibilities pending in-house re-training, along with the
attached DAF [Disciplinary Action Form] sufficiently covers it?”

Loyd replied that Zimmerman could have been immediately terminated for the November
error. He stated “I’m sure you see the gravity of this situation in light of the other medication
administration issues we’re facing with some of the direct staff.” Loyd explained at hearing that
he thus emphasized to Schwartz that if the Respondent was enforcing its policy strictly with
respect to staff members, it must do the same with its supervisors.

Schwartz agreed with Loyd’s reasoning, and one week later Schwartz signed a letter
terminating Zimmerman. The letter stated that the January error violated policy X.B.1.c.2., which
required termination for the first occurrence of administering psychotropic medication at the
wrong time. The letter also noted that “this was the second serious medication incident you
were involved in, the first being your improper instruction to give one consumer’s medication to
another on November 14, 2004.” Copies of the letter were sent to Loyd and Cheryl Wesley, the
director of human resources.

Loyd testified that he compared the cases of Gibson and Zimmerman with respect to
their errors, explaining that although Zimmerman administered the medication at the wrong
time, and Gibson failed to administer the medicine at all, they were similar because both were
immediately terminable offenses on a first occurrence. Although technically true, according to
the policy, Gibson’s error, failing to give medication at all, permitted the consideration of
extenuating circumstances, while Zimmerman’s error did not so provide.

4. Discipline Given to Support Specialists Who Committed Medication Errors

The General Counsel adduced evidence of other employees’ medication administration
errors and their treatment by the Respondent. Such cases relate to violations of the
Respondent’s policies, as follows:

X. Medication Errors
B. Failures of staff performance in medication administration will
have the following consequences:

1. Administration Errors – For errors related to medication
administration (including topical medications):

a. Giving incorrect medication, e.g. one consumer’s

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medication given to another consumer – termination.

b. Failing to give medication to consumer at all
without extenuating circumstances (e.g. staff simply
fails to give medication without emergency
circumstances occurring which prevented the staff
from being able to do so) – termination.

c. Incorrect dosage, including giving discontinued
medication or giving medication at the wrong time.

1. Non-toxic dosage error, e.g. –
medications, such as topical ointments,
some prescription medications and over the
counter medications, which would not result
in serious consequences.

• First occurrence – written
warning and retraining before
allowed to administer again.
• Second occurrence –
termination.

2. Toxic dosage, e.g. – medications, such
as psychotropics that may result in serious
injury or death.
• First occurrence – termination

C. In the event of a medication error that could result in
termination of employment, the State Director … must present a
report to the Medication Administration Review Committee. The
MAR Committee will be comprised of the Chief Operating Officer,
the Director of Human Resources, the State Director. The State
Director will be charged with investigating the incident and
presenting a summary of the event within 7 days to the MAR
Committee along with his or her recommendations for personnel
action. The Committee will determine what actions to take. Any
member of the MAR Committee or the employee who has made
the error can appeal the decision of the Committee to the
President of SJCS.

Loyd testified that even though the policies set forth in X.B.1.a and c, above, require
discipline without consideration of extenuating circumstances, nevertheless extenuating
circumstances may be presented to the MAR Committee which could decide that the discipline
set forth in the policy was not warranted because of extenuating circumstances. In addition,
Peniston testified that it was his experience that support specialists were retrained “relatively
frequently” instead of being discharged due to their medication administration errors.

The following are errors which required termination but did not result in termination:

1. Adrian Ferrington gave one consumer medication which was taken from another
consumer’s medication supply. The Respondent’s policy, X.B.1.a, requires termination for

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“giving incorrect medication, e.g. one consumer’s medication given to another consumer.” In
February, 2004, he was given a written warning signed by Schwartz. In addition, he
administered only one tablet of medication to a consumer instead of the two tablets prescribed.
Loyd testified that following those errors Ferrington remained employed by the Respondent, and
was later promoted to the position of acting residential team leader whose responsibility is
supervising the support specialists.

