NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 :

J. MICHAEL LIGHTNER, : CIVIL ACTION NO. 11-2007 (MLC)

 :

Petitioner, : MEMORANDUM OPINION

 :

v. :

 :

1621 ROUTE 22 WEST OPERATING :

COMPANY, LLC, d/b/a SOMERSET :

VALLEY REHABILITATION AND :

NURSING CENTER, :

 :

Respondent. :

 :

COOPER, District Judge

Petitioner, J. Michael Lightner, Regional Director of Region

22 of the National Labor Relations Board (“the Regional

Director”), brings this action against Respondent, 1621 Route 22

West Operating Company, LLC, doing business as Somerset Valley

Rehabilitation and Nursing Center (“Somerset Valley”), a longterm care facility. The Regional Director seeks two primary

forms of relief: (1) to enjoin Somerset Valley from engaging in

behavior that violates the National Labor Relations Act, 29

U.S.C. § 141, et seq. (“the Act”); and (2) to compel Somerset

Valley to reinstate the employment and restore the work schedules

of employees who are named in the Amended Petition. (Dkt. entry

no. 27, Am. Petition.) He is joined by amicus, 1199SEIU United 1

Healthcare Workers East (“the Union”).

 The Regional Director docketed the “Amended Petition for 1

Temporary Injunction Under Section 10(j) of the National Labor

Relations Act, as Amended” as an Amended Complaint.

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This matter arises from the facts attendant to the Union’s

organizing campaign at Somerset Valley and the subsequent union

election. As explained in greater detail below, the Union helped

certain Somerset Valley employees garner support for a union

election, file a petition for that election, and campaign in

favor of unionizing the Somerset Valley workforce. At the 2

September 2, 2010 union election, the Somerset Valley workforce

voted in favor of unionization.

In August and September of 2010, the Regional Director 

filed unfair labor practice charges before the National Labor

Relations Board (“the Board”), which he most recently amended in

February of 2011. Through those charges, the Regional Director

asserts that Somerset Valley, after the petition was filed but

before the September 2, 2010 election, violated Section 8(a)(1)

of the Act, 29 U.S.C. § 158(a)(1) (“Section 8(a)(1)”), both by: 

(1) interrogating employees about Union support and activities;

and (2) soliciting employees’ grievances and impliedly promising

benefits. The Regional Director further asserts that Somerset

Valley, after the election, violated Section 8(a)(3) of the Act,

29 U.S.C. § 158(a)(3) (“Section 8(a)(3)”), by disciplining,

reducing the hours worked by, and discharging employees who

supported the Union.

 Although this matter pertains only to the bargaining unit 2

recognized and agreed upon by the parties, the Court will refer

to that unit as “the Somerset Valley workforce”.

2

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During the pendency of those administrative proceedings, the

Regional Director commenced this action, seeking injunctive

relief, i.e., relief during the pendency of the administrative

and related appellate proceedings. He asserts that he has

“reasonable cause to believe” that Somerset Valley committed the

alleged violations of the Act detailed in the unfair labor

practice charges filed before the Board. (Dkt. entry no. 27-1,

Regional Director’s Pre-hearing Br. at 19-26.) He also argues

that such relief is “just and proper” inasmuch as it will: (1)

reassure Somerset Valley’s employees that they may support the

Union without fear of retaliation; (2) preserve the Union’s

ability to effectively represent those employees; and (3) remove

any chilling effects caused by Somerset Valley’s alleged

violations of Section 8(a)(1) and Section 8(a)(3). 

Somerset Valley denies that it violated Section 8(a)(1) and

Section 8(a)(3). It asserts, with respect to Section 8(a)(1),

that Somerset Valley’s administrative staff casually questioned

employees about Union sympathies, and questioned employees about

grievances without offering actual promises to remedy those

grievances. (See generally dkt. entry no. 25, Somerset Valley’s

Initial Pre-hearing Br.; see also dkt. entry no. 130, Tr. of 

Closing Arguments at 13-19.) With respect to Section 8(a)(3),

Somerset Valley admits that it disciplined, reduced the hours 

3

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worked by, and/or discharged the employees named in the Amended

Petition, but asserts that it took such action based on each

employee’s job performance and its staffing needs. (Somerset

Valley’s Initial Pre-hearing Br. at 17-21; Tr. of Closing

Arguments at 20-95.) It denies acting upon Union animus. 

(Somerset Valley’s Initial Pre-hearing Br. at 17-21; Tr. of

Closing Arguments at 20-95.) Somerset Valley further claims

that the relief now sought by the Regional Director does not

serve the public interest. (Somerset Valley’s Initial Prehearing Br. at 21-44.)

After the Regional Director commenced this action, the

parties appeared before Administrative Law Judge Steven Davis

(“the ALJ”) to argue the merits of the underlying unfair labor

practice charges. That hearing (“the ALJ Hearing”) took place

over nineteen days between April 27, 2011 and June 28, 2011, and

yielded 272 exhibits and over 3,200 pages of transcripts.3

Pursuant to the parties’ request, the Court has adopted the ALJ

Hearing record as part of the record in this matter. (See dkt.

entry no. 39, 6-9-11 Transcript at 55, 60-63, 102-104.) The

parties also appeared before the Court for a supplemental

 The transcripts of the ALJ Hearing appear as docketed by 3

the Regional Director at docket entry numbers 35-1 through 35-7,

62-1 through 62-4, 56-1 through 56-7, and 62-5. Because these

transcripts are consecutively paginated, the Court accordingly

cites to them as “ALJ Hearing Transcript”.

4

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hearing, which was held during eight days between November 30,

2011 and February 9, 2012, and oral argument, which was held on

March 13, 2012 and March 23, 2012.4

The Court has reviewed the record in its entirety, including

the affidavits, declarations, and deposition transcripts provided

by the parties (see, e.g., dkt. entry nos. 25-26); the transcript

of and evidence adduced at the ALJ Hearing; the transcript of and

evidence adduced at the supplemental hearing; and the Decision

rendered by the ALJ (dkt. entry no. 81-1, ALJ Decision). The

Court has also considered the arguments presented by the Regional

Director, the Union, and Somerset Valley. Upon consideration of

the foregoing, and as set forth at length below, the Court grants

the Amended Petition in part and denies it in part.

FINDINGS OF FACT

I. Somerset Valley and its Parent Company, CareOne, LLC

A. The Facility

Somerset Valley is a healthcare facility that provides

rehabilitative and long-term, clinical care to patients who, in

many cases, cannot care for themselves. (Dkt. entry no. 25-14,

 The transcripts of the supplemental hearing appear at 4

docket entry numbers 92, 94, 96, 101, 113, 115, 117, and 124. 

As a whole, they are not consecutively paginated. The Court

accordingly cites to these transcripts as: dkt. entry no. 92, 

SH Transcript; dkt. entry no. 94, SH Transcript 2; dkt. entry no.

96, SH Transcript 3; dkt. entry no. 101, SH Transcript 4; dkt.

entry no. 113, SH Transcript 5; dkt. entry no. 115, SH Transcript

6; dkt. entry no. 117, SH Transcript 7; and dkt entry no. 124, 

SH Transcript 8.

5

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Illis Decl. at ¶ 2; dkt. entry no. 35-10, GC Ex. 1.) Its 5

facility contains thirty-two patient rooms, each containing two

beds; it thus has a maximum occupancy of sixty-four patients. 

(See ALJ Hearing Transcript at 1404.) As a healthcare facility,

Somerset Valley is subject to both New Jersey and federal health

regulations. (See, e.g., SH Transcript 2 at 102-03.)

B. Somerset Valley’s Parent Company, CareOne, LLC

Somerset Valley is owned by CareOne, LLC (“CareOne”). (ALJ

Hearing Transcript at 1403-04.) CareOne, during the periods

relevant to this action, employed Jason Hutchens as its Regional

Director of Operations and Andrea Lee as its Vice President of

Human Resources. (Id. at 78, 1403-04.) Hutchens and Lee, in

their respective positions, oversaw operations at Somerset Valley

and other CareOne facilities. (Id.) 

Between November of 2009 and May of 2011, CareOne also

employed Jackie Engram as its Vice President of Clinical

Operations. (Id. at 1841-42.) Engram, in this role, oversaw the

nursing departments in CareOne’s New Jersey facilities. (Id.) 

In January of 2011, Engram also assumed responsibilities as

Somerset Valley’s acting Director of Nursing (“DON”). (Id. at

1845.)6

 Somerset Valley admits that it is both “an employer 5

engaged in commerce” and a “health care institution”. (ALJ

Decision at 2.) See also 29 U.S.C. §§ 152(2), (6), (7), (14). 

 Between January and May of 2011, Engram thus held both 6

positions. (ALJ Hearing Transcript at 1845.)

6

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C. Somerset Valley’s Employees

Somerset Valley, during the periods relevant to this action,

employed, inter alia, six categories of employees: (1) an

administrator; (2) a DON; (3) unit managers; (4) nurses

(including registered nurses (“RNs”) and licensed practical

nurses (“LPNs”)); (5) certified nurse’s aides (“CNAs”); and 

(6) a staffing coordinator. (See id. at 899-900, 1185-86, 

1405-07, 1993, 2663.) The administrator, DON, and unit manager 7

work together to supervise the nurses, CNAs, and the staffing

coordinator. (Id. at 1991-2226, 2664.)

The administrator, who sits atop the management hierarchy,

reports to CareOne, ensures that the facility meets state and

federal regulations, and supervises all of the departments at

Somerset Valley, including those directly responsible for patient

care. (Id. at 2664.) The DON reports to the administrator,

 Somerset Valley, in October of 2011, changed its clinical 7

staffing model such that it no longer employs LPNs. (Dkt. entry

no. 83, Somerset Valley’s Hearing Br. at 3; dkt. entry no. 83-1,

Hoffman Decl. at ¶¶ 2-3.; see also SH Transcript 2 at 78.) 

Because Somerset Valley enacted such changes without the Regional

Director’s prior knowledge or consent, the Regional Director now

alleges that Somerset Valley improperly eliminated a segment of

the Somerset Valley workforce. He has thus filed new unfair

labor practice charges before the Board. (See dkt. entry no. 97,

SH Transcript 3 Sidebar Confs. at 3; dkt. entry no. 116, SH

Transcript 5 Sidebar Confs. at 7-8.)

The Amended Petition does not incorporate the new unfair

labor practice charges, and Somerset Valley’s changes to its

clinical staffing model do not control the resolution of this

matter. The Court accordingly notes but does not further address

that issue in this Memorandum Opinion.

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directly oversees clinical services and, in that capacity,

ensures both that the facility is adequately staffed with nurses

and CNAs, and that such employees provide adequate patient care. 

(See generally id. at 1991-2226.) The unit manager, who

represents the lowest level of management in this hierarchy,

reports to the DON, directly supervises the nursing employees,

and ensures adequate patient care. (Id. at 900; dkt. entry no.

26-1, Southgate Aff. at ¶ 1.) 

The Somerset Valley nursing employees attend to Somerset

Valley’s patients’ medical needs and assist those patients with

daily living activities. During the periods relevant to this

petition, RNs and LPNs administered medication and recorded such

administration on Medication Administration Records (“MARs”);

they similarly administered treatment, e.g., lotions, salves, and

bandages, and recorded administration of such treatments on 

Treatment Administration Records (“TARs”). (ALJ Hearing

Transcript at 162-63, 277, 908-09, 982, 2014-17.) Nurses also

transcribed doctors’ orders for medication and treatment onto

patients’ MARs and TARs, communicated with doctors and

pharmacies, and documented incidents that might affect patient

care, such as new admissions, falls, or new medical symptoms. 

(See, e.g., id. at 451-54, 586, 601, 909-11, 2505-07.) CNAs

assisted patients with daily living activities by, inter alia,

distributing food, helping patients eat, and cleaning patients. 

8

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(See, e.g., dkt. entry no. 26-9, Aguilar Aff. at ¶ 1; dkt. entry

no. 26-14, Onyeike Aff. at ¶ 1.)

 Somerset Valley refers to its nursing staff by employees’

respective level of education (i.e., RN, LPN, or CNA), scheduled

shift, and employment status. Nurses and CNAs typically work on

one of three shifts: (1) the morning shift (from 6:45 a.m. to

3:15 p.m., sometimes referred to as the 7-3 shift); (2) the

evening shift (from 2:45 p.m. to 11:15 p.m., sometimes referred

to as the 3-11 shift); or (3) the night shift (from 10:45 p.m. to

7:15 a.m., sometimes referred to as the 11-7 shift). (See ALJ

Hearing Transcript at 1407.) Nursing employees, based on their

weekly schedules, also fit into one of four employment status

categories: (1) full-time, for nurses who work forty or more

hours per week; (2) part-time with benefits, for nurses who work

at least twenty-four but less than forty hours per week; 

(3) part-time without benefits, for nurses who work regularly but

work less than twenty-four hours per week; or (4) per diem, for

employees who work only on an as-needed basis. (Id. at 1405-07.) 

Because per diem employees are essentially “on-call” -- because

they do not have set schedules -- they earn more money per hour

than their full- and part-time counterparts. (Id. at 1407.)

Somerset Valley’s staffing coordinator creates, updates, and

maintains the nursing staff’s “Master Schedule”. (Id. at 1186.) 

The Master Schedule is a four-week schedule created in Somerset

9

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Valley’s computerized scheduling, payroll, and labor management

system, “SmartLinks”. (Id. at 1198-1202, 1711-12, 2885; SH

Transcript 2 at 91.) 

The staffing coordinator must carefully key employee

schedules into SmartLinks because the information in SmartLinks

informs other Somerset Valley and CareOne systems. For example,

the information keyed into the Master Schedule informs and

controls employees’ ability to punch in or out at the employee

time clock. (ALJ Hearing Transcript at 1243, 1694, 1699-1700.) 

The time clock, when used by employees whose hours are not

correctly entered in the Master Schedule, will display an error

message. (Id. at 1243; SH Transcript 2 at 87-89.) An affected

employee must then decide whether to work without punching in,

thus creating a need for time card and payroll edits, or

interrupt a nursing manager to manually override the system. 

(ALJ Hearing Transcript at 1243, 1694, 1699-1700; SH Transcript 2

at 89.)

The information keyed into SmartLinks also informs other

CareOne and Somerset Valley reports and decision-making

processes. Managers working for both Somerset Valley and CareOne

can access SmartLinks remotely, working from any computer with an

internet connection. (ALJ Hearing Transcript at 1695.) 

Management can thus use the information in SmartLinks to analyze

labor costs, forecast hiring and scheduling needs, or address

payroll issues. (Id. at 1694.)

10

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II. The 2009 State Survey

The New Jersey Department of Health and Senior Services

(“NJDHSS”) visited Somerset Valley in the fall of 2009 to conduct

an annual inspection for compliance with state and federal

regulations (“State Survey”). (See Illis Decl. at ¶¶ 5-7; see

also ALJ Hearing Transcript at 378, 596, 1423-35.) 

During a typical State Survey, NJDHSS scrutinizes the

nursing department by examining charts, interviewing employees

and patients, and, generally, inspecting all aspects of a

facility’s nursing operations. (ALJ Hearing Transcript at 1423-

24.) If during the State Survey NJDHSS discovers violations of

state or federal regulations, it takes two steps. First, it

issues a report noting each “deficiency”, i.e., each violation of

the regulations, indicating the scope and severity of the

violation. (Id. at 1425-26.) Second, it penalizes the inspected

facility by, inter alia, issuing fines and requiring the facility

to take remedial steps to cure the deficiency cited in the NJDHSS

report. (Id.)

Upon the completion of the 2009 State Survey, NJDHSS noted

that Somerset Valley violated several regulations. (See, e.g.,

id. at 1423-35.) NJDHSS noted, for example, that Somerset Valley

failed to properly assess the pain experienced by a newly

admitted rectal cancer patient; NJDHSS also noted that Somerset

Valley failed to document the administration of medications. 

11

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(Id. at 1423-35; Illis Decl. at ¶¶ 5-7.) Based on these and

other violations, NJDHSS cited Somerset Valley for several 

“D-level” deficiencies and two “G-level” deficiencies. (ALJ

Hearing Transcript at 1425-26; dkt. entry no. 59-1, Resp. Ex.

33.) Such a G-level deficiency indicates that a patient suffered

actual harm during and because of the care rendered at Somerset

Valley. (ALJ Hearing Transcript at 1424-25.) NJDHSS thus

required Somerset Valley to submit a written plan of correction,

notified Somerset Valley that it would reinspect the facility,

and, ultimately, recommended a $5,400 fine. (Id. at 1435-37.)

Somerset Valley submitted a written plan of correction in

December of 2009, addressing the deficiencies noted in the 2009

report. (Id. at 1435-36.) NJDHSS accepted that plan and

reinspected Somerset Valley’s facility in January of 2010. (Id.

at 1436-37.) Upon reinspection, NJDHSS found that Somerset

Valley substantially complied with state and federal regulations. 

(Id. at 1435-38.)

Hutchens testified at the ALJ Hearing that, as a result of

the 2009 State Survey, there was “increased scrutiny on the

nursing department in [Somerset Valley]. Increased observation

of what the director of nursing was doing and what the nurses

themselves were doing. And a higher level of accountability from

the administrator and the DON . . . for the nursing staff.” (Id.

at 1449.) He also testified that such increased scrutiny led him

12

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to question the ability of Somerset Valley’s administrator,

Elizabeth Heedles, and its DON, Kamala Kovacs, to effectively

manage Somerset Valley’s nursing staff. (Id. at 1422, 1452-55.)

III. Scheduling Changes at Somerset Valley Caused Employees to

Seek Union Representation

In May of 2010, Heedles informed the Somerset Valley nurses

and CNAs of proposed scheduling changes that would take effect on

August 1, 2010. (Id. at 38, 42, 192, 288, 1221-22; dkt. entry no.

25-4, Napolitano Dep. at 42-46.) If adopted, these changes would

have caused many nurses and CNAs to lose regularly scheduled

hours and the status, pay, and benefits associated with those

hours. (ALJ Hearing Transcript at 38, 42, 192, 288, 1221-22.) 

For example, Sheena Claudio, a full-time LPN who worked during

the morning shift, was informed that she would either have to

switch to the evening shift or work on a per diem basis. (Id. at

42-44, 192.; dkt. entry no. 25-2, Claudio Dep. at 10-11.) 

Because the evening shift conflicted with her child care

responsibilities, Claudio would have been forced to work on a per

diem basis, thereby losing hours, pay, and the health benefits

that she enjoyed as a full-time employee. (See Claudio Dep. at

10-11.) Other employees, such as Shannon Napolitano, a full-time

LPN who worked during the morning shift, and Jillian Jacques, a

full-time LPN who worked during the evening shift, faced similar

challenges. (ALJ Hearing Transcript at 289-91, 487-88; Napolitano

Dep. at 46.)

13

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Napolitano, Claudio, Jacques, and other employees expressed

concern about the proposed changes. Some employees reached out

to CareOne by calling the “CareOne hotline”, a phone number

dedicated to patient and employee grievances. (ALJ Hearing

Transcript at 297-99, 923-25.) Jacques called CareOne and spoke

directly to Lee, who told Jacques that she was generally aware of

proposed scheduling changes but unaware of the extent and effect

of such changes. (Id. at 45-46, 487-89.) Lee also told Jacques

that she would investigate the matter. (Id.)

Lee thereafter visited Somerset Valley in June of 2010 and

met with approximately ten employees, including Napolitano,

Claudio, and Jacques. (Id. at 47-49, 190-91, 301-03, 491-93.) 

Because Lee explained during that meeting that she was only

generally aware of the scheduling issues, Claudio gave Lee a

memorandum from Heedles that outlined Heedles’ proposed changes. 

Other employees spoke to Lee about the proposed changes, related

staffing issues, and low employee morale. (Id. at 49-50, 301-

02.) At the end of the meeting, Lee again expressed, as she had

to Jacques, that she had been unaware of the extent and effect of

the proposed scheduling changes, and that she would investigate

the employees’ complaints. (Id. at 50, 301-03.) Lee failed,

however, to follow up with Jacques, Claudio, or any of the other

Somerset Valley employees. (Id. at 50.)

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Shortly after Lee’s visit, Napolitano and Claudio began

speaking to their co-workers about unionizing the Somerset Valley

workforce. (Id. at 44-45, 51, 293-95, 486, 926-27, 1189-90;

Napolitano Dep. at 50, 62; dkt. entry no. 25-6, Tyler Dep. at 

52-53, 55.) They also distributed an informal petition, calling

for employee support for unionization. (ALJ Hearing Transcript

at 53-54, 304-06.) Claudio thereafter called the Union and left

a message for Union organizer Brian Walsh, explaining the

Somerset Valley employees’ concerns and expressing their interest

in Union representation. (Id. at 51-52, 287-88, 296; SH

Transcript at 9.)

IV. The Union Organizing Campaign at Somerset Valley

A. Walsh’s First Meeting with Somerset Valley Employees

Walsh met Napolitano and Claudio in late June of 2010 at a

restaurant located near Somerset Valley. (ALJ Hearing Transcript

at 52-53; SH Transcript 1 at 9-10.) Napolitano and Claudio

showed Walsh their informal petition and, generally, provided

information about Somerset Valley, Somerset Valley’s employees,

and the issues faced by those employees. (ALJ Hearing Transcript

at 53, 304-05; SH Transcript at 9-10.) At the conclusion of the

meeting, Walsh, Napolitano, and Claudio scheduled a second

meeting and discussed the need to involve more Somerset Valley

employees. (ALJ Hearing Transcript at 53, 55, 304; SH Transcript

at 10.)

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Napolitano and Claudio returned to Somerset Valley, informed

their co-workers of their meeting with Walsh, and invited them to

attend the second meeting. (ALJ Hearing Transcript at 57-58, 66-

68, 308-10, 494-95, 862-63, 1189-90, 2625-30; dkt. entry no. 26-

2, Jacques Aff. at ¶ 2; dkt. entry no. 26-10 Jarbo Aff. at ¶ 2.) 

