Somerset Valley Rehabilitation and Nursing Center

SOMERSET VALLEY REHABILITATION & NURSING CENTER 961 1621 Route 22 West Operating Company, LLC d/b/a Somerset Valley Rehabilitation and Nursing Center and 1199 SEIU United Healthcare Workers East, New Jersey Region. Cases 22– CA–029599, 22–CA–029628, and 22–CA–029868 June 11, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND MCFERRAN On September 26, 2012, the Board issued a Decision and Order in this proceeding, which is reported at 358 NLRB 1361. Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the Third Circuit, and the General Counsel filed a cross- application for enforcement. At the time of the Decision and Order, the composition of the Board included two persons whose appointments had been challenged as constitutionally infirm. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid. Thereafter, the court of appeals vacated the Board’s Decision and Order and remanded this case for further proceedings consistent with the Su- preme Court’s decision. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.1 In view of the decision of the Supreme Court in NLRB v. Noel Canning, supra, we have considered de novo the judge’s decision and the record in light of the exceptions and briefs. We have also considered the now-vacated Decision and Order, and we agree with the rationale set forth therein. Accordingly, we affirm the judge’s rul- ings, findings, and conclusions and adopt the judge’s recommended Order to the extent and for the reasons stated in the Decision and Order reported at 358 NLRB 1361, which is incorporated herein by reference.2 The 1 The Respondent has filed a motion to recuse Chairman Pearce from this proceeding on the ground that his chief counsel, Ellen Dichner, while in earlier private practice, represented the Charging Party Union in this case up to the exceptions stage. Dichner has taken no part in the Board’s consideration of this case. The motion is therefore denied. 2 The prior decision cited Evenflow Transportation, 358 NLRB 695 (2012), which was also decided at a time when the composition of the Board included two persons whose appointments were not valid. Sub- sequently, however, a panel of a fully confirmed Board affirmed Even- flow. See 361 NLRB 1482 (2014). We shall modify the judge’s recommended Order to conform to our recent decision in Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). We shall also substitute a new notice in accordance with Durham School Services, 360 NLRB 694 (2014). judge’s recommended Order, as further modified herein, is set forth in full below. REMEDY We adopt the judge’s recommended remedy set forth in the Decision and Order reported at 358 NLRB 1361. In addition, in light of events following the issuance of the Board’s now-vacated decision, we briefly address the remedial reinstatement of employees Jillian Jacques and Valerie Wells. Before doing so, however, we emphasize our agreement with the findings made in the prior deci- sion that the Respondent unlawfully discharged these employees. The following paragraphs concern only our further agreement with the prior decision that Jacques and Wells are entitled to full reinstatement and backpay. I. After the judge issued his decision, the General Coun- sel successfully petitioned the United States District Court for the District of New Jersey for an order, under Section 10(j) of the Act, requiring, among other things, the interim reinstatement of alleged discriminatees Shan- non Napolitano and Sheena Claudio. The district court, however, declined to order interim reinstatement for Jacques and Wells on the ground that their alleged defi- ciencies in job performance threatened the public interest in patient safety at the Respondent’s facility. The Re- spondent and the then-Acting General Counsel each ap- pealed the district court’s decision to the United States Court of Appeals for the Third Circuit. While the 10(j) appeals were pending, the Board is- sued its now-vacated Decision and Order, finding that the Respondent unlawfully discharged all four of the discriminatees. The Board rejected both the Respond- ent’s claim that the employees had been discharged based on alleged performance deficiencies and its claim that, even if the discharges were unlawful, the same defi- ciencies warranted denying the employees reinstatement because their reinstatement would endanger public safe- ty. The Board pointed out that because “virtually all” of the discipline imposed for the alleged deficiencies cited by the Respondent had been unlawfully motivated, the Respondent was foreclosed from relying on that disci- pline as a basis for denying the employees reinstatement with full backpay. 