2. In March, 2004, Raphael Ekhelar gave one consumer’s medication, Melaril, to another
consumer who was not prescribed that medication. According to policy X.B.1.a., the discipline
required is termination. However, he was given a final written warning and was retrained. The
Disciplinary Action Form, in which he was given a final written warning, was signed by Peniston
and Schwartz.

Program coordinator Peniston stated that he and the program director believed, based
on Ekhelar’s explanation of what happened, that certain extenuating circumstances were
present which excused Ekhelar from being discharged. It must be noted that policy X.B.1.a does
not provide for the consideration of extenuating circumstances. Rather, termination is the action
required for such an error.

On May 18, 2004, Ekhelar was terminated for another medication error – administering
an incorrect dosage to a consumer. The discharge letter, signed by Peniston, noted that
Ekhelar’s first medication error was considered in terminating him.

Thus, Ferrington and Ekhelar both committed medication errors in violation of policy
X.B.1.a, requiring termination. However, Ferrington received only a written warning, and was
thereafter promoted to a supervisory position. Ekhelar was retrained and permitted to continue
work because extenuating circumstances were presented, although that policy is silent as to the
effect of extenuating circumstances on the determination of what discipline should be
administered. The policy simply provides that termination is the discipline to be given to
employees committing the medication error set forth in that policy.

3. On August 17, 2004, Stephanie Alexander failed to administer an anti-convulsive,
psychotropic medication to a consumer in violation of X.B.1.b, which provides for termination
except for the presence of extenuating circumstances. The Respondent apparently accepted
her explanation that she lost her eyeglasses and had no checker as extenuating circumstances,
and she received a final warning, was scheduled for retraining, and was prohibited from
administering medication until she was retrained.

Thereafter, on September 28, 2004, while acting as a checker, Alexander did not notice
that the staff specialist failed to administer medication to a consumer. She received a written
warning which stated that future administration errors would lead to termination. The
Respondent applies the same penalty to a checker who fails to notice an error as it does to a
support specialist who does not administer the medication. Thus, Alexander should have been
terminated pursuant to policy X.B.1.b. in the absence of extenuating circumstances. No
extenuating circumstances were noted in the documents in evidence. Accordingly, she should
have been terminated.

Three months later, on December 27, Alexander, working as a checker, again failed to
notice that the staff specialist did not administer medication. She was terminated following that
error. The termination letter signed by Schwartz noted that this was the third medication error
Alexander committed between August and December, 2004. She was terminated under policy
X.B.1.b. requiring termination if no extenuating circumstances exist.

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4. On October 7, 2004, Frednel Fenelus failed to administer medications to two
consumers in violation of policy X.B.1.b. which provides for termination with the consideration of
extenuating circumstances, which were noted by Fenelus – he was distracted by the consumers
while administering the medications and “accidentally forgot” to administer them. He was given
a final written warning.

On November 29, 2004, Fenelus was terminated for administering the wrong medication
to a consumer in violation of X.B.1.a. which provides for termination, and is silent as to
extenuating circumstances. Nevertheless, program director Schwartz’s discharge letter noted
that termination was appropriate since there were no extenuating circumstances and this was
his second medication administration error. Actually it was his third since he previously failed to
administer medication to two consumers. As set forth below, employee Hicks also failed to
administer medication to two consumers and Schwartz noted that such misconduct was
considered as two errors.

5. In October, 2004, Denise Hicks failed to administer medication in violation of policy
X.B.1.b, which requires termination with the consideration of extenuating circumstances. In
mitigation, she explained that the medication was not available and the pharmacy was closed.
Supervisor Bovene White noted, however, that Hicks did not notify a supervisor, did not take the
consumer to an emergency room to have the medications administered, and did not call the
prescribing physician. Hicks replied that she administered the medication at the proper time, but
simply failed to document the administration, which error she also blamed on her checker. Hicks
received only a second written warning for that error.

As Loyd testified, Hicks’ explanations were not accepted, and she presented no
extenuating circumstances. Accordingly, she should have been terminated.

On December 28, 2004, Hicks committed two more errors in failing to administer seizure
medication to two consumers. By letter dated January 18, 2005, Schwartz terminated her,
noting that since she committed three medication errors they were “grounds for termination as
per agency policy.”