Jacques assisted their effort by informing employees who worked

during the evening shift. (ALJ Hearing Transcript at 68, 764;

dkt. entry no. 26-18, Lopez Aff. at ¶ 2.) Word of the meeting

spread throughout the Somerset Valley workforce. (See, e.g., ALJ

Hearing Transcript at 309, 764-65.) At least fifteen employees

thus knew of Napolitano’s and Claudio’s union organizing efforts

by the end of June of 2010, including LPN Jacquie Southgate and

scheduling coordinator Valarie Wells. (See id. at 57-58, 66-68,

308-10, 494-95, 764-65, 862-63, 1189-90, 2625-30; Jacques Aff. at

¶ 2; Jarbo Aff. at ¶ 2; Lopez Aff. at ¶ 2.) 

To assist the organizing campaign, Napolitano approached

receptionist Sheena Orozco and requested a list of all of the

employees who worked at Somerset Valley. (ALJ Hearing Transcript

at 306, 2631-32.) Although Orozco could not access a full

employee roster, she gave Napolitano a list of Somerset Valley’s

employees that she produced from memory. (Id. at 2631-32.) 

B. Walsh’s Second Meeting with Somerset Valley Employees

Walsh held a second meeting with Somerset Valley employees,

including Napolitano, Claudio, Jacques, and several per diem

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employees, approximately one week after the first meeting. (Id.

at 56, 307-08, 495; SH Transcript at 10-11.) At the second

meeting, Walsh explained the Union’s role in the union

organization process and stressed the need for the support of the

majority of the Somerset Valley workforce. (ALJ Hearing

Transcript at 56-57, 496.) He explained that they could petition

the Regional Director for a union election after they had

collected signed authorization cards from at least seventy

percent of the Somerset Valley workforce. (ALJ Hearing

Transcript at 496; dkt. entry no. 26-8, Walsh Aff. at ¶ 4.)

To assist their marketing efforts, Walsh, using the

information that Napolitano obtained from Orozco, helped the

employees that attended this meeting construct a chart listing

Somerset Valley’s employees. This chart identified department

leaders, employees who supported the Union, and employees who

might support the Union. (ALJ Hearing Transcript at 57, 62, 239-

41, 308.) Walsh also designated Napolitano, Claudio, and Jacques

as the “union organizing committee”, i.e., as “the leaders of the

campaign.” (SH Transcript at 11, 135, 168.) He gave them

disposable cameras and asked them to take pictures of employees

who supported the Union, for use in Union marketing materials. 

(See id. at 75-76, 311-12; Napolitano Dep. at ¶¶ 60-61.) He

asked them, and asked the other employees at the meeting, to talk

to other Somerset Valley employees about the union organization

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process, to distribute authorization cards, and to collect the

signed authorization cards. (ALJ Hearing Transcript at 495; SH

Transcript at 11.) 

C. Distribution and Collection of Authorization Cards

Napolitano, Claudio, and Jacques distributed the

authorization cards at Somerset Valley in the break room, at

nursing carts, at the nurses’ station, and in the parking lot.

(ALJ Hearing Transcript at 73-74, 312, 316, 501, 821-22; SH

Transcript at 168-72.) Within three weeks, fifty-two Somerset

Valley employees signed and returned authorization cards to the

Union. (Walsh Aff. at ¶ 4; see also ALJ Hearing Transcript at

72, 76, 314-16, 501, 504, 824, 1009, 1144-48 (demonstrating that

Napolitano, Claudio, Jacques, per diem CNA Daisy Aguilar, per

diem CNA Gertrudis Rodriguez, secretary Lynette Tyler, and others

signed authorization cards); dkt. entry no. 26-12, Joseph Aff. at

¶ 3 (same, with respect to per diem CNA Dominique Joseph); dkt.

entry no. 26-16, Stubbs Aff. at ¶ 2 (same, with respect to per

diem CNA Annie Stubbs); Lopez Aff. at ¶ 3 (same, with respect to

full-time CNA Grace Lopez).) These fifty-two employees

represented approximately eighty percent of the Somerset Valley

workforce. (See Walsh Aff. at ¶ 4.)

D. Communication with Somerset Valley Management Personnel

Napolitano, Claudio, and Jacques testified that they were

uncertain whether the acting Somerset Valley administrator and

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DON knew of the organizing effort. (See, e.g., ALJ Hearing

Transcript at 273.) Claudio testified, however, that she

regularly shared information about the organizing campaign with

Southgate. (Id. at 273, 279-80.) Southgate regularly asked

about the organizing campaign’s progress and whether Napolitano,

Claudio, and Jacques had collected enough authorization cards to

file a petition for a union election. (Id. at 279-80.)

E. Filing the Union Petition

Napolitano sent messages to Southgate and other Somerset

Valley employees on July 22, 2010, notifying them that she

intended to file a petition for a union election later that day. 

(ALJ Hearing Transcript at 331-32.) Napolitano, Jacques, and

Walsh, inter alios, went to the Board and filed the petition that

afternoon. (Id. at 331, 511.) 

Somerset Valley received notice of the petition on or about

July 28, 2010. (Id. at 1459.) Heedles thereafter distributed a

memorandum to Somerset Valley’s employees, notifying them that

Somerset Valley had received notice of the petition and informing

them that Somerset Valley would begin holding meetings with the

employees to discuss issues related to union representation. 

(Jacques Aff. at ¶ 5; dkt. entry no. 35-10, GC Ex. 9.) 

V. Somerset Valley Instituted Organizational / Management

Changes Following the Filing of the Petition

Hutchens and Lee visited and met with employees at Somerset

Valley soon after receiving notice of the petition. They

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informed the employees that they had transferred Heedles to

another CareOne facility because they recognized issues at

Somerset Valley. (ALJ Hearing Transcript at 337-38, 512-13,

1469-72.) Hutchens then introduced Somerset Valley’s new

administrator, Doreen Illis. (Id.) 

Somerset Valley soon announced other organizational changes,

terminating Kovacs’s employment and transferring the unit manager

to a different facility. In their place, Somerset Valley hired

Inez Konjoh as the new DON and promoted Southgate to unit

manager. (Id. at 67-68, 194-95, 338-41, 1993, 2683.)

VI. The Union and Somerset Valley Electioneer for the Votes of

the Somerset Valley Workforce

In the period after the petition was filed and before the

September 2, 2010 union election, both the Union supporters and

Somerset Valley actively electioneered for the votes of the

Somerset Valley workforce. The Court endeavors, here, to

summarize these efforts with appropriate citation to the record.

A. Ongoing Union Meetings and Communication

During the election campaign, Walsh held regular Union

meetings at area restaurants, at hotels, and in employees’ homes. 

(Id. at 77-79, 317-18, 825, 1008; SH Transcript at 15-17.) Each

meeting was held in two shifts, thus allowing Somerset Valley

employees to attend meetings without interrupting their work

schedules. (See ALJ Hearing Transcript at 319; dkt. entry no.

26-8, Walsh Aff. at ¶ 5.) Attendance fluctuated; generally,

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however, between fifteen and twenty employees attended each

meeting. (ALJ Hearing Transcript at 77-79; SH Transcript at 119-

22.)8

Walsh and other Union employees also regularly called and

visited Somerset Valley employees. (SH Transcript at 25-26, 29-

30; dkt. entry no. 26-19, Venette Aff. at ¶ 2.) Using

information gathered from the authorization cards and the

Excelsior List, Walsh communicated information about the Union

and the upcoming election both in phone and face-to-face. (Id.)9

B. Pro-Union Leaflets and Materials

1. The “Talking Heads Piece” 

In late August of 2010, the Union distributed copies of a

two page leaflet featuring pictures of and quotes attributed to

Somerset Valley employees who supported the Union (the “Talking

Heads Piece”). (See dkt. entry no. 35-10, GC Ex. 10; SH

Transcript at 31-32.) The Union mailed a copy of the Talking

Heads Piece to all of the Somerset Valley employees whose names

appear on the Excelsior List. (SH Transcript at 31-32.) On the 

 Walsh maintained sign-in sheets for each meeting. (SH 8

Transcript at 17-22; see also Supplemental Hearing Exhibit (“SH

Ex.”) P-1.)

 An Excelsior List, named for Excelsior Underwear, Inc., 9

156 NLRB 1236 (1966), contains information about bargaining unit

employees. Such a list typically contains the names and home

addresses of such employees. See 156 NLRB at 1240-42. (See also

SH Transcript at 32; dkt. entry no. 38-2, Excelsior List.)

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first page, the Talking Heads Piece proclaims, “We’re Voting Yes

for 1199SEIU!” (GC Ex. 10.) The first page also describes the 10

Union as “[t]he strongest, most effective union for nursing home

workers in upstate New York and through the country”. (Id.) On

the second page, it states, “Our Opportunity to Vote Yes is

Here!” (Id.)11

Napolitano, Jacques, Wells, Stubbs, and Rodriguez are among

the Somerset Valley employees whose pictures appear in this

leaflet. (Id.; see ALJ Hearing Transcript at 88-89, 508, 826-27,

862, 1009, 1194-95.) Each picture is accompanied by a quote,

attributed to that employee, that demonstrates her support for

the Union. (GC Ex. 10.) Napolitano, for example, is quoted as

stating, “I’m voting yes for better health insurance and job

security.” (Id.) Quotes attributed to Wells, Jacques, Stubbs,

and Rodriguez demonstrate similar Union support. (Id.)

2. The Union’s YouTube Video

During a meeting at Jacques’s home, Walsh and several of the

Somerset Valley employees recorded a video demonstrating Somerset

Valley employees’ support for the Union (the “YouTube Video”). 

(GC Ex. 11; ALJ Hearing Transcript at 505-509; SH Transcript at

 The Talking Heads Piece also proclaims, “Vamos a Votar sí 10

por 1199SEIU!” (GC Ex. 10.)

 The Talking Heads Piece also states, “Nuestra oportunidad 11

de votar Sí está aquí!” (GC Ex. 10.)

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31-32.) Wells, Claudio, Jacques, and several other nurses and 12

CNAs appear in the YouTube Video, expressing their desire for

Union representation and the rationale supporting their position. 

(GC Ex. 11; ALJ Transcript Hearing at 90-91, 508, 1010, 1194-95.) 

The YouTube Video was uploaded onto YouTube.com

approximately two weeks before the election. (ALJ Hearing

Transcript at 1362.) Shortly before the election, copies were

also mailed to the Somerset Valley employees whose names appear

on the Excelsior List. (Id.; SH Transcript at 31-32.)

3. Union Stickers and Bracelets

During the election campaign, Walsh distributed stickers

that the nurses and CNAs could wear to demonstrate Union support. 

(See ALJ Hearing Transcript at 319, 506.) The stickers were

purple and contained two blocks of text. (Id. at 193; dkt. entry

no. 35-10, GC Ex. 8.) The first block of text was printed in

large, yellow letters and stated, “Respect”. (ALJ Hearing

Transcript at 193; GC Ex. 8.) Below that, in smaller, white

letters, the second block of text stated, “Nursing Home Workers

Uniting for Quality Care and Quality Jobs 1199SEIU”. (ALJ

Hearing Transcript at 193; GC Ex. 8.) 

 GC Ex. 12 is a digital video recording the YouTube video. 12

Because GC Ex. 12 constitutes physical evidence, it has not been

docketed. As noted in the text, however, this video also

appeared on YouTube. On YouTube, it was broken into two parts. 

See CareOne Workers Speak Out, YOUTUBE.COM,

http://www.youtube.com/watch?v=O3fJNtBiu8M (last visited Apr. 12,

2012); CareOne Workers Speak Out PART II, YOUTUBE.COM,

http://www.youtube.com/watch?v=5sVo5IXzh8I (last visited Apr. 12,

2012).

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Approximately twenty nurses and CNAs, including Napolitano,

Claudio, and Jacques, wore the stickers during the campaign. 

(ALJ Hearing Transcript at 85, 193, 319-20, 506, 615.) Jacques

wore it on the left side of her chest; Napolitano wore it on her

left shoulder. (ALJ Hearing Transcript at 319, 506.)

4. Materials Distributed by the Union at the Bottom

of the Somerset Valley Driveway

Somerset Valley generally prohibited Union employees from

entering the Somerset Valley grounds. (SH Transcript at 14.) 

Approximately two weeks before the election, however, Walsh and

other Union employees visited Somerset Valley during the

afternoon shift change, i.e., between 2:45 p.m. and 3:15 p.m., to

distribute fliers and ensure that the Union was visible to the

Somerset Valley workforce. (Id. at 36-37; Venette Aff. at ¶ 2.) 

They stood at the bottom of Somerset Valley’s driveway, in the

shoulder of U.S. Route 22, distributing fliers to any employees

who would stop and open their car windows. (SH Transcript at 36-

37; Venette Aff. at ¶ 2.) After a short time, police arrived,

told the Union employees that their distribution posed a safety

hazard, and asked them to leave. (Venette Aff. at ¶ 2.)

Because Walsh generally lacked access to the Somerset Valley

grounds, he relied upon Napolitano, Claudio, and Jacques to

distribute literature to the other Somerset Valley employees. 

(SH Transcript at 14-15.)

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C. Somerset Valley’s Meetings with its Employees

1. Description of Meetings

Somerset Valley hosted three additional staff meetings in

July and August of 2010 to discuss matters relating to the

pending union election. (See ALJ Hearing Transcript at 101-03,

512, 688, 766, 864-66, 1027-28, 1201, 2647-55, 3089; Lopez Aff.

at ¶ 6; Tyler Dep. at 110-15.) Employee attendance at these

meetings was mandatory. (ALJ Hearing Transcript at 334, 512;

Lopez Aff. at ¶ 2.) 

Hutchens and Lee attended and spoke at the first meeting. 

(ALJ Hearing Transcript at 101-03, 333-34, 766; Tyler Dep. at

111-15, 1459-60.) Before it began, Joseph, believing that Lee 13

worked for the Union, approached Lee and spoke openly about her

support for the Union. (Id. at 767-68.) 

Hutchens thereafter opened the meeting by introducing

himself and Lee to the staff, and expressing his disappointment

that the employees filed a petition for a union election. (Id.

at 336; Tyler Dep. at 111.) Lee then spoke to the employees,

stating that Somerset Valley preferred to remain a union-free

environment. (ALJ Hearing Transcript at 101-02, 1013-14; Tyler

Dep. at 112-15.) She informed the employees that, in future

 Although referred to as one meeting, it actually 13

consisted of several smaller meetings held throughout the

workday, thus allowing employees from all shifts to attend. 

(ALJ Hearing Transcript at 1459-60, 3089.)

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meetings, Somerset Valley would campaign for their support, would

play videos and otherwise distribute information about the Union,

and afford the employees an opportunity to ask questions. (ALJ

Hearing Transcript at 101-03, 336.) Lee also encouraged

employees to approach management to discuss whatever changes the

employees felt were necessary. (Id. at 1013-14.)

Hutchens and Illis attended and spoke at the second meeting. 

(Id. at 103-04, 769-772.) Hutchens stated at the outset of the

meeting that he did not want to discuss the Union but, instead,

wished to discuss the employees’ issues and concerns. (Id. at

341-42, 1475.) Both Hutchens and Illis asked the employees to

give management an opportunity to resolve the employees’ issues

and to “turn things around”. (Id. at 105, 515, 1021.) Hutchens

noted, however, that it would be illegal for him to make

immediate changes. (Id. at 343.)

Claudio, Tyler, and others spoke at the meeting, raising

individual concerns. (Id. at 104-06, 341-43, 865-88, 1014-18.) 

Claudio, for example, stated that CareOne earlier failed to

respond to the employees’ complaints about Heedles and about

Heedles’s proposed schedule changes. (Id. at 105-06.) Stubbs

told Hutchens that the staff needed but lacked access to plastic

bags used to dispose of dirty linens. (Id. at 865.) 

Hutchens and Illis took action upon the employees’

complaints. During the meeting, Hutchens told employees to

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contact him directly if they needed to discuss issues. (Id. at

106-07.) Furthermore, he posted notices at Somerset Valley,

listing his cellular telephone number, Illis’s cellular telephone

number, and contact information for other CareOne

representatives. (Id.) Hutchens also directed Illis to

distribute the plastic bags that Stubbs spoke of to the

employees, and Illis distributed them during the next morning

shift. (Id. at 865, 1472-73.)14

Hutchens returned to Somerset Valley shortly before the

election with Chris Foglio, CareOne’s Chief Executive Officer.

They met with the employees in the Somerset Valley sunroom. (Id.

at 1027-28, 2348-50, 2653-55, 2090.) Hutchens assured the

employees that Somerset Valley would not retaliate against

individual employees if they voted in favor of the Union. (Id.

at 2654.) Foglio spoke about benefits that CareOne provided or

planned to provide for Somerset Valley employees, including

tuition reimbursement and low-cost housing. (Id. at 1027-28,

2348-50.)

 Illis, at the ALJ Hearing, expressly denied soliciting 14

grievances from or making promises to any of the Somerset Valley

employees. (Id. at 2691-92.) The ALJ discredited such testimony

in light of the employees’ testimony that Illis distributed these

bags. (ALJ Decision at 39, 41.) The Court, here, does not

render an opinion on Illis’s credibility but merely notes the

discrepancy in the record.

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2. Anti-Union Videos and Printed Materials

Before the union election, Somerset Valley and CareOne

management representatives played anti-union videos for and

distributed anti-union literature to the Somerset Valley

workforce. (See, e.g., ALJ Hearing Transcript at 770, 865-66;

Lopez Aff. at ¶ 6.) Somerset Valley also posted anti-union

literature in the employees’ break room, in the medication room,

and in corridors throughout the facility. (Id. at 544-49.) 

These videos and literature highlighted the negative aspects of

union representation. (See, e.g., dkt. entry nos. 35-13 to 

35-14, GC Ex. 41; dkt. entry no. 35-14, GC Ex. 42.)15

3. Somerset Valley’s Meetings Amongst Management

Personnel

Somerset Valley management personnel, including Hutchens,

Lee, Illis, Konjoh, and Southgate, met regularly during the

campaign period to discuss Somerset Valley’s electioneering

efforts. (ALJ Hearing Transcript at 942-52, 3081-88; Southgate

Aff. at 3.) The management personnel discussed the disadvantages

of working at a unionized facility and how best to communicate

such disadvantages to the Somerset Valley workforce. (ALJ

Hearing Transcript at 945-46.)

Management personnel, when meeting, often met with Patrick

Fleming, an attorney acting as a legal and human resources

 GC Ex. 41 is split between docket entry numbers 35-13 and 15

35-14. GC Ex. 42 appears only at docket entry number 35-14.

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consultant. (Id. at 945, 3079-88.) Fleming counseled Somerset

Valley’s management regarding what constituted acceptable or

unacceptable communication with Somerset Valley’s employees

during the election campaign. (Id. at 945-47.) Fleming also

reviewed the Excelsior List with management, to determine which

employees supported management and which supported the Union. 

(Id. at 947-52.) Southgate testified at the ALJ Hearing that, to

that end, Somerset Valley management identified Claudio, Tyler,

Stubbs, and Jacques as Union supporters. (Id. at 948-50.) 

Southgate also testified that the Somerset Valley managers were

aware of and discussed the Talking Heads Piece and the YouTube

video. (Id. at 951-52.) At the ALJ Hearing, Illis confirmed

that she received and reviewed the Talking Heads Piece and was

aware of the YouTube video before the election. (Id. at 3099-

101.)16

4. Somerset Valley Management Questioned Employees

About Union Sympathies and the Upcoming Election

Fleming instructed Somerset Valley’s management to approach

employees and convey information about the disadvantages of union

representation, to question them about Union sympathies, and to

attempt to convince them to vote against unionization in the

 Illis denied knowing that specific employees supported 16

the Union. (See ALJ Hearing Transcript at 3098-99.) Such

testimony, however, conflicted with both: (1) her admission that

she saw the Talking Heads Piece; and (2) Southgate’s testimony,

as detailed above. (See id. at 948-52, 3099-3101.)

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election. (Id. at 946; Southgate Aff. at 5.) Southgate

testified:

A . . . initially, we were told just to try to talk

to them, but that we couldn’t put undue pressure

on them, but just try to feel them out, how they

stood.

Q And you said initially.

A Right. 

Q Did that change at any time? 

A As time went on there was less concern about how

careful you were about the way you talked to them,

and we were assigned individual people to talk to.

(ALJ Hearing Testimony at 946.)

Jarbo, Claudio, Stubbs, and Tyler corroborated Southgate’s

testimony; each testified about encounters with Somerset Valley’s

management. Jarbo testified that a management employee named

“Jessica” followed her into the supply room. (Id. at 692-93.)

While they were alone, Jessica asked Jarbo how she intended to

vote in the election. (Id. at 693-94.) Jarbo responded that she

was uncertain and, further, that she did not know if she would

attend the election. (Id. at 693.) Prior to this conversation,

Jessica and Jarbo had only spoken on one occasion; they never

spoke thereafter. (Id. at 689, 695.)

Claudio testified that Konjoh approached her, in the supply

room, approximately one week before the election. (Id. at 108-

11.) Konjoh entered and closed the door to the supply room, and

told Claudio that she was asking all of the employees how they

intended to vote in the election. (Id. at 108.) When Claudio

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responded that she was uncertain how she would vote, Konjoh

encouraged Claudio to vote “No”. (Id.)

Stubbs testified that she was approached by management on

two separate occasions. On the first occasion, Konjoh approached

and questioned her after one of the Somerset Valley staff

meetings, when she was alone. (Id. at 867.) Konjoh asked Stubbs

how she felt about the Union, and stated both that: (1) Konjoh

knew that the Union represented Stubbs at Stubbs’s other place of

employment; and (2) Somerset Valley did not want to unionize the

workforce. (Id.) Stubbs did not respond. (Id.)

On the second occasion, Geraldo, an employee from the

Somerset Valley billing department, approached Stubbs while she

was alone in the employee break room. (Id. at 867-68, 882-84.) 

Stubbs testified that Geraldo, like Konjoh, stated that: (1) he

was aware that the Union represented Stubbs at her other place of

employment; and (2) “they” did not want to unionize the Somerset

Valley workforce. (Id. at 868, 884.) Geraldo gave Stubbs a

flier and told her that the Union would charge her dues. (Id.)

Tyler also testified that Illis twice approached her and

asked questions about the Union and the upcoming election. 