358 NLRB at 1363–1364. The Board acknowledged the district court’s interim refusal to reinstate Jacques and Wells, but explained that it was not bound by that ruling because of the differences in the standards applied in a 10(j) proceeding for interim relief and the standards applied in the Board’s determina- tion of the merits and appropriate remedy. Id. at 1364, fn. 12. The Board did not specifically address the partic- 362 NLRB No. 113 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 962 ular allegations against Jacques and Wells that motivated the district court to deny them interim reinstatement. Following the issuance of the Board’s decision, the Acting General Counsel moved the Third Circuit to va- cate, as moot, the district court’s decision and order in the 10(j) proceeding. The court of appeals granted that request, but in response to the Respondent’s objection it noted that vacating the district court’s decision would have “no effect on the existence or record of the proceed- ings before it,” and would not “hinder [the Respondent] from relying on appropriate facts in the District Court record.” Thus, it appears that the Respondent, if it con- tests Jacques’ and Wells’ reinstatement in an enforce- ment proceeding, may rely on those particular facts that caused the district court concern over their interim rein- statement. For that reason, we take this opportunity to more specifically address those facts under the Board’s well-established remedial standard. II. Where, as here, an employer claims that an unlawfully discharged employee is not entitled to reinstatement based on alleged misconduct occurring before her dis- charge, it is the employer’s burden to prove that the em- ployee engaged in that misconduct and that it would have disqualified any similarly situated employee from con- tinued employment. See Marshall Durbin Poultry Co., 310 NLRB 68, 69–70 (1993), enfd. in pertinent part 39 F.3d 1312 (5th Cir. 1994). Specifically, the employer must “establish that the discriminatee’s conduct would have provided grounds for termination based on a preex- isting lawfully applied company policy and any ambigui- ties will be resolved against the employer.” John Cuneo, Inc., 298 NLRB 856, 857 fn. 7 (1990).3 Inherent in this burden is the premise that the employer was not aware of the employee’s alleged misconduct before her discharge. For if the employer was so aware, but either did not rely on the misconduct in discharging the employee or establish that it would have discharged the employee for the misconduct even in the absence of her protected activity, then the employer necessarily can- not show that the misconduct would have disqualified the discriminatee from reinstatement. See High Perfor- mance Tube, 251 NLRB 1362, 1362 (1980), enfd. 640 F.2d 382 (5th Cir. 1981). 3 This appropriately is a demanding standard because, at the remedi- al stage of a case, the respondent's unlawful conduct already has been firmly established. See Coronet Foods, Inc. v. NLRB, 981 F.2d 1284, 1287 (D.C. Cir. 1993). III. Applying those principles, we find that the Respondent cannot show that Jacques or Wells should be denied rein- statement, even considering the specific concerns raised by the district court. In refusing to order the interim re- instatement of Jacques, the district court singled out one occasion when her failure to assess a patient’s pain upon admission to the facility led to “very severe” harm to the patient. That incident, however, occurred more than a year before Jacques’ discharge. Moreover, the Respond- ent was fully aware of the incident at the time, yet per- mitted Jacques to continue working for more than a year thereafter. For this reason alone, the Respondent cannot now rely on the incident to defeat Jacques’ right to rein- statement. See High Performance Tube, above, 251 NLRB at 1362. But, even if we were to consider Jacques’ alleged error on that occasion, we would find that the Respondent has not shown that it would have disqualified her from con- tinued employment. As did the Board in the now- vacated decision, we find it significant that Jacques was a very senior nurse, and that during the 2 years immediate- ly preceding her discharge, the Respondent frequently designated her a “charge nurse” with additional respon- sibilities. The Respondent’s witnesses acknowledged that nurses selected to be charge nurses were required to be experienced and dependable. In other words, the Re- spondent, both before and after the incident in question, repeatedly placed Jacques in a position reserved for high- performing nurses. This confirms that the Respondent itself did not actually consider Jacques a threat to patient safety, and that the incident was not a disqualifying event. With respect to Wells, the Respondent’s designated “staffing coordinator,” the district court denied the re- quest for interim reinstatement based on several schedul- ing errors that caused potential staffing gaps. The district court found it significant that one of the Respondent’s expert witnesses testified in the injunction proceeding that scheduling problems are “the single most frequent cause of abuse and neglect” in facilities like the Re- spondent’s. Even accepting that generalization as accu- rate, we do not find it helpful in answering the question whether the Respondent has established that it would have disqualified any employee who made such schedul- ing errors in similar circumstances. To answer that question, we look to the Respondent’s actual reaction to Wells’ alleged errors. As the adminis- trative law judge noted, the Respondent claimed that Wells made scheduling errors during the month before SOMERSET VALLEY REHABILITATION & NURSING CENTER 963 the election in this case, but the Respondent did not dis- cipline her for those errors.4 Moreover, although the Respondent cited Wells’ alleged postelection scheduling errors as the basis for her discharge, we have affirmed the prior Board’s finding that the Respondent failed to establish that it would have discharged Wells for those errors absent her protected activity. So, here too, any attempt by the Respondent to defeat Wells’ reinstatement would rely on alleged misconduct that the Respondent has already failed to prove warranted her discharge. In