6. As set forth above, on November 14, 2004, supervisor Zimmerman directed a support
specialist to take medication from one consumer’s supply and administer it to another
consumer. He was given a warning, whereas policy X.B.1.a. requires termination for this error.
Two months later, he administered medication at the wrong time and was discharged.

7. On June 24, 2005, Delois Olive administered an incorrect dosage of Seroquel to a
consumer, giving her a 100 mg. tablet instead of the prescribed 200 mg. tablet in violation of
policy X.B.1.c. The Disciplinary Action Form signed by program director Schwartz noted that
this was a “terminable offense,” but that Olive would not be discharged because of the presence
of extenuating circumstances because the day of the incident was the consumer’s first morning
in the residence, and Olive had no prior familiarity with her medication. The form, signed by
human resources director Wesley, noted that Olive was scheduled for retraining and was
prohibited from administering medication until she was retrained. She was also warned that any
further medication administration error would be grounds for further disciplinary action up to and
including termination.

Pursuant to policy X.B.1.c, if Olive’s error involved a non-toxic dosage and was a first
occurrence, she would receive a written warning and retraining. A second occurrence would
result in termination. If the dosage was toxic, a first occurrence would result in termination.

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Schwartz called her error “terminable,” but did not discharge her because of the presence of
extenuating circumstances. However, policy X.B.1.c. does not provide for the consideration of
extenuating circumstances. In addition, if her error was indeed “terminable,” it was either the
second occurrence of the administration of a non-toxic dosage or the first occurrence of the
administration of a toxic dosage. In either case, she should have been discharged pursuant to
the policy.

Loyd testified that he was not specifically familiar with the facts of that case, he did not
know if she had a medication administration error before this one, and did not know why
Schwartz called it a terminable offense. Loyd decided to permit Olive to continue to work after
this terminable offense because extenuating circumstances were presented. He stated that he
contrasted this situation with Gibson’s, in which no extenuating circumstances were presented.
However, as noted above, policy X.B.1.c. is silent as to the effect of extenuating circumstances
on the error. That policy does not provide for the consideration of extenuating circumstances in
determining whether discipline should be imposed.

In contrast to the above, in April, 2005, Gibson was terminated for violating policy
X.B.1.b, failing to administer a medication without extenuating circumstances. This was her first
error and first discipline.

Analysis and Discussion

I. The Violation of Section 8(a)(1) and (3)

The complaint alleges that the Respondent unlawfully more strictly enforced its
medication administration policy upon its employees, including Gibson, and discharged her
pursuant to a stricter enforcement of its policy because of its employees’ union activities. The
evidence supports those allegations.

The General Counsel argues that prior to the Union’s advent, the Respondent’s
medication error policy was not enforced to the letter of the policy, but that after the Union
organized the Respondent’s employees a change occurred pursuant to which that policy, in
Gibson’s case, was strictly enforced, resulting in her discharge.

Before I begin my analysis, it must be emphasized that 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 consumer because of such an error is also not at issue. The issue here concerns
how the Respondent dealt with its employees who committed medication errors.

As the Board stated in Schrock Cabinet, Co., 339 NLRB 182, 183-184 (2003), my finding
that Gibson’s discharge violated the Act:

[d]oes not alter or undermine an employer’s authority to implement
or enforce work rules. Nor does it cast doubt on an employer’s
ability to more strictly enforce its work rules. (Emphasis in original)
An employer’s more stringent enforcement of its work rules will not
constitute a violation of the Act unless it is a consequence of
employee participation in protected activity. The existence of
protected activity alone, however, does not foreclose an employer
from more strictly enforcing its work rules, even where the
employer previously tolerated infractions of those rules…. A

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violation of the Act will be found, however, where – as in this case
– an employer more strictly enforces a work rule in response to
protected activity.