During their first encounter, Illis approached Tyler, while she

was alone in the employee break room, and asked Tyler why the

employees wanted a union. (See id. at 1019-20, 1022.) Tyler

responded, “Why not?”. (Id.) Tyler testified that, during their

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second encounter, Illis asked how Tyler intended to vote in the

election. (Id. at 1022.) When Tyler responded that she was

unsure, Illis asked Tyler to inquire of other employees how they

intended to vote and to attempt to convince them to vote against

unionization. (Id. at 1023-24.) 

VII. The Election

The Union election took place on September 2, 2010. (Id. at

517.) Jacques and Napolitano served as observers for the Union,

holding signs and directing employees to voting stations. (See

id. at 345, 2951, 3105.) 

The Somerset Valley workforce voted in favor of the Union,

with thirty-eight votes for and twenty-eight votes against. (SH

Transcript at 115; see also dkt. entry no. 35-10, GC Ex. 3.) 

Five additional votes, including Wells’s vote, were challenged. 

(GC Ex. 3; ALJ Hearing Testimony at 1196.) Somerset Valley

challenged Wells’s vote because she was not part of the eligible

Somerset Valley workforce, i.e., the employees eligible to vote

in the election. (ALJ Hearing Testimony at 1196; see also dkt.

entry no. 26-7, Wells Aff. at ¶ 7.)17

 Before the election, Somerset Valley and the Union 17

entered into a Stipulated Election Agreement that, inter alia,

defined the class of employees eligible to vote in the election. 

(See dkt. entry no. 35-10, Stip. Election Agreement.) Wells, as

a staffing coordinator, was not eligible. (See id. (noting that

collective bargaining unit excluded, inter alia, “staffing

coordinators).)

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VIII. Employee Discipline

Following the election, Konjoh and Illis began disciplining

employees for a variety of infractions, including absence,

tardiness, and job performance. (See ALJ Hearing Transcript at

94-98, 122-23, 131-32, 137-38, 150, 170-74, 353, 362-68, 525,

536-37, 567, 597-99, 1178-81, 1273-76, 2011-12, 2021, 2030-35,

2145-57, 2180-84, 2190-2205, 2214-25, 2231-39, 2563-69, 2714-43,

2907-09, 2950-59.) Somerset Valley recognizes that Illis and

Konjoh did not immediately address such issues; in fact, Somerset

Valley did not mete out post-election discipline until 

approximately six weeks after Illis joined the Somerset Valley

management staff. Somerset Valley contends, however, that such

delay was caused by Illis’s and Konjoh’s respective needs to

familiarize themselves with the Somerset Valley staff, review

patient records, and, generally, settle in to their new roles. 

(See id. at 2010-12, 2675-76.) The Regional Director disagrees

with this characterization of events, and argues instead that

Somerset Valley was motivated by Union animus. (See, e.g., Am.

Petition.)

Napolitano, Wells, Claudio, and Jacques testified at length

about the discipline that they received following the Union

election. They also testified about the discipline, or lack

thereof, received by other employees. Illis, Konjoh, and other

Somerset Valley and CareOne employees also testified on these

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matters. The Court summarizes such testimony, with appropriate

citations to the record, in the sections that follow.

A. Somerset Valley’s Disciplinary Policies

Somerset Valley purportedly followed a disciplinary policy

premised upon “progressive discipline”. (ALJ Hearing Transcript

at 2579-80.) Under a system of progressive discipline, employee

discipline begins with a “documented verbal warning” and

progresses to “written warnings”, including a “final written

warning”. (Id.) The final written warning represents the last

step before termination of employment. (Id.) On a case-by-case

basis, Somerset Valley might deviate from progressive discipline

based upon an employee’s disciplinary history and the severity of

the offense at issue. (Id.)

Several employees indicated that before the Union election

Somerset Valley did not regularly discipline its employees. The

employees uniformly testified, for example, that before the Union

election Somerset Valley did not discipline employees for

tardiness or absenteeism. (See, e.g., id. at 347-51.) Several

employees also testified that before the election supervisors did

not regularly check patient records for completeness or accuracy,

or issue discipline upon discovering any such errors. (Id. at

165-67; Napolitano Dep. at 87-88.) In lieu of discipline,

supervisors would conduct on-the-job education to prevent

similar, future errors. (ALJ Hearing Transcript at 678, 2022-29;

dkt. entry no. 26-3, Jacques Supp. Aff. at ¶ 3.) 

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B. Discipline Received by Napolitano

1. Pre-election Discipline for Failing to Properly

Document a Patient’s Pain Assessment

Napolitano received her first documented discipline, a

written warning, from Somerset Valley in January of 2010,

approximately four months before Claudio contacted the Union. 

(See Napolitano Dep. at 107-08; dkt. entry no. 35-13, GC Ex. 33.) 

This discipline relates to Napolitano’s failure to properly

document pain assessments during the September 2009 State Survey. 

(Napolitano Dep. at 107-08.) Pursuant to Somerset Valley policy,

Napolitano should have documented her pain assessments at the end

of her shift; however, pursuant to her understanding of Somerset

Valley policy and instruction received during the 2009 State

Survey, Napolitano documented pain assessments for all of the her

patients, and for the entirety of her 7:00 a.m. to 3:00 p.m.

shift, at 8:00 a.m. (See ALJ Hearing Transcript at 363, 377-79.) 

2. Pre-election Verbal Warning for Failing to

Properly Document TARs

Somerset Valley’s records demonstrate that Napolitano may

have received a verbal warning for failing to properly document

administration of patient treatments in June of 2010. (See dkt.

entry no. 35-12, GC Ex. 30.) Her employee file contained a

Notice of Disciplinary Action, purportedly documenting a verbal

warning for errors committed on June 10, 2010 and June 14, 2010. 

(See id.) This Notice is not, however, signed by either

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Napolitano or the acting DON. (See id.; ALJ Hearing Transcript

at 346.) Napolitano denies knowledge of the Notice and similarly

denies receiving a verbal warning for the alleged documentation

errors referenced therein. (ALJ Hearing Transcript at 346.)

3. Post-election Discipline for Tardiness

Napolitano received her first post-election discipline on

September 13, 2010. Illis, approximately one month after joining

Somerset Valley as its administrator, ran queries in SmartLinks

to determine which employees offended Somerset Valley’s policies

on tardiness and absenteeism. (ALJ Hearing Transcript at 2713-

14.) While reviewing the resulting report, Illis identified at

least six “repeat offenders”, including Napolitano, Claudio, and

Jacques, and notified their respective supervisors. (See id. at

111-13, 121-22, 2034-76, 2714.) Per Illis, these supervisors

decided whether to mete out discipline. (Id. at 2714.) 

Napolitano’s supervisor, Konjoh, issued a written warning to

Napolitano for tardiness. In pertinent part, Konjoh stated in

that discipline that Napolitano “ha[d] been late 93 times since

1/1/10 and 9 times in the last 30 days[.] This is excessive and

unacceptable. Her attendance needs immediate improvement or may

result in termination upon the next episode of lateness.” (Id.

at 353, 2055; dkt. entry no. 35-13, GC Ex. 33.) 

Napolitano admitted that she regularly began working at 7:00

a.m., approximately fifteen minutes after her shift began. 

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(ALJ Hearing Transcript at 352.) She further admitted that she

acted without management’s explicit approval and acknowledged

that her tardiness impacted patient care, inasmuch as she was

unable to speak with nurses that worked with her patients during

the preceding shift. (Id.; Napolitano Dep. at 16-18, 21-23, 79-

82.) She nonetheless assumed that it was okay to come in late

because she had never been reprimanded for doing so. (Napolitano

Dep. at 17-18, 79-81; see ALJ Hearing Transcript at 352.)

4. Post-election Discipline for Distribution of

Discontinued Medication, Improper Distribution of

Medication, and Improper Documentation

Napolitano received her final discipline from Somerset

Valley on September 17, 2010. (ALJ Hearing Transcript at 94, 99,

108-09.) This discipline stems from three issues: (1) the

distribution of discontinued medication; (2) improper

distribution of medication; and (3) improper documentation of a

patient’s pulse oximeter reading. (Id. at 94-98.) 

The first and second issues relate to Napolitano’s

administration of a pink zinc oxide pill to “Patient 15W”. (See

id. at 89-93, 359-69, 2145-57, 2380-81, 2563-69.) On or about

September 16, 2010, Patient 15W indicated that only one nurse

regularly dispensed her pink pill. (Id. at 2146-47; dkt. entry

no. 25-16, Konjoh Decl. at ¶¶ 5-6.) Presumably, Patient 15W was

not complaining about Napolitano; to the contrary, it appears

that Patient 15W was frustrated that other nurses were not

dispensing this pill. (See ALJ Hearing Transcript at 2146-47.)

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Konjoh, upon receipt of Patient 15W’s complaint, interviewed

her, reviewed her MARs, and determined that Patient 15W should

not have received any pink pills. (ALJ Hearing Transcript at

2147; Konjoh Decl. at ¶ 6.) Although Patient 15W had earlier

received a pink pill, zinc oxide, such medication had been

discontinued in August of 2010. Konjoh nevertheless discovered

that nurses charted administration of the pink zinc oxide pill

four times after its discontinuation; the charts demonstrated

Patient 15W had received the zinc oxide pill twice from

Napolitano, on August 15, 2010 and on August 30, 2010, and twice

from other nurses. (ALJ Hearing Transcript at 376.) Konjoh also

discovered that instructions to administer this medication

appeared on the August MAR but not on the September MAR. (Id. at

367-68, 375-76; see dkt. entry no. 35-13, GC Ex. 32.) 

18

Generally, when a doctor discontinues medication, the nurses

receiving the discontinuation order should follow two steps. 

(See ALJ Hearing Transcript at 363-64.) First, they should note

on the affected patient’s MAR that the medication has been

discontinued, by either highlighting the MAR entry or writing

“DC” next to it. (Id.) Second, these nurses must remove the

discontinued medication from the medication cart, the cart used

by shift nurses to transport and dispense medications. (Id. at

 GC Ex. 32 was mislabeled as GC Ex. 33 at the ALJ Hearing. 18

It was, however, properly introduced as GC Ex. 32. (See ALJ

Hearing Transcript at 369, 374-77; GC Ex. 32.) 

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136, 363-64.) Here, upon receiving the discontinuation order for

zinc oxide, nurses appropriately noted on Patient 15W’s August

MAR that the zinc oxide was discontinued and, accordingly, did

not “carry it over” to the September MAR; they did not, however,

remove the zinc oxide pills from the medication cart. (See id.

at 136, 358-59, 367-68, 375-76; see also GC Ex. 32.) 

Because the zinc oxide pill had been discontinued, neither

Napolitano nor the other nurses treating Patient 15W should have

administered it. (See ALJ Hearing Transcript at 2147; Konjoh

Decl. at ¶ 6.) Konjoh nonetheless failed to search for the

discontinued medication on or remove the discontinued medication

from the medication cart. (See ALJ Hearing Transcript at 89-92

(demonstrating that Napolitano, on September 17, 2010, dispensed

zinc oxide pills from the medication cart).) She instead simply

instructed Patient 15W to refuse the pink pill if offered it

again, by any nurse. (Id. at 366, 2147.)

Napolitano, during her September 17, 2010 shift, took the

pink pill from the medication cart and gave it to Patient 15W. 

(Id. at 89-91, 359.) Napolitano watched Patient 15W put this and

other pills in her hand and lift them to her mouth; she thus

assumed that Patient 15W actually ingested the pills. (Id. at

89-91, 93, 360-61.) Patient 15W did not, however, ingest the

zinc oxide pill. (Id. at 90-91.) Instead, she called for

Konjoh, to whom she reported the incident and handed the pill. 

(Id. at 90-91, 359-61, 363, 366, 2145-57, 2563-69.)

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The third issue referenced in the September 17, 2010

discipline relates to improper documentation of a patient’s pulse

oximeter reading. A pulse oximeter measures oxygen concentration

in a patient’s bloodstream. (See id. at 94-95, 362, 368.) 

During her September 17, 2010 shift, Napolitano documented a live

patient’s pulse oximeter reading as zero. (Id. at 94-95, 369.) 

Generally, a documented pulse oximeter reading of “zero” 

indicates that the documentation is incorrect, the reading was

incorrect, or the patient at issue is dead. (See id. at 95.) 

Konjoh and Illis met and discussed these issues with

Napolitano on September 17, 2010, approximately three hours

before the end of her shift. (Id. at 94, 361-62, 367-68.) 

During the meeting, Napolitano signed a typed document,

acknowledging that she erred by giving Patient 15W zinc oxide

pills on four occasions, by failing to observe Patient 15W

actually ingest the pill on September 17, 2010, and by

incorrectly documenting a patient’s pulse oximeter reading. (Id.

at 98, 108-09; dkt. entry no. 35-13, GC Ex. 34; Napolitano Dep.

at 98.) She also admitted that she had dispensed Patient 15W’s

medication from memory, rather than by reference to Patient 15W’s

MAR. (ALJ Hearing Testimony at 2152.)19

 Konjoh testified that, during this meeting, Napolitano 19

admitted that she administered Patient 15W’s medication from

memory. Napolitano, by contrast, testified that she had, in

fact, checked the MAR before administering the zinc oxide. (See

ALJ Hearing Transcript at 89-90; Napolitano Dep. at 83.)

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Napolitano, however, then contended and now contends that

she would have recognized and corrected the pulse oximetry

documentation error at the end of her shift, while reviewing all

of her patient records. (Id. at 95, 369.) Napolitano regularly

carried and updated a piece of paper upon which she wrote the

names of her patients, their vital signs, and, sometimes, their

treatments and medications: “you know, [a] piece of paper [that]

has all the patients[’] names on it and I put their vitals, their

notes that I gave the medication or something extra like next to

their name[.]” (Id. at 165, 369.) She further testified that

she could use this paper to refresh her recollection and aid the

completion or correction of her patients’ charts at the end of

her shift, and that such practice accorded with Somerset Valley’s

long-standing nursing practices. (See id. at 369-71, 391-92.)

5. Napolitano’s Termination

Konjoh and Illis, at the end of their September 17, 2010

meeting with Napolitano, and only two weeks after the Union

election, gave Napolitano a termination letter. (Id. at 97; dkt.

entry no. 35-13, GC Ex. 35.) The letter states that Somerset

Valley terminated Napolitano’s employment for

failure to perform essential nursing duties [and] to

provide proper patient care, including, but not

necessarily limited to, your failure to properly

document the oxygen saturation level for a resident,

your failure to properly administer medication

to a resident, and your failure to properly verify and

administer the correct medication to a resident,

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resulting [in] the administration of incorrect

medication to a resident. 

(GC Ex. 35.) The letter also notes that Napolitano had earlier

received a final written warning relating to improper patient

care. (Id.) It did not, however, reference the September 13,

2010 discipline for tardiness. (See id.; see also ALJ Hearing

Transcript at 2741-42.)

C. Discipline Received by Wells

Wells held multiple roles at Somerset Valley. (See ALJ

Hearing Transcript at 1185-88.) She began working at the

facility as a CNA in 1994 and continued in that capacity until

2008, when she began serving as a part-time CNA and part-time

staffing coordinator. (Id. at 1185-86.) In January of 2010,

Wells assumed the staffing coordinator’s responsibilities on a

full-time basis. (Id. at 1188; see Wells Aff. at ¶ 1.)

As the scheduling coordinator, Wells had responsibility for

maintaining and updating Somerset Valley’s Master Schedule;

reconciling discrepancies in SmartLinks, i.e., differences

between an employee’s schedule, as keyed into SmartLinks, and the

hours actually worked by that employees; publishing schedules and

work assignments for each of the RNs, LPNs, and CNAs; submitting

census reports, i.e., reports about patient occupancy, to

CareOne; and ensuring adequate staff levels by filling shifts

abandoned by absent or unavailable employees. (ALJ Hearing

Transcript at 1186, 1198-1202, 1204-11, 1217, 1825.)

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1. Pre-election Discipline

Somerset Valley issued documented verbal warnings to Wells

on January 8, 2010 and March 4, 2010. (Id. at 1230-32; dkt.

entry no. 35-16, GC Ex. 67 (documenting January 8, 2010

discipline; dkt. entry no. 35-16, GC Ex. 68 (documenting March 4,

2010 discipline).) Neither discipline relates to her work as a

staffing coordinator; instead, they relate to her work as a CNA. 

Although Wells began working as a full-time staffing Coordinator

in January of 2010, she continued to assume CNA responsibilities

on an as-needed basis. (See, e.g., ALJ Hearing Transcript at

1188, 1230-32, 2747-48; dkt. entry no. 35-16, GC Ex. 63 (noting

that Wells “has worked on the floor as a CNA when needed”).) 

In fact, Wells did not receive any pre-election discipline

relating to her work as staffing coordinator. (Id. at 1232-34.) 

She admits, however, that she made “a few minor errors” and

“mistakes” before the election, while working under Illis and

Konjoh, and their predecessors. (Id. at 1233-34, 1237.) One 

of Konjoh’s predecessors, Eileen Meyer, documented such errors in

Wells’s August 7, 2008 Performance Appraisal. (GC Ex. 63.)

2. As Scheduling Coordinator, Wells Used SmartLinks

but also Maintained “Private” Records

As indicated above, the Somerset Valley staffing coordinator

should key the Master Schedule into SmartLinks and then use

SmartLinks -- specifically, the SmartLinks function known as the

“Schedule Optimizer” -- to generate staff schedules. (ALJ

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Hearing Transcript at 1243, 1694-95, 1699-1700; see also id. at

2746 (noting that staffing coordinator “was supposed to use

Schedule Optimizer within the SmartLinks program”).) Wells,

however, did not use SmartLinks exclusively. (Id. at 1223, 1253,

2093; Wells Aff. at ¶ 4.) She also maintained a spreadsheet on

her computer “with the names of all of the regular staff”, i.e.,

all nursing staff except for newly hired employees, and “the

regular schedule of each employee”. (Wells Aff. at ¶ 4; see ALJ

Hearing Transcript at 1266, 2746, 2757-58.) Wells also handcrafted daily work assignment worksheets, listing the employees

scheduled on each shift, “with scratch in or replacements

listed.” (Wells Aff. at ¶ 4; ALJ Hearing Transcript at 2746.)

3. Illis Regularly Spoke to Wells About Scheduling

Issues Before the Union Election

Throughout August of 2010, Illis noted and spoke to Wells

daily about scheduling issues. (ALJ Hearing Transcript at 2744-

45.) Illis specifically voiced concerns “[t]hat people were

either on the schedule and not coming in, or coming in and not on

the schedule. Or the employees just didn’t know what shift they

were. It was just chaotic.” Id. at 2744.

Wells informed Illis that many of these issues stemmed from

Heedles’s proposed scheduling changes, as announced in May of

2010. (Id. at 2745.) Wells discovered in August of 2010 that

Heedles had keyed some of those proposed changes into SmartLinks,

thereby revising some but not all employees’ established work

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schedules. (Id.; Wells Aff. at ¶ 5.) Upon learning of Heedles’s

revisions, Illis told Wells to follow the “old schedule”, that

is, the Master Schedule that was in place before Heedles’

revisions. (ALJ Hearing Transcript at 1226-27; Wells Aff. at ¶

5.) Wells thus attempted to revise the Master Schedule, relying

on the separate spreadsheet and worksheets that she maintained on

her computer. (ALJ Hearing Transcript at 1226.)

Despite Wells’s revisions, Illis continued to note

scheduling issues. Illis reflected on her past work experience

at other CareOne facilities that used SmartLinks and concluded

that the issues at Somerset Valley rose from Wells’s use of

extraneous scheduling materials. (Id. at 2746, 2751.) At the

ALJ Hearing, Illis testified:

The problems were basically caused by [Wells] using

[an] Excel spreadsheet for her schedule as the master

schedule and then, from there[,] she would create typed

and handwritten daily schedules for employees. And it

was just -- An Excel spreadsheet wasn’t the way to do

scheduling. . . . 

(Id. at 2746.) She further stated:

The schedules being used [at] Somerset Valley were

not accurate and that’s what was causing the chaos. 

Employees didn’t know when they were scheduled. They

didn’t know when they were supposed to show up for

work. And you can’t run a business like that.

(Id. at 2751.) Konjoh similarly testified that:

when I first got there [to Somerset Valley], there were

days that we had some employees who would show up for

work when they were not on the schedule to work. We

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had employees who would be on the schedule to work but

would not be able to punch in because the system did

not have them down to work. . . .

(Id. at 1996; see also id. at 2093.)

Illis thus instructed Wells to use SmartLinks exclusively. 

(Id. at 2746.) She also informed Wells that she “wanted

SmartLinks to match exactly what was going on, or expected to go

on” with respect to actual employee schedules at Somerset Valley. 

(Id.) She offered to train Wells or, alternatively, to provide

training contacts and resources. (Id. at 2746-49.)

4. Illis Continued to Speak to Wells About Scheduling

Issues After the Union Election

Wells exercised vacation time in early September and did not

report to work again until September 7, 2010. (Id. at 1237.) 

When she returned, Illis and Konjoh met with her to discuss

scheduling discrepancies that they discovered while Wells was on

vacation. (Id. at 1237, 2751-52.) Illis stressed that this was

not a disciplinary meeting. (Id. at 2751-52.) “The purpose of

the meeting . . . was basically to let [Wells] know that [Illis

and Konjoh] expected the things that [they] had talked about in

August to start changing and to start improving.” (Id. at 2751.)

During the meeting, Illis and Konjoh gave Wells a list of

the errors that they discovered and a plan of correction. (Id.

at 1239-41, 2751-70; dkt. entry no. 35-16, GC Ex. 70.) The plan

of correction included, inter alia, four instructions, directing

Wells to: (1) enter all “manually typed or hand written

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schedules” into SmartLinks by the end of the day; (2) update

SmartLinks daily, to ensure that SmartLinks reflected any actual

additions or changes to the work schedule; (3) use SmartLinks,

rather than hand-written or type-written spreadsheets, to create

daily assignment sheets; and (4) provide Konjoh a copy of the

next day’s assignment sheet before leaving for the day. (GC Ex.

