Somerset Valley Rehabilitation and Nursing Center, (2012)

Docket Number:22-CA-029599
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

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 222013 CA2013029599, 222013CA2013029628, and 222013CA2013029868

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 Respondent filed exceptions and a supporting brief, the Acting 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 judge2019s rulings, findings,2 and conclusions,3 as

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 No. 24 (2012), we deny the motion.

2 The Respondent has excepted to some of the judge2019s credibility findings. The Board2019s established policy is not to overrule an administrative law judge2019s credibility resolutions unless the clear preponderance 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 judge2019s 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 judge2019s gender mistake in later drafting his decision from a lengthy record was unfortunate but minor. The Respondent also emphasizes 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 Respondent2019s director of nursing, Inez Konjoh, but gave a physical description that did not fit Konjoh. The transcript indicates, however, that even the Respondent2019s own counsel understood that Onyeike had simply mistaken the Respondent2019s administrator, 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

modified below, and to adopt the recommended Order.

This case arises from a union organizing campaign among the Respondent2019s nursing employees at its Somerset, New Jersey nursing home. The Union won a Board-conducted representation election held on September 2, 2010, and was later certified by the Board as the unit employees2019 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 employees2019 grievances if they refrained from supporting the Union. We agree with virtually all of the judge2019s findings for the reasons he gives, as modified below.

1. The Respondent2019s Antiunion Animus. Based on the record as a whole, the judge found that the Respondent2019s animus toward the Union was 201cbeyond question.201d The record fully supports the judge2019s finding. The Respondent manifested its antiunion animus in various ways, including through its repeated unlawful interrogations of employees, unlawful solicitations of grievances, disparate and inconsistent treatment of known union supporters, and a number of its managers2019 additional statements and actions. We find it unnecessary, however, to rely on the judge2019s comments that the Respondent2019s animus was also established by its 201caggressive campaign201d against the Union and by its having 201curge[d employees] to vote against the Union,201d as the balance of record still easily supports his finding.

2. Discipline for Attendance Infractions. On September 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 January 1. In addition, the Respondent gave Jacques and Claudio separate written warnings for unexcused absences. We agree with the judge that all of those warnings were unlawful.

The Respondent claims that the written warnings issued to Jacques, Napolitano, and Claudio resulted from a lawful decision made by Administrator Doreen Illis and Director of Nursing Inez Konjoh in August2014when they first assumed their respective posts2014to more strictly

we accordingly reverse the judge2019s finding. See Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).

358 NLRB No. 146

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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 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 procedure, Konjoh removed it after the election when she explained to Southgate that 201cthey 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.201d Against this backdrop, we have little trouble affirming the judge2019s findings that the written warnings issued to Jacques, Napolitano, and Claudio for lateness were unlawful.4

Similarly, we affirm the judge2019s findings that the Respondent 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 Respondent had a rule prohibiting the use of sick days adjacent to nonworking days, Konjoh told her the rule was in the Respondent2019s employee handbook. In fact, the handbook contained no such rule. Moreover, when Claudio complained to Unit Manager Southgate about the warnings, Southgate told her to 201cbe careful because you already know what2019s going to happen. What they2019re trying to do. Just be careful and don2019t be late. . . . Don2019t give

them a reason.201d Last, the Respondent2019s unlawful motive is further revealed by its more lenient treatment of another employee, who received only a 201cdocumented verbal201d warning for four absences in 60 days, twice on days before a nonworking day. All of that evidence fully supports the judge2019s findings that the Respondent2019s discipline of Jacques and Claudio for absenteeism was unlaw-

4 In their own defense, each discriminatee said she had not previously been disciplined for lateness, and that her 201clate201d arrivals were due to personal circumstances that were known to the Respondent and treated as acceptable. The Respondent introduced lateness warnings purportedly issued to four other employees at the same time, but2014 unlike all of the attendance warnings issued the discriminatees2014only one of those is signed and indicates that it was actually given to the employee. We therefore give that evidence little weight.

ful.

3. The Discipline and Discharge of Jacques. The judge found that the performance related disciplinary notices given to Jacques after the election, her suspension on February 10, 2011, and her discharge the following 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 Respondent 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...

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