Pursuant to Wright Line, 251 NLRB 1083 (1980), the General Counsel has the burden of
establishing that protected conduct was a motivating factor in the Respondent’s decision to
more strictly enforce its medication administration policy and discharge Gibson. To sustain his
initial burden, the General Counsel must show that (1) the employees were engaged in
protected concerted activity (2) the employer had knowledge of the activity and (3) the activity
was a substantial or motivating reason for the employer’s adverse action. Naomi Knitting Plant,
328 NLRB 1279, 1281 (1999). Once this is established, the burden shifts to the Respondent to
demonstrate that its stricter enforcement of the policy and its termination of Gibson would have
occurred for a legitimate reason regardless of the protected activities.

The testimonial and the documentary evidence support a finding that after the Union
filed its petition to represent the support specialists, the Respondent more strictly adhered to its
medication administration rules in processing disciplinary actions and terminations of
employees.

Thus, on December 13, 2004, the Union filed a petition to represent the Respondent’s
employees. Immediately thereafter, according to Loyd, when he assumed the position of acting
state director in January, 2005, the Respondent “really wanted to make sure that the policies
were consistently implemented,” inasmuch as prior to January, consistency in the enforcement
of the medication administration policy was an “issue.” Both Loyd and Peniston further testified
that as a result of the Union’s organizing efforts, the Respondent changed its policy by having
its attorney review all disciplinary actions to ensure consistency and fairness in its actions,
whereas this was not done before the Union’s advent. Checking with its attorney does not
violate the Act, but changing its policies in response to the Union’s organizing effort does. The
testimony of Peniston and Loyd is consistent with Gibson’s, which I credit, in that she stated that
Loyd told her that “with all this stuff with the union, everything goes through our lawyers now,
and we have to go by the book… and “they have to do things different.” It is significant that
Gibson was terminated pursuant to a more strict enforcement of the policy less than two weeks
after the Union was certified.

Thus, in direct response to the Union’s organizing effort, in January, 2005, the
Respondent admittedly changed its procedure for processing disciplinary cases and
terminations by having its attorney examine the circumstances surrounding the error and be
involved in the decision to terminate. This was in an admitted effort to enforce its policy more
consistently – that is more strictly than had previously been the practice. As will be discussed
below, there was no evidence that prior to the Union’s advent any employee had been
discharged for committing one medication administration error. Indeed, the evidence establishes
that, prior to January, 2005, employees were warned but not terminated for first errors identical
to the one that Gibson committed.

The question that must be answered is not whether Gibson committed an error, or even
if it was a serious or terminable offense, but whether the Respondent would have discharged
her even in the absence of its employees’ union activities. Based on the evidence, I conclude
that the Respondent’s emphasis on consistent enforcement and application of the policy only
occurred as a result of the unionization of the facility. Immediately thereafter, the policy began to
be strictly implemented, and pursuant to that stricter enforcement, Gibson was discharged.

Thus, the General Counsel has proven that the Union’s organizing of and representation

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of the Respondent’s employees caused the Respondent to admittedly enforce its medication
administration policy more consistently – in a stricter manner than it had before, and that stricter
enforcement led to Gibson’s discharge. The Respondent thus, according to Loyd’s comment to
Gibson, went “by the book” in applying its policy following its employees’ interest in the Union.

A. Gibson’s Discharge

1. Extenuating Circumstances

I find that the Respondent’s explanation for Gibson’s discharge does not withstand
scrutiny. First, if the typical procedure for the presentation of extenuating circumstances had
been followed, her error would have been excused and she would not have been terminated.
Second, even in the absence of the presentation of extenuating circumstances, other
employees committing the same error but not having extenuating circumstances were not
discharged, but received only warnings.

I credit Peniston’s testimony that he was aware of Gibson’s extenuating circumstances
and believed that they would have excused her error and prevented her termination. Thus,
Gibson told him of the conditions that she was faced with when alone with the four consumers
which explained her failure to administer the medication – she was distracted in attempting to
persuade a consumer to leave the bathroom so that others could use it – and they had just
returned from out of home visits, conditions were “chaotic,” and she had no checker. Those
reasons were at least as compelling as other employees’ accepted explanations for not
administering medication: Fenelus was distracted and accidentally forgot, and Alexander lost
her eyeglasses and had no checker.