70; see also ALJ Hearing Transcript at 2752-65, 2767-76.) At the

bottom of the plan of correction, Illis noted that either she or

Ari Beiderman, a CareOne employee, could provide education and

resources, as needed. (GC Ex. 70; ALJ Hearing Transcript at

2761-62; see also dkt. entry no. 35-16, GC Ex. 72.)20

Wells signed the plan of correction but noted that it could

be both difficult and time-consuming to find and reverse all of

Heedles’ changes in SmartLinks. (GC Ex. 70; ALJ Hearing

Transcript at 1265.) When pressed for a timetable, Wells

suggested that she could complete the changes by September 10,

2010. (See id. at 1266.) 

Wells, however, failed to complete those updates by

September 10, 2010. (Id. at 1346.) On September 13, 2010, when

Wells still had not completed the task, Konjoh and Illis assisted

 Wells may have had other resources available to her, too. 20

John Kokorus, a CareOne employee, testified that staffing

coordinators at CareOne facilities can access SmartLinks training

guides and user manuals on the CareOne intranet portal. (ALJ

Hearing Transcript at 1796-97.) He further testified that he

believed but could not state with certainty that Wells enjoyed

access to the portal. (Id.)

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her. (Id. at 1346-47, 1353-54, 2109.) After a few hours, with

Illis “inputting the staff schedule into the SmartLinks, while

[Wells] and [Konjoh] read off the schedule”, they completed the

task. (Id. at 1354.)

5. Post-election Discipline for Failing to Follow the

September 7, 2010 Plan of Correction

On or about September 15, 2010, Konjoh issued Wells two

written disciplines. The first written discipline related to

Wells’s continued failure to update SmartLinks with information

about employee schedules and absences. (Dkt. entry no. 35-16, GC

Ex. 73; ALJ Hearing Transcript at 1263-65.) Wells signed the

discipline but noted her disagreement by writing: “Due to I been

train partially on this with many changes to staffing. I was

train not completely was asked to do this with many changes being

done to staffing.” (GC Ex. 73 (quoted verbatim).) Someone, in

response to Wells’s note, wrote, “the above noted items are areas

Valarie has demonstrated ability to complete + this is issue of

laziness + lack of attention to detail.” (Id.)21

The second written discipline related to Wells’s failure to

give Konjoh advance copies of the daily assignment sheets, as

required by the September 7, 2010 plan of correction. (Dkt.

entry no. 35-16, GC Ex. 74; ALJ Hearing Transcript at 1273,

 The responsive note was likely written by Doreen Illis; 21

the initials “D.I.” appear next to it. (See GC Ex. 70; ALJ

Hearing Transcript at 1265.)

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1347.) Wells also signed this discipline and admitted her error. 

(GC Ex. 74; ALJ Hearing Transcript at 1274.) She noted, however,

that Konjoh could simply have retrieved such sheets from the

nurses’ station. (ALJ Hearing Transcript at 1274.)

Konjoh issued a third written discipline on September 20,

2010. (Dkt. entry no. 35-16, GC Ex. 75; ALJ Hearing Transcript

at 1276.) In this discipline, under the heading “Specific

Description of Issue”, Konjoh noted that Wells “continues to have

issue[s] with scheduling staff and removing them from [the

SmartLinks scheduling platform] when cancelled or removed” and

referenced Wells’ prior written disciplines. (GC Ex. 75; ALJ

Hearing Transcript at 1276.) On the second page, Konjoh listed

six issues relating to Wells’ job performance. (GC Ex. 75.)

Wells disagreed with the issuance of this discipline because

this discipline related, in part, to amendments to an employee’s

SmartLinks schedule that Wells claimed she did not make. (ALJ

Hearing Transcript at 1278-82). When changes are made within

SmartLinks, SmartLinks records both the change and the system

“username” of the individual to effect that change. (Id.) In

this instance, SmartLinks recorded the username “dtrain”. (Id.

at 1280-82.) Wells testified that “dtrain” was Illis’s username. 

(Id. at 1281-82.) The amendments made by “dtrain”, however,

relate to only one of the six issues listed on the second page of

Wells’s written discipline. (See GC Ex. 75.)

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6. Wells’s Termination

Somerset Valley terminated Wells’s employment on September

21, 2010. (ALJ Hearing Testimony at 1289; dkt. entry no. 35-16,

GC Ex. 78.) In a related termination letter, Illis states that

Wells’s employment was terminated for “failure to meet expected

performance standards. As you are aware, 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 remains [sic] substandard.” (GC Ex. 78.)

D. Discipline Received by Claudio

1. Pre-election Verbal Warning for Failing to

Properly Document a Patient’s Treatment

Somerset Valley’s records demonstrate that Claudio may have

received a verbal warning on June 13, 2010 for failing to

document a patient’s treatment; her employee file contains a

Notice of Disciplinary Action, purportedly documenting this

warning. (See dkt. entry no. 35-11, GC Ex. 13.) Neither 22

Claudio nor the acting DON signed this Notice. (See id.; ALJ

Hearing Transcript at 120.) Claudio denies knowing of the Notice

and similarly denies receiving a verbal warning for the alleged

documentation error. (ALJ Hearing Transcript at 120.)

 The Court notes that the ALJ did not receive GC Ex. 13 in 22

evidence. (See ALJ Hearing Transcript at 126.) We nevertheless

include a summary of the related, purported discipline in this

Opinion to note the existence of such records and to provide

appropriate and related citations in the record. 

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2. Post-election Discipline for Tardiness and

“Pattern Absenteeism”

Illis, as noted above, found that Claudio violated Somerset

Valley’s policies regarding tardiness and absenteeism. (ALJ

Hearing Transcript at 121-22, 2034-76, 2713-14.) Illis thus

notified Konjoh, who issued two written disciplines to Claudio. 

(Id. at 122-24, 266-67; dkt. entry no. 35-11, GC Ex. 14; dkt.

entry no. 35-11, GC Ex. 15.) The first discipline, for “pattern

absenteeism”, notes both that: (1) Claudio called out sick three

times in ninety days; and (2) two of these incidents occurred

immediately before Claudio’s scheduled time off. (GC Ex. 14.) 

Claudio admits that she called out sick on these dates but denies

knowledge of any Somerset Valley policy prohibiting employees

from calling out sick on dates falling immediately before

scheduled time off. (ALJ Hearing Transcript at 122, 266.) The

Somerset Valley employee handbook does not contain such a policy. 

(See dkt. entry no. 35-11, GC Ex. 16.)

The second discipline issued to Claudio, a second written

warning, addresses tardiness. (ALJ Hearing Transcript at 123,

266; GC Ex. 15.) Konjoh there noted that Claudio arrived late to

work sixty-four times between January 1, 2010 and September 12,

2010, including sixteen times between August 12, 2010 and

September 12, 2010. (GC Ex. 15.) Claudio does not deny that she

was tardy on those dates; she acknowledged that she arrived to

work late “a lot.” (ALJ Hearing Transcript at 266-67; see also

Claudio Dep at 22-23.) She noted, however, that she disagreed

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that this warning was a “second written warning”, as her only

other written discipline related to absenteeism, not tardiness. 

(GC Ex. 15.) 

3. Post-election Discipline for Improper

Administration of Patient Medication

Konjoh issued Claudio a written discipline on September 17,

2010 for improperly administering medication. (ALJ Hearing

Transcript at 137-39, 261.) A patient’s MAR demonstrated that

Claudio dispensed aspirin to that patient on September 8, 2010

and September 9, 2010, despite instructions on the MAR to

administer aspirin only every other day. (Id. at 138-40; see

also Claudio Dep at 25, 27.) Claudio has acknowledged her error

and further acknowledges that the written instructions on the

left-hand side of the MAR were clear. (See ALJ Hearing

Transcript at 142, 264; see also Claudio Dep. at 54, 99.) 

Claudio, however, told Konjoh and testified at the ALJ

Hearing that other nurses should share blame for her errors. She

argued that the nurse who transcribed the medication order for

aspirin into the MAR should have “blocked out” the order, thus

reinforcing the prescribing doctor’s instructions to administer

aspirin on only an every other day basis. (Id. at 138-39,

142.) 

23

“Blocking out” a MAR or TAR refers to a process by which 23

nurses circle or “block out” the days when patients should

receive medication or treatment. (See SH Transcript 3 at 178-79;

SH Transcript 4 at 14-15; SH Transcript 6 at 97-98; Resp. Ex. 126

at attached TAR.) 

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Claudio also argued that another nurse, Doreen Dande, erred

by administering the same medication to the same patient on

September 6, 2010 and September 7, 2010. Based on these errors,

Claudio argued that Dande should have received the same

discipline, but did not. (Id. at 138-40, 142.)

4. Post-election Discipline for Repeated

Documentation Errors

Konjoh met with Claudio on October 4, 2010 and issued a

final written warning. This discipline addresses four separate

documentation errors. (Id. at 149-54; dkt. entry no. 35-11, GC

Ex. 19.) 

24

The first documentation error relates to patient “EW”. 

Inasmuch as the written discipline addresses this issue, Konjoh

alleges that EW fell and that Claudio failed to document EW’s

post-fall condition on September 20, 2010 and again on September

22, 2010. (GC Ex. 19; ALJ Hearing Transcript at 150-52.) When a

Somerset Valley patient slips or falls, Somerset Valley policies

require nurses on each shift to document the patient’s condition

during each of the three days that follow. (See ALJ Hearing

Transcript at 150-52.) Claudio admitted that she should have but

failed to document EW’s status on both September 20, 2010 and

September 22, 2010. (Id.; dkt. entry no. 35-11, GC Ex. 20

 This discipline indicates that, following its issuance, 24

Somerset Valley suspended Claudio for two days. (GC Ex. 19

(indicating two day suspension, from September 29, 2011 until

October 1, 2011).) 

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(Claudio’s written response to notice of discipline); Claudio

Dep. at 30, 58, 99.)

The second and third documentation errors relate to the

admission of patient “RG”. (GC Ex. 19; ALJ Hearing Transcript at

150-54, 205, 2196-99.) As demonstrated by the discipline, Konjoh

cited Claudio for failing, in contravention of Somerset Valley

policies and procedures, to: (1) draft a note about RG’s

condition upon admission (“the nursing note”); and (2) document

RG’s condition during each of the first five days following

admission. (GC Ex. 19; ALJ Hearing Transcript at 150-54, 205.) 

To the extent that this discipline relates to the missing

nursing note, Claudio asserts that discipline was inappropriate. 

(Id. at 150-54; GC Ex. 20.) Claudio recognized that RG’s

admissions packet did not contain a nursing note but claimed that

she wrote it and posited that it had been lost. (ALJ Hearing

Transcript at 150-52; Claudio Dep. at 29, 57, 78-79; GC Ex. 20.) 

To the extent that Konjoh further cited Claudio for failing to

document RG’s condition post-admission, Claudio stated that: 

(1) she was unsure whether Konjoh’s hand-written notes about this

incident were originally on the discipline (i.e., GC Ex. 19); 

(2) Konjoh did not discuss the issue during their September 27,

2010 meeting; and (3) she could not remember working during any

of the five days following RG’s admission. (Claudio Dep. at 79-

81; ALJ Hearing Transcript at 150-54.) Konjoh, however,

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testified at the ALJ Hearing about the incident, and provided

documentary evidence to support the discipline. (ALJ Hearing

Testimony at 2198-99.) 

The final documentation error cited in the September 27,

2010 discipline relates to Claudio’s failure to document a

doctor’s treatment order. (GC Ex. 19; see also ALJ Hearing

Transcript at 154-66, 2200-01.) This treatment order concerned a

patient’s skin tear. (ALJ Hearing Transcript at 154-66, 2201.) 

Konjoh alleges, in both the written discipline and her ALJ

Hearing testimony, that Claudio treated a patient’s skin tear and

documented the treatment, but failed to document a treatment

order from the patient’s doctor. (See GC Ex. 19; ALJ Hearing

Transcript at 2200-01.) Claudio denies that Konjoh addressed

this issue during their September 27, 2010 meeting and further

denies that it was originally included on the notice of

discipline. She does not, however, deny that she failed to

document the order. (See Claudio Dep. at 79-81.)

5. Post-election Discipline for Failing to

Contemporaneously Complete TARs

Claudio left Somerset Valley on October 7, 2010 and drove to

“Green Knoll”, an unrelated nursing facility where she worked

during the evening shift. (ALJ Hearing Transcript at 168; dkt.

entry no. 25-3, Claudio Aff. at ¶ 2.) While working at Green

Knoll, Claudio remembered that she failed to complete her TARs at

Somerset Valley; specifically, she failed to initial at least two

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of her treatments, thus failing to note that such treatments were

actually administered. (See ALJ Hearing Transcript at 167-69;

Claudio Dep at 100.) When Claudio completed her shift at Green

Knoll, approximately eight hours after she completed her shift at

Somerset Valley, she returned to Somerset Valley to initial those

treatments. (ALJ Hearing Testimony at 169.)

When Claudio arrived at Somerset Valley, “Janet”, the night

shift nursing supervisor, and Illis were standing inside, near

the front door of the facility. (Id. at 169.) Janet allowed

Claudio into the facility and asked Claudio why she had returned. 

(Id. at 169, 251.) Claudio responded that she “forgot something”

and proceeded to the nurses’ station. (Id. at 169, 251-52.) 

When Janet followed Claudio to the nurses’ station, Claudio

clarified that she forgot to initial her TARs. (Id. at 252.)

Janet left the nurses’ station and returned shortly

thereafter with Illis, who directed Claudio: (1) not to amend or

otherwise alter her TARs; and (2) to leave the building. (Id. at

169-70, 2937-38.) Illis testified that she twice asked Claudio

to stop and that Claudio ignored her; she also testified that

Janet took the binder containing Claudio’s TARs away from

Claudio. (Id. at 2938.) Claudio thus left the building without

signing her TARs. (Id. at 170.)

Claudio and Napolitano later testified that, both before and

after the election, Somerset Valley nurses regularly documented

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the administration of treatments after the shift in which such

treatment was actually administered. (Id. at 170-71, 178, 372,

387-88, 391-92.) Napolitano further testified that before the

election, Somerset Valley did not discipline employees for

failing to contemporaneously initial their MARs and TARs, i.e.,

to complete such records as medication or treatments were

administered; instead, supervisors encouraged nurses to review

their records at the end of the shift to ensure that all records

were complete. (Id. at 429.)

6. Claudio’s Termination

Konjoh called Claudio on October 8, 2010 and informed her

that she was suspended pending further investigation of the facts

and events leading to Claudio’s October 7, 2010 encounter with

Janet and Illis. (Id. at 171-72.) Konjoh next called Claudio

approximately one or two weeks later and asked Claudio to meet

with her at Somerset Valley. (Id. at 174.) When Claudio arrived

at Somerset Valley, Konjoh directed Claudio to write a statement

describing the incident. (Id. at 172.) She also informed

Claudio that the matter was still under investigation. (Id.)

Somerset Valley terminated Claudio’s employment in a letter

dated October 25, 2010. (Dkt. entry no. 25-12, GC Ex. 25.) In

that letter, Somerset Valley noted that “[t]he reason for this

termination is your inappropriate and/or unprofessional conduct

including but not necessarily limited to your failure to complete

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required clinical documentation.” (Id.) It also noted, as

detailed above, that Claudio received a final written warning on

October 4, 2010. (Id.)

E. Discipline Received by Jacques

1. 2009 Performance Appraisal

Jacques’s supervisors, Assistant DON Mel Castro and DON

Rebecca McCarthy, reviewed Jacques’s job performance as part of

her March 2009 performance appraisal. (See dkt. entry no. 59-8,

Resp. Ex. 135.) They noted that Jacques, who had worked at

Somerset Valley for many years, performed adequately in areas

such as customer service, teamwork, and job knowledge. (Id.) 

They also noted, however, that Jacques was frequently late for

work and needed “to pay closer attention to completing admissions

assessments.” (Id.; see also ALJ Hearing Transcript at 520.)

2. Pre-election Written Discipline for Failing to

Assess a Newly Admitted Patient’s Pain

Jacques received a final written warning on December 2, 2009

for failing to assess a newly admitted patient’s pain during the

admissions process. (Dkt. entry no. 35-8, Resp. Ex. 10; ALJ

Hearing Transcript at 597; SH Transcript at 214-15; SH Transcript

2 at 9.) That patient suffered from rectal cancer. (SH

Transcript 2 at 141.) Jacques’s error occurred during the 2009

State Survey. (ALJ Hearing Transcript at 597; SH Transcript at

214-15; accord ALJ Hearing Transcript at 378, 596, 1423-35.) 

NJDHSS issued a “G-level” deficiency to Somerset Valley because,

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at least in part as a result of Jacques’s error, Somerset Valley

failed to address the newly admitted patient’s pain. (ALJ

Hearing Transcript at 1423-35; Illis Decl. at ¶¶ 5-7; Resp. Ex.

33; see also Resp. Ex. 10 (noting that Jacques’s error “adversely

affected the residents [sic] care” and “does not meet the

standard of care”).) 

Jacques acknowledges that her error was serious but contends

that her discipline was too severe because her interaction with

the patient was limited to the patient’s admission to Somerset

Valley. (See ALJ Hearing Transcript at 599; SH Transcript at

214-15.) She noted, however that the nurse tasked with this

patient’s daily care, Gigi Martin, also failed to assess her pain

and was subsequently terminated. (SH Transcript 2 at 6.)

3. Pre-election Verbal Warning for Tardiness

Jacques acknowledges that she also received a verbal warning

for tardiness in early 2010 from then-acting administrator Eileen

Meyer. (ALJ Hearing Transcript at 519-521.) At the time she

received this discipline, Jacques explained to Meyer that she

could not begin her shift on time because she cared for her

quadriplegic mother and, before leaving for work, had to ensure

that her mother was cared for. (Id.) Jacques testified that

Meyer instructed her to draft a letter that detailed her

extenuating circumstances, but that Meyer soon left Somerset

Valley’s employ and Jacques did not submit any such letter. (Id.

at 520-21.)

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4. Other Pre-election Job Performance Errors

In either July or August of 2010, Jacques left medications

on the patient’s bedside table and did not stay to watch the

patient ingest them. (ALJ Hearing Transcript at 479-80.) She

later testified that “there was a problem next door, so I put the

pills down and I went next door and I forgot the pills. I never

went back to the pills again.” (Id. at 480.) Jacques did not

receive discipline for this infraction. (Id. at 481; SH

Transcript 2 at 10.) Instead, Somerset Valley hosted an inservice training session on “med-pass techniques” and Jacques

agreed to be more careful. (ALJ Hearing Transcript at 480-81; SH

Transcript 2 at 10-11.)

5. Post-election Discipline for Tardiness and

Absenteeism

As noted above, Illis, in September of 2010, found that

Jacques violated Somerset Valley’s policies regarding tardiness

and absenteeism. (ALJ Hearing Transcript at 525, 2034-76, 2713-

14.) Illis notified Konjoh, who, on September 14, 2010, issued

two written disciplines to Jacques. (Id. at 525, 602-03; dkt.

entry no. 35-8, Resp. Ex. 9; see also SH Transcript 2 at 24.) 

Through the first written discipline, Konjoh noted that “Jillian

has been late 109 times since 1/1/2010. Within the last 30 days

(8/5-9/5) she was late 11 times. This is excessive and requires

immediate improvement.” (Resp. Ex. 9.) In the area reserved for

employee comments, Jacques noted that “this is an issue that was

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addressed earlier in the yr [sic] by the previous DON even though

nothing was in writing”. (Id.) Jacques later acknowledged,

however, that 100 instances of tardiness was “a lot”. (ALJ

Hearing Transcript at 601-602.) 

Through the second written discipline, Konjoh cited Jacques

for frequent absenteeism. (Id. at 536-37; dkt. entry no. 35-13,

GC Ex. 40.) This discipline demonstrates that Jacques called out

three times within sixty days, i.e., on July 9, 2010, August 11,

2010, and September 13, 2010, and that each occurrence followed a

scheduled day off, thereby “extending her period of time off.” 

(GC Ex. 40.) Jacques signed the discipline, but expressed that 25

she felt that it was “unfair” and that Somerset Valley management

was “waiting for her to call out [and] counting the days”. (See

id.; ALJ Hearing Transcript at 537.)

6. Post-election Discipline for Repeatedly Failing to

Document Patient Status. 

Konjoh issued a written discipline to Jacques on or about

September 28, 2010. (See dkt. entry no. 35-14, GC Ex. 43.) 

There, Konjoh noted that Jacques failed to document patient

information: (1) on September 24, 2010, relating to the status of

“Patient RG” post-admission and post-fall; (2) on September 24,

 Konjoh actually wrote, “Jillian has called out 3 times 25

within the last 60 days. Each occurance [sic] was the day after

an unschedulled [sic] day off therefore extending her

period of time off.” (GC Ex. 40.) The documents attached to 

the discipline show, however, that each of Jacques’s “call-outs”

followed a day when Jacques was not scheduled to work. 

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2010, relating to the status of “Patient CB” post-admission; and

(3) on September 25, 2010, again relating to the status of

Patient CB post-admission. (GC Ex. 43.)

After reviewing the discipline, Jacques noted and informed

Konjoh that she had not worked on September 25, 2010. (ALJ

Hearing Transcript at 554.) After confirming that Jacques had,

in fact, not worked on September 25, 2010, Konjoh agreed to

remove the September 25, 2010 incident as a basis for the

discipline. (Id. at 554, 644.)

7. Post-election Discipline for Failing to Fully

Document Incident Reports

Southgate presented Jacques a written notice of discipline

on November 1, 2010, relating to Jacques’s failure to fully and

completely document two incident reports. (ALJ Hearing

Transcript at 567; dkt. entry no. 35-14, GC Ex. 46.) The

discipline cited several errors, i.e., “missing signatures,

unclear statements, interventions missing, missing supervisor

review[, and] CNA statement missing”. (GC Ex. 46.) 

Jacques disagreed that her actions (or inaction) warranted

issuance of discipline. (Id.; ALJ Hearing Transcript at 568-71.) 