short, the Respondent, by its own actions, has demonstrated that Jacques’ and Wells’ alleged perfor- mance deficiencies did not warrant excluding them from continued employment. Accordingly, we will order Jacques and Wells reinstated with full backpay. ORDER The Respondent, 1621 Route 22 West Operating Company, LLC d/b/a Somerset Valley Rehabilitation and Nursing Center, Bound Brook, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating its employees about their union mem- bership, sympathies, and/or activities. (b) Soliciting employee complaints and grievances, thereby promising its employees increased benefits and improved terms and conditions of employment if they refrained from union organizational activities. (c) Issuing written warnings to employees because of their union membership, sympathies, and/or activities. (d) Suspending, discharging, or otherwise discriminat- ing against any employee for supporting 1199 SEIU United Healthcare Workers East, New Jersey Region, or any other labor organization. (e) Accelerating the resignation dates of employees because of their union membership, sympathies, and/or activities. (f) Reducing the hours of per diem employees because of their union membership, sympathies, and/or activities. (g) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of the this Order, of- fer Sheena Claudio, Jillian Jacques, Shannon Napolitano, and Valarie Wells full reinstatement to their former jobs 4 In fact, the Respondent had not disciplined Wells for any perfor- mance errors in the 5 years she had held her position. It was not until shortly after the Union won the election, with Wells’ public support, that her errors began to trigger the quick succession of disciplinary warnings that culminated in her termination within a period of only 8 days. or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Make employees Sheena Claudio, Jillian Jacques, Shannon Napolitano, Valarie Wells, Lynette Tyler, Daysi Aguilar, Dominique Joseph, Rita Onyeike, Gertrudis Rodriguez, and Annie Stubbs whole for any loss of earn- ings and other benefits suffered as a result of the discrim- ination against them, in the manner set forth in the reme- dy section of the judge’s decision. (c) Compensate Claudio, Jacques, Napolitano, Wells, Tyler, Aguilar, Joseph, Onyeike, Rodriguez, and Stubbs for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file a report with the So- cial Security Administration allocating the backpay award for each to the appropriate calendar quarters. (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful employment actions taken against the employees named above, and within 3 days thereafter notify the employees in writing that this has been done and that the unlawful employ- ment actions will not be used against them in any way. (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its Bound Brook, New Jersey facility, copies of the at- tached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous plac- es including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 964 the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since August 1, 2010. (g) Within 21 days after service by the Region, file with the Regional Director for Region 22 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT question you about your union member- ship, sympathies, and/or activities. WE WILL NOT solicit your complaints and grievances, thereby promising you increased benefits and improved terms and conditions of employment if you refrain from union organizational activities. WE WILL NOT issue written warnings to you because of your union membership, sympathies, and/or activities. WE WILL NOT suspend, discharge, or otherwise dis- criminate against you for supporting 1199 SEIU United Healthcare Workers East, New Jersey Region, or any other labor organization. WE WILL NOT accelerate your resignation date because of your union membership, sympathies, and/or activities. WE WILL NOT reduce the hours of employees, includ- ing per diem employees because of your union member- ship, sympathies, and/or activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, offer Sheena Claudio, Jillian Jacques, Shannon Napolitano, and Valarie Wells full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their sen- iority or any other rights or privileges previously en- joyed. WE WILL make employees Sheena Claudio, Jillian Jacques, Shannon Napolitano, Valarie Wells, Lynette Tyler, Daysi Aguilar, Dominique Joseph, Rita Onyeike, Gertrudis Rodriguez, and Annie Stubbs whole, with in- terest, for any loss of earnings and other benefits suffered as a result of the discrimination against them. WE WILL compensate Claudio, Jacques, Napolitano, Wells, Tyler, Aguilar, Joseph, Onyeike, Rodriguez, and Stubbs for the adverse tax consequences, if any, of re- ceiving a lump-sum backpay award, and WE WILL file a report with the Social Security Administration allocating the backpay award for each to the appropriate calendar quarters. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful employment actions taken against the employees named above, and WE WILL, within 3 days thereafter noti- fy them in writing that this has been done and that the unlawful employment actions will not be used against them in any way. 1621 ROUTE 22 WEST OPERATION CO., LLC D/B/A SOMERSET VALLEY REHABILITATION AND NURSING CENTER The Board’s decision can be found at www.nlrb.gov/case/22-CA-029599 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.