The Respondent correctly argues that its decision-makers were not aware that Gibson
presented extenuating circumstances which would have permitted it to retain her. There are two
reasons for this. First, Peniston was satisfied with Loyd’s suggested discipline for her error –
that she be prohibited from working as a support specialist, but would continue to work in the
office. I must emphasize that Loyd testified that he suggested this solution to Peniston. Peniston
therefore apparently did not see the need to inform Loyd of the existence of extenuating
circumstances.

In this respect, I cannot credit Loyd’s testimony that Peniston told him that there were no
extenuating circumstances to Gibson’s error. Loyd admitted that he suggested to Peniston that
a fair resolution would be to terminate her from her support specialist position but retain her as
an office assistant, and Peniston agreed. Accordingly, it was Loyd’s belief going into the MAR
Committee meeting that she would be retained and he had no need to inquire into her
extenuating circumstances. However, at the Committee meeting, he was overruled by the other
Committee members and attorney Hudson who decided to terminate her from both positions.

Secondly, if Peniston had been involved in the conference call with the Washington,
D.C. headquarters personnel as a member of the MAR Committee as he had been before the
change in procedure, he would have become aware that Gibson’s termination was being
considered. As he testified, that would have been the appropriate time to inform the decision-
makers that Gibson raised valid extenuating circumstances. However, inasmuch as the
Respondent changed its termination procedure because of the Union’s representation of its
employees and excluded Peniston from the deliberations, he did not have an opportunity to
present Gibson’s extenuating circumstances.

In addition, further evidence that program director Peniston was excluded from Gibson’s

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termination process may be seen in the fact that he did not prepare or sign her termination
letter. As set forth above, historically the program director prepared and signed the letter. Thus,
in 2004 and in early 2005, Peniston and his successor Schwartz signed the termination letters
of Ekhelar, Alexander, Fenelus, Zimmerman and Hicks. In contrast, Gibson was terminated in
April, 2005 by a letter signed by acting state director Loyd.

Accordingly, inasmuch as Peniston was excluded from the decision-making process
pursuant to the Respondent’s changed procedure following the Union’s representation of its
employees, he was precluded from raising the existence of extenuating circumstances during
the conference call with Loyd, Wesley and attorney Hudson. Inasmuch as this changed
procedure was put into place because of the Union’s presence, Peniston’s failure to mention
Gibson’s extenuating circumstances was caused by his exclusion from the MAR Committee
conference call. I therefore find that Peniston’s failure to raise Gibson’s extenuating
circumstances was justifiable, and brought about by the Respondent’s change in its procedure
in deciding the terminations of employees.

2. Evidence of Stricter Enforcement of the Policy

Moreover, even in the absence of the presentation of Gibson’s extenuating
circumstances, the evidence establishes that other employees committing the same error but
not having extenuating circumstances received only a warning, whereas Gibson was fired.

Gibson was discharged for failing to administer medication on April 4, 2005, her first
error of any kind. Loyd stated that inasmuch as he was not aware of any extenuating
circumstances which would excuse the error, termination was justified pursuant to the letter of
the policy. However, there was evidence that two other employees committed the identical error
with no extenuating circumstances but were retained.

Thus, as set forth above, Alexander failed to administer medication twice. Her first such
error was excused because she presented extenuating circumstances. However, no evidence
was offered that she presented extenuating circumstances as to her second error in September,
2004. Accordingly, she should have been terminated at that time. Nevertheless, she received
only a written warning, and was permitted to continue working.

Similarly, Hicks failed to administer medication in October, 2004, and her excuses were
not accepted as extenuating circumstances. She should have been terminated at that time, but
she received only a second written warning and was permitted to continue working.

In addition, Alexander, Hicks and Fenelus were discharged in 2004 only upon the
commission of their third medication administration error. As set forth above, all the medication
administration policies require termination upon the second error. In contrast, Gibson was
discharged after her first such error, which was her first discipline of any kind. There was no
evidence that any other employee had been discharged after his or her first medication
administration error.