At the ALJ Hearing, she testified that Somerset Valley should

have given her twenty four hours to complete the incident

reports. (ALJ Hearing Transcript at 571.) She also testified

that she made reasonable attempts to locate the CNA and have her

fill out a CNA statement. (Id. 569-70.) She further testified

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that she called Konjoh the next morning to explain the situation,

but that Konjoh did not return her call. (Id.)

Jacques did not dispute, however, that she did not complete

the narrative statement about the incident. (Id. at 638.) This 

incident related to a patient’s fall. Jacques wrote: 

(GC Ex. 46.)26

8. Post-election Discipline for Failing to Properly

Transcribe a Doctor’s Medication Order

Jacques received another written notice of discipline on

February 9, 2011. (ALJ Hearing Transcript at 573; see dkt. entry

no. 35-14, GC Ex. 48.) This discipline relates to two February

7, 2011 documentation errors. First, it relates to Jacques’s

failure to properly transcribe a doctor’s medication order, i.e.,

a prescription, onto the physician’s order sheet. (GC Ex. 48.) 

Although the doctor’s medication order called for enteric-coated

aspirin, Jacques transcribed the order as calling simply for

 The Court finds that Jacques’s statement is largely 26

illegible. Based, however, on the actual statement and on

Jacques’s decryption thereof, we believe it to state: “Called to

rm 21 noted resident on the floor. When asked what happened PT 

sitting on floor. States he was trying to get into. On

observation PT sitting on the floor. Stated I was trying to get

into”. (GC Ex. 46; see also ALJ Hearing Transcript at 572-73.) 

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aspirin. (ALJ Hearing Transcript at 575; GC Ex. 48.) The

discipline also relates to Jacques’s total failure to transcribe

the doctor’s medication order onto the patient’s MAR. (GC Ex.

48.) Jacques did not transcribe an order either for aspirin or

enteric-coated aspirin onto the patient’s MAR. (ALJ Hearing

Transcript at 575; GC Ex. 48.) 

Jacques returned to work her next scheduled shift on

February 9, 2011. (Id. at 574.) When she arrived, she met with

Engram and Illis in Engram’s office. (Id.) Engram and Illis

spoke to her about the transcription errors, issued a written

notice of discipline based upon those errors, and informed

Jacques that she had been suspended. (Id. at 574-75.) 

Jacques argued that this discipline was inappropriate. (See

id. at 574-76, 623-24.) She noted on her disciplinary form and

told Engram that, on the evening of February 7, 2011, she was

very busy because she was sitting as the charge nurse. (Id. at

574-76; GC Ex. 48.) As the charge nurse, Jacques was responsible

for admitting new patients. (ALJ Hearing Transcript at 574-76.) 

That evening, Jacques admitted three patients and worked without

the benefit of a functioning facsimile machine. (Id.) 

Jacques also told Engram and Illis that the discipline for

the February 7, 2011 transcription errors was inappropriate

because the nurses working on the next shift, the night shift,

should have recognized her errors during the “24-Hour Chart

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Check.” (Id. at 576; see also SH 2 at 40-41.) As part of the

plan of correction enacted pursuant to the 2009 State Survey,

Somerset Valley night shift nurses regularly reviewed new MAR

entries and compared them to orders transcribed on the

physician’s order sheet. (See ALJ Hearing Transcript at 576.) 

Jacques did not explain, however, how the night shift nurses

would have known to compare the MAR, which lacked a new entry, to

the physician’s order sheet. She similarly did not explain how

the night shift nurses would, had they known to look at the

physician’s order sheet, have recognized the transcription error

therein. Engram testified at the ALJ Hearing that, while she

might have expected the night shift nurses to recognize Jacques’s

transcription errors during the 24-Hour Chart Check, their doing

so “would not negate [Jacques’s] failing to do it properly.” 

(Id. at 1892-93.)

9. Jacques’s Termination

Engram, after reviewing Jacques’s disciplinary history,

terminated Jacques’s employment on February 10, 2011. (Id. at

576-80, 1885-89; SH Transcript at 206.)

F. Discipline Received by Other Somerset Valley Employees

Both before and after the Union election, Somerset Valley

issued discipline to other nurses and employees that mirrored the

discipline issued to Claudio, Jacques, and Napolitano. (See,

e.g., id. at 2037-70; 2714-41, 2950-56.) Some of these employees

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publicly supported the Union during the organization and

electioneering periods; others did not support the Union and, in

some cases, did not work at Somerset Valley between May 2010 and

September 2010. (Compare id. at 2042 with id. at 3144-46.) This

section highlights some of that discipline.

1. Post-election Discipline for Tardiness and/or

Absenteeism

Konjoh and other supervisors, acting upon Illis’s SmartLinks

reports, disciplined several other employees for tardiness and/or

absenteeism in September of 2010. (Id. at 2037-70; 2714-41.) 

Although some of these employees publicly supported the Union,

Illis denied that Somerset Valley meted out discipline based upon

Union animus. (See generally id. at 2714-41.) 

At least two of the employees to receive such discipline,

Kassandra Burke and Jennifer McAuley, did not publicly support

the Union. Burke received discipline for absenteeism but did not

appear in the Talking Heads Piece or YouTube video, and the

record does not otherwise indicate that she supported the Union.

(ALJ Hearing Transcript at 2726-31; dkt. entry no. 104-4, Resp.

Ex. 104.) McAuley, a dietary aide, received similar discipline,

and similarly, the record does not indicate that she supported

the Union. (See ALJ Hearing Transcript at 2714-23; dkt. entry

no. 104-4, Resp. Ex. 103; but cf. ALJ Hearing Transcript at 2723-

25 and GC Ex. 10 (discipline issued to and pro-Union statements

issued by Somerset Valley employee Patsy Benimadho).) 

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These issuances of discipline, which were meted out to

several employees in September of 2010, deterred Somerset Valley

employees from continuing set patterns of tardiness and

absenteeism. (See id. at 2084-85, 2743.) Jacques, for example,

improved her attendance record shortly after receiving such

discipline. (Id. at 603-05; SH Transcript 2 at 24-25). Illis

and Konjoh asserted that, generally, the number of instances of

tardiness and absenteeism thereafter decreased. (ALJ Hearing

Testimony at 2084-85, 2743.)

2. Post-election Discipline for Improper Job

Performance

The Regional Director argues that Somerset Valley issued

greater discipline to Union supporters than to other employees

who committed similar job performance infractions. The Regional

Director notes, for example, that Napolitano was disciplined

because she signed Patient 15W’s MAR, indicating that she

administered a discontinued medication. (Id. at 89-91, 359-66.) 

Other nurses who similarly signed the MAR, indicating that they

also administered discontinued medication, did not receive

discipline. (Id. at 2380-81.)27

In other contexts, however, nurses who did not openly

support the Union received discipline for errors like those

 Konjoh testified that she did not mete out discipline to 27

these nurses because, unlike Napolitano, they denied actually

administering the discontinued medication to Patient 15W. (ALJ

Hearing Transcript at 2380-81.)

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committed by Claudio, Jacques, and Napolitano. Dande, Mohamed

Bockarie, and other nurses received discipline after committing

errors relating to improper or incomplete documentation, improper

administration of medication, and improper administration of

treatment. (See id. at 1178-81, 2174-76; 2180-84, 2240-44, 2256-

61, 2287-89, 2453-54, 2458-60, 2463-74, 2505-07, 2957-58, 3144-

46.) Discipline for such errors varied, but generally took the

form of in-service education, documented verbal discipline, or

documented written discipline. (Id.) 

Some employees, like Bockarie, eventually faced suspension

and termination based on their repeated job performance issues. 

(Id. at 3144-46.) Somerset Valley would similarly have

terminated Dande’s employment, but Dande resigned before Somerset

Valley could take such action. (Id. at 2957-58.) 

IX. Somerset Valley Reduced its Per Diem Workforce

A. Somerset Valley Stopped Regularly Scheduling Per Diem

Employees

As noted above, a per diem employee, pursuant to Somerset

Valley’s policies, works on an as-needed basis. (Id. at 956,

1405-07.) The staffing coordinator should thus only schedule per

diem employees after scheduling all available full- and part-time

employees. (Id. at 2885.) However, Wells, when working as

Somerset Valley’s staffing coordinator, scheduled per diem

employees in a manner that treated them as part-time employees

with regular, repeating shifts. (Id. at 957, 1410, 2885.) 

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Immediately after Illis terminated Wells’s employment,

Konjoh assumed responsibility for setting and maintaining the

Somerset Valley nursing schedule. (See id. at 957.) She

thereafter began reducing the hours worked by per diem employees

and limiting the opportunities for per diem hours at Somerset

Valley. (See id. at 711-12, 775-77, 828-30, 1153-54.) Although

many per diem employees previously enjoyed the dual benefits of

regular work and increased hourly pay, Konjoh limited the

opportunity for such benefits by instructing Southgate, among

others, not to schedule or call per diem employees without her

express prior approval. (See id. at 957.)

Several per diem employees called Konjoh to request hours

and some left messages, detailing which shifts they could work. 

Konjoh did not return their calls or reinstate the hours that

they previously held. (Id. at 711-14, 722-23, 789, 1156-57.) 

Konjoh, however, did not completely preclude per diem employees

from working at Somerset Valley. (See id. at 2303-05.) For

example, although she stopped scheduling Rodriguez as a

regularly-scheduled per diem employee, Konjoh offered Rodriguez a

full-time position on the morning shift. (Id. at 820-21, 830,

2303-05.) Rodriguez declined, stating that she could not

regularly work during the morning shift and thus preferred to

work on a per diem basis. (Id. at 2304-05.)

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B. The Parties Adduced Conflicting Testimony Regarding

Somerset Valley’s Motives for Reducing Per Diem

Employees’ Hours

Southgate testified that Somerset Valley planned to contest

the union election results and, further, planned to dilute Union

support by reducing the hours worked by per diem employees who

supported the Union. (Id. at 958-59.) Per Southgate, Konjoh

told her that the Union might have to hold a new election, and

that per diem employees who failed to work before the new Union

election would not be eligible to vote. (Id.) 

Illis testified, however, that Somerset Valley was not per

se eliminating its per diem workforce, but was instead replacing

per diem employees with limited availability with other per diem

employees who could bend around Somerset Valley’s staffing needs.

(Id. 2999-3000.) “We were hiring per diems who had flexibility

to work multiple days and multiple shifts. That’s what makes a

good per diem. When they have no other job, that they can come

to work on the spur of the notice, that they’re in constant

communication[,] seeing what’s going on at the center.” (Id. at

2999.) Consequently, employees like Stubbs and Aguilar --

employees with limited availability, who could only work during

specific shifts and could not work for the entirety of those

shifts -- lost hours. (See id. at 2306-07, 2910-15, 2999.)

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C. Somerset Valley Effectively Terminated the Employment

of Several Per Diem Employees

Charlotte D’Antignac assumed responsibility as Somerset

Valley’s staffing coordinator after working in the same capacity

at CareOne’s Holmdel, New Jersey facility. (Id. at 2890-91.) As

part of the “normal function[s] of the staffing coordinator”,

D’Antignac prepared a list of all employees who had not worked in

sixty days. (Id. at 2890-91, 2969.) This list included several

of the per diem employees mentioned above. (See id.) Illis,

upon receipt of D’Antignac’s list, removed those employees from

SmartLinks and terminated their employment. (Id. 2891, 2921-24;

see also dkt. entry no. 59-7, Resp. Exs. 122-26.)

X. Illis Arranges for Transfer of Nursing Employees From 

CareOne’s Holmdel Facility

Bockarie, whose discipline and termination the Court noted

in Section VIII, above, testified at the ALJ Hearing that Illis

encouraged Bockarie to request a transfer to Somerset Valley in

an attempt to bolster support for Somerset Valley and weaken

employee support for the Union. (ALJ Hearing Transcript at 3160-

65.) Bockarie testified that Illis asked him to identify other

Holmdel employees who might transfer to and support Somerset

Valley in a new Union election, to report errors committed by

Somerset Valley employees, and to spy on and report Somerset

Valley co-workers who supported the Union or attended Union

functions. (Id. at 3168-77.) Illis denied Bockarie’s

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allegations that she asked him to transfer to Somerset Valley, to

recruit other Holmdel employees to transfer to Somerset Valley,

or to report Union sympathies amongst the Somerset Valley

employees. (Id. at 3262, 3273-80, 3284.)28

XI. Employee Support for the Union Waned During and Following

Bouts of Employee Discipline

Walsh explained throughout both the ALJ Hearing proceedings

and the Supplemental Hearing that Somerset Valley employees’

support for the Union steadily decreased beginning in September

of 2010. (ALJ Hearing Transcript at 99-106; SH Transcript at 49-

52, 56-75, 110-12, 171-208; see also Walsh Aff. at ¶¶ 7, 9, 11.) 

He testified that employees who regularly attended Union

meetings, received Union literature and communication, and

outwardly supported the Union ceased such behaviors after

Somerset Valley began disciplining employees and, to a greater

extent, after Somerset Valley terminated the employment of

Napolitano and Claudio. (ALJ Hearing Transcript at 99-106; SH

Transcript at 49-52, 56-75, 110-12, 171-208.) 

Walsh noted that attendance at Union meetings declined after

the union election and after Somerset Valley began meting out

discipline to Union supporters. (See SH Transcript at 16-24; see

also SH Ex. P-1 (sign-in sheets for Union meetings).) During the

 The ALJ recognized the discrepancies between Bockarie’s 28

and Illis’s testimony and credited Bockarie’s testimony. (ALJ

Decision at 19.)

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organizing campaign, approximately twenty Somerset Valley

employees attended most meetings. (SH Ex. P-1.) After the union

election, and after Somerset Valley began meting out discipline

to its employees, fewer than ten employees attended most

meetings, and, at one meeting, only two employees attended. 

(Id.; SH Transcript at 49.) Walsh attributed the employees’

decreased Union support to fear of discipline and termination. 

(SH Transcript at 107-08, 198-99.) 

Jacques echoed Walsh’s sentiments. After Somerset Valley

terminated the employment of Napolitano and Claudio, Jacques was

the last Union leader working at the facility. (Id. at 52-54,

71-73, 204.) At the Supplemental Hearing, she testified, “My

coworkers fired, written up, I was written up, and I was fearful

of being terminated as well.” (Id. at 204.) 

Jacques spoke to Walsh about the ongoing issues at Somerset

Valley during December of 2010 and January of 2011 and learned

that the Union certification process was still not complete

because Somerset Valley challenged the results of the Union

election. (See id. at 183-84.) She testified, “I sort of felt

like they weren’t there to protect us. I mean, they weren’t

coming in, and so no one was there to protect us.” (Id. at 198.)

Napolitano, Claudio, and Jacques continued to support the

Union. (See id. at 12-14, 207-08, 210-11; SH 2 at 43-60.) 

Napolitano and Claudio, following their respective terminations,

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performed work for and were paid by the Union. (SH Transcript at

12-14.) They also continued to attend Union meetings with active

Somerset Valley employees. (Id. at 207-08.) Jacques, following

her termination from Somerset Valley’s employ, continued to

answer Somerset Valley employees’ questions about the Union and

to refer employees to Walsh. (Id. at 210-11.) She also attended

Union demonstrations, either actively protesting or observing

protests staged at events attended by CareOne’s owners. (SH

Transcript 2 at 43-60.)

XII. The ALJ Found that Somerset Valley Violated Section 8(a)(1)

and Section 8(a)(3) of the National Labor Relations Act

The Regional Director, pursuant to Section 10(b) of the Act,

29 U.S.C. § 160(b) (“Section 10(b)”), filed an administrative

complaint, alleging that Somerset Valley committed unfair labor

practices, including, inter alia: (1) interrogating employees

about Union membership; (2) soliciting employee grievances and

promising employees improved terms and conditions of employment

if they refrained from Union activity; (3) discharging

Napolitano, Wells, Claudio, and Jacques; and (4) reducing the

hours worked by per diem employees Stubbs, Rodriguez, Aguilar,

Joseph, and Onyeike. (See ALJ Decision at 1-2.)

Following nineteen non-consecutive days of testimony that

spread across three months, the ALJ Hearing concluded on June 28,

2011. (See ALJ Hearing Transcript at 3241, 3324.) The ALJ

thereafter issued a lengthy decision on the Regional Director’s

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unfair labor practice charges. (See generally ALJ Decision.) He

found that Somerset Valley violated Section 8(a)(1) by: (1)

interrogating Claudio, Jarbo, Stubbs, and Tyler about their Union

sympathies and votes in the Union election; and (2) soliciting

employee grievances and complaints, and promising increased

benefits, terms of employment, and conditions of employment. 

(Id. at 39-42.) He also found that Somerset Valley violated

Section 8(a)(3) by: (1) disciplining and terminating the

employment of Claudio; (2) disciplining and terminating the

employment of Jacques; (3) disciplining and terminating the

employment of Napolitano; (4) disciplining and terminating the

employment of Wells; and (5) reducing the hours worked by Stubbs,

Rodriguez, Aguilar, Joseph, and Onyeike. (Id. at 42-50.)29

XIII. The Supplemental Hearing

The parties appeared before this Court for the Supplemental

Hearing on eight non-consecutive days between November 30, 2011

and February 9, 2012. Each party re-called fact witnesses who

testified before the ALJ; Jacques, Walsh, and Kokorus testified

again. To the extent that their testimony aids the Court’s

disposition of this matter, it has been cited above. 

 The ALJ also found that Somerset Valley violated Section 29

8(a)(3) by accelerating the resignation date offered by Lynette

Tyler, who announced on September 9, 2010 that she would leave

Somerset Valley’s employ on September 22, 2010. (ALJ Decision at

49-50.) Because the Regional Director has not requested relief

related to Tyler in the Amended Petition, the Court notes but

does not further discuss the ALJ’s findings related to Tyler.

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Each party also called expert witnesses; Somerset Valley

called Beth Bell and William Isele, and the Regional Director

called Kathleen Martin. In the subsections that follow, the

Court notes each expert’s qualifications and areas of expertise,

and summarizes their opinions.

A. The Expert Witnesses

Somerset Valley called Bell during its case-in-chief. Bell

graduated as a registered nurse (“RN”) in or about 1978 and has

since worked as, inter alia, an RN in acute care facilities, a

field investigator for the New Jersey Office of the Ombudsman for

the Institutionalized Elderly (“Office of the Ombudsman”), and as

a complaints investigator for NJDHSS. (SH Ex. D-6, Curriculum

Vitae of Beth Bell (“Bell CV”); see also SH 2 at 101-02.) Bell

currently consults in long-term care and assisted living

facilities. (Bell CV; SH Transcript 2 at 101.) The Court

qualified Bell as an expert witness in four areas: (1) the State

Survey process; (2) the regulations relating to the State Survey

process; (3) standards of nursing home administration; and (4)

standards of nursing care applicable in long-term care facilities

in New Jersey. (SH 2 at 106-11.)

Somerset Valley also called Isele, who testified during both

the case-in-chief and sur-rebuttal. Isele, an attorney, served

as General Counsel to the Office of the Ombudsman from June of

1998 until October of 1999 and thereafter served as the Ombudsman

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until October of 2007. (SH Transcript 2 at 5-7.) As Ombudsman,

Isele served as the administrator and chief executive of the

Office of the Ombudsman, and protected the public interest by

assuming responsibility for the office’s three major functions: 

First of all, to receive, investigate, and resolve

complaints of abuse, neglect, and exploitation of

people 60 years of age and older who reside in

long-term care facilities;

Secondly, to secure, preserve, promote the health,

safety, and welfare and the civil and human rights of

those individuals 60 years of age and older. . . .

And then thirdly, the Office was charged with

promoting, advocating, and insuring the adequacy of

care received and the quality of life experienced by

elderly residents of long-term care facilities in the

State.

(Id. at 6-8.) Isele currently works for the law firm Archer and

Greiner, P.C., where he specializes in healthcare and elder law. 

(Id. at 4.) Based on the sum of his experiences, the Court

qualified Isele as an expert in nursing home administration. 

(Id. at 13.)

The final expert witness, Kathleen Martin, was called by the

Regional Director, during rebuttal. Martin earned her

associate’s degree in nursing from Bergen Community College in

1977 and her bachelor’s degree in nursing from Pace University in

1979. (SH Ex. P-30, Curriculum Vitae of Kathleen Martin (“Martin

CV”) at 6; SH Transcript 6 at 5.) She thereafter earned masters

degrees in nursing and public administration from Seton Hall

University in 1982 and 1996, respectively. (Martin CV at 5-6; SH

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Transcript 6 at 5.) In the public administration program, Martin

studied the manner in which “facilities, mainly hospitals,

operate” and took courses in “healthcare administration . . . and

areas with healthcare operations.” (SH Transcript 6 at 7.)

Martin served as the administrator at several facilities,

including two CareOne facilities located in New Jersey. (Martin

CV at 2-3; SH Transcript 6 at 29-38.) She worked as the

Assistant Vice President of Quality, Case & Risk Management for

Bayonne Medical Center from September of 2008 until November of

2009, and, in that role, oversaw the Bayonne Medical Center’s

intra-hospital long-term care unit. (SH Transcript at 18-19,

22.) Finally, she also worked as the Chief Clinical Executive of

Hospicomm Management, a company that manages six long-term care

facilities located in New Jersey, from December of 2009 until

September of 2011. (Id. at 15, 18.) Based on the sum of her

experiences, the Court qualified Martin as an expert in three

areas: (1) the administration of long-term care facilities; (2)

nursing practices; and (3) State Surveys. (Id. at 52.)

B. Expert Testimony Regarding the Potential Effects of

Reinstating Napolitano, Claudio, Jacques, and Wells,

and Reinstating and Restoring Hours Worked by Per Diem

Employees

Each expert testified at length about the effects on the

public interest that would be caused by reinstating Napolitano,

Claudio, and Jacques to their respective former positions at

Somerset Valley. Bell and Isele also testified about the effects

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on the public interest that would be caused by (1) reinstating

Wells; and (2) requiring Somerset Valley to reinstate and restore

the hours worked by a group of per diem nurses. 

1. Napolitano

Each expert testified about Napolitano’s job performance and

disciplinary history, and the effect of her potential

reinstatement on the public interest.

a. The 1-4-10 Discipline for Documenting all

Pain Assessments for Her Shift at 8:00 a.m.

Bell and Martin agreed that Napolitano violated accepted

standards of nursing care when, at 8:00 a.m., she documented pain

assessments for all of her patients and for the entirety of her

shift, which did not end until 3:15 p.m. (SH Transcript 2 at

117; SH Transcript 7 at 73-74.) Isele similarly testified that

nurses should, instead of documenting pain assessments only at

the beginning of a shift, perform and contemporaneously document

pain assessments “early and often throughout a shift.” (SH

Transcript 3 at 25.) 

Bell, Isele, and Martin, assuming that Napolitano completed

pain assessments for all of her patients and for the entirety of

her shift at 8:00 a.m., agreed that Napolitano risked patient

harm because she created the potential for unaddressed pain. (SH

Transcript 2 at 117; SH Transcript 3 at 26-27; SH Transcript 7 at

71-73.) Isele further testified that patients could suffer

either because: (1) they suffered from unaddressed pain; or,

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conversely, (2) Napolitano’s early pain assessment led to the

administration of strong analgesic medication that the patients

did not require. (SH Transcript 3 at 26.) He noted, for

example, that some narcotics could cause constipation and bowel

rupture, which in turn would cause death. (Id. at 27.)

Isele also noted, however, that Napolitano may not have

completed pain assessments for all of her patients; based on the

documentary evidence, he opined that Napolitano likely documented

pain assessments that she had not actually performed. (Id. at

25-26.) Napolitano arrived for her January 4, 2010 shift at 7:04

a.m. and completed pain assessments for between sixteen and

twenty patients at 8:00 a.m. (See id.; SH Transcript 8 at 7-8.) 

Isele noted that it was possible but “highly unlikely” that she

could perform and document so many pain assessments in such a

short period of time, and thus inferred that Napolitano engaged

in a “dangerous [and] fraudulent practice” by falsifying medical

records. (SH Transcript 3 at 25, 27; SH Transcript 8 at 7-8.)

Martin acknowledged that performance and documentation of

pain assessments was a “basic” task taught to all nursing

students. (SH Transcript 6 at 64.) She also acknowledged, as

noted above, that Napolitano’s error in this instance violated

applicable standards of nursing care and created the potential

for patient harm. (SH Transcript 7 at 71-74.) She nonetheless

opined that Napolitano should not have received written

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discipline for this incident. (SH Transcript 6 at 61-63.) 

Martin noted that Napolitano, based on instructions received

during the 2009 State Survey, misunderstood the proper procedure

for performing and documenting pain assessments. (Id. at 61; see

also ALJ Hearing Transcript at 363, 377-79.) Because Napolitano

did not fully understand the proper procedures relating to pain

assessments, Martin testified that either a verbal warning or 

in-service education (or both) would have been more appropriate

than a written discipline. (SH Transcript 6 at 61-63.) 

b. The June 2010 Unsigned Record of Verbal

Warning for Failing to Initial Treatments

When reviewing Napolitano’s disciplinary record, Martin

disregarded this unsigned discipline. (Id. at 67 (“If it’s not

signed by anybody, I didn’t pay attention to it.”); SH Transcript

7 at 75.) Because it was not signed either by Napolitano or by a

Somerset Valley representative, she assumed that Napolitano had

not received it. (SH Transcript 6 at 69.) She acknowledged,

however, that a failure to initial treatment records was a

violation of the applicable standards of nursing care that would

warrant discipline. (SH Transcript 7 at 75-76.)

Bell and Isele testified that a nurse’s failure to document

administration of treatments or medications can impact patient

safety. (SH Transcript 2 at 118-121; SH Transcript 3 at 28, 32.) 

With respect to undocumented treatments, Bell noted that “if

they’re not documented, they’re not done.” (SH Transcript 2 at

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121, 159.) She explained that a nurse’s failure to document

could result in “the next shift coming on” lacking knowledge of

“whether or not the resident received the care that was

prescribed by the physician.” (Id. at 121.) Isele similarly

noted that a failure to document administration of treatments or

medications could result in repeated and unnecessary

administrations. (SH Transcript 3 at 28.)

Isele also testified that nurses may easily avoid such harm,

simply by initialing patient TARs or MARs when administering

related treatments or medications. (Id.) “All [a nurse] has to

do is initial a box [indicating] that she administered the

treatment that was prescribed. There is no reason in the world

that this cannot be done contemporaneously.” (Id.)

c. The 9-17-10 Discipline, inasmuch as it

Relates to Administering Discontinued

Medication

Bell and Martin agreed that Napolitano violated applicable

standards of nursing care by repeatedly administering a

discontinued medication, i.e., zinc oxide, to Patient 15W. (See

SH Transcript 2 at 122, 155-56; SH Transcript 7 at 76.) Bell

noted that Napolitano, “in effect, [administered] medication

without a physician’s order” and thus could have caused harm to

the patient. (SH Transcript at 122-23.) Isele agreed, noting

that “[i]t’s a significant error to give somebody a medication

that has been discontinued.” (SH Transcript 3 at 35.)

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Martin, however, testified that Napolitano should not have

received a written discipline for these errors, based on two

mitigating factors. First, Martin testified that Konjoh’s

investigative tactics, following receipt of Patient 15W’s

complaints, contributed to Napolitano’s errors. (SH Transcript 6

at 71-73, 83-84.) Martin specifically faulted Konjoh for failing

to prevent Napolitano’s administration of zinc oxide to Patient

15W on September 17, 2010. (Id.) She acknowledged, however,

that Konjoh did not learn that Patient 15W had received a “pink

pill” from any nurse until or shortly before September 17, 2010;

she thus acknowledged that, inasmuch as Konjoh might have

prevented Napolitano’s erroneous administration of medication,

Konjoh could only have prevented the September 17, 2010 incident. 

(SH Transcript 7 at 78-79; see also SH Transcript 2 at 192-97,

200-05; SH Transcript 8 at 7-9, 11.)

Martin also initially testified that, by failing to remove

the discontinued zinc oxide from the medication cart, other

nurses contributed to Napolitano’s medication administration

error. (SH Transcript 6 at 74-81.) She acknowledged on crossexamination, however, that other nurses’ failures did not excuse

or negate Napolitano’s mistakes because Napolitano, in

determining which medications to administer, should have relied

on the MAR. (See, e.g., SH Transcript 7 at 86.) Martin stated:

If it’s -- if the med’s there [i.e., on the medication

cart] and she read [the MAR] closely, she’d know to

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take it out or to verify and maybe check the order and

did it -- was it, in fact, discontinued . . . maybe

you’d want to go check that.” 

(Id. at 82.) Martin thus acknowledged that Napolitano would not

have administered discontinued medication to Patient 15W, on any

occasion, if she had read Patient 15W’s MAR before administering

her medications. (See id. at 82, 211-13.) 

d. The 9-17-10 Discipline, inasmuch as it

Relates to Leaving Patient Medication at the

Patient’s Bedside

Bell testified that a nurse would violate accepted standards

of nursing care by leaving pills unattended on a patient’s

bedside table. (SH Transcript 2 at 115.) Both Bell and Isele

testified that such actions constitute bad nursing practices

because: (1) the nurse cannot ensure that the patient will take

the medication; and (2) other patients could take and ingest the

unattended medications. (SH Transcript 2 at 123; SH Transcript 3

at 41.)

Martin testified that Napolitano did not, in fact, leave

medication on Patient 15W’s bedside table. Thus, Napolitano did

not receive discipline for leaving medication unattended; she 

received discipline because she did not observe Patient 15W

actually ingest the pink zinc oxide pill, as demonstrated by

Patient 15W’s ability to later hand that pill to Konjoh. (SH

Transcript 6 at 85-86. But see ALJ Hearing Testimony at 89-91,

93, 360-61 (demonstrating that Napolitano watched Patient 15W put

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this and other pills in her hand and lift her hand to her

mouth).)

After learning that Napolitano did not, in fact, actually

leave Patient 15W’s pills on her bedside table, Isele commented

this he could “drop this one out” without affecting his analysis

of the sum of Napolitano’s nursing errors or the impact on the

public interest of reinstating her employment. (SH Transcript 3

at 41-42, 148.)

e. The 9-17-10 Discipline, inasmuch as it

Relates to Documenting a Patient’s Oximeter

Reading as Zero

Isele described Napolitano’s oximeter reading documentation

as “an obvious error”, assuming that the patient at issue was

alive; Martin indicated that it was a “clear error”. (SH

Transcript 3 at 43; SH Transcript 6 at 88.) Martin explained

that “zero is just not accurate. It would be 100 or 90 if you

wanted a zero there, but an actual zero would not be accurate.” 

Isele and Bell agreed that Napolitano’s error, despite its

obviousness, could lead to actual patient harm. (SH Transcript 2

at 123-24, 159; SH Transcript 3 at 43-44, 149; SH Transcript 8 at

21-22.) Isele explained that patients with pulse oximetry levels

below ninety typically go to the hospital for immediate

treatment. (SH Transcript 3 at 43-44.) He further explained

that Napolitano’s error, in this instance, would have barred

other medical personnel from knowing the patient’s true pulse

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oximetry and, thus, would have barred them from determining

whether the patient required immediate hospitalization. (Id.)

Martin, however, testified that Somerset Valley erred by

issuing this discipline to Napolitano at noon, more than three

hours before the end of her shift. (SH Transcript 6 at 88-92.) 

Martin noted that, in her professional experience in long-term

care facilities, nurses often took notes on loose papers and/or

paper towels and compared those notes to their patients’ charts

at the end of a shift. (Id. at 89-92.) Martin thus would not

have issued discipline to Napolitano, because Napolitano: 

(1) testified that she wrote patients’ vital signs on a separate

sheet of paper; (2) could possibly have noticed and corrected the

oximeter reading error by comparing these notes to the relevant

TAR at the end of her shift; and (3) received discipline before

the end of her shift, thus depriving of her of the opportunity to

possibly correct the error. (SH Transcript 6 at 86, 89-91.)

Bell and Isele each criticized Napolitano’s practice and, in

so doing, Martin’s acceptance of the practice of documenting

patient information on materials other than TARs, MARs, and

official patient records. (SH Transcript 3 at 49-51; SH

Transcript 4 at 7-8, 10; SH Transcript 8 at 20.) Bell described

it as standing “against every standard of nursing practice that I

know.” (SH Transcript 4 at 7-8.) Isele noted that writing

information on loose papers increased the likelihood of error in

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transcribing pertinent information onto patients’ charts. (SH

Transcript 3 at 49-50.)

f. Effect on the Public Interest of

Reinstatement Napolitano’s Employment

After consideration of Napolitano’s errors and disciplines,

Bell opined that her reinstatement would not serve the public

interest because Napolitano committed several mistakes that were

“indicative of sloppy nursing care”. (SH Transcript 2 at 74,

125.) She further stated that Napolitano would place patients

“at risk because [she] had sloppy habits, and the potential is

there for more significant errors than what has already

occurred.” (Id. at 126.)

Isele similarly testified that, with respect to Napolitano,

he observed “a pattern of disregard or indifference to the

importance of contemporaneous documentation.” (SH Transcript 3

at 17-18; see also SH Transcript 8 at 23 (referring to Napolitano

as “a nurse who clearly does not understand or appreciate the

importance of contemporaneous documentation”).) He further

stated that “this is not something that education is going to

help. This is a character flaw.” (SH Transcript 3 at 51.) 

Isele thus opined that reinstating Napolitano’s employment would

not serve the public interest because “[she is] a danger to the

vulnerable elderly people that [she] would serve in this

facility”. (Id. 3 at 17, 24, 106; see also SH Transcript 8 at 24 

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(referring to Napolitano as “a danger to the health, safety, and

welfare of patients that she treats”).) 

Martin did not consider Napolitano to be a risk to her

patients or the public. (SH Transcript 6 at 96.) Martin

testified that she lacked “evidence that she was a danger or a

bad nurse in any way.” (Id.; see also SH Transcript 7 at 94.)

2. Wells

Bell and Isele both examined and testified about Wells’s job

performance at Somerset Valley. They agreed that her employment

as a staffing coordinator and, specifically, her use of privately

maintained spreadsheets that supplemented and circumvented the

SmartLinks scheduling system stymied proper staffing at Somerset

Valley. (SH Transcript 2 at 126-27, 132-33; SH Transcript 3 at

99-102.) They accordingly concluded that reinstating Wells would

negatively impact the public interest. (SH Transcript 2 at 129,

135, 179; SH Transcript 3 at 98-99, 102, 107-08.)

Bell noted that Somerset Valley repeatedly instructed Wells

to use SmartLinks, and that Wells failed to do so. (SH

Transcript 2 at 126.) She also noted discrepancies between the

SmartLinks Master Schedule and, based on instances of tardiness

and absenteeism, actual staff schedules. (See id. at 126-27.) 

She concluded that Wells put residents at risk by creating a

situation where employees did not understand their schedules and

staffing levels were not met. (Id. at 129, 135.)

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Isele testified that “[i]n the years [he] served as the

ombudsman, [he] developed the firm belief that staffing issues

were probably the single most frequent cause of abuse and neglect

in long-term care facilities.” (SH Transcript 3 at 99.) He also

stated that “[u]nderstaffing leads to underservice.” (Id. at

99.) Because, in his view, Wells’s actions as staffing

coordinator prevented Somerset Valley from ensuring that it

properly and adequately staffed its facility, Isele concluded

that reinstating Wells would negatively affect both patient care

and the public interest. (See id. at 18-19, 97-102, 107-08.)

Martin did not testify about the discipline meted out to

Wells or express an opinion regarding her reinstatement.

3. Claudio

Each expert testified about Claudio’s job performance and

disciplinary history, and the effect that reinstating Claudio’s

employment would have on the public interest.

a. 9-17-10 Discipline for Incorrectly

Administering Patient Medication

Bell and Martin agreed that Claudio violated accepted

standards of nursing care by administering aspirin to a patient

in a manner that was inconsistent with the patient’s doctor’s

prescription, i.e., by administering aspirin every day when the

doctor prescribed it only every other day. (SH Transcript 2 at

136, 159-60, 163; SH Transcript 7 at 97-98.) Isele similarly

testified that, as a matter of good practice, nurses should

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follow “the letter” of a doctor’s medication order. (SH

Transcript 3 at 52, 54-55.)

Martin testified that, as a long-term care facility

administrator, she would not have issued a final written warning

to Claudio for this error; she would, instead, only have issued a

verbal warning. (SH Transcript 6 at 108.) Martin felt that a

final written warning was too harsh a discipline in this instance

for two reasons, i.e., because: (1) the dates on the right-hand

side of the MAR were not “blocked out”; and (2) the 24-Hour Chart

Check did not recognize and report Claudio’s error. (Id. at 97-

99, 101-03, 105-06, 109.)

Taken together, the testimony of Bell and Isele demonstrated

that any lack of “blocking out” did not mitigate Claudio’s

discipline. Bell, for example, doubted that Claudio read or

referenced the patient’s MAR before administering medication; if

Claudio had not read or referenced the MAR, a lack of “blocking

out” would be irrelevant. (See SH Transcript 2 at 137 (“I would

question whether or not she had the MAR even with her at the time

she administered this medication . . .”); SH Transcript 4 at 15-

16.) She nonetheless stated that “that blocking off system is

what some facilities do as a crutch” and noted that a lack of

“blocking off” “doesn’t negate what the physician ordered.” (SH

Transcript 4 at 21.) Isele similarly testified, stating that

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hand side of the patient’s MAR, would not have committed the

medication administration error. (SH Transcript 8 at 25-26; see

also SH Transcript 7 at 98.)

Neither Bell nor Isele directly addressed Martin’s

contention that the failure of the 24-Hour Cart Check to notice

or alert others to Claudio’s medication administration error

somehow mitigated or excused Claudio’s error. Isele did,

however, explain in other contexts that the failure of the 

24-Hour Chart Check to discover a nurse’s error did not excuse

that error. (See, e.g., SH Transcript 7 at 211-13; SH Transcript

8 at 48.) 

b. 10-4-10 Discipline, Relating to Four

Documentation Errors

Through the October 4, 2010 discipline, Somerset Valley

addressed four documentation errors, i.e., Claudio’s failure to

document: (1) on patient EW post fall; (2) a narrative nursing

note during the admission of patient RG; (3) on patient RG post

fall; and (4) a doctor’s order for treatment of a patient’s skin

tear.

With respect to each of the documentation errors included in

this discipline, Martin discussed the circumstances surrounding

each error and discussed possible mitigating factors that, as an

administrator, she might have considered. (See SH Transcript

112-30.) She then testified, however, that these incidents,

taken together, still warranted some form of discipline. Because

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she disagreed with the issuance of Claudio’s September 17, 2010

discipline, she disagreed with the end result of this discipline,

i.e., a final written warning and a two-day suspension. (SH

Transcript 6 at 137-38.) She nevertheless did not disagree with

issuing some form of written discipline and subjecting Claudio to

at least a short suspension. (Id.) She stated:

it’s not so much that I have a problem with the step,

or whatever they want to do, it’s where they came from

to begin with, if you know what I mean. Like it’s not

-- if it’s a final written already, the first one, you

know, and now you’re going to a suspension -- a two-day

suspension, which is pretty severe. So, I mean --

you’re -- if you’re asking me what I would do, I would

have made it a second warning. I could have made it a

one-day suspension. You know, I just -- that’s kind of

-- almost doesn’t matter what I think I might do with

it. But it’s just -- it’s based on the fact that the

[September 17, 2010 discipline] is the first one that

I’m looking at that she has a problem.

(Id.) 

Martin and Bell agreed that each of the four documentation

errors constituted a separate violation of acceptable standards

of nursing care. (SH Transcript 2 at 137-38; SH Transcript 7 at

99-100.)

c. Claudio’s Late-Night Return to Somerset

Valley on 10-7-10, to Initial her patients’

TARs

All three expert witnesses agreed that Claudio should have

signed her patients’ TARs either during or immediately after

administering their treatments. (SH Transcript 7 at 113-14; SH

Transcript 8 at 40-41; see SH Transcript 2 at 138-139.) Bell and

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Martin agreed that each failure to initial a TAR, i.e., each and

every instance wherein Claudio should have but failed to place

her initials in a patient’s TAR, constitutes a separate error. 

(SH Transcript 2 at 139; SH Transcript 7 at 113-14.)

Martin, however, testified that she recognized Claudio’s

failure to initial her patients’ TARs as a “common failure”. (SH

Transcript 6 at 142-43.) She also testified that Claudio’s

actions, in returning to Somerset Valley eight hours after the

end of her shift to complete her patients’ TARs, were “okay” and

“positive”. (Id. at 141-24.) Accordingly, Martin would not have

stopped Claudio from completing those TARs; instead, she would

have complimented Claudio and simply addressed the issue, i.e.,

the initial failure to document patients’ treatments, at a later

date. (Id. at 140-142.)

Isele strongly disagreed. He noted that “[b]lank TARS are

the exception, not the rule.” (SH Transcript 8 at 43.) He

opined that the discipline meted out by Somerset Valley was

appropriate based upon Claudio’s initial failure to complete

patients’ TARs. (See SH Transcript 7 at 70-75.) He stated:

I can think of no reason why a person would not

[contemporaneously initial patient TARs] unless . . .

she was walking around without the treatment book,

without the book with the TARs in it. In which case,

she’s only guessing at which treatments each individual

resident requires, and that’s even worse practice.

(Id. at 75.)

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Bell and Isele acknowledged that Claudio returned to the

facility that evening, between eight and sixteen hours after

completing her patients’ treatments, to document such treatments. 

They opined, however, that her return to the facility did not

negate her initial error. Isele noted that Claudio, who worked

during the 7:00 a.m. to 3:00 p.m. shift, returned at 11:00 p.m to

complete her patients’ TARs. Because she did not return until

11:00 p.m., the nurses working on the 3:00 p.m. to 11:00 p.m.

shift worked without the benefit of her documentation. (SH

Transcript 3 at 73-75.)

Martin commented that nurses working on the next shift,

i.e., on the 3:00 p.m. to 11:00 p.m. shift, had no reason to

“look back” to review Claudio’s notes. (SH Transcript 6 at 142-

43.) Isele disagreed, noting that such nurses would not know

whether Claudio administered patient treatments. (SH Transcript

3 at 73-74; SH Transcript 8 at 41-42.) As noted above, Isele

earlier testified that the failure to document administration of

treatments or medications could result in repeated and

unnecessary administrations. (SH Transcript 3 at 28.)

d. Effect on the Public Interest of

Reinstatement Claudio’s Employment

Isele testified that reinstating Claudio’s employment would

not serve the public interest because Claudio demonstrated a

pattern of disregard for the importance of contemporaneous

documentation. (Id. at 17-18, 77-78.) He also opined that,

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based upon the same pattern of behavior, education and/or

training were unlikely to curb future issues. (Id. at 106.)

Bell similarly testified that reinstating Claudio would not

serve the public interest. (SH Transcript 2 at 140, 173). She

found that Claudio “demonstrated really sloppy nursing practice

with potential for significant error.” (Id. at 140.) She also

testified that Claudio could endanger Somerset Valley’s

residents. (SH Transcript 2 at 163-64.) Bell stated that

Claudio:

is the individual who attempted to document all of her

treatments at the end of her shift, and was instructed

by her supervisor to stop, and she continued, and was

insubordinate to the supervisor. And I really feel

strongly about this, that someone with a personality

that volatile could place a resident as a staff -- if I

were in nursing administration in that facility, I

would be watching this staff member very closely

because I would identify her as a possible potential

risk of abuse to the residents, and that’s one of the

regulations at 226. That you identify either staff or

residents who create the potential for abuse. So, I

would question that in this particular individual.

(Id.)

Martin, however, testified that Claudio should not have been

terminated and that her reinstatement would not create any risk

for the public. (See SH Transcript 6 at 145.) Although she

recognized that “certainly the[re] were, you know, issues that

need to be addressed and corrected”, she did not “believe that

[Claudio] had a very long track record of clinical problems that

would . . . need to be addressed and corrected.” (Id. at 146.)