The only reason that Gibson was terminated for an offense for which Alexander and
Hicks were only warned in 2004 was that Gibson’s error occurred in 2005, at a time when the
Respondent decided to more strictly enforce its medication administration policy because of the
Union’s representation of its employees. In addition, in 2004, Ferrington committed two
medication administration errors at one time, each of which required termination, but not only
was he retained, he was promoted to a supervisory position.

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Loyd’s effort at consistency in enforcing the policy is, first, an unlawful change in the
terms and conditions of employment because it was instituted because of the Union’s advent.
Even if it was lawful, his application of Zimmerman’s termination to Gibson’s was inappropriate.
Thus, Zimmerman was permitted to remain employed notwithstanding his first medication
administration error in which he directed a staff specialist to take medication from one
consumer’s supply and administer it to another consumer. Policy X.B.1.a requires termination
for this offense, and Loyd agreed that it was a terminable offense. In contrast, Gibson was
terminated for her first error. Loyd stated that both cases were comparable since Zimmerman
also held two positions and was discharged from both. However, he was terminated only
following his second medication administration error. If Loyd wanted to be consistent in his
treatment of Gibson and Zimmerman, he would have permitted Gibson to remain at work
following her first error, as he did with Zimmerman.

The stricter enforcement of a policy in retaliation for employees’ support for a union,
which policy previously had not been uniformly enforced, violates Section 8(a)(1) of the Act. See
Treanor Moving & Storage Co., 311 NLRB 371, 375 (1993), where the Board held that the
announcement of a change in the enforcement of a policy to the effect that the respondent
would more strictly apply its policy in retaliation against the employees’ union activity violates
the Act. “We used to let you guys get away with this kind of stuff. But now you are union and
you guys are playing your game and the company is going to have to play by their game.”

Disparate treatment may be found where an employer did not discharge an employee for
a dischargeable offense while it discharged another employee for his violation of a rule. Tracer
Protection Services, 328 NLRB 734, 735 (1999). Accordingly, the evidence set forth above
establishes that the Respondent would not have discharged Gibson for only one error prior to
the stricter enforcement of its policy in January, 2005.

In Hyatt Regency Memphis, 296 NLRB 259, 263 (1989), the Board found that prior to an
election, the employer enforced its work rules in a “lax, sporadic, inconsistent” manner, finding a
“stark contrast” between its preelection and postelection enforcement of its rules. Similar to the
facts here, the Board noted that following the election, the employer fired employees for first-
time violations, whereas in a seven-month period prior to the election, no employees were fired
for violating the rules notwithstanding many did so, including repeat offenders.

In Nursing Center at Vineland, 314 NLRB 947, 950 (1994), prior to a union’s organizing
efforts, nurses smoked and ate at the nurses’ stations. After a representation hearing, nurses
heard that there was a “crackdown” on smoking at the facility. A supervisor was quoted as
saying “with everything that’s going on at the nursing home at this point in time, I have to
enforce these rules even though they haven’t been enforced in the past…” In noting that the
only thing going on at the nursing home at that time was the employees’ union activity, the
Board concluded that the supervisor was announcing a crackdown motivated by that activity
and found a violation in the stricter enforcement of the no-smoking rule. Here, too, the
Respondent made its policy more “consistent,” and more strictly enforced it following the
Union’s advent.

In Pontiac Care and Rehabilitation Center, 344 NLRB No. 92, slip op. at 3 (2005), a
nurse was terminated for committing medication administration errors and failing to change a
bandage. In finding a violation, the Board noted that a supervisor threatened that she would
“have to do things by the book,” thereby more strictly enforcing its rules and policies if
employees chose a union. In holding that the nurse was terminated because of her union
activity, the Board noted that she was treated disparately from other nurses who committed the
same or more errors than she, but who were not known as union supporters. In the instant case,

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Loyd was quoted as saying in reference to considering Gibson’s continued employment, that the
Respondent now had to do things “by the book.”