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4. Jacques

Each expert testified about Jacques’s job performance and

disciplinary history, and the effect that reinstating her

employment would have on the public interest.

a. 12-2-09 Discipline for Failing to Assess a

Newly Admitted Patient’s Pain

Bell noted that Jacques’s failure to perform a pain

assessment in December of 2009 related to feedback that she

received earlier that year, in her 2009 Somerset Valley employee

performance appraisal. (SH Transcript 5 at 138-42.) In that

appraisal, dated March 25, 2009, the acting Somerset Valley DON

noted that Jacques “need[ed] to pay closer attention to

completing admissions assessments.” (Resp. Ex. 135 at second

page).

Isele testified at length regarding Jacques’s failure to 

assess the pain of a newly admitted rectal cancer patient. This

patient had a lesion in her rectum and suffered from what Isele

described as “excruciating pain” each time she had a bowel

movement. (SH Transcript 3 at 78-79, 81.) He stated:

[T]his was a very alert and oriented resident,

this was not a demented person. She knew what was

going on. She was quite articulate in how she

described her situation to the surveyor. And she told

the surveyor that every time she had a bowel movement,

the pain was so severe that she had to scream out, and

she was embarrassed that other people in the nursing

home would hear her screams. So she took a washcloth

and stuffed it in her mouth to muffle her own screams,

that’s how bad the pain was that this woman was

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suffering on the 20th of November when she spoke to the

State surveyor.

* * *

The pain, the excruciating pain that this woman

experienced every day from November 4th to November

24th, so severe that she had to stick a rag in her own

mouth to muffle her screams because she was concerned

about disturbing the other nursing home residents is --

constitutes some of the most severe harm that I have

seen, including everything that I saw and reviewed

during the course of my term as the State ombudsman,

the nine and a quarter years that I spent there as

general counsel and as ombudsman.

It is just incredible to me that this was allowed

to go on for 21 days. And it was Ms. Jacques’ failure

to address pain in her initial assessment of this

resident, failure to complete a pain assessment, that

set a series of failures in motion. The inter

disciplinary team had no indication on the initial

nursing assessment the pain was an issue. So, they 

. . . didn’t make a care plan to treat this woman’s

pain. The doctor apparently prescribed an ointment --

Lidocaine to -- like the Novocaine that you get when

you go to the dentist, short-acting. The purpose of

the ointment was to dull the pain of that lesion in her

rectum so that she could go to the bathroom. Lidocaine

is a short-acting anesthetic, it doesn’t last long, but

it lasts long enough to have a bowel movement. It is

never documented in those 20 days that she was there

before she spoke with the surveyor that she got that

Lidocaine ointment so she could go to the bathroom

without pain.

(Id. at 79, 81-82.) Isele also noted that, although the

patient’s doctor prescribed an analgesic ointment, the patient

did not receive treatment for pain. (Id. at 82-83.) Isele

attributed the lack of treatment, at least in part, to Jacques’s

initial failure to assess the patient’s pain. (Id. at 83.)

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Ms. Jacques did not complete a pain assessment, as she

should have, and she admits that. And that formed the

basis for the lack of treatment that this woman

received for the next 20 days of her life. Before --

fortunately, the State happened to come in. I don’t

know how long this would have gone on if the State

hadn’t come in, probably until she died.

(Id. at 83; see also SH Transcript 8 at 45-46.)

Martin testified that the interdisciplinary team, instead of

Jacques, should receive full blame for failing to craft a

meaningful care plan for this patient’s pain. (SH Transcript 6

at 152-55.) She acknowledged Jacques’s failure to assess the

patient’s pain upon admission but testified that the

interdisciplinary team should also have gathered information

about the patient’s pain levels from other sources. (Id.) She

also acknowledged, however, that Jacques’s error in failing to

assess the patient’s pain was a violation of the applicable

standard of nursing care and a “significant mistake”. (See SH

Transcript 7 at 18, 39.)

b. 9-24-10 Discipline for Various Failures to

Document Patient Statuses

Bell and Martin agreed that Jacques’s several documentation

errors each constituted a separate violation of the applicable

standards of nursing care. (SH Transcript 2 at 143, 150; SH

Transcript 7 at 18, 43.) Martin, in fact, approved of the

discipline meted out by Somerset Valley for these errors. (SH

Transcript 6 at 160.) 

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Bell testified that each violation of the standard of care

created the potential for patient harm. (See SH Transcript 2 at

150.) With respect to Jacques’s failure to document the status

of newly admitted patients, she testified that such failure

results in administration of improper care to those patients. 

(Id.)

c. 11-1-10 Discipline for Failure to Complete

Incident Reports

Martin argued that Jacques’s failure to complete incident

reports did not violate any standard of nursing care. (See SH 7

at 17-18, 45-46, 61-62.) She also testified that, as an

administrator, she would not have disciplined Jacques for failing

to complete the incident reports at issue. (SH Transcript 6 at

168.) She acknowledged, however, that Jacques narrative’s

statements were “incomplete” and “inappropriate”. (SH Transcript

7 at 51-53, 61-62.) 

Isele described Jacques’s narrative statements as “[n]ot

adequate in any way”. (SH Transcript 3 at 90.) He explained:

it is not, in any way, an acceptable explanation of

what she did, how she proceeded, what intervention she

took, or if she didn’t take any interventions, why she

felt no interventions were necessary, did she get the

patient back into bed, did she call someone else to

help her get the patient back into bed? We don’t know

any of that.

(SH Transcript 3 at 90.) He further explained, as did Bell, that

without such information, nurses working on subsequent shifts

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would be unable to adequately treat the patient or prevent

similar incidents from occurring. (Id. at 88-90; SH Transcript 2

at 143.)

d. 2-9-11 Discipline for Medication

Transcription Errors

Martin, Bell, and Isele noted that Jacques committed two

errors, in that she: (1) transcribed “ASA”, i.e., aspirin, onto

the Physician’s Order Sheet instead of “EC ASA”, i.e., enteric

coated aspirin; and (2) failed to transcribe aspirin, in any

form, on the patient’s MAR. (SH Transcript 2 at 140-41, 165; SH

Transcript 3 at 91-93; SH Transcript 6 at 172-75.) Martin

testified that, as an administrator, these errors warranted some

form of discipline but not termination. (SH Transcript 6 at

172.) Martin testified that termination was inappropriate, in

part, because the 24-Hour Chart Check should have discovered and

reported Jacques’s transcription errors. (Id.)

Isele disagreed, noting that “[i]t’s not ok to make medical

errors regardless of the fact that there are so-called fail safe

measures in effect.” (SH Transcript 3 at 94-95.) Isele

testified that, although the 24-Hour Chart Check should have

discovered and although an outside pharmacist actually discovered

Jacques’s errors, Jacques still bore ultimate responsibility for

her mistakes. (See id.)

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e. Effect on the Public Interest of

Reinstatement Jacques’s Employment

Isele testified that reinstating Jacques’s employment would

be “absolutely contrary to the public interest” because

to use a colloquialism, “she just doesn’t get it.” She

does not understand the importance of documentation. 

She does not understand her responsibilities in at

least two cases documented here as an admission nurse. 

And those responsibilities have [e]ffects down the line

as long as that person is in the nursing home. She

just doesn’t understand that. “It’s routine, it’s an

annoyance, it’s the only time I had that person so I

can’t possibly be responsible for her” was the attitude

I got from her testimony in court yesterday.[30]

I would like to believe that further education

might change that, but having heard Ms. Jacques’

testimony yesterday, I don’t believe that even further

education would make her less of a danger than she is.

(SH Transcript 3 at 95-96.) Bell generally agreed that

reinstating Jacques’s employment would not serve the public

interest. (SH Transcript 2 at 174.)

Martin disagreed. (See SH Transcript 6 at 173-74.) Upon

her review of Jacques’s disciplinary history, she concluded both

that Jacques’s disciplinary history did not warrant termination

and that Jacques was not a danger to her patients or the public. 

(See id.; SH Transcript 7 at 55-69.)

5. The Per Diem Employees

Bell and Isele both testified that Somerset Valley, by

reducing or eliminating the schedules of per diem employees,

 Isele was referring to Jacques’s December 1, 2011 30

Supplemental Hearing testimony, which he observed.

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improved patient care. (See SH Transcript 2 at 151-52; SH

Transcript 3 at 102-104.) Both testified that elderly patients

benefit from “continuity of care”, i.e., from familiarity with

nurses and care providers who consistently and regularly work at

their long-term facility. (SH Transcript 2 at 152; SH Transcript

3 at 103-04.) Isele testified that facilities that rely

primarily on full-time and part-time employees, and that minimize

the use of per diem employees, enjoy better relationships and

communication with their patients. (SH Transcript 3 at 103-04.) 

Accordingly, both Bell and Isele testified that restoring the

hours of affected Somerset Valley per diem employees would not

serve the public interest. (SH Transcript 2 at 152; SH

Transcript 3 at 104.)

Martin did not express an opinion regarding the restoration

of per diem employees’ hours.

CONCLUSIONS OF LAW

I. Standard of Review

The Regional Director now presents the Amended Petition

pursuant to Section 10(j) of the Act, 29 U.S.C. § 160(j)

(“Section 10(j)”). Section 10(j) permits the Regional Director,

after filing an administrative complaint pursuant to Section

10(b), to petition a United States district court “for

appropriate temporary relief or restraining order”. 29 U.S.C. §

160(j). 

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While resolving the Amended Petition, this Court must

consider two elements. First, the Court must determine whether

the Regional Director has “reasonable cause” to believe that

Somerset Valley committed unfair labor practices and thus

violated the Act. “To establish reasonable cause in the Third

Circuit, ‘there must be a substantial, non-frivolous legal

theory, implicit or explicit, in the Regional Director’s

argument, and second, taking the facts favorably to the Regional

Director, there must be sufficient evidence to support that

theory.’” Chester v. Grane Healthcare Co., 666 F.3d 87, 98 (3d

Cir. 2011) (citing Pascarell ex rel. N.L.R.B. v. Vibra Screw,

Inc., 904 F.2d 874, 882 (3d Cir. 1990)). When considering

whether the Regional Director had “reasonable cause” to file a

Section 10(b) complaint, we are mindful that these proceedings

“are subordinate to the unfair labor practice proceedings . . .

heard before the Board” and, consequently, “it is not the job of

the district court, in considering a § 10(j) petition, to

adjudicate the merits of the unfair labor practice case.” Ahearn

v. Jackson Hosp. Corp., 351 F.3d 226, 237 (6th Cir. 2003)

(citation and internal quotation marks omitted). 

Second, the Court must determine whether the relief sought

by the Regional Director is “just and proper”. See 29 U.S.C. 

§ 160(j); Chester, 666 F.3d at 98. When determining whether the 

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relief sought by the Regional Director is “just and proper”, the

Court must determine “whether an injunction is necessary to

preserve the Regional Director’s remedial powers, which

incorporates a weighing of relative harms to the bargaining

process, employees’ rights, and the likelihood of restoring the

status quo absent injunctive relief, along with the public

interests implicated by the labor disputes.” Chester, 666 F.3d

at 99. Such “just and proper” analysis thus subsumes the three

equitable prongs examined in traditional injunctive relief

proceedings, i.e., that: (1) the petitioner will likely suffer

irreparable harm in the absence of injunctive relief; (2) the

balance of equities tips in the petitioner’s favor; and (3) an

injunction serves the public interest. See id. 

II. Analysis

A. Reasonable Cause Analysis

1. Section 8(a)(1)

The Regional Director alleges that Somerset Valley violated

Section 8(a)(1) of the Act by coercively interrogating employees,

and by soliciting grievances and promising improved terms and

conditions of employment. Section 8(a)(1) provides that it is an

unfair labor practice for an employer “to interfere with,

restrain, or coerce employees in the exercise of the rights

guaranteed” by the Act. 29 U.S.C. § 158(a)(1).

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a. Interrogating Employees

An employer’s interrogation of its employees is unlawful

under the Act if, in light of the totality of the circumstances,

such interrogation reasonably tends to interfere with, restrain,

or coerce employees in their exercise of rights guaranteed by the

Act. Eisenberg v. Tubari, Ltd., No. 85-1857, 1985 WL 32832, at

*12 (D.N.J. July 8, 1985); Sunrise Senior Living, Inc., 344 NLRB

1246, 1254 (2005). To determine whether an interrogation is

coercive, the Court must examine the totality of the

circumstances; “[r]elevant factors include whether proper

assurances were given concerning the questioning, the background

and timing of the interrogation, the nature of the information

sought, the identity of the questioner, and the place and method

of the interrogation.” Sunrise Senior Living, 344 NLRB at 1254.

At the conclusion of the underlying unfair labor practices

proceeding, the ALJ concluded that Somerset Valley unlawfully

interrogated employees in a manner that “tended to coerce

employees in the exercise of their” rights under the Act. (See

ALJ Decision at 39-41.) Based upon the findings of fact recited

in Section VI(C)(4) of this Memorandum Opinion, the Court

similarly finds that the Regional Director had reasonable cause

to believe that Somerset Valley committed such acts. The record,

as shown by the testimony of Southgate, Jarbo, Claudio, Stubbs,

and Tyler, demonstrates that Somerset Valley, in the weeks

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leading up to the September 2010 union election, actively polled

employees about their Union sympathies and activity and, in at

least one instance, asked an employee to try and convince her coworkers to vote against the Union during the September 2010 union

election. (ALJ Hearing Transcript at 108-11, 692-95, 867-68,

882-84, 946, 1019-24.) Most of these conversations took place

when employees were separated from their co-workers, either

because they sat alone in the employee break room or because they

had walked into medical and/or supply closets. (Id.) 

Because the Regional Director expressed a substantial and

non-frivolous legal theory, and because his theory finds support

in the record, we conclude that the Regional Director had

reasonable cause to believe that Somerset Valley violated Section

8(a)(1) by interrogating its employees.

b. Soliciting Grievances and Promising Benefits

“The Regional Director has long held that, in the absence of

a previous practice of doing so, the solicitation of grievances

by an employer during an organizational campaign violates the Act

when the employer promises to remedy those grievances.” Ctr.

Constr. Co., 345 NLRB 729, 730 (2005); see also Moore-Duncan ex

rel. N.L.R.B. v. Aldworth Co., Inc., 124 F.Supp.2d 268, 281-82

(D.N.J. 2000). “The solicitation of grievances alone is not

unlawful, but it raises an inference that the employer is

promising to remedy the grievances. This inference is

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particularly compelling when, during a union organizational

campaign, an employer that has not previously had a practice of

soliciting employee grievances institutes such a practice.” Ctr.

Constr. Co., 345 NLRB at 730.

At the conclusion of the underlying unfair labor practices

proceeding, the ALJ concluded that Somerset Valley unlawfully

solicited grievances from employees and impliedly promised to

better their employment terms and conditions. (See ALJ Decision

at 41-42.) Based upon the findings of fact recited in Section

VI(C)(1) of this Memorandum Opinion, the Court similarly finds

that the Regional Director had reasonable cause to believe that

Somerset Valley committed such acts. Multiple employees reported

that Lee encouraged employees to speak to management about

perceived, necessary workplace changes. (ALJ Hearing Transcript

at 1013-14.) Further, Hutchens asked employees to give Somerset

Valley’s management an opportunity to resolve employee issues and

“turn things around”. (Id. at 105, 515, 1021.) Hutchens also

told employees to contact him directly to discuss workplace

issues and distributed his cellular telephone number. (Id. at

106-07.) Nothing in the record demonstrates that Lee, Hutchens,

or other management personnel previously took similar actions.

Hutchens and Illis also acted upon employee complaints. In

one instance, for example, after learning that the employees

lacked access to the bags needed to collect dirty linens,

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Hutchens directed Illis to distribute and Illis actually

distributed linen bags to the employees during the next morning

shift. (Id. at 865, 1472-73.)

Because the Regional Director expressed more than one 

substantial and non-frivolous legal theory, and because his

theories find support in the record, the Court concludes that the

Regional Director had reasonable cause to believe that Somerset

Valley violated Section 8(a)(1) by soliciting employee grievances

and either implicitly or explicitly promising to remedy those

grievances.

2. Section 8(a)(3)

The Regional Director finally alleges that Somerset Valley

violated Section 8(a)(3) by disciplining and terminating the

employment of Napolitano, Wells, Claudio, and Jacques, and also

by reducing the hours previously held and worked by per diem

employees Stubbs, Rodriguez, Aguilar, Joseph, and Onyeike. 

Section 8(a)(3) provides that it is an unlawful labor practice

for an employer to discharge or otherwise discriminate against

employees in retaliation for their union activity. 29 U.S.C. §

158(a)(3); Aldworth Co., 128 F.Supp.2d at 283.

To determine whether an employer has violated Section

8(a)(3), the Court applies a burden-shifting standard. Champion

Parts Rebuilders, Inc. v. N.L.R.B., 717 F.2d 845, 849 n.6 (3d

Cir. 1983); see St. John’s Cmty. Servs.–-N.J., Case No. 22-CA108

Case 3:11-cv-02007-MLC -LHG Document 131 Filed 04/16/12 Page 108 of 129 PageID:

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26934, 2010 WL 3177582, at *19 (NLRB Aug. 10, 2010). The

Regional Director must, in the first instance, make out a prima

facie case of discrimination premised upon union support or

activity. Aldworth Co., 128 F.Supp.2d at 283. “Among the

factors to be considered in determining whether an employee has

stated a prima facie case of discrimination are (1) the

employee’s union activity, (2) the employer’s knowledge of the

employee’s union activity, and (3) the employer’s hostility to

the union activity.” Id. (citations omitted). The Court may

infer both the employer’s knowledge of its employees’ union

activity and any related discriminatory motive from

circumstantial evidence. Id.

When, in the context of “reasonable cause” analysis, the

Court determines whether the Regional Director met his initial

burden, the Court does “not question the legitimacy of the

Respondent’s need to enforce its” patient care policies. See St.

John’s Cmty. Servs., 2010 WL 3177582, at *19. 

The absolute importance that the Respondent attaches to

its policy is not at issue. Similarly, the gravity of

the harm to the [patient] because of such an error is

also not at issue. The issue here concerns how the

Respondent dealt with its employees who committed []

errors. . . .

Id. Further, a finding that the employees’ discipline and/or

discharges violated the act

[d]oes not alter or undermine an employer’s authority

to implement or enforce work rules. Nor does it cast

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doubt on an employer’s ability to more strictly enforce

its work rules. . . . 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. 

In re Schrock Cabinet Co., 339 NLRB 182, 183-84 (2003) (emphasis

in original).

Once the Regional Director meets his burden, the Court must

find that the employer violated Section 8(a)(3) unless the

employer rebuts the Regional Director’s showing by demonstrating

that it would have disciplined or discharged the affected

employees “in any event because of unprotected conduct.” 

Champion Parts Rebuilders, 717 F.2d at 849 n.6. 

a. The Regional Director Had Reasonable Cause to

Believe that Somerset Valley Violated Section

8(a)(3) by Disciplining and Discharging

Napolitano, Wells, and Claudio

At the conclusion of the unfair labor practices proceeding,

the ALJ concluded, inter alia, that Somerset Valley unlawfully

disciplined and discharged Napolitano, Wells, and Claudio. (ALJ

Decision at 43-47, 48-49.) Based upon the findings of fact

recited in Sections IV(C)-(E), VI(B)(1)-(3), VI(C)(3), VII,

VIII(A)-(C), VIII(F), and XIII(B)(1)-(3) of this Memorandum

Opinion, the Court similarly finds that the Regional Director had

reasonable cause to believe that Somerset Valley unlawfully

disciplined and discharged those employees. The Regional

Director met his burden by demonstrating that: (1) Napolitano,

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Wells, and Claudio participated in protected Union activity; 

(2) Somerset Valley knew of such activity; and (3) Somerset

Valley disciplined and discharged Napolitano and Wells because of

such activity. See Aldworth Co., 128 F.Supp.2d at 283. 

First, the Regional Director demonstrated that Napolitano, 

Wells, and Claudio openly participated in protected Union

activity by supporting and campaigning on behalf of the Union. 

Napolitano and Claudio served as Union organizers and spoke

about, distributed literature for, and otherwise openly

campaigned for and supported the Union. (ALJ Hearing Transcript

at 44-45, 51-54, 73-74, 293-95, 304-06, 312, 316, 486, 501, 

821-22, 926-27, 1189-90.) During the Union organization process,

Napolitano and Claudio regularly spoke to and updated Southgate

on the Union’s progress. (Id. at 273, 279-80, 331-32.)

Furthermore, Napolitano, Wells, and Claudio appeared in Union

literature and marketing materials, such as the Talking Heads

Piece and the YouTube Video. (GC Ex. 10 (featuring Napolitano

and Wells); GC Ex. 11 (featuring Claudio and Wells).)

Second, the Regional Director demonstrated that Somerset

Valley knew that these employees supported and acted on behalf 

of the Union. After receiving notice of the petition for a

union, Somerset Valley managers, including Southgate and Illis,

met and attempted to identify Union supporters. (ALJ Hearing

Transcript at 945-52.) During these meetings, managers reviewed

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Union materials, such as the Talking Heads Piece, that featured,

among others, Napolitano Wells, and Claudio. (Id. at 945-52,

3099-101.)

Finally, the Regional Director made a prima facie showing of

violations of Section 8(a)(3) by demonstrating that Somerset

Valley disciplined and thereafter discharged Napolitano, Wells,

and Claudio based on Union animus. Such showing finds support in

the timing of the disciplines and discharges meted out to each of

these three employees. 

Before the September 2, 2010 election, Napolitano, Wells,

and Claudio received minimal discipline; Napolitano received a

January 2010 warning, Wells received two disciplines relating to

her former CNA responsibilities, and Claudio did not receive any

pre-election discipline. (Id. at 36-37, 44-45.) After the 31

election, however, Somerset Valley quickly and repeatedly

disciplined Napolitano, Wells, and Claudio for behavior that it

had previously tolerated. (See id. at 37-42, 50-51, 52-59.)

Napolitano and Claudio, for example, received discipline for time

and attendance issues dating back to January 1, 2010; all three

employees received discipline for performance issues that were

not discussed or remedied before the election. (Id.)

 Although Somerset Valley produced unsigned notices of 31

verbal warnings, purportedly issued to Napolitano and Claudio in

June of 2010, Napolitano and Claudio denied receiving and

Somerset Valley failed to otherwise demonstrate that it issued

such discipline. (See GC Ex. 34; GC Ex. 35.)

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Somerset Valley also quickly discharged each of these

employees. It terminated Napolitano’s employment within two

weeks of the election, terminated Wells’s employment within three

weeks of the election, and suspended Claudio approximately four

weeks after the election. (Id. at 43, 51, 59.) Somerset Valley

thereafter terminated Claudio’s employment. (Id. at 59.)

Somerset Valley contends that it issued performance-related

discipline to and discharged Napolitano, Wells, and Claudio in

accordance with set policies and procedures. With respect to the

this discipline, however, Somerset Valley failed to produce

evidence demonstrating that it issued discipline to similarly

situated employees during the weeks immediately following the

Union election. (See, e.g., id. at 138-40, 142, 2380-81

(demonstrating that nurses who either improperly administered

medication or improperly documented administration of medication

were not disciplined for such errors).) As such, Somerset Valley

failed to overcome the Regional Director’s prima facie showing.32

Based on the foregoing, the Court thus concludes that the

Regional Director expressed substantial and non-frivolous legal

theories demonstrating that Somerset Valley violated Section

 Somerset Valley did, however, produce evidence 32

demonstrating that it disciplined several employees for tardiness

and absenteeism, including employees who did not openly support

the Union. Accordingly, we conclude that Somerset Valley

overcame the Regional Director’s prima facie showing with respect

to the time and attendance disciplines meted out to Napolitano

and Claudio.

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8(a)(3). Because the Regional Director’s theories find support

in the record, the Court concludes that the Regional Director had

reasonable cause to believe that Somerset Valley violated Section

8(a)(3) by issuing several performance-related disciplines to and

thereafter discharging Napolitano, Wells, and Claudio.

b. The Regional Director Lacked Reasonable Cause

to Believe that Somerset Valley Violated

Section 8(a)(3) by Disciplining and

Discharging Jacques

At the conclusion of the unfair labor practices hearing, the

ALJ also concluded that Somerset Valley unlawfully disciplined

and discharged Jacques. (ALJ Decision at 47-48.) Upon review of

the record, and relying upon the findings of fact detailed in

Sections IV(C)-(E), VI(B)(1)-(3), VI(C)(3), VII, VIII(A),

VIII(D), VIII(F), and XIII(B)(4) of this Memorandum Opinion,

however, the Court concludes that: (1) the Regional Director made

a prima facie showing that Somerset Valley violated Section

8(a)(3) by disciplining and discharging Jacques; but (2) Somerset

Valley overcame the Regional Director’s prima facie showing.33

The Regional Director demonstrated that Jacques, like

Napolitano, openly participated in protected Union activity by

 The Court notes that the ALJ’s decision in the underlying 33

unfair labor practices hearing is persuasive but not binding

authority. See, e.g., Chester, 666 F.3d at 91. This Court may

thus reach a different conclusion in its “reasonable cause”

analysis than the ALJ reached on the merits of the unfair labor

practices proceeding.

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openly supporting and campaigning on behalf of the Union. (ALJ

Hearing Transcript at 44-45, 51-54, 73-74, 293-95, 304-06, 312,

316, 486, 501, 821-22, 927-27, 1189-90.) Jacques served as a

Union organizer and spoke about, distributed literature for, and

otherwise openly campaigned for and supported the Union. (Id.)

Furthermore, like Napolitano, Wells, and Claudio, Jacques

appeared in Union literature and marketing materials, such as the

Talking Heads Piece and the YouTube video, which was filmed at

Jacques’s home. (GC Ex. 10; GC Ex. 11; ALJ Hearing Transcript at

505-509; SH Transcript at 31-32.)

The Regional Director further demonstrated that Somerset

Valley knew that Jacques supported and acted on behalf of the

Union. Managers, working to identify Union supporters, reviewed

the Talking Heads Piece and YouTube video; they thus knew of

Jacques’s Union support. (ALJ Hearing Transcript at 945-52,

3099-101.) Further, Jacques identified herself as a Union

supporter by working as an observer for the Union at the

September 2, 2010 union election. (See id. at 345, 2951, 3105.) 

Finally, the Regional Director made a prima facie showing

that Somerset Valley violated Section 8(a)(3) by demonstrating

through circumstantial evidence that Somerset Valley disciplined

and thereafter discharged Jacques based on Union animus. Before

the union election, Jacques, who worked at Somerset Valley for

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over eleven years, received few disciplines. (Id. at 60-61.) 34

After the election, between September of 2010 until February of

2011, she received several disciplines relating to her job

performance. (Id. at 62-67.)

We have determined based on the record, however, that

Somerset Valley nevertheless would have disciplined and

discharged Jacques “in any event because of unprotected conduct.” 

See Champion Parts Rebuilders, 717 F.2d at 849 n.6. Our

determination rests on two conclusions.

First, we note that the timing of Jacques’s discipline and

discharge, relative to the Union election, differs from that

received by Napolitano, Wells, and Claudio. In the preceding

section of this Memorandum Opinion, we noted that the timing of

the disciplines issued to and discharge of Napolitano, Wells, and

Claudio supported the Regional Director’s prima facie showing

that Somerset Valley violated Section 8(a)(3); such timing gave

rise to an inference of unlawful discrimination premised on Union

animus. By contrast, the timing of the discipline meted out to

and discharge of Jacques does not support the same inference.

 The Court acknowledges that Jacques received a “final 34

written warning” in January of 2010 for failing to assess a

patient’s pain upon admission. The Court notes, however, that

such discipline was not treated as a final written warning

because the next discipline issued after the “final written

warning” did not result in Jacques’s termination. (See ALJ

Hearing Transcript at 2579-80.) 

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Jacques, unlike the other employees at issue, did not

immediately receive several performance-related disciplines and

termination following the union election. Instead, she received

such discipline over a six-month period. (See id. (demonstrating

that Jacques received performance-related discipline twice in

September of 2010, once in November of 2010, and once in February

of 2011).) Such disciplines resulted in the eventual termination

of her employment. (See id. at 67.) As such, the mere fact that

Jacques received greater discipline after the election than she

had before does not support the conclusion that Somerset Valley

violated Section 8(a)(3).

Second, we find that Somerset Valley disciplined and

discharged Jacques in accordance with set practices and

procedures, as demonstrated by the similar discipline meted out

to and discharge of similarly situated nursing employees who did

not support the Union. Somerset Valley took steps to discharge

several employees with long disciplinary histories, including

Jacques, Dande, and Bockarie. (Id. at 2957-58, 3144-46.) The 35

record demonstrates that Dande appeared in some of the Union

literature but, otherwise, did not openly participate in or

support the Union; Bockarie, by comparison, joined Somerset

Valley after the September 2, 2010 election and demonstrated no

 Somerset Valley did not actually discharge Dande because 35

she resigned before Somerset Valley could terminate her

employment.

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support for or affiliation with the Union. (See GC Ex. 10; ALJ

Hearing Transcript at 3160-65.) Accordingly, we have concluded

that Somerset Valley would have terminated Jacques’s employment

even in the absence of her protected Union activity.

c. The Regional Director Had Reasonable Cause to

Believe that Somerset Valley Violated Section

8(a)(3) by Reducing the Hours Worked by

Certain Per Diem Employees

At the conclusion of the unfair labor practices hearing, the

ALJ concluded that Somerset Valley unlawfully reduced the hours

formerly held and worked by Somerset Valley per diem employees 

Stubbs, Rodriguez, Aguilar, Joseph, and Onyeike. (ALJ Decision

at 50.) Upon review of the record, and relying upon the findings

of fact detailed in Sections IX and X of this Memorandum Opinion,

the Court concludes that the Regional Director made a prima facie

showing that Somerset Valley violated Section 8(a)(3) by reducing

the hours formerly held and worked by Stubbs, Rodriguez, Aguilar,

Joseph, and Onyeike.

As detailed above, Somerset Valley per diem employees,

including but not limited to Stubbs, Rodriguez, Aguilar, Joseph,

and Onyeike, regularly worked set schedules before the September

2, 2010 union election. Wells scheduled such employees as though

they part-time employees instead of “as-needed” or “fill-in”

personnel. (Id. at 957, 1410, 2885.) After the election,

however, Somerset Valley stripped Stubbs, Rodriguez, Aguilar,

Joseph, and Onyeike -- per diem employees who openly supported

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the Union -- of all hours; none of these employees thereafter

worked either on a regular, scheduled basis or on an as-needed

basis. The record contains evidence demonstrating that Somerset

Valley intentionally stopped scheduling these employees in order

to dilute the Somerset Valley workforce’s support for the Union. 

(Id. at 958-59.)

Based on the foregoing, the Court accordingly concludes the

Regional Director expressed a substantial and non-frivolous legal

theory tending to show that Somerset Valley violated Section

8(a)(3) by reducing the hours held and worked by the abovementioned per diem employees. Because the Regional Director’s

theory finds support in the record, the Court concludes that the

Regional Director had reasonable cause to believe that Somerset

Valley so violated Section 8(a)(3).

B. Just & Proper Analysis

The Regional Director has requested several forms of

injunctive relief, including, inter alia, reinstatement of

Napolitano, Wells, Claudio, and Jacques, and restoration of the

hours formerly worked by per diem employees Stubbs, Rodriguez,

Aguilar, Joseph, and Onyeike. (Am. Petition at 4-7.) The Court

now examines each requested remedy to determine whether ordering

those remedies would be “just and proper”.

1. Remedies Relating to Napolitano and Claudio

The Regional Director asks the Court to reinstate Napolitano

and Claudio based on the public interest in safeguarding the

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collective bargaining process. He has also asked the Court to

rescind and remove discipline from their respective employee

files. We note that by terminating Napolitano and Claudio, vocal

Union supporters who openly solicited union representation and

otherwise supported and campaigned on behalf of the Union,

Somerset Valley thwarted the objectives and goals of the Act. 

See Aldworth, 124 F.Supp.2d at 293-94. Indeed, “[g]ranting

reinstatement of discharged employees under 10(j) relief [may]

also [be] just and proper. Reinstatement will demonstrate that

the reprisals against pro-union employees were unlawful and will

send the message that anti-union discrimination will not be

tolerated.” Id. at 294. “Furthermore, reinstatement will allow

unlawfully terminated employees to again become part of the

bargaining process. We find that the discharge of those active

and open union supporters undoubtedly had an adverse impact upon

employee interest in unionization, and” the Court recognizes that

public interest served by “swiftly and surely” countering this

impact. See id. 

The public interest in safeguarding the collective

bargaining process would be even more greatly served by

reinstating Napolitano and Claudio because they were not merely

Union supporters; they were Union leaders. Napolitano and

Claudio were two of the three channels for information from the

Union. Without their presence at Somerset Valley, the Union

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lacks effective distribution channels for information about

meetings and issues affecting the Somerset Valley workforce. 

(See ALJ Hearing Transcript at 99-106; SH Transcript at 14-15,

49-52, 56-75, 110-12, 171-208.) 

The public interest in protecting the bargaining process is,

however, only one of the interests that this Court must consider. 

Because “just and proper” analysis subsumes the three equitable

prongs examined in traditional injunctive relief proceedings, as

detailed above, the Court must also examine the effect that such

relief will have on Somerset Valley’s interests, specifically, on

Somerset Valley’s ongoing ability to provide adequate care for

its patients. See Chester, 666 F.3d at 99-100; see also N.L.R.B.

v. Health Care & Retirement Corp. of Am., 511 U.S. 571, 577

(1994) (“Patient care is the business of a nursing home, and it

follows that attending to the needs of the nursing home patients,

who are the employer’s customers, is in the interest of the

employer.”). 

36

 The Court is mindful, too, that nursing homes “are not 36

factories or mines or assembly plants.” N.L.R.B. v. Baptist

Hosp., Inc., 442 U.S. 773, 783 n.12 (1979). Instead, they are

facilities “where human ailments are treated, where patients and

relatives alike often are under emotional strain and worry, where

pleasing and comforting patients are principal facets of the

day's activity, and where the patient and his family-irrespective

of whether that patient and that family are labor or management

oriented-need a restful, uncluttered, relaxing, and helpful

atmosphere, rather than one remindful of the tensions of the

marketplace in addition to the tensions of the sick bed.” Id.

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The Court agrees with Somerset Valley’s expert witnesses,

Bell and Isele, inasmuch as each testified that Napolitano and

Claudio set forth a record of “sloppy nursing care”, including

documentation errors and medication administration errors. (See

SH Transcript 2 at 74, 125, 140; SH Transcript 3 at 17-18, 51,

77-78, 106; SH Transcript 8 at 23.) The Court further agrees, as

first noted by Bell, that Claudio may pose a risk to Somerset

Valley’s residents. (See SH Transcript 2 at 164.) Claudio has

demonstrated repeatedly demonstrated contempt and disregard for

authority, both within Somerset Valley’s walls and in the course

of litigation. (Claudio Aff. at ¶ 14 (demonstrating that

Claudio, when questioned by her supervisor, Illis, “ignored

her”); Claudio Dep. at 64-65, 69-70 (same)).37

The Court, however, cannot, based on the record, conclude

that either Napolitano or Claudio present a serious and immediate

threat to patient care. Neither Napolitano nor Claudio has a

lengthy disciplinary history of medical errors. (See, e.g., SH

Transcript 2 at 74, 125-26; SH Transcript 3 at 140.) Further, as

discussed in the last section of this Memorandum Opinion, each

was disciplined and terminated immediately after the union

election. 

 The Court also notes that Claudio, throughout her 37

deposition, acted belligerently and demonstrated a similar

disregard for authority. (See Claudio Aff. at 27 (“This is

ridiculous.”, 28 (“I’m not an idiot. I’m very intelligent. We

can argue.”), 66-67, 68 (“This is, like, you’re kidding me.”),

104-06, 112 (“I don’t care if you want your questions

answered.”).)

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The Court thus concludes, insofar as the Regional Director

has asked the Court to reinstate the employment of Napolitano and

Claudio, that the public interest in safeguarding the collective

bargaining process outweighs the potential harm to the employer. 

The Court will thus issue an order temporarily reinstating

Napolitano and Claudio. 

The Court will not direct Somerset Valley to rescind or

otherwise remove discipline from Napolitano’s and Claudio’s

respective employee files. The Regional Director has not

demonstrated that such relief is proper in the context of a

Section 10(j) proceeding and, indeed, the Court believes that

such a request for such relief, if proper, should have been made

before the ALJ in the underlying unfair labor practices

proceeding.

2. Remedies Relating to Wells

The Regional Director also asks the Court to reinstate

Wells, and to rescind and remove the discipline issued to Wells,

as described above, from her employee record. In weighing the

equities invoked by the Regional Director’s request, however, the

Court has determined that the reinstatement of Wells’s employment

would not be just and proper. This determination rests on two

conclusions.

First, the public interest in safeguarding the bargaining

process would not be significantly furthered by the reinstatement

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of Wells’s employment. Wells was not a bargaining unit employee;

she is not part of the group referenced in this Memorandum

Opinion as the Somerset Valley workforce. (ALJ Hearing Testimony

at 1196; see also dkt. entry no. 26-7, Wells Aff. at ¶ 7.) As

such, her “reinstatement [would not] allow [an] unlawfully

terminated employee[] to again become part of the bargaining

process.” Cf. Aldworth, 124 F.Supp.2d at 293-94. Further,

unlike Napolitano and Claudio, Wells did not hold herself out as

the voice of the Union; she did not act on behalf of the Union,

for example, by answering employees’ questions or distributing

authorization cards. Her reinstatement accordingly would have

less comparative impact on the Somerset Valley workforce’s trust

in the reliability and/or sanctity of the bargaining process.

Second, the potential effect on Somerset Valley, i.e., on

Somerset Valley’s ability to provide adequate patient care, would

be negatively impacted by Well’s reinstatement. The only experts

to opine on the effects of her reinstatement, Bells and Isele,

concluded that Wells repeatedly created confusion amongst the

Somerset Valley staff and administration about staff schedules

and assignments, thus creating the risks of absenteeism,

inadequate care, and patient harm. (See SH Transcript 2 at 

126-29, 135; SH Transcript 3 at 18-19, 97-102, 107-09.) Isele,

in fact, described the scheduling risks associated with

reinstating Wells’s employment as “the single most frequent cause

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of abuse and neglect in long-term care facilities.” (SH

Transcript 3 at 99.) 

Thus, after considering and weighing the equities invoked 

by the Regional Director’s request, the Court concludes that: 

(1) the public interest in safeguarding the collective bargaining

process, inasmuch as it is invoked by the Regional Director’s

request to reinstatement Wells’s employment, is small; (2) the

potential harms created by such reinstatement are great; and 

(3) the weighing of equities in this matter thus weighs against

the temporary reinstatement of Wells’s employment. The Court

will thus not order Somerset Valley to reinstate Wells’s

employment during the pendency of the underlying administrative

proceedings or appeals therefrom.

3. Remedies Relating to Jacques

The Regional Director also asks the Court to reinstate

Jacques, and to rescind and remove the discipline issued to her,

as described above, from her employee record. In weighing the

equities invoked by the Regional Director’s request, however, the

Court has determined that the reinstatement of Jacques’s

employment would not be just and proper. Although the Court 38

 Because the Court earlier concluded that the Regional 38

Director lacked reasonable cause to believe that Somerset Valley

violated Section 8(a)(3) by disciplining and discharging Jacques,

we need not reach this, the second step in Section 10(j)

analysis. We nonetheless include this analysis to demonstrate

that Jacques, even upon a finding that the Regional Director had

reasonable cause to believe that Somerset Valley violated Section

8(a)(3) by disciplining and discharging Jacques, should not be

offered interim reinstatement.

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reaches the same conclusion with respect to Jacques’s employment

that it reached with respect to Wells’s employment, the Court

reaches that conclusion for very different reasons.

The public interest in safeguarding the collective

bargaining process would be served, albeit only incrementally, by

reinstating Jacques. Jacques, like Napolitano and Claudio, was a

member of the Somerset Valley workforce and a Union leader. 

Thus, the reinstatement of her employment would tend to

“demonstrate that the reprisals against pro-union employees were

unlawful and will send the message that anti-union discrimination

will not be tolerated.” Aldworth, 124 F.Supp.2d at 294. Such

demonstration, however, would only be incremental because the

crux of that message would already be served by the reinstatement

of Napolitano’s and Claudio’s employment. While reinstating the 

third of three Union leaders would may reinforce “the message

that anti-union discrimination will not be tolerated”, such

reinstatement carries less weight than the original message.

By contrast, the potential impact on Somerset Valley of

reinstating Jacques’s employment weighs heavily in the Court’s

calculus. The Court agrees with Isele that reinstating Jacques’s

employment would be “absolutely contrary to the public interest”,

i.e., to the interest served by Somerset Valley’s continuous

provision of adequate patient care, because “to use a

colloquialism, ‘she just doesn’t get it.’” (SH Transcript 3 at

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95-96.) Both before and after the union election, Jacques

created the risk for patient harm by, inter alia, failing to

document incident reports and failing to properly transcribe (or,

simply, to transcribe) a doctor’s order for patient medication. 

(ALJ Hearing Transcript at 567-71, 573-75; GC Ex. 46.) 

Furthermore, in at least one instance, Jacques’s actions led to

actual and very severe patient harm. (See Resp. Ex. 10; ALJ

Hearing Transcript at 597; SH Transcript at 214-15; SH Transcript

2 at 9.) 

The Court, as shown by the decision to reinstate

Napolitano’s and Claudio’s employment, does not look favorably

upon discrimination based on Union support or activity. The

Court also, however, recognizes the public interest in protecting

the health, safety, and welfare of patients entrusted to Somerset

Valley’s care. In light of the many errors that Jacques

committed while employed at Somerset Valley, the ongoing risk of

patient harm that she created, and, as noted by Bell and Isele,

the risk that she would continue to create risk of such harm, the

Court finds that the impact that reinstating Jacques’s employment

would have on Somerset Valley and on its patients far outweighs

the incremental public interest served by further safeguarding

the collective bargaining process. 

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4. Remedies Related to the Per Diem Employees

The Regional Director finally asks the Court to restore the

hours worked by per diem employees Stubbs, Rodriguez, Aguilar,

Joseph, and Onyeike.

The Court notes that the district court’s function in a

Section 10(j) proceeding is to preserve “the Board’s ultimate

remedial power”. Chester, 666 F.3d at 99; see also Kobell v.

Suburban Lines, Inc., 731 F.2d 1076, 1091 n.26 (3d Cir. 1984.) 

Indeed, we cognize that Section 10(j) should be reserved for 

“extraordinary cases” and is “not intended to undermine the

normal processes of labor law adjudication: administrative

resolution by the NLRB followed, if necessary, by enforcement in

the courts of appeals.” Kobell, 731 F.2d at 1091 n.26. We thus

focus not on the egregiousness of the unfair labor practices at

issue but, instead, on the likelihood of ultimate remedial

success. See id. Where, as here, the Regional Director seeks

greater relief than that issued by the Board -- here, the

Regional Director seeks to restore hours worked by the

aforementioned per diem employees, whereas the ALJ merely

recommended that those employees receive compensation for lost

hours -- the Court would not, in ordering such relief, act to

preserve the Board’s remedial powers. This Court, accordingly,

will not order any injunctive relief relating to per diem

employment, either retroactive or prospective, and leaves the

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final adjudication of those issues to the pending administrative

appeal of the ALJ Decision.

The Court moreover notes that restoration of the established

work schedules previously held by the per diem employees at issue

would be inappropriate at this juncture. These employees --

Stubbs, Rodriguez, Aguilar, Joseph, and Onyeike -- were

classified by Somerset Valley as per diem employees. The

Regional Director has not challenged that classification. As per

diem employees, these employees were not entitled to hold

established, “regular” work schedules; instead, Somerset Valley

should have scheduled these employees only on an as-needed basis. 

(See ALJ Hearing Transcript at 1405-07, 2885.) The Court would

thus not, under any circumstances, have ordered restoration of

the schedules previously held by these employees. 

CONCLUSION

The Court, for the reasons set forth above, will grant the

Amended Petition in part and deny it in part. The Court will

issue an appropriate order. 

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: April 16, 2012

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