Wright Line is applicable where the employees’ protected union activity in choosing a
Union to represent them was a motivating factor in the Respondent’s decision to strictly enforce
its medication administration policy. The Respondent defends its action only by referring to the
rule, which was not strictly enforced before the Union began organizing the employees. At most,
the Respondent has shown that it could have discharged Gibson for her misconduct. It has not
established that it would have discharged her in the absence of the employees’ union activities.
Structural Composites Industries, 304 NLRB 729, 730 (1991).

Thus, the Respondent has not demonstrated that it would have more strictly enforced its
medication administration policy or discharged Gibson absent the employees’ protected union
activity. Hialeah Hospital, 343 NLRB No. 52 (2004). Therefore, the Respondent has not met its
Wright Line burden of proving that it would have discharged Gibson even absent its employees’
union activities. KOFY-TV-20, 332 NLRB 771, 772 (2000).

Even assuming that Gibson engaged in no union activities, the Respondent’s unlawful
stricter enforcement of its medication administration policy in response to its employees’ union
activities discriminated against all its employees. Thus, Gibson’s discharge violated Section
8(a)(3) of the Act even if Gibson engaged in no union activities, and even if the Respondent had
no particular unlawful motive against her. Southern Mail, Inc., 345 NLRB No. 43, slip op. at 4
(2005). The issuance of discipline pursuant to stricter enforcement violates Section 8(a)(3) of
the Act. Dynamics Corp. of America, 286 NLRB 920, 921 (1987).

II. The Violation of Section 8(a)(1) and (5)

The complaint alleges that the Respondent unilaterally changed the enforcement of its
medication administration policy without affording the Union an opportunity to bargain with it
about that change.

Ann Luck, the Union’s organizing director, testified that she was not notified by the
Respondent of any changes to the enforcement of the medication administration policy, and the
Union had no opportunity to bargain about that matter.

It is well established that is an unfair labor practice for an employer whose employees
are represented by a union to make unilateral changes in the working conditions of its
employees without first notifying the bargaining representative and giving it an opportunity to
discuss the proposed changes. NLRB v. Katz, 369 U.S. 736 (1962). A new policy of strict
enforcement of previously existing work rules is subject to the requirement of notice and
bargaining just as much as is the promulgation of brand new work rules. “Although [certain
rules] have been in effect since the Respondent commenced operations, that does not preclude
our finding that the enforcement of those rules more stringently than had been the practice
before the Union’s election represented a change in the employees’ terms and conditions of
employment over which the Respondent had an obligation to bargain.” Hyatt Regency Memphis,
above at 263-264.

In addition, a mandatory subject of bargaining includes the circumstances in which
discipline will be imposed for violations of the employer’s rules. A change to the employer’s
disciplinary policy without bargaining or offering to bargain with the union that represents its
employees violates Section 8(a)(5). Southern Mail, Inc., above, at slip op. 3.

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Inasmuch as I find that the Respondent has more strictly enforced its medication
administration policy and has not bargained with the Union about that change, I therefore
conclude that it has violated Section 8(a)(1) and (5) of the Act.

Conclusions of Law

1. By more strictly enforcing its medication administration policy upon its employees,
including Nia Gibson, the Respondent violated Section 8(a)(1) and (3) of the Act.

2. By discharging Nia Gibson because its employees joined or selected Communications
Workers of America, Local 1037, AFL-CIO (Union), the Respondent violated Section 8(a)(1) and
(3) of the Act.

3. By unilaterally changing the enforcement of its medication administration policy by
more strictly enforcing its provisions without affording the Union an opportunity to bargain with it,
the Respondent violated Section 8(a)(1) and (5) of the Act.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

The Respondent having discriminatorily discharged Nia Gibson, it must offer her
reinstatement to her positions as substitute support specialist and administrative assistant, and
make her whole for any loss of earnings and other benefits, computed on a quarterly basis from
date of discharge to date of proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).

I shall also order that the Respondent restore the status quo ante by revoking its new
policy of stricter enforcement of its medication administration policy.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended2

ORDER

The Respondent, St. John’s Community Services – New Jersey, Hamilton, New Jersey,
its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Refusing to bargain in good faith with Communications Workers of America, Local
1037, AFL-CIO (Union) as the exclusive bargaining representative of employees in the below-
described appropriate unit by making unilateral changes in their terms and conditions of
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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employment which are mandatory subjects of bargaining, without first giving adequate prior
notice thereof to the Union and giving the Union a meaningful opportunity to bargain on such
changes, including more strictly enforcing its medication administration policy:

All full-time and regular part-time support specialists and
substitute support specialists employed by the Employer at its 10
New Jersey locations located in Lawrenceville, Roselle, South
Plainfield, Orange, Farmingdale, Long Branch, Rahway, Cedar
Grove, Brick Township and Trenton, New Jersey, but excluding all
office clerical employees, managerial employees, professional
employees, guards and supervisors (including team leaders) as
defined in the Act.

(b) Discharging or otherwise discriminating against any employee because its
employees joined or selected the Union, or any other union.

(c) More strictly enforcing its medication administration policy upon its employees
because they joined, selected or supported the Union.

(d) Unilaterally changing the enforcement of its medication administration policy by more
strictly enforcing its provisions without affording the Union an opportunity to bargain with it over
the terms and conditions of employment for its employees in the appropriate bargaining unit set
forth above.

(e) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) On request by the Union, rescind the unilateral changes consisting of a more strict
enforcement of its medication administration policy until such time as it negotiates with the
Union in good faith to impasse or agreement.

(b) Within 14 days from the date of the Board’s Order, offer Nia Gibson full reinstatement
to her former positions as substitute support specialist and administrative assistant or, if those
positions no longer exist, to substantially equivalent positions, without prejudice to her seniority
or any other rights or privileges previously enjoyed.

(c) Make Nia Gibson whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her in the manner set forth in the remedy section of the
decision.

(d) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify the employee in writing
that this has been done and that the discharge will not be used against her in any way.

(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.

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(f) Within 14 days after service by the Region, post at its facility in Hamilton, New Jersey,
copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by
the Regional Director for Region 22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
April 11, 2005.

(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

Dated, Washington, D.C., May 4, 2006.
____________________
Steven Davis
Administrative Law Judge
3 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)-19-06

APPENDIX

NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT refuse to bargain in good faith with Communications Workers of America, Local
1037, AFL-CIO (Union) as your exclusive bargaining representative by making unilateral
changes in your terms and conditions of employment which are mandatory subjects of
bargaining, without first giving adequate prior notice thereof to the Union and giving the Union a
meaningful opportunity to bargain on such changes, including more strictly enforcing our
medication administration policy:

WE WILL NOT discharge or otherwise discriminate against any of you for joining, selecting or
supporting Communications Workers of America, Local 1037, AFL-CIO, or any other union.

WE WILL NOT more strictly enforce our medication administration policy upon you because you
joined, selected or supported the Union.

WE WILL NOT unilaterally change the enforcement of our medication administration policy by
more strictly enforcing its provisions without affording the Union an opportunity to bargain with
us over your terms and conditions of employment.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL on request by the Union, rescind the unilateral changes consisting of a more strict
enforcement of our medication administration policy until such time as we negotiate with the
Union in good faith to impasse or agreement.

WE WILL within 14 days from the date of the Board’s Order, offer Nia Gibson full reinstatement
to her former positions as substitute support specialist and administrative assistant if those
positions no longer exist, to substantially equivalent positions, without prejudice to her seniority
or any other rights or privileges previously enjoyed.

WE WILL make Nia Gibson whole for any loss of earnings and other benefits resulting from her
discharge, less any net interim earnings, plus interest.

JD(NY)-19-06
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharge of Nia Gibson, and WE WILL, within 3 days thereafter notify
her in writing that this has been done and that the discharge will not be used against her in any
way.

ST. JOHN’S COMMUNITY SERVICES – NEW
JERSEY
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
20 Washington Place, 5th Floor
Newark, New Jersey 07102-3110
Hours: 8:30 a.m. to 5 p.m.
973-645-2100.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 973-